[Senate Report 119-22]
[From the U.S. Government Publishing Office]
Calendar No. 75
119th Congress } { Report
SENATE
1st Session } { 119-22
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TO APPROVE THE SETTLEMENT OF THE WATER RIGHT CLAIMS OF THE TULE RIVER
TRIBE, AND FOR OTHER PURPOSES
_______
May 12, 2025.--Ordered to be printed
_______
Ms. Murkowski, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 689]
The Committee on Indian Affairs, to which was referred the
bill, S. 689, 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, and recommends
that the bill without amendment do pass.
PURPOSE
S. 689 would recognize the federally reserved Indian water
rights of the Tule River Indian Tribe and 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''), satisfying the Tribe's claims to water
rights in California. The bill would also authorize funding for
water development projects and operation, maintenance, and
repair, establish operating rules for the facility to provide
drinking water for the Tribe, guarantee water deliveries to
downstream state-based users, and transfer certain lands into
trust status for the Tribe.
BACKGROUND AND NEED
The Tule River Indian Reservation (Reservation) was created
in 1856 as part of the Tejon Reservation on San Joaquin Valley
farmland in Tulare County. It was modified 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 (55,396 acres) on the western slope of the Sierra
Nevada Mountains, east of Porterville in California's Central
Valley, which cover the Middle Fork of the Tule River. 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. 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\ The Reservation's
residents suffer from a relatively low standard of living due,
in part, to the absence of an adequate and reliable potable
water supply and system. Groundwater is limited in both
quantity and quality, and in years of average and below average
precipitation, surface water supply falls below community need.
In the summer months, low groundwater and surface water
supplies create municipal water shortages, resulting in
Reservation residents having little to no access to running
water. 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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The only known adjudication of water rights on the South
Fork of the Tule River occurred in 1916,\5\ in which the United
States failed to consider, evaluate, or defend the Tribe's pre-
1873 senior water rights claims to the South Fork of the Tule
River. In 1922 the United States, on behalf of the Tribe,
entered a contract with a downstream state-based water user,
the South Tule Independent Ditch Company, for water deliveries
without the Tribe's involvement or consent.\6\ The agreement
apportioned the flow of the South Tule River under shortage
conditions, but failed to construct adequate water storage and
delivery systems for the Tribe on the Reservation. In the
absence of adequate water storage systems, the Tribe relies on
a small number of wells on the Reservation, but flow rates are
declining and some have run dry. The Tribe has proposed
developing a storage facility, such as a dam or reservoir
together with other infrastructure, to meet future water
demands.
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\5\Poplar Irrigation Co. v. A.A. Howard, No. 7004 (Cal. Super. Ct.
Tulare Cnty. 1916).
\6\Agreement between the United States and the South Tule
Independent Ditch Company, May 3, 1922, available at https://
tulerivertribe-nsn.gov/wp-content/uploads/2022/09/1922-Agreement-
00054973x105FE6.pdf.
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After ten years of negotiation facilitated by the United
States, the Tule River Tribe, South Tule Independent Ditch
Company, and the Tule River Association, a consortium of
downstream state-based irrigators, reached consensus on how to
avoid adverse impact from a Tribal water storage project. In
2007, the Tribe entered into a water settlement agreement with
the Tule River Association and the South Tule Independent Ditch
Company to quantify the Tribe's water rights for the
Reservation. The agreement allows the Tribe to store up to
5,828 acre-feet per year of surface water from the South Fork
of the Tule River, and for the construction of a reservoir, and
requires the release of certain quantities of water to meet
downstream state-based needs.
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 the
1922 agreement between the Secretary of the Interior and the
South Tule Independent Ditch Company.\7\
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\7\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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S. 689 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 fulfill the settlement.
SUMMARY
S. 689 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 mandatory appropriations of
$518,000,000 for the Tule River Tribe Water Development
Projects Account and $50,000,000 for the Tule River Tribe
Operations and Maintenance (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.
SECTION-BY-SECTION ANALYSIS OF S. 689 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 2025'' 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--Anti-deficiency
This section states that the United States shall not be
liable for failure to perform if adequate appropriations are
not provided by Congress.
LEGISLATIVE HISTORY
S. 689 was introduced by Senators Padilla and Schiff on
February 24, 2025.
In the 118th Congress, Senators Padilla and Feinstein
introduced a similar bill, S. 306, on February 15, 2023. On
March 29, 2023, the Committee held a business meeting and
ordered S. 306 to be reported without amendment favorably (S.
Rept. 118-110).\8\ A companion bill, H.R. 8920, was introduced
by Representative Fong (R-CA-20) in the House of
Representatives on July 2, 2024. The House Committee on Natural
Resources Subcommittee on Water, Wildlife, and Fisheries held a
hearing on H.R. 8920 on July 23, 2024.
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\8\S. Rept. No. 118-110 (2024).
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In the 117th Congress, Senator Padilla introduced a
substantially similar predecessor bill, S. 4870, on September
15, 2022. The Committee held a hearing on the bill on November
16, 2022.
COMMITTEE RECOMMENDATION
The Senate Committee on Indian Affairs, in an open business
meeting on March 5, 2025, by a majority voice vote of a quorum
present, recommends that the Senate pass S. 689.
COST AND BUDGETARY CONSIDERATIONS
The Committee has requested, but has not yet received, the
Congressional Budget Office's estimate of the cost of S. 689 as
ordered reported. When the Congressional Budget Office
completes its cost estimate, it will be posted on the Internet
at www.cbo.gov., and printed in the Congressional Record.
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. 689 will
have minimal impact on regulatory or paperwork requirements.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding S. 689.
CHANGES IN EXISTING LAW
In accordance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee notes that no
changes in existing law are made by S. 689, as ordered
reported.
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