House Report 106-743 - SHIVWITS BAND OF THE PAIUTE INDIAN TRIBE OF UTAH WATER RIGHTS SETTLEMENT ACT

[House Report 106-743]
[From the U.S. Government Publishing Office]

106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-743

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SHIVWITS BAND OF THE PAIUTE INDIAN TRIBE OF UTAH WATER RIGHTS
SETTLEMENT ACT

_______

July 17, 2000.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed

_______

Mr. Young of Alaska, from the Committee on Resources, submitted the
following

R E P O R T

[To accompany H.R. 3291]

[Including cost estimate of the Congressional Budget Office]

The Committee on Resources, to whom was referred the bill
(H.R. 3291) to provide for the settlement of the water rights
claims of the Shivwits Band of the Paiute Indian Tribe of Utah,
and for other purposes, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Shivwits Band of the Paiute Indian
Tribe of Utah Water Rights Settlement Act''.

SEC. 2. FINDINGS.

Congress finds the following:
(1) It is the official policy of the United States, in
keeping with its trust responsibility to Indian tribes, to
promote Indian self-determination and economic self-
sufficiency, and to settle the water rights claims of Indian
tribes to avoid lengthy and costly litigation.
(2) Any meaningful policy of Indian self-determination and
economic self-sufficiency requires the development of viable
Indian reservation economies.
(3) The quantification of water rights and the development of
water use facilities is essential to the development of viable
Indian reservation economies, particularly in the arid Western
States.
(4) The Act of March 3, 1891, provided for the temporary
support of the Shebit (or Shivwits) tribe of Indians in
Washington County, Utah, and appropriated moneys for the
purchase of improvements on lands along the Santa Clara River
for the use of said Indians. Approximately 26,880 acres in the
same area were set aside as a reservation for the Shivwits Band
by Executive order dated April 21, 1916. An additional 1,280
acres were added to the reservation by Congress on May 28,
1937.
(5) The waters of the Santa Clara River are fully
appropriated except during high flow periods. A water right was
awarded to the United States for the benefit of the Shivwits
Band in the 1922 adjudication entitled St. George Santa Clara
Field Co., et al. v. Newcastle Reclamation Co., et al., for
``1.38 cubic feet of water per second for the irrigation of
83.2 acres of land and for culinary, domestic, and stock
watering purposes'', but no provision has been made for water
resource development to benefit the Shivwits Band. In general,
the remainder of the Santa Clara River's flow is either
diverted on the reservation and delivered through a canal
devoted exclusively to non-Indian use that traverses the
reservation to a reservoir owned by the Ivins Irrigation
Company; dedicated to decreed and certificated rights of
irrigation companies downstream of the reservation; or
impounded in the Gunlock Reservoir upstream of the reservation.
The Band's lack of access to water has frustrated its efforts
to achieve meaningful self-determination and economic self-
sufficiency.
(6) On July 21, 1980, the State of Utah, pursuant to title
73, chapter 4, Utah Code Ann., initiated a statutory
adjudication of water rights in the Fifth Judicial District
Court in Washington County, Utah, Civil No. 800507596, which
encompasses all of the rights to the use of water, both surface
and underground, within the drainage area of the Virgin River
and its tributaries in Utah (``Virgin River Adjudication''),
including the Santa Clara River Drainage (``Santa Clara
System'').
(7) The United States was joined as a party in the Virgin
River Adjudication pursuant to section 666 of title 43, United
States Code. On February 17, 1987, the United States filed a
Statement of Water User Claim asserting water rights and
aboriginal claims for the benefit of the Shivwits Band to water
from the Santa Clara River System; said claim covered all
potential water rights for Indian tribes or bands in the Virgin
River System.
(8) The Virgin River Adjudication will take many years to
conclude, entail great expense, and prolong uncertainty as to
the availability of water supplies, and thus the parties have
sought to settle their dispute over water and reduce the
burdens of litigation.
(9) After lengthy negotiation, which included participation
by representatives of the United States Government for the
benefit of the Shivwits Band, the State of Utah, the Shivwits
Band, the Washington County Water Conservancy District, the
city of St. George, and others on the Santa Clara River System,
the parties have entered into agreements to resolve all water
rights claims between and among themselves and to quantify the
water right entitlement of the Shivwits Band, and to provide
for the construction of water projects to facilitate the
settlement of these claims.
(10) Pursuant to the St. George Water Reuse Project
Agreement, the Santa Clara Project Agreement, and the
Settlement Agreement, the Shivwits Band will receive the right
to a total of 4,000 acre-feet of water annually in settlement
of its existing State law claims and Federal reserved water
right claims.
(11) To advance the goals of Federal Indian policy and
consistent with the trust responsibility of the United States
to the Shivwits Band, it is appropriate that the United States
participate in the implementation of the St. George Water Reuse
Project Agreement, the Santa Clara Project Agreement, and the
Settlement Agreement in accordance with this Act.

SEC. 3. PURPOSES.

The purposes of this Act are--
(1) to achieve a fair, equitable, and final settlement of all
claims to water rights in the Santa Clara River for the
Shivwits Band, and the United States for the benefit of the
Shivwits Band;
(2) to promote the self-determination and economic self-
sufficiency of the Shivwits Band, in part by providing funds to
the Shivwits Band for its use in developing a viable
reservation economy;
(3) to approve, ratify, and confirm the St. George Water
Reuse Project Agreement, the Santa Clara Project Agreement, and
the Settlement Agreement, and the Shivwits Water Right
described therein;
(4) to authorize the Secretary of the Interior to execute the
St. George Water Reuse Project Agreement, the Santa Clara
Project Agreement, and the Settlement Agreement, and to take
such actions as are necessary to implement these agreements in
a manner consistent with this Act; and
(5) to authorize the appropriation of funds necessary for
implementation of the St. George Water Reuse Project Agreement,
the Santa Clara Project Agreement, and the Settlement
Agreement.

SEC. 4. DEFINITIONS.

In this Act:
(1) Secretary.--The term ``Secretary'' means the Secretary of
the Interior.
(2) Utah.--The term ``Utah'' means the State of Utah, by and
through its Department of Natural Resources.
(3) Shivwits band.--The term ``Shivwits Band'' means the
Shivwits Band of the Paiute Indian Tribe of Utah, a constituent
band of the Paiute Indian Tribe of Utah, a federally recognized
Indian tribe organized under section 16 of the Indian
Reorganization Act of June 18, 1934 (48 Stat. 987; 25 U.S.C.
476), and the Act of April 3, 1980 (94 Stat. 317).
(4) Paiute indian tribe of utah.--The term ``Paiute Indian
Tribe of Utah'' means the federally recognized Indian Tribe
organized under section 16 of the Indian Reorganization Act of
June 18, 1934 (48 Stat. 987; 25 U.S.C. 476), and the Act of
April 3, 1980 (94 Stat. 317), comprised of five bands of
Southern Paiute Indians (Shivwits, Indian Peaks, Cedar,
Koosharem, and Kanosh Bands).
(5) District.--The term ``District'' means the Washington
County Water Conservancy District, a Utah water conservancy
district.
(6) St. george.--The term ``St. George'' means St. George
City, a Utah municipal corporation.
(7) Virgin river adjudication.--The term ``Virgin River
Adjudication'' means the statutory adjudication of water rights
initiated pursuant to title 73, chapter 4, Utah Code Ann. and
pending in the Fifth Judicial District Court in Washington
County, Utah, Civil No. 800507596.
(8) St. george water reuse project agreement.--The term ``St.
George Water Reuse Project Agreement'' means the agreement
among the United States for the benefit of the Shivwits Band,
Utah, the Shivwits Band, and St. George City, together with all
exhibits thereto, as the same is approved and executed by the
Secretary of the Interior pursuant to section 8 of this Act.
(9) Santa clara project agreement.--The term ``Santa Clara
Project Agreement'' means the agreement among the United States
for the benefit of the Shivwits Band, Utah, the Shivwits Band,
the Washington County Water Conservancy District, St. George
City, the New Santa Clara Field Canal Company, the St. George
Clara Field Canal Company, the Ivins Irrigation Company, the
Southgate Irrigation Company, Bloomington Irrigation Company,
Ed Bowler, and the Lower Gunlock Reservoir Company, together
with all exhibits thereto, as the same is approved and executed
by the Secretary of the Interior pursuant to section 8 of this
Act.
(10) Settlement agreement.--The term ``Settlement Agreement''
means that agreement among the United States for the benefit of
the Shivwits Band, Utah, the Shivwits Band, the Washington
County Water Conservancy District, St. George City, the New
Santa Clara Field Canal Company, the St. George Clara Field
Canal Company, the Ivins Irrigation Company, the Southgate
Irrigation Company, Bloomington Irrigation Company, Ed Bowler,
and the Lower Gunlock Reservoir Company, together with all
exhibits thereto, as the same is approved and executed by the
Secretary of the Interior pursuant to section 8 of this Act.
(11) Shivwits water right.--The term ``Shivwits Water Right''
means the water rights of the Shivwits Band set forth in the
Settlement Agreement and as settled, confirmed, and ratified by
section 7 of this Act.
(12) Shivwits band trust fund.--The term ``Shivwits Band
Trust Fund'' means the Trust Fund authorized in section 11 of
this Act to further the purposes of the Settlement Agreement
and this Act.
(13) Virgin river resource management and recovery program.--
The term ``Virgin River Resource Management and Recovery
Program'' means the proposed multiagency program, to be
administered by the United States Fish and Wildlife Service,
Bureau of Land Management, National Park Service, Utah, and the
District, whose primary purpose is to prioritize and implement
native fish recovery actions that offset impacts due to future
water development in the Virgin River basin.

SEC. 5. ST. GEORGE WATER REUSE PROJECT.

(a) St. George Water Reuse Project.--The St. George Water Reuse
Project shall consist of water treatment facilities, a pipeline, and
associated pumping and delivery facilities owned and operated by St.
George, which is a component of, and shall divert water from, the Water
Reclamation Facility located in St. George, Utah, and shall transport
this water for delivery to and use by St. George and the Shivwits Band.
St. George shall make 2,000 acre-feet of water available annually for
use by the Shivwits Band in accordance with the St. George Water Reuse
Project Agreement and this Act.
(b) Project Construction Operation and Maintenance.--(1) St. George
shall be responsible for the design, engineering, permitting,
construction, operation, maintenance, repair, and replacement of the
St. George Water Reuse Project, and the payment of its proportionate
share of these project costs as provided for in the St. George Water
Reuse Project Agreement.
(2) The Shivwits Band and the United States for the benefit of the
Shivwits Band shall make available, in accordance with the terms of the
St. George Water Reuse Agreement and this Act, a total of $15,000,000
to St. George for the proportionate share of the design, engineering,
permitting, construction, operation, maintenance, repair, and
replacement of the St. George Water Reuse Project associated with the
2,000 acre-feet annually to be provided to the Shivwits Band.

SEC. 6. SANTA CLARA PROJECT.

(a) Santa Clara Project.--The Santa Clara Project shall consist of a
pressurized pipeline from the existing Gunlock Reservoir across the
Shivwits Reservation to and including Ivins Reservoir, along with main
lateral pipelines. The Santa Clara Project shall pool and deliver the
water rights of the parties as set forth in the Santa Clara Project
Agreement. The Santa Clara Project shall deliver to the Shivwits Band a
total of 1,900 acre-feet annually in accordance with the Santa Clara
Project Agreement and this Act.
(b) Instream Flow.--The Santa Clara Project shall release instream
flow water from the Gunlock Reservoir into the Santa Clara River for
the benefit of the Virgin Spinedace, in accordance with the Santa Clara
Project Agreement and this Act.
(c) Project Funding.--The Utah Legislature and the United States
Congress have each appropriated grants of $750,000 for the construction
of the Santa Clara Project. The District shall provide a grant of
$750,000 for the construction of the Santa Clara Project. The District
shall provide any additional funding required for the construction of
the Santa Clara Project.
(d) Project Construction, Operation, and Maintenance.--The District
shall be responsible for the permitting, design, engineering,
construction, and the initial operation, maintenance, repair, and
replacement of the Santa Clara Project. Operation, maintenance, repair,
and replacement activities and costs of the Santa Clara Project shall
be handled in accordance with the terms of the Santa Clara Project
Agreement.

SEC. 7. SHIVWITS WATER RIGHT.

(a) In General.--The Shivwits Band and its members shall have the
right in perpetuity to divert, pump, impound, use, and reuse a total of
4,000 acre-feet of water annually from the Virgin River and Santa Clara
River systems, to be taken as follows:
(1) 1,900 acre-feet annually from the Santa Clara River
System, with an 1890 priority date in accordance with the terms
of the Santa Clara Project Agreement.
(2) 2,000 acre-feet of water annually from the St. George
Water Reuse Project as provided for in the St. George Water
Reuse Project Agreement. The Shivwits Band shall have first
priority to the reuse water provided from the St. George Water
Reclamation Facility.
(3) 100 acre-feet annually, with a 1916 priority date, from
groundwater on the Shivwits Reservation.
(b) Water Rights Claims.--All water rights claims of the Shivwits
Band, and the Paiute Indian Tribe of Utah acting on behalf of the
Shivwits Band, are hereby settled. The Shivwits Water Right is hereby
ratified, confirmed, and shall be held in trust by the United States
for the benefit of the Shivwits Band.
(c) Settlement.--The Shivwits Band may use water from the springs and
runoff located on the Shivwits Reservation. The amount used from these
sources will be reported annually to the Utah State Engineer by the
Shivwits Band and shall be counted against the annual 4,000 acre-feet
Shivwits Water Right.
(d) Abandonment, Forfeiture, or Nonuse.--The Shivwits Water Right
shall not be subject to loss by abandonment, forfeiture, or nonuse.
(e) Use of Lease.--The Shivwits Band may use or lease the Shivwits
Water Right for either or both of the following:
(1) For any purpose permitted by tribal or Federal law
anywhere on the Shivwits Band Reservation. Once the water is
delivered to the Reservation, such use shall not be subject to
State law, regulation, or jurisdiction.
(2) For any beneficial use off the Shivwits Reservation in
accordance with the St. George Water Reuse Agreement, the Santa
Clara Project Agreement, the Settlement Agreement, and all
applicable Federal and State laws.
No service contract, lease, exchange, or other agreement entered into
under this subsection may permanently alienate any portion of the
Shivwits Water Right.

SEC. 8. RATIFICATION OF AGREEMENTS.

Except to the extent that the St. George Water Reuse Project
Agreement, the Santa Clara Project Agreement, and the Settlement
Agreement conflict with the provisions of this Act, such agreements are
hereby approved, ratified, and confirmed. The Secretary is hereby
authorized to execute, and take such other actions as are necessary to
implement, such agreements.

SEC. 9. SATISFACTION OF CLAIMS.

(a) Full Satisfaction of Claims.--The benefits realized by the
Shivwits Band and its members under the St. George Water Reuse Project
Agreement, the Santa Clara Project Agreement, the Settlement Agreement,
and this Act shall constitute full and complete satisfaction of all
water rights claims, and any continuation thereafter of any of these
claims, of the Shivwits Band and its members, and the Paiute Indian
Tribe of Utah acting on behalf of the Shivwits Band, for water rights
or injuries to water rights under Federal and State laws from time
immemorial to the effective date of this Act. Notwithstanding the
foregoing, nothing in this Act shall be--
(1) deemed to recognize or establish any right of a member of
the Shivwits Band to water on the Shivwits Reservation; or
(2) interpreted or construed to prevent or prohibit the
Shivwits Band from participating in the future in other water
projects, or from purchasing additional water rights for their
benefit and use, to the same extent as any other entity.
(b) Release.--By the approval, ratification, and confirmation herein
of the St. George Water Reuse Project Agreement, the Santa Clara
Project Agreement, and the Settlement Agreement, the United States
executes the following waiver to be effective upon satisfaction of the
conditions set forth in section 14 of this Act. For purposes of this
section--
(1) ``water rights'' means rights under State and Federal law
to divert, pump, impound, use, or reuse, or to permit others to
divert, pump, impound, use or reuse water; and
(2) ``injuries to water rights'' means the loss, deprivation,
or diminution of water rights.
(c) Waiver and Release.--Except as otherwise provided in the
Settlement Agreement, this Act, or the proposed judgment and decree
referred to in section 14(a)(7) of this Act, the United States, on
behalf of the Shivwits Band and the Paiute Indian Tribe of Utah acting
on behalf of the Shivwits Band, waives and releases the following:
(1) All claims for water rights or injuries to water rights
for lands within the Shivwits Reservation that accrued at any
time up to and including the effective date determined by
section 14 of this Act, and any continuation thereafter of any
of these claims, that the United States for the benefit of the
Shivwits Band may have against Utah, any agency or political
subdivision thereof, or any person, entity, corporation, or
municipal corporation.
(2) All claims for water rights or injuries to water rights
for lands outside of the Shivwits Reservation, where such
claims are based on aboriginal occupancy of the Shivwits Band,
its members, or their predecessors, that accrued at any time up
to and including the effective date determined by section 14 of
this Act, and any continuation thereafter of any of these
claims, that the United States for the benefit of the Shivwits
Band may have against Utah, any agency or political subdivision
thereof, or any person, entity, corporation, or municipal
corporation.
(3) All claims for trespass to lands on the Shivwits
Reservation regarding the use of Ivins Reservoir that accrued
at any time up to and including the effective date determined
by section 14 of this Act.
(d) Savings Provision.--In the event the authorizations contained in
subsection (d) of this section do not become effective pursuant to
section 14, the Shivwits Band and the United States shall retain the
right to assert past and future water rights claims as to all lands of
the Shivwits Reservation, and the water rights claims and defenses of
all other parties to the agreements shall also be retained.

SEC. 10. WATER RIGHTS AND HABITAT ACQUISITION PROGRAM.

(a) In General.--The Secretary is authorized to establish a water
rights and habitat acquisition program in the Virgin River Basin--
(1) primarily for the benefit of native plant and animal
species in the Santa Clara River Basin which have been listed,
are likely to be listed, or are the subject of a duly approved
conservation agreement under the Endangered Species Act; and
(2) secondarily for the benefit of native plant and animal
species in other parts of the Virgin River Basin which have
been listed, are likely to be listed, or are the subject of a
duly approved conservation agreement under the Endangered
Species Act.
(b) Water and Water Rights.--The Secretary is authorized to acquire
water and water rights, with or without the lands to which such rights
are appurtenant, and to acquire shares in irrigation and water
companies, and to transfer, hold, and exercise such water and water
rights and related interests to assist the conservation and recovery of
any native plant or animal species described in subsection (a).
(c) Requirements.--Acquisition of the water rights and related
interests pursuant to this section shall be subject to the following
requirements:
(1) Water rights acquired must satisfy eligibility criteria
adopted by the Secretary.
(2) Water right purchases shall be only from willing sellers,
but the Secretary may target purchases in areas deemed by the
Secretary to be most beneficial to the water rights acquisition
program established by this section.
(3) All water rights shall be transferred and administered in
accordance with any applicable State law.
(d) Habitat Property.--The Secretary is authorized to acquire, hold,
and transfer habitat property to assist the conservation and recovery
of any native plant or animal species described in section 10(a).
Acquisition of habitat property pursuant to this section shall be
subject to the following requirements:
(1) Habitat property acquired must satisfy eligibility
criteria adopted by the Secretary.
(2) Habitat property purchases shall be only from willing
sellers, but the Secretary may target purchases in areas deemed
by the Secretary to be most beneficial to the habitat
acquisition program established by this section.
(e) Contract.--The Secretary is authorized to administer the water
rights and habitat acquisition program by contract or agreement with a
non-Federal entity which the Secretary determines to be qualified to
administer such program. The water rights and habitat acquisition
program shall be administered pursuant to the Virgin River Resource
Management and Recovery Program.
(f) Authorization.--There is authorized to be appropriated from the
Land and Water Conservation Fund in fiscal year 2003 or any year
thereafter, a total of $3,000,000 for the water rights and habitat
acquisition program authorized in this section. The Secretary is
authorized to deposit and maintain this appropriation in an interest
bearing account, said interest to be used for the purposes of this
section. The funds authorized to be appropriated by this section shall
not be in lieu of or supersede any other commitments by Federal, State,
or local agencies. The funds appropriated pursuant to this section
shall be available until expended, and shall not be expended for the
purpose set forth in subsection (a)(2) until the Secretary has
evaluated the effectiveness of the instream flow required and provided
by the Santa Clara Project Agreement, and has assured that the
appropriations authorized in this section are first made available for
the purpose set forth in subsection (a)(1).

SEC. 11. SHIVWITS BAND TRUST FUND.

(a) Establishment of Trust Fund.--There is established in the
Treasury of the United States a fund to be known as the ``Shivwits Band
Trust Fund'' (hereinafter called the ``Trust Fund''). The Secretary
shall deposit into the Trust Fund the funds authorized to be
appropriated in subsections (b) and (c). Except as otherwise provided
in this Act, the Trust Fund principal and any income accruing thereon
shall be managed in accordance with the American Indian Trust Fund
Management Reform Act (108 Stat. 4239; 25 U.S.C. 4001 et seq.).
(b) Authorization.--There is authorized to be appropriated a total of
$20,000,000, in the 2001, 2002, or 2003 fiscal years for the following
purposes:
(1) $5,000,000, which shall be made available to the Shivwits
Band from the Trust Fund for purposes including but not limited
to those that would enable the Shivwits Band to put to
beneficial use all or part of the Shivwits Water Right, to
defray the costs of any water development project in which the
Shivwits Band is participating, or to undertake any other
activity that may be necessary or desired for implementation of
the St. George Water Reuse Project Agreement, the Santa Clara
Project Agreement, the Settlement Agreement, or for economic
development on the Shivwits Reservation.
(2) $15,000,000, which shall be made available by the
Secretary and the Shivwits Band to St. George for the St.
George Water Reuse Project, in accordance with the St. George
Water Reuse Project Agreement.
(c) Share of Certain Costs.--There is authorized to be appropriated
to the Trust Fund in fiscal year 2001, 2002, or 2003 a total of
$1,000,000 to assist with the Shivwits Band's proportionate share of
operation, maintenance, repair, and replacement costs of the Santa
Clara Project as provided for in the Santa Clara Project Agreement.
(d) Use of the Trust Fund.--Except for the $15,000,000 appropriated
pursuant to subsection (b)(2), all Trust Fund principal and income
accruing thereon may be used by the Shivwits Band for the purposes
described in subsection (b)(1). The Shivwits Band, with the approval of
the Secretary, may withdraw the Trust Fund and deposit it in a mutually
agreed upon private financial institution. That withdrawal shall be
made pursuant to the American Indian Trust Fund Management Reform Act
of 1994 (25 U.S.C. 4001 et seq.). If the Shivwits Band exercises its
right pursuant to this subsection to withdraw the Trust Fund and
deposit it in a private financial institution, except as provided in
the withdrawal plan, neither the Secretary nor the Secretary of the
Treasury shall retain any oversight over or liability for the
accounting, disbursement, or investment of the funds.
(e) No Per Capita Payments.--No part of the principal of the Trust
Fund, or of the income accruing thereon, or of any revenue generated
from any water use subcontract, shall be distributed to any member of
the Shivwits Band on a per capita basis.
(f) Limitation.--The moneys authorized to be appropriated under
subsections (b) and (c) shall not be available for expenditure or
withdrawal by the Shivwits Band until the requirements of section 14
have been met so that the decree has become final and the waivers and
releases executed pursuant to section 9(b) have become effective. Once
the settlement becomes effective pursuant to the terms of section 14 of
this Act, the assets of the Trust Fund belong to the Shivwits Band and
are not returnable to the United States Government.

SEC. 12. ENVIRONMENTAL COMPLIANCE.

(a) National Environmental Policy Act.--Execution by the Secretary of
the St. George Water Reuse Project Agreement, the Santa Clara Project
Agreement, or the Settlement Agreement shall not constitute major
Federal action under the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.).
(b) Other Requirements.--The Secretary shall comply with all other
aspects of the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.), and other applicable environmental laws in implementing
the terms of the St. George Water Reuse Agreement, the Santa Clara
Project Agreement, the Settlement Agreement, and this Act.

SEC. 13. MISCELLANEOUS PROVISIONS.

(a) Other Indian Tribes.--Nothing in the Settlement Agreement or this
Act shall be construed in any way to quantify or otherwise adversely
affect the land and water rights, claims, or entitlements to water of
any Indian tribe, pueblo, or community, other than the Shivwits Band
and the Paiute Indian Tribe of Utah acting on behalf of the Shivwits
Band.
(b) Precedent.--Nothing in this Act shall be construed or interpreted
as a precedent for the litigation of reserved water rights or the
interpretation or administration of future water settlement Acts.
(c) Waiver of Sovereign Immunity.--Except to the extent provided in
subsections (a), (b), and (c) of section 208 of the Department of
Justice Appropriation Act, 1953 (43 U.S.C. 666), nothing in this Act
may be construed to waive the sovereign immunity of the United States.
Furthermore, the submission of any portion of the Settlement Agreement
to the District Court in the Virgin River Adjudication shall not expand
State court jurisdiction or expand in any manner the waiver of
sovereign immunity of the United States in section 666 of title 43,
United States Code, or any other provision of Federal law.
(d) Appraisals.--Notwithstanding any other law to the contrary, the
Secretary is authorized to approve any right-of-way appraisal which has
been completed in accordance with the provisions of the Santa Clara
Project Agreement.

SEC. 14. EFFECTIVE DATE.

(a) In General.--The authorization contained in section 9(b) of this
Act shall become effective as of the date the Secretary causes to be
published in the Federal Register a statement of findings that--
(1) the funds authorized by section 11 (b) and (c) have been
appropriated and deposited into the Trust Fund;
(2) the funds authorized by section 10(c) have been
appropriated;
(3) the St. George Water Reuse Project Agreement has been
modified to the extent it is in conflict with this Act and has
been executed by all parties thereto;
(4) the Santa Clara Project Agreement has been modified to
the extent it is in conflict with this Act and has been
executed by all parties thereto;
(5) the Settlement Agreement has been modified to the extent
it is in conflict with this Act and has been executed by all
parties thereto;
(6) the State Engineer of Utah has taken all actions and
approved all applications necessary to implement the provisions
of the St. George Water Reuse Agreement, the Santa Clara
Project Agreement, and the Settlement Agreement, from which no
further appeals may be taken; and
(7) the court has entered a judgment and decree confirming
the Shivwits Water Right in the Virgin River Adjudication
pursuant to Utah Rule of Civil Procedure 54(b), that confirms
the Shivwits Water Right and is final as to all parties to the
Santa Clara Division of the Virgin River Adjudication and from
which no further appeals may be taken, which the United States
and Utah find is consistent in all material aspects with the
Settlement Agreement and with the proposed judgment and decree
agreed to by the parties to the Settlement Agreement.
(b) Deadline.--If the requirements of paragraphs (1) through (7) of
subsection (a) are not completed to allow the Secretary's statement of
findings to be published by December 31, 2003--
(1) except as provided in section 9(c), this Act shall be of
no further force and effect; and
(2) all unexpended funds appropriated under section 11 (b)
and (c), together with all interest earned on such funds shall
revert to the general fund of the United States Treasury on
December 31, 2004.

PURPOSE OF THE BILL

The purpose of H.R. 3291 is to provide for the settlement
of the water rights claims of the Shivwits Band of the Paiute
Indian Tribe of Utah, and for other purposes.

BACKGROUND AND NEED FOR LEGISLATION

On July 21, 1980, the State of Utah initiated a statutory
adjudication of water rights within the drainage of the Virgin
River, including the Santa Clara River. The United States was
joined as a party in the Virgin River Adjudication and filed a
claim on its own behalf and on behalf of the Shivwits Band of
Paiute Indian Tribe as their trustee. However, due to the time
and expense of such adjudication, the parties have entered into
agreements to resolve the water rights claims by construction
of two water projects and guaranteeing 4,000 acre-feet of water
per year to the Shivwits. These projects are particularly
necessary due to the variability of water flows in the Santa
Clara River.
First, the St. George Water Reuse Project, consisting of
water treatment facilities, a pipeline, and other associated
facilities, would be built to provide reuse water to St.
George, Utah, and provide 2,000 acre-feet annually to the
Shivwits Band. Construction cost for the project, amounting to
$15 million, would be provided by the Shivwits Band and the
United States pursuant to this legislation.
Second, the Santa Clara Project, a pressurized pipeline,
would pool and deliver water, including 1,900 acre-feet in an
average or above average year to the Shivwits Band.
Additionally, the Santa Clara Project would release instream
flow water from the Gunlock Reservoir for the benefit of the
Virgin Spinedace, a fish. Utah, the United States, the
Washington County Water Conservancy District would each
contribute a grant of $750,000 for the construction of this
project. The District will provide any additional funding
required for the construction of the project. The United States
would make available to the Shivwits Band $1 million to cover
the Shivwits' proportionate share of the operation, maintenance
repair and replacement costs of the Project.
Third, the Shivwits would receive the right to 100 acre-
feet annually of groundwater produced from wells on the
Shivwits Reservation. A $5 million Trust Fund is established
for the Shivwits for the purposes of using the Shivwits water,
defraying other water development project costs or for economic
development on the reservation.
Finally, this legislation authorizes the Secretary of the
Interior to establish a water right and habitat acquisition
program in the Virgin River Basin for the benefit of native
plant and animal species, which have been listed, are likely to
be listed, or are the subject of a conservation agreement under
the Endangered Species Act. Acquisition of water rights and
habitat property must be primarily in the Santa Clara River
Basin and secondarily in other parts of the Virgin River Basin,
be from willing sellers and would be funded by an appropriation
of $3 million.

COMMITTEE ACTION

H.R. 3291 was introduced on November 10, 1999, by
Congressman James V. Hansen (R-UT). The bill was referred to
the Committee on Resources. On April 4, 2000, the Full
Committee on Resources held a hearing on the bill. On May 24,
2000, the Full Resources Committee met to consider the bill.
Congressman Hansen offered an amendment in the nature of a
substitute which, along with technical corrections to the bill,
did four things. First, it dictated that the requirements of
section 14 of the bill be met before funds are available.
Second, it stated that nothing in the bill may be construed as
expanding the waiver of U.S. sovereign immunity provided for in
43 U.S.C. 666. Third, it established a deadline to limit the
further funding of the project if the requirements of section
14 of the bill is not met. Fourth, it authorized to be
appropriated from the Land and Water Conservation Fund in
fiscal 2003 a total of $3 million for the water rights and
habitat acquisition program authorized in the bill.
The main objective of these changes is to clarify intent
and conform the language to existing statutory law and
practice. The amendment was the result of discussions between
the Department of the Interior, the Shivwits Band of the Paiute
Indian Tribe of Utah, the Department of Justice, the State of
Utah, the City of St. George and the Washington County Water
Conservancy District. The amendment was adopted by voice vote.
The bill as amended was then ordered favorably reported to the
House of Representatives by voice vote.

SECTION-BY-SECTION ANALYSIS

Section 1. Short title

The short title of the bill is the Shivwits Band of the
Paiute Indian Tribe of Utah Water Rights Settlement Act.

Section 2. Findings

This section provides 11 findings.

Section 3. Purposes

The main purpose of H.R. 3291 is to resolve and settle all
water right claims of the Shivwits Band and the United States
for the benefit of the Shivwits Band on the Santa Clara River
system.

Section 4. Definitions

This section defines 13 terms used in the bill.

Section 5. St. George Water Reuse Project

The St. George Water Reuse Project will consist of water
treatment facilities, a pipeline, and associated pumping and
delivery facilities owned and operated by City of St. George,
Utah. These facilities will divert water from the Water
Reclamation Facility near St. George, Utah, and transport this
water for delivery and use by St. George and Shivwits Band. St.
George will make 2,000 acre feet of water available annually to
the Shivwits Band at the eastern boundary of the Shivwits
Reservation and shall be responsible for the construction,
operation and maintenance, repair and replacement of the St.
George Water Reuse Project. The Shivwits Band, and the United
States on behalf of the Shivwits, is obligated to pay $15
million to St. George for the Shivwits proportionate share of
the construction, operation, maintenance, repair and
replacement of the St. George Water Reuse Project.

Section 6. Santa Clara project

The Santa Clara Project pools the water from the water
rights of the St. George Clara Field
Canal Company, the New Santa Clara Field Canal Company, the
Ivins Irrigation Company and the Lower Gunlock Reservoir
Corporation and the Shivwits Band. This pooled water is then
distributed to the pooling parties. Pursuant to the Santa Clara
Project Agreement, the Shivwits Band will receive 1900 acre
feet annually from the Santa Clara River in an average water
year.
All users will take proportionate reductions in below-
average water years. Surface water rights will be supplemented
by underground water rights of the parties, including St.
George, in below-average years.

Section 7. Shivwits water right

The total water right of the Shivwits Band under the
settlement agreements is 4,000 acre-feet per year. The water
will be provided from three projects or sources, which are:
2,000 acre-feet from the St. George Water Reuse Project; 1,900
acre-feet from the Santa Clara Project; and 100 acre-feet from
wells on the Shivwits reservation.

Section 8. Ratification of agreements

Except to the extent that the St. George Water Reuse
Project Agreement, the Santa Clara Project Agreement, and the
Settlement Agreement conflict with the provisions of this bill,
this section approves, ratifies and confirms those agreements.

Section 9. Satisfaction of claims

The benefits realized by the Shivwits Band and its members
under the settlement agreements and this bill constitute full
and complete satisfaction of all water rights claims of the
Shivwits Band and its members.
On behalf of the Shivwits Band, and the Paiute Indian Tribe
of Utah acting on behalf of the Shivwits Band, the United
States waives all claims for water rights or injuries to those
rights within the Shivwits Reservation or lands outside the
reservation where such claims are based on aboriginal occupancy
of the Shivwits Band, that accrued up to and including the
effective date determined by section 14 of this bill, that they
may have against the State of Utah, any agency or political
subdivision thereof, or any person, entity, corporation, or
municipal corporation.

Section 10. Water rights and habitat acquisition program

Under existing practices, the Santa Clara River below the
Gunlock Reservoir is generally dry during the non-irrigation
season. The River is habitat for the Virgin Spinedace. Under
this section, the Secretary of the Interior is authorized to
establish a water rights and habitat acquisition program. This
section authorizes to be appropriated from the Land and Water
Conservation Fund in fiscal years 2003 or thereafter a total of
$3 million for the water rights and habitat acquisition
program. These funds are non-lapsing.

Section 11. Shivwits Band Trust Fund

It is established in the Treasury of the United States a
fund that will be known as the Shivwits Band Trust Fund. There
is authorized to be appropriated a total of $20 million in the
2001, 2002, and 2003 fiscal years, for this fund. This fund
shall be managed in accordance with the American Indian Trust
Fund Management Reform Act (25 U.S.C. 4001).
From the Shivwits Band Trust Fund, $15 million shall be
made available by the Secretary and Shivwits Band to St. George
for the St. George Water Reuse Project. The remaining $5
million should go toward putting to beneficial use the Shivwits
water rights or any water development projects the tribe is
participating in, or for economic development on the Shivwits
Reservation.
There is also authorized to be appropriated to the Trust
Fund in fiscal year 2001, 2002, or 2003 a total of $1 million
to assist with the Shivwits Band's proportionate share of
operation, maintenance, repair, and replacement costs of the
Santa Clara Project.
No part of the Shivwits Trust Fund or income accruing
thereon may be distributed to any member of the Shivwits Band
on a per capita basis.

Section 12. Environmental compliance

Execution by the Secretary of the St. George Water Reuse
Project Agreement, the Santa Clara Project Agreement, or the
Settlement Agreement does not constitute major federal action
under the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.).

Section 13. Miscellaneous provisions

Nothing in the bill may be construed as waiving or
expanding the waiver of U.S. sovereign immunity as provided for
in 43 U.S.C. 666 or as a precedent for the litigation of
reserved water rights or the interpretation or administration
of future water settlement acts. Nothing in this bill or the
Settlement Agreement be construed to affect land and water
rights claims of a Indian tribe, pueblo, or community, other
than the Shivwits Band and the Paiute Indian Tribe of Utah
acting on behalf of the Shivwits Band.
The Secretary of Interior is authorized to approve right-
of-way appraisals completed in accordance with the provisions
of the Santa Clara Project Agreement.

Section 14. Effective date

The authorization contained in section 9(b) of this bill
shall become effective once the requirements of section 14 are
met. If the requirements of this section are not met by
December 31, 2003, the authorization contained in section 9(b)
of this bill shall not take effect and all unexpended funds
appropriated or otherwise generated under subsections 11(b) and
(c), shall revert to the general fund of the United States
Treasury on December 31, 2004.

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.

CONSTITUTIONAL AUTHORITY STATEMENT

Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.

COMPLIANCE WITH HOUSE RULE XIII

1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. Government Reform Oversight Findings. Under clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives, the Committee has received no report of
oversight findings and recommendations from the Committee on
Government Reform on this bill.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:

U.S. Congress,
Congressional Budget Office,
Washington, DC, June 15, 2000.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3291, the Shivwits
Band of the Paiute Indian Tribe of Utah Water Rights Settlement
Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lanette Keith
(for federal costs) and Majorie Miller (for the impact on
state, local, and tribal governments).
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.

H.R. 3291--Shivwits Band of the Paiute Indian Tribe of Utah Water
Rights Settlement Act

Summary: H.R. 3291 would provide for the settlement of
water rights claims of the Shivwits Band of the Paiute Indian
Tribe, pending final approval by the tribe and the state of
Utah. The bill would authorize appropriations for the
Department of the Interior (DOI) to implement the agreement,
but these funds could not be spent until the agreement is
approved by a Utah court. H.R. 3291 would create the Shivwits
Band Trust Fund and would allow the tribe to spend amounts
appropriated to the fund. In addition, the bill would authorize
funding to acquire water rights and wildlife habitat in the
Virgin River Basin.
Based on information from DOI, CBO estimates that
implementing H.R. 3291 would cost $24 million over the 2001-
2005 period, assuming the appropriation of the authorized
amounts. Enacting H.R. 3291 would not affect direct spending or
receipts; therefore, pay-as-you-go procedures would not apply.
H.R. 3291 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
Any costs resulting from the settlement agreement would be
incurred voluntarily by the state, local, and tribal government
as parties to that agreement.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 3291 is shown in the following table.
The costs of this legislation would be discretionary and would
fall within budget function 450 (community and regional
development).

----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------
2000 2001 2002 2003 2004 2005
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION

Authorization level....................................... 0 0 0 24 0 0
Estimated outlays......................................... 0 0 0 22 1 1
----------------------------------------------------------------------------------------------------------------

Basis of estimate
H.R. 3291 would authorize the appropriation of $24 million
over the 2001-2003 period; however, no funds could be spent
until all requirements in section 14 are satisfied, including
approval of the water rights settlement agreement by all
parties to the agreement and by a Utah court. Based on
information from the tribe, other parties to the agreement and
DOI, CBO expects that the parties would approve the settlement
during fiscal year 2001. For this estimate, CBO assumes the
authorized funds would be appropriated in 2003 because, under
the provisions of the bill, no funds would be available until
an appropriation has been provided for the water rights and
habitat acquisition program, which is authorized to commence in
2003.
Shivwits Band Trust Fund.--H.R. 3291 would authorize the
appropriation of $21 million to the Shivwits Band Trust Fund
over the 2001-2003 period. This amount includes $15 million for
the St. George Water Reuse Project, $1 million for operation,
maintenance and repair of the Santa Clara Project, and $5
million for the tribe. After the settlement agreement is
approved, funds deposited into this trust fund would become the
tribe's property. Thus, assuming that appropriations of $21
million are provided in 2003, outlays of that amount would be
recorded in that year.
Water Rights and Habitat Acquisition Program.--H.R. 3291
would authorize the appropriation of $3 million in 2003 for DOI
to develop a water rights and habitat acquisition program for
the purpose of conserving native plant and animal species
within the Virgin River Basin. None of these funds could be
spent until the settlement agreement is approved. This
appropriation would not be deposited into the trust fund, so
spending would occur as the program is implemented over the
2003-2005 period.
Pay-as-you-go considerations: None.
Estimated impact of State, local, and tribal governments:
H.R. 3291, contains no intergovernmental mandates as defined in
UMRA. Any costs resulting from the settlement agreement would
be incurred voluntarily by the state, local, and tribal
governments that are parties to that agreement. The tribe has
agreed to release the United States from all claims relating to
its water rights in exchange for the benefits to be provided by
this bill. The state of Utah and the affected local governments
have agreed to make financial contributions in support of the
projects covered by this agreement
Estimated impact on the private sector: This bill contains
no new private-sector mandates as defined in UMRA.
Estimate prepared by: Federal costs: Lanette Keith; impact
on State, local, and tribal governments: Marjorie Miller;
impact on the private sector: Natalie Tawil.
Estimate approved by: Robert A. Sunshine, Assistant
Director for Budget Analysis.

COMPLIANCE WITH PUBLIC LAW 104-4

This bill contains no unfunded mandates.

CHANGES IN EXISTING LAW

If enacted, this bill would make no changes in existing
law.