[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 886 Engrossed in Senate (ES)]
<DOC>
116th CONGRESS
2d Session
S. 886
_______________________________________________________________________
AN ACT
To amend the Omnibus Public Land Management Act of 2009 to make the
Reclamation Water Settlements Fund permanent.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Indian Water Rights Settlement
Extension Act''.
SEC. 2. TRIBAL WATER RIGHTS.
(a) Definition of 611(g) Agreement.--Section 602 of the Aamodt
Litigation Settlement Act (Public Law 111-291; 124 Stat. 3134) is
amended--
(1) by redesignating paragraphs (1) through (23) as
paragraphs (2) through (24), respectively; and
(2) by inserting before paragraph (2) (as so redesignated)
the following:
``(1) 611(g) agreement.--The term `611(g) Agreement' means
the agreement dated July 2, 2019, to be executed by the United
States, the State, the Pueblos, the County, and the City
pursuant to section 611(g).''.
(b) Final Project Design.--Section 611(b) of the Aamodt Litigation
Settlement Act (Public Law 111-291; 124 Stat. 3137) is amended, in the
matter preceding paragraph (1), by striking ``within 90 days of'' and
inserting ``as soon as feasible after''.
(c) Construction Costs for Pueblo Water Facilities.--Section 611(f)
of the Aamodt Litigation Settlement Act (Public Law 111-291; 124 Stat.
3138) is amended--
(1) in paragraph (1)--
(A) in subparagraph (A), by striking
``$106,400,000'' and inserting ``$243,400,000''; and
(B) by striking subparagraph (B) and inserting the
following:
``(B) Exception.--Of the amount described in
subparagraph (A)--
``(i) the initial $106,400,000 shall be
increased or decreased, as appropriate, based
on ordinary fluctuations in construction costs
since October 1, 2006, as determined using
applicable engineering cost indices; and
``(ii) any amounts made available in excess
of the amount described in clause (i) shall be
increased or decreased, as appropriate, based
on ordinary fluctuations in construction costs
since October 1, 2018, as determined using
applicable engineering cost indices.''; and
(2) in paragraph (3), by inserting ``and the 611(g)
Agreement'' after ``the Cost-Sharing and System Integration
Agreement''.
(d) Funding for Regional Water System.--Section 617(a)(1) of the
Aamodt Litigation Settlement Act (Public Law 111-291; 124 Stat. 3147)
is amended--
(1) in subparagraph (B)--
(A) by striking the period at the end and inserting
``; and'';
(B) by striking ``section 616 $50,000,000'' and
inserting the following: ``section 616--
``(i) $50,000,000''; and
(C) by adding at the end the following:
``(ii) subject to the availability of
appropriations and in addition to the amounts
made available under clause (i), $137,000,000,
as adjusted under paragraph (4), for the period
of fiscal years 2021 through 2028.''; and
(2) by adding at the end the following:
``(C) Prohibition.--Notwithstanding any other
provision of law, any additional amounts made available
under subparagraph (B)(ii) shall not be made available
from the Reclamation Water Settlements Fund established
by section 10501(a) of the Omnibus Public Land
Management Act of 2009 (43 U.S.C. 407(a)).''.
(e) Adjustment.--Section 617(a)(4) of the Aamodt Litigation
Settlement Act (Public Law 111-291; 124 Stat. 3147) is amended--
(1) by striking ``The amounts'' and inserting the
following:
``(A) In general.--The amounts'';
(2) in subparagraph (A) (as so designated), by striking
``since October 1, 2006, as determined using applicable
engineering cost indices'' and inserting ``pursuant to section
611(f)(1)(B)''; and
(3) by inserting at the end the following:
``(B) Prohibition.--Notwithstanding any other
provision of law, any additional amounts made available
as a result of this paragraph, as compared to this
paragraph as in effect on the day before the date of
enactment of this subparagraph, shall--
``(i) be subject to the availability of
appropriations; and
``(ii) not be made available from the
Reclamation Water Settlements Fund established
by section 10501(a) of the Omnibus Public Land
Management Act of 2009 (43 U.S.C. 407(a)).''.
(f) Execution of Agreement Under Section 611(g).--Section 621 of
the Aamodt Litigation Settlement Act (Public Law 111-291; 124 Stat.
3149) is amended by striking subsections (a) and (b) and inserting the
following:
``(a) Approval.--To the extent the Settlement Agreement, the Cost-
Sharing and System Integration Agreement, and the 611(g) Agreement do
not conflict with this title, the Settlement Agreement, the Cost-
Sharing and System Integration Agreement, and the 611(g) Agreement
(including any amendments to the Settlement Agreement, the Cost-Sharing
and System Integration Agreement, and the 611(g) Agreement that are
executed to make the Settlement Agreement, the Cost-Sharing and System
Integration Agreement, or the 611(g) Agreement consistent with this
title) are authorized, ratified, and confirmed.
``(b) Execution.--To the extent the Settlement Agreement, the Cost-
Sharing and System Integration Agreement, and the 611(g) Agreement do
not conflict with this title, the Secretary shall execute the
Settlement Agreement, the Cost-Sharing and System Integration
Agreement, and the 611(g) Agreement (including any amendments that are
necessary to make the Settlement Agreement, the Cost-Sharing and System
Integration Agreement, or the 611(g) Agreement consistent with this
title).''.
(g) Requirements for Determination of Substantial Completion of the
Regional Water System.--Section 623(e) of the Aamodt Litigation
Settlement Act (Public Law 111-291; 124 Stat. 3151) is amended--
(1) by striking paragraph (1) and inserting the following:
``(1) Criteria for substantial completion of regional water
system.--Subject to the provisions of section 611(d) concerning
the extent, size, and capacity of the County Distribution
System, the Regional Water System shall be determined to be
substantially completed if--
``(A) the infrastructure has been constructed
capable of--
``(i) diverting, treating, transmitting,
and distributing a supply of 2,500 acre-feet of
water to the Pueblos consistent with the
Engineering Report (as amended by the 611(g)
Agreement and the Operating Agreement); and
``(ii) diverting, treating, and
transmitting the quantity of water specified in
the Engineering Report to the County
Distribution System and consistent with the
Engineering Report (as amended by the 611(g)
Agreement and the Operating Agreement); or
``(B) the Secretary--
``(i) issues a notice to proceed
authorizing the commencement of Phase I
construction of the Regional Water System by
December 31, 2019, and subsequently commences
construction of the Regional Water System;
``(ii) diligently proceeds to construct the
Regional Water System in accordance with the
Engineering Report (as amended by the 611(g)
Agreement), on a schedule for completion by
June 30, 2028;
``(iii) expends all of the available
funding provided to construct the Regional
Water System under section 611(f)(1)(A), in the
Cost-Sharing and System Integration Agreement,
and in the 611(g) Agreement;
``(iv) complies with the terms of the
611(g) Agreement; and
``(v) despite diligent efforts cannot
complete construction of the Regional Water
System as described in the final Engineering
Report (as amended by the 611(g) Agreement),
due solely to the lack of additional authorized
funding.'';
(2) in paragraph (2)--
(A) by striking ``2021'' and inserting ``2025'';
and
(B) by striking ``2024'' and inserting ``2028'';
(3) in paragraph (3), in the matter preceding subparagraph
(A), by striking ``2021'' and inserting ``2025'';
(4) in paragraph (4)(B)(ii)(II), by striking ``2023'' and
inserting ``2027''; and
(5) in paragraph (5)(A), by striking ``2024'' and inserting
``2028''.
SEC. 3. KICKAPOO TRIBE.
(a) Definition of Upper Delaware and Tributaries Watershed Plan.--
In this section, the term ``Upper Delaware and Tributaries Watershed
Plan'' means the plan described in the document entitled ``Watershed
Plan and Environmental Impact Statement Upper Delaware and Tributaries
Watershed Atchison, Brown, Jackson, and Nemaha Counties, Kansas'',
dated January 1994, and supplemented in June 1994--
(1) developed, pursuant to the Watershed Protection and
Flood Prevention Act (16 U.S.C. 1001 et seq.)--
(A) by the Kickapoo Tribe, certain watershed and
conservation districts in the State of Kansas, and the
Department of Wildlife and Parks of the State of
Kansas; and
(B) with the cooperation and technical assistance
of the Natural Resources Conservation Service; and
(2) described in the report of the Committee on Environment
and Public Works of the Senate (Senate Report 105-13; April 22,
1997).
(b) Study; Recommendations.--To support the purposes of achieving a
fair, equitable, and final settlement of claims to water rights for the
Kickapoo Tribe in the State of Kansas, the Secretary of Agriculture
(acting through the Chief of the Natural Resources Conservation
Service), in consultation with the Secretary of the Interior (acting
through the Director of the Secretary's Indian Water Rights Office),
shall--
(1) commence a study of the multipurpose dam described in
the Upper Delaware and Tributaries Watershed Plan; and
(2) not later than 2 years after the date of enactment of
this Act, make recommendations to Congress with respect to the
material alterations or changes to the Upper Delaware and
Tributaries Watershed Plan that are necessary to effectuate, in
part, the Tribal water rights agreed to by the Kickapoo Tribe
and the State of Kansas on September 9, 2016, in the Kickapoo
Tribe Water Rights Settlement Agreement, which otherwise
remains subject to approval and authorization by Congress.
SEC. 4. NAVAJO-UTAH WATER RIGHTS SETTLEMENT.
(a) Purposes.--The purposes of this section are--
(1) to achieve a fair, equitable, and final settlement of
all claims to water rights in the State of Utah for--
(A) the Navajo Nation; and
(B) the United States, for the benefit of the
Nation;
(2) to authorize, ratify, and confirm the agreement entered
into by the Nation and the State, to the extent that the
agreement is consistent with this section;
(3) to authorize and direct the Secretary--
(A) to execute the agreement; and
(B) to take any actions necessary to carry out the
agreement in accordance with this section; and
(4) to authorize funds necessary for the implementation of
the agreement and this section.
(b) Definitions.--In this section:
(1) Agreement.--The term ``agreement'' means--
(A) the document entitled ``Navajo Utah Water
Rights Settlement Agreement'' dated December 14, 2015,
and the exhibits attached thereto; and
(B) any amendment or exhibit to the document or
exhibits referenced in subparagraph (A) to make the
document or exhibits consistent with this section.
(2) Allotment.--The term ``allotment'' means a parcel of
land--
(A) granted out of the public domain that is--
(i) located within the exterior boundaries
of the Reservation; or
(ii) Bureau of Indian Affairs parcel number
792 634511 in San Juan County, Utah, consisting
of 160 acres located in Township 41S, Range
20E, sections 11, 12, and 14, originally set
aside by the United States for the benefit of
an individual identified in the allotting
document as a Navajo Indian; and
(B) held in trust by the United States--
(i) for the benefit of an individual,
individuals, or an Indian Tribe other than the
Navajo Nation; or
(ii) in part for the benefit of the Navajo
Nation as of the enforceability date.
(3) Allottee.--The term ``allottee'' means an individual or
Indian Tribe with a beneficial interest in an allotment held in
trust by the United States.
(4) Enforceability date.--The term ``enforceability date''
means the date on which the Secretary publishes in the Federal
Register the statement of findings described in subsection
(g)(1).
(5) General stream adjudication.--The term ``general stream
adjudication'' means the adjudication pending, as of the date
of enactment of this Act, in the Seventh Judicial District in
and for Grand County, State of Utah, commonly known as the
``Southeastern Colorado River General Adjudication'', Civil No.
810704477, conducted pursuant to State law.
(6) Injury to water rights.--The term ``injury to water
rights'' means an interference with, diminution of, or
deprivation of water rights under Federal or State law,
excluding injuries to water quality.
(7) Member.--The term ``member'' means any person who is a
duly enrolled member of the Navajo Nation.
(8) Navajo nation or nation.--The term ``Navajo Nation'' or
``Nation'' means a body politic and federally recognized Indian
nation, as published on the list established under section
104(a) of the Federally Recognized Indian Tribe List Act of
1994 (25 U.S.C. 5131(a)), also known variously as the ``Navajo
Nation'', the ``Navajo Nation of Arizona, New Mexico, & Utah'',
and the ``Navajo Nation of Indians'' and other similar names,
and includes all bands of Navajo Indians and chapters of the
Navajo Nation and all divisions, agencies, officers, and agents
thereof.
(9) Navajo water development projects.--The term ``Navajo
water development projects'' means projects for domestic
municipal water supply, including distribution infrastructure,
and agricultural water conservation, to be constructed, in
whole or in part, using monies from the Navajo Water
Development Projects Account.
(10) Navajo water rights.--The term ``Navajo water rights''
means the Nation's water rights in Utah described in the
agreement and this section.
(11) OM&R.--The term ``OM&R'' means operation, maintenance,
and replacement.
(12) Parties.--The term ``parties'' means the Navajo
Nation, the State, and the United States.
(13) Reservation.--The term ``Reservation'' means, for
purposes of the agreement and this section, the Reservation of
the Navajo Nation in Utah as in existence on the date of
enactment of this Act and depicted on the map attached to the
agreement as Exhibit A, including any parcel of land granted
out of the public domain and held in trust by the United States
entirely for the benefit of the Navajo Nation as of the
enforceability date.
(14) Secretary.--The term ``Secretary'' means the Secretary
of the Interior or a duly authorized representative thereof.
(15) State.--The term ``State'' means the State of Utah and
all officers, agents, departments, and political subdivisions
thereof.
(16) United states.--The term ``United States'' means the
United States of America and all departments, agencies,
bureaus, officers, and agents thereof.
(17) United states acting in its trust capacity.--The term
``United States acting in its trust capacity'' means the United
States acting for the benefit of the Navajo Nation or for the
benefit of allottees.
(c) Ratification of Agreement.--
(1) Approval by congress.--Except to the extent that any
provision of the agreement conflicts with this section,
Congress approves, ratifies, and confirms the agreement
(including any amendments to the agreement that are executed to
make the agreement consistent with this section).
(2) Execution by secretary.--The Secretary is authorized
and directed to promptly execute the agreement to the extent
that the agreement does not conflict with this section,
including--
(A) any exhibits to the agreement requiring the
signature of the Secretary; and
(B) any amendments to the agreement necessary to
make the agreement consistent with this section.
(3) Environmental compliance.--
(A) In general.--In implementing the agreement and
this section, the Secretary shall comply with all
applicable provisions of--
(i) the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.);
(ii) the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.); and
(iii) all other applicable environmental
laws and regulations.
(B) Execution of the agreement.--Execution of the
agreement by the Secretary as provided for in this
section shall not constitute a major Federal action
under the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.).
(d) Navajo Water Rights.--
(1) Confirmation of navajo water rights.--
(A) Quantification.--The Navajo Nation shall have
the right to use water from water sources located
within Utah and adjacent to or encompassed within the
boundaries of the Reservation resulting in depletions
not to exceed 81,500 acre-feet annually as described in
the agreement and as confirmed in the decree entered by
the general stream adjudication court.
(B) Satisfaction of allottee rights.--Depletions
resulting from the use of water on an allotment shall
be accounted for as a depletion by the Navajo Nation
for purposes of depletion accounting under the
agreement, including recognition of--
(i) any water use existing on an allotment
as of the date of enactment of this Act and as
subsequently reflected in the hydrographic
survey report referenced in subsection (f)(2);
(ii) reasonable domestic and stock water
uses put into use on an allotment; and
(iii) any allotment water rights that may
be decreed in the general stream adjudication
or other appropriate forum.
(C) Satisfaction of on-reservation state law-based
water rights.--Depletions resulting from the use of
water on the Reservation pursuant to State law-based
water rights existing as of the date of enactment of
this Act shall be accounted for as depletions by the
Navajo Nation for purposes of depletion accounting
under the agreement.
(D) In general.--The Navajo water rights are
ratified, confirmed, and declared to be valid.
(E) Use.--Any use of the Navajo water rights shall
be subject to the terms and conditions of the agreement
and this section.
(F) Conflict.--In the event of a conflict between
the agreement and this section, the provisions of this
section shall control.
(2) Trust status of navajo water rights.--The Navajo water
rights--
(A) shall be held in trust by the United States for
the use and benefit of the Nation in accordance with
the agreement and this section; and
(B) shall not be subject to forfeiture or
abandonment.
(3) Authority of the nation.--
(A) In general.--The Nation shall have the
authority to allocate, distribute, and lease the Navajo
water rights for any use on the Reservation in
accordance with the agreement, this section, and
applicable Tribal and Federal law.
(B) Off-reservation use.--The Nation may allocate,
distribute, and lease the Navajo water rights for off-
Reservation use in accordance with the agreement,
subject to the approval of the Secretary.
(C) Allottee water rights.--The Nation shall not
object in the general stream adjudication or other
applicable forum to the quantification of reasonable
domestic and stock water uses on an allotment, and
shall administer any water use on the Reservation in
accordance with applicable Federal law, including
recognition of--
(i) any water use existing on an allotment
as of the date of enactment of this Act and as
subsequently reflected in the hydrographic
survey report referenced in subsection (f)(2);
(ii) reasonable domestic and stock water
uses on an allotment; and
(iii) any allotment water rights decreed in
the general stream adjudication or other
appropriate forum.
(4) Effect.--Except as otherwise expressly provided in this
subsection, nothing in this section--
(A) authorizes any action by the Nation against the
United States under Federal, State, Tribal, or local
law; or
(B) alters or affects the status of any action
brought pursuant to section 1491(a) of title 28, United
States Code.
(e) Navajo Trust Accounts.--
(1) Establishment.--The Secretary shall establish a trust
fund, to be known as the ``Navajo Utah Settlement Trust Fund''
(referred to in this section as the ``Trust Fund''), to be
managed, invested, and distributed by the Secretary and to
remain available until expended, consisting of the amounts
deposited in the Trust Fund under paragraph (3), together with
any interest earned on those amounts, for the purpose of
carrying out this section.
(2) Accounts.--The Secretary shall establish in the Trust
Fund the following Accounts (referred to in this subsection as
the ``Trust Fund Accounts''):
(A) The Navajo Water Development Projects Account.
(B) The Navajo OM&R Account.
(3) Deposits.--The Secretary shall deposit in the Trust
Fund Accounts--
(A) in the Navajo Water Development Projects
Account, the amounts made available pursuant to
subsection (f)(1)(A); and
(B) in the Navajo OM&R Account, the amount made
available pursuant to subsection (f)(1)(B).
(4) Management and interest.--
(A) Management.--Upon receipt and deposit of the
funds into the Trust Fund Accounts, the Secretary shall
manage, invest, and distribute all amounts in the Trust
Fund in a manner that is consistent with the investment
authority of the Secretary under--
(i) the first section of the Act of June
24, 1938 (25 U.S.C. 162a);
(ii) the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4001
et seq.); and
(iii) this subsection.
(B) Investment earnings.--In addition to the
deposits under paragraph (3), any investment earnings,
including interest, credited to amounts held in the
Trust Fund are authorized to be appropriated to be used
in accordance with the uses described in paragraph (8).
(5) Availability of amounts.--Amounts appropriated to, and
deposited in, the Trust Fund, including any investment
earnings, shall be made available to the Nation by the
Secretary beginning on the enforceability date and subject to
the uses and restrictions set forth in this subsection.
(6) Withdrawals.--
(A) Withdrawals under the american indian trust
fund management reform act of 1994.--The Nation may
withdraw any portion of the funds in the Trust Fund on
approval by the Secretary of a tribal management plan
submitted by the Nation in accordance with the American
Indian Trust Fund Management Reform Act of 1994 (25
U.S.C. 4001 et seq.).
(i) Requirements.--In addition to the
requirements under the American Indian Trust
Fund Management Reform Act of 1994 (25 U.S.C.
4001 et seq.), the tribal management plan under
this subparagraph shall require that the Nation
shall spend all amounts withdrawn from the
Trust Fund and any investment earnings accrued
through the investments under the Tribal
management plan in accordance with this
section.
(ii) Enforcement.--The Secretary may carry
out such judicial and administrative actions as
the Secretary determines to be necessary to
enforce the Tribal management plan to ensure
that amounts withdrawn by the Nation from the
Trust Fund under this subparagraph are used in
accordance with this section.
(B) Withdrawals under expenditure plan.--The Nation
may submit to the Secretary a request to withdraw funds
from the Trust Fund pursuant to an approved expenditure
plan.
(i) Requirements.--To be eligible to
withdraw funds under an expenditure plan under
this subparagraph, the Nation shall submit to
the Secretary for approval an expenditure plan
for any portion of the Trust Fund that the
Nation elects to withdraw pursuant to this
subparagraph, subject to the condition that the
funds shall be used for the purposes described
in this section.
(ii) Inclusions.--An expenditure plan under
this subparagraph shall include a description
of the manner and purpose for which the amounts
proposed to be withdrawn from the Trust Fund
will be used by the Nation, in accordance with
paragraphs (3) and (8).
(iii) Approval.--On receipt of an
expenditure plan under this subparagraph, the
Secretary shall approve the plan, if the
Secretary determines that the plan--
(I) is reasonable;
(II) is consistent with, and will
be used for, the purposes of this
section; and
(III) contains a schedule which
describes that tasks will be completed
within 18 months of receipt of
withdrawn amounts.
(iv) Enforcement.--The Secretary may carry
out such judicial and administrative actions as
the Secretary determines to be necessary to
enforce an expenditure plan to ensure that
amounts disbursed under this subparagraph are
used in accordance with this section.
(7) Effect of title.--Nothing in this section gives the
Nation the right to judicial review of a determination of the
Secretary regarding whether to approve a Tribal management plan
or an expenditure plan except under subchapter II of chapter 5,
and chapter 7, of title 5, United States Code (commonly known
as the ``Administrative Procedure Act'').
(8) Uses.--Amounts from the Trust Fund shall be used by the
Nation for the following purposes:
(A) The Navajo Water Development Projects Account
shall be used to plan, design, and construct the Navajo
water development projects and for the conduct of
related activities, including to comply with Federal
environmental laws.
(B) The Navajo OM&R Account shall be used for the
operation, maintenance, and replacement of the Navajo
water development projects.
(9) Liability.--The Secretary and the Secretary of the
Treasury shall not be liable for the expenditure or investment
of any amounts withdrawn from the Trust Fund by the Nation
under paragraph (6).
(10) No per capita distributions.--No portion of the Trust
Fund shall be distributed on a per capita basis to any member
of the Nation.
(11) Expenditure reports.--The Navajo Nation shall submit
to the Secretary annually an expenditure report describing
accomplishments and amounts spent from use of withdrawals under
a Tribal management plan or an expenditure plan as described in
this section.
(f) Authorization of Appropriations.--
(1) Authorization.--There are authorized to be appropriated
to the Secretary--
(A) for deposit in the Navajo Water Development
Projects Account of the Trust Fund established under
subsection (e)(2)(A), $198,300,000, which funds shall
be retained until expended, withdrawn, or reverted to
the general fund of the Treasury; and
(B) for deposit in the Navajo OM&R Account of the
Trust Fund established under subsection (e)(2)(B),
$11,100,000, which funds shall be retained until
expended, withdrawn, or reverted to the general fund of
the Treasury.
(2) Implementation costs.--There is authorized to be
appropriated non-trust funds in the amount of $1,000,000 to
assist the United States with costs associated with the
implementation of this section, including the preparation of a
hydrographic survey of historic and existing water uses on the
Reservation and on allotments.
(3) State cost share.--The State shall contribute
$8,000,000 payable to the Secretary for deposit into the Navajo
Water Development Projects Account of the Trust Fund
established under subsection (e)(2)(A) in installments in each
of the 3 years following the execution of the agreement by the
Secretary as provided for in subsection (c)(2).
(4) Fluctuation in costs.--The amount authorized to be
appropriated under paragraph (1) shall be increased or
decreased, as appropriate, by such amounts as may be justified
by reason of ordinary fluctuations in costs occurring after the
date of enactment of this Act as indicated by the Bureau of
Reclamation Construction Cost Index--Composite Trend.
(A) Repetition.--The adjustment process under this
paragraph shall be repeated for each subsequent amount
appropriated until the amount authorized, as adjusted,
has been appropriated.
(B) Period of indexing.--The period of indexing
adjustment for any increment of funding shall end on
the date on which funds are deposited into the Trust
Fund.
(g) Conditions Precedent.--
(1) In general.--The waivers and releases contained in
subsection (h) shall become effective as of the date the
Secretary causes to be published in the Federal Register a
statement of findings that--
(A) to the extent that the agreement conflicts with
this section, the agreement has been revised to conform
with this section;
(B) the agreement, so revised, including waivers
and releases of claims set forth in subsection (h), has
been executed by the parties, including the United
States;
(C) Congress has fully appropriated, or the
Secretary has provided from other authorized sources,
all funds authorized under subsection (f)(1);
(D) the State has enacted any necessary legislation
and provided the funding required under the agreement
and subsection (f)(3); and
(E) the court has entered a final or interlocutory
decree that--
(i) confirms the Navajo water rights
consistent with the agreement and this section;
and
(ii) with respect to the Navajo water
rights, is final and nonappealable.
(2) Expiration date.--If all the conditions precedent
described in paragraph (1) have not been fulfilled to allow the
Secretary's statement of findings to be published in the
Federal Register by October 31, 2030--
(A) the agreement and this section, including
waivers and releases of claims described in those
documents, shall no longer be effective;
(B) any funds that have been appropriated pursuant
to subsection (f) but not expended, including any
investment earnings on funds that have been
appropriated pursuant to such subsection, shall
immediately revert to the general fund of the Treasury;
and
(C) any funds contributed by the State pursuant to
subsection (f)(3) but not expended shall be returned
immediately to the State.
(3) Extension.--The expiration date set forth in paragraph
(2) may be extended if the Navajo Nation, the State, and the
United States (acting through the Secretary) agree that an
extension is reasonably necessary.
(h) Waivers and Releases.--
(1) In general.--
(A) Waiver and release of claims by the nation and
the united states acting in its capacity as trustee for
the nation.--Subject to the retention of rights set
forth in paragraph (3), in return for confirmation of
the Navajo water rights and other benefits set forth in
the agreement and this section, the Nation, on behalf
of itself and the members of the Nation (other than
members in their capacity as allottees), and the United
States, acting as trustee for the Nation and members of
the Nation (other than members in their capacity as
allottees), are authorized and directed to execute a
waiver and release of--
(i) all claims for water rights within Utah
based on any and all legal theories that the
Navajo Nation or the United States acting in
its trust capacity for the Nation, asserted, or
could have asserted, at any time in any
proceeding, including to the general stream
adjudication, up to and including the
enforceability date, except to the extent that
such rights are recognized in the agreement and
this section; and
(ii) all claims for damages, losses, or
injuries to water rights or claims of
interference with, diversion, or taking of
water rights (including claims for injury to
lands resulting from such damages, losses,
injuries, interference with, diversion, or
taking of water rights) within Utah against the
State, or any person, entity, corporation, or
municipality, that accrued at any time up to
and including the enforceability date.
(2) Claims by the navajo nation against the united
states.--The Navajo Nation, on behalf of itself (including in
its capacity as allottee) and its members (other than members
in their capacity as allottees), shall execute a waiver and
release of--
(A) all claims the Navajo Nation may have against
the United States relating in any manner to claims for
water rights in, or water of, Utah that the United
States acting in its trust capacity for the Nation
asserted, or could have asserted, in any proceeding,
including the general stream adjudication;
(B) all claims the Navajo Nation may have against
the United States relating in any manner to damages,
losses, or injuries to water, water rights, land, or
other resources due to loss of water or water rights
(including damages, losses, or injuries to hunting,
fishing, gathering, or cultural rights due to loss of
water or water rights; claims relating to interference
with, diversion, or taking of water; or claims relating
to failure to protect, acquire, replace, or develop
water or water rights) within Utah that first accrued
at any time up to and including the enforceability
date;
(C) all claims the Nation may have against the
United States relating in any manner to the litigation
of claims relating to the Nation's water rights in
proceedings in Utah; and
(D) all claims the Nation may have against the
United States relating in any manner to the
negotiation, execution, or adoption of the agreement or
this section.
(3) Reservation of rights and retention of claims by the
navajo nation and the united states.--Notwithstanding the
waivers and releases authorized in this section, the Navajo
Nation, and the United States acting in its trust capacity for
the Nation, retain--
(A) all claims for injuries to and the enforcement
of the agreement and the final or interlocutory decree
entered in the general stream adjudication, through
such legal and equitable remedies as may be available
in the decree court or the Federal District Court for
the District of Utah;
(B) all rights to use and protect water rights
acquired after the enforceability date;
(C) all claims relating to activities affecting the
quality of water, including any claims under the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq.)
(including claims for damages to natural resources),
the Safe Drinking Water Act (42 U.S.C. 300f et seq.),
and the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.), the regulations implementing those Acts,
and the common law;
(D) all claims for water rights, and claims for
injury to water rights, in States other than the State
of Utah;
(E) all claims, including environmental claims,
under any laws (including regulations and common law)
relating to human health, safety, or the environment;
and
(F) all rights, remedies, privileges, immunities,
and powers not specifically waived and released
pursuant to the agreement and this section.
(4) Effect.--Nothing in the agreement or this section--
(A) affects the ability of the United States acting
in its sovereign capacity to take actions authorized by
law, including any laws relating to health, safety, or
the environment, including the Comprehensive
Environmental Response, Compensation, and Liability Act
of 1980 (42 U.S.C. 9601 et seq.), the Safe Drinking
Water Act (42 U.S.C. 300f et seq.), the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.), the
Solid Waste Disposal Act (42 U.S.C. 6901 et seq.), and
the regulations implementing those laws;
(B) affects the ability of the United States to
take actions in its capacity as trustee for any other
Indian Tribe or allottee;
(C) confers jurisdiction on any State court to--
(i) interpret Federal law regarding health,
safety, or the environment or determine the
duties of the United States or other parties
pursuant to such Federal law; and
(ii) conduct judicial review of Federal
agency action; or
(D) modifies, conflicts with, preempts, or
otherwise affects--
(i) the Boulder Canyon Project Act (43
U.S.C. 617 et seq.);
(ii) the Boulder Canyon Project Adjustment
Act (43 U.S.C. 618 et seq.);
(iii) the Act of April 11, 1956 (commonly
known as the ``Colorado River Storage Project
Act'') (43 U.S.C. 620 et seq.);
(iv) the Colorado River Basin Project Act
(43 U.S.C. 1501 et seq.);
(v) the Treaty between the United States of
America and Mexico respecting utilization of
waters of the Colorado and Tijuana Rivers and
of the Rio Grande, signed at Washington
February 3, 1944 (59 Stat. 1219);
(vi) the Colorado River Compact of 1922, as
approved by the Presidential Proclamation of
June 25, 1929 (46 Stat. 3000); and
(vii) the Upper Colorado River Basin
Compact as consented to by the Act of April 6,
1949 (63 Stat. 31, chapter 48).
(5) Tolling of claims.--
(A) In general.--Each applicable period of
limitation and time-based equitable defense relating to
a claim waived by the Navajo Nation described in this
subsection shall be tolled for the period beginning on
the date of enactment of this Act and ending on the
enforceability date.
(B) Effect of paragraph.--Nothing in this paragraph
revives any claim or tolls any period of limitation or
time-based equitable defense that expired before the
date of enactment of this Act.
(C) Limitation.--Nothing in this subsection
precludes the tolling of any period of limitations or
any time-based equitable defense under any other
applicable law.
(i) Miscellaneous Provisions.--
(1) Precedent.--Nothing in this section establishes any
standard for the quantification or litigation of Federal
reserved water rights or any other Indian water claims of any
other Indian Tribe in any other judicial or administrative
proceeding.
(2) Other indian tribes.--Nothing in the agreement or this
section shall be construed in any way to quantify or otherwise
adversely affect the water rights, claims, or entitlements to
water of any Indian Tribe, band, or community, other than the
Navajo Nation.
(j) Relation to Allottees.--
(1) No effect on claims of allottees.--Nothing in this
section or the agreement shall affect the rights or claims of
allottees, or the United States, acting in its capacity as
trustee for or on behalf of allottees, for water rights or
damages related to lands allotted by the United States to
allottees, except as provided in subsection (d)(1)(B).
(2) Relationship of decree to allottees.--Allottees, or the
United States, acting in its capacity as trustee for allottees,
are not bound by any decree entered in the general stream
adjudication confirming the Navajo water rights and shall not
be precluded from making claims to water rights in the general
stream adjudication. Allottees, or the United States, acting in
its capacity as trustee for allottees, may make claims and such
claims may be adjudicated as individual water rights in the
general stream adjudication.
(k) Antideficiency.--The United States shall not be liable for any
failure to carry out any obligation or activity authorized by this
section (including any obligation or activity under the agreement) if
adequate appropriations are not provided expressly by Congress to carry
out the purposes of this section.
SEC. 5. SHARING ARRANGEMENTS WITH FEDERAL AGENCIES.
Section 405 of the Indian Health Care Improvement Act (25 U.S.C.
1645) is amended--
(1) in subsection (a)(1), by inserting ``urban Indian
organizations,'' before ``and tribal organizations''; and
(2) in subsection (c)--
(A) by inserting ``urban Indian organization,''
before ``or tribal organization''; and
(B) by inserting ``an urban Indian organization,''
before ``or a tribal organization''.
SEC. 6. AMENDMENT TO THE INDIAN HEALTH CARE IMPROVEMENT ACT.
Section 409 of the Indian Health Care Improvement Act (25 U.S.C.
1647b) is amended by inserting ``or the Tribally Controlled Schools Act
of 1988 (25 U.S.C. 2501 et seq.)'' after ``(25 U.S.C. 450 et seq.)''.
Passed the Senate June 4, 2020.
Attest:
Secretary.
116th CONGRESS
2d Session
S. 886
_______________________________________________________________________
AN ACT
To amend the Omnibus Public Land Management Act of 2009 to make the
Reclamation Water Settlements Fund permanent.
Indian Water Rights Settlement Extension Act
#886 | S Congress #116
Policy Area: Water Resources Development
Last Action: Held at the desk. (6/15/2020)
Bill Text Source: Congress.gov
Summary and Impacts
Original Text