[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3308 Engrossed in Senate (ES)]

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117th CONGRESS
  2d Session
                                S. 3308

_______________________________________________________________________

                                 AN ACT


 
 To authorize the Colorado River Indian Tribes to enter into lease or 
  exchange agreements and storage agreements relating to water of the 
 Colorado River allocated to the Colorado River Indian Tribes, 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 ``Colorado River Indian Tribes Water 
Resiliency Act of 2022''.

SEC. 2. PURPOSES.

    The purposes of this Act are to authorize--
            (1) the CRIT to enter into lease or exchange agreements, 
        storage agreements, and agreements for conserved water for the 
        economic well-being of the CRIT; and
            (2) the Secretary to approve any lease or exchange 
        agreements, storage agreements, or agreements for conserved 
        water entered into by the CRIT.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Agreement for conserved water.--The term ``agreement 
        for conserved water'' means an agreement for the creation of 
        system conservation, storage of conserved water in Lake Mead, 
        or other mechanisms for voluntarily leaving a portion of the 
        CRIT reduced consumptive use in Lake Mead.
            (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 the 
                Reservation; and
                    (B) held in trust by the United States.
            (3) Consolidated decree.--The term ``Consolidated Decree'' 
        means the decree entered by the Supreme Court of the United 
        States in Arizona v. California, 547 U.S. 150 (2006).
            (4) Consumptive use.--The term ``consumptive use'' means a 
        portion of the decreed allocation that has a recent history of 
        use by the CRIT within the exterior boundary of the 
        Reservation. Any verified reduction in consumptive use pursuant 
        to a lease or exchange agreement, a storage agreement, or an 
        agreement for conserved water shall be deemed to be a 
        consumptive use in the year in which the reduction occurred, 
        subject to the condition that the reduction is reflected in the 
        Water Accounting Report.
            (5) CRIT.--The term ``CRIT'' means the Colorado River 
        Indian Tribes, a federally recognized Indian Tribe.
            (6) Decreed allocation.--The term ``decreed allocation'' 
        means the volume of water of the mainstream of the Colorado 
        River allocated to the CRIT that is accounted for as part of 
        the apportionment for the State in part I-A of the Appendix of 
        the Consolidated Decree.
            (7) 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).
            (8) 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, 
        an Indian Tribe, a governmental entity, or a political 
        subdivision or municipal corporation organized under, or 
        subject to, the constitution and laws of the State.
            (9) Reservation.--The term ``Reservation'' means the 
        portion of the reservation established for the CRIT that is 
        located in the State.
            (10) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior.
            (11) State.--Except for purposes of section 16, the term 
        ``State'' means the State of Arizona.
            (12) Storage.--The term ``storage'' means the underground 
        storage, in accordance with State law, of a portion of the 
        consumptive use off the Reservation within the Lower Basin in 
        the State.
            (13) 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'' which includes the 
        compilation of records in accordance with article V of the 
        Consolidated Decree.

SEC. 4. 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, the CRIT is authorized, 
subject to the approval of the Secretary under section 7(a), and has 
the sole authority, to enter into, with any person, an agreement to 
lease or exchange, or an option to lease or exchange, a portion of the 
consumptive use for a use off the Reservation (referred to in this Act 
as a ``lease or exchange agreement''), subject to the conditions that 
the use off the Reservation is located in the Lower Basin in the State 
and is not located in the counties of Navajo, Apache, or Cochise in the 
State.
    (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), subject to the condition that the 
term of the renegotiated lease or exchange agreement does not exceed 
100 years.
    (d) Applicable Law.--Any person entering into a lease or exchange 
agreement with the CRIT under this section shall use the water received 
under the lease or exchange agreement in accordance with applicable 
Federal and State law.

SEC. 5. 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, the CRIT is authorized, 
subject to the approval of the Secretary under section 7(a), and has 
the sole authority, to enter into an agreement, including with the 
Arizona Water Banking Authority (or a successor agency or entity), for 
the storage of a portion of the consumptive use, or the water received 
under an exchange pursuant to an exchange agreement under section 4, at 
1 or more underground storage facilities or groundwater savings 
facilities off the Reservation (referred to in this Act as a ``storage 
agreement''), subject to the conditions that the facility is located in 
the Lower Basin in the State and is not located in the counties of 
Navajo, Apache, or Cochise in the State.
    (b) Modifications.--Any storage agreement entered into under 
subsection (a) may be renegotiated or modified at any time during the 
term of the storage agreement, subject to the approval of the Secretary 
under section 7(a).
    (c) Applicable Law.--Any storage agreement entered into under 
subsection (a) shall be in accordance with applicable Federal and State 
law.
    (d) Delegation of Rights.--The CRIT may assign or sell any long-
term storage credits accrued as a result of a storage agreement, 
subject to the condition that the assignment or sale is in accordance 
with applicable State law.

SEC. 6. AGREEMENTS FOR CREATION OF WATER FOR THE COLORADO RIVER SYSTEM 
              FOR STORING WATER IN LAKE MEAD.

    (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, the CRIT is authorized, 
subject to the approval of the Secretary under section 7(a), and has 
the sole authority, to enter into, with any person, an agreement for 
conserved water, subject to the conditions that if the conserved water 
is delivered, the delivery is to a location in the Lower Basin in the 
State and is not to a location in the counties of Navajo, Apache, or 
Cochise in the State.
    (b) Term of an Agreement for Conserved Water.--The term of any 
agreement for conserved water entered into under subsection (a) shall 
be mutually agreed, except that the term shall not exceed 100 years.
    (c) Modifications.--Any agreement for conserved water entered into 
under subsection (a) may be renegotiated or modified at any time during 
the term of the agreement for conserved water, subject to the approval 
of the Secretary under section 7(a).
    (d) Applicable Law.--Any agreement for conserved water entered into 
under subsection (a), and any use of conserved water, shall be in 
accordance with Federal law, including any program authorized by 
Federal law.

SEC. 7. SECRETARIAL APPROVAL; DISAPPROVAL; AGREEMENTS.

    (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;
            (4) modification to a storage agreement;
            (5) agreement for conserved water; or
            (6) modification to an agreement for conserved water.
    (b) Secretarial Agreements.--The Secretary is authorized to enter 
into a lease or exchange agreement, a storage agreement, or an 
agreement for conserved water with the CRIT, subject to the condition 
that the Secretary pays the fair market value for the CRIT reduced 
consumptive use.
    (c) Requirements.--
            (1) Lease or exchange agreements and storage agreements.--
        The Secretary shall not approve any lease or exchange 
        agreement, or any modification to a lease or exchange 
        agreement, or 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 CRIT, 
                the State, and the Secretary under section 10(a).
            (2) Agreements for conserved water.--The Secretary shall 
        not approve any agreement for conserved water, or any 
        modification to an agreement for conserved water, that is not 
        in compliance with--
                    (A) this Act; and
                    (B) other applicable Federal law, including any 
                program authorized by Federal law.
            (3) Permanent alienation.--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, or any agreement for 
        conserved water, or any modification to an agreement for 
        conserved water, that permanently alienates any portion of the 
        CRIT decreed allocation.
    (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, storage agreement, or 
agreement for conserved water, shall diminish or abrogate the authority 
of the Secretary to act under applicable Federal law or regulation, 
including the Consolidated Decree.

SEC. 8. RESPONSIBILITIES OF THE SECRETARY.

    (a) Compliance.--When approving a lease or exchange agreement, a 
storage agreement, or an agreement for conserved water, the Secretary 
shall promptly comply with all 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 laws and regulations.
    (b) Documentation.--The Secretary shall document any lease or 
exchange agreement, storage agreement, or agreement for conserved water 
in the Water Accounting Report.

SEC. 9. AGREEMENT BETWEEN THE CRIT AND THE STATE.

    (a) In General.--Before entering into the first lease or exchange 
agreement or storage agreement, the CRIT 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 the CRIT may enter into.
    (b) Requirement.--The agreement required under subsection (a) shall 
include a provision that requires the CRIT to submit to the State all 
documents regarding a potential lease or exchange agreement or storage 
agreement.

SEC. 10. AGREEMENT BETWEEN THE CRIT, 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 CRIT that describes the 
procedural, technical, and accounting methodologies for any lease or 
exchange agreement or storage agreement the CRIT may enter into, 
including quantification of the reduction in consumptive use and water 
accounting.
    (b) NEPA.--The execution of the agreement required 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 prohibits the Secretary from 
agreeing with the CRIT and the State to a modification to an agreement 
entered into under subsection (a) (including an appendix or exhibit to 
the agreement) if 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 THE CRIT DECREED ALLOCATION.

    (a) Temporary Use.--A lease or exchange agreement, a storage 
agreement, or an agreement for conserved water--
            (1) shall provide for the temporary use, storage, or 
        conservation of a portion of the consumptive use off the 
        Reservation; and
            (2) shall not permanently alienate the decreed allocation.
    (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 Consolidated Decree.
            (2) Nonuse.--Any nonuse by a person who is a party to any 
        lease or exchange agreement or storage agreement with the CRIT 
        shall not result in forfeiture, abandonment, relinquishment, or 
        other loss by the CRIT of all or any portion of the decreed 
        allocation.
    (c) Reservation of Rights.--The lease, exchange, storage, or 
conservation of a portion of the consumptive use shall not reduce or 
limit the right of the CRIT to use the remaining portion of the decreed 
allocation on the Reservation.
    (d) Storage Agreements.--A storage agreement entered into under 
this Act shall account for the quantity of water in storage off the 
Reservation in accordance with applicable State law.

SEC. 12. ALLOTTEE USE OF WATER.

    (a) Interference.--The lease, exchange, storage, or conservation 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 THE CRIT.

    The CRIT, and not the United States in any capacity, shall be 
entitled to all consideration due to the CRIT under any lease or 
exchange agreement, storage agreement, or agreement for conserved 
water.

SEC. 14. LIABILITY OF THE UNITED STATES.

    (a) Limitation of Liability.--The United States shall not be liable 
to the CRIT or to any party to a lease or exchange agreement, a storage 
agreement, or an agreement for conserved water in any claim relating to 
the negotiation, execution, or approval of any lease or exchange 
agreement, storage agreement, or agreement for conserved water, 
including any claim relating to the terms included in such an 
agreement, except for claims relating to the requirements of 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 the CRIT as consideration under 
        any lease or exchange agreement, storage agreement, or 
        agreement for conserved water; or
            (2) the expenditure of such funds.

SEC. 15. APPLICATION.

    (a) In General.--This Act shall only apply to the portion of the 
decreed allocation that is available for use in the State.
    (b) Requirement.--The portion of the decreed allocation that is 
available for use in the State shall not be used, directly or 
indirectly outside the Lower Basin in the State or in the counties of 
Navajo, Apache, or Cochise in the State.

SEC. 16. RULE OF CONSTRUCTION.

    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.

            Passed the Senate December 19, 2022.

            Attest:

                                                             Secretary.
117th CONGRESS

  2d Session

                                S. 3308

_______________________________________________________________________

                                 AN ACT

 To authorize the Colorado River Indian Tribes to enter into lease or 
  exchange agreements and storage agreements relating to water of the 
 Colorado River allocated to the Colorado River Indian Tribes, and for 
                            other purposes.