II 110th CONGRESS 2d Session S. 3473 IN THE SENATE OF THE UNITED STATES September 11, 2008 Mr. Kyl introduced the following bill; which was read twice and referred to the Committee on Indian Affairs A BILL To resolve water rights claims of the White Mountain Apache Tribe in the State of Arizona, and for other purposes.

1.

Short title

This Act may be cited as the White Mountain Apache Tribe Water Rights Quantification Act of 2008.

2.

Findings and purposes

(a)

Findings

Congress finds that— (1)proceedings to determine the nature and extent of the water rights of the White Mountain Apache Tribe, members of the Tribe, the United States, and other claimants are pending in— (A)the consolidated civil action in the Superior Court of the State of Arizona for the County of Maricopa styled In re the General Adjudication of All Rights To Use Water In The Gila River System and Source, W–1 (Salt), W–2 (Verde), W–3 (Upper Gila), W–4 (San Pedro); and (B)the civil action pending in the Superior Court of the State of Arizona for the County of Apache styled In re the General Adjudication of All Rights to Use Water in the Little Colorado River System and Source and numbered CIV–6417; (2)a final resolution of those proceedings might— (A)take many years; (B)entail great expense; (C)prolong uncertainty concerning the availability of water supplies; and (D)seriously impair the long-term economic well-being of all parties to the proceedings; (3)the Tribe, non-Indian communities located near the reservation of the Tribe, and other Arizona water users have agreed— (A)to permanently quantify the water rights of the Tribe, members of the Tribe, and the United States in its capacity as trustee for the Tribe and members in accordance with the Agreement; and (B)to seek funding, in accordance with applicable law, for the implementation of the Agreement; (4)it is the policy of the United States to quantify, to the maximum extent practicable, water rights claims of Indian tribes without lengthy and costly litigation; (5)as of the date of enactment of this Act, the tribal water rights are unquantified vested property rights held in trust by the United States for the benefit of the Tribe; and (6)in keeping with the trust responsibility of the United States to Indian tribes, and to promote tribal sovereignty and economic self-sufficiency, it is appropriate that the United States participate in and contribute funds for the implementation of the Agreement. (b)

Purposes

The purposes of this Act are— (1)to authorize, ratify, and confirm the Agreement; (2)to authorize and direct the Secretary to execute the Agreement and carry out all obligations of the Secretary under the Agreement; (3)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; and (4)to permanently resolve certain damage claims and all water rights claims among— (A)the Tribe and its members; (B)the United States in its capacity as trustee for the Tribe and its members; (C)the parties to the Agreement; and (D)all other claimants in the proceedings referred to in subsection (a)(1).

3.

Definitions

In this Act: (1)

Agreement

The Agreement means— (A)the WMAT Water Rights Quantification Agreement dated _____; and (B)any amendment or exhibit (including exhibit amendments) to that agreement that are— (i)made in accordance with this Act; or (ii)otherwise approved by the Secretary. (2)

Bureau

The term Bureau means the Bureau of Reclamation. (3)

CAP

The term CAP means the reclamation project authorized and constructed by the United States in accordance with title III of the Colorado River Basin Project Act (43 U.S.C. 1521 et seq.). (4)

CAP contractor

The term CAP contractor means an individual or entity that has entered into a long-term contract (as that term is used in the repayment stipulation) with the United States for delivery of water through the CAP system. (5)

CAP fixed OM&R charge

The term CAP fixed OM&R charge has the meaning given the term in the repayment stipulation. (6)

CAP M&I priority water

The term CAP M&I priority water means the CAP water having a municipal and industrial delivery priority under the repayment contract. (7)

CAP subcontractor

The term CAP subcontractor means an individual or entity that has entered into a long-term subcontract (as that term is used in the repayment stipulation) with the United States and the District for the delivery of water through the CAP system. (8)

CAP system

The term CAP system means— (A)the Mark Wilmer Pumping Plant; (B)the Hayden-Rhodes Aqueduct; (C)the Fannin-McFarland Aqueduct; (D)the Tucson Aqueduct; (E)any pumping plant or appurtenant works of a feature described in any of subparagraphs (A) through (D); and (F)any extension of, addition to, or replacement for a feature described in any of subparagraphs (A) through (E). (9)

CAP water

The term CAP water means Project Water (as that term is defined in the repayment stipulation). (10)

Contract

The term Contract means— (A)the contract between the Tribe and the United States attached as exhibit 7.1 to the Agreement and numbered 08–XX–30–W0529 and dated ____; and (B)any amendments to that contract. (11)

District

The term District means the Central Arizona Water Conservation District, a political subdivision of the State that is the contractor under the repayment contract. (12)

Enforceability date

The term enforceability date means the date described in section 12(c)(1). (13)

Injury to water rights

(A)

In general

The term injury to water rights means an interference with, diminution of, or deprivation of, a water right under Federal, State, or other law. (B)

Inclusions

The term injury to water rights includes— (i)a change in the groundwater table; and (ii)any effect of such a change. (C)

Exclusion

The term injury to water rights does not include any injury to water quality. (14)

Off-reservation trust land

The term off-reservation trust land means land— (A)located outside the exterior boundaries of the reservation that is held in trust by the United States for the benefit of the Tribe as of the enforceability date; and (B)depicted on the map attached to the Agreement as exhibit 2.57. (15)

Operating Agency

The term Operating Agency means the 1 or more entities authorized to assume responsibility for the care, operation, maintenance, and replacement of the CAP system. (16)

Repayment contract

The term repayment contract means— (A)the contract between the United States and the District for delivery of water and repayment of the costs of the CAP, numbered 14–06–W–245 (Amendment No. 1), and dated December 1, 1988; and (B)any amendment to, or revision of, that contract. (17)

Repayment stipulation

The term repayment stipulation means the stipulated judgment and the stipulation for judgment (including any exhibits to those documents) entered on November 21, 2007, in the United States District Court for the District of Arizona in the consolidated civil action styled Central Arizona Water Conservation District v. United States, et al., and numbered CIV 95–625–TUC–WDB (EHC) and CIV 95–1720–PHX–EHC. (18)

Reservation

(A)

In general

The term reservation means the land within the exterior boundary of the White Mountain Indian Reservation established by the Executive order dated November 9, 1871, as modified by subsequent Executive orders and Acts of Congress— (i)known on the date of enactment of this Act as the Fort Apache Reservation pursuant to the Act of June 7, 1897 (30 Stat. 62, chapter 3); and (ii)generally depicted on the map attached to the Agreement as exhibit 2.81. (B)

No effect on dispute or as admission

The depiction of the reservation described in subparagraph (A)(ii) shall not— (i)be used to affect any dispute between the Tribe and the United States concerning the legal boundary of the reservation; and (ii)constitute an admission by the Tribe with regard to any dispute between the Tribe and the United States concerning the legal boundary of the reservation. (19)

Secretary

The term Secretary means the Secretary of the Interior. (20)

State

The term State means the State of Arizona. (21)

Tribal CAP water

The term tribal CAP water means the CAP water to which the Tribe is entitled pursuant to the Contract. (22)

Tribal water rights

The term tribal water rights means the water rights of the Tribe described in paragraph 4.0 of the Agreement. (23)

Tribe

The term Tribe means the White Mountain Apache Tribe organized under section 16 of the Act of June 18, 1934 (commonly known as the Indian Reorganization Act) (25 U.S.C. 476). (24)

Water right

The term water right means any right in or to groundwater, surface water, or effluent under Federal, State, or other law. (25)

WMAT rural water system

The term WMAT rural water system means the municipal, rural, and industrial water diversion, storage, and delivery system described in section 7. (26)

Year

The term year means a calendar year.

4.

Approval of Agreement

(a)

Approval

(1)

In general

Except to the extent that any provision of the Agreement conflicts with a provision of this Act, the Agreement is authorized, ratified, and confirmed. (2)

Amendments

Any amendment to the Agreement is authorized, ratified, and confirmed, to the extent that such an amendment is executed to ensure the Agreement is consistent with this Act. (b)

Execution of Agreement

To the extent that the Agreement does not conflict with this Act, the Secretary shall— (1)execute the Agreement (including signing any exhibit to the Agreement requiring the signature of the Secretary); and (2)execute any amendment to the Agreement necessary to ensure the Agreement is consistent with this Act. (c)

National Environmental Policy Act

(1)

Environmental compliance

In implementing the Agreement, the Secretary shall promptly comply with all applicable requirements 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.); (C)all other applicable environmental laws; and (D)all regulations promulgated under the laws described in subparagraphs (A) through (C). (2)

Execution of Agreement

(A)

In general

Execution of the Agreement by the Secretary under this section shall not constitute a major Federal action under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). (B)

Environmental compliance

The Secretary shall carry out all necessary environmental compliance required by Federal law in implementing the Agreement. (3)

Lead agency

The Bureau shall serve as the lead agency with respect to ensuring environmental compliance associated with the WMAT rural water system.

5.

Water rights

(a)

Rights held in trust

The tribal water rights shall be held in trust by the United States on behalf of Tribe. (b)

Reallocation

(1)

In general

In accordance with this Act and the Agreement, the Secretary shall reallocate to the Tribe, and offer to enter into a contract with the Tribe for the delivery in accordance with this section of— (A)an annual entitlement to 23,782 acre-feet per year of CAP water that has a non-Indian agricultural delivery priority (as defined in the Contract) in accordance with section 104(a)(1)(A)(iii) of the Arizona Water Settlements Act (Public Law 108–451; 118 Stat. 3488), of which— (i)3,750 acre-feet per year shall be firmed by the United States for the benefit of the Tribe for the 100-year period beginning on January 1, 2008, with priority equivalent to CAP M&I priority water, in accordance with section 105(b)(1)(B) of that Act (118 Stat. 3492); and (ii)3,750 acre-feet per year shall be firmed by the State for the benefit of the Tribe for the 100-year period beginning on January 1, 2008, with priority equivalent to CAP M&I priority water, in accordance with section 105(b)(2)(B) of that Act (118 Stat. 3492); and (B)an annual entitlement to 1,218 acre-feet per year of the water— (i)acquired by the Secretary through the permanent relinquishment of the Harquahala Valley Irrigation District CAP subcontract entitlement in accordance with the contract numbered 3–07–30–W0290 among the District, Harquahala Valley Irrigation District, and the United States; and (ii)converted to CAP Indian Priority water (as defined in the Contract) pursuant to the Fort McDowell Indian Community Water Rights Settlement Act of 1990 (Public Law 101–628; 104 Stat. 4480). (2)

Authority of Tribe

Subject to approval by the Secretary under section 6(a)(1), the Tribe shall have the sole authority to lease, distribute, exchange, or allocate the tribal CAP water described in paragraph (1). (c)

Water service capital charges

The Tribe shall not be responsible for any water service capital charge for tribal CAP water. (d)

Allocation and repayment

For the purpose of determining the allocation and repayment of costs of any stages of the CAP constructed after November 21, 2007, the costs associated with the delivery of water described in subsection (b), regardless of whether the water is delivered for use by the Tribe or in accordance with any assignment, exchange, lease, option to lease, or other agreement for the temporary disposition of water entered into by Tribe, shall be— (1)nonreimbursable; and (2)excluded from the repayment obligation of the District. (e)

Water code

Not later than 18 months after the enforceability date, the Tribe shall enact a water code that— (1)governs the tribal water rights; and (2)includes, at a minimum— (A)provisions requiring the measurement, calculation, and recording of all diversions and depletions of water on the reservation and on off-reservation trust land; (B)terms of a water conservation plan, including objectives, conservation measures, and an implementation timeline; (C)provisions requiring the approval of the Tribe for the severance and transfer of rights to the use of water from historically irrigated land identified in paragraph 11.3.2.1 of the Agreement to diversions and depletions on other non-historically irrigated land not located on the watershed of the same water source; and (D)provisions requiring the authorization of the Tribe for all diversions of water on the reservation and on off-reservation trust land by any individual or entity other than the Tribe.

6.

Contract

(a)

In general

The Secretary shall enter into the Contract, in accordance with the Agreement, to provide, among other things, that— (1)the Tribe, on approval of the Secretary, may— (A)enter into contracts or options to lease or exchange tribal CAP water in Maricopa, Pinal, and Pima Counties in the State providing for the temporary delivery to any individual or entity of any portion of the tribal CAP water, subject to the condition that— (i)the term of the contract or option to lease shall not be longer than 100 years; (ii)the contracts or options to exchange shall be for the term provided in the contract or option; and (iii)a lease or option to lease providing for the temporary delivery of tribal CAP water shall require the lessee to pay to the Operating Agency all CAP fixed OM&R charges and all CAP pumping energy charges (as defined in the repayment stipulation) associated with the leased water; and (B)renegotiate any lease at any time during the term of the lease, subject to the condition that the term of the renegotiated lease shall not exceed 100 years; (2)no portion of the tribal CAP water may be permanently alienated; (3)(A)the Tribe (and not the United States in any capacity) shall be entitled to all consideration due to the Tribe under any contract or option to lease or exchange tribal CAP water entered into by the Tribe; and (B)the United States (in any capacity) has no trust or other obligation to monitor, administer, or account for, in any manner— (i)any funds received by the Tribe as consideration under a contract or option to lease or exchange tribal CAP water; or (ii)the expenditure of those funds; (4)(A)all tribal CAP water shall be delivered through the CAP system; and (B)if the delivery capacity of the CAP system is significantly reduced or anticipated to be significantly reduced for an extended period of time, the Tribe shall have the same CAP delivery rights as a CAP contractor or CAP subcontractor that is allowed to take delivery of water other than through the CAP system; (5)the Tribe may use tribal CAP water on or off the reservation for any purpose; (6)as authorized by subsection (f)(2)(A) of section 403 of the Colorado River Basin Project Act (43 U.S.C. 1543) and to the extent that funds are available in the Lower Colorado River Basin Development Fund established by subsection (a) of that section, the United States shall pay to the Operating Agency the CAP fixed OM&R charges associated with the delivery of tribal CAP water (except in the case of tribal CAP water leased by any individual or entity); (7)the Secretary shall waive the right of the Secretary to capture all return flow from project exchange water flowing from the exterior boundary of the reservation; and (8)no CAP water service capital charge shall be due or payable for the tribal CAP water, regardless of whether the water is delivered for use by the Tribe or pursuant to a contract or option to lease or exchange tribal CAP water entered into by the Tribe. (b)

Requirements

The Contract shall be— (1)for permanent service (within the meaning of section 5 of the Boulder Canyon Project Act (43 U.S.C. 617d)); and (2)without limit as to term. (c)

Ratification

(1)

In general

Except to the extent that any provision of the Contract conflicts with a provision of this Act, the Contract is authorized, ratified, and confirmed. (2)

Amendments

Any amendment to the Contract is authorized, ratified, and confirmed, to the extent that such an amendment is executed to ensure the Contract is consistent with this Act. (d)

Execution of Contract

To the extent that the Contract does not conflict with this Act, the Secretary shall execute the Contract. (e)

Payment of charges

The Tribe, and any recipient of tribal CAP water through a contract or option to lease or exchange, shall not be obligated to pay a water service capital charge or any other charge, payment, or fee for CAP water, except as provided in an applicable lease or exchange agreement. (f)

Prohibitions

(1)

Use outside State

No tribal CAP water may be leased, exchanged, forborne, or otherwise transferred by the Tribe in any way for use directly or indirectly outside the State. (2)

Use off reservation

Except as authorized by this section and paragraph 4.7 of the Agreement, no tribal water rights under this Act may be sold, leased, transferred, or used outside the boundaries of the reservation or off-reservation trust land other than pursuant to an exchange. (3)

Agreements with Arizona Water Banking Authority

Nothing in this Act or the Agreement limits the right of the Tribe to enter into an agreement with the Arizona Water Banking Authority established by section 45–2421 of the Arizona Revised Statutes (or any successor entity), in accordance with State law. (g)

Leases

(1)

In general

To the extent the leases of tribal CAP Water by the Tribe to the District and to any of the cities, attached as exhibits to the Agreement, are not in conflict with the provisions of this Act— (A)those leases are authorized, ratified, and confirmed; and (B)the Secretary shall execute the leases. (2)

Amendments

To the extent that amendments are executed to make the leases described in paragraph (1) consistent with this Act, those amendments are authorized, ratified, and confirmed.

7.

Authorization of the rural water system

(a)

In general

Subject to the availability of appropriations, the Secretary, acting through the Bureau, shall plan, design, construct, operate, maintain, replace, and rehabilitate the WMAT rural water system as generally described in the project extension report dated February 2007. (b)

Components

The WMAT rural water system under subsection (a) shall consist of— (1)a dam and storage reservoir, pumping plant, and treatment facilities located along the North Fork White River near the community of Whiteriver; (2)pipelines extending from the water treatment plants to existing water distribution systems serving the Whiteriver, Carrizo, and Cibecue areas, together with other communities along the pipeline; (3)connections to existing distribution facilities, including public and private water systems in existence on the date of enactment of this Act; (4)appurtenant buildings and access roads; (5)electrical power transmission and distribution facilities necessary for services to rural water system facilities; (6)all property and property rights necessary for the facilities described in this subsection; and (7)such other project components as the Secretary determines to be appropriate to meet the water supply, economic, public health, and environmental needs of the portions of the reservation served by the WMAT rural water system, including water storage tanks, water lines, and other facilities for the Tribe and the villages and towns on the reservation. (c)

Service area

The service area of the WMAT rural water system shall be as described in the Project Extension report dated February 2007. (d)

Construction requirements

The components of the WMAT rural water system shall be planned and constructed to a size that is sufficient to meet the municipal, rural, and industrial water supply requirements of the WMAT rural water system service area during the period beginning on the date of enactment of this Act and ending not earlier than December 31, 2040. (e)

Title

Title to the WMAT rural water system shall be held in trust by the United States in its capacity as trustee for the Tribe. (f)

Technical assistance

The Secretary shall provide such technical assistance as is necessary to enable the Tribe to plan, design, construct, operate, maintain, and replace the WMAT rural water system, including operation and management training. (g)

Applicability of ISDEAA

Planning, design, construction, operation, maintenance, rehabilitation, and replacement of the WMAT rural water system on the reservation shall be subject to the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.). (h)

Condition

As a condition of construction of the facilities authorized by this section, the Tribe shall provide, at no cost to the Secretary, all land or interests in land, as appropriate, that the Secretary identifies as being necessary for those facilities.

8.

Outdoor recreation facilities, national fish hatcheries, and existing irrigation systems

(a)

In general

Subject to the availability of appropriations, on request of the Tribe, the Secretary shall provide financial and technical assistance to complete the Hawley Lake, Horseshoe Lake, Reservation Lake, Sunrise Lake, and Big and Little Bear Lake reconstruction projects and facilities improvements, as generally described in the Bureau report entitled White Mountain Apache Tribe Recreation Planning Study—April 2003. (b)

Alchesay Williams Creek National Fish Hatchery Complex

(1)

In general

Subject to the availability of appropriations, the Secretary shall operate, maintain, rehabilitate, and upgrade the Alchesay-Williams Creek National Fish Hatchery Complex on the reservation for the continued general and primary benefit of the Tribe and the White Mountain region. (2)

Complex rehabilitation

The rehabilitation of, and upgrades to, the complex described in paragraph (1) shall include— (A)raceway construction and rehabilitation, water quality improvements, a water recirculation system, supplemental water treatment capability, equipment acquisition, and building rehabilitation; and (B)capital improvement and deferred maintenance facility needs identified in the reports of the United States Fish and Wildlife Service entitled Facilities Needs Assessment and Merrick Report and dated September 2000, as updated through 2008. (c)

Tribe fishery center

Subject to the availability of appropriations, the Secretary shall plan, design, construct, operate, maintain, rehabilitate, and replace a fish grow-out facility, to be known as the WMAT Fishery Center, on the west side of the reservation for the benefit of the Tribe, consisting of— (1)a 10,000-square foot indoor facility; (2)circular fiberglass tanks; (3)plumbing and required equipment; (4)collection and conveyance water systems; and (5)raceways and ponds. (d)

Sunrise ski park snow-making infrastructure

Subject to the availability of appropriations, the Secretary shall plan, design, and construct snow-making capacity and infrastructure for Sunrise Ski Park, consisting of— (1)enlargement of Ono Lake; (2)replacement of snow-making infrastructure, as necessary; and (3)expansion of snow-making infrastructure and capacity to all ski runs on Sunrise Peak, Apache Peak, and Cyclone Peak. (e)

Existing irrigation system rehabilitation

Subject to the availability of appropriations, the Secretary shall operate, maintain, rehabilitate, and upgrade the Canyon Day and other historic irrigation systems on the reservation for the continued general and primary benefit of the Tribe. (f)

Applicability of ISDEAA

Planning, design, construction, operation, maintenance, rehabilitation, replacement, and upgrade of the projects identified in this section shall be subject to the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.).

9.

Feasibility study of needed forest products improvements

(a)

Feasibility study

Subject to the availability of appropriations, on receipt of a request by the Tribe and pursuant to the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.), the Secretary shall conduct a feasibility study of options for— (1)improving the manufacture and use of timber products derived from commercial forests on the reservation; and (2)improving forest management practices, consistent with sustained yield principles for multipurpose forest uses, healthy forest initiatives, and other applicable law to supply raw materials for future manufacture and use. (b)

Report

Not later than 2 years after the date of enactment of this Act, the Secretary, with concurrence of the tribal council of the Tribe, shall submit to Congress a report describing the results of the feasibility study under subsection (a), including recommendations of the Secretary, if any, for the improvements described in that subsection. (c)

Implementation

Subject to the availability of appropriations, the Secretary shall plan, design, and construct the improvements recommended under subsection (b).

10.

Recreation impoundments and related facilities

Subject to the availability of appropriations, on receipt of a request by the Tribe and pursuant to the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.), the Secretary shall— (1)conduct a feasibility study of recreation impoundments throughout the reservation; (2)develop recommendations for the implementation, by not later than 1 year after the date of enactment of this Act, of feasible recreation impoundments; and (3)plan, design, and construct any recommended recreation impoundments and related recreation facilities.

11.

Satisfaction of claims

(a)

In general

The benefits realized by the Tribe and its members under this Act shall be in full satisfaction of all claims of the Tribe and its members for water rights and injury to water rights, except as set forth in the Agreement, under Federal, State, or other law with respect to the reservation and off-reservation trust land. (b)

Uses of water

All uses of water on lands outside of the reservation, if and when such lands are subsequently and finally determined to be part of the reservation through resolution of any dispute between the Tribe and the United States over the location of the reservation boundary, and any fee lands within the reservation put into trust and made part of the reservation, shall be subject to the maximum annual diversion amounts and the maximum annual depletion amounts specified in the Agreement. (c)

No recognition of water rights

Notwithstanding subsection (a), nothing in this Act has the effect of recognizing or establishing any right of a member of the Tribe to water on the reservation.

12.

Waiver and release of claims

(a)

In general

– (1)

Claims against the State and others

–Except as provided in subparagraph 12.6 of the Agreement, the Tribe, on behalf of itself and its members, and the United States, acting in its capacity of trustee for the Tribe and its members as part of the performance of their obligations under the Agreement, are authorized to execute a waiver and release of any claims against the State (or any agency or political subdivision of the State), or any other person, entity, corporation, or municipal corporation under Federal, State, or other law for all— (A)(i)past, present, and future claims for water rights for the reservation and off-reservation trust land arising from time immemorial and, thereafter, forever; and (ii)past, present, and future claims for water rights arising from time immemorial and, thereafter, forever, that are based upon aboriginal occupancy of land by the Tribe, its members, or their predecessors; (B)(i)past and present claims for injury to water rights for the reservation and off-reservation trust land arising from time immemorial through the enforceability date; (ii)past, present, and future claims for injury to water rights arising from time immemorial and, thereafter, forever, that are based upon aboriginal occupancy of land by the Tribe and its members, or their predecessors; and (iii)claims for injury to water rights arising after the enforceability date for the reservation and off-reservation trust land resulting from off-reservation diversion or use of water in a manner not in violation of the Agreement or State law; and (C)past, present, and future claims arising out of or relating in any manner to the negotiation or execution of the Agreement or the negotiation or enactment of this Act. (2)

Claims against Tribe

Except as provided in subparagraph 12.8 of the Agreement, the United States, in all its capacities (except as trustee for an Indian tribe other than the Tribe), as part of the performance of its obligations under the Agreement, is authorized to execute a waiver and release of any and all claims against the Tribe, its members, or any agency, official, or employee of the Tribe, under Federal, State, or any other law for all— (A)past and present claims for injury to water rights resulting from the diversion or use of water on the reservation and on off-reservation trust land arising from time immemorial through the enforceability date; (B)claims for injury to water rights arising after the enforceability date resulting from the diversion or use of water on the reservation and on off-reservation trust land in a manner not in violation of the Agreement; and (C)past, present, and future claims arising out of or related in any manner to the negotiation or execution of the Agreement or the negotiation or enactment of this Act. (3)

Claims against the United States

Except as provided in subparagraph 12.7 of the Agreement, the Tribe, on behalf of itself and its members, as part of the performance of its obligations under the Agreement, is authorized to execute a waiver and release of any claim against the United States, including agencies, officials, or employees thereof (except in the United States capacity as trustee for other tribes), under Federal, State, or other law for any and all— (A)(i)past, present, and future claims for water rights for the reservation and off-reservation trust land arising from time immemorial and, thereafter, forever; and (ii)past, present, and future claims for water rights arising from time immemorial and, thereafter, forever, that are based on aboriginal occupancy of land by the Tribe and its members, or their predecessors; (B)(i)past and present claims relating in any manner to damages, losses, or injuries to water, water rights, land, or other resources due to loss of water or water rights (including but not limited to damages, losses or injuries to hunting, fishing, gathering, or cultural rights due to loss of water or water rights; claims relating to interference with, diversion or taking of water; or claims relating to failure to protect, acquire, or develop water, water rights or water infrastructure) within the reservation and off-reservation trust land that first accrued at any time prior to the enforceability date; (ii)past, present, and future claims for injury to water rights arising from time immemorial and, thereafter, forever, that are based on aboriginal occupancy of land by the Tribe and its members, or their predecessors; and (iii)claims for injury to water rights arising after the enforceability date for the reservation and off-reservation trust land resulting from the off-reservation diversion or use of water in a manner not in violation of the Agreement or applicable law; (C)past, present, and future claims arising out of or relating in any manner to the negotiation or execution of the Agreement or the negotiation or enactment of this Act; (D)past and present claims relating in any manner to the litigation of claims relating to the Tribe’s water rights for the reservation and off-reservation trust land that first accrued at any time prior to the enforceability date; (E)past and present claims relating to the failure to maintain existing irrigation systems on the reservation constructed prior to the enforceability date that first accrued at any time prior to the enforceability date, which waiver shall only become effective upon the full appropriation and payment of such funds authorized by section 16(c)(4) to the Tribe; (F)future claims relating to operation, maintenance, and replacement of the WMAT rural water system, which waiver shall only become effective upon the full appropriation of funds authorized by section 16(b) and their deposit into the Rural Water System OM&R Fund; and (G)past, present, and future breach of trust and negligence claims for damage to the natural resources of the Tribe caused by riparian and other vegetative manipulation, including over-cutting of forest resources by the United States for the purpose of increasing water runoff from the reservation. (4)

No waiver of claims

Nothing in this subsection waives any claim of the Tribe against the United States for future takings by the United States of reservation land or off-reservation trust land or property rights appurtenant to those lands, including any water rights set forth in paragraph 4.0 of the Agreement. (b)

Effectiveness of waiver and releases

Except where otherwise specifically provided in subparagraphs (E) and (F) of subsection (a)(3), the waivers and releases under subsection (a) shall become effective on the enforceability date. (c)

Enforceability date

(1)

In general

This section takes effect on the date on which the Secretary publishes in the Federal Register a statement of findings that— (A)to the extent the Agreement conflicts with this Act, the Agreement has been revised through an amendment to eliminate the conflict and the Agreement, so revised, has been executed by the Secretary, the Tribe and the Governor of the State; (B)the Secretary has fulfilled the requirements of sections 5 and 6; (C)the funds authorized in section 13 and 16(a) have been appropriated and deposited in the Rural Water Construction Fund; (D)the State funds described in subparagraph 13.3 of the Agreement have been deposited in the Rural Water Construction Fund; (E)the Secretary has issued a record of decision approving the construction of the WMAT rural water system in a configuration substantially similar to that described in section 7; and (F)the judgments and decrees substantially in the form of those attached to the Agreement as exhibits 12.9.6.1 and 12.9.6.2 have been approved by the respective trial courts. (2)

Failure of enforceability date to occur

If, because of the failure of the enforceability date to occur by October 31, 2013, this section does not become effective, the Tribe and its members, and the United States, acting in the capacity of trustee for the Tribe and its members, shall retain the right to assert past, present, and future water rights claims and claims for injury to water rights for the reservation and off-reservation trust land. (3)

No rights to water

Other than the tribal water rights, upon the occurrence of the enforceability date, all land held by the United States in trust for the Tribe and its members shall have no rights to water other than those specifically quantified for the Tribe and the United States, acting in the capacity of trustee for the Tribe and its members for the reservation and off-reservation trust land pursuant to paragraph 4.0 of the Agreement. (d)

United States Enforcement Authority

Nothing in this Act or the Agreement affects any right of the United States to take any action, including environmental actions, under any laws (including regulations and the common law) relating to human health, safety, or the environment.

13.

Loan to Tribe

(a)

In general

Subject to the availability of appropriations, not later than 90 days after the date on which appropriations are made available to carry out this section, the Secretary shall provide to the Tribe a loan in an amount of $90,200,000 for the construction of the WMAT rural water system. (b)

Terms and conditions

(1)

Interest; term

The loan provided under subsection (a) shall— (A)bear interest at a rate of 0 percent; and (B)be repaid over a term of 13 years. (2)

Funds for repayment

(A)

In general

For each of fiscal years 2014 through 2025, in lieu of direct repayment by the Tribe of the loan provided under subsection (a), the amount described in subparagraph (B) shall be credited toward repayment of the loan. (B)

Description of amount

The amount referred to in subparagraph (A) is an amount in the Lower Colorado River Basin Development Fund under section 403(f)(2)(D)(vi) of the Colorado River Basin Project Act (43 U.S.C. 1543(f)(2)(D)(vi)) equal to— (i)for fiscal year 2014, $6,200,000; (ii)for each of fiscal years 2015 through 2024, $8,000,000; and (iii)for fiscal year 2025, $4,000,000. (3)

Repayment of loan for the planning, engineering, and design of the WMAT rural water system

(A)

In general

For each of fiscal years 2013 and 2014, in lieu of direct repayment by the Tribe of the loan authorized in Public Law ___, the amount described in subparagraph (B) shall be credited toward repayment of the loan. (B)

Description of amount

The amount referred to in subparagraph (A) is a portion of the funds in the Lower Colorado River Basin Development Fund pursuant to section 403(f)(2)(D)(vi) of the Colorado River Basin Project Act (43 U.S.C. 1543(f)(2)(D)(vi)) equal to— (i)for fiscal year 2013, $8,000,000; and (ii)for fiscal year 2014, $1,800,000. (C)

Treatment

Each credit under this paragraph shall be considered to be funds used in furtherance of the Agreement.

14.

Trust funds

(a)

Establishment

There is established in the Treasury of the United States— (1)a fund to be known as the Rural Water System Construction Fund, consisting of— (A)the funds made available under section 13; (B)the amounts appropriated to the fund pursuant to section 16(a); and (C)the funds provided in subparagraph 13.3 of the Agreement; and (2)a fund to be known as the Rural Water System OM&R Fund, consisting of amounts appropriated to the fund pursuant to section 16(b). (b)

Management

The Secretary shall manage the Rural Water System Construction Fund and the Rural Water System OM&R Fund, including by— (1)making investments from the funds; and (2)distributing amounts from the funds to the Tribe, in accordance with the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.). (c)

Investment of funds

The Secretary shall invest amounts in the funds in accordance with— (1)the Act of April 1, 1880 (25 U.S.C. 161); (2)the first section of the Act of June 24, 1938 (25 U.S.C. 162a); (3)subsection (b); (4)the obligations of Federal corporations and Federal Government-sponsored entities the charter documents of which provide that the obligations of the entities are lawful investments for federally managed funds, including— (A)the obligations of the United States Postal Service described in section 2005 of title 39, United States Code; (B)bonds and other obligations of the Tennessee Valley Authority described in section 15d of the Tennessee Valley Authority Act of 1933 (16 U.S.C. 831n–4); (C)mortgages, obligations, and other securities of the Federal Home Loan Mortgage Corporation described in section 303 of the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1452); and (D)bonds, notes, and debentures of the Commodity Credit Corporation described in section 4 of the Act of March 8, 1938 (15 U.S.C. 713a–4); and (5)the obligations referred to in section 201 of the Social Security Act (42 U.S.C. 401). (d)

Expenditures and withdrawals

(1)

Tribal management plans

(A)

In general

The Tribe may withdraw any portion of the Rural Water System Construction Fund or the Rural Water System OM&R Fund on approval by the Secretary of a tribal management plan under 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 that Act (25 U.S.C. 4001 et seq.), the tribal management plan shall require that the Tribe shall— (i)use amounts in the Rural Water System Construction Fund only for the planning, design, and construction of the rural water system, including such sums as are necessary— (I)for the Bureau to carry out oversight of the planning, design, and construction of the rural water system; and (II)to carry out all required environmental compliance activities associated with the planning, design, and construction of the rural water system; and (ii)use amounts in the Rural Water System OM&R Fund only for the operation, maintenance, and replacement costs associated with the delivery of water through the rural water system. (2)

Enforcement

The Secretary may pursue such judicial remedies and carry out such administrative actions as are necessary to enforce the tribal management plan to ensure that amounts in the Rural Water System Construction Fund and the Rural Water System OM&R Fund are used in accordance with this section. (3)

Liability

On withdrawal by the Tribe of amounts in the Rural Water System Construction Fund or the Rural Water System OM&R Fund, the Secretary and the Secretary of the Treasury shall not retain liability for the expenditure or investment of those amounts. (4)

Expenditure plan

(A)

In general

The Tribe shall submit to the Secretary for approval an expenditure plan for any portion of the amounts in the funds under this section that the Tribe does not withdraw pursuant to this subsection. (B)

Description

The expenditure plan shall describe the manner in which, and the purposes for which, the amounts remaining in the funds will be used. (C)

Approval

The Secretary shall approve an expenditure plan under this paragraph if the Secretary determines that the plan is— (i)reasonable; and (ii)consistent with this Act. (5)

Annual reports

The Tribe shall submit to the Secretary an annual report that describes each expenditure from the Rural Water System Construction Fund and the Rural Water System OM&R Fund during the year covered by the report. (e)

Prohibition on per capita distributions

No amount of the principal, or the interest or income accruing on the principal, of the Rural Water System Construction Fund or the Rural Water System OM&R Fund shall be distributed to any member of the Tribe on a per capita basis. (f)

Funds not available until enforceability date

Amounts in the Rural Water System Construction Fund and the Rural Water System OM&R Fund shall not be available for expenditure or withdrawal by the Tribe until the enforceability date.

15.

Miscellaneous provisions

(a)

Limited waiver of sovereign immunity

(1)

In general

In the case of a civil action described in paragraph (2)— (A)the United States or the Tribe, or both, may be joined in the civil action; and (B)any claim by the United States or the Tribe to sovereign immunity from the civil action is waived for the sole purpose of resolving any issue regarding the interpretation or enforcement of this Act or the Agreement. (2)

Description of civil action

A civil action referred to in paragraph (1) is a civil action filed— (A)by any party to the Agreement or signatory to an exhibit to the Agreement in a United States or State court that— (i)relates solely and directly to the interpretation or enforcement of this Act or the Agreement; and (ii)names as a party the United States or the Tribe; or (B)by a landowner or water user in the Gila River basin or Little Colorado River basin in the State that— (i)relates solely and directly to the interpretation or enforcement of paragraph 12.0 of the Agreement; and (ii)names as a party the United States or the Tribe. (b)

Effect of Act

Nothing in this Act quantifies or otherwise affects any water right or claim or entitlement to water of any Indian tribe, band, or community other than the Tribe. (c)

Limitation on liability of United States

(1)

In general

The United States shall have no trust or other obligation— (A)to monitor, administer, or account for, in any manner, any amount paid to the Tribe by any party to the Agreement other than the United States; or (B)to review or approve the expenditure of those funds. (2)

Indemnification

The Tribe shall indemnify the United States, and hold the United States harmless, with respect to any claim (including claims for takings or breach of trust) arising out of the receipt or expenditure of funds described in paragraph (1)(A). (d)

Applicability of Reclamation Reform Act

The Reclamation Reform Act of 1982 (43 U.S.C. 390aa et seq.) and any other acreage limitation or full-cost pricing provision under Federal law shall not apply to any individual, entity, or land solely on the basis of— (1)receipt of any benefit under this Act; (2)the execution of this Act; or (3)the use, storage, delivery, lease, or exchange of CAP water. (e)

Treatment of tribal water rights

The tribal water rights— (1)shall be held in trust by the United States in perpetuity; and (2)shall not be subject to forfeiture or abandonment. (f)

Secretarial power sites

The portions of the following named secretarial power site reserves that are located on the reservation shall be transferred and restored into the name of the Tribe: (1)Lower Black River (T. 3 N., R. 26 E.; T. 3 N., R. 27 E.). (2)Black River Pumps (T. 2 N., R. 25 E.; T. 2 N., R. 26 E.; T. 3 N., R. 26 E.). (3)Carrizo (T. 4 N., R. 20 E.; T. 4 N., R. 21 E.; T. 41/2 N., R. 19 E.; T. 41/2 N., R. 20 E.; T. 41/2 N., R. 21 E.; T. 5 N., R. 19 E.). (4)Knob (T. 5 N., R. 18 E.; T. 5 N., R. 19 E.). (5)Walnut Canyon (T. 5 N., R. 17 E.; T. 5 N., R. 18 E.). (6)Gleason Flat (T. 41/2 N., R. 16 E.; T. 5 N., R. 16 E.). (g)

No effect on future allocations

Water received under a lease or exchange of tribal CAP water under this Act shall not affect any future allocation or reallocation of CAP water by the Secretary. (h)

After-acquired trust lands

(1)

Requirement of Act of Congress

(A)

Legal title

After the enforceability date, if the Tribe seeks to have legal title to additional land in the State of Arizona located outside the exterior boundaries of the reservation taken into trust by the United States for its benefit, the Tribe may do so only pursuant to an Act of Congress specifically authorizing the transfer for the benefit of the Tribe. (B)

Exceptions

Subparagraph (A) shall not apply to— (i)restoration of land to the reservation subsequently and finally determined to be part of the reservation through resolution of any dispute between the Tribe and the United States over the location of the reservation boundary unless required by Federal law; or (ii)off-reservation trust land acquired prior to January 1, 2008. (2)

Water rights

(A)

In general

Under this section, after-acquired trust land outside the reservation shall not include federally reserved rights to surface water or groundwater. (B)

Restored land

Land restored to the reservation as the result of resolution of any reservation boundary dispute between the Tribe and the United States, or any fee simple land within the reservation that are placed into trust, shall have water rights pursuant to section 11(b). (3)

Acceptance of land in trust status

(A)

In general

If the Tribe acquires legal fee title to land that is located within the exterior boundaries of the reservation, the Secretary shall accept the land in trust status for the benefit of the Tribe in accordance with applicable Federal law (including regulations) for such real estate acquisitions. (B)

Reservation status

Land taken or held in trust by the Secretary under paragraph (3), or restored to the reservation as a result of resolution of a boundary dispute between the Tribe and the United States, shall be deemed to be part of the reservation.

16.

Authorization of appropriations

(a)

Rural water system

(1)

Planning, engineering, design, and construction

(A)

In general

There is authorized to be appropriated for the planning, engineering, design, and construction of the WMAT rural water system $126,193,000, as adjusted in accordance with subparagraph (B), less— (i)the amount of any loans authorized under section 13; and (ii)the funds to be provided under subparagraph 13.3 of the Agreement. (B)

Adjustments and inclusions

The amount authorized to be appropriated under subparagraph (A) shall— (i)be adjusted as may be required due to changes in construction costs of the rural water system, as indicated by engineering cost indices applicable to the types of planning, engineering, design, and construction occurring after October 1, 2007; and (ii)include such sums as are necessary for the Bureau to carry out oversight of activities for planning, design, and construction of the rural water system. (2)

Environmental compliance

There are authorized to be appropriated to the Secretary such sums as are necessary to carry out all required Federal environmental compliance activities associated with the planning, engineering, design, and construction of the rural water system. (b)

Rural water system OM&R

There is authorized to be appropriated $50,000,000 for the operation, maintenance, and replacement costs of the rural water system. (c)

Rehabilitation of recreation facilities, national fish hatcheries, and existing irrigation systems

There are authorized to be appropriated, for use in accordance with section 8— (1)$23,675,000 to complete the Hawley Lake, Horseshoe Lake, Reservation Lake, Sunrise Lake, and Big and Little Bear Lake reconstruction projects and facilities improvements; (2)$7,472,000 to the United States Fish and Wildlife Service for the rehabilitation and improvement of the Alchesay-Williams Creek National Fish Hatchery Complex; (3)$5,000,000 to the Bureau of Indian Affairs for the planning, design, and construction of the WMAT Fishery Center; and (4)for the rehabilitation of existing irrigation systems— (A)$950,000 for the Canyon Day irrigation system; and (B)$4,000,000 for the Historic irrigation system. (d)

Feasibility study of needed forest products improvements

There are authorized to be appropriated— (1)to the Bureau of Indian Affairs $1,000,000 to conduct a feasibility study of the rehabilitation and improvement of forest products manufacturing and forest management on the reservation in accordance with section 9; and (2)$24,000,000 to implement the recommendations developed under the study. (e)

Sunrise Ski Park snow-making infrastructure

There is authorized to be appropriated $25,000,000 for the planning, design, and construction of snow-making infrastructure, repairs, and expansion at Sunrise Ski Park in accordance with section 8. (f)

Recreation impoundments and related facilities

There is authorized to be appropriated $25,000,000 to carry out section 10. (g)

Environmental compliance

There are authorized to be appropriated to the Secretary such sums as are necessary to carry out all required environmental compliance activities associated with the Agreement and this Act. (h)

Cost indexing

The amounts authorized to be appropriated under this section shall be adjusted as appropriate, based on ordinary fluctuations in engineering cost indices applicable for the relevant types of construction, if any, during the period beginning on October 1, 2007, and ending on the date on which the amounts are made available. (i)

Emergency fund for Indian safety and health

Effective beginning on January 1, 2010, if the Secretary determines that, on an annual basis, the deadline described in section 12(c)(2) is not likely to be met because the funds authorized in sections 13 and 16(a) have not been appropriated and deposited in the Rural Water System Construction Fund, not more than $50,000,000 of the amounts in the Emergency Fund for Indian Safety and Health established by section 601(a) of the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008 (22 U.S.C. 7601 et seq.) shall be transferred to the Rural Water System Construction Fund.

17.

Antideficiency

The United States shall not be liable for failure to carry out any obligation or activity authorized to be carried out, subject to appropriations, under this Act (including any such obligation or activity under the Agreement) if adequate appropriations for that purpose are not provided by Congress.

18.

Repeal on failure of enforceability date

If the Secretary fails to publish in the Federal Register a statement of findings as required under section 12(c) by not later than October 31, 2013— (1)effective beginning on November 1, 2013— (A)this Act is repealed; and (B)any action carried out by the Secretary, and any contract entered into, pursuant to this Act shall be void; (2)any amounts appropriated under sections 13 and subsections (a) and (b) of section 16, together with any interest accrued on those amounts, shall immediately revert to the general fund of the Treasury; and (3)any amounts paid by the State in accordance with the Agreement, together with any interest accrued on those amounts, shall immediately be returned to the State.