[Congressional Record Volume 168, Number 197 (Monday, December 19, 2022)]
[Senate]
[Pages S7287-S7288]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       COLORADO RIVER INDIAN TRIBES WATER RESILIENCY ACT OF 2021

  Mr. SCHATZ. Madam President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 682, S. 3308.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The senior assistant legislative clerk read as follows:

       A bill (S. 3308) to authorize the Colorado River Indian 
     Tribes to enter into lease or exchange agreements and storage 
     agreements relating to water of the Colorado River allocated 
     to the Colorado River Indian Tribes, and for other purposes.

  There being no objection, the Senate proceeded to consider the bill, 
which had been reported from the Committee on Indian Affairs, with an 
amendment to strike all after the enacting clause and insert in lieu 
thereof the following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Colorado River Indian Tribes 
     Water Resiliency Act of 2022''.

     SEC. 2. PURPOSES.

       The purposes of this Act are to authorize--
       (1) the CRIT to enter into lease or exchange agreements, 
     storage agreements, and agreements for conserved water for 
     the economic well-being of the CRIT; and
       (2) the Secretary to approve any lease or exchange 
     agreements, storage agreements, or agreements for conserved 
     water entered into by the CRIT.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Agreement for conserved water.--The term ``agreement 
     for conserved water'' means an agreement for the creation of 
     system conservation, storage of conserved water in Lake Mead, 
     or other mechanisms for voluntarily leaving a portion of the 
     CRIT reduced consumptive use in Lake Mead.
       (2) Allottee.--The term ``allottee'' means an individual 
     who holds a beneficial real property interest in an allotment 
     of Indian land that is--
       (A) located within the exterior boundaries of the 
     Reservation; and
       (B) held in trust by the United States.
       (3) Consolidated decree.--The term ``Consolidated Decree'' 
     means the decree entered by the Supreme Court of the United 
     States in Arizona v. California, 547 U.S. 150 (2006).
       (4) Consumptive use.--The term ``consumptive use'' means a 
     portion of the decreed allocation that has a recent history 
     of use by the CRIT within the exterior boundary of the 
     Reservation. Any verified reduction in consumptive use 
     pursuant to a lease or exchange agreement, a storage 
     agreement, or an agreement for conserved water shall be 
     deemed to be a consumptive use in the year in which the 
     reduction occurred, subject to the condition that the 
     reduction is reflected in the Water Accounting Report.
       (5) CRIT.--The term ``CRIT'' means the Colorado River 
     Indian Tribes, a federally recognized Indian Tribe.
       (6) Decreed allocation.--The term ``decreed allocation'' 
     means the volume of water of the mainstream of the Colorado 
     River allocated to the CRIT that is accounted for as part of 
     the apportionment for the State in part I-A of the Appendix 
     of the Consolidated Decree.
       (7) Lower basin.--The term ``Lower Basin'' has the meaning 
     given the term in article II(g) of the Colorado River Compact 
     of 1922, as approved by Congress in section 13 of the Boulder 
     Canyon Project Act (43 U.S.C. 617l) and by the Presidential 
     Proclamation of June 25, 1929 (46 Stat. 3000).
       (8) Person.--The term ``person'' means an individual, a 
     public or private corporation, a company, a partnership, a 
     joint venture, a firm, an association, a society, an estate 
     or trust, a private organization or enterprise, the United 
     States, an Indian Tribe, a governmental entity, or a 
     political subdivision or municipal corporation organized 
     under, or subject to, the constitution and laws of the State.
       (9) Reservation.--The term ``Reservation'' means the 
     portion of the reservation established for the CRIT that is 
     located in the State.
       (10) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.
       (11) State.--Except for purposes of section 16, the term 
     ``State'' means the State of Arizona.
       (12) Storage.--The term ``storage'' means the underground 
     storage, in accordance with State law, of a portion of the 
     consumptive use off the Reservation within the Lower Basin in 
     the State.
       (13) Water accounting report.--The term ``Water Accounting 
     Report'' means the annual report of the Bureau of Reclamation 
     entitled the ``Colorado River Accounting and Water Use 
     Report: Arizona, California, and Nevada'' which includes the 
     compilation of records in accordance with article V of the 
     Consolidated Decree.

     SEC. 4. LEASE OR EXCHANGE AGREEMENTS.

       (a) Authorization.--Notwithstanding section 2116 of the 
     Revised Statutes (commonly known as the ``Indian Trade and 
     Intercourse Act'') ( 25 U.S.C. 177) or any other provision of 
     law, the CRIT is authorized, subject to the approval of the 
     Secretary under section 7(a), and has the sole authority, to 
     enter into, with any person, an agreement to lease or 
     exchange, or an option to lease or exchange, a portion of the 
     consumptive use for a use off the Reservation (referred to in 
     this Act as a ``lease or exchange agreement''), subject to 
     the conditions that the use off the Reservation is located in 
     the Lower Basin in the State and is not located in the 
     counties of Navajo, Apache, or Cochise in the State.
       (b) Term of Lease or Exchange Agreement.--The term of any 
     lease or exchange agreement entered into under subsection (a) 
     shall be mutually agreed, except that the term shall not 
     exceed 100 years.
       (c) Modifications.--Any lease or exchange agreement entered 
     into under subsection (a) may be renegotiated or modified at 
     any time during the term of the lease or exchange agreement, 
     subject to the approval of the Secretary under section 7(a), 
     subject to the condition that the term of the renegotiated 
     lease or exchange agreement does not exceed 100 years.
       (d) Applicable Law.--Any person entering into a lease or 
     exchange agreement with the CRIT under this section shall use 
     the water received under the lease or exchange agreement in 
     accordance with applicable Federal and State law.

     SEC. 5. STORAGE AGREEMENTS.

       (a) Authorization.--Notwithstanding section 2116 of the 
     Revised Statutes (commonly known as the ``Indian Trade and 
     Intercourse Act'') (25 U.S.C. 177) or any other provision of 
     law, the CRIT is authorized, subject to the approval of the 
     Secretary under section 7(a), and has the sole authority, to 
     enter into an agreement, including with the Arizona Water 
     Banking Authority (or a successor agency or entity), for the 
     storage of a portion of the consumptive use, or the water 
     received under an exchange pursuant to an exchange agreement 
     under section 4, at 1 or more underground storage facilities 
     or groundwater savings facilities off the Reservation 
     (referred to in this Act as a ``storage agreement''), subject 
     to the conditions that the facility is located in the Lower 
     Basin in the State and is not located in the counties of 
     Navajo, Apache, or Cochise in the State.
       (b) Modifications.--Any storage agreement entered into 
     under subsection (a) may be renegotiated or modified at any 
     time during the term of the storage agreement, subject to the 
     approval of the Secretary under section 7(a).
       (c) Applicable Law.--Any storage agreement entered into 
     under subsection (a) shall be in accordance with applicable 
     Federal and State law.
       (d) Delegation of Rights.--The CRIT may assign or sell any 
     long-term storage credits accrued as a result of a storage 
     agreement, subject to the condition that the assignment or 
     sale is in accordance with applicable State law.

     SEC. 6. AGREEMENTS FOR CREATION OF WATER FOR THE COLORADO 
                   RIVER SYSTEM FOR STORING WATER IN LAKE MEAD.

       (a) Authorization.--Notwithstanding section 2116 of the 
     Revised Statutes (commonly known as the ``Indian Trade and 
     Intercourse Act'') (25 U.S.C. 177) or any other provision of 
     law, the CRIT is authorized, subject to the approval of the 
     Secretary under section 7(a), and has the sole authority, to 
     enter into, with any person, an agreement for conserved 
     water, subject to the conditions that if the conserved water 
     is delivered, the delivery is to a location in the Lower 
     Basin in the State and is not to a location in the counties 
     of Navajo, Apache, or Cochise in the State.
       (b) Term of an Agreement for Conserved Water.--The term of 
     any agreement for conserved water entered into under 
     subsection (a) shall be mutually agreed, except that the term 
     shall not exceed 100 years.
       (c) Modifications.--Any agreement for conserved water 
     entered into under subsection (a) may be renegotiated or 
     modified at any time during the term of the agreement for 
     conserved water, subject to the approval of the Secretary 
     under section 7(a).
       (d) Applicable Law.--Any agreement for conserved water 
     entered into under subsection (a), and any use of conserved 
     water, shall be in accordance with Federal law, including any 
     program authorized by Federal law.

     SEC. 7. SECRETARIAL APPROVAL; DISAPPROVAL; AGREEMENTS.

       (a) Authorization.--The Secretary shall approve or 
     disapprove any--

[[Page S7288]]

       (1) lease or exchange agreement;
       (2) modification to a lease or exchange agreement;
       (3) storage agreement;
       (4) modification to a storage agreement;
       (5) agreement for conserved water; or
       (6) modification to an agreement for conserved water.
       (b) Secretarial Agreements.--The Secretary is authorized to 
     enter into a lease or exchange agreement, a storage 
     agreement, or an agreement for conserved water with the CRIT, 
     subject to the condition that the Secretary pays the fair 
     market value for the CRIT reduced consumptive use.
       (c) Requirements.--
       (1) Lease or exchange agreements and storage agreements.--
     The Secretary shall not approve any lease or exchange 
     agreement, or any modification to a lease or exchange 
     agreement, or any storage agreement, or any modification to a 
     storage agreement, that is not in compliance with--
       (A) this Act; and
       (B) the agreement entered into between the CRIT, the State, 
     and the Secretary under section 10(a).
       (2) Agreements for conserved water.--The Secretary shall 
     not approve any agreement for conserved water, or any 
     modification to an agreement for conserved water, that is not 
     in compliance with--
       (A) this Act; and
       (B) other applicable Federal law, including any program 
     authorized by Federal law.
       (3) Permanent alienation.--The Secretary shall not approve 
     any lease or exchange agreement, or any modification to a 
     lease or exchange agreement, any storage agreement, or any 
     modification to a storage agreement, or any agreement for 
     conserved water, or any modification to an agreement for 
     conserved water, that permanently alienates any portion of 
     the CRIT decreed allocation.
       (d) Other Requirements.--The requirement for Secretarial 
     approval under subsection (a) shall satisfy the requirements 
     of section 2116 of the Revised Statutes (commonly known as 
     the ``Indian Trade and Intercourse Act'') (25 U.S.C. 177).
       (e) Authority of the Secretary.--Nothing in this Act, or 
     any agreement entered into or approved by the Secretary under 
     this Act, including any lease or exchange agreement, storage 
     agreement, or agreement for conserved water, shall diminish 
     or abrogate the authority of the Secretary to act under 
     applicable Federal law or regulation, including the 
     Consolidated Decree.

     SEC. 8. RESPONSIBILITIES OF THE SECRETARY.

       (a) Compliance.--When approving a lease or exchange 
     agreement, a storage agreement, or an agreement for conserved 
     water, the Secretary shall promptly comply with all aspects 
     of the National Environmental Policy Act of 1969 (42 U.S.C. 
     4321 et seq.), the Endangered Species Act of 1973 (16 U.S.C. 
     1531 et seq.), and all other applicable environmental laws 
     and regulations.
       (b) Documentation.--The Secretary shall document any lease 
     or exchange agreement, storage agreement, or agreement for 
     conserved water in the Water Accounting Report.

     SEC. 9. AGREEMENT BETWEEN THE CRIT AND THE STATE.

       (a) In General.--Before entering into the first lease or 
     exchange agreement or storage agreement, the CRIT shall enter 
     into an agreement with the State that outlines all notice, 
     information sharing, and collaboration requirements that 
     shall apply to any potential lease or exchange agreement or 
     storage agreement the CRIT may enter into.
       (b) Requirement.--The agreement required under subsection 
     (a) shall include a provision that requires the CRIT to 
     submit to the State all documents regarding a potential lease 
     or exchange agreement or storage agreement.

     SEC. 10. AGREEMENT BETWEEN THE CRIT, THE STATE, AND THE 
                   SECRETARY.

       (a) In General.--Before approving the first lease or 
     exchange agreement or storage agreement under section 7, the 
     Secretary shall enter into an agreement with the State and 
     the CRIT that describes the procedural, technical, and 
     accounting methodologies for any lease or exchange agreement 
     or storage agreement the CRIT may enter into, including 
     quantification of the reduction in consumptive use and water 
     accounting.
       (b) NEPA.--The execution of the agreement required under 
     subsection (a) shall not constitute a major Federal action 
     for purposes of the National Environmental Policy Act of 1969 
     (42 U.S.C. 4321 et seq.).
       (c) Effect.--Nothing in this Act prohibits the Secretary 
     from agreeing with the CRIT and the State to a modification 
     to an agreement entered into under subsection (a) (including 
     an appendix or exhibit to the agreement) if the 
     modification--
       (1) is in compliance with this Act; and
       (2) does not otherwise require congressional approval under 
     section 2116 of the Revised Statutes (commonly known as the 
     ``Indian Trade and Intercourse Act'') (25 U.S.C. 177) or any 
     other provision of law.

     SEC. 11. NO EFFECT ON THE CRIT DECREED ALLOCATION.

       (a) Temporary Use.--A lease or exchange agreement, a 
     storage agreement, or an agreement for conserved water--
       (1) shall provide for the temporary use, storage, or 
     conservation of a portion of the consumptive use off the 
     Reservation; and
       (2) shall not permanently alienate the decreed allocation.
       (b) Priority Status.--
       (1) In general.--The lease or exchange of a portion of the 
     consumptive use shall not cause that portion to lose or 
     change its priority under the Consolidated Decree.
       (2) Nonuse.--Any nonuse by a person who is a party to any 
     lease or exchange agreement or storage agreement with the 
     CRIT shall not result in forfeiture, abandonment, 
     relinquishment, or other loss by the CRIT of all or any 
     portion of the decreed allocation.
       (c) Reservation of Rights.--The lease, exchange, storage, 
     or conservation of a portion of the consumptive use shall not 
     reduce or limit the right of the CRIT to use the remaining 
     portion of the decreed allocation on the Reservation.
       (d) Storage Agreements.--A storage agreement entered into 
     under this Act shall account for the quantity of water in 
     storage off the Reservation in accordance with applicable 
     State law.

     SEC. 12. ALLOTTEE USE OF WATER.

       (a) Interference.--The lease, exchange, storage, or 
     conservation of a portion of the consumptive use shall not 
     directly or indirectly interfere with, or diminish, any 
     entitlement to water for an allottee under Federal or Tribal 
     law.
       (b) Water Rights of Allottees.--The Secretary shall protect 
     the rights of the allottees to a just and equitable 
     distribution of water for irrigation purposes, pursuant to 
     section 7 of the Act of February 8, 1887 (commonly known as 
     the ``Indian General Allotment Act'') (24 Stat. 390, chapter 
     119; 25 U.S.C. 381) (referred to in this section as the 
     ``Act'').
       (c) Relief Under Tribal Law.--Prior to asserting any claim 
     against the United States pursuant to the Act, or any other 
     applicable law, an allottee shall exhaust all remedies 
     available under applicable Tribal law.
       (d) Relief Under the Indian General Allotment Act.--
     Following an exhaustion of remedies available under 
     applicable Tribal law, an allottee may seek relief under the 
     Act or any other applicable law.
       (e) Relief From the Secretary.--Following exhaustion of 
     remedies available under the Act, or any other applicable 
     law, an allottee may petition the Secretary for relief.

     SEC. 13. CONSIDERATION PAID TO THE CRIT.

       The CRIT, and not the United States in any capacity, shall 
     be entitled to all consideration due to the CRIT under any 
     lease or exchange agreement, storage agreement, or agreement 
     for conserved water.

     SEC. 14. LIABILITY OF THE UNITED STATES.

       (a) Limitation of Liability.--The United States shall not 
     be liable to the CRIT or to any party to a lease or exchange 
     agreement, a storage agreement, or an agreement for conserved 
     water in any claim relating to the negotiation, execution, or 
     approval of any lease or exchange agreement, storage 
     agreement, or agreement for conserved water, including any 
     claim relating to the terms included in such an agreement, 
     except for claims relating to the requirements of section 
     8(a).
       (b) Obligations.--The United States shall have no trust 
     obligation or other obligation to monitor, administer, or 
     account for--
       (1) any funds received by the CRIT as consideration under 
     any lease or exchange agreement, storage agreement, or 
     agreement for conserved water; or
       (2) the expenditure of such funds.

     SEC. 15. APPLICATION.

       (a) In General.--This Act shall only apply to the portion 
     of the decreed allocation that is available for use in the 
     State.
       (b) Requirement.--The portion of the decreed allocation 
     that is available for use in the State shall not be used, 
     directly or indirectly outside the Lower Basin in the State 
     or in the counties of Navajo, Apache, or Cochise in the 
     State.

     SEC. 16. RULE OF CONSTRUCTION.

       Nothing in this Act establishes, or shall be considered to 
     establish, a precedent in any litigation involving, or 
     alters, affects, or quantifies, any water right with respect 
     to--
       (1) the United States;
       (2) any other Indian Tribe, band, or community;
       (3) any State or political subdivision or district of a 
     State; or
       (4) any person.
  Mr. SCHATZ. I ask unanimous consent that the committee-reported 
substitute amendment be agreed to; the bill, as amended, be considered 
read a third time and passed; and that the motion to reconsider be 
considered made and laid upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The committee-reported amendment in the nature of a substitute was 
agreed to.
  The bill (S. 3308), as amended, was ordered to be engrossed for a 
third reading, was read the third time, and passed.

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