[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2605 Introduced in Senate (IS)]

  2d Session
                                 S. 2605

To direct the Secretary of the Interior and the heads of other Federal 
 agencies to carry out an agreement resolving major issues relating to 
 the adjudication of water rights in the Snake River Basin, Idaho, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 24, 2004

 Mr. Craig (for himself and Mr. Crapo) introduced the following bill; 
  which was read twice and referred to the Committee on Indian Affairs

_______________________________________________________________________

                                 A BILL


 
To direct the Secretary of the Interior and the heads of other Federal 
 agencies to carry out an agreement resolving major issues relating to 
 the adjudication of water rights in the Snake River Basin, Idaho, 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 ``Snake River Water Rights Act of 
2004''.

SEC. 2. PURPOSES.

    The purposes of this Act are--
            (1) to resolve some of the largest outstanding issues with 
        respect to the Snake River Basin Adjudication in Idaho in such 
        a manner as to provide important benefits to the United States, 
        the State of Idaho, the Nez Perce Tribe, the allottees, and 
        citizens of the State;
            (2) to achieve a fair, equitable, and final settlement of 
        all claims of the Nez Perce Tribe, its members, and allottees 
        and the United States on behalf of the Tribe, its members, and 
        allottees to the water of the Snake River Basin within Idaho;
            (3) to authorize, ratify, and confirm the Agreement among 
        the parties submitted to the Snake River Basin Adjudication 
        Court and provide all parties with the benefits of the 
        Agreement;
            (4) to direct--
                    (A) the Secretary, acting through the Bureau of 
                Reclamation, the Bureau of Land Management, the Bureau 
                of Indian Affairs, and other agencies; and
                    (B) the heads of other Federal agencies authorized 
                to execute and perform actions necessary to carry out 
                the Agreement;
        to perform all of their obligations under the Agreement and 
        this Act; and
            (5) to authorize the actions and appropriations necessary 
        for the United States to meet the obligations of the United 
        States under the Agreement and this Act.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Agreement.--The term ``Agreement'' means the document 
        titled ``Mediator's Term Sheet'' dated April 20, 2004, and 
        submitted on that date to the SRBA Court in SRBA Consolidated 
        Subcase 03-10022 and SRBA Consolidated Subcase 67-13701, with 
        all appendices to the document.
            (2) Allottee.--The term ``allottee'' means a person that 
        holds a beneficial real property interest in an Indian 
        allotment that is--
                    (A) located within the Nez Perce Reservation; and
                    (B) held in trust by the United States.
            (3) Consumptive use reserved water right.--The term 
        ``consumptive use reserved water right'' means the Federal 
        reserved water right of 50,000 acre-feet per year, as described 
        in the Agreement, to be decreed to the Tribe and the allottees, 
        with a priority date of 1855.
            (4) Parties.--The term ``parties'' means the United States, 
        the State, the Tribe, and any other entity or person that 
        submitted, or joined in the submission, of the Agreement to the 
        SRBA Court on April 20, 2004.
            (5) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior.
            (6) Snake river basin.--The term ``Snake River Basin'' 
        means the geographic area in the State described in paragraph 3 
        of the Commencement Order issued by the SRBA Court on November 
        19, 1987.
            (7) Springs or fountains water right.--The term ``springs 
        or fountains water right'' means the Tribe's treaty right of 
        access to and use of water from springs or fountains on Federal 
        public land within the area ceded by the Tribe in the Treaty of 
        June 9, 1863 (14 Stat. 647), as recognized under the Agreement.
            (8) SRBA.--The term ``SRBA'' means the Snake River Basin 
        Adjudication litigation before the SRBA Court styled as In re 
        Snake River Basin Adjudication, Case No. 39576.
            (9) SRBA court.--The term ``SRBA Court'' means the District 
        Court of the Fifth Judicial District of the State of Idaho, In 
        and For the County of Twin Falls in re Snake River Basin 
        Adjudication.
            (10) State.--The term ``State'' means the State of Idaho.
            (11) Tribe.--The term ``Tribe'' means the Nez Perce Tribe.

SEC. 4. APPROVAL, RATIFICATION, AND CONFIRMATION OF AGREEMENT.

    (a) In General.--Except to the extent that the Agreement conflicts 
with the express provisions of this Act, the Agreement is approved, 
ratified, and confirmed.
    (b) Execution and Performance.--The Secretary and the other heads 
of Federal agencies with obligations under the Agreement shall execute 
and perform all actions, consistent with this Act, that are necessary 
to carry out the Agreement.

SEC. 5. BUREAU OF RECLAMATION WATER USE.

    (a) In General.--As part of the overall implementation of the 
Agreement, the Secretary shall take such actions consistent with the 
Agreement, this Act, and water law of the State as are necessary to 
carry out the Snake River Flow Component of the Agreement.
    (b) Mitigation for Change of Use of Water.--
            (1) Authorization of appropriations.--There is authorized 
        to be appropriated to the Secretary $2,000,000 for a 1-time 
        payment to local governments to mitigate for the change of use 
        of water acquired by the Bureau of Reclamation under section 
        III.C.6 of the Agreement.
            (2) Distribution of funds.--Funds made available under 
        paragraph (1) shall be distributed by the Secretary to local 
        governments in accordance with a plan provided to the Secretary 
        by the State.
            (3) Payments.--Payments by the Secretary shall be made on a 
        pro rata basis as water rights are acquired by the Bureau of 
        Reclamation.

SEC. 6. BUREAU OF LAND MANAGEMENT LAND TRANSFER.

    (a) Transfer.--
            (1) In general.--The Secretary shall transfer land selected 
        by the Tribe under paragraph (2) to the Bureau of Indian 
        Affairs to be held in trust for the Tribe.
            (2) Land selection.--The land transferred shall be selected 
        by the Tribe from a list of parcels of land managed by the 
        Bureau of Land Management that are available for transfer, as 
        depicted on the map entitled ``North Idaho BLM Land Eligible 
        for Selection by the Nez Perce Tribe'' dated May 2004, on file 
        with the Director of the Bureau of Land Management, not 
        including any parcel designated on the map as being on the 
        Clearwater River or Lolo Creek.
            (3) Maximum value.--The land selected by the Tribe for 
        transfer shall be limited to a maximum value in total of not 
        more than $7,000,000, as determined by an independent appraisal 
        of fair market value prepared in accordance with the Uniform 
        Standards of Professional Appraisal Practice and the Uniform 
        Appraisal Standards for Federal Land Acquisitions.
    (b) Existing Rights and Uses.--
            (1) In general.--On any land selected by the Tribe under 
        subsection (a)(2), any use in existence on the date of transfer 
        under subsection (a) under a lease or permit with the Bureau of 
        Land Management, including grazing, shall remain in effect 
        until the date of expiration of the lease or permit, unless the 
        holder of the lease or permit requests an earlier termination 
        of the lease or permit, in which case the Secretary shall grant 
        the request.
            (2) Availability of amounts.--Amounts that accrue to the 
        United States under a lease or permit described in paragraph 
        (1) from sales, bonuses, royalties, and rentals relating to any 
        land transferred to the Tribe under this section shall be made 
        available to the Tribe by the Secretary in the same manner as 
        amounts received from other land held by the Secretary in trust 
        for the Tribe.
    (c) Date of Transfer.--No land shall be transferred to the Tribe 
under this section until the waivers and releases under section 10 take 
effect.

SEC. 7. WATER RIGHTS.

    (a) Holding in Trust.--
            (1) In general.--The consumptive use reserved water right 
        shall be held in trust by the United States for the benefit of 
        the Tribe and allottees.
            (2) Springs or fountains water right.--The springs or 
        fountains water right of the Tribe shall be held in trust by 
        the United States for the benefit of the Tribe.
    (b) Water Code.--
            (1) In general.--The consumptive use reserved water right 
        shall be subject to section 7 of the Act of February 8, 1887 
        (25 U.S.C. 381; 24 Stat. 390, chapter 119).
            (2) Enactment of water code.--Not later than 3 years after 
        the date of enactment of this Act, the Tribe shall enact a 
        water code, subject to any applicable provision of law, that--
                    (A) manages, regulates, and controls the 
                consumptive use reserved water right; and
                    (B) includes, subject to approval of the 
                Secretary--
                            (i) a process by which an allottee, or any 
                        successor in interest to an allottee, may 
                        request and be provided with an allocation of 
                        water for irrigation use on allotted land of 
                        the allottee; and
                            (ii) a due process system for the 
                        consideration and determination of any request 
                        by an allottee, or any successor in interest to 
                        an allottee, for an allocation of water, 
                        including a process for appeal and adjudication 
                        of denied or disputed distributions of water 
                        and for resolution of contested administrative 
                        decisions.
            (3) Rights of allottees.--Any provision of the water code 
        and any amendments to the water code that affect the rights of 
        the allottees shall be subject to the approval of the 
        Secretary, and no such provision or amendment shall be valid 
        until approved by the Secretary.
            (4) Interim administration.--The Secretary shall administer 
        the consumptive use reserved water right until such date as the 
        water code described in paragraph (2) has been enacted by the 
        Tribe and approved by the Secretary.
    (c) Satisfaction of Claims.--
            (1) In general.--The water rights and other benefits 
        granted or confirmed by the Agreement and this Act shall be in 
        full satisfaction of all claims for water rights and injuries 
        to water rights of the allottees.
            (2) Satisfaction of entitlements.--Any entitlement to water 
        of any allottee under Federal law shall be satisfied out of the 
        consumptive use reserved water right.
    (d) Abandonment, Forfeiture, or Nonuse.--The consumptive use 
reserved water right and the springs or fountains water right shall not 
be subject to loss by abandonment, forfeiture, or nonuse.
    (e) Lease of Water.--
            (1) In general.--The Tribe, without further approval of the 
        Secretary, may lease water to which the Tribe is entitled under 
        the consumptive use reserved water right through any State 
        water bank in the same manner and subject to the same rules 
and requirements that govern any other lessor of water to the water 
bank.
            (2) Funds.--Any funds accruing to the Tribe from any lease 
        under paragraph (1) shall be the property of the Tribe, and the 
        United States shall have no trust obligation or other 
        obligation to monitor, administer, or account for any 
        consideration received by the Tribe under any such lease.

SEC. 8. TRIBAL FUNDS.

    (a) Definition of Fund.--In this section, the term ``Fund'' means--
            (1) the Nez Perce Tribe Water and Fisheries Fund 
        established under subsection (b)(1); and
            (2) the Nez Perce Tribe Domestic Water Supply Fund 
        established under subsection (b)(2).
    (b) Establishment.--There are established in the Treasury of the 
United States--
            (1) a fund to be known as the ``Nez Perce Tribe Water and 
        Fisheries Fund'', to be used to pay or reimburse costs incurred 
        by the Tribe in acquiring land and water rights, restoring or 
        improving fish habitat, or for fish production, agricultural 
        development, cultural preservation, water resource development, 
        or fisheries-related projects; and
            (2) a fund to be known as the ``Nez Perce Domestic Water 
        Supply Fund'', to be used to pay the costs for design and 
        construction of water supply and sewer systems for tribal 
        communities, including a water quality testing laboratory.
    (c) Management of the Funds.--The Secretary shall manage the Funds, 
make investments from the Funds, and make amounts available from the 
Funds for distribution to the Tribe consistent with the American Indian 
Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.), this 
Act, and the Agreement.
    (d) Investment of the Funds.--The Secretary shall invest amounts in 
the Funds in accordance with--
            (1) the Act of April 1, 1880 (25 U.S.C. 161; 21 Stat. 70, 
        chapter 41);
            (2) the first section of the Act of June 24, 1938 (25 
        U.S.C. 162a; 52 Stat. 1037, chapter 648); and
            (3) subsection (c).
    (e) Availability of Amounts From the Funds.--Amounts made available 
under subsection (h) shall be available for expenditure or withdrawal 
only after the waivers and releases under section 10 take effect.
    (f) Expenditures and Withdrawal.--
            (1) Tribal management plan.--
                    (A) In general.--The Tribe may withdraw all or part 
                of amounts in the Funds on approval by the Secretary of 
                a tribal management plan as described in the American 
                Indian Trust Fund Management Reform Act of 1994 (25 
                U.S.C. 4001 et seq.).
                    (B) Requirements.--In addition to the requirements 
                under the American Indian Trust Fund Management Reform 
                Act of 1994 (25 U.S.C. 4001 et seq.), the tribal 
                management plan shall require that the Tribe spend any 
                amounts withdrawn from the Funds in accordance with the 
                purposes described in subsection (b).
                    (C) Enforcement.--The Secretary may take judicial 
                or administrative action to enforce the provisions of 
                any tribal management plan to ensure that any amounts 
                withdrawn from the Funds under the plan are used in 
                accordance with this Act and the Agreement.
                    (D) Liability.--If the Tribe exercises the right to 
                withdraw amounts from the Funds, neither the Secretary 
                nor the Secretary of the Treasury shall retain any 
                liability for the expenditure or investment of the 
                amounts.
            (2) Expenditure plan.--
                    (A) In general.--The Tribe shall submit to the 
                Secretary for approval an expenditure plan for any 
                portion of the amounts made available under subsection 
                (h) that the Tribe does not withdraw under this 
                subsection.
                    (B) Description.--The expenditure plan shall 
                describe the manner in which, and the purposes for 
                which, amounts of the Tribe remaining in the Funds 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 and the 
                Agreement.
                    (D) Annual report.--For each Fund, the Tribe shall 
                submit to the Secretary an annual report that describes 
                all expenditures from the Fund during the year covered 
                by the report.
    (g) No Per Capita Payments.--No part of the principal of the Funds, 
or of the income accruing in the Funds, shall be distributed to any 
member of the Tribe on a per capita basis.
    (h) Authorization of Appropriations.--There are authorized to be 
appropriated--
            (1) $60,100,000 to the Nez Perce Tribe Water and Fisheries 
        Fund; and
            (2) $23,000,000 to the Nez Perce Tribe Domestic Water 
        Supply Fund.

SEC. 9. SALMON AND CLEARWATER RIVER BASINS HABITAT FUND.

    (a) Establishment of Fund.--
            (1) In general.--There is established in the Treasury of 
        the United States a fund to be known as the ``Salmon and 
        Clearwater River Basins Habitat Fund'' (referred to in this 
        section as the ``Fund''), to be administered by the Secretary.
            (2) Accounts.--There is established within the Fund--
                    (A) an account to be known as the ``Nez Perce Tribe 
                Salmon and Clearwater River Basins Habitat Account'', 
                which shall be administered by the Secretary for use by 
                the Tribe subject to the same provisions for 
                management, investment, and expenditure as the funds 
                established by section 8; and
                    (B) an account to be known as the ``Idaho Salmon 
                and Clearwater River Basins Habitat Account'', which 
                shall be administered by the Secretary and provided to 
the State as provided in the Agreement and this Act.
    (b) Use of the Fund.--
            (1) In general.--The Fund shall be used to supplement 
        amounts made available under other law for habitat protection 
        and restoration in the Salmon and Clearwater River basins, 
        including projects and programs intended to protect and restore 
        listed fish and their habitat in the Salmon and Clearwater 
        basins, as specified in the Agreement and this Act.
            (2) No allocation requirement.--The use of the Fund shall 
        not be subject to the allocation procedures under section 
        6(d)(1) of the Endangered Species Act of 1973 (16 U.S.C. 
        1535(d)(1)).
            (3) Release of funds.--The Secretary shall release funds 
        from the Clearwater River Basins Habitat Account in accordance 
        with section 6(d)(2) of the Endangered Species Act (16 U.S.C. 
        1535(d)(2)).
    (c) Availability of Amounts in the Fund.--Amounts made available 
under subsection (d) shall be available for expenditure or withdrawal 
only after the waivers and releases under section 10(a) take effect.
    (d) Authorization of Appropriations.--There are authorized to be 
appropriated--
            (1) $12,666,670 to the Nez Perce Tribe Salmon and 
        Clearwater River Basins Habitat Account; and
            (2) $25,333,330 to the Idaho Salmon and Clearwater River 
        Basins Habitat Account.

SEC. 10. TRIBAL WAIVER AND RELEASE OF CLAIMS.

    (a) Waiver and Release of Claims in General.--
            (1) Claims to water rights; claims for injuries to water 
        rights or treaty rights.--Except as otherwise provided in this 
        Act, the United States on behalf of the Tribe and the 
        allottees, and the Tribe, waive and release--
                    (A) all claims to water rights within the Snake 
                River Basin (as defined in section 3(b));
                    (B) all claims for injuries to such water rights; 
                and
                    (C) all claims for injuries to the treaty rights of 
                the Tribe to the extent that such injuries result or 
                resulted from flow modifications or reductions in the 
                quantity of water available that accrued at any time up 
                to and including the effective date of the settlement, 
                and any continuation thereafter of any such claims, 
                against the State, any agency or political subdivision 
                of the State, or any person, entity, corporation, 
                municipal corporation, or quasi-municipal corporation.
            (2) Claims based on reduced water quality or reductions in 
        water quantity.--The United States on behalf of the Tribe and 
        the allottees, and the Tribe, waive and release any claim, 
        under any treaty theory, based on reduced water quality 
        resulting directly from flow modifications or reductions in the 
        quantity of water available in the Snake River Basin against 
        any party to the Agreement or this Act.
            (3) No future assertion of claims.--No water right claim 
        that the Tribe or the allottees have asserted or may in the 
        future assert outside the Snake River Basin shall require water 
        to be supplied from the Snake River Basin to satisfy the claim.
            (4) Effect of waivers and releases.--The waivers and 
        releases by the United States and the Tribe under this 
        subsection--
                    (A) shall be permanent and enforceable; and
                    (B) shall survive any subsequent termination of any 
                component of the settlement described in the Agreement 
                or this Act.
            (5) Effective date.--The waivers and releases under this 
        subsection take effect on the date on which the Secretary 
        causes to be published in the Federal Register a statement of 
        findings that the actions set forth in section IV.L of the 
        Agreement--
                    (A) have been completed, including issuance of a 
                judgment and decree by the SRBA court from which no 
                further appeal may be taken; and
                    (B) have been determined by the United States on 
                behalf of the Tribe and the allottees, the Tribe, and 
                the State of Idaho to be consistent in all material 
                aspects with the Agreement.
    (b) Waiver and Release of Claims Against the United States.--
            (1) In general.--In consideration of performance by the 
        United States of all actions required by the Agreement and this 
        Act, including the appropriation of all funds authorized under 
        sections 8(h) and 9(d)(1), the Tribe shall execute a waiver and 
        release of the United States from--
                    (A) all claims for water rights within the Snake 
                River Basin, injuries to such water rights, or breach 
                of trust claims for failure to protect, acquire, or 
                develop such water rights that accrued at any time up 
                to and including the effective date determined under 
                paragraph (2);
                    (B) all claims for injuries to the Tribe's treaty 
                fishing rights, to the extent that such injuries result 
                or resulted from reductions in the quantity of water 
                available in the Snake River Basin;
                    (C) all claims of breach of trust for failure to 
                protect Nez Perce springs or fountains treaty rights 
                reserved in article VIII of the Treaty of June 9, 1863 
                (14 Stat. 651); and
                    (D) all claims of breach of trust arising out of 
                the negotiation of or resulting from the adoption of 
                the Agreement.
            (2) Effective date.--The waiver and release contained in 
        this subsection take effect on the date on which the funds 
        authorized under sections 8(h) and 9(d)(1) of this Act have 
        been appropriated as authorized by this Act.
    (c) Retention of Rights.--
            (1) In general.--The Tribe shall retain all rights not 
        specifically waived or released in the Agreement or this Act.
            (2) Dworshak project.--Nothing in the Agreement or this Act 
        constitutes a waiver by the Tribe of any claim against the 
        United States relating to non-water-based injuries resulting 
        from the construction and operation of the Dworshak Project.
            (3) Future acquisition of water rights.--Nothing in the 
        Agreement or this Act precludes the Tribe, or the United States 
        as trustee for the Tribe, from purchasing or otherwise 
        acquiring water rights in the future to the same extent as any 
        other entity the State.

SEC. 11. MISCELLANEOUS.

    (a) General Disclaimer.--The parties expressly reserve all rights 
not specifically granted, recognized, or relinquished by the settlement 
described in the Agreement or this Act.
    (b) Disclaimer Regarding Other Agreements and Precedent.--
            (1) In general.--Except as expressly provided in this Act, 
        nothing in this Act amends, supersedes, or preempts any State 
        law, Federal law, Tribal law, or interstate compact that 
        pertains to the Snake River or its tributaries.
            (2) No establishment of standard.--Nothing in this Act--
                    (A) establishes any standard for the quantification 
                of Federal reserved water rights or any other Indian 
                water claims of any other Indian tribes in any other 
                judicial or administrative proceeding; or
                    (B) limits the rights of the parties to litigate 
                any issue not resolved by the Agreement or this Act.
            (3) No admission against interest.--Nothing in this Act 
        constitutes an admission against interest against any party in 
        any legal proceeding.
    (c) Treaty Rights.--Nothing in the Agreement or this Act impairs 
the treaty fishing, hunting, pasturing, or gathering rights of the 
Tribe except to the extent expressly provided in the Agreement or this 
Act.
    (d) Other Claims.--Nothing in the Agreement or this Act quantifies 
or otherwise affects the water rights, claims, or entitlements to 
water, or any other treaty right, of any Indian tribe, band, or 
community other than the Tribe.
    (e) Recreation on Dworshak Reservoir.--
            (1) In general.--In implementing the provisions of the 
        Agreement and this Act relating to the use of water stored in 
        Dworshak Reservoir for flow augmentation purposes, the heads of 
        the Federal agencies involved in the operational Memorandum of 
        Agreement referred to in the Agreement shall implement a flow 
        augmentation plan beneficial to fish and consistent with the 
        Agreement.
            (2) Contents of plan.--The flow augmentation plan may 
        include provisions beneficial to recreational uses of the 
        reservoir through maintenance of the full level of the 
        reservoir for prolonged periods during the summer months.
    (f) Jurisdiction.--
            (1) No effect on subject matter jurisdiction.--Nothing in 
        the Agreement or this Act restricts, enlarges, or otherwise 
        determines the subject matter jurisdiction of any Federal, 
        State, or Tribal court.
            (2) Consent to jurisdiction.--The United States consents to 
        jurisdiction in a proper forum for purposes of enforcing the 
        provisions of the Agreement.
            (3) Effect of subsection.--Nothing in this subsection 
        confers jurisdiction on any State court to--
                    (A) enforce Federal environmental laws regarding 
                the duties of the United States; or
                    (B) conduct judicial review of Federal agency 
                action.
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