Congressional Record, Volume 168 Issue 197 (Monday, December 19, 2022)

[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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