DELIVERY AND USE OF NAVAJO-GALLUP WATER SUPPLY PROJECT WATER

SEC. 10603. DELIVERY AND USE OF NAVAJO-GALLUP WATER SUPPLY PROJECT WATER (a) Use of Project Water.— (1) In general.—In accordance with this subtitle and other applicable law, water supply from the Project shall be used for municipal, industrial, commercial, domestic, and stock watering purposes. (2) Use on certain land.— (A) In general.—Subject to subparagraph (B), the Nation may use Project water allocations on— (i) land held by the United States in trust for the Nation and members of the Nation; and (ii) land held in fee by the Nation. (B) Transfer.—The Nation may transfer the purposes and places of use of the allocated water in accordance with the Agreement and applicable law. (3) Hydroelectric power.— (A) In general.—Hydroelectric power may be generated as an incident to the delivery of Project water for authorized purposes under paragraph (1). (B) Administration.—Notwithstanding any other provision of law— (i) any hydroelectric power generated under this paragraph shall be used or marketed by the Nation; (ii) the Nation shall retain any revenues from the sale of the hydroelectric power; and (iii) the United States shall have no trust obligation or other obligation to monitor, administer, or account for the revenues received by the Nation, or the expenditure of the revenues. (4) Storage.— (A) In general.—Subject to subparagraph (B), any water contracted for delivery under paragraph (1) that is not needed for current water demands or uses may be delivered by the Project for placement in underground storage in the State of New Mexico for future recovery and use. (B) State approval.—Delivery of water under subparagraph (A) is subject to— (i) approval by the State of New Mexico under applicable provisions of State law relating to aquifer storage and recovery; and (ii) the provisions of the Agreement and this subtitle. (b) Project Water and Capacity Allocations.— (1) Diversion.—Subject to availability and consistent with Federal and State law, the Project may divert from the Navajo Reservoir and the San Juan River a quantity of water to be allocated and used consistent with the Agreement and this subtitle, that does not exceed in any 1 year, the lesser of— (A) 37,760 acre-feet of water; or (B) the quantity of water necessary to supply a depletion from the San Juan River of 35,890 acre-feet. (2) Project delivery capacity allocations.— (A) In general.—The capacity of the Project shall be allocated to the Project Participants in accordance with subparagraphs (B) through (E), other provisions of this subtitle, and other applicable law. (B) Delivery capacity allocation to the city.—The Project may deliver at the point of diversion from the San Juan River not more than 7,500 acre-feet of water in any 1 year for which the City has secured rights for the use of the City. (C) Delivery capacity allocation to navajo nation communities in new mexico.—For use by the Nation in the State of New Mexico, the Project may deliver water out of the water rights held by the Secretary for the Nation and confirmed under this subtitle, at the points of diversion from the San Juan River or at Navajo Reservoir in any 1 year, the lesser of— (i) 22,650 acre-feet of water; or (ii) the quantity of water necessary to supply a depletion from the San Juan River of 20,780 acre-feet of water. (D) Delivery capacity allocation to navajo nation communities in arizona.—Subject to subsection (c), the Project may deliver at the point of diversion from the San Juan River not more than 6,411 acre-feet of water in any 1 year for use by the Nation in the State of Arizona. (E) Delivery capacity allocation to jicarilla apache nation.—The Project may deliver at Navajo Reservoir not more than 1,200 acre-feet of water in any 1 year of the water rights of the Jicarilla Apache Nation, held by the Secretary and confirmed by the Jicarilla Apache Tribe Water Rights Settlement Act (Public Law 102-441; 106 Stat. 2237), for use by the Jicarilla Apache Nation in the southern portion of the Jicarilla Apache Nation Reservation in the State of New Mexico. (3) Use in excess of delivery capacity allocation quantity.—Notwithstanding each delivery capacity allocation quantity limit described in subparagraphs (B), (C), and (E) of paragraph (2), the Secretary may authorize a Project Participant to exceed the delivery capacity allocation quantity limit of that Project Participant if— (A) delivery capacity is available without impairing any water delivery to any other Project Participant; and (B) the Project Participant benefitting from the increased allocation of delivery capacity— (i) has the right under applicable law to use the additional water; (ii) agrees to pay the operation, maintenance, and replacement costs relating to the additional use of any Project facility; and (iii) agrees, if the Project title is held by the Secretary, to pay a fee established by the Secretary to assist in recovering capital costs relating to that additional use. (c) Conditions for Use in Arizona.— (1) Requirements.—Project water shall not be delivered for use by any community of the Nation located in the State of Arizona under subsection (b)(2)(D) until— (A) the Nation and the State of Arizona have entered into a water rights settlement agreement approved by an Act of Congress that settles and waives the Nation’s claims to water in the Lower Basin and the Little Colorado River Basin in the State of Arizona, including those of the United States on the Nation’s behalf; and (B) the Secretary and the Navajo Nation have entered into a Navajo Reservoir water supply delivery contract for the physical delivery and diversion of water via the Project from the San Juan River system to supply uses in the State of Arizona. (2) Accounting of uses in arizona.— (A) In general.—Pursuant to paragraph (1) and notwithstanding any other provision of law, water may be diverted by the Project from the San Juan River in the State of New Mexico in accordance with an appropriate permit issued under New Mexico law for use in the State of Arizona within the Navajo Reservation in the Lower Basin; provided that any depletion of water that results from the diversion of water by the Project from the San Juan River in the State of New Mexico for uses within the State of Arizona (including depletion incidental to the diversion, impounding, or conveyance of water in the State of New Mexico for uses in the State of Arizona) shall be administered and accounted for as either— (i) a part of, and charged against, the available consumptive use apportionment made to the State of Arizona by Article III(a) of the Compact and to the Upper Basin by Article III(a) of the Colorado River Compact, in which case any water so diverted by the Project into the Lower Basin for use within the State of Arizona shall not be credited as water reaching Lee Ferry pursuant to Articles III(c) and III(d) of the Colorado River Compact; or (ii) subject to subparagraph (B), a part of, and charged against, the consumptive use apportionment made to the Lower Basin by Article III(a) of the Colorado River Compact, in which case it shall— (I) be a part of the Colorado River water that is apportioned to the State of Arizona in Article II(B) of the Consolidated Decree of the Supreme Court of the United States in Arizona v. California (547 U.S. 150) (as may be amended or supplemented); (II) be credited as water reaching Lee Ferry pursuant to Articles III(c) and III(d) of the Colorado River Compact; and (III) be accounted as the water identified in section 104(a)(1)(B)(ii) of the Arizona Water Settlements Act, (118 Stat. 3478). (B) Limitation.—Notwithstanding subparagraph (A)(ii), no water diverted by the Project shall be accounted for pursuant to subparagraph (A)(ii) until such time that— (i) the Secretary has developed and, as necessary and appropriate, modified, in consultation with the Upper Colorado River Commission and the Governors’ Representatives on Colorado River Operations from each State signatory to the Colorado River Compact, all operational and decisional criteria, policies, contracts, guidelines or other documents that control the operations of the Colorado River System reservoirs and diversion works, so as to adjust, account for, and offset the diversion of water apportioned to the State of Arizona, pursuant to the Boulder Canyon Project Act (43 U.S.C. 617 et seq.), from a point of diversion on the San Juan River in New Mexico; provided that all such modifications shall be consistent with the provisions of this Section, and the modifications made pursuant to this clause shall be applicable only for the duration of any such diversions pursuant to section 10603(c)(2)(A)(ii); and (ii) Article II(B) of the Decree of the Supreme Court of the United States in Arizona v. California (547 U.S. 150 as may be amended or supplemented) is administered so that diversions from the main stream for the Central Arizona Project, as served under existing contracts with the United States by diversion works heretofore constructed, shall be limited and reduced to offset any diversions made pursuant to section 10603(c)(2)(A)(ii) of this Act. This clause shall not affect, in any manner, the amount of water apportioned to Arizona pursuant to the Boulder Canyon Project Act (43 U.S.C. 617 et seq.), or amend any provisions of said decree or the Colorado River Basin Project Act (43 U.S.C. 1501 et. seq.). (3) Upper basin protections.— (A) Consultations.—Henceforth, in any consultation pursuant to 16 U.S.C. 1536(a) with respect to water development in the San Juan River Basin, the Secretary shall confer with the States of Colorado and New Mexico, consistent with the provisions of section 5 of the “Principles for Conducting Endangered Species Act Section 7 Consultations on Water Development and Water Management Activities Affecting Endangered Fish Species in the San Juan River Basin” as adopted by the Coordination Committee, San Juan River Basin Recovery Implementation Program, on June 19, 2001, and as may be amended or modified. (B) Preservation of existing rights.—Rights to the consumptive use of water available to the Upper Basin from the Colorado River System under the Colorado River Compact and the Compact shall not be reduced or prejudiced by any use of water pursuant to subsection 10603(c). Nothing in this Act shall be construed so as to impair, conflict with, or otherwise change the duties and powers of the Upper Colorado River Commission. (d) Forbearance.— (1) In general.—Subject to paragraphs (2) and (3), during any year in which a shortage to the normal diversion requirement for any use relating to the Project within the State of Arizona occurs (as determined under section 11 of Public Law 87-483 (76 Stat. 99)), the Nation may temporarily forbear the delivery of the water supply of the Navajo Reservoir for uses in the State of New Mexico under the apportionments of water to the Navajo Indian Irrigation Project and the normal diversion requirements of the Project to allow an equivalent quantity of water to be delivered from the Navajo Reservoir water supply for municipal and domestic uses of the Nation in the State of Arizona under the Project. (2) Limitation of forbearance.—The Nation may forebear the delivery of water under paragraph (1) of a quantity not exceeding the quantity of the shortage to the normal diversion requirement for any use relating to the Project within the State of Arizona. (3) Effect.—The forbearance of the delivery of water under paragraph (1) shall be subject to the requirements in subsection (c). (e) Effect.—Nothing in this subtitle— (1) authorizes the marketing, leasing, or transfer of the water supplies made available to the Nation under the Contract to non-Navajo water users in States other than the State of New Mexico; or (2) authorizes the forbearance of water uses in the State of New Mexico to allow uses of water in other States other than as authorized under subsection (d). (f) Colorado River Compacts.—Notwithstanding any other provision of law— (1) water may be diverted by the Project from the San Juan River in the State of New Mexico for use within New Mexico in the lower basin, as that term is used in the Colorado River Compact; (2) any water diverted under paragraph (1) shall be a part of, and charged against, the consumptive use apportionment made to the State of New Mexico by Article III(a) of the Compact and to the upper basin by Article III(a) of the Colorado River Compact; and (3) any water so diverted by the Project into the lower basin within the State of New Mexico shall not be credited as water reaching Lee Ferry pursuant to Articles III(c) and III(d) of the Colorado River Compact. (g) Payment of Operation, Maintenance, and Replacement Costs.— (1) In general.—The Secretary is authorized to pay the operation, maintenance, and replacement costs of the Project allocable to the Project Participants under section 10604 until the date on which the Secretary declares any 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 a Project participant. (2) Project participant payments.—Beginning on the date described in paragraph (1), each Project Participant shall pay all allocated operation, maintenance, and replacement costs for that substantially completed section of the Project, in accordance with contracts entered into pursuant to section 10604, except as provided in section 10604(f). (h) No Precedent.—Nothing in this Act shall be construed as authorizing or establishing a precedent for any type of transfer of Colorado River System water between the Upper Basin and Lower Basin. Nor shall anything in this Act be construed as expanding the Secretary’s authority in the Upper Basin. (i) Unique Situation.—Diversions by the Project consistent with this section address critical tribal and non-Indian water supply needs under unique circumstances, which include, among other things— (1) the intent to benefit an American Indian tribe; (2) the Navajo Nation’s location in both the Upper and Lower Basin; (3) the intent to address critical Indian water needs in the State of Arizona and Indian and non-Indian water needs in the State of New Mexico, (4) the location of the Navajo Nation’s capital city of Window Rock in the State of Arizona in close proximity to the border of the State of New Mexico and the pipeline route for the Project; (5) the lack of other reasonable options available for developing a firm, sustainable supply of municipal water for the Navajo Nation at Window Rock in the State of Arizona; and (6) the limited volume of water to be diverted by the Project to supply municipal uses in the Window Rock area in the State of Arizona. (j) Consensus.—Congress notes the consensus of the Governors’ Representatives on Colorado River Operations of the States that are signatory to the Colorado River Compact regarding the diversions authorized for the Project under this section. (k) Efficient Use.—The diversions and uses authorized for the Project under this Section represent unique and efficient uses of Colorado River apportionments in a manner that Congress has determined would be consistent with the obligations of the United States to the Navajo Nation.