[Senate Report 118-110]
[From the U.S. Government Publishing Office]
Calendar No. 236
118th Congress } { Report
SENATE
1st Session } { 118-110
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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\
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\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.
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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\
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\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.
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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--
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2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2033 2023-2028 2023-2033
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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
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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--
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2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2033 2023-2028 2023-2033
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INCREASES IN THE DEFICIT
Pay-As-You-Go Effect...................... 0 5 5 5 5 0 0 0 784 0 0 20 804
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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.
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