[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 5068 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
2d Session
S. 5068
To amend the Northwestern New Mexico Rural Water Projects Act to make
improvements to that Act, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
October 11, 2022
Mr. King (for Mr. Lujan) introduced the following bill; which was read
twice and referred to the Committee on Energy and Natural Resources
_______________________________________________________________________
A BILL
To amend the Northwestern New Mexico Rural Water Projects Act to make
improvements to that Act, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Navajo-Gallup Water Supply Project
Amendments Act of 2022''.
SEC. 2. DEFINITIONS.
Section 10302 of the Northwestern New Mexico Rural Water Projects
Act (43 U.S.C. 407 note; Public Law 111-11) is amended--
(1) by redesignating paragraphs (12), (13), (14), (15),
(16), (17), (18), (19), (20), (21), (22), (23), (24), (25),
(26), (27), (28), (29), and (30) as paragraphs (13), (14),
(15), (16), (17), (18), (19), (20), (21), (22), (23), (24),
(25), (28), (29), (30), (31), (32), and (33), respectively;
(2) by inserting after paragraph (11) the following:
``(12) Deferred construction fund.--The term `Deferred
Construction Fund' means the Navajo Nation's Navajo-Gallup
Water Supply Project Deferred Construction Fund established by
section 10602(i)(1)(A).'';
(3) in paragraph (14) (as so redesignated)--
(A) in the paragraph heading, by striking ``Draft''
and inserting ``Final environmental'';
(B) by striking ``Draft Impact'' and inserting
``Final Environmental'';
(C) by striking ``draft environmental'' and
inserting ``final environmental''; and
(D) by striking ``March 2007'' and inserting ``July
6, 2009'';
(4) in paragraph (19) (as so redesignated), by striking
``Draft'' and inserting ``Final Environmental'';
(5) by inserting after paragraph (25) (as so redesignated)
the following:
``(26) Project service area.--The term `Project Service
Area' means the area that encompasses the 43 Nation chapters,
the southwest portion of the Jicarilla Apache Reservation, and
the City that is identified to be served by the Project, as
illustrated in figure IV-5 (Drawing No. 1695-406-49) of the
Final Environmental Impact Statement.
``(27) San juan generating station.--The term `San Juan
Generating Station' means the coal-fired, 4-unit electric power
plant and ancillary features located by the San Juan Mine near
Waterflow, New Mexico.''; and
(6) by adding at the end the following:
``(34) Working cost estimate.--The term `Working Cost
Estimate' means the Bureau of Reclamation document entitled
`NGWSP October 2020 WCE' and dated May 20, 2021, that details
the costs totaling $1,705,174,000, at the October 2020 price
level, of the Project, as configured on that date.''.
SEC. 3. NAVAJO-GALLUP WATER SUPPLY PROJECT.
(a) Authorization of Navajo-Gallup Water Supply Project.--Section
10602 of the Northwestern New Mexico Rural Water Projects Act (Public
Law 111-11; 123 Stat. 1379) is amended--
(1) in subsection (a)--
(A) in the subsection heading, by striking ``In
General'' and inserting ``Authorization'';
(B) by striking ``The Secretary'' and inserting the
following:
``(1) In general.--The Secretary'';
(C) in paragraph (1) (as so designated), by
striking ``Draft Impact Statement'' and inserting
``Final Environmental Impact Statement, as further
refined in, and including the facilities identified in,
the Working Cost Estimate and any subsequent
supplemental documents prepared in accordance with the
National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.).''; and
(D) by adding at the end the following:
``(2) Additional service areas.--
``(A) Findings.--Congress finds that--
``(i) expanding the Project Service Area
would create opportunities to increase service
for additional Nation Tribal members and would
not increase the cost of the Project beyond
authorization levels described in section
10609(a); and
``(ii) the unit operations and maintenance
costs of the Project would be reduced by adding
more customers to the Project.
``(B) Authorizations for additional project service
areas.--
``(i) New mexico.--In addition to
delivering water supply from the Project to the
Nation communities in the San Juan River Basin,
the Nation may expand the Project Service Area
in order to deliver water supply from the
Project to communities of the Nation within the
Rio San Jose Basin, New Mexico.
``(ii) Arizona.--In addition to delivering
water supply from the Project to the Nation
communities of Fort Defiance and Window Rock,
Arizona, and subject to section 10603(c)(1),
the Nation may expand the Project Service Area
in order to deliver water supply from the
Project to the Nation community of Lupton,
Arizona, within the Little Colorado River
Basin, Arizona.'';
(2) in subsection (b)--
(A) in the matter preceding paragraph (1)--
(i) by inserting ``acquire,'' before
``construct,''; and
(ii) by striking ``Draft Impact Statement''
and inserting ``Final Environmental Impact
Statement, as further refined in, and including
the facilities identified in, the Working Cost
Estimate and any subsequent supplemental
documents prepared in accordance with the
National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.)'';
(B) by striking paragraph (1) and inserting the
following:
``(1) San juan generating station.--
``(A) In general.--The water conveyance and storage
facilities associated with the San Juan Generating
Station, including the diversion dam, the intake
structure, the river pumping plant, the pipeline from
the river to the reservoir, the dam and associated
reservoir, the power line between the river and
reservoir, and any associated land, rights-of-way,
easements, or ancillary features.
``(B) Waiver of appraisal.--Notwithstanding any
other provision of law, the Secretary may waive an
appraisal relating to the acquisition of the water
conveyance and storage facilities associated with the
San Juan Generating Station described in subparagraph
(A).'';
(C) in paragraph (2)(A)--
(i) by striking ``River near Kirtland, New
Mexico,'' and inserting ``Generating Station
Reservoir''; and
(ii) by inserting ``generally'' before
``follows United States Highway 491'';
(D) in paragraph (3)(A), by inserting ``generally''
before ``follows United States Highway 550''; and
(E) in paragraph (5), by inserting ``(including any
reservoir facility)'' after ``treatment facility'';
(3) in subsection (c)--
(A) in the subsection heading, by inserting ``and
Facilities'' after ``Land'';
(B) in paragraph (1), by striking ``any land or
interest in land that is'' and inserting ``any land or
facilities, or interest in land or facilities, that
are''; and
(C) by adding at the end the following:
``(4) Land to be taken into trust.--
``(A) In general.--On satisfaction of the
conditions described in paragraph (7) of the Agreement
and after the requirements of sections 10701(e) and
10703 are met, the Secretary shall take legal title to
the following land and, subject to subparagraph (D),
hold that land in trust for the benefit of the Nation:
``(i) Fee land of the Nation, including--
``(I) the parcels of land on which
the Tohlakai Pumping Plant, Reach 12A
and Reach 12B, are located, including,
in McKinley County, New Mexico--
``(aa) sec. 5, T. 16 N., R.
18 W., New Mexico Prime
Meridian; and
``(bb) sec. 33, T. 17 N.,
R. 17 W., New Mexico Prime
Meridian (except lot 9 and the
NW\1/4\ of lot 4);
``(II) the parcel of land on which
Reach 12.1 is located, including--
``(aa) NW\1/4\ and SW\1/4\
sec. 5, T. 16 N., R. 18 W.;
``(bb) N\1/2\ sec. 11, T.
16 N., R. 19 W.; and
``(cc) sec. 12, T. 16 N.,
R. 20 W.; and
``(III) the parcel of land on which
Reach 12.2 is located, including NW\1/
4\. sec. 2, T. 16 N., R. 21 W.
``(ii) Public domain land managed by the
Bureau of Land Management, including--
``(I) the parcel of land on which
the Cutter Lateral Water Treatment
Plant is located, including S\1/2\ sec.
9, T. 25 N., R. 9 W., New Mexico Prime
Meridian; and
``(II) the parcel of land on which
the Navajo Agricultural Products
Industry turnout is located, including
NW\1/4\ and NE\1/4\ sec. 34, T. 26 N.,
R. 9 W., New Mexico Prime Meridian.
``(iii) Public domain land managed by the
Bureau of Reclamation, including the land
underlying the San Juan Generating Station
facilities acquired by the United States.
``(B) Part of navajo nation.--The land taken into
trust under subparagraph (A) shall be part of the
Navajo Reservation and administered in accordance with
the laws and regulations generally applicable to land
held in trust by the United States for the benefit of
an Indian Tribe.
``(C) Limitations.--The land taken into trust under
subparagraph (A) shall be subject to valid existing
rights, contracts, and management agreements, including
easements and rights-of-way.
``(D) Savings clause.--Nothing in this paragraph
affects any--
``(i) water right of the Nation in
existence on the day before the date of
enactment of the Navajo-Gallup Water Supply
Project Amendments Act of 2022; and
``(ii) right or claim of the Nation to any
land or interest in land in existence on the
day before the date of enactment of the Navajo-
Gallup Water Supply Project Amendments Act of
2022.'';
(4) in subsection (d)(1)(D), by striking ``Draft'' and
inserting ``Final Environmental'';
(5) in subsection (e)--
(A) by striking ``The Secretary'' and inserting the
following:
``(1) In general.--The Secretary''; and
(B) by adding at the end the following:
``(2) Renewable energy and hydroelectric power.--
``(A) Renewable energy.--For any portion of the
Project that does not have access to Colorado River
Storage Project power, the Secretary may use not more
than $6,250,000 of the amounts made available under
section 10609(a)(1) to develop renewable energy.
``(B) Hydroelectric power.--Notwithstanding whether
a Project facility has access to Colorado River Storage
Project power, the Secretary may use not more than
$1,250,000 of the $6,250,000 authorized to be used to
develop renewable energy under subparagraph (A) to
develop hydroelectric power for any Project facility
that can use hydraulic head to produce electricity.'';
(6) in subsection (h)(1), in the matter preceding
subparagraph (A), by inserting ``, store,'' after ``treat'';
and
(7) by adding at the end the following:
``(i) Deferred Construction of Project Facilities.--
``(1) Deferred construction of project facilities.--On
mutual agreement between the Nation and the Secretary, and the
Jicarilla Apache Nation if the deferred Project facilities
benefit the Jicarilla Apache Nation, construction of selected
Project facilities may be deferred to save operation and
maintenance expenses associated with that construction.
``(2) Deferred construction fund.--
``(A) Establishment.--There is established in the
Treasury a fund, to be known as the `Navajo Nation's
Navajo-Gallup Water Supply Project Deferred
Construction Fund', to consist of--
``(i) amounts that correspond to portions
of the Project that have been deferred under
paragraph (1); and
``(ii) any interest or other gains on
amounts referred to in clause (i).
``(B) Use of the deferred construction fund.--The
Nation may use amounts in the Deferred Construction
Fund--
``(i) to construct Project facilities that
have been deferred under paragraph (1); or
``(ii) to construct alternate facilities
agreed on under subparagraph (C).
``(C) Alternate facilities consistent with the
purpose of the project.--On agreement between the
Nation and the Secretary, and the Jicarilla Apache
Nation if the deferred Project facilities benefit the
Jicarilla Apache Nation, and in compliance with all
applicable environmental and cultural resource
protection laws, facilities other than those previously
agreed to be deferred under paragraph (1) may be
constructed if those alternate facilities are
consistent with the purposes of the Project described
in section 10601.
``(3) Amounts to be deposited.--Funds allocated from the
amounts made available under section 10609(a)(1) to build
facilities referred to in paragraph (1) shall be deposited into
the Deferred Construction Fund.
``(4) Adjustments.--On deposit of amounts into the Deferred
Construction Fund under paragraph (3), the adjustments to
authorized appropriations under section 10609(a)(2) shall no
longer apply to those amounts.
``(5) Deadline to construct project facilities.--On deposit
of all amounts into the Deferred Construction Fund for
construction of Project facilities agreed on under paragraph
(1), the Secretary shall be deemed to have met the obligation
under section 10701(e)(1)(A)(ix).
``(6) Future construction of project facilities.--On
agreement between the Nation and the Secretary, and the
Jicarilla Apache Nation if the deferred Project facilities
benefit the Jicarilla Apache Nation, the Nation shall use
amounts deposited into the Deferred Construction Fund to
construct--
``(A) Project facilities deferred under paragraph
(1); or
``(B) alternate Project facilities described in
paragraph (2)(C).''.
(b) Delivery and Use of Navajo-Gallup Water Supply Project Water.--
Section 10603(a)(3)(B) of the Northwestern New Mexico Rural Water
Projects Act (Public Law 111-11; 123 Stat. 1383) is amended--
(1) in clause (i), by inserting ``or, if generated on City-
owned facilities, by the City'' after ``the Nation''; and
(2) in clause (ii), by inserting ``, except that the City
shall retain all revenue from the sale of hydroelectric power
that is generated on City-owned facilities'' after
``hydroelectric power''.
(c) Project Contracts.--Section 10604 of the Northwestern New
Mexico Rural Water Projects Act (Public Law 111-11; 123 Stat. 1388) is
amended--
(1) in subsection (b)(3)--
(A) in subparagraph (A), by striking ``subparagraph
(B)'' and inserting ``subparagraphs (B) and (C)'';
(B) in subparagraph (B)--
(i) in the subparagraph heading, by
striking ``Minimum percentage'' and inserting
``Maximum percentage'';
(ii) by striking ``at least 25 percent''
and inserting ``not more than 25 percent''; and
(iii) by striking ``, but shall in no event
exceed 35 percent''; and
(C) by adding at the end the following:
``(C) Maximum repayment obligation.--The repayment
obligation of the City referred to in subparagraphs (A)
and (B) shall not exceed $76,000,000.'';
(2) in subsection (c)(1)(B), by inserting ``subsection (f)
and'' before ``section 10603(g)'';
(3) in subsection (d)(1), by striking ``Draft'' and
inserting ``Final Environmental'';
(4) in subsection (e), by striking ``Draft'' and inserting
``Final Environmental''; and
(5) in subsection (f)--
(A) by redesignating paragraphs (1) through (5) as
subparagraphs (A) through (E), respectively, and
indenting appropriately;
(B) by inserting before subparagraph (A) (as so
designated) the following:
``(1) Navajo nation.--'';
(C) in paragraph (1) (as so designated)--
(i) in subparagraph (A) (as so
redesignated), by striking ``may waive'' and
all that follows through the period at the end
and inserting ``shall waive, for a period of 15
years, the operation, maintenance, and
replacement costs allocable to the Nation.'';
(ii) in subparagraph (B) (as so
redesignated)--
(I) by striking ``paragraph (1)''
and inserting ``subparagraph (A)
expires'';
(II) by striking ``allocated''; and
(III) by inserting ``that are
allocated to the Nation'' after
``Project'';
(iii) in subparagraph (C) (as so
redesignated), by striking ``paragraph (1)''
and inserting ``subparagraph (A)'';
(iv) by striking subparagraph (D) (as so
redesignated) and inserting the following:
``(D) Antideficiency.--The Secretary shall not be
liable for any failure to carry out any obligation or
activity authorized by this subsection if adequate
appropriations are not provided expressly by an Act of
Congress to carry out the purposes of this
subsection.''; and
(v) by striking subparagraph (E) (as so
redesignated) and inserting the following:
``(E) Termination of waiver.--The waiver authorized
under subparagraph (A) shall terminate with respect to
a section of the Project on the earlier of--
``(i) the date on which that section of the
Project is transferred to the Nation under
section 10602(f); and
``(ii) the date on which the waiver granted
by the Secretary under that subparagraph has
been in place for 15 years.''; and
(D) by adding at the end the following:
``(2) Jicarilla apache nation.--
``(A) In general.--On the date on which the
Secretary declares a section of the Project to be
substantially complete and delivery of water generated
by and through that section of the Project can be made
to the Jicarilla Apache Nation, the Secretary shall
waive, for a period of 10 years, the operation,
maintenance, and replacement costs allocable to the
Jicarilla Apache Nation.
``(B) Subsequent payment by jicarilla apache
nation.--After a waiver under subparagraph (A) expires,
the Jicarilla Apache Nation shall pay all operation,
maintenance, and replacement costs of that section of
the Project that are allocated to the Jicarilla Apache
Nation.
``(C) Payment by united states.--Any operation,
maintenance, or replacement costs waived by the
Secretary under subparagraph (A) shall be paid by the
United States and shall be nonreimbursable.
``(D) Antideficiency.--The Secretary shall not be
liable for any failure to carry out any obligation or
activity authorized by this subsection if adequate
appropriations are not provided expressly by an Act of
Congress to carry out the purposes of this subsection.
``(3) City of gallup.--
``(A) In general.--On the date on which the
Secretary declares a section of the Project to be
substantially complete and delivery of water generated
by and through that section of the Project can be made
to the City, the Secretary shall waive, for a period of
10 years, the operation, maintenance, and replacement
costs allocable to the City.
``(B) Subsequent payment by city of gallup.--After
a waiver under subparagraph (A) expires, the City shall
pay all operation, maintenance, and replacement costs
of that section of the Project that are allocated to
the City.
``(C) Payment by united states.--Any operation,
maintenance, or replacement costs waived by the
Secretary under subparagraph (A) shall be paid by the
United States and shall be nonreimbursable.
``(D) Antideficiency.--The Secretary shall not be
liable for any failure to carry out any obligation or
activity authorized by this subsection if adequate
appropriations are not provided expressly by an Act of
Congress to carry out the purposes of this
subsection.''.
(d) Authorization of Conjunctive Use Wells.--Section 10606 of the
Northwestern New Mexico Rural Water Projects Act (Public Law 111-11;
123 Stat. 1392) is amended by adding at the end the following:
``(i) Wells Serving the City of Gallup Regional Water System.--
``(1) In general.--The Secretary shall enter into a
financial assistance agreement with the City to provide
funding, using amounts made available under section
10609(b)(3), for the construction or rehabilitation of wells
and related pipeline facilities to provide capacity for the
diversion and distribution by the City of not more than 1,500
acre feet of groundwater per year.
``(2) Water rights.--The water rights associated with any
wells constructed or rehabilitated under paragraph (1)--
``(A) shall not be considered to be part of the
Agreement; and
``(B) shall be considered to be already existing
water rights permitted by the New Mexico State Engineer
to the City for municipal and domestic uses.
``(3) Title to wells.--Title to the wells and related
pipeline facilities constructed or rehabilitated in accordance
with paragraph (1) shall remain with the City at all times.
``(4) Associated costs.--All operation, maintenance, and
replacement costs associated with wells and related pipeline
facilities constructed or rehabilitated in accordance with
paragraph (1) shall be the responsibility of the City.''.
(e) Authorization of Appropriations.--Section 10609 of the
Northwestern New Mexico Rural Water Projects Act (Public Law 111-11;
123 Stat. 1395) is amended--
(1) in subsection (a)--
(A) in paragraph (1), by striking ``$870,000,000
for the period of fiscal years 2009 through 2024'' and
inserting ``$1,923,200,000 for the period of fiscal
years 2009 through 2029'';
(B) by striking paragraph (2) and inserting the
following:
``(2) Adjustments.--
``(A) In general.--The amount under paragraph (1)
shall be adjusted by such amounts as may be required--
``(i) by reason of changes since October
2020 in construction cost changes in applicable
regulatory standards, as indicated by
engineering cost indices applicable to the
types of construction involved; and
``(ii) to address construction cost changes
necessary to account for unforeseen market
volatility that may not otherwise be captured
by engineering cost indices described in clause
(i), as determined by the Secretary, including
repricing applicable to the types of
construction and current industry standards
involved.
``(B) Deferred construction fund.--Amounts
deposited in the Deferred Construction Fund shall not
be adjusted pursuant to this paragraph.''; and
(C) in paragraph (4)(B), by striking ``10 years''
and inserting ``15 years'';
(2) in subsection (b)--
(A) in paragraph (1), by striking ``$30,000,000, as
adjusted under paragraph (3), for the period of fiscal
years 2009 through 2019'' and inserting ``$37,500,000,
as adjusted under paragraph (4), for the period of
fiscal years 2009 through 2032'';
(B) in paragraph (2), by striking ``2024'' and
inserting ``2032'';
(C) by redesignating paragraphs (3) through (6) as
paragraphs (4) through (7), respectively;
(D) by inserting after paragraph (2) the following:
``(3) City of gallup wells.--There is authorized to be
appropriated for the construction or rehabilitation and
operation and maintenance of conjunctive use wells for the City
$18,000,000, as adjusted under paragraph (4), for the period of
fiscal years 2021 through 2029.'';
(E) in paragraph (4) (as so redesignated)--
(i) by striking ``The amount under
paragraph (1)'' and inserting the following:
``(A) San juan wells and wells in the little
colorado and rio grande basins.--The amount under
paragraphs (1) and (2)''; and
(ii) by adding at the end the following:
``(B) City of gallup wells.--The amount under
paragraph (3) shall be adjusted by such amounts as may
be required by reason of changes since 2021 in
construction costs, as indicated by engineering cost
indices applicable to the types of construction or
rehabilitation involved.'';
(F) in paragraph (5) (as so redesignated), by
striking ``paragraphs (1) and (2)'' and inserting
``paragraphs (1), (2), and (3)''; and
(G) in paragraph (6) (as so redesignated), by
striking ``paragraphs (1) and (2)'' and inserting
``paragraphs (1), (2), and (3)''.
(f) Taxation of Construction, Operation, and Maintenance of Project
Facilities.--Part III of the Northwestern New Mexico Rural Water
Projects Act (Public Law 111-11; 123 Stat. 1379) is amended by adding
at the end the following:
``SEC. 10610. TAXATION OF CONSTRUCTION, OPERATION, AND MAINTENANCE OF
PROJECT FACILITIES.
``(a) Nation Land.--Any activity constituting the construction,
operation, or maintenance of Project facilities--
``(1) shall, if the activity takes place on land that is
held in trust by the United States for the benefit of the
Nation, be subject to taxation by the Nation; and
``(2) shall not be subject to any fee, tax, assessment,
levy, or other charge imposed by any State or political
subdivision of a State.
``(b) Other Land.--Any activity constituting the construction,
operation, or maintenance of Project facilities--
``(1) shall, if the activity takes place on land other than
the land described in subsection (a)(1), be subject to taxation
by the State in which the land is located, or by a political
subdivision of that State to the extent authorized by the laws
of that State; and
``(2) shall not be subject to any fee, tax, assessment,
levy, or other charge imposed by the Nation.''.
SEC. 4. NAVAJO NATION WATER RIGHTS.
(a) Agreement.--Section 10701(e)(1)(A) of the Northwestern New
Mexico Rural Water Projects Act (Public Law 111-11; 123 Stat. 1400) is
amended--
(1) in clause (ix), by striking ``2024'' and inserting
``2029''; and
(2) by adding at the end the following:
``(x) Deferred construction fund.--
``(I) In general.--Not later than
December 31, 2029, the United States
shall make all deposits into the
Deferred Construction Fund in
accordance with section 10602(i)(3).
``(II) Project deadline.--On
deposit of the amounts into the
Deferred Construction Fund under
subclause (I), even if certain Project
facilities have not yet been
constructed, the Secretary shall be
deemed to have met the deadline
described in clause (ix).''.
(b) Waivers and Releases.--Section 10703 of the Northwestern New
Mexico Rural Water Projects Act (Public Law 111-11; 123 Stat. 1403) is
amended--
(1) in subsection (d)(1)(A), by striking ``2025'' and
inserting ``2030''; and
(2) in subsection (e)(2), in the matter preceding
subparagraph (A), by striking ``2025'' and inserting ``2030''.
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