[Congressional Record Volume 169, Number 120 (Thursday, July 13, 2023)]
[Senate]
[Pages S2708-S2714]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 596. Mr. PADILLA (for himself and Mrs. Feinstein) submitted an
amendment intended to be proposed by him to the bill S. 2226, to
authorize appropriations for fiscal year 2024 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 appropriate place in title X of division A, insert
the following:
Subtitle H--Tule River Tribe Served Water Rights Settlement
SEC. 1083. PURPOSES.
The purposes of this subtitle are--
(1) to achieve a fair, equitable, and final settlement of
claims to water rights in the State of California for--
(A) the Tule River Tribe; and
(B) the United States, acting as trustee for the Tribe;
[[Page S2709]]
(2) to authorize, ratify, and confirm the 2007 Agreement
entered by the Tribe, the South Tule Independent Ditch
Company, and the Tule River Association, to the extent that
the 2007 Agreement is consistent with this subtitle;
(3) to authorize and direct the Secretary--
(A) to execute the 2007 Agreement, with amendments to
facilitate implementation and approval of the 2007 Agreement;
and
(B) to take any other actions necessary to carry out the
2007 Agreement in accordance with this subtitle;
(4) to authorize funds necessary for the implementation of
the 2007 Agreement and this subtitle; and
(5) to authorize the transfer of certain lands to the
Tribe, to be held in trust.
SEC. 1084. DEFINITIONS.
(a) In General.--In this subtitle:
(1) 2007 agreement.--The term ``2007 Agreement'' means--
(A) the agreement dated November 21, 2007, as amended on
April 22, 2009, between the Tribe, the South Tule Independent
Ditch Company, and the Tule River Association, and exhibits
attached thereto; and
(B) any amendment to the Agreement referred to in
subparagraph (A) (including an amendment to any exhibit) that
is executed in accordance with section 1085(a)(2).
(2) Court.--The term ``Court'' means the United States
District Court for the Eastern District of California, unless
otherwise specified herein.
(3) Divert; diversion.--The terms ``divert'' and
``diversion'' mean to remove water from its natural course or
location by means of a ditch, canal, flume, bypass, pipeline,
conduit, well, pump, or other structure or device, or act of
a person.
(4) Downstream water users.--The term ``Downstream Water
Users'' means--
(A) the Tule River Association and its successors and
assigns;
(B) the South Tule Independent Ditch Company and its
successors and assigns; and
(C) any and all other holders of water rights in the South
Fork Tule River Basin.
(5) Enforceability date.--The term ``Enforceability Date''
means the date described in section 1092.
(6) OM&R.--
(A) In general.--The term ``OM&R'' means operation,
maintenance, and replacement.
(B) Inclusions.--The term ``OM&R'' includes--
(i) any recurring or ongoing activity relating to the day-
to-day operation of a project;
(ii) any activity relating to scheduled or unscheduled
maintenance of a project; and
(iii) any activity relating to repairing or replacing a
feature of a project.
(7) Operation rules.--The term ``Operation Rules'' means
the rules of operation for the Phase I Reservoir, as
established in accordance with the 2007 Agreement and this
subtitle.
(8) Parties.--The term ``Parties'' means the signatories to
the 2007 Agreement, including the Secretary.
(9) Phase i reservoir.--The term ``Phase I Reservoir''
means the reservoir described in either section 3.4.B.(1) or
section 3.4.B.(2) of the 2007 Agreement.
(10) Reservation; tule river reservation.--The terms
``Reservation'' and ``Tule River Reservation'' mean the
reservation of lands set aside for the Tribe by the Executive
Orders of January 9, 1873, October 3, 1873, and August 3,
1878, including lands added to the Reservation pursuant to
section 1089.
(11) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(12) South tule independent ditch company.--The term
``South Tule Independent Ditch Company'' means the nonprofit
mutual water company incorporated in 1895 that has claims to
ownership of water rights dating back to 1854, which provides
water diverted from the South Fork of the Tule River to its
shareholders on lands downstream from the Tule River
Reservation.
(13) Tribal water right.--The term ``Tribal Water Right''
means the water rights ratified, confirmed, and declared to
be valid for the benefit of the Tribe as set forth and
described in the 2007 Agreement and this subtitle.
(14) Tribe.--The term ``Tribe'' means the Tule River Indian
Tribe of the Tule River Reservation, California, a federally
recognized Indian Tribe.
(15) Trust fund.--The term ``Trust Fund'' means the Tule
River Indian Tribe Settlement Trust Fund established under
section 1087(a).
(16) Tule river association.--
(A) In general.--The term ``Tule River Association'' means
the association formed by agreement in 1965, the members of
which are representatives of all pre-1914 appropriative and
certain riparian water right holders of the Tule River at and
below the Richard L. Schafer Dam and Reservoir.
(B) Inclusions.--The term ``Tule River Association''
includes the Pioneer Water Company, the Vandalia Irrigation
District, the Porterville Irrigation District, and the Lower
Tule River Irrigation District.
(17) Water development project.--The term ``Water
Development Project'' means a project for domestic,
commercial, municipal, and industrial water supply, including
but not limited to water treatment, storage, and distribution
infrastructure, to be constructed, in whole or in part, using
monies from the Trust Fund.
(b) Definitions of Other Terms.--Any other term used in
this subtitle but not defined in subsection (a)--
(1) has the meaning given the term in the 2007 Agreement;
or
(2) if no definition for the term is provided in the 2007
Agreement, shall be used in a manner consistent with its use
in the 2007 Agreement.
SEC. 1085. RATIFICATION OF 2007 AGREEMENT.
(a) Ratification.--
(1) In general.--Except as modified by this subtitle and to
the extent that the 2007 Agreement does not conflict with
this subtitle, the 2007 Agreement is authorized, ratified,
and confirmed.
(2) Amendments.--
(A) General amendments.--If an amendment to the 2007
Agreement, or to any exhibit attached to the 2007 Agreement
requiring the signature of the Secretary, is executed in
accordance with this subtitle to make the 2007 Agreement
consistent with this subtitle, the amendment is authorized,
ratified, and confirmed.
(B) Specific amendments.--
(i) Substitute sites.--If a substitute site for the Phase I
Reservoir is identified by the Tribe pursuant to section
3.4.B.(2)(a) of the 2007 Agreement, then amendments related
to the Operation Rules are authorized, ratified, and
confirmed, to the extent that such Amendments are consistent
with the 2007 Agreement and this subtitle.
(ii) Priority date.--Amendments agreed to by the Parties to
establish that the priority date for the Tribal Water Right
is no later than January 9, 1873, is authorized, ratified,
and confirmed.
(iii) Senior water rights.--Amendments agreed to by the
Parties to accommodate senior water rights of those
Downstream Water Users described in section 1084(a)(4)(C) are
authorized, ratified, and confirmed, to the extent that the
Court finds any such Downstream Water Users possess senior
water rights that can be accommodated only by amendment of
the 2007 Agreement.
(iv) Other amendments.--Other amendments agreed to by the
Parties to facilitate implementation and approval of the 2007
Agreement are authorized, ratified, and confirmed, to the
extent that such amendments are otherwise consistent with
this subtitle and with other applicable law.
(b) Execution.--
(1) In general.--To the extent the 2007 Agreement does not
conflict with this subtitle, the Secretary shall execute the
2007 Agreement, in accordance with paragraph (2), including
all exhibits to, or parts of, the 2007 Agreement requiring
the signature of the Secretary.
(2) Timing.--The Secretary shall not execute the 2007
Agreement until--
(A) the Parties agree on amendments related to the priority
date for the Tribal Water Right; and
(B) either--
(i) the Tribe moves forward with the Phase I Reservoir
described in section 3.4.B.(1) of the 2007 Agreement; or
(ii) if the Tribe selects a substitute site pursuant to
section 3.4.B.(2) of the 2007 Agreement, either--
(I) the Parties agree on Operation Rules; or
(II) the Secretary determines, in the discretion of the
Secretary, that the Parties have reached an impasse in
attempting to negotiate the Operation Rules.
(3) Modifications.--Nothing in this subtitle prohibits the
Secretary, after execution of the 2007 Agreement, from
approving any modification to the 2007 Agreement, including
any exhibit to the 2007 Agreement, that is consistent with
this subtitle, to the extent that the modification does not
otherwise require congressional approval under section 2116
of the Revised Statutes (25 U.S.C. 177) or any other
applicable provision of Federal law.
(c) Environmental Compliance.--
(1) In general.--In implementing the 2007 Agreement and
this subtitle, the Secretary shall comply with all applicable
provisions of--
(A) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.);
(B) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.), including the implementing regulations
of that Act; and
(C) other applicable Federal environmental laws and
regulations.
(2) Compliance.--
(A) In general.--In implementing the 2007 Agreement and
this subtitle, the Tribe shall prepare any necessary
environmental documents, consistent 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. 4231 et seq.), including the implementing regulations
of that Act; and
(iii) all other applicable Federal environmental laws and
regulations.
(B) Authorizations.--The Secretary shall--
(i) independently evaluate the documentation submitted
under subparagraph (A); and
(ii) be responsible for the accuracy, scope, and contents
of that documentation.
(3) Effect of execution.--The execution of the 2007
Agreement by the Secretary under this section shall not
constitute a major Federal action for purposes of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.).
(4) Costs.--Any costs associated with the performance of
the compliance activities under this subsection shall be paid
from funds deposited in the Trust Fund, subject to the
condition that any costs associated with
[[Page S2710]]
the performance of Federal approval or other review of such
compliance work or costs associated with inherently Federal
functions shall remain the responsibility of the Secretary.
SEC. 1086. TRIBAL WATER RIGHT.
(a) Confirmation of Tribal Water Right.--
(1) In general.--The Tribal Water Right is ratified,
confirmed, and declared valid.
(2) Quantification.--The Tribal Water Right includes the
right to divert and use or permit the diversion and use of up
to 5,828 acre-feet per year of surface water from the South
Fork Tule River, as described in the 2007 Agreement and as
confirmed in the decree entered by the Court pursuant to
subsections (b) and (c) of section 1093.
(3) Use.--Any diversion, use, and place of use of the
Tribal Water Right shall be subject to the terms and
conditions of the 2007 Agreement and this subtitle.
(b) Trust Status of Tribal Water Right.--The Tribal Water
Right--
(1) shall be held in trust by the United States for the use
and benefit of the Tribe in accordance with this subtitle;
and
(2) shall not be subject to loss through non-use,
forfeiture, abandonment, or other operation of law.
(c) Authority of the Tule River Tribe.--
(1) In general.--The Tule River Tribe shall have the
authority to allocate and distribute the Tribal Water Right
for use on the Reservation in accordance with the 2007
Agreement, this subtitle, and applicable Federal law.
(d) Administration.--
(1) No alienation.--The Tribe shall not permanently
alienate any portion of the Tribal Water Right.
(2) Purchases or grants of land from indians.--An
authorization provided by this subtitle for the allocation,
distribution, leasing, or other arrangement entered into
pursuant to this subtitle shall be considered to satisfy any
requirement for authorization of the action by treaty or
convention imposed by section 2116 of the Revised Statutes
(25 U.S.C. 177).
(3) Prohibition on forfeiture.--The non-use of all or any
portion of the Tribal Water Right by any water user shall not
result in the forfeiture, abandonment, relinquishment, or
other loss of all or any portion of the Tribal Water Right.
SEC. 1087. TULE RIVER TRIBE TRUST ACCOUNTS.
(a) Establishment.--The Secretary shall establish a trust
fund, to be known as the ``Tule River Indian Tribe Settlement
Trust Fund'', to be managed, invested, and distributed by the
Secretary and to remain available until expended, withdrawn,
or reverted to the general fund of the Treasury, consisting
of the amounts deposited in the Trust Fund under subsection
(c), together with any interest earned on those amounts, for
the purpose of carrying out this subtitle.
(b) Accounts.--The Secretary shall establish in the Trust
Fund the following Accounts:
(1) The Tule River Tribe Water Development Projects
Account.
(2) The Tule River Tribe OM&R Account.
(c) Deposits.--The Secretary shall deposit--
(1) in the Tule River Tribe Water Development Projects
Account established under subsection (b)(1), the amounts made
available pursuant to section 1088(a)(1); and
(2) in the Tule River Tribe OM&R Account established under
subsection (b)(2), the amounts made available pursuant to
section 1088(a)(2).
(d) Management and Interest.--
(1) Management.--On receipt and deposit of funds into the
accounts in the Trust Fund pursuant to subsection (c), the
Secretary shall manage, invest, and distribute all amounts in
the Trust Fund in accordance with the investment authority of
the Secretary under--
(A) the first section of the Act of June 24, 1938 (52 Stat.
1037, chapter 648; 25 U.S.C. 162a);
(B) the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4001 et seq.); and
(C) this section.
(2) Investment earnings.--In addition to the deposits under
subsection (c), any investment earnings, including interest,
credited to amounts held in the Trust Fund are authorized to
be used in accordance with subsections (e) and (h).
(e) Availability of Amounts.--
(1) In general.--Amounts appropriated to, and deposited in,
the Trust Fund, including any investment earnings, including
interest, shall be made available to the Tribe by the
Secretary beginning on the Enforceability Date and subject to
the requirements set forth in this section, except for funds
to be made available to the Tribe pursuant to paragraph (2).
(2) Use of certain funds.--Notwithstanding paragraph (1),
$20,000,000 of the amounts deposited in the Tule River Tribe
Water Development Projects Account shall be made available to
conduct technical studies and related investigations
regarding the Phase I Reservoir and to establish appropriate
Operation Rules.
(f) Withdrawals.--
(1) Withdrawals under the american indian trust fund
management reform act of 1994.--
(A) In general.--The Tribe may withdraw any portion of the
amounts in the Trust Fund on approval by the Secretary of a
Tribal management plan submitted by the Tribe in accordance
with the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4001 et seq.).
(B) Requirements.--In addition to the requirements under
the American Indian Trust Fund Management Reform Act of 1994
(25 U.S.C. 4001 et seq.), the Tribal management plan under
this paragraph shall require that the Tribe 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 subtitle.
(C) Enforcement.--The Secretary may carry out such judicial
and administrative actions as the Secretary determines to be
necessary to enforce the Tribal management plan under this
paragraph to ensure that amounts withdrawn by the Tribe from
the Trust Fund under this paragraph are used in accordance
with this subtitle.
(2) Withdrawals under expenditure plan.--
(A) In general.--The Tribe may submit to the Secretary a
request to withdraw amounts from the Trust Fund pursuant to
an approved expenditure plan.
(B) Requirements.--To be eligible to withdraw amounts under
an expenditure plan under this paragraph, the Tribe shall
submit to the Secretary an expenditure plan for any portion
of the Trust Fund that the Tribe elects to withdraw pursuant
to this subparagraph, subject to the condition that the
amounts shall be used for the purposes described in this
subtitle.
(C) Inclusions.--An expenditure plan under this paragraph
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 Tribe in accordance with subsections
(e) and (h).
(D) Approval.--The Secretary shall approve an expenditure
plan submitted under this paragraph if the Secretary
determines that the plan--
(i) is reasonable; and
(ii) is consistent with, and will be used for, the purposes
of this subtitle.
(E) 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 paragraph are used in accordance
with this subtitle.
(g) Effect of Section.--Nothing in this section gives the
Tribe the right to judicial review of a determination of the
Secretary relating to whether to approve a Tribal management
plan under subsection (f)(1) or an expenditure plan under
subsection (f)(2) except under subchapter II of chapter 5,
and chapter 7, of title 5, United States Code (commonly known
as the ``Administrative Procedure Act'').
(h) Uses.--Amounts from the Trust Fund may only be used by
the Tribe for the following purposes:
(1) The Tule River Tribe Water Development Projects Account
may only be used to plan, design, and construct Water
Development Projects on the Tule River Reservation, and for
the conduct of related activities, including for
environmental compliance in the development and construction
of projects under this subtitle.
(2) The Tule River Tribe OM&R Account may only be used for
the OM&R of Water Development Projects.
(i) 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 Tribe under paragraphs (1) and (2) of subsection (f).
(j) Title to Infrastructure.--Title to, control over, and
operation of any project constructed using funds from the
Trust Fund shall remain in the Tribe.
(k) Operation, Maintenance, & Replacement.--All OM&R costs
of any project constructed using funds from the Trust Fund
shall be the responsibility of the Tribe.
(l) No Per Capita Distributions.--No portion of the Trust
Fund shall be distributed on a per capita basis to any member
of the Tribe.
(m) Expenditure Report.--The Tule River Tribe shall
annually submit to the Secretary an expenditure report
describing accomplishments and amounts spent from use of
withdrawals under a Tribal management plan or an expenditure
plan under this subtitle.
SEC. 1088. FUNDING.
(a) Funding.--Out of any funds in the Treasury not
otherwise appropriated, the Secretary of the Treasury shall
transfer to the Secretary--
(1) for deposit in the Tule River Tribe Water Development
Projects Account $518,000,000, to be available until
expended, withdrawn, or reverted to the general fund of the
Treasury; and
(2) for deposit in the Tule River Tribe OM&R Account
$50,000,000, to be available until expended, withdrawn, or
reverted to the general fund of the Treasury.
(b) Fluctuation in Costs.--
(1) In general.--The amounts authorized to be appropriated
under subsection (a) shall be increased or decreased, as
appropriate, by such amounts as may be justified by reason of
ordinary fluctuations in costs occurring after November 1,
2020, as indicated by the Bureau of Reclamation Construction
Cost Index--Composite Trend.
(2) Construction costs adjustment.--The amounts authorized
to be appropriated under subsection (a) shall be adjusted to
address construction cost changes necessary to account for
unforeseen market volatility that
[[Page S2711]]
may not otherwise be captured by engineering cost indices as
determined by the Secretary, including repricing applicable
to the types of construction and current industry standards
involved.
(3) Repetition.--The adjustment process under this
subsection shall be repeated for each subsequent amount
appropriated until the amount authorized, as adjusted, has
been appropriated.
(4) Period of indexing.--The period of indexing adjustment
under this subsection for any increment of funding shall end
on the date on which the funds are deposited into the Trust
Fund.
SEC. 1089. TRANSFER OF LAND INTO TRUST.
(a) Transfer of Land to Trust.--
(1) In general.--Subject to valid existing rights, and the
requirements of this subsection, all right, title, and
interest of the United States in and to the land described in
paragraph (2) shall be held in trust by the United States for
the benefit of the Tribe as part of the Reservation upon the
Enforceability Date, provided that the Tribal fee land
described in paragraph (2)(C)--
(A) is free from any liens, encumbrances, or other
infirmities; and
(B) has no existing evidence of any hazardous substances or
other environmental liability.
(2) Lands to be held in trust.--The land referred to in
paragraph (1) is the following:
(A) Bureau of land management lands.--
(i) Approximately 26.15 acres of land located in T. 22 S.,
R. 29 E., sec. 35, Lot 9.
(ii) Approximately 85.50 acres of land located in T. 22 S.,
R. 29 E., sec. 35, Lots 6 and 7.
(iii) Approximately 38.77 acres of land located in--
(I) T. 22 S., R. 30 E., sec. 30, Lot 1; and
(II) T. 22 S., R. 30 E., sec. 31, Lots 6 and 7.
(iv) Approximately 154.9 acres of land located in T. 22 S.,
R. 30 E., sec. 34, N\1/4\SW\1/4\ and SW\1/4\SW\1/4\, Lots 2
and 3.
(v) Approximately 40 acres of land located in T. 22 S., R.
30 E., sec. 34, NE\1/4\SE\1/4\.
(vi) Approximately 375.17 acres of land located in--
(I) T. 22 S., R. 30 E., sec. 35, S\1/2\NE\1/4\, N\1/2\SE\1/
4\, and SE\1/4\SE\1/4\, Lots 3, 4, and 6; and
(II) T. 23 S., R. 30 E., sec. 2, S\1/2\NE\1/4\, Lots 6 and
7.
(vii) Approximately 60.43 acres of land located in--
(I) T. 22 S., R. 30 E., sec. 35, SW\1/4\SW\1/4\; and
(II) T. 23 S., R. 30 E., sec. 2, Lot 9.
(viii) Approximately 15.48 acres of land located in T. 21
S., R. 30 E., sec. 31 in that portion of the NW\1/4\ lying
between Lots 8 and 9.
(ix) Approximately 29.26 acres of land located in T. 21 S.,
R. 30 E., sec. 31, Lot 7.
(B) Forest service lands.--Approximately 9,037 acres of
land comprising the headwaters area of the South Fork Tule
River watershed located east of and adjacent to the Tule
River Indian Reservation, and more particularly described as
follows:
(i) Commencing at the northeast corner of the Tule River
Indian Reservation in T. 21 S., R. 31 E., sec. 16, Mount
Diablo Base and Meridian, running thence east and then
southeast along the ridge of mountains dividing the waters of
the South Fork of the Tule River and Middle Fork of the Tule
River, continuing south and then southwest along the ridge of
mountains dividing the waters of the South Fork of the Tule
River and the Upper Kern River until intersecting with the
southeast corner of the Tule River Indian Reservation in T.
22 S., R. 31 E., sec. 28, thence from such point north along
the eastern boundary of the Tule River Indian Reservation to
the place of beginning.
(ii) The area encompasses--
(I) all of secs. 22, 23, 26, 27, 34, 35, and portions of
secs. 13, 14, 15, 16, 21, 24, 25, 28, 33, and 36, in T. 21
S., R. 31 E.; and
(II) all of secs. 3 and 10, and portions of secs. 1, 2, 4,
9, 11, 14, 15, 16, 21, 22, 27, and 28, in T. 22 S., R. 31 E.
(C) Tribally owned fee lands.--
(i) Approximately 300 acres of land known as the McCarthy
Ranch and more particularly described as follows:
(I) The SW\1/4\ and that portion of the SE\1/4\ of sec. 9
in T. 22 S., R. 29 E., Mount Diablo Base and Meridian, in the
County of Tulare, State of California, according to the
official plat thereof, lying south and west of the center
line of the South Fork of the Tule River, as such river
existed on June 9, 1886, in the County of Tulare, State of
California; excepting therefrom an undivided one-half
interest in and to the oil, gas, minerals, and other
hydrocarbon substances in, on, or under such land, as
reserved by Alice King Henderson, a single woman, by Deed
dated January 22, 1959, and Recorded February 18, 1959, in
Book 2106, page 241, Tulare County Official Records.
(II) An easement over and across that portion of the SW\1/
4\ of sec. 10 in T. 22 S., R. 29 E., Mount Diablo Base and
Meridian, County of Tulare, State of California, more
particularly described as follows:
(aa) Beginning at the intersection of the west line of the
SW\1/4\ of sec. 10, and the south bank of the South Tule
Independent Ditch; thence south 20 rods; thence in an
easterly direction, parallel with such ditch, 80 rods; thence
north 20 rods, thence westerly along the south bank of such
ditch 80 rods to the point of beginning; for the purpose of--
(AA) maintaining thereon an irrigation ditch between the
headgate of the King Ditch situated on such land and the
SW\1/4\ and that portion of the SE\1/4\ of sec. 9 in T. 22
S., R. 29 E., lying south and west of the centerline of the
South Fork of the Tule River, as such river existed on June
9, 1886, in the County of Tulare, State of California; and
(BB) conveying therethrough water from the South Fork of
the Tule River to the SW\1/4\ and that portion of the SE\1/4\
of sec. 9 in T. 22 S., R. 29 E., lying south and west of the
centerline of the South Fork of the Tule River, as such river
existed on June 9, 1886.
(bb) The easement described in item (aa) shall follow the
existing route of the King Ditch.
(ii) Approximately 640 acres of land known as the Pierson/
Diaz property in T. 22 S., R. 29 E., sec. 16, Mount Diablo
Base and Meridian, in the County of Tulare, State of
California, according to the official plat thereof.
(iii) Approximately 375.44 acres of land known as the Hyder
property and more particularly described as follows:
(I) That portion of the S\1/2\ of sec. 12 in T. 22 S., R.
28 E., Mount Diablo Base and Meridian, in the County of
Tulare, State of California, according to the official plat
thereof, lying south of the County Road known as Reservation
Road, excepting therefrom an undivided one-half interest in
all oil, gas, minerals, and other hydrocarbon substances as
reserved in the deed from California Lands, Inc., to Lovell
J. Wilson and Genevieve P. Wilson, recorded February 17,
1940, in book 888, page 116, Tulare County Official Records.
(II) The NW\1/4\ of sec. 13 in T. 22 S., R. 28 E., Mount
Diablo Base and Meridian, in the County of Tulare, State of
California, according to the official plat thereof, excepting
therefrom the south 1,200 feet thereof.
(III) The south 1,200 feet of the NW\1/4\ of sec. 13 in T.
22 S., R. 28 E., Mount Diablo Base and Meridian, in the
County of Tulare, State of California, according to the
official plat thereof.
(iv) Approximately 157.22 acres of land situated in the
unincorporated area of the County of Tulare, State of
California, known as the Trailor property, and more
particularly described as follows: The SW\1/4\ of sec. 11 in
T. 22 S., R. 28 E., Mount Diablo Base and Meridian, in the
unincorporated area of the County of Tulare, State of
California, according to the official plat thereof.
(v) Approximately 89.45 acres of land known as the Tomato
Patch in that portion of the SE\1/4\ of sec. 11 in T. 22 S.,
R. 28 E., Mount Diablo Base and Meridian, in the County of
Tulare, State of California, according to the Official Plat
of the survey of such land on file in the Bureau of Land
Management at the date of the issuance of the patent thereof,
and more particularly described as follows: Beginning at the
southeast corner of T. 22 S., R. 28 E., sec. 11, thence north
and along the east line of such sec. 11, 1,342 feet, thence
south 83 44' west 258 feet, thence north 84 30' west 456
feet, thence north 65 28' west 800 feet, thence north 68
44' west 295 feet, thence south 71 40' west 700 feet, thence
south 56 41' west 240 feet to the west line of the SE\1/4\
of such sec. 11, thence south 0 21' west along such west
line of the SE\1/4\ of sec. 11, thence west 1,427 feet to the
southwest corner of such SE\1/4\ of sec. 11, thence south 89
34' east 2,657 feet to the point of beginning, excepting
therefrom--
(I) a strip of land 25 feet in width along the northerly
and east sides and used as a County Road; and
(II) an undivided one-half interest in all oil, gas, and
minerals in and under such lands, as reserved in the Deed
from Bank of America, a corporation, dated August 14, 1935,
filed for record August 28, 1935, Fee Book 11904.
(vi) Approximately 160 acres of land known as the Smith
Mill in the NW\1/4\ of the NE\1/4\, the N\1/2\ of the NW\1/
4\, and the SE\1/4\ of the NW\1/4\ of sec. 20 in T. 21 S., R.
31 E., Mount Diablo Base and Meridian, in the County of
Tulare, State of California, according to the official plat
thereof.
(vii) Approximately 35 acres of land located within the
exterior boundaries of the Tule River Reservation known as
the Highway 190 parcel, with the legal description as
follows: That portion of T. 21 S., R. 29 E., sec. 19, Mount
Diablo Base and Meridian, in the County of Tulare, State of
California, according to the official plat thereof, and more
particularly described as follows: Commencing at a point in
the south line of the N\1/2\ of the S\1/2\ of such sec. 19,
such point being south 89 54' 47" east, 1,500 feet of the
southwest corner of such N\1/2\, thence north 52 41' 17"
east, 1602.80 feet to the true point of beginning of the
parcel to be described, thence north 32 02' 00" west,
1,619.53 feet to a point in the southeasterly line of State
Highway 190 per deeds recorded May 5, 1958, in Book 2053,
pages 608 and 613, Tulare County Official Records, thence
north 57 58' 00" east, 232.29 feet, thence north 66 33' 24"
east, 667.51 fee, thence departing the southeasterly line of
such Highway 190, south 44 53' 27" east, 913.62 feet, thence
south 85 53' 27" east, 794.53 feet, thence south 52 41' 17"
west, 1,744.64 feet to the true point of beginning.
(viii) Approximately 61.91 acres of land located within the
exterior boundaries of the Tule River Reservation known as
the Shan King property, with the legal description as
follows:
(I) Parcel 1: Parcel No. 1 of parcel map no. 4028 in the
County of Tulare, State of California, as per the map
recorded in Book 41, page 32 of Tulare County Records.
(II)(aa) Parcel 2: That portion of T. 21 S., R. 29 E., sec.
19, Mount Diablo Base and Meridian, in the County of Tulare,
State of California, described as follows: Commencing at a
point in the south line of the N\1/2\ of the
[[Page S2712]]
S\1/2\ of such sec. 19, such point being south 89 54' 58''
east, 1,500 feet of the southwest corner of such N\1/2\,
thence north 52 41' 06'' east, 1602.80 feet to the
southwesterly corner of the 40-acre parcel shown on the
Record of Survey recorded in Book 18, page 17, of Licensed
Surveys, Tulare County Records, thence, north 32 01' 28"
west, 542.04 feet along the southwesterly line of such 40-
acre parcel to the true point of beginning of the parcel to
be described, thence, continuing north 32 01' 28" west,
1,075.50 feet to the northwesterly corner of such 40-acre
parcel, thence north 57 58' 50" east, 232.31 feet along the
southeasterly line of State Highway 190, thence north 66 34'
12'' east, 6.85 feet, thence, departing the southeasterly
line of State Highway 190 south 29 27' 29" east, 884.73
feet, thence south 02 59' 33" east, 218 feet, thence south
57 58' 31" west, 93.67 feet to the true point of beginning.
(bb) The property described in item (aa) is subject to a
100-foot minimum building setback from the right-of-way of
Highway 190.
(III) Parcel 3: That portion of T. 21 S., R. 29 E., sec.
19, Mount Diablo Base and Meridian, County of Tulare, State
of California, described as follows: Beginning at a point in
the south line of the N\1/2\ of the S\1/2\ of such sec. 19,
such point being south 89 54' 47" east, 1,500 feet of the
southwest corner of such N\1/2\, thence north 7 49' 19"
east, 1,205 feet, thence north 40 00' 00" west, 850 feet to
a point in the southeasterly line of State Highway 190, per
deeds recorded May 5, 1958, in Book 2053, pages 608 and 613,
Tulare County Official Records, thence, north 57 58' 00"
east, 941.46 feet, along the southeasterly line of such
Highway 190, thence departing the southeasterly line of such
Highway 190, south 32 02' 00'' east, 1619.53 feet, thence
south 52 41' 17" west, 1,602.80 feet to the point of
beginning, together with a \3/4\ interest in a water system,
as set forth in that certain water system and maintenance
agreement recorded April 15, 2005, as document no. 2005-
0039177.
(ix) Approximately 18.44 acres of land located within the
exterior boundaries of the Tule River Reservation known as
the Parking Lot 4 parcel with the legal description as
follows: That portion of the land described in that Grant
Deed to Tule River Indian Tribe, recorded June 1, 2010, as
document number 2010-0032879, Tulare County Official Records,
lying within the following described parcel: beginning at a
point on the east line of the NW\1/4\ of sec. 3 in T. 22 S.,
R. 28 E., Mount Diablo Meridian, lying south 0 49' 43" west,
1670.53 feet from the N\1/4\ corner of such sec. 3, thence
(1) south 89 10' 17" east, 46.50 feet; thence (2) north 0
49' 43" east, 84.08 feet; thence (3) north 33 00' 00" west,
76.67 feet to the south line of State Route 190 as described
in that Grant Deed to the State of California, recorded
February 14, 1958, in Volume 2038, page 562, Tulare County
Official Records; thence (4) north 0 22' 28'' east, 73.59
feet to the north line of the SE\1/4\ of the NW\1/4\ of such
sec. 3; thence (5) south 89 37' 32" east, along such north
line, 89.77 feet to the center-north sixteenth corner of such
sec. 3; thence (6) south 0 49' 43" west, along such east
line of the NW\1/4\ of such sec. 3, a distance of 222.06 feet
to the point of beginning. Containing 0.08 acres, more or
less, in addition to that portion lying within Road 284.
Together with the underlying fee interest, if any, contiguous
to the above-described property in and to Road 284. This
conveyance is made for the purpose of a freeway and the
grantor hereby releases and relinquishes to the grantee any
and all abutter's rights including access rights, appurtenant
to grantor's remaining property, in and to such freeway.
Reserving however, unto grantor, grantor's successors or
assigns, the right of access to the freeway over and across
Courses (1) and (2) herein above described. The bearings and
distances used in this description are on the California
Coordinate System of 1983, Zone 4. Divide distances by
0.999971 to convert to ground distances.
(b) Terms and Conditions.--
(1) Existing authorizations.--Any Federal land transferred
under this section shall be conveyed and taken into trust
subject to valid existing rights, contracts, leases, permits,
and rights-of-way, unless the holder of the right, contract,
lease, permit, or right-of-way requests an earlier
termination in accordance with existing law. The Bureau of
Indian Affairs shall assume all benefits and obligations of
the previous land management agency under such existing
rights, contracts, leases, permits, or rights-of-way, and
shall disburse to the Tribe any amounts that accrue to the
United States from such rights, contracts, leases, permits,
or rights-of-ways after the date of transfer from any sale,
bonus, royalty, or rental relating to that land in the same
manner as amounts received from other land held by the
Secretary in trust for the Tribe.
(2) Improvements.--Any improvements constituting personal
property, as defined by State law, belonging to the holder of
a right, contract, lease, permit, or right-of-way on lands
transferred under this section shall remain the property of
the holder and shall be removed not later than 90 days after
the date on which the right, contract, lease, permit, or
right-of-way expires, unless the Tribe and the holder agree
otherwise. Any such property remaining beyond the 90-day
period shall become the property of the Tribe and shall be
subject to removal and disposition at the Tribe's discretion.
The holder shall be liable for the costs the Tribe incurs in
removing and disposing of the property.
(c) Withdrawal of Federal Lands.--
(1) In general.--Subject to valid existing rights,
effective on the date of enactment of this Act, all Federal
lands within the parcels described in subsection (a)(2) are
withdrawn from all forms of--
(A) entry, appropriation, or disposal under the public land
laws;
(B) location, entry, and patent under the mining laws; and
(C) disposition under all laws pertaining to mineral and
geothermal leasing or mineral materials.
(2) Expiration.--The withdrawals pursuant to paragraph (1)
shall terminate on the date that the Secretary takes the
lands into trust for the benefit of the Tribe pursuant to
subsection (a)(1).
(d) Technical Corrections.--Notwithstanding the
descriptions of the parcels of land in subsection (a)(2), the
United States may, with the consent of the Tribe, make
technical corrections to the legal land descriptions to more
specifically identify the parcels to be exchanged.
(e) Survey.--
(1) Unless the United States or the Tribe requests an
additional survey for the transferred land or a technical
correction is made under subsection (d), the description of
land under this section shall be controlling.
(2) If the United States or the Tribe requests an
additional survey, that survey shall control the total
acreage to be transferred into trust under this section.
(3) The Secretary or the Secretary of Agriculture shall
provide such assistance as may be appropriate--
(A) to conduct additional surveys of the transferred land;
and
(B) to satisfy administrative requirements necessary to
accomplish the land transfers under this section.
(f) Date of Transfer.--The Secretary shall issue trust
deeds for all land transfers under this section by not later
than 10 years after the Enforceability Date.
(g) Restriction on Gaming.--Lands taken into trust pursuant
to this section shall not be considered to have been taken
into trust for, nor eligible for, class II gaming or class
III gaming (as those terms are defined in section 4 of the
Indian Gaming Regulatory Act (25 U.S.C. 2703)).
(h) Status of Water Rights on Transferred Lands.--Any water
rights associated with lands transferred pursuant to
subparagraphs (A) through (C) of subsection (a)(2) shall be
held in trust for the Tribe but shall not be included in the
Tribal Water Right.
SEC. 1090. SATISFACTION OF CLAIMS.
The benefits provided under this subtitle shall be in
complete replacement of, complete substitution for, and full
satisfaction of any claim of the Tribe against the United
States that is waived and released by the Tribe under section
1091(a).
SEC. 1091. WAIVERS AND RELEASES OF CLAIMS.
(a) In General.--
(1) Waivers and releases of claims by the tribe and the
united states as trustee for the tribe.--Subject to the
reservation of rights and retention of claims set forth in
subsection (c), as consideration for recognition of the
Tribe's Tribal Water Right and other benefits described in
the 2007 Agreement and this subtitle, the Tribe and the
United States, acting as trustee for the Tribe, shall execute
a waiver and release of all claims for the following:
(A) All claims for water rights within the State of
California based on any and all legal theories that the Tribe
or the United States acting as trustee for the Tribe,
asserted or could have asserted in any proceeding, including
a general stream adjudication, on or before the
Enforceability Date, except to the extent that such rights
are recognized in the 2007 Agreement and this subtitle.
(B) 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 California
against the State, or any person, entity, corporation, or
municipality, that accrued at any time up to and including
the Enforceability Date.
(2) Waiver and release of claims by the tribe against the
united states.--Subject to the reservation of rights and
retention of claims under subsection (c), the Tribe shall
execute a waiver and release of all claims against the United
States (including any agency or employee of the United
States) for water rights within the State of California first
arising before the Enforceability Date relating to--
(A) water rights within the State of California that the
United States, acting as trustee for the Tribe, asserted or
could have asserted in any proceeding, including a general
stream adjudication, except to the extent that such rights
are recognized as part of the Tribal Water Right under this
subtitle;
(B) foregone benefits from nontribal use of water, on and
off the Reservation (including water from all sources and for
all uses);
(C) damage, loss, or injury to water, water rights, land,
or natural 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 a failure to protect,
acquire, replace, or develop water, water rights, or water
infrastructure) within the State of California;
(D) a failure to establish or provide a municipal rural or
industrial water delivery system on the Reservation;
[[Page S2713]]
(E) damage, loss, or injury to water, water rights, land,
or natural resources due to construction, operation, and
management of irrigation projects on the Reservation and
other Federal land and facilities (including damages, losses,
or injuries to fish habitat, wildlife, and wildlife habitat);
(F) failure to provide for operation, maintenance, or
deferred maintenance for any irrigation system or irrigation
project;
(G) failure to provide a dam safety improvement to a dam on
the Reservation;
(H) the litigation of claims relating to any water rights
of the Tribe within the State of California;
(I) the negotiation, execution, or adoption of the 2007
Agreement (including exhibits A-F) and this subtitle;
(J) the negotiation, execution, or adoption of operational
rules referred to in article 3.4 of the 2007 Agreement in
connection with any reservoir locations, including any claims
related to the resolution of operational rules pursuant to
the dispute resolution processes set forth in the article 8
of the 2007 Agreement, including claims arising after the
Enforceability Date; and
(K) claims related to the creation or reduction of the
Reservation, including any claims relating to the failure to
ratify any treaties and any claims that any particular lands
were intended to be set aside as a permanent homeland for the
Tribe but were not included as part of the present
Reservation.
(b) Effectiveness.--The waivers and releases under
subsection (a) shall take effect on the Enforceability Date.
(c) Reservation of Rights and Retention of Claims.--
Notwithstanding the waivers and releases under subsection
(a), the Tribe and the United States, acting as trustee for
the Tribe, shall retain--
(1) all claims relating to the enforcement of, or claims
accruing after the Enforceability Date relating to water
rights recognized under the 2007 Agreement, any final court
decree entered in the Federal District Court for the Eastern
District of California, or this subtitle;
(2) all claims relating to the right to use and protect
water rights acquired after the date of enactment of this
Act;
(3) claims regarding the quality of water under--
(A) the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9601 et seq.), including
claims for damages to natural resources;
(B) the Safe Drinking Water Act (42 U.S.C. 300f et seq.);
(C) the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.) (commonly referred to as the ``Clean Water Act'');
and
(D) any regulations implementing the Acts described in
subparagraphs (A) through (C);
(4) all claims for damage, loss, or injury to land or
natural resources that are not due to loss of water or water
rights, including hunting, fishing, gathering, or cultural
rights; and
(5) all rights, remedies, privileges, immunities, and
powers not specifically waived and released pursuant to this
subtitle or the 2007 Agreement.
(d) Effect of 2007 Agreement and Act.--Nothing in the 2007
Agreement or this subtitle--
(1) affects the authority of the Tribe to enforce the laws
of the Tribe, including with respect to environmental
protections or reduces or extends the sovereignty (including
civil and criminal jurisdiction) of any government entity;
(2) affects the ability of the United States, acting as
sovereign, to carry out any activity authorized by law,
including--
(A) the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9601 et seq.);
(B) the Safe Drinking Water Act (42 U.S.C. 300f et seq.);
(C) the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.);
(D) the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.);
and
(E) any regulations implementing the Acts described in
subparagraphs (A) through (D);
(3) affects the ability of the United States to act as
trustee for any other Indian Tribe or an allottee of any
other Indian Tribe;
(4) confers jurisdiction on any State court--
(A) to interpret Federal law relating to health, safety, or
the environment;
(B) to determine the duties of the United States or any
other party under Federal law regarding health, safety, or
the environment;
(C) to conduct judicial review of any Federal agency
action; or
(D) to interpret Tribal law; or
(5) waives any claim of a member of the Tribe in an
individual capacity that does not derive from a right of the
Tribe.
(e) Tolling of Claims.--
(1) In general.--Each applicable period of limitation and
time-based equitable defense relating to a claim described in
this section shall be tolled for the period beginning on the
date of enactment of this Act and ending on the
Enforceability Date.
(2) Effect of subsection.--Nothing in this subsection
revives any claim or tolls any period of limitation or time-
based equitable defense that expired before the date of
enactment of this Act.
(3) Limitation.--Nothing in this section precludes the
tolling of any period of limitations or any time-based
equitable defense under any other applicable law.
(f) Expiration.--
(1) In general.--This subtitle shall expire in any case in
which the Secretary fails to publish a statement of findings
under section 1092 by not later than--
(A) 8 years from the date of enactment of this Act; or
(B) such alternative later date as is agreed to by the
Tribe and the Secretary, after providing reasonable notice to
the State of California.
(2) Consequences.--If this subtitle expires under paragraph
(1)--
(A) the waivers and releases under subsection (a) shall--
(i) expire; and
(ii) have no further force or effect;
(B) the authorization, ratification, confirmation, and
execution of the 2007 Agreement under section 1085 shall no
longer be effective;
(C) any action carried out by the Secretary, and any
contract or agreement entered into pursuant to this subtitle,
shall be void;
(D) any unexpended Federal funds appropriated or made
available to carry out the activities authorized by this
subtitle, together with any interest earned on those funds,
and any water rights or contracts to use water and title to
other property acquired or constructed with Federal funds
appropriated or made available to carry out the activities
authorized by this subtitle shall be returned to the Federal
Government, unless otherwise agreed to by the Tribe and the
United States and approved by Congress; and
(E) except for Federal funds used to acquire or construct
property that is returned to the Federal Government under
subparagraph (D), the United States shall be entitled to
offset any Federal funds made available to carry out this
subtitle that were expended or withdrawn, or any funds made
available to carry out this subtitle from other Federal
authorized sources, together with any interest accrued on
those funds, against any claims against the United States--
(i) relating to--
(I) water rights in the State of California asserted by--
(aa) the Tribe; or
(bb) any user of the Tribal Water Right; or
(II) any other matter covered by subsection (a)(2); or
(ii) in any future settlement of water rights of the Tribe.
SEC. 1092. ENFORCEABILITY DATE.
The Enforceability Date shall be the date on which the
Secretary publishes in the Federal Register a statement of
findings that--
(1) to the extent that the 2007 Agreement conflicts with
the subtitle, the 2007 Agreement has been amended to conform
with this subtitle;
(2) the 2007 Agreement, so revised, includes waivers and
releases of claims set forth in section 1091 and has been
executed by the parties, including the United States;
(3) a final judgment and decree approving the 2007
Agreement, including Operation Rules, and binding all parties
to the action has been entered by the Court, and all appeals
have been exhausted;
(4) all of the amounts authorized to be appropriated under
section 1088(a) have been appropriated and deposited in the
designated accounts; and
(5) the waivers and releases under section 1091(a) have
been executed by the Tribe and the Secretary.
SEC. 1093. BINDING EFFECT; JUDICIAL APPROVAL; ENFORCEABILITY.
(a) In General.--
(1) Lawsuit.--1 or more Parties may file suit in the Court
requesting the entry of a final judgement and decree
approving the Tribal Water Right and the 2007 Agreement,
provided that no such suit shall be filed until after--
(A) the Tribe has confirmed that the Phase I Reservoir will
be sited at the location described in section 3.4.B.(1) of
the 2007 Agreement and that Exhibit E governs operation of
the Phase I Reservoir; or
(B) the Tribe has selected a substitute site for the Phase
I Reservoir pursuant to section 3.4.B.(2)(a) of the 2007
Agreement and--
(i) the Parties have agreed on Operation Rules and the
Secretary has executed the 2007 Agreement; or
(ii) if the Parties have reached an impasse in attempting
to negotiate Operation Rules, at least 1 Party has developed
proposed Operation Rules to submit for judicial review and
approval, and has shared the proposed Operation Rules with
the other Parties at least 90 days in advance of filing the
lawsuit.
(2) Joining united states as party.--Where suit is filed
pursuant to this subsection, including the satisfaction of
the requirements in subparagraph (A) or (B) of paragraph (1),
the United States may be joined in litigation for the
purposes set forth in this section.
(b) Judicial Approval.--The Court shall have exclusive
jurisdiction to review and determine whether to approve the
Tribal Water Right and the 2007 Agreement, and on doing so
over any cause of action initiated by any Party arising from
a dispute over the interpretation of the 2007 Agreement or
this subtitle, and any cause of action initiated by any Party
for the enforcement of the 2007 Agreement.
(c) Failure To Agree on Operation Rules.--
(1) In general.--Subject to subsection (a)(1)(B)(ii), the
Court shall have jurisdiction over a cause of action that a
Party initiates
[[Page S2714]]
to establish Operation Rules, where the Parties failed to
reach agreement on such Operation Rules.
(2) Voluntary dispute resolution.--If a suit is filed under
paragraph (1), the Court shall refer the Parties to the
voluntary dispute resolution program of the Court.
(3) Court selection of operation rules.--
(A) In general.--If the voluntary dispute resolution
program does not, after a reasonable amount of time as
determined by the Court, result in agreed-on Operation Rules,
the Court shall set a deadline by which any Party or
Downstream Water User may submit proposed Operation Rules
and, after briefing and hearing evidence, select among the
proffered Operation Rule based on the criteria set forth in
paragraph (4).
(B) Implementation of agreed-on operation rules.--Once the
Court selects Operation Rules pursuant to subparagraph (A),
such Operation Rules shall thereafter control and shall be
implemented by the Parties pursuant to the terms directed by
the Court.
(4) Criteria for court selection of operation rules.--
(A) In general.--The Court shall select the proffered
Operation Rules that, if implemented, would be the most
effective in--
(i) regulating the flows in the South Tule River to comply
with the terms contained in the 2007 Agreement and the
following diversion limits, where the South Tule Independent
Ditch Company's point of diversion is the point of
measurement, including--
(I) where the natural flow is less than 3 cubic feet per
second (referred to in this clause as ``cfs''), the Tribe has
a right to 1 cfs;
(II) where the natural flow is greater than or equal to 3
cfs and less than 5 cfs, the Tribe has a right to 1\1/2\ cfs;
(III) where the natural flow is greater than or equal to 5
cfs and less than 10 cfs, the Tribe has a right to 2 cfs; and
(IV) where the natural flow is greater than or equal to 10
cfs, the Tribe has a right to any amount;
(ii) minimizing adverse impact on the Parties other than
the Tribe; and
(iii) maintaining the right of the Tribe to the reasonable
and economic use of water for domestic and stock purposes on
the Reservation.
(B) Consideration of exhibit e.--In applying the criteria
set forth in subparagraph (A), the Court should consider the
Operation Rules governing the Phase I Reservoir described in
section 3.4.B.(1) of the 2007 Agreement, as set forth in
Exhibit E to the 2007 Agreement, which the Parties agreed on
based on consideration of those criteria.
(C) Inconsistency of proposed operation rules with
criteria.--
(i) In general.--The Court shall not approve the 2007
Agreement if the Court finds that none of the proffered
Operation Rules are consistent with the criteria set forth in
subparagraph (A).
(ii) Alternative operation rules.--If the Court finds that
none of the proffered Operation Rules are consistent with the
criteria set forth in subparagraph (A), the Court may
establish an alternate process to allow the Parties to
develop alternate Operation Rules that are consistent with
those criteria.
SEC. 1094. MISCELLANEOUS PROVISIONS.
(a) Waiver of Sovereign Immunity by the United States.--
Nothing in this subtitle waives the sovereign immunity of the
United States, except as provided in section 1093(a)(2).
(b) Other Tribes Not Adversely Affected.--Nothing in this
subtitle quantifies or diminishes any land or water right, or
any claim or entitlement to land or water, of an Indian
Tribe, band, or community other than the Tribe.
(c) Other Water Rights of United States Not Adversely
Affected.--Nothing in this subtitle quantifies or diminishes
any other water right held by the United States other than as
a Downstream Water User.
(d) Effect on Current Law.--Nothing in this subtitle
affects any provision of law (including regulations) in
effect on the day before the date of enactment of this Act
with respect to pre-enforcement review of any Federal
environmental enforcement action.
(e) Conflict.--In the event of a conflict between the 2007
Agreement and this subtitle, this subtitle shall control.
SEC. 1095. ANTIDEFICIENCY.
The United States shall not be liable for any failure to
carry out any obligation or activity authorized by this
subtitle, including any obligation or activity under the 2007
Agreement if adequate appropriations are not provided by
Congress expressly to carry out the purposes of this
subtitle.
______