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On Monday, June 15, the U.S. House of Representatives received the newly-minted Indian Water Rights Settlement Extension Act, introduced in the U.S. Senate and which passed that chamber earlier this month.  The current bill packages three separate pieces of legislation:  the Navajo Utah Water Rights Settlement Act, the Aamodt Litigation Settlement Completion Act, and the Kickapoo Tribe Water Project Study.

Native American water rights account for a significant portion of vested entitlements to the West’s limited water supplies, though many of such rights remain unquantified and unused.  Determining tribal water rights in court through general stream adjudications entails great expense, time, and uncertainty for all involved.  Since 1990, the Department of Interior’s policy has been to resolve disputes about Indian water claims by negotiated settlements, which become federal law when adopted through congressional legislation.  No two settlements are the same, but in general the United States, involved Tribe(s), the State government and related state users participate in negotiations, and work to identify the Indian water rights.  The United States and Tribes frequently agree to some level of subordination for their water rights, in exchange for water supply infrastructure funding allowing the tribe to physically convert its paper entitlement to “wet water.”

On the Navajo Nation’s lands, which span across Utah, New Mexico and Arizona, lack of running water is one key reason for high rates of infectious diseases, like the current COVID-19 virus.  The Navajo Utah Water Rights Settlement Act certifies the Navajo Nation’s water rights on the portion of its reservation located in the State of Utah.  The bill grants the Navajo 81,500 acre-feet of annual consumptive use from Utah water sources adjacent to or encompassed within the boundaries of the tribe’s reservation.  These depletions will be counted against Utah’s Colorado River Basin apportionment.  The proposed settlement also authorizes $210M in funding for domestic water delivery infrastructure and agricultural conservation projects so that clean running water can be delivered to Utah’s Navajo communities.  The federal government will manage a trust fund and disburse money to the Navajo Nation, to build various water supply infrastructure projects.  This reflects a recent trend whereby the Nation itself, and not the Department of Interior, undertakes project construction – which shifts risks and responsibilities to tribal governments with “Fund Based” settlements.  Other key features of the settlement include protecting established state-law water uses against future Navajo water development, specifying tribal vs. state administrative jurisdiction in specified scenarios, and incorporating allottee water rights.

The second provision in the present legislation relates to Kansas, where settlement negotiations for the Kickapoo Tribe’s water rights are actively proceeding.  The present legislation directs the U.S. Department of Agriculture to conduct a study of the Upper Delaware and Tributaries Watershed Plan, and within two years make recommendations to Congress concerning any material changes to the plan necessary to effectuate the water rights the Tribe has agreed to in the 2016 Kickapoo Tribe Water Rights Settlement Agreement, which remains subject to congressional approval.  The legislation does not specify the funding source for the study.

In New Mexico, the long running Aamodt litigation on the Pojoaque River basin northwest of Santa Fe was settled in 2010.  It certified the water rights of four New Mexico Indian Pueblos, non-Indian claims, and established a much needed regional water system, to be built by the Bureau of Reclamation.  The new Aamodt Litigation Settlement Completion Act will provide Reclamation with additional funding and time to implement its obligations under the 2010 Aamodt Litigation Settlement Act.  The new regional water system, to be constructed by the Bureau of Reclamation, will provide 2,500 acre-feet annually to the Pueblos and 1,500 acre-feet to non-Pueblo users in the Pojoaque basin.  Federal money funds this cornerstone project.  The system’s water supply consists of imported Rio Grande surface water, reducing current stress on the local aquifer by alleviating groundwater dependency.  Other key features of the 2010 settlement include:

1. Non-Indian users have the option to join the settlement and connect to the regional water system;
2. The Pueblos relinquished claims against non-Indians who joined the settlement;
3. The Pueblos agreed to specific water use limits and other negotiated protections for existing state-law water rights;
4. New Mexico agreed to close the basin to new water right development and meter all water uses in the basin.

The new legislation provides additional funding and an extended but definitive timeline to construct the regional water system.  It is set to be complete by June 30, 2028.

Since 1978, the federal government has entered into 36 water rights settlements with 40 individual Indian tribes.  Many other tribes are currently negotiating settlements, and the Department of Interior lists 22 formal negotiating teams and one assessment team.  The pending legislation represents key features likely to be incorporated into future settlements, two of which follow:

1. Tailored water supply arrangements and administrative schemes designed to deliver wet water and afford protection from senior calls to existing non-Indian uses; and
2. Fund based settlement concepts to implement water supply projects, shifting responsibilities for infrastructure construction to tribes, a task historically undertaken by the federal government.

For more information on Native American and Pueblo water rights, please reach out to Ramsey Kropf (rkropf@somachlaw.com) or Dan Condren (dcondren@somachlaw.com), who work on Indian water settlements.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.