[Congressional Record Volume 165, Number 102 (Tuesday, June 18, 2019)]
[Senate]
[Pages S3715-S3718]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 706. Mr. ROMNEY (for himself, Ms. McSally, and Ms. Sinema)
submitted an amendment intended to be proposed by him to the bill S.
1790, to authorize appropriations for fiscal year 2020 for military
activities of the Department of Defense, for military construction, and
for defense activities of the Department of Energy, to prescribe
military personnel strengths for such fiscal year, and for other
purposes; which was ordered to lie on the table; as follows:
At the end of subtitle H of title X, add the following:
SEC. 10__. NAVAJO NATION WATER RIGHTS SETTLEMENT.
(a) Purposes.--The purposes of this section are--
(1) to achieve a fair, equitable, and final settlement of
all claims to water rights in the State of Utah for--
(A) the Navajo Nation; and
(B) the United States, for the benefit of the Nation;
(2) to authorize, ratify, and confirm the Agreement entered
into by the Nation and the State, to the extent that the
Agreement is consistent with this section;
(3) to authorize and direct the Secretary--
(A) to execute the Agreement; and
(B) to take any actions necessary to carry out the
agreement in accordance with this section; and
(4) to authorize funds necessary for the implementation of
the Agreement and this section.
(b) Definitions.--In this section:
(1) Agreement.--The term ``agreement'' means--
(A) the document entitled ``Navajo Utah Water Rights
Settlement Agreement'' dated December 14, 2015, and the
exhibits attached thereto; and
(B) any amendment or exhibit to the document or exhibits
referenced in subparagraph (A) to make the document or
exhibits consistent with this section.
(2) Allotment.--The term ``allotment'' means a parcel of
land--
(A) granted out of the public domain that is--
(i) located within the exterior boundaries of the
Reservation; or
(ii) Bureau of Indian Affairs parcel number 792 634511 in
San Juan County, Utah, consisting of 160 acres located in
Township 41S, Range 20E, sections 11, 12, and 14, originally
set aside by the United States for the benefit of an
individual identified in the allotting document as a Navajo
Indian; and
(B) held in trust by the United States--
(i) for the benefit of an individual, individuals, or an
Indian Tribe other than the Navajo Nation; or
(ii) in part for the benefit of the Navajo Nation as of the
enforceability date.
(3) Allottee.--The term ``allottee'' means an individual or
Indian Tribe with a beneficial interest in an allotment held
in trust by the United States.
(4) Enforceability date.--The term ``enforceability date''
means the date on which the Secretary publishes in the
Federal Register the statement of findings described in
subsection (g)(1).
(5) General stream adjudication.--The term ``general stream
adjudication'' means the adjudication pending, as of the date
of enactment, in the Seventh Judicial District in and for
Grand County, State of Utah, commonly known as the
``Southeastern Colorado River General Adjudication'', Civil
No. 810704477, conducted pursuant to State law.
(6) Injury to water rights.--The term ``injury to water
rights'' means an interference with, diminution of, or
deprivation of water rights under Federal or State law,
excluding injuries to water quality.
(7) Member.--The term ``member'' means any person who is a
duly enrolled member of the Navajo Nation.
(8) Navajo nation or nation.--The term ``Navajo Nation'' or
``Nation'' means a body politic and federally recognized
Indian nation, as published on the list established under
section 104(a) of the Federally Recognized Indian Tribe List
Act of 1994 (25 U.S.C. 5131(a)), also known variously as the
``Navajo Nation'', the ``Navajo Nation of Arizona, New
Mexico, & Utah'', and the ``Navajo Nation of Indians'' and
other similar names, and includes all bands of Navajo Indians
and chapters of the Navajo Nation and all divisions,
agencies, officers, and agents thereof.
(9) Navajo water development projects.--The term ``Navajo
water development projects'' means projects for domestic
municipal water supply, including distribution
infrastructure, and agricultural water conservation, to be
constructed, in whole or in part, using monies from the
Navajo Water Development Projects Account.
(10) Navajo water rights.--The term ``Navajo water rights''
means the Nation's water rights in Utah described in the
agreement and this section.
(11) OM&R.--The term ``OM&R'' means operation, maintenance,
and replacement.
(12) Parties.--The term ``parties'' means the Navajo
Nation, the State, and the United States.
(13) Reservation.--The term ``Reservation'' means, for
purposes of the agreement and this section, the Reservation
of the Navajo Nation in Utah as in existence on the date of
enactment of this Act and depicted on the map attached to the
agreement as Exhibit A, including any parcel of land granted
out of the public domain and held in trust by the United
States entirely for the benefit of
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the Navajo Nation as of the enforceability date.
(14) Secretary.--The term ``Secretary'' means the Secretary
of the United States Department of the Interior or a duly
authorized representative thereof.
(15) State.--The term ``State'' means the State of Utah and
all officers, agents, departments, and political subdivisions
thereof.
(16) United states.--The term ``United States'' means the
United States of America and all departments, agencies,
bureaus, officers, and agents thereof.
(17) United states acting in its trust capacity.--The term
``United States acting in its trust capacity'' means the
United States acting for the benefit of the Navajo Nation or
for the benefit of allottees.
(c) Ratification of Agreement.--
(1) Approval by congress.--Except to the extent that any
provision of the agreement conflicts with this section,
Congress approves, ratifies, and confirms the agreement
(including any amendments to the agreement that are executed
to make the agreement consistent with this section).
(2) Execution by secretary.--The Secretary is authorized
and directed to promptly execute the agreement to the extent
that the agreement does not conflict with this section,
including--
(A) any exhibits to the agreement requiring the signature
of the Secretary; and
(B) any amendments to the agreement necessary to make the
agreement consistent with this section.
(3) Environmental compliance.--
(A) In general.--In implementing the agreement and this
section, the Secretary shall comply with all applicable
provisions of--
(i) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.);
(ii) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.); and
(iii) all other applicable environmental laws and
regulations.
(B) Execution of the agreement.--Execution of the agreement
by the Secretary as provided for in this section shall not
constitute a major Federal action under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(d) Navajo Water Rights.--
(1) Confirmation of navajo water rights.--
(A) Quantification.--The Navajo Nation shall have the right
to use water from water sources located within Utah and
adjacent to or encompassed within the boundaries of the
Reservation resulting in depletions not to exceed 81,500
acre-feet annually as described in the agreement and as
confirmed in the decree entered by the general stream
adjudication court.
(B) Satisfaction of allottee rights.--Depletions resulting
from the use of water on an allotment shall be accounted for
as a depletion by the Navajo Nation for purposes of depletion
accounting under the agreement, including recognition of--
(i) any water use existing on an allotment as of the date
of enactment of this Act and as subsequently reflected in the
hydrographic survey report referenced in subsection (f)(2);
(ii) reasonable domestic and stock water uses put into use
on an allotment; and
(iii) any allotment water rights that may be decreed in the
general stream adjudication or other appropriate forum.
(C) Satisfaction of on-reservation state law-based water
rights.--Depletions resulting from the use of water on the
Reservation pursuant to State law-based water rights existing
as of the date of enactment of this Act shall be accounted
for as depletions by the Navajo Nation for purposes of
depletion accounting under the agreement.
(D) In general.--The Navajo water rights are ratified,
confirmed, and declared to be valid.
(E) Use.--Any use of the Navajo water rights shall be
subject to the terms and conditions of the agreement and this
section.
(F) Conflict.--In the event of a conflict between the
agreement and this section, the provisions of this section
shall control.
(2) Trust status of navajo water rights.--The Navajo water
rights--
(A) shall be held in trust by the United States for the use
and benefit of the Nation in accordance with the agreement
and this section; and
(B) shall not be subject to forfeiture or abandonment.
(3) Authority of the nation.--
(A) In general.--The Nation shall have the authority to
allocate, distribute, and lease the Navajo water rights for
any use on the Reservation in accordance with the agreement,
this section, and applicable Tribal and Federal law.
(B) Off-reservation use.--The Nation may allocate,
distribute, and lease the Navajo water rights for off-
Reservation use in accordance with the agreement, subject to
the approval of the Secretary.
(C) Allottee water rights.--The Nation shall not object in
the general stream adjudication or other applicable forum to
the quantification of reasonable domestic and stock water
uses on an allotment, and shall administer any water use on
the Reservation in accordance with applicable Federal law,
including recognition of--
(i) any water use existing on an allotment as of the date
of enactment of this Act and as subsequently reflected in the
hydrographic survey report referenced in subsection (f)(2);
(ii) reasonable domestic and stock water uses on an
allotment; and
(iii) any allotment water rights decreed in the general
stream adjudication or other appropriate forum.
(4) Effect.--Except as otherwise expressly provided in this
section, nothing in this section--
(A) authorizes any action by the Nation against the United
States under Federal, State, Tribal, or local law; or
(B) alters or affects the status of any action brought
pursuant to section 1491(a) of title 28, United States Code.
(e) Navajo Trust Accounts.--
(1) Establishment.--The Secretary shall establish a trust
fund, to be known as the ``Navajo Utah Settlement Trust
Fund'' (referred to in this section as the ``Trust Fund''),
to be managed, invested, and distributed by the Secretary and
to remain available until expended, consisting of the amounts
deposited in the Trust Fund under paragraph (3), together
with any interest earned on those amounts, for the purpose of
carrying out this section.
(2) Accounts.--The Secretary shall establish in the Trust
Fund the following Accounts:
(A) The Navajo Water Development Projects Account.
(B) The Navajo OM&R Account.
(3) Deposits.--The Secretary shall deposit in the Trust
Fund Accounts--
(A) in the Navajo Water Development Projects Account, the
amounts made available pursuant to subsection (f)(1)(A); and
(B) in the Navajo OM&R Account, the amount made available
pursuant to subsection (f)(1)(B).
(4) Management and interest.--
(A) Management.--Upon receipt and deposit of the funds into
the Trust Fund Accounts, the Secretary shall manage, invest,
and distribute all amounts in the Trust Fund in a manner that
is consistent with the investment authority of the Secretary
under--
(i) the first section of the Act of June 24, 1938 (25
U.S.C. 162a);
(ii) the American Indian Trust Fund Management Reform Act
of 1994 (25 U.S.C. 4001 et seq.); and
(iii) this subsection.
(B) Investment earnings.--In addition to the deposits under
paragraph (3), any investment earnings, including interest,
credited to amounts held in the Trust Fund are authorized to
be appropriated to be used in accordance with the uses
described in paragraph (8).
(5) Availability of amounts.--Amounts appropriated to, and
deposited in, the Trust Fund, including any investment
earnings, shall be made available to the Nation by the
Secretary beginning on the enforceability date and subject to
the uses and restrictions set forth in this subsection.
(6) Withdrawals.--
(A) Withdrawals under the american indian trust fund
management reform act of 1994.--The Nation may withdraw any
portion of the funds in the Trust Fund on approval by the
Secretary of a tribal management plan submitted by the Nation
in accordance with the American Indian Trust Fund Management
Reform Act of 1994 (25 U.S.C. 4001 et seq.).
(i) 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 under
this subparagraph shall require that the Nation shall spend
all amounts withdrawn from the Trust Fund and any investment
earnings accrued through the investments under the Tribal
management plan in accordance with this section.
(ii) Enforcement.--The Secretary may carry out such
judicial and administrative actions as the Secretary
determines to be necessary to enforce the Tribal management
plan to ensure that amounts withdrawn by the Nation from the
Trust Fund under this subparagraph are used in accordance
with this section.
(B) Withdrawals under expenditure plan.--The Nation may
submit to the Secretary a request to withdraw funds from the
Trust Fund pursuant to an approved expenditure plan.
(i) Requirements.--To be eligible to withdraw funds under
an expenditure plan under this subparagraph, the Nation shall
submit to the Secretary for approval an expenditure plan for
any portion of the Trust Fund that the Nation elects to
withdraw pursuant to this subparagraph, subject to the
condition that the funds shall be used for the purposes
described in this section.
(ii) Inclusions.--An expenditure plan under this
subparagraph shall include a description of the manner and
purpose for which the amounts proposed to be withdrawn from
the Trust Fund will be used by the Nation, in accordance with
paragraphs (3) and (8).
(iii) Approval.--On receipt of an expenditure plan under
this subparagraph, the Secretary shall approve the plan, if
the Secretary determines that the plan--
(I) is reasonable;
(II) is consistent with, and will be used for, the purposes
of this section; and
(III) contains a schedule which described that tasks will
be completed within 18 months of receipt of withdrawn
amounts.
(iv) Enforcement.--The Secretary may carry out such
judicial and administrative actions as the Secretary
determines to be necessary to enforce an expenditure plan to
ensure that amounts disbursed under this
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subparagraph are used in accordance with this section.
(7) Effect of title.--Nothing in this section gives the
Nation the right to judicial review of a determination of the
Secretary regarding whether to approve a Tribal management
plan or an expenditure plan except under subchapter II of
chapter 5, and chapter 7, of title 5, United States Code
(commonly known as the ``Administrative Procedure Act'').
(8) Uses.--Amounts from the Trust Fund shall be used by the
Nation for the following purposes:
(A) The Navajo Water Development Projects Account shall be
used to plan, design, and construct the Navajo water
development projects and for the conduct of related
activities, including to comply with Federal environmental
laws.
(B) The Navajo OM&R Account shall be used for the
operation, maintenance, and replacement of the Navajo water
development projects.
(9) Liability.--The Secretary and the Secretary of the
Treasury shall not be liable for the expenditure or
investment of any amounts withdrawn from the Trust Fund by
the Nation under paragraph (8).
(10) No per capita distributions.--No portion of the Trust
Fund shall be distributed on a per capita basis to any member
of the Nation.
(11) Expenditure reports.--The Navajo Nation shall submit
to the Secretary annually an expenditure report describing
accomplishments and amounts spent from use of withdrawals
under a Tribal management plan or an expenditure plan as
described in this section.
(f) Authorization of Appropriations.--
(1) Authorization.--There are authorized to be appropriated
to the Secretary--
(A) for deposit in the Navajo Water Development Projects
Account of the Trust Fund established under subsection
(e)(2)(A), $198,300,000, which funds shall be retained until
expended, withdrawn, or reverted to the general fund of the
Treasury; and
(B) for deposit in the Navajo OM&R Account of the Trust
Fund established under subsection (e)(2)(B), $11,100,000,
which funds shall be retained until expended, withdrawn, or
reverted to the general fund of the Treasury.
(2) Implementation costs.--There is authorized to be
appropriated non-trust funds in the amount of $1,000,000 to
assist the United States with costs associated with the
implementation of this section, including the preparation of
a hydrographic survey of historic and existing water uses on
the Reservation and on allotments.
(3) State cost share.--The State shall contribute
$8,000,000 payable to the Secretary for deposit into the
Navajo Water Development Projects Account of the Trust Fund
established under subsection (e)(2)(A) in installments in
each of the 3 years following the execution of the agreement
by the Secretary as provided for in subsection (c)(2).
(4) Fluctuation in costs.--The amount authorized to be
appropriated under paragraph (1) shall be increased or
decreased, as appropriate, by such amounts as may be
justified by reason of ordinary fluctuations in costs
occurring after the date of enactment of this Act as
indicated by the Bureau of Reclamation Construction Cost
Index--Composite Trend.
(A) Repetition.--The adjustment process under this
paragraph shall be repeated for each subsequent amount
appropriated until the amount authorized, as adjusted, has
been appropriated.
(B) Period of indexing.--The period of indexing adjustment
for any increment of funding shall end on the date on which
funds are deposited into the Trust Fund.
(g) Conditions Precedent.--
(1) In general.--The waivers and release contained in
subsection (h) shall become effective as of the date the
Secretary causes to be published in the Federal Register a
statement of findings that--
(A) to the extent that the agreement conflicts with this
section, the agreement has been revised to conform with this
section;
(B) the agreement, so revised, including waivers and
releases of claims set forth in subsection (h), has been
executed by the parties, including the United States;
(C) Congress has fully appropriated, or the Secretary has
provided from other authorized sources, all funds authorized
under subsection (f)(1);
(D) the State has enacted any necessary legislation and
provided the funding required under the agreement and
subsection (f)(3); and
(E) the court has entered a final or interlocutory decree
that--
(i) confirms the Navajo water rights consistent with the
agreement and this section; and
(ii) with respect to the Navajo water rights, is final and
nonappealable.
(2) Expiration date.--If all the conditions precedent
described in paragraph (1) have not been fulfilled to allow
the Secretary's statement of findings to be published in the
Federal Register by October 31, 2030--
(A) the agreement and this section, including waivers and
releases of claims described in those documents, shall no
longer be effective;
(B) any funds that have been appropriated pursuant to
subsection (f) but not expended, including any investment
earnings on funds that have been appropriated pursuant to
such subsection, shall immediately revert to the general fund
of the Treasury; and
(C) any funds contributed by the State pursuant to
subsection (f)(3) but not expended shall be returned
immediately to the State.
(3) Extension.--The expiration date set forth in paragraph
(2) may be extended if the Navajo Nation, the State, and the
United States (acting through the Secretary) agree that an
extension is reasonably necessary.
(h) Waivers and Releases.--
(1) In general.--
(A) Waiver and release of claims by the nation and the
united states acting in its capacity as trustee for the
nation.--Subject to the retention of rights set forth in
paragraph (3), in return for confirmation of the Navajo water
rights and other benefits set forth in the agreement and this
section, the Nation, on behalf of itself and the members of
the Nation (other than members in their capacity as
allottees), and the United States, acting as trustee for the
Nation and members of the Nation (other than members in their
capacity as allottees), are authorized and directed to
execute a waiver and release of--
(i) all claims for water rights within Utah based on any
and all legal theories that the Navajo Nation or the United
States acting in its trust capacity for the Nation, asserted,
or could have asserted, at any time in any proceeding,
including to the general stream adjudication, up to and
including the enforceability date, except to the extent that
such rights are recognized in the agreement and this section;
and
(ii) all claims for damages, losses, or injuries to water
rights or claims of interference with, diversion, or taking
of water rights (including claims for injury to lands
resulting from such damages, losses, injuries, interference
with, diversion, or taking of water rights) within Utah
against the State, or any person, entity, corporation, or
municipality, that accrued at any time up to and including
the enforceability date.
(2) Claims by the navajo nation against the united
states.--The Navajo Nation, on behalf of itself (including in
its capacity as allottee) and its members (other than members
in their capacity as allottees), shall execute a waiver and
release of--
(A) all claims the Navajo Nation may have against the
United States relating in any manner to claims for water
rights in, or water of, Utah that the United States acting in
its trust capacity for the Nation asserted, or could have
asserted, in any proceeding, including the general stream
adjudication;
(B) all claims the Navajo Nation may have against the
United States 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, replace, or
develop water or water rights) within Utah that first accrued
at any time up to and including the enforceability date;
(C) all claims the Nation may have against the United
States relating in any manner to the litigation of claims
relating to the Nation's water rights in proceedings in Utah;
and
(D) all claims the Nation may have against the United
States relating in any manner to the negotiation, execution,
or adoption of the agreement or this section.
(3) Reservation of rights and retention of claims by the
navajo nation and the united states.--Notwithstanding the
waivers and releases authorized in this section, the Navajo
Nation, and the United States acting in its trust capacity
for the Nation, retain--
(A) all claims for injuries to and the enforcement of the
agreement and the final or interlocutory decree entered in
the general stream adjudication, through such legal and
equitable remedies as may be available in the decree court or
the Federal District Court for the District of Utah;
(B) all rights to use and protect water rights acquired
after the enforceability date;
(C) all claims relating to activities affecting the quality
of water, including any claims under the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601 et seq. (including claims for damages to
natural resources)), the Safe Drinking Water Act (42 U.S.C.
300f et seq.), and the Federal Water Pollution Control Act
(33 U.S.C. 1251 et seq.), the regulations implementing those
Acts, and the common law;
(D) all claims for water rights, and claims for injury to
water rights, in states other than the State of Utah;
(E) all claims, including environmental claims, under any
laws (including regulations and common law) relating to human
health, safety, or the environment; and
(F) all rights, remedies, privileges, immunities, and
powers not specifically waived and released pursuant to the
agreement and this section.
(4) Effect.--Nothing in the agreement or this section--
(A) affects the ability of the United States acting in its
sovereign capacity to take actions authorized by law,
including any laws relating to health, safety, or the
environment, including the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9601 et seq.), the Safe Drinking Water Act (42 U.S.C. 300f et
seq.), the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.), the Solid Waste
[[Page S3718]]
Disposal Act (42 U.S.C. 6901 et seq.), and the regulations
implementing those laws;
(B) affects the ability of the United States to take
actions in its capacity as trustee for any other Indian Tribe
or allottee;
(C) confers jurisdiction on any State court to--
(i) interpret Federal law regarding health, safety, or the
environment or determine the duties of the United States or
other parties pursuant to such Federal law; and
(ii) conduct judicial review of Federal agency action; or
(D) modifies, conflicts with, preempts, or otherwise
affects--
(i) the Boulder Canyon Project Act (43 U.S.C. 617 et seq.);
(ii) the Boulder Canyon Project Adjustment Act (43 U.S.C.
618 et seq.);
(iii) the Act of April 11, 1956 (commonly known as the
``Colorado River Storage Project Act'') (43 U.S.C. 620 et
seq.);
(iv) the Colorado River Basin Project Act (43 U.S.C. 1501
et seq.);
(v) the Treaty between the United States of America and
Mexico respecting utilization of waters of the Colorado and
Tijuana Rivers and of the Rio Grande, signed at Washington
February 3, 1944 (59 Stat. 1219);
(vi) the Colorado River Compact of 1922, as approved by the
Presidential Proclamation of June 25, 1929 (46 Stat. 3000);
and
(vii) the Upper Colorado River Basin Compact as consented
to by the Act of April 6, 1949 (63 Stat. 31, chapter 48).
(5) Tolling of claims.--
(A) In general.--Each applicable period of limitation and
time-based equitable defense relating to a claim waived by
the Navajo Nation described in this subsection shall be
tolled for the period beginning on the date of enactment of
this Act and ending on the enforceability date.
(B) Effect.--Nothing in this paragraph revives any claim or
tolls any period of limitation or time-based equitable
defense that expired before the date of enactment of this
Act.
(C) Limitation.--Nothing in this subsection precludes the
tolling of any period of limitations or any time-based
equitable defense under any other applicable law.
(i) Miscellaneous Provisions.--
(1) Precedent.--Nothing in this section establishes any
standard for the quantification or litigation of Federal
reserved water rights or any other Indian water claims of any
other Indian Tribe in any other judicial or administrative
proceeding.
(2) Other indian tribes.--Nothing in the agreement or this
section shall be construed in any way to quantify or
otherwise adversely affect the water rights, claims, or
entitlements to water of any Indian Tribe, band, or
community, other than the Navajo Nation.
(j) Relation to Allottees.--
(1) No effect on claims of allottees.--Nothing in this
section or the agreement shall affect the rights or claims of
allottees, or the United States, acting in its capacity as
trustee for or on behalf of allottees, for water rights or
damages related to lands allotted by the United States to
allottees, except as provided in subsection (d)(1)(B).
(2) Relationship of decree to allottees.--Allottees, or the
United States, acting in its capacity as trustee for
allottees, are not bound by any decree entered in the general
stream adjudication confirming the Navajo water rights and
shall not be precluded from making claims to water rights in
the general stream adjudication. Allottees, or the United
States, acting in its capacity as trustee for allottees, may
make claims and such claims may be adjudicated as individual
water rights in the general stream adjudication.
(k) Antideficiency.--The United States shall not be liable
for any failure to carry out any obligation or activity
authorized by this section (including any obligation or
activity under the agreement) if adequate appropriations are
not provided expressly by Congress to carry out the purposes
of this section.
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