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 Mike Connor, Commissioner of the Bureau of Reclamation.I am pleased to provide the Department of the Interior's views on H.R. 3342, the Aamodt Litigation Settlement Act, which would provide approval for, and authorizations to carry out, a settlement of the water rights of four pueblos in
This settlement would resolve a contentious water dispute in northern
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 Indian 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
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. The Rio Pojoaque basin, immediately north of Santa Fe, New Mexico, is home to the four Pueblos of Tesuque, Nambe, Pojoaque and San Ildefonso.In total the
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 these
The settlement negotiations were difficult for many reasons, including that the basin is chronically water short. The average annual surface water yield of the watershed is approximately 12,000 acre-feet per year, but claimed irrigated acreage calls for the diversion of 16,200 acre-feet per year.Deficits have been addressed by using groundwater with the result that groundwater resources are now threatened.The negotiation goal of the parties was to control groundwater extraction in order to prevent impacts on surface water flows from excessive groundwater development.In order to allow junior state-based water right holders to continue to use water while still allowing the Pueblos the right to use and further develop their senior water rights, the non-federal parties agreed to a settlement centered on a regional water system that will utilize water imported from the San Juan basin to serve needs of the Pueblos and other water users in the Rio Pojoaque basin.In May 2006, the
Concerns Related to Cost
H.R. 3342 approves this Settlement Agreement, authorizes the planning, design, and construction of the regional water system and authorizes the appropriation of $106.4 million for that system.In addition, the bill provides the
This represents a 40% non-federal cost share which is a significant improvement over many past settlements and is moving in the right direction.The Administration considers the willingness of the settling parties to provide a significant cost share for this project to be a good indication that they are invested in and deeply supportive of this settlement.It is evident that serious consideration has been given by the settlement proponents to the design and intended function of the facilities to be constructed under this settlement.A settlement to which many interests are contributing deserves more favorable treatment by federal government than a settlement that comes at solely federal expense.
Nevertheless, the Administration is concerned about the costs of this settlement for several reasons.First, the absence of a signed cost share agreement among the parties for the construction of the regional water system creates uncertainty about the viability of the system as planned and the costs to be borne by the
Second, the Administration is concerned about the validity of the cost estimates that the settlement parties are relying on for the regional water system.The parties rely on an engineering report dated June 2007 that has not been verified by the level of study that the Bureau of Reclamation would recommend in order to assure reliability.Much of the cost information contained in the engineering report was arrived at three years ago, none of the costs have been indexed to 2007, and the total project cost estimates cannot be relied upon. Any additional costs (both for the
Third, multiple site-specific cost issues remain that cannot be resolved until final project design is completed, not the least of which is access limitations at the diversion point for the system on the
Other Federal Concerns
In addition to costs, there are other provisions and issues that need to be addressed and resolved.
The waiver provisions of this bill were significantly improved as a result of negotiations over the last year between the
In addition, the settlement poses an arrangement under which the
The Administration has long worked with local parties on these issues and has strongly advocated for a process under which substantial completion is determined by the Secretary of the Interior and, subsequently, subject to review under the Administrative Procedures Act.Our concern stems from the fact that, as introduced, the legislation provides neither certainty of process nor any clear substantive standards for how a determination that substantial completion has not been achieved would be made, or how a court would be expected to handle any subsequent review and litigation over the settlement voiding provisions contained in H.R. 3342 if these provisions are triggered. Under the provisions of H.R. 3342 as introduced, the only certainty is that any litigation ensuing from a claim to void the settlement would be protracted, expensive, and have few bounds.The
Finally, while language in section 203(f) provides generally in the event the settlement is voided that the United States is entitled to return of any unexpended federal funds and property, the Administration suggests that Congress add additional language to clarify that the United States is entitled to recoup or obtain credit for its contributions to settlement in the case that the settlement fails.
The Aamodt settlement is the product of a great deal of effort by many parties and reflects a desire by the people of the State of
The Administration wants to avoid continued and unproductive litigation which, even when finally concluded, may leave parties injured by and hostile to its results.Neither the
Madam Chairwoman, this concludes my statement.I would be pleased to answer any questions the Subcommittee may have.