[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.
____________________