[Senate Report 118-110]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 236
118th Congress     }                                     {      Report
                                 SENATE
 1st Session       }                                     {     118-110

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



 
     TULE RIVER TRIBE RESERVED WATER RIGHTS SETTLEMENT ACT OF 2023

                                _______
                                

                November 6, 2023.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 306]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 306) to approve the settlement of the water right 
claims of the Tule River Tribe, and for other purposes, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                PURPOSE

    The purpose of S. 306 is to recognize the federally 
reserved Indian water rights of the Tule River Indian Tribe and 
to authorize, ratify, and confirm a 2007 water settlement 
agreement between the Tribe and downstream state-based water 
users, the Tule River Association, and the South Tule 
Independent Ditch Company (``2007 Agreement''). The bill would 
also authorize funding to construct a water storage facility, 
establish operating rules for the facility to ensure continual 
drinking water for the Tribe, guarantee water deliveries to 
downstream state-based users, and transfer certain lands into 
trust status for the Tribe.

                               BACKGROUND

    The Tule River Indian Reservation was created by a series 
of three Executive Orders issued between 1873 and 1878 that 
enlarged, and subsequently shrank, the Reservation to its 
current state.\1\ The Reservation is comprised of approximately 
86 square miles on the western slope of the Sierra Nevada 
Mountains, east of Porterville in California's Central Valley. 
Only about one percent of the Reservation is functionally 
habitable, and most of that portion is constrained to the lower 
reach of the South Fork of the Tule River on the western third 
of the Reservation.
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    \1\Exec. Order of January 9, 1873; Exec. Order of October 3, 1873; 
Exec. Order of August 2, 1878; Exec. Order of June 2, 1911.
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    The Tule River's South Fork flows through the Reservation 
into the Tule River at Lake Success Reservoir, and the Tribe 
generally draws its water from surface flow available from the 
South Fork and its tributaries as well as limited groundwater 
supplies from aquifers and springs.\2\ Current drought 
conditions and river level decreases are forcing the Tribe to 
rely on bottled water and trucked water to meet the basic needs 
of its Reservation residents.\3\ This state of water insecurity 
interferes with Tribal members' participation in work, school, 
and other aspects of daily life; prevents the Tribe from 
providing much-needed on-reservation housing to additional 
Tribal members; and recently forced the Tribe to relocate its 
primary economic driver--the Eagle Mountain Casino--to 
Porterville.\4\
---------------------------------------------------------------------------
    \2\Native American Rights Fund, Tule River Indian Tribe: Water 
Settlement Technical Report, pp. 1-1, 1-4, 2-1, 2-2 (2013).
    \3\See Navarro, Elisa, Tule River Tribe Faces Constant Water Woes, 
August 27, 2022, at https://abc30.com/tule-river-indian-tribe-water-
woes-shortage-drought/12170447/.
    \4\Id.
---------------------------------------------------------------------------
    According to the Tribe, the parties assessed the Tribe's 
current and future needs for domestic, commercial, municipal, 
industrial, and agricultural purposes, and concluded that the 
Tribe cannot meet its needs without a water storage facility to 
serve the Reservation and quantification of its federally 
reserved water rights, which were affirmed in principle in a 
1922 agreement between the Secretary of the Interior and the 
South Tule Independent Ditch Company.\5\
---------------------------------------------------------------------------
    \5\These rights form the basis of the Tribe's pending claims for 
damages against the United States for failure to protect the Tribe's 
water rights and adequately develop its water resources.
---------------------------------------------------------------------------
    In 2007, the Tribe entered into a water settlement 
agreement with the Tule River Association and the South Tule 
Independent Ditch Company.

                          NEED FOR LEGISLATION

    S. 306 will address the Tribe's ongoing water insecurity 
and resolve, fully and finally, all of the Tribe's claims to 
water rights in the State of California by authorizing, 
ratifying, and confirming the 2007 settlement agreement between 
the Tribe and the state-based Tule River Association and South 
Tule Independent Ditch Company, and by providing funding and 
land to effect the settlement.

                          SUMMARY OF THE BILL

    S. 306 authorizes, ratifies, and confirms the 2007 
Agreement, as amended; ratifies, confirms, declares valid, and 
quantifies the Tribe's water right as 5,828 acre-feet per year 
of surface water from the South Fork of the Tule River; 
establishes the Tule River Indian Tribe Settlement Trust Fund 
and its subaccounts; authorizes a mandatory appropriation of 
$518,000,000 for the Tule River Tribe Water Development 
Projects Account and $50,000,000 for the Tule River Tribe O&M 
Account; provides for certain federal and Tribally-owned fee 
lands to be transferred and placed in trust for the Tribe as 
part of the Tule River Reservation; and places certain 
requirements on the Secretary of the Interior.

                          LEGISLATIVE HISTORY

    Senators Padilla (D-CA) and Feinstein (D-CA) introduced S. 
306 on February 15, 2023. It was referred to the Committee on 
the same day. On March 29, 2023, the Committee met at a duly 
convened business meeting to consider S. 306 with three other 
bills. The Committee passed three of the four bills, including 
S. 306, en bloc by voice vote and ordered the bills to be 
reported favorably.
    117th Congress. On September 15, 2022, Senator Padilla (D-
CA) introduced a substantially similar predecessor bill, S. 
4870, and the Senate referred the bill to the Committee on 
Indian Affairs on the same day. The Committee held a hearing on 
the bill on November 16, 2022. The Committee took no further 
action before the conclusion of the 117th Congress.

       SECTION-BY-SECTION ANALYSIS OF S. 306 AS ORDERED REPORTED

Section 1--Short title; Table of Contents

    This section sets forth the short title as the ``Tule River 
Tribe Reserved Water Rights Settlement Act of 2023'' and 
includes a table of contents.

Section 2--Purposes

    This section sets forth the 5-fold purpose of the bill to: 
(1) resolve the water rights claims of the Tule River Tribe, 
and the United States as its trustee, in the State of 
California; (2) authorize, ratify, and confirm the Agreement 
entered into by the Tribe, the South Tule Independent Ditch 
Company, and the Tule River Association; (3) authorize and 
direct the Secretary to execute the Agreement and take other 
actions necessary to carry it out; (4) authorize funding to 
implement the Agreement; and (5) authorize the transfer of 
certain lands to the Tribe, to be held in trust.

Section 3--Definitions

    This section provides definitions for various terms used 
throughout the bill.

Section 4--Ratification of 2007 Agreement

    This section authorizes, ratifies, and confirms the 
Agreement and certain specified amendments; requires the 
Secretary to execute the Agreement once the parties agree to 
amendments regarding the Tribe's priority date, and the Tribe 
either moves forward with the Phase I Reservoir or selects a 
substitute site and meets Operation Rules requirements; and 
authorizes the Secretary to make modifications consistent with 
congressional approval requirements and federal law.
    This section also requires the Secretary and the Tribe to 
comply with federal environmental laws as applicable, affirms 
that execution of the 2007 Agreement does not constitute a 
major federal action for purposes of the National Environmental 
Policy Act, and provides for the Tribe's costs for related 
compliance activities to be paid from the settlement Trust 
Fund.

Section 5--Tribal Water Right

    This section ratifies, confirms, declares valid, and 
quantifies the Tribe's water right as 5,828 acre-feet per year 
of surface water from the South Fork of the Tule River; 
requires the Tribe's water right to be held in trust by the 
United States for the use and benefit of the Tribe; and 
protects the right from being subject to loss through non-use, 
forfeiture, abandonment, or other operation of law.
    This section also authorizes use of the Tribal Water Right 
in accordance with the terms of the 2007 Agreement; prohibits 
alienation and forfeiture; and provides that authorizations of 
the Act satisfy Non-Intercourse Act requirements.

Section 6--Tule River Tribe Trust accounts

    This section establishes the Tule River Indian Tribe 
Settlement Trust Fund and its subaccounts, and it requires the 
Secretary to: (1) deposit funds pursuant to section 7(a)(1) and 
section 7(a)(2); (2) manage the Trust Fund 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; (3) invest the funds with earnings accruing to 
the Tribe; and (4) make most funds available to the Tribe on 
the enforceability date, with $20,000,000 made available 
immediately to the Tribe for activities related to the Phase I 
Reservoir and Operational Rules.
    This section permits withdrawals from the Trust Fund for 
certain specified purposes pursuant to Tribal management or 
expenditure plans approved and enforced by the Secretary, 
requires annual reporting regarding withdrawals, and limits 
federal liability for expenditures and investments made by the 
Tribe after withdrawal. It also prohibits per capita 
distribution of any portion of the Trust Funds; confirms the 
Tribe will retain title, control, and operation of any project 
constructed with trust funds; and makes the Tribe responsible 
for the operation, maintenance, and replacement costs of such 
projects.

Section 7--Funding

    This section authorizes a mandatory appropriation of 
$518,000,000 for the Tule River Tribe Water Development 
Projects Account and $50,000,000 for the Tule River Tribe O&M 
Account, and it provides for adjustments to address cost 
fluctuation and market volatility.

Section 8--Transfer of land into trust

    This section provides that certain specified Bureau of Land 
Management lands, Forest Service lands, and Tribally-owned fee 
lands will be transferred and placed into trust for the Tribe 
as part of the Tule River Reservation, subject to valid 
existing rights, contracts, leases, permits, and other 
enumerated encumbrances.
    This section also clarifies that parcels are withdrawn from 
disposal under public land laws, patents under mining law, and 
disposition under mineral and geothermal leasing; directs the 
Secretary to issue all trust deeds within 10 years of the 
enforceability date; prohibits Class II or III gaming on the 
transferred lands; and provides that associated water rights 
become part of the Tribe's holdings but not part of Tribe's 
water rights allocation.

Section 9--Satisfaction of claims

    This section provides that benefits realized under the Act 
shall serve as full satisfaction of any claim of the Tribe 
against the United States that the Tribe waives and releases 
under the Act.

Section 10--Waivers and releases of claims

    This section requires the parties to execute waivers and 
releases of claims related to the Tribe's water rights and 
creation or reduction of the reservation, while reserving 
certain rights and retaining certain claims. This section also 
preserves the Tribe's authority to enforce Tribal laws, 
including environmental and jurisdictional laws; preserves the 
United States' authority to fulfill its trust responsibilities 
and enforce its laws, including environmental and 
jurisdictional laws; clarifies that the Act does not waive 
individual Tribal member claims; and states that the Act does 
not confer jurisdiction on any state court to interpret federal 
health, safety, or environmental laws or determine the duties 
of any party thereunder, or conduct judicial review of any 
federal agency action.
    This section further provides for tolling of claims and 
defenses between the enactment and enforceability dates, and 
provides for termination of the agreement if the Secretary's 
statement of findings is not issued within 8 years of the 
enactment date, or a later date mutually agreed upon by the 
Tribe and the United States with notice to the State.

Section 11--Enforceability date

    This section requires the Secretary of the Interior to 
publish a statement of findings in the Federal Register to 
render the settlement agreement enforceable.

Section 12--Binding effect; Judicial approval; enforceability

    This section provides procedures for seeking the federal 
district court decree of the Tribe's water rights, establishes 
the court's jurisdiction, and provides standards for the court 
to resolve an impasse between the parties regarding Operation 
Rules.

Section 13--Miscellaneous provisions

    This section affirms the federal government's sovereign 
immunity is not waived; states that the land and water rights 
of other Tribes, and the water rights of the United States, are 
not quantified or diminished; and confirms that the Act does 
not affect laws or regulations in effect prior to enactment 
regarding pre-enforcement review of federal environmental 
enforcement actions. This section also provides that the Act 
controls over the Agreement in the event of a conflict.

Section 14--Antideficiency

    This section states that the United States shall not be 
liable for failure to perform if adequate appropriations are 
not provided by Congress.

                   COST AND BUDGETARY CONSIDERATIONS

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    The bill would:
           Secure water rights for the Tule River Tribe 
        of California by ratifying a 2007 agreement between the 
        tribe and other parties
           Establish and appropriate funds for the Tule 
        River Indian Tribe Settlement Trust Fund to be 
        administered by the Department of the Interior until 
        its transfer to the tribe
           Transfer federal land to a trust for the 
        benefit of the Tule Tribe Reservation
           Impose intergovernmental mandates as defined 
        by the Unfunded Mandates Reform Act
    Estimated budgetary effects would mainly stem from:
           The transfer of the trust fund's ownership 
        to the Tule River Tribe, which would be recorded as a 
        federal expenditure
    Bill summary: S. 306 would secure up to 5,828 acre-feet of 
water annually for the Tule River Tribe of California by 
ratifying the Tule River Tribe Reserved Water Rights Settlement 
Agreement reached in 2007 by the Tule River Tribe, the Tule 
River Association, and the South Tule Independent Ditch 
Company. The bill would appropriate funds to capitalize the 
Tule River Indian Tribe Settlement Trust Fund, an interest-
bearing fund that would be administered by the Department of 
the Interior (DOI). After the parties have satisfied certain 
conditions, the federal government would transfer the trust 
fund (including any interest credited to the fund) to the tribe 
for use in constructing water projects for the Tule Tribe 
Reservation in Tulare County, California.
    Estimated Federal cost: The estimated budgetary effect of 
S. 306 is shown in Table 1. The costs of the legislation fall 
within budget function 300 (natural resources and environment).

                                                     TABLE 1.--ESTIMATED BUDGETARY EFFECTS OF S. 306
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                                                                                     By fiscal year, millions of dollars--
                                                      --------------------------------------------------------------------------------------------------
                                                        2023   2024   2025   2026   2027   2028   2029   2030   2031   2032   2033  2023-2028  2023-2033
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              INCREASES IN DIRECT SPENDING
 
Tule River Indian Tribe Settlement Trust Fund:
    Estimated Budget Authority.......................      0    645      0      0      0      0      0      0      0      0      0       645        645
    Estimated Outlays................................      0      5      5      5      5      0      0      0    625      0      0        20        645
Interest Credited to the Trust Fund:
    Estimated Budget Authority.......................      0     23     23     18     18     18     19     20     20      0      0       100        159
    Estimated Outlays................................      0      0      0      0      0      0      0      0    159      0      0         0        159
Total Changes In Direct Spending:
    Estimated Budget Authority.......................      0    668     23     18     18     18     19     20     20      0      0       745        804
    Estimated Outlays................................      0      5      5      5      5      0      0      0    784      0      0        20        804
--------------------------------------------------------------------------------------------------------------------------------------------------------
CBO estimates that implementing S. 306 would increase spending subject to appropriation by less than $500,000 in any year over the 2023-2028 period.

    Basis of estimate: For this estimate, CBO assumes that the 
bill will be enacted early in fiscal year 2024 and that the 
amounts appropriated in the bill would thus be deposited in the 
trust fund in that year. Using information from DOI and based 
on the bill's specifications, CBO expects that the following 
conditions would be met eight years after enactment:
           The settlement, including amendments 
        required to conform to the bill's provisions, would be 
        finalized and executed;
           All waivers and releases of claims required 
        under the bill would be executed; and
           All appeals would have been exhausted and 
        the courts would have approved the agreement as binding 
        on all parties.
    Finally, DOI would publish a statement of findings in the 
Federal Register that the bill's conditions have been met, and 
ownership of the trust fund would be transferred to the tribe.
    Direct spending: CBO estimates that enacting the bill would 
increase direct spending by $804 million over the 2023-2033 
period.
    Tule River Indian Tribe Settlement Trust Fund: S. 306 would 
establish a trust fund consisting of two interest-bearing 
accounts: the Tule River Tribe Water Development Projects 
Account and the Tule River Tribe Operation, Maintenance, and 
Replacement Account. The bill would appropriate $568 million to 
capitalize those accounts--$518 million for water projects and 
$50 million for operation, maintenance, and replacement. S. 306 
also would appropriate additional amounts to account for 
inflation over the period from November 2020 until those 
amounts are deposited into the fund. Based on the assumption 
that the bill will be enacted early in 2024, CBO estimates that 
the total amount deposited in the fund would be $645 million.
    Under the bill, the tribe would have immediate access to 
$20 million from the trust fund to complete technical studies 
for future water infrastructure projects. Otherwise, the 
federal government would retain ownership until 2031, when all 
settlement conditions are expected to be satisfied. Deposited 
amounts would be credited with interest earnings. In 2031, the 
federal government would transfer ownership of the trust fund 
to the tribe; the amount transferred (including any interest 
earnings) would be considered a federal expenditure. Based on 
CBO's projections of interest rates and the assumption that all 
of the conditions would be met by 2031, CBO estimates that 
interest earnings would total $159 million. Accordingly, CBO 
estimates that the total amount transferred in 2031 would be 
$784 million.
    The federal government would retain fiduciary 
responsibility over the contents of the trust fund until the 
money is needed by the tribe to plan, design, construct, and 
maintain water projects; those subsequent actions would not 
affect the federal budget.
    Land Held in Trust: Within 10 years after the settlement 
conditions are met, S. 306 would direct DOI to transfer about 
11,640 acres to be held in trust for the benefit of the tribe 
as part of the Tule Tribe Reservation in California. That 
amount consists of 9,037 acres from the Forest Service; 1,837 
acres owned by the tribe; and 765 acres from the Bureau of Land 
Management.
    Using information from those agencies, CBO estimates that, 
starting in 2031, implementing the bill's provisions would 
decrease offsetting receipts (and thus increase direct 
spending) because the Forest Service would no longer collect 
grazing fees on that land. Using information from the Forest 
Service about those fees, CBO estimates that the increase in 
direct spending would be insignificant in every year and over 
the 2023-2033 period. No federal receipts are collected from 
tribal land or from land administered by the Bureau of Land 
Management.
    Spending subject to appropriation: The agencies also would 
incur costs to oversee environmental and technical compliance 
for water projects constructed by the tribe and to transfer 
land to the trust. Using information from the agencies and 
average costs to oversee activities for other water 
settlements, CBO estimates that carrying out those activities 
would have insignificant costs in every year and would total $1 
million over the 2024-2028 period; any spending would be 
subject to the appropriation of the estimated amounts.
    Pay-As-You-Go considerations: The Statutory Pay-As-You-Go 
Act of 2010 establishes budget-reporting and enforcement 
procedures for legislation affecting direct spending or 
revenues. The changes in outlays that are subject to those pay-
as-you-go procedures are shown in Table 2.

TABLE 2.--CBO'S ESTIMATE OF THE STATUTORY PAY-AS-YOU-GO EFFECTS OF S. 306, THE TULE RIVER TRIBE RESERVED WATER RIGHTS SETTLEMENT ACT OF 2023, AS ORDERED
                                          REPORTED BY THE SENATE COMMITTEE ON INDIAN AFFAIRS ON MARCH 29, 2023
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                                                                                By fiscal year, millions of dollars--
                                           -------------------------------------------------------------------------------------------------------------
                                             2023    2024    2025    2026    2027    2028    2029    2030    2031    2032    2033   2023-2028  2023-2033
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                INCREASES IN THE DEFICIT
 
Pay-As-You-Go Effect......................       0       5       5       5       5       0       0       0     784       0       0        20        804
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Increase in long-term net direct spending and deficits: CBO 
estimates that enacting S. 306 would not significantly increase 
net direct spending in any of the four consecutive 10-year 
periods beginning in 2034.
    CBO estimates that enacting S. 306 would not significantly 
increase on-budget deficits in any of the four consecutive 10-
year periods beginning in 2034.
    Mandates: S. 306 contains intergovernmental mandates as 
defined in the Unfunded Mandates Reform Act (UMRA). CBO cannot 
determine whether the aggregate cost of those mandates would 
exceed the annual threshold established in UMRA ($99 million in 
2023, adjusted annually for inflation).
    S. 306 would require the Tule River Tribe to waive the 
right to raise claims to some water rights and for certain 
damage to water, land, and other resources resulting from the 
loss of water or water rights. The cost of the mandate would be 
the forgone value of awards and settlements of claims that the 
tribe would be prevented from raising under the bill. Because 
both the number of claims that could be barred or terminated 
and the value of forgone compensation stemming from them are 
uncertain, CBO has no basis for estimating the cost of the 
mandate.
    The tribe also would be prohibited from permanently giving 
or selling any portion of the Tribal Water Right. Based on the 
tribe's stated intent to keep and use the water rights in a 
continuous manner for water storage, the cost for the tribe to 
comply with the prohibition would be small because the tribe 
has no foreseeable intent to give or sell the right.
    By taking land into trust for the Tule River Tribe, the 
bill would impose a mandate on state and local governments by 
prohibiting them from taxing that land. Information from Tulare 
County about taxes and other receipts associated with the land 
indicate those forgone revenues would total less than $100,000 
annually.
    S. 306 contain no private-sector mandates as defined in 
UMRA.
    Estimate prepared by: Federal Costs: Aurora Swanson; 
Mandates: Rachel Austin.
    Estimate reviewed by: Ann E. Futrell, Senior Adviser for 
Budget Analysis; Kathleen FitzGerald, Chief, Public and Private 
Mandates Unit; H. Samuel Papenfuss, Deputy Director of Budget 
Analysis.
    Estimate approved by: Phillip L. Swagel, Director, 
Congressional Budget Office.

               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. 306 will 
have minimal impact on regulatory or paperwork requirements.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no communications from the 
Executive Branch regarding S. 306.

                        CHANGES IN EXISTING LAW

    On February 9, 2023, 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]