[Senate Report 117-287]
[From the U.S. Government Publishing Office]
117th Congress } { Report
SENATE
2d Session } { 117-287
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HUALAPAI TRIBE WATER RIGHTS SETTLEMENT ACT OF 2022
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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. 4104]
The Committee on Indian Affairs, to which was referred the
bill (S. 4104) to approve the settlement of water rights claims
of the Hualapai Tribe and certain allottees in the State of
Arizona, to authorize construction of a water project relating
to those water rights claims, and for other purposes, having
considered the same, reports favorably thereon with amendments
and recommends that the bill (as amended) do pass.
PURPOSE
S. 4104 authorizes and ratifies the water rights settlement
agreement between the Hualapai Tribe, certain allottees, and
the state of Arizona. S. 4104 also funds water-related projects
and allows the Tribe to access water from the Colorado River,
the Bill Williams River, and the Verde River. The bill also
transfers certain lands into trust for the Hualapai Tribe.\1\
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\1\In the future, land located outside the reservation may only be
taken into trust through an act of Congress.
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BACKGROUND
The Hualapai reservation was established in two locations
by a series of Executive Orders.\2\ The primary reservation is
comprised of approximately 1 million acres along the Grand
Canyon in northwest Arizona. The secondary reservation is
comprised of approximately 60 acres located 40 miles south of
the primary reservation. Although the Hualapai Reservation is
bordered in part by a 108-mile stretch of the Colorado River,
the Tribe relies on unpredictable groundwater supplies as its
primary source of water because it has not yet settled its
water rights to the river.\3\
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\2\Exec. Order of January 4, 1883; Exec. Order of December 22,
1898; Exec. Order of May 14, 1900; Exec. Order of June 2, 1911.
\3\Hybrid Legislative Hearing on H.R. 263, H.R. 3081, H.R. 5880,
H.R. 6238, H.R. 6369, H.R. 7612, H.R. 7632, and H.R., 7633 Before the
Subcomm. On Water, Oceans, and Wildlife of the H. Comm. on Nat. Res.,
117th Cong. (2022) (statement for the rec. of U.S. Dep't of Interior
Off. of Cong. and Legis. Affs.); Hybrid Legislative Hearing on H.R.
263, H.R. 3081, H.R. 5880, H.R. 6238, H.R. 6369, H.R. 7612, H.R. 7632,
and H.R, 7633 Before the Subcomm. On Water, Oceans, and Wildlife of the
H. Comm. on Nat. Res., 117th Cong. (2022) (testimony of Dr. Damon
Clarke, Chairman, Hualapai Tribe).
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NEED FOR LEGISLATION
Water use on the primary reservation occurs in two
locations--Peach Springs and Grand Canyon West--but neither of
these locations have adequate infrastructure to support
sustained future use.\4\ Infrastructure problems have not only
caused general water insecurity, they have also hindered the
reservation economy by forcing the Tribe to limit its Grand
Canyon-based tourism activities in Grand Canyon West, the main
economic driver for the reservation.
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\4\Peach Springs is supplied by three wells that have old, failing
infrastructure and issues with E-coli and coliform contamination; the
well supplying Grand Canyon West ran dry in 2019, forcing the Tribe to
haul water from 30 miles away.
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In an effort to address water insecurity and related
economic development challenges, the Tribe has been negotiating
its water rights claims since 2011. The first phase of
negotiations settled the Tribe's water rights to off-
reservation tracts in the Bill Williams River Basin,\5\ and the
second phase--which includes S. 4104--will settle the remaining
water rights in the Bill Williams River Basin and the Colorado
and Verde River Basins. As such, enactment of S. 4104 will
resolve, fully and finally, all of the Tribe's claims to water
rights in the State of Arizona.
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\5\Bill Williams River Water Rights Settlement Act of 2014, Pub. L.
No. 113-223, 128 Stat. 2096 (2014).
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SUMMARY OF THE BILL
S. 4104 authorizes, ratifies, and confirms the Hualapai
Water Rights Settlement Agreement; establishes limitations on
the storage, transfer, lease, and transport of water from the
Hualapai Central Arizona Project; establishes the Hualapai
Water Trust Fund Account and the Hualapai Water Settlement
Implementation Fund Account; adds certain lands to the Hualapai
Reservation and places additional lands into trust for the
benefit of the Hualapai Tribe; provides for reallocation of
approximately 4,000 acre-feet per year of CAP water to the
Tribe and firms certain specified quantities of that water; and
places certain requirements on the Secretary of the Interior.
LEGISLATIVE HISTORY
On April 28, 2022, Senator Sinema (D-AZ) and Senator Kelly
(D-AZ) introduced S. 4104, the Hualapai Tribe Water Rights
Settlement Act of 2022. On the same day, the Senate referred
the bill to the Committee on Indian Affairs. On July 20, 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.
On April 28, 2022, Representative O'Halleran (D-AZ)
introduced H.R. 7633, an identical companion bill. On the same
day, the House of Representatives referred the bill to the
Committee on Natural Resources. On April 29, 2022, H.R. 7633
was further referred to the Committee on Natural Resources,
Subcommittee on Water, Oceans, and Wildlife. On May 12, 2022,
the Subcommittee held a hearing and Representatives Stanton (D-
AZ), Gosar (R-AZ), and Gallego (D-AZ) joined as co-sponsors.
Representative Kirkpatrick (D-AZ) joined as a co-sponsor on May
18, 2022. To date, the House has taken no further action on
H.R. 7633.
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 V of Division B of H.R.
5118, is substantially similar to S. 4104. On the day it was
introduced, H.R. 5118 was referred to the Committee on Natural
Resources. On September 8, 2021, the bill was further referred
to the 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 Committee on
Natural Resources marked up the bill. 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.
116th Congress. On May 1, 2019, Senators McSally (R-AZ) and
Sinema (D-AZ) introduced S. 1277, the Hualapai Tribe Water
Rights Settlement of Act of 2019. On the same day, the Senate
referred the bill to the Committee on Indian Affairs. The
Senate took no further action on S. 1277 in the 116th Congress.
On May 1, 2019, Representatives O'Halleran (D-AZ), Stanton
(D-AZ), Kirkpatrick (D-AZ), Gallego (R-AZ), Gosar (R-AZ),
Schweikert (R-AZ), and Lesko (R-AZ) introduced H.R. 2459, an
identical companion bill. On the same day, the bill was
referred to the Committee on Natural Resources. On May 8, 2019,
H.R. 2459 was further referred to the Natural Resources
Committee, Subcommittee on Water, Oceans, and Wildlife. On June
6, 2019, the Subcommittee held a hearing. The House took no
further action on H.R. 2459 in the 116th Congress.
Prior to the 116th Congress, the Senate Committee on Indian
Affairs considered various versions of the Hualapai Tribe Water
Rights Settlement Act.\6\ The House Committee on Natural
Resources considered the Hualapai Tribe Water Rights Settlement
Act in the 115th Congress, but no further action was taken.\7\
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\6\Hualapai Tribe Water Rights Settlement Act of 2017, S. 1770,
115th Cong. (2017); Hualapai Tribe Water Rights Settlement Act of 2016,
S. 3300, 114th Cong. (2016).
\7\Hualapai Tribe Water Rights Settlement Act of 2017, H.R. 4723,
115th Cong. (2017).
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COMMITTEE AMENDMENT
During its consideration of S. 4104, the Committee adopted
an amendment in the nature of a substitute. The amendment
increases the authorization of appropriations to $312,000,000;
corrects the coordinate reference to the Valentine Cemetery
parcel; prevents the Tribe's leasing and exchanging activities
from extending to Navajo, Apache, or Cochise Counties; and
separate the Secretary's environmental review process from the
process to determine the enforceability date of the settlement
agreement.
SECTION-BY-SECTION ANALYSIS OF S. 4104 AS ORDERED REPORTED
Section 1--Short title
This section sets forth the short title as the ``Hualapai
Tribe Water Rights Settlement Act of 2022.''
Section 2--Purposes
This section clarifies that the purpose of the Act is to
fully and finally resolve the water rights claims of the
Hualapai Tribe and the United States to water in the state of
Arizona, including the Verde River, Bill Williams River, and
the Colorado River; to authorize, ratify, and confirm the
Hualapai Tribe water rights settlement agreement; to authorize
and direct the Secretary to execute their duties and
obligations under the Hualapai Tribe water rights agreement and
the Act; and to authorize appropriations necessary to carry out
the Hualapai Tribe water rights settlement agreement.
Section 3--Definitions
This section clarifies applicable definitions.
Section 4--Ratification and Execution of Hualapai Tribe Water Rights
Settlement Agreement
Section 4(a) authorizes, ratifies, and confirms the
Hualapai water rights settlement agreement and amendments
thereto that make the settlement consistent with the Act.
Section 4(b) directs the Secretary to execute the Hualapai
water rights settlement agreement; and permits the Secretary to
approve modifications to appendices and exhibits, provided that
such modifications are consistent with the Act and do not
require congressional approval.
Section 4(c) directs the Secretary to comply with the
Endangered Species Act, the National Environmental Policy Act
(NEPA), and other applicable federal laws when implementing the
settlement agreement, and to prepare any necessary
environmental documents consistent with applicable provisions
of such laws. This section also clarifies that execution of the
settlement agreement by the Secretary shall not constitute a
major federal action under NEPA.
Section 5--Water Rights
Section 5(a) directs that the United States will hold, in
trust, certain water rights for the benefit of the Hualapai
Tribe and certain allottees.
Section 5(b) clarifies that certain water rights will not
be subject to loss through non-use, forfeiture, abandonment, or
other operation of law.
Section 5(c) prohibits permanent alienation by the Tribe of
any water entitlement purchased with amounts in the Economic
Development Fund described in the settlement agreement.
Section 5(d) clarifies that the Hualapai Tribe has the
right to divert, use, and store Hualapai Tribe Central Arizona
Project (CAP) water in accordance with Section 13.
Section 5(e) affirms the rights of the Hualapai Tribe to
use, store, assign, transfer, lease, and transport water from
the Colorado River and establishes the conditions under which
such rights may be exercised.
Section 5(f) prevents the off-reservation sale, lease,
transfer, or use of groundwater or surface water from the
Tribe's reservation or trust land, other than under exchange.
Section 5(g) clarifies that groundwater may be transported
in accordance with state law: (1) away from Hualapai fee land
and land the Tribe acquires in fee after the enforceability
date; and (2) away from land added to the Hualapai Reservation
by Sections 11 and 12 to other land within the Hualapai
Reservation.
Section 6--Hualapai Water Trust Fund Account; Construction of Hualapai
Water Project; Funding
Section 6(a)(1)-(2) establishes the Hualapai Water Trust
Fund Account and directs the Secretary to deposit appropriated
amounts into the account.
Section 6(a)(3)-(4) requires the Secretary to manage the
account in accordance with the American Indian Trust Fund
Management Reform Act of 1994 and other federal laws governing
the deposit and investment of Tribal funds; to invest the trust
funds with earnings accruing to the Tribe; and to make the
trust funds generally available to the Tribe on the
enforceability date, with funds for environmental compliance
activities made available immediately upon deposit.
Section 6(a)(5)-(6) permits the Tribe to withdraw from the
account pursuant to a Tribal management or expenditure plan
approved by the Secretary, authorizes the Secretary to approve
and enforce such management and expenditure plans, states that
the Secretary's approval decisions generally shall not be
subject to judicial review except under the Administrative
Procedure Act.
Section 6(a)(7) limits use of the trust funds to: (1)
planning, design, and construction of projects to divert,
treat, and convey up to 3,414 acre feet per year of water from
the Colorado River in the lower basin; (2) operation,
maintenance, and replacement (OM&R) activities on the Hualapai
Water Project Account; (3) construction of facilities to
transport electrical power to pump water for the Hualapai Water
Project; (4) construction, repair, and replacement of
infrastructure necessary for groundwater wells; (5) acquisition
of land, interests in land, and water rights off-reservation in
the Truxton Basin; (6) reimbursement for planning, design and
engineering costs incurred between the Act's enactment date and
enforceability date, and construction costs incurred between
the date the Secretary issues a record of decision and the
enforceability date; and (7) making contributions to the
Economic Development Fund described in the settlement agreement
to purchase additional Colorado River water entitlements and
appurtenant land.
Section 6(a)(8)-(12) limits federal liability for
expenditures and investments made by the Tribe after
withdrawal; confirms the Tribe will retain title to, control
over, and operation of any project constructed with trust
funds; makes the Tribe responsible for the OM&R costs of such
projects; prohibits per capita distribution of any portion of
the trust funds; and requires annual reporting regarding
withdrawals.
Section 6(b) establishes the Hualapai Water Settlement
Implementation Fund Account, directs the Secretary to deposit
appropriated amounts into the account, and requires the
Secretary to use the account funds to develop basin groundwater
withdrawal estimates and groundwater monitoring.
Section 7--Authorization of Appropriations
Section 7 authorizes appropriations of $312,000,000 into
the Hualapai Water Trust Fund Account and $5,000,000 into the
Hualapai Water Settlement Implementation Fund Account, and
provides for indexing and construction cost adjustments to
account for market volatility.
Section 8--Environmental Compliance
Section 8 permits the Tribe to begin necessary
environmental, cultural, and historical compliance activities
upon the deposit of funds into the Hualapai Water Trust Fund
Account; reaffirms that nothing in the Act affects or directs
the outcome of any analysis under NEPA or other applicable
federal environmental or historical and cultural protection
law; clarifies that costs associated with such compliance shall
be paid from the Hualapai Water Trust Fund Account, except that
the Secretary shall remain responsible for the activities of
the federal government; permits construction of the Hualapai
Water Project to begin when the Secretary issues a record of
decision after completion of an environmental impact statement;
and permits the Tribe to receive reimbursement from the
Hualapai Water Trust Fund Account for construction costs
incurred by the Tribe between the issuance of the Secretary's
record of decision and the enforceability date.
Section 9--Waivers, Releases, and Retention of Claims
Section 9(a) authorizes the Tribe, and the United States as
trustee for the Tribe, to execute a waiver and release of past,
present, and future claims against Arizona, the United States,
and other parties for certain water rights and injury to water
rights, as well as claims regarding negotiation, execution, or
adoption of the settlement agreement, related judgements or
decrees, or the Act. This section also provides for the
retention of certain claims by the Tribe and establishes that
the waivers and releases shall become effective on the
enforceability date.
Section 9(b) authorizes the United States, as trustee for
allottees of the Tribe, to execute a waiver and release of
past, present, and future claims against Arizona and other
parties for certain water rights and injury to water rights, as
well as claims regarding negotiation, execution, or adoption of
the settlement agreement, related judgements or decrees, or the
Act. This section also provides for the retention of certain
claims by the allottees and establishes that the waivers and
releases shall become effective on the enforceability date.
Section 9(c) authorizes the United States, acting in all
capacities except as trustee for other Indian Tribes, to
execute a waiver and release of past, present, and future
claims against the Hualapai Tribe, its members, and any agency,
official, or employee of the Tribe for certain water rights and
injury to water rights, as well as claims regarding
negotiation, execution, or adoption of the settlement
agreement, related judgements or decrees, or the Act. This
section also provides for the retention of certain claims by
the United States and establishes that the waivers and releases
shall become effective on the enforceability date.
Section 9(d) authorizes the United States, acting solely on
behalf of the Department of the Interior, to execute a waiver
and release of claims against Freeport for injury to water
rights in connection with the Bill Williams River phase 2 water
rights settlement agreement, as well as claims regarding
negotiation or execution of that settlement agreement, the
Hualapai Tribe water rights settlement agreement, or the Act.
This section also provides for the retention of certain claims
by the United States, establishes that the waivers and releases
shall become effective on the enforceability date, and provides
that the Bill Williams River phase 2 water rights settlement
agreement shall have no precedential effect or establish any
standard or methodology for quantification of water rights
claims in other proceedings.
Section 10--Satisfaction of Water Rights and Other Benefits
Section 10(a) affirms that benefits realized under this
Act, the Bill Williams agreements, and the Bill Williams Act by
the Tribe, its members (except in their capacity as allottees),
and the United States as trustee shall be in full satisfaction
of such beneficiaries' claims for water rights and injury to
water rights, and that any entitlement to water of such
beneficiaries for Hualapai land shall be satisfied out of the
water resources provided for in such acts and agreements.
Section 10(b) affirms that benefits realized under this
Act, the Bill Williams agreements, and the Bill Williams Act by
allottees of the Tribe shall replace, substitute for, and fully
satisfy all claims for water rights and injury to water rights
regarding the allotments of the allottees and the United States
as trustee, and that any entitlement to water of such
beneficiaries for allotments shall be satisfied out of the
water resources provided for in such acts and agreements. This
section further provides that nothing in this Act or the
Hualapai Tribe water rights settlement agreement recognizes or
establishes any allottee or Tribal member rights to water on
Hualapai land, or prohibits the Tribe or an allottee from
acquiring additional water rights.
Section 11--Land Added to Hualapai Reservation
This Section adds certain specified lands to the Hualapai
Reservation.
Section 12--Trust Land
Section 12(a) takes certain specified lands into trust for
the benefit of the Hualapai Tribe.
Section 12(b) adds the lands taken into trust under Section
12(a) to the Hualapai Reservation and provides for the
administration of such lands in accordance with the laws and
regulations generally applicable to Tribal trust lands.
Section 12(c) clarifies that lands taken into trust under
Section 12(a) remain subject to valid existing rights,
easements, rights-of-way, contracts, and management agreements.
Section 12(d) clarifies that this section does not affect
existing water or land rights of the Tribe in existence prior
to enactment of this Act.
Section 12(e) requires an act of Congress to take future
lands taken into trust for the Tribe and clarifies that such
lands will have water rights under state law only, with no
federally reserved water rights.
Section 13--Reallocating of CAP NIA Priority Water; Firming; Water
Delivery Contract; Colorado River Accounting
Section 13(a) directs the Secretary to reallocate the
Hualapai Tribe CAP water to the Tribe on the enforceability
date.
Section 13(b) provides for firming of the Tribe's CAP
water.
Section 13(c) directs the Secretary to enter into a water
delivery contract with the Tribe for permanent service for an
unlimited term, and outlines the contract requirements for
delivery area, method of delivery, distribution of CAP non-
Indian agricultural delivery priority water, leases and
exchanges and their terms (including barring the Hualapai tribe
from leasing CAP water within Navajo, Apache, and Cochise
counties), entitlements to lease and exchange funds, conditions
for water use and storage, prohibition on use of water outside
the lower basin of the state, CAP fixed OM&R charges, CAP
pumping energy charges, waiving property tax equivalency
payments, lessee responsibility for charges, advance payments,
calculation of delivery charges, and CAP repayment.
Section 13(d) provides that Hualapai Tribe CAP water
diverted directly from the Colorado River shall be accounted
for as deliveries of CAP water within the State.
Section 14--Enforceability Date
Section 14(a) clarifies the enforceability date is the date
on which the Secretary publishes in the Federal Register a
statement of findings that: (1) conflicts between this Act and
the Hualapai Tribe water settlement agreement have been
resolved; (2) required waivers and releases have been executed;
(3) abstracts have been completed; (4) the appropriated amounts
have been deposited into the Hualapai Water Trust Fund Account;
(5) the Gila River adjudication decree has been approved; and
(6) the Secretary has executed the required water delivery
contract. (These report requirements do not include issuance of
a record of decision pursuant to section 8(d).)
Section 14(b) requires the Secretary to publish a statement
of findings by April 15, 2029--or a later date mutually agreed
to by the Tribe, the United States, and the State--and provides
for the repeal of this Act, the return of appropriated amounts,
and the voiding of contracts, agreements, secretarial actions
pursuant to the Act if the Secretary fails to meet the
enforceability date. This section further provides that
Sections 11 and 12 regarding trust lands shall remain in
effect, notwithstanding any failure by the Secretary to meet
the enforceability date.
Section 14(c) provides that, if the Secretary fails to meet
the enforceability date, the United States may offset trust
funds used or authorized under this Act against claims by the
Tribe described in Section 9(a)(2)(A).
Section 14(d) clarifies the conditions under which the Bill
Williams River phase 2 water settlement agreement will take
effect and become enforceable.
Section 15--Administration
Section 15(a) provides for a limited waiver of the
sovereign immunity of the Tribe and the United States.
Section 15(b) clarifies that nothing in this Section alters
the law regarding pre-enforcement review of Federal
environmental or safety-related enforcement actions.
Section 15(c) directs the Secretary, acting through the
U.S. Geological Survey Water Use Program, to estimate
groundwater withdrawals for the Truxton Basin outside the
boundaries of the Hualapai Reservation, to provide annual
estimates of such withdrawals, and to notify the state if
groundwater withdrawals exceed estimates.
Section 15(d) states that the United States is not liable
for any failure to carry out any obligation or activity
authorized by this Act if adequate appropriations are not
provided or there are not enough monies available to carry out
the Act.
Section 15(e) clarifies that the Reclamation Reform Act of
1982 shall not apply to any person, entity, or tract of land
solely on the basis of receipt of a benefit under this Act,
execution or performance of this Act, or the use, storage,
delivery, lease, or exchange of CAP water.
Section 15(f) clarifies that this Act does not modify
certain other federal laws, water compacts, or treaties.
COST AND BUDGETARY CONSIDERATIONS
The Congressional Budget Office estimate of the costs of S.
4104, 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. 4104 will
have minimal impact on regulatory or paperwork requirements.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding S. 4104.
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.
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