[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3308 Introduced in Senate (IS)]
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117th CONGRESS
1st Session
S. 3308
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.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 2, 2021
Mr. Kelly (for himself and Ms. Sinema) introduced the following bill;
which was read twice and referred to the Committee on Indian Affairs
_______________________________________________________________________
A BILL
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 2021''.
SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to authorize the CRIT to enter into lease or exchange
agreements and storage agreements for the economic well-being
of the CRIT; and
(2) to authorize the Secretary to approve any lease or
exchange agreements or storage agreements entered into by the
CRIT.
SEC. 3. DEFINITIONS.
In this Act:
(1) 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.
(2) 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).
(3) Consumptive use.--The term ``consumptive use'' means a
portion of the decreed allocation that has been consumptively
used by the CRIT within the exterior boundary of the
Reservation for a minimum of 4 of the 5 years immediately
preceding the year of delivery of a portion of the decreed
allocation according to a lease or exchange agreement or
storage agreement. 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.
(4) CRIT.--The term ``CRIT'' means the Colorado River
Indian Tribes, a federally recognized Indian Tribe.
(5) 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.
(6) 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).
(7) 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.
(8) Reservation.--The term ``Reservation'' means the
portion of the reservation established for the CRIT that is
located in the State.
(9) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(10) State.--Except for purposes of section 15, the term
``State'' means the State of Arizona.
(11) 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.
(12) 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
to, subject to the approval of the Secretary under section 6(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''), on the condition that the use
off the Reservation is located in the Lower Basin 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 6(a), on 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
to, subject to the approval of the Secretary under section 6(a), and
has the sole authority to, enter into 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 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''), on the condition that the facility shall be located in
the Lower Basin in the State.
(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.--The CRIT may assign or sell any longterm
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.
SEC. 6. APPROVAL BY THE SECRETARY.
(a) Authorization.--The Secretary shall approve or disapprove any
lease or exchange agreement, or any modification to a lease or exchange
agreement, or any storage agreement.
(b) Requirements.--
(1) In general.--The Secretary shall not approve any lease
or exchange agreement, or any modification to a lease or
exchange agreement, or any 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 9(a).
(2) Permanent alienation.--The Secretary shall not approve
any lease or exchange agreement, or any modification to a lease
or exchange agreement, or any storage agreement that
permanently alienates any portion of the CRIT decreed
allocation.
(c) 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).
(d) 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, including the Consolidated
Decree.
SEC. 7. 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. 8. AGREEMENT BETWEEN THE CRIT AND THE STATE.
(a) In General.--Prior to 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 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. 9. AGREEMENT BETWEEN THE CRIT, THE STATE, AND THE SECRETARY.
(a) In General.--Prior to approving the first lease or exchange
agreement or storage agreement under section 6, 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 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 CRIT 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. 10. NO EFFECT ON THE CRIT DECREED ALLOCATION.
(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 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, or storage 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.--Any storage agreement shall account for
the quantity of water in storage off the Reservation in accordance with
applicable State law.
SEC. 11. 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. 12. 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 or storage agreement.
SEC. 13. LIABILITY OF THE UNITED STATES.
(a) Limitation of Liability.--The United States shall not be liable
in any claim relating to the negotiation, execution, or approval of any
lease or exchange agreement or storage agreement, including any claims
relating to the terms included in such an agreement.
(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 or storage agreement; or
(2) the expenditure of such funds.
SEC. 14. APPLICATION.
(a) In General.--This Act shall apply only to the portion of the
decreed allocation that is available for use in the State.
(b) Requirement.--The portion of the decreed allocation described
in subsection (a) shall not be used, directly or indirectly, outside
the Lower Basin in the State.
SEC. 15. 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.
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