[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 222 Enrolled Bill (ENR)]
S.222
One Hundred Eighth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Tuesday,
the seventh day of January, two thousand and three
An Act
To approve the settlement of the water rights claims of the Zuni Indian
Tribe in Apache County, Arizona, 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 ``Zuni Indian Tribe Water Rights
Settlement Act of 2003''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress makes the following findings:
(1) It is the policy of the United States, in keeping with its
trust responsibility to Indian tribes, to promote Indian self-
determination, religious freedom, political and cultural integrity,
and economic self-sufficiency, and to settle, wherever possible,
the water rights claims of Indian tribes without lengthy and costly
litigation.
(2) Quantification of rights to water and development of
facilities needed to use tribal water supplies effectively is
essential to the development of viable Indian reservation
communities, particularly in arid western States.
(3) On August 28, 1984, and by actions subsequent thereto, the
United States established a reservation for the Zuni Indian Tribe
in Apache County, Arizona upstream from the confluence of the
Little Colorado and Zuni Rivers for long-standing religious and
sustenance activities.
(4) The water rights of all water users in the Little Colorado
River basin in Arizona have been in litigation since 1979, in the
Superior Court of the State of Arizona in and for the County of
Apache in Civil No. 6417, In re The General Adjudication of All
Rights to Use Water in the Little Colorado River System and Source.
(5) Recognizing that the final resolution of the Zuni Indian
Tribe's water claims through litigation will take many years and
entail great expense to all parties, continue to limit the Tribe's
access to water with economic, social, and cultural consequences to
the Tribe, prolong uncertainty as to the availability of water
supplies, and seriously impair the long-term economic planning and
development of all parties, the Tribe and neighboring non-Indians
have sought to settle their disputes to water and reduce the
burdens of litigation.
(6) After more than 4 years of negotiations, which included
participation by representatives of the United States, the Zuni
Indian Tribe, the State of Arizona, and neighboring non-Indian
communities in the Little Colorado River basin, the parties have
entered into a Settlement Agreement to resolve all of the Zuni
Indian Tribe's water rights claims and to assist the Tribe in
acquiring surface water rights, to provide for the Tribe's use of
groundwater, and to provide for the wetland restoration of the
Tribe's lands in Arizona.
(7) To facilitate the wetland restoration project contemplated
under the Settlement Agreement, the Zuni Indian Tribe acquired
certain lands along the Little Colorado River near or adjacent to
its Reservation that are important for the success of the project
and will likely acquire a small amount of similarly situated
additional lands. The parties have agreed not to object to the
United States taking title to certain of these lands into trust
status; other lands shall remain in tribal fee status. The parties
have worked extensively to resolve various governmental concerns
regarding use of and control over those lands, and to provide a
successful model for these types of situations, the State, local,
and tribal governments intend to enter into an Intergovernmental
Agreement that addresses the parties' governmental concerns.
(8) Pursuant to the Settlement Agreement, the neighboring non-
Indian entities will assist in the Tribe's acquisition of surface
water rights and development of groundwater, store surface water
supplies for the Zuni Indian Tribe, and make substantial additional
contributions to carry out the Settlement Agreement's provisions.
(9) To advance the goals of Federal Indian policy and
consistent with the trust responsibility of the United States to
the Tribe, it is appropriate that the United States participate in
the implementation of the Settlement Agreement and contribute funds
for the rehabilitation of religious riparian areas and other
purposes to enable the Tribe to use its water entitlement in
developing its Reservation.
(b) Purposes.--The purposes of this Act are--
(1) to approve, ratify, and confirm the Settlement Agreement
entered into by the Tribe and neighboring non-Indians;
(2) to authorize and direct the Secretary of the Interior to
execute and perform the Settlement Agreement and related waivers;
(3) to authorize and direct the United States to take legal
title and hold such title to certain lands in trust for the benefit
of the Zuni Indian Tribe; and
(4) to authorize the actions, agreements, and appropriations as
provided for in the Settlement Agreement and this Act.
SEC. 3. DEFINITIONS.
In this Act:
(1) Eastern lcr basin.--The term ``Eastern LCR basin'' means
the portion of the Little Colorado River basin in Arizona upstream
of the confluence of Silver Creek and the Little Colorado River, as
identified on Exhibit 2.10 of the Settlement Agreement.
(2) Fund.--The term ``Fund'' means the Zuni Indian Tribe Water
Rights Development Fund established by section 6(a).
(3) Intergovernmental agreement.--The term ``Intergovernmental
Agreement'' means the intergovernmental agreement between the Zuni
Indian Tribe, Apache County, Arizona and the State of Arizona
described in article 6 of the Settlement Agreement.
(4) Pumping protection agreement.--The term ``Pumping
Protection Agreement'' means an agreement, described in article 5
of the Settlement Agreement, between the Zuni Tribe, the United
States on behalf of the Tribe, and a local landowner under which
the landowner agrees to limit pumping of groundwater on his lands
in exchange for a waiver of certain claims by the Zuni Tribe and
the United States on behalf of the Tribe.
(5) Reservation; zuni heaven reservation.--The term
``Reservation'' or ``Zuni Heaven Reservation'', also referred to as
``Kolhu:wala:wa'', means the following property in Apache County,
Arizona: Sections 26, 27, 28, 33, 34, and 35, Township 15 North,
Range 26 East, Gila and Salt River Base and Meridian; and Sections
2, 3, 4, 9, 10, 11, 13, 14, 15, 16, 23, 26, and 27, Township 14
North, Range 26 East, Gila and Salt River Base and Meridian.
(6) Secretary.--The term ``Secretary'' means the Secretary of
the Interior.
(7) Settlement agreement.--The term ``Settlement Agreement''
means that agreement dated June 7, 2002, together with all exhibits
thereto. The parties to the Settlement Agreement include the Zuni
Indian Tribe and its members, the United States on behalf of the
Tribe and its members, the State of Arizona, the Arizona Game and
Fish Commission, the Arizona State Land Department, the Arizona
State Parks Board, the St. Johns Irrigation and Ditch Co., the
Lyman Water Co., the Round Valley Water Users' Association, the
Salt River Project Agricultural Improvement and Power District, the
Tucson Electric Power Company, the City of St. Johns, the Town of
Eagar, and the Town of Springerville.
(8) SRP.--The term ``SRP'' means the Salt River Project
Agricultural Improvement and Power District, a political
subdivision of the State of Arizona.
(9) TEP.--The term ``TEP'' means Tucson Electric Power Company.
(10) Tribe, zuni tribe, or zuni indian tribe.--The terms
``Tribe'', ``Zuni Tribe'', or ``Zuni Indian Tribe'' means the body
politic and federally recognized Indian nation, and its members.
(11) Zuni lands.--The term ``Zuni Lands'' means all the
following lands, in the State of Arizona, that, on the effective
date described in section 9(a), are--
(A) within the Zuni Heaven Reservation;
(B) held in trust by the United States for the benefit of
the Tribe or its members; or
(C) held in fee within the Little Colorado River basin by
or for the Tribe.
SEC. 4. AUTHORIZATION, RATIFICATIONS, AND CONFIRMATIONS.
(a) Settlement Agreement.--To the extent the Settlement Agreement
does not conflict with the provisions of this Act, such Settlement
Agreement is hereby approved, ratified, confirmed, and declared to be
valid. The Secretary is authorized and directed to execute the
Settlement Agreement and any amendments approved by the parties
necessary to make the Settlement Agreement consistent with this Act.
The Secretary is further authorized to perform any actions required by
the Settlement Agreement and any amendments to the Settlement Agreement
that may be mutually agreed upon by the parties to the Settlement
Agreement.
(b) Authorization of Appropriations.--There is authorized to be
appropriated to the Zuni Indian Tribe Water Rights Development Fund
established in section 6(a), $19,250,000, to be allocated by the
Secretary as follows:
(1) $3,500,000 for fiscal year 2004, to be used for the
acquisition of water rights and associated lands, and other
activities carried out, by the Zuni Tribe to facilitate the
enforceability of the Settlement Agreement, including the
acquisition of at least 2,350 acre-feet per year of water rights
before the deadline described in section 9(b).
(2) $15,750,000, of which $5,250,000 shall be made available
for each of fiscal years 2004, 2005, and 2006, to take actions
necessary to restore, rehabilitate, and maintain the Zuni Heaven
Reservation, including the Sacred Lake, wetlands, and riparian
areas as provided for in the Settlement Agreement and under this
Act.
(c) Other Agreements.--Except as provided in section 9, the
following 3 separate agreements, together with all amendments thereto,
are approved, ratified, confirmed, and declared to be valid:
(1) The agreement between SRP, the Zuni Tribe, and the United
States on behalf of the Tribe, dated June 7, 2002.
(2) The agreement between TEP, the Zuni Tribe, and the United
States on behalf of the Tribe, dated June 7, 2002.
(3) The agreement between the Arizona State Land Department,
the Zuni Tribe, and the United States on behalf of the Tribe, dated
June 7, 2002.
SEC. 5. TRUST LANDS.
(a) New Trust Lands.--Upon satisfaction of the conditions in
paragraph 6.2 of the Settlement Agreement, and after the requirements
of section 9(a) have been met, the Secretary shall take the legal title
of the following lands into trust for the benefit of the Zuni Tribe:
(1) In T. 14 N., R. 27 E., Gila and Salt River Base and
Meridian:
(A) Section 13: SW 1/4, S 1/2 NE 1/4 SE 1/4, W
1/2 SE 1/4, SE 1/4 SE 1/4;
(B) Section 23: N 1/2, N 1/2 SW 1/4, N 1/2 SE
1/4, SE 1/4 SE 1/4, N 1/2 SW 1/4 SE 1/4, SE 1/4 SW
1/4 SE 1/4;
(C) Section 24: NW 1/4, SW 1/4, S 1/2 NE 1/4, N 1/2 SE 1/4;
and
(D) Section 25: N 1/2 NE 1/4, SE 1/4 NE 1/4, NE 1/4 SE 1/4.
(2) In T. 14 N., R. 28 E., Gila and Salt River Base and
Meridian:
(A) Section 19: W 1/2 E 1/2 NW 1/4, W 1/2 NW
1/4, W 1/2 NE 1/4 SW 1/4, NW 1/4 SW 1/4, S 1/2 SW 1/4;
(B) Section 29: SW 1/4 SW 1/4 NW 1/4, NW 1/4 NW 1/4 SW 1/4,
S 1/2 N 1/2 SW 1/4, S 1/2 SW 1/4, S
1/2 NW 1/4 SE 1/4, SW 1/4 SE 1/4;
(C) Section 30: W 1/2, SE 1/4; and
(D) Section 31: N 1/2 NE 1/4, N 1/2 S 1/2 NE
1/4, S 1/2 SE 1/4 NE 1/4, NW 1/4, E 1/2 SW 1/4, N
1/2 NW 1/4 SW 1/4, SE 1/4 NW 1/4 SW 1/4, E 1/2 SW 1/4 SW 1/4,
SW 1/4 SW 1/4 SW 1/4.
(b) Future Trust Lands.--Upon satisfaction of the conditions in
paragraph 6.2 of the Settlement Agreement, after the requirements of
section 9(a) have been met, and upon acquisition by the Zuni Tribe, the
Secretary shall take the legal title of the following lands into trust
for the benefit of the Zuni Tribe:
(1) In T. 14 N., R. 26E., Gila and Salt River Base and
Meridian: Section 25: N 1/2 NE 1/4, N 1/2 S 1/2 NE 1/4, NW 1/4, N
1/2 NE 1/4 SW 1/4, NE 1/4 NW 1/4 SW 1/4.
(2) In T. 14 N., R. 27 E., Gila and Salt River Base and
Meridian:
(A) Section 14: SE 1/4 SW 1/4, SE 1/4;
(B) Section 16: S 1/2 SW 1/4 SE 1/4;
(C) Section 19: S 1/2 SE 1/4 SE 1/4;
(D) Section 20: S 1/2 SW 1/4 SW 1/4, E 1/2 SE
1/4 SE 1/4;
(E) Section 21: N 1/2 NE 1/4, E 1/2 NE 1/4 NW
1/4, SE 1/4 NW 1/4, W 1/2 SW 1/4 NE 1/4, N 1/2 NE 1/4 SW 1/4,
SW 1/4 NE 1/4 SW 1/4, E 1/2 NW 1/4 SW 1/4, SW 1/4 NW 1/4 SW 1/
4, W 1/2 SW 1/4 SW 1/4;
(F) Section 22: SW 1/4 NE 1/4 NE 1/4, NW 1/4 NE 1/4, S 1/2
NE 1/4, N 1/2 NW 1/4, SE 1/4 NW 1/4, N
1/2 SW 1/4 NW 1/4, SE 1/4 SW 1/4 NW 1/4, N 1/2 N 1/2 SE 1/4, N
1/2 NE 1/4 SW 1/4;
(G) Section 24: N 1/2 NE 1/4, S 1/2 SE 1/4;
(H) Section 29: N 1/2 N 1/2;
(I) Section 30: N 1/2 N 1/2, N 1/2 S 1/2 NW 1/4, N 1/2 SW
1/4 NE 1/4; and
(J) Section 36: SE 1/4 SE 1/4 NE 1/4, NE 1/4 NE 1/4 SE 1/4.
(3) In T. 14 N., R. 28 E., Gila and Salt River Base and
Meridian:
(A) Section 18: S 1/2 NE 1/4, NE 1/4 SW 1/4, NE 1/4 NW 1/4
SW 1/4, S 1/2 NW 1/4 SW 1/4, S 1/2 SW 1/4, N 1/2 SE 1/4, N 1/2
SW 1/4 SE 1/4, SE 1/4 SE
1/4;
(B) Section 30: S 1/2 NE 1/4, W 1/2 NW 1/4 NE
1/4; and
(C) Section 32: N 1/2 NW 1/4 NE 1/4, SW 1/4 NE 1/4, S 1/2
SE 1/4 NE 1/4, NW 1/4, SW 1/4, N 1/2 SE 1/4, SW 1/4 SE 1/4, N
1/2 SE 1/4 SE 1/4, SW 1/4 SE 1/4 SE 1/4.
(c) New Reservation Lands.--Upon satisfaction of the conditions in
paragraph 6.2 of the Settlement Agreement, after the requirements of
section 9(a) have been met, and upon acquisition by the Zuni Tribe, the
Secretary shall take the legal title of the following lands in Arizona
into trust for the benefit of the Zuni Tribe and make such lands part
of the Zuni Indian Tribe Reservation in Arizona: Section 34, T. 14 N.,
R. 26 E., Gila and Salt River Base and Meridian.
(d) Limitation on Secretarial Discretion.--The Secretary shall have
no discretion regarding the acquisitions described in subsections (a),
(b), and (c).
(e) Lands Remaining in Fee Status.--The Zuni Tribe may seek to have
the legal title to additional lands in Arizona, other than the lands
described in subsection (a), (b), or (c), taken into trust by the
United States for the benefit of the Zuni Indian Tribe pursuant only to
an Act of Congress enacted after the date of enactment of this Act
specifically authorizing the transfer for the benefit of the Zuni
Tribe.
(f) Final Agency Action.--Any written certification by the
Secretary under subparagraph 6.2.B of the Settlement Agreement
constitutes final agency action under the Administrative Procedure Act
and is reviewable as provided for under chapter 7 of title 5, United
States Code.
(g) No Federal Water Rights.--Lands taken into trust pursuant to
subsection (a), (b), or (c) shall not have Federal reserved rights to
surface water or groundwater.
(h) State Water Rights.--The water rights and uses for the lands
taken into trust pursuant to subsection (a) or (c) must be determined
under subparagraph 4.1.A and article 5 of the Settlement Agreement.
With respect to the lands taken into trust pursuant to subsection (b),
the Zuni Tribe retains any rights or claims to water associated with
these lands under State law, subject to the terms of the Settlement
Agreement.
(i) Forfeiture and Abandonment.--Water rights that are appurtenant
to lands taken into trust pursuant to subsection (a), (b), or (c) shall
not be subject to forfeiture and abandonment.
(j) Ad Valorem Taxes.--With respect to lands that are taken into
trust pursuant to subsection (a) or (b), the Zuni Tribe shall make
payments in lieu of all current and future State, county, and local ad
valorem property taxes that would otherwise be applicable to those
lands if they were not in trust.
(k) Authority of Tribe.--For purposes of complying with this
section and article 6 of the Settlement Agreement, the Tribe is
authorized to enter into--
(1) the Intergovernmental Agreement between the Zuni Tribe,
Apache County, Arizona, and the State of Arizona; and
(2) any intergovernmental agreement required to be entered into
by the Tribe under the terms of the Intergovernmental Agreement.
(l) Federal Acknowledgement of Intergovernmental Agreements.--
(1) In general.--The Secretary shall acknowledge the terms of
any intergovernmental agreement entered into by the Tribe under
this section.
(2) No abrogation.--The Secretary shall not seek to abrogate,
in any administrative or judicial action, the terms of any
intergovernmental agreement that are consistent with subparagraph
6.2.A of the Settlement Agreement and this Act.
(3) Removal.--
(A) In general.--Except as provided in subparagraph (B), if
a judicial action is commenced during a dispute over any
intergovernmental agreement entered into under this section,
and the United States is allowed to intervene in such action,
the United States shall not remove such action to the Federal
courts.
(B) Exception.--The United States may seek removal if--
(i) the action concerns the Secretary's decision
regarding the issuance of rights-of-way under section 8(c);
(ii) the action concerns the authority of a Federal
agency to administer programs or the issuance of a permit
under--
(I) the Federal Water Pollution Control Act (33
U.S.C. 1251 et seq.);
(II) the Safe Drinking Water Act (42 U.S.C. 300f et
seq.);
(III) the Clean Air Act (42 U.S.C. 7401 et seq.);
or
(IV) any other Federal law specifically addressed
in intergovernmental agreements; or
(iii) the intergovernmental agreement is inconsistent
with a Federal law for the protection of civil rights,
public health, or welfare.
(m) Rule of Construction.--Nothing in this Act shall be construed
to affect the application of the Act of May 25, 1918 (25 U.S.C. 211)
within the State of Arizona.
(n) Disclaimer.--Nothing in this section repeals, modifies, amends,
changes, or otherwise affects the Secretary's obligations to the Zuni
Tribe pursuant to the Act entitled ``An Act to convey certain lands to
the Zuni Indian Tribe for religious purposes'' approved August 28, 1984
(Public Law 98-408; 98 Stat. 1533) (and as amended by the Zuni Land
Conservation Act of 1990 (Public Law 101-486; 104 Stat. 1174)).
SEC. 6. DEVELOPMENT FUND.
(a) Establishment of the Fund.--
(1) In general.--There is established in the Treasury of the
United States a fund to be known as the ``Zuni Indian Tribe Water
Rights Development Fund'', to be managed and invested by the
Secretary, consisting of--
(A) the amounts authorized to be appropriated in section
4(b); and
(B) the appropriation to be contributed by the State of
Arizona pursuant to paragraph 7.6 of the Settlement Agreement.
(2) Additional deposits.--The Secretary shall deposit in the
Fund any other monies paid to the Secretary on behalf of the Zuni
Tribe pursuant to the Settlement Agreement.
(b) Management of the Fund.--The Secretary shall manage the Fund,
make investments from the Fund, and make monies available from the Fund
for distribution to the Zuni Tribe consistent with the American Indian
Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.)
(referred to in this section as the ``Trust Fund Reform Act''), this
Act, and the Settlement Agreement.
(c) Investment of the Fund.--The Secretary shall invest amounts in
the Fund in accordance with--
(1) the Act of April 1, 1880 (21 Stat. 70, ch. 41, 25 U.S.C.
161);
(2) the first section of the Act of June 24, 1938 (52 Stat.
1037, ch. 648, 25 U.S.C. 162a); and
(3) subsection (b).
(d) Availability of Amounts From the Fund.--The funds authorized to
be appropriated pursuant to section 3104(b)(2) and funds contributed by
the State of Arizona pursuant to paragraph 7.6 of the Settlement
Agreement shall be available for expenditure or withdrawal only after
the requirements of section 9(a) have been met.
(e) Expenditures and Withdrawal.--
(1) Tribal management plan.--
(A) In general.--The Zuni Tribe may withdraw all or part of
the Fund on approval by the Secretary of a tribal management
plan as described in the Trust Fund Reform Act.
(B) Requirements.--In addition to the requirements under
the Trust Fund Reform Act, the tribal management plan shall
require that the Zuni Tribe spend any funds in accordance with
the purposes described in section 4(b).
(2) Enforcement.--The Secretary may take judicial or
administrative action to enforce the provisions of any tribal
management plan to ensure that any monies withdrawn from the Fund
under the plan are used in accordance with this Act.
(3) Liability.--If the Zuni Tribe exercises the right to
withdraw monies from the Fund, neither the Secretary nor the
Secretary of the Treasury shall retain any liability for the
expenditure or investment of the monies withdrawn.
(4) Expenditure plan.--
(A) In general.--The Zuni Tribe shall submit to the
Secretary for approval an expenditure plan for any portion of
the funds made available under this Act that the Zuni Tribe
does not withdraw under this subsection.
(B) Description.--The expenditure plan shall describe the
manner in which, and the purposes for which, funds of the Zuni
Tribe remaining in the Fund will be used.
(C) Approval.--On receipt of an expenditure plan under
subparagraph (A), the Secretary shall approve the plan if the
Secretary determines that the plan is reasonable and consistent
with this Act.
(5) Annual report.--The Zuni Tribe shall submit to the
Secretary an annual report that describes all expenditures from the
Fund during the year covered by the report.
(f) Funds for Acquisition of Water Rights.--
(1) Water rights acquisitions.--Notwithstanding subsection (e),
the funds authorized to be appropriated pursuant to section
4(b)(1)--
(A) shall be available upon appropriation for use in
accordance with section 4(b)(1); and
(B) shall be distributed by the Secretary to the Zuni Tribe
on receipt by the Secretary from the Zuni Tribe of a written
notice and a tribal council resolution that describe the
purposes for which the funds will be used.
(2) Right to set off.--In the event the requirements of section
9(a) have not been met and the Settlement Agreement has become null
and void under section 9(b), the United States shall be entitled to
set off any funds expended or withdrawn from the amount
appropriated pursuant to section 4(b)(1), together with any
interest accrued, against any claims asserted by the Zuni Tribe
against the United States relating to water rights at the Zuni
Heaven Reservation.
(3) Water rights.--Any water rights acquired with funds
described in paragraph (1) shall be credited against any water
rights secured by the Zuni Tribe, or the United States on behalf of
the Zuni Tribe, for the Zuni Heaven Reservation in the Little
Colorado River General Stream Adjudication or in any future
settlement of claims for those water rights.
(g) No Per Capita Distributions.--No part of the Fund shall be
distributed on a per capita basis to members of the Zuni Tribe.
SEC. 7. CLAIMS EXTINGUISHMENT; WAIVERS AND RELEASES.
(a) Full Satisfaction of Members' Claims.--
(1) In general.--The benefits realized by the Tribe and its
members under this Act, including retention of any claims and
rights, shall constitute full and complete satisfaction of all
members' claims for--
(A) water rights under Federal, State, and other laws
(including claims for water rights in groundwater, surface
water, and effluent) for Zuni Lands from time immemorial
through the effective date described in section 9(a) and any
time thereafter; and
(B) injuries to water rights under Federal, State, and
other laws (including claims for water rights in groundwater,
surface water, and effluent, claims for damages for deprivation
of water rights, and claims for changes to underground water
table levels) for Zuni Lands from time immemorial through the
effective date described in section 9(a).
(2) No recognition or establishment of individual water
right.--Nothing in this Act recognizes or establishes any right of
a member of the Tribe to water on the Reservation.
(b) Tribe and United States Authorization and Water Quantity
Waivers.--The Tribe, on behalf of itself and its members and the
Secretary on behalf of the United States in its capacity as trustee for
the Zuni Tribe and its members, are authorized, as part of the
performance of their obligations under the Settlement Agreement, to
execute a waiver and release, subject to paragraph 11.4 of the
Settlement Agreement, for claims against the State of Arizona, or any
agency or political subdivision thereof, or any other person, entity,
corporation, or municipal corporation, under Federal, State, or other
law for any and all--
(1) past, present, and future claims to water rights (including
water rights in groundwater, surface water, and effluent) for Zuni
Lands from time immemorial through the effective date described in
section 9(a) and any time thereafter, except for claims within the
Zuni Protection Area as provided in article 5 of the Settlement
Agreement;
(2) past and present claims for injuries to water rights
(including water rights in groundwater, surface water, and effluent
and including claims for damages for deprivation of water rights
and any claims for changes to underground water table levels) for
Zuni Lands from time immemorial through the effective date
described in section 9(a); and
(3) past, present, and future claims for water rights and
injuries to water rights (including water rights in groundwater,
surface water, and effluent and including any claims for damages
for deprivation of water rights and any claims for changes to
underground water table levels) from time immemorial through the
effective date described in section 9(a), and any time thereafter,
for lands outside of Zuni Lands but located within the Little
Colorado River basin in Arizona, based upon aboriginal occupancy of
lands by the Zuni Tribe or its predecessors.
(c) Tribal Waivers Against the United States.--The Tribe is
authorized, as part of the performance of its obligations under the
Settlement Agreement, to execute a waiver and release, subject to
paragraphs 11.4 and 11.6 of the Settlement Agreement, for claims
against the United States (acting in its capacity as trustee for the
Zuni Tribe or its members, or otherwise acting on behalf of the Zuni
Tribe or its members), including any agencies, officials, or employees
thereof, for any and all--
(1) past, present, and future claims to water rights (including
water rights in groundwater, surface water, and effluent) for Zuni
Lands, from time immemorial through the effective date described in
section 9(a) and any time thereafter;
(2) past and present claims for injuries to water rights
(including water rights in groundwater, surface water, and effluent
and any claims for damages for deprivation of water rights) for
Zuni Lands from time immemorial through the effective date
described in section 9(a);
(3) past, present, and future claims for water rights and
injuries to water rights (including water rights in groundwater,
surface water, and effluent and any claims for damages for
deprivation of water rights) from time immemorial through the
effective date described in section 9(a), and any time thereafter,
for lands outside of Zuni Lands but located within the Little
Colorado River basin in Arizona, based upon aboriginal occupancy of
lands by the Zuni Tribe or its predecessors;
(4) past and present claims for failure to protect, acquire, or
develop water rights of, or failure to protect water quality for,
the Zuni Tribe within the Little Colorado River basin in Arizona
from time immemorial through the effective date described in
section 9(a); and
(5) claims for breach of the trust responsibility of the United
States to the Zuni Tribe arising out of the negotiation of the
Settlement Agreement or this Act.
(d) Tribal Waiver of Water Quality Claims and Interference With
Trust Claims.--
(1) Claims against the state and others.--
(A) Interference with trust responsibility.--The Tribe, on
behalf of itself and its members, is authorized, as part of the
performance of its obligations under the Settlement Agreement,
to waive and release all claims against the State of Arizona,
or any agency or political subdivision thereof, or any other
person, entity, corporation, or municipal corporation under
Federal, State, or other law, for claims of interference with
the trust responsibility of the United States to the Zuni Tribe
arising out of the negotiation of the Settlement Agreement or
this Act.
(B) Injury or threat of injury to water quality.--The
Tribe, on behalf of itself and its members, is authorized, as
part of the performance of its obligations under the Settlement
Agreement, to waive and release, subject to paragraphs 11.4,
11.6, and 11.7 of the Settlement Agreement, all claims against
the State of Arizona, or any agency or political subdivision
thereof, or any other person, entity, corporation, or municipal
corporation under Federal, State, or other law, for--
(i) any and all past and present claims, including
natural resource damage claims under the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601 et seq.), the Oil Pollution Act of
1990 (33 U.S.C. 2701 et seq.), or any other applicable
statute, for injury to water quality accruing from time
immemorial through the effective date described in section
9(a), for lands within the Little Colorado River basin in
the State of Arizona; and
(ii) any and all future claims, including natural
resource damage claims under the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601 et seq.), the Oil Pollution Act of
1990 (33 U.S.C. 2701 et seq.), or any other applicable
statute, for injury or threat of injury to water quality,
accruing after the effective date described in section
9(a), for any lands within the Eastern LCR basin caused
by--
(I) the lawful diversion or use of surface water;
(II) the lawful withdrawal or use of underground
water, except within the Zuni Protection Area, as
provided in article 5 of the Settlement Agreement;
(III) the Parties' performance of any obligations
under the Settlement Agreement;
(IV) the discharge of oil associated with routine
physical or mechanical maintenance of wells or
diversion structures not inconsistent with applicable
law;
(V) the discharge of oil associated with routine
start-up and operation of well pumps not inconsistent
with applicable law; or
(VI) any combination of the causes described in
subclauses (I) through (V).
(2) Claims of the united states.--The Tribe, on behalf of
itself and its members, is authorized to waive its right to request
that the United States bring--
(A) any claims for injuries to water quality under the
natural resource damage provisions of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(42 U.S.C. 9601 et seq.), the Oil Pollution Act of 1990 (33
U.S.C. 2701 et seq.) or any other applicable statute, for lands
within the Little Colorado River Basin in the State of Arizona,
accruing from time immemorial through the effective date
described in section 9(a); and
(B) any future claims for injuries or threat of injury to
water quality under the natural resource damage provisions of
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq.), the Oil
Pollution Act of 1990 (33 U.S.C. 2701 et seq.), or any other
applicable statute, accruing after the effective date described
in section 9(a), for any lands within the Eastern LCR basin,
caused by--
(i) the lawful diversion or use of surface water;
(ii) the lawful withdrawal or use of underground water,
except within the Zuni Protection Area, as provided in
article 5 of the Settlement Agreement;
(iii) the Parties' performance of any obligations under
the Settlement Agreement;
(iv) the discharge of oil associated with routine
physical or mechanical maintenance of wells or diversion
structures not inconsistent with applicable law;
(v) the discharge of oil associated with routine start-
up and operation of well pumps not inconsistent with
applicable law; or
(vi) any combination of the causes described in clauses
(i) through (v).
(3) Limitations.--Notwithstanding the authorization for the
Tribe's waiver of future water quality claims in paragraph
(1)(B)(ii) and the waiver in paragraph (2)(B), the Tribe, on behalf
of itself and its members, retains any statutory claims for injury
or threat of injury to water quality under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9601 et seq.) and the Oil Pollution Act of 1990 (33 U.S.C.
2701 et seq.), as described in subparagraph 11.4(D) (3) and (4) of
the Settlement Agreement, that accrue at least 30 years after the
effective date described in section 9(a).
(e) Waiver of United States Water Quality Claims Related to
Settlement Land and Water.--
(1) Past and present claims.--As part of the performance of its
obligations under the Settlement Agreement, the United States
waives and releases, subject to the retentions in paragraphs 11.4,
11.6 and 11.7 of the Settlement Agreement, all claims against the
State of Arizona, or any agency or political subdivision thereof,
or any other person, entity, corporation, or municipal corporation
for--
(A) all past and present common law claims accruing from
time immemorial through the effective date described in section
9(a) arising from or relating to water quality in which the
injury asserted is to the Tribe's interest in water, trust
land, and natural resources in the Little Colorado River basin
in the State of Arizona; and
(B) all past and present natural resource damage claims
accruing through the effective date described in section 9(a)
arising from or relating to water quality in which the claim is
based on injury to natural resources or threat to natural
resources in the Little Colorado River basin in Arizona, only
for those cases in which the United States, through the
Secretary or other designated Federal official, would act on
behalf of the Tribe as a natural resource trustee pursuant to
the National Contingency Plan, as set forth, as of the date of
enactment of this Act, in section 300.600(b)(2) of title 40,
Code of Federal Regulations.
(2) Future claims.--As part of the performance of its
obligations under the Settlement Agreement, the United States
waives and releases, subject to the retentions in paragraphs 11.4,
11.6 and 11.7 of the Settlement Agreement, the State of Arizona, or
any agency or political subdivision thereof, or any other person,
entity, corporation, or municipal corporation for--
(A) all future common law claims arising from or relating
to water quality in which the injury or threat of injury
asserted is to the Tribe's interest in water, trust land, and
natural resources in the Eastern LCR basin in Arizona accruing
after the effective date described in section 9(a) caused by--
(i) the lawful diversion or use of surface water;
(ii) the lawful withdrawal or use of underground water,
except within the Zuni Protection Area, as provided in
article 5 of the Settlement Agreement;
(iii) the Parties' performance of any obligations under
the Settlement Agreement;
(iv) the discharge of oil associated with routine
physical or mechanical maintenance of wells or diversion
structures not inconsistent with applicable law;
(v) the discharge of oil associated with routine start-
up and operation of well pumps not inconsistent with
applicable law; or
(vi) any combination of the causes described in clauses
(i) through (v); and
(B) all future natural resource damage claims accruing
after the effective date described in section 9(a) arising from
or relating to water quality in which the claim is based on
injury to natural resources or threat to natural resources in
the Eastern LCR basin in Arizona, only for those cases in which
the United States, through the Secretary or other designated
Federal official, would act on behalf of the Tribe as a natural
resource trustee pursuant to the National Contingency Plan, as
set forth, as of the date of enactment of this Act, in section
300.600(b)(2) of title 40, Code of Federal Regulations, caused
by--
(i) the lawful diversion or use of surface water;
(ii) the lawful withdrawal or use of underground water,
except within the Zuni Protection Area as provided in
article 5 of the Settlement Agreement;
(iii) the Parties' performance of their obligations
under this Settlement Agreement;
(iv) the discharge of oil associated with routine
physical or mechanical maintenance of wells or diversion
structures not inconsistent with applicable law;
(v) the discharge of oil associated with routine start-
up and operation of well pumps not inconsistent with
applicable law; or
(vi) any combination of the causes described in clauses
(i) through (v).
(f) Effect.--Subject to subsections (b) and (e), nothing in this
Act or the Settlement Agreement affects any right of the United States,
or the State of Arizona, to take any actions, including enforcement
actions, under any laws (including regulations) relating to human
health, safety and the environment.
SEC. 8. MISCELLANEOUS PROVISIONS.
(a) Waiver of Sovereign Immunity.--If any party to the Settlement
Agreement or a Pumping Protection Agreement files a lawsuit only
relating directly to the interpretation or enforcement of this Act, the
Settlement Agreement, an agreement described in paragraph (1), (2), or
(3) of section 4(c), or a Pumping Protection Agreement, naming the
United States or the Tribe as a party, or if any other landowner or
water user in the Little Colorado River basin in Arizona files a
lawsuit only relating directly to the interpretation or enforcement of
article 11, the rights of de minimis users in subparagraph 4.2.D or the
rights of underground water users under article 5 of the Settlement
Agreement, naming the United States or the Tribe as a party--
(1) the United States, the Tribe, or both may be added as a
party to any such litigation, and any claim by the United States or
the Tribe to sovereign immunity from such suit is hereby waived,
other than with respect to claims for monetary awards except as
specifically provided for in the Settlement Agreement; and
(2) the Tribe may waive its sovereign immunity from suit in the
Superior Court of Apache County, Arizona for the limited purposes
of enforcing the terms of the Intergovernmental Agreement, and any
intergovernmental agreement required to be entered into by the
Tribe under the terms of the Intergovernmental Agreement, other
than with respect to claims for monetary awards except as
specifically provided in the Intergovernmental Agreement.
(b) Tribal Use of Water.--
(1) In general.--With respect to water rights made available
under the Settlement Agreement and used on the Zuni Heaven
Reservation--
(A) such water rights shall be held in trust by the United
States in perpetuity, and shall not be subject to forfeiture or
abandonment;
(B) State law shall not apply to water uses on the
Reservation;
(C) the State of Arizona may not regulate or tax such water
rights or uses (except that the court with jurisdiction over
the decree entered pursuant to the Settlement Agreement or the
Norviel Decree Court may assess administrative fees for
delivery of this water);
(D) subject to paragraph 7.7 of the Settlement Agreement,
the Zuni Tribe shall use water made available to the Zuni Tribe
under the Settlement Agreement on the Zuni Heaven Reservation
for any use it deems advisable;
(E) water use by the Zuni Tribe or the United States on
behalf of the Zuni Tribe for wildlife or instream flow use, or
for irrigation to establish or maintain wetland on the
Reservation, shall be considered to be consistent with the
purposes of the Reservation; and
(F)(i) not later than 3 years after the deadline described
in section 9(b), the Zuni Tribe shall adopt a water code to be
approved by the Secretary for regulation of water use on the
lands identified in subsections (a) and (b) of section 5 that
is reasonably equivalent to State water law (including statutes
relating to dam safety and groundwater management); and
(ii) until such date as the Zuni Tribe adopts a water code
described in clause (i), the Secretary, in consultation with
the State of Arizona, shall administer water use and water
regulation on lands described in that clause in a manner that
is reasonably equivalent to State law (including statutes
relating to dam safety and groundwater management).
(2) Limitation.--
(A) In general.--Except as provided in subparagraph (B),
the Zuni Tribe or the United States shall not sell, lease,
transfer, or transport water made available for use on the Zuni
Heaven Reservation to any other place.
(B) Exception.--Water made available to the Zuni Tribe or
the United States for use on the Zuni Heaven Reservation may be
severed and transferred from the Reservation to other Zuni
Lands if the severance and transfer is accomplished in
accordance with State law (and once transferred to any lands
held in fee, such water shall be subject to State law).
(c) Rights-of-Way.--
(1) New and future trust land.--The land taken into trust under
subsections (a) and (b) of section 5 shall be subject to existing
easements and rights-of-way.
(2) Additional rights-of-way.--
(A) In general.--Notwithstanding any other provision of
law, the Secretary, in consultation with the Tribe, shall grant
additional rights-of-way or expansions of existing rights-of-
way for roads, utilities, and other accommodations to adjoining
landowners if--
(i) the proposed right-of-way is necessary to the needs
of the applicant;
(ii) the proposed right-of-way will not cause
significant and substantial harm to the Tribe's wetland
restoration project or religious practices; and
(iii) the proposed right-of-way acquisition will comply
with the procedures in part 169 of title 25, Code of
Federal Regulations, not inconsistent with this subsection
and other generally applicable Federal laws unrelated to
the acquisition of interests across trust lands.
(B) Alternatives.--If the criteria described in clauses (i)
through (iii) of subparagraph (A) are not met, the Secretary
may propose an alternative right-of-way, or other accommodation
that complies with the criteria.
(d) Certain Claims Prohibited.--The United States shall make no
claims for reimbursement of costs arising out of the implementation of
this Act or the Settlement Agreement against any Indian-owned land
within the Tribe's Reservation, and no assessment shall be made in
regard to such costs against such lands.
(e) Vested Rights.--Except as described in paragraph 5.3 of the
Settlement Agreement (recognizing the Zuni Tribe's use of 1,500 acre-
feet per annum of groundwater) this Act and the Settlement Agreement do
not create any vested right to groundwater under Federal or State law,
or any priority to the use of groundwater that would be superior to any
other right or use of groundwater under Federal or State law, whether
through this Act, the Settlement Agreement, or by incorporation of any
abstract, agreement, or stipulation prepared under the Settlement
Agreement. Notwithstanding the preceding sentence, the rights of
parties to the agreements referred to in paragraph (1), (2), or (3) of
section 4(c) and paragraph 5.8 of the Settlement Agreement, as among
themselves, shall be as stated in those agreements.
(f) Other Claims.--Nothing in the Settlement Agreement or this Act
quantifies or otherwise affects the water rights, claims, or
entitlements to water of any Indian tribe, band, or community, other
than the Zuni Indian Tribe.
(g) No Major Federal Action.--
(1) In general.--Execution of the Settlement Agreement by the
Secretary as provided for in section 4(a) shall not constitute
major Federal action under the National Environmental Policy Act
(42 U.S.C. 4321 et seq.).
(2) Settlement agreement.--In implementing the Settlement
Agreement, the Secretary shall comply with all aspects of--
(A) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.);
(B) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.); and
(C) all other applicable environmental laws (including
regulations).
SEC. 9. EFFECTIVE DATE FOR WAIVER AND RELEASE AUTHORIZATIONS.
(a) In General.--The waiver and release authorizations contained in
subsections (b) and (c) of section 7 shall become effective as of the
date the Secretary causes to be published in the Federal Register a
statement of all the following findings:
(1) This Act has been enacted in a form approved by the parties
in paragraph 3.1.A of the Settlement Agreement.
(2) The funds authorized by section 4(b) have been appropriated
and deposited into the Fund.
(3) The State of Arizona has appropriated and deposited into
the Fund the amount required by paragraph 7.6 of the Settlement
Agreement.
(4) The Zuni Indian Tribe has either purchased or acquired the
right to purchase at least 2,350 acre-feet per annum of surface
water rights, or waived this condition as provided in paragraph 3.2
of the Settlement Agreement.
(5) Pursuant to subparagraph 3.1.D of the Settlement Agreement,
the severance and transfer of surface water rights that the Tribe
owns or has the right to purchase have been conditionally approved,
or the Tribe has waived this condition as provided in paragraph 3.2
of the Settlement Agreement.
(6) Pursuant to subparagraph 3.1.E of the Settlement Agreement,
the Tribe and Lyman Water Company have executed an agreement
relating to the process of the severance and transfer of surface
water rights acquired by the Zuni Tribe or the United States, the
pass-through, use, or storage of the Tribe's surface water rights
in Lyman Lake, and the operation of Lyman Dam.
(7) Pursuant to subparagraph 3.1.F of the Settlement Agreement,
all the parties to the Settlement Agreement have agreed and
stipulated to certain Arizona Game and Fish abstracts of water
uses.
(8) Pursuant to subparagraph 3.1.G of the Settlement Agreement,
all parties to the Settlement Agreement have agreed to the location
of an observation well and that well has been installed.
(9) Pursuant to subparagraph 3.1.H of the Settlement Agreement,
the Zuni Tribe, Apache County, Arizona and the State of Arizona
have executed an Intergovernmental Agreement that satisfies all of
the conditions in paragraph 6.2 of the Settlement Agreement.
(10) The Zuni Tribe has acquired title to the section of land
adjacent to the Zuni Heaven Reservation described as Section 34,
Township 14 North, Range 26 East, Gila and Salt River Base and
Meridian.
(11) The Settlement Agreement has been modified if and to the
extent it is in conflict with this Act and such modification has
been agreed to by all the parties to the Settlement Agreement.
(12) A court of competent jurisdiction has approved the
Settlement Agreement by a final judgment and decree.
(b) Deadline for Effective Date.--If the publication in the Federal
Register required under subsection (a) has not occurred by December 31,
2006, sections 4 and 5, and any agreements entered into pursuant to
sections 4 and 5 (including the Settlement Agreement and the
Intergovernmental Agreement) shall not thereafter be effective and
shall be null and void. Any funds and the interest accrued thereon
appropriated pursuant to section 4(b)(2) shall revert to the Treasury,
and any funds and the interest accrued thereon appropriated pursuant to
paragraph 7.6 of the Settlement Agreement shall revert to the State of
Arizona.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.