[Senate Report 117-286]
[From the U.S. Government Publishing Office]


117th Congress      }                           {         Report
                                SENATE
 2d Session         }                           {         117-286

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



 
       COLORADO RIVER INDIAN TRIBES WATER RESILIENCY ACT OF 2022

                                _______
                                

               December 22, 2022.--Ordered to be printed

                                _______
                                

           Mr. Schatz, from the Committee on Indian Affairs, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 3308]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 3308) to authorize the Colorado River Indian Tribes to 
enter into lease or exchange agreements and storage agreements 
relating to water of the Colorado River allocated to the 
Colorado River Indian Tribes, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment, in the nature of a substitute, and recommends that 
the bill, as amended, do pass.

                                PURPOSE

    S. 3308 authorizes the Colorado River Indian Tribes (CRIT) 
to enter into agreements to lease or exchange a portion of 
their water allocation for off-reservation use, or to store 
water in off-reservation facilities, subject to Secretarial 
approval. S. 3308 further provides that any off-reservation use 
or storage of the Tribes' allocated water must be located in 
the Lower Basin of the Colorado River in Arizona and not within 
Navajo, Apache, or Cochise counties.

                   BACKGROUND & NEED FOR LEGISLATION

    In Arizona v. California, the U.S. Supreme Court confirmed 
CRIT's first-priority present perfected water rights in the 
State of Arizona.\1\ These water rights are superior to many 
others in the state and are less vulnerable to restriction and 
curtailment in times of drought. However, because CRIT secured 
these rights through litigation rather than settlement, it is 
currently unable to engage in water leasing, exchange, storage, 
and conservation agreements on par with the 24 other Tribes--
including eight Tribes in Arizona--who had the opportunity to 
negotiate and affirm such ancillary rights through their 
negotiated water settlements with the federal government.\2\ 
CRIT seeks legislation to address this disparity.
---------------------------------------------------------------------------
    \1\547 U.S. 150 (1963).
    \2\Ak-Chin Indian Water Rights Settlement Act, Pub. L. 95-328, 92 
Stat. 409 (1978), Pub. L. 98-530, 98 Stat. 2698 (1984), Pub. L. 102-
497, 106 Stat. 3258 (1992), Pub. L. 106-285, 114 Stat. 878 (2000); 
Southern Arizona Water Rights Settlement Act, Pub. L. 97-293, 96 Stat. 
1274 (1982), Pub. L. 102-497, 106 Stat. 3256 (1992); Salt River Pima-
Maricopa Indian Community Water Rights Settlement Act of 1988, Pub. L. 
100-512, 102 Stat. 2549 (1988); Fort Hall Indian Water Rights Act of 
1990, Pub. L. 101-602, 104 Stat. 3049 (1990); Fallon Paiute Shoshone 
Indian Tribes Water Rights Settlement Act of 1990, Pub. L. 101-618, 104 
Stat. 3289 (1990); Truckee-Carson-Pyramid Lake Water Rights Act, Pub. 
L. 101-618, 104 Stat. 3294 (1990); Fort McDowell Indian Community Water 
Rights Settlement Act of 1990, Pub. L. 101-628, 104 Stat. 4480 (1990); 
Northern Cheyenne Indian Reserved Water Rights Settlement Act of 1992, 
Pub. L. 102-374, 106 Stat. 1186 (1992); Jicarilla Apache Tribe Water 
Settlement Act of 1992, Pub. L. 102-441, 106 Stat. 2237 (1992); Ute 
Indian Rights Settlement Act of 1992, Pub. L. 102-575, 106 Stat. 4650 
(1992); San Carlos Apache Tribe Water Rights Settlement Act, Pub. L. 
102-575, 106 Stat. 4740 (1992), Pub. L. 103-435, 108 Stat. 4572 (1994), 
Pub. L. 105-18 Sec. 5003, 111 Stat. 181 (1997); Chippewa Cree Tribe of 
the Rocky Boy's Reservation Indian Reserved Water Rights Settlement Act 
of 1999, Pub. L. 106-163, 113 Stat. 1778 (1999); Shivwits Band of the 
Paiute Indian Tribe of Utah Water Rights Settlement Act, Pub. L. 106-
263, 114 Stat. 737 (2000); Snake River Water Rights Act of 2004, Pub. 
L. 108-447, 118 Stat. 2809, 3431-41 (2004); Arizona Water Settlements 
Act of 2004, Pub. L. 108-451, 118 Stat. 3478 (2004); Soboba Band of 
Luiseno Indians Water Settlement Act, Pub. L. 110-297, 122 Stat. 2975 
(2008); White Mountain Apache Tribe Water Rights Quantification Act of 
2010, Pub. L. 111-291, 124 Stat. 3073 (2010); Crow Tribe Water Rights 
Settlement Act of 2010, Pub. L. 111-291, 124 Stat. 3097 (2010); Taos 
Pueblo Indian Water Rights Settlement Act, Pub. L. 111-291, 124 Stat. 
3122 (2010); Blackfeet Water Rights Settlement, Pub. L. 114-322, 130 
Stat. 1814 (2016); Pechanga Band of Luiseno Mission Indians Water 
Rights Settlement Act, Pub. L. 114-322, 130 Stat. 1755 (2016); Colorado 
Ute Indian Water Rights Settlement Act, Pub. L. 100-585; Yavapai-
Prescott Indian Tribe Water Rights Settlement Act, Pub. L. 103-434; 
Omnibus Public Land Management Act of 2009, Title X Part III (Public 
Law 111-11).
---------------------------------------------------------------------------

                          SUMMARY OF THE BILL

    S. 3308 authorizes CRIT, subject to Secretarial approval, 
to lease, exchange, and store a portion of its consumptively 
used water\3\ off-reservation within the Lower Basin in the 
State, except in Navajo, Apache, and Cochise counties; 
authorizes CRIT, subject to Secretarial approval, to enter into 
agreements for conserved water, provided that any delivery of 
such water shall be limited to the Lower Basin in the State, 
except in Navajo Apache, and Cochise counties; defines the 
responsibilities of the Secretary of the Interior; directs 
CRIT, the State, and the Secretary to enter into agreements 
providing for information sharing and description of technical 
and accounting methodologies used for lease or exchange 
agreements; clarifies that the Act will have no effect on 
CRIT's decreed water allocation or interfere with or diminish 
any allotee entitlement to water; and clarifies that CRIT is 
solely entitled to benefit from earnings from a lease or 
exchange agreement.
---------------------------------------------------------------------------
    \3\For the purposes of S. 3308, ``Consumptive use'' means the 
amount of water used within the boundaries of the reservation for a 
minimum of 4 of the 5 years immediately preceding the year of delivery 
of a portion of the decreed allocation according to a lease or exchange 
agreement or storage agreement.
---------------------------------------------------------------------------

                          LEGISLATIVE HISTORY

    Senator Sinema (D-AZ) and Senator Kelly (D-AZ) introduced 
S. 3308 on December 2, 2021. The Senate referred the bill to 
the Senate Committee on Indian Affairs the same day. On March 
23, 2022, the Committee held a legislative hearing. On November 
16, 2022, the Committee held a mark-up and ordered the bill to 
be reported favorably with an amendment in the nature of a 
substitute.
    U.S. Representative Neguse (D-CO) introduced H.R. 5118, the 
Continental Divide Trial Completion Act, along with 
Representatives Leger Fernandez (D-NM), Stansbury (D-NM), and 
Beyer (D-VA), on August 27, 2022. Title IV of Division B of 
H.R. 5118, is substantially similar to S. 3308. On the same day 
it was introduced, H.R. 5118 was referred to the House 
Committee on Natural Resources. On September 8, 2021, the bill 
was further referred to the House Committee on Natural 
Resources, Subcommittee on National Parks, Forest, and Public 
Lands. On November 9, 2021, the Subcommittee held a hearing. 
The Subcommittee discharged the bill on January 19, 2022, and 
on the same day, the House Committee on Natural Resources held 
a mark-up. Representative Neguse offered an amendment in the 
nature of a substitute, which was agreed to by voice vote. The 
bill was reported and placed on the Union Calendar, as amended, 
on July 18, 2022. The bill passed the House by a vote of 218 to 
199 on July 29, 2022. H.R. 5188 was received in the Senate on 
August 2, 2022.

                          COMMITTEE AMENDMENT

    During its consideration of S. 3308, the Committee adopted 
an amendment in the nature of a substitute. The amendment, 
among other things, permits the Tribes to enter into agreements 
for conserved water, in accordance with federal law and for a 
term not to exceed 100 years, including agreements for the 
creation of system conservation, storage of conserved water in 
Lake Mead, and other mechanisms for voluntarily leaving a 
portion of the Tribes' reduced consumptive use in Lake Mead; 
update the definition of ``consumptive use'' to include any 
portion of the decreed allocation with a recent history of use 
by the Tribes within the exterior boundary of the Reservation, 
regardless of whether the portion had been used for at least 
four of the five years preceding delivery, and exclude 
intentionally created surpluses; prohibit the Tribes from 
leasing or storing water, or delivering conserved water off-
reservation in the counties of Navajo, Apache, and Cochise in 
the State; clarify that the United States' limitation of 
liability does not extend to claims relating to the 
requirements of section 8(a) involving compliance with the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq.), the Endangered Species Act of 1973 (16 U.S.C. 1531 et 
seq.); and other applicable Federal environmental laws; 
prohibits the portion of the decreed allocation that is 
available for use in the State from being used, directly or 
indirectly, in the counties of Navajo, Apache, or Cochise in 
the State; and make related technical and conforming edits. The 
amendment is further described in the Section-by-Section 
analysis.

       SECTION-BY-SECTION ANALYSIS OF S. 3308 AS ORDERED REPORTED

Section 1--Short title

    This section sets forth the short title as the ``Colorado 
River Indian Tribes Water Resiliency Act of 2022.''

Section 2--Purpose

    This section clarifies that the purpose of the Act is to 
authorize CRIT to enter into water lease, exchange, storage, 
and conserved water agreements and to authorize the Secretary 
to approve such agreements.

Section 3--Definitions

    This section provides definitions for terms used throughout 
the Act.

Section 4--Lease or Exchange Agreements

    Section 4(a) authorizes CRIT, notwithstanding any provision 
of the Indian Trade and Intercourse Act or any other provision 
of law, to enter into lease or exchange agreements for a 
portion of its consumptively used water for use off-
reservation, subject to the approval of the Secretary of the 
Interior and so long as that off-reservation use is within the 
Lower Basin of the State of Arizona and not within Navajo, 
Apache, or Cochise counties.
    Section 4(b) limits the term of such lease or exchange 
agreements to 100 years or less.
    Section 4(c) authorizes modification or renegotiation of a 
lease or exchange agreement at any time, subject to approval by 
the Secretary of the Interior, provided that the renegotiated 
lease or exchange agreement does not exceed 100 years.
    Section 4(d) clarifies that any person entering into a 
lease or exchange agreement under this Act shall use the water 
in accordance with applicable state and federal law.

Section 5--Storage Agreements

    Section 5(a) authorizes CRIT, subject to Secretarial 
approval, to enter into storage agreements, including with the 
Arizona Water Banking Authority or successor agency, for the 
storage of a portion of its consumptively used water or water 
received under an exchange at one or more off-reservation 
underground storage facilities, so long as the facility is 
within the Lower Basin of the State of Arizona and not within 
Navajo, Apache, or Cochise counties.
    Section 5(b) authorizes modification or renegotiation of a 
storage agreement at any time, subject to approval by the 
Secretary of the Interior.
    Section 5(c) clarifies that any storage agreement shall be 
in accordance with applicable federal and state law.
    Section 5(d) authorizes CRIT to assign or sell any long-
term storage credits accrued under a storage agreement in 
accordance with applicable state law.

Section 6--Agreements for Creation of Water for the Colorado River 
        System for Storing Water in Lake Mead

    Section 6(a) authorizes CRIT, notwithstanding the Indian 
Trade and Intercourse Act or other any other provision of law, 
and subject to Secretarial approval, to enter into conserved 
water agreements, so long as the conserved water is delivered 
within the Lower Basin and not within Navajo, Apache, or 
Cochise counties.
    Section 6(b) limits the term of such conserved water 
agreements to 100 years or less.
    Section 6(c) authorizes modification or renegotiation of a 
conserved water agreement at any time, subject to approval by 
the Secretary of the Interior.
    Section 6(d) clarifies that any conserved water agreement 
shall be in accordance with applicable federal and state law.

Section 7--Secretarial Approval; Disapproval; Agreements

    Section 7(a) authorizes the Secretary to approve or 
disapprove any lease, exchange, storage, or conserved water 
agreement or modification thereto.
    Section 7(b) authorizes the Secretary to enter into lease, 
exchange, storage, or conserved water agreements, provided the 
Secretary pays fair market value for CRIT's reduced consumptive 
use.
    Section 7(c) requires lease, exchange, and storage 
agreements to comply with the Act and the required procedural, 
technical, and accounting agreement between CRIT, the state, 
and the Secretary; requires conserved water agreements to 
comply with the Act and other applicable federal law; and 
prohibits permanent alienation of any portion of CRIT's decreed 
allocation through any lease, exchange, storage, or conserved 
water agreement, or any modifications thereto.
    Section 7(d) clarifies that the requirement for Secretarial 
approval must meet the requirements of the Indian Trade and 
Intercourse Act.
    Section 7(e) clarifies that nothing in the Act or any 
agreement shall diminish or abrogate the authority of the 
Secretary to act under federal law or regulation, including the 
Consolidated Decree.

Section 8--Responsibilities of the Secretary

    Section 8(a) directs the Secretary to comply with the 
National Environmental Policy Act (NEPA), the Endangered 
Species Act, and all other applicable federal environmental 
laws and regulations.
    Section 8(b) requires the Secretary to document any lease, 
exchange, storage, or conserved water agreement in the Water 
Accounting Report.

Section 9--Agreements between the CRIT and the State

    Section 9(a) directs CRIT to enter into an agreement with 
the state outlining notice, information sharing, and 
collaboration requirements prior to entering into the first 
lease, exchange, or storage agreement.
    Section 9(b) requires the agreement regarding notice, 
information sharing, and collaboration requirements to include 
a provision requiring CRIT to submit to the state all documents 
regarding a potential lease, exchange, or storage agreement.

Section 10--Agreements between the CRIT, the State, and the Secretary

    Section 10(a) directs the Secretary, prior to approving the 
first lease, exchange, or storage agreement, to enter into an 
agreement with the state and CRIT describing procedural, 
technical, and accounting methodologies for any lease, 
exchange, or storage agreement, including quantification of the 
reduction in consumptive use and water accounting.
    Section 10(b) clarifies that execution of the procedural, 
technical, and accounting methodologies agreement is not a 
major federal action for the purposes of NEPA.
    Section 10(c) clarifies that nothing in the Act prohibits 
the Secretary from agreeing with CRIT and the state to modify a 
procedural, technical, and accounting methodologies agreement, 
so long as the modification complies with the Act and does not 
require congressional approval under the Indian Trade and 
Intercourse Act or any other provision of law.

Section 11--No Effect on the CRIT Decreed Allocation

    Section 11(a) directs that a lease, exchange, storage or 
conserved water agreement shall provide for the temporary use, 
storage, or conservation of a portion of the consumptive use 
off reservation and shall not permanently alienate the decreed 
allocation.
    Section 11(b) clarifies that lease or exchange of a portion 
of consumptive use shall not affect its priority under the 
Consolidated Decree, and nonuse by a party to a lease, 
exchange, or storage agreement shall not result in forfeiture, 
abandonment, relinquishment, or other loss to CRIT of any 
portion of the decreed allocation.
    Section 11(c) clarifies that the lease, exchange, or 
storage of a portion of the consumptive use shall not reduce or 
limit CRIT's right to use the remaining portion of the decreed 
allocation on the Reservation.
    Section 11(d) clarifies that any water storage agreement 
entered into under the Act shall account for the quantity of 
off-reservation water storage in accordance with state law.

Section 12--Allottee Use of Water

    Section 12(a) clarifies that the lease, exchange, storage, 
or conservation of a portion of the consumptive use shall not 
directly or indirectly interfere with or diminish any 
allottee's entitlement to water under federal or tribal law.
    Section 12(b) directs the Secretary to protect the rights 
of allottees to a just and equitable distribution of water for 
irrigation purposes pursuant to Section 7 of the Indian General 
Allotment Act.
    Section 12(c) directs allottees to exhaust all remedies 
under Tribal law before asserting a claim against the United 
States pursuant to the act or other applicable law.
    Section 12(d) clarifies that an allotee may seek relief 
under the Act or other applicable law following exhaustion of 
Tribal law remedies.
    Section 12(e) clarifies that an allottee may petition the 
Secretary for relief following exhaustion of remedies available 
under the Act or other applicable law.

Section 13--Consideration Paid to the CRIT

    This section clarifies that the CRIT, not the United 
States, is entitled to all consideration due under any lease, 
exchange, storage, or conserved water agreement.

Section 14--Liability of the United States

    Section 14(a) clarifies that the United States shall not be 
liable to CRIT or any party to a lease, exchange, storage, or 
conserved water agreement for any claim relating to the 
negotiation, execution, or approval of such agreement, 
including any claim relating to the terms included in the 
agreement, except for claims relating to compliance with NEPA, 
the Endangered Species Act, and all other applicable federal 
environmental laws and regulations.
    Section 14(b) clarifies that the United States shall have 
no trust or other obligation to monitor, administer, or account 
for funds received by CRIT as consideration under a lease, 
exchange, storage, or conserved water agreement, or for CRIT's 
expenditure of such funds.

Section 15--Application

    Section 15(a) clarifies that the Act only applies to the 
portion of the decreed allocation available for use in the 
state.
    Section 15(b) clarifies that portion of the decreed 
allocation available for use in the state shall not be used, 
directly or indirectly, outside the Lower Basin in the state, 
or in Navajo, Apache, or Cochise counties.

Section 16--Rule of Construction

    This section clarifies that nothing in the Act establishes, 
or shall be considered to establish, a precedent in any 
litigation involving, altering, affecting, or quantifying any 
water right with respect to the United States, any other Indian 
Tribe, band or community, any state or political subdivision, 
or any person.

                   COST AND BUDGETARY CONSIDERATIONS

    The Congressional Budget Office estimate of the costs of S. 
3308, as ordered reported, has been requested but was not 
received at the time the report was filed. When the 
Congressional Budget Office completes its cost estimate, it 
will be posted on the Internet at www.cbo.gov.

               REGULATORY AND PAPERWORK IMPACT STATEMENT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 3308 will 
have minimal impact on regulatory or paperwork requirements.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no communications from the 
Executive Branch regarding S. 3308.

                        CHANGES IN EXISTING LAW

    On February 11, 2021 the Committee unanimously approved a 
motion to waive subsection 12 of rule XXVI of the Standing 
Rules of the Senate. In the opinion of the Committee, it is 
necessary to dispense with subsection 12 of rule XXVI of the 
Standing Rules of the Senate to expedite the business of the 
Senate.

                                  [all]