II 111th CONGRESS 2d Session S. 2956 IN THE SENATE OF THE UNITED STATES January 26, 2010 Mrs. Boxer (for herself and Mrs. Feinstein) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs A BILL To authorize the Pechanga Band of Luiseno Mission Indians Water Rights Settlement, and for other purposes.

1.

Short title

(a)

Short title

This Act may be cited as the Pechanga Band of Luiseño Mission Indians Water Rights Settlement Act. (b)

Table of contents

The table of contents of this Act is as follows: Sec. 1. Short title. Sec. 2. Purposes. Sec. 3. Definitions. Sec. 4. Approval of the pechanga settlement agreement. Sec. 5. Tribal Water Right. Sec. 6. Satisfaction of claims. Sec. 7. Waiver of claims. Sec. 8. Water facilities. Sec. 9. Pechanga Settlement Fund. Sec. 10. Miscellaneous provisions. Sec. 11. Authorization of appropriations. Sec. 12. Repeal on failure of enforceability date.

2.

Purposes

The purposes of this Act are— (1)to achieve a fair, equitable, and final settlement of claims to water rights and certain claims for injuries to water rights in the Santa Margarita River Watershed for— (A)the Band; and (B)the United States acting in its capacity as trustee for the Band and Allottees; (2)to achieve a fair, equitable, and final settlement of certain claims by the Band against the United States; (3)to authorize, ratify, and confirm the Pechanga Settlement Agreement to be entered into by the Band, RCWD, EMWD, and the United States; (4)to authorize and direct the Secretary— (A)to execute the Pechanga Settlement Agreement; and (B)to take any other action necessary to carry out the Pechanga Settlement Agreement in accordance with this Act; and (5)to authorize the appropriation of funds necessary for the implementation of the Pechanga Settlement Agreement and this Act.

3.

Definitions

In this Act: (1)

Adjudication court

The term Adjudication Court means the U.S. District Court for the Southern District of California exercising continuing jurisdiction over the Adjudication Proceeding. (2)

Adjudication proceeding

The term Adjudication Proceeding means litigation initiated by the United States regarding relative water rights in the Santa Margarita River Watershed in United States v. Fallbrook Public Utility District et al., Civ. No. 3:51–cv–01247 (S.D.C.A.), including any litigation initiated to interpret or enforce the relative water rights in the Santa Margarita River Watershed pursuant to the Adjudication Court’s continuing jurisdiction over the Fallbrook Decree. (3)

AFY

The term AFY means acre-feet per year. (4)

Allottee

The term allottee means a person who holds a beneficial real property interest in an Indian allotment that is— (A)located within the Reservation; and (B)held in trust by the United States. (5)

Band

The term Band means the sovereign government of the Pechanga Band of Luiseño Mission Indians, which is organized under section 16 of the Act of June 18, 1934 (25 U.S.C. 476), acting on behalf of itself and its members. (6)

Brine disposal facility notice

The term Brine Disposal Facility Notice has the meaning set forth in section 5 of the Recycled Water Infrastructure Agreement. (7)

Claims

The term claims means rights, claims, demands, actions, compensation or causes of action whether known or unknown as of the date of the Pechanga Settlement Agreement. (8)

Demineralization and brine disposal project

The term Demineralization and Brine Disposal Project has the meaning set forth in section 1 of the Recycled Water Infrastructure Agreement. (9)

EMWD

The term EMWD means Eastern Municipal Water District, a municipal water district organized and existing in accordance with the Municipal Water District Law of 1911, Division 20 of the Water Code of the State of California, as amended. (10)

EMWD connection fee

The term EMWD Connection Fee has the meaning set forth in section 2.3(b) of the Extension of Service Area Agreement. (11)

Enforceability date

The term enforceability date means the date on which the Secretary publishes in the Federal Register the statement of findings described in section 7(f). (12)

ESAA capacity agreement

The term ESAA Capacity Agreement means the Agreement to Provide Capacity for Delivery of ESAA Water, among the Band, RCWD and the United States. (13)

ESAA water

The term ESAA Water means imported potable water that the Band receives from EMWD and MWD pursuant to the Extension of Service Area Agreement. (14)

Extension of service area agreement

The term Extension of Service Area Agreement means the Agreement for Extension of Existing Service Area, among the Band, EMWD, the United States and MWD for purposes of provision of water service by EMWD to a designated portion of the Reservation using water supplied by MWD. (15)

Fallbrook decree

The term Fallbrook Decree means the Modified Final Judgment And Decree, entered in the Adjudication Proceeding on April 6, 1966. The term Fallbrook Decree includes all court orders, interlocutory judgments and decisions supplemental to the Modified Final Judgment And Decree, including Interlocutory Judgment No. 30, Interlocutory Judgment No. 35, and Interlocutory Judgment No. 41. (16)

Indian tribe

The term Indian tribe has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b). (17)

Injury to water rights

The term Injury to Water Rights means an interference with, diminution of, or deprivation of water rights under Federal or State law. (18)

Interim capacity

The term Interim Capacity has the meaning set forth in section 1 of the ESAA Capacity Agreement. (19)

Interim capacity notice

The term Interim Capacity Notice has the meaning set forth in section 4(b) of the ESAA Capacity Agreement. (20)

MWD

The term MWD means the Metropolitan Water District of Southern California, a metropolitan water district organized and incorporated under the Metropolitan Water District Act of the State of California (Stats. 1969, Chapter 209, as amended). (21)

MWD connection fee

The term MWD Connection Fee has the meaning set forth in section 2.3(a) of the Extension of Service Area Agreement. (22)

Pechanga esaa delivery capacity account

The term Pechanga ESAA Delivery Capacity Account means the fund authorized by section 11(a)(2) of this Act. (23)

Pechanga recycled water infrastructure account

The term Pechanga Recycled Water Infrastructure Account means the fund authorized by section 11(a)(1) of this Act. (24)

Pechanga settlement agreement

The term Pechanga Settlement Agreement means that agreement, together with the exhibits thereto. The parties to the Pechanga Settlement Agreement are the Band, the United States on behalf of the Band, its members and allottees, RCWD and EMWD. (25)

Pechanga settlement fund

The term Pechanga Settlement Fund means the fund authorized by section 9 of this Act. (26)

Pechanga water code

The term Pechanga Water Code means a water code to be adopted by the Band in accordance with section 5(f). (27)

Pechanga water fund account

The term Pechanga Water Fund Account means the fund authorized by section 11(a)(3) of this Act. (28)

Permanent capacity

The term Permanent Capacity has the meaning set forth in section 1 of the ESAA Capacity Agreement. (29)

Permanent capacity notice

The term Permanent Capacity Notice has the meaning set forth in section 5(b) of the ESAA Capacity Agreement. (30)

RCWD

The term RCWD means the California water district organized pursuant to California Water code section 34000 et seq. and includes all real property owners for whom RCWD acts as an agent pursuant to an agency agreement. (31)

Recycled water infrastructure agreement

The term Recycled Water Infrastructure Agreement means the Agreement for Recycled Water Infrastructure among the Band, RCWD, and the United States. (32)

Recycled water transfer agreement

The term Recycled Water Transfer Agreement means the Recycled Water Transfer Agreement between the Band and RCWD. (33)

Reservation

The term Reservation means land depicted on the map attached to the Pechanga Settlement Agreement as exhibit I. The term Reservation is solely for the purposes of the Pechanga Settlement Agreement only, and not for any of the exhibits, and shall not be used for any other purpose. (34)

Santa margarita river watershed

The Santa Margarita River Watershed means the watershed that is the subject of the Adjudication Proceeding and the Fallbrook Decree. (35)

Secretary

The term Secretary means the Secretary of the United States Department of the Interior. (36)

State

The term State means the State of California. (37)

Storage pond

The term Storage Pond has the meaning set forth in section 1 of the Recycled Water Infrastructure Agreement. (38)

Tribal water right

The term Tribal Water Right means the water rights ratified, confirmed and declared to be valid for the benefit of the Band and allottees as specifically set forth and described in section 5 of the Act.

4.

Approval of the pechanga settlement agreement

(a)

In general

Except as modified by this Act, and to the extent the Pechanga Settlement Agreement does not conflict with this Act, the Pechanga Settlement Agreement is authorized, ratified, and confirmed. To the extent amendments are executed to make the Pechanga Settlement Agreement consistent with this Act, such amendments are also authorized, ratified, and confirmed. (b)

Execution of pechanga settlement agreement

To the extent that the Pechanga Settlement Agreement does not conflict with this Act, the Secretary is directed to and shall promptly execute the Pechanga Settlement Agreement, including all exhibits to or parts of the Pechanga Settlement Agreement requiring the signature of the Secretary. Nothing herein precludes the Secretary from approving modifications to exhibits to the Pechanga Settlement Agreement not inconsistent with this Act, to the extent such modifications do not otherwise require Congressional approval pursuant to the Trade and Intercourse Act, 25 U.S.C. 177, or pursuant to other Federal statute. (c)

Execution of extension of service area agreement, recycled water infrastructure agreement and ESAA capacity agreement

The Secretary shall execute the Extension of Service Area Agreement, the Recycled Water Infrastructure Agreement and the ESAA Capacity Agreement within 60 days of the enactment of this Act. Such agreements shall be effective and enforceable as between the parties to such agreements, except the United States, as from the date all parties thereto have executed such agreements. Such agreements shall be enforceable as to the United States only as from the enforceability date. (d)

National environmental policy act of 1969

(1)

Environmental compliance

In implementing the Pechanga Settlement Agreement, the Secretary shall promptly comply with all applicable aspects of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), and all other applicable environmental Acts and regulations. (2)

Execution of the pechanga settlement agreement

Execution of the Pechanga Settlement 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.). The Secretary is directed to carry out all Federal compliance necessary to implement the Pechanga Settlement Agreement. (3)

Lead agency

The Bureau of Reclamation shall be designated as the lead agency with respect to environmental compliance.

5.

Tribal Water Right

(a)

Intent of congress

It is the intent of Congress to provide to each allottee benefits that are equivalent to or exceed the benefits allottees currently possess, taking into consideration— (1)the potential risks, cost, and time delay associated with litigation that would be resolved by the Pechanga Settlement Agreement and this Act; (2)the availability of funding under this Act; (3)the availability of water from the Tribal Water Right and other water sources as set forth in the Pechanga Settlement Agreement; and (4)the applicability of section 7 of the Act of February 8, 1887 (25 U.S.C. 381), and this Act to protect the interests of allottees. (b)

Confirmation of tribal water right

(1)

In general

The Tribal Water Right is ratified, confirmed, and declared to be valid. (2)

Characteristics of tribal water right

The Tribal Water Right shall be equal to 4,994 AFY of water that is subject to the jurisdiction of the Adjudication Court. The priority date for 3,019 AFY of the Tribal Water Right shall be June 27, 1882. The priority date for 182 AFY of the Tribal Water Right shall be August 29, 1893. The priority date for 729 AFY of the Tribal Water Right shall be January 9, 1907. The priority date for 563 AFY of the Tribal Water Right shall be March 11, 1907. The priority date for 501 AFY of the Tribal Water Right shall be May 25, 1931. (3)

Use

Subject to the terms of the Pechanga Settlement Agreement, this Act and the Fallbrook Decree, the Band may use the Tribal Water Right for any purpose on the Reservation. (c)

Holding in trust

The Tribal Water Right shall be held in trust by the United States for the use and benefit of the Band, and the allottees in accordance with this section. (d)

Allottees

As specified in and provided for in this Act: (1)

Applicability of act of February 8, 1887

The provisions of section 7 of the Act of February 8, 1887 (25 U.S.C. 381), relating to the use of water for irrigation purposes shall apply to the Tribal Water Right. (2)

Entitlement to water

Any entitlement to water of an allottee under Federal law for such allottee’s allotment shall be satisfied by the Band and no allottee shall have any additional entitlement to water except as set forth in the Pechanga Settlement Agreement and this Act. (3)

Exhaustion of remedies

Before asserting any claim against the United States under section 7 of the Act of February 8, 1887 (25 U.S.C. 381), or any other applicable law, an allottee shall exhaust remedies available under the Pechanga Water Code or other applicable tribal law. (4)

Claims

Following exhaustion of remedies available under the Pechanga Water Code or other applicable tribal law, an allottee may seek relief under section 7 of the Act of February 8, 1887 (25 U.S.C. 381), or other applicable law. (5)

Authority

The Secretary shall have the authority to protect allottees’ rights as specified in this section. (e)

Authority of band

(1)

In general

Except as provided in paragraph (2), the Band shall have authority to use, allocate, distribute, and lease the Tribal Water Right— (A)in accordance with the Pechanga Settlement Agreement; and (B)subject to approval of the Secretary of the Pechanga Water Code under section 5(f). (2)

Leases by allottees

Notwithstanding paragraph (1), an allottee may lease any interest in land held by the allottee, together with any water right determined to be appurtenant to the interest in land. (f)

Pechanga water code

(1)

In general

No later than eighteen (18) months following the enforceability date, the Band shall enact a Pechanga Water Code, that provides for— (A)the management, regulation and governance of all uses of the Tribal Water Right in accordance with the Pechanga Settlement Agreement; and (B)establishment by the Band of conditions, permit requirements, and other limitations relating to the storage, recovery, and use of the Tribal Water Right in accordance with the Pechanga Settlement Agreement. (2)

Inclusions

Subject to the approval of the Secretary, the Pechanga Water Code shall provide that— (A)tribal allocations of water to allottees shall be satisfied with water from the Tribal Water Right; (B)charges for delivery of water for irrigation purposes for allottees shall be assessed in accordance with section 7 of the Act of February 8, 1887 (25 U.S.C. 381); (C)there is a process by which an allottee may request that the Band provide water for irrigation use in accordance with this Act; (D)there is a due process system for the consideration and determination by the Band of any request by an allottee, or any successor in interest to an allottee, for an allocation of such water for irrigation purposes on allotted land, including a process for— (i)appeal and adjudication of any denied or disputed distribution of water; and (ii)resolution of any contested administrative decision; and (E)there is a requirement that any allottee with a claim relating to the enforcement of rights of the allottee under the Pechanga Water Code or relating to the amount of water allocated to land of the allottee must first exhaust remedies available to the allottee under tribal law and the Pechanga Water Code before initiating an action against the United States or petitioning the Secretary pursuant to subsection (d)(4). (3)

Action by secretary

(A)

In general

The Secretary shall administer the Tribal Water Right until the Pechanga Water Code is enacted in accordance with paragraph (1) and those provisions requiring approval pursuant to paragraph (2). (B)

Approval

The Pechanga Water Code shall not be valid unless— (i)the provisions of the Pechanga Water Code required by paragraph (2) are approved by the Secretary; and (ii)each amendment to the Pechanga Water Code that affects a right of an allottee is approved by the Secretary. (C)

Approval period

(i)

In general

Except as provided by clause (ii), if the Secretary does not approve or disapprove the Pechanga Water Code before the date that is 180 days after the date on which the Pechanga Water Code is submitted to the Secretary for approval, the Pechanga Water Code shall be considered to have been approved by the Secretary to the extent that it is not inconsistent with the Pechanga Settlement Agreement or this Act. (ii)

Mutual extension of approval period

The Pechanga Water Code may not be considered to have been approved by the Secretary under clause (i) if the Secretary and the Band agree to extend the approval period. (g)

Effect

Except as otherwise specifically provided in this section, nothing in this Act— (1)authorizes any action by an allottee against any individual or entity, or against the Band, under Federal, State, tribal, or local law; or (2)alters or affects the status of any action pursuant to section 1491(a) of title 28, United States Code.

6.

Satisfaction of claims

(a)

In general

The benefits provided to the Band and the allottees under the Pechanga Settlement Agreement and this Act shall satisfy all claims of the Band and the allottees waived pursuant to section 7. (b)

No recognition of water rights

Notwithstanding subsection (a) and except as provided in section 5(d), nothing in this Act recognizes or establishes any right of a member of the Band or an allottee to water within the Reservation.

7.

Waiver of claims

(a)

In general

(1)

Waiver of claims by the band and the united states

(A)Subject to the retention of rights set forth in subsection (c), notwithstanding any provisions to the contrary in the Pechanga Settlement Agreement, and in return for the ratification, confirmation and declaration to be valid of the Tribal Water Right and other benefits, including the commitments by RCWD and EMWD as set forth in the Pechanga Settlement Agreement and this Act, the Band, and the United States on behalf of the Band and allottees waive any and all of the following claims— (i)claims for water rights in the Santa Margarita River Watershed for lands located within the Reservation arising from time immemorial and, thereafter, forever; and (ii)claims for water rights in the Santa Margarita River Watershed that are based on aboriginal occupancy for lands overlying the Santa Margarita River Watershed arising from time immemorial and, thereafter, forever. (B)Subject to the retention of rights set forth in subsection (c), notwithstanding any provisions to the contrary in the Pechanga Settlement Agreement, and in return for the ratification, confirmation and declaration to be valid of the Tribal Water Right and other benefits, including the commitments by RCWD and EMWD as set forth in the Pechanga Settlement Agreement and this Act, the Band and the United States on behalf of the Band and allottees fully release, acquit and discharge RCWD and EMWD from the following claims— (i)claims for Injuries to Water Rights in the Santa Margarita River Watershed for lands located within the Reservation arising or occurring at any time up to and including June 30, 2009; (ii)claims for Injuries to Water Rights in the Santa Margarita River Watershed for lands located within the Reservation arising or occurring at any time after June 30, 2009, resulting from the diversion or use of water in a manner not in violation of the Pechanga Settlement Agreement or this Act; (iii)claims for subsidence damage to land located within the Reservation arising or occurring at any time up to and including June 30, 2009; (iv)claims for subsidence damage arising or occurring after June 30, 2009, to lands located within the Reservation resulting from the diversion of underground water in a manner not in violation of the Pechanga Settlement Agreement or this Act; and (v)claims arising out of or relating in any manner to the negotiation or execution of the Pechanga Settlement Agreement or the negotiation or execution of this Act. (2)

Claims by the united states against the band

Subject to the retention of rights set forth in subsection (c), to the extent consistent with this Act, the United States, in all its capacities (except as trustee for an Indian tribe other than the Band), as part of the performance of obligations under the Pechanga Settlement Agreement, is authorized to execute a waiver and release of any and all claims against the Band, or any agency, official, or employee of the Band, under Federal, State, or any other law for— (A)claims for Injuries to Water Rights in the Santa Margarita River Watershed for lands located within the Reservation arising or occurring at any time up to and including June 30, 2009; (B)claims for Injuries to Water Rights in the Santa Margarita River Watershed for lands located within the Reservation arising or occurring at any time after June 30, 2009, resulting from the diversion or use of water in a manner not in violation this Agreement or the Act; (C)claims for subsidence damage to land located within the Reservation arising or occurring at any time up to and including June 30, 2009; (D)claims for subsidence damage arising or occurring after June 30, 2009, to lands located within the Reservation resulting from the diversion of underground water in a manner not in violation of this Agreement or the Act; and (E)claims arising out of or relating in any manner to the negotiation or execution of this Agreement or the negotiation or execution of the Act. (3)

Claims by the band against the united states

Subject to the retention of rights set forth in subsection (c), the Band, on behalf of itself and its members, is authorized to execute a waiver and release of— (A)all claims against the United States, its agencies, or employees relating to claims for water rights in or water of the Santa Margarita River Watershed or any other river systems outside of the Santa Margarita River Watershed that the United States acting in its capacity as trustee for the Band asserted, or could have asserted, in any proceeding, including but not limited to the Adjudication Proceeding; (B)all claims against the United States, its agencies, or employees relating to damages, losses, or injuries to water, water rights, land, or natural 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 water rights; or claims relating to failure to protect, acquire, replace, or develop water, water rights or water infrastructure) in the Santa Margarita River Watershed that first accrued at any time up to and including June 30, 2009; (C)all claims against the United States, its agencies, or employees encompassed within the case Pechanga Band of Luiseño Indians v. Salazar, Civ. No. 1:06–cv–02206 (D.D.C); (D)all claims against the United States, its agencies, or employees relating to the pending litigation of claims relating to the Band’s water rights in the Adjudication Proceeding; and (E)all claims against the United States, its agencies, or employees relating to the negotiation, execution or the adoption of the Pechanga Settlement Agreement, exhibits thereto, or this Act. (b)

Effectiveness of waivers and releases

The waivers under subsection (a) shall take effect on the enforceability date. (c)

Reservation of rights and retention of claims

Notwithstanding the waivers and releases authorized in this Act, the Band on behalf of itself and its members and the United States acting in its capacity as trustee for the Band retain— (1)claims for enforcement of the Pechanga Settlement Agreement and this Act; (2)claims against persons other than RCWD and EMWD; (3)claims for water rights that are outside the jurisdiction of the Adjudication Court; (4)claims for water rights for lands within the Santa Margarita River Watershed that are outside the Reservation; provided, however, that such claims are for water rights consistent with water rights recognized for such lands in the Fallbrook Decree; (5)rights to use and protect water rights acquired on or after the enforceability date; and (6)remedies, privileges, immunities, powers and claims, including claims for water rights, not specifically waived and released pursuant to this Act and the Pechanga Settlement Agreement. (d)

Effect of pechanga settlement agreement and act

Nothing in the Pechanga Settlement Agreement or this Act— (1)affects the ability of the United States acting in its sovereign capacity to take actions authorized by law, including but not limited to any laws relating to health, safety, or the environment, including but not limited to the Clean Water Act, the Safe Drinking Water Act, the Comprehensive Environmental Response, Compensation, and Liability Act, Resource Conservation and Recovery Act, and the regulations implementing such Acts; (2)affects the ability of the United States to take actions acting in its capacity as trustee for any other Indian tribe or allottee; (3)confers jurisdiction on any State court to— (A)interpret Federal law regarding health, safety, or the environment or determine the duties of the United States or other parties pursuant to such Federal law; or (B)conduct judicial review of Federal agency action; or (4)waives any claim of a member of the Band in an individual capacity that does not derive from a right of the Band. (e)

Tolling of claims

(1)

In general

Each applicable period of limitation and time-based equitable defense relating to a claim described in this section shall be tolled for the period beginning on the date of enactment of this Act and ending on the earlier of— (A)December 31, 2015; or (B)the enforceability date. (2)

Effects of subsection

Nothing in this subsection revives any claim or tolls any period of limitation or time-based equitable defense that expired before the date of enactment of this Act. (3)

Limitation

Nothing in this section precludes the tolling of any period of limitations or any time-based equitable defense under any other applicable law. (f)

Enforceability date

The enforceability date shall be the date on which the Secretary publishes in the Federal Register a statement of findings that— (1)the Pechanga Settlement Agreement has been approved by the Adjudication Court; (2)all funds authorized by this Act for such purpose have been deposited in the Pechanga Settlement Fund; (3)the waivers and releases authorized in subsection (a) have been executed by the Band and the Secretary; and (4)the Extension of Service Area Agreement has been approved and executed by all parties thereto and is effective and enforceable in accordance with its terms.

8.

Water facilities

(a)

In general

The Secretary shall, subject to the availability of appropriations, using funds from the designated accounts of the Pechanga Settlement Fund, provide the funds necessary to fulfill the Band’s obligations under the Recycled Water Infrastructure Agreement and the ESAA Capacity Agreement, in an amount not to exceed the amounts deposited in the designated accounts for such purposes, in accordance with this Act and the terms and conditions of such agreements. (b)

Non-Reimbursability

The funds provided by the Secretary pursuant to subsection (a) shall be non-reimbursable. (c)

Recycled water infrastructure

(1)

In general

The Secretary shall, using funds from the Pechanga Recycled Water Infrastructure Account, provide funds for the Storage Pond and the Demineralization and Brine Disposal Project in accordance with this section. (2)

Storage pond

The Secretary shall, subject to the availability of appropriations, provide the funding necessary to fulfill the Band’s obligations under the Recycled Water Infrastructure Agreement for the design and construction of the Storage Pond, in an amount not to exceed $2,500,000, such amount to be adjusted for changes since June 30, 2009, in construction costs as indicated by engineering cost indices applicable to types of construction required to design and construct the Storage Pond. (A)The procedure for the Secretary to provide funds pursuant to this section shall be as set forth in the Recycled Water Infrastructure Agreement. (B)The Bureau of Reclamation shall be the lead agency for purposes of the implementation of this section. (C)The United States shall have no responsibility or liability for the Storage Pond to be designed and constructed by RCWD. (D)In the event that RCWD does not submit the Storage Pond Notice to the Band within 3 years after the enforceability date, the funds set aside within the Pechanga Recycled Water Infrastructure Account, including any interest that has accrued thereon, for purposes of the design and construction of the Storage Pond shall revert to the U.S. Treasury. (3)

Demineralization and brine disposal project

Upon receipt of a written request from the Band pursuant to section 5(c) of the Recycled Water Infrastructure Agreement, the Secretary, acting through the Bureau of Reclamation, shall enter into negotiations with RCWD and the Band to establish an agreement that will allow the Bureau of Reclamation to make payment directly to RCWD in the amount below. Upon execution of said agreement the Secretary shall, subject to the availability of appropriations, provide the funding necessary to fulfill the Band’s obligations under the Recycled Water Infrastructure Agreement for the design and construction of the Demineralization and Brine Disposal Project, in an amount not to exceed $4,460,000, such amount to be adjusted for changes since June 30, 2009, in construction costs as indicated by engineering cost indices applicable to types of construction required to design and construct the Demineralization and Brine Disposal Project. (A)The procedure for the Secretary to provide funds pursuant to this section shall be as set forth in the Recycled Water Infrastructure Agreement and the funding agreement required pursuant to section 8(c)(3). (B)The Bureau of Reclamation shall be the lead agency for purposes of the implementation of this section. (C)The United States shall have no responsibility or liability for the Demineralization and Brine Disposal Project to be designed and constructed by RCWD. (D)In the event that RCWD, the Band and the United States do not enter into the funding agreement required by section 8(c)(3) within 5 years after the enforceability date, the funds set aside within the Pechanga Recycled Water Infrastructure Account, including any interest that has accrued thereon, for purposes of the design and construction of the Demineralization and Brine Disposal Project shall be available for use by the Band to design and construct alternative demineralization and brine disposal facilities that will provide benefits and improvements in the quality of groundwater on the Reservation that are similar to those that the Band would have received had RCWD constructed the Demineralization and Brine Disposal Project. (d)

ESAA delivery capacity

(1)

In general

The Secretary shall, using funds from the Pechanga ESAA Delivery Capacity Account, provide funds for Interim Capacity and Permanent Capacity in accordance with this section. (2)

Interim capacity

The Secretary shall, subject to the availability of appropriations, using funds from the ESAA Delivery Capacity Account, provide the funding necessary to fulfill the Band’s obligations under the ESAA Capacity Agreement for the provision by RCWD of Interim Capacity to the Band in an amount not to exceed $1,000,000. (A)The procedure for the Secretary to provide funds pursuant to this section shall be as set forth in the ESAA Capacity Agreement. (B)The Bureau of Reclamation shall be the lead agency for purposes of the implementation of this section. (C)The United States shall have no responsibility or liability for the Interim Capacity to be provided by RCWD. (D)In the event that RCWD does not provide the Interim Capacity Notice required pursuant to the ESAA Capacity Agreement within 60 days after the date required under such agreement, the funds set aside in the Pechanga ESAA Delivery Capacity Account, including any interest that has accrued thereon, for purposes of the provision of Interim Capacity and Permanent Capacity shall be available for use by the Band to provide alternative interim capacity in a manner that is similar to the Interim Capacity and Permanent Capacity that the Band would have received had RCWD provided such Interim Capacity and Permanent Capacity. (3)

Permanent capacity

Upon receipt of the Permanent Capacity Notice pursuant to section 5(b) of the ESAA Capacity Agreement, the Secretary, acting through the Bureau of Reclamation, shall enter into negotiations with RCWD and the Band to establish an agreement that will allow for the disbursement of funds from the Pechanga ESAA Delivery Capacity Account in the amount below. Upon execution of said agreement the Secretary shall, subject to the availability of appropriations, using funds from the ESAA Delivery Capacity Account, provide the funding necessary to fulfill the Band’s obligations under the ESAA Capacity Agreement for the provision by RCWD of Permanent Capacity to Pechanga in an amount not to exceed $16,900,000, such amount to be adjusted for changes since June 30, 2009, in construction costs as indicated by engineering cost indices applicable to types of construction required to design and construct the Permanent Capacity. (A)The procedure for the Secretary to provide funds pursuant to this section shall be as set forth in the ESAA Capacity Agreement. (B)The Bureau of Reclamation shall be the lead agency for purposes of the implementation of this section. (C)The United States shall have no responsibility or liability for the Permanent Capacity to be provided by RCWD. (D)In the event that RCWD does not provide the Permanent Capacity Notice required pursuant to the ESAA Capacity Agreement within 5 years after the enforceability date, the funds set aside in the Pechanga ESAA Delivery Capacity Account, including any interest that has accrued thereon, for purposes of the provision of Permanent Capacity shall be available for use by the Band to provide alternative permanent capacity in a manner that is similar to the Permanent Capacity that the Band would have received had RCWD provided such Permanent Capacity.

9.

Pechanga Settlement Fund

(a)

Establishment

There is established in the Treasury of the United States the Pechanga Settlement Fund, consisting of such amounts as are deposited in the fund under subsections (a)(1), (a)(2), and (a)(3) of section 11. (b)

Accounts of pechanga settlement fund

The Secretary shall establish in the Pechanga Settlement Fund the following accounts: (1)Pechanga Recycled Water Infrastructure Account, consisting of amounts authorized pursuant to section 11(a)(1). (2)Pechanga ESAA Delivery Capacity Account, consisting of amounts authorized pursuant to section 11(a)(2). (3)Pechanga Water Fund Account, consisting of amounts authorized pursuant to section 11(a)(3). (c)

Deposits to pechanga settlement fund

(1)

In general

The Secretary of the Treasury shall promptly deposit in the Pechanga Settlement Fund any amounts appropriated for that purpose. (2)

Deposits to accounts

The Secretary of the Treasury shall deposit amounts in the accounts of the Pechanga Settlement Fund established under subsection (b). (d)

Management

(1)

In general

The Secretary shall manage the Pechanga Settlement Fund, make investments from the Pechanga Settlement Fund, and make monies available from the Pechanga Settlement Fund for distribution to the Band consistent with the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.) (referred to in this subsection as the Trust Fund Reform Act). (2)

Investment of pechanga settlement fund

Upon the enforceability date the Secretary shall invest amounts in the Pechanga Settlement Fund in accordance with— (A)the Act of April 1, 1880 (25 U.S.C. 161); (B)the first section of the Act of June 24, 1938 (25 U.S.C. 162a); (C)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— (i)the obligations of the United States Postal Service described in section 2005 of title 39, United States Code; (ii)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); (iii)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 (iv)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 (D)the obligations referred to in section 201 of the Social Security Act (42 U.S.C. 401). (3)

Distributions from pechanga settlement fund

(A)

In general

Funds from the Pechanga Settlement Fund shall be used for each purpose described in subparagraphs (B) through (D). (B)

Pechanga recycled water infrastructure account

The Pechanga Recycled Water Infrastructure Account shall be used for expenditures by the Band in accordance with section 8(c). (C)

Pechanga esaa delivery capacity account

The Pechanga ESAA Delivery Capacity Account shall be used for expenditures by the Band in accordance with section 8(d). (D)

Pechanga water fund account

The Pechanga Water Fund Account shall be used for— (i)payment of the EMWD Connection Fee; (ii)payment of the MWD Connection Fee; and (iii)any expenses, charges or fees incurred by the Band in connection with the delivery or use of water pursuant to the Pechanga Settlement Agreement. (4)

Withdrawals by band

(A)

In general

The Band may withdraw any portion of amounts in the Pechanga Settlement Fund on approval by the Secretary of a tribal management plan in accordance with the Trust Fund Reform Act. (B)

Requirements

(i)

In general

In addition to the requirements under the Trust Fund Reform Act, the tribal management plan of the Band under subparagraph (A) shall require that the Band spend any amounts withdrawn from the Pechanga Settlement Fund in accordance with this Act. (ii)

Enforcement

The Secretary may carry out such judicial or administrative actions as the Secretary determines to be necessary to enforce a tribal management plan to ensure that amounts withdrawn by the Band from the Pechanga Settlement Fund under this paragraph are used in accordance with this Act. (C)

Liability

The Secretary and the Secretary of the Treasury shall not be liable for the expenditure or investment of amounts withdrawn from the Pechanga Settlement Fund by the Band under this paragraph. (D)

Expenditure plan

(i)

In general

For each fiscal year, the Band shall submit to the Secretary for approval an expenditure plan for any portion of the amounts described in subparagraph (A) that the Band elects to withdraw under this paragraph during the fiscal year. (ii)

Inclusion

An expenditure plan under clause (i) shall include a description of the manner in which, and the purposes for which, funds of the Band remaining in the Pechanga Settlement Fund will be used during subsequent fiscal years. (iii)

Approval

On receipt of an expenditure plan under clause (i), the Secretary shall approve the plan if the Secretary determines that the plan is— (I)reasonable; and (II)consistent with this Act. (5)

Annual reports

The Band shall submit to the Secretary annual reports describing each expenditure by the Band of amounts in the Pechanga Settlement Fund during the preceding calendar year. (6)

Certain per capita distributions prohibited

No amount in the Pechanga Settlement Fund shall be distributed to any member of the Band on a per capita basis. (e)

Availability

The amounts in the Pechanga Settlement Fund shall be available for use by the Secretary and withdrawal by the Band beginning on the enforceability date.

10.

Miscellaneous provisions

(a)

Waiver of sovereign immunity by the united states

Except as provided in subsections (a) through (c) of section 208 of the Department of Justice Appropriation Act, 1953 (43 U.S.C. 666), nothing in this Act waives the sovereign immunity of the United States. (b)

Other tribes not adversely affected

Nothing in this Act quantifies or diminishes any land or water right, or any claim or entitlement to land or water, of an Indian tribe, band, or community other than the Band. (c)

Limitation on claims for reimbursement

With respect to Indian land within the Reservation— (1)the United States shall not submit against any Indian-owned land located within the Reservation any claim for reimbursement of the cost to the United States of carrying out this Act and the Pechanga Settlement Agreement; and (2)no assessment of any Indian-owned land located within the Reservation shall be made regarding that cost. (d)

Effect on current law

Nothing in this section affects any provision of law (including regulations) in effect on the day before the date of enactment of this Act with respect to preenforcement review of any Federal environmental enforcement action.

11.

Authorization of appropriations

(a)

Authorization of appropriations

(1)

Pechanga recycled water infrastructure account

There is authorized to be appropriated $6,960,000, such amount to be adjusted for changes since June 30, 2009, in construction costs as indicated by engineering cost indices applicable to types of construction required to design and construct the Storage Pond and the Demineralization and Brine Disposal Project for deposit into the Pechanga Recycled Water Infrastructure Account. (2)

Pechanga esaa delivery capacity account

There is authorized to be appropriated $17,900,000, such amount to be adjusted for changes since June 30, 2009, in construction costs as indicated by engineering cost indices applicable to types of construction required to provide the Interim Capacity and the Permanent Capacity for deposit into the Pechanga ESAA Delivery Capacity Account. (3)

Pechanga water fund account

There is authorized to be appropriated $25,382,000 for deposit into the Pechanga Water Fund Account for the purposes set forth in section 9(d)(3)(D).

12.

Repeal on failure of enforceability date

If the Secretary does not publish a statement of findings under section 7(f) by December 31, 2015— (1)this Act is repealed effective January 1, 2016, and any action taken by the Secretary and any contract or agreement pursuant to the authority provided under any provision of this Act shall be void; (2)any amounts appropriated under section 11, together with any interest on those amounts, shall immediately revert to the general fund of the Treasury; and (3)any amounts made available under section 11 that remain unexpended shall immediately revert to the general fund of the Treasury.