Statement of Michael L. Connor, Commissioner
Bureau of Reclamation
Committee on Natural Resources
Subcommittee on Water and Power
September 9, 2009
Madam Chairwoman and members of the Subcommittee, I am Michael L. Connor, Commissioner of the Bureau of Reclamation (Reclamation).I am pleased to provide the views of the Department of the Interior (Department) on H.R. 3254, the Taos Pueblo Indian Water Rights Settlement Act.This Administration supports the resolution of Indian water rights claims through negotiated settlement.Our general policy of support for negotiations is premised on a set of general principles including that the United States participate in water settlements consistent with its responsibilities as trustee to Indians; that Indian tribes receive equivalent benefits for rights which they, and the United States as trustee, may release as part of a settlement; that Indian tribes should realize value from confirmed water rights resulting from a settlement; and that settlements are to contain appropriate cost-sharing proportionate to the benefits received by all parties benefiting from the settlement.We recognize that substantial work and refinements have been made to this settlement by the parties and the
Negotiated Indian Water Rights Settlements
Settlements improve water management by providing certainty not just as to the quantification of a tribe's water rights but also as to the rights of all water users.That certainty provides opportunities for economic development for Indians and non-Indians alike.Whereas unquantified Indian water rights are often a source of tension and conflict between tribes and their neighbors, the best settlements replace this tension with mutual interdependence and trust.In addition, Indian water rights settlements are consistent with the Federal trust responsibility to Native Americans and with a policy of promoting Indian self-determination and economic self-sufficiency.For these reasons and more, for over 20 years, federally recognized Indian tribes, states, local parties, and the Federal government have acknowledged that, when possible, negotiated Indian water rights settlements are preferable to protracted litigation over Indian water rights claims.
In analyzing settlements, the Administration must consider the immediate and long-term water needs of the Indian tribes, the merits of all legal claims, the value of water, federal trust responsibilities, economic efficiency measures, and the overall promotion of good public policy.An additional critical component of our analysis is cost-sharing.
Historic Water Conflicts in the
Before discussing the proposed settlement and the Administration's concerns with it, it is important to provide background on the disputes that led to the settlement. Taos Pueblo is located in north-central
Subsequently, patents were issued to the Pueblos of New Mexico which, in effect, quitclaimed any interest the
After almost forty years of loss of land and water rights, the Supreme Court reversed its decision in Joseph and decided that the
Under the 1924 Act, if the non-Indians could persuade a special lands board that they had used and occupied
In passing the 1924 and 1933 Acts, Congress recognized the necessity of resolving the uncertainty of title to land and water and also restoring the severely eroded economic footing of the
In a final attempt to resolve title to water in the
As with many general stream adjudications in
Negotiations were not productive until a technical understanding of the hydrology of
Under the terms of the negotiated settlement, the Pueblo has a recognized right to a total of 11,927.71 acre-feet per year (AFY) of depletion, of which 7,249.05 AFY of depletion would be available for immediate use.The Pueblo has agreed to forebear from using 4,678.66 AFY in order to allow non-Indian water uses to continue without impairment.The negotiated settlement contemplates that the
H.R. 3254 also contains a waiver of potential breach of trust and water related claims that the
Provisions that the Administration Supports
Overall, the negotiated settlement represents a positive step towards the resolution of historic water disputes in an area that has limited water resources and is struggling to support the population it has attracted.It is a settlement that contains many provisions that the Administration can support.
Concern about the inadequacy of the waivers contained in a predecessor bill, Title II of H.R. 6768, was previously a significant barrier to
A central and noteworthy feature of the settlement is funding for the protection and restoration of the
Perhaps the most significant positive attribute of the negotiated settlement is that it solidifies and makes permanent many water sharing arrangements that the Pueblo and its non-Indian neighbors have struggled for years to establish, including the Pueblo's agreement to share its surface water with its non-Indian neighbors, consistent with local customs, until its water rights are reacquired from the non-Indian irrigators on a willing buyer-willing seller basis.
Provisions the Administration Seeks to Negotiate Further
Despite the positive provisions enumerated above, we believe a closer look can and should be given to the costs of the settlement and the share and timing of those costs to be borne by the
H.R. 3254 authorizes a Federal contribution of $121,000,000, to be paid over 7 years.Of this total, $88,000,000 is authorized to be deposited into two trust accounts for the
An additional $33,000,000 is authorized to fund 75% of the construction cost of various projects that have been identified as mutually beneficial to the
An unusual and problematic provision of H.R. 3254 would allow the
H.R. 3254 also sets a deadline for the Department to enter into the contracts that will be impossible for the Department to meet taking into consideration the environmental compliance and other work that must be accomplished before the contracts can be executed.If the contracts are to be awarded before the settlement is final, we recommend that the deadline for entering into the contracts be extended to 9 months after the date of enactment of this legislation.
We also recommend that the settlement legislation be amended to require Secretarial approval for all water leases and subcontracts.As currently written, section 7(e)(2) exempts leases or subcontracts of less than 7 years duration from the approval requirement. Secretarial approval is required for all existing San Juan Chama subcontracts and we believe there is no reason to depart from that practice here.With respect to leasing other types of water, the requirement of Secretarial approval has been the standard practice in Indian water rights settlements.
The Administration wants to avoid continued and unproductive litigation which, even when finally concluded, may leave parties injured by and hostile to its results, ensuring continued friction in the basin to the detriment of both the
Madam Chairwoman, this concludes my statement.I would be pleased to answer any questions the Subcommittee may have.