[House Report 110-815]
[From the U.S. Government Publishing Office]



110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     110-815

======================================================================



 
  SHOSHONE-PAIUTE TRIBES OF THE DUCK VALLEY RESERVATION WATER RIGHTS 
                             SETTLEMENT ACT

                                _______
                                

 July 31, 2008.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Rahall, from the Committee on Natural Resources, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 5293]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Natural Resources, to whom was referred the 
bill (H.R. 5293) to approve the settlement of the water rights 
claims of the Shoshone-Paiute Tribes of the Duck Valley 
Reservation in Nevada, to require the Secretary of the Interior 
to carry out the settlement, 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 all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Shoshone-Paiute Tribes of the Duck 
Valley Reservation Water Rights Settlement Act''.

SEC. 2. FINDINGS.

  Congress finds that--
          (1) it is the policy of the United States, in accordance with 
        the trust responsibility of the United States to Indian tribes, 
        to promote Indian self-determination and economic self-
        sufficiency and to settle Indian water rights claims without 
        lengthy and costly litigation, if practicable;
          (2) quantifying rights to water and development of facilities 
        needed to use tribal water supplies is essential to the 
        development of viable Indian reservation economies and the 
        establishment of a permanent reservation homeland;
          (3) uncertainty concerning the extent of the Shoshone-Paiute 
        Tribes' water rights has resulted in limited access to water 
        and inadequate financial resources necessary to achieve self-
        determination and self-sufficiency;
          (4) in 2006, the Tribes, the State of Idaho, the affected 
        individual water users, and the United States resolved all 
        tribal claims to water rights in the Snake River Basin 
        Adjudication through a consent decree entered by the District 
        Court of the Fifth Judicial District of the State of Idaho, 
        requiring no further Federal action to quantify the Tribes' 
        water rights in the State of Idaho;
          (5) as of the date of enactment of this Act, proceedings to 
        determine the extent and nature of the water rights of the 
        Tribes in the East Fork of the Owyhee River in Nevada are 
        pending before the Nevada State Engineer;
          (6) final resolution of the Tribes' water claims in the East 
        Fork of the Owyhee River adjudication will--
                  (A) take many years;
                  (B) entail great expense;
                  (C) continue to limit the access of the Tribes to 
                water, with economic and social consequences;
                  (D) prolong uncertainty relating to the availability 
                of water supplies; and
                  (E) seriously impair long-term economic planning and 
                development for all parties to the litigation;
          (7) after many years of negotiation, the Tribes, the State, 
        and the upstream water users have entered into a settlement 
        agreement to resolve permanently all water rights of the Tribes 
        in the State; and
          (8) the Tribes also seek to resolve certain water-related 
        claims for damages against the United States.

SEC. 3. PURPOSES.

  The purposes of this Act are--
          (1) to resolve outstanding issues with respect to the East 
        Fork of the Owyhee River in the State in such a manner as to 
        provide important benefits to--
                  (A) the United States;
                  (B) the State;
                  (C) the Tribes; and
                  (D) the upstream water users;
          (2) to achieve a fair, equitable, and final settlement of all 
        claims of the Tribes, members of the Tribes, and the United 
        States on behalf of the Tribes and members of Tribes to the 
        waters of the East Fork of the Owyhee River in the State;
          (3) to ratify and provide for the enforcement of the 
        Agreement among the parties to the litigation;
          (4) to resolve the Tribes' water-related claims for damages 
        against the United States;
          (5) to require the Secretary to perform all obligations of 
        the Secretary under the Agreement and this Act; and
          (6) to authorize the actions and appropriations necessary to 
        meet the obligations of the United States under the Agreement 
        and this Act.

SEC. 4. DEFINITIONS.

  In this Act:
          (1) Agreement.--The term ``Agreement'' means the agreement 
        entitled the ``Agreement to Establish the Relative Water Rights 
        of the Shoshone-Paiute Tribes of the Duck Valley Reservation 
        and the Upstream Water Users, East Fork Owyhee River'' and 
        signed in counterpart between, on, or about September 22, 2006, 
        and January 15, 2007 (including all attachments to that 
        Agreement).
          (2) Development fund.--The term ``Development Fund'' means 
        the Shoshone-Paiute Tribes Water Rights Development Fund 
        established by section 8(b)(1).
          (3) East fork of the owyhee river.--The term ``East Fork of 
        the Owyhee River'' means the portion of the east fork of the 
        Owyhee River that is located in the State.
          (4) Maintenance fund.--The term ``Maintenance Fund'' means 
        the Shoshone-Paiute Tribes Operation and Maintenance Fund 
        established by section 8(c)(1).
          (5) Reservation.--The term ``Reservation'' means the Duck 
        Valley Reservation established by the Executive order dated 
        April 16, 1877, as adjusted pursuant to the Executive order 
        dated May 4, 1886, and Executive order numbered 1222 and dated 
        July 1, 1910, for use and occupation by the Western Shoshones 
        and the Paddy Cap Band of Paiutes.
          (6) Secretary.--The term ``Secretary'' means the Secretary of 
        the Interior.
          (7) State.--The term ``State'' means the State of Nevada.
          (8) Tribal water rights.--The term ``tribal water rights'' 
        means rights of the Tribes described in the Agreement relating 
        to water, including groundwater, storage water, and surface 
        water.
          (9) Tribes.--The term ``Tribes'' means the Shoshone-Paiute 
        Tribes of the Duck Valley Reservation.
          (10) Upstream water user.--The term ``upstream water user'' 
        means a non-Federal water user that--
                  (A) is located upstream from the Reservation on the 
                East Fork of the Owyhee River; and
                  (B) is a signatory to the Agreement as a party to the 
                East Fork of the Owyhee River adjudication.

SEC. 5. APPROVAL, RATIFICATION, AND CONFIRMATION OF AGREEMENT; 
                    AUTHORIZATION.

  (a) In General.--Except as provided in subsection (c) and except to 
the extent that the Agreement otherwise conflicts with provisions of 
this Act, the Agreement is approved, ratified, and confirmed.
  (b) Secretarial Authorization.--The Secretary is authorized and 
directed to execute the Agreement as approved by Congress.
  (c) Exception for Tribal Water Marketing.--Notwithstanding any 
language in the Agreement to the contrary, nothing in this Act 
authorizes the Tribes to use or authorize others to use tribal water 
rights off the Reservation, other than use for storage at Wild Horse 
Reservoir for use on tribal land and for the allocation of 265 acre 
feet to Upstream Water Users under the Agreement, or use on tribal land 
off the Reservation.
  (d) Environmental Compliance.--Execution of the Agreement by the 
Secretary under this section shall not constitute major Federal action 
under the National Environmental Policy Act (42 U.S.C. 4321 et seq.). 
The Secretary shall carry out all environmental compliance required by 
Federal law in implementing the Agreement.
  (e) Performance of Obligations.--The Secretary and any other head of 
a Federal agency obligated under the Agreement shall perform actions 
necessary to carry out an obligation under the Agreement in accordance 
with this Act.

SEC. 6. TRIBAL WATER RIGHTS.

  (a) In General.--Tribal water rights shall be held in trust by the 
United States for the benefit of the Tribes.
  (b) Administration.--
          (1) Enactment of water code.--Not later than 3 years after 
        the date of enactment of this Act, the Tribes, in accordance 
        with the provision of the Tribes' constitution and subject to 
        the approval of the Secretary, shall enact a water code to 
        administer tribal water rights.
          (2) Interim administration.--The Secretary shall regulate the 
        tribal water rights during the period beginning on the date of 
        enactment of this Act and ending on the date on which the 
        Tribes enact a water code under paragraph (1).
  (c) Tribal Water Rights Not Subject to Loss.--The tribal water rights 
shall not be subject to loss by abandonment, forfeiture, or nonuse.

SEC. 7. DUCK VALLEY INDIAN IRRIGATION PROJECT.

  (a) Status of the Duck Valley Indian Irrigation Project.--Nothing in 
this Act shall affect the status of the Duck Valley Indian Irrigation 
Project under Federal law.
  (b) Capital Costs Nonreimbursable.--The capital costs associated with 
the Duck Valley Indian Irrigation Project as the date of enactment of 
this Act, including any capital cost incurred with funds distributed 
under this Act for the Duck Valley Indian Irrigation Project, shall be 
nonreimbursable.

SEC. 8. DEVELOPMENT AND MAINTENANCE FUNDS.

  (a) Definition of Funds.--In this section, the term ``Funds'' means--
          (1) the Development Fund; and
          (2) the Maintenance Fund.
  (b) Development Fund.--
          (1) Establishment.--There is established in the Treasury of 
        the United States a fund to be known as the ``Shoshone-Paiute 
        Tribes Water Rights Development Fund''.
          (2) Use of funds.--The Tribes shall use amounts in the 
        Development Fund to rehabilitate and, if the Tribes choose, to 
        expand the Duck Valley Indian Irrigation Project, or for any of 
        the following purposes:
                  (A) To pay or reimburse costs incurred by the Tribes 
                in acquiring land and water rights.
                  (B) For purposes of cultural preservation.
                  (C) To restore or improve fish or wildlife habitat.
                  (D) For fish or wildlife production, water resource 
                development, or agricultural development.
                  (E) For water resource planning and development.
                  (F) To pay the costs of--
                          (i) designing and constructing water supply 
                        and sewer systems for tribal communities, 
                        including a water quality testing laboratory;
                          (ii) other appropriate water-related projects 
                        and other related economic development 
                        projects;
                          (iii) the development of a water code; and
                          (iv) other costs of implementing the 
                        Agreement.
          (3) Authorization of appropriations.--There is authorized to 
        be appropriated to the Secretary for deposit in the Development 
        Fund $9,000,000 for each of fiscal years 2008 through 2012.
  (c) Maintenance Fund.--
          (1) Establishment.--There is established in the Treasury of 
        the United States a fund to be known as the ``Shoshone-Paiute 
        Tribes Operation and Maintenance Fund''.
          (2) Use of funds.--The Tribes shall use amounts in the 
        Maintenance Fund to pay or provide reimbursement for--
                  (A) operation, maintenance, and replacement costs of 
                the Duck Valley Indian Irrigation Project and other 
                water-related projects funded under this Act; or
                  (B) operation, maintenance, and replacement costs of 
                water supply and sewer systems for tribal communities, 
                including the operation and maintenance costs of a 
                water quality testing laboratory.
          (3) Authorization of appropriations.--There is authorized to 
        be appropriated to the Secretary for deposit in the Maintenance 
        Fund $3,000,000 for each of fiscal years 2008 through 2012.
  (d) Availability of Amounts From Fund.--Amounts made available under 
subsections (b)(3) and (c)(3) shall be available for expenditure or 
withdrawal only after the effective date as set forth in section 9(d).
  (e) Administration of Funds.--The Secretary, in accordance with the 
American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 
4001 et seq.) shall manage the Funds, including by investing amounts 
from the Funds in accordance with the Act of April 1, 1880 (25 U.S.C. 
161), and the first section of the Act of June 24, 1938 (25 U.S.C. 
162a).
  (f) Expenditures and Withdrawal.--
          (1) Tribal management plan.--
                  (A) In general.--The Tribes may withdraw all or part 
                of amounts in the Funds on approval by the Secretary of 
                a tribal management plan as described in 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 shall require that the Tribes spend any 
                amounts withdrawn from the Funds in accordance with the 
                purposes described in subsection (b)(2) or (c)(2).
                  (C) Enforcement.--The Secretary may take judicial or 
                administrative action to enforce the provisions of any 
                tribal management plan to ensure that any amounts 
                withdrawn from the Funds under the plan are used in 
                accordance with this Act and the Agreement.
                  (D) Liability.--If the Tribes exercise the right to 
                withdraw amounts from the Funds, neither the Secretary 
                nor the Secretary of the Treasury shall retain any 
                liability for the expenditure or investment of the 
                amounts.
          (2) Expenditure plan.--
                  (A) In general.--The Tribes shall submit to the 
                Secretary for approval an expenditure plan for any 
                portion of the amounts in the Funds that the Tribes do 
                not withdraw under the tribal management plan.
                  (B) Description.--The expenditure plan shall describe 
                the manner in which, and the purposes for which, 
                amounts of the Tribes remaining in the Funds will be 
                used.
                  (C) Approval.--On receipt of an expenditure plan 
                under subparagraph (A), the Secretary shall approve the 
                plan if the Secretary determines that the plan is 
                reasonable and consistent with this Act and the 
                Agreement.
                  (D) Annual report.--For each Fund, the Tribes shall 
                submit to the Secretary an annual report that describes 
                all expenditures from the Fund during the year covered 
                by the report.
          (3) Funding agreement.--Notwithstanding any other provision 
        of this Act, on receipt of a request from the Tribes, the 
        Secretary shall include an amount from funds made available 
        under this section in the funding agreement of the Tribes under 
        title IV of the Indian Self-Determination and Education 
        Assistance Act (25 U.S.C. 458aa et seq.), for use in accordance 
        with subsections (b)(2) and (c)(2). No amount made available 
        under this Act may be requested until the waivers under section 
        9(a) take effect.
  (g) No Per Capita Payments.--No amount from the Funds (including any 
interest income accruing to the Funds) shall be distributed to a member 
of the Tribes on a per capita basis.

SEC. 9. TRIBAL WAIVER AND RELEASE OF CLAIMS.

  (a) Waiver and Release of Claims by Tribes and United States as 
Trustee for Tribes.--The Tribes and the United States on behalf of the 
Tribes, are authorized to execute a waiver and release of--
          (1) all claims for water rights in, or for waters of, the 
        East Fork of the Owyhee River that the Tribes, or the United 
        States as trustee for the Tribes, asserted or could have 
        asserted in any court proceeding; and
          (2) all claims for damages, losses, or injuries to water 
        rights in the East Fork Owyhee River, including claims of 
        interference, diversion, or taking of water that the Tribes, or 
        the United States as trustee for the Tribes, asserted or could 
        have asserted in any court proceedings.
  (b) Waiver and Release of Claims Against the United States.--The 
Tribes are authorized to execute a waiver and release of--
          (1) all claims against the United States, its agencies, or 
        employees, for water rights in, or waters of, the East Fork of 
        the Owyhee River that the United States asserted or could have 
        asserted in any court proceeding;
          (2) all claims for damages, losses, or injuries to water 
        rights, including claims of interference, diversion, or taking 
        of water, or claims for failure to protect, acquire, or develop 
        water or water rights within the East Fork of the Owyhee River, 
        and claims for fishing rights under any Executive order to the 
        extent that an injury to such a right resulted from a reduction 
        in the quantity of water available in the East Fork Owyhee 
        River; that accrued on or before the effective date specified 
        in subsection (d), that the Tribes have asserted or could have 
        asserted against the United States, its agencies, or employees 
        in any court proceedings; and
          (3) all claims arising out of the negotiation and adoption of 
        the Agreement.
  (c) Retention of Rights.--Notwithstanding the waivers and releases 
set forth in subsections (a) and (b), the Tribes and their members and 
the United States as trustee for the Tribes and their members, shall 
retain--
          (1) all claims for enforcement of the Agreement, the Final 
        Consent Decree, or this Act, through such legal and equitable 
        remedies as may be available in any court of competent 
        jurisdiction;
          (2) all rights to use and protect water rights acquired 
        pursuant to any state law;
          (3) all claims relating to activities affecting the quality 
        of water;
          (4) all rights to land outside the Reservation; and
          (5) all rights, remedies, privileges, immunities, and powers 
        not specifically waived and released under the terms of the 
        Agreement or this Act.
  (d) Effective Date.--Notwithstanding anything in the Agreement to the 
contrary, the waivers by the Tribes, or the United States on behalf of 
the Tribes, under this section shall take effect on the date on which 
the Secretary publishes in the Federal Register a statement of findings 
that includes a finding that--
          (1) the Secretary has executed the Agreement as approved by 
        Congress;
          (2) all parties to the Agreement have executed the Agreement;
          (3) the Fourth Judicial District Court, Elko County, Nevada 
        has issued a judgment and decree consistent with the Agreement 
        from which no further appeal can be taken; and
          (4) the amounts authorized under subsections (b)(3) and 
        (c)(3) of section 8 have been appropriated.
  (e) Failure To Publish Statement of Findings.--If the Secretary does 
not publish a statement of findings under subsection (d) by December 
31, 2015--
          (1) the Agreement and this Act shall not take effect; and
          (2) any funds and interest accrued thereon that have been 
        appropriated under this Act shall immediately revert to the 
        general fund of the United States Treasury.
  (f) 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 date on which 
        the amounts authorized to be appropriated under subsections 
        (b)(3) and (c)(3) of section 8 are appropriated.
          (2) Effect of subparagraph.--Nothing in this subparagraph 
        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) Future acquisition of water rights.--Nothing in the 
        Agreement or this Act precludes the Tribes, or the United 
        States as trustee for the Tribes, from acquiring a water right 
        in a state to the same extent as any other entity in the state, 
        in accordance with state law.

SEC. 10. MISCELLANEOUS.

  (a) General Disclaimer.--The parties to the Agreement expressly 
reserve all rights not specifically granted, recognized, or 
relinquished by--
          (1) the settlement described in the Agreement; or
          (2) this Act.
  (b) Limitation of Claims and Rights.--Nothing in this Act--
          (1) establishes a standard for quantifying--
                  (A) a Federal reserved water right;
                  (B) an aboriginal claim; or
                  (C) any other water right claim of an Indian tribe in 
                a judicial or administrative proceeding; or
          (2) limits the right of a party to the Agreement to litigate 
        any issue not resolved by the Agreement or this Act.
  (c) Admission Against Interest.--Nothing in this Act constitutes an 
admission against interest by a party in any legal proceeding.
  (d) Reservation.--The Reservation shall be shall be--
          (1) considered to be the property of the Tribes; and
          (2) permanently held in trust by the United States for the 
        sole use and benefit of the Tribes.
  (e) Jurisdiction.--
          (1) Subject matter jurisdiction.--Nothing in the Agreement or 
        this Act restricts, enlarges, or otherwise determines the 
        subject matter jurisdiction of any Federal, State, or tribal 
        court.
          (2) Civil or regulatory jurisdiction.--Nothing in the 
        Agreement or this Act impairs or impedes the exercise of any 
        civil or regulatory authority of the United States, the State, 
        or the Tribes.
          (3) Consent to jurisdiction.--The United States consents to 
        jurisdiction in a proper forum for purposes of enforcing the 
        provisions of the Agreement.
          (4) Effect of subsection.--Nothing in this subsection confers 
        jurisdiction on any State court to--
                  (A) enforce Federal environmental laws relating to 
                the duties of the United States under this Act; or
                  (B) conduct judicial review of a Federal agency 
                action.

                          PURPOSE OF THE BILL

    The purpose of H.R. 5293 is to approve the settlement of 
the water rights claims of the Shoshone-Paiute Tribes of the 
Duck Valley Reservation in Nevada, to require the Secretary of 
the Interior to carry out the settlement, and for other 
purposes.

                  BACKGROUND AND NEED FOR LEGISLATION

    The Duck Valley Reservation is the homeland of the 
Shoshone-Paiute Tribes (Tribes). The Reservation straddles the 
Idaho-Nevada border along the East Fork of the Owyhee River, a 
tributary to the Snake River. The Reservation was established 
by Executive Order on April 16th, 1877, and expanded by 
Executive Orders dated May 4, 1886 and July 1, 1910. The 
Reservation encompasses approximately 290,000 acres within the 
States of Nevada and Idaho.
    The Owyhee Project on the main stem of the Owyhee River is 
a Bureau of Reclamation Project that irrigates more than 
100,000 acres of land in eastern Oregon and western Idaho.
    The Tribes' primary source of income is agriculture made 
possible by the Duck Valley Indian Irrigation Project, owned by 
the Bureau of Indian Affairs (BIA) and operated by the Tribes 
under a self-governance compact. The Project's primary water 
storage facility, the Wild Horse Reservoir, was originally 
built in 1930 and rebuilt in 1960. Despite the rebuilding, 
inadequate maintenance has led to an unstable infrastructure, 
resulting in an increased federal liability.
    The Tribes have asserted claims to their federal reserved 
water rights in both Nevada and Idaho state courts. The State 
of Idaho sought to resolve these claims by initiating the Snake 
River Basin Adjudication (SRBA) in 1987. The United States 
filed claims in Idaho's SRBA, and the Tribe's water rights were 
resolved by a consent decree entered in the Snake River Basin 
Adjudication on December 12, 2006 (the resolution of the 
Tribes' Idaho claims does not require Congressional 
ratification). The Nevada agreement was reached during a stay 
of that state's adjudicative process and requires Congressional 
action. H.R. 5293 would ratify the Nevada agreement.
    The State of Nevada, and water users in Nevada will provide 
the Tribes with 111,476 acre-feet of surface water from the 
Owyhee River, storage water in the Wild Horse Reservoir, all 
water flows originating from springs and creeks on the 
Reservation, and 2,606 acre-feet of ground water, plus 
perennial yield. At the same time, the agreement protects the 
use of water by irrigators upstream (south) of the Reservation.

                            COMMITTEE ACTION

    H.R. 5293 was introduced on February 7, 2008 by Rep. Dean 
Heller (R-NV). The bill was referred to the Committee on 
Natural Resources, and within the Committee to the Subcommittee 
on Water and Power. On March 13, 2008 the Subcommittee held a 
hearing on the bill.
    On July 15, 2008, the Subcommittee met to mark up the bill. 
Ranking Member Cathy McMorris Rodgers (R-WA) offered an 
amendment in the nature of a substitute that clarified the 
water rights of upstream users. The amendment was adopted by 
unanimous consent and the bill, as amended, was then forwarded 
to the Full Committee. On July 16, 2008, the Full Natural 
Resources Committee met to consider the bill. H.R. 5293, as 
amended, was favorably reported to the House of Representatives 
by unanimous consent.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    Section 1 provides that this Act may be cited as the 
``Shoshone-Paiute Tribes of the Duck Valley Reservation Water 
Rights Settlement Act.''

Section 2. Findings

    Section 2 describes the findings for Congressional action 
and recognizes that this bill would seek to resolve tribal 
water-related, monetary claims for damages against the United 
States.

Section 3. Purposes

    Section 3 states the purposes of this Act. Specifically, 
the Act will resolve outstanding water rights issues with 
respect to the East Fork of the Owyhee River and pending water-
related, tribal claims for damages against the United States. 
The bill will also require the Secretary of the Interior 
perform all obligations under the Agreement and Act.

Section 4. Definitions

    Section 4 provides definitions for the terms used in the 
bill.

Section 5. Approval, ratification, and confirmation of agreement

    Section 5 ratifies the agreement referred to in the 
legislation and known as the ``Agreement to Establish the 
Relative Water Rights of the Shoshone-Paiute Tribes of the Duck 
Valley Reservation and the Upstream Water Users, East Fork 
Owyhee River''. This section also authorizes and directs the 
Secretary to execute the Agreement as approved by Congress, 
including any and all environmental compliance required by 
federal law.

Section 6. Tribal water rights

    Section 6 states that tribal water rights will be held in 
trust by the United States, through the Secretary of the 
Interior, for the benefit of the Tribes. The Act requires the 
Tribes to enact a tribal water code to administer tribal water 
rights, no later than three years after enactment of this bill. 
The Secretary will regulate the tribal water rights until the 
Tribes enact their water code. The bill provides that the 
Tribes' water rights cannot be lost by abandonment, forfeiture, 
or nonuse.

Section 7. Duck Valley Indian Irrigation Project

    Section 7 states that nothing in this Act will affect the 
Federal Duck Valley Indian Irrigation Project. This section 
also states that the federal government shall not seek 
reimbursement for capital costs incurred in support of the 
Project.

Section 8. Development and Maintenance Funds

    Subsection (a) authorizes and outlines the creation of the 
Shoshone-Paiute Tribes Water Rights Development Fund and the 
Shoshone-Paiute Tribes Operation and Maintenance Fund.
    Subsection (b) states that the Shoshone-Paiute Tribes' 
Water Rights Development Fund will be established within the 
Treasury of the United States and administered by the Secretary 
of the Interior. The bill authorizes the appropriation of $9 
million annually in the Development Fund for five fiscal years 
for a total of $45 million. The Tribes must use funds from the 
Development Fund for water resource planning and development; 
for projects related to rehabilitating or expanding the Duck 
Valley Irrigation Project, such as for water resource 
development and agricultural development; for cultural 
preservation; for restoring or improving fish or wildlife 
habitat; and for designing and constructing water supply and 
sewer systems for tribal communities.
    Subsection (c) provides that the Shoshone-Paiutes' 
Operation and Maintenance Fund will be established within the 
Treasury of the United States and administered by the Secretary 
of the Interior. The bill authorizes the appropriation of $3 
million annually, for five fiscal years, for a total of $15 
million to this Fund. The tribes must use the Maintenance Fund 
to operate and maintain the Duck Valley Indian Irrigation 
Project and water-related projects authorized under the Act. 
Funds can also be spent to operate, maintain and replace the 
water supply and sewer systems for tribal communities. The 
bill, as ordered reported by the Committee, does not 
specifically allocate any funds to the rehabilitation of the 
Duck Valley Irrigation Project and it is unclear if the United 
States will be responsible for any future rehabilitation 
claims. The Committee expects this to be resolved prior to 
floor consideration.
    Subsections (d-g) provide that under the Act, the Tribes 
can access the funds in two ways: by submitting a tribal 
management plan or an expenditure plan. The bill states the 
criteria for spending, reporting, and enforcement of both 
plans. The Tribes may withdraw all or part of the funds but 
must submit a tribal management plan that must be approved by 
the Secretary of the Interior. Neither the Secretary of the 
Interior nor the Secretary of the Treasury are liable for how 
monies withdrawn from the fund are spent or invested. In 
addition, the Tribes must submit an expenditure plan that must 
be approved by the Secretary for any payment or reimbursement 
of costs. The Tribes are required to submit an annual report to 
the Secretary that describes all costs. No part of the funds 
shall be distributed on a per capita basis to tribal members.
    The Committee notes that the Administration and the Tribes 
have not come into agreement on the cost of the Settlement. In 
testimony on the Senate companion bill, the Administration 
asserted that the federal contribution to the settlement should 
be $9.3 million, in contrast to the $60 million proposed in the 
legislation. In House testimony on the bill, Majel Russell, 
Principal Deputy Assistant Secretary of Indian Affairs for the 
Department of the Interior, said that the Tribes were offered 
almost $40 million from the federal negotiation team as an 
unofficial offer. The Administration argues that their internal 
guidance requires settlements to contain non-federal cost 
sharing ``proportionate to the benefits received by the non-
federal parties,'' and must ``specify that the total cost of a 
settlement to all parties should not exceed the value of the 
existing claims as calculated by the federal government.''
    The Tribes assert that the change in cost was due to a 
change in the interpretation and implementation of the Criteria 
and Procedures for the Participation of the Federal Government 
in Negotiations for the Settlement of Indian Water Rights 
Claims (``Criteria''). The Tribes also contend that the 
Administration's proposed federal contribution of $9.3 million 
only reflects the federal liability, but does not include the 
cost of settlement implementation. H.R. 2535 supports the 
Tribe's contention that the $60 million reflects both the 
federal liability and the cost of implementing the settlement.

Section 9. Tribal waiver of claims

    Section 9 outlines the waivers and release of claims by the 
Tribes and the United States, acting as trustee, against 
parties to the settlement agreement, and a waiver and release 
of claims by the Tribes against the United States as stated in 
the settlement agreement and other water-related claims for 
damages. The waiver of claims against the United States related 
to water rights in section 9 is understood to encompass claims 
for damages to tribal resources due to loss of water or water 
rights, including damages, losses, or injuries to hunting, 
gathering, or cultural rights as well as the fishing rights 
that are explicitly waived.
    Subsection (a) states that the Tribes and the United 
States, as trustee, waive all claims to water rights in and 
damages, losses or injuries to water in the East Fork of the 
Owyhee River that were or could be asserted in court 
proceedings.
    Subsection (b) describes the Tribes' waiver and release of 
claims against the United States. The Tribes' waiver would 
release any claims against the United States for a water right 
or injury to a water right in the East Fork of the Owyhee 
River, for multiple breach of trust claims, and for fishing 
rights that resulted from reduced quantity of water in the East 
Fork and accrued before the effective date specified in 
subsection (d).
    Subsection (c) provides for the retention of certain rights 
and claims notwithstanding the waivers set forth in Subsections 
9(a) and 9(b).
    Subsections (d-f) provide that the waivers and release of 
claims become effective when the Secretary of the Interior 
publishes a statement of findings in the Federal Register. 
Should the Secretary fail to publish a statement of findings by 
December 31, 2015, the settlement agreement and the Act shall 
not take effect and any appropriated funds shall be returned to 
the Treasury. These subsections also describe the rights 
retained by the Tribes and the United States and the process 
for tolling claims.

Section 10. Miscellaneous

    Section 10 includes provisions on the limits of claims and 
rights not waived in the agreement, the Act, or other ongoing 
matters specified in the Act. The section also confirms the 
status quo of tribal, state, and federal subject matter 
jurisdiction and regulatory authority. The section waives the 
United States' immunity from suit to enforce the agreement and 
limits State review of federal actions authorized under the 
Act.

            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 Natural 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. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to approve the settlement of the 
water rights claims of the Shoshone-Paiute Tribes of the Duck 
Valley Reservation in Nevada, to require the Secretary of the 
Interior to carry out the settlement, and for other purposes.
    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:

H.R. 5293--Shoshone-Paiute Tribes of the Duck Valley Reservation Water 
        Rights Settlement Act

    Summary: H.R. 5293 would ratify a water rights agreement 
among the Shoshone-Paiute Tribes of the Duck Valley 
Reservation, individual water users, and Nevada concerning the 
East Fork of the Owyhee River. The bill also would create two 
trust funds to settle the tribes' claims against the United 
States for compromising tribal water rights and failing to 
maintain the Duck Valley Irrigation Project. Under the bill, 
amounts in the funds could not be spent until certain 
requirements have been met.
    Assuming appropriation of the authorized amounts to the 
funds, CBO estimates that implementing H.R. 5293 could cost $48 
million in 2012. Enacting H.R. 5293 also would increase direct 
spending by $6 million in 2012 for interest payments to the 
tribe. Enacting the bill would not affect revenues.
    The bill would require the Shoshone-Paiute Tribes of the 
Duck Valley Indian Reservation to adopt policies governing 
tribal water rights. That requirement would be an 
intergovernmental mandate as defined in the Unfunded Mandates 
Reform Act (UMRA). CBO estimates that the cost of the mandate 
would be small and well below the threshold established in UMRA 
($68 million in 2008, adjusted annually for inflation). 
Furthermore, appropriations resulting from authorizations 
contained in the bill could be used to pay for any such costs.
    H.R. 5293 contains no private-sector mandates as defined in 
UMRA.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 5293 is shown in the following table. 
The costs of this legislation fall within budget function 450 
(community and regional development).

----------------------------------------------------------------------------------------------------------------
                                                                    By fiscal year, in millions of dollars--
                                                              --------------------------------------------------
                                                                2009    2010    2011    2012    2013   2009-2013
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Authorization Level..........................................      12      12      12      12       0        48
Estimated Outlays............................................       0       0       0      48       0        48

                                           CHANGES IN DIRECT SPENDING

Estimated Budget Authority...................................       *       1       2       2       0         6
Estimated Outlays............................................       0       0       0       6       0         6
----------------------------------------------------------------------------------------------------------------
Note.--* = Less than $500,000; amounts may not sum to totals due to rounding.

    Basis of estimate: For this estimate, CBO assumes that H.R. 
5293 will be enacted near the beginning of fiscal year 2009 and 
that the entire amounts authorized will be appropriated for 
each fiscal year. In the fall of 2006, the Shoshone-Paiute 
Tribes of the Duck Valley Indian Reservation, the state of 
Nevada, and several individual water users signed an agreement 
to settle a water rights dispute concerning the East Fork of 
the Owyhee River. Currently, the United States is not a party 
to this agreement. However, enactment of H.R. 5293 would 
approve and ratify the agreement and authorize the Secretary of 
the Interior to execute the settlement and other 
responsibilities under the bill. CBO assumes that, by fiscal 
year 2012, all parties will have executed the components of the 
agreement as specified under the bill.

Changes in spending subject to appropriation

    H.R. 5293 would authorize the appropriation of $12 million 
a year over the 2009-2012 period, for two trust funds for the 
Shoshone-Paiute Tribes as part of the water rights settlement. 
Of that amount, $9 million a year would be authorized to be 
appropriated for the Shoshone PaiuteTribes Water Rights 
Development Fund for costs to rehabilitate the Duck Valley Irrigation 
Project; acquire land and water rights; restore fish and wildlife 
habitat; develop water laws; and build sewer systems and other water-
related projects. Another $3 million a year over the same time period 
would be authorized to be appropriated for the Shoshone-Paiute Tribes 
Water Rights Operation and Maintenance Fund for similar activities.
    Several conditions would have to be met to transfer control 
of the new trust funds to the tribes. The Secretary of the 
Interior would have to publish a statement of findings in the 
Federal Register indicating that all parties have executed the 
agreement, the Fourth Judicial District in Nevada would have to 
issue a judgment and final decree concerning the settlement, 
and the amounts authorized under the bill for fiscal years 2009 
through 2012 would have to be appropriated. Because those 
conditions would not be met until the appropriations are made 
for 2012, deposits in the funds during the first three years 
would be considered intragovernmental and would have no net 
effect on the federal budget.
    When the conditions for final settlement have been met in 
2012, control over the use of the trust funds would be 
transferred to the tribe and the budget would record an 
expenditure of $48 million in that year. Subsequent use of the 
funds would have no effect on the federal budget. Should the 
Secretary not publish a statement of findings by December 31, 
2015, the agreement would not take effect and any funds 
appropriated would be returned to the general fund of the 
Treasury.

Changes in direct spending

    The Secretary of the Interior would be required to invest 
the amounts appropriated to the trust funds until those funds 
are expended. CBO estimates that interest earnings over the 
2009-2012 period would total $6 million and would be recorded 
as a federal outlay in 2012. Such outlays would be direct 
spending. Subsequently, the funds would be considered 
nonbudgetary, and any future interest payments would not be 
considered part of the federal budget. Should the Secretary not 
publish a statement of findings by December 31, 2015, the 
agreement would not take effect, and any interest payments 
would not be made.
    Estimated impact on state, local, and tribal governments: 
H.R. 5293 would require the tribes to adopt water policies that 
would govern tribal water rights as detailed in the agreement. 
That requirement would be an intergovermental mandate as 
defined in UMRA because it would place a statutary requirement 
on the tribe that is separate from provisions of the agreement. 
CBO estimates that the cost of the mandate would be small and 
well below the threshold established in UMRA ($68 million in 
2008, adjusted annually for inflation). Furthermore, 
appropriations resulting from authorizations for the 
development fund could be used to pay for any such costs.
    Estimated impact on the private sector: H.R. 5293 contains 
no private-sector mandates as defined in UMRA.
    Previous CBO estimate: On August 8, 2007, CBO trasmitted a 
cost estimate for S. 462, the Shoshone-Paiute Tribes of the 
Duck Valley Reservation Water Rights Settlement Act, as ordered 
reported by the Senate Committee on Indian Affairs on July 19, 
2007. Although the bills are very similar, our estimates of 
costs are different. Our estimate of discretionary spending 
under H.R. 5293 is lower because we now assume a later 
enactment date for the legislation. Also, CBO now considers 
that tribal interest payments under both pieces of legislation 
would increase direct spending rather than discretionary 
spending (as we estimated under S. 462). Those interest 
payments under H.R. 5293 would increase direct spending by $6 
million. That estimate applies to S. 462 as well.
    Estimate prepared by: Federal costs: Leigh Angres; Impact 
on State, Local, and Tribal Governments: Melissa Merrell; and 
Impact on the Private Sector: Amy Petz.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                           EARMARK STATEMENT

    H.R. 5293 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e) or 9(f) of rule XXI.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    This bill is not intended to preempt any State, local or 
tribal law.

                        CHANGES IN EXISTING LAW

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

                                  
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