[House Report 111-391]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 111-391
======================================================================
WHITE MOUNTAIN APACHE TRIBE WATER RIGHTS QUANTIFICATION ACT OF 2009
_______
January 12, 2010.--Committeed 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
together with
ADDITIONAL VIEWS
[To accompany H.R. 1065]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred the
bill (H.R. 1065) to resolve water rights claims of the White
Mountain Apache Tribe in the State of Arizona, 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 ``White Mountain Apache Tribe Water
Rights Quantification Act of 2009''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds that--
(1) proceedings to determine the nature and extent of the
water rights of the White Mountain Apache Tribe, members of the
Tribe, the United States, and other claimants are pending in--
(A) the consolidated civil action in the Superior
Court of the State of Arizona for the County of
Maricopa styled In re the General Adjudication of All
Rights To Use Water In The Gila River System and
Source, W-1 (Salt), W-2 (Verde), W-3 (Upper Gila), W-4
(San Pedro); and
(B) the civil action pending in the Superior Court of
the State of Arizona for the County of Apache styled In
re the General Adjudication of All Rights to Use Water
in the Little Colorado River System and Source and
numbered CIV-6417;
(2) a final resolution of those proceedings might--
(A) take many years;
(B) entail great expense; and
(C) prolong uncertainty concerning the availability
of water supplies;
(3) the Tribe, non-Indian communities located near the
reservation of the Tribe, and other Arizona water users have
entered into the WMAT Water Rights Quantification Agreement--
(A) to permanently quantify the water rights of the
Tribe, members of the Tribe, and the United States in
its capacity as trustee for the Tribe and members in
accordance with the Agreement; and
(B) to seek funding, in accordance with applicable
law, for the implementation of the Agreement;
(4) it is the policy of the United States to quantify and
settle Indian water rights claims, and to promote Indian self-
determination and economic self-sufficiency, without lengthy
and costly litigation, if practicable;
(5) certainty concerning the extent of the water rights of
the Tribe will--
(A) provide opportunities for economic development of
all parties to the proceeding; and
(B) assist the Tribe to achieve self-determination
and self-sufficiency; and
(6) in keeping with the trust responsibility of the United
States to Indian tribes, and to promote tribal sovereignty and
economic self-sufficiency, it is appropriate that the United
States implement the Agreement.
(b) Purposes.--The purposes of this Act are--
(1) to authorize, ratify, and confirm the Agreement;
(2) to authorize and direct the Secretary to execute the
Agreement and carry out all obligations of the Secretary under
the Agreement;
(3) to authorize the actions and appropriations necessary for
the United States to meet the obligations of the United States
under the Agreement and this Act; and
(4) to permanently resolve certain damage claims and all
water rights claims among--
(A) the Tribe and its members;
(B) the United States in its capacity as trustee for
the Tribe and its members;
(C) the parties to the Agreement; and
(D) all other claimants in the proceedings referred
to in subsection (a)(1).
SEC. 3. DEFINITIONS.
In this Act:
(1) Agreement.--The ``Agreement'' means--
(A) the WMAT Water Rights Quantification Agreement
dated January 13, 2009; and
(B) any amendment or exhibit (including exhibit
amendments) to that agreement that are--
(i) made in accordance with this Act; or
(ii) otherwise approved by the Secretary.
(2) Bureau.--The term ``Bureau'' means the Bureau of
Reclamation.
(3) CAP.--The term ``CAP'' means the reclamation project
authorized and constructed by the United States in accordance
with title III of the Colorado River Basin Project Act (43
U.S.C. 1521 et seq.).
(4) CAP contractor.--The term ``CAP contractor'' means an
individual or entity that has entered into a long-term contract
(as that term is used in the repayment stipulation) with the
United States for delivery of water through the CAP system.
(5) CAP fixed om&r charge.--The term ``CAP fixed OM&R
charge'' has the meaning given the term in the repayment
stipulation.
(6) CAP m&i priority water.--The term ``CAP M&I priority
water'' means the CAP water having a municipal and industrial
delivery priority under the repayment contract.
(7) CAP subcontractor.--The term ``CAP subcontractor'' means
an individual or entity that has entered into a long-term
subcontract (as that term is used in the repayment stipulation)
with the United States and the District for the delivery of
water through the CAP system.
(8) CAP system.--The term ``CAP system'' means--
(A) the Mark Wilmer Pumping Plant;
(B) the Hayden-Rhodes Aqueduct;
(C) the Fannin-McFarland Aqueduct;
(D) the Tucson Aqueduct;
(E) any pumping plant or appurtenant works of a
feature described in any of subparagraphs (A) through
(D); and
(F) any extension of, addition to, or replacement for
a feature described in any of subparagraphs (A) through
(E).
(9) CAP water.--The term ``CAP water'' means ``Project
Water'' (as that term is defined in the repayment stipulation).
(10) Contract.--The term ``Contract'' means--
(A) the proposed contract between the Tribe and the
United States attached as exhibit 7.1 to the Agreement
and numbered 08-XX-30-W0529; and
(B) any amendments to that contract.
(11) District.--The term ``District'' means the Central
Arizona Water Conservation District, a political subdivision of
the State that is the contractor under the repayment contract.
(12) Enforceability date.--The term ``enforceability date''
means the date described in section 9(d)(1).
(13) Indian tribe.--The term ``Indian tribe'' has the meaning
given the term in section 4 of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450b).
(14) Injury to water rights.--
(A) In general.--The term ``injury to water rights''
means an interference with, diminution of, or
deprivation of, a water right under Federal, State, or
other law.
(B) Inclusions.--The term ``injury to water rights''
includes--
(i) a change in the groundwater table; and
(ii) any effect of such a change.
(C) Exclusion.--The term ``injury to water rights''
does not include any injury to water quality.
(15) Lower colorado river basin development fund.--The term
``Lower Colorado River Basin Development Fund'' means the fund
established by section 403 of the Colorado River Basin Project
Act (43 U.S.C. 1543).
(16) Off-reservation trust land.--The term ``off-reservation
trust land'' means land--
(A) located outside the exterior boundaries of the
reservation that is held in trust by the United States
for the benefit of the Tribe as of the enforceability
date; and
(B) depicted on the map attached to the Agreement as
exhibit 2.57.
(17) Operating agency.--The term ``Operating Agency'' means
the 1 or more entities authorized to assume responsibility for
the care, operation, maintenance, and replacement of the CAP
system.
(18) Repayment contract.--The term ``repayment contract''
means--
(A) the contract between the United States and the
District for delivery of water and repayment of the
costs of the CAP, numbered 14-06-W-245 (Amendment No.
1), and dated December 1, 1988; and
(B) any amendment to, or revision of, that contract.
(19) Repayment stipulation.--The term ``repayment
stipulation'' means the stipulated judgment and the stipulation
for judgment (including any exhibits to those documents)
entered on November 21, 2007, in the United States District
Court for the District of Arizona in the consolidated civil
action styled Central Arizona Water Conservation District v.
United States, et al., and numbered CIV 95-625-TUC-WDB (EHC)
and CIV 95-1720-PHX-EHC.
(20) Reservation.--
(A) In general.--The term ``reservation'' means the
land within the exterior boundary of the White Mountain
Indian Reservation established by the Executive order
dated November 9, 1871, as modified by subsequent
Executive orders and Acts of Congress--
(i) known on the date of enactment of this
Act as the ``Fort Apache Reservation'' pursuant
to the Act of June 7, 1897 (30 Stat. 62,
chapter 3); and
(ii) generally depicted on the map attached
to the Agreement as exhibit 2.81.
(B) No effect on dispute or as admission.--The
depiction of the reservation described in subparagraph
(A)(ii) shall not--
(i) be used to affect any dispute between the
Tribe and the United States concerning the
legal boundary of the reservation; and
(ii) constitute an admission by the Tribe
with regard to any dispute between the Tribe
and the United States concerning the legal
boundary of the reservation.
(21) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(22) State.--The term ``State'' means the State of Arizona.
(23) Tribal cap water.--The term ``tribal CAP water'' means
the CAP water to which the Tribe is entitled pursuant to the
Contract.
(24) Tribal water rights.--The term ``tribal water rights''
means the water rights of the Tribe described in paragraph 4.0
of the Agreement.
(25) Tribe.--The term ``Tribe'' means the White Mountain
Apache Tribe organized under section 16 of the Act of June 18,
1934 (commonly known as the ``Indian Reorganization Act'') (25
U.S.C. 476).
(26) Water right.--The term ``water right'' means any right
in or to groundwater, surface water, or effluent under Federal,
State, or other law.
(27) WMAT rural water system.--The term ``WMAT rural water
system'' means the municipal, rural, and industrial water
diversion, storage, and delivery system described in section 7.
(28) Year.--The term ``year'' means a calendar year.
SEC. 4. APPROVAL OF AGREEMENT.
(a) Approval.--
(1) In general.--Except to the extent that any provision of
the Agreement conflicts with a provision of this Act, the
Agreement is authorized, ratified, and confirmed.
(2) Amendments.--Any amendment to the Agreement is
authorized, ratified, and confirmed, to the extent that such an
amendment is executed to make the Agreement consistent with
this Act.
(b) Execution of Agreement.--To the extent that the Agreement does
not conflict with this Act, the Secretary shall--
(1) execute the Agreement (including signing any exhibit to
the Agreement requiring the signature of the Secretary); and
(2) execute any amendment to the Agreement necessary to make
the Agreement consistent with this Act.
(c) National Environmental Policy Act.--
(1) Environmental compliance.--In implementing the Agreement,
the Secretary shall promptly comply with all applicable
requirements of--
(A) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.);
(B) the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.);
(C) all other applicable Federal environmental laws;
and
(D) all regulations promulgated under the laws
described in subparagraphs (A) through (C).
(2) Execution of agreement.--
(A) In general.--Execution of the Agreement by the
Secretary under this section shall not constitute a
major Federal action under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(B) Environmental compliance.--The Secretary shall
carry out all necessary environmental compliance
required by Federal law in implementing the Agreement.
(3) Lead agency.--The Bureau shall serve as the lead agency
with respect to ensuring environmental compliance associated
with the WMAT rural water system.
SEC. 5. WATER RIGHTS.
(a) Treatment of Tribal Water Rights.--The tribal water rights--
(1) shall be held in trust by the United States in
perpetuity; and
(2) shall not be subject to forfeiture or abandonment.
(b) Reallocation.--
(1) In general.--In accordance with this Act and the
Agreement, the Secretary shall reallocate to the Tribe, and
offer to enter into a contract with the Tribe for the delivery
in accordance with this section of--
(A) an annual entitlement to 23,782 acre-feet per
year of CAP water that has a non-Indian agricultural
delivery priority (as defined in the Contract) in
accordance with section 104(a)(1)(A)(iii) of the
Arizona Water Settlements Act (Public Law 108-451; 118
Stat. 3488), of which--
(i) 3,750 acre-feet per year shall be firmed
by the United States for the benefit of the
Tribe for the 100-year period beginning on
January 1, 2008, with priority equivalent to
CAP M&I priority water, in accordance with
section 105(b)(1)(B) of that Act (118 Stat.
3492); and
(ii) 3,750 acre-feet per year shall be firmed
by the State for the benefit of the Tribe for
the 100-year period beginning on January 1,
2008, with priority equivalent to CAP M&I
priority water, in accordance with section
105(b)(2)(B) of that Act (118 Stat. 3492); and
(B) an annual entitlement to 1,218 acre-feet per year
of the water--
(i) acquired by the Secretary through the
permanent relinquishment of the Harquahala
Valley Irrigation District CAP subcontract
entitlement in accordance with the contract
numbered 3-07-30-W0290 among the District,
Harquahala Valley Irrigation District, and the
United States; and
(ii) converted to CAP Indian Priority water
(as defined in the Contract) pursuant to the
Fort McDowell Indian Community Water Rights
Settlement Act of 1990 (Public Law 101-628; 104
Stat. 4480).
(2) Authority of tribe.--Subject to approval by the Secretary
under section 6(a)(1), the Tribe shall have the sole authority
to lease, distribute, exchange, or allocate the tribal CAP
water described in paragraph (1).
(c) Water Service Capital Charges.--The Tribe shall not be
responsible for any water service capital charge for tribal CAP water.
(d) Allocation and Repayment.--For the purpose of determining the
allocation and repayment of costs of any stages of the CAP constructed
after November 21, 2007, the costs associated with the delivery of
water described in subsection (b), regardless of whether the water is
delivered for use by the Tribe or in accordance with any assignment,
exchange, lease, option to lease, or other agreement for the temporary
disposition of water entered into by Tribe, shall be--
(1) nonreimbursable; and
(2) excluded from the repayment obligation of the District.
(e) Water Code.--Not later than 18 months after the enforceability
date, the Tribe shall enact a water code that--
(1) governs the tribal water rights; and
(2) includes, at a minimum--
(A) provisions requiring the measurement,
calculation, and recording of all diversions and
depletions of water on the reservation and on off-
reservation trust land;
(B) terms of a water conservation plan, including
objectives, conservation measures, and an
implementation timeline;
(C) provisions requiring the approval of the Tribe
for the severance and transfer of rights to the use of
water from historically irrigated land identified in
paragraph 11.3.2.1 of the Agreement to diversions and
depletions on other non-historically irrigated land not
located on the watershed of the same water source; and
(D) provisions requiring the authorization of the
Tribe for all diversions of water on the reservation
and on off-reservation trust land by any individual or
entity other than the Tribe.
SEC. 6. CONTRACT.
(a) In General.--The Secretary shall enter into the Contract, in
accordance with the Agreement, to provide, among other things, that--
(1) the Tribe, on approval of the Secretary, may--
(A) enter into contracts or options to lease,
contracts to exchange, or options to exchange tribal
CAP water in Maricopa, Pinal, Pima, and Yavapai
Counties in the State providing for the temporary
delivery to any individual or entity of any portion of
the tribal CAP water, subject to the condition that--
(i) the term of the contract or option to
lease shall not be longer than 100 years;
(ii) the contracts or options to exchange
shall be for the term provided in the contract
or option; and
(iii) a lease or option to lease providing
for the temporary delivery of tribal CAP water
shall require the lessee to pay to the
Operating Agency all CAP fixed OM&R charges and
all CAP pumping energy charges (as defined in
the repayment stipulation) associated with the
leased water; and
(B) renegotiate any lease at any time during the term
of the lease, subject to the condition that the term of
the renegotiated lease shall not exceed 100 years;
(2) no portion of the tribal CAP water may be permanently
alienated;
(3)(A) the Tribe (and not the United States in any capacity)
shall be entitled to all consideration due to the Tribe under
any contract or option to lease or exchange tribal CAP water
entered into by the Tribe; and
(B) the United States (in any capacity) has no trust or other
obligation to monitor, administer, or account for, in any
manner--
(i) any funds received by the Tribe as consideration
under a contract or option to lease or exchange tribal
CAP water; or
(ii) the expenditure of those funds;
(4)(A) all tribal CAP water shall be delivered through the
CAP system; and
(B) if the delivery capacity of the CAP system is
significantly reduced or anticipated to be significantly
reduced for an extended period of time, the Tribe shall have
the same CAP delivery rights as a CAP contractor or CAP
subcontractor that is allowed to take delivery of water other
than through the CAP system;
(5) the Tribe may use tribal CAP water on or off the
reservation for any purpose;
(6) as authorized by subsection (f)(2)(A) of section 403 of
the Colorado River Basin Project Act (43 U.S.C. 1543) and to
the extent that funds are available in the Lower Colorado River
Basin Development Fund established by subsection (a) of that
section, the United States shall pay to the Operating Agency
the CAP fixed OM&R charges associated with the delivery of
tribal CAP water (except in the case of tribal CAP water leased
by any individual or entity);
(7) the Secretary shall waive the right of the Secretary to
capture all return flow from project exchange water flowing
from the exterior boundary of the reservation; and
(8) no CAP water service capital charge shall be due or
payable for the tribal CAP water, regardless of whether the
water is delivered for use by the Tribe or pursuant to a
contract or option to lease or exchange tribal CAP water
entered into by the Tribe.
(b) Requirements.--The Contract shall be--
(1) for permanent service (within the meaning of section 5 of
the Boulder Canyon Project Act (43 U.S.C. 617d)); and
(2) without limit as to term.
(c) Ratification.--
(1) In general.--Except to the extent that any provision of
the Contract conflicts with a provision of this Act, the
Contract is authorized, ratified, and confirmed.
(2) Amendments.--Any amendment to the Contract is authorized,
ratified, and confirmed, to the extent that such an amendment
is executed to make the Contract consistent with this Act.
(d) Execution of Contract.--To the extent that the Contract does not
conflict with this Act, the Secretary shall execute the Contract.
(e) Payment of Charges.--The Tribe, and any recipient of tribal CAP
water through a contract or option to lease or exchange, shall not be
obligated to pay a water service capital charge or any other charge,
payment, or fee for CAP water, except as provided in an applicable
lease or exchange agreement.
(f) Prohibitions.--
(1) Use outside state.--No tribal CAP water may be leased,
exchanged, forborne, or otherwise transferred by the Tribe in
any way for use directly or indirectly outside the State.
(2) Use off reservation.--Except as authorized by this
section and paragraph 4.7 of the Agreement, no tribal water
rights under this Act may be sold, leased, transferred, or used
outside the boundaries of the reservation or off-reservation
trust land other than pursuant to an exchange.
(3) Agreements with arizona water banking authority.--Nothing
in this Act or the Agreement limits the right of the Tribe to
enter into an agreement with the Arizona Water Banking
Authority established by section 45-2421 of the Arizona Revised
Statutes (or any successor entity), in accordance with State
law.
(g) Leases.--
(1) In general.--To the extent the leases of tribal CAP Water
by the Tribe to the District and to any of the cities, attached
as exhibits to the Agreement, are not in conflict with the
provisions of this Act--
(A) those leases are authorized, ratified, and
confirmed; and
(B) the Secretary shall execute the leases.
(2) Amendments.--To the extent that amendments are executed
to make the leases described in paragraph (1) consistent with
this Act, those amendments are authorized, ratified, and
confirmed.
SEC. 7. AUTHORIZATION OF RURAL WATER SYSTEM.
(a) In General.--Subject to the availability of appropriations, the
Secretary, acting through the Bureau, shall plan, design, construct,
operate, maintain, replace, and rehabilitate the WMAT rural water
system as generally described in the project extension report dated
February 2007.
(b) Components.--The WMAT rural water system under subsection (a)
shall consist of--
(1) a dam and storage reservoir, pumping plant, and treatment
facilities located along the North Fork White River near the
community of Whiteriver;
(2) pipelines extending from the water treatment plants to
existing water distribution systems serving the Whiteriver,
Carrizo, and Cibecue areas, together with other communities
along the pipeline;
(3) connections to existing distribution facilities,
including public and private water systems in existence on the
date of enactment of this Act;
(4) appurtenant buildings and access roads;
(5) electrical power transmission and distribution facilities
necessary for services to rural water system facilities;
(6) all property and property rights necessary for the
facilities described in this subsection; and
(7) such other project components as the Secretary determines
to be appropriate to meet the water supply, economic, public
health, and environmental needs of the portions of the
reservation served by the WMAT rural water system, including
water storage tanks, water lines, and other facilities for the
Tribe and the villages and towns on the reservation.
(c) Service Area.--The service area of the WMAT rural water system
shall be as described in the Project Extension report dated February
2007.
(d) Construction Requirements.--The components of the WMAT rural
water system shall be planned and constructed to a size that is
sufficient to meet the municipal, rural, and industrial water supply
requirements of the WMAT rural water system service area during the
period beginning on the date of enactment of this Act and ending not
earlier than December 31, 2040.
(e) Title.--
(1) In general.--Title to the WMAT rural water system shall
be held in trust by the United States in its capacity as
trustee for the Tribe.
(2) Conveyance to tribe.--The Secretary may convey to the
Tribe title to the WMAT rural water system after publication by
the Secretary in the Federal Register of a statement of
findings that--
(A) the designers' operating criteria, standing
operating procedures, emergency action plan, and first
filling and monitoring criteria are established and in
place, and the WMAT rural water system has been
declared substantially complete;
(B) the funds authorized to be appropriated under
section 12(b)(3)(B) have been appropriated and
deposited in the WMAT Maintenance Fund; and
(C) the Tribe has been operating successfully under
the established standing operating procedures for a
period of 5 calendar years.
(3) Alienation and taxation.--Conveyance of title to the
Tribe pursuant to paragraph (2) does not waive or alter any
applicable Federal law prohibiting alienation or taxation of
the WMAT rural water system or the underlying reservation land.
(f) Technical Assistance.--The Secretary shall provide such technical
assistance as is necessary to enable the Tribe to plan, design,
construct, operate, maintain, and replace the WMAT rural water system,
including operation and management training.
(g) Applicability of ISDEAA.--
(1) Agreement for specific activities.--On receipt of a
request of the Tribe, and in accordance with the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450 et
seq.), the Secretary shall enter into an agreement with the
Tribe to carry out the activities authorized by this section.
(2) Contracts.--Any contract entered into pursuant to the
Indian Self-Determination and Education Assistance Act (25
U.S.C. 450 et seq.) for the purpose of carrying out any
provision of this Act shall incorporate such provisions
regarding periodic payment of funds, timing for use of funds,
transparency, oversight, reporting, and accountability as the
Secretary determines to be necessary (at the sole discretion of
the Secretary) to ensure appropriate stewardship of Federal
funds.
(h) Condition.--As a condition of construction of the facilities
authorized by this section, the Tribe shall provide, at no cost to the
Secretary, all land or interests in land, as appropriate, that the
Secretary identifies as being necessary for those facilities.
(i) Operation and Maintenance.--Subject to the availability of
appropriations as provided for in section 12(e), the Secretary, acting
through the Bureau, shall operate and maintain the WMAT rural water
system until the date on which title to the WMAT rural water system is
conveyed to the Tribe pursuant to subsection (e)(2).
SEC. 8. SATISFACTION OF CLAIMS.
(a) In General.--The benefits realized by the Tribe and its members
under this Act shall be in full satisfaction of all claims of the Tribe
and its members for water rights and injury to water rights, except as
set forth in the Agreement, under Federal, State, or other law with
respect to the reservation and off-reservation trust land.
(b) Uses of Water.--All uses of water on land outside of the
reservation, if and when such land is subsequently and finally
determined to be part of the reservation through resolution of any
dispute between the Tribe and the United States over the location of
the reservation boundary, and any fee land within the reservation put
into trust and made part of the reservation, shall be subject to the
maximum annual diversion amounts and the maximum annual depletion
amounts specified in the Agreement.
(c) No Recognition of Water Rights.--Notwithstanding subsection (a),
nothing in this Act has the effect of recognizing or establishing any
right of a member of the Tribe to water on the reservation.
SEC. 9. WAIVER AND RELEASE OF CLAIMS.
(a) In General.---
(1) Claims against the state and others.--Except as provided
in subsection (b)(1), the Tribe, on behalf of itself and its
members, and the United States, acting in its capacity of
trustee for the Tribe and its members, as part of the
performance of their obligations under the Agreement, are
authorized to execute a waiver and release of any claims
against the State (or any agency or political subdivision of
the State), or any other person, entity, corporation, or
municipal corporation under Federal, State, or other law for
all--
(A)(i) past, present, and future claims for water
rights for the reservation and off-reservation trust
land arising from time immemorial and, thereafter,
forever; and
(ii) past, present, and future claims for water
rights arising from time immemorial and, thereafter,
forever, that are based on aboriginal occupancy of land
by the Tribe, its members, or their predecessors;
(B)(i) past and present claims for injury to water
rights for the reservation and off-reservation trust
land arising from time immemorial through the
enforceability date;
(ii) past, present, and future claims for injury to
water rights arising from time immemorial and,
thereafter, forever, that are based on aboriginal
occupancy of land by the Tribe and its members, or
their predecessors; and
(iii) claims for injury to water rights arising after
the enforceability date for the reservation and off-
reservation trust land resulting from off-reservation
diversion or use of water in a manner not in violation
of the Agreement or State law; and
(C) past, present, and future claims arising out of
or relating in any manner to the negotiation,
execution, or adoption of the Agreement, an applicable
settlement judgement or decree, or this Act.
(2) Claims against tribe.--Except as provided in subsection
(b)(3), the United States, in all its capacities (except as
trustee for an Indian tribe other than the Tribe), as part of
the performance of its obligations under the Agreement, is
authorized to execute a waiver and release of any and all
claims against the Tribe, its members, or any agency, official,
or employee of the Tribe, under Federal, State, or any other
law for all--
(A) past and present claims for injury to water
rights resulting from the diversion or use of water on
the reservation and on off-reservation trust land
arising from time immemorial through the enforceability
date;
(B) claims for injury to water rights arising after
the enforceability date resulting from the diversion or
use of water on the reservation and on off-reservation
trust land in a manner not in violation of the
Agreement; and
(C) past, present, and future claims arising out of
or related in any manner to the negotiation, execution,
or adoption of the Agreement, an applicable settlement
judgement or decree, or this Act.
(3) Claims against united states.--Except as provided in
subsection (b)(2), the Tribe, on behalf of itself and its
members, as part of the performance of the obligations of the
Tribe under the Agreement, is authorized to execute a waiver
and release of any claim against the United States, including
agencies, officials, or employees of the United States (except
in the capacity of the United States as trustee for other
Indian tribes), under Federal, State, or other law for any and
all--
(A)(i) past, present, and future claims for water
rights for the reservation and off-reservation trust
land arising from time immemorial and, thereafter,
forever; and
(ii) past, present, and future claims for water
rights arising from time immemorial and, thereafter,
forever that are based on aboriginal occupancy of land
by the Tribe, its members, or their predecessors;
(B)(i) past and present claims relating in any manner
to damages, losses, or injuries to water, water rights,
land, or other resources due to loss of water or water
rights (including damages, losses, or injuries to
hunting, fishing, gathering, or cultural rights due to
loss of water or water rights, claims relating to
interference with, diversion, or taking of water, or
claims relating to failure to protect, acquire, or
develop water, water rights, or water infrastructure)
within the reservation and off-reservation trust land
that first accrued at any time prior to the
enforceability date;
(ii) past, present, and future claims for injury to
water rights arising from time immemorial and,
thereafter, forever that are based on aboriginal
occupancy of land by the Tribe, its members, or their
predecessors; and
(iii) claims for injury to water rights arising after
the enforceability date for the reservation and off-
reservation trust land resulting from the off-
reservation diversion or use of water in a manner not
in violation of the Agreement or applicable law;
(C) past, present, and future claims arising out of
or relating in any manner to the negotiation,
execution, or adoption of the Agreement, an applicable
settlement judgment or decree, or this Act;
(D) past and present claims relating in any manner to
pending litigation of claims relating to the water
rights of the Tribe for the reservation and off-
reservation trust land;
(E) past and present claims relating to the
operation, maintenance, and replacement of existing
irrigation systems on the reservation constructed prior
to the enforceability date that first accrued at any
time prior to the enforceability date, which waiver
shall only become effective on the full appropriation
and payment to the Tribe of $4,950,000 authorized by
section 12(b)(2)(B);
(F) future claims relating to operation, maintenance,
and replacement of the WMAT rural water system, which
waiver shall only become effective on the full
appropriation of funds authorized by section
12(b)(3)(B) and the deposit of those funds in the WMAT
Maintenance Fund;
(G) past and present breach of trust and negligence
claims for damage to the land and natural resources of
the Tribe caused by riparian and other vegetative
manipulation by the United States for the purpose of
increasing water runoff from the reservation that first
accrued at any time prior to the enforceability date;
and
(H) past and present claims for trespass, use, and
occupancy of the reservation in, on, and along the
Black River that first accrued at any time prior to the
enforceability date.
(b) Reservation of Rights and Retention of Claims.--
(1) Reservation of rights and retention of claims by tribe
and united states.--
(A) In general.--Notwithstanding the waiver and
release of claims authorized under subsection (a)(1),
the Tribe, on behalf of itself and the members of the
Tribe, and the United States, acting as trustee for the
Tribe and members of the Tribe, shall retain any
right--
(i) subject to subparagraph 16.9 of the
Agreement, to assert claims for injuries to,
and seek enforcement of, the rights of the
Tribe and members of the Tribe under the
Agreement or this Act in any Federal or State
court of competent jurisdiction;
(ii) to assert claims for injuries to, and
seek enforcement of, the rights of the Tribe
under the judgment and decree entered by the
court in the Gila River adjudication
proceedings;
(iii) to assert claims for injuries to, and
seek enforcement of, the rights of the Tribe
under the judgment and decree entered by the
court in the Little Colorado River adjudication
proceedings;
(iv) to object to any claims by or for any
other Indian tribe, Indian community or nation,
or dependent Indian community, or the United
States on behalf of such a tribe, community, or
nation;
(v) to participate in the Gila River
adjudication proceedings and the Little
Colorado River adjudication proceedings to the
extent provided in subparagraph 14.1 of the
Agreement;
(vi) to assert any claims arising after the
enforceability date for injury to water rights
not specifically waived under this section;
(vii) to assert any past, present, or future
claim for injury to water rights against any
other Indian tribe, Indian community or nation,
dependent Indian community, allottee, or the
United States on behalf of such a tribe,
community, nation, or allottee; and
(viii) to assert any past, present, or future
claim for trespass, use, and occupancy of the
reservation in, on, or along the Black River
against Freeport-McMoRan Copper & Gold, Inc.,
Phelps Dodge Corporation, or Phelps Dodge
Morenci, Inc. (or a predecessor or successor of
those entities), including all subsidiaries and
affiliates of those entities.
(B) Agreement.--On terms acceptable to the Tribe and
the United States, the Tribe and the United States are
authorized to enter into an agreement with Freeport-
McMoRan Copper & Gold, Inc., Phelps Dodge Corporation,
or Phelps Dodge Morenci, Inc. (or a predecessor or
successor of those entities), including all
subsidiaries and affiliates of those entities, to
resolve the claims of the Tribe relating to the
trespass, use, and occupancy of the reservation in, on,
and along the Black River.
(2) Reservation of rights and retention of claims by tribe
against united states.--Notwithstanding the waiver and release
of claims authorized under subsection (a)(3), the Tribe, on
behalf of itself and the members of the Tribe, shall retain any
right--
(A) subject to subparagraph 16.9 of the Agreement, to
assert claims for injuries to, and seek enforcement of,
the rights of the Tribe and members under the Agreement
or this Act, in any Federal or State court of competent
jurisdiction;
(B) to assert claims for injuries to, and seek
enforcement of, the rights of the Tribe and members
under the judgment and decree entered by the court in
the Gila River adjudication proceedings;
(C) to assert claims for injuries to, and seek
enforcement of, the rights of the Tribe and members
under the judgment and decree entered by the court in
the Little Colorado River adjudication proceedings;
(D) to object to any claims by or for any other
Indian tribe, Indian community or nation, dependent
Indian community, or the United States on behalf of
such a tribe, community, or nation;
(E) to assert past, present, or future claims for
injury to water rights or any other claims other than a
claim to water rights, against any other Indian tribe,
Indian community or nation, dependent Indian community,
or the United States on behalf of such a tribe,
community, or nation;
(F) to assert claims arising after the enforceability
date for injury to water rights resulting from the
drilling of wells or pumping of water from land located
within national forest land as of the effective date of
the Agreement in the south \1/2\ of T. 9 N., R. 24 E.;
south \1/2\ of T. 9 N., R. 25 E.; north \1/2\ of T. 8
N., R. 24 E.; north \1/2\ of T. 8 N., R. 25 E., if--
(i) title to that land is no longer retained
by the United States; or
(ii) water from that land is transported off
the land for municipal or industrial use;
(G) to assert any claims arising after the
enforceability date for injury to water rights not
specifically waived under this section;
(H) to assert any other claims not specifically
waived under this section; and
(I) to assert any claim arising after the
enforceability date for a future taking by the United
States of reservation land, off-reservation trust land,
or any property rights appurtenant to that land,
including any water rights set forth in paragraph 4.0
of the Agreement.
(3) Reservation of rights and retention of claims by united
states.--Notwithstanding the waiver and release of claims
authorized under subsection (a)(2), the United States shall
retain any right to assert any claim not specifically waived in
that subsection.
(c) Effectiveness of Waiver and Releases.--Except as otherwise
specifically provided in subparagraphs (E) and (F) of subsection
(a)(3), the waivers and releases under subsection (a) shall become
effective on the enforceability date.
(d) Enforceability Date.--
(1) In general.--This section takes effect on the date on
which the Secretary publishes in the Federal Register a
statement of findings that--
(A)(i) to the extent the Agreement conflicts with
this Act, the Agreement has been revised through an
amendment to eliminate the conflict; and
(ii) the Agreement, as so revised, has been executed
by the Secretary, the Tribe, and the Governor of the
State;
(B) the Secretary has fulfilled the requirements of
sections 5 and 6;
(C) the amount authorized by section 12(a) has been
deposited in the White Mountain Apache Tribe Water
Rights Settlement Subaccount;
(D) the State funds described in subparagraph 13.3 of
the Agreement have been deposited in the White Mountain
Apache Tribe Water Rights Settlement Subaccount;
(E) the Secretary has issued a record of decision
approving the construction of the WMAT rural water
system in a configuration substantially similar to that
described in section 7; and
(F) the judgments and decrees substantially in the
form of those attached to the Agreement as exhibits
12.9.6.1 and 12.9.6.2 have been approved by the
respective trial courts.
(2) Failure of enforceability date to occur.--If, because of
the failure of the enforceability date to occur by October 31,
2015, this section does not become effective, the Tribe and its
members, and the United States, acting in the capacity of
trustee for the Tribe and its members, shall retain the right
to assert past, present, and future water rights claims and
claims for injury to water rights for the reservation and off-
reservation trust land.
(3) No rights to water.--On the occurrence of the
enforceability date, all land held by the United States in
trust for the Tribe and its members shall have no rights to
water other than those specifically quantified for the Tribe
and the United States, acting in the capacity of trustee for
the Tribe and its members, for the reservation and off-
reservation trust land pursuant to paragraph 4.0 of the
Agreement.
(e) United States Enforcement Authority.--Nothing in this Act or the
Agreement affects any right of the United States to take any action,
including environmental actions, under any laws (including regulations
and the common law) relating to human health, safety, or the
environment.
(f) No Effect on Water Rights.--Except as provided in paragraphs
(1)(A)(ii), (1)(B)(ii), (3)(A)(ii), and (3)(B)(ii) of subsection (a),
nothing in this Act affects any rights to water of the Tribe, its
members, or the United States acting as trustee for the Tribe and
members, for land outside the boundaries of the reservation or the off-
reservation trust land.
(g) Entitlements.--Any entitlement to water of the Tribe, its
members, or the United States acting as trustee for the Tribe and
members, relating to the reservation or off-reservation trust land
shall be satisfied from the water resources granted, quantified,
confirmed, or recognized with respect to the Tribe, members, and the
United States by the Agreement and this Act.
(h) Objection Prohibited.--Except as provided in subsection
(b)(2)(F), the Tribe and the United States acting as trustee for the
Tribe shall not--
(1) object to the usage of any well located outside the
boundaries of the reservation or the off-reservation trust
land, as in existence on the enforceability date; or
(2) object to, dispute, or challenge after the enforceability
date the drilling of any well or the withdrawal and use of
water from any well in the Little Colorado River adjudication
proceedings, the Gila River adjudication proceedings, or any
other judicial or administrative proceeding.
SEC. 10. WHITE MOUNTAIN APACHE TRIBE WATER RIGHTS SETTLEMENT
SUBACCOUNT.
(a) Establishment.--There is established in the Lower Colorado River
Basin Development Fund a subaccount to be known as the ``White Mountain
Apache Tribe Water Rights Settlement Subaccount'', consisting of--
(1) the amounts appropriated to the subaccount pursuant to
subsections (a) and (d) of section 12, as applicable; and
(2) such other amounts as are available, including the funds
provided in subparagraph 13.3 of the Agreement.
(b) Expenditures and Withdrawals.--
(1) Contracts.--
(A) In general.--The Tribe may withdraw any portion
of the White Mountain Apache Tribe Water Rights
Settlement Subaccount on approval by the Secretary
pursuant to the terms of an agreement entered into
under section 7(g).
(B) Requirements.--An agreement entered into under
section 7(g) shall require that the Tribe shall use the
amounts in the White Mountain Apache Tribe Water Rights
Settlement Subaccount only for the planning, design,
and construction of the rural water system, including
such sums as are necessary--
(i) for the Bureau to carry out oversight of
the planning, design, and construction of the
rural water system;
(ii) to repay any outstanding balance on the
loan authorized by the White Mountain Apache
Tribe Rural Water System Loan Authorization Act
(Public Law 110-390; 122 Stat. 4191); and
(iii) to carry out all required environmental
compliance activities associated with the
planning, design, and construction of the rural
water system.
(2) Enforcement.--The Secretary may pursue such judicial
remedies and carry out such administrative actions as are
necessary to enforce an agreement described in paragraph (1) to
ensure that amounts in the White Mountain Apache Tribe Water
Rights Settlement Subaccount are used in accordance with this
section.
(3) Liability.--On withdrawal by the Tribe of amounts in the
White Mountain Apache Tribe Water Rights Settlement Subaccount,
the Secretary and the Secretary of the Treasury shall not
retain liability for the expenditure or investment of those
amounts.
(4) Expenditure plan.--
(A) In general.--The Tribe shall submit to the
Secretary for approval an expenditure plan for any
portion of the amounts in the subaccount under this
section that the Tribe does not withdraw pursuant to
this subsection.
(B) Description.--The expenditure plan shall describe
the manner in which, and the purposes for which, the
amounts remaining in the subaccount will be used.
(C) Approval.--The Secretary shall approve an
expenditure plan under this paragraph if the Secretary
determines that the plan is--
(i) reasonable; and
(ii) consistent with this Act.
(5) Annual reports.--The Tribe shall submit to the Secretary
an annual report that describes each expenditure from the White
Mountain Apache Tribe Water Rights Settlement Subaccount during
the year covered by the report.
(c) Prohibition on Per Capita Distributions.--No amount of the
principal, or the interest or income accruing on the principal, of the
White Mountain Apache Tribe Water Rights Settlement Subaccount shall be
distributed to any member of the Tribe on a per capita basis.
(d) Availability of Funds.--
(1) In general.--Amounts in the White Mountain Apache Tribe
Water Rights Settlement Subaccount shall not be available for
expenditure or withdrawal by the Tribe until the enforceability
date.
(2) Investment.--Beginning on the date described in section
9(d), the Secretary shall invest the amounts in the White
Mountain Apache Tribe Water Rights Settlement Subaccount in
accordance with section 403(f)(4) of the Colorado River Basin
Project Act (43 U.S.C. 1543(f)(4)).
SEC. 11. MISCELLANEOUS PROVISIONS.
(a) Limited Waiver of Sovereign Immunity.--
(1) In general.--In the case of a civil action described in
paragraph (2)--
(A) the United States or the Tribe, or both, may be
joined in the civil action; and
(B) any claim by the United States or the Tribe to
sovereign immunity from the civil action is waived for
the sole purpose of resolving any issue regarding the
interpretation or enforcement of this Act or the
Agreement.
(2) Description of civil action.--A civil action referred to
in paragraph (1) is a civil action filed--
(A) by any party to the Agreement or signatory to an
exhibit to the Agreement in a United States or State
court that--
(i) relates solely and directly to the
interpretation or enforcement of this Act or
the Agreement; and
(ii) names as a party the United States or
the Tribe; or
(B) by a landowner or water user in the Gila River
basin or Little Colorado River basin in the State
that--
(i) relates solely and directly to the
interpretation or enforcement of section 9 of
this Act and paragraph 12.0 of the Agreement;
and
(ii) names as a party the United States or
the Tribe.
(b) Effect of Act.--Nothing in this Act quantifies or otherwise
affects any water right or claim or entitlement to water of any Indian
tribe, band, or community other than the Tribe.
(c) Limitation on Liability of United States.--
(1) In general.--The United States shall have no trust or
other obligation--
(A) to monitor, administer, or account for, in any
manner, any amount paid to the Tribe by any party to
the Agreement other than the United States; or
(B) to review or approve the expenditure of those
funds.
(2) Indemnification.--The Tribe shall indemnify the United
States, and hold the United States harmless, with respect to
any claim (including claims for takings or breach of trust)
arising out of the receipt or expenditure of funds described in
paragraph (1)(A).
(d) Applicability of Reclamation Reform Act.--The Reclamation Reform
Act of 1982 (43 U.S.C. 390aa et seq.) and any other acreage limitation
or full-cost pricing provision under Federal law shall not apply to any
individual, entity, or land solely on the basis of--
(1) receipt of any benefit under this Act;
(2) the execution or performance of the Agreement; or
(3) the use, storage, delivery, lease, or exchange of CAP
water.
(e) Secretarial Power Sites.--The portions of the following named
secretarial power site reserves that are located on the Fort Apache
Indian Reservation or the San Carlos Apache Reservation, as applicable,
shall be transferred and restored into the name of the Tribe or the San
Carlos Apache Tribe, respectively:
(1) Lower Black River (T. 3 N., R. 26 E.; T. 3 N., R. 27 E.).
(2) Black River Pumps (T. 2 N., R. 25 E.; T. 2 N., R. 26 E.;
T. 3 N., R. 26 E.).
(3) Carrizo (T. 4 N., R. 20 E.; T. 4 N., R. 21 E.; T. 4\1/2\
N., R. 19 E.; T. 4\1/2\ N., R. 20 E.; T. 4\1/2\ N., R. 21 E.;
T. 5 N., R. 19 E.).
(4) Knob (T. 5 N., R. 18 E.; T. 5 N., R. 19 E.).
(5) Walnut Canyon (T. 5 N., R. 17 E.; T. 5 N., R. 18 E.).
(6) Gleason Flat (T. 4\1/2\ N., R. 16 E.; T. 5 N., R. 16 E.).
(f) No Effect on Future Allocations.--Water received under a lease or
exchange of tribal CAP water under this Act shall not affect any future
allocation or reallocation of CAP water by the Secretary.
(g) After-acquired Trust Land.--
(1) Requirement of act of congress.--
(A) Legal title.--After the enforceability date, if
the Tribe seeks to have legal title to additional land
in the State of Arizona located outside the exterior
boundaries of the reservation taken into trust by the
United States for its benefit, the Tribe may do so only
pursuant to an Act of Congress specifically authorizing
the transfer for the benefit of the Tribe.
(B) Exceptions.--Subparagraph (A) shall not apply
to--
(i) restoration of land to the reservation
subsequently and finally determined to be part
of the reservation through resolution of any
dispute between the Tribe and the United States
over the location of the reservation boundary
unless required by Federal law; or
(ii) off-reservation trust land acquired
prior to January 1, 2008.
(2) Water rights.--
(A) In general.--Under this section, after-acquired
trust land outside the reservation shall not include
federally reserved rights to surface water or
groundwater.
(B) Restored land.--Land restored to the reservation
as the result of resolution of any reservation boundary
dispute between the Tribe and the United States, or any
fee simple land within the reservation that are placed
into trust, shall have water rights pursuant to section
8(b).
(3) Acceptance of land in trust status.--
(A) In general.--If the Tribe acquires legal fee
title to land that is located within the exterior
boundaries of the reservation, the Secretary shall
accept the land in trust status for the benefit of the
Tribe in accordance with applicable Federal law
(including regulations) for such real estate
acquisitions.
(B) Reservation status.--Land taken or held in trust
by the Secretary under paragraph (3), or restored to
the reservation as a result of resolution of a boundary
dispute between the Tribe and the United States, shall
be deemed to be part of the reservation.
(h) Conforming Amendment.--Section 3(b)(2) of the White Mountain
Apache Tribe Rural Water System Loan Authorization Act (Public Law 110-
390; 122 Stat. 4191) is amended by striking ``2013'' and inserting
``2016''.
SEC. 12. AUTHORIZATION OF APPROPRIATIONS.
(a) Rural Water System.--
(1) In general.--There is authorized to be appropriated for
the planning, engineering, design, environmental compliance,
and construction of the WMAT rural water system $126,193,000.
(2) Inclusions.--The amount authorized to be appropriated
under paragraph (1) shall include such sums as are necessary,
but not to exceed 4 percent of construction contract costs, for
the Bureau to carry out oversight of activities for planning,
design, environmental compliance, and construction of the rural
water system.
(b) WMAT Settlement and Maintenance Funds.--
(1) Definition of funds.--In this subsection, the term
``Funds'' means--
(A) the WMAT Settlement Fund established by paragraph
(2)(A); and
(B) the WMAT Maintenance Fund established by
paragraph (3)(A).
(2) WMAT settlement fund.--
(A) Establishment.--There is established in the
Treasury of the United States a fund to be known as the
``WMAT Settlement Fund'', for use by the Tribe in
accordance with subparagraph (C), which shall consist
of--
(i) such amounts as are deposited in the fund
under subparagraph (B); and
(ii) any interest accrued on the deposited
amounts.
(B) Transfers to fund.--There is authorized to be
appropriated to the Secretary $113,500,000 for deposit
in the WMAT Settlement Fund, of which not less than
$4,950,000 shall be used for the rehabilitation of
existing irrigation systems.
(C) Use of funds.--The Tribe shall use amounts in the
WMAT Settlement Fund for any of the following purposes:
(i) Fish production, including hatcheries.
(ii) Rehabilitation of recreational lakes and
existing irrigation systems.
(iii) Water-related economic development
projects.
(iv) Protection, restoration, and economic
development of forest and watershed health.
(v) Any cost overruns for the completion of
the WMAT rural water system, as provided in
subsection (f).
(3) WMAT maintenance fund.--
(A) Establishment.--There is established in the
Treasury of the United States a fund to be known as the
``WMAT Maintenance Fund'', consisting of such amounts
as are deposited in the fund under subparagraph (B),
together with any interest accrued on those amounts,
for use by the Tribe in accordance with subparagraph
(C).
(B) Transfers to fund.--There is authorized to be
appropriated to the Secretary $50,000,000 for deposit
in the WMAT Maintenance Fund.
(C) Use of funds.--The Tribe or the Secretary, as
applicable, shall use amounts in the WMAT Maintenance
Fund only for the operation, maintenance, and
replacement costs associated with the delivery of water
through the rural water system.
(4) Administration.--The Secretary shall manage the Funds in
accordance with the American Indian Trust Fund Management
Reform Act of 1994 (25 U.S.C. 4001 et seq.), including by
investing amounts in the Funds in accordance with--
(A) the Act of April 1, 1880 (25 U.S.C. 161); and
(B) the first section of the Act of June 24, 1938 (25
U.S.C. 162a).
(5) Availability of amounts from funds.--Amounts in the Funds
shall be available for expenditure or withdrawal only after the
enforceability date in accordance with subsection (g).
(6) Expenditure and withdrawal.--
(A) Tribal management plan.--
(i) In general.--The Tribe 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.).
(ii) Requirements.--In addition to the
requirements under the American Indian Trust
Fund Management Reform Act of 1994 (25 U.S.C.
4001 et seq.), a tribal management plan under
this subparagraph shall require that the Tribe
shall spend any amounts withdrawn from the
Funds in accordance with the purposes described
in paragraph (2)(C) or (3)(C).
(iii) Enforcement.--The Secretary may take
judicial or administrative action to enforce
the provisions of a tribal management plan
under this subparagraph to ensure that any
amounts withdrawn from the Funds under the plan
are used in accordance with this Act and the
Agreement.
(iv) Liability.--If the Tribe exercises 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.
(B) Expenditure plan.--
(i) In general.--The Tribe shall submit to
the Secretary for approval an expenditure plan
for any portion of the amounts in the Funds
that the Tribe does not withdraw under the
tribal management plan.
(ii) Description.--The expenditure plan shall
describe the manner in which, and the purposes
for which, amounts of the Tribe remaining in
the Funds will be used.
(iii) Approval.--On receipt of an expenditure
plan under clause (i), the Secretary shall
approve the plan if the Secretary determines
that the plan is reasonable and consistent with
this Act and the Agreement.
(iv) Annual report.--For each of the Funds,
the Tribe shall submit to the Secretary an
annual report that describes all expenditures
from the Fund during the year covered by the
report.
(C) Certain per capita distributions prohibited.--No
amount in the Funds shall be distributed to any member
of the Tribe on a per capita basis.
(c) Cost Indexing.--All amounts authorized to be appropriated under
subsections (a) and (b) shall be adjusted as may be required to reflect
the changes since October 1, 2007, in the construction cost indices
applicable to the types of construction involved in the construction of
the WMAT rural water supply system, the maintenance of the rural water
supply system, and the construction or rehabilitation of the other
development projects authorized under subsection (b)(2)(C).
(d) Emergency Fund for Indian Safety and Health.--
(1) Definition of emergency fund for indian safety and
health.--In this subsection, the term ``Emergency Fund for
Indian Safety and Health'' means the Emergency Fund for Indian
Safety and Health established by section 601(a) of the Tom
Lantos and Henry J. Hyde United States Global Leadership
Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act
of 2008 (22 U.S.C. 7601 et seq.).
(2) Initial transfer.--Not later than 90 days after the date
of enactment of this Act, such amounts as are available, but
not to exceed $50,000,000, in the Emergency Fund for Indian
Safety and Health shall be transferred to the White Mountain
Apache Tribe Water Rights Settlement Subaccount.
(3) Subsequent transfer.--Effective beginning on January 1,
2012, if the Secretary determines that, on an annual basis, the
deadline described in section 9(d)(2) is not likely to be met
because the amount authorized by subsection (a) has not been
appropriated and deposited in the White Mountain Apache Tribe
Water Rights Settlement Subaccount, not more than $50,000,000
of the amounts in the Emergency Fund for Indian Safety and
Health shall be transferred to the White Mountain Apache Tribe
Water Rights Settlement Subaccount, as necessary to complete
the WMAT rural water system project.
(4) Limitation.--The total amount transferred from the
Emergency Fund for Indian Safety and Health to the White
Mountain Apache Tribe Water Rights Settlement Subaccount under
paragraphs (2) and (3) shall not exceed $100,000,000.
(e) Operation, Maintenance, and Replacement.--
(1) In general.--There is authorized to be appropriated to
the Secretary $2,500,000 for the operation, maintenance, and
replacement costs of the WMAT rural water system, to remain
available until the conditions described in subsection (g) have
been met.
(2) Subsequent funding.--Beginning on January 1, 2021, the
Tribe or the Secretary, as applicable, may use amounts
deposited in the WMAT Maintenance Fund under subsection
(b)(3)(B) for operation, maintenance, and replacement costs of
the WMAT rural water system.
(f) Cost Overruns.--On a determination by the Secretary that the
amount authorized to be appropriated under subsection (a) is not
sufficient for the completion of the WMAT rural water system, there are
authorized to be appropriated such sums as are necessary, but not to
exceed an additional $25,000,000, to complete the WMAT rural water
system, to be derived by transfer from the amounts authorized to be
appropriated to the Secretary for deposit in the WMAT Settlement Fund
under subsection (b)(2)(B) in such amounts as the Secretary, in
concurrence with the Tribe, determines to be appropriate.
(g) Conditions.--The amounts authorized to be appropriated to the
Secretary for deposit in the WMAT Maintenance Fund, together with any
interest accrued thereon, under subsection (b)(3), and any interest
accruing on the WMAT Settlement Fund under subsection (b)(2), shall not
be available for expenditure or withdrawal until the later of--
(1) December 31, 2020; and
(2) the date on which the Secretary determines that the
conditions described in section 9(d) have been met.
SEC. 13. ANTIDEFICIENCY.
The United States shall not be liable for failure to carry out any
obligation or activity authorized to be carried out, subject to
appropriations, under this Act (including any such obligation or
activity under the Agreement) if adequate appropriations for that
purpose are not provided by Congress.
SEC. 14. REPEAL ON FAILURE OF ENFORCEABILITY DATE.
If the Secretary fails to publish in the Federal Register a statement
of findings as required under section 9(d) by not later than October
31, 2015--
(1) effective beginning on November 1, 2015--
(A) this Act is repealed; and
(B) any action carried out by the Secretary, and any
contract entered into, pursuant to this Act shall be
void;
(2) any amounts appropriated under subsections (a), (b), (d),
and (e) of section 12, together with any interest accrued on
those amounts, shall immediately revert to the general fund of
the Treasury; and
(3) any other amounts deposited in the White Mountain Apache
Tribe Water Settlement Subaccount (including any amounts paid
by the State in accordance with the Agreement), together with
any interest accrued on those amounts, shall immediately be
returned to the respective sources of those funds.
SEC. 15. COMPLIANCE WITH ENVIRONMENTAL LAWS.
In carrying out this Act, the Secretary shall promptly comply with
all applicable requirements of--
(1) the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.);
(2) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.);
(3) all other applicable Federal environmental laws; and
(4) all regulations promulgated under the laws described in
paragraphs (1) through (3).
Purpose of the Bill
The purpose of H.R. 1065 is to resolve water rights claims
of the White Mountain Apache Tribe in the State of Arizona, and
for other purposes.
Background and Need for Legislation
The White Mountain Apache Tribe (Tribe) currently resides
on 1.66 million acres of federal trust land in east-central
Arizona. The Tribe's Fort Apache Indian Reservation was
established by an Executive Order on November 9, 1871. The
headwaters and several tributaries of the Salt River originate
on reservation land.
In 1985, the United States, on behalf of the Tribe, filed
substantial claims to water with a time immemorial date for
approximately 180,000 acre-feet annually from the Salt River
System in the Gila River adjudication proceedings in the
Maricopa County Superior Court, as well as water rights claims
in the Little Colorado River General Stream adjudication
proceedings in the Apache County Superior Court. Both claims
were based on the Tribe's federally reserved water rights
established in Winters v. U.S., 207 U.S. 564 (1908).
The United States amended its water rights filings in both
proceedings in September 2000, asserting the Tribe's aboriginal
and federally-reserved rights to transbasin groundwater
resources that sustain the base flow for the springs and
streams on the reservation. Both claims are currently pending
in their respective courts. Enactment of H.R. 1065 would
confirm the Settlement Agreement (Agreement) reached by the
Tribe and other parties in both adjudication proceedings and
after approval by the state courts, the Tribe's claims in those
proceedings would be resolved.
The Tribe's substantial and senior water rights claims have
created considerable uncertainty for as many as 3.5 million
people who are dependent on the Salt River for water. The Salt
River basin is the primary source of water for the Tribe, the
Phoenix metropolitan area, and the Salt River Reclamation
Project, which serves about 250,000 irrigated acres of
agricultural land in Maricopa County in central Arizona.
A federal negotiating team was established by the Secretary
of the Interior at the request of the Tribe to facilitate
settlement negotiations in 2004. An agreement was reached in
January 2009. To ensure a collaborative process the settling
parties included the Tribe and the United States, the State of
Arizona, the Central Arizona Water Conservation District
(CAWCD), the Salt River Project Agricultural Improvement and
Power District, the Salt River Valley Water Users' Association,
the Roosevelt Water Conservation District, the Buckeye
Irrigation Company, the Buckeye Water Conservation and Drainage
District, the Arizona Water Company, and the cities and towns
of Phoenix, Mesa, Tempe, Chandler, Glendale, Scottsdale,
Avondale, Peoria, Show Low, and Gilbert. All of the non-federal
parties have approved the Agreement.
The comprehensive Agreement resolves the Tribe's water
rights claims. The Tribe would have an 1871-reserved water
right to divert up to 74,000 acre-feet annually (27,000 acre-
feet depletion), and in addition the right to divert up to an
additional 25,000 acre-feet of Salt River System water through
a Central Arizona Project (CAP) exchange (25,000 acre-feet
depletion). Cumulatively the Tribe will have a total diversion
right of 99,000 acre-feet per year with a total depletion right
of 52,000 acre feet per year. A diversion right is the amount
of water that can be diverted from the river. The depletion
right represents the amount of water that is diverted, less the
return flow to the system from which it was diverted. The Tribe
will have an option for leasing the CAP water to the existing
downstream cities and users.
An important component of the Agreement addresses the
drinking water needs of the Tribe. Currently, a relatively
small well field serves the drinking water needs of the
majority of the residents on the Tribe's reservation. Water
production from the wells has declined significantly over the
last few years. As a result, the Tribe is experiencing chronic
drinking water shortages. In 2009 the Tribe has been
constructing a relatively small diversion project on the North
Fork of the White River to augment the declining well water
supply. The Tribe indicates that when the diversion project is
completed it will replace most of the lost production from the
existing well field, but will not produce enough water to meet
the current peak demand of the Tribe's growing population. The
drinking water project authorized in H.R. 1065 would provide a
long-term solution, and the only viable one, to address the
Tribe's drinking water shortages.
Committee Action
H.R. 1065 was introduced on February 13, 2009 by Rep. Ann
Kirkpatrick (D-AZ). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Water and Power. On July 21, 2009, the Subcommittee held a
hearing on the bill.
On September 30, 2009, the Subcommittee was discharged from
further consideration of H.R. 1065 and the full Natural
Resources Committee met to consider the bill. Subcommittee
Chairwoman Grace F. Napolitano (D-CA) offered an amendment in
the nature of a substitute that, in large part, responded to
concerns raised by the Department of the Interior. The
amendment in the nature of a substitute made technical changes
and added language that would transfer title of the White
Mountain Apache Tribe Rural Water System to the Tribe. The
amendment in the nature of a substitute was adopted by voice
vote. The bill, as amended, was ordered favorably reported to
the House of Representatives by voice vote.
Section-by-Section Analysis
Section 1. Short title
Section 1 provides that this Act may be cited as the
``White Mountain Apache Tribe Water Rights Quantification Act
of 2009.''
Section 2. Findings and purposes
Subsection 2(a) provides the following findings: that a
resolution of litigation proceedings intended to quantify the
water rights of the Tribe might be a lengthy and costly
process, prolonging uncertainty to their water rights; that
instead, the parties to the litigation have agreed to
permanently quantify the water rights of the Tribe and settle
the Tribe's pending claims in the Gila River and Little
Colorado River Adjudications in Arizona by entering into the
White Mountain Apache Tribe Water Rights Quantification
Agreement (the Agreement).
Subsection 2(b) provides that the purpose of this Act are:
(1) to authorize, ratify, and confirm the Agreement as defined
in the legislation; (2) to authorize and direct the Secretary
of the Interior (the Secretary) to execute the Agreement; (3)
to authorize the appropriations necessary for the U.S. to meet
its obligations under the Agreement; and (4) to permanently
resolve certain damage claims and all water rights claims of
the Tribe.
Section 3. Definitions
Section 3 provides definitions for certain terms used in
the White Mountain Apache Tribe Water Rights Quantification Act
of 2009.
Section 4. Approval of Agreement
Section 4 authorizes, ratifies and confirms the Agreement.
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 5. Water rights
Section 5 provides that tribal water rights will be held in
trust by the United States, through the Secretary of the
Interior, for the benefit of the Tribe. This section further
requires the Tribe to enact a tribal water code to administer
tribal water rights, no later than 18 months after the
enforceability date in subsection 9(d), with specific
conditions as listed in subsection 5(e). The Tribe's water
rights shall not be subject to loss by abandonment or
forfeiture.
Section 5(b), (c), and (d) describe the reallocation of,
and costs associated with, Central Arizona Project (CAP) water
allocated to the Tribe under the Agreement.
Section 6. Contract
Section 6 describes contracts related to the Tribe's
leasing of CAP water. The Tribe may, with the approval of the
Secretary, enter into leases with the counties of Maricopa,
Pinal, Pima, and Yavapai for the temporary (not to exceed 100
years) delivery of any portion of the Tribe's CAP water. The
contact or option to lease is subject to specific conditions,
as described in Subsections 6(a).
Subsection 6(b) specifies the requirements of the contract.
Subsection 6(c) ratifies, authorizes, and confirms the
contract. Subsection 6(d) directs the Secretary to execute the
contract, and subsection 6(e) describes the fees and charges
applicable to tribal CAP water.
Subsection 6(f) prohibits tribal CAP water from being
leased, exchanged, forborne or transferred by the Tribe for use
outside the State of Arizona.
Subsection 6(g) authorizes, ratifies, and confirms the
leases of tribal CAP water attached as exhibits to the
Settlement Agreement.
Section 7. Authorization of Rural Water System
Section 7 authorizes the planning, design, and construction
of the White Mountain Apache Tribe (WMAT) Rural Water System
and describes its components, service area, and construction
requirements.
Subsection 7(e) further specifies that the Secretary is
authorized to convey title to the Project to the Tribe after
publication in the Federal Register of a statement of findings
providing that the conditions specified in this subsection have
been satisfied, including the condition that the Tribe has been
operating the project successfully for a period of five years.
Section 8. Satisfaction of claims
Subsection 8(a) provides that the benefits to the Tribe and
its members under this Act are in full satisfaction of the
Tribe's and its members' claims for water rights and injuries
to water rights.
Subsection 8(b) provides that the Agreement's maximum
annual diversion amounts and maximum annual depletion amounts
shall apply to the use of water on any lands currently outside
the reservation that are subsequently determined to be part of
the reservation, and to the use of water on any fee lands
currently within the reservation that are put into trust and
made part of the reservation.
Subsection 8(c) provides that the Act is not intended to
recognize or establish any tribal member's individual right to
water on the reservation.
Section 9. Waiver and release of claims
Section 9(a) authorizes the United States to execute
certain waivers and release of claims in either its capacity as
trustee for the Tribe and its members or in its own right. It
also authorizes the Tribe to execute waivers in its own
capacity and for its members. The waiver of water-related
claims in Section 9 encompasses claims for water rights, injury
to water rights, and damages to tribal resources due to loss of
water or water rights.
Subsection 9(b) reserves certain rights of and retains
certain claims by the Tribe on its own behalf and its members,
and the United States as trustee for the Tribe and its members,
or in its own right, including past, present, and future claims
against Freeport McMoRan Copper & Gold, Inc., Phelps Dodge
Corporation or Phelps Dodge Morenci, Inc. for trespass, use,
and occupancy of the Reservation in, on, or along the Black
River (``Black River Claims''). The legislation does not affect
the ability of the Tribe or the other parties to assert any
claims or defenses against each other regarding the Black River
Claims.
Subsection 9(c) establishes the conditions and timing under
which the waivers are effective.
Subsection 9(d) provides that the enforceability date shall
be subject to a requirement that the Secretary publish a
statement of findings in the Federal Register concerning a
number of listed conditions. It also establishes the extent of
the water rights available for use on land held in trust for
the Tribe and its members.
Subsection 9(e) provides that nothing in this Act or in the
Agreement affects the right of the United States to take any
action relating to human health, safety, or the environment.
Subsection 9(f) provides that except as specified, this Act
has no effect on rights to water for land outside the
reservation boundaries or off-reservation trust land.
Subsection 9(g) provides that any tribal entitlements to
water shall be satisfied from the water resources set forth in
the Agreement and this Act.
Subsection 9(h) sets forth certain objections that are
prohibited to the Tribe and the United States acting as trustee
for the Tribe.
Section 10. White Mountain Apache Tribe Water Rights Settlement
Subaccount
Subsection 10(a) establishes the White Mountain Tribe Water
Rights Settlement Subaccount within the Lower Colorado River
Basin Development Fund.
Subsection 10(b) establishes the conditions for
expenditures and withdrawals of all or part of the White
Mountain Apache Tribe Water Rights Settlement Subaccount,
enforcement of those conditions, limitation on the liability of
federal officials, requirements for an expenditure plan by the
Tribe, and requirements for annual tribal reporting.
Subsection 10(c) specifies that funds from the White
Mountain Apache Tribe Water Rights Settlement Subaccount are
not to be distributed on a per capita basis.
Subsection 10(d) establishes that amounts in the White
Mountain Apache Tribe Water Rights Settlement Subaccount are
not to be made available until the enforceability date.
Section 11. Miscellaneous provisions
Subsection 11(a) waives the sovereign immunity of the
United States and the Tribe for certain specified civil actions
under the Agreement and Act.
Subsection 11(b) provides that nothing in this Act affects
any water right or claim of any Indian tribe, band or community
other than the White Mountain Apache Tribe.
Subsection 11(c) limits the liability of the United States
and directs the Tribe to indemnify the United States against
certain specific claims.
Subsection 11(d) provides that the Reclamation Reform Act
of 1982 (43 U.S.C. 390aa et seq.) does not apply under certain
listed circumstances related to the Agreement and this Act.
Subsection 11(e) transfers and restores to the Tribe and
the San Carlos Apache Tribe certain specified portions of named
secretarial power site reserves located on the Fort Apache
Indian Reservation and the San Carlos Apache Reservation,
respectively.
Subsection 11(f) states that water received under a lease
or exchange of tribal CAP water has no effect on future
allocations of CAP water by the Secretary.
Subsection 11(g) provides that, except with respect to
certain restored lands and off-reservation trust land acquired
prior to January 1, 2008, the Tribe, after the enforceabilty
date, may only have additional lands taken into trust by the
United States through an Act of Congress. It further provides
that after-acquired trust lands outside the reservation shall
not include federal reserved water rights and that certain
restored lands shall have water rights pursuant to Section
8(b).
Subsection 11(h) amends Section 3(b)(2) of the WMAT Rural
Water System Loan Authorization Act (P.L. 110-390; 122 Stat.
4191) to extend the loan repayment commencement date from
January 1, 2013 to January 1, 2016 in order to coincide with
this Act's enforceability date.
Section 12. Authorizations of appropriations
Subsection 12(a) authorizes to be appropriated
approximately $126 million for the planning, engineering,
design, environmental compliance, and construction of the WMAT
rural water system.
Subsection 12(b) establishes the WMAT Settlement Fund
within the Treasury of the United States, and authorizes the
appropriation of $113.5 million for deposit therein, of which
not less than $4.95 million must be used for rehabilitation of
existing irrigation systems. Authorized uses of funds in the
WMAT Settlement Fund are listed in Subsection 12(b)(2)(C).
Subsection 12(b) also establishes within the Treasury the WMAT
Maintenance Fund, authorizes the appropriation of $50 million
for deposit therein, and prescribes the uses thereof. It
further directs the Secretary to manage and invest the funds
and establishes the availability date and conditions for
expenditures and withdrawals.
Section 12(c) indexes the amounts to be appropriated for
the WMAT rural water supply system, the WMAT Settlement Fund
and the WMAT Maintenance Fund to be adjusted to reflect changes
in construction cost indices since October 1, 2007.
Section 12(d) provides for the transfer of up to $50
million into the White Mountain Apache Subaccount from the
Emergency Fund for Indian Safety and Health, if funds are
available. A subsequent transfer of up to $50 million from the
Emergency Fund for Indian Safety and Health is also authorized,
for a total to not exceed $100 million.
Section 12(e) authorizes to be appropriated $2.5 million
for the operation, maintenance, and replacement costs of the
WMAT rural water system. It also allows the Tribe or the
Secretary to use amounts deposited in the WMAT Maintenance Fund
for operation, maintenance, and replacement costs of the WMAT
rural water system.
Section 12(f) authorizes the appropriation of up to $25
million for WMAT rural water system cost overruns. These sums
are to be derived by transfer from the appropriations
authorized in subsection 12(b)(2)(B), resulting in no net
increase of total authorized appropriations under the Act.
Section 12(g) provides the conditions for expenditure or
withdrawal of funds authorized to be appropriated to the
Secretary for deposit in the WMAT Maintenance Fund, and any
interest accrued.
Section 13. Antideficiency
Section 13 provides that the United States shall not be
liable for failure to carry out obligations or activities
required by this Act, if adequate appropriations for such
purposes are not provided by Congress.
Section 14. Repeal on failure of enforceability date
Section 14 repeals the Act if the Secretary does not
publish the statement of findings required under Subsection
9(d) by the enforceability date of October 31, 2015, effective
beginning on November 1, 2015. Any amounts appropriated under
subsections (a), (b), (d), and (e) of section 12 along with any
interest shall immediately revert to the Treasury. The section
further provides for return of other amounts deposited in the
White Mountain Apache Tribe Water Settlement Subaccount, along
with any interest, to their respective sources.
Section 15. Compliance with environmental laws
Section 15 provides that the Secretary, in carrying out the
Act, must comply with applicable federal environmental laws and
regulations, including the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.) and the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.).
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 resolve water rights claims of the
White Mountain Apache Tribe in the State of Arizona, 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. 1065--White Mountain Apache Tribe Water Rights Quantification Act
of 2009
Summary: H.R. 1065 would approve and ratify a settlement
agreement between the White Mountain Apache Tribe and the state
of Arizona. The agreement would resolve tribal claims to water
rights in the state. As part of that agreement, the bill would
authorize the appropriation of funds to construct a rural water
system to deliver water to tribal lands. The bill also would
establish two trust funds for the tribe to protect and restore
tribal lakes and forests, conduct certain economic development
projects, and operate and maintain the rural water system.
Finally, the bill would authorize appropriations for the
Department of the Interior (DOI) to operate and maintain the
water system until it is conveyed to the tribe.
Assuming appropriation of the necessary amounts, CBO
estimates that implementing H.R. 1065 would increase
discretionary spending by $134 million over the 2010-2019
period and $66 million after 2019. CBO also estimates that
enacting H.R. 1065 would increase direct spending by $125
million over the 2010-2019 period and $22 million after 2019.
Enacting the legislation would not affect revenues.
H.R. 1065 contains intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA) because it would
require the tribe to enact a tribal water code and prohibit it
from objecting to the drilling or use of some wells. CBO
estimates that the cost of complying with those mandates would
be small and far below the threshold established in UMRA ($69
million in 2009, adjusted annually for inflation).
H.R. 1065 contains no private-sector mandates as defined in
UMRA.
Estimated cost to the federal government: The estimated
budgetary impact of H.R. 1065 is shown in the following table.
The costs of this legislation fall within budget functions 300
(natural resources and environment) and 450 (community and
regional development).
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------------------------------------------------------------------------------
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2010-2014 2010-2019
--------------------------------------------------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATIONa
Settlement Fund:
Estimated Authorization 0 0 0 0 0 0 132 0 0 0 0 132
Level....................
Estimated Outlays......... 0 0 0 0 0 0 132 0 0 0 0 132
DOI Operation & Maintenance:
Estimated Authorization 0 0 0 0 0 0 * * * * 0 2
Level....................
Estimated Outlays......... 0 0 0 0 0 0 * * * * 0 2
Total Changes:
Estimated Authorization 0 0 0 0 0 0 132 * * * 0 134
Level....................
Estimated Outlays......... 0 0 0 0 0 0 132 * * * 0 134
CHANGES IN DIRECT SPENDING
Rural Water System:b
Estimated Budget Authority 0 0 0 0 0 0 50 40 30 20 0 140
Estimated Outlays......... 0 0 0 0 0 0 44 37 25 19 0 125
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: DOI = Department of the Interior; * = less than $500,000. Amounts may not sum to totals because of rounding.
aExcludes amounts authorized to be appropriated for a Tribal Maintenance Fund because CBO expects those amounts would not be needed until 2021.
bCBO estimates that an additional $22 million would be spent for the water system after 2019.
Basis of estimate: For this estimate, CBO assumes that H.R.
1065 will be enacted by the end of calendar year 2010 and that
the necessary amounts will be appropriated when the settlement
becomes effective. The enforcement of the settlement agreement
depends on the completion of a number of actions by federal,
state, local, and tribal entities. CBO expects that those
actions will be completed early in fiscal year 2016. The
estimated costs for the authorized water projects are based on
information from DOI and on historical spending patterns for
similar activities.
The White Mountain Apache Tribe and several other parties
have signed a settlement agreement resolving a water-rights
dispute in northeast Arizona. The United States would become a
party to that agreement upon enactment of H.R. 1065, provided
that certain other conditions are met. Among those conditions,
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 U.S. district court would have
to issue a decree concerning the agreement; sufficient funds to
construct a rural water system, which CBO estimates would cost
$147 million, would have to be deposited into the White
Mountain Apache Tribe Water Rights Settlement Subaccount; and
Arizona would have to appropriate $2 million for the
construction of the rural water system.
Should the Secretary not publish the required statement of
findings by October 31, 2015, verifying that all conditions
necessary to execute the agreement have been met, the agreement
would not take effect, and no federal funds could be spent
after that date.
Spending subject to appropriation
H.R. 1065 would authorize the appropriation of funds for a
variety of activities to benefit the White Mountain Apache
Tribe. The bill would authorize appropriations to construct a
rural water system and to protect and restore tribal lakes and
forests, conduct certain economic development projects, and
operate and maintain the rural water system. Assuming
appropriation of the necessary amounts, CBO estimates that
implementing the settlement agreement would increase
discretionary spending by $134 million over the 2010-2019
period and $66 million after 2019.
Most of the amounts authorized to be appropriated by H.R.
1065 would be allowed to accrue interest on unspent amounts.
CBO considers the authority to spend amounts credited as
interest on unspent balances of appropriated funds to be an
increase in direct spending as discussed later in this cost
estimate. CBO expects that funds would be appropriated in the
year the settlement becomes effective. If the Congress chose to
appropriate funds prior to the year in which those funds would
be spent, interest would accrue on the unspent balances, and
the legislation's estimated impact on direct spending would be
larger. Under the bill, that spending would occur after fiscal
year 2020.
Settlement Fund. The bill would authorize the appropriation
of about $114 million (plus additional amounts needed because
of increases in construction costs) for the White Mountain
Apache Tribe Settlement Fund. CBO expects that those funds
would be appropriated near the beginning of fiscal year 2016--
the enforcement date of the settlement. Funds would be used to
protect and restore tribal lakes and forests and for certain
economic development projects. CBO expects that the entire
amount in the fund (including adjustments for inflation) would
be recorded as an outlay of $132 million in 2016.
Payments to certain tribal trust funds that are held and
managed in a fiduciary capacity by the federal government on
behalf of Indian tribes are treated as payments to a nonfederal
entity. As a result, CBO expects that the entire amount
deposited into the settlement fund would be recorded as an
outlay in 2016 when the funds could be spent by the tribe.
Subsequently, any use of such funds and interest payments to
the tribe would have no effect on the federal budget.
DOI Operation & Maintenance. The bill would authorize the
appropriation of $2.5 million for DOI to operate and maintain
the new rural water system until 2021 when funds from the
tribal maintenance fund could be spent. CBO estimates that
operating and maintaining the rural water system would cost
about $500,000 a year over the 2016-2020 period.
Tribal Maintenance Fund. The bill would authorize the
appropriation of $50 million (plus additional amounts needed
because of increases in construction costs) for the White
Mountain Apache Tribe Maintenance Fund. CBO expects that those
funds would be appropriated in fiscal year 2021 when the funds
could be spent. Funds would be used to operate and maintain the
rural water system. CBO expects that the entire amount in the
fund (including adjustments for inflation) would be recorded as
an outlay of $66 million in 2021.
Rural Water System Subaccount. The bill would authorize the
appropriation of $126 million (plus additional amounts needed
because of increases in construction costs) to build a rural
water system for the tribe. Following enactment of H.R. 1065,
however, the Secretary of the Interior would be authorized to
use funds from the Future Indian Water Settlement subaccount
established under Public Law 108-451 and designated to
implement Indian water settlements in Arizona. CBO expects that
amounts in that account would be used to execute the
settlement. The expenditure of those funds would increase
direct spending (see Direct Spending section, below).
CBO assumes that the full amount necessary to construct the
rural water system would be expended from the Future Indian
Water Settlement Subaccount, resulting in direct spending. If,
instead, the Congress appropriated funds for that purpose, it
would reduce the amounts expended from that subaccount and
lower the legislation's estimated impact on direct spending.
The bill also would require the Secretary of the Treasury
to transfer such sums as are available--up to $50 million--from
the Emergency Fund for Indian Safety and Health (established
under Public Law 110-293) to the rural water system subaccount
in 2010. Because no funds have been appropriated for the
emergency fund, CBO expects that no funds would be available
for transfer to the subaccount in 2010.
Direct spending
Future Indian Water Settlement Subaccount. The Arizona
Water Settlements Act (Public Law 108-451) established this
subaccount and authorized it to receive up to $250 million of
receipts from the Lower Colorado River Basin Development Fund,
with deposits into the subaccount starting by January 2010. The
Colorado River Basin Development Fund collects receipts from
the users of the Central Arizona water project and certain
other receipts from the sale of electricity generated at
federal water projects. Those amounts are available for federal
agencies to spend without further appropriation for a variety
of purposes including operating and maintaining certain water
projects. The Arizona Water Settlements Act provided that
amounts deposited in the Future Indian Water Settlement
Subaccount may be used for Indian water rights settlements in
Arizona approved by the Congress subsequent to its enactment.
CBO expects that funds from the Future Indian Water
Settlement Subaccount would be used to construct the rural
water system on tribal lands. Based on information from DOI,
CBO also expects that the tribe would enter into a contract
with the federal government under the Indian Self-Determination
and Education Act, which allows Indian tribes to assume
responsibilities for programs, functions, and services or
activities that would otherwise be carried out by the federal
government. Because CBO expects the tribe to assume
responsibility for constructing the water system, we expect
that construction of that system would begin in 2016 when the
tribe would spend funds designated for that purpose. We
estimate that constructing the water system would increase
direct spending by $125 million over the 2016-2019 period and
by $22 million after 2019.
Interest Earnings on the Settlement Fund and the
Maintenance Fund. Under the bill, interest accrued on amounts
appropriated for both the settlement and maintenance funds
could not be spent until after 2020. Because we expect that
funds would be appropriated for those purposes during the
fiscal years in which those funds would be needed, we estimate
that accrued interest earnings would total less than $500,000
and spending of that interest would have a negligible impact on
direct spending in 2021.
Estimated impact on state, local, and tribal governments:
H.R. 1065 would require the White Mountain Apache Tribe to
enact policies that would govern tribal water rights and would
prohibit the tribe from objecting to the use of some existing
wells or the drilling of new wells pursuant to future
adjudication proceedings, as detailed in the agreement. Those
provisions would be intergovernmental mandates as defined in
UMRA because they would place statutory requirements on the
tribe that are separate from provisions of the agreement. CBO
estimates that the cost of complying with those mandates would
be small and well below the threshold established in UMRA ($69
million in 2009, adjusted annually for inflation). Furthermore,
amounts authorized for the settlement fund could be used to
develop the tribal water code.
Other provisions of the bill would benefit the tribe. Any
costs to the tribe from those provisions would be incurred
voluntarily as a result of entering into the settlement
agreement.
Estimated impact on the private sector: H.R. 1065 contains
no private-sector mandates as defined in UMRA.
Previous CBO estimate: On November, 16, 2009, CBO
transmitted a cost estimate for S. 313, the White Mountain
Apache Tribe Water Rights Quantification Act of 2009, as
ordered reported by the Senate Committee on Indian Affairs on
September 10, 2009. The two bills are similar, and the CBO cost
estimates are the same.
Estimate prepared by: Federal Costs: Jeff LaFave; Impact on
State, Local, and Tribal Governments: Melissa Merrell; Impact
on the Private Sector: Marin Randall.
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. 1065 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 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 Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SECTION 3 OF THE WHITE MOUNTAIN APACHE TRIBE RURAL WATER SYSTEM LOAN
AUTHORIZATION ACT
SEC. 3. MINER FLAT PROJECT LOAN.
(a) * * *
(b) Terms and Conditions of Loan.--The loan provided under subsection
(a) shall--
(1) * * *
(2) be repaid over a term of 25 years, beginning on January
1, [2013] 2016.
* * * * * * *
ADDITIONAL VIEWS OF REPRESENTATIVE GRACE F. NAPOLITANO
----------
The White Mountain Apache Tribe Water Rights Quantification
Act of 2009 (H.R. 1065) would ratify the Settlement Agreement
that would quantify the water rights of the White Mountain
Apache Tribe (Tribe). The bill would settle the Tribe's past,
present and future claims against the United States for
compromising tribal water rights and failing to maintain
federal irrigation projects serving the reservation and
authorize funds for the development of a drinking water system
on the Tribe's reservation.
On November 10, 2009, the Administration, through
Commissioner of the Bureau of Reclamation Michael L. Connor,
submitted a views letter (``Views Letter'') regarding the
legislation as reported by the Committee.
The Views Letter acknowledges that ``[a]s reflected by the
changes made in the marked up version of H.R. 1065, substantial
work has been done and refinements made to this settlement by
the parties and the Arizona delegation.'' (Views Letter, p. 2).
The Views Letter notes with approval a number of changes that
the Tribe agreed to make in response to the Administration's
concerns relating to, among other things, (1) the findings, (2)
the definitions, (3) potential cost overruns of the Miner Flat
Dam and Reservoir, (4) funding for water development
activities, and (5) the contract provisions under the Indian
Self Determination Act. The Views Letter also emphasizes
improvements in areas such as (1) waivers and (2) the title
transfer of the Miner Flat Project.
Included with these views is a December 14, 2009, letter
sent by the Tribe to Representative Kirkpatrick and myself that
responds to the issues raised by Commissioner Connor in the
Views Letter. I would like to highlight a few of the Tribe's
responses:
1. The Conditions Required for the U.S. to Convey to the Tribe the
Miner Flat Project Are Reasonable and Appropriate Given the Complex
Nature of the Project
At the Administration's request, the Tribe agreed to accept
title to the Miner Flat Project once the following three
conditions have been met: (1) the project is declared
substantially complete; (2) the funds authorized to be
appropriated for the operation, maintenance, and replacement
(OM&R) of the project have been deposited into the WMAT
Maintenance Fund; and (3) the Tribe has operated the project
for five years. H.R. 1065, Section 7(e)(2). Commissioner Connor
believes ``this new language is an improvement over the
original language.'' (Views Letter, p. 3)
The Views Letter, however, recommends several changes, none
of which the Tribe believes are necessary or warranted. For
example, it recommends reducing the time period that the Tribe
is required to operate the project from five years to one year.
The Miner Flat Project is a relatively complex municipal water
supply project comprised of a dam, reservoir, water treatment
plant, 55 mile long water transmission pipeline, several
pumping stations, and connected distribution systems. The Tribe
will need to operate the project for several years before it
has the requisite experience and technical expertise to accept
title to the project from the United States. It is unreasonable
for the United States to expect the Tribe to have the requisite
expertise to operate a Reservation-wide drinking water system
in only one year. Finally, the language in the bill concerning
the title transfer is eminently reasonable since at least seven
other previously authorized Reclamation Indian drinking water
projects are held in trust in perpetuity by the United States.
The Views Letter also recommends language limiting the
liability of the United States associated with the Miner Flat
Project that becomes effective once the conditions for
conveyance have been met. H.R. 1065, however, already
authorizes a waiver of any claims the Tribe may have against
the United States relating to the OM&R of the Miner Flat
Project. (The waiver becomes effective once the funds
authorized under the legislation for the OM&R are deposited
into the WMAT Maintenance Fund. See H.R. 1065, Section
9(a)(3)(F).) As a result, the additional language concerning
the United State's liability is unnecessary.
2. The Use of Funds for the WMAT Settlement from the Emergency Fund for
Indian Safety and Health is Consistent with the Underlying
Authorization
Under Title VI of the Tom Lantos and Henry J. Hyde United
States Global Leadership Against HIV/AIDS, Tuberculosis, and
Malaria Reauthorization Act of 2008 (P.L. 110-293) (the
``Act''), Congress established the Emergency Fund for Indian
Safety and Health (Emergency Fund) and authorized up to $1
billion over a five-year period for water supply projects that
are part of congressionally approved water settlements. The
Miner Flat Project fits squarely within this criterion.
Accordingly, H.R. 1065, as reported, authorizes the use of a
limited amount of funds from the Emergency Fund for the
construction of the Miner Flat Project. The Views Letter argues
that this provision undermines the language in the Act
specifying that the funding be allocated in accordance with a
Secretarial plan. While the Act requires the Administration to
prepare this plan by July 30, 2009, it has failed to do so.
Therefore, the Administration cannot require that H.R. 1065
comply with a plan it has failed to prepare.
3. The Parties have Agreed to Extend the Time to Secure Federal Funding
for the Project
The Views Letter correctly points out the challenges
associated with securing the federal funding necessary to
implement the settlement by 2015. As a result, the parties have
agreed to extend that date until 2020.
Grace F. Napolitano.
ADDITIONAL VIEWS OF REPRESENTATIVE TOM McCLINTOCK
This bill rightly attempts to resolve longstanding Indian
water rights claims, but Congress lacks sufficient information
to assess whether the $292 million authorized in this
legislation is appropriate. Therefore, as Ranking Republican of
the House Water and Power Subcommittee, I have serious fiscal
concerns with this well-intended bill.
It is important that Congress play a role in settling
Indian water rights claims, some of which comprise the oldest
standing litigation in the federal court system. Settling legal
claims not only resolves litigation but also can help establish
water supply certainty for water users on and off-reservations.
But Congress must also answer key questions when it
considers these and other settlements and should not be just a
rubber stamp. For example, one of the most important questions
involving a settlement--especially when American taxpayer
dollars will be used is whether resolving the litigation will
be advantageous to the federal government compared to its
liability under current law. That question has not been
answered for H.R. 1065.
If Congress were the board of directors of a private
corporation deciding whether to approve a negotiated legal
settlement, we would be guilty of breaching our fiduciary
responsibility to stockholders if we made that decision without
consulting legal counsel to determine the company's financial
exposure absent the settlement.
Since this question remains unanswered, Congress is forced
to be the arbitrator between sides involved in the litigation.
This is a role Congress should not be forced to assume without
sufficient information. Given the troublesome fact that the
current Administration has expressed general fiscal and other
reservations about this bill, Congress should ask for and
deserves answers. As part of this, Department of the Interior
was asked for its views on the bill as passed by the Natural
Resources Committee. The Department's response to Congress,
which is attached, clearly indicates there are issues that
still need to be resolved.
I also sent a letter on September 25, 2009 to the
Department of Justice asking for opinions on this legislation.
The letter specifically asks the Attorney General to provide
his view on the ``likelihood that the recipients of water
rights and funds transferred by these settlements would prevail
on the merits of their claims and whether these settlement
amounts represent a net benefit to the taxpayers as compared to
the consequences and costs of litigation.'' To date, I have not
received a response from the Department of Justice, and I
fundamentally believe that Congress needs this and other
answers before moving forward with spending hundreds of
millions of American taxpayer dollars.
My request is based on precedent. In an appearance before
the Natural Resources Committee on legislation resolving
Colville Indian claims, a Clinton Administration Justice
Department official testified in 1994, ``[T]he Federal
government is not that well postured for a victory on this
claim which has been pending for over 40 years. Absent the
settlement, we could well litigate it for another ten years and
the outcome could easily be a significant cost to the taxpayers
and the public.'' This testimony was very helpful in moving
that legislation forward. According to the Congressional
Research Service, Justice Department officials have testified
on additional settlements pending before Congress, so there is
no reason why this Congress should act without similar
information on this bill.
Without these transparent answers and with the large amount
of taxpayer funding in this bill, I have serious concerns with
the way this Congress and the Obama Administration are moving
forward on H.R. 1065 and Indian water rights settlement bills
in general.
Tom McClintock.