[Congressional Record Volume 150, Number 134 (Friday, November 19, 2004)]
[Senate]
[Pages S11566-S11572]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  SNAKE RIVER WATER RIGHTS ACT OF 2004

  The Senate proceeded to consider the bill (S. 2605) to direct the 
Secretary of the Interior and the heads of other Federal agencies to 
carry out an agreement resolving major issues relating to the 
adjudication of water rights in the Snake River Basin, Idaho, and for 
other purposes, which was reported from the Committee on Indian 
Affairs, as follows:
  [Strike the part shown in black brackets and insert the part shown in 
italic.]

                                S. 2605

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     [SECTION 1. SHORT TITLE.

       [This Act may be cited as the ``Snake River Water Rights 
     Act of 2004''.

     [SEC. 2. PURPOSES.

       [The purposes of this Act are--
       [(1) to resolve some of the largest outstanding issues with 
     respect to the Snake River Basin Adjudication in Idaho in 
     such a manner as to provide important benefits to the United 
     States, the State of Idaho, the Nez Perce Tribe, the 
     allottees, and citizens of the State;
       [(2) to achieve a fair, equitable, and final settlement of 
     all claims of the Nez Perce Tribe, its members, and allottees 
     and the United States on behalf of the Tribe, its members, 
     and allottees to the water of the Snake River Basin within 
     Idaho;
       [(3) to authorize, ratify, and confirm the Agreement among 
     the parties submitted to the Snake River Basin Adjudication 
     Court and provide all parties with the benefits of the 
     Agreement;
       [(4) to direct--
       [(A) the Secretary, acting through the Bureau of 
     Reclamation, the Bureau of Land Management, the Bureau of 
     Indian Affairs, and other agencies; and
       [(B) the heads of other Federal agencies authorized to 
     execute and perform actions necessary to carry out the 
     Agreement;

     to perform all of their obligations under the Agreement and 
     this Act; and
       [(5) to authorize the actions and appropriations necessary 
     for the United States to meet the obligations of the United 
     States under the Agreement and this Act.

     [SEC. 3. DEFINITIONS.

       [In this Act:
       [(1) Agreement.--The term ``Agreement'' means the document 
     titled ``Mediator's Term Sheet'' dated April 20, 2004, and 
     submitted on that date to the SRBA Court in SRBA Consolidated 
     Subcase 03-10022 and SRBA Consolidated Subcase 67-13701, with 
     all appendices to the document.
       [(2) Allottee.--The term ``allottee'' means a person that 
     holds a beneficial real property interest in an Indian 
     allotment that is--
       [(A) located within the Nez Perce Reservation; and
       [(B) held in trust by the United States.
       [(3) Consumptive use reserved water right.--The term 
     ``consumptive use reserved water right'' means the Federal 
     reserved water right of 50,000 acre-feet per year, as 
     described in the Agreement, to be decreed to the Tribe and 
     the allottees, with a priority date of 1855.
       [(4) Parties.--The term ``parties'' means the United 
     States, the State, the Tribe, and any other entity or person 
     that submitted, or joined in the submission, of the Agreement 
     to the SRBA Court on April 20, 2004.

[[Page S11567]]

       [(5) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.
       [(6) Snake river basin.--The term ``Snake River Basin'' 
     means the geographic area in the State described in paragraph 
     3 of the Commencement Order issued by the SRBA Court on 
     November 19, 1987.
       [(7) Springs or fountains water right.--The term ``springs 
     or fountains water right'' means the Tribe's treaty right of 
     access to and use of water from springs or fountains on 
     Federal public land within the area ceded by the Tribe in the 
     Treaty of June 9, 1863 (14 Stat. 647), as recognized under 
     the Agreement.
       [(8) SRBA.--The term ``SRBA'' means the Snake River Basin 
     Adjudication litigation before the SRBA Court styled as In re 
     Snake River Basin Adjudication, Case No. 39576.
       [(9) SRBA court.--The term ``SRBA Court'' means the 
     District Court of the Fifth Judicial District of the State of 
     Idaho, In and For the County of Twin Falls in re Snake River 
     Basin Adjudication.
       [(10) State.--The term ``State'' means the State of Idaho.
       [(11) Tribe.--The term ``Tribe'' means the Nez Perce Tribe.

     [SEC. 4. APPROVAL, RATIFICATION, AND CONFIRMATION OF 
                   AGREEMENT.

       [(a) In General.--Except to the extent that the Agreement 
     conflicts with the express provisions of this Act, the 
     Agreement is approved, ratified, and confirmed.
       [(b) Execution and Performance.--The Secretary and the 
     other heads of Federal agencies with obligations under the 
     Agreement shall execute and perform all actions, consistent 
     with this Act, that are necessary to carry out the Agreement.

     [SEC. 5. BUREAU OF RECLAMATION WATER USE.

       [(a) In General.--As part of the overall implementation of 
     the Agreement, the Secretary shall take such actions 
     consistent with the Agreement, this Act, and water law of the 
     State as are necessary to carry out the Snake River Flow 
     Component of the Agreement.
       [(b) Mitigation for Change of Use of Water.--
       [(1) Authorization of appropriations.--There is authorized 
     to be appropriated to the Secretary $2,000,000 for a 1-time 
     payment to local governments to mitigate for the change of 
     use of water acquired by the Bureau of Reclamation under 
     section III.C.6 of the Agreement.
       [(2) Distribution of funds.--Funds made available under 
     paragraph (1) shall be distributed by the Secretary to local 
     governments in accordance with a plan provided to the 
     Secretary by the State.
       [(3) Payments.--Payments by the Secretary shall be made on 
     a pro rata basis as water rights are acquired by the Bureau 
     of Reclamation.

     [SEC. 6. BUREAU OF LAND MANAGEMENT LAND TRANSFER.

       [(a) Transfer.--
       [(1) In general.--The Secretary shall transfer land 
     selected by the Tribe under paragraph (2) to the Bureau of 
     Indian Affairs to be held in trust for the Tribe.
       [(2) Land selection.--The land transferred shall be 
     selected by the Tribe from a list of parcels of land managed 
     by the Bureau of Land Management that are available for 
     transfer, as depicted on the map entitled ``North Idaho BLM 
     Land Eligible for Selection by the Nez Perce Tribe'' dated 
     May 2004, on file with the Director of the Bureau of Land 
     Management, not including any parcel designated on the map as 
     being on the Clearwater River or Lolo Creek.
       [(3) Maximum value.--The land selected by the Tribe for 
     transfer shall be limited to a maximum value in total of not 
     more than $7,000,000, as determined by an independent 
     appraisal of fair market value prepared in accordance with 
     the Uniform Standards of Professional Appraisal Practice and 
     the Uniform Appraisal Standards for Federal Land 
     Acquisitions.
       [(b) Existing Rights and Uses.--
       [(1) In general.--On any land selected by the Tribe under 
     subsection (a)(2), any use in existence on the date of 
     transfer under subsection (a) under a lease or permit with 
     the Bureau of Land Management, including grazing, shall 
     remain in effect until the date of expiration of the lease or 
     permit, unless the holder of the lease or permit requests an 
     earlier termination of the lease or permit, in which case the 
     Secretary shall grant the request.
       [(2) Availability of amounts.--Amounts that accrue to the 
     United States under a lease or permit described in paragraph 
     (1) from sales, bonuses, royalties, and rentals relating to 
     any land transferred to the Tribe under this section shall be 
     made available to the Tribe by the Secretary in the same 
     manner as amounts received from other land held by the 
     Secretary in trust for the Tribe.
       [(c) Date of Transfer.--No land shall be transferred to the 
     Tribe under this section until the waivers and releases under 
     section 10 take effect.

     [SEC. 7. WATER RIGHTS.

       [(a) Holding in Trust.--
       [(1) In general.--The consumptive use reserved water right 
     shall be held in trust by the United States for the benefit 
     of the Tribe and allottees.
       [(2) Springs or fountains water right.--The springs or 
     fountains water right of the Tribe shall be held in trust by 
     the United States for the benefit of the Tribe.
       [(b) Water Code.--
       [(1) In general.--The consumptive use reserved water right 
     shall be subject to section 7 of the Act of February 8, 1887 
     (25 U.S.C. 381; 24 Stat. 390, chapter 119).
       [(2) Enactment of water code.--Not later than 3 years after 
     the date of enactment of this Act, the Tribe shall enact a 
     water code, subject to any applicable provision of law, 
     that--
       [(A) manages, regulates, and controls the consumptive use 
     reserved water right; and
       [(B) includes, subject to approval of the Secretary--
       [(i) a process by which an allottee, or any successor in 
     interest to an allottee, may request and be provided with an 
     allocation of water for irrigation use on allotted land of 
     the allottee; and
       [(ii) a due process system for the consideration and 
     determination of any request by an allottee, or any successor 
     in interest to an allottee, 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.
       [(3) Rights of allottees.--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.
       [(4) Interim administration.--The Secretary shall 
     administer the consumptive use reserved water right until 
     such date as the water code described in paragraph (2) has 
     been enacted by the Tribe and approved by the Secretary.
       [(c) Satisfaction of Claims.--
       [(1) In general.--The water rights and other benefits 
     granted or confirmed by the Agreement and this Act shall be 
     in full satisfaction of all claims for water rights and 
     injuries to water rights of the allottees.
       [(2) Satisfaction of entitlements.--Any entitlement to 
     water of any allottee under Federal law shall be satisfied 
     out of the consumptive use reserved water right.
       [(d) Abandonment, Forfeiture, or Nonuse.--The consumptive 
     use reserved water right and the springs or fountains water 
     right shall not be subject to loss by abandonment, 
     forfeiture, or nonuse.
       [(e) Lease of Water.--
       [(1) In general.--The Tribe, without further approval of 
     the Secretary, may lease water to which the Tribe is entitled 
     under the consumptive use reserved water right through any 
     State water bank in the same manner and subject to the same 
     rules and requirements that govern any other lessor of water 
     to the water bank.
       [(2) Funds.--Any funds accruing to the Tribe from any lease 
     under paragraph (1) shall be the property of the Tribe, and 
     the United States shall have no trust obligation or other 
     obligation to monitor, administer, or account for any 
     consideration received by the Tribe under any such lease.

     [SEC. 8. TRIBAL FUNDS.

       [(a) Definition of Fund.--In this section, the term 
     ``Fund'' means--
       [(1) the Nez Perce Tribe Water and Fisheries Fund 
     established under subsection (b)(1); and
       [(2) the Nez Perce Tribe Domestic Water Supply Fund 
     established under subsection (b)(2).
       [(b) Establishment.--There are established in the Treasury 
     of the United States--
       [(1) a fund to be known as the ``Nez Perce Tribe Water and 
     Fisheries Fund'', to be used to pay or reimburse costs 
     incurred by the Tribe in acquiring land and water rights, 
     restoring or improving fish habitat, or for fish production, 
     agricultural development, cultural preservation, water 
     resource development, or fisheries-related projects; and
       [(2) a fund to be known as the ``Nez Perce Domestic Water 
     Supply Fund'', to be used to pay the costs for design and 
     construction of water supply and sewer systems for tribal 
     communities, including a water quality testing laboratory.
       [(c) Management of the Funds.--The Secretary shall manage 
     the Funds, make investments from the Funds, and make amounts 
     available from the Funds for distribution to the Tribe 
     consistent with the American Indian Trust Fund Management 
     Reform Act of 1994 (25 U.S.C. 4001 et seq.), this Act, and 
     the Agreement.
       [(d) Investment of the Funds.--The Secretary shall invest 
     amounts in the Funds in accordance with--
       [(1) the Act of April 1, 1880 (25 U.S.C. 161; 21 Stat. 70, 
     chapter 41);
       [(2) the first section of the Act of June 24, 1938 (25 
     U.S.C. 162a; 52 Stat. 1037, chapter 648); and
       [(3) subsection (c).
       [(e) Availability of Amounts From the Funds.--Amounts made 
     available under subsection (h) shall be available for 
     expenditure or withdrawal only after the waivers and releases 
     under section 10 take effect.
       [(f) Expenditures and Withdrawal.--
       [(1) Tribal management plan.--
       [(A) In general.--The Tribe may withdraw all or part of 
     amounts in the Funds on approval by the Secretary of a tribal 
     management plan as described in the American Indian Trust 
     Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.).
       [(B) Requirements.--In addition to the requirements under 
     the American Indian Trust Fund Management Reform Act of 1994 
     (25 U.S.C. 4001 et seq.), the tribal management plan shall 
     require that the Tribe spend any amounts withdrawn from the 
     Funds in accordance with the purposes described in subsection 
     (b).

[[Page S11568]]

       [(C) Enforcement.--The Secretary may take judicial or 
     administrative action to enforce the provisions of any tribal 
     management plan to ensure that any amounts withdrawn from the 
     Funds under the plan are used in accordance with this Act and 
     the Agreement.
       [(D) Liability.--If the Tribe exercises the right to 
     withdraw amounts from the Funds, neither the Secretary nor 
     the Secretary of the Treasury shall retain any liability for 
     the expenditure or investment of the amounts.
       [(2) Expenditure plan.--
       [(A) In general.--The Tribe shall submit to the Secretary 
     for approval an expenditure plan for any portion of the 
     amounts made available under subsection (h) that the Tribe 
     does not withdraw under this subsection.
       [(B) Description.--The expenditure plan shall describe the 
     manner in which, and the purposes for which, amounts of the 
     Tribe remaining in the Funds 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 and the Agreement.
       [(D) Annual report.--For each Fund, the Tribe shall submit 
     to the Secretary an annual report that describes all 
     expenditures from the Fund during the year covered by the 
     report.
       [(g) No Per Capita Payments.--No part of the principal of 
     the Funds, or of the income accruing in the Funds, shall be 
     distributed to any member of the Tribe on a per capita basis.
       [(h) Authorization of Appropriations.--There are authorized 
     to be appropriated--
       [(1) $60,100,000 to the Nez Perce Tribe Water and Fisheries 
     Fund; and
       [(2) $23,000,000 to the Nez Perce Tribe Domestic Water 
     Supply Fund.

     [SEC. 9. SALMON AND CLEARWATER RIVER BASINS HABITAT FUND.

       [(a) Establishment of Fund.--
       [(1) In general.--There is established in the Treasury of 
     the United States a fund to be known as the ``Salmon and 
     Clearwater River Basins Habitat Fund'' (referred to in this 
     section as the ``Fund''), to be administered by the 
     Secretary.
       [(2) Accounts.--There is established within the Fund--
       [(A) an account to be known as the ``Nez Perce Tribe Salmon 
     and Clearwater River Basins Habitat Account'', which shall be 
     administered by the Secretary for use by the Tribe subject to 
     the same provisions for management, investment, and 
     expenditure as the funds established by section 8; and
       [(B) an account to be known as the ``Idaho Salmon and 
     Clearwater River Basins Habitat Account'', which shall be 
     administered by the Secretary and provided to the State as 
     provided in the Agreement and this Act.
       [(b) Use of the Fund.--
       [(1) In general.--The Fund shall be used to supplement 
     amounts made available under other law for habitat protection 
     and restoration in the Salmon and Clearwater River basins, 
     including projects and programs intended to protect and 
     restore listed fish and their habitat in the Salmon and 
     Clearwater basins, as specified in the Agreement and this 
     Act.
       [(2) No allocation requirement.--The use of the Fund shall 
     not be subject to the allocation procedures under section 
     6(d)(1) of the Endangered Species Act of 1973 (16 U.S.C. 
     1535(d)(1)).
       [(3) Release of funds.--The Secretary shall release funds 
     from the Clearwater River Basins Habitat Account in 
     accordance with section 6(d)(2) of the Endangered Species Act 
     (16 U.S.C. 1535(d)(2)).
       [(c) Availability of Amounts in the Fund.--Amounts made 
     available under subsection (d) shall be available for 
     expenditure or withdrawal only after the waivers and releases 
     under section 10(a) take effect.
       [(d) Authorization of Appropriations.--There are authorized 
     to be appropriated--
       [(1) $12,666,670 to the Nez Perce Tribe Salmon and 
     Clearwater River Basins Habitat Account; and
       [(2) $25,333,330 to the Idaho Salmon and Clearwater River 
     Basins Habitat Account.

     [SEC. 10. TRIBAL WAIVER AND RELEASE OF CLAIMS.

       [(a) Waiver and Release of Claims in General.--
       [(1) Claims to water rights; claims for injuries to water 
     rights or treaty rights.--Except as otherwise provided in 
     this Act, the United States on behalf of the Tribe and the 
     allottees, and the Tribe, waive and release--
       [(A) all claims to water rights within the Snake River 
     Basin (as defined in section 3(b));
       [(B) all claims for injuries to such water rights; and
       [(C) all claims for injuries to the treaty rights of the 
     Tribe to the extent that such injuries result or resulted 
     from flow modifications or reductions in the quantity of 
     water available that accrued at any time up to and including 
     the effective date of the settlement, and any continuation 
     thereafter of any such claims, against the State, any agency 
     or political subdivision of the State, or any person, entity, 
     corporation, municipal corporation, or quasi-municipal 
     corporation.
       [(2) Claims based on reduced water quality or reductions in 
     water quantity.--The United States on behalf of the Tribe and 
     the allottees, and the Tribe, waive and release any claim, 
     under any treaty theory, based on reduced water quality 
     resulting directly from flow modifications or reductions in 
     the quantity of water available in the Snake River Basin 
     against any party to the Agreement or this Act.
       [(3) No future assertion of claims.--No water right claim 
     that the Tribe or the allottees have asserted or may in the 
     future assert outside the Snake River Basin shall require 
     water to be supplied from the Snake River Basin to satisfy 
     the claim.
       [(4) Effect of waivers and releases.--The waivers and 
     releases by the United States and the Tribe under this 
     subsection--
       [(A) shall be permanent and enforceable; and
       [(B) shall survive any subsequent termination of any 
     component of the settlement described in the Agreement or 
     this Act.
       [(5) Effective date.--The waivers and releases under this 
     subsection take effect on the date on which the Secretary 
     causes to be published in the Federal Register a statement of 
     findings that the actions set forth in section IV.L of the 
     Agreement--
       [(A) have been completed, including issuance of a judgment 
     and decree by the SRBA court from which no further appeal may 
     be taken; and
       [(B) have been determined by the United States on behalf of 
     the Tribe and the allottees, the Tribe, and the State of 
     Idaho to be consistent in all material aspects with the 
     Agreement.
       [(b) Waiver and Release of Claims Against the United 
     States.--
       [(1) In general.--In consideration of performance by the 
     United States of all actions required by the Agreement and 
     this Act, including the appropriation of all funds authorized 
     under sections 8(h) and 9(d)(1), the Tribe shall execute a 
     waiver and release of the United States from--
       [(A) all claims for water rights within the Snake River 
     Basin, injuries to such water rights, or breach of trust 
     claims for failure to protect, acquire, or develop such water 
     rights that accrued at any time up to and including the 
     effective date determined under paragraph (2);
       [(B) all claims for injuries to the Tribe's treaty fishing 
     rights, to the extent that such injuries result or resulted 
     from reductions in the quantity of water available in the 
     Snake River Basin;
       [(C) all claims of breach of trust for failure to protect 
     Nez Perce springs or fountains treaty rights reserved in 
     article VIII of the Treaty of June 9, 1863 (14 Stat. 651); 
     and
       [(D) all claims of breach of trust arising out of the 
     negotiation of or resulting from the adoption of the 
     Agreement.
       [(2) Effective date.--The waiver and release contained in 
     this subsection take effect on the date on which the funds 
     authorized under sections 8(h) and 9(d)(1) of this Act have 
     been appropriated as authorized by this Act.
       [(c) Retention of Rights.--
       [(1) In general.--The Tribe shall retain all rights not 
     specifically waived or released in the Agreement or this Act.
       [(2) Dworshak project.--Nothing in the Agreement or this 
     Act constitutes a waiver by the Tribe of any claim against 
     the United States relating to non-water-based injuries 
     resulting from the construction and operation of the Dworshak 
     Project.
       [(3) Future acquisition of water rights.--Nothing in the 
     Agreement or this Act precludes the Tribe, or the United 
     States as trustee for the Tribe, from purchasing or otherwise 
     acquiring water rights in the future to the same extent as 
     any other entity the State.

     [SEC. 11. MISCELLANEOUS.

       [(a) General Disclaimer.--The parties expressly reserve all 
     rights not specifically granted, recognized, or relinquished 
     by the settlement described in the Agreement or this Act.
       [(b) Disclaimer Regarding Other Agreements and Precedent.--
       [(1) In general.--Except as expressly provided in this Act, 
     nothing in this Act amends, supersedes, or preempts any State 
     law, Federal law, Tribal law, or interstate compact that 
     pertains to the Snake River or its tributaries.
       [(2) No establishment of standard.--Nothing in this Act--
       [(A) establishes any standard for the quantification of 
     Federal reserved water rights or any other Indian water 
     claims of any other Indian tribes in any other judicial or 
     administrative proceeding; or
       [(B) limits the rights of the parties to litigate any issue 
     not resolved by the Agreement or this Act.
       [(3) No admission against interest.--Nothing in this Act 
     constitutes an admission against interest against any party 
     in any legal proceeding.
       [(c) Treaty Rights.--Nothing in the Agreement or this Act 
     impairs the treaty fishing, hunting, pasturing, or gathering 
     rights of the Tribe except to the extent expressly provided 
     in the Agreement or this Act.
       [(d) Other Claims.--Nothing in the Agreement or this Act 
     quantifies or otherwise affects the water rights, claims, or 
     entitlements to water, or any other treaty right, of any 
     Indian tribe, band, or community other than the Tribe.
       [(e) Recreation on Dworshak Reservoir.--
       [(1) In general.--In implementing the provisions of the 
     Agreement and this Act relating to the use of water stored in 
     Dworshak Reservoir for flow augmentation purposes, the heads 
     of the Federal agencies involved in

[[Page S11569]]

     the operational Memorandum of Agreement referred to in the 
     Agreement shall implement a flow augmentation plan beneficial 
     to fish and consistent with the Agreement.
       [(2) Contents of plan.--The flow augmentation plan may 
     include provisions beneficial to recreational uses of the 
     reservoir through maintenance of the full level of the 
     reservoir for prolonged periods during the summer months.
       [(f) Jurisdiction.--
       [(1) No effect on subject matter jurisdiction.--Nothing in 
     the Agreement or this Act restricts, enlarges, or otherwise 
     determines the subject matter jurisdiction of any Federal, 
     State, or Tribal court.
       [(2) Consent to jurisdiction.--The United States consents 
     to jurisdiction in a proper forum for purposes of enforcing 
     the provisions of the Agreement.
       [(3) Effect of subsection.--Nothing in this subsection 
     confers jurisdiction on any State court to--
       [(A) enforce Federal environmental laws regarding the 
     duties of the United States; or
       [(B) conduct judicial review of Federal agency action.]

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Snake River Water Rights Act 
     of 2004''.

     SEC. 2. PURPOSES.

       The purposes of this Act are--
       (1) to resolve some of the largest outstanding issues with 
     respect to the Snake River Basin Adjudication in Idaho in 
     such a manner as to provide important benefits to the United 
     States, the State of Idaho, the Nez Perce Tribe, the 
     allottees, and citizens of the State;
       (2) to achieve a fair, equitable, and final settlement of 
     all claims of the Nez Perce Tribe, its members, and allottees 
     and the United States on behalf of the Tribe, its members, 
     and allottees to the water of the Snake River Basin within 
     Idaho;
       (3) to authorize, ratify, and confirm the Agreement among 
     the parties submitted to the Snake River Basin Adjudication 
     Court and provide all parties with the benefits of the 
     Agreement;
       (4) to direct--
       (A) the Secretary, acting through the Bureau of 
     Reclamation, the Bureau of Land Management, the Bureau of 
     Indian Affairs, and other agencies; and
       (B) the heads of other Federal agencies authorized to 
     execute and perform actions necessary to carry out the 
     Agreement;

     to perform all of their obligations under the Agreement and 
     this Act; and
       (5) to authorize the actions and appropriations necessary 
     for the United States to meet the obligations of the United 
     States under the Agreement and this Act.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Agreement.--The term ``Agreement'' means the document 
     titled ``Mediator's Term Sheet'' dated April 20, 2004, and 
     submitted on that date to the SRBA Court in SRBA Consolidated 
     Subcase 03-10022 and SRBA Consolidated Subcase 67-13701, with 
     all appendices to the document.
       (2) Allottee.--The term ``allottee'' means a person that 
     holds a beneficial real property interest in an Indian 
     allotment that is--
       (A) located within the Nez Perce Reservation; and
       (B) held in trust by the United States.
       (3) Consumptive use reserved water right.--The term 
     ``consumptive use reserved water right'' means the Federal 
     reserved water right of 50,000 acre-feet per year, as 
     described in the Agreement, to be decreed to the United 
     States in trust for the Tribe and the allottees, with a 
     priority date of 1855.
       (4) Parties.--The term ``parties'' means the United States, 
     the State, the Tribe, and any other entity or person that 
     submitted, or joined in the submission of, the Agreement to 
     the SRBA Court on April 20, 2004.
       (5) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.
       (6) Snake river basin.--The term ``Snake River Basin'' 
     means the geographic area in the State described in paragraph 
     3 of the Commencement Order issued by the SRBA Court on 
     November 19, 1987.
       (7) Springs or fountains water right.--The term ``springs 
     or fountains water right'' means the Tribe's treaty right of 
     access to and use of water from springs or fountains on 
     Federal public land within the area ceded by the Tribe in the 
     Treaty of June 9, 1863 (14 Stat. 647), as recognized under 
     the Agreement.
       (8) SRBA.--The term ``SRBA'' means the Snake River Basin 
     Adjudication litigation before the SRBA Court styled as In re 
     Snake River Basin Adjudication, Case No. 39576.
       (9) SRBA court.--The term ``SRBA Court'' means the District 
     Court of the Fifth Judicial District of the State of Idaho, 
     In and For the County of Twin Falls in re Snake River Basin 
     Adjudication.
       (10) State.--The term ``State'' means the State of Idaho.
       (11) Tribe.--The term ``Tribe'' means the Nez Perce Tribe.

     SEC. 4. APPROVAL, RATIFICATION, AND CONFIRMATION OF 
                   AGREEMENT.

       (a) In General.--Except to the extent that the Agreement 
     conflicts with this Act, the Agreement is approved, ratified, 
     and confirmed.
       (b) Execution and Performance.--The Secretary and the other 
     heads of Federal agencies with obligations under the 
     Agreement shall execute and perform all actions, consistent 
     with this Act, that are necessary to carry out the Agreement.

     SEC. 5. BUREAU OF RECLAMATION WATER USE.

       (a) In General.--As part of the overall implementation of 
     the Agreement, the Secretary shall take such actions 
     consistent with the Agreement, this Act, and water law of the 
     State as are necessary to carry out the Snake River Flow 
     Component of the Agreement.
       (b) Mitigation for Change of Use of Water.--
       (1) Authorization of appropriations.--There is authorized 
     to be appropriated to the Secretary $2,000,000 for a 1-time 
     payment to local governments to mitigate for the change of 
     use of water acquired by the Bureau of Reclamation under 
     section III.C.6 of the Agreement.
       (2) Distribution of funds.--Funds made available under 
     paragraph (1) shall be distributed by the Secretary to local 
     governments in accordance with a plan provided to the 
     Secretary by the State.
       (3) Payments.--Payments by the Secretary shall be made on a 
     pro rata basis as water rights are acquired by the Bureau of 
     Reclamation.

     SEC. 6. BUREAU OF LAND MANAGEMENT LAND TRANSFER.

       (a) Transfer.--
       (1) In general.--The Secretary shall transfer land selected 
     by the Tribe under paragraph (2) to the Bureau of Indian 
     Affairs to be held in trust for the Tribe.
       (2) Land selection.--The land transferred shall be selected 
     by the Tribe from a list of parcels of land managed by the 
     Bureau of Land Management that are available for transfer, as 
     depicted on the map entitled ``North Idaho BLM Land Eligible 
     for Selection by the Nez Perce Tribe'' dated May 2004, on 
     file with the Director of the Bureau of Land Management, not 
     including any parcel designated on the map as being on the 
     Clearwater River or Lolo Creek.
       (3) Maximum value.--The land selected by the Tribe for 
     transfer shall be limited to a maximum value in total of not 
     more than $7,000,000, as determined by an independent 
     appraisal of fair market value prepared in accordance with 
     the Uniform Standards of Professional Appraisal Practice and 
     the Uniform Appraisal Standards for Federal Land 
     Acquisitions.
       (b) Existing Rights and Uses.--
       (1) In general.--On any land selected by the Tribe under 
     subsection (a)(2), any use in existence on the date of 
     transfer under subsection (a) under a lease or permit with 
     the Bureau of Land Management, including grazing, shall 
     remain in effect until the date of expiration of the lease or 
     permit, unless the holder of the lease or permit requests an 
     earlier termination of the lease or permit, in which case the 
     Secretary shall grant the request.
       (2) Availability of amounts.--Amounts that accrue to the 
     United States under a lease or permit described in paragraph 
     (1) from sales, bonuses, royalties, and rentals relating to 
     any land transferred to the Tribe under this section shall be 
     made available to the Tribe by the Secretary in the same 
     manner as amounts received from other land held by the 
     Secretary in trust for the Tribe.
       (c) Date of Transfer.--No land shall be transferred to the 
     Bureau of Indian Affairs to be held in trust for the Tribe 
     under this section until the waivers and releases under 
     section 10(a) take effect.
       (d) Authorization of Appropriations.--
       (1) In general.--There is authorized to be appropriated to 
     the Secretary $200,000 for 1-time payments to local 
     governments to mitigate for the transfer of land by the 
     Bureau of Land Management to the Tribe under section I.F of 
     the Agreement.
       (2) Payments.--Payments under paragraph (1) shall be made 
     on a pro rata basis as parcels of land are acquired by the 
     Tribe.

     SEC. 7. WATER RIGHTS.

       (a) Holding in Trust.--
       (1) In general.--The consumptive use reserved water right 
     shall--
       (A) be held in trust by the United States for the benefit 
     of the Tribe and allottees as set forth in this section; and
       (B) be subject to section 7 of the Act of February 8, 1887 
     (25 U.S.C. 381).
       (2) Springs or fountains water right.--The springs or 
     fountains water right of the Tribe shall be held in trust by 
     the United States for the benefit of the Tribe.
       (3) Allottees.--Allottees shall be entitled to a just and 
     equitable allocation of the consumptive use reserved water 
     right for irrigation purposes.
       (b) Water Code.--
       (1) Enactment of water code.--Not later than 3 years after 
     the date of enactment of this Act, the Tribe shall enact a 
     water code, subject to any applicable provision of law, 
     that--
       (A) manages, regulates, and controls the consumptive use 
     reserved water right so as to allocate water for irrigation, 
     domestic, commercial, municipal, industrial, cultural, or 
     other uses; and
       (B) includes, subject to approval of the Secretary--
       (i) a due process system for the consideration and 
     determination of any request by an allottee, or any successor 
     in interest to an allottee, for an allocation of such water 
     for irrigation purposes on allotted land, including a process 
     for an appeal and adjudication of denied or disputed 
     distribution of water and for resolution of contested 
     administrative decisions; and
       (ii) a process to protect the interests of allottees when 
     entering into any lease under subsection (e).
       (2) Secretarial 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 approval by the 
     Secretary, and no such provision or amendment shall be valid 
     until approved by the Secretary.
       (3) Interim administration.--The Secretary shall administer 
     the consumptive use reserved water right until such date as 
     the water code described in paragraph (2) has been enacted by

[[Page S11570]]

     the Tribe and the Secretary has approved the relevant 
     portions of the water code.
       (c) Exhaustion of Remedies.--Before asserting any claim 
     against the United States under section 7 of the Act of 
     February 8, 1887 (25 U.S.C. 381) or other applicable law, a 
     claimant shall exhaust remedies available under the Tribe's 
     water code and Tribal law.
       (d) Petition to the Secretary.--Following exhaustion of 
     remedies in accordance with subsection (c), a claimant may 
     petition the Secretary for relief.
       (e) Satisfaction of Claims.--
       (1) In general.--The water rights and other benefits 
     granted or confirmed by the Agreement and this Act shall be 
     in full satisfaction of all claims for water rights and 
     injuries to water rights of the allottees.
       (2) Satisfaction of entitlements.--Any entitlement to water 
     of any allottee under Federal law shall be satisfied out of 
     the consumptive use reserved water right.
       (3) Complete substitution.--The water rights, resources, 
     and other benefits provided by this Act are a complete 
     substitution for any rights that may have been held by, or 
     any claims that may have been asserted by, allottees within 
     the exterior boundaries of the Reservation before the date of 
     enactment of this Act.
       (f) Abandonment, Forfeiture, or Nonuse.--The consumptive 
     use reserved water right and the springs or fountains water 
     right shall not be subject to loss by abandonment, 
     forfeiture, or nonuse.
       (g) Lease of Water.--
       (1) In general.--Subject to the water code, the Tribe, 
     without further approval of the Secretary, may lease water to 
     which the Tribe is entitled under the consumptive use 
     reserved water right through any State water bank in the same 
     manner and subject to the same rules and requirements that 
     govern any other lessor of water to the water bank.
       (2) Funds.--Any funds accruing to the Tribe from any lease 
     under paragraph (1) shall be the property of the Tribe, and 
     the United States shall have no trust obligation or other 
     obligation to monitor, administer, or account for any 
     consideration received by the Tribe under any such lease.

     SEC. 8. TRIBAL FUNDS.

       (a) Definition of Fund.--In this section, the term ``Fund'' 
     means--
       (1) the Nez Perce Tribe Water and Fisheries Fund 
     established under subsection (b)(1); and
       (2) the Nez Perce Tribe Domestic Water Supply Fund 
     established under subsection (b)(2).
       (b) Establishment.--There are established in the Treasury 
     of the United States--
       (1) a fund to be known as the ``Nez Perce Tribe Water and 
     Fisheries Fund'', to be used to pay or reimburse costs 
     incurred by the Tribe in acquiring land and water rights, 
     restoring or improving fish habitat, or for fish production, 
     agricultural development, cultural preservation, water 
     resource development, or fisheries-related projects; and
       (2) a fund to be known as the ``Nez Perce Domestic Water 
     Supply Fund'', to be used to pay the costs for design and 
     construction of water supply and sewer systems for tribal 
     communities, including a water quality testing laboratory.
       (c) Management of the Funds.--The Secretary shall manage 
     the Funds, make investments from the Funds, and make amounts 
     available from the Funds for distribution to the Tribe 
     consistent with the American Indian Trust Fund Management 
     Reform Act of 1994 (25 U.S.C. 4001 et seq.), this Act, and 
     the Agreement.
       (d) Investment of the Funds.--The Secretary shall invest 
     amounts in the Funds in accordance with--
       (1) the Act of April 1, 1880 (25 U.S.C. 161; 21 Stat. 70, 
     chapter 41);
       (2) the first section of the Act of June 24, 1938 (25 
     U.S.C. 162a; 52 Stat. 1037, chapter 648); and
       (3) subsection (c).
       (e) Availability of Amounts From the Funds.--Amounts made 
     available under subsection (h) shall be available for 
     expenditure or withdrawal only after the waivers and releases 
     under section 10(a) take effect.
       (f) Expenditures and Withdrawal.--
       (1) Tribal management plan.--
       (A) In general.--The Tribe may withdraw all or part of 
     amounts in the Funds on approval by the Secretary of a tribal 
     management plan as described in the American Indian 
     Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 
     et seq.).
       (B) Requirements.--In addition to the requirements under 
     the American Indian Trust Fund Management Reform Act of 1994 
     (25 U.S.C. 4001 et seq.), the tribal management plan shall 
     require that the Tribe spend any amounts withdrawn from the 
     Funds in accordance with the purposes described in subsection 
     (b).
       (C) Enforcement.--The Secretary may take judicial or 
     administrative action to enforce the provisions of any tribal 
     management plan to ensure that any amounts withdrawn from the 
     Funds under the plan are used in accordance with this Act and 
     the Agreement.
       (D) Liability.--If the Tribe exercises the right to 
     withdraw amounts from the Funds, neither the Secretary nor 
     the Secretary of the Treasury shall retain any liability for 
     the expenditure or investment of the amounts.
       (2) Expenditure plan.--
       (A) In general.--The Tribe shall submit to the Secretary 
     for approval an expenditure plan for any portion of the 
     amounts made available under subsection (h) that the Tribe 
     does not withdraw under this subsection.
       (B) Description.--The expenditure plan shall describe the 
     manner in which, and the purposes for which, amounts of the 
     Tribe remaining in the Funds 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 and the Agreement.
       (D) Annual report.--For each Fund, the Tribe shall submit 
     to the Secretary an annual report that describes all 
     expenditures from the Fund during the year covered by the 
     report.
       (g) No Per Capita Payments.--No part of the principal of 
     the Funds, or of the income accruing in the Funds, shall be 
     distributed to any member of the Tribe on a per capita basis.
       (h) Authorization of Appropriations.--There are authorized 
     to be appropriated--
       (1) to the Nez Perce Tribe Water and Fisheries Fund--
       (A) for fiscal year 2007, $7,830,000;
       (B) for fiscal year 2008, $4,730,000;
       (C) for fiscal year 2009, $7,380,000;
       (D) for fiscal year 2010, $10,080,000;
       (E) for fiscal year 2011, $11,630,000;
       (F) for fiscal year 2012, $9,450,000; and
       (G) for fiscal year 2013, $9,000,000; and
       (2) to the Nez Perce Tribe Domestic Water Supply Fund--
       (A) for fiscal year 2007, $5,100,000;
       (B) for fiscal year 2008, $8,200,000;
       (C) for fiscal year 2009, $5,550,000;
       (D) for fiscal year 2010, $2,850,000; and
       (E) for fiscal year 2011, $1,300,000.

     SEC. 9. SALMON AND CLEARWATER RIVER BASINS HABITAT FUND.

       (a) Establishment of Fund.--
       (1) In general.--There is established in the Treasury of 
     the United States a fund to be known as the ``Salmon and 
     Clearwater River Basins Habitat Fund'' (referred to in this 
     section as the ``Fund''), to be administered by the 
     Secretary.
       (2) Accounts.--There is established within the Fund--
       (A) an account to be known as the ``Nez Perce Tribe Salmon 
     and Clearwater River Basins Habitat Account'', which shall be 
     administered by the Secretary for use by the Tribe subject to 
     the same provisions for management, investment, and 
     expenditure as the funds established by section 8; and
       (B) an account to be known as the ``Idaho Salmon and 
     Clearwater River Basins Habitat Account'', which shall be 
     administered by the Secretary and provided to the State as 
     provided in the Agreement and this Act.
       (b) Use of the Fund.--
       (1) In general.--The Fund shall be used to supplement 
     amounts made available under any other law for habitat 
     protection and restoration in the Salmon and Clearwater River 
     Basins in Idaho, including projects and programs intended to 
     protect and restore listed fish and their habitat in those 
     basins, as specified in the Agreement and this Act.
       (2) Release of funds.--The Secretary shall release funds 
     from the Idaho Salmon and Clearwater River Basins Habitat 
     Account in accordance with section 6(d)(2) of the Endangered 
     Species Act (16 U.S.C. 1535(d)(2)).
       (3) No allocation requirement.--The use of the Fund shall 
     not be subject to the allocation procedures under section 
     6(d)(1) of the Endangered Species Act of 1973 (16 U.S.C. 
     1535(d)(1)).
       (c) Availability of Amounts in the Fund.--Amounts made 
     available under subsection (d) shall be available for 
     expenditure or withdrawal only after the waivers and releases 
     under section 10(a) take effect.
       (d) Authorization of Appropriations.--There are authorized 
     to be appropriated--
       (1) to the Nez Perce Tribe Salmon and Clearwater River 
     Basins Habitat Account, $2,533,334 for each of fiscal years 
     2007 through 2011; and
       (2) to the Idaho Salmon and Clearwater River Basins Habitat 
     Account, $5,066,666 for each of fiscal years 2007 through 
     2011.

     SEC. 10. TRIBAL WAIVER AND RELEASE OF CLAIMS.

       (a) Waiver and Release of Claims in General.--
       (1) Claims to water rights; claims for injuries to water 
     rights or treaty rights.--Except as otherwise provided in 
     this Act, the United States on behalf of the Tribe and the 
     allottees, and the Tribe, waive and release--
       (A) all claims to water rights within the Snake River Basin 
     (as defined in section 3);
       (B) all claims for injuries to such water rights; and
       (C) all claims for injuries to the treaty rights of the 
     Tribe to the extent that such injuries result or resulted 
     from flow modifications or reductions in the quantity of 
     water available that accrued at any time up to and including 
     the effective date of the settlement, and any continuation 
     thereafter of any such claims, against the State, any agency 
     or political subdivision of the State, or any person, entity, 
     corporation, municipal corporation, or quasi-municipal 
     corporation.
       (2) Claims based on reduced water quality or reductions in 
     water quantity.--The United States on behalf of the Tribe and 
     the allottees, and the Tribe, waive and release any claim, 
     under any treaty theory, based on reduced water quality 
     resulting directly from flow modifications or reductions in 
     the quantity of water available in the Snake River Basin 
     against any party to the Agreement.
       (3) No future assertion of claims.--No water right claim 
     that the Tribe or the allottees have asserted or may in the 
     future assert outside the Snake River Basin shall require 
     water to be supplied from the Snake River Basin to satisfy 
     the claim.
       (4) Effect of waivers and releases.--The waivers and 
     releases by the United States and the Tribe under this 
     subsection--
       (A) shall be permanent and enforceable; and
       (B) shall survive any subsequent termination of any 
     component of the settlement described in the Agreement or 
     this Act.
       (5) Effective date.--The waivers and releases under this 
     subsection shall take effect on the date on which the 
     Secretary causes to be

[[Page S11571]]

     published in the Federal Register a statement of findings 
     that the actions set forth in section IV.L of the Agreement--
       (A) have been completed, including issuance of a judgment 
     and decree by the SRBA court from which no further appeal may 
     be taken; and
       (B) have been determined by the United States on behalf of 
     the Tribe and the allottees, the Tribe, and the State of 
     Idaho to be consistent in all material aspects with the 
     Agreement.
       (b) Waiver and Release of Claims Against the United 
     States.--
       (1) In general.--In consideration of performance by the 
     United States of all actions required by the Agreement and 
     this Act, including the appropriation of all funds authorized 
     under sections 8(h) and 9(d)(1), the Tribe shall execute a 
     waiver and release of the United States from--
       (A) all claims for water rights within the Snake River 
     Basin, injuries to such water rights, or breach of trust 
     claims for failure to protect, acquire, or develop such water 
     rights that accrued at any time up to and including the 
     effective date determined under paragraph (2);
       (B) all claims for injuries to the Tribe's treaty fishing 
     rights, to the extent that such injuries result or resulted 
     from reductions in the quantity of water available in the 
     Snake River Basin;
       (C) all claims of breach of trust for failure to protect 
     Nez Perce springs or fountains treaty rights reserved in 
     article VIII of the Treaty of June 9, 1863 (14 Stat. 651); 
     and
       (D) all claims of breach of trust arising out of the 
     negotiation of or resulting from the adoption of the 
     Agreement.
       (2) Effective date.--
       (A) In general.--The waiver and release contained in this 
     subsection shall take effect on the date on which the amounts 
     authorized under sections 8(h) and 9(d)(1) are appropriated.
       (B) Periods of limitation; equitable claims.--
       (i) In general.--All periods of limitation and time-based 
     equitable defenses applicable to the claims set forth in 
     paragraph (1) are tolled for the period between the date of 
     enactment of this Act until the earlier of--

       (I) the date on which the amounts authorized under sections 
     8(h) and 9(d)(1) are appropriated; or
       (II) October 1, 2017.

       (ii) Effect of subparagraph.--This subparagraph neither 
     revives any claim nor tolls any period of limitation or time-
     based equitable defense that may have expired before the date 
     of enactment of this Act.
       (3) Defense.--The making of the amounts of appropriations 
     authorized under sections 8(h) and 9(d)(1) shall constitute a 
     complete defense to any claim pending in any court of the 
     United States on the date on which the appropriations are 
     made.
       (c) Retention of Rights.--
       (1) In general.--The Tribe shall retain all rights not 
     specifically waived or released in the Agreement or this Act.
       (2) Dworshak project.--Nothing in the Agreement or this Act 
     constitutes a waiver by the Tribe of any claim against the 
     United States resulting from the construction and operation 
     of the Dworshak Project (Project PWI 05090), other than those 
     specified in subparagraphs (A) and (B) of subsection (b)(1).
       (3) Future acquisition of water rights.--Nothing in the 
     Agreement or this Act precludes the Tribe or allottees, or 
     the United States as trustee for the Tribe or allottees, from 
     purchasing or otherwise acquiring water rights in the future 
     to the same extent as any other entity in the State.

     SEC. 11. MISCELLANEOUS.

       (a) General Disclaimer.--The parties expressly reserve all 
     rights not specifically granted, recognized, or relinquished 
     by the settlement described in the Agreement or this Act.
       (b) Disclaimer Regarding Other Agreements and Precedent.--
       (1) In general.--Subject to section 9(b)(3), nothing in 
     this Act amends, supersedes, or preempts any State law, 
     Federal law, Tribal law, or interstate compact that pertains 
     to the Snake River Basin.
       (2) No establishment of standard.--Nothing in this Act--
       (A) establishes any standard for the quantification of 
     Federal reserved water rights or any other Indian water 
     claims of any other Indian tribes in any other judicial or 
     administrative proceeding; or
       (B) limits the rights of the parties to litigate any issue 
     not resolved by the Agreement or this Act.
       (3) No admission against interest.--Nothing in this Act 
     constitutes an admission against interest against any party 
     in any legal proceeding.
       (c) Treaty Rights.--Nothing in the Agreement or this Act 
     impairs the treaty fishing, hunting, pasturing, or gathering 
     rights of the Tribe except to the extent expressly provided 
     in the Agreement or this Act.
       (d) Other Claims.--Nothing in the Agreement or this Act 
     quantifies or otherwise affects the water rights, claims, or 
     entitlements to water, or any other treaty right, of any 
     Indian tribe, band, or community other than the Tribe.
       (e) Recreation on Dworshak Reservoir.--
       (1) In general.--In implementing the provisions of the 
     Agreement and this Act relating to the use of water stored in 
     Dworshak Reservoir for flow augmentation purposes, the heads 
     of the Federal agencies involved in the operational 
     Memorandum of Agreement referred to in the Agreement shall 
     implement a flow augmentation plan beneficial to fish and 
     consistent with the Agreement.
       (2) Contents of plan.--The flow augmentation plan may 
     include provisions beneficial to recreational uses of the 
     reservoir through maintenance of the full level of the 
     reservoir for prolonged periods during the summer months.
       (f) Jurisdiction.--
       (1) No effect on subject matter jurisdiction.--Nothing in 
     the Agreement or this Act restricts, enlarges, or otherwise 
     determines the subject matter jurisdiction of any Federal, 
     State, or Tribal court.
       (2) Consent to jurisdiction.--The United States consents to 
     jurisdiction in a proper forum for purposes of enforcing the 
     provisions of the Agreement.
       (3) Effect of subsection.--Nothing in this subsection 
     confers jurisdiction on any State court to--
       (A) enforce Federal environmental laws regarding the duties 
     of the United States; or
       (B) conduct judicial review of Federal agency action.


                          meaning of section 4

  Ms. CANTWELL. Mr. President, I say to Senator Campbell, as chairman 
of the Indian Affairs Committee upon which I serve, I appreciate his 
leadership in helping this important bill become law. I support S. 2605 
and believe it codifies a fair and equitable settlement of Snake River 
Basin water rights in Idaho. However, I am concerned that the bill 
currently pending before the Senate may have inadvertently altered the 
rights of my constituents and obligations of the downstream States of 
Washington and Oregon in the application and implementation of Federal 
environmental laws.
  Therefore, I have a few questions to ask regarding the effect of 
section 4 of S. 2605 and the agreement, as expressed in the Mediator's 
Term Sheet, that S. 2605 would approve. Specifically, I am concerned 
about (1) whether some inference might be drawn from the language in 
section 4(a) of the act that, by approving, ratifying and confirming 
the agreement, Congress has in effect altered the obligation of Federal 
agencies to consult under section 7 of the Endangered Species Act; (2) 
whether the act might be interpreted to require that Federal agencies 
implement the agreement without taking into consideration the interests 
of other affected States; and (3) whether the act or the agreement 
might be construed to alter any obligations that the parties might have 
under the Clean Water Act, particularly in relation to the protection 
of federally approved State water quality standards of downstream 
States.
  I noticed that these three specific issues were not expressly 
addressed in the report of the Committee on Indian Affairs that has 
been filed and accompanies the substitute amendment.
  Mr. CAMPBELL. These three issues were not specifically addressed in 
the report issued by the committee, although the part of the report 
that discusses the meaning of section 4(a) of the substitute amendment 
does make the point, and fairly clearly I think, that there is no 
intent to alter or amend Federal environmental laws like the Endangered 
Species Act and the Clean Water Act or to somehow limit the rights of 
persons or organizations to pursue any remedies that are otherwise 
available to them under such laws. The three precise issues you mention 
were not deliberately omitted from discussion in the report--to the 
contrary, they were not discussed in the report simply because those 
specific issues, as you have articulated them, were not aired during or 
after the hearing held on this legislation and, in fact, arose only 
after the amendment in the nature of a substitute was reported to the 
Senate on October 7, 2004.
  Ms. CANTWELL. As the principal sponsor and architect of the 
substitute amendment approved by the Senate Committee on Indian 
Affairs, what was the intent about the meaning of the substitute 
amendment and the agreement it would approve with respect to those 
three issues?
  Mr. CAMPBELL. My intent with respect to all three of the issues that 
the Senator has mentioned is consistent with my intent regarding the 
meaning of section 4 of the substitute amendment and the agreement 
itself--that is, neither the substitute amendment nor the agreement 
should be interpreted to somehow restrict the rights of any State, 
person or organization to pursue remedies otherwise available under 
Federal environmental laws such as the Clean Water Act and the 
Endangered Species Act.
  I would point out that neither the substitute amendment nor the 
agreement should be read to create, enlarge or limit any obligation of 
Federal agencies to consult under section 7 of the Endangered Species 
Act. Also, the

[[Page S11572]]

intent behind the substitute amendment is that Federal agencies 
implement the terms of the agreement and any applicable Federal laws 
with due consideration of both the interests of the parties and those 
of other affected States so that no interests are prejudiced. Finally, 
neither the substitute amendment nor the agreement should be 
interpreted to create or alter any obligations of the parties under the 
Clean Water Act with respect to the protection of federally approved 
State water quality standards of downstream States. However, with that 
I do not mean to imply or suggest that any such obligations exist or do 
not exist.
  Ms. CANTWELL. I thank the Senator for clarifying these important 
matters.
  Mr. CAMPBELL. I thank the Senator for her inquiry.
  Mr. CRAPO. Speaking as the subcommittee chairman with jurisdiction 
over the Endangered Species Act and the Clean Water Act, I concur in 
the clarifications expressed by my colleagues.
  The committee amendment in the nature of a substitute was agreed to.
  The bill (S. 2605), as amended, was read the third time and passed.

                          ____________________