[Congressional Record Volume 156, Number 7 (Thursday, January 21, 2010)]
[House]
[Pages H290-H297]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
WHITE MOUNTAIN APACHE TRIBE WATER RIGHTS QUANTIFICATION ACT OF 2009
Mr. RAHALL. Mr. Speaker, pursuant to House Resolution 1017, I call up
the bill (H.R. 1065) to resolve water rights claims of the White
Mountain Apache Tribe in the State of Arizona, and for other purposes,
and ask for its immediate consideration in the House.
The Clerk read the title of the bill.
The SPEAKER pro tempore. Pursuant to House Resolution 1017, the bill
is considered read.
The amendment in the nature of a substitute printed in the bill,
modified by the amendment printed in part C of House Report 111-399, is
adopted.
The text of the bill, as amended, is as follows:
H.R. 1065
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 ``White Mountain Apache Tribe
Water Rights Quantification Act of 2009''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds that--
(1) proceedings to determine the nature and extent of the
water rights of the White Mountain Apache Tribe, members of
the Tribe, the United States, and other claimants are pending
in--
(A) the consolidated civil action in the Superior Court of
the State of Arizona for the County of Maricopa styled In re
the General Adjudication of All Rights To Use Water In The
Gila River System and Source, W-1 (Salt), W-2 (Verde), W-3
(Upper Gila), W-4 (San Pedro); and
(B) the civil action pending in the Superior Court of the
State of Arizona for the County of Apache styled In re the
General Adjudication of All Rights to Use Water in the Little
Colorado River System and Source and numbered CIV-6417;
(2) a final resolution of those proceedings might--
(A) take many years;
(B) entail great expense; and
(C) prolong uncertainty concerning the availability of
water supplies;
(3) the Tribe, non-Indian communities located near the
reservation of the Tribe, and other Arizona water users have
entered into the WMAT Water Rights Quantification Agreement--
(A) to permanently quantify the water rights of the Tribe,
members of the Tribe, and the United States in its capacity
as trustee for the Tribe and members in accordance with the
Agreement; and
(B) to seek funding, in accordance with applicable law, for
the implementation of the Agreement;
(4) it is the policy of the United States to quantify and
settle Indian water rights claims, and to promote Indian
self-determination and economic self-sufficiency, without
lengthy and costly litigation, if practicable;
(5) certainty concerning the extent of the water rights of
the Tribe will--
(A) provide opportunities for economic development of all
parties to the proceeding; and
(B) assist the Tribe to achieve self-determination and
self-sufficiency; and
(6) in keeping with the trust responsibility of the United
States to Indian tribes, and to promote tribal sovereignty
and economic self-sufficiency, it is appropriate that the
United States implement the Agreement.
(b) Purposes.--The purposes of this Act are--
(1) to authorize, ratify, and confirm the Agreement;
(2) to authorize and direct the Secretary to execute the
Agreement and carry out all obligations of the Secretary
under the Agreement;
(3) 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; and
(4) to permanently resolve certain damage claims and all
water rights claims among--
(A) the Tribe and its members;
(B) the United States in its capacity as trustee for the
Tribe and its members;
(C) the parties to the Agreement; and
(D) all other claimants in the proceedings referred to in
subsection (a)(1).
SEC. 3. DEFINITIONS.
In this Act:
(1) Agreement.--The ``Agreement'' means--
(A) the WMAT Water Rights Quantification Agreement dated
January 13, 2009; and
(B) any amendment or exhibit (including exhibit amendments)
to that agreement that are--
(i) made in accordance with this Act; or
(ii) otherwise approved by the Secretary.
(2) Bureau.--The term ``Bureau'' means the Bureau of
Reclamation.
(3) CAP.--The term ``CAP'' means the reclamation project
authorized and constructed by the United States in accordance
with title III of the Colorado River Basin Project Act (43
U.S.C. 1521 et seq.).
(4) CAP contractor.--The term ``CAP contractor'' means an
individual or entity that has entered into a long-term
contract (as that term is used in the repayment stipulation)
with the United States for delivery of water through the CAP
system.
(5) CAP fixed om&r charge.--The term ``CAP fixed OM&R
charge'' has the meaning given the term in the repayment
stipulation.
(6) CAP m&i priority water.--The term ``CAP M&I priority
water'' means the CAP water having a municipal and industrial
delivery priority under the repayment contract.
(7) CAP subcontractor.--The term ``CAP subcontractor''
means an individual or entity that has entered into a long-
term subcontract (as that term is used in the repayment
stipulation) with the United States and the District for the
delivery of water through the CAP system.
(8) CAP system.--The term ``CAP system'' means--
(A) the Mark Wilmer Pumping Plant;
(B) the Hayden-Rhodes Aqueduct;
(C) the Fannin-McFarland Aqueduct;
(D) the Tucson Aqueduct;
(E) any pumping plant or appurtenant works of a feature
described in any of subparagraphs (A) through (D); and
(F) any extension of, addition to, or replacement for a
feature described in any of subparagraphs (A) through (E).
(9) CAP water.--The term ``CAP water'' means ``Project
Water'' (as that term is defined in the repayment
stipulation).
(10) Contract.--The term ``Contract'' means--
(A) the proposed contract between the Tribe and the United
States attached as exhibit 7.1 to the Agreement and numbered
08-XX-30-W0529; and
(B) any amendments to that contract.
(11) District.--The term ``District'' means the Central
Arizona Water Conservation District, a political subdivision
of the State that is the contractor under the repayment
contract.
(12) Enforceability date.--The term ``enforceability date''
means the date described in section 9(d)(1).
(13) Indian tribe.--The term ``Indian tribe'' has the
meaning given the term in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b).
(14) Injury to water rights.--
(A) In general.--The term ``injury to water rights'' means
an interference with, diminution of, or deprivation of, a
water right under Federal, State, or other law.
(B) Inclusions.--The term ``injury to water rights''
includes--
(i) a change in the groundwater table; and
(ii) any effect of such a change.
(C) Exclusion.--The term ``injury to water rights'' does
not include any injury to water quality.
(15) Lower colorado river basin development fund.--The term
``Lower Colorado River Basin Development Fund'' means the
fund established by section 403 of the Colorado River Basin
Project Act (43 U.S.C. 1543).
(16) Off-reservation trust land.--The term ``off-
reservation trust land'' means land--
(A) located outside the exterior boundaries of the
reservation that is held in trust by the United States for
the benefit of the Tribe as of the enforceability date; and
(B) depicted on the map attached to the Agreement as
exhibit 2.57.
(17) Operating agency.--The term ``Operating Agency'' means
the 1 or more entities authorized to assume responsibility
for the care, operation, maintenance, and replacement of the
CAP system.
(18) Repayment contract.--The term ``repayment contract''
means--
(A) the contract between the United States and the District
for delivery of water and repayment of the costs of the CAP,
numbered 14-06-W-245 (Amendment No. 1), and dated December 1,
1988; and
(B) any amendment to, or revision of, that contract.
(19) Repayment stipulation.--The term ``repayment
stipulation'' means the stipulated judgment and the
stipulation for judgment (including any exhibits to those
documents) entered on November 21, 2007, in the United States
District Court for the District of Arizona in the
consolidated civil action styled Central Arizona Water
Conservation District v. United States, et al., and numbered
CIV 95-625-TUC-WDB (EHC) and CIV 95-1720-PHX-EHC.
(20) Reservation.--
(A) In general.--The term ``reservation'' means the land
within the exterior boundary of the White Mountain Indian
Reservation established by the Executive order dated November
9, 1871, as modified by subsequent Executive orders and Acts
of Congress--
(i) known on the date of enactment of this Act as the
``Fort Apache Reservation'' pursuant to the Act of June 7,
1897 (30 Stat. 62, chapter 3); and
(ii) generally depicted on the map attached to the
Agreement as exhibit 2.81.
[[Page H291]]
(B) No effect on dispute or as admission.--The depiction of
the reservation described in subparagraph (A)(ii) shall not--
(i) be used to affect any dispute between the Tribe and the
United States concerning the legal boundary of the
reservation; and
(ii) constitute an admission by the Tribe with regard to
any dispute between the Tribe and the United States
concerning the legal boundary of the reservation.
(21) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(22) State.--The term ``State'' means the State of Arizona.
(23) Tribal cap water.--The term ``tribal CAP water'' means
the CAP water to which the Tribe is entitled pursuant to the
Contract.
(24) Tribal water rights.--The term ``tribal water rights''
means the water rights of the Tribe described in paragraph
4.0 of the Agreement.
(25) Tribe.--The term ``Tribe'' means the White Mountain
Apache Tribe organized under section 16 of the Act of June
18, 1934 (commonly known as the ``Indian Reorganization
Act'') (25 U.S.C. 476).
(26) Water right.--The term ``water right'' means any right
in or to groundwater, surface water, or effluent under
Federal, State, or other law.
(27) WMAT rural water system.--The term ``WMAT rural water
system'' means the municipal, rural, and industrial water
diversion, storage, and delivery system described in section
7.
(28) Year.--The term ``year'' means a calendar year.
SEC. 4. APPROVAL OF AGREEMENT.
(a) Approval.--
(1) In general.--Except to the extent that any provision of
the Agreement conflicts with a provision of this Act, the
Agreement is authorized, ratified, and confirmed.
(2) Amendments.--Any amendment to the Agreement is
authorized, ratified, and confirmed, to the extent that such
an amendment is executed to make the Agreement consistent
with this Act.
(b) Execution of Agreement.--To the extent that the
Agreement does not conflict with this Act, the Secretary
shall--
(1) execute the Agreement (including signing any exhibit to
the Agreement requiring the signature of the Secretary); and
(2) execute any amendment to the Agreement necessary to
make the Agreement consistent with this Act.
(c) National Environmental Policy Act.--
(1) Environmental compliance.--In implementing the
Agreement, the Secretary shall promptly comply with all
applicable requirements of--
(A) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.);
(B) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.);
(C) all other applicable Federal environmental laws; and
(D) all regulations promulgated under the laws described in
subparagraphs (A) through (C).
(2) Execution of agreement.--
(A) In general.--Execution of the Agreement by the
Secretary under this section shall not constitute a major
Federal action under the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.).
(B) Environmental compliance.--The Secretary shall carry
out all necessary environmental compliance required by
Federal law in implementing the Agreement.
(3) Lead agency.--The Bureau shall serve as the lead agency
with respect to ensuring environmental compliance associated
with the WMAT rural water system.
SEC. 5. WATER RIGHTS.
(a) Treatment of Tribal Water Rights.--The tribal water
rights--
(1) shall be held in trust by the United States in
perpetuity; and
(2) shall not be subject to forfeiture or abandonment.
(b) Reallocation.--
(1) In general.--In accordance with this Act and the
Agreement, the Secretary shall reallocate to the Tribe, and
offer to enter into a contract with the Tribe for the
delivery in accordance with this section of--
(A) an annual entitlement to 23,782 acre-feet per year of
CAP water that has a non-Indian agricultural delivery
priority (as defined in the Contract) in accordance with
section 104(a)(1)(A)(iii) of the Arizona Water Settlements
Act (Public Law 108-451; 118 Stat. 3488), of which--
(i) 3,750 acre-feet per year shall be firmed by the United
States for the benefit of the Tribe for the 100-year period
beginning on January 1, 2008, with priority equivalent to CAP
M&I priority water, in accordance with section 105(b)(1)(B)
of that Act (118 Stat. 3492); and
(ii) 3,750 acre-feet per year shall be firmed by the State
for the benefit of the Tribe for the 100-year period
beginning on January 1, 2008, with priority equivalent to CAP
M&I priority water, in accordance with section 105(b)(2)(B)
of that Act (118 Stat. 3492); and
(B) an annual entitlement to 1,218 acre-feet per year of
the water--
(i) acquired by the Secretary through the permanent
relinquishment of the Harquahala Valley Irrigation District
CAP subcontract entitlement in accordance with the contract
numbered 3-07-30-W0290 among the District, Harquahala Valley
Irrigation District, and the United States; and
(ii) converted to CAP Indian Priority water (as defined in
the Contract) pursuant to the Fort McDowell Indian Community
Water Rights Settlement Act of 1990 (Public Law 101-628; 104
Stat. 4480).
(2) Authority of tribe.--Subject to approval by the
Secretary under section 6(a)(1), the Tribe shall have the
sole authority to lease, distribute, exchange, or allocate
the tribal CAP water described in paragraph (1).
(c) Water Service Capital Charges.--The Tribe shall not be
responsible for any water service capital charge for tribal
CAP water.
(d) Allocation and Repayment.--For the purpose of
determining the allocation and repayment of costs of any
stages of the CAP constructed after November 21, 2007, the
costs associated with the delivery of water described in
subsection (b), regardless of whether the water is delivered
for use by the Tribe or in accordance with any assignment,
exchange, lease, option to lease, or other agreement for the
temporary disposition of water entered into by Tribe, shall
be--
(1) nonreimbursable; and
(2) excluded from the repayment obligation of the District.
(e) Water Code.--Not later than 18 months after the
enforceability date, the Tribe shall enact a water code
that--
(1) governs the tribal water rights; and
(2) includes, at a minimum--
(A) provisions requiring the measurement, calculation, and
recording of all diversions and depletions of water on the
reservation and on off-reservation trust land;
(B) terms of a water conservation plan, including
objectives, conservation measures, and an implementation
timeline;
(C) provisions requiring the approval of the Tribe for the
severance and transfer of rights to the use of water from
historically irrigated land identified in paragraph 11.3.2.1
of the Agreement to diversions and depletions on other non-
historically irrigated land not located on the watershed of
the same water source; and
(D) provisions requiring the authorization of the Tribe for
all diversions of water on the reservation and on off-
reservation trust land by any individual or entity other than
the Tribe.
SEC. 6. CONTRACT.
(a) In General.--The Secretary shall enter into the
Contract, in accordance with the Agreement, to provide, among
other things, that--
(1) the Tribe, on approval of the Secretary, may--
(A) enter into contracts or options to lease, contracts to
exchange, or options to exchange tribal CAP water in
Maricopa, Pinal, Pima, and Yavapai Counties in the State
providing for the temporary delivery to any individual or
entity of any portion of the tribal CAP water, subject to the
condition that--
(i) the term of the contract or option to lease shall not
be longer than 100 years;
(ii) the contracts or options to exchange shall be for the
term provided in the contract or option; and
(iii) a lease or option to lease providing for the
temporary delivery of tribal CAP water shall require the
lessee to pay to the Operating Agency all CAP fixed OM&R
charges and all CAP pumping energy charges (as defined in the
repayment stipulation) associated with the leased water; and
(B) renegotiate any lease at any time during the term of
the lease, subject to the condition that the term of the
renegotiated lease shall not exceed 100 years;
(2) no portion of the tribal CAP water may be permanently
alienated;
(3)(A) the Tribe (and not the United States in any
capacity) shall be entitled to all consideration due to the
Tribe under any contract or option to lease or exchange
tribal CAP water entered into by the Tribe; and
(B) the United States (in any capacity) has no trust or
other obligation to monitor, administer, or account for, in
any manner--
(i) any funds received by the Tribe as consideration under
a contract or option to lease or exchange tribal CAP water;
or
(ii) the expenditure of those funds;
(4)(A) all tribal CAP water shall be delivered through the
CAP system; and
(B) if the delivery capacity of the CAP system is
significantly reduced or anticipated to be significantly
reduced for an extended period of time, the Tribe shall have
the same CAP delivery rights as a CAP contractor or CAP
subcontractor that is allowed to take delivery of water other
than through the CAP system;
(5) the Tribe may use tribal CAP water on or off the
reservation for any purpose;
(6) as authorized by subsection (f)(2)(A) of section 403 of
the Colorado River Basin Project Act (43 U.S.C. 1543) and to
the extent that funds are available in the Lower Colorado
River Basin Development Fund established by subsection (a) of
that section, the United States shall pay to the Operating
Agency the CAP fixed OM&R charges associated with the
delivery of tribal CAP water (except in the case of tribal
CAP water leased by any individual or entity);
(7) the Secretary shall waive the right of the Secretary to
capture all return flow from project exchange water flowing
from the exterior boundary of the reservation; and
(8) no CAP water service capital charge shall be due or
payable for the tribal CAP water, regardless of whether the
water is delivered for use by the Tribe or pursuant to a
contract or option to lease or exchange tribal CAP water
entered into by the Tribe.
(b) Requirements.--The Contract shall be--
(1) for permanent service (within the meaning of section 5
of the Boulder Canyon Project Act (43 U.S.C. 617d)); and
(2) without limit as to term.
(c) Ratification.--
(1) In general.--Except to the extent that any provision of
the Contract conflicts with a provision of this Act, the
Contract is authorized, ratified, and confirmed.
(2) Amendments.--Any amendment to the Contract is
authorized, ratified, and confirmed, to the extent that such
an amendment is executed to make the Contract consistent with
this Act.
[[Page H292]]
(d) Execution of Contract.--To the extent that the Contract
does not conflict with this Act, the Secretary shall execute
the Contract.
(e) Payment of Charges.--The Tribe, and any recipient of
tribal CAP water through a contract or option to lease or
exchange, shall not be obligated to pay a water service
capital charge or any other charge, payment, or fee for CAP
water, except as provided in an applicable lease or exchange
agreement.
(f) Prohibitions.--
(1) Use outside state.--No tribal CAP water may be leased,
exchanged, forborne, or otherwise transferred by the Tribe in
any way for use directly or indirectly outside the State.
(2) Use off reservation.--Except as authorized by this
section and paragraph 4.7 of the Agreement, no tribal water
rights under this Act may be sold, leased, transferred, or
used outside the boundaries of the reservation or off-
reservation trust land other than pursuant to an exchange.
(3) Agreements with arizona water banking authority.--
Nothing in this Act or the Agreement limits the right of the
Tribe to enter into an agreement with the Arizona Water
Banking Authority established by section 45-2421 of the
Arizona Revised Statutes (or any successor entity), in
accordance with State law.
(g) Leases.--
(1) In general.--To the extent the leases of tribal CAP
Water by the Tribe to the District and to any of the cities,
attached as exhibits to the Agreement, are not in conflict
with the provisions of this Act--
(A) those leases are authorized, ratified, and confirmed;
and
(B) the Secretary shall execute the leases.
(2) Amendments.--To the extent that amendments are executed
to make the leases described in paragraph (1) consistent with
this Act, those amendments are authorized, ratified, and
confirmed.
SEC. 7. AUTHORIZATION OF RURAL WATER SYSTEM.
(a) In General.--Subject to the availability of
appropriations, the Secretary, acting through the Bureau,
shall plan, design, construct, operate, maintain, replace,
and rehabilitate the WMAT rural water system as generally
described in the project extension report dated February
2007.
(b) Components.--The WMAT rural water system under
subsection (a) shall consist of--
(1) a dam and storage reservoir, pumping plant, and
treatment facilities located along the North Fork White River
near the community of Whiteriver;
(2) pipelines extending from the water treatment plants to
existing water distribution systems serving the Whiteriver,
Carrizo, and Cibecue areas, together with other communities
along the pipeline;
(3) connections to existing distribution facilities,
including public and private water systems in existence on
the date of enactment of this Act;
(4) appurtenant buildings and access roads;
(5) electrical power transmission and distribution
facilities necessary for services to rural water system
facilities;
(6) all property and property rights necessary for the
facilities described in this subsection; and
(7) such other project components as the Secretary
determines to be appropriate to meet the water supply,
economic, public health, and environmental needs of the
portions of the reservation served by the WMAT rural water
system, including water storage tanks, water lines, and other
facilities for the Tribe and the villages and towns on the
reservation.
(c) Service Area.--The service area of the WMAT rural water
system shall be as described in the Project Extension report
dated February 2007.
(d) Construction Requirements.--The components of the WMAT
rural water system shall be planned and constructed to a size
that is sufficient to meet the municipal, rural, and
industrial water supply requirements of the WMAT rural water
system service area during the period beginning on the date
of enactment of this Act and ending not earlier than December
31, 2040.
(e) Title.--
(1) In general.--Title to the WMAT rural water system shall
be held in trust by the United States in its capacity as
trustee for the Tribe.
(2) Conveyance to tribe.--The Secretary may convey to the
Tribe title to the WMAT rural water system after publication
by the Secretary in the Federal Register of a statement of
findings that--
(A) the designers' operating criteria, standing operating
procedures, emergency action plan, and first filling and
monitoring criteria are established and in place, and the
WMAT rural water system has been declared substantially
complete;
(B) the funds authorized to be appropriated under section
12(b)(3)(B) have been appropriated and deposited in the WMAT
Maintenance Fund; and
(C) the Tribe has been operating successfully under the
established standing operating procedures for a period of 5
calendar years.
(3) Alienation and taxation.--Conveyance of title to the
Tribe pursuant to paragraph (2) does not waive or alter any
applicable Federal law prohibiting alienation or taxation of
the WMAT rural water system or the underlying reservation
land.
(f) Technical Assistance.--The Secretary shall provide such
technical assistance as is necessary to enable the Tribe to
plan, design, construct, operate, maintain, and replace the
WMAT rural water system, including operation and management
training.
(g) Applicability of ISDEAA.--
(1) Agreement for specific activities.--On receipt of a
request of the Tribe, and in accordance with the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450 et
seq.), the Secretary shall enter into an agreement with the
Tribe to carry out the activities authorized by this section.
(2) Contracts.--Any contract entered into pursuant to the
Indian Self-Determination and Education Assistance Act (25
U.S.C. 450 et seq.) for the purpose of carrying out any
provision of this Act shall incorporate such provisions
regarding periodic payment of funds, timing for use of funds,
transparency, oversight, reporting, and accountability as the
Secretary determines to be necessary (at the sole discretion
of the Secretary) to ensure appropriate stewardship of
Federal funds.
(h) Condition.--As a condition of construction of the
facilities authorized by this section, the Tribe shall
provide, at no cost to the Secretary, all land or interests
in land, as appropriate, that the Secretary identifies as
being necessary for those facilities.
(i) Operation and Maintenance.--Subject to the availability
of appropriations as provided for in section 12(e), the
Secretary, acting through the Bureau, shall operate and
maintain the WMAT rural water system until the date on which
title to the WMAT rural water system is conveyed to the Tribe
pursuant to subsection (e)(2).
SEC. 8. SATISFACTION OF CLAIMS.
(a) In General.--The benefits realized by the Tribe and its
members under this Act shall be in full satisfaction of all
claims of the Tribe and its members for water rights and
injury to water rights, except as set forth in the Agreement,
under Federal, State, or other law with respect to the
reservation and off-reservation trust land.
(b) Uses of Water.--All uses of water on land outside of
the reservation, if and when such land is subsequently and
finally determined to be part of the reservation through
resolution of any dispute between the Tribe and the United
States over the location of the reservation boundary, and any
fee land within the reservation put into trust and made part
of the reservation, shall be subject to the maximum annual
diversion amounts and the maximum annual depletion amounts
specified in the Agreement.
(c) No Recognition of Water Rights.--Notwithstanding
subsection (a), nothing in this Act has the effect of
recognizing or establishing any right of a member of the
Tribe to water on the reservation.
SEC. 9. WAIVER AND RELEASE OF CLAIMS.
(a) In General.---
(1) Claims against the state and others.--Except as
provided in subsection (b)(1), the Tribe, on behalf of itself
and its members, and the United States, acting in its
capacity of trustee for the Tribe and its members, as part of
the performance of their obligations under the Agreement, are
authorized to execute a waiver and release of any claims
against the State (or any agency or political subdivision of
the State), or any other person, entity, corporation, or
municipal corporation under Federal, State, or other law for
all--
(A)(i) past, present, and future claims for water rights
for the reservation and off-reservation trust land arising
from time immemorial and, thereafter, forever; and
(ii) past, present, and future claims for water rights
arising from time immemorial and, thereafter, forever, that
are based on aboriginal occupancy of land by the Tribe, its
members, or their predecessors;
(B)(i) past and present claims for injury to water rights
for the reservation and off-reservation trust land arising
from time immemorial through the enforceability date;
(ii) past, present, and future claims for injury to water
rights arising from time immemorial and, thereafter, forever,
that are based on aboriginal occupancy of land by the Tribe
and its members, or their predecessors; and
(iii) claims for injury to water rights arising after the
enforceability date for the reservation and off-reservation
trust land resulting from off-reservation diversion or use of
water in a manner not in violation of the Agreement or State
law; and
(C) past, present, and future claims arising out of or
relating in any manner to the negotiation, execution, or
adoption of the Agreement, an applicable settlement judgement
or decree, or this Act.
(2) Claims against tribe.--Except as provided in subsection
(b)(3), the United States, in all its capacities (except as
trustee for an Indian tribe other than the Tribe), as part of
the performance of its obligations under the Agreement, is
authorized to execute a waiver and release of any and all
claims against the Tribe, its members, or any agency,
official, or employee of the Tribe, under Federal, State, or
any other law for all--
(A) past and present claims for injury to water rights
resulting from the diversion or use of water on the
reservation and on off-reservation trust land arising from
time immemorial through the enforceability date;
(B) claims for injury to water rights arising after the
enforceability date resulting from the diversion or use of
water on the reservation and on off-reservation trust land in
a manner not in violation of the Agreement; and
(C) past, present, and future claims arising out of or
related in any manner to the negotiation, execution, or
adoption of the Agreement, an applicable settlement judgement
or decree, or this Act.
(3) Claims against united states.--Except as provided in
subsection (b)(2), the Tribe, on behalf of itself and its
members, as part of the performance of the obligations of the
Tribe under the Agreement, is authorized to execute a waiver
and release of any claim against the United
[[Page H293]]
States, including agencies, officials, or employees of the
United States (except in the capacity of the United States as
trustee for other Indian tribes), under Federal, State, or
other law for any and all--
(A)(i) past, present, and future claims for water rights
for the reservation and off-reservation trust land arising
from time immemorial and, thereafter, forever; and
(ii) past, present, and future claims for water rights
arising from time immemorial and, thereafter, forever that
are based on aboriginal occupancy of land by the Tribe, its
members, or their predecessors;
(B)(i) past and present claims relating in any manner to
damages, losses, or injuries to water, water rights, land, or
other resources due to loss of water or water rights
(including damages, losses, or injuries to hunting, fishing,
gathering, or cultural rights due to loss of water or water
rights, claims relating to interference with, diversion, or
taking of water, or claims relating to failure to protect,
acquire, or develop water, water rights, or water
infrastructure) within the reservation and off-reservation
trust land that first accrued at any time prior to the
enforceability date;
(ii) past, present, and future claims for injury to water
rights arising from time immemorial and, thereafter, forever
that are based on aboriginal occupancy of land by the Tribe,
its members, or their predecessors; and
(iii) claims for injury to water rights arising after the
enforceability date for the reservation and off-reservation
trust land resulting from the off-reservation diversion or
use of water in a manner not in violation of the Agreement or
applicable law;
(C) past, present, and future claims arising out of or
relating in any manner to the negotiation, execution, or
adoption of the Agreement, an applicable settlement judgment
or decree, or this Act;
(D) past and present claims relating in any manner to
pending litigation of claims relating to the water rights of
the Tribe for the reservation and off-reservation trust land;
(E) past and present claims relating to the operation,
maintenance, and replacement of existing irrigation systems
on the reservation constructed prior to the enforceability
date that first accrued at any time prior to the
enforceability date, which waiver shall only become effective
on the full appropriation and payment to the Tribe of
$4,950,000 authorized by section 12(b)(2)(B);
(F) future claims relating to operation, maintenance, and
replacement of the WMAT rural water system, which waiver
shall only become effective on the full appropriation of
funds authorized by section 12(b)(3)(B) and the deposit of
those funds in the WMAT Maintenance Fund;
(G) past and present breach of trust and negligence claims
for damage to the land and natural resources of the Tribe
caused by riparian and other vegetative manipulation by the
United States for the purpose of increasing water runoff from
the reservation that first accrued at any time prior to the
enforceability date; and
(H) past and present claims for trespass, use, and
occupancy of the reservation in, on, and along the Black
River that first accrued at any time prior to the
enforceability date.
(b) Reservation of Rights and Retention of Claims.--
(1) Reservation of rights and retention of claims by tribe
and united states.--
(A) In general.--Notwithstanding the waiver and release of
claims authorized under subsection (a)(1), the Tribe, on
behalf of itself and the members of the Tribe, and the United
States, acting as trustee for the Tribe and members of the
Tribe, shall retain any right--
(i) subject to subparagraph 16.9 of the Agreement, to
assert claims for injuries to, and seek enforcement of, the
rights of the Tribe and members of the Tribe under the
Agreement or this Act in any Federal or State court of
competent jurisdiction;
(ii) to assert claims for injuries to, and seek enforcement
of, the rights of the Tribe under the judgment and decree
entered by the court in the Gila River adjudication
proceedings;
(iii) to assert claims for injuries to, and seek
enforcement of, the rights of the Tribe under the judgment
and decree entered by the court in the Little Colorado River
adjudication proceedings;
(iv) to object to any claims by or for any other Indian
tribe, Indian community or nation, or dependent Indian
community, or the United States on behalf of such a tribe,
community, or nation;
(v) to participate in the Gila River adjudication
proceedings and the Little Colorado River adjudication
proceedings to the extent provided in subparagraph 14.1 of
the Agreement;
(vi) to assert any claims arising after the enforceability
date for injury to water rights not specifically waived under
this section;
(vii) to assert any past, present, or future claim for
injury to water rights against any other Indian tribe, Indian
community or nation, dependent Indian community, allottee, or
the United States on behalf of such a tribe, community,
nation, or allottee; and
(viii) to assert any past, present, or future claim for
trespass, use, and occupancy of the reservation in, on, or
along the Black River against Freeport-McMoRan Copper & Gold,
Inc., Phelps Dodge Corporation, or Phelps Dodge Morenci, Inc.
(or a predecessor or successor of those entities), including
all subsidiaries and affiliates of those entities.
(B) Agreement.--On terms acceptable to the Tribe and the
United States, the Tribe and the United States are authorized
to enter into an agreement with Freeport-McMoRan Copper &
Gold, Inc., Phelps Dodge Corporation, or Phelps Dodge
Morenci, Inc. (or a predecessor or successor of those
entities), including all subsidiaries and affiliates of those
entities, to resolve the claims of the Tribe relating to the
trespass, use, and occupancy of the reservation in, on, and
along the Black River.
(2) Reservation of rights and retention of claims by tribe
against united states.--Notwithstanding the waiver and
release of claims authorized under subsection (a)(3), the
Tribe, on behalf of itself and the members of the Tribe,
shall retain any right--
(A) subject to subparagraph 16.9 of the Agreement, to
assert claims for injuries to, and seek enforcement of, the
rights of the Tribe and members under the Agreement or this
Act, in any Federal or State court of competent jurisdiction;
(B) to assert claims for injuries to, and seek enforcement
of, the rights of the Tribe and members under the judgment
and decree entered by the court in the Gila River
adjudication proceedings;
(C) to assert claims for injuries to, and seek enforcement
of, the rights of the Tribe and members under the judgment
and decree entered by the court in the Little Colorado River
adjudication proceedings;
(D) to object to any claims by or for any other Indian
tribe, Indian community or nation, dependent Indian
community, or the United States on behalf of such a tribe,
community, or nation;
(E) to assert past, present, or future claims for injury to
water rights or any other claims other than a claim to water
rights, against any other Indian tribe, Indian community or
nation, dependent Indian community, or the United States on
behalf of such a tribe, community, or nation;
(F) to assert claims arising after the enforceability date
for injury to water rights resulting from the drilling of
wells or pumping of water from land located within national
forest land as of the effective date of the Agreement in the
south \1/2\ of T. 9 N., R. 24 E.; south \1/2\ of T. 9 N., R.
25 E.; north \1/2\ of T. 8 N., R. 24 E.; north \1/2\ of T. 8
N., R. 25 E., if--
(i) title to that land is no longer retained by the United
States; or
(ii) water from that land is transported off the land for
municipal or industrial use;
(G) to assert any claims arising after the enforceability
date for injury to water rights not specifically waived under
this section;
(H) to assert any other claims not specifically waived
under this section; and
(I) to assert any claim arising after the enforceability
date for a future taking by the United States of reservation
land, off-reservation trust land, or any property rights
appurtenant to that land, including any water rights set
forth in paragraph 4.0 of the Agreement.
(3) Reservation of rights and retention of claims by united
states.--Notwithstanding the waiver and release of claims
authorized under subsection (a)(2), the United States shall
retain any right to assert any claim not specifically waived
in that subsection.
(c) Effectiveness of Waiver and Releases.--Except as
otherwise specifically provided in subparagraphs (E) and (F)
of subsection (a)(3), the waivers and releases under
subsection (a) shall become effective on the enforceability
date.
(d) Enforceability Date.--
(1) In general.--This section takes effect on the date on
which the Secretary publishes in the Federal Register a
statement of findings that--
(A)(i) to the extent the Agreement conflicts with this Act,
the Agreement has been revised through an amendment to
eliminate the conflict; and
(ii) the Agreement, as so revised, has been executed by the
Secretary, the Tribe, and the Governor of the State;
(B) the Secretary has fulfilled the requirements of
sections 5 and 6;
(C) the amount authorized by section 12(a) has been
deposited in the White Mountain Apache Tribe Water Rights
Settlement Subaccount;
(D) the State funds described in subparagraph 13.3 of the
Agreement have been deposited in the White Mountain Apache
Tribe Water Rights Settlement Subaccount;
(E) the Secretary has issued a record of decision approving
the construction of the WMAT rural water system in a
configuration substantially similar to that described in
section 7; and
(F) the judgments and decrees substantially in the form of
those attached to the Agreement as exhibits 12.9.6.1 and
12.9.6.2 have been approved by the respective trial courts.
(2) Failure of enforceability date to occur.--If, because
of the failure of the enforceability date to occur by April
30, 2020, this section does not become effective, the Tribe
and its members, and the United States, acting in the
capacity of trustee for the Tribe and its members, shall
retain the right to assert past, present, and future water
rights claims and claims for injury to water rights for the
reservation and off-reservation trust land.
(3) No rights to water.--On the occurrence of the
enforceability date, all land held by the United States in
trust for the Tribe and its members shall have no rights to
water other than those specifically quantified for the Tribe
and the United States, acting in the capacity of trustee for
the Tribe and its members, for the reservation and off-
reservation trust land pursuant to paragraph 4.0 of the
Agreement.
(e) United States Enforcement Authority.--Nothing in this
Act or the Agreement affects any right of the United States
to take any action, including environmental actions, under
any laws (including regulations and the common law) relating
to human health, safety, or the environment.
(f) No Effect on Water Rights.--Except as provided in
paragraphs (1)(A)(ii), (1)(B)(ii), (3)(A)(ii), and (3)(B)(ii)
of subsection (a), nothing in this Act affects any rights to
water of the Tribe, its members, or the United States acting
as trustee for the Tribe and members, for land outside the
boundaries of the reservation or the off-reservation trust
land.
[[Page H294]]
(g) Entitlements.--Any entitlement to water of the Tribe,
its members, or the United States acting as trustee for the
Tribe and members, relating to the reservation or off-
reservation trust land shall be satisfied from the water
resources granted, quantified, confirmed, or recognized with
respect to the Tribe, members, and the United States by the
Agreement and this Act.
(h) Objection Prohibited.--Except as provided in subsection
(b)(2)(F), the Tribe and the United States acting as trustee
for the Tribe shall not--
(1) object to the usage of any well located outside the
boundaries of the reservation or the off-reservation trust
land, as in existence on the enforceability date; or
(2) object to, dispute, or challenge after the
enforceability date the drilling of any well or the
withdrawal and use of water from any well in the Little
Colorado River adjudication proceedings, the Gila River
adjudication proceedings, or any other judicial or
administrative proceeding.
SEC. 10. WHITE MOUNTAIN APACHE TRIBE WATER RIGHTS SETTLEMENT
SUBACCOUNT.
(a) Establishment.--There is established in the Lower
Colorado River Basin Development Fund a subaccount to be
known as the ``White Mountain Apache Tribe Water Rights
Settlement Subaccount'', consisting of--
(1) the amounts made available under subsection (e);
(2) the amounts appropriated to the subaccount pursuant to
subsections (a) and (d) of section 12, as applicable; and
(3) such other amounts as are available including the funds
provided in subparagraph 13.3 of the Agreement.
(b) Expenditures and Withdrawals.--
(1) Contracts.--
(A) In general.--The Tribe may withdraw any portion of the
White Mountain Apache Tribe Water Rights Settlement
Subaccount on approval by the Secretary pursuant to the terms
of an agreement entered into under section 7(g).
(B) Requirements.--An agreement entered into under section
7(g) shall require that the Tribe shall use the amounts in
the White Mountain Apache Tribe Water Rights Settlement
Subaccount only for the planning, design, and construction of
the rural water system, including such sums as are
necessary--
(i) for the Bureau to carry out oversight of the planning,
design, and construction of the rural water system;
(ii) to repay any outstanding balance on the loan
authorized by the White Mountain Apache Tribe Rural Water
System Loan Authorization Act (Public Law 110-390; 122 Stat.
4191); and
(iii) to carry out all required environmental compliance
activities associated with the planning, design, and
construction of the rural water system.
(2) Enforcement.--The Secretary may pursue such judicial
remedies and carry out such administrative actions as are
necessary to enforce an agreement described in paragraph (1)
to ensure that amounts in the White Mountain Apache Tribe
Water Rights Settlement Subaccount are used in accordance
with this section.
(3) Liability.--On withdrawal by the Tribe of amounts in
the White Mountain Apache Tribe Water Rights Settlement
Subaccount, the Secretary and the Secretary of the Treasury
shall not retain liability for the expenditure or investment
of those amounts.
(4) Expenditure plan.--
(A) In general.--The Tribe shall submit to the Secretary
for approval an expenditure plan for any portion of the
amounts in the subaccount under this section that the Tribe
does not withdraw pursuant to this subsection.
(B) Description.--The expenditure plan shall describe the
manner in which, and the purposes for which, the amounts
remaining in the subaccount will be used.
(C) Approval.--The Secretary shall approve an expenditure
plan under this paragraph if the Secretary determines that
the plan is--
(i) reasonable; and
(ii) consistent with this Act.
(5) Annual reports.--The Tribe shall submit to the
Secretary an annual report that describes each expenditure
from the White Mountain Apache Tribe Water Rights Settlement
Subaccount during the year covered by the report.
(c) Prohibition on Per Capita Distributions.--No amount of
the principal, or the interest or income accruing on the
principal, of the White Mountain Apache Tribe Water Rights
Settlement Subaccount shall be distributed to any member of
the Tribe on a per capita basis.
(d) Availability of Funds.--
(1) In general.--Amounts in the White Mountain Apache Tribe
Water Rights Settlement Subaccount shall not be available for
expenditure or withdrawal by the Tribe until the
enforceability date.
(2) Investment.--The Secretary shall invest the amounts in
the White Mountain Apache Tribe Water Rights Settlement
Subaccount in accordance with section 403(f)(4) of the
Colorado River Basin Project Act (43 U.S.C. 1543(f)(4)).
(3) Use of interest.--The interest accrued on amounts
invested under paragraph (2) shall not be available for
expenditure or withdrawal until the later of--
(A) November 1, 2019; and
(B) the enforceability date.
(e) Lower Colorado River Basin Development Fund.--
(1) In general.--Of amounts in the Lower Colorado River
Basin Development Fund made available under section
403(f)(2)(D)(vi) of the Colorado River Basin Project Act (43
U.S.C. 1543(f)(D)(vi)), an amount equal to the difference
between the balance of the White Mountain Apache Tribe
Settlement Subaccount (as of November 1, 2019), and the
amount authorized to be appropriated under section 12(a)(1),
but not to exceed $100,000,000, shall be deposited, without
further appropriation, in the White Mountain Apache Tribe
Settlement Subaccount.
(2) Availability of funds.--The funds authorized to be
deposited in the White Mountain Apache Tribe Settlement
Subaccount pursuant to paragraph (1) shall not be available
for expenditure or withdrawal until the later of--
(A) November 1, 2019; and
(B) the enforceability date.
SEC. 11. MISCELLANEOUS PROVISIONS.
(a) Limited Waiver of Sovereign Immunity.--
(1) In general.--In the case of a civil action described in
paragraph (2)--
(A) the United States or the Tribe, or both, may be joined
in the civil action; and
(B) any claim by the United States or the Tribe to
sovereign immunity from the civil action is waived for the
sole purpose of resolving any issue regarding the
interpretation or enforcement of this Act or the Agreement.
(2) Description of civil action.--A civil action referred
to in paragraph (1) is a civil action filed--
(A) by any party to the Agreement or signatory to an
exhibit to the Agreement in a United States or State court
that--
(i) relates solely and directly to the interpretation or
enforcement of this Act or the Agreement; and
(ii) names as a party the United States or the Tribe; or
(B) by a landowner or water user in the Gila River basin or
Little Colorado River basin in the State that--
(i) relates solely and directly to the interpretation or
enforcement of section 9 of this Act and paragraph 12.0 of
the Agreement; and
(ii) names as a party the United States or the Tribe.
(b) Effect of Act.--Nothing in this Act quantifies or
otherwise affects any water right or claim or entitlement to
water of any Indian tribe, band, or community other than the
Tribe.
(c) Limitation on Liability of United States.--
(1) In general.--The United States shall have no trust or
other obligation--
(A) to monitor, administer, or account for, in any manner,
any amount paid to the Tribe by any party to the Agreement
other than the United States; or
(B) to review or approve the expenditure of those funds.
(2) Indemnification.--The Tribe shall indemnify the United
States, and hold the United States harmless, with respect to
any claim (including claims for takings or breach of trust)
arising out of the receipt or expenditure of funds described
in paragraph (1)(A).
(d) Applicability of Reclamation Reform Act.--The
Reclamation Reform Act of 1982 (43 U.S.C. 390aa et seq.) and
any other acreage limitation or full-cost pricing provision
under Federal law shall not apply to any individual, entity,
or land solely on the basis of--
(1) receipt of any benefit under this Act;
(2) the execution or performance of the Agreement; or
(3) the use, storage, delivery, lease, or exchange of CAP
water.
(e) Secretarial Power Sites.--The portions of the following
named secretarial power site reserves that are located on the
Fort Apache Indian Reservation or the San Carlos Apache
Reservation, as applicable, shall be transferred and restored
into the name of the Tribe or the San Carlos Apache Tribe,
respectively:
(1) Lower Black River (T. 3 N., R. 26 E.; T. 3 N., R. 27
E.).
(2) Black River Pumps (T. 2 N., R. 25 E.; T. 2 N., R. 26
E.; T. 3 N., R. 26 E.).
(3) Carrizo (T. 4 N., R. 20 E.; T. 4 N., R. 21 E.; T. 4\1/
2\ N., R. 19 E.; T. 4\1/2\ N., R. 20 E.; T. 4\1/2\ N., R. 21
E.; T. 5 N., R. 19 E.).
(4) Knob (T. 5 N., R. 18 E.; T. 5 N., R. 19 E.).
(5) Walnut Canyon (T. 5 N., R. 17 E.; T. 5 N., R. 18 E.).
(6) Gleason Flat (T. 4\1/2\ N., R. 16 E.; T. 5 N., R. 16
E.).
(f) No Effect on Future Allocations.--Water received under
a lease or exchange of tribal CAP water under this Act shall
not affect any future allocation or reallocation of CAP water
by the Secretary.
(g) After-acquired Trust Land.--
(1) Requirement of act of congress.--
(A) Legal title.--After the enforceability date, if the
Tribe seeks to have legal title to additional land in the
State of Arizona located outside the exterior boundaries of
the reservation taken into trust by the United States for its
benefit, the Tribe may do so only pursuant to an Act of
Congress specifically authorizing the transfer for the
benefit of the Tribe.
(B) Exceptions.--Subparagraph (A) shall not apply to--
(i) restoration of land to the reservation subsequently and
finally determined to be part of the reservation through
resolution of any dispute between the Tribe and the United
States over the location of the reservation boundary unless
required by Federal law; or
(ii) off-reservation trust land acquired prior to January
1, 2008.
(2) Water rights.--
(A) In general.--Under this section, after-acquired trust
land outside the reservation shall not include federally
reserved rights to surface water or groundwater.
(B) Restored land.--Land restored to the reservation as the
result of resolution of any reservation boundary dispute
between the Tribe and the United States, or any fee simple
land within the reservation that are placed into trust, shall
have water rights pursuant to section 8(b).
(3) Acceptance of land in trust status.--
(A) In general.--If the Tribe acquires legal fee title to
land that is located within the exterior boundaries of the
reservation, the Secretary shall accept the land in trust
status for the benefit of the Tribe in accordance with
applicable
[[Page H295]]
Federal law (including regulations) for such real estate
acquisitions.
(B) Reservation status.--Land taken or held in trust by the
Secretary under paragraph (3), or restored to the reservation
as a result of resolution of a boundary dispute between the
Tribe and the United States, shall be deemed to be part of
the reservation.
(h) Conforming Amendment.--Section 3(b)(2) of the White
Mountain Apache Tribe Rural Water System Loan Authorization
Act (Public Law 110-390; 122 Stat. 4191) is amended by
striking ``January 1, 2013'' and inserting ``May 1, 2020''.
SEC. 12. AUTHORIZATION OF APPROPRIATIONS.
(a) Rural Water System.--
(1) In general.--There is authorized to be appropriated for
the planning, engineering, design, environmental compliance,
and construction of the WMAT rural water system $126,193,000.
(2) Inclusions.--The amount authorized to be appropriated
under paragraph (1) shall include such sums as are necessary,
but not to exceed 4 percent of construction contract costs,
for the Bureau to carry out oversight of activities for
planning, design, environmental compliance, and construction
of the rural water system.
(b) WMAT Settlement and Maintenance Funds.--
(1) Definition of funds.--In this subsection, the term
``Funds'' means--
(A) the WMAT Settlement Fund established by paragraph
(2)(A); and
(B) the WMAT Maintenance Fund established by paragraph
(3)(A).
(2) WMAT settlement fund.--
(A) Establishment.--There is established in the Treasury of
the United States a fund to be known as the ``WMAT Settlement
Fund'', consisting of such amounts as are deposited in the
fund under subparagraph (B), together with any interest
accrued on those amounts, for use by the Tribe in accordance
with subparagraph (C).
(B) Transfers to fund.--There is authorized to be
appropriated to the Secretary $113,500,000 for deposit in the
WMAT Settlement Fund, of which not less than $4,950,000 shall
be used for the rehabilitation of existing irrigation
systems.
(C) Use of funds.--The Tribe shall use amounts in the WMAT
Settlement Fund for any of the following purposes:
(i) Fish production, including hatcheries.
(ii) Rehabilitation of recreational lakes and existing
irrigation systems.
(iii) Water-related economic development projects.
(iv) Protection, restoration, and economic development of
forest and watershed health.
(v) Any cost overruns for the completion of the WMAT rural
water system, as provided in subsection (f).
(3) WMAT maintenance fund.--
(A) Establishment.--There is established in the Treasury of
the United States a fund to be known as the ``WMAT
Maintenance Fund'', consisting of such amounts as are
deposited in the fund under subparagraph (B), together with
any interest accrued on those amounts, for use by the Tribe
in accordance with subparagraph (C).
(B) Transfers to fund.--There is authorized to be
appropriated to the Secretary $50,000,000 for deposit in the
WMAT Maintenance Fund.
(C) Use of funds.--The Tribe or the Secretary, as
applicable, shall use amounts in the WMAT Maintenance Fund
only for the operation, maintenance, and replacement costs
associated with the delivery of water through the rural water
system.
(4) Administration.--The Secretary shall manage the Funds
in accordance with the American Indian Trust Fund Management
Reform Act of 1994 (25 U.S.C. 4001 et seq.), including by
investing amounts in the Funds in accordance with--
(A) the Act of April 1, 1880 (25 U.S.C. 161); and
(B) the first section of the Act of June 24, 1938 (25
U.S.C. 162a).
(5) Availability of amounts from funds.--Amounts in the
Funds shall be available for expenditure or withdrawal only
after the enforceability date in accordance with subsection
(g).
(6) Expenditure and withdrawal.--
(A) Tribal management plan.--
(i) 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.).
(ii) Requirements.--In addition to the requirements under
the American Indian Trust Fund Management Reform Act of 1994
(25 U.S.C. 4001 et seq.), a tribal management plan under this
subparagraph shall require that the Tribe shall spend any
amounts withdrawn from the Funds in accordance with the
purposes described in paragraph (2)(C) or (3)(C).
(iii) Enforcement.--The Secretary may take judicial or
administrative action to enforce the provisions of a tribal
management plan under this subparagraph to ensure that any
amounts withdrawn from the Funds under the plan are used in
accordance with this Act and the Agreement.
(iv) 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.
(B) Expenditure plan.--
(i) In general.--The Tribe shall submit to the Secretary
for approval an expenditure plan for any portion of the
amounts in the Funds that the Tribe does not withdraw under
the tribal management plan.
(ii) 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.
(iii) Approval.--On receipt of an expenditure plan under
clause (i), the Secretary shall approve the plan if the
Secretary determines that the plan is reasonable and
consistent with this Act and the Agreement.
(iv) Annual report.--For each of the Funds, the Tribe shall
submit to the Secretary an annual report that describes all
expenditures from the Fund during the year covered by the
report.
(C) Certain per capita distributions prohibited.--No amount
in the Funds shall be distributed to any member of the Tribe
on a per capita basis.
(c) Cost Indexing.--All amounts authorized to be
appropriated under subsections (a) and (b) shall be adjusted
as may be required to reflect the changes since October 1,
2007, in the construction cost indices applicable to the
types of construction involved in the construction of the
WMAT rural water supply system, the maintenance of the rural
water supply system, and the construction or rehabilitation
of the other development projects authorized under subsection
(b)(2)(C).
(d) Emergency Fund for Indian Safety and Health.--
(1) Definition of emergency fund for indian safety and
health.--In this subsection, the term ``Emergency Fund for
Indian Safety and Health'' means the Emergency Fund for
Indian Safety and Health established by section 601(a) of the
Tom Lantos and Henry J. Hyde United States Global Leadership
Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization
Act of 2008 (22 U.S.C. 7601 et seq.).
(2) Initial transfer.--Not later than 90 days after the
date of enactment of this Act, such amounts as are available,
but not to exceed $50,000,000, in the Emergency Fund for
Indian Safety and Health shall be transferred to the White
Mountain Apache Tribe Water Rights Settlement Subaccount.
(3) Subsequent transfer.--Effective beginning on January 1,
2012, if the Secretary determines that, on an annual basis,
the amount authorized to be appropriated under subsection (a)
will not be appropriated and deposited in the White Mountain
Apache Tribe Water Rights Settlement Subaccount by October
31, 2012, not more than $50,000,000 of the amounts in the
Emergency Fund for Indian Safety and Health shall be
transferred to the White Mountain Apache Tribe Water Rights
Settlement Subaccount, as necessary to complete the WMAT
rural water system project.
(4) Limitation.--The total amount transferred from the
Emergency Fund for Indian Safety and Health to the White
Mountain Apache Tribe Water Rights Settlement Subaccount
under paragraphs (2) and (3) shall not exceed $100,000,000.
(e) Operation, Maintenance, and Replacement.--
(1) In general.--There is authorized to be appropriated to
the Secretary $2,500,000 for the operation, maintenance, and
replacement costs of the WMAT rural water system, to remain
available until the conditions described in subsection (g)
have been met.
(2) Subsequent funding.--Beginning on November 1, 2019, or
the enforceability date, whichever is later, the Tribe or the
Secretary, as applicable, may use amounts deposited in the
WMAT Maintenance Fund under subsection (b)(3)(B) for
operation, maintenance, and replacement costs of the WMAT
rural water system.
(f) Cost Overruns.--On a determination by the Secretary
that the amount authorized to be appropriated under
subsection (a) is not sufficient for the completion of the
WMAT rural water system, there are authorized to be
appropriated such sums as are necessary, but not to exceed an
additional $25,000,000, to complete the WMAT rural water
system, to be derived by transfer from the amounts authorized
to be appropriated to the Secretary for deposit in the WMAT
Settlement Fund under subsection (b)(2)(B) in such amounts as
the Secretary, in concurrence with the Tribe, determines to
be appropriate.
(g) Conditions.--The amounts authorized to be appropriated
to the Secretary for deposit in the WMAT Maintenance Fund,
together with any interest accrued thereon, under subsection
(b)(3), and any interest accruing on the WMAT Settlement Fund
under subsection (b)(2), shall not be available for
expenditure or withdrawal until the later of--
(1) November 1, 2019; and
(2) the date on which the Secretary determines that the
conditions described in section 9(d) have been met.
SEC. 13. ANTIDEFICIENCY.
The United States shall not be liable for failure to carry
out any obligation or activity authorized to be carried out,
subject to appropriations, under this Act (including any such
obligation or activity under the Agreement) if adequate
appropriations for that purpose are not provided by Congress.
SEC. 14. REPEAL ON FAILURE OF ENFORCEABILITY DATE.
If the Secretary fails to publish in the Federal Register a
statement of findings as required under section 9(d) by not
later than April 30, 2020--
(1) effective beginning on May 1, 2020--
(A) this Act is repealed; and
(B) any action carried out by the Secretary, and any
contract entered into, pursuant to this Act shall be void;
(2) any amounts appropriated under subsections (a), (b),
(d), and (e) of section 12, together with any interest
accrued on those amounts, shall immediately revert to the
general fund of the Treasury; and
(3) any other amounts deposited in the White Mountain
Apache Tribe Water Settlement Subaccount (including any
amounts paid by the
[[Page H296]]
State in accordance with the Agreement), together with any
interest accrued on those amounts, shall immediately be
returned to the respective sources of those funds.
SEC. 15. COMPLIANCE WITH ENVIRONMENTAL LAWS.
In carrying out this Act, the Secretary shall promptly
comply with all applicable requirements of--
(1) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.);
(2) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.);
(3) all other applicable Federal environmental laws; and
(4) all regulations promulgated under the laws described in
paragraphs (1) through (3).
The SPEAKER pro tempore. After 1 hour of debate on the bill, as
amended, it shall in order be to consider the amendment printed in part
D of House Report 111-399 if offered by the gentleman from California
(Mr. McClintock), or his designee, which shall be considered read, and
shall be debatable for 10 minutes equally divided and controlled by the
proponent and an opponent.
The gentleman from West Virginia (Mr. Rahall) and the gentleman from
Washington (Mr. Hastings) each will control 30 minutes.
The Chair recognizes the gentleman from West Virginia.
General Leave
Mr. RAHALL. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days to revise and extend their remarks and insert
extraneous material on H.R. 1065.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from West Virginia?
There was no objection.
Mr. RAHALL. I yield myself such time as I may consume.
Mr. Speaker, I am pleased to bring before the House legislation that
would adjudicate the water rights of the White Mountain Apache Tribe,
and end years of active litigation by ratifying the settlement
agreement. This is a bipartisan measure, sponsored by the gentlelady
from Arizona, Ann Kirkpatrick, for whom I extend tremendous applause
for the manner in which she has led the House on this issue, brought it
before our attention, and secured the cosponsorship of the entire
Arizona House delegation.
The waters of the White Mountain Apache Reservation feed to the Salt
River of Arizona. The Salt River is a primary water source for the
metropolitan area of Phoenix, Arizona, along with thousands of acres of
agricultural land. Coming to closure on water rights is imperative to
protect the water supply for thousands of people in Arizona. Equally
important is the fulfillment of commitments made to the White Mountain
Apache people to provide them a clean reliable water supply, and to
repair their irrigation system, which has fallen into disrepair.
In this settlement all parties came together with a mutual desire for
success. Indeed, the parties to this settlement agreement include the
White Mountain Apache, the State of Arizona, the cities of Phoenix,
Scottsdale, Tempe, and others, and various water user organizations and
entities. As with the two bills we just considered, I want to again
acknowledge the administration's position that for over 20 years the
Federal Government has stated that negotiated Indian water rights
settlements are preferable to protracted and divisive litigation. The
pending measure does just this, with a negotiated settlement and an end
to decades of litigation.
I thank the gentlelady from Arizona, Ann Kirkpatrick, and her
colleagues in the Arizona delegation for their hard work in bringing
this measure forward. I also again would recognize the tireless efforts
of our subcommittee chairwoman, the gentlelady from California, Grace
Napolitano, for her countless hours of hearings and staff meetings and
other meetings with the affected parties on this issue. And I would
thank the White Mountain Apache people for their continued dedication
to this settlement and legislation.
Access to water should not be a privilege in this country, but is a
basic, fundamental right. These people have clearly earned our respect
and support for this legislation. I urge the passage thereof.
I reserve the balance of my time.
Mr. HASTINGS of Washington. I yield myself such time as I may
consume.
Mr. Speaker, once again this is the third of three settlement bills.
The arguments that I had made on the first two bills are applicable to
this one. I will just add one other point. And that is that these three
bills have a cost to the taxpayer of a half a billion dollars, $500
million. And there certainly is an unrest in this country as to what
this Congress has done in a fiscal manner. This is small. We are
talking about millions, when other programs we are talking about in
this Congress unfortunately total trillions. But if we need to get our
house in order, this is simply something that we need to have more
information on before we pass judgment on it.
With that, Mr. Speaker, I will reserve the balance of my time.
Mr. RAHALL. Mr. Speaker, I am happy to yield such time as she may
consume to the lead cosponsor of this legislation who has worked so
hard on this issue, the gentlewoman from Arizona (Mrs. Kirkpatrick).
{time} 1145
Mrs. KIRKPATRICK of Arizona. Mr. Speaker, I rise today in support of
H.R. 1065, the White Mountain Apache Water Rights Quantification Act.
Water is a precious resource to all of us in the Southwest. In my
district, farmers have to fight to keep their crops growing,
firefighters are constantly challenged by raging wildfires, and local
officials consider the drinking water supply in every discussion of the
community's future. We know we need to make each drop count. That is
why I am proud to have worked with the White Mountain Apache and other
stakeholders to introduce this bill.
The White Mountain Apache Water Rights Quantification Act finalizes a
settling agreement that will end a long-running water rights dispute in
greater Arizona and provides a path toward a reliable long-term water
supply for the White Mountain Apache tribe and areas across the State.
The agreement under consideration continues a long history of
settlements of Indian water rights disputes in our State. We have found
time and again that these settlements, as opposed to litigation, help
the tribes and their neighbors achieve real certainty in their water
supply. They are able to better plan for the years to come. The
negotiating process also builds working relationships between the
parties involved, allowing them to cooperate and more effectively
manage their watersheds for the future. With this legislation, folks
here will finally begin to see these benefits.
Along with approving the agreement, this bill authorizes construction
of the Miner Flat dam and pipeline, which will provide a 100-year
municipal drinking water supply to towns on the White Mountain Apache
tribal lands. That is critically important because our need for
drinking water is both immediate and serious. People in the area are
being threatened with water shortages even now, in the winter of what
was a great water year in the rest of the State.
Nearly 15,000 tribal members will be served by the project, and it
cannot come a moment too soon for them. Furthermore, it lets us move
forward with a number of projects that are crucial economic drivers for
the region: fish hatcheries, irrigation projects, and infrastructure
improvements to a local ski park. We will be able to create jobs and
get folks back to work.
I was born and raised on White Mountain Apache tribal lands, and my
hometown is one of those that would gain from this project. I have seen
firsthand the challenges that these communities face, and I am
confident that this legislation will make a real difference in
addressing them.
At this point, I would like to address the cost issue that has been
raised by my esteemed colleague from Washington. When I was a kid, we
had to boil our water, and if we didn't, we got sick. We got real sick.
That was over 50 years ago. We didn't have the convenience of purified
water that comes delivered in big jugs that I've seen in most
congressional offices here in Washington. That situation, where folks
living in the United States today do not have access to running water
that they can drink, is not acceptable.
My confidence that this legislation will make a real difference in
addressing those critical needs is shared by many in Arizona where the
bill has earned widespread support. Every single member of our State's
delegation in
[[Page H297]]
the House is cosponsoring H.R. 1065, and I want to point out that that
includes my esteemed colleague Congressman Jeff Flake, who I think is
the watchdog of the House on spending in Congress.
I have worked closely with Senator Kyl to move forward on this
critical project in both Chambers. Folks on both sides of the aisle
recognize the importance of securing our water supply. They also
recognize the effort and care it has taken to get to this point. The
settlement has taken 21 different stakeholder groups years of
negotiation and compromise to reach. It is carefully crafted to best
fit the needs and demands of all those involved. It is time for folks
in my district to get the infrastructure and water supply they have
been working toward for so long.
I urge my colleagues to pass this bill.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield such
time as he may consume to the gentleman from California (Mr.
McClintock).
Mr. McCLINTOCK. I thank the gentleman for yielding.
Mr. Speaker, we are told over and over that this is an agreement that
has been painstakingly and meticulously worked out. That's the sort of
agreement that we would have if I were to sue the Federal Government
for $10 million, go to my next-door neighbor and say, can't you agree
that the Federal Government should send us at least $5 million? We
reach an agreement, and then present it to Congress as a settlement of
an outstanding claim. That's essentially what's going on here.
Let me read to you the testimony of Michael Connor, the Commissioner
of the Bureau of Reclamation, to the Subcommittee on Water and Power
regarding this bill in July of last year. He said: While we're aware
that the settling parties worked closely with the Federal negotiating
team in developing the parameters of this settlement, we have also been
informed by the team that issues involving the cost of this settlement
were not considered. We believe that these costs need to be discussed
and negotiated and that the benefits of the settlement must justify the
costs.
Those negotiations never took place between the Federal Government
and the stakeholders. Those negotiations took place among the
stakeholders themselves, and they all agreed that the Federal
Government should send them lots and lots of money.
The same Commissioner of the Bureau of Reclamation then sent a letter
on November 10, 2009, to the chairwoman of the Subcommittee on Water
and Power and warned about these things again. He said: Other than the
$4.95 million provided for rehabilitation of irrigation systems on the
reservation, the administration does not believe the money authorized
for the development fund is consideration for this settlement.
I would also point out that under the terms of this measure--that
again are questioned by the administration--the Federal Government is
responsible for handing over that money, and then the tribe, in the
provisions of the bill, has the authority to withdraw those funds for
purposes unrelated to water development. That's why those of us in the
minority, although we are very sympathetic to the history that has
brought us to this point and seek an equitable settlement for all sides
in this dispute, seriously question why a settlement between the United
States Government and the stakeholders involved was not fully
negotiated by the United States Government and why this measure written
by Congress is being submitted to the administration when it is the
administration's responsibility to be involved in the negotiations of
all of the details of the ultimate settlement.
Mr. RAHALL. Mr. Speaker, I reserve the balance of my time.
Mr. HASTINGS of Washington. Mr. Speaker, I yield myself the balance
of my time.
Mr. Speaker, I will just simply repeat what I said at the outset. I
must reluctantly rise to oppose all three of these settlement bills
based on the simple fact that we don't have all the information we
need.
While we applaud people on the local level settling tough disputes,
especially water issues, and I am especially sensitive to that, Mr.
Speaker, because I am from the western part of the United States, it is
in the best interests of all of the people in this country to know what
the cost to them would be because they're all taxpayers. I think that's
self-evident.
So this debate, at least from our side of the aisle, didn't question
the merits of those settlement agreements mainly because, at least from
this Member's perspective, I know how difficult that is when you have
these types of disputes. Our issue is simply the transparency of what
the cost will be to the taxpayers of this country. We deserve to have
that before these settlement issues come to the floor of the House. We
deserve to have this information so we can do due diligence in
committee and then make a judgment if the settlement is in fact in the
best interests of the taxpayers. That is really all this debate has
been about on these three bills.
So with that, Mr. Speaker, I would just simply say that we don't have
transparency on this potential half-a-billion-dollar assessment that's
going to go to the taxpayer. We should have that and we don't. So it is
for that reason, Mr. Speaker, that I rise in opposition to this bill
and urge my colleagues to vote ``no.''
Mr. Speaker, I yield back the balance of my time.
Mr. RAHALL. Mr. Speaker, before yielding to the gentleman from
Michigan to close on our side, I would just reiterate what has already
been said by the gentlewoman from Arizona, that she is joined in her
cosponsorship of this legislation by the gentleman considered the
watchdog of fiscal spending in this body, Mr. Jeff Flake, in
cosponsoring this bill.
At this point, I yield the balance of my time to the co-Chair of our
Native American Caucus in the Congress and a valued member of our
Committee on Natural Resources, the gentleman from Michigan, Mr. Dale
Kildee.
Mr. KILDEE. I thank the gentleman for yielding.
Mr. Speaker, I support strongly the passage of H.R. 1065 and the
other two bills, H.R. 3342 and H.R. 3254.
In the 33 years that I've been in Congress, I've worked hard with Mr.
Rahall--he and I came to Congress together--trying to work out these
water rights. I have always tried to make sure that we were fair to
everybody, particularly fair to the Native Americans who have been
deprived of their water rights in too many instances, and Mr. Rahall
has made this a priority to make sure that we get equity and justice
here.
Water is extremely important all over the world. It's extremely
important, of course, in the Southwest. I just feel that the hard work
that went into this bill and the sense of equity and the sense of
justice and fairness to all those involved has produced three very good
bills, and I strongly urge support of them.
Mr. RAHALL. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. All time for debate on the bill has expired.
The Chair understands that the amendment will not be offered.
Pursuant to House Resolution 1017, the previous question is ordered
on the bill, as amended.
The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. RAHALL. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question will be postponed.
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