[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 9633 Introduced in House (IH)]
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117th CONGRESS
2d Session
H. R. 9633
To authorize Arizona Tribes to enter into lease or exchange agreements
and storage agreements relating to their decreed water entitlements as
a long-term source of water supply, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
December 20, 2022
Mr. O'Halleran introduced the following bill; which was referred to the
Committee on Natural Resources
_______________________________________________________________________
A BILL
To authorize Arizona Tribes to enter into lease or exchange agreements
and storage agreements relating to their decreed water entitlements as
a long-term source of water supply, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Arizona Tribes Water Marketing Act
of 2022''.
SEC. 2. FINDINGS.
Congress finds as follows:
(1) The entire American West and Southwest are facing
forecasts of prolonged droughts that will leave States and
Tribes facing major water shortages.
(2) Recent periods of drought in the American West have
also occurred with higher temperatures and reduced snowpack and
led to what climate scientists recently concluded was possibly
the most severe drought in over 1,200 years.
(3) The Colorado River has been under drought conditions
since 2000, most recently denoted as the most endangered river
in the United States, and the State of Arizona is in a ``mega-
drought'' according to climate scientists.
(4) The Secretary manages the lower Colorado River system
in accordance with Federal law including--
(A) the Boulder Canyon Project Act of 1928;
(B) the 1963 Decision of the U.S. Supreme Court in
Arizona v. California;
(C) the 2006 Consolidated Decree of the U.S.
Supreme Court in Arizona v. California;
(D) the Colorado River Basin Project Act of 1968;
(E) the Criteria for Coordinated Long-Range
Operation of Colorado River Reservoirs Pursuant to the
Colorado River Basin Project Act of September 30, 1968;
(F) the Grand Canyon Protection Act of 1992;
(G) the 2007 Interim Guidelines; and
(H) other applicable provisions of Federal law.
(5) The 2007 Interim Guidelines will expire in 2026. The 7
States that are within the Colorado River basin are re-
negotiating these guidelines with the Federal Government to
take account of current forecasts of available supply from the
Colorado River, which is dramatically reduced from what it had
been when the guidelines were adopted in 2007.
(6) Colorado River water that had been stored in Lake
Powell and Lake Mead has been gradually used up as the drought
has continued. Conservation of water supplies is for the
foreseeable future the only viable way to address water
shortage and water supplies from the Colorado River.
(7) While conservation is the current focus to address the
``mega-drought'' in the State of Arizona, additional efforts
should be made now to identify future long-term water supplies
to offset the reduced supplies available from the Colorado
River and other natural rivers and streams flowing in the
State.
(8) Congress recognizes that there are 22 Tribes in the
State of Arizona. Of those Tribes, some have judicially decreed
water entitlements decreed to them through various State and
Federal court decrees. Other Arizona Tribes have claims pending
for additional water entitlements, many of which will also
result in judicially decreed Tribal entitlements. These
judicially decreed Tribal entitlements to water are currently
not available as a potential water supply to offset the reduced
supplies available from the Colorado River and other natural
rivers and streams flowing in the State.
(9) Congress further recognizes that Arizona Tribes that
hold judicially decreed rights to water from the Colorado River
or other rivers and streams flowing in Arizona should be able
to enter into lease or exchange agreements and storage
agreements to make such decreed entitlements potentially
available to other water users in the State as part of a long-
term alternative supply.
(10) Making such judicially decreed Tribal water supplies
available as a long-term water supply should be considered and
implemented as part of a long-term strategy for addressing the
mega-drought in the Southwest, and should be considered as part
of the ongoing basin State re-negotiation of the 2007 Interim
Guidelines.
(11) In the meantime, to address the current crisis, all
parties with excess supplies of water should consider ways of
conserving those supplies through existing Federal and State
programs that provide for the conservation of such supplies for
the benefit of both Lake Mead and Lake Powell.
SEC. 3. PURPOSES.
The purposes of this Act are--
(1) to authorize Arizona Tribes to enter into Lease or
Exchange Agreements and Storage Agreements to make their
judicially decreed Tribal water entitlements available for use
off of their respective Reservations for their economic well-
being and for the benefit of their surrounding jurisdictions as
water supplies in Arizona become more scarce; and
(2) to authorize the Secretary to approve any Lease or
Exchange Agreements or Storage Agreements entered into by
Arizona Tribes pursuant to paragraph (1).
SEC. 4. DEFINITIONS.
In this Act:
(1) 2007 interim guidelines.--The term ``2007 Interim
Guidelines'' means The Final Environmental Impact Statement--
Colorado River Interim Guidelines for Lower Basin Shortages and
Coordinated Operations for Lake Powell and Lake Mead, dated
October 2007, prepared pursuant to the National Environmental
Policy Act of 1969, the Council on Environmental Quality's
Regulations for Implementing the Procedural Provisions of NEPA
(40 C.F.R. Parts 1500 through 1508), Department of the Interior
Policies, and the Bureau of Reclamation's NEPA Handbook.
(2) Allottee.--The term ``allottee'' means an individual
who holds a beneficial real property interest in an allotment
of Indian land that is--
(A) located within the exterior boundaries of a
Reservation; and
(B) held in trust by the United States.
(3) Arizona indian water settlement.--The term ``Arizona
Indian Water Settlement'' means an Indian water settlement for
an Indian Tribe located within the State that--
(A) has been approved and authorized by Congress;
and
(B) includes as part of the Indian Tribe's approved
and authorized entitlement a judicially decreed
entitlement to water for lands located within the
boundaries of the State.
(4) Arizona tribe.--The term ``Arizona Tribe'' means an
Indian Tribe with lands located within the State that has a
decreed water right.
(5) Decreed water right.--The term ``decreed water right''
means an entitlement to water included in any final decree
entered by a Federal court on behalf of an Arizona Tribe that
is appurtenant to lands located within such Arizona Tribe's
Reservation.
(6) Consumptive use.--The term ``Consumptive Use'' means--
(A) a portion of the decreed water right that has
been consumptively used by an Arizona Tribe within the
exterior boundary of its Reservation for a minimum of 4
of the 5 calendar years immediately preceding the year
of delivery of a portion of the decreed right according
to a Lease or Exchange Agreement or Storage Agreement;
and
(B) any verified reduction in Consumptive Use
pursuant to a System Conservation Agreement, a Lease or
Exchange Agreement, or Storage Agreement, or from the
creation of Intentionally Created Surplus, shall be
deemed to be a Consumptive Use in the year in which the
reduction occurred, if the reduction is reflected in
the Water Accounting Report.
(7) Intentionally created surplus or ics.--The term
``Intentionally Created Surplus'' or ``ICS'' means water that
is conserved to Lake Mead for future use by a water user
pursuant to the 2007 Interim Guidelines.
(8) Lease or exchange agreement.--The term ``Lease or
Exchange Agreement'' means an agreement to lease or exchange,
or an option to lease or exchange, a portion of the Consumptive
Use off of a Reservation.
(9) Lower basin.--The term ``Lower Basin'' has the meaning
given the term in article II(g) of the Colorado River Compact
of 1922, as approved by Congress in section 13 of the Boulder
Canyon Project Act (43 U.S.C. 617l), and by the Presidential
Proclamation of June 25, 1929 (46 Stat. 3000).
(10) Person.--The term ``person'' means an individual, a
public or private corporation, a company, a partnership, a
joint venture, a firm, an association, a society, an estate or
trust, a private organization or enterprise, the United States,
any Indian Tribe, a governmental entity, or a political
subdivision or municipal corporation organized under, or
subject to, the constitution and laws of the State.
(11) Reservation.--The term ``Reservation'' means the
reservation established for each Arizona Tribe but only as to
those reservation lands that are located in the State.
(12) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(13) State.--The term ``State'' means the State of Arizona.
(14) Storage.--The term ``storage'' means the underground
storage, in accordance with State law, of a portion of the
Consumptive Use off of the Reservation within the Lower Basin
in the State.
(15) Storage agreement.--The term ``Storage Agreement''
means an agreement, including with the Arizona Water Banking
Authority (or successor agency or entity), for the storage of a
portion of the Consumptive Use, or the water received under an
exchange pursuant to an Lease or Exchange Agreement, or more
underground storage facilities or groundwater savings
facilities located in the State.
(16) Water accounting report.--The term ``Water Accounting
Report'' means the annual report of the Bureau of Reclamation
entitled the ``Colorado River Accounting and Water Use Report:
Arizona, California, and Nevada''.
SEC. 5. LEASE OR EXCHANGE AGREEMENTS.
(a) Authorization.--Notwithstanding section 2116 of the Revised
Statutes (commonly known as the ``Indian Trade and Intercourse Act'';
25 U.S.C. 177) or any other provision of law, beginning on January 1,
2026, each Arizona Tribe is authorized to, subject to the approval of
the Secretary under section 7(a), and has the sole authority to, enter
into, with any person, a Lease or Exchange Agreement, on the condition
that the use off of the Reservation is located in the Lower Basin in
the State and is not in Navajo, Apache, or Cochise counties.
(b) Term of Lease or Exchange Agreement.--The term of any Lease or
Exchange Agreement entered into under subsection (a) shall be mutually
agreed, except that the term shall not exceed 100 years.
(c) Modifications.--Any Lease or Exchange Agreement entered into
under subsection (a) may be renegotiated or modified at any time during
the term of the Lease or Exchange Agreement, subject to the approval of
the Secretary under section 7(a), on the condition that the term of the
renegotiated Lease or Exchange Agreement and the term of the original
Lease or Exchange Agreement, in the aggregate, does not exceed 100
years.
(d) Applicable Law.--Any person entering into a Lease or Exchange
Agreement with an Arizona Tribe under this section shall use the water
received under the Lease or Exchange Agreement in accordance with
applicable Federal and State law.
(e) Effect on Arizona Indian Water Settlements.--
(1) In general.--This Act shall not be construed to amend
any Arizona Indian Water Settlement that prohibits off-
Reservation Lease and Exchange Agreements. Before entering into
a Lease or Exchange Agreement pursuant to the authority set
forth in this Act, an Arizona Tribe with a restriction on its
authority to lease or exchange its decreed water rights outside
the exterior boundaries of its Reservation set forth in its
Arizona Indian Water Settlement must first amend the settlement
agreement to modify such restrictions in a manner in accordance
with its terms.
(2) Authorization, ratification and confirmation of
amendments.--An amendment to an Arizona Indian Water Settlement
to allow a Lease and Exchange Agreement is hereby deemed to be
authorized, ratified, and confirmed in accordance with its
terms without further need for congressional action.
SEC. 6. STORAGE AGREEMENTS.
(a) Authorization.--Notwithstanding section 2116 of the Revised
Statutes (commonly known as the ``Indian Trade and Intercourse Act'';
25 U.S.C. 177) or any other provision of law, each Arizona Tribe is
authorized to, subject to the approval of the Secretary under section
7(a), and has the sole authority to, enter into a Storage Agreement, on
the condition that the facility shall be located in the Lower Basin in
the State and is not in Navajo, Apache, or Cochise counties.
(b) Applicable Law.--Any Storage Agreement entered into under this
section shall be in accordance with applicable Federal and State law.
(c) Delegation of Rights.--An Arizona Tribe may assign or sell any
long-term storage credits accrued as a result of a Storage Agreement,
on the condition that the assignment or sale is in accordance with
applicable State law.
(d) Effect on Arizona Indian Water Settlements.--
(1) In general.--This Act shall not be construed to amend
any Arizona Indian Water Settlement that prohibits off-
Reservation Storage Agreements. Before entering into a Storage
Agreement pursuant to the authority set forth in this Act, an
Arizona Tribe with a restriction on its authority to store its
decreed water rights outside the exterior boundaries of its
Reservation set forth in its Arizona Indian Water Settlement
must first amend the settlement agreement to modify such
restrictions in a manner in accordance with its terms.
(2) Authorization, ratification and confirmation of
amendments.--An amendment to an Arizona Indian Water Settlement
Agreement to allow Storage Agreements, is hereby deemed to be
authorized, ratified and confirmed in accordance with its terms
without need for further congressional action.
SEC. 7. APPROVAL BY THE SECRETARY.
(a) Authorization.--The Secretary shall approve or disapprove any--
(1) Lease or Exchange Agreement;
(2) modification to a Lease or Exchange Agreement;
(3) Storage Agreement; or
(4) modification to a Storage Agreement.
(b) Secretarial Agreements.--The Secretary is authorized to enter
Lease or Exchange Agreements or Storage Agreements with an Arizona
Tribe, provided the Secretary pays the fair market value for the
Arizona Tribe's reduced consumptive use.
(c) Requirements.--
(1) In general.--The Secretary shall not approve any Lease
or Exchange Agreement, or any modification to a Lease or
Exchange Agreement, any Storage Agreement, or any modification
to a Storage Agreement that is not in compliance with--
(A) this Act; and
(B) the agreement entered into between the Arizona
Tribe, the State, and the Secretary under section
10(a).
(2) Permanent alienation.--The Secretary shall not approve
any Lease or Exchange Agreement, any modification to a Lease or
Exchange Agreement, or any Storage Agreement that permanently
alienates any portion of any Arizona Tribe decreed water right.
(d) Other Requirements.--The requirement for Secretarial approval
under subsection (a) shall satisfy the requirements of section 2116 of
the Revised Statutes (commonly known as the ``Indian Trade and
Intercourse Act''; 25 U.S.C. 177).
(e) Authority of the Secretary.--Nothing in this Act, or any
agreement entered into or approved by the Secretary under this Act,
including any Lease or Exchange Agreement or Storage Agreement, shall
diminish or abrogate the authority of the Secretary to act under
applicable Federal law or regulation.
SEC. 8. RESPONSIBILITIES OF THE SECRETARY.
(a) Compliance.--The Secretary, when approving a Lease or Exchange
Agreement or a Storage Agreement under this Act, shall ensure such
agreement complies with--
(1) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.);
(2) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.); and
(3) all other applicable Federal environmental laws.
(b) Documentation.--The Secretary shall document any Lease or
Exchange Agreement or Storage Agreement in the Water Accounting Report.
SEC. 9. AGREEMENT BETWEEN AN ARIZONA TRIBE AND THE STATE.
(a) In General.--Before entering into the first Lease or Exchange
Agreement or Storage Agreement, an Arizona Tribe shall enter into an
agreement with the State that outlines all notice, information sharing,
and collaboration requirements that shall apply to any potential Lease
or Exchange Agreement or Storage Agreement into which the Arizona Tribe
may enter.
(b) Requirement.--The agreement under subsection (a) shall include
a provision that requires the Arizona Tribe to submit to the State all
documents regarding a proposed Lease or Exchange Agreement or Storage
Agreement.
SEC. 10. AGREEMENT BETWEEN AN ARIZONA TRIBE, THE STATE, AND THE
SECRETARY.
(a) In General.--Before approving the first Lease or Exchange
Agreement or Storage Agreement under section 7, the Secretary shall
enter into an agreement with the State and the Arizona Tribe that
describes the procedural, technical, and accounting methodologies for
any Lease or Exchange Agreement or Storage Agreement into which the
Arizona Tribe may enter, including quantification of the reduction in
Consumptive Use and water accounting.
(b) NEPA.--The execution of the agreement under subsection (a)
shall not constitute a major Federal action for purposes of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(c) Effect.--Nothing in this Act shall prohibit the Secretary from
agreeing with the Arizona Tribe and the State to a modification to an
agreement entered into under subsection (a) (including an appendix or
exhibit to the agreement) on the condition that the modification--
(1) is in compliance with this Act; and
(2) does not otherwise require congressional approval under
section 2116 of the Revised Statutes (commonly known as the
``Indian Trade and Intercourse Act'') (25 U.S.C. 177) or any
other provision of law.
SEC. 11. NO EFFECT ON ARIZONA TRIBE DECREED WATER RIGHTS.
(a) Temporary Use.--A Lease or Exchange Agreement or Storage
Agreement--
(1) shall provide for the temporary use or storage of a
portion of the Consumptive Use off of the Arizona Tribe's
Reservation; and
(2) shall not permanently alienate the decreed water right.
(b) Priority Status.--
(1) In general.--The lease or exchange of a portion of the
Consumptive Use shall not cause that portion to lose or change
its priority under the relevant decree.
(2) Non-use.--Any non-use by a person who is a party to any
Lease or Exchange Agreement or Storage Agreement with the
Arizona Tribe shall not result in forfeiture, abandonment,
relinquishment, or other loss by the Arizona Tribe of all or
any portion of the decreed water right.
(c) Reservation of Rights.--The lease, exchange, or storage of a
portion of the Consumptive Use shall not reduce or limit the right of
the Arizona Tribe to use the remaining portion of the decreed water
right on its Reservation.
(d) Storage Agreements.--Any Storage Agreement shall account for
the quantity of water in storage off of an Arizona Tribe's Reservation
in accordance with applicable State law.
SEC. 12. ALLOTTEE USE OF WATER.
(a) Interference.--The lease, exchange, or storage of a portion of
the Consumptive Use shall not directly or indirectly interfere with, or
diminish, any entitlement to water for an allottee under Federal or
Tribal law.
(b) Water Rights of Allottees.--The Secretary shall protect the
rights of the allottees to a just and equitable distribution of water
for irrigation purposes, pursuant to section 7 of the Act of February
8, 1887 (commonly known as the ``Indian General Allotment Act'') (24
Stat. 390, chapter 119; 25 U.S.C. 381) (referred to in this section as
the ``Act'').
(c) Relief Under Tribal Law.--Prior to asserting any claim against
the United States pursuant to the Act, or any other applicable law, an
allottee shall exhaust all remedies available under applicable Tribal
law.
(d) Relief Under the Indian General Allotment Act.--Following an
exhaustion of remedies available under applicable Tribal law, an
allottee may seek relief under the Act, or any other applicable law.
(e) Relief From the Secretary.--Following exhaustion of remedies
available under the Act, or any other applicable law, an allottee may
petition the Secretary for relief.
SEC. 13. CONSIDERATION PAID TO ARIZONA TRIBES.
An Arizona Tribe, and not the United States in any capacity, shall
be entitled to all consideration due to an Arizona Tribe under any
Lease or Exchange Agreement or Storage Agreement.
SEC. 14. LIABILITY OF THE UNITED STATES.
(a) Limitation of Liability.--The United States shall not be liable
to an Arizona Tribe or to any party to a Lease or Exchange Agreement or
Storage Agreement in any claim relating to the negotiation, execution,
or approval of any Lease or Exchange Agreement or Storage Agreement,
including any claim relating to the terms included in such an
agreement, except for claims related to section 8(a).
(b) Obligations.--The United States shall have no trust obligation
or other obligation to monitor, administer, or account for--
(1) any funds received by an Arizona Tribe as consideration
under any Lease or Exchange Agreement or Storage Agreement; or
(2) the expenditure of such funds.
SEC. 15. APPLICATION.
(a) In General.--This Act shall apply only to the portion of the
decreed water right that is available for use in the State.
(b) Requirement.--The portion of the decreed water right described
in subsection (a) shall not be used, directly or indirectly, outside
the Lower Basin in the State or in Navajo, Apache, or Cochise Counties,
unless such use is otherwise authorized pursuant to a congressionally
approved Indian water rights settlement.
(c) No Effect on Navajo-Utah Water Rights Settlement.--This Act
shall not affect any provisions in the Navajo-Utah Water Rights
Settlement Act, Consolidated Appropriations Act, section 1102 (Public
Law 116-260, December 27, 2020), that authorize the Navajo Nation to
allocate, distribute, and lease the Navajo water rights for any use on
the Reservation in accordance with the Navajo-Utah settlement
agreement, and applicable Tribal and Federal law or allocate,
distribute, and lease the Navajo water rights for off-Reservation use
in accordance with the Navajo-Utah settlement agreement, subject to the
approval of the Secretary.
SEC. 16. RULE OF CONSTRUCTION.
(a) In General.--Nothing in this Act establishes, or shall be
considered to establish, a precedent in any litigation involving, or
alters, affects, or quantifies, any water right with respect to--
(1) the United States;
(2) any other Indian Tribe, band, or community;
(3) any State or political subdivision or district of a
State; or
(4) any person.
(b) Effect.--Nothing in this Act exempts the implementation of a
Lease or Exchange Agreement, or a Storage Agreement and the operation
of applicable Colorado River System reservoirs from any requirements of
applicable Federal environmental laws.
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