S. 140

Statement of the
U.S. Department of the Interior
before the
Committee on Natural Resources
Subcommittee on Water, Power and Oceans
U.S. House of Representatives
on
S. 140, To Amend the White Mountain Apache Tribe Water Rights Quantification
Act of 2010 to clarify the use of amounts in the WMAT Settlement Fund

November 2, 2017

The Department of the Interior (Department) is pleased to provide the views of the Department on S. 140, a bill to amend the White Mountain Apache Tribe Water Rights Quantification Act of 2010 to clarify the use of amounts in the WMAT Settlement Fund.  The Department supports the policy that negotiated Indian water rights settlements are preferable to protracted and divisive litigation.  As such, the Department supports the full implementation of the White Mountain Apache Tribe (WMAT) settlement.  While the Department has no objection to allowing funds originally authorized for trust fund purposes to be used for planning, design and construction of the WMAT rural water system as called for in S. 140, the Department must still evaluate the estimated cost overruns.  We will continue to work with the Tribe and the sponsors to evaluate the design and cost estimate data to determine the needs of the final project design of the WMAT rural water system to ensure the settlement can be implemented.

Background
The White Mountain Apache Tribe Water Rights Quantification Act of 2010 (2010 Act) was one of four Indian water rights settlements enacted in the Claims Resolution Act of 2010 (PL 111-291).  This settlement, along with the settlement of claims for five Pueblos in New Mexico, the Crow Tribe of Montana, and the Taos Pueblo resolved well over a century of litigation. In turn, the door for cooperation and certainty in these communities was opened by allowing for the maintenance of permanent water supplies and enhanced economic security.  The Department continues to be fully committed to implementing these four settlements.

The WMAT settlement was authorized by Title III of the Claims Resolution Act in order to settle the water rights among the Tribe and non-federal parties, including the State of Arizona, local water and power districts, local towns, and conservation districts.  The Act permanently resolved certain damage claims, authorized two settlement funds, and authorized design and construction of the WMAT rural water system that consists of a dam and storage reservoir, pumping plant, distribution system, and water treatment facilities.

The White Mountain Apache Tribe Rural Water System Loan Authorization Act (PL 110-390) directed the Secretary of the Interior to provide a loan to the WMAT to carry out planning, engineering and design of the WMAT rural water system.  The WMAT settlement is currently utilizing $11.8 million in appropriated funds available from PL 110-390 in order to implement the settlement.  On September 30, 2011, the Bureau of Reclamation (Reclamation) awarded a PL 93-638 contract to the Tribe in the amount of $11.8 million (indexed) to allow the Tribe to move forward with the initial planning, engineering, and design of the WMAT rural water system, as well as to work on the required environmental compliance.  Through this contract, the Tribe has awarded three major engineering contracts for designs of each project component, including Miner Flat Dam, a treatment plant, and the distribution system.  Thirty percent designs for the treatment plant and distribution system, including pumping plants are complete.

Currently, Miner Flat Dam is the only project component that is not yet designed to a thirty percent design level, the level of design usually necessary for environmental compliance activities to move forward.  The Tribe has identified significant concerns about seepage at the proposed Miner Flat Dam and reservoir site and is continuing to analyze these issues.  Measures to mitigate seepage are anticipated to increase costs above the originally authorized funds available for project construction and are the impetus for S. 140.  The extent of the increased costs is unknown at this time, but is anticipated to exceed the $24 million that was appropriated into the WMAT Cost Overrun Subaccount established by Section 312(e)(2)(A) of the 2010 Act.

S. 140
S. 140 would amend the 2010 Act to authorize funding from the WMAT Settlement Fund for the completion of the WMAT rural water system, including carrying out activities relating to the operation, maintenance, or replacement of the WMAT rural water system.  The core of the settlement is the WMAT rural water system.  The 2010 Act authorized approximately $126 million in mandatory spending for the Secretary of the Interior to carry out its planning, engineering, design, environmental compliance, and construction. The mandatory funding for construction is separate and apart from the $78.5 million WMAT Settlement Fund at issue in S. 140.

The 2010 Act includes two provisions authorizing discretionary appropriations associated with the WMAT Settlement.  Section 312(b) of the 2010 Act authorizes $78.5 million in discretionary appropriations for the WMAT Settlement Fund.  If appropriated, this fund would be available for the purposes of fish production, including hatcheries; rehabilitation of recreational lakes and existing irrigation systems; water-related economic development project; and protection, restoration, and economic development of forest and watershed health. S. 140 would broaden these purposes to include cost-overruns associated with the construction of the WMAT rural water system.

The Tribe and Reclamation are still working to determine the extent of the anticipated increased costs associated with the aforementioned seepage mitigation measures.  The flexibility provided by S. 140 could accommodate increased seepage mitigation costs associated with actual construction of the WMAT rural water system.

The Department appreciates the work done by the Tribe and the Arizona delegation over the years to revise and improve the legislation.  Reclamation has been provided with preliminary design and cost estimate data by the Tribe to aid in Reclamation’s evaluation of the design of the Miner Flat Dam.  Under the 2010 Act, Reclamation is required, in consultation with the Tribe, to make changes to the design to ensure that the final design meets Reclamation standards; is cost effective; and may be constructed within the mandatory appropriations provided in the Act.  While Reclamation continues to evaluate the Tribe’s current design and cost estimate data, the Tribe’s provision of preliminary design and cost estimate data is an important step towards Reclamation ultimately making a determination pertaining to the feasibility of the design or cost of the system, or any potential cost overruns.  Reclamation looks forward to continuing to work with the Tribe to determine the potential cost-overrun associated with concerns over Miner Flat Dam.  However, we are hopeful that this hearing will advance the implementation of this important settlement, and we look forward to working with the Tribe to ensure Reclamation receives the relevant information to advance the WMAT rural water system and assure that it will be constructed within the cost ceiling determined by Congress.

The Department recognizes and appreciates the need from time-to-time to revisit certain statutory provisions in Indian water rights settlement in order to ensure implementation.  The Department continues to support the implementation of Indian water rights settlements and looks forward to continuing our dialogue with the beneficiaries of the WMAT settlement in order to ensure successful implementation.