[Congressional Record Volume 150, Number 132 (Wednesday, November 17, 2004)]
[House]
[Pages H9793-H9820]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ARIZONA WATER SETTLEMENTS ACT
Mr. HAYWORTH. Mr. Speaker, I move to suspend the rules and pass the
Senate bill (S. 437) to provide for adjustments to the Central Arizona
Project in Arizona, to authorize the Gila River Indian Community water
rights settlement, to reauthorize and amend the Southern Arizona Water
Rights Settlement Act of 1982, and for other purposes.
The Clerk read as follows:
S. 437
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Arizona
Water Settlements Act''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Sec. 3. Arbitration.
Sec. 4. Antideficiency.
TITLE I--CENTRAL ARIZONA PROJECT SETTLEMENT
Sec. 101. Short title.
Sec. 102. Findings.
Sec. 103. General permissible uses of the Central Arizona Project.
Sec. 104. Allocation of Central Arizona Project water.
Sec. 105. Firming of Central Arizona Project Indian water.
Sec. 106. Acquisition of agricultural priority water.
Sec. 107. Lower Colorado River Basin Development Fund.
Sec. 108. Effect.
Sec. 109. Repeal.
Sec. 110. Authorization of appropriations.
Sec. 111. Repeal on failure of enforceability date under title II.
TITLE II--GILA RIVER INDIAN COMMUNITY WATER RIGHTS SETTLEMENT
Sec. 201. Short title.
Sec. 202. Purposes.
Sec. 203. Approval of the Gila River Indian Community Water Rights
Settlement Agreement.
Sec. 204. Water rights.
Sec. 205. Community water delivery contract amendments.
Sec. 206. Satisfaction of claims.
Sec. 207. Waiver and release of claims.
Sec. 208. Gila River Indian Community Water OM&R Trust Fund.
Sec. 209. Subsidence remediation program.
Sec. 210. After-acquired trust land.
Sec. 211. Reduction of water rights.
Sec. 212. New Mexico Unit of the Central Arizona Project.
Sec. 213. Miscellaneous provisions.
Sec. 214. Authorization of appropriations.
Sec. 215. Repeal on failure of enforceability date.
TITLE III--SOUTHERN ARIZONA WATER RIGHTS SETTLEMENT
Sec. 301. Southern Arizona water rights settlement.
Sec. 302. Southern Arizona water rights settlement effective date.
TITLE IV--SAN CARLOS APACHE TRIBE WATER RIGHTS SETTLEMENT
Sec. 401. Effect of titles I, II, and III.
Sec. 402. Annual report.
Sec. 403. Authorization of appropriations.
SEC. 2. DEFINITIONS.
In titles I and II:
(1) Acre-feet.--The term ``acre-feet'' means acre-feet per
year.
(2) After-acquired trust land.--The term ``after-acquired
trust land'' means land that--
(A) is located--
(i) within the State; but
(ii) outside the exterior boundaries of the Reservation;
and
(B) is taken into trust by the United States for the
benefit of the Community after the enforceability date.
(3) Agricultural priority water.--The term ``agricultural
priority water'' means Central Arizona Project non-Indian
agricultural priority water, as defined in the Gila River
agreement.
(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) Arizona indian tribe.--The term ``Arizona Indian
tribe'' means an Indian tribe (as defined in section 4 of the
Indian Self-Determination and Education Assistance Act (25
U.S.C. 450b)) that is located in the State.
(6) Asarco.--The term ``Asarco'' means Asarco Incorporated,
a New Jersey corporation of that name, and its subsidiaries
operating mining operations in the State.
(7) CAP contractor.--The term ``CAP contractor'' means a
person or entity that has entered into a long-term contract
(as that term is used in the repayment stipulation) with the
United States for delivery of water through the CAP system.
(8) CAP operating agency.--The term ``CAP operating
agency'' means the entity or entities authorized to assume
responsibility for the care, operation, maintenance, and
replacement of the CAP system.
(9) CAP repayment contract.--
(A) In general.--The term ``CAP repayment contract'' means
the contract dated December 1, 1988 (Contract No. 14-0906-
09W-09245, Amendment No. 1) between the United States and the
Central Arizona Water Conservation District for the delivery
of water and the repayment of costs of the Central Arizona
Project.
(B) Inclusions.--The term ``CAP repayment contract''
includes all amendments to and revisions of that contract.
(10) CAP subcontractor.--The term ``CAP subcontractor''
means a person or entity that has entered into a long-term
subcontract (as that term is used in the repayment
stipulation) with the United States and the Central Arizona
Water Conservation District for the delivery of water through
the CAP system.
(11) CAP system.--The term ``CAP system'' means--
(A) the Mark Wilmer Pumping Plant;
(B) the Hayden-Rhodes Aqueduct;
(C) the Fannin-McFarland Aqueduct;
(D) the Tucson Aqueduct;
(E) the pumping plants and appurtenant works of the Central
Arizona Project aqueduct system that are associated with the
features described in subparagraphs (A) through (D); and
(F) any extensions of, additions to, or replacements for
the features described in subparagraphs (A) through (E).
(12) Central arizona project.--The term ``Central Arizona
Project'' means the reclamation project authorized and
constructed by the United States in accordance with title III
of the Colorado River Basin Project Act (43 U.S.C. 1521 et
seq.).
(13) Central arizona water conservation district.--The term
``Central Arizona Water Conservation District'' means the
political subdivision of the State that is the contractor
under the CAP repayment contract.
(14) Cities.--The term ``Cities'' means the cities of
Chandler, Glendale, Goodyear, Mesa, Peoria, Phoenix, and
Scottsdale, Arizona.
(15) Community.--The term ``Community'' means the Gila
River Indian Community, a government composed of members of
the Pima Tribe and the Maricopa Tribe and organized under
section 16 of the Act of June 18, 1934 (25 U.S.C. 476).
(16) Community cap water.--The term ``Community CAP water''
means water to which the Community is entitled under the
Community water delivery contract.
(17) Community repayment contract.--
(A) In general.--The term ``Community repayment contract''
means Contract No. 6-0907-0903-09W0345 between the United
States and the Community dated July 20, 1998, providing for
the construction of water delivery facilities on the
Reservation.
(B) Inclusions.--The term ``Community repayment contract''
includes any amendments to the contract described in
subparagraph (A).
(18) Community water delivery contract.--
(A) In general.--The term ``Community water delivery
contract'' means Contract No. 3-0907-0930-09W0284 between the
Community and the United States dated October 22, 1992.
(B) Inclusions.--The term ``Community water delivery
contract'' includes any amendments to the contract described
in subparagraph (A).
(19) CRR project works.--
(A) In general.--The term ``CRR project works'' means the
portions of the San Carlos Irrigation Project located on the
Reservation.
(B) Inclusion.--The term ``CRR Project works'' includes the
portion of the San Carlos Irrigation Project known as the
``Southside Canal'', from the point at which the Southside
Canal connects with the Pima Canal to the boundary of the
Reservation.
(20) Director.--The term ``Director'' means--
(A) the Director of the Arizona Department of Water
Resources; or
(B) with respect to an action to be carried out under this
title, a State official or agency designated by the Governor
or the State legislature.
[[Page H9794]]
(21) 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 207(c).
(22) Fee land.--The term ``fee land'' means land, other
than off-Reservation trust land, owned by the Community
outside the exterior boundaries of the Reservation as of
December 31, 2002.
(23) Fixed om&r charge.--The term ``fixed OM&R charge'' has
the meaning given the term in the repayment stipulation.
(24) Franklin irrigation district.--The term ``Franklin
Irrigation District'' means the entity of that name that is a
political subdivision of the State and organized under the
laws of the State.
(25) Gila river adjudication proceedings.--The term ``Gila
River adjudication proceedings'' means the action pending in
the Superior Court of the State of Arizona in and for the
County of Maricopa styled ``In Re the General Adjudication of
All Rights To Use Water In The Gila River System and Source''
W-091 (Salt), W-092 (Verde), W-093 (Upper Gila), W-094 (San
Pedro) (Consolidated).
(26) Gila river agreement.--
(A) In general.--The term ``Gila River agreement'' means
the agreement entitled the ``Gila River Indian Community
Water Rights Settlement Agreement'', dated February 4, 2003.
(B) Inclusions.--The term ``Gila River agreement''
includes--
(i) all exhibits to that agreement (including the New
Mexico Risk Allocation Agreement, which is also an exhibit to
the UVD Agreement); and
(ii) any amendment to that agreement or to an exhibit to
that agreement made or added pursuant to that agreement
consistent with section 203(a) or as approved by the
Secretary.
(27) Gila valley irrigation district.--The term ``Gila
Valley Irrigation District'' means the entity of that name
that is a political subdivision of the State and organized
under the laws of the State.
(28) Globe equity decree.--
(A) In general.--The term ``Globe Equity Decree'' means the
decree dated June 29, 1935, entered in United States of
America v. Gila Valley Irrigation District, Globe Equity No.
59, et al., by the United States District Court for the
District of Arizona.
(B) Inclusions.--The term ``Globe Equity Decree'' includes
all court orders and decisions supplemental to that decree.
(29) Haggard decree.--
(A) In general.--The term ``Haggard Decree'' means the
decree dated June 11, 1903, entered in United States of
America, as guardian of Chief Charley Juan Saul and Cyrus
Sam, Maricopa Indians and 400 other Maricopa Indians
similarly situated v. Haggard, et al., Cause No. 19, in the
District Court for the Third Judicial District of the
Territory of Arizona, in and for the County of Maricopa.
(B) Inclusions.--The term ``Haggard Decree'' includes all
court orders and decisions supplemental to that decree.
(30) Including.--The term ``including'' has the same
meaning as the term ``including, but not limited to''.
(31) Injury to water quality.--The term ``injury to water
quality'' means any contamination, diminution, or deprivation
of water quality under Federal, State, or other law.
(32) Injury to water rights.--
(A) In general.--The term ``injury to water rights'' means
an interference with, diminution of, or deprivation of water
rights under Federal, State, or other law.
(B) Inclusion.--The term ``injury to water rights''
includes a change in the underground water table and any
effect of such a change.
(C) Exclusion.--The term ``injury to water rights'' does
not include subsidence damage or injury to water quality.
(33) Lower colorado river basin development fund.--The term
``Lower Colorado River Basin Development Fund'' means the
fund established by section 403 of the Colorado River Basin
Project Act (43 U.S.C. 1543).
(34) Master agreement.--The term ``master agreement'' means
the agreement entitled ``Arizona Water Settlement Agreement''
among the Director, the Central Arizona Water Conservation
District, and the Secretary, dated August 16, 2004.
(35) NM cap entity.--The term ``NM CAP entity'' means the
entity or entities that the State of New Mexico may authorize
to assume responsibility for the design, construction,
operation, maintenance, and replacement of the New Mexico
Unit.
(36) New mexico consumptive use and forbearance
agreement.--
(A) In general.--The term ``New Mexico Consumptive Use and
Forbearance Agreement'' means that agreement entitled the
``New Mexico Consumptive Use and Forbearance Agreement,''
entered into by and among the United States, the Community,
the San Carlos Irrigation and Drainage District, and all of
the signatories to the UVD Agreement, and approved by the
State of New Mexico, and authorized, ratified, and approved
by section 212(b).
(B) Inclusions.--The ``New Mexico Consumptive Use and
Forbearance Agreement'' includes--
(i) all exhibits to that agreement (including the New
Mexico Risk Allocation agreement, which is also an exhibit to
the UVD agreement); and
(ii) any amendment to that agreement made or added pursuant
to that agreement.
(37) New mexico unit.--The term ``New Mexico Unit'' means
that unit or units of the Central Arizona Project authorized
by sections 301(a)(4) and 304 of the Colorado River Basin
Project Act (43 U.S.C. 1521(a)(4), 1524) (as amended by
section 212).
(38) New mexico unit agreement.--
(A) In general.--The term ``New Mexico Unit Agreement''
means that agreement entitled the ``New Mexico Unit
Agreement,'' to be entered into by and between the United
States and the NM CAP entity upon notice to the Secretary
from the State of New Mexico that the State of New Mexico
intends to have the New Mexico Unit constructed or developed.
(B) Inclusions.--The ``New Mexico Unit Agreement''
includes--
(i) all exhibits to that agreement; and
(ii) any amendment to that agreement made or added pursuant
to that agreement.
(39) Off-reservation trust land.--The term ``off-
Reservation trust land'' means land outside the exterior
boundaries of the Reservation that is held in trust by the
United States for the benefit of the Community as of the
enforceability date.
(40) Phelps dodge.--The term ``Phelps Dodge'' means the
Phelps Dodge Corporation, a New York corporation of that
name, and Phelps Dodge's subsidiaries (including Phelps Dodge
Morenci, Inc., a Delaware corporation of that name), and
Phelps Dodge's successors or assigns.
(41) Repayment stipulation.--The term ``repayment
stipulation'' means the Revised Stipulation Regarding a Stay
of Litigation, Resolution of Issues During the Stay, and for
Ultimate Judgment Upon the Satisfaction of Conditions, filed
with the United States District Court for the District of
Arizona in Central Arizona Water Conservation District v.
United States, et al., No. CIV 95-09625-09TUC-09WDB(EHC), No.
CIV 95-091720-09PHX-09EHC (Consolidated Action), and that
court's order dated April 28, 2003, and any amendments or
revisions thereto.
(42) Reservation.--
(A) In general.--Except as provided in sections 207(d) and
210(d), the term ``Reservation'' means the land located
within the exterior boundaries of the reservation created
under sections 3 and 4 of the Act of February 28, 1859 (11
Stat. 401, chapter LXVI) and Executive Orders of August 31,
1876, June 14, 1879, May 5, 1882, November 15, 1883, July 31,
1911, June 2, 1913, August 27, 1914, and July 19, 1915.
(B) Exclusion.--The term ``Reservation'' does not include
the land located in sections 16 and 36, Township 4 South,
Range 4 East, Salt and Gila River Base and Meridian.
(43) Roosevelt habitat conservation plan.--The term
``Roosevelt Habitat Conservation Plan'' means the habitat
conservation plan approved by the United States Fish and
Wildlife Service under section 10(a)(1)(B) of the Endangered
Species Act of 1973 (16 U.S.C. 1539(a)(1)(B)) for the
incidental taking of endangered, threatened, and candidate
species resulting from the continued operation by the Salt
River Project of Roosevelt Dam and Lake, near Phoenix,
Arizona.
(44) Roosevelt water conservation district.--The term
``Roosevelt Water Conservation District'' means the entity of
that name that is a political subdivision of the State and an
irrigation district organized under the law of the State.
(45) Safford.--The term ``Safford'' means the city of
Safford, Arizona.
(46) Salt river project.--The term ``Salt River Project''
means the Salt River Project Agricultural Improvement and
Power District, a political subdivision of the State, and the
Salt River Valley Water Users' Association, an Arizona
Territorial corporation.
(47) San carlos apache tribe.--The term ``San Carlos Apache
Tribe'' means the San Carlos Apache Tribe, a tribe of Apache
Indians organized under Section 16 of the Indian
Reorganization Act of June 18, 1934, 48 Stat. 987 (25 U.S.C.
476).
(48) San carlos irrigation and drainage district.--The term
``San Carlos Irrigation and Drainage District'' means the
entity of that name that is a political subdivision of the
State and an irrigation and drainage district organized under
the laws of the State.
(49) San carlos irrigation project.--
(A) In general.--The term ``San Carlos Irrigation Project''
means the San Carlos irrigation project authorized under the
Act of June 7, 1924 (43 Stat. 475).
(B) Inclusions.--The term ``San Carlos Irrigation Project''
includes any amendments and supplements to the Act described
in subparagraph (A).
(50) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(51) Special hot lands.--The term ``special hot lands'' has
the meaning given the term in subparagraph 2.34 of the UVD
agreement.
(52) State.--The term ``State'' means the State of Arizona.
(53) Subcontract.--
(A) In general.--The term ``subcontract'' means a Central
Arizona Project water delivery subcontract.
(B) Inclusion.--The term ``subcontract'' includes an
amendment to a subcontract.
(54) Subsidence damage.--The term ``subsidence damage''
means injury to land, water, or other real property resulting
from the settling of geologic strata or cracking in the
surface of the Earth of any length or depth, which settling
or cracking is caused by the pumping of underground water.
(55) TBI eligible acres.--The term ``TBI eligible acres''
has the meaning given the
[[Page H9795]]
term in subparagraph 2.37 of the UVD agreement.
(56) Uncontracted municipal and industrial water.--The term
``uncontracted municipal and industrial water'' means Central
Arizona Project municipal and industrial priority water that
is not subject to subcontract on the date of enactment of
this Act.
(57) UV decreed acres.--
(A) In general.--The term ``UV decreed acres'' means the
land located upstream and to the east of the Coolidge Dam for
which water may be diverted pursuant to the Globe Equity
Decree.
(B) Exclusion.--The term ``UV decreed acres'' does not
include the reservation of the San Carlos Apache Tribe.
(58) UV decreed water rights.--The term ``UV decreed water
rights'' means the right to divert water for use on UV
decreed acres in accordance with the Globe Equity Decree.
(59) UV impact zone.--The term ``UV impact zone'' has the
meaning given the term in subparagraph 2.47 of the UVD
agreement.
(60) UV subjugated land.--The term ``UV subjugated land''
has the meaning given the term in subparagraph 2.50 of the
UVD agreement.
(61) UVD agreement.--The term ``UVD agreement'' means the
agreement among the Community, the United States, the San
Carlos Irrigation and Drainage District, the Franklin
Irrigation District, the Gila Valley Irrigation District,
Phelps Dodge, and other parties located in the upper valley
of the Gila River, dated September 2, 2004.
(62) UV signatories parties.--The term ``UV signatories''
means the parties to the UVD agreement other than the United
States, the San Carlos Irrigation and Drainage District, and
the Community.
(63) Water om&r fund.--The term ``Water OM&R Fund'' means
the Gila River Indian Community Water OM&R Trust Fund
established by section 208.
(64) Water right.--The term ``water right'' means any right
in or to groundwater, surface water, or effluent under
Federal, State, or other law.
(65) Water rights appurtenant to new mexico 381 acres.--The
term ``water rights appurtenant to New Mexico 381 acres''
means the water rights--
(A) appurtenant to the 380.81 acres described in the decree
in Arizona v. California, 376 U.S. 340, 349 (1964); and
(B) appurtenant to other land, or for other uses, for which
the water rights described in subparagraph (A) may be
modified or used in accordance with that decree.
(66) Water rights for new mexico domestic purposes.--The
term ``water rights for New Mexico domestic purposes'' means
the water rights for domestic purposes of not more than 265
acre-feet of water for consumptive use described in paragraph
IV(D)(2) of the decree in Arizona v. California, 376 U.S.
340, 350 (1964).
(67) 1994 biological opinion.--The term ``1994 biological
opinion'' means the biological opinion, numbered 2-21-90-F-
119, and dated April 15, 1994, relating to the transportation
and delivery of Central Arizona Project water to the Gila
River basin.
(68) 1996 biological opinion.--The term ``1996 biological
opinion'' means the biological opinion, numbered 2-21-95-F-
462 and dated July 23, 1996, relating to the impacts of
modifying Roosevelt Dam on the southwestern willow
flycatcher.
(69) 1999 biological opinion.--The term ``1999 biological
opinion'' means the draft biological opinion numbered 2-21-
91-F-706, and dated May 1999, relating to the impacts of the
Central Arizona Project on Gila Topminnow in the Santa Cruz
River basin through the introduction and spread of nonnative
aquatic species.
SEC. 3. ARBITRATION.
(a) No Participation by the United States.--
(1) In general.--No arbitration decision rendered pursuant
to subparagraph 12.1 of the UVD agreement or exhibit 20.1 of
the Gila River agreement (including the joint control board
agreement attached to exhibit 20.1) shall be considered
invalid solely because the United States failed or refused to
participate in such arbitration proceedings that resulted in
such arbitration decision, so long as the matters in
arbitration under subparagraph 12.1 of the UVD agreement or
exhibit 20.1 of the Gila River Agreement concern aspects of
the water rights of the Community, the San Carlos Irrigation
Project, or the Miscellaneous Flow Lands (as defined in
subparagraph 2.18A of the UVD agreement) and not the water
rights of the United States in its own right, any other
rights of the United States, or the water rights or any other
rights of the United States acting on behalf of or for the
benefit of another tribe.
(2) Arbitration ineffective.--If an issue otherwise subject
to arbitration under subparagraph 12.1 of the UVD agreement
or exhibit 20.1 of the Gila River Agreement cannot be
arbitrated or if an arbitration decision will not be
effective because the United States cannot or will not
participate in the arbitration, then the issue shall be
submitted for decision to a court of competent jurisdiction,
but not a court of the Community.
(b) Participation by the Secretary.--Notwithstanding any
provision of any agreement, exhibit, attachment, or other
document ratified by this Act, if the Secretary is required
to enter arbitration pursuant to this Act or any such
document, the Secretary shall follow the procedures for
arbitration established by chapter 5 of title 5, United
States Code.
SEC. 4. ANTIDEFICIENCY.
The United States shall not be liable for failure to carry
out any obligation or activity required by this Act,
including all titles and all agreements or exhibits ratified
or confirmed by this Act, funded by--
(1) the Lower Basin Development Fund established by section
403 of the Colorado River Basin Project Act (43 U.S.C. 1543),
if there are not enough monies in that fund to fulfill those
obligations or carry out those activities; or
(2) appropriations, if appropriations are not provided by
Congress.
TITLE I--CENTRAL ARIZONA PROJECT SETTLEMENT
SEC. 101. SHORT TITLE.
This title may be cited as the ``Central Arizona Project
Settlement Act of 2004''.
SEC. 102. FINDINGS.
Congress finds that--
(1) the water provided by the Central Arizona Project to
Maricopa, Pinal, and Pima Counties in the State of Arizona,
is vital to citizens of the State; and
(2) an agreement on the allocation of Central Arizona
Project water among interested persons, including Federal and
State interests, would provide important benefits to the
Federal Government, the State of Arizona, Arizona Indian
Tribes, and the citizens of the State.
SEC. 103. GENERAL PERMISSIBLE USES OF THE CENTRAL ARIZONA
PROJECT.
In accordance with the CAP repayment contract, the Central
Arizona Project may be used to transport nonproject water
for--
(1) domestic, municipal, fish and wildlife, and industrial
purposes; and
(2) any purpose authorized under the Colorado River Basin
Project Act (43 U.S.C. 1501 et seq.).
SEC. 104. ALLOCATION OF CENTRAL ARIZONA PROJECT WATER.
(a) Non-Indian Agricultural Priority Water.--
(1) Reallocation to arizona indian tribes.--
(A) In general.--The Secretary shall reallocate 197,500
acre-feet of agricultural priority water made available
pursuant to the master agreement for use by Arizona Indian
tribes, of which--
(i) 102,000 acre-feet shall be reallocated to the Gila
River Indian Community;
(ii) 28,200 acre-feet shall be reallocated to the Tohono
O'odham Nation; and
(iii) subject to the conditions specified in subparagraph
(B), 67,300 acre-feet shall be reallocated to Arizona Indian
tribes.
(B) Conditions.--The reallocation of agricultural priority
water under subparagraph (A)(iii) shall be subject to the
conditions that--
(i) such water shall be used to resolve Indian water claims
in Arizona, and may be allocated by the Secretary to Arizona
Indian Tribes in fulfillment of future Arizona Indian water
rights settlement agreements approved by an Act of Congress.
In the absence of an Arizona Indian water rights settlement
that is approved by an Act of Congress after the date of
enactment of this Act, the Secretary shall not allocate any
such water until December 31, 2030. Any allocations made by
the Secretary after such date shall be accompanied by a
certification that the Secretary is making the allocation in
order to assist in the resolution of an Arizona Indian water
right claim. Any such water allocated to an Arizona Indian
Tribe pursuant to a water delivery contract with the
Secretary under this clause shall be counted on an acre-foot
per acre-foot basis against any claim to water for that
Tribe's reservation;
(ii) notwithstanding clause (i), the Secretary shall retain
6,411 acre-feet of water for use for a future water rights
settlement agreement approved by an Act of Congress that
settles the Navajo Nation's claims to water in Arizona. If
Congress does not approve this settlement before December 31,
2030, the 6,411 acre-feet of CAP water shall be available to
the Secretary under clause (i); and
(iii) the agricultural priority water shall not, without
specific authorization by Act of Congress, be leased,
exchanged, forborne, or otherwise transferred by an Arizona
Indian tribe for any direct or indirect use outside the
reservation of the Arizona Indian tribe.
(C) Report.--The Secretary, in consultation with Arizona
Indian tribes and the State, shall prepare a report for
Congress by December 31, 2016, that assesses whether the
potential benefits of subparagraph (A) are being conveyed to
Arizona Indian tribes pursuant to water rights settlements
enacted subsequent to this Act. For those Arizona Indian
tribes that have not yet settled water rights claims, the
Secretary shall describe whether any active negotiations are
taking place, and identify any critical water needs that
exist on the reservation of each such Arizona Indian tribe.
The Secretary shall also identify and report on the use of
unused quantities of agricultural priority water made
available to Arizona Indian tribes under subparagraph (A).
(2) Reallocation to the arizona department of water
resources.--
(A) In general.--Subject to subparagraph (B) and
subparagraph 9.3 of the master agreement, the Secretary shall
reallocate up to 96,295 acre-feet of agricultural priority
water made available pursuant to the master agreement to the
Arizona Department of Water Resources, to be held under
contract in trust for further allocation under subparagraph
(C).
[[Page H9796]]
(B) Required documentation.--The reallocation of
agricultural priority water under subparagraph (A) is subject
to the condition that the Secretary execute any appropriate
documents to memorialize the reallocation, including--
(i) an allocation decision; and
(ii) a contract that prohibits the direct use of the
agricultural priority water by the Arizona Department of
Water Resources.
(C) Further allocation.--With respect to the allocation of
agricultural priority water under subparagraph (A)--
(i) before that water may be further allocated--
(I) the Director shall submit to the Secretary, and the
Secretary shall receive, a recommendation for reallocation;
(II) as soon as practicable after receiving the
recommendation, the Secretary shall carry out all necessary
reviews of the proposed reallocation, in accordance with
applicable Federal law; and
(III) if the recommendation is rejected by the Secretary,
the Secretary shall--
(aa) request a revised recommendation from the Director;
and
(bb) proceed with any reviews required under subclause
(II); and
(ii) as soon as practicable after the date on which
agricultural priority water is further allocated, the
Secretary shall offer to enter into a subcontract for that
water in accordance with paragraphs (1) and (2) of subsection
(d).
(D) Master agreement.--The reallocation of agricultural
priority water under subparagraphs (A) and (C) is subject to
the master agreement, including certain rights provided by
the master agreement to water users in Pinal County, Arizona.
(3) Priority.--The agricultural priority water reallocated
under paragraphs (1) and (2) shall be subject to the
condition that the water retain its non-Indian agricultural
delivery priority.
(b) Uncontracted Central Arizona Project Municipal and
Industrial Priority Water.--
(1) Reallocation.--The Secretary shall, on the
recommendation of the Director, reallocate 65,647 acre-feet
of uncontracted municipal and industrial water, of which--
(A) 285 acre-feet shall be reallocated to the town of
Superior, Arizona;
(B) 806 acre-feet shall be reallocated to the Cave Creek
Water Company;
(C) 1,931 acre-feet shall be reallocated to the Chaparral
Water Company;
(D) 508 acre-feet shall be reallocated to the town of El
Mirage, Arizona;
(E) 7,211 acre-feet shall be reallocated to the city of
Goodyear, Arizona;
(F) 147 acre-feet shall be reallocated to the H2O Water
Company;
(G) 7,115 acre-feet shall be reallocated to the city of
Mesa, Arizona;
(H) 5,527 acre-feet shall be reallocated to the city of
Peoria, Arizona;
(I) 2,981 acre-feet shall be reallocated to the city of
Scottsdale, Arizona;
(J) 808 acre-feet shall be reallocated to the AVRA
Cooperative;
(K) 4,986 acre-feet shall be reallocated to the city of
Chandler, Arizona;
(L) 1,071 acre-feet shall be reallocated to the Del Lago
(Vail) Water Company;
(M) 3,053 acre-feet shall be reallocated to the city of
Glendale, Arizona;
(N) 1,521 acre-feet shall be reallocated to the Community
Water Company of Green Valley, Arizona;
(O) 4,602 acre-feet shall be reallocated to the
Metropolitan Domestic Water Improvement District;
(P) 3,557 acre-feet shall be reallocated to the town of Oro
Valley, Arizona;
(Q) 8,206 acre-feet shall be reallocated to the city of
Phoenix, Arizona;
(R) 2,876 acre-feet shall be reallocated to the city of
Surprise, Arizona;
(S) 8,206 acre-feet shall be reallocated to the city of
Tucson, Arizona; and
(T) 250 acre-feet shall be reallocated to the Valley
Utilities Water Company.
(2) Subcontracts.--
(A) In general.--As soon as practicable after the date of
enactment of this Act, and in accordance with paragraphs (1)
and (2) of subsection (d) and any other applicable Federal
laws, the Secretary shall offer to enter into subcontracts
for the delivery of the uncontracted municipal and industrial
water reallocated under paragraph (1).
(B) Revised recommendation.--If the Secretary is precluded
under applicable Federal law from entering into a subcontract
with an entity identified in paragraph (1), the Secretary
shall--
(i) request a revised recommendation from the Director; and
(ii) on receipt of a recommendation under clause (i),
reallocate and enter into a subcontract for the delivery of
the water in accordance with subparagraph (A).
(c) Limitations.--
(1) Amount.--
(A) In general.--The total amount of entitlements under
long-term contracts (as defined in the repayment stipulation)
for the delivery of Central Arizona Project water in the
State shall not exceed 1,415,000 acre-feet, of which--
(i) 650,724 acre-feet shall be--
(I) under contract to Arizona Indian tribes; or
(II) available to the Secretary for allocation to Arizona
Indian tribes; and
(ii) 764,276 acre-feet shall be under contract or available
for allocation to--
(I) non-Indian municipal and industrial entities;
(II) the Arizona Department of Water Resources; and
(III) non-Indian agricultural entities.
(B) Exception.--Subparagraph (A) shall not apply to Central
Arizona Project water delivered to water users in Arizona in
exchange for Gila River water used in New Mexico as provided
in section 304 of the Colorado River Basin Project Act (43
U.S.C. 1524) (as amended by section 212).
(2) Transfer.--
(A) In general.--Except pursuant to the master agreement,
Central Arizona Project water may not be transferred from--
(i) a use authorized under paragraph (1)(A)(i) to a use
authorized under paragraph (1)(A)(ii); or
(ii) a use authorized under paragraph (1)(A)(ii) to a use
authorized under paragraph (1)(A)(i).
(B) Exceptions.--
(i) Leases.--A lease of Central Arizona Project water by an
Arizona Indian tribe to an entity described in paragraph
(1)(A)(ii) under an Indian water rights settlement approved
by an Act of Congress shall not be considered to be a
transfer for purposes of subparagraph (A).
(ii) Exchanges.--An exchange of Central Arizona Project
water by an Arizona Indian tribe to an entity described in
paragraph (1)(A)(ii) shall not be considered to be a transfer
for purposes of subparagraph (A).
(iii) Notwithstanding subparagraph (A), up to 17,000 acre-
feet of CAP municipal and industrial water under the
subcontract among the United States, the Central Arizona
Water Conservation District, and Asarco, subcontract No. 3-
07-30-W0307, dated November 7, 1993, may be reallocated to
the Community on execution of an exchange and lease agreement
among the Community, the United States, and Asarco.
(d) Central Arizona Project Contracts and Subcontracts.--
(1) In general.--Notwithstanding section 6 of the
Reclamation Project Act of 1939 (43 U.S.C. 485e), and
paragraphs (2) and (3) of section 304(b) of the Colorado
River Basin Project Act (43 U.S.C. 1524(b)), as soon as
practicable after the date of enactment of this Act, the
Secretary shall offer to enter into subcontracts or to amend
all Central Arizona Project contracts and subcontracts in
effect as of that date in accordance with paragraph (2).
(2) Requirements.--All subcontracts and amendments to
Central Arizona Project contracts and subcontracts under
paragraph (1)--
(A) shall be for permanent service (within the meaning of
section 5 of the Boulder Canyon Project Act of 1928 (43
U.S.C. 617d));
(B) shall have an initial delivery term that is the greater
of--
(i) 100 years; or
(ii) a term--
(I) authorized by Congress; or
(II) provided under the appropriate Central Arizona Project
contract or subcontract in existence on the date of enactment
of this Act;
(C) shall conform to the shortage sharing criteria
described in paragraph 5.3 of the Tohono O'odham settlement
agreement;
(D) shall include the prohibition and exception described
in subsection (e); and
(E) shall not require--
(i) that any Central Arizona Project water received in
exchange for effluent be deducted from the contractual
entitlement of the CAP contractor or CAP subcontractor; or
(ii) that any additional modification of the Central
Arizona Project contracts or subcontracts be made as a
condition of acceptance of the subcontract or amendments.
(3) Applicability.--This subsection does not apply to--
(A) a subcontract for non-Indian agricultural use; or
(B) a contract executed under paragraph 5(d) of the
repayment stipulation.
(e) Prohibition on Transfer.--
(1) In general.--Except as provided in paragraph (2), no
Central Arizona Project water shall be leased, exchanged,
forborne, or otherwise transferred in any way for use
directly or indirectly outside the State.
(2) Exceptions.--Central Arizona Project water may be--
(A) leased, exchanged, forborne, or otherwise transferred
under an agreement with the Arizona Water Banking Authority
that is in accordance with part 414 of title 43, Code of
Federal Regulations; and
(B) delivered to users in Arizona in exchange for Gila
River water used in New Mexico as provided in section 304 of
the Colorado River Basin Project Act (43 U.S.C. 1524) (as
amended by section 212).
(3) Effect of subsection.--Nothing in this subsection
prohibits any entity from entering into a contract with the
Arizona Water Banking Authority or a successor of the
Authority under State law.
SEC. 105. FIRMING OF CENTRAL ARIZONA PROJECT INDIAN WATER.
(a) Firming Program.--The Secretary and the State shall
develop a firming program to ensure that 60,648 acre-feet of
the agricultural priority water made available pursuant to
the master agreement and reallocated to Arizona Indian tribes
under section 104(a)(1), shall, for a 100-year period, be
delivered during water shortages in the same manner as water
with a municipal and industrial delivery priority in the
Central Arizona Project system is delivered during water
shortages.
(b) Duties.--
(1) Secretary.--The Secretary shall--
[[Page H9797]]
(A) firm 28,200 acre-feet of agricultural priority water
reallocated to the Tohono O'odham Nation under section
104(a)(1)(A)(ii); and
(B) firm 8,724 acre-feet of agricultural priority water
reallocated to Arizona Indian tribes under section
104(a)(1)(A)(iii).
(2) State.--The State shall--
(A) firm 15,000 acre-feet of agricultural priority water
reallocated to the Community under section 104(a)(1)(A)(i);
(B) firm 8,724 acre-feet of agricultural priority water
reallocated to Arizona Indian tribes under section
104(a)(1)(A)(iii); and
(C) assist the Secretary in carrying out obligations of the
Secretary under paragraph (1)(A) in accordance with section
306 of the Southern Arizona Water Rights Settlement
Amendments Act (as added by section 301).
(c) Authorization of Appropriations.--There are authorized
to be appropriated to the Secretary such sums as are
necessary to carry out the duties of the Secretary under
subsection (b)(1).
SEC. 106. ACQUISITION OF AGRICULTURAL PRIORITY WATER.
(a) Approval of Agreement.--
(1) In general.--Except to the extent that any provision of
the master agreement conflicts with any provision of this
title, the master agreement is authorized, ratified, and
confirmed. To the extent that amendments are executed to make
the master agreement consistent with this title, such
amendments are also authorized, ratified, and confirmed.
(2) Exhibits.--The Secretary is directed to and shall
execute the master agreement and any of the exhibits to the
master agreement that have not been executed as of the date
of enactment of this Act.
(3) Debt collection.--For any agricultural priority water
that is not relinquished under the master agreement, the
subcontractor shall continue to pay, consistent with the
master agreement, the portion of the debt associated with any
retained water under section 9(d) of the Reclamation Project
Act of 1939 (43 U.S.C. 485h(d)), and the Secretary shall
apply such revenues toward the reimbursable section 9(d) debt
of that subcontractor.
(4) Effective date.--The provisions of subsections (b) and
(c) shall take effect on the date of enactment of this Act.
(b) Nonreimbursable Debt.--
(1) In general.--In accordance with the master agreement,
the portion of debt incurred under section 9(d) of the
Reclamation Project Act of 1939 (43 U.S.C. 485h(d)), and
identified in the master agreement as nonreimbursable to the
United States, shall be nonreimbursable and nonreturnable to
the United States in an amount not to exceed $73,561,337.
(2) Extension.--In accordance with the master agreement,
the Secretary may extend, on an annual basis, the repayment
schedule of debt incurred under section 9(d) of the
Reclamation Project Act of 1939 (43 U.S.C. 485h(d)) by CAP
subcontractors.
(c) Exemption.--The Reclamation Reform Act of 1982 (43
U.S.C. 390aa et seq.) and any other acreage limitation or
full cost pricing provisions of Federal law shall not apply
to--
(1) land within the exterior boundaries of the Central
Arizona Water Conservation District or served by Central
Arizona Project water;
(2) land within the exterior boundaries of the Salt River
Reservoir District;
(3) land held in trust by the United States for an Arizona
Indian tribe that is--
(A) within the exterior boundaries of the Central Arizona
Water Conservation District; or
(B) served by Central Arizona Project water; or
(4) any person, entity, or land, solely on the basis of--
(A) receipt of any benefits under this Act;
(B) execution or performance of the Gila River agreement;
or
(C) the use, storage, delivery, lease, or exchange of
Central Arizona Project water.
SEC. 107. LOWER COLORADO RIVER BASIN DEVELOPMENT FUND.
(a) In General.--Section 403 of the Colorado River Basin
Project Act (43 U.S.C. 1543) is amended by striking
subsection (f) and inserting the following:
``(f) Additional Uses of Revenue Funds.--
``(1) Crediting against central arizona water conservation
district payments.--Funds credited to the development fund
pursuant to subsection (b) and paragraphs (1) and (3) of
subsection (c), the portion of revenues derived from the sale
of power and energy for use in the State of Arizona pursuant
to subsection (c)(2) in excess of the amount necessary to
meet the requirements of paragraphs (1) and (2) of subsection
(d), and any annual payment by the Central Arizona Water
Conservation District to effect repayment of reimbursable
Central Arizona Project construction costs, shall be credited
annually against the annual payment owed by the Central
Arizona Water Conservation District to the United States for
the Central Arizona Project.
``(2) Further use of revenue funds credited against
payments of central arizona water conservation district.--
After being credited in accordance with paragraph (1), the
funds and portion of revenues described in that paragraph
shall be available annually, without further appropriation,
in order of priority--
``(A) to pay annually the fixed operation, maintenance, and
replacement charges associated with the delivery of Central
Arizona Project water held under long-term contracts for use
by Arizona Indian tribes (as defined in section 2 of the
Arizona Water Settlements Act) in accordance with clause
8(d)(i)(1)(i) of the Repayment Stipulation (as defined in
section 2 of the Arizona Water Settlements Act);
``(B) to make deposits, totaling $53,000,000 in the
aggregate, in the Gila River Indian Community Water OM&R
Trust Fund established by section 208 of the Arizona Water
Settlements Act;
``(C) to pay $147,000,000 for the rehabilitation of the San
Carlos Irrigation Project, of which not more than $25,000,000
shall be available annually consistent with attachment 6.5.1
of exhibit 20.1 of the Gila River agreement, except that the
total amount of $147,000,000 shall be increased or decreased,
as appropriate, based on ordinary fluctuations since January
1, 2000, in construction cost indices applicable to the types
of construction involved in the rehabilitation;
``(D) in addition to amounts made available for the purpose
through annual appropriations, as reasonably allocated by the
Secretary without regard to any trust obligation on the part
of the Secretary to allocate the funding under any particular
priority and without regard to priority (except that payments
required by clause (i) shall be made first)--
``(i) to make deposits totaling $66,000,000, adjusted to
reflect changes since January 1, 2004, in the construction
cost indices applicable to the types of construction involved
in construction of the New Mexico Unit, into the New Mexico
Unit Fund as provided by section 212(i) of the Arizona Water
Settlements Act in 10 equal annual payments beginning in
2012;
``(ii) upon satisfaction of the conditions set forth in
subsections (j) and (k) of section 212, to pay certain of the
costs associated with construction of the New Mexico Unit, in
addition to any amounts that may be expended from the New
Mexico Unit Fund, in a minimum amount of $34,000,000 and a
maximum amount of $62,000,000, as provided in section 212 of
the Arizona Water Settlements Act, as adjusted to reflect
changes since January 1, 2004, in the construction cost
indices applicable to the types of construction involved in
construction of the New Mexico Unit;
``(iii) to pay the costs associated with the construction
of distribution systems required to implement the provisions
of--
``(I) the contract entered into between the United States
and the Gila River Indian Community, numbered 6-07-03-W0345,
and dated July 20, 1998;
``(II) section 3707(a)(1) of the San Carlos Apache Tribe
Water Rights Settlement Act of 1992 (106 Stat. 4747); and
``(III) section 304 of the Southern Arizona Water Rights
Settlement Amendments Act of 2004;
``(iv) to pay $52,396,000 for the rehabilitation of the San
Carlos Irrigation Project as provided in section 203(d)(4) of
the Arizona Water Settlements Act, of which not more than
$9,000,000 shall be available annually, except that the total
amount of $52,396,000 shall be increased or decreased, as
appropriate, based on ordinary fluctuations since January 1,
2000, in construction cost indices applicable to the types of
construction involved in the rehabilitation;
``(v) to pay other costs specifically identified under--
``(I) sections 213(g)(1) and 214 of the Arizona Water
Settlements Act; and
``(II) the Southern Arizona Water Rights Settlement
Amendments Act of 2004;
``(vi) to pay a total of not more than $250,000,000 to the
credit of the Future Indian Water Settlement Subaccount of
the Lower Colorado Basin Development Fund, for use for Indian
water rights settlements in Arizona approved by Congress
after the date of enactment of this Act, subject to the
requirement that, notwithstanding any other provision of this
Act, any funds credited to the Future Indian Water Settlement
Subaccount that are not used in furtherance of a
congressionally approved Indian water rights settlement in
Arizona by December 31, 2030, shall be returned to the main
Lower Colorado Basin Development Fund for expenditure on
authorized uses pursuant to this Act, provided that any
interest earned on funds held in the Future Indian Water
Settlement Subaccount shall remain in such subaccount until
disbursed or returned in accordance with this section;
``(vii) to pay costs associated with the installation of
gages on the Gila River and its tributaries to measure the
water level of the Gila River and its tributaries for
purposes of the New Mexico Consumptive Use and Forbearance
Agreement in an amount not to exceed $500,000; and
``(viii) to pay the Secretary's costs of implementing the
Central Arizona Project Settlement Act of 2004;
``(E) in addition to amounts made available for the purpose
through annual appropriations--
``(i) to pay the costs associated with the construction of
on-reservation Central Arizona Project distribution systems
for the Yavapai Apache (Camp Verde), Tohono O'odham Nation
(Sif Oidak District), Pascua Yaqui, and Tonto Apache tribes;
and
``(ii) to make payments to those tribes in accordance with
paragraph 8(d)(i)(1)(iv) of the repayment stipulation (as
defined in section 2 of the Arizona Water Settlements Act),
except that if a water rights settlement Act of Congress
authorizes such construction, payments to those tribes shall
be made from funds in the Future Indian Water Settlement
Subaccount; and
[[Page H9798]]
``(F) if any amounts remain in the development fund at the
end of a fiscal year, to be carried over to the following
fiscal year for use for the purposes described in
subparagraphs (A) through (E).
``(3) Revenue funds in excess of revenue funds credited
against Central Arizona water conservation district
payments.--The funds and portion of revenues described in
paragraph (1) that are in excess of amounts credited under
paragraph (1) shall be available, on an annual basis, without
further appropriation, in order of priority--
``(A) to pay annually the fixed operation, maintenance and
replacement charges associated with the delivery of Central
Arizona Project water under long-term contracts held by
Arizona Indian tribes (as defined in section 2 of the Arizona
Water Settlements Act);
``(B) to make the final outstanding annual payment for the
costs of each unit of the projects authorized under title III
that are to be repaid by the Central Arizona Water
Conservation District;
``(C) to reimburse the general fund of the Treasury for
fixed operation, maintenance, and replacement charges
previously paid under paragraph (2)(A);
``(D) to reimburse the general fund of the Treasury for
costs previously paid under subparagraphs (B) through (E) of
paragraph (2);
``(E) to pay to the general fund of the Treasury the annual
installment on any debt relating to the Central Arizona
Project under section 9(d) of the Reclamation Project Act of
1939 (43 U.S.C. 485h(d)), made nonreimbursable under section
106(b) of the Arizona Water Settlements Act;
``(F) to pay to the general fund of the Treasury the
difference between--
``(i) the costs of each unit of the projects authorized
under title III that are repayable by the Central Arizona
Water Conservation District; and
``(ii) any costs allocated to reimbursable functions under
any Central Arizona Project cost allocation undertaken by the
United States; and
``(G) for deposit in the general fund of the Treasury.
``(4) Investment of amounts.--
``(A) In general.--The Secretary of the Treasury shall
invest such portion of the development fund as is not, in the
judgment of the Secretary of the Interior, required to meet
current needs of the development fund.
``(B) Permitted investments.--
``(i) In general.--Notwithstanding any other provision of
law, including any provision requiring the consent or
concurrence of any party, the investments referred to in
subparagraph (A) shall include 1 or more of the following:
``(I) Any investments referred to in the Act of June 24,
1938 (25 U.S.C. 162a).
``(II) Investments in obligations of government
corporations and government-sponsored entities whose charter
statutes provide that their obligations are lawful
investments for federally managed funds.
``(III) The obligations referred to in section 201 of the
Social Security Act (42 U.S.C. 401).
``(ii) Lawful investments.--For purposes of clause (i),
obligations of government corporations and government-
sponsored entities whose charter statutes provide that their
obligations are lawful investments for federally managed
funds includes any of the following securities or securities
with comparable language concerning the investment of
federally managed funds:
``(I) Obligations of the United States Postal Service as
authorized by section 2005 of title 39, United States Code.
``(II) Bonds and other obligations of the Tennessee Valley
Authority as authorized by section 15d of the Tennessee
Valley Authority Act of 1933 (16 U.S.C. 831n-4).
``(III) Mortgages, obligations, or other securities of the
Federal Home Loan Mortgage Corporation as authorized by
section 303 of the Federal Home Loan Mortgage Corporation Act
(12 U.S.C. 1452).
``(IV) Bonds, notes, or debentures of the Commodity Credit
Corporation as authorized by section 4 of the Act of March 4,
1939 (15 U.S.C. 713a-4).
``(C) Acquisition of obligations.--For the purpose of
investments under subparagraph (A), obligations may be
acquired--
``(i) on original issue at the issue price; or
``(ii) by purchase of outstanding obligations at the market
price.
``(D) Sale of obligations.--Any obligation acquired by the
development fund may be sold by the Secretary of the Treasury
at the market price.
``(E) Credits to fund.--The interest on, and the proceeds
from the sale or redemption of, any obligations held in the
development fund shall be credited to and form a part of the
development fund.
``(5) Amounts not available for certain federal
obligations.--None of the provisions of this section,
including paragraphs (2)(A) and (3)(A), shall be construed to
make any of the funds referred to in this section available
for the fulfillment of any Federal obligation relating to the
payment of OM&R charges if such obligation is undertaken
pursuant to Public Law 95-328, Public Law 98-530, or any
settlement agreement with the United States (or amendments
thereto) approved by or pursuant to either of those acts.''.
(b) Limitation.--Amounts made available under the amendment
made by subsection (a)--
(1) shall be identified and retained in the Lower Colorado
River Basin Development Fund established by section 403 of
the Colorado River Basin Project Act (43 U.S.C. 1543); and
(2) shall not be expended or withdrawn from that fund until
the later of--
(A) the date on which the findings described in section
207(c) are published in the Federal Register; or
(B) January 1, 2010.
(c) Technical Amendments.--The Colorado River Basin Project
Act (43 U.S.C. 1501 et seq.) is amended--
(1) in section 403(g), by striking ``clause (c)(2)'' and
inserting ``subsection (c)(2)''; and
(2) in section 403(e), by deleting the first word and
inserting ``Except as provided in subsection (f), revenues''.
SEC. 108. EFFECT.
Except for provisions relating to the allocation of Central
Arizona Project water and the Reclamation Reform Act of 1982
(43 U.S.C. 390aa et seq.), nothing in this title affects--
(1) any treaty, law, or agreement governing the use of
water from the Colorado River; or
(2) any rights to use Colorado River water existing on the
date of enactment of this Act.
SEC. 109. REPEAL.
Section 11(h) of the Salt River Pima-Maricopa Indian
Community Water Rights Settlement Act of 1988 (102 Stat.
2559) is repealed.
SEC. 110. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated
such sums as are necessary to comply with--
(1) the 1994 biological opinion, including any funding
transfers required by the opinion;
(2) the 1996 biological opinion, including any funding
transfers required by the opinion; and
(3) any final biological opinion resulting from the 1999
biological opinion, including any funding transfers required
by the opinion.
(b) Construction Costs.--Amounts made available under
subsection (a) shall be treated as Central Arizona Project
construction costs.
(c) Agreements.--
(1) In general.--Any amounts made available under
subsection (a) may be used to carry out agreements to
permanently fund long-term reasonable and prudent
alternatives in accepted biological opinions relating to the
Central Arizona Project.
(2) Requirements.--To ensure that long-term environmental
compliance may be met without further appropriations, an
agreement under paragraph (1) shall include a provision
requiring that the contractor manage the funds through
interest-bearing investments.
SEC. 111. REPEAL ON FAILURE OF ENFORCEABILITY DATE UNDER
TITLE II.
(a) In General.--Except as provided in subsection (b), if
the Secretary does not publish a statement of findings under
section 207(c) by December 31, 2007--
(1) this title is repealed effective January 1, 2008, and
any action taken by the Secretary and any contract entered
under any provision of this title shall be void; and
(2) any amounts appropriated under section 110 that remain
unexpended shall immediately revert to the general fund of
the Treasury.
(b) Exception.--No subcontract amendment executed by the
Secretary under the notice of June 18, 2003 (67 Fed. Reg.
36578), shall be considered to be a contract entered into by
the Secretary for purposes of subsection (a)(1).
TITLE II--GILA RIVER INDIAN COMMUNITY WATER RIGHTS SETTLEMENT
SEC. 201. SHORT TITLE.
This title may be cited as the ``Gila River Indian
Community Water Rights Settlement Act of 2004''.
SEC. 202. PURPOSES.
The purposes of this title are--
(1) to resolve permanently certain damage claims and all
water rights claims among the United States on behalf of the
Community, its members, and allottees, and the Community and
its neighbors;
(2) to authorize, ratify, and confirm the Gila River
agreement;
(3) to authorize and direct the Secretary to execute and
perform all obligations of the Secretary under the Gila River
agreement;
(4) to authorize the actions and appropriations necessary
for the United States to meet obligations of the United
States under the Gila River agreement and this title; and
(5) to authorize and direct the Secretary to execute the
New Mexico Consumptive Use and Forbearance Agreement to allow
the Secretary to exercise the rights authorized by
subsections (d) and (f) of section 304 of the Colorado River
Basin Project Act (43 U.S.C. 1524).
SEC. 203. APPROVAL OF THE GILA RIVER INDIAN COMMUNITY WATER
RIGHTS SETTLEMENT AGREEMENT.
(a) In General.--Except to the extent that any provision of
the Gila River agreement conflicts with any provision of this
title, the Gila River agreement is authorized, ratified, and
confirmed. To the extent amendments are executed to make the
Gila River agreement consistent with this title, such
amendments are also authorized, ratified, and confirmed.
(b) Execution of Agreement.--To the extent that the Gila
River agreement does not conflict with this title, the
Secretary is directed to and shall execute the Gila River
[[Page H9799]]
agreement, including all exhibits to the Gila River agreement
requiring the signature of the Secretary and any amendments
necessary to make the Gila River agreement consistent with
this title, after the Community has executed the Gila River
agreement and any such amendments.
(c) National Environmental Policy Act.--
(1) Environmental compliance.--In implementing the Gila
River agreement, 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
Acts and regulations.
(2) Execution of the gila river agreement.--Execution of
the Gila River agreement by the Secretary under this section
shall not constitute a major Federal action under the
National Environmental Policy Act (42 U.S.C. 4321 et seq.).
The Secretary is directed to carry out all necessary
environmental compliance required by Federal law in
implementing the Gila River agreement.
(3) Lead agency.--The Bureau of Reclamation shall be
designated as the lead agency with respect to environmental
compliance.
(d) Rehabilitation and Operation, Maintenance, and
Replacement of Certain Water Works.--
(1) In general.--In addition to any obligations of the
Secretary with respect to the San Carlos Irrigation Project,
including any operation or maintenance responsibility
existing on the date of enactment of this Act, the Secretary
shall--
(A) in accordance with exhibit 20.1 to the Gila River
agreement, provide for the rehabilitation of the San Carlos
Irrigation Project water diversion and delivery works with
the funds provided for under section 403(f)(2) of the
Colorado River Basin Project Act; and
(B) provide electric power for San Carlos Irrigation
Project wells and irrigation pumps at the Secretary's direct
cost of transmission, distribution, and administration, using
the least expensive source of power available.
(2) Joint control board agreement.--
(A) In general.--Except to the extent that it is in
conflict with this title, the Secretary shall execute the
joint control board agreement described in exhibit 20.1 to
the Gila River agreement, including all exhibits to the joint
control board agreement requiring the signature of the
Secretary and any amendments necessary to the joint control
board agreement consistent with this title.
(B) Controls.--The joint control board agreement shall
contain the following provisions, among others:
(i) The Secretary, acting through the Bureau of Indian
Affairs, shall continue to be responsible for the operation
and maintenance of Picacho Dam and Coolidge Dam and
Reservoir, and for scheduling and delivering water to the
Community and the District through the San Carlos Irrigation
Project joint works.
(ii) The actions and decisions of the joint control board
that pertain to construction and maintenance of those San
Carlos Irrigation Project joint works that are the subject of
the joint control board agreement shall be subject to the
approval of the Secretary, acting through the Bureau of
Indian Affairs within 30 days thereof, or sooner in emergency
situations, which approval shall not be unreasonably
withheld. Should a required decision of the Bureau of Indian
Affairs not be received by the joint control board within 60
days following an action or decision of the joint control
board, the joint control board action or decision shall be
deemed to have been approved by the Secretary.
(3) Rehabilitation costs allocable to the community.--The
rehabilitation costs allocable to the Community under exhibit
20.1 to the Gila River agreement shall be paid from the funds
available under paragraph (2)(C) of section 403(f) of the
Colorado River Basin Project Act (43 U.S.C. 1543(f)) (as
amended by section 107(a)).
(4) Rehabilitation costs not allocable to the community.--
(A) In general.--The rehabilitation costs not allocable to
the Community under exhibit 20.1 to the Gila River agreement
shall be provided from funds available under paragraph
(2)(D)(iv) of section 403(f) of the Colorado River Basin
Project Act (43 U.S.C. 1543(f)) (as amended by section
107(a)).
(B) Supplementary repayment contract.--Prior to the advance
of any funds made available to the San Carlos Irrigation and
Drainage District pursuant to the provisions of this Act, the
Secretary shall execute a supplementary repayment contract
with the San Carlos Irrigation and Drainage District in the
form provided for in exhibit 20.1 to the Gila River agreement
which shall, among other things, provide that--
(i) in accomplishing the work under the supplemental
repayment contract--
(I) the San Carlos Irrigation and Drainage District--
(aa) may use locally accepted engineering standards and the
labor and contracting authorities that are available to the
District under State law; and
(bb) shall be subject to the value engineering program of
the Bureau of Reclamation established pursuant to OMB
Circular A-131; and
(II) in accordance with FAR Part 48.101(b), the incentive
returned to the contractor through this ``Incentive Clause''
shall be 55 percent after the Contractor is reimbursed for
the allowable costs of developing and implementing the
proposal and the Government shall retain 45 percent of such
savings in the form of reduced expenditures;
(ii) up to 18,000 acre-feet annually of conserved water
will be made available by the San Carlos Irrigation and
Drainage District to the United States pursuant to the terms
of exhibit 20.1 to the Gila River agreement; and
(iii) a portion of the San Carlos Irrigation and Drainage
District's share of the rehabilitation costs specified in
exhibit 20.1 to the Gila River agreement shall be
nonreimbursable.
(5) Lead agency.--The Bureau of Reclamation shall be
designated as the lead agency for oversight of the
construction and rehabilitation of the San Carlos Irrigation
Project authorized by this section.
(6) Financial responsibility.--Except as expressly provided
by this section, nothing in this Act shall affect--
(A) any responsibility of the Secretary under the
provisions of the Act of June 7, 1924 (commonly known as the
``San Carlos Irrigation Project Act of 1924'') (43 Stat.
475); or
(B) any other financial responsibility of the Secretary
relating to operation and maintenance of the San Carlos
Irrigation Project existing on the date of enactment of this
Act.
SEC. 204. WATER RIGHTS.
(a) Rights Held in Trust; Allottees.--
(1) Intent of congress.--It is the intent of Congress to
provide allottees with benefits that are equal to or that
exceed the benefits that the allottees currently possess,
taking into account--
(A) the potential risks, cost, and time delay associated
with the litigation that will be resolved by the Gila River
agreement;
(B) the availability of funding under title I for the
rehabilitation of the San Carlos Irrigation Project and for
other benefits;
(C) the availability of water from the CAP system and other
sources after the enforceability date, which will supplement
less secure existing water supplies; and
(D) the applicability of section 7 of the Act of February
8, 1887 (25 U.S.C. 381), and this title to protect the
interests of allottees.
(2) Holding in trust.--The water rights and resources
described in the Gila River agreement shall be held in trust
by the United States on behalf of the Community and the
allottees as described in this section.
(3) Allotted land.--As specified in and provided for under
this Act--
(A) agricultural allottees, other than allottees with
rights under the Globe Equity Decree, shall be entitled to a
just and equitable allocation of water from the Community for
irrigation purposes from the water resources described in the
Gila River agreement;
(B) allotted land with rights under the Globe Equity Decree
shall be entitled to receive--
(i) a similar quantity of water from the Community to the
quantity historically delivered under the Globe Equity
Decree; and
(ii) the benefit of the rehabilitation of the San Carlos
Irrigation Project as provided in this Act, a more secure
source of water, and other benefits under this Act;
(C) the water rights and resources and other benefits
provided by this Act are a complete substitution of any
rights that may have been held by, or any claims that may
have been asserted by, the allottees before the date of
enactment of this Act for land within the exterior boundaries
of the Reservation;
(D) any entitlement to water of allottees for land located
within the exterior boundaries of the Reservation shall be
satisfied by the Community using the water resources
described in subparagraph 4.1 in the Gila River agreement;
(E) before asserting any claim against the United States
under section 1491(a) of title 28, United States Code, or
under section 7 of the Act of February 8, 1887 (25 U.S.C.
381), an allottee shall first exhaust remedies available to
the allottee under the Community's water code and Community
law; and
(F) following exhaustion of remedies on claims relating to
section 7 of the Act of February 8, 1887 (25 U.S.C. 381), a
claimant may petition the Secretary for relief.
(4) Actions, claims, and lawsuits.--
(A) In general.--Nothing in this Act authorizes any action,
claim, or lawsuit by an allottee against any person, entity,
corporation, or municipal corporation, under Federal, State,
or other law.
(B) The community and the united states.--Except as
provided in subparagraphs (E) and (F) of paragraph (3) and
subsection (e)(2)(C), nothing in this Act either authorizes
any action, claim, or lawsuit by an allottee against the
Community under Federal, State, or other law, or alters
available actions pursuant to section 1491(a) of title 28, of
the United States Code, or section 381 of title 25, of the
United States Code.
(b) Reallocation.--
(1) In general.--In accordance with this title and the Gila
River agreement, the Secretary shall reallocate and contract
with the Community for the delivery in accordance with this
section of--
(A) an annual entitlement to 18,600 acre-feet of CAP
agricultural priority water in accordance with the agreement
among the Secretary, the Community, and Roosevelt Water
Conservation District dated August 7, 1992;
(B) an annual entitlement to 18,100 acre-feet of CAP Indian
priority water, which was
[[Page H9800]]
permanently relinquished by Harquahala Valley Irrigation
District in accordance with Contract No. 3-0907-0930-09W0290
among the Central Arizona Water Conservation District, the
Harquahala Valley Irrigation District, and the United States,
and converted to CAP Indian priority water under the Fort
McDowell Indian Community Water Rights Settlement Act of 1990
(104 Stat. 4480);
(C) on execution of an exchange and lease agreement among
the Community, the United States, and Asarco, an annual
entitlement of up to 17,000 acre-feet of CAP municipal and
industrial priority water under the subcontract among the
United States, the Central Arizona Water Conservation
District, and Asarco, Subcontract No. 3-07-30-W0307, dated
November 7, 1993; and
(D) as provided in section 104(a)(1)(A)(i), an annual
entitlement to 102,000 acre-feet of CAP agricultural priority
water acquired pursuant to the master agreement.
(2) Sole authority.--In accordance with this section, the
Community shall have the sole authority, subject to the
Secretary's approval pursuant to section 205(a)(2), to lease,
distribute, exchange, or allocate the CAP water described in
this subsection, except that this paragraph shall not impair
the right of an allottee to lease land of the allottee
together with the water rights appurtenant to the land.
Nothing in this paragraph shall affect the validity of any
lease or exchange ratified in section 205(c) or 205(d).
(c) Water Service Capital Charges.--The Community shall not
be responsible for water service capital charges for CAP
water.
(d) Allocation and Repayment.--For the purpose of
determining the allocation and repayment of costs of any
stages of the Central Arizona Project constructed after the
date of enactment of this Act, the costs associated with the
delivery of water described in subsection (b), whether that
water is delivered for use by the Community or in accordance
with any assignment, exchange, lease, option to lease, or
other agreement for the temporary disposition of water
entered into by the Community--
(1) shall be nonreimbursable; and
(2) shall be excluded from the repayment obligation of the
Central Arizona Water Conservation District.
(e) Application of Provisions.--
(1) In general.--The water rights recognized and confirmed
to the Community and allottees by the Gila River agreement
and this title shall be subject to section 7 of the Act of
February 8, 1887 (25 U.S.C. 381).
(2) Water code.--
(A) In general.--Not later than 18 months after the
enforceability date, the Community shall enact a water code,
subject to any applicable provision of law (including
subsection (a)(3)), that--
(i) manages, regulates, and controls the water resources on
the Reservation;
(ii) governs all of the water rights that are held in trust
by the United States; and
(iii) provides that, subject to approval of the Secretary--
(I) the Community shall manage, regulate, and control the
water resources described in the Gila River agreement and
allocate water to all water users on the Reservation pursuant
to the water code;
(II) the Community shall establish conditions, limitations,
and permit requirements relating to the storage, recovery,
and use of the water resources described in the Gila River
agreement;
(III) any allocation of water shall be from the pooled
water resources described in the Gila River agreement;
(IV) charges for delivery of water for irrigation purposes
to water users on the Reservation (including water users on
allotted land) shall be assessed on a just and equitable
basis without regard to the status of the Reservation land on
which the water is used;
(V) there is a process by which any user of or applicant to
use water for irrigation purposes (including water users on
allotted land) may request that the Community provide water
for irrigation use in accordance with this title;
(VI) there is a due process system for the consideration
and determination by the Community of any request by any
water user on the Reservation (including water users on
allotted land), for an allocation of water, including a
process for appeal and adjudication of denied or disputed
distributions of water and for resolution of contested
administrative decisions; and
(VII) there is a requirement that any allottee with a claim
relating to the enforcement of rights of the allottee under
the water code or relating to the amount of water allocated
to land of the allottee must first exhaust remedies available
to the allottee under Community law and the water code before
initiating an action against the United States or petitioning
the Secretary pursuant to subsection (a)(3)(F).
(B) Approval.--Any provision of the water code and any
amendments to the water code that affect the rights of the
allottees shall be subject to the approval of the Secretary,
and no such provision or amendment shall be valid until
approved by the Secretary.
(C) Inclusion of requirement in water code.--The Community
is authorized to and shall include in the water code the
requirement in subparagraph (A)(VII) that any allottee with a
claim relating to the enforcement of rights of the allottee
under the water code or relating to the amount of water
allocated to land of the allottee must first exhaust remedies
available to the allottee under Community law and the water
code before initiating an action against the United States.
(3) Administration.--The Secretary shall administer all
rights to water granted or confirmed to the Community and
allottees by the Gila River agreement and this Act until such
date as the water code described in paragraph (2) has been
enacted and approved by the Secretary, at which time the
Community shall have authority, subject to the Secretary's
authority under section 7 of the Act of February 8, 1887 (25
U.S.C. 381), to manage, regulate, and control the water
resources described in the Gila River agreement, subject to
paragraph (2), except that this paragraph shall not impair
the right of an allottee to lease land of the allottee
together with the water rights appurtenant to the land.
SEC. 205. COMMUNITY WATER DELIVERY CONTRACT AMENDMENTS.
(a) In General.--The Secretary shall amend the Community
water delivery contract to provide, among other things, in
accordance with the Gila River agreement, that--
(1) the contract shall be--
(A) for permanent service (as that term is used in section
5 of the Boulder Canyon Project Act (43 U.S.C. 617d)); and
(B) without limit as to term;
(2) the Community may, with the approval of the Secretary,
including approval as to the Secretary's authority under
section 7 of the Act of February 8, 1887 (25 U.S.C. 381)--
(A) enter into contracts or options to lease (for a term
not to exceed 100 years) or contracts or options to exchange,
Community CAP water within Maricopa, Pinal, Pima, La Paz,
Yavapai, Gila, Graham, Greenlee, Santa Cruz, or Coconino
Counties, Arizona, providing for the temporary delivery to
others of any portion of the Community CAP water; and
(B) renegotiate any lease at any time during the term of
the lease, so long as the term of the renegotiated lease does
not exceed 100 years;
(3)(A) the Community, and not the United States, shall be
entitled to all consideration due to the Community under any
leases or options to lease and exchanges or options to
exchange Community CAP water entered into by the Community;
and
(B) the United States shall have no trust obligation or
other obligation to monitor, administer, or account for--
(i) any funds received by the Community as consideration
under any such leases or options to lease and exchanges or
options to exchange; or
(ii) the expenditure of such funds;
(4)(A) all Community CAP water shall be delivered through
the CAP system; and
(B) if the delivery capacity of the CAP system is
significantly reduced or is anticipated to be significantly
reduced for an extended period of time, the Community shall
have the same CAP delivery rights as other CAP contractors
and CAP subcontractors, if such CAP contractors or CAP
subcontractors are allowed to take delivery of water other
than through the CAP system;
(5) the Community may use Community CAP water on or off the
Reservation for Community purposes;
(6) as authorized by subparagraph (A) of section 403(f)(2)
of the Colorado River Basin Project Act (43 U.S.C.
1543(f)(2)) (as amended by section 107(a)) and to the extent
that funds are available in the Lower Colorado River Basin
Development Fund established by section 403 of that Act (43
U.S.C. 1543), the United States shall pay to the CAP
operating agency the fixed OM&R charges associated with the
delivery of Community CAP water, except for Community CAP
water leased by others;
(7) the costs associated with the construction of the CAP
system allocable to the Community--
(A) shall be nonreimbursable; and
(B) shall be excluded from any repayment obligation of the
Community; and
(8) no CAP water service capital charges shall be due or
payable for Community CAP water, whether CAP water is
delivered for use by the Community or is delivered under any
leases, options to lease, exchanges or options to exchange
Community CAP water entered into by the Community.
(b) Amended and Restated Community Water Delivery
Contract.--To the extent it is not in conflict with the
provisions of this Act, the Amended and Restated Community
CAP Water Delivery Contract set forth in exhibit 8.2 to the
Gila River agreement is authorized, ratified, and confirmed,
and the Secretary is directed to and shall execute the
contract. To the extent amendments are executed to make the
Amended and Restated Community CAP Water Delivery Contract
consistent with this title, such amendments are also
authorized, ratified, and confirmed.
(c) Leases.--To the extent they are not in conflict with
the provisions of this Act, the leases of Community CAP water
by the Community to Phelps Dodge, and any of the Cities,
attached as exhibits to the Gila River agreement, are
authorized, ratified, and confirmed, and the Secretary is
directed to and shall execute the leases. To the extent
amendments are executed to make such leases consistent with
this title, such amendments are also authorized, ratified,
and confirmed.
(d) Reclaimed Water Exchange Agreement.--To the extent it
is not in conflict with the provisions of this Act, the
Reclaimed Water Exchange Agreement among the cities of
Chandler and Mesa, Arizona, the Community, and the United
States, attached
[[Page H9801]]
as exhibit 18.1 to the Gila River agreement, is authorized,
ratified, and confirmed, and the Secretary shall execute the
agreement. To the extent amendments are executed to make the
Reclaimed Water Exchange Agreement consistent with this
title, such amendments are also authorized, ratified, and
confirmed.
(e) Payment of Charges.--Neither the Community nor any
recipient of Community CAP water through lease or exchange
shall be obligated to pay water service capital charges or
any other charges, payments, or fees for the CAP water,
except as provided in the lease or exchange agreement.
(f) Prohibitions.--
(1) Use outside the state.--None of the Community CAP water
shall be leased, exchanged, forborne, or otherwise
transferred in any way by the Community for use directly or
indirectly outside the State.
(2) Use off reservation.--Except as authorized by this
section and subparagraph 4.7 of the Gila River agreement, no
water made available to the Community under the Gila River
agreement, the Globe Equity Decree, the Haggard Decree, or
this title may be sold, leased, transferred, or used off the
Reservation other than by exchange.
(3) Agreements with the arizona water banking authority.--
Nothing in this Act or the Gila River agreement limits the
right of the Community to enter into any agreement with the
Arizona Water Banking Authority, or any successor agency or
entity, in accordance with State law.
SEC. 206. SATISFACTION OF CLAIMS.
(a) In General.--The benefits realized by the Community,
Community members, and allottees under this title shall be in
complete replacement of and substitution for, and full
satisfaction of, all claims of the Community, Community
members, and allottees for water rights, injury to water
rights, injury to water quality and subsidence damage, except
as set forth in the Gila River agreement, under Federal,
State, or other law with respect to land within the exterior
boundaries of the Reservation, off-Reservation trust land,
and fee land.
(b) No Recognition of Water Rights.--Notwithstanding
subsection (a) and except as provided in section 204(a),
nothing in this title has the effect of recognizing or
establishing any right of a Community member or allottee to
water on the Reservation.
SEC. 207. WAIVER AND RELEASE OF CLAIMS.
(a) In General.--
(1) Claims against the state and others.--
(A) Claims for water rights and injury to water rights by
the community and the united states on behalf of the
community.--Except as provided in subparagraph 25.12 of the
Gila River agreement, the Community, on behalf of the
Community and Community members (but not members in their
capacities as allottees), and the United States, on behalf of
the Community and Community members (but not members in their
capacities as allottees), as part of the performance of their
obligations under the Gila River agreement, are authorized to
execute a waiver and release of any claims against the State
(or any agency or political subdivision of the State) or any
other person, entity, corporation, or municipal corporation
under Federal, State, or other law for--
(i)(I) past, present, and future claims for water rights
for land within the exterior boundaries of the Reservation,
off-Reservation trust land, and fee land arising from time
immemorial and, thereafter, forever; and
(II) past, present, and future claims for water rights
arising from time immemorial and, thereafter, forever, that
are based on aboriginal occupancy of land by the Community
and Community members, or their predecessors;
(ii)(I) past and present claims for injury to water rights
for land within the exterior boundaries of the Reservation,
off-Reservation trust land, and fee land arising from time
immemorial through the enforceability date;
(II) past, present, and future claims for injury to water
rights arising from time immemorial and, thereafter, forever,
that are based on aboriginal occupancy of land by the
Community and Community members, or their predecessors; and
(III) claims for injury to water rights arising after the
enforceability date for land within the exterior boundaries
of the Reservation, off-Reservation trust land, and fee land
resulting from the off-Reservation diversion or use of water
in a manner not in violation of the Gila River agreement or
State law;
(iii) past, present, and future claims arising out of or
relating in any manner to the negotiation or execution of the
Gila River agreement or the negotiation or enactment of
titles I and II; and
(iv)(I) past and present claims for subsidence damage
occurring to land within the exterior boundaries of the
Reservation, off-Reservation trust land, or fee land arising
from time immemorial through the enforceability date; and
(II) claims for subsidence damage arising after the
enforceability date occurring to land within the exterior
boundaries of the Reservation, off-Reservation trust land, or
fee land resulting from the diversion of underground water in
a manner not in violation of the Gila River agreement or
State law.
(B) Claims for water rights and injury to water rights by
the united states as trustee for the allottees.--Except as
provided in subparagraph 25.12 of the Gila River agreement,
the United States, as trustee for the allottees, as part of
the performance of its obligations under the Gila River
agreement, is authorized to execute a waiver and release of
any claims against the State (or any agency or political
subdivision of the State) or any other person, entity,
corporation, or municipal corporation under Federal, State,
or other law, for--
(i)(I) past, present, and future claims for water rights
for land within the exterior boundaries of the Reservation
arising from time immemorial and, thereafter, forever; and
(II) past, present, and future claims for water rights
arising from time immemorial and, thereafter, forever, that
are based on aboriginal occupancy of land by allottees, or
their predecessors;
(ii)(I) past and present claims for injury to water rights
for land within the exterior boundaries of the Reservation
arising from time immemorial through the enforceability date;
(II) past, present, and future claims for injury to water
rights arising from time immemorial and, thereafter, forever,
that are based on aboriginal occupancy of land by allottees
or their predecessors; and
(III) claims for injury to water rights arising after the
enforceability date for land within the exterior boundaries
of the Reservation resulting from the off-Reservation
diversion or use of water in a manner not in violation of the
Gila River agreement or State law;
(iii) past, present, and future claims arising out of or
relating in any manner to the negotiation or execution of the
Gila River agreement or the negotiation or enactment of
titles I and II; and
(iv) past and present claims for subsidence damage
occurring to land within the exterior boundaries of the
Reservation arising from time immemorial through the
enforceability date.
(C) Claims for injury to water quality by the community.--
Except as provided in subparagraph 25.12 of the Gila River
agreement, the Community, on behalf of the Community and
Community members (but not members in their capacities as
allottees), as part of the performance of its obligations
under the Gila River agreement, is authorized to execute a
waiver and release of any claims, and to agree to waive its
right to request the United States to bring any claims,
against the State (or any agency or political subdivision of
the State) or any other person, entity, corporation, or
municipal corporation under Federal, State, or other law
for--
(i) past and present claims for injury to water quality
(other than claims arising out of the actions that resulted
in the remediations described in exhibit 25.4.1.1 to the Gila
River agreement), including claims for trespass, nuisance,
and real property damage and claims under all current and
future Federal, State, and other environmental laws and
regulations, including claims under the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601 et seq.) and the Arizona Water Quality
Assurance Revolving Fund (Ariz. Rev. Stat. 49-281 et seq. as
amended) arising from time immemorial through December 31,
2002, for land within the exterior boundaries of the
Reservation, off-Reservation trust land, and fee land;
(ii) past, present, and future claims for injury to water
quality (other than claims arising out of actions that
resulted in the remediations described in exhibit 25.4.1.1 to
the Gila River agreement), including claims for trespass,
nuisance, and real property damage and claims under all
current and future Federal, State, and other environmental
laws and regulations, including claims under the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq.) and the
Arizona Water Quality Assurance Revolving Fund (Ariz. Rev.
Stat. 49-281 et seq.), arising from time immemorial and,
thereafter, forever, that are based on aboriginal occupancy
of land by the Community and Community members, or their
predecessors;
(iii) claims for injury to water quality (other than claims
arising out of actions that resulted in the remediations
described in exhibit 25.4.1.1 to the Gila River agreement)
arising after December 31, 2002, including claims for
trespass, nuisance, and real property damage and claims under
all current and future Federal, State, and other
environmental laws and regulations, including claims under
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq.) and the
Arizona Water Quality Assurance Revolving Fund (Ariz. Rev.
Stat. 49-9281 et seq.), that result from--
(I) the delivery of water to the Community;
(II) the off-Reservation diversion (other than pumping), or
ownership or operation of structures for the off-Reservation
diversion (other than pumping), of water;
(III) the off-Reservation pumping, or ownership or
operation of structures for the off-Reservation pumping, of
water in a manner not in violation of the Gila River
agreement or of any applicable pumping limitations under
State law;
(IV) the recharge, or ownership or operation of structures
for the recharge, of water under a State permit; and
[[Page H9802]]
(V) the off-Reservation application of water to land for
irrigation,
except that the waiver provided in this clause shall extend
only to the State (or any agency or political subdivision of
the State) or any other person, entity, or municipal or other
corporation to the extent that the person, entity, or
corporation is engaged in an activity specified in this
clause.
(D) Past and present claims for injury to water quality by
the united states.--Except as provided in subparagraph 25.12
of the Gila River agreement and except for any claims arising
out of the actions that resulted in the remediations
described in exhibit 25.4.1.1 to the Gila River agreement,
the United States, acting as trustee for the Community,
Community members and allottees, and as part of the
performance of its obligations under the Gila River
agreement, to the extent consistent with this section, is
authorized to execute a waiver and release of any claims
arising from time immemorial through December 31, 2002, for
injury to water quality where all of the following conditions
are met:
(i) The claims are brought solely on behalf of the
Community, members, or allottees.
(ii) The claims are brought against the State (or any
agency or political subdivision of the State) or any person,
entity, corporation, or municipal corporation.
(iii) The claims arise under Federal, State, or other law,
including claims, if any, for trespass, nuisance, and real
property damage, and claims, if any, under any current or
future Federal, State, or other environmental laws or
regulation, including under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9601 et seq.) or the Arizona Water Quality Assurance
Revolving Fund (Ariz. Rev. Stat. 49-281 et seq.).
(iv) The claimed injury is to land, water, or natural
resources located on trust land within the exterior
boundaries of the Reservation or on off-Reservation trust
land.
(E) Future claims for injury to water quality by the united
states.--Except as provided in subparagraph 25.12 of the Gila
River agreement and except for any claims arising out of the
actions that resulted in the remediations described in
exhibit 25.4.1.1 to the Gila River agreement, the United
States, in its own right and as trustee for the Community,
its members and allottees, as part of the performance of its
obligations under the Gila River agreement, to the extent
consistent with this section, is authorized to execute a
waiver and release of the following claims for injury or
threat of injury to water quality arising after December 31,
2002, against the State (or any agency or political
subdivision of the State) or any other person, entity,
corporation, or municipal corporation under Federal, State,
or other law:
(i) All common law claims for injury or threat of injury to
water quality where the injury or threat of injury asserted
is to the Community's, Community members' or allottees'
interests in trust land, water, or natural resources located
within the exterior boundaries of the Reservation or within
off-Reservation trust lands caused by--
(I) the delivery of water to the Community;
(II) the off-Reservation diversion (other than pumping), or
ownership or operation of structures for the off-Reservation
diversion (other than pumping), of water;
(III) the off-Reservation pumping, or ownership or
operation of structures for the off-Reservation pumping, of
water in a manner not in violation of the Gila River
agreement or of any applicable pumping limitations under
State law;
(IV) the recharge, or ownership or operation of structures
for the recharge, of water under a State permit; and
(V) the off-Reservation application of water to land for
irrigation.
(ii) All natural resource damage claims for injury or
threat of injury to water quality where the United States,
through the Secretary of the Interior or other designated
officials, would act on behalf of the Community, its members
or allottees as a natural resource trustee pursuant to the
National Contingency Plan, (as currently set forth in section
300.600(b)(2) of title 40, Code of Federal Regulations, or as
it may hereafter be amended), and where the claim is based on
injury to natural resources or threat of injury to natural
resources within the exterior boundaries of the Reservation
or off-Reservation trust lands, caused by--
(I) the delivery of water to the Community;
(II) the off-Reservation diversion (other than pumping), or
ownership or operation of structures for the off-Reservation
diversion (other than pumping), of water;
(III) the off-Reservation pumping, or ownership or
operation of structures for the off-Reservation pumping, of
water in a manner not in violation of the Gila River
agreement or of any applicable pumping limitations under
State law;
(IV) the recharge, or ownership or operation of structures
for the recharge, of water under a State permit; and
(V) the off-Reservation application of water to land for
irrigation.
(F) Claims by the community against the salt river
project.--
(i) In general.--Except as provided in subparagraph 25.12
of the Gila River agreement, to the extent consistent with
this section, the Community, on behalf of the Community and
Community members (but not members in their capacities as
allottees), as part of the performance of its obligations
under the Gila River agreement, is authorized to execute a
waiver and release of claims against the Salt River Project
(or its successors or assigns or its officers, governors,
directors, employees, agents, or shareholders), where all of
the following conditions are met:
(I) The claims are brought solely on behalf of the
Community or its, members.
(II) The claims arise from the discharge, transportation,
seepage, or other movement of water in, through, or from
drains, canals, or other facilities or land in the Salt River
Reservoir District to trust land located within the exterior
boundaries of the Reservation.
(III) The claims arise from time immemorial through the
enforceability date.
(IV) The claims assert a past or present injury to water
rights, injury on the Reservation to water quality, or injury
to trust property located within the exterior boundaries of
the Reservation.
(ii) Effect of waiver.--The waiver provided for in this
subparagraph is effective as of December 31, 2002, and shall
continue to preclude claims as they may arise until the
enforceability date, or until such time as the Salt River
Project alters its historical operations of the drains,
canals, or other facilities within the Salt River Reservoir
District in a manner that would cause significant harm to
trust lands within the exterior boundaries of the
Reservation, whichever occurs earlier.
(G) Claims by the united states against the salt river
project.--
(i) In general.--Except as provided in subparagraph 25.12
of the Gila River agreement, to the extent consistent with
this section, the United States, acting as trustee for the
Community, Community members and allottees, and as part of
the performance of its obligations under the Gila River
agreement, is authorized to execute a waiver and release of
claims against the Salt River Project (or its successors or
assigns or its officers, governors, directors, employees,
agents, or shareholders), where all of the following
conditions are met:
(I) The claims are brought solely on behalf of the
Community, members, or allottees.
(II) The claims arise from the discharge, transportation,
seepage, or other movement of water in, through, or from
drains, canals, or other facilities or land in the Salt River
Reservoir District to trust land located within the exterior
boundaries of the Reservation.
(III) The claims arise from time immemorial through the
enforceability date.
(IV) The claims assert a past or present injury to water
rights, injury on the Reservation to water quality, or injury
to trust property located within the exterior boundaries of
the Reservation.
(ii) Effect of waiver.--The waiver provided for in this
subsection is effective as of December 31, 2002, and shall
continue to preclude claims as they may arise until the
enforceability date, or until such time as the Salt River
Project alters its historical operations of the drains,
canals, or other facilities within the Salt River Reservoir
District in a manner that would cause significant harm to
trust lands within the exterior boundaries of the
Reservation, whichever occurs earlier.
(H) United states enforcement authority.--Except as
provided in subparagraphs (D), (E), and (G), nothing in this
Act or the Gila River agreement affects any right of the
United States, or the State, to take any action, including
environmental actions, under any laws (including regulations
and the common law) relating to human health, safety, or the
environment.
(2) Claims for subsidence by the community, allottees, and
the united states on behalf of the community and allottees.--
In accordance with the subsidence remediation program under
section 209, the Community, a Community member, or an
allottee, and the United States, on behalf of the Community,
a Community member, or an allottee, as part of the
performance of obligations under the Gila River agreement,
are authorized to execute a waiver and release of all claims
against the State (or any agency or political subdivision of
the State) or any other person, entity, corporation or
municipal corporation under Federal, State, or other law for
the damage claimed.
(3) Claims against the community.--
(A) In general.--Except as provided in subparagraph 25.12
of the Gila River agreement, to the extent consistent with
this Act, the United States, in all its capacities (except as
trustee for an Indian tribe other than the Community), as
part of the performance of obligations under the Gila
River agreement, is authorized to execute a waiver and
release of any and all claims against the Community, or
any agency, official, or employee of the Community, under
Federal, State, or any other law for--
(i) past and present claims for subsidence damage to trust
land within the exterior boundaries of the Reservation, off-
Reservation trust lands, and fee land arising from time
immemorial through the enforceability date; and
(ii) past, present, and future claims arising out of or
relating in any manner to the negotiation or execution of the
Gila River agreement or the negotiation or enactment of
titles I and II.
(4) Claims against the united states.--
[[Page H9803]]
(A) In general.--Except as provided in subparagraph 25.12
of the Gila River agreement, the Community, on behalf of the
Community and Community members (but not members in their
capacities as allottees), as part of the performance of
obligations under the Gila River agreement, is authorized to
execute a waiver and release of any claim against the United
States (or agencies, officials, or employees of the United
States) under Federal, State, or other law for--
(i)(I) past, present, and future claims for water rights
for land within the exterior boundaries of the Reservation,
off-Reservation trust land, and fee land arising from time
immemorial and, thereafter, forever; and
(II) past, present, and future claims for water rights
arising from time immemorial and, thereafter, forever, that
are based on aboriginal occupancy of land by the Community
and Community members, or their predecessors;
(ii)(I) past and present claims for injury to water rights
for land within the exterior boundaries of the Reservation,
off-Reservation trust land, and fee land arising from time
immemorial through the enforceability date;
(II) past, present, and future claims for injury to water
rights arising from time immemorial and, thereafter, forever,
that are based on aboriginal occupancy of land by the
Community and Community members, or their predecessors; and
(III) claims for injury to water rights arising after the
enforceability date for land within the exterior boundaries
of the Reservation, off-Reservation trust land, or fee land
resulting from the off-Reservation diversion or use of water
in a manner not in violation of the Gila River agreement or
applicable law;
(iii) past, present, and future claims arising out of or
relating in any manner to the negotiation or execution of the
Gila River agreement or the negotiation or enactment of
titles I and II;
(iv)(I) past and present claims for subsidence damage
occurring to land within the exterior boundaries of the
Reservation, off-Reservation trust land, or fee land arising
from time immemorial through the enforceability date; and
(II) claims for subsidence damage arising after the
enforceability date occurring to land within the exterior
boundaries of the Reservation, off-Reservation trust land or
fee land resulting from the diversion of underground water in
a manner not in violation of the Gila River agreement or
applicable law;
(v) past and present claims for failure to protect,
acquire, or develop water rights for or on behalf of the
Community and Community members arising before December 31,
2002; and
(vi) past, present, and future claims relating to failure
to assert any claims expressly waived pursuant to section
207(a)(1) (C) through (E).
(B) Exhaustion of remedies.--To the extent that members in
their capacity as allottees assert that this title impairs or
alters their present or future claims to water or constitutes
an injury to present or future water rights, the members
shall be required to exhaust their remedies pursuant to the
tribal water code prior to asserting claims against the
United States.
(5) Claims against certain persons and entities in the
upper gila valley.--
(A) By the community and the united states.--Except as
provided in the UVD agreement, the Community, on behalf of
the Community and Community members (but not members in their
capacities as allottees), and the United States on behalf of
the Community and Community members (but not members in their
capacities as allottees), are authorized, as part of the
performance of obligations under the UVD agreement, to
execute a waiver and release of the following claims against
the UV signatories and the UV Non-signatories (and the
predecessors in interest of each) for--
(i)(I) past, present, and future claims for water rights
for land within the exterior boundaries of the Reservation
and the San Carlos Irrigation Project arising from time
immemorial and, thereafter, forever; and
(II) past, present, and future claims for water rights
arising from time immemorial and, thereafter, forever, that
are based on aboriginal occupancy of land by the Community,
Community members, or predecessors of the Community or
Community members;
(ii)(I) past, present, and future claims for injuries to
water rights for land within the exterior boundaries of the
Reservation or the San Carlos Irrigation Project arising from
time immemorial and, thereafter, forever;
(II) past, present, and future claims for injury to water
rights arising from time immemorial and, thereafter, forever,
that are based on aboriginal occupancy of land by the
Community, Community members, or predecessors of Community
members, for so long as and to the extent that any individual
beneficiary of such waiver is acting in a manner that is
consistent with and not in violation of or contrary to the
terms, conditions, requirements, limitations, or other
provisions of the UVD agreement;
(III) claims for injury to water rights arising after the
enforceability date for land within the exterior boundaries
of the Reservation and the San Carlos Irrigation Project,
resulting from the diversion, pumping, or use of water in a
manner that is consistent with and not in violation of or
contrary to the terms, conditions, limitations, requirements,
or provisions of the UVD agreement; and
(IV) claims for injury to water rights arising after the
enforceability date for water rights transferred to the
Project pursuant to section 211 resulting from the diversion,
pumping or use of water in a manner that is consistent with
and not in violation of or contrary to the terms, conditions,
limitations, requirements, or provisions of the UVD
agreement;
(iii)(I) past, present, and future claims for injuries to
water rights arising out of or relating to the use of water
rights appurtenant to New Mexico 381 acres, on the conditions
that such water rights remain subject to the oversight and
reporting requirements set forth in the decree in Arizona v.
California, 376 U.S. 340 (1964), and that the State of New
Mexico shall make available on request a copy of any records
prepared pursuant to that decree; and
(II) past, present, and future claims arising out of and
relating to the use of water rights for New Mexico domestic
purposes, on the conditions that such water rights remain
subject to the oversight and reporting requirements set forth
in the decree in Arizona v. California, 376 U.S. 340 (1964),
and that the State of New Mexico shall make available on
request a copy of any records prepared pursuant to that
decree; and
(iv) past, present, and future claims arising out of or
relating to the negotiation or execution of the UVD
agreement, or the negotiation or enactment of titles I and
II.
(B) By the united states on behalf of allottees.--Except as
provided in the UVD agreement, to the extent consistent with
this section, the United States as trustee for the allottees,
as part of the performance under the UVD agreement, is
authorized to execute a waiver and release of the following
claims under Federal, State, or other law against the UV
signatories and the UV Non-signatories (and the predecessors
in interest of each) for--
(i)(I) past, present, and future claims for water rights
for land within the exterior boundaries of the Reservation
arising from time immemorial, and thereafter, forever; and
(II) past, present, and future claims for water rights
arising from time immemorial and, thereafter, forever, that
are based on aboriginal occupancy of lands by allottees or
their predecessors;
(ii)(I) past and present claims for injury to water rights
for lands within the exterior boundaries of the Reservation
arising from time immemorial, through the enforceability
date, for so long as and to the extent that any individual
beneficiary of such waiver is acting in a manner that is
consistent with and not in violation of or contrary to the
terms, conditions, requirements, limitations, or other
provisions of the UVD agreement;
(II) past, present, and future claims for injury to water
rights arising from time immemorial and, thereafter, forever,
that are based on aboriginal occupancy of lands by allottees
or their predecessors, for so long as and to the extent that
any individual beneficiary of such waiver is acting in a
manner that is consistent with and not in violation of or
contrary to the terms, conditions, requirements, limitations,
or other provisions of the UVD agreement; and
(III) claims for injury to water rights for land within the
exterior boundaries of the Reservation arising after the
enforceability date resulting from the diversion, pumping, or
use of water in a manner that is consistent with and not in
violation of or contrary to the terms, conditions,
limitations, requirements, or provisions of the UVD
agreement;
(iii)(I) past, present, and future claims for injuries to
water rights arising out of or relating to the use of water
rights appurtenant to New Mexico 381 acres, on the conditions
that such water rights remain subject to the oversight and
reporting requirements set forth in the decree in Arizona v.
California, 376 U.S. 340 (1964), as supplemented, and that
the State of New Mexico shall make available on request a
copy of any records prepared pursuant to that decree; and
(II) past, present, and future claims arising out of or
relating to the use of water rights for New Mexico domestic
purposes, on the conditions that such water rights remain
subject to the oversight and reporting requirements set forth
in the decree in Arizona v. California, 376 U.S. 340 (1964),
as supplemented, and that the State of New Mexico shall make
available on request a copy of any records prepared pursuant
to that decree; and
(iv) past, present, and future claims arising out of or
relating to the negotiation or execution of the UVD
agreement, or the negotiation or enactment of titles I and
II.
(C) Additional waiver of certain claims by the United
States.--Except as provided in the UVD Agreement, the United
States (to the extent the waiver and release authorized by
this subparagraph is not duplicative of the waiver and
release provided in subparagraph (B) and to the extent the
United States holds legal title to (but not the beneficial
interest in) the water rights as described in article V or VI
of the Globe Equity Decree (but not on behalf of the San
Carlos Apache Tribe pursuant to article VI(2) of the Globe
Equity Decree) on behalf of lands within the San Carlos
Irrigation and Drainage District and the Miscellaneous Flow
Lands) shall execute a waiver and release of the following
claims under Federal, State or other law against the UV
signatories and the
[[Page H9804]]
UV Non-signatories (and the predecessors of each) for--
(i) past, present, and future claims for water rights for
land within the San Carlos Irrigation and Drainage District
and the Miscellaneous Flow Lands arising from time
immemorial, and thereafter, forever;
(ii)(I) past and present claims for injury to water rights
for land within the San Carlos Irrigation and Drainage
District and the Miscellaneous Flow Lands arising from time
immemorial through the enforceability date, for so long as
and to the extent that any individual beneficiary of such
waiver is acting in a manner that is consistent with and not
in violation of or contrary to the terms, conditions,
requirements, limitations, or other provisions of the UVD
agreement;
(II) claims for injury to water rights arising after the
enforceability date for land within the San Carlos Irrigation
and Drainage District and the Miscellaneous Flow Lands
resulting from the diversion, pumping, or use of water in a
manner that is consistent with and not in violation of or
contrary to the terms, conditions, limitations, requirements,
or provisions of the UVD agreement;
(iii)(I) past, present, and future claims for injuries to
water rights arising out of or relating to the use of water
rights appurtenant to New Mexico 381 acres, on the conditions
that such water rights remain subject to the oversight and
reporting requirements set forth in the decree in Arizona v.
California, 376 U.S. 340 (1964), as supplemented, and that
the State of New Mexico shall make available on request a
copy of any records prepared pursuant to that decree; and
(II) past, present, and future claims arising out of or
relating to the use of water rights for New Mexico domestic
purposes, on the conditions that such water rights remain
subject to the oversight and reporting requirements set forth
in the decree in Arizona v. California, 376 U.S. 340 (1964),
as supplemented, and that the State of New Mexico shall make
available on request a copy of any records prepared pursuant
to that decree; and
(iv) past, present, and future claims arising out of or
relating to the negotiation or execution of the UVD
agreement, or the negotiation or enactment of titles I and
II.
(6) Tribal water quality standards.--The Community, on
behalf of the Community and Community members, as part of the
performance of its obligations under the Gila River
agreement, is authorized to agree never to adopt any water
quality standards, or ask the United States to promulgate
such standards, that are more stringent than water quality
standards adopted by the State if the Community's adoption of
such standards could result in the imposition by the State or
the United States of more stringent water quality limitations
or requirements than those that would otherwise be imposed by
the State or the United States on--
(A) any water delivery system used to deliver water to the
Community; or
(B) the discharge of water into any such system.
(b) Effectiveness of Waiver and Releases.--
(1) In general.--The waivers under paragraphs (1) and (3)
through (5) of subsection (a) shall become effective on the
enforceability date.
(2) Claims for subsidence damage.--The waiver under
subsection (a)(2) shall become effective on execution of the
waiver by--
(A) the Community, a Community member, or an allottee; and
(B) the United States, on behalf of the Community, a
Community member, or an allottee.
(c) Enforceability Date.--
(1) In general.--This section takes effect on the date on
which the Secretary publishes in the Federal Register a
statement of findings that--
(A) to the extent the Gila River agreement conflicts with
this title, the Gila River agreement has been revised through
an amendment to eliminate the conflict and the Gila River
agreement, so revised, has been executed by the Secretary and
the Governor of the State;
(B) the Secretary has fulfilled the requirements of--
(i) paragraphs (1)(A)(i) and (2) of subsection (a) and
subsections (b) and (d) of section 104; and
(ii) sections 204, 205, and 209(a);
(C) the master agreement authorized, ratified, and
confirmed by section 106(a) has been executed by the parties
to the master agreement, and all conditions to the
enforceability of the master agreement have been satisfied;
(D) $53,000,000 has been identified and retained in the
Lower Colorado River Basin Development Fund for the benefit
of the Community in accordance with section 107(b);
(E) the State has appropriated and paid to the Community
any amount to be paid under paragraph 27.4 of the Gila River
agreement;
(F) the Salt River Project has paid to the Community
$500,000 under subparagraph 16.9 of the Gila River agreement;
(G) the judgments and decrees attached to the Gila River
agreement as exhibits 25.18A (Gila River adjudication
proceedings) and 25.18B (Globe Equity Decree proceedings)
have been approved by the respective courts;
(H) the dismissals attached to the Gila River agreement as
exhibits 25.17.1A and B, 25.17.2, and 25.17.3A and B have
been filed with the respective courts and any necessary
dismissal orders entered;
(I) legislation has been enacted by the State to--
(i) implement the Southside Replenishment Program in
accordance with subparagraph 5.3 of the Gila River agreement;
(ii) authorize the firming program required by section 105;
and
(iii) establish the Upper Gila River Watershed Maintenance
Program in accordance with subparagraph 26.8.1 of the Gila
River agreement;
(J) the State has entered into an agreement with the
Secretary to carry out the obligation of the State under
section 105(b)(2)(A); and
(K) a final judgment has been entered in Central Arizona
Water Conservation District v. United States (No. CIV 95-625-
TUC-WDB(EHC), No. CIV 95-1720PHX-EHC) (Consolidated Action)
in accordance with the repayment stipulation.
(2) Failure of enforceability date to occur.--If, because
of the failure of the enforceability date to occur by
December 31, 2007, this section does not become effective,
the Community, Community members, and allottees, and the
United States on behalf of the San Carlos Irrigation and
Drainage District, the Community, Community members, and
allottees, shall retain the right to assert past, present,
and future water rights claims, claims for injury to water
rights, claims for injury to water quality, and claims for
subsidence damage as to all land within the exterior
boundaries of the Reservation, off-Reservation trust land,
and fee land.
(d) All Land Within Exterior Boundaries of the
Reservation.--Notwithstanding section 2(42), for purposes of
this section, section 206, and section 210(d)--
(1) the term ``land within the exterior boundaries of the
Reservation'' includes--
(A) land within the Reservation created pursuant to the Act
of February 28, 1859, and modified by the executive orders of
August 31, 1876, June 14, 1879, May 5, 1882, November 15,
1883, July 31, 1911, June 2, 1913, August 27, 1914, and July
19, 1915; and
(B) land located in sections 16 and 36, T. 4 S., R. 4 E.,
Salt and Gila River Baseline and Meridian; and
(2) the term ``off-Reservation'' refers to land located
outside the exterior boundaries of the Reservation (as
defined in paragraph (1)).
(e) No Rights to Water.--Upon the occurrence of the
enforceability date--
(1) all land held by the United States in trust for the
Community, Community members, and allottees and all land held
by the Community within the exterior boundaries of the
Reservation shall have no rights to water other than those
specifically granted to the Community and the United States
for the Reservation pursuant to paragraph 4.0 of the Gila
River agreement; and
(2) all water usage on land within the exterior boundaries
of the Reservation, including the land located in sections 16
and 36, T. 4 S., R. 4 E., Salt and Gila River Baseline and
Meridian, upon acquisition by the Community or the United
States on behalf of the Community, shall be taken into
account in determining compliance by the Community and the
United States with the limitations on total diversions
specified in subparagraph 4.2 of the Gila River agreement.
SEC. 208. GILA RIVER INDIAN COMMUNITY WATER OM&R TRUST FUND.
(a) Establishment.--There is established in the Treasury of
the United States a fund to be known as the ``Gila River
Indian Community Water OM&R Fund'', to be managed and
invested by the Secretary, consisting of $53,000,000, the
amount made available for this purpose under paragraph (2)(B)
of section 403(f) of the Colorado River Basin Project Act (43
U.S.C. 1543(f)) (as amended by section 107(a)).
(b) Management.--The Secretary shall manage the Water OM&R
Fund, make investments from the Fund, and make monies
available from the Fund for distribution to the Community
consistent with the American Indian Trust Fund Management
Reform Act of 1994 (25 U.S.C. 4001 et seq.), hereafter
referred to in this section as the ``Trust Fund Reform Act''.
(c) Investment of the Fund.--The Secretary shall invest
amounts in the Fund in accordance with--
(1) the Act of April 1, 1880 (21 Stat. 70, chapter 41; 25
U.S.C. 161);
(2) the first section of the Act of June 24, 1938 (52 Stat.
1037, chapter 648; 25 U.S.C. 162a); and
(3) subsection (b).
(d) Expenditures and Withdrawals.--
(1) Tribal management plan.--
(A) In general.--The Community may withdraw all or part of
the Water OM&R Fund on approval by the Secretary of a tribal
management plan as described in the Trust Fund Reform Act.
(B) Requirements.--In addition to the requirements under
the Trust Fund Reform Act, the tribal management plan shall
require that the Community only spend any funds, as provided
in the Gila River agreement, to assist in paying operation,
maintenance, and replacement costs associated with the
delivery of CAP water for Community purposes.
(2) Enforcement.--The Secretary may take judicial or
administrative action to enforce the provisions of any tribal
management plan to ensure that the monies withdrawn from the
Water OM&R Fund are used in accordance with this Act.
(3) Liability.--If the Community exercises the right to
withdraw monies from the Water
[[Page H9805]]
OM&R Fund, neither the Secretary nor the Secretary of the
Treasury shall retain any liability for the expenditure or
investment of the monies withdrawn.
(4) Expenditure plan.--
(A) In general.--The Community shall submit to the
Secretary for approval an expenditure plan for any portion of
the funds made available under this section that the
Community does not withdraw under this subsection.
(B) Description.--The expenditure plan shall describe the
manner in which, and the purposes for which, funds of the
Community remaining in the Water OM&R Fund will be used.
(C) Approval.--On receipt of an expenditure plan under
subparagraph (A), the Secretary shall approve the plan if the
Secretary determines that the plan is reasonable and
consistent with this Act.
(5) Annual report.--The Community shall submit to the
Secretary an annual report that describes all expenditures
from the Water OM&R Fund during the year covered by the
report.
(e) No Distribution to Members.--No part of the principal
of the Water OM&R Fund, or of the interest or income accruing
on the principal, shall be distributed to any Community
member on a per capita basis.
(f) Funds Not Available Until Enforceability Date.--Amounts
in the Water OM&R Fund shall not be available for expenditure
or withdrawal by the Community until the enforceability date,
or until January 1, 2010, whichever is later.
SEC. 209. SUBSIDENCE REMEDIATION PROGRAM.
(a) In General.--Subject to the availability of funds and
consistent with the provisions of section 107(a), the
Secretary shall establish a program under which the Bureau of
Reclamation shall repair and remediate subsidence damage and
related damage that occurs after the enforceability date.
(b) Damage.--Under the program, the Community, a Community
member, or an allottee may submit to the Secretary a request
for the repair or remediation of--
(1) subsidence damage; and
(2) damage to personal property caused by the settling of
geologic strata or cracking in the earth's surface of any
length or depth, which settling or cracking is caused by
pumping of underground water.
(c) Repair or Remediation.--The Secretary shall perform the
requested repair or remediation if--
(1) the Secretary determines that the Community has not
exceeded its right to withdraw underground water under the
Gila River agreement; and
(2) the Community, Community member, or allottee, and the
Secretary as trustee for the Community, Community member, or
allottee, execute a waiver and release of claim in the form
specified in exhibit 25.9.1, 25.9.2, or 25.9.3 to the Gila
River agreement, as applicable, to become effective on
satisfactory completion of the requested repair or
remediation, as determined under the Gila River agreement.
(d) Specific Subsidence Damage.--Subject to the
availability of funds, the Secretary, acting through the
Commissioner of Reclamation, shall repair, remediate, and
rehabilitate the subsidence damage that has occurred to land
before the enforceability date within the Reservation, as
specified in exhibit 30.21 to the Gila River agreement.
SEC. 210. AFTER-ACQUIRED TRUST LAND.
(a) Requirement of Act of Congress.--The Community may seek
to have legal title to additional land in the State located
outside the exterior boundaries of the Reservation taken into
trust by the United States for the benefit of the Community
pursuant only to an Act of Congress enacted after the date of
enactment of this Act specifically authorizing the transfer
for the benefit of the Community.
(b) Water Rights.--After-acquired trust land shall not
include federally reserved rights to surface water or
groundwater.
(c) Sense of Congress.--It is the sense of Congress that
future Acts of Congress authorizing land to be taken into
trust under subsection (a) should provide that such land will
have only such water rights and water use privileges as would
be consistent with State water law and State water management
policy.
(d) Acceptance of Land in Trust Status.--
(1) In general.--If the Community acquires legal fee title
to land that is located within the exterior boundaries of the
Reservation (as defined in section 207(d)), the Secretary
shall accept the land in trust status for the benefit of the
Community upon receipt by the Secretary of a submission from
the Community that provides evidence that--
(A) the land meets the Department of the Interior's minimum
environmental standards and requirements for real estate
acquisitions set forth in 602 DM 2.6, or any similar
successor standards or requirements for real estate
acquisitions in effect on the date of the Community's
submission; and
(B) the title to the land meets applicable Federal title
standards in effect on the date of the Community's
submission.
(2) Reservation status.--Land taken or held in trust by the
Secretary under paragraph (1) shall be deemed part of the
Community's reservation.
SEC. 211. REDUCTION OF WATER RIGHTS.
(a) Reduction of TBI Eligible Acres.--
(1) In general.--Consistent with this title and as provided
in the UVD agreement to assist in reducing the total water
demand for irrigation use in the upper valley of the Gila
River, the Secretary shall provide funds to the Gila Valley
Irrigation District and the Franklin Irrigation District
(hereafter in this section referred to as ``the Districts'')
for the acquisition of UV decreed water rights and the
extinguishment of those rights to decrease demands on the
Gila River, or severance and transfer of those rights to the
San Carlos Irrigation Project for the benefit of the
Community and the San Carlos Irrigation and Drainage District
in accordance with applicable law.
(2) Acquisitions.--
(A) Required phase i acquisition.--Not later than December
31 of the third calendar year that begins after the
enforceability date (or December 31 of the first calendar
year that begins after the payment provided by subparagraph
(D)(iii), if later), the Districts shall acquire the UV
decreed water rights appurtenant to 1,000 acres of land
(other than special hot lands).
(B) Required phase ii acquisition.--Not later than December
31 of the sixth calendar year that begins after the
enforceability date (or December 31 of the first calendar
year that begins after the payment provided by subparagraph
(D)(iii), if later), the Districts shall acquire the UV
decreed water rights appurtenant to 1,000 acres of land
(other than special hot lands). The reduction of TBI eligible
acres under this subparagraph shall be in addition to that
accomplished under subparagraph (A).
(C) Additional acquisition in case of settlement.--If the
San Carlos Apache Tribe reaches a comprehensive settlement
that is approved by Congress and finally approved by all
courts the approval of which is required, the Secretary shall
offer to acquire for fair market value the UV decreed water
rights associated with not less than 500 nor more than 3,000
TBI eligible acres of land (other than special hot lands).
(D) Methods of acquisition for rights acquired pursuant to
subparagraphs (a) and (b).--
(i) Determination of value.--
(I) Appraisals.--Not later than December 31 of the first
calendar year that begins after the enforceability date in
the case of the phase I acquisition, and not later than
December 31 of the fourth calendar year that begins after the
enforceability date in the case of the phase II acquisition,
the Districts shall submit to the Secretary an appraisal of
the average value of water rights appurtenant to 1,000 TBI
eligible acres.
(II) Review.--The Secretary shall review the appraisal
submitted to ensure its consistency with the Uniform
Appraisal Standards for Federal Land Acquisition and notify
the Districts of the results of the review within 30 days of
submission of the appraisal. In the event that the Secretary
finds that the appraisal is not consistent with such
standards, the Secretary shall so notify the Districts with a
full explanation of the reasons for that finding. Within 60
days of being notified by the Secretary that the appraisal is
not consistent with such Standards, the Districts shall
resubmit an appraisal to the Secretary that is consistent
with such standards. The Secretary shall review the
resubmitted appraisal to ensure its consistency with
nationally approved standards and notify the Districts of the
results of the review within 30 days of resubmission.
(III) Petition.--In the event that the Secretary finds that
such resubmitted appraisal is not consistent with those
Standards, either the Districts or the Secretary may petition
a Federal court in the District of Arizona for a
determination of whether the appraisal is consistent with
nationally approved Standards. If such court finds the
appraisal is so consistent, the value stated in the appraisal
shall be final for all purposes. If such court finds the
appraisal is not so consistent, the court shall determine the
average value of water rights appurtenant to 1,000 TBI
eligible acres.
(IV) No objection.--If the Secretary does not object to an
appraisal within the time periods provided in this clause
(i), the value determined in the appraisal shall be final for
all purposes.
(ii) Appraisal.--In determining the value of water rights
pursuant to this paragraph, any court, the Districts, the
Secretary, and any appraiser shall take into account the
obligations the owner of the land (to which the rights are
appurtenant) will have after acquisition for phreatophyle
control as provided in the UVD agreement and to comply with
environmental laws because of the acquisition and severance
and transfer or extinguishment of the water rights.
(iii) Payment.--No more than 30 days after the average
value of water rights appurtenant to 1,000 acres of land has
been determined in accordance with clauses (i) and (ii), the
Secretary shall pay 125 percent of such values to the
Districts.
(iv) Reduction of acreage.--No later than December 31 of
the first calendar year that begins after each such payment,
the Districts shall acquire the UV decreed water rights
appurtenant to one thousand (1,000) acres of lands that would
have been included in the calculation of TBI eligible acres
(other than special hot lands), if the calculation of TBI
eligible acres had been undertaken at the time of
acquisition. To the extent possible, the Districts shall
select the rights to be acquired in compliance with
subsection 5.3.7 of the UVD agreement.
[[Page H9806]]
(3) Reduction of tbi eligible acres.--Simultaneously with
the acquisition of UV decreed water rights under paragraph
(2), the number of TBI eligible acres, but not the number of
acres of UV subjugated land, shall be reduced by the number
of acres associated with those UV decreed water rights.
(4) Alternatives to acquisition.--
(A) Special hot lands.--After the payments provided by
paragraph (2)(D)(iii), the Districts may fulfill the
requirements of paragraphs (2) and (3) in full or in part, by
entering into an agreement with an owner of special hot lands
to prohibit permanently future irrigation of the special hot
lands if the UVD settling parties simultaneously--
(i) acquire UV decreed water rights associated with a like
number of UV decreed acres that are not TBI eligible acres;
and
(ii) sever and transfer those rights to the San Carlos
Irrigation Project for the benefit of the Community and the
San Carlos Irrigation and Drainage District.
(B) Fallowing agreement.--After the payment provided by
paragraph (2)(D)(iii), the Districts may fulfill the
requirements of paragraphs (2) and (3) in full or in part, by
entering into an agreement with 1 or more owners of UV
decreed acres and the UV irrigation district in which the
acres are located, if any, under which--
(i) the number of TBI eligible acres is reduced; but
(ii) the owner of the UV decreed acres subject to the
reduction is permitted to periodically irrigate the UV
decreed acres under a fallowing agreement authorized under
the UVD agreement.
(5) Disposition of acquired water rights.--
(A) In general.--Of the UV decreed water rights acquired by
the Districts pursuant to subparagraphs (A) and (B) of
paragraph (2), the Districts shall, in accordance with all
applicable law and the UVD agreement--
(i) sever, and transfer to the San Carlos Irrigation
Project for the benefit of the Community and the San Carlos
Irrigation and Drainage District, the UV decreed water rights
associated with up to 900 UV decreed acres; and
(ii) extinguish the balance of the UV decreed water rights
so acquired (except and only to the extent that those rights
are associated with a fallowing agreement authorized under
paragraph (4)(B)).
(B) San carlos apache settlement.--With respect to water
rights acquired by the Secretary pursuant to paragraph
(2)(C), the Secretary shall, in accordance with applicable
law--
(i) cause to be severed and transferred to the San Carlos
Irrigation Project, for the benefit of the Community and the
San Carlos Irrigation and Drainage District, the UV decreed
water rights associated with 200 UV decreed acres;
(ii) cause to be extinguished the UV decreed water rights
associated with 300 UV decreed acres; and
(iii) cause to be transferred the balance of those acquired
water rights to the San Carlos Apache Tribe pursuant to the
terms of the settlement described in paragraph (2)(C).
(6) Mitigation.--To the extent the Districts, after the
payments provided by paragraph (2)(D)(iii), do not comply
with the acquisition requirements of paragraph (2) or
otherwise comply with the alternatives to acquisition
provided by paragraph (4), the Districts shall provide
mitigation to the San Carlos Irrigation Project as provided
by the UVD agreement.
(b) Additional Reductions.--
(1) Cooperative program.--In addition to the reduction of
TBI eligible acres to be accomplished under subsection (a),
not later than 1 year after the enforceability date, the
Secretary and the UVD settling parties shall cooperatively
establish a program to purchase and extinguish UV decreed
water rights associated with UV decreed acres that have not
been recently irrigated.
(2) Focus.--The primary focus of the program under
paragraph (1) shall be to prevent any land that contains
riparian habitat from being reclaimed for irrigation.
(3) Funds and resources.--The program under this subsection
shall not require any expenditure of funds, or commitment of
resources, by the UVD signatories other than such incidental
expenditures of funds and commitments of resources as are
required to cooperatively participate in the program.
SEC. 212. NEW MEXICO UNIT OF THE CENTRAL ARIZONA PROJECT.
(a) Required Approvals.--The Secretary shall not execute
the Gila River agreement pursuant to section 203(b), and the
agreement shall not become effective, unless and until the
New Mexico Consumptive Use and Forbearance Agreement has been
executed by all signatory parties and approved by the State
of New Mexico.
(b) New Mexico Consumptive Use and Forbearance Agreement.--
(1) In general.--Except to the extent a provision of the
New Mexico Consumptive Use and Forbearance Agreement
conflicts with a provision of this title, the New Mexico
Consumptive Use and Forbearance Agreement is authorized,
ratified, and confirmed. To the extent amendments are
executed to make the New Mexico Consumptive Use and
Forbearance Agreement consistent with this title, such
amendments are also authorized, ratified, and confirmed.
(2) Execution.--To the extent the New Mexico Consumptive
Use and Forbearance Agreement does not conflict with this
title, the Secretary shall execute the New Mexico Consumptive
Use and Forbearance Agreement, including all exhibits to
which the Secretary is a party to the New Mexico Consumptive
Use and Forbearance Agreement and any amendments to the New
Mexico Consumptive Use and Forbearance necessary to make it
consistent with this title.
(c) New Mexico Unit Agreement.--The Secretary is authorized
to execute the New Mexico Unit Agreement, which agreement
shall be executed within 1 year of receipt by the Secretary
of written notice from the State of New Mexico that the State
of New Mexico intends to build the New Mexico Unit, which
notice must be received not later than December 31, 2014. The
New Mexico Unit Agreement shall, among other things, provide
that--
(1) all funds from the Lower Colorado River Basin
Development Fund disbursed in accordance with section
403(f)(2)(D) (i) and (ii) of the Colorado River Basin Project
Act (as amended by section 107(a)) shall be nonreimbursable
(and such costs shall be excluded from the repayment
obligation, if any, of the NM CAP entity under the New Mexico
Unit Agreement);
(2) in determining payment for CAP water under the New
Mexico Unit Agreement, the NM CAP entity shall be responsible
only for its share of operations, maintenance, and
replacement costs (and no capital costs attendant to other
units or portions of the Central Arizona Project shall be
charged to the NM CAP entity);
(3) upon request by the NM CAP entity, the Secretary shall
transfer to the NM CAP entity the responsibility to design,
build, or operate and maintain the New Mexico Unit, or all or
any combination of those responsibilities, provided that the
Secretary shall not transfer the authority to divert water
pursuant to the New Mexico Consumptive Use and Forbearance
Agreement, provided further that the Secretary, shall remain
responsible to the parties to the New Mexico Consumptive Use
and Forbearance Agreement for the NM CAP entity's compliance
with the terms and conditions of that agreement;
(4) the Secretary shall divert water and otherwise exercise
her rights and authorities pursuant to the New Mexico
Consumptive Use and Forbearance Agreement solely for the
benefit of the NM CAP entity and for no other purpose;
(5) the NM CAP entity shall own and hold title to all
portions of the New Mexico Unit constructed pursuant to the
New Mexico Unit Agreement; and
(6) the Secretary shall provide a waiver of sovereign
immunity for the sole and exclusive purpose of resolving a
dispute in Federal court of any claim, dispute, or
disagreement arising under the New Mexico Unit Agreement.
(d) Amendment to Section 304.--Section 304(f) of the
Colorado River Basin Project Act (43 U.S.C. 1524(f)) is
amended--
(1) by striking paragraph (1) and inserting the following:
``(1) In the operation of the Central Arizona Project, the
Secretary shall offer to contract with water users in the
State of New Mexico, with the approval of its Interstate
Stream Commission, or with the State of New Mexico, through
its Interstate Stream Commission, for water from the Gila
River, its tributaries and underground water sources in
amounts that will permit consumptive use of water in New
Mexico of not to exceed an annual average in any period of 10
consecutive years of 14,000 acre-feet, including reservoir
evaporation, over and above the consumptive uses provided for
by article IV of the decree of the Supreme Court of the
United States in Arizona v. California (376 U.S. 340). Such
increased consumptive uses shall continue only so long as
delivery of Colorado River water to downstream Gila River
users in Arizona is being accomplished in accordance with
this Act, in quantities sufficient to replace any diminution
of their supply resulting from such diversion from the Gila
River, its tributaries and underground water sources. In
determining the amount required for this purpose, full
consideration shall be given to any differences in the
quality of the water involved.'';
(2) by striking paragraph (2); and
(3) by redesignating paragraph (3) as paragraph (2).
(e) Cost Limitation.--In determining payment for CAP water
under the New Mexico Consumptive Use and Forbearance
Agreement, the NM CAP entity shall be responsible only for
its share of operations, maintenance, and repair costs. No
capital costs attendant to other Units or portions of the
Central Arizona Project shall be charged to the NM CAP
entity.
(f) Exclusion of Costs.--For the purpose of determining the
allocation and repayment of costs of the Central Arizona
Project under the CAP Repayment Contract, the costs
associated with the New Mexico Unit and the delivery of
Central Arizona Project water pursuant to the New Mexico
Consumptive Use and Forbearance Agreement shall be
nonreimbursable, and such costs shall be excluded from the
Central Arizona Water Conservation District's repayment
obligation.
(g) New Mexico Unit Construction and Operations.--The
Secretary is authorized to design, build, and operate and
maintain the New Mexico Unit. Upon request by the State of
New Mexico, the Secretary shall transfer to the NM CAP entity
responsibility to design, build, or operate and maintain the
New Mexico Unit, or all or any combination of those
functions.
(h) National Environmental Policy Act.--
(1) Environmental compliance.--Upon execution of the New
Mexico Consumptive
[[Page H9807]]
Use and Forbearance Agreement and the New Mexico Unit
Agreement, 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
Acts and regulations.
(2) Execution of the new mexico consumptive use and
forbearance agreement and the new mexico unit agreement.--
Execution of the New Mexico Consumptive Use and Forbearance
Agreement and the New Mexico Unit Agreement by the Secretary
under this section shall not constitute a major Federal
action under the National Environmental Policy Act (42 U.S.C.
4321 et seq.). The Secretary is directed to carry out all
necessary environmental compliance required by Federal law in
implementing the New Mexico Consumptive Use and Forbearance
Agreement and the New Mexico Unit Agreement.
(3) Lead agency.--The Bureau of Reclamation shall be
designated as the lead agency with respect to environmental
compliance. Upon request by the State of New Mexico to the
Secretary, the State of New Mexico shall be designated as
joint lead agency with respect to environmental compliance.
(i) New Mexico Unit Fund.--The Secretary shall deposit the
amounts made available under paragraph (2)(D)(i) of section
403(f) of the Colorado River Basin Project Act (43 U.S.C.
1543(f)) (as amended by section 107(a)) into the New Mexico
Unit Fund, a State of New Mexico Fund established and
administered by the New Mexico Interstate Stream Commission.
Withdrawals from the New Mexico Unit Fund shall be for the
purpose of paying costs of the New Mexico Unit or other water
utilization alternatives to meet water supply demands in the
Southwest Water Planning Region of New Mexico, as determined
by the New Mexico Interstate Stream Commission in
consultation with the Southwest New Mexico Water Study Group
or its successor, including costs associated with planning
and environmental compliance activities and environmental
mitigation and restoration.
(j) Additional Funding for New Mexico Unit.--The Secretary
shall pay for an additional portion of the costs of
constructing the New Mexico Unit from funds made available
under paragraph (2)(D)(ii) of section 403(f) of the Colorado
River Basin Project Act (43 U.S.C. 1543(f)) (as amended by
section 107(a)) on a construction schedule basis, up to a
maximum amount under this subparagraph (j) of $34,000,000, as
adjusted to reflect changes since January 1, 2004, in the
construction cost indices applicable to the types of
construction involved in construction of the New Mexico Unit,
upon satisfaction of the conditions that--
(1) the State of New Mexico must provide notice to the
Secretary in writing not later than December 31, 2014, that
the State of New Mexico intends to have constructed or
developed the New Mexico Unit; and
(2) the Secretary must have issued in the Federal Register
not later than December 31, 2019, a Record of Decision
approving the project based on an environmental analysis
required pursuant to applicable Federal law and on a
demonstration that construction of a project for the New
Mexico Unit that would deliver an average annual safe yield,
based on a 50-year planning period, greater than 10,000 acre
feet per year, would not cost more per acre foot of water
diverted than a project sized to produce an average annual
safe yield of 10,000 acre feet per year. If New Mexico
exercises all reasonable efforts to obtain the issuance of
such Record of Decision, but the Secretary is not able to
issue such Record of Decision by December 31, 2019, for
reasons outside the control of the State of New Mexico, the
Secretary may extend the deadline for a reasonable period of
time, not to extend beyond December 31, 2030.
(k) Rate of Return Exceeding 4 Percent.--If the rate of
return on carryover funds held in the Lower Colorado Basin
Development Fund on the date that construction of the New
Mexico Unit is initiated exceeds an average effective annual
rate of 4 percent for the period beginning on the date of
enactment of this Act through the date of initiation of
construction of the New Mexico Unit, the Secretary shall pay
an additional portion of the costs of the construction costs
associated with the New Mexico Unit, on a construction
schedule basis, using funds made available under paragraph
(2)(D)(ii) of section 403(f) of the Colorado River Basin
Project Act (43 U.S.C. 1543(f)) (as amended by section
107(a)). The amount of such additional payments shall be
equal to 25 percent of the total return on the carryover
funds earned during the period in question that is in excess
of a return on such funds at an annual average effective
return of 4 percent, up to a maximum total of not more than
$28,000,000, as adjusted to reflect changes since January 1,
2004, in the construction cost indices applicable to the
types of construction involved in construction of the New
Mexico Unit.
(l) Disclaimer.--Nothing in this Act shall affect, alter,
or diminish rights to use of water of the Gila River within
New Mexico, or the authority of the State of New Mexico to
administer such rights for use within the State, as such
rights are quantified by article IV of the decree of the
United States Supreme Court in Arizona v. California (376
U.S. 340).
(m) Priority of Other Exchanges.--The Secretary shall not
approve any exchange of Gila River water for water supplied
by the CAP that would amend, alter, or conflict with the
exchanges authorized by section 304(f) of the Colorado River
Basin Project Act (43 U.S.C. 1524(f)).
SEC. 213. MISCELLANEOUS PROVISIONS.
(a) Waiver of Sovereign Immunity.--If any party to the Gila
River agreement or signatory to an exhibit executed pursuant
to section 203(b) or to the New Mexico Consumptive Use and
Forbearance Agreement brings an action in any court of the
United States or any State court relating only and directly
to the interpretation or enforcement of this title or the
Gila River agreement (including enforcement of any indemnity
provisions contained in the Gila River agreement) or the New
Mexico Consumptive Use and Forbearance Agreement, and names
the United States or the Community as a party, or if any
other landowner or water user in the Gila River basin in
Arizona (except any party referred to in subparagraph 28.1.4
of the Gila River agreement) files a lawsuit relating only
and directly to the interpretation or enforcement of
subparagraph 6.2, subparagraph 6.3, paragraph 25,
subparagraph 26.2, subparagraph 26.8, and subparagraph 28.1.3
of the Gila River agreement, naming the United States or the
Community as a party--
(1) the United States, the Community, or both, may be
joined in any such action; and
(2) any claim by the United States or the Community to
sovereign immunity from the action is waived, but only for
the limited and sole purpose of such interpretation or
enforcement (including any indemnity provisions contained in
the Gila River agreement).
(b) Effect of Act.--Nothing in this title quantifies or
otherwise affects the water rights, or claims or entitlements
to water, of any Indian tribe, band, or community, other than
the Community.
(c) Limitation on Claims for Reimbursement.--The United
States shall not make a claim for reimbursement of costs
arising out of the implementation of this title or the Gila
River agreement against any Indian-owned land within the
Reservation, and no assessment shall be made in regard to
those costs against that land.
(d) No Effect on Future Allocations.--Water received under
a lease or exchange of Community CAP water under this title
shall not affect any future allocation or reallocation of CAP
water by the Secretary.
(e) Community Repayment Contract.--To the extent it is not
in conflict with this Act, the Secretary is directed to and
shall execute Amendment No. 1 to the Community repayment
contract, attached as exhibit 8.1 to the Gila River
agreement, to provide, among other things, that the costs
incurred under that contract shall be nonreimbursable by the
Community. To the extent amendments are executed to make
Amendment No. 1 consistent with this title, such amendments
are also authorized, ratified, and confirmed.
(f) Salt River Project Rights and Contracts.--
(1) In general.--Subject to paragraph (2), the agreement
between the United States and the Salt River Valley Water
Users' Association dated September 6, 1917, as amended, and
the rights of the Salt River Project to store water from the
Salt River and Verde River at Roosevelt Dam, Horse Mesa Dam,
Mormon Flat Dam, Stewart Mountain Dam, Horseshoe Dam, and
Bartlett Dam and to deliver the stored water to shareholders
of the Salt River Project and others for all beneficial uses
and purposes recognized under State law and to the Community
under the Gila River agreement, are authorized, ratified, and
confirmed.
(2) Priority date; quantification.--The priority date and
quantification of rights described in paragraph (1) shall be
determined in an appropriate proceeding in State court.
(3) Care, operation, and maintenance.--The Salt River
Project shall retain authority and responsibility existing on
the date of enactment of this Act for decisions relating to
the care, operation, and maintenance of the Salt River
Project water delivery system, including the Salt River
Project reservoirs on the Salt River and Verde River, vested
in Salt River Project under the 1917 agreement, as amended,
described in paragraph (1).
(g) UV Irrigation Districts.--
(1) In general.--As partial consideration for obligations
the UV irrigation districts shall be undertaking, the
obligation to comply with the terms and conditions of term 5
of exhibit 2.30 (New Mexico Risk Allocation Terms) to the New
Mexico Consumptive Use and Forbearance Agreement, the Gila
Valley Irrigation District, in 2010, shall receive funds from
the Secretary in an amount of $15,000,000 (adjusted to
reflect changes since the date of enactment of this Act in
the cost indices applicable to the type of design and
construction involved in the design and construction of a
pipeline at or upstream from the Ft. Thomas Diversion Dam to
the lands farmed by the San Carlos Apache Tribe, together
with canal connections upstream from the Ft. Thomas Diversion
Dam and connection devices appropriate to introduce pumped
water into the Pipeline).
(2) Restriction.--The funds to be received by the Gila
Valley Irrigation District shall be used solely for the
purpose of developing programs or constructing facilities to
assist with mitigating the risks and costs associated with
compliance with the terms and conditions of term 5 of
exhibit 2.30 (New Mexico Risk Allocation Terms) of the New
Mexico Consumptive and Forbearance Agreement, and for no
other purpose.
(h) Limitation on Liability of United States.--
[[Page H9808]]
(1) In general.--The United States shall have no trust or
other obligation--
(A) to monitor, administer, or account for, in any manner,
any of the funds paid to the Community by any party to the
Gila River agreement; or
(B) to review or approve the expenditure of those funds.
(2) Indemnification.--The Community shall indemnify the
United States, and hold the United States harmless, with
respect to any and all claims (including claims for takings
or breach of trust) arising out of the receipt or expenditure
of funds described in paragraph (1)(A).
(i) Blue Ridge Project Transfer Authorization.--
(1) Definitions.--In this subsection:
(A) Blue ridge project.--The term ``Blue Ridge Project''
means the water storage reservoir known as ``Blue Ridge
Reservoir'' situated in Coconino and Gila Counties, Arizona,
consisting generally of--
(i) Blue Ridge Dam and all pipelines, tunnels, buildings,
hydroelectric generating facilities, and other structures of
every kind, transmission, telephone and fiber optic lines,
pumps, machinery, tools, and appliances; and
(ii) all real or personal property, appurtenant to or used,
or constructed or otherwise acquired to be used, in
connection with Blue Ridge Reservoir.
(B) Salt river project agricultural improvement and power
district.--The term ``Salt River Project Agricultural
Improvement and Power District'' means the Salt River Project
Agricultural Improvement and Power District, a political
subdivision of the State of Arizona.
(2) Transfer of title.--The United States, acting through
the Secretary of the Interior, shall accept from the Salt
River Project Agricultural Improvement and Power District the
transfer of title to the Blue Ridge Project. The transfer of
title to the Blue Ridge Project from the Salt River Project
Agricultural Improvement and Power District to the United
States shall be without cost to the United States. The
transfer, change of use or change of place of use of any
water rights associated with the Blue Ridge Project shall be
made in accordance with Arizona law.
(3) Use and benefit of salt river federal reclamation
project.--
(A) In general.--Subject to subparagraph (B), the United
States shall hold title to the Blue Ridge Project for the
exclusive use and benefit of the Salt River Federal
Reclamation Project.
(B) Availability of water.--Up to 3,500 acre-feet of water
per year may be made available from Blue Ridge Reservoir for
municipal and domestic uses in Northern Gila County, Arizona,
without cost to the Salt River Federal Reclamation Project.
(4) Termination of jurisdiction.--
(A) Licensing and regulatory authority.--Upon the transfer
of title of the Blue Ridge Project to the United States under
paragraph (2), the Federal Energy Regulatory Commission shall
have no further licensing and regulatory authority over
Project Number 2304, the Blue Ridge Project, located within
the State.
(B) Environmental laws.--All other applicable Federal
environmental laws shall continue to apply to the Blue Ridge
Project, including the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.) and the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et seq.).
(5) Care, operation, and maintenance.--Upon the transfer of
title of the Blue Ridge Project to the United States under
paragraph (2), the Salt River Valley Water Users' Association
and the Salt River Project Agricultural Improvement and Power
District shall be responsible for the care, operation, and
maintenance of the project pursuant to the contract between
the United States and the Salt River Valley Water Users'
Association, dated September 6, 1917, as amended.
(6) C.C. cragin dam & reservoir.--Upon the transfer of
title of the Blue Ridge Project to the United States under
paragraph (2), Blue Ridge Dam and Reservoir shall thereafter
be known as the ``C.C. Cragin Dam and Reservoir''.
(j) Effect on Current Law; Jurisdiction of Courts.--Nothing
in this section--
(1) alters law in effect on the day before the date of
enactment of this Act with respect to pre-enforcement review
of Federal environmental enforcement actions; or
(2) confers jurisdiction on any State court to interpret
subparagraphs (D), (E), and (G) of section 207(a)(1) where
such jurisdiction does not otherwise exist.
SEC. 214. AUTHORIZATION OF APPROPRIATIONS.
(a) Authorization of Appropriations.--
(1) Rehabilitation of irrigation works.--
(A) In general.--There is authorized to be appropriated
$52,396,000, adjusted to reflect changes since January 1,
2000, under subparagraph (B) for the rehabilitation of
irrigation works under section 203(d)(4).
(B) Adjustment.--The amount under subparagraph (A) shall be
adjusted by such amounts, if any, as may be required by
reason of changes in construction costs as indicated by
engineering cost indices applicable to the types of
construction required by the rehabilitation.
(2) Bureau of reclamation construction oversight.--There
are authorized to be appropriated such sums as are necessary
for the Bureau of Reclamation to undertake the oversight of
the construction projects authorized under section 203.
(3) Subsidence remediation program.--There are authorized
to be appropriated such sums as are necessary to carry out
the subsidence remediation program under section 209
(including such sums as are necessary, not to exceed
$4,000,000, to carry out the subsidence remediation and
repair required under section 209(d)).
(4) Water rights reduction.--There are authorized to be
appropriated such sums as are necessary to carry out the
water rights reduction program under section 211.
(5) Safford facility.--There are authorized to be
appropriated such sums as are necessary to--
(A) retire $13,900,000, minus any amounts appropriated for
this purpose, of the debt incurred by Safford to pay costs
associated with the construction of the Safford facility as
identified in exhibit 26.1 to the Gila River agreement; and
(B) pay the interest accrued on that amount.
(6) Environmental compliance.--There are authorized to be
appropriated--
(A) such sums as are necessary to carry out--
(i) all necessary environmental compliance activities
undertaken by the Secretary associated with the Gila River
agreement and this title;
(ii) any mitigation measures adopted by the Secretary that
are the responsibility of the Community associated with the
construction of the diversion and delivery facilities of the
water referred to in section 204 for use on the reservation;
and
(iii) no more than 50 percent of the cost of any mitigation
measures adopted by the Secretary that are the responsibility
of the Community associated with the diversion or delivery of
the water referred to in section 204 for use on the
Reservation, other than any responsibility related to water
delivered to any other person by lease or exchange; and
(B) to carry out the mitigation measures in the Roosevelt
Habitat Conservation Plan, not more than $10,000,000.
(7) UV irrigation districts.--There are authorized to be
appropriated such sums as are necessary to pay the Gila
Valley Irrigation District an amount of $15,000,000 (adjusted
to reflect changes since the date of enactment of the Arizona
Water Settlements Act of 2004 in the cost indices applicable
to the type of design and construction involved in the design
and construction of a pipeline at or upstream from the Ft.
Thomas Diversion Dam to the lands farmed by the San Carlos
Apache Tribe, together with canal connections upstream from
the Ft. Thomas Diversion Dam and connection devices
appropriate to introduce pumped water into the Pipeline).
(b) Identified Costs.--
(1) In general.--Amounts made available under subsection
(a) shall be considered to be identified costs for purposes
of paragraph (2)(D)(v)(I) of section 403(f) of the Colorado
River Basin Project Act (43 U.S.C. 1543(f)) (as amended by
section 107(a)).
(2) Exception.--Amounts made available under subsection
(a)(4) to carry out section 211(b) shall not be considered to
be identified costs for purposes of section
403(f)(2)(D)(v)(I) of the Colorado River Basin Project Act
(43 U.S.C. 1543(f)(2)(D)(v)(I)) (as amended by section
107(a)).
SEC. 215. REPEAL ON FAILURE OF ENFORCEABILITY DATE.
If the Secretary does not publish a statement of findings
under section 207(c) by December 31, 2007--
(1) except for section 213(i), this title is repealed
effective January 1, 2008, and any action taken by the
Secretary and any contract entered under any provision of
this title shall be void;
(2) any amounts appropriated under paragraphs (1) through
(7) of section 214(a), together with any interest on those
amounts, shall immediately revert to the general fund of the
Treasury;
(3) any amounts made available under section 214(b) that
remain unexpended shall immediately revert to the general
fund of the Treasury; and
(4) any amounts paid by the Salt River Project in
accordance with the Gila River agreement shall immediately be
returned to the Salt River Project.
TITLE III--SOUTHERN ARIZONA WATER RIGHTS SETTLEMENT
SEC. 301. SOUTHERN ARIZONA WATER RIGHTS SETTLEMENT.
The Southern Arizona Water Rights Settlement Act of 1982
(96 Stat. 1274) is amended to read as follows:
``TITLE III--SOUTHERN ARIZONA WATER RIGHTS SETTLEMENT
``SEC. 301. SHORT TITLE.
``This title may be cited as the `Southern Arizona Water
Rights Settlement Amendments Act of 2004'.
``SEC. 302. PURPOSES.
``The purposes of this title are--
``(1) to authorize, ratify, and confirm the agreements
referred to in section 309(h);
``(2) to authorize and direct the Secretary to execute and
perform all obligations of the Secretary under those
agreements; and
``(3) to authorize the actions and appropriations necessary
for the United States to meet obligations of the United
States under those agreements and this title.
``SEC. 303. DEFINITIONS.
``In this title:
``(1) Acre-foot.--The term `acre-foot' means the quantity
of water necessary to cover 1 acre of land to a depth of 1
foot.
[[Page H9809]]
``(2) After-acquired trust land.--The term `after-acquired
trust land' means land that--
``(A) is located--
``(i) within the State; but
``(ii) outside the exterior boundaries of the Nation's
Reservation; and
``(B) is taken into trust by the United States for the
benefit of the Nation after the enforceability date.
``(3) Agreement of december 11, 1980.--The term `agreement
of December 11, 1980' means the contract entered into by the
United States and the Nation on December 11, 1980.
``(4) Agreement of october 11, 1983.--The term `agreement
of October 11, 1983' means the contract entered into by the
United States and the Nation on October 11, 1983.
``(5) Allottee.--The term `allottee' means a person that
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.
``(6) Allottee class.--The term `allottee class' means an
applicable plaintiff class certified by the court of
jurisdiction in--
``(A) the Alvarez case; or
``(B) the Tucson case.
``(7) Alvarez case.--The term `Alvarez case' means the
first through third causes of action of the third amended
complaint in Alvarez v. City of Tucson (Civ. No. 93-09039 TUC
FRZ (D. Ariz., filed April 21, 1993)).
``(8) Applicable law.--The term `applicable law' means any
applicable Federal, State, tribal, or local law.
``(9) Asarco.--The term `Asarco' means Asarco Incorporated,
a New Jersey corporation of that name, and its subsidiaries
operating mining operations in the State.
``(10) Asarco agreement.--The term `Asarco agreement' means
the agreement by that name attached to the Tohono O'odham
settlement agreement as exhibit 13.1.
``(11) CAP repayment contract.--
``(A) In general.--The term `CAP repayment contract' means
the contract dated December 1, 1988 (Contract No. 14-0906-
09W-09245, Amendment No. 1) between the United States and the
Central Arizona Water Conservation District for the delivery
of water and the repayment of costs of the Central Arizona
Project.
``(B) Inclusions.--The term `CAP repayment contract'
includes all amendments to and revisions of that contract.
``(12) Central arizona project.--The term `Central Arizona
Project' means the reclamation project authorized and
constructed by the United States in accordance with title III
of the Colorado River Basin Project Act (43 U.S.C. 1521 et
seq.).
``(13) Central arizona project link pipeline.--The term
`Central Arizona Project link pipeline' means the pipeline
extending from the Tucson Aqueduct of the Central Arizona
Project to Station 293+36.
``(14) Central arizona project service area.--The term
`Central Arizona Project service area' means--
``(A) the geographical area comprised of Maricopa, Pinal,
and Pima Counties, Arizona, in which the Central Arizona
Water Conservation District delivers Central Arizona Project
water; and
``(B) any expansion of that area under applicable law.
``(15) Central arizona water conservation district.--The
term `Central Arizona Water Conservation District' means the
political subdivision of the State that is the contractor
under the CAP repayment contract.
``(16) Cooperative farm.--The term `cooperative farm' means
the farm on land served by an irrigation system and the
extension of the irrigation system provided for under
paragraphs (1) and (2) of section 304(c).
``(17) Cooperative fund.--The term `cooperative fund' means
the cooperative fund established by section 313 of the 1982
Act and reauthorized by section 310.
``(18) Delivery and distribution system.--
``(A) In general.--The term `delivery and distribution
system' means--
``(i) the Central Arizona Project aqueduct;
``(ii) the Central Arizona Project link pipeline; and
``(iii) the pipelines, canals, aqueducts, conduits, and
other necessary facilities for the delivery of water under
the Central Arizona Project.
``(B) Inclusions.--The term `delivery and distribution
system' includes pumping facilities, power plants, and
electric power transmission facilities external to the
boundaries of any farm to which the water is distributed.
``(19) Eastern schuk toak district.--The term `eastern
Schuk Toak District' means the portion of the Schuk Toak
District (1 of 11 political subdivisions of the Nation
established under the constitution of the Nation) that is
located within the Tucson management area.
``(20) Enforceability date.--The term `enforceability date'
means the date on which title III of the Arizona Water
Settlements Act takes effect (as described in section 302(b)
of the Arizona Water Settlements Act).
``(21) Exempt well.--The term `exempt well' means a water
well--
``(A) the maximum pumping capacity of which is not more
than 35 gallons per minute; and
``(B) the water from which is used for--
``(i) the supply, service, or activities of households or
private residences;
``(ii) landscaping;
``(iii) livestock watering; or
``(iv) the irrigation of not more than 2 acres of land for
the production of 1 or more agricultural or other commodities
for--
``(I) sale;
``(II) human consumption; or
``(III) use as feed for livestock or poultry.
``(22) Fee owner of allotted land.--The term `fee owner of
allotted land' means a person that holds fee simple title in
real property on the Reservation that, at any time before the
date on which the person acquired fee simple title, was held
in trust by the United States as an Indian allotment.
``(23) FICO.--The term `FICO' means collectively the
Farmers Investment Co., an Arizona corporation of that name,
and the Farmers Water Co., an Arizona corporation of that
name.
``(24) 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).
``(25) Injury to water quality.--The term `injury to water
quality' means any contamination, diminution, or deprivation
of water quality under applicable law.
``(26) Injury to water rights.--
``(A) In general.--The term `injury to water rights' means
an interference with, diminution of, or deprivation of water
rights under applicable law.
``(B) Inclusion.--The term `injury to water rights'
includes a change in the underground water table and any
effect of such a change.
``(C) Exclusion.--The term `injury to water rights' does
not include subsidence damage or injury to water quality.
``(27) Irrigation system.--
``(A) In general.--The term `irrigation system' means
canals, laterals, ditches, sprinklers, bubblers, and other
irrigation works used to distribute water within the
boundaries of a farm.
``(B) Inclusions.--The term `irrigation system', with
respect to the cooperative farm, includes activities,
procedures, works, and devices for--
``(i) rehabilitation of fields;
``(ii) remediation of sinkholes, sinks, depressions, and
fissures; and
``(iii) stabilization of the banks of the Santa Cruz River.
``(28) Lower colorado river basin development fund.--The
term `Lower Colorado River Basin Development Fund' means the
fund established by section 403 of the Colorado River Basin
Project Act (43 U.S.C. 1543).
``(29) M&I priority water.--The term `M&I priority water'
means Central Arizona Project water that has municipal and
industrial priority.
``(30) Nation.--The term `Nation' means the Tohono O'odham
Nation (formerly known as the Papago Tribe) organized under a
constitution approved in accordance with section 16 of the
Act of June 18, 1934 (25 U.S.C. 476).
``(31) Nation's reservation.--The term `Nation's
Reservation' means all land within the exterior boundaries
of--
``(A) the Sells Tohono O'odham Reservation established by
the Executive order of February 1, 1917, and the Act of
February 21, 1931 (46 Stat. 1202, chapter 267);
``(B) the San Xavier Reservation established by the
Executive order of July 1, 1874;
``(C) the Gila Bend Indian Reservation established by the
Executive order of December 12, 1882, and modified by the
Executive order of June 17, 1909;
``(D) the Florence Village established by Public Law 95-361
(92 Stat. 595);
``(E) all land acquired in accordance with the Gila Bend
Indian Reservation Lands Replacement Act (100 Stat. 1798), if
title to the land is held in trust by the Secretary for the
benefit of the Nation; and
``(F) all other land to which the United States holds legal
title in trust for the benefit of the Nation and that is
added to the Nation's Reservation or granted reservation
status in accordance with applicable Federal law before the
enforceability date.
``(32) Net irrigable acres.--The term `net irrigable acres'
means, with respect to a farm, the acreage of the farm that
is suitable for agriculture, as determined by the Nation and
the Secretary.
``(33) NIA priority water.--The term `NIA priority water'
means Central Arizona Project water that has non-Indian
agricultural priority.
``(34) San xavier allottees association.--The term `San
Xavier Allottees Association' means the nonprofit corporation
established under State law for the purpose of representing
and advocating the interests of allottees.
``(35) San xavier cooperative association.--The term `San
Xavier Cooperative Association' means the entity chartered
under the laws of the Nation (or a successor of that entity)
that is a lessee of land within the cooperative farm.
``(36) San xavier district.--The term `San Xavier District'
means the district of that name, 1 of 11 political
subdivisions of the Nation established under the constitution
of the Nation.
``(37) San xavier district council.--The term `San Xavier
District Council' means the governing body of the San Xavier
District, as established under the constitution of the
Nation.
``(38) San xavier reservation.--The term `San Xavier
Reservation' means the San Xavier Indian Reservation
established by the Executive order of July 1, 1874.
``(39) Schuk toak farm.--The term `Schuk Toak Farm' means a
farm constructed in the eastern Schuk Toak District served by
the irrigation system provided for under section 304(c)(4).
[[Page H9810]]
``(40) Secretary.--The term `Secretary' means the Secretary
of the Interior.
``(41) State.--The term `State' means the State of Arizona.
``(42) Subjugate.--The term `subjugate' means to prepare
land for agricultural use through irrigation.
``(43) Subsidence damage.--The term `subsidence damage'
means injury to land, water, or other real property resulting
from the settling of geologic strata or cracking in the
surface of the earth of any length or depth, which settling
or cracking is caused by the pumping of water.
``(44) Surface water.--The term `surface water' means all
water that is appropriable under State law.
``(45) Tohono o'odham settlement agreement.--The term
`Tohono O'odham settlement agreement' means the agreement
dated April 30, 2003 (including all exhibits of and
attachments to the agreement).
``(46) Tucson case.--The term `Tucson case' means United
States et al. v. City of Tucson, et al. (Civ. No. 75-0939 TUC
consol. with Civ. No. 75-0951 TUC FRZ (D. Ariz., filed
February 20, 1975)).
``(47) Tucson interim water lease.--The term `Tucson
interim water lease' means the lease, and any pre-2004
amendments and extensions of the lease, approved by the
Secretary, between the city of Tucson, Arizona, and the
Nation, dated October 24, 1992.
``(48) Tucson management area.--The term `Tucson management
area' means the area in the State comprised of--
``(A) the area--
``(i) designated as the Tucson Active Management Area under
the Arizona Groundwater Management Act of 1980 (1980 Ariz.
Sess. Laws 1); and
``(ii) subsequently divided into the Tucson Active
Management Area and the Santa Cruz Active Management Area
(1994 Ariz. Sess. Laws 296); and
``(B) the portion of the Upper Santa Cruz Basin that is not
located within the area described in subparagraph (A)(i).
``(49) Turnout.--The term `turnout' means a point of water
delivery on the Central Arizona Project aqueduct.
``(50) Underground storage.--The term `underground storage'
means storage of water accomplished under a project
authorized under section 308(e).
``(51) United states as trustee.--The term `United States
as Trustee' means the United States, acting on behalf of the
Nation and allottees, but in no other capacity.
``(52) Value.--The term `value' means the value attributed
to water based on the greater of--
``(A) the anticipated or actual use of the water; or
``(B) the fair market value of the water.
``(53) Water right.--The term `water right' means any right
in or to groundwater, surface water, or effluent under
applicable law.
``(54) 1982 act.--The term `1982 Act' means the Southern
Arizona Water Rights Settlement Act of 1982 (96 Stat. 1274;
106 Stat. 3256), as in effect on the day before the
enforceability date.
``SEC. 304. WATER DELIVERY AND CONSTRUCTION OBLIGATIONS.
``(a) Water Delivery.--The Secretary shall deliver annually
from the main project works of the Central Arizona Project, a
total of 37,800 acre-feet of water suitable for agricultural
use, of which--
``(1) 27,000 acre-feet shall--
``(A) be deliverable for use to the San Xavier Reservation;
or
``(B) otherwise be used in accordance with section 309; and
``(2) 10,800 acre-feet shall--
``(A) be deliverable for use to the eastern Schuk Toak
District; or
``(B) otherwise be used in accordance with section 309.
``(b) Delivery and Distribution Systems.--The Secretary
shall (without cost to the Nation, any allottee, the San
Xavier Cooperative Association, or the San Xavier Allottees
Association), as part of the main project works of the
Central Arizona Project, design, construct, operate,
maintain, and replace the delivery and distribution systems
necessary to deliver the water described in subsection (a).
``(c) Duties of the Secretary.--
``(1) Completion of delivery and distribution system and
improvement to existing irrigation system.--Except as
provided in subsection (d), not later than 8 years after the
enforceability date, the Secretary shall complete the design
and construction of improvements to the irrigation system
that serves the cooperative farm.
``(2) Extension of existing irrigation system within the
san xavier reservation.--
``(A) In general.--Except as provided in subsection (d),
not later than 8 years after the enforceability date, in
addition to the improvements described in paragraph (1), the
Secretary shall complete the design and construction of the
extension of the irrigation system for the cooperative farm.
``(B) Capacity.--On completion of the extension, the
extended cooperative farm irrigation system shall serve 2,300
net irrigable acres on the San Xavier Reservation, unless the
Secretary and the San Xavier Cooperative Association agree on
fewer net irrigable acres.
``(3) Construction of new farm.--
``(A) In general.--Except as provided in subsection (d),
not later than 8 years after the enforceability date, the
Secretary shall--
``(i) design and construct within the San Xavier
Reservation such additional canals, laterals, farm ditches,
and irrigation works as are necessary for the efficient
distribution for agricultural purposes of that portion of the
27,000 acre-feet annually of water described in subsection
(a)(1) that is not required for the irrigation systems
described in paragraphs (1) and (2) of subsection (c); or
``(ii) in lieu of the actions described in clause (i), pay
to the San Xavier District $18,300,000 (adjusted as provided
in section 317(a)(2)) in full satisfaction of the obligations
of the United States described in clause (i).
``(B) Election.--
``(i) In general.--The San Xavier District Council may make
a nonrevocable election whether to receive the benefits
described under clause (i) or (ii) of subparagraph (A) by
notifying the Secretary by not later than 180 days after the
enforceability date or January 1, 2010, whichever is later,
by written and certified resolution of the San Xavier
District Council.
``(ii) No resolution.--If the Secretary does not receive
such a resolution by the deadline specified in clause (i),
the Secretary shall pay $18,300,000 (adjusted as provided in
section 317(a)(2)) to the San Xavier District in lieu of
carrying out the obligations of the United States under
subparagraph (A)(i).
``(C) Source of funds and time of payment.--
``(i) In general.--Payment of $18,300,000 (adjusted as
provided in section 317(a)(2)) under this paragraph shall be
made by the Secretary from the Lower Colorado River Basin
Development Fund--
``(I) not later than 60 days after an election described in
subparagraph (B) is made (if such an election is made), but
in no event earlier than the enforceability date or January
1, 2010, whichever is later; or
``(II) not later than 240 days after the enforceability
date or January 1, 2010, whichever is later, if no timely
election is made.
``(ii) Payment for additional structures.--Payment of
amounts necessary to design and construct such additional
canals, laterals, farm ditches, and irrigation works as are
described in subparagraph (A)(i) shall be made by the
Secretary from the Lower Colorado River Basin Development
Fund, if an election is made to receive the benefits under
subparagraph (A)(i).
``(4) Irrigation and delivery and distribution systems in
the eastern schuk toak district.--Except as provided in
subsection (d), not later than 1 year after the
enforceability date, the Secretary shall complete the design
and construction of an irrigation system and delivery and
distribution system to serve the farm that is constructed in
the eastern Schuk Toak District.
``(d) Extension of Deadlines.--
``(1) In general.--The Secretary may extend a deadline
under subsection (c) if the Secretary determines that
compliance with the deadline is impracticable by reason of--
``(A) a material breach by a contractor of a contract that
is relevant to carrying out a project or activity described
in subsection (c);
``(B) the inability of such a contractor, under such a
contract, to carry out the contract by reason of force
majeure, as defined by the Secretary in the contract;
``(C) unavoidable delay in compliance with applicable
Federal and tribal laws, as determined by the Secretary,
including--
``(i) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.); and
``(ii) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.); or
``(D) stoppage in work resulting from the assessment of a
tax or fee that is alleged in any court of jurisdiction to be
confiscatory or discriminatory.
``(2) Notice of finding.--If the Secretary extends a
deadline under paragraph (1), the Secretary shall--
``(A) publish a notice of the extension in the Federal
Register; and
``(B)(i) include in the notice an estimate of such
additional period of time as is necessary to complete the
project or activity that is the subject of the extension; and
``(ii) specify a deadline that provides for a period for
completion of the project before the end of the period
described in clause (i).
``(e) Authority of Secretary.--
``(1) In general.--In carrying out this title, after
providing reasonable notice to the Nation, the Secretary, in
compliance with all applicable law, may enter, construct
works on, and take such other actions as are related to the
entry or construction on land within the San Xavier District
and the eastern Schuk Toak District.
``(2) Effect on federal activity.--Nothing in this
subsection affects the authority of the United States, or any
Federal officer, agent, employee, or contractor, to conduct
official Federal business or carry out any Federal duty
(including any Federal business or duty under this title) on
land within the eastern Schuk Toak District or the San Xavier
District.
``(f) Use of Funds.--
``(1) In general.--With respect to any funds received under
subsection (c)(3)(A), the San Xavier District--
``(A) shall hold the funds in trust, and invest the funds
in interest-bearing deposits and securities, until expended;
``(B) may expend the principal of the funds, and any
interest and dividends that accrue on the principal, only in
accordance with a budget that is--
``(i) authorized by the San Xavier District Council; and
``(ii) approved by resolution of the Legislative Council of
the Nation; and
``(C) shall expend the funds--
[[Page H9811]]
``(i) for any subjugation of land, development of water
resources, or construction, operation, maintenance, or
replacement of facilities within the San Xavier Reservation
that is not required to be carried out by the United States
under this title or any other provision of law;
``(ii) to provide governmental services, including--
``(I) programs for senior citizens;
``(II) health care services;
``(III) education;
``(IV) economic development loans and assistance; and
``(V) legal assistance programs;
``(iii) to provide benefits to allottees;
``(iv) to pay the costs of activities of the San Xavier
Allottees Association; or
``(v) to pay any administrative costs incurred by the
Nation or the San Xavier District in conjunction with any of
the activities described in clauses (i) through (iv).
``(2) No liability of secretary; limitation.--
``(A) In general.--The Secretary shall not--
``(i) be responsible for any review, approval, or audit of
the use and expenditure of the funds described in paragraph
(1); or
``(ii) be subject to liability for any claim or cause of
action arising from the use or expenditure, by the Nation or
the San Xavier District, of those funds.
``(B) Limitation.--No portion of any funds described in
paragraph (1) shall be used for per capita payments to any
individual member of the Nation or any allottee.
``SEC. 305. DELIVERIES UNDER EXISTING CONTRACT; ALTERNATIVE
WATER SUPPLIES.
``(a) Delivery of Water.--
``(1) In general.--The Secretary shall deliver water from
the main project works of the Central Arizona Project, in
such quantities, and in accordance with such terms and
conditions, as are contained in the agreement of December 11,
1980, the 1982 Act, the agreement of October 11, 1983, and
the Tohono O'odham settlement agreement (to the extent that
the settlement agreement does not conflict with this Act), to
1 or more of--
``(A) the cooperative farm;
``(B) the eastern Schuk Toak District;
``(C) turnouts existing on the enforceability date; and
``(D) any other point of delivery on the Central Arizona
Project main aqueduct that is agreed to by--
``(i) the Secretary;
``(ii) the operator of the Central Arizona Project; and
``(iii) the Nation.
``(2) Delivery.--The Secretary shall deliver the water
covered by sections 304(a) and 306(a), or an equivalent
quantity of water from a source identified under subsection
(b)(1), notwithstanding--
``(A) any declaration by the Secretary of a water shortage
on the Colorado River; or
``(B) any other occurrence affecting water delivery caused
by an act or omission of--
``(i) the Secretary;
``(ii) the United States; or
``(iii) any officer, employee, contractor, or agent of the
Secretary or United States.
``(b) Acquisition of Land and Water.--
``(1) Delivery.--
``(A) In general.--Except as provided in subparagraph (B),
if the Secretary, under the terms and conditions of the
agreements referred to in subsection (a)(1), is unable,
during any year, to deliver annually from the main project
works of the Central Arizona Project any portion of the
quantity of water covered by sections 304(a) and 306(a), the
Secretary shall identify, acquire and deliver an equivalent
quantity of water from, any appropriate source.
``(B) Exception.--The Secretary shall not acquire any water
under subparagraph (A) through any transaction that would
cause depletion of groundwater supplies or aquifers in the
San Xavier District or the eastern Schuk Toak District.
``(2) Private land and interests.--
``(A) Acquisition.--
``(i) In general.--Subject to subparagraph (B), the
Secretary may acquire, for not more than market value, such
private land, or interests in private land, that include
rights in surface or groundwater recognized under State law,
as are necessary for the acquisition and delivery of water
under this subsection.
``(ii) Compliance.--In acquiring rights in surface water
under clause (i), the Secretary shall comply with all
applicable severance and transfer requirements under State
law.
``(B) Prohibition on taking.--The Secretary shall not
acquire any land, water, water rights, or contract rights
under subparagraph (A) without the consent of the owner of
the land, water, water rights, or contract rights.
``(C) Priority.--In acquiring any private land or interest
in private land under this paragraph, the Secretary shall
give priority to the acquisition of land on which water has
been put to beneficial use during any 1-year period during
the 5-year period preceding the date of acquisition of the
land by the Secretary.
``(3) Deliveries from acquired land.--Deliveries of water
from land acquired under paragraph (2) shall be made only to
the extent that the water may be transported within the
Tucson management area under applicable law.
``(4) Delivery of effluent.--
``(A) In general.--Except on receipt of prior written
consent of the Nation, the Secretary shall not deliver
effluent directly to the Nation under this subsection.
``(B) No separate delivery system.--The Secretary shall not
construct a separate delivery system to deliver effluent to
the San Xavier Reservation or the eastern Schuk Toak
District.
``(C) No imposition of obligation.--Nothing in this
paragraph imposes any obligation on the United States to
deliver effluent to the Nation.
``(c) Agreements and Contracts.--To facilitate the delivery
of water to the San Xavier Reservation and the eastern Schuk
Toak District under this title, the Secretary may enter into
a contract or agreement with the State, an irrigation
district or project, or entity--
``(1) for--
``(A) the exchange of water; or
``(B) the use of aqueducts, canals, conduits, and other
facilities (including pumping plants) for water delivery; or
``(2) to use facilities constructed, in whole or in part,
with Federal funds.
``(d) Compensation and Disbursements.--
``(1) Compensation.--If the Secretary is unable to acquire
and deliver sufficient quantities of water under section
304(a), this section, or section 306(a), the Secretary shall
provide compensation in accordance with paragraph (2) in
amounts equal to--
``(A)(i) the value of such quantities of water as are not
acquired and delivered, if the delivery and distribution
system for, and the improvements to, the irrigation system
for the cooperative farm have not been completed by the
deadline required under section 304(c)(1); or
``(ii) the value of such quantities of water as--
``(I) are ordered by the Nation for use by the San Xavier
Cooperative Association in the irrigation system; but
``(II) are not delivered in any calendar year;
``(B)(i) the value of such quantities of water as are not
acquired and delivered, if the extension of the irrigation
system is not completed by the deadline required under
section 304(c)(2); or
``(ii) the value of such quantities of water as--
``(I) are ordered by the Nation for use by the San Xavier
Cooperative Association in the extension to the irrigation
system; but
``(II) are not delivered in any calendar year; and
``(C)(i) the value of such quantities of water as are not
acquired and delivered, if the irrigation system is not
completed by the deadline required under section 304(c)(4);
or
``(ii) except as provided in clause (i), the value of such
quantities of water as--
``(I) are ordered by the Nation for use in the irrigation
system, or for use by any person or entity (other than the
San Xavier Cooperative Association); but
``(II) are not delivered in any calendar year.
``(2) Disbursement.--Any compensation payable under
paragraph (1) shall be disbursed--
``(A) with respect to compensation payable under
subparagraphs (A) and (B) of paragraph (1), to the San Xavier
Cooperative Association; and
``(B) with respect to compensation payable under paragraph
(1)(C), to the Nation for retention by the Nation or
disbursement to water users, under the provisions of the
water code or other applicable laws of the Nation.
``(e) No Effect on Water Rights.--Nothing in this section
authorizes the Secretary to acquire or otherwise affect the
water rights of any Indian tribe.
``SEC. 306. ADDITIONAL WATER DELIVERY.
``(a) In General.--In addition to the delivery of water
described in section 304(a), the Secretary shall deliver
annually from the main project works of the Central Arizona
Project, a total of 28,200 acre-feet of NIA priority water
suitable for agricultural use, of which--
``(1) 23,000 acre-feet shall--
``(A) be delivered to, and used by, the San Xavier
Reservation; or
``(B) otherwise be used by the Nation in accordance with
section 309; and
``(2) 5,200 acre-feet shall--
``(A) be delivered to, and used by, the eastern Schuk Toak
District; or
``(B) otherwise be used by the Nation in accordance with
section 309.
``(b) State Contribution.--To assist the Secretary in
firming water under section 105(b)(1)(A) of the Arizona Water
Settlements Act, the State shall contribute $3,000,000--
``(1) in accordance with a schedule that is acceptable to
the Secretary and the State; and
``(2) in the form of cash or in-kind goods and services.
``SEC. 307. CONDITIONS ON CONSTRUCTION, WATER DELIVERY,
REVENUE SHARING.
``(a) Conditions on Actions of Secretary.--The Secretary
shall carry out section 304(c), subsections (a), (b), and (d)
of section 305, and section 306, only if--
``(1) the Nation agrees--
``(A) except as provided in section 308(f)(1), to limit the
quantity of groundwater withdrawn by nonexempt wells from
beneath the San Xavier Reservation to not more than 10,000
acre-feet;
[[Page H9812]]
``(B) except as provided in section 308(f)(2), to limit the
quantity of groundwater withdrawn by nonexempt wells from
beneath the eastern Schuk Toak District to not more than
3,200 acre-feet;
``(C) to comply with water management plans established by
the Secretary under section 308(d);
``(D) to consent to the San Xavier District being deemed a
tribal organization (as defined in section 900.6 of title 25,
Code of Federal Regulations (or any successor regulations))
for purposes identified in subparagraph (E)(iii)(I), as
permitted with respect to tribal organizations under title I
of the Indian Self-Determination and Education Assistance Act
(25 U.S.C. 450 et seq.);
``(E) subject to compliance by the Nation with other
applicable provisions of part 900 of title 25, Code of
Federal Regulations (or any successor regulations), to
consent to contracting by the San Xavier District under
section 311(b), on the conditions that--
``(i)(I) the plaintiffs in the Alvarez case and Tucson case
have stipulated to the dismissal, with prejudice, of claims
in those cases; and
``(II) those cases have been dismissed with prejudice;
``(ii) the San Xavier Cooperative Association has agreed to
assume responsibility, after completion of each of the
irrigation systems described in paragraphs (1), (2), and (3)
of section 304(c) and on the delivery of water to those
systems, for the operation, maintenance, and replacement of
those systems in accordance with the first section of the Act
of August 1, 1914 (25 U.S.C. 385); and
``(iii) with respect to the consent of the Nation to
contracting--
``(I) the consent is limited solely to contracts for--
``(aa) the design and construction of the delivery and
distribution system and the rehabilitation of the irrigation
system for the cooperative farm;
``(bb) the extension of the irrigation system for the
cooperative farm;
``(cc) the subjugation of land to be served by the
extension of the irrigation system;
``(dd) the design and construction of storage facilities
solely for water deliverable for use within the San Xavier
Reservation; and
``(ee) the completion by the Secretary of a water resources
study of the San Xavier Reservation and subsequent
preparation of a water management plan under section 308(d);
``(II) the Nation shall reserve the right to seek
retrocession or reassumption of contracts described in
subclause (I), and recontracting under subpart P and other
applicable provisions of part 900 of title 25, Code of
Federal Regulations (or any successor regulations);
``(III) the Nation, on granting consent to such
contracting, shall be released from any responsibility,
liability, claim, or cost from and after the date on which
consent is given, with respect to past action or inaction by
the Nation, and subsequent action or inaction by the San
Xavier District, relating to the design and construction of
irrigation systems for the cooperative farm or the Central
Arizona Project link pipeline; and
``(IV) the Secretary shall, on the request of the Nation,
execute a waiver and release to carry out subclause (III);
``(F) to subjugate, at no cost to the United States, the
land for which the irrigation systems under paragraphs (2)
and (3) of section 304(c) will be planned, designed, and
constructed by the Secretary, on the condition that--
``(i) the obligation of the Nation to subjugate the land in
the cooperative farm that is to be served by the extension of
the irrigation system under section 304(c)(2) shall be
determined by the Secretary, in consultation with the Nation
and the San Xavier Cooperative Association; and
``(ii) subject to approval by the Secretary of a contract
with the San Xavier District executed under section 311, to
perform that subjugation, a determination by the Secretary of
the subjugation costs under clause (i), and the provision of
notice by the San Xavier District to the Nation at least 180
days before the date on which the San Xavier District Council
certifies by resolution that the subjugation is scheduled to
commence, the Nation pays to the San Xavier District, not
later than 90 days before the date on which the subjugation
is scheduled to commence, from the trust fund under section
315, or from other sources of funds held by the Nation, the
amount determined by the Secretary under clause (i); and
``(G) subject to business lease No. H54-16-72 dated April
26, 1972, of San Xavier Reservation land to Asarco and
approved by the United States on November 14, 1972, that the
Nation--
``(i) shall allocate as a first right of beneficial use by
allottees, the San Xavier District, and other persons within
the San Xavier Reservation--
``(I) 35,000 acre-feet of the 50,000 acre-feet of water
deliverable under sections 304(a)(1) and 306(a)(1), including
the use of the allocation--
``(aa) to fulfill the obligations prescribed in the Asarco
agreement; and
``(bb) for groundwater storage, maintenance of instream
flows, and maintenance of riparian vegetation and habitat;
``(II) the 10,000 acre-feet of groundwater identified in
subsection (a)(1)(A);
``(III) the groundwater withdrawn from exempt wells;
``(IV) the deferred pumping storage credits authorized by
section 308(f)(1)(B); and
``(V) the storage credits resulting from a project
authorized in section 308(e) that cannot be lawfully
transferred or otherwise disposed of to persons for recovery
outside the Nation's Reservation;
``(ii) subject to section 309(b)(2), has the right--
``(I) to use, or authorize other persons or entities to
use, any portion of the allocation of 35,000 acre-feet of
water deliverable under sections 304(a)(1) and 306(a)(1)
outside the San Xavier Reservation for any period during
which there is no identified actual use of the water within
the San Xavier Reservation;
``(II) as a first right of use, to use the remaining acre-
feet of water deliverable under sections 304(a)(1) and
306(a)(1) for any purpose and duration authorized by this
title within or outside the Nation's Reservation; and
``(III) subject to section 308(e), as an exclusive right,
to transfer or otherwise dispose of the storage credits that
may be lawfully transferred or otherwise disposed of to
persons for recovery outside the Nation's Reservation;
``(iii) shall issue permits to persons or entities for use
of the water resources referred to in clause (i);
``(iv) shall, on timely receipt of an order for water by a
permittee under a permit for Central Arizona Project water
referred to in clause (i), submit the order to--
``(I) the Secretary; or
``(II) the operating agency for the Central Arizona
Project;
``(v) shall issue permits for water deliverable under
sections 304(a)(2) and 306(a)(2), including quantities of
water reasonably necessary for the irrigation system referred
to in section 304(c)(3);
``(vi) shall issue permits for groundwater that may be
withdrawn from nonexempt wells in the eastern Schuk Toak
District; and
``(vii) shall, on timely receipt of an order for water by a
permittee under a permit for water referred to in clause (v),
submit the order to--
``(I) the Secretary; or
``(II) the operating agency for the Central Arizona
Project; and
``(2) the Alvarez case and Tucson case have been dismissed
with prejudice.
``(b) Responsibilities on Completion.--On completion of an
irrigation system or extension of an irrigation system
described in paragraph (1) or (2) of section 304(c), or in
the case of the irrigation system described in section
304(c)(3), if such irrigation system is constructed on
individual Indian trust allotments, neither the United States
nor the Nation shall be responsible for the operation,
maintenance, or replacement of the system.
``(c) Payment of Charges.--The Nation shall not be
responsible for payment of any water service capital charge
for Central Arizona Project water delivered under section
304, subsection (a) or (b) of section 305, or section 306.
``SEC. 308. WATER CODE; WATER MANAGEMENT PLAN; STORAGE
PROJECTS; STORAGE ACCOUNTS; GROUNDWATER.
``(a) Water Resources.--Water resources described in
clauses (i) and (ii) of section 307(a)(1)(G)--
``(1) shall be subject to section 7 of the Act of February
8, 1887 (25 U.S.C. 381); and
``(2) shall be apportioned pursuant to clauses (i) and (ii)
of section 307(a)(1)(G).
``(b) Water Code.--Subject to this title and any other
applicable law, the Nation shall--
``(1) manage, regulate, and control the water resources of
the Nation and the water resources granted or confirmed under
this title;
``(2) establish conditions, limitations, and permit
requirements, and promulgate regulations, relating to the
storage, recovery, and use of surface water and groundwater
within the Nation's Reservation;
``(3) enact and maintain--
``(A) an interim allottee water rights code that--
``(i) is consistent with subsection (a);
``(ii) prescribes the rights of allottees identified in
paragraph (4); and
``(iii) provides that the interim allottee water rights
code shall be incorporated in the comprehensive water code
referred to in subparagraph (B); and
``(B) not later than 3 years after the enforceability date,
a comprehensive water code applicable to the water resources
granted or confirmed under this title;
``(4) include in each of the water codes enacted under
subparagraphs (A) and (B) of paragraph (3)--
``(A) an acknowledgement of the rights described in
subsection (a);
``(B) a process by which a just and equitable distribution
of the water resources referred to in subsection (a), and any
compensation provided under section 305(d), shall be provided
to allottees;
``(C) a process by which an allottee may request and
receive a permit for the use of any water resources referred
to in subsection (a), except the water resources referred to
in section 307(a)(1)(G)(ii)(III) and subject to the Nation's
first right of use under section 307(a)(1)(G)(ii)(II);
``(D) provisions for the protection of due process,
including--
``(i) a fair procedure for consideration and determination
of any request by--
``(I) a member of the Nation, for a permit for use of
available water resources granted or confirmed by this title;
and
``(II) an allottee, for a permit for use of--
[[Page H9813]]
``(aa) the water resources identified in section
307(a)(1)(G)(i) that are subject to a first right of
beneficial use; or
``(bb) subject to the first right of use of the Nation,
available water resources identified in section
307(a)(1)(G)(i)(II);
``(ii) provisions for--
``(I) appeals and adjudications of denied or disputed
permits; and
``(II) resolution of contested administrative decisions;
and
``(iii) a waiver by the Nation of the sovereign immunity of
the Nation only with respect to proceedings described in
clause (ii) for claims of declaratory and injunctive relief;
and
``(E) a process for satisfying any entitlement to the water
resources referred to in section 307(a)(1)(G)(i) for which
fee owners of allotted land have received final
determinations under applicable law; and
``(5) submit to the Secretary the comprehensive water code,
for approval by the Secretary only of the provisions of the
water code (and any amendments to the water code), that
implement, with respect to the allottees, the standards
described in paragraph (4).
``(c) Water Code Approval.--
``(1) In general.--On receipt of a comprehensive water code
under subsection (b)(5), the Secretary shall--
``(A) issue a written approval of the water code; or
``(B) provide a written notification to the Nation that--
``(i) identifies such provisions of the water code that do
not conform to subsection (b) or other applicable Federal
law; and
``(ii) recommends specific corrective language for each
nonconforming provision.
``(2) Revision by nation.--If the Secretary identifies
nonconforming provisions in the water code under paragraph
(1)(B)(i), the Nation shall revise the water code in
accordance with the recommendations of the Secretary under
paragraph (1)(B)(ii).
``(3) Interim authority.--Until such time as the Nation
revises the water code of the Nation in accordance with
paragraph (2) and the Secretary subsequently approves the
water code, the Secretary may exercise any lawful authority
of the Secretary under section 7 of the Act of February 8,
1887 (25 U.S.C. 381).
``(4) Limitation.--Except as provided in this subsection,
nothing in this title requires the approval of the Secretary
of the water code of the Nation (or any amendment to that
water code).
``(d) Water Management Plans.--
``(1) In general.--The Secretary shall establish, for the
San Xavier Reservation and the eastern Schuk Toak District,
water management plans that meet the requirements described
in paragraph (2).
``(2) Requirements.--Water management plans established
under paragraph (1)--
``(A) shall be developed under contracts executed under
section 311 between the Secretary and the San Xavier District
for the San Xavier Reservation, and between the Secretary and
the Nation for the eastern Schuk Toak District, as
applicable, that permit expenditures, exclusive of
administrative expenses of the Secretary, of not more than--
``(i) with respect to a contract between the Secretary and
the San Xavier District, $891,200; and
``(ii) with respect to a contract between the Secretary and
the Nation, $237,200;
``(B) shall, at a minimum--
``(i) provide for the measurement of all groundwater
withdrawals, including withdrawals from each well that is not
an exempt well;
``(ii) provide for--
``(I) reasonable recordkeeping of water use, including the
quantities of water stored underground and recovered each
calendar year; and
``(II) a system for the reporting of withdrawals from each
well that is not an exempt well;
``(iii) provide for the direct storage and deferred storage
of water, including the implementation of underground storage
and recovery projects, in accordance with this section;
``(iv) provide for the annual exchange of information
collected under clauses (i) through (iii)--
``(I) between the Nation and the Arizona Department of
Water Resources; and
``(II) between the Nation and the city of Tucson, Arizona;
``(v) provide for--
``(I) the efficient use of water; and
``(II) the prevention of waste;
``(vi) except on approval of the district council for a
district in which a direct storage project is established
under subsection (e), provide that no direct storage credits
earned as a result of the project shall be recovered at any
location at which the recovery would adversely affect surface
or groundwater supplies, or lower the water table at any
location, within the district; and
``(vii) provide for amendments to the water plan in
accordance with this title;
``(C) shall authorize the establishment and maintenance of
1 or more underground storage and recovery projects in
accordance with subsection (e), as applicable, within--
``(i) the San Xavier Reservation; or
``(ii) the eastern Schuk Toak District; and
``(D) shall be implemented and maintained by the Nation,
with no obligation by the Secretary.
``(e) Underground Storage and Recovery Projects.--The
Nation is authorized to establish direct storage and recovery
projects in accordance with the Tohono O'odham settlement
agreement. The Secretary shall have no responsibility to fund
or otherwise administer such projects.
``(f) Groundwater.--
``(1) San xavier reservation.--
``(A) In general.--In accordance with section 307(a)(1)(A),
10,000 acre-feet of groundwater may be pumped annually within
the San Xavier Reservation.
``(B) Deferred pumping.--
``(i) In general.--Subject to clause (ii), all or any
portion of the 10,000 acre-feet of water not pumped under
subparagraph (A) in a year--
``(I) may be withdrawn in a subsequent year; and
``(II) if any of that water is withdrawn, shall be
accounted for in accordance with the Tohono O'odham
settlement agreement as a debit to the deferred pumping
storage account.
``(ii) Limitation.--The quantity of water authorized to be
recovered as deferred pumping storage credits under this
subparagraph shall not exceed--
``(I) 50,000 acre-feet for any 10-year period; or
``(II) 10,000 acre-feet in any year.
``(C) Recovery of additional water.--In addition to the
quantity of groundwater authorized to be pumped under
subparagraphs (A) and (B), the Nation may annually recover
within the San Xavier Reservation all or a portion of the
credits for water stored under a project described in
subsection (e).
``(2) Eastern schuk toak district.--
``(A) In general.--In accordance with section 307(a)(1)(B),
3,200 acre-feet of groundwater may be pumped annually within
the eastern Schuk Toak District.
``(B) Deferred pumping.--
``(i) In general.--Subject to clause (ii), all or any
portion of the 3,200 acre-feet of water not pumped under
subparagraph (A) in a year--
``(I) may be withdrawn in a subsequent year; and
``(II) if any of that water is withdrawn, shall be
accounted for in accordance with the Tohono O'odham
settlement agreement as a debit to the deferred pumping
storage account.
``(ii) Limitation.--The quantity of water authorized to be
recovered as deferred pumping storage credits under this
subparagraph shall not exceed--
``(I) 16,000 acre-feet for any 10-year period; or
``(II) 3,200 acre-feet in any year.
``(C) Recovery of additional water.--In addition to the
quantity of groundwater authorized to be pumped under
subparagraphs (A) and (B), the Nation may annually recover
within the eastern Schuk Toak District all or a portion of
the credits for water stored under a project described in
subsection (e).
``(3) Inability to recover groundwater.--
``(A) In general.--The authorizations to pump groundwater
in paragraphs (1) and (2) neither warrant nor guarantee that
the groundwater--
``(i) physically exists; or
``(ii) is recoverable.
``(B) Claims.--With respect to groundwater described in
subparagraph (A)--
``(i) subject to paragraph 8.8 of the Tohono O'odham
settlement agreement, the inability of any person to pump or
recover that groundwater shall not be the basis for any claim
by the United States or the Nation against any person or
entity withdrawing or using the water from any common supply;
and
``(ii) the United States and the Nation shall be barred
from asserting any and all claims for reserved water rights
with respect to that groundwater.
``(g) Exempt Wells.--Any groundwater pumped from an exempt
well located within the San Xavier Reservation or the eastern
Schuk Toak District shall be exempt from all pumping
limitations under this title.
``(h) Inability of Secretary To Deliver Water.--The Nation
is authorized to pump additional groundwater in any year in
which the Secretary is unable to deliver water required to
carry out sections 304(a) and 306(a) in accordance with the
Tohono O'odham settlement agreement.
``(i) Payment of Compensation.--Nothing in this section
affects any obligation of the Secretary to pay compensation
in accordance with section 305(d).
``SEC. 309. USES OF WATER.
``(a) Permissible Uses.--Subject to other provisions of
this section and other applicable law, the Nation may devote
all water supplies granted or confirmed under this title,
whether delivered by the Secretary or pumped by the Nation,
to any use (including any agricultural, municipal, domestic,
industrial, commercial, mining, underground storage, instream
flow, riparian habitat maintenance, or recreational use).
``(b) Use Area.--
``(1) Use within nation's reservation.--Subject to
subsection (d), the Nation may use at any location within the
Nation's Reservation--
``(A) the water supplies acquired under sections 304(a) and
306(a);
``(B) groundwater supplies; and
``(C) storage credits acquired as a result of projects
authorized under section 308(e), or deferred storage credits
described in section 308(f), except to the extent that use of
those storage credits causes the withdrawal of groundwater in
violation of applicable Federal law.
``(2) Use outside the nation's reservation.--
[[Page H9814]]
``(A) In general.--Water resources granted or confirmed
under this title may be sold, leased, transferred, or used by
the Nation outside of the Nation's Reservation only in
accordance with this title.
``(B) Use within certain area.--Subject to subsection (c),
the Nation may use the Central Arizona Project water supplies
acquired under sections 304(a) and 306(a) within the Central
Arizona Project service area.
``(C) State law.--With the exception of Central Arizona
Project water and groundwater withdrawals under the Asarco
agreement, the Nation may sell, lease, transfer, or use any
water supplies and storage credits acquired as a result of a
project authorized under section 308(e) at any location
outside of the Nation's Reservation, but within the State,
only in accordance with State law.
``(D) Limitation.--Deferred pumping storage credits
provided for in section 308(f) shall not be sold, leased,
transferred, or used outside the Nation's Reservation.
``(E) Prohibition on use outside the state.--No water
acquired under section 304(a) or 306(a) shall be leased,
exchanged, forborne, or otherwise transferred by the Nation
for any direct or indirect use outside the State.
``(c) Exchanges and Leases; Conditions on Exchanges and
Leases.--
``(1) In general.--With respect to users outside the
Nation's Reservation, the Nation may, for a term of not to
exceed 100 years, assign, exchange, lease, provide an option
to lease, or otherwise temporarily dispose of to the users,
Central Arizona Project water to which the Nation is entitled
under sections 304(a) and 306(a) or storage credits acquired
under section 308(e), if the assignment, exchange, lease,
option, or temporary disposal is carried out in accordance
with--
``(A) this subsection; and
``(B) subsection (b)(2).
``(2) Limitation on alienation.--The Nation shall not
permanently alienate any water right under paragraph (1).
``(3) Authorized uses.--The water described in paragraph
(1) shall be delivered within the Central Arizona Project
service area for any use authorized under applicable law.
``(4) Contract.--An assignment, exchange, lease, option, or
temporary disposal described in paragraph (1) shall be
executed only in accordance with a contract that--
``(A) is accepted by the Nation;
``(B) is ratified under a resolution of the Legislative
Council of the Nation;
``(C) is approved by the United States as Trustee; and
``(D) with respect to any contract to which the United
States or the Secretary is a party, provides that an action
may be maintained by the contracting party against the United
States and the Secretary for a breach of the contract by the
United States or Secretary, as appropriate.
``(5) Terms exceeding 25 years.--The terms and conditions
established in paragraph 11 of the Tohono O'odham settlement
agreement shall apply to any contract under paragraph (4)
that has a term of greater than 25 years.
``(d) Limitations on Use, Exchanges, and Leases.--The
rights of the Nation to use water supplies under subsection
(a), and to assign, exchange, lease, provide options to
lease, or temporarily dispose of the water supplies under
subsection (c), shall be exercised on conditions that ensure
the availability of water supplies to satisfy the first right
of beneficial use under section 307(a)(1)(G)(i).
``(e) Water Service Capital Charges.--In any transaction
entered into by the Nation and another person under
subsection (c) with respect to Central Arizona Project water
of the Nation, the person shall not be obligated to pay to
the United States or the Central Arizona Water Conservation
District any water service capital charge.
``(f) Water Rights Unaffected by Use or Nonuse.--The
failure of the Nation to make use of water provided under
this title, or the use of, or failure to make use of, that
water by any other person that enters into a contract with
the Nation under subsection (c) for the assignment, exchange,
lease, option for lease, or temporary disposal of water,
shall not diminish, reduce, or impair--
``(1) any water right of the Nation, as established under
this title or any other applicable law; or
``(2) any water use right recognized under this title,
including--
``(A) the first right of beneficial use referred to in
section 307(a)(1)(G)(i); or
``(B) the allottee use rights referred to in section
308(a).
``(g) Amendment to Agreement of December 11, 1980.--The
Secretary shall amend the agreement of December 11, 1980, to
provide that--
``(1) the contract shall be--
``(A) for permanent service (within the meaning of section
5 of the Boulder Canyon Project Act of 1928 (43 U.S.C.
617d)); and
``(B) without limit as to term;
``(2) the Nation may, with the approval of the Secretary--
``(A) in accordance with subsection (c), assign, exchange,
lease, enter into an option to lease, or otherwise
temporarily dispose of water to which the Nation is entitled
under sections 304(a) and 306(a); and
``(B) renegotiate any lease at any time during the term of
the lease if the term of the renegotiated lease does not
exceed 100 years;
``(3)(A) the Nation shall be entitled to all consideration
due to the Nation under any leases and any options to lease
or exchanges or options to exchange the Nation's Central
Arizona Project water entered into by the Nation; and
``(B) the United States shall have no trust obligation or
other obligation to monitor, administer, or account for any
consideration received by the Nation under those leases or
options to lease and exchanges or options to exchange;
``(4)(A) all of the Nation's Central Arizona Project water
shall be delivered through the Central Arizona Project
aqueduct; and
``(B) if the delivery capacity of the Central Arizona
Project aqueduct is significantly reduced or is anticipated
to be significantly reduced for an extended period of time,
the Nation shall have the same Central Arizona Project
delivery rights as other Central Arizona Project contractors
and Central Arizona Project subcontractors, if the Central
Arizona Project contractors or Central Arizona Project
subcontractors are allowed to take delivery of water other
than through the Central Arizona Project aqueduct;
``(5) the Nation may use the Nation's Central Arizona
Project water on or off of the Nation's Reservation for the
purposes of the Nation consistent with this title;
``(6) as authorized by subparagraph (A) of section
403(f)(2) of the Colorado River Basin Project Act (43 U.S.C.
1543(f)(2)) (as amended by section 107(a)) and to the extent
that funds are available in the Lower Colorado River Basin
Development Fund established by section 403 of that Act (43
U.S.C. 1543), the United States shall pay to the Central
Arizona Project operating agency the fixed operation,
maintenance, and replacement charges associated with the
delivery of the Nation's Central Arizona Project water,
except for the Nation's Central Arizona Project water leased
by others;
``(7) the allocated costs associated with the construction
of the delivery and distribution system--
``(A) shall be nonreimbursable; and
``(B) shall be excluded from any repayment obligation of
the Nation;
``(8) no water service capital charges shall be due or
payable for the Nation's Central Arizona Project water,
regardless of whether the Central Arizona Project water is
delivered for use by the Nation or is delivered pursuant to
any leases or options to lease or exchanges or options to
exchange the Nation's Central Arizona Project water entered
into by the Nation;
``(9) the agreement of December 11, 1980, conforms with
section 104(d) and section 306(a) of the Arizona Water
Settlements Act; and
``(10) the amendments required by this subsection shall not
apply to the 8,000 acre feet of Central Arizona Project water
contracted by the Nation in the agreement of December 11,
1980, for the Sif Oidak District.
``(h) Ratification of Agreements.--
``(1) In general.--Notwithstanding any other provision of
law, each agreement described in paragraph (2), to the extent
that the agreement is not in conflict with this Act--
``(A) is authorized, ratified, and confirmed; and
``(B) shall be executed by the Secretary.
``(2) Agreements.--The agreements described in this
paragraph are--
``(A) the Tohono O'odham settlement agreement, to the
extent that--
``(i) the Tohono O'odham settlement agreement is consistent
with this title; and
``(ii) parties to the Tohono O'odham settlement agreement
other than the Secretary have executed that agreement;
``(B) the Tucson agreement (attached to the Tohono O'odham
settlement agreement as exhibit 12.1); and
``(C)(i) the Asarco agreement (attached to the Tohono
O'odham settlement agreement as exhibit 13.1 to the Tohono
O'odham settlement agreement);
``(ii) lease No. H54-0916-0972, dated April 26, 1972, and
approved by the United States on November 14, 1972; and
``(iii) any new well site lease as provided for in the
Asarco agreement; and
``(D) the FICO agreement (attached to the Tohono O'odham
settlement agreement as Exhibit 14.1).
``(3) Relation to other law.--
``(A) Environmental compliance.--In implementing an
agreement described in paragraph (2), 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 Acts and regulations.
``(B) Execution of agreement.--Execution of an agreement
described in paragraph (2) by the Secretary under this
section shall not constitute a major Federal action under the
National Environmental Policy Act (42 U.S.C. 4321 et seq.).
The Secretary is directed to carry out all necessary
environmental compliance required by Federal law in
implementing an agreement described in paragraph (2).
``(C) Lead agency.--The Bureau of Reclamation shall be the
lead agency with respect to environmental compliance under
the agreements described in paragraph (2).
``(i) Disbursements From Tucson Interim Water Lease.--The
Secretary shall disburse to the Nation, without condition,
all proceeds from the Tucson interim water lease.
``(j) Use of Gross Proceeds.--
``(1) Definition of gross proceeds.--In this subsection,
the term `gross proceeds' means all proceeds, without
reduction, received by the Nation from--
``(A) the Tucson interim water lease;
``(B) the Asarco agreement; and
[[Page H9815]]
``(C) any agreement similar to the Asarco agreement to
store Central Arizona Project water of the Nation, instead of
pumping groundwater, for the purpose of protecting water of
the Nation; provided, however, that gross proceeds shall not
include proceeds from the transfer of Central Arizona Project
water in excess of 20,000 acre feet annually pursuant to any
agreement under this subparagraph or under the Asarco
agreement referenced in subparagraph (B).
``(2) Entitlement.--The Nation shall be entitled to receive
all gross proceeds.
``(k) Statutory Construction.--Nothing in this title
establishes whether reserved water may be put to use, or sold
for use, off any reservation to which reserved water rights
attach.
``SEC. 310. COOPERATIVE FUND.
``(a) Reauthorization.--
``(1) In general.--Congress reauthorizes, for use in
carrying out this title, the cooperative fund established in
the Treasury of the United States by section 313 of the 1982
Act.
``(2) Amounts in cooperative fund.--The cooperative fund
shall consist of--
``(A)(i) $5,250,000, as appropriated to the cooperative
fund under section 313(b)(3)(A) of the 1982 Act; and
``(ii) such amount, not to exceed $32,000,000, as the
Secretary determines, after providing notice to Congress, is
necessary to carry out this title;
``(B) any additional Federal funds deposited to the
cooperative fund under Federal law;
``(C) $5,250,000, as deposited in the cooperative fund
under section 313(b)(1)(B) of the 1982 Act, of which--
``(i) $2,750,000 was contributed by the State;
``(ii) $1,500,000 was contributed by the city of Tucson;
and
``(iii) $1,000,000 was contributed by--
``(I) the Anamax Mining Company;
``(II) the Cyprus-Pima Mining Company;
``(III) the American Smelting and Refining Company;
``(IV) the Duval Corporation; and
``(V) the Farmers Investment Company;
``(D) all interest accrued on all amounts in the
cooperative fund beginning on October 12, 1982, less any
interest expended under subsection (b)(2); and
``(E) all revenues received from--
``(i) the sale or lease of effluent received by the
Secretary under the contract between the United States and
the city of Tucson to provide for delivery of reclaimed water
to the Secretary, dated October 11, 1983; and
``(ii) the sale or lease of storage credits derived from
the storage of that effluent.
``(b) Expenditures From Fund.--
``(1) In general.--Subject to paragraph (2), upon request
by the Secretary, the Secretary of the Treasury shall
transfer from the cooperative fund to the Secretary such
amounts as the Secretary determines are necessary to carry
out obligations of the Secretary under this title, including
to pay--
``(A) the variable costs relating to the delivery of water
under sections 304 through 306;
``(B) fixed operation maintenance and replacement costs
relating to the delivery of water under sections 304 through
306, to the extent that funds are not available from the
Lower Colorado River Basin Development Fund to pay those
costs;
``(C) the costs of acquisition and delivery of water from
alternative sources under section 305; and
``(D) any compensation provided by the Secretary under
section 305(d).
``(2) Expenditure of interest.--Except as provided in
paragraph (3), the Secretary may expend only interest income
accruing to the cooperative fund, and that interest income
may be expended by the Secretary, without further
appropriation.
``(3) Expenditure of revenues.--Revenues described in
subsection (a)(2)(E) shall be available for expenditure under
paragraph (1).
``(c) Investment of Amounts.--
``(1) In general.--The Secretary of the Treasury shall
invest such portion of the cooperative fund as is not, in the
judgment of the Secretary of the Treasury, required to meet
current withdrawals determined by the Secretary. Investments
may be made only in interest-bearing obligations of the
United States.
``(2) Credits to cooperative fund.--The interest on, and
the proceeds from the sale or redemption of, any obligations
held in the cooperative fund shall be credited to and form a
part of the cooperative fund.
``(d) Transfers of Amounts.--
``(1) In general.--The amounts required to be transferred
to the cooperative fund under this section shall be
transferred at least monthly from the general fund of the
Treasury to the cooperative fund on the basis of estimates
made by the Secretary of the Treasury.
``(2) Adjustments.--Proper adjustment shall be made in
amounts subsequently transferred to the extent prior
estimates were in excess of or less than the amounts required
to be transferred.
``(e) Damages.--Damages arising under this title or any
contract for the delivery of water recognized by this title
shall not exceed, in any given year, the amounts available
for expenditure in that year from the cooperative fund.
``SEC. 311. CONTRACTING AUTHORITY; WATER QUALITY; STUDIES;
ARID LAND ASSISTANCE.
``(a) Functions of Secretary.--Except as provided in
subsection (f), the functions of the Secretary (or the
Commissioner of Reclamation, acting on behalf of the
Secretary) under this title shall be subject to the Indian
Self-Determination and Education Assistance Act (25 U.S.C.
450 et seq.) to the same extent as if those functions were
carried out by the Assistant Secretary for Indian Affairs.
``(b) San Xavier District as Contractor.--
``(1) In general.--Subject to the consent of the Nation and
other requirements under section 307(a)(1)(E), the San Xavier
District shall be considered to be an eligible contractor for
purposes of this title.
``(2) Technical assistance.--The Secretary shall provide to
the San Xavier District technical assistance in carrying out
the contracting requirements under the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450 et
seq.).
``(c) Groundwater Monitoring Programs.--
``(1) San xavier indian reservation program.--
``(A) In general.--Not later than 180 days after the
enforceability date, the Secretary shall develop and initiate
a comprehensive groundwater monitoring program (including the
drilling of wells and other appropriate actions) to test,
assess, and provide for the long-term monitoring of the
quality of groundwater withdrawn from exempt wells and other
wells within the San Xavier Reservation.
``(B) Limitation on expenditures.--In carrying out this
paragraph, the Secretary shall expend not more than $215,000.
``(2) Eastern schuk toak district program.--
``(A) In general.--Not later than 180 days after the
enforceability date, the Secretary shall develop and initiate
a comprehensive groundwater monitoring program (including the
drilling of wells and other appropriate actions) to test,
assess, and provide for the long-term monitoring of the
quality of groundwater withdrawn from exempt wells and other
wells within the eastern Schuk Toak District.
``(B) Limitation on expenditures.--In carrying out this
paragraph, the Secretary shall expend not more than $175,000.
``(3) Duties of secretary.--
``(A) Consultation.--In carrying out paragraphs (1) and
(2), the Secretary shall consult with representatives of--
``(i) the Nation;
``(ii) the San Xavier District and Schuk Toak District,
respectively; and
``(iii) appropriate State and local entities.
``(B) Limitation on obligations of secretary.--With respect
to the groundwater monitoring programs described in
paragraphs (1) and (2), the Secretary shall have no
continuing obligation relating to those programs beyond the
obligations described in those paragraphs.
``(d) Water Resources Study.--To assist the Nation in
developing sources of water, the Secretary shall conduct a
study to determine the availability and suitability of water
resources that are located--
``(1) within the Nation's Reservation; but
``(2) outside the Tucson management area.
``(e) Arid Land Renewable Resources.--If a Federal entity
is established to provide financial assistance to carry out
arid land renewable resources projects and to encourage and
ensure investment in the development of domestic sources of
arid land renewable resources, the entity shall--
``(1) give first priority to the needs of the Nation in
providing that assistance; and
``(2) make available to the Nation, San Xavier District,
Schuk Toak District, and San Xavier Cooperative Association
price guarantees, loans, loan guarantees, purchase
agreements, and joint venture projects at a level that the
entity determines will--
``(A) facilitate the cultivation of such minimum number of
acres as is determined by the entity to be necessary to
ensure economically successful cultivation of arid land
crops; and
``(B) contribute significantly to the economy of the
Nation.
``(f) Asarco Land Exchange Study.--
``(1) In general.--Not later than 2 years after the
enforceability date, the Secretary, in consultation with the
Nation, the San Xavier District, the San Xavier Allottees'
Association, and Asarco, shall conduct and submit to Congress
a study on the feasibility of a land exchange or land
exchanges with Asarco to provide land for future use by--
``(A) beneficial landowners of the Mission Complex Mining
Leases of September 18, 1959; and
``(B) beneficial landowners of the Mission Complex Business
Leases of May 12, 1959.
``(2) Components.--The study under paragraph (1) shall
include--
``(A) an analysis of the manner in which land exchanges
could be accomplished to maintain a contiguous land base for
the San Xavier Reservation; and
``(B) a description of the legal status exchanged land
should have to maintain the political integrity of the San
Xavier Reservation.
``(3) Limitation on expenditures.--In carrying out this
subsection, the Secretary shall expend not more than
$250,000.
``SEC. 312. WAIVER AND RELEASE OF CLAIMS.
``(a) Waiver of Claims by the Nation.--Except as provided
in subsection (d), the Tohono O'odham settlement agreement
shall provide that the Nation waives and releases--
``(1) any and all past, present, and future claims for
water rights (including claims
[[Page H9816]]
based on aboriginal occupancy) arising from time immemorial
and, thereafter, forever, and claims for injuries to water
rights arising from time immemorial through the
enforceability date, for land within the Tucson management
area, against--
``(A) the State (or any agency or political subdivision of
the State);
``(B) any municipal corporation; and
``(C) any other person or entity;
``(2) any and all claims for water rights arising from time
immemorial and, thereafter, forever, claims for injuries to
water rights arising from time immemorial through the
enforceability date, and claims for failure to protect,
acquire, or develop water rights for land within the San
Xavier Reservation and the eastern Schuk Toak District from
time immemorial through the enforceability date, against the
United States (including any agency, officer, and employee of
the United States);
``(3) any and all claims for injury to water rights arising
after the enforceability date for land within the San Xavier
Reservation and the eastern Schuk Toak District resulting
from the off-Reservation diversion or use of water in a
manner not in violation of the Tohono O'odham settlement
agreement or State law against--
``(A) the United States;
``(B) the State (or any agency or political subdivision of
the State);
``(C) any municipal corporation; and
``(D) any other person or entity; and
``(4) any and all past, present, and future claims arising
out of or relating to the negotiation or execution of the
Tohono O'odham settlement agreement or the negotiation or
enactment of this title, against--
``(A) the United States;
``(B) the State (or any agency or political subdivision of
the State);
``(C) any municipal corporation; and
``(D) any other person or entity.
``(b) Waiver of Claims by the Allottee Classes.--The Tohono
O'odham settlement agreement shall provide that each allottee
class waives and releases--
``(1) any and all past, present, and future claims for
water rights (including claims based on aboriginal occupancy)
arising from time immemorial and, thereafter, forever, claims
for injuries to water rights arising from time immemorial
through the enforceability date for land within the San
Xavier Reservation, against--
``(A) the State (or any agency or political subdivision of
the State);
``(B) any municipal corporation; and
``(C) any other person or entity (other than the Nation);
``(2) any and all claims for water rights arising from time
immemorial and, thereafter, forever, claims for injuries to
water rights arising from time immemorial through the
enforceability date, and claims for failure to protect,
acquire, or develop water rights for land within the San
Xavier Reservation from time immemorial through the
enforceability date, against the United States (including any
agency, officer, and employee of the United States);
``(3) any and all claims for injury to water rights arising
after the enforceability date for land within the San Xavier
Reservation resulting from the off-Reservation diversion or
use of water in a manner not in violation of the Tohono
O'odham settlement agreement or State law against--
``(A) the United States;
``(B) the State (or any agency or political subdivision of
the State);
``(C) any municipal corporation; and
``(D) any other person or entity;
``(4) any and all past, present, and future claims arising
out of or relating to the negotiation or execution of the
Tohono O'odham settlement agreement or the negotiation or
enactment of this title, against--
``(A) the United States;
``(B) the State (or any agency or political subdivision of
the State);
``(C) any municipal corporation; and
``(D) any other person or entity; and
``(5) any and all past, present, and future claims for
water rights arising from time immemorial and, thereafter,
forever, and claims for injuries to water rights arising from
time immemorial through the enforceability date, against the
Nation (except that under section 307(a)(1)(G) and
subsections (a) and (b) of section 308, the allottees and fee
owners of allotted land shall retain rights to share in the
water resources granted or confirmed under this title and the
Tohono O'odham settlement agreement with respect to uses
within the San Xavier Reservation).
``(c) Waiver of Claims by the United States.--Except as
provided in subsection (d), the Tohono O'odham settlement
agreement shall provide that the United States as Trustee
waives and releases--
``(1) any and all past, present, and future claims for
water rights (including claims based on aboriginal occupancy)
arising from time immemorial and, thereafter, forever, and
claims for injuries to water rights arising from time
immemorial through the enforceability date, for land within
the Tucson management area against--
``(A) the Nation;
``(B) the State (or any agency or political subdivision of
the State);
``(C) any municipal corporation; and
``(D) any other person or entity;
``(2) any and all claims for injury to water rights arising
after the enforceability date for land within the San Xavier
Reservation and the eastern Schuk Toak District resulting
from the off-Reservation diversion or use of water in a
manner not in violation of the Tohono O'odham settlement
agreement or State law against--
``(A) the Nation;
``(B) the State (or any agency or political subdivision of
the State);
``(C) any municipal corporation; and
``(D) any other person or entity;
``(3) on and after the enforceability date, any and all
claims on behalf of the allottees for injuries to water
rights against the Nation (except that under section
307(a)(1)(G) and subsections (a) and (b) of section 308, the
allottees shall retain rights to share in the water resources
granted or confirmed under this title and the Tohono O'odham
settlement agreement with respect to uses within the San
Xavier Reservation); and
``(4) claims against Asarco on behalf of the allottee class
for the fourth cause of action in Alvarez v. City of Tucson
(Civ. No. 93-039 TUC FRZ (D. Ariz., filed April 21, 1993)),
in accordance with the terms and conditions of the Asarco
agreement.
``(d) Claims Relating to Groundwater Protection Program.--
The Nation and the United States as Trustee--
``(1) shall have the right to assert any claims granted by
a State law implementing the groundwater protection program
described in paragraph 8.8 of the Tohono O'odham settlement
agreement; and
``(2) if, after the enforceability date, the State law is
amended so as to have a material adverse effect on the
Nation, shall have a right to relief in the State court
having jurisdiction over Gila River adjudication proceedings
and decrees, against an owner of any nonexempt well drilled
after the effective date of the amendment (if the well
actually and substantially interferes with groundwater
pumping occurring on the San Xavier Reservation), from the
incremental effect of the groundwater pumping that exceeds
that which would have been allowable had the State law not
been amended.
``(e) Supplemental Waivers of Claims.--Any party to the
Tohono O'odham settlement agreement may waive and release,
prohibit the assertion of, or agree not to assert, any claims
(including claims for subsidence damage or injury to water
quality) in addition to claims for water rights and injuries
to water rights on such terms and conditions as may be agreed
to by the parties.
``(f) Rights of Allottees; Prohibition of Claims.--
``(1) In general.--As of the enforceability date--
``(A) the water rights and other benefits granted or
confirmed by this title and the Tohono O'odham settlement
agreement shall be in full satisfaction of--
``(i) all claims for water rights and claims for injuries
to water rights of the Nation; and
``(ii) all claims for water rights and injuries to water
rights of the allottees;
``(B) any entitlement to water within the Tucson management
area of the Nation, or of any allottee, shall be satisfied
out of the water resources granted or confirmed under this
title and the Tohono O'odham settlement agreement; and
``(C) any rights of the allottees to groundwater, surface
water, or effluent shall be limited to the water rights
granted or confirmed under this title and the Tohono O'odham
settlement agreement.
``(2) Limitation of certain claims by allottees.--No
allottee within the San Xavier Reservation may--
``(A) assert any past, present, or future claim for water
rights arising from time immemorial and, thereafter, forever,
or any claim for injury to water rights (including future
injury to water rights) arising from time immemorial and
thereafter, forever, against--
``(i) the United States;
``(ii) the State (or any agency or political subdivision of
the State);
``(iii) any municipal corporation; or
``(iv) any other person or entity; or
``(B) continue to assert a claim described in subparagraph
(A), if the claim was first asserted before the
enforceability date.
``(3) Claims by fee owners of allotted land.--
``(A) In general.--No fee owner of allotted land within the
San Xavier Reservation may assert any claim to the extent
that--
``(i) the claim has been waived and released in the Tohono
O'odham settlement agreement; and
``(ii) the fee owner of allotted land asserting the claim
is a member of the applicable allottee class.
``(B) Offset.--Any benefits awarded to a fee owner of
allotted land as a result of a successful claim shall be
offset by benefits received by that fee owner of allotted
land under this title.
``(4) Limitation of claims against the nation.--
``(A) In general.--Except as provided in subparagraph (B),
no allottee may assert against the Nation any claims for
water rights arising from time immemorial and, thereafter,
forever, claims for injury to water rights arising from time
immemorial and thereafter forever.
``(B) Exception.--Under section 307(a)(1)(G) and
subsections (a) and (b) of section 308, the allottees shall
retain rights to share in the water resources granted or
confirmed under this title and the Tohono O'odham settlement
agreement.
``(g) Consent.--
``(1) Grant of consent.--Congress grants to the Nation and
the San Xavier Cooperative Association under section 305(d)
consent
[[Page H9817]]
to maintain civil actions against the United States in the
courts of the United States under section 1346, 1491, or 1505
of title 28, United States Code, respectively, to recover
damages, if any, for the breach of any obligation of the
Secretary under those sections.
``(2) Remedy.--
``(A) In general.--Subject to subparagraph (B), the
exclusive remedy for a civil action maintained under this
subsection shall be monetary damages.
``(B) Offset.--An award for damages for a claim under this
subsection shall be offset against the amount of funds--
``(i) made available by any Act of Congress; and
``(ii) paid to the claimant by the Secretary in partial or
complete satisfaction of the claim.
``(3) No claims established.--Except as provided in
paragraph (1), nothing in the subsection establishes any
claim against the United States.
``(h) Jurisdiction; Waiver of Immunity; Parties.--
``(1) Jurisdiction.--
``(A) In general.--Except as provided in subsection (i),
the State court having jurisdiction over Gila River
adjudication proceedings and decrees, shall have jurisdiction
over--
``(i) civil actions relating to the interpretation and
enforcement of--
``(I) this title;
``(II) the Tohono O'odham settlement agreement; and
``(III) agreements referred to in section 309(h)(2); and
``(ii) civil actions brought by or against the allottees or
fee owners of allotted land for the interpretation of, or
legal or equitable remedies with respect to, claims of the
allottees or fee owners of allotted land that are not claims
for water rights, injuries to water rights or other claims
that are barred or waived and released under this title or
the Tohono O'odham settlement agreement.
``(B) Limitation.--Except as provided in subparagraph (A),
no State court or court of the Nation shall have jurisdiction
over any civil action described in subparagraph (A).
``(2) Waiver.--
``(A) In general.--The United States and the Nation waive
sovereign immunity solely for claims for--
``(i) declaratory judgment or injunctive relief in any
civil action arising under this title; and
``(ii) such claims and remedies as may be prescribed in any
agreement authorized under this title.
``(B) Limitation on standing.--If a governmental entity not
described in subparagraph (A) asserts immunity in any civil
action that arises under this title (unless the entity waives
immunity for declaratory judgment or injunctive relief) or
any agreement authorized under this title (unless the entity
waives immunity for the claims and remedies prescribed in the
agreement)--
``(i) the governmental entity shall not have standing to
initiate or assert any claim, or seek any remedy against the
United States or the Nation, in the civil action; and
``(ii) the waivers of sovereign immunity under subparagraph
(A) shall have no effect in the civil action.
``(C) Monetary relief.--A waiver of immunity under this
paragraph shall not extend to any claim for damages, costs,
attorneys' fees, or other monetary relief.
``(3) Nation as a party.--
``(A) In general.--Not later than 60 days before the date
on which a civil action under paragraph (1)(A)(ii) is filed
by an allottee or fee owner of allotted land, the allottee or
fee owner, as the case may be, shall provide to the Nation a
notice of intent to file the civil action, accompanied by a
request for consultation.
``(B) Joinder.--If the Nation is not a party to a civil
action as originally commenced under paragraph (1)(A)(ii),
the Nation shall be joined as a party.
``(i) Regulation and Jurisdiction Over Dispute
Resolution.--
``(1) Regulation.--The Nation shall have jurisdiction to
manage, control, permit, administer, and otherwise regulate
the water resources granted or confirmed under this title and
the Tohono O'odham settlement agreement--
``(A) with respect to the use of those resources by--
``(i) the Nation;
``(ii) individual members of the Nation;
``(iii) districts of the Nation; and
``(iv) allottees; and
``(B) with respect to any entitlement to those resources
for which a fee owner of allotted land has received a final
determination under applicable law.
``(2) Jurisdiction.--Subject to a requirement of exhaustion
of any administrative or other remedies prescribed under the
laws of the Nation, jurisdiction over any disputes relating
to the matters described in paragraph (1) shall be vested in
the courts of the Nation.
``(3) Applicable law.--The regulatory and remedial
procedures referred to in paragraphs (1) and (2) shall be
subject to all applicable law.
``(j) Federal Jurisdiction.--The Federal Courts shall have
concurrent jurisdiction over actions described in subsection
312(h) to the extent otherwise provided in Federal law.
``SEC. 313. AFTER-ACQUIRED TRUST LAND.
``(a) In General.--Except as provided in subsection (b)--
``(1) the Nation may seek to have taken into trust by the
United States, for the benefit of the Nation, legal title to
additional land within the State and outside the exterior
boundaries of the Nation's Reservation only in accordance
with an Act of Congress specifically authorizing the transfer
for the benefit of the Nation;
``(2) lands taken into trust under paragraph (1) shall
include only such water rights and water use privileges as
are consistent with State water law and State water
management policy; and
``(3) after-acquired trust land shall not include Federal
reserved rights to surface water or groundwater.
``(b) Exception.--Subsection (a) shall not apply to land
acquired by the Nation under the Gila Bend Indian Reservation
Lands Replacement Act (100 Stat. 1798).
``SEC. 314. NONREIMBURSABLE COSTS.
``(a) Central Arizona Water Conservation District.--For the
purpose of determining the allocation and repayment of costs
of any stage of the Central Arizona Project, the costs
associated with the delivery of Central Arizona Project water
acquired under sections 304(a) and 306(a), whether that water
is delivered for use by the Nation or in accordance with any
assignment, exchange, lease, option to lease, or other
agreement for the temporary disposition of water entered into
by the Nation--
``(1) shall be nonreimbursable; and
``(2) shall be excluded from the repayment obligation of
the Central Arizona Water Conservation District.
``(b) Claims by United States.--The United States shall--
``(1) make no claim against the Nation or any allottee for
reimbursement or repayment of any cost associated with--
``(A) the construction of facilities under the Colorado
River Basin Project Act (43 U.S.C. 1501 et seq.);
``(B) the delivery of Central Arizona Project water for any
use authorized under this title; or
``(C) the implementation of this title;
``(2) make no claim against the Nation for reimbursement or
repayment of the costs associated with the construction of
facilities described in paragraph (1)(A) for the benefit of
and use on land that--
``(A) is known as the `San Lucy Farm'; and
``(B) was acquired by the Nation under the Gila Bend Indian
Reservation Lands Replacement Act (100 Stat. 1798); and
``(3) impose no assessment with respect to the costs
referred to in paragraphs (1) and (2) against--
``(A) trust or allotted land within the Nation's
Reservation; or
``(B) the land described in paragraph (2).
``SEC. 315. TRUST FUND.
``(a) Reauthorization.--Congress reauthorizes the trust
fund established by section 309 of the 1982 Act, containing
an initial deposit of $15,000,000 made under that section,
for use in carrying out this title.
``(b) Expenditure and Investment.--Subject to the
limitations of subsection (d), the principal and all accrued
interest and dividends in the trust fund established under
section 309 of the 1982 Act may be--
``(1) expended by the Nation for any governmental purpose;
and
``(2) invested by the Nation in accordance with such
policies as the Nation may adopt.
``(c) Responsibility of Secretary.--The Secretary shall
not--
``(1) be responsible for the review, approval, or audit of
the use and expenditure of any funds from the trust fund
reauthorized by subsection (a); or
``(2) be subject to liability for any claim or cause of
action arising from the use or expenditure by the Nation of
those funds.
``(d) Conditions of Trust.--
``(1) Reserve for the cost of subjugation.--The Nation
shall reserve in the trust fund reauthorized by subsection
(a)--
``(A) the principal amount of at least $3,000,000; and
``(B) interest on that amount that accrues during the
period beginning on the enforceability date and ending on the
earlier of--
``(i) the date on which full payment of such costs has been
made; or
``(ii) the date that is 10 years after the enforceability
date.
``(2) Payment.--The costs described in paragraph (1) shall
be paid in the amount, on the terms, and for the purposes
prescribed in section 307(a)(1)(F).
``(3) Limitation on restrictions.--On the occurrence of an
event described in clause (i) or (ii) of paragraph (1)(B)--
``(A) the restrictions imposed on funds from the trust fund
described in paragraph (1) shall terminate; and
``(B) any of those funds remaining that were reserved under
paragraph (1) may be used by the Nation under subsection
(b)(1).
``SEC. 316. MISCELLANEOUS PROVISIONS.
``(a) In General.--Nothing in this title--
``(1) establishes the applicability or inapplicability to
groundwater of any doctrine of Federal reserved rights;
``(2) limits the ability of the Nation to enter into any
agreement with the Arizona Water Banking Authority (or a
successor agency) in accordance with State law;
``(3) prohibits the Nation, any individual member of the
Nation, an allottee, or a fee owner of allotted land in the
San Xavier Reservation from lawfully acquiring water rights
for use in the Tucson management area in addition to the
water rights granted or confirmed under this title and the
Tohono O'odham settlement agreement;
[[Page H9818]]
``(4) abrogates any rights or remedies existing under
section 1346 or 1491 of title 28, United States Code;
``(5) affects the obligations of the parties under the
Agreement of December 11, 1980, with respect to the 8,000
acre feet of Central Arizona Project water contracted by the
Nation for the Sif Oidak District;
``(6)(A) applies to any exempt well;
``(B) prohibits or limits the drilling of any exempt well
within--
``(i) the San Xavier Reservation; or
``(ii) the eastern Schuk Toak District; or
``(C) subjects water from any exempt well to any pumping
limitation under this title; or
``(7) diminishes or abrogates rights to use water under--
``(A) contracts of the Nation in existence before the
enforceability date; or
``(B) the well site agreement referred to in the Asarco
agreement and any well site agreement entered into under the
Asarco agreement.
``(b) No Effect on Future Allocations.--Water received
under a lease or exchange of Central Arizona Project water
under this title does not affect any future allocation or
reallocation of Central Arizona Project water by the
Secretary.
``(c) Limitation on Liability of United States.--
``(1) In general.--The United States shall have no trust or
other obligation--
``(A) to monitor, administer, or account for, in any
manner, any of the funds paid to the Nation or the San Xavier
District under this Act; or
``(B) to review or approve the expenditure of those funds.
``(2) Indemnification.--The Nation shall indemnify the
United States, and hold the United States harmless, with
respect to any and all claims (including claims for takings
or breach of trust) arising out of the receipt or expenditure
of funds described in paragraph (1)(A).
``SEC. 317. AUTHORIZED COSTS.
``(a) In General.--There are authorized to be
appropriated--
``(1) to construct features of irrigation systems described
in paragraphs (1) through (4) of section 304(c) that are not
authorized to be constructed under any other provision of
law, an amount equal to the sum of--
``(A) $3,500,000; and
``(B) such additional amount as the Secretary determines to
be necessary to adjust the amount under subparagraph (A) to
account for ordinary fluctuations in the costs of
construction of irrigation features for the period beginning
on October 12, 1982, and ending on the date on which the
construction of the features described in this subparagraph
is initiated, as indicated by engineering cost indices
applicable to the type of construction involved;
``(2) $18,300,000 in lieu of construction to implement
section 304(c)(3)(B), including an adjustment representing
interest that would have been earned if this amount had been
deposited in the cooperative fund during the period beginning
on January 1, 2008, and ending on the date the amount is
actually paid to the San Xavier District;
``(3) $891,200 to develop and initiate a water management
plan for the San Xavier Reservation under section 308(d);
``(4) $237,200 to develop and initiate a water management
plan for the eastern Schuk Toak District under section
308(d);
``(5) $4,000,000 to complete the water resources study
under section 311(d);
``(6) $215,000 to develop and initiate a groundwater
monitoring program for the San Xavier Reservation under
section 311(c)(1);
``(7) $175,000 to develop and implement a groundwater
monitoring program for the eastern Schuk Toak District under
section 311(c)(2);
``(8) $250,000 to complete the Asarco land exchange study
under section 311(f); and
``(9) such additional sums as are necessary to carry out
the provisions of this title other than the provisions
referred to in paragraphs (1) through (8).
``(b) Treatment of Appropriated Amounts.--Amounts made
available under subsection (a) shall be considered to be
authorized costs for purposes of section 403(f)(2)(D)(iii) of
the Colorado River Basin Project Act (43 U.S.C.
1543(f)(2)(D)(iii)) (as amended by section 107(a) of the
Arizona Water Settlements Act).''.
SEC. 302. SOUTHERN ARIZONA WATER RIGHTS SETTLEMENT EFFECTIVE
DATE.
(a) Definitions.--The definitions under section 301 of the
Southern Arizona Water Rights Settlement Amendments Act of
2004 (as contained in the amendment made by section 301)
shall apply to this title.
(b) Effective Date.--This title and the amendments made by
this title take effect as of the enforceability date, which
is the date the Secretary publishes in the Federal Register a
statement of findings that--
(1)(A) to the extent that the Tohono O'odham settlement
agreement conflicts with this title or an amendment made by
this title, the Tohono O'odham settlement agreement has been
revised through an amendment to eliminate those conflicts;
and
(B) the Tohono O'odham settlement agreement, as so revised,
has been executed by the parties and the Secretary;
(2) the Secretary and other parties to the agreements
described in section 309(h)(2) of the Southern Arizona Water
Rights Settlement Amendments Act of 2004 (as contained in the
amendment made by section 301) have executed those
agreements;
(3) the Secretary has approved the interim allottee water
rights code described in section 308(b)(3)(A) of the Southern
Arizona Water Rights Settlement Amendments Act of 2004 (as
contained in the amendment made by section 301);
(4) final dismissal with prejudice has been entered in each
of the Alvarez case and the Tucson case on the sole condition
that the Secretary publishes the findings specified in this
section;
(5) the judgment and decree attached to the Tohono O'odham
settlement agreement as exhibit 17.1 has been approved by the
State court having jurisdiction over the Gila River
adjudication proceedings, and that judgment and decree have
become final and nonappealable;
(6) implementation costs have been identified and retained
in the Lower Colorado River Basin Development Fund,
specifically--
(A) $18,300,000 to implement section 304(c)(3);
(B) $891,200 to implement a water management plan for the
San Xavier Reservation under section 308(d) of the Southern
Arizona Water Rights Settlement Amendments Act of 2004 (as
contained in the amendment made by section 301);
(C) $237,200 to implement a water management plan for the
eastern Schuk Toak District under section 308(d) of the
Southern Arizona Water Rights Settlement Amendments Act of
2004 (as contained in the amendment made by section 301);
(D) $4,000,000 to complete the water resources study under
section 311(d) of the Southern Arizona Water Rights
Settlement Amendments Act of 2004 (as contained in the
amendment made by section 301);
(E) $215,000 to develop and implement a groundwater
monitoring program for the San Xavier Reservation under
section 311(c)(1) of the Southern Arizona Water Rights
Settlement Amendments Act of 2004 (as contained in the
amendment made by section 301);
(F) $175,000 to develop and implement a groundwater
monitoring program for the eastern Schuk Toak District under
section 311(c)(2) of the Southern Arizona Water Rights
Settlement Amendments Act of 2004 (as contained in the
amendment made by section 301); and
(G) $250,000 to complete the Asarco land exchange study
under section 311(f) of the Southern Arizona Water Rights
Settlement Amendments Act of 2004 (as contained in the
amendment made by section 301);
(7) the State has enacted legislation that--
(A) qualifies the Nation to earn long-term storage credits
under the Asarco agreement;
(B) implements the San Xavier groundwater protection
program in accordance with paragraph 8.8 of the Tohono
O'odham settlement agreement;
(C) enables the State to carry out section 306(b); and
(D) confirms the jurisdiction of the State court having
jurisdiction over Gila River adjudication proceedings and
decrees to carry out the provisions of sections 312(d) and
312(h) of the Southern Arizona Water Rights Settlement
Amendments Act of 2004 (as contained in the amendment made by
section 301);
(8) the Secretary and the State have agreed to an
acceptable firming schedule referred to in section
105(b)(2)(C); and
(9) a final judgment has been entered in Central Arizona
Water Conservation District v. United States (No. CIV 95-625-
TUC-WDB(EHC), No. CIV 95-1720-PHX-EHC) (Consolidated Action)
in accordance with the repayment stipulation as provided in
section 207.
(c) Failure To Publish Statement of Findings.--If the
Secretary does not publish a statement of findings under
subsection (a) by December 31, 2007--
(1) the 1982 Act shall remain in full force and effect;
(2) this title shall not take effect; and
(3) any funds made available by the State under this title
that are not expended, together with any interest on those
funds, shall immediately revert to the State.
TITLE IV--SAN CARLOS APACHE TRIBE WATER RIGHTS SETTLEMENT
SEC. 401. EFFECT OF TITLES I, II, AND III.
None of the provisions of title I, II, or III or the
agreements, attachments, exhibits, or stipulations referenced
in those titles shall be construed to--
(1) amend, alter, or limit the authority of--
(A) the United States to assert any claim against any
party, including any claim for water rights, injury to water
rights, or injury to water quality in its capacity as trustee
for the San Carlos Apache Tribe, its members and allottees,
or in any other capacity on behalf of the San Carlos Apache
Tribe, its members, and allottees, in any judicial,
administrative, or legislative proceeding; or
(B) the San Carlos Apache Tribe to assert any claim against
any party, including any claim for water rights, injury to
water rights, or injury to water quality in its own behalf or
on behalf of its members and allottees in any judicial,
administrative, or legislative proceeding consistent with
title XXXVII of Public Law 102-575 (106 Stat. 4600, 4740); or
(2) amend or alter the CAP Contract for the San Carlos
Apache Tribe dated December 11, 1980, as amended April 29,
1999.
SEC. 402. ANNUAL REPORT.
(a) In General.--Not later than 1 year after the date of
enactment of this Act and
[[Page H9819]]
annually thereafter, the Secretary shall submit to the
Committee on Energy and Natural Resources of the Senate and
the Committee on Resources of the House of Representatives a
report that describes the status of efforts to reach a
negotiated agreement covering the Gila River water rights
claims of the San Carlos Apache Tribe.
(b) Termination.--This section shall be of no effect after
the later of--
(1) the date that is 3 years after the date of enactment of
this Act; or
(2) the date on which the Secretary submits a third annual
report under this section.
SEC. 403. AUTHORIZATION OF APPROPRIATIONS.
(a) San Carlos Apache Tribe.--There is authorized to be
appropriated to assist the San Carlos Apache Tribe in
completing comprehensive water resources negotiations leading
to a comprehensive Gila River water settlement for the Tribe,
including soil and water technical analyses, legal,
paralegal, and other related efforts, $150,000 for fiscal
year 2006.
(b) White Mountain Apache Tribe.--There is authorized to be
appropriated to assist the White Mountain Apache Tribe in
completing comprehensive water resources negotiations leading
to a comprehensive water settlement for the Tribe, including
soil and water technical analyses, legal, paralegal, and
other related efforts, $150,000 for fiscal year 2006.
(c) Other Arizona Indian Tribes.--There is authorized to be
appropriated to the Secretary to assist Arizona Indian tribes
(other than those specified in subsections (a) and (b)) in
completing comprehensive water resources negotiations leading
to a comprehensive water settlement for the Arizona Indian
tribes, including soil and water technical analyses, legal,
paralegal, and other related efforts, $300,000 for fiscal
year 2006.
(d) No Limitation on Other Funding.--Amounts made available
under subsections (a), (b), and (c) shall not limit, and
shall be in addition to, other amounts available for Arizona
tribal water rights negotiations leading to comprehensive
water settlements.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Arizona (Mr. Hayworth) and the gentlewoman from the Virgin Islands
(Mrs. Christensen) each will control 20 minutes.
The Chair recognizes the gentleman from Arizona (Mr. Hayworth).
General Leave
Mr. HAYWORTH. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days within which to revise and extend their
remarks and include extraneous material on S. 437, the Senate bill
under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Arizona?
There was no objection.
Mr. HAYWORTH. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, S. 437, sponsored by Senator John Kyle and supported by
a bipartisan group of our House colleagues in Arizona and New Mexico,
represents years of negotiations among representatives of the Federal
Government, the States of Arizona and New Mexico, the Gila River Indian
community, as well as various communities in the region.
This bill offers a comprehensive approach to resolving certain Indian
water claims and settles long-standing litigation. It also provides
long-term water use certainty for non-Indian water users and allows New
Mexico to develop long-promised water supplies.
I commend my colleague, Senator Kyl, the sponsor of this bill, and so
many others for helping foster the historic agreements in this
legislation.
Mr. Speaker, this legislation offers most everyone something, but not
everything to anyone. It represents hard-fought compromise that
deserves passage. I would urge my colleagues to support this bipartisan
bill.
Mr. Speaker, I reserve the balance of my time.
Mrs. CHRISTENSEN. Mr. Speaker, I yield myself such time as I may
consume.
(Mrs. CHRISTENSEN asked and was given permission to revise and extend
her remarks.)
Mrs. CHRISTENSEN. Mr. Speaker, it is with pleasure that I join my
colleagues in support of S. 437. The bill includes several important
revisions, including new language in title 4 that will assist the San
Carlos Apache Tribe, the White Mountain Apache Tribe, and other tribes
in Arizona, as they work to complete their own comprehensive water
settlements. I am grateful for the cooperation shown by everyone who
participated in this effort.
As I express my support for S. 437, I also wish to remind my
colleagues that this legislation is the most significant and far-
reaching water settlement legislation ever considered by this House.
{time} 1545
Certainly, the benefits to all parties including the United States
will be significant. But this legislation will also be very expensive,
and many of the costs will be off-budget, avoiding the annual
appropriations process.
The legislation, in effect, will settle claims of the Gila River
Indian Community by dramatically restructuring the payments for the
Central Arizona Project. However, I am satisfied that, on balance, the
benefits of this legislation will significantly outweigh the costs on
the taxpayers.
We support the passage of S. 437.
Mr. Speaker, I yield such time as he may consume to the gentleman
from Arizona (Mr. Grijalva).
Mr. GRIJALVA. Mr. Speaker, I want to thank the ranking member, the
gentleman from West Virginia (Mr. Rahall), and the chairman of the
Committee on Resources, my esteemed colleague, the gentlewoman from the
Virgin Islands (Mrs. Christensen) for her support on the Committee on
Resources for assuring that we would have an opportunity to consider
this legislation today.
This important piece of legislation, S. 437, H.R. 885, will begin the
process of settling major issues related to water in Arizona today.
While I agree this legislation is not perfect, it does provide the
opportunity to resolve Indian water rights claims in Arizona and secure
water for their future use.
But the benefits of this legislation are not restricted to Indian
tribes. The bill will also provide certainty for municipal governments
such as the City of Tucson and my district, which will now have
assurances as to water supply.
Under this legislation nearly half of the benefits provided by the
Central Arizona Project will be available to support economic
development within Indian reservations. Two tribes within my district,
the Gila River Indian Community and the Tohono o'Odham, are among the
beneficiaries of this enhanced opportunity.
In Indian Country today, one of the most difficult hurdles to tribes
utilizing their water rights is the high cost of water project
development. While the Federal government over the years has helped
facilitate and pay for non-Indian water projects, Indian tribes have
been left without such assistance. This legislation, however, provides
a reliable funding source which will help pay the operation,
maintenance and replacement costs associated with each acre foot of
water.
Funding will also be available to underwrite the cost of two tribal
water settlements provided by this legislation, approved by this
legislation. In addition, a new source of funding will be available to
underwrite the costs of new Indian water rights settlements. By making
the CAP water and unappropriated funding available, this legislation
makes it much more likely that all the remaining Indian water right
disputes in Arizona can and will be resolved in the near future.
Finally, the sponsors and the Resources staff members have worked
hard to include language in this bill to protect other tribes' future
settlements, in particular, White Mountain Apache and San Carlos Apache
Tribes. Title IV of this bill provides funding for these tribes and
others to work on their own settlements and also makes it clear that
the San Carlos Apache Tribe will not be prejudiced in settling their
water claims. In addition, the Secretary of Interior is required to
report to us annually on efforts to settle the Apache claims that were
not settled by the partial San Carlos water settlement in 1992.
I hope all of my colleagues will support this legislation and the
innovative effort it represents to resolve some of the most difficult
and pressing water management issues in Arizona.
Mr. HAYWORTH. Mr. Speaker, I yield two minutes to the gentleman from
New Mexico (Mr. Pearce).
Mr. PEARCE. Mr. Speaker, I rise in support of S. 437. Mr. Speaker, I
want to thank the gentleman from California (Mr. Pombo) and the ranking
member, the gentleman from West Virginia (Mr. Rahall), along with the
subcommittee chairman, the gentleman from California (Mr. Calvert), and
the ranking member, the gentlewoman from California (Mrs. Napolitano),
for
[[Page H9820]]
their hard work in getting an agreement that allows us to vote on this
important water settlement bill today.
I would also like to pay tribute to the gentleman from Arizona (Mr.
Hayworth) and the Arizona delegation in anticipation of receiving the
same from them in this bill.
In the 1968 Colorado River Basin Project Act, New Mexico was
apportioned 18,000 acre feet of Gila River water. The Gila River's
headwaters are in New Mexico and, therefore, New Mexicans always felt
like they had claim to some of this water. However, we had not been
able to use any of it, and it has simply been paper water.
New Mexicans have long sought to develop this water and because of
their willingness to negotiate in good faith and compromise with the
State of Arizona and downstream water users, we have now reached an
agreement. That agreement is a bipartisan solution which I feel
represents the best interests of both States.
This historic water bill will not only provide a settlement to long-
standing Indian water rights in Arizona, but it will also ensure
Southwestern New Mexico gets the water it was apportioned in the 1968
Act. New Mexico was not able to develop this water because the 1968 Act
required New Mexico to keep whole senior water uses in Arizona. After
many long months of negotiation, all the necessary agreements between
Arizona and New Mexico are in place to allow this bill to move forward.
It is Congress's role to codify agreed-upon settlements, especially
where almost every part has been negotiated in good faith for a number
of years on very difficult and contentious issues. Without the
agreements negotiated between the two States and which are reflected in
the amendments to the 2004 Arizona Water Settlements Act, the New
Mexico unit could not be developed. However, with this agreement, after
nearly 40 years New Mexico water users will be able to develop water
that they were promised in 1968.
Mr. Speaker, I urge all of my colleagues to support S. 437.
Mrs. CHRISTENSEN. Mr. Speaker, I yield such time as he may consume to
the gentleman from Arizona (Mr. Pastor).
(Mr. PASTOR asked and was given permission to revise and extend his
remarks.)
Mr. PASTOR. Mr. Speaker, I rise in support of this critical
legislation, which is co-sponsored by the entire Arizona delegation.
Since before the founding of Arizona as a State, we have, like most
other Western States, struggled to meet the water demands of our
inhabitants. It has not been easy. In 1968, in hopes of resolving these
problems, the Central Arizona Project was authorized by the Federal
Government and charged with distributing water from the Colorado River
to communities and tribes in the central and southern parts of Arizona.
However, for decades there have been disputes on the appropriate
distribution of these waters, resulting in litigation.
I believe this legislation will resolve most of these disputes. The
entire Arizona delegation, both my Democratic and Republican colleagues
as well as our two senators and our governor, all believe this is the
best possible solution to this water issue. The people, municipalities,
Native American tribes and nations and agricultural and environmental
organizations within the State also agree.
This legislation represents a significant step forward in Arizona's
continuing effort to resolve Native American water rights claims for
the benefit of all of the people of Arizona. This bill will resolve the
claims of the Gila River Indian community and the remaining claims of
the Tohono o'Odham Nation, while laying the groundwork for resolving
the other outstanding water right claims of Arizona's Native American
communities and nations.
The bill approves and ratifies the Gila River Indian Community Water
Rights Settlement Act, amends the Southern Arizona Water Rights
Settlement Act of 1982, and affirms the right of the San Carlos Apache
Tribe to make future claims for water rights. The Senate has approved
this bill unanimously and has passed the House Committee on Resources,
which I would like to thank the ranking member, the gentleman from West
Virginia (Mr. Rahall), for bringing this bill to the floor.
It is critical to our State that we approve it here today and move it
forward to the President for enactment. I urge my colleagues to follow
the lead of all eight Arizona representatives and support its passage.
Mr. BACA. Mr. Speaker, today, I rise in support of S. 437, the
Arizona Water Settlements Act.
I am a cosponsor of H.R. 885, the House version of this landmark bill
that resolves critical water issues facing Arizona and Arizona tribes
today.
Congress authorized the Central Arizona project 35 years ago.
Today, S. 347 offers resolution for water use in Arizona, providing
additional water supplies to resolve tribal claims and accommodate
rapid population growth.
Among other improvements, this bill designs a solid system and
infrastructure to provide Arizona tribes with affordable water.
After many years, tribes in this region, such as the Gila River
Indian Community, will be able to retain and maintain their water
rights without continuous years of court battles.
Everyone has the right to clean, abundant and affordable water--and
our first Americans are no exception.
The Arizona Water Settlements Act will be considered the largest
Indian water settlement in U.S. history, and this was obviously no
small task.
The bill is strongly supported by appropriate state agencies, the
entire Arizona delegation, the Gila River Community, the Tohono O'odham
tribe, and a number of diverse Arizona interests.
I commend the Arizona delegation and the Democratic and Republican
staff for working through their differences for a polished bill.
I look forward to seeing this bill become law, and the positive
changes it will make for Arizona's water supply in the future.
Mr. HAYWORTH. Mr. Speaker, I would simply comment that I welcome the
statements of my two colleagues from Arizona on the other side of the
aisle. I thank my friend from the Virgin Islands for managing on the
minority side.
Mr. Speaker, we have no further requests for time, and I yield back
the balance of my time.
Mrs. CHRISTENSEN. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Mr. Terry). The question is on the motion
offered by the gentleman from Arizona (Mr. Hayworth) that the House
suspend the rules and pass the Senate bill, S. 437.
The question was taken; and (two-thirds having voted in favor
thereof) the rules were suspended and the Senate bill was passed.
A motion to reconsider was laid on the table.
____________________