PUBLIC LAW 108–451—DEC. 10, 2004

ARIZONA WATER SETTLEMENTS ACT

118 STAT. 3478 PUBLIC LAW 108–451—DEC. 10, 2004

Public Law 108–451

108th Congress

An Act

To provide for adjustments to the Central Arizona Project in Arizona, to authorize

the Gila River Indian Community water rights settlement, to reauthorize and

amend the Southern Arizona Water Rights Settlement Act of 1982, and for other

purposes.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) SHORT TITLE.—This Act may be cited as the ‘‘Arizona Water

Settlements Act’’.

(b) TABLE OF CONTENTS.—The table of contents of this Act

is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Definitions.

Sec. 3. Arbitration.

Sec. 4. Antideficiency.

TITLE I—CENTRAL ARIZONA PROJECT SETTLEMENT

Sec. 101. Short title.

Sec. 102. Findings.

Sec. 103. General permissible uses of the Central Arizona Project.

Sec. 104. Allocation of Central Arizona Project water.

Sec. 105. Firming of Central Arizona Project Indian water.

Sec. 106. Acquisition of agricultural priority water.

Sec. 107. Lower Colorado River Basin Development Fund.

Sec. 108. Effect.

Sec. 109. Repeal.

Sec. 110. Authorization of appropriations.

Sec. 111. Repeal on failure of enforceability date under title II.

TITLE II—GILA RIVER INDIAN COMMUNITY WATER RIGHTS SETTLEMENT

Sec. 201. Short title.

Sec. 202. Purposes.

Sec. 203. Approval of the Gila River Indian Community Water Rights Settlement

Agreement.

Sec. 204. Water rights.

Sec. 205. Community water delivery contract amendments.

Sec. 206. Satisfaction of claims.

Sec. 207. Waiver and release of claims.

Sec. 208. Gila River Indian Community Water OM&R Trust Fund.

Sec. 209. Subsidence remediation program.

Sec. 210. After-acquired trust land.

Sec. 211. Reduction of water rights.

Sec. 212. New Mexico Unit of the Central Arizona Project.

Sec. 213. Miscellaneous provisions.

Sec. 214. Authorization of appropriations.

Sec. 215. Repeal on failure of enforceability date.

TITLE III—SOUTHERN ARIZONA WATER RIGHTS SETTLEMENT

Sec. 301. Southern Arizona water rights settlement.

Sec. 302. Southern Arizona water rights settlement effective date.

43 USC 1501

note.

Arizona Water

Settlements Act.

Dec. 10, 2004

[S. 437]

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3479

TITLE IV—SAN CARLOS APACHE TRIBE WATER RIGHTS SETTLEMENT

Sec. 401. Effect of titles I, II, and III.

Sec. 402. Annual report.

Sec. 403. Authorization of appropriations.

SEC. 2. DEFINITIONS.

In titles I and II:

(1) ACRE-FEET.—The term ‘‘acre-feet’’ means acre-feet per

year.

(2) AFTER-ACQUIRED TRUST LAND.—The term ‘‘afteracquired trust land’’ means land that—

(A) is located—

(i) within the State; but

(ii) outside the exterior boundaries of the Reservation; and

(B) is taken into trust by the United States for the

benefit of the Community after the enforceability date.

(3) AGRICULTURAL PRIORITY WATER.—The term ‘‘agricultural priority water’’ means Central Arizona Project non-Indian

agricultural priority water, as defined in the Gila River agreement.

(4) ALLOTTEE.—The term ‘‘allottee’’ means a person who

holds a beneficial real property interest in an Indian allotment

that is—

(A) located within the Reservation; and

(B) held in trust by the United States.

(5) ARIZONA INDIAN TRIBE.—The term ‘‘Arizona Indian

tribe’’ means an Indian tribe (as defined in section 4 of the

Indian Self-Determination and Education Assistance Act (25

U.S.C. 450b)) that is located in the State.

(6) ASARCO.—The term ‘‘Asarco’’ means Asarco Incorporated, a New Jersey corporation of that name, and its subsidiaries operating mining operations in the State.

(7) CAP CONTRACTOR.—The term ‘‘CAP contractor’’ means

a person or entity that has entered into a long-term contract

(as that term is used in the repayment stipulation) with the

United States for delivery of water through the CAP system.

(8) CAP OPERATING AGENCY.—The term ‘‘CAP operating

agency’’ means the entity or entities authorized to assume

responsibility for the care, operation, maintenance, and replacement of the CAP system.

(9) CAP REPAYMENT CONTRACT.—

(A) IN GENERAL.—The term ‘‘CAP repayment contract’’

means the contract dated December 1, 1988 (Contract No.

14–0906–09W–09245, Amendment No. 1) between the

United States and the Central Arizona Water Conservation

District for the delivery of water and the repayment of

costs of the Central Arizona Project.

(B) INCLUSIONS.—The term ‘‘CAP repayment contract’’

includes all amendments to and revisions of that contract.

(10) CAP SUBCONTRACTOR.—The term ‘‘CAP subcontractor’’

means a person or entity that has entered into a long-term

subcontract (as that term is used in the repayment stipulation)

with the United States and the Central Arizona Water Conservation District for the delivery of water through the CAP

system.

(11) CAP SYSTEM.—The term ‘‘CAP system’’ means—

(A) the Mark Wilmer Pumping Plant;

118 STAT. 3480 PUBLIC LAW 108–451—DEC. 10, 2004

(B) the Hayden-Rhodes Aqueduct;

(C) the Fannin-McFarland Aqueduct;

(D) the Tucson Aqueduct;

(E) the pumping plants and appurtenant works of the

Central Arizona Project aqueduct system that are associated with the features described in subparagraphs (A)

through (D); and

(F) any extensions of, additions to, or replacements

for the features described in subparagraphs (A) through

(E).

(12) CENTRAL ARIZONA PROJECT.—The term ‘‘Central

Arizona Project’’ means the reclamation project authorized and

constructed by the United States in accordance with title III

of the Colorado River Basin Project Act (43 U.S.C. 1521 et

seq.).

(13) CENTRAL ARIZONA WATER CONSERVATION DISTRICT.—

The term ‘‘Central Arizona Water Conservation District’’ means

the political subdivision of the State that is the contractor

under the CAP repayment contract.

(14) CITIES.—The term ‘‘Cities’’ means the cities of Chandler, Glendale, Goodyear, Mesa, Peoria, Phoenix, and Scottsdale, Arizona.

(15) COMMUNITY.—The term ‘‘Community’’ means the Gila

River Indian Community, a government composed of members

of the Pima Tribe and the Maricopa Tribe and organized under

section 16 of the Act of June 18, 1934 (25 U.S.C. 476).

(16) COMMUNITY CAP WATER.—The term ‘‘Community CAP

water’’ means water to which the Community is entitled under

the Community water delivery contract.

(17) COMMUNITY REPAYMENT CONTRACT.—

(A) IN GENERAL.—The term ‘‘Community repayment

contract’’ means Contract No. 6–0907–0903–09W0345

between the United States and the Community dated July

20, 1998, providing for the construction of water delivery

facilities on the Reservation.

(B) INCLUSIONS.—The term ‘‘Community repayment

contract’’ includes any amendments to the contract

described in subparagraph (A).

(18) COMMUNITY WATER DELIVERY CONTRACT.—

(A) IN GENERAL.—The term ‘‘Community water delivery

contract’’ means Contract No. 3–0907–0930–09W0284

between the Community and the United States dated

October 22, 1992.

(B) INCLUSIONS.—The term ‘‘Community water delivery

contract’’ includes any amendments to the contract

described in subparagraph (A).

(19) CRR PROJECT WORKS.—

(A) IN GENERAL.—The term ‘‘CRR project works’’ means

the portions of the San Carlos Irrigation Project located

on the Reservation.

(B) INCLUSION.—The term ‘‘CRR Project works’’

includes the portion of the San Carlos Irrigation Project

known as the ‘‘Southside Canal’’, from the point at which

the Southside Canal connects with the Pima Canal to the

boundary of the Reservation.

(20) DIRECTOR.—The term ‘‘Director’’ means—

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3481

(A) the Director of the Arizona Department of Water

Resources; or

(B) with respect to an action to be carried out under

this title, a State official or agency designated by the Governor or the State legislature.

(21) ENFORCEABILITY DATE.—The term ‘‘enforceability date’’

means the date on which the Secretary publishes in the Federal

Register the statement of findings described in section 207(c).

(22) FEE LAND.—The term ‘‘fee land’’ means land, other

than off-Reservation trust land, owned by the Community outside the exterior boundaries of the Reservation as of December

31, 2002.

(23) FIXED OM&R CHARGE.—The term ‘‘fixed OM&R charge’’

has the meaning given the term in the repayment stipulation.

(24) FRANKLIN IRRIGATION DISTRICT.—The term ‘‘Franklin

Irrigation District’’ means the entity of that name that is a

political subdivision of the State and organized under the laws

of the State.

(25) GILA RIVER ADJUDICATION PROCEEDINGS.—The term

‘‘Gila River adjudication proceedings’’ means the action pending

in the Superior Court of the State of Arizona in and for the

County of Maricopa styled ‘‘In Re the General Adjudication

of All Rights To Use Water In The Gila River System and

Source’’ W–091 (Salt), W–092 (Verde), W–093 (Upper Gila),

W–094 (San Pedro) (Consolidated).

(26) GILA RIVER AGREEMENT.—

(A) IN GENERAL.—The term ‘‘Gila River agreement’’

means the agreement entitled the ‘‘Gila River Indian

Community Water Rights Settlement Agreement’’, dated

February 4, 2003.

(B) INCLUSIONS.—The term ‘‘Gila River agreement’’

includes—

(i) all exhibits to that agreement (including the

New Mexico Risk Allocation Agreement, which is also

an exhibit to the UVD Agreement); and

(ii) any amendment to that agreement or to an

exhibit to that agreement made or added pursuant

to that agreement consistent with section 203(a) or

as approved by the Secretary.

(27) GILA VALLEY IRRIGATION DISTRICT.—The term ‘‘Gila

Valley Irrigation District’’ means the entity of that name that

is a political subdivision of the State and organized under

the laws of the State.

(28) GLOBE EQUITY DECREE.—

(A) IN GENERAL.—The term ‘‘Globe Equity Decree’’

means the decree dated June 29, 1935, entered in United

States of America v. Gila Valley Irrigation District, Globe

Equity No. 59, et al., by the United States District Court

for the District of Arizona.

(B) INCLUSIONS.—The term ‘‘Globe Equity Decree’’

includes all court orders and decisions supplemental to

that decree.

(29) HAGGARD DECREE.—

(A) IN GENERAL.—The term ‘‘Haggard Decree’’ means

the decree dated June 11, 1903, entered in United States

of America, as guardian of Chief Charley Juan Saul and

Cyrus Sam, Maricopa Indians and 400 other Maricopa

118 STAT. 3482 PUBLIC LAW 108–451—DEC. 10, 2004

Indians similarly situated v. Haggard, et al., Cause No.

19, in the District Court for the Third Judicial District

of the Territory of Arizona, in and for the County of Maricopa.

(B) INCLUSIONS.—The term ‘‘Haggard Decree’’ includes

all court orders and decisions supplemental to that decree.

(30) INCLUDING.—The term ‘‘including’’ has the same

meaning as the term ‘‘including, but not limited to’’.

(31) INJURY TO WATER QUALITY.—The term ‘‘injury to water

quality’’ means any contamination, diminution, or deprivation

of water quality under Federal, State, or other law.

(32) INJURY TO WATER RIGHTS.— (A) IN GENERAL.—The term ‘‘injury to water rights’’

means an interference with, diminution of, or deprivation

of water rights under Federal, State, or other law.

(B) INCLUSION.—The term ‘‘injury to water rights’’

includes a change in the underground water table and

any effect of such a change.

(C) EXCLUSION.—The term ‘‘injury to water rights’’ does

not include subsidence damage or injury to water quality.

(33) LOWER COLORADO RIVER BASIN DEVELOPMENT FUND.—

The term ‘‘Lower Colorado River Basin Development Fund’’

means the fund established by section 403 of the Colorado

River Basin Project Act (43 U.S.C. 1543).

(34) MASTER AGREEMENT.—The term ‘‘master agreement’’

means the agreement entitled ‘‘Arizona Water Settlement

Agreement’’ among the Director, the Central Arizona Water

Conservation District, and the Secretary, dated August 16,

2004.

(35) NM CAP ENTITY.—The term ‘‘NM CAP entity’’ means

the entity or entities that the State of New Mexico may

authorize to assume responsibility for the design, construction,

operation, maintenance, and replacement of the New Mexico

Unit.

(36) NEW MEXICO CONSUMPTIVE USE AND FORBEARANCE

AGREEMENT.—

(A) IN GENERAL.—The term ‘‘New Mexico Consumptive

Use and Forbearance Agreement’’ means that agreement

entitled the ‘‘New Mexico Consumptive Use and Forbearance Agreement,’’ entered into by and among the United

States, the Community, the San Carlos Irrigation and

Drainage District, and all of the signatories to the UVD

Agreement, and approved by the State of New Mexico,

and authorized, ratified, and approved by section 212(b).

(B) INCLUSIONS.—The ‘‘New Mexico Consumptive Use

and Forbearance Agreement’’ includes—

(i) all exhibits to that agreement (including the

New Mexico Risk Allocation agreement, which is also

an exhibit to the UVD agreement); and

(ii) any amendment to that agreement made or

added pursuant to that agreement.

(37) NEW MEXICO UNIT.—The term ‘‘New Mexico Unit’’

means that unit or units of the Central Arizona Project authorized by sections 301(a)(4) and 304 of the Colorado River Basin

Project Act (43 U.S.C. 1521(a)(4), 1524) (as amended by section

212).

(38) NEW MEXICO UNIT AGREEMENT.—

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3483

(A) IN GENERAL.—The term ‘‘New Mexico Unit Agreement’’ means that agreement entitled the ‘‘New Mexico

Unit Agreement,’’ to be entered into by and between the

United States and the NM CAP entity upon notice to

the Secretary from the State of New Mexico that the State

of New Mexico intends to have the New Mexico Unit constructed or developed.

(B) INCLUSIONS.—The ‘‘New Mexico Unit Agreement’’

includes—

(i) all exhibits to that agreement; and

(ii) any amendment to that agreement made or

added pursuant to that agreement.

(39) OFF-RESERVATION TRUST LAND.—The term ‘‘off-Reservation trust land’’ means land outside the exterior boundaries

of the Reservation that is held in trust by the United States

for the benefit of the Community as of the enforceability date.

(40) PHELPS DODGE.—The term ‘‘Phelps Dodge’’ means the

Phelps Dodge Corporation, a New York corporation of that

name, and Phelps Dodge’s subsidiaries (including Phelps Dodge

Morenci, Inc., a Delaware corporation of that name), and Phelps

Dodge’s successors or assigns.

(41) REPAYMENT STIPULATION.—The term ‘‘repayment

stipulation’’ means the Revised Stipulation Regarding a Stay

of Litigation, Resolution of Issues During the Stay, and for

Ultimate Judgment Upon the Satisfaction of Conditions, filed

with the United States District Court for the District of Arizona

in Central Arizona Water Conservation District v. United

States, et al., No. CIV 95–09625–09TUC–09WDB(EHC), No.

CIV 95–091720–09PHX–09EHC (Consolidated Action), and that

court’s order dated April 28, 2003, and any amendments or

revisions thereto.

(42) RESERVATION.—

(A) IN GENERAL.—Except as provided in sections 207(d)

and 210(d), the term ‘‘Reservation’’ means the land located

within the exterior boundaries of the reservation created

under sections 3 and 4 of the Act of February 28, 1859

(11 Stat. 401, chapter LXVI) and Executive Orders of

August 31, 1876, June 14, 1879, May 5, 1882, November

15, 1883, July 31, 1911, June 2, 1913, August 27, 1914,

and July 19, 1915.

(B) EXCLUSION.—The term ‘‘Reservation’’ does not

include the land located in sections 16 and 36, Township

4 South, Range 4 East, Salt and Gila River Base and

Meridian.

(43) ROOSEVELT HABITAT CONSERVATION PLAN.—The term

‘‘Roosevelt Habitat Conservation Plan’’ means the habitat conservation plan approved by the United States Fish and Wildlife

Service under section 10(a)(1)(B) of the Endangered Species

Act of 1973 (16 U.S.C. 1539(a)(1)(B)) for the incidental taking

of endangered, threatened, and candidate species resulting from

the continued operation by the Salt River Project of Roosevelt

Dam and Lake, near Phoenix, Arizona.

(44) ROOSEVELT WATER CONSERVATION DISTRICT.—The term

‘‘Roosevelt Water Conservation District’’ means the entity of

that name that is a political subdivision of the State and

an irrigation district organized under the law of the State.

118 STAT. 3484 PUBLIC LAW 108–451—DEC. 10, 2004

(45) SAFFORD.—The term ‘‘Safford’’ means the city of

Safford, Arizona.

(46) SALT RIVER PROJECT.—The term ‘‘Salt River Project’’

means the Salt River Project Agricultural Improvement and

Power District, a political subdivision of the State, and the

Salt River Valley Water Users’ Association, an Arizona Territorial corporation.

(47) SAN CARLOS APACHE TRIBE.—The term ‘‘San Carlos

Apache Tribe’’ means the San Carlos Apache Tribe, a tribe

of Apache Indians organized under Section 16 of the Indian

Reorganization Act of June 18, 1934, 48 Stat. 987 (25 U.S.C.

476).

(48) SAN CARLOS IRRIGATION AND DRAINAGE DISTRICT.—

The term ‘‘San Carlos Irrigation and Drainage District’’ means

the entity of that name that is a political subdivision of the

State and an irrigation and drainage district organized under

the laws of the State.

(49) SAN CARLOS IRRIGATION PROJECT.—

(A) IN GENERAL.—The term ‘‘San Carlos Irrigation

Project’’ means the San Carlos irrigation project authorized

under the Act of June 7, 1924 (43 Stat. 475).

(B) INCLUSIONS.—The term ‘‘San Carlos Irrigation

Project’’ includes any amendments and supplements to the

Act described in subparagraph (A).

(50) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of the Interior.

(51) SPECIAL HOT LANDS.—The term ‘‘special hot lands’’

has the meaning given the term in subparagraph 2.34 of the

UVD agreement.

(52) STATE.—The term ‘‘State’’ means the State of Arizona.

(53) SUBCONTRACT.—

(A) IN GENERAL.—The term ‘‘subcontract’’ means a Central Arizona Project water delivery subcontract.

(B) INCLUSION.—The term ‘‘subcontract’’ includes an

amendment to a subcontract.

(54) SUBSIDENCE DAMAGE.—The term ‘‘subsidence damage’’

means injury to land, water, or other real property resulting

from the settling of geologic strata or cracking in the surface

of the Earth of any length or depth, which settling or cracking

is caused by the pumping of underground water.

(55) TBI ELIGIBLE ACRES.—The term ‘‘TBI eligible acres’’

has the meaning given the term in subparagraph 2.37 of the

UVD agreement.

(56) UNCONTRACTED MUNICIPAL AND INDUSTRIAL WATER.—

The term ‘‘uncontracted municipal and industrial water’’ means

Central Arizona Project municipal and industrial priority water

that is not subject to subcontract on the date of enactment

of this Act.

(57) UV DECREED ACRES.—

(A) IN GENERAL.—The term ‘‘UV decreed acres’’ means

the land located upstream and to the east of the Coolidge

Dam for which water may be diverted pursuant to the

Globe Equity Decree.

(B) EXCLUSION.—The term ‘‘UV decreed acres’’ does

not include the reservation of the San Carlos Apache Tribe.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3485

(58) UV DECREED WATER RIGHTS.—The term ‘‘UV decreed

water rights’’ means the right to divert water for use on UV

decreed acres in accordance with the Globe Equity Decree.

(59) UV IMPACT ZONE.—The term ‘‘UV impact zone’’ has

the meaning given the term in subparagraph 2.47 of the UVD

agreement.

(60) UV SUBJUGATED LAND.—The term ‘‘UV subjugated

land’’ has the meaning given the term in subparagraph 2.50

of the UVD agreement.

(61) UVD AGREEMENT.—The term ‘‘UVD agreement’’ means

the agreement among the Community, the United States, the

San Carlos Irrigation and Drainage District, the Franklin

Irrigation District, the Gila Valley Irrigation District, Phelps

Dodge, and other parties located in the upper valley of the

Gila River, dated September 2, 2004.

(62) UV SIGNATORIES PARTIES.—The term ‘‘UV signatories’’

means the parties to the UVD agreement other than the United

States, the San Carlos Irrigation and Drainage District, and

the Community.

(63) WATER OM&R FUND.—The term ‘‘Water OM&R Fund’’

means the Gila River Indian Community Water OM&R Trust

Fund established by section 208.

(64) WATER RIGHT.—The term ‘‘water right’’ means any

right in or to groundwater, surface water, or effluent under

Federal, State, or other law.

(65) WATER RIGHTS APPURTENANT TO NEW MEXICO 381

ACRES.—The term ‘‘water rights appurtenant to New Mexico

381 acres’’ means the water rights—

(A) appurtenant to the 380.81 acres described in the

decree in Arizona v. California, 376 U.S. 340, 349 (1964);

and

(B) appurtenant to other land, or for other uses, for

which the water rights described in subparagraph (A) may

be modified or used in accordance with that decree.

(66) WATER RIGHTS FOR NEW MEXICO DOMESTIC PURPOSES.—

The term ‘‘water rights for New Mexico domestic purposes’’

means the water rights for domestic purposes of not more

than 265 acre-feet of water for consumptive use described in

paragraph IV(D)(2) of the decree in Arizona v. California, 376

U.S. 340, 350 (1964).

(67) 1994 BIOLOGICAL OPINION.—The term ‘‘1994 biological

opinion’’ means the biological opinion, numbered 2–21–90–F–

119, and dated April 15, 1994, relating to the transportation

and delivery of Central Arizona Project water to the Gila River

basin.

(68) 1996 BIOLOGICAL OPINION.—The term ‘‘1996 biological

opinion’’ means the biological opinion, numbered 2–21–95–F–

462 and dated July 23, 1996, relating to the impacts of modifying Roosevelt Dam on the southwestern willow flycatcher.

(69) 1999 BIOLOGICAL OPINION.—The term ‘‘1999 biological

opinion’’ means the draft biological opinion numbered 2–21–

91–F–706, and dated May 1999, relating to the impacts of

the Central Arizona Project on Gila Topminnow in the Santa

Cruz River basin through the introduction and spread of nonnative aquatic species.

118 STAT. 3486 PUBLIC LAW 108–451—DEC. 10, 2004

SEC. 3. ARBITRATION.

(a) NO PARTICIPATION BY THE UNITED STATES.—

(1) IN GENERAL.—No arbitration decision rendered pursuant to subparagraph 12.1 of the UVD agreement or exhibit

20.1 of the Gila River agreement (including the joint control

board agreement attached to exhibit 20.1) shall be considered

invalid solely because the United States failed or refused to

participate in such arbitration proceedings that resulted in

such arbitration decision, so long as the matters in arbitration

under subparagraph 12.1 of the UVD agreement or exhibit

20.1 of the Gila River Agreement concern aspects of the water

rights of the Community, the San Carlos Irrigation Project,

or the Miscellaneous Flow Lands (as defined in subparagraph

2.18A of the UVD agreement) and not the water rights of

the United States in its own right, any other rights of the

United States, or the water rights or any other rights of the

United States acting on behalf of or for the benefit of another

tribe.

(2) ARBITRATION INEFFECTIVE.—If an issue otherwise subject to arbitration under subparagraph 12.1 of the UVD agreement or exhibit 20.1 of the Gila River Agreement cannot be

arbitrated or if an arbitration decision will not be effective

because the United States cannot or will not participate in

the arbitration, then the issue shall be submitted for decision

to a court of competent jurisdiction, but not a court of the

Community.

(b) PARTICIPATION BY THE SECRETARY.—Notwithstanding any

provision of any agreement, exhibit, attachment, or other document

ratified by this Act, if the Secretary is required to enter arbitration

pursuant to this Act or any such document, the Secretary shall

follow the procedures for arbitration established by chapter 5 of

title 5, United States Code.

SEC. 4. ANTIDEFICIENCY.

The United States shall not be liable for failure to carry out

any obligation or activity required by this Act, including all titles

and all agreements or exhibits ratified or confirmed by this Act,

funded by—

(1) the Lower Basin Development Fund established by section 403 of the Colorado River Basin Project Act (43 U.S.C.

1543), if there are not enough monies in that fund to fulfill

those obligations or carry out those activities; or

(2) appropriations, if appropriations are not provided by

Congress.

TITLE I—CENTRAL ARIZONA PROJECT

SETTLEMENT

SEC. 101. SHORT TITLE.

This title may be cited as the ‘‘Central Arizona Project Settlement Act of 2004’’.

SEC. 102. FINDINGS.

Congress finds that—

43 USC 1501

note.

Central Arizona

Project

Settlement Act of

2004.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3487

(1) the water provided by the Central Arizona Project to

Maricopa, Pinal, and Pima Counties in the State of Arizona,

is vital to citizens of the State; and

(2) an agreement on the allocation of Central Arizona

Project water among interested persons, including Federal and

State interests, would provide important benefits to the Federal

Government, the State of Arizona, Arizona Indian Tribes, and

the citizens of the State.

SEC. 103. GENERAL PERMISSIBLE USES OF THE CENTRAL ARIZONA

PROJECT.

In accordance with the CAP repayment contract, the Central

Arizona Project may be used to transport nonproject water for—

(1) domestic, municipal, fish and wildlife, and industrial

purposes; and

(2) any purpose authorized under the Colorado River Basin

Project Act (43 U.S.C. 1501 et seq.).

SEC. 104. ALLOCATION OF CENTRAL ARIZONA PROJECT WATER.

(a) NON-INDIAN AGRICULTURAL PRIORITY WATER.— (1) REALLOCATION TO ARIZONA INDIAN TRIBES.— (A) IN GENERAL.—The Secretary shall reallocate

197,500 acre-feet of agricultural priority water made available pursuant to the master agreement for use by Arizona

Indian tribes, of which—

(i) 102,000 acre-feet shall be reallocated to the

Gila River Indian Community;

(ii) 28,200 acre-feet shall be reallocated to the

Tohono O’odham Nation; and

(iii) subject to the conditions specified in subparagraph (B), 67,300 acre-feet shall be reallocated to

Arizona Indian tribes.

(B) CONDITIONS.—The reallocation of agricultural priority water under subparagraph (A)(iii) shall be subject

to the conditions that—

(i) such water shall be used to resolve Indian water

claims in Arizona, and may be allocated by the Secretary to Arizona Indian Tribes in fulfillment of future

Arizona Indian water rights settlement agreements

approved by an Act of Congress. In the absence of

an Arizona Indian water rights settlement that is

approved by an Act of Congress after the date of enactment of this Act, the Secretary shall not allocate any

such water until December 31, 2030. Any allocations

made by the Secretary after such date shall be accompanied by a certification that the Secretary is making

the allocation in order to assist in the resolution of

an Arizona Indian water right claim. Any such water

allocated to an Arizona Indian Tribe pursuant to a

water delivery contract with the Secretary under this

clause shall be counted on an acre-foot per acre-foot

basis against any claim to water for that Tribe’s reservation;

(ii) notwithstanding clause (i), the Secretary shall

retain 6,411 acre-feet of water for use for a future

water rights settlement agreement approved by an Act

of Congress that settles the Navajo Nation’s claims

to water in Arizona. If Congress does not approve

Effective date.

118 STAT. 3488 PUBLIC LAW 108–451—DEC. 10, 2004

this settlement before December 31, 2030, the 6,411

acre-feet of CAP water shall be available to the Secretary under clause (i); and

(iii) the agricultural priority water shall not, without specific authorization by Act of Congress, be leased,

exchanged, forborne, or otherwise transferred by an

Arizona Indian tribe for any direct or indirect use

outside the reservation of the Arizona Indian tribe.

(C) REPORT.—The Secretary, in consultation with

Arizona Indian tribes and the State, shall prepare a report

for Congress by December 31, 2016, that assesses whether

the potential benefits of subparagraph (A) are being conveyed to Arizona Indian tribes pursuant to water rights

settlements enacted subsequent to this Act. For those

Arizona Indian tribes that have not yet settled water rights

claims, the Secretary shall describe whether any active

negotiations are taking place, and identify any critical

water needs that exist on the reservation of each such

Arizona Indian tribe. The Secretary shall also identify and

report on the use of unused quantities of agricultural priority water made available to Arizona Indian tribes under

subparagraph (A).

(2) REALLOCATION TO THE ARIZONA DEPARTMENT OF WATER

RESOURCES.—

(A) IN GENERAL.—Subject to subparagraph (B) and

subparagraph 9.3 of the master agreement, the Secretary

shall reallocate up to 96,295 acre-feet of agricultural priority water made available pursuant to the master agreement to the Arizona Department of Water Resources, to

be held under contract in trust for further allocation under

subparagraph (C).

(B) REQUIRED DOCUMENTATION.—The reallocation of

agricultural priority water under subparagraph (A) is subject to the condition that the Secretary execute any appropriate documents to memorialize the reallocation,

including—

(i) an allocation decision; and

(ii) a contract that prohibits the direct use of the

agricultural priority water by the Arizona Department

of Water Resources.

(C) FURTHER ALLOCATION.—With respect to the allocation of agricultural priority water under subparagraph

(A)—

(i) before that water may be further allocated—

(I) the Director shall submit to the Secretary,

and the Secretary shall receive, a recommendation

for reallocation;

(II) as soon as practicable after receiving the

recommendation, the Secretary shall carry out all

necessary reviews of the proposed reallocation, in

accordance with applicable Federal law; and

(III) if the recommendation is rejected by the

Secretary, the Secretary shall—

(aa) request a revised recommendation

from the Director; and

(bb) proceed with any reviews required

under subclause (II); and

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3489

(ii) as soon as practicable after the date on which

agricultural priority water is further allocated, the Secretary shall offer to enter into a subcontract for that

water in accordance with paragraphs (1) and (2) of

subsection (d).

(D) MASTER AGREEMENT.—The reallocation of agricultural priority water under subparagraphs (A) and (C) is

subject to the master agreement, including certain rights

provided by the master agreement to water users in Pinal

County, Arizona.

(3) PRIORITY.—The agricultural priority water reallocated

under paragraphs (1) and (2) shall be subject to the condition

that the water retain its non-Indian agricultural delivery priority.

(b) UNCONTRACTED CENTRAL ARIZONA PROJECT MUNICIPAL AND

INDUSTRIAL PRIORITY WATER.— (1) REALLOCATION.—The Secretary shall, on the recommendation of the Director, reallocate 65,647 acre-feet of

uncontracted municipal and industrial water, of which—

(A) 285 acre-feet shall be reallocated to the town of

Superior, Arizona;

(B) 806 acre-feet shall be reallocated to the Cave Creek

Water Company;

(C) 1,931 acre-feet shall be reallocated to the Chaparral

Water Company;

(D) 508 acre-feet shall be reallocated to the town of

El Mirage, Arizona;

(E) 7,211 acre-feet shall be reallocated to the city of

Goodyear, Arizona;

(F) 147 acre-feet shall be reallocated to the H2O Water

Company;

(G) 7,115 acre-feet shall be reallocated to the city of

Mesa, Arizona;

(H) 5,527 acre-feet shall be reallocated to the city of

Peoria, Arizona;

(I) 2,981 acre-feet shall be reallocated to the city of

Scottsdale, Arizona;

(J) 808 acre-feet shall be reallocated to the AVRA

Cooperative;

(K) 4,986 acre-feet shall be reallocated to the city of

Chandler, Arizona;

(L) 1,071 acre-feet shall be reallocated to the Del Lago

(Vail) Water Company;

(M) 3,053 acre-feet shall be reallocated to the city

of Glendale, Arizona;

(N) 1,521 acre-feet shall be reallocated to the Community Water Company of Green Valley, Arizona;

(O) 4,602 acre-feet shall be reallocated to the Metropolitan Domestic Water Improvement District;

(P) 3,557 acre-feet shall be reallocated to the town

of Oro Valley, Arizona;

(Q) 8,206 acre-feet shall be reallocated to the city of

Phoenix, Arizona;

(R) 2,876 acre-feet shall be reallocated to the city of

Surprise, Arizona;

(S) 8,206 acre-feet shall be reallocated to the city of

Tucson, Arizona; and

118 STAT. 3490 PUBLIC LAW 108–451—DEC. 10, 2004

(T) 250 acre-feet shall be reallocated to the Valley

Utilities Water Company.

(2) SUBCONTRACTS.—

(A) IN GENERAL.—As soon as practicable after the date

of enactment of this Act, and in accordance with paragraphs

(1) and (2) of subsection (d) and any other applicable Federal laws, the Secretary shall offer to enter into subcontracts for the delivery of the uncontracted municipal

and industrial water reallocated under paragraph (1).

(B) REVISED RECOMMENDATION.—If the Secretary is

precluded under applicable Federal law from entering into

a subcontract with an entity identified in paragraph (1),

the Secretary shall—

(i) request a revised recommendation from the

Director; and

(ii) on receipt of a recommendation under clause

(i), reallocate and enter into a subcontract for the

delivery of the water in accordance with subparagraph

(A).

(c) LIMITATIONS.—

(1) AMOUNT.—

(A) IN GENERAL.—The total amount of entitlements

under long-term contracts (as defined in the repayment

stipulation) for the delivery of Central Arizona Project

water in the State shall not exceed 1,415,000 acre-feet,

of which—

(i) 650,724 acre-feet shall be—

(I) under contract to Arizona Indian tribes;

or

(II) available to the Secretary for allocation

to Arizona Indian tribes; and

(ii) 764,276 acre-feet shall be under contract or

available for allocation to—

(I) non-Indian municipal and industrial entities;

(II) the Arizona Department of Water

Resources; and

(III) non-Indian agricultural entities.

(B) EXCEPTION.—Subparagraph (A) shall not apply to

Central Arizona Project water delivered to water users

in Arizona in exchange for Gila River water used in New

Mexico as provided in section 304 of the Colorado River

Basin Project Act (43 U.S.C. 1524) (as amended by section

212).

(2) TRANSFER.—

(A) IN GENERAL.—Except pursuant to the master agreement, Central Arizona Project water may not be transferred

from—

(i) a use authorized under paragraph (1)(A)(i) to

a use authorized under paragraph (1)(A)(ii); or

(ii) a use authorized under paragraph (1)(A)(ii)

to a use authorized under paragraph (1)(A)(i).

(B) EXCEPTIONS.—

(i) LEASES.—A lease of Central Arizona Project

water by an Arizona Indian tribe to an entity described

in paragraph (1)(A)(ii) under an Indian water rights

settlement approved by an Act of Congress shall not

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3491

be considered to be a transfer for purposes of subparagraph (A).

(ii) EXCHANGES.—An exchange of Central Arizona

Project water by an Arizona Indian tribe to an entity

described in paragraph (1)(A)(ii) shall not be considered

to be a transfer for purposes of subparagraph (A).

(iii) Notwithstanding subparagraph (A), up to

17,000 acre-feet of CAP municipal and industrial water

under the subcontract among the United States, the

Central Arizona Water Conservation District, and

Asarco, subcontract No. 3–07–30–W0307, dated

November 7, 1993, may be reallocated to the Community on execution of an exchange and lease agreement

among the Community, the United States, and Asarco.

(d) CENTRAL ARIZONA PROJECT CONTRACTS AND SUB- CONTRACTS.— (1) IN GENERAL.—Notwithstanding section 6 of the Reclamation Project Act of 1939 (43 U.S.C. 485e), and paragraphs

(2) and (3) of section 304(b) of the Colorado River Basin Project

Act (43 U.S.C. 1524(b)), as soon as practicable after the date

of enactment of this Act, the Secretary shall offer to enter

into subcontracts or to amend all Central Arizona Project contracts and subcontracts in effect as of that date in accordance

with paragraph (2).

(2) REQUIREMENTS.—All subcontracts and amendments to

Central Arizona Project contracts and subcontracts under paragraph (1)—

(A) shall be for permanent service (within the meaning

of section 5 of the Boulder Canyon Project Act of 1928

(43 U.S.C. 617d));

(B) shall have an initial delivery term that is the

greater of—

(i) 100 years; or

(ii) a term—

(I) authorized by Congress; or

(II) provided under the appropriate Central

Arizona Project contract or subcontract in existence on the date of enactment of this Act;

(C) shall conform to the shortage sharing criteria

described in paragraph 5.3 of the Tohono O’odham settlement agreement;

(D) shall include the prohibition and exception

described in subsection (e); and

(E) shall not require—

(i) that any Central Arizona Project water received

in exchange for effluent be deducted from the contractual entitlement of the CAP contractor or CAP subcontractor; or

(ii) that any additional modification of the Central

Arizona Project contracts or subcontracts be made as

a condition of acceptance of the subcontract or amendments.

(3) APPLICABILITY.—This subsection does not apply to—

(A) a subcontract for non-Indian agricultural use; or

(B) a contract executed under paragraph 5(d) of the

repayment stipulation.

(e) PROHIBITION ON TRANSFER.—

118 STAT. 3492 PUBLIC LAW 108–451—DEC. 10, 2004

(1) IN GENERAL.—Except as provided in paragraph (2), no

Central Arizona Project water shall be leased, exchanged,

forborne, or otherwise transferred in any way for use directly

or indirectly outside the State.

(2) EXCEPTIONS.—Central Arizona Project water may be—

(A) leased, exchanged, forborne, or otherwise transferred under an agreement with the Arizona Water

Banking Authority that is in accordance with part 414

of title 43, Code of Federal Regulations; and

(B) delivered to users in Arizona in exchange for Gila

River water used in New Mexico as provided in section

304 of the Colorado River Basin Project Act (43 U.S.C.

1524) (as amended by section 212).

(3) EFFECT OF SUBSECTION.—Nothing in this subsection

prohibits any entity from entering into a contract with the

Arizona Water Banking Authority or a successor of the

Authority under State law.

SEC. 105. FIRMING OF CENTRAL ARIZONA PROJECT INDIAN WATER.

(a) FIRMING PROGRAM.—The Secretary and the State shall

develop a firming program to ensure that 60,648 acre-feet of the

agricultural priority water made available pursuant to the master

agreement and reallocated to Arizona Indian tribes under section

104(a)(1), shall, for a 100-year period, be delivered during water

shortages in the same manner as water with a municipal and

industrial delivery priority in the Central Arizona Project system

is delivered during water shortages.

(b) DUTIES.—

(1) SECRETARY.—The Secretary shall—

(A) firm 28,200 acre-feet of agricultural priority water

reallocated to the Tohono O’odham Nation under section

104(a)(1)(A)(ii); and

(B) firm 8,724 acre-feet of agricultural priority water

reallocated to Arizona Indian tribes under section

104(a)(1)(A)(iii).

(2) STATE.—The State shall—

(A) firm 15,000 acre-feet of agricultural priority water

reallocated to the Community under section 104(a)(1)(A)(i);

(B) firm 8,724 acre-feet of agricultural priority water

reallocated to Arizona Indian tribes under section

104(a)(1)(A)(iii); and

(C) assist the Secretary in carrying out obligations

of the Secretary under paragraph (1)(A) in accordance with

section 306 of the Southern Arizona Water Rights Settlement Amendments Act (as added by section 301).

(c) AUTHORIZATION OF APPROPRIATIONS.—There are authorized

to be appropriated to the Secretary such sums as are necessary

to carry out the duties of the Secretary under subsection (b)(1).

SEC. 106. ACQUISITION OF AGRICULTURAL PRIORITY WATER.

(a) APPROVAL OF AGREEMENT.— (1) IN GENERAL.—Except to the extent that any provision

of the master agreement conflicts with any provision of this

title, the master agreement is authorized, ratified, and confirmed. To the extent that amendments are executed to make

the master agreement consistent with this title, such amendments are also authorized, ratified, and confirmed.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3493

(2) EXHIBITS.—The Secretary is directed to and shall execute the master agreement and any of the exhibits to the

master agreement that have not been executed as of the date

of enactment of this Act.

(3) DEBT COLLECTION.—For any agricultural priority water

that is not relinquished under the master agreement, the subcontractor shall continue to pay, consistent with the master

agreement, the portion of the debt associated with any retained

water under section 9(d) of the Reclamation Project Act of

1939 (43 U.S.C. 485h(d)), and the Secretary shall apply such

revenues toward the reimbursable section 9(d) debt of that

subcontractor.

(4) EFFECTIVE DATE.—The provisions of subsections (b) and

(c) shall take effect on the date of enactment of this Act.

(b) NONREIMBURSABLE DEBT.— (1) IN GENERAL.—In accordance with the master agreement,

the portion of debt incurred under section 9(d) of the Reclamation Project Act of 1939 (43 U.S.C. 485h(d)), and identified

in the master agreement as nonreimbursable to the United

States, shall be nonreimbursable and nonreturnable to the

United States in an amount not to exceed $73,561,337.

(2) EXTENSION.—In accordance with the master agreement,

the Secretary may extend, on an annual basis, the repayment

schedule of debt incurred under section 9(d) of the Reclamation

Project Act of 1939 (43 U.S.C. 485h(d)) by CAP subcontractors.

(c) EXEMPTION.—The Reclamation Reform Act of 1982 (43

U.S.C. 390aa et seq.) and any other acreage limitation or full

cost pricing provisions of Federal law shall not apply to—

(1) land within the exterior boundaries of the Central

Arizona Water Conservation District or served by Central

Arizona Project water;

(2) land within the exterior boundaries of the Salt River

Reservoir District;

(3) land held in trust by the United States for an Arizona

Indian tribe that is—

(A) within the exterior boundaries of the Central

Arizona Water Conservation District; or

(B) served by Central Arizona Project water; or

(4) any person, entity, or land, solely on the basis of—

(A) receipt of any benefits under this Act;

(B) execution or performance of the Gila River agreement; or

(C) the use, storage, delivery, lease, or exchange of

Central Arizona Project water.

SEC. 107. LOWER COLORADO RIVER BASIN DEVELOPMENT FUND.

(a) IN GENERAL.—Section 403 of the Colorado River Basin

Project Act (43 U.S.C. 1543) is amended by striking subsection

(f) and inserting the following:

‘‘(f) ADDITIONAL USES OF REVENUE FUNDS.—

‘‘(1) CREDITING AGAINST CENTRAL ARIZONA WATER CON- SERVATION DISTRICT PAYMENTS.—Funds credited to the development fund pursuant to subsection (b) and paragraphs (1) and

(3) of subsection (c), the portion of revenues derived from the

sale of power and energy for use in the State of Arizona pursuant to subsection (c)(2) in excess of the amount necessary

to meet the requirements of paragraphs (1) and (2) of subsection

118 STAT. 3494 PUBLIC LAW 108–451—DEC. 10, 2004

(d), and any annual payment by the Central Arizona Water

Conservation District to effect repayment of reimbursable Central Arizona Project construction costs, shall be credited

annually against the annual payment owed by the Central

Arizona Water Conservation District to the United States for

the Central Arizona Project.

‘‘(2) FURTHER USE OF REVENUE FUNDS CREDITED AGAINST

PAYMENTS OF CENTRAL ARIZONA WATER CONSERVATION DISTRICT.—After being credited in accordance with paragraph (1),

the funds and portion of revenues described in that paragraph

shall be available annually, without further appropriation, in

order of priority—

‘‘(A) to pay annually the fixed operation, maintenance,

and replacement charges associated with the delivery of

Central Arizona Project water held under long-term contracts for use by Arizona Indian tribes (as defined in section

2 of the Arizona Water Settlements Act) in accordance

with clause 8(d)(i)(1)(i) of the Repayment Stipulation (as

defined in section 2 of the Arizona Water Settlements Act);

‘‘(B) to make deposits, totaling $53,000,000 in the

aggregate, in the Gila River Indian Community Water

OM&R Trust Fund established by section 208 of the

Arizona Water Settlements Act;

‘‘(C) to pay $147,000,000 for the rehabilitation of the

San Carlos Irrigation Project, of which not more than

$25,000,000 shall be available annually consistent with

attachment 6.5.1 of exhibit 20.1 of the Gila River agreement, except that the total amount of $147,000,000 shall

be increased or decreased, as appropriate, based on ordinary fluctuations since January 1, 2000, in construction

cost indices applicable to the types of construction involved

in the rehabilitation;

‘‘(D) in addition to amounts made available for the

purpose through annual appropriations, as reasonably allocated by the Secretary without regard to any trust obligation on the part of the Secretary to allocate the funding

under any particular priority and without regard to priority

(except that payments required by clause (i) shall be made

first)—

‘‘(i) to make deposits totaling $66,000,000, adjusted

to reflect changes since January 1, 2004, in the

construction cost indices applicable to the types of

construction involved in construction of the New

Mexico Unit, into the New Mexico Unit Fund as provided by section 212(i) of the Arizona Water Settlements Act in 10 equal annual payments beginning

in 2012;

‘‘(ii) upon satisfaction of the conditions set forth

in subsections (j) and (k) of section 212, to pay certain

of the costs associated with construction of the New

Mexico Unit, in addition to any amounts that may

be expended from the New Mexico Unit Fund, in a

minimum amount of $34,000,000 and a maximum

amount of $62,000,000, as provided in section 212 of

the Arizona Water Settlements Act, as adjusted to

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3495

reflect changes since January 1, 2004, in the construction cost indices applicable to the types of construction

involved in construction of the New Mexico Unit;

‘‘(iii) to pay the costs associated with the construction of distribution systems required to implement the

provisions of—

‘‘(I) the contract entered into between the

United States and the Gila River Indian Community, numbered 6–07–03–W0345, and dated July

20, 1998;

‘‘(II) section 3707(a)(1) of the San Carlos

Apache Tribe Water Rights Settlement Act of 1992

(106 Stat. 4747); and

‘‘(III) section 304 of the Southern Arizona

Water Rights Settlement Amendments Act of 2004;

‘‘(iv) to pay $52,396,000 for the rehabilitation of

the San Carlos Irrigation Project as provided in section

203(d)(4) of the Arizona Water Settlements Act, of

which not more than $9,000,000 shall be available

annually, except that the total amount of $52,396,000

shall be increased or decreased, as appropriate, based

on ordinary fluctuations since January 1, 2000, in

construction cost indices applicable to the types of

construction involved in the rehabilitation;

‘‘(v) to pay other costs specifically identified

under—

‘‘(I) sections 213(g)(1) and 214 of the Arizona

Water Settlements Act; and

‘‘(II) the Southern Arizona Water Rights

Settlement Amendments Act of 2004;

‘‘(vi) to pay a total of not more than $250,000,000

to the credit of the Future Indian Water Settlement

Subaccount of the Lower Colorado Basin Development

Fund, for use for Indian water rights settlements in

Arizona approved by Congress after the date of enactment of this Act, subject to the requirement that, notwithstanding any other provision of this Act, any funds

credited to the Future Indian Water Settlement Subaccount that are not used in furtherance of a congressionally approved Indian water rights settlement in

Arizona by December 31, 2030, shall be returned to

the main Lower Colorado Basin Development Fund

for expenditure on authorized uses pursuant to this

Act, provided that any interest earned on funds held

in the Future Indian Water Settlement Subaccount

shall remain in such subaccount until disbursed or

returned in accordance with this section;

‘‘(vii) to pay costs associated with the installation

of gages on the Gila River and its tributaries to

measure the water level of the Gila River and its

tributaries for purposes of the New Mexico Consumptive Use and Forbearance Agreement in an amount

not to exceed $500,000; and

‘‘(viii) to pay the Secretary’s costs of implementing

the Central Arizona Project Settlement Act of 2004;

‘‘(E) in addition to amounts made available for the

purpose through annual appropriations—

118 STAT. 3496 PUBLIC LAW 108–451—DEC. 10, 2004

‘‘(i) to pay the costs associated with the construction of on-reservation Central Arizona Project distribution systems for the Yavapai Apache (Camp Verde),

Tohono O’odham Nation (Sif Oidak District), Pascua

Yaqui, and Tonto Apache tribes; and

‘‘(ii) to make payments to those tribes in accordance with paragraph 8(d)(i)(1)(iv) of the repayment

stipulation (as defined in section 2 of the Arizona Water

Settlements Act), except that if a water rights settlement Act of Congress authorizes such construction,

payments to those tribes shall be made from funds

in the Future Indian Water Settlement Subaccount;

and

‘‘(F) if any amounts remain in the development fund

at the end of a fiscal year, to be carried over to the following

fiscal year for use for the purposes described in subparagraphs (A) through (E).

‘‘(3) REVENUE FUNDS IN EXCESS OF REVENUE FUNDS CREDITED AGAINST CENTRAL ARIZONA WATER CONSERVATION DISTRICT

PAYMENTS.—The funds and portion of revenues described in

paragraph (1) that are in excess of amounts credited under

paragraph (1) shall be available, on an annual basis, without

further appropriation, in order of priority—

‘‘(A) to pay annually the fixed operation, maintenance

and replacement charges associated with the delivery of

Central Arizona Project water under long-term contracts

held by Arizona Indian tribes (as defined in section 2

of the Arizona Water Settlements Act);

‘‘(B) to make the final outstanding annual payment

for the costs of each unit of the projects authorized under

title III that are to be repaid by the Central Arizona

Water Conservation District;

‘‘(C) to reimburse the general fund of the Treasury

for fixed operation, maintenance, and replacement charges

previously paid under paragraph (2)(A);

‘‘(D) to reimburse the general fund of the Treasury

for costs previously paid under subparagraphs (B) through

(E) of paragraph (2);

‘‘(E) to pay to the general fund of the Treasury the

annual installment on any debt relating to the Central

Arizona Project under section 9(d) of the Reclamation

Project Act of 1939 (43 U.S.C. 485h(d)), made nonreimbursable under section 106(b) of the Arizona Water Settlements

Act;

‘‘(F) to pay to the general fund of the Treasury the

difference between—

‘‘(i) the costs of each unit of the projects authorized

under title III that are repayable by the Central

Arizona Water Conservation District; and

‘‘(ii) any costs allocated to reimbursable functions

under any Central Arizona Project cost allocation

undertaken by the United States; and

‘‘(G) for deposit in the general fund of the Treasury.

‘‘(4) INVESTMENT OF AMOUNTS.—

‘‘(A) IN GENERAL.—The Secretary of the Treasury shall

invest such portion of the development fund as is not,

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3497

in the judgment of the Secretary of the Interior, required

to meet current needs of the development fund.

‘‘(B) PERMITTED INVESTMENTS.—

‘‘(i) IN GENERAL.—Notwithstanding any other

provision of law, including any provision requiring the

consent or concurrence of any party, the investments

referred to in subparagraph (A) shall include 1 or

more of the following:

‘‘(I) Any investments referred to in the Act

of June 24, 1938 (25 U.S.C. 162a).

‘‘(II) Investments in obligations of government

corporations and government-sponsored entities

whose charter statutes provide that their obligations are lawful investments for federally managed

funds.

‘‘(III) The obligations referred to in section

201 of the Social Security Act (42 U.S.C. 401).

‘‘(ii) LAWFUL INVESTMENTS.—For purposes of clause

(i), obligations of government corporations and government-sponsored entities whose charter statutes provide

that their obligations are lawful investments for

federally managed funds includes any of the following

securities or securities with comparable language concerning the investment of federally managed funds:

‘‘(I) Obligations of the United States Postal

Service as authorized by section 2005 of title 39,

United States Code.

‘‘(II) Bonds and other obligations of the Tennessee Valley Authority as authorized by section

15d of the Tennessee Valley Authority Act of 1933

(16 U.S.C. 831n–4).

‘‘(III) Mortgages, obligations, or other securities of the Federal Home Loan Mortgage Corporation as authorized by section 303 of the Federal

Home Loan Mortgage Corporation Act (12 U.S.C.

1452).

‘‘(IV) Bonds, notes, or debentures of the Commodity Credit Corporation as authorized by section

4 of the Act of March 4, 1939 (15 U.S.C. 713a–

4).

‘‘(C) ACQUISITION OF OBLIGATIONS.—For the purpose

of investments under subparagraph (A), obligations may

be acquired—

‘‘(i) on original issue at the issue price; or

‘‘(ii) by purchase of outstanding obligations at the

market price.

‘‘(D) SALE OF OBLIGATIONS.—Any obligation acquired

by the development fund may be sold by the Secretary

of the Treasury at the market price.

‘‘(E) CREDITS TO FUND.—The interest on, and the proceeds from the sale or redemption of, any obligations held

in the development fund shall be credited to and form

a part of the development fund.

‘‘(5) AMOUNTS NOT AVAILABLE FOR CERTAIN FEDERAL

OBLIGATIONS.—None of the provisions of this section, including

paragraphs (2)(A) and (3)(A), shall be construed to make any

118 STAT. 3498 PUBLIC LAW 108–451—DEC. 10, 2004

of the funds referred to in this section available for the fulfillment of any Federal obligation relating to the payment of

OM&R charges if such obligation is undertaken pursuant to

Public Law 95–328, Public Law 98–530, or any settlement

agreement with the United States (or amendments thereto)

approved by or pursuant to either of those acts.’’.

(b) LIMITATION.—Amounts made available under the amendment made by subsection (a)—

(1) shall be identified and retained in the Lower Colorado

River Basin Development Fund established by section 403 of

the Colorado River Basin Project Act (43 U.S.C. 1543); and

(2) shall not be expended or withdrawn from that fund

until the later of—

(A) the date on which the findings described in section

207(c) are published in the Federal Register; or

(B) January 1, 2010.

(c) TECHNICAL AMENDMENTS.—The Colorado River Basin

Project Act (43 U.S.C. 1501 et seq.) is amended—

(1) in section 403(g), by striking ‘‘clause (c)(2)’’ and inserting

‘‘subsection (c)(2)’’; and

(2) in section 403(e), by deleting the first word and inserting

‘‘Except as provided in subsection (f), revenues’’.

SEC. 108. EFFECT.

Except for provisions relating to the allocation of Central

Arizona Project water and the Reclamation Reform Act of 1982

(43 U.S.C. 390aa et seq.), nothing in this title affects—

(1) any treaty, law, or agreement governing the use of

water from the Colorado River; or

(2) any rights to use Colorado River water existing on

the date of enactment of this Act.

SEC. 109. REPEAL.

Section 11(h) of the Salt River Pima-Maricopa Indian Community Water Rights Settlement Act of 1988 (102 Stat. 2559) is

repealed.

SEC. 110. AUTHORIZATION OF APPROPRIATIONS.

(a) IN GENERAL.—There are authorized to be appropriated such

sums as are necessary to comply with—

(1) the 1994 biological opinion, including any funding transfers required by the opinion;

(2) the 1996 biological opinion, including any funding transfers required by the opinion; and

(3) any final biological opinion resulting from the 1999

biological opinion, including any funding transfers required by

the opinion.

(b) CONSTRUCTION COSTS.—Amounts made available under subsection (a) shall be treated as Central Arizona Project construction

costs.

(c) AGREEMENTS.—

(1) IN GENERAL.—Any amounts made available under subsection (a) may be used to carry out agreements to permanently

fund long-term reasonable and prudent alternatives in accepted

biological opinions relating to the Central Arizona Project.

(2) REQUIREMENTS.—To ensure that long-term environmental compliance may be met without further appropriations,

an agreement under paragraph (1) shall include a provision

43 USC 1543.

Deadline.

Federal Register,

publication.

43 USC 1543

note.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3499

requiring that the contractor manage the funds through

interest-bearing investments.

SEC. 111. REPEAL ON FAILURE OF ENFORCEABILITY DATE UNDER

TITLE II.

(a) IN GENERAL.—Except as provided in subsection (b), if the

Secretary does not publish a statement of findings under section

207(c) by December 31, 2007—

(1) this title is repealed effective January 1, 2008, and

any action taken by the Secretary and any contract entered

under any provision of this title shall be void; and

(2) any amounts appropriated under section 110 that

remain unexpended shall immediately revert to the general

fund of the Treasury.

(b) EXCEPTION.—No subcontract amendment executed by the

Secretary under the notice of June 18, 2003 (67 Fed. Reg. 36578),

shall be considered to be a contract entered into by the Secretary

for purposes of subsection (a)(1).

TITLE II—GILA RIVER INDIAN COMMUNITY WATER RIGHTS SETTLEMENT

SEC. 201. SHORT TITLE.

This title may be cited as the ‘‘Gila River Indian Community

Water Rights Settlement Act of 2004’’.

SEC. 202. PURPOSES.

The purposes of this title are—

(1) to resolve permanently certain damage claims and all

water rights claims among the United States on behalf of

the Community, its members, and allottees, and the Community

and its neighbors;

(2) to authorize, ratify, and confirm the Gila River agreement;

(3) to authorize and direct the Secretary to execute and

perform all obligations of the Secretary under the Gila River

agreement;

(4) to authorize the actions and appropriations necessary

for the United States to meet obligations of the United States

under the Gila River agreement and this title; and

(5) to authorize and direct the Secretary to execute the

New Mexico Consumptive Use and Forbearance Agreement to

allow the Secretary to exercise the rights authorized by subsections (d) and (f) of section 304 of the Colorado River Basin

Project Act (43 U.S.C. 1524).

SEC. 203. APPROVAL OF THE GILA RIVER INDIAN COMMUNITY WATER

RIGHTS SETTLEMENT AGREEMENT.

(a) IN GENERAL.—Except to the extent that any provision of

the Gila River agreement conflicts with any provision of this title,

the Gila River agreement is authorized, ratified, and confirmed.

To the extent amendments are executed to make the Gila River

agreement consistent with this title, such amendments are also

authorized, ratified, and confirmed.

(b) EXECUTION OF AGREEMENT.—To the extent that the Gila

River agreement does not conflict with this title, the Secretary

Gila River Indian

Community

Water Rights

Settlement Act of

2004.

43 USC 1501

note.

Effective date.

43 USC 1501

note.

118 STAT. 3500 PUBLIC LAW 108–451—DEC. 10, 2004

is directed to and shall execute the Gila River agreement, including

all exhibits to the Gila River agreement requiring the signature

of the Secretary and any amendments necessary to make the Gila

River agreement consistent with this title, after the Community

has executed the Gila River agreement and any such amendments.

(c) NATIONAL ENVIRONMENTAL POLICY ACT.— (1) ENVIRONMENTAL COMPLIANCE.—In implementing the

Gila River agreement, the Secretary shall promptly comply

with all aspects of the National Environmental Policy Act of

1969 (42 U.S.C. 4321 et seq.), the Endangered Species Act

of 1973 (16 U.S.C. 1531 et seq.), and all other applicable

environmental Acts and regulations.

(2) EXECUTION OF THE GILA RIVER AGREEMENT.—Execution

of the Gila River agreement by the Secretary under this section

shall not constitute a major Federal action under the National

Environmental Policy Act (42 U.S.C. 4321 et seq.). The Secretary is directed to carry out all necessary environmental

compliance required by Federal law in implementing the Gila

River agreement.

(3) LEAD AGENCY.—The Bureau of Reclamation shall be

designated as the lead agency with respect to environmental

compliance.

(d) REHABILITATION AND OPERATION, MAINTENANCE, AND

REPLACEMENT OF CERTAIN WATER WORKS.—

(1) IN GENERAL.—In addition to any obligations of the Secretary with respect to the San Carlos Irrigation Project,

including any operation or maintenance responsibility existing

on the date of enactment of this Act, the Secretary shall—

(A) in accordance with exhibit 20.1 to the Gila River

agreement, provide for the rehabilitation of the San Carlos

Irrigation Project water diversion and delivery works with

the funds provided for under section 403(f)(2) of the Colorado River Basin Project Act; and

(B) provide electric power for San Carlos Irrigation

Project wells and irrigation pumps at the Secretary’s direct

cost of transmission, distribution, and administration,

using the least expensive source of power available.

(2) JOINT CONTROL BOARD AGREEMENT.—

(A) IN GENERAL.—Except to the extent that it is in

conflict with this title, the Secretary shall execute the

joint control board agreement described in exhibit 20.1

to the Gila River agreement, including all exhibits to the

joint control board agreement requiring the signature of

the Secretary and any amendments necessary to the joint

control board agreement consistent with this title.

(B) CONTROLS.—The joint control board agreement

shall contain the following provisions, among others:

(i) The Secretary, acting through the Bureau of

Indian Affairs, shall continue to be responsible for

the operation and maintenance of Picacho Dam and

Coolidge Dam and Reservoir, and for scheduling and

delivering water to the Community and the District

through the San Carlos Irrigation Project joint works.

(ii) The actions and decisions of the joint control

board that pertain to construction and maintenance

of those San Carlos Irrigation Project joint works that

are the subject of the joint control board agreement

Deadlines.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3501

shall be subject to the approval of the Secretary, acting

through the Bureau of Indian Affairs within 30 days

thereof, or sooner in emergency situations, which

approval shall not be unreasonably withheld. Should

a required decision of the Bureau of Indian Affairs

not be received by the joint control board within 60

days following an action or decision of the joint control

board, the joint control board action or decision shall

be deemed to have been approved by the Secretary.

(3) REHABILITATION COSTS ALLOCABLE TO THE COMMU- NITY.—The rehabilitation costs allocable to the Community

under exhibit 20.1 to the Gila River agreement shall be paid

from the funds available under paragraph (2)(C) of section

403(f) of the Colorado River Basin Project Act (43 U.S.C.

1543(f)) (as amended by section 107(a)).

(4) REHABILITATION COSTS NOT ALLOCABLE TO THE COMMUNITY.—

(A) IN GENERAL.—The rehabilitation costs not allocable

to the Community under exhibit 20.1 to the Gila River

agreement shall be provided from funds available under

paragraph (2)(D)(iv) of section 403(f) of the Colorado River

Basin Project Act (43 U.S.C. 1543(f)) (as amended by section

107(a)).

(B) SUPPLEMENTARY REPAYMENT CONTRACT.—Prior to

the advance of any funds made available to the San Carlos

Irrigation and Drainage District pursuant to the provisions

of this Act, the Secretary shall execute a supplementary

repayment contract with the San Carlos Irrigation and

Drainage District in the form provided for in exhibit 20.1

to the Gila River agreement which shall, among other

things, provide that—

(i) in accomplishing the work under the supplemental repayment contract—

(I) the San Carlos Irrigation and Drainage

District—

(aa) may use locally accepted engineering

standards and the labor and contracting

authorities that are available to the District

under State law; and

(bb) shall be subject to the value

engineering program of the Bureau of Reclamation established pursuant to OMB Circular A–131; and

(II) in accordance with FAR Part 48.101(b),

the incentive returned to the contractor through

this ‘‘Incentive Clause’’ shall be 55 percent after

the Contractor is reimbursed for the allowable

costs of developing and implementing the proposal

and the Government shall retain 45 percent of

such savings in the form of reduced expenditures;

(ii) up to 18,000 acre-feet annually of conserved

water will be made available by the San Carlos Irrigation and Drainage District to the United States pursuant to the terms of exhibit 20.1 to the Gila River

agreement; and

(iii) a portion of the San Carlos Irrigation and

Drainage District’s share of the rehabilitation costs

118 STAT. 3502 PUBLIC LAW 108–451—DEC. 10, 2004

specified in exhibit 20.1 to the Gila River agreement

shall be nonreimbursable.

(5) LEAD AGENCY.—The Bureau of Reclamation shall be

designated as the lead agency for oversight of the construction

and rehabilitation of the San Carlos Irrigation Project authorized by this section.

(6) FINANCIAL RESPONSIBILITY.—Except as expressly provided by this section, nothing in this Act shall affect—

(A) any responsibility of the Secretary under the provisions of the Act of June 7, 1924 (commonly known as

the ‘‘San Carlos Irrigation Project Act of 1924’’) (43 Stat.

475); or

(B) any other financial responsibility of the Secretary

relating to operation and maintenance of the San Carlos

Irrigation Project existing on the date of enactment of

this Act.

SEC. 204. WATER RIGHTS.

(a) RIGHTS HELD IN TRUST; ALLOTTEES.—

(1) INTENT OF CONGRESS.—It is the intent of Congress

to provide allottees with benefits that are equal to or that

exceed the benefits that the allottees currently possess, taking

into account—

(A) the potential risks, cost, and time delay associated

with the litigation that will be resolved by the Gila River

agreement;

(B) the availability of funding under title I for the

rehabilitation of the San Carlos Irrigation Project and for

other benefits;

(C) the availability of water from the CAP system

and other sources after the enforceability date, which will

supplement less secure existing water supplies; and

(D) the applicability of section 7 of the Act of February

8, 1887 (25 U.S.C. 381), and this title to protect the

interests of allottees.

(2) HOLDING IN TRUST.—The water rights and resources

described in the Gila River agreement shall be held in trust

by the United States on behalf of the Community and the

allottees as described in this section.

(3) ALLOTTED LAND.—As specified in and provided for under

this Act—

(A) agricultural allottees, other than allottees with

rights under the Globe Equity Decree, shall be entitled

to a just and equitable allocation of water from the Community for irrigation purposes from the water resources

described in the Gila River agreement;

(B) allotted land with rights under the Globe Equity

Decree shall be entitled to receive—

(i) a similar quantity of water from the Community

to the quantity historically delivered under the Globe

Equity Decree; and

(ii) the benefit of the rehabilitation of the San

Carlos Irrigation Project as provided in this Act, a

more secure source of water, and other benefits under

this Act;

(C) the water rights and resources and other benefits

provided by this Act are a complete substitution of any

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3503

rights that may have been held by, or any claims that

may have been asserted by, the allottees before the date

of enactment of this Act for land within the exterior boundaries of the Reservation;

(D) any entitlement to water of allottees for land

located within the exterior boundaries of the Reservation

shall be satisfied by the Community using the water

resources described in subparagraph 4.1 in the Gila River

agreement;

(E) before asserting any claim against the United

States under section 1491(a) of title 28, United States

Code, or under section 7 of the Act of February 8, 1887

(25 U.S.C. 381), an allottee shall first exhaust remedies

available to the allottee under the Community’s water code

and Community law; and

(F) following exhaustion of remedies on claims relating

to section 7 of the Act of February 8, 1887 (25 U.S.C.

381), a claimant may petition the Secretary for relief.

(4) ACTIONS, CLAIMS, AND LAWSUITS.—

(A) IN GENERAL.—Nothing in this Act authorizes any

action, claim, or lawsuit by an allottee against any person,

entity, corporation, or municipal corporation, under Federal, State, or other law.

(B) THE COMMUNITY AND THE UNITED STATES.—Except

as provided in subparagraphs (E) and (F) of paragraph

(3) and subsection (e)(2)(C), nothing in this Act either

authorizes any action, claim, or lawsuit by an allottee

against the Community under Federal, State, or other law,

or alters available actions pursuant to section 1491(a) of

title 28, of the United States Code, or section 381 of title

25, of the United States Code.

(b) REALLOCATION.—

(1) IN GENERAL.—In accordance with this title and the

Gila River agreement, the Secretary shall reallocate and contract with the Community for the delivery in accordance with

this section of—

(A) an annual entitlement to 18,600 acre-feet of CAP

agricultural priority water in accordance with the agreement among the Secretary, the Community, and Roosevelt

Water Conservation District dated August 7, 1992;

(B) an annual entitlement to 18,100 acre-feet of CAP

Indian priority water, which was permanently relinquished

by Harquahala Valley Irrigation District in accordance with

Contract No. 3–0907–0930–09W0290 among the Central

Arizona Water Conservation District, the Harquahala

Valley Irrigation District, and the United States, and converted to CAP Indian priority water under the Fort

McDowell Indian Community Water Rights Settlement Act

of 1990 (104 Stat. 4480);

(C) on execution of an exchange and lease agreement

among the Community, the United States, and Asarco,

an annual entitlement of up to 17,000 acre-feet of CAP

municipal and industrial priority water under the subcontract among the United States, the Central Arizona

Water Conservation District, and Asarco, Subcontract No.

3–07–30–W0307, dated November 7, 1993; and

118 STAT. 3504 PUBLIC LAW 108–451—DEC. 10, 2004

(D) as provided in section 104(a)(1)(A)(i), an annual

entitlement to 102,000 acre-feet of CAP agricultural priority water acquired pursuant to the master agreement.

(2) SOLE AUTHORITY.—In accordance with this section, the

Community shall have the sole authority, subject to the Secretary’s approval pursuant to section 205(a)(2), to lease, distribute, exchange, or allocate the CAP water described in this

subsection, except that this paragraph shall not impair the

right of an allottee to lease land of the allottee together with

the water rights appurtenant to the land. Nothing in this

paragraph shall affect the validity of any lease or exchange

ratified in section 205(c) or 205(d).

(c) WATER SERVICE CAPITAL CHARGES.—The Community shall

not be responsible for water service capital charges for CAP water.

(d) ALLOCATION AND REPAYMENT.—For the purpose of determining the allocation and repayment of costs of any stages of

the Central Arizona Project constructed after the date of enactment

of this Act, the costs associated with the delivery of water described

in subsection (b), whether that water is delivered for use by the

Community or in accordance with any assignment, exchange, lease,

option to lease, or other agreement for the temporary disposition

of water entered into by the Community—

(1) shall be nonreimbursable; and

(2) shall be excluded from the repayment obligation of

the Central Arizona Water Conservation District.

(e) APPLICATION OF PROVISIONS.—

(1) IN GENERAL.—The water rights recognized and confirmed to the Community and allottees by the Gila River agreement and this title shall be subject to section 7 of the Act

of February 8, 1887 (25 U.S.C. 381).

(2) WATER CODE.—

(A) IN GENERAL.—Not later than 18 months after the

enforceability date, the Community shall enact a water

code, subject to any applicable provision of law (including

subsection (a)(3)), that—

(i) manages, regulates, and controls the water

resources on the Reservation;

(ii) governs all of the water rights that are held

in trust by the United States; and

(iii) provides that, subject to approval of the

Secretary—

(I) the Community shall manage, regulate, and

control the water resources described in the Gila

River agreement and allocate water to all water

users on the Reservation pursuant to the water

code;

(II) the Community shall establish conditions,

limitations, and permit requirements relating to

the storage, recovery, and use of the water

resources described in the Gila River agreement;

(III) any allocation of water shall be from the

pooled water resources described in the Gila River

agreement;

(IV) charges for delivery of water for irrigation

purposes to water users on the Reservation

(including water users on allotted land) shall be

assessed on a just and equitable basis without

Deadline.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3505

regard to the status of the Reservation land on

which the water is used;

(V) there is a process by which any user of

or applicant to use water for irrigation purposes

(including water users on allotted land) may

request that the Community provide water for

irrigation use in accordance with this title;

(VI) there is a due process system for the

consideration and determination by the Community of any request by any water user on the

Reservation (including water users on allotted

land), for an allocation of water, including a

process for appeal and adjudication of denied or

disputed distributions of water and for resolution

of contested administrative decisions; and

(VII) there is a requirement that any allottee

with a claim relating to the enforcement of rights

of the allottee under the water code or relating

to the amount of water allocated to land of the

allottee must first exhaust remedies available to

the allottee under Community law and the water

code before initiating an action against the United

States or petitioning the Secretary pursuant to

subsection (a)(3)(F).

(B) APPROVAL.—Any provision of the water code and

any amendments to the water code that affect the rights

of the allottees shall be subject to the approval of the

Secretary, and no such provision or amendment shall be

valid until approved by the Secretary.

(C) INCLUSION OF REQUIREMENT IN WATER CODE.—The

Community is authorized to and shall include in the water

code the requirement in subparagraph (A)(VII) that any

allottee with a claim relating to the enforcement of rights

of the allottee under the water code or relating to the

amount of water allocated to land of the allottee must

first exhaust remedies available to the allottee under

Community law and the water code before initiating an

action against the United States.

(3) ADMINISTRATION.—The Secretary shall administer all

rights to water granted or confirmed to the Community and

allottees by the Gila River agreement and this Act until such

date as the water code described in paragraph (2) has been

enacted and approved by the Secretary, at which time the

Community shall have authority, subject to the Secretary’s

authority under section 7 of the Act of February 8, 1887 (25

U.S.C. 381), to manage, regulate, and control the water

resources described in the Gila River agreement, subject to

paragraph (2), except that this paragraph shall not impair

the right of an allottee to lease land of the allottee together

with the water rights appurtenant to the land.

SEC. 205. COMMUNITY WATER DELIVERY CONTRACT AMENDMENTS.

(a) IN GENERAL.—The Secretary shall amend the Community

water delivery contract to provide, among other things, in accordance with the Gila River agreement, that—

(1) the contract shall be—

118 STAT. 3506 PUBLIC LAW 108–451—DEC. 10, 2004

(A) for permanent service (as that term is used in

section 5 of the Boulder Canyon Project Act (43 U.S.C.

617d)); and

(B) without limit as to term;

(2) the Community may, with the approval of the Secretary,

including approval as to the Secretary’s authority under section

7 of the Act of February 8, 1887 (25 U.S.C. 381)—

(A) enter into contracts or options to lease (for a term

not to exceed 100 years) or contracts or options to exchange,

Community CAP water within Maricopa, Pinal, Pima, La

Paz, Yavapai, Gila, Graham, Greenlee, Santa Cruz, or

Coconino Counties, Arizona, providing for the temporary

delivery to others of any portion of the Community CAP

water; and

(B) renegotiate any lease at any time during the term

of the lease, so long as the term of the renegotiated lease

does not exceed 100 years;

(3)(A) the Community, and not the United States, shall

be entitled to all consideration due to the Community under

any leases or options to lease and exchanges or options to

exchange Community CAP water entered into by the Community; and

(B) the United States shall have no trust obligation or

other obligation to monitor, administer, or account for—

(i) any funds received by the Community as consideration under any such leases or options to lease and

exchanges or options to exchange; or

(ii) the expenditure of such funds;

(4)(A) all Community CAP water shall be delivered through

the CAP system; and

(B) if the delivery capacity of the CAP system is significantly reduced or is anticipated to be significantly reduced

for an extended period of time, the Community shall have

the same CAP delivery rights as other CAP contractors and

CAP subcontractors, if such CAP contractors or CAP subcontractors are allowed to take delivery of water other than

through the CAP system;

(5) the Community may use Community CAP water on

or off the Reservation for Community purposes;

(6) as authorized by subparagraph (A) of section 403(f)(2)

of the Colorado River Basin Project Act (43 U.S.C. 1543(f)(2))

(as amended by section 107(a)) and to the extent that funds

are available in the Lower Colorado River Basin Development

Fund established by section 403 of that Act (43 U.S.C. 1543),

the United States shall pay to the CAP operating agency the

fixed OM&R charges associated with the delivery of Community

CAP water, except for Community CAP water leased by others;

(7) the costs associated with the construction of the CAP

system allocable to the Community—

(A) shall be nonreimbursable; and

(B) shall be excluded from any repayment obligation

of the Community; and

(8) no CAP water service capital charges shall be due

or payable for Community CAP water, whether CAP water

is delivered for use by the Community or is delivered under

any leases, options to lease, exchanges or options to exchange

Community CAP water entered into by the Community.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3507

(b) AMENDED AND RESTATED COMMUNITY WATER DELIVERY

CONTRACT.—To the extent it is not in conflict with the provisions

of this Act, the Amended and Restated Community CAP Water

Delivery Contract set forth in exhibit 8.2 to the Gila River agreement is authorized, ratified, and confirmed, and the Secretary is

directed to and shall execute the contract. To the extent amendments are executed to make the Amended and Restated Community

CAP Water Delivery Contract consistent with this title, such amendments are also authorized, ratified, and confirmed.

(c) LEASES.—To the extent they are not in conflict with the

provisions of this Act, the leases of Community CAP water by

the Community to Phelps Dodge, and any of the Cities, attached

as exhibits to the Gila River agreement, are authorized, ratified,

and confirmed, and the Secretary is directed to and shall execute

the leases. To the extent amendments are executed to make such

leases consistent with this title, such amendments are also authorized, ratified, and confirmed.

(d) RECLAIMED WATER EXCHANGE AGREEMENT.—To the extent

it is not in conflict with the provisions of this Act, the Reclaimed

Water Exchange Agreement among the cities of Chandler and Mesa,

Arizona, the Community, and the United States, attached as exhibit

18.1 to the Gila River agreement, is authorized, ratified, and confirmed, and the Secretary shall execute the agreement. To the

extent amendments are executed to make the Reclaimed Water

Exchange Agreement consistent with this title, such amendments

are also authorized, ratified, and confirmed.

(e) PAYMENT OF CHARGES.—Neither the Community nor any

recipient of Community CAP water through lease or exchange shall

be obligated to pay water service capital charges or any other

charges, payments, or fees for the CAP water, except as provided

in the lease or exchange agreement.

(f) PROHIBITIONS.—

(1) USE OUTSIDE THE STATE.—None of the Community CAP

water shall be leased, exchanged, forborne, or otherwise transferred in any way by the Community for use directly or

indirectly outside the State.

(2) USE OFF RESERVATION.—Except as authorized by this

section and subparagraph 4.7 of the Gila River agreement,

no water made available to the Community under the Gila

River agreement, the Globe Equity Decree, the Haggard Decree,

or this title may be sold, leased, transferred, or used off the

Reservation other than by exchange.

(3) AGREEMENTS WITH THE ARIZONA WATER BANKING

AUTHORITY.—Nothing in this Act or the Gila River agreement

limits the right of the Community to enter into any agreement

with the Arizona Water Banking Authority, or any successor

agency or entity, in accordance with State law.

SEC. 206. SATISFACTION OF CLAIMS.

(a) IN GENERAL.—The benefits realized by the Community,

Community members, and allottees under this title shall be in

complete replacement of and substitution for, and full satisfaction

of, all claims of the Community, Community members, and allottees

for water rights, injury to water rights, injury to water quality

and subsidence damage, except as set forth in the Gila River agreement, under Federal, State, or other law with respect to land

118 STAT. 3508 PUBLIC LAW 108–451—DEC. 10, 2004

within the exterior boundaries of the Reservation, off-Reservation

trust land, and fee land.

(b) NO RECOGNITION OF WATER RIGHTS.—Notwithstanding subsection (a) and except as provided in section 204(a), nothing in

this title has the effect of recognizing or establishing any right

of a Community member or allottee to water on the Reservation.

SEC. 207. WAIVER AND RELEASE OF CLAIMS.

(a) IN GENERAL.— (1) CLAIMS AGAINST THE STATE AND OTHERS.— (A) CLAIMS FOR WATER RIGHTS AND INJURY TO WATER

RIGHTS BY THE COMMUNITY AND THE UNITED STATES ON

BEHALF OF THE COMMUNITY.—Except as provided in

subparagraph 25.12 of the Gila River agreement, the

Community, on behalf of the Community and Community

members (but not members in their capacities as allottees),

and the United States, on behalf of the Community and

Community members (but not members in their capacities

as allottees), as part of the performance of their obligations

under the Gila River agreement, are authorized to execute

a waiver and release of any claims against the State (or

any agency or political subdivision of the State) or any

other person, entity, corporation, or municipal corporation

under Federal, State, or other law for—

(i)(I) past, present, and future claims for water

rights for land within the exterior boundaries of the

Reservation, off-Reservation trust land, and fee land

arising from time immemorial and, thereafter, forever;

and

(II) past, present, and future claims for water

rights arising from time immemorial and, thereafter,

forever, that are based on aboriginal occupancy of land

by the Community and Community members, or their

predecessors;

(ii)(I) past and present claims for injury to water

rights for land within the exterior boundaries of the

Reservation, off-Reservation trust land, and fee land

arising from time immemorial through the enforceability date;

(II) past, present, and future claims for injury

to water rights arising from time immemorial and,

thereafter, forever, that are based on aboriginal occupancy of land by the Community and Community members, or their predecessors; and

(III) claims for injury to water rights arising after

the enforceability date for land within the exterior

boundaries of the Reservation, off-Reservation trust

land, and fee land resulting from the off-Reservation

diversion or use of water in a manner not in violation

of the Gila River agreement or State law;

(iii) past, present, and future claims arising out

of or relating in any manner to the negotiation or

execution of the Gila River agreement or the negotiation or enactment of titles I and II; and

(iv)(I) past and present claims for subsidence damage occurring to land within the exterior boundaries

of the Reservation, off-Reservation trust land, or fee

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3509

land arising from time immemorial through the

enforceability date; and

(II) claims for subsidence damage arising after

the enforceability date occurring to land within the

exterior boundaries of the Reservation, off-Reservation

trust land, or fee land resulting from the diversion

of underground water in a manner not in violation

of the Gila River agreement or State law.

(B) CLAIMS FOR WATER RIGHTS AND INJURY TO WATER

RIGHTS BY THE UNITED STATES AS TRUSTEE FOR THE

ALLOTTEES.—Except as provided in subparagraph 25.12 of

the Gila River agreement, the United States, as trustee

for the allottees, as part of the performance of its obligations under the Gila River agreement, is authorized to

execute a waiver and release of any claims against the

State (or any agency or political subdivision of the State)

or any other person, entity, corporation, or municipal corporation under Federal, State, or other law, for—

(i)(I) past, present, and future claims for water

rights for land within the exterior boundaries of the

Reservation arising from time immemorial and, thereafter, forever; and

(II) past, present, and future claims for water

rights arising from time immemorial and, thereafter,

forever, that are based on aboriginal occupancy of land

by allottees, or their predecessors;

(ii)(I) past and present claims for injury to water

rights for land within the exterior boundaries of the

Reservation arising from time immemorial through the

enforceability date;

(II) past, present, and future claims for injury

to water rights arising from time immemorial and,

thereafter, forever, that are based on aboriginal occupancy of land by allottees or their predecessors; and

(III) claims for injury to water rights arising after

the enforceability date for land within the exterior

boundaries of the Reservation resulting from the offReservation diversion or use of water in a manner

not in violation of the Gila River agreement or State

law;

(iii) past, present, and future claims arising out

of or relating in any manner to the negotiation or

execution of the Gila River agreement or the negotiation or enactment of titles I and II; and

(iv) past and present claims for subsidence damage

occurring to land within the exterior boundaries of

the Reservation arising from time immemorial through

the enforceability date.

(C) CLAIMS FOR INJURY TO WATER QUALITY BY THE

COMMUNITY.—Except as provided in subparagraph 25.12

of the Gila River agreement, the Community, on behalf

of the Community and Community members (but not members in their capacities as allottees), as part of the performance of its obligations under the Gila River agreement,

is authorized to execute a waiver and release of any claims,

and to agree to waive its right to request the United

States to bring any claims, against the State (or any agency

118 STAT. 3510 PUBLIC LAW 108–451—DEC. 10, 2004

or political subdivision of the State) or any other person,

entity, corporation, or municipal corporation under Federal,

State, or other law for—

(i) past and present claims for injury to water

quality (other than claims arising out of the actions

that resulted in the remediations described in exhibit

25.4.1.1 to the Gila River agreement), including claims

for trespass, nuisance, and real property damage and

claims under all current and future Federal, State,

and other environmental laws and regulations,

including claims under the Comprehensive Environmental Response, Compensation, and Liability Act of

1980 (42 U.S.C. 9601 et seq.) and the Arizona Water

Quality Assurance Revolving Fund (Ariz. Rev. Stat.

49–281 et seq. as amended) arising from time immemorial through December 31, 2002, for land within the

exterior boundaries of the Reservation, off-Reservation

trust land, and fee land;

(ii) past, present, and future claims for injury to

water quality (other than claims arising out of actions

that resulted in the remediations described in exhibit

25.4.1.1 to the Gila River agreement), including claims

for trespass, nuisance, and real property damage and

claims under all current and future Federal, State,

and other environmental laws and regulations,

including claims under the Comprehensive Environmental Response, Compensation, and Liability Act of

1980 (42 U.S.C. 9601 et seq.) and the Arizona Water

Quality Assurance Revolving Fund (Ariz. Rev. Stat.

49–281 et seq.), arising from time immemorial and,

thereafter, forever, that are based on aboriginal occupancy of land by the Community and Community members, or their predecessors;

(iii) claims for injury to water quality (other than

claims arising out of actions that resulted in the

remediations described in exhibit 25.4.1.1 to the Gila

River agreement) arising after December 31, 2002,

including claims for trespass, nuisance, and real property damage and claims under all current and future

Federal, State, and other environmental laws and regulations, including claims under the Comprehensive

Environmental Response, Compensation, and Liability

Act of 1980 (42 U.S.C. 9601 et seq.) and the Arizona

Water Quality Assurance Revolving Fund (Ariz. Rev.

Stat. 49–9281 et seq.), that result from—

(I) the delivery of water to the Community;

(II) the off-Reservation diversion (other than

pumping), or ownership or operation of structures

for the off-Reservation diversion (other than

pumping), of water;

(III) the off-Reservation pumping, or ownership or operation of structures for the off-Reservation pumping, of water in a manner not in violation

of the Gila River agreement or of any applicable

pumping limitations under State law;

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3511

(IV) the recharge, or ownership or operation

of structures for the recharge, of water under a

State permit; and

(V) the off-Reservation application of water

to land for irrigation,

except that the waiver provided in this clause shall

extend only to the State (or any agency or political

subdivision of the State) or any other person, entity,

or municipal or other corporation to the extent that

the person, entity, or corporation is engaged in an

activity specified in this clause.

(D) PAST AND PRESENT CLAIMS FOR INJURY TO WATER

QUALITY BY THE UNITED STATES.—Except as provided in

subparagraph 25.12 of the Gila River agreement and except

for any claims arising out of the actions that resulted

in the remediations described in exhibit 25.4.1.1 to the

Gila River agreement, the United States, acting as trustee

for the Community, Community members and allottees,

and as part of the performance of its obligations under

the Gila River agreement, to the extent consistent with

this section, is authorized to execute a waiver and release

of any claims arising from time immemorial through

December 31, 2002, for injury to water quality where all

of the following conditions are met:

(i) The claims are brought solely on behalf of the

Community, members, or allottees.

(ii) The claims are brought against the State (or

any agency or political subdivision of the State) or

any person, entity, corporation, or municipal corporation.

(iii) The claims arise under Federal, State, or other

law, including claims, if any, for trespass, nuisance,

and real property damage, and claims, if any, under

any current or future Federal, State, or other environmental laws or regulation, including under the Comprehensive Environmental Response, Compensation,

and Liability Act of 1980 (42 U.S.C. 9601 et seq.)

or the Arizona Water Quality Assurance Revolving

Fund (Ariz. Rev. Stat. 49–281 et seq.).

(iv) The claimed injury is to land, water, or natural

resources located on trust land within the exterior

boundaries of the Reservation or on off-Reservation

trust land.

(E) FUTURE CLAIMS FOR INJURY TO WATER QUALITY

BY THE UNITED STATES.—Except as provided in subparagraph 25.12 of the Gila River agreement and except for

any claims arising out of the actions that resulted in the

remediations described in exhibit 25.4.1.1 to the Gila River

agreement, the United States, in its own right and as

trustee for the Community, its members and allottees, as

part of the performance of its obligations under the Gila

River agreement, to the extent consistent with this section,

is authorized to execute a waiver and release of the following claims for injury or threat of injury to water quality

arising after December 31, 2002, against the State (or

any agency or political subdivision of the State) or any

118 STAT. 3512 PUBLIC LAW 108–451—DEC. 10, 2004

other person, entity, corporation, or municipal corporation

under Federal, State, or other law:

(i) All common law claims for injury or threat

of injury to water quality where the injury or threat

of injury asserted is to the Community’s, Community

members’ or allottees’ interests in trust land, water,

or natural resources located within the exterior boundaries of the Reservation or within off-Reservation trust

lands caused by—

(I) the delivery of water to the Community;

(II) the off-Reservation diversion (other than

pumping), or ownership or operation of structures

for the off-Reservation diversion (other than

pumping), of water;

(III) the off-Reservation pumping, or ownership or operation of structures for the off-Reservation pumping, of water in a manner not in violation

of the Gila River agreement or of any applicable

pumping limitations under State law;

(IV) the recharge, or ownership or operation

of structures for the recharge, of water under a

State permit; and

(V) the off-Reservation application of water

to land for irrigation.

(ii) All natural resource damage claims for injury

or threat of injury to water quality where the United

States, through the Secretary of the Interior or other

designated officials, would act on behalf of the Community, its members or allottees as a natural resource

trustee pursuant to the National Contingency Plan,

(as currently set forth in section 300.600(b)(2) of title

40, Code of Federal Regulations, or as it may hereafter

be amended), and where the claim is based on injury

to natural resources or threat of injury to natural

resources within the exterior boundaries of the Reservation or off-Reservation trust lands, caused by—

(I) the delivery of water to the Community;

(II) the off-Reservation diversion (other than

pumping), or ownership or operation of structures

for the off-Reservation diversion (other than

pumping), of water;

(III) the off-Reservation pumping, or ownership or operation of structures for the off-Reservation pumping, of water in a manner not in violation

of the Gila River agreement or of any applicable

pumping limitations under State law;

(IV) the recharge, or ownership or operation

of structures for the recharge, of water under a

State permit; and

(V) the off-Reservation application of water

to land for irrigation.

(F) CLAIMS BY THE COMMUNITY AGAINST THE SALT RIVER

PROJECT.—

(i) IN GENERAL.—Except as provided in subparagraph 25.12 of the Gila River agreement, to the extent

consistent with this section, the Community, on behalf

of the Community and Community members (but not

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3513

members in their capacities as allottees), as part of

the performance of its obligations under the Gila River

agreement, is authorized to execute a waiver and

release of claims against the Salt River Project (or

its successors or assigns or its officers, governors, directors, employees, agents, or shareholders), where all

of the following conditions are met:

(I) The claims are brought solely on behalf

of the Community or its, members.

(II) The claims arise from the discharge,

transportation, seepage, or other movement of

water in, through, or from drains, canals, or other

facilities or land in the Salt River Reservoir District to trust land located within the exterior

boundaries of the Reservation.

(III) The claims arise from time immemorial

through the enforceability date.

(IV) The claims assert a past or present injury

to water rights, injury on the Reservation to water

quality, or injury to trust property located within

the exterior boundaries of the Reservation.

(ii) EFFECT OF WAIVER.—The waiver provided for

in this subparagraph is effective as of December 31,

2002, and shall continue to preclude claims as they

may arise until the enforceability date, or until such

time as the Salt River Project alters its historical operations of the drains, canals, or other facilities within

the Salt River Reservoir District in a manner that

would cause significant harm to trust lands within

the exterior boundaries of the Reservation, whichever

occurs earlier.

(G) CLAIMS BY THE UNITED STATES AGAINST THE SALT

RIVER PROJECT.—

(i) IN GENERAL.—Except as provided in subparagraph 25.12 of the Gila River agreement, to the extent

consistent with this section, the United States, acting

as trustee for the Community, Community members

and allottees, and as part of the performance of its

obligations under the Gila River agreement, is authorized to execute a waiver and release of claims against

the Salt River Project (or its successors or assigns

or its officers, governors, directors, employees, agents,

or shareholders), where all of the following conditions

are met:

(I) The claims are brought solely on behalf

of the Community, members, or allottees.

(II) The claims arise from the discharge,

transportation, seepage, or other movement of

water in, through, or from drains, canals, or other

facilities or land in the Salt River Reservoir District to trust land located within the exterior

boundaries of the Reservation.

(III) The claims arise from time immemorial

through the enforceability date.

(IV) The claims assert a past or present injury

to water rights, injury on the Reservation to water

Effective date.

118 STAT. 3514 PUBLIC LAW 108–451—DEC. 10, 2004

quality, or injury to trust property located within

the exterior boundaries of the Reservation.

(ii) EFFECT OF WAIVER.—The waiver provided for

in this subsection is effective as of December 31, 2002,

and shall continue to preclude claims as they may

arise until the enforceability date, or until such time

as the Salt River Project alters its historical operations

of the drains, canals, or other facilities within the

Salt River Reservoir District in a manner that would

cause significant harm to trust lands within the exterior boundaries of the Reservation, whichever occurs

earlier.

(H) UNITED STATES ENFORCEMENT AUTHORITY.—Except

as provided in subparagraphs (D), (E), and (G), nothing

in this Act or the Gila River agreement affects any right

of the United States, or the State, to take any action,

including environmental actions, under any laws (including

regulations and the common law) relating to human health,

safety, or the environment.

(2) CLAIMS FOR SUBSIDENCE BY THE COMMUNITY, ALLOTTEES,

AND THE UNITED STATES ON BEHALF OF THE COMMUNITY AND

ALLOTTEES.—In accordance with the subsidence remediation

program under section 209, the Community, a Community

member, or an allottee, and the United States, on behalf of

the Community, a Community member, or an allottee, as part

of the performance of obligations under the Gila River agreement, are authorized to execute a waiver and release of all

claims against the State (or any agency or political subdivision

of the State) or any other person, entity, corporation or municipal corporation under Federal, State, or other law for the

damage claimed.

(3) CLAIMS AGAINST THE COMMUNITY.—

(A) IN GENERAL.—Except as provided in subparagraph

25.12 of the Gila River agreement, to the extent consistent

with this Act, the United States, in all its capacities (except

as trustee for an Indian tribe other than the Community),

as part of the performance of obligations under the Gila

River agreement, is authorized to execute a waiver and

release of any and all claims against the Community, or

any agency, official, or employee of the Community, under

Federal, State, or any other law for—

(i) past and present claims for subsidence damage

to trust land within the exterior boundaries of the

Reservation, off-Reservation trust lands, and fee land

arising from time immemorial through the enforceability date; and

(ii) past, present, and future claims arising out

of or relating in any manner to the negotiation or

execution of the Gila River agreement or the negotiation or enactment of titles I and II.

(4) CLAIMS AGAINST THE UNITED STATES.— (A) IN GENERAL.—Except as provided in subparagraph

25.12 of the Gila River agreement, the Community, on

behalf of the Community and Community members (but

not members in their capacities as allottees), as part of

the performance of obligations under the Gila River agreement, is authorized to execute a waiver and release of

Effective date.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3515

any claim against the United States (or agencies, officials,

or employees of the United States) under Federal, State,

or other law for—

(i)(I) past, present, and future claims for water

rights for land within the exterior boundaries of the

Reservation, off-Reservation trust land, and fee land

arising from time immemorial and, thereafter, forever;

and

(II) past, present, and future claims for water

rights arising from time immemorial and, thereafter,

forever, that are based on aboriginal occupancy of land

by the Community and Community members, or their

predecessors;

(ii)(I) past and present claims for injury to water

rights for land within the exterior boundaries of the

Reservation, off-Reservation trust land, and fee land

arising from time immemorial through the enforceability date;

(II) past, present, and future claims for injury

to water rights arising from time immemorial and,

thereafter, forever, that are based on aboriginal occupancy of land by the Community and Community members, or their predecessors; and

(III) claims for injury to water rights arising after

the enforceability date for land within the exterior

boundaries of the Reservation, off-Reservation trust

land, or fee land resulting from the off-Reservation

diversion or use of water in a manner not in violation

of the Gila River agreement or applicable law;

(iii) past, present, and future claims arising out

of or relating in any manner to the negotiation or

execution of the Gila River agreement or the negotiation or enactment of titles I and II;

(iv)(I) past and present claims for subsidence damage occurring to land within the exterior boundaries

of the Reservation, off-Reservation trust land, or fee

land arising from time immemorial through the

enforceability date; and

(II) claims for subsidence damage arising after

the enforceability date occurring to land within the

exterior boundaries of the Reservation, off-Reservation

trust land or fee land resulting from the diversion

of underground water in a manner not in violation

of the Gila River agreement or applicable law;

(v) past and present claims for failure to protect,

acquire, or develop water rights for or on behalf of

the Community and Community members arising

before December 31, 2002; and

(vi) past, present, and future claims relating to

failure to assert any claims expressly waived pursuant

to section 207(a)(1) (C) through (E).

(B) EXHAUSTION OF REMEDIES.—To the extent that

members in their capacity as allottees assert that this

title impairs or alters their present or future claims to

water or constitutes an injury to present or future water

rights, the members shall be required to exhaust their

118 STAT. 3516 PUBLIC LAW 108–451—DEC. 10, 2004

remedies pursuant to the tribal water code prior to

asserting claims against the United States.

(5) CLAIMS AGAINST CERTAIN PERSONS AND ENTITIES IN THE

UPPER GILA VALLEY.— (A) BY THE COMMUNITY AND THE UNITED STATES.— Except as provided in the UVD agreement, the Community,

on behalf of the Community and Community members

(but not members in their capacities as allottees), and

the United States on behalf of the Community and Community members (but not members in their capacities as

allottees), are authorized, as part of the performance of

obligations under the UVD agreement, to execute a waiver

and release of the following claims against the UV signatories and the UV Non-signatories (and the predecessors

in interest of each) for—

(i)(I) past, present, and future claims for water

rights for land within the exterior boundaries of the

Reservation and the San Carlos Irrigation Project

arising from time immemorial and, thereafter, forever;

and

(II) past, present, and future claims for water

rights arising from time immemorial and, thereafter,

forever, that are based on aboriginal occupancy of land

by the Community, Community members, or predecessors of the Community or Community members;

(ii)(I) past, present, and future claims for injuries

to water rights for land within the exterior boundaries

of the Reservation or the San Carlos Irrigation Project

arising from time immemorial and, thereafter, forever;

(II) past, present, and future claims for injury

to water rights arising from time immemorial and,

thereafter, forever, that are based on aboriginal occupancy of land by the Community, Community members, or predecessors of Community members, for so

long as and to the extent that any individual beneficiary of such waiver is acting in a manner that is

consistent with and not in violation of or contrary

to the terms, conditions, requirements, limitations, or

other provisions of the UVD agreement;

(III) claims for injury to water rights arising after

the enforceability date for land within the exterior

boundaries of the Reservation and the San Carlos

Irrigation Project, resulting from the diversion,

pumping, or use of water in a manner that is consistent

with and not in violation of or contrary to the terms,

conditions, limitations, requirements, or provisions of

the UVD agreement; and

(IV) claims for injury to water rights arising after

the enforceability date for water rights transferred to

the Project pursuant to section 211 resulting from the

diversion, pumping or use of water in a manner that

is consistent with and not in violation of or contrary

to the terms, conditions, limitations, requirements, or

provisions of the UVD agreement;

(iii)(I) past, present, and future claims for injuries

to water rights arising out of or relating to the use

of water rights appurtenant to New Mexico 381 acres,

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3517

on the conditions that such water rights remain subject

to the oversight and reporting requirements set forth

in the decree in Arizona v. California, 376 U.S. 340

(1964), and that the State of New Mexico shall make

available on request a copy of any records prepared

pursuant to that decree; and

(II) past, present, and future claims arising out

of and relating to the use of water rights for New

Mexico domestic purposes, on the conditions that such

water rights remain subject to the oversight and

reporting requirements set forth in the decree in

Arizona v. California, 376 U.S. 340 (1964), and that

the State of New Mexico shall make available on

request a copy of any records prepared pursuant to

that decree; and

(iv) past, present, and future claims arising out

of or relating to the negotiation or execution of the

UVD agreement, or the negotiation or enactment of

titles I and II.

(B) BY THE UNITED STATES ON BEHALF OF ALLOTTEES.—

Except as provided in the UVD agreement, to the extent

consistent with this section, the United States as trustee

for the allottees, as part of the performance under the

UVD agreement, is authorized to execute a waiver and

release of the following claims under Federal, State, or

other law against the UV signatories and the UV Nonsignatories (and the predecessors in interest of each) for—

(i)(I) past, present, and future claims for water

rights for land within the exterior boundaries of the

Reservation arising from time immemorial, and thereafter, forever; and

(II) past, present, and future claims for water

rights arising from time immemorial and, thereafter,

forever, that are based on aboriginal occupancy of lands

by allottees or their predecessors;

(ii)(I) past and present claims for injury to water

rights for lands within the exterior boundaries of the

Reservation arising from time immemorial, through

the enforceability date, for so long as and to the extent

that any individual beneficiary of such waiver is acting

in a manner that is consistent with and not in violation

of or contrary to the terms, conditions, requirements,

limitations, or other provisions of the UVD agreement;

(II) past, present, and future claims for injury

to water rights arising from time immemorial and,

thereafter, forever, that are based on aboriginal occupancy of lands by allottees or their predecessors, for

so long as and to the extent that any individual beneficiary of such waiver is acting in a manner that is

consistent with and not in violation of or contrary

to the terms, conditions, requirements, limitations, or

other provisions of the UVD agreement; and

(III) claims for injury to water rights for land

within the exterior boundaries of the Reservation

arising after the enforceability date resulting from the

diversion, pumping, or use of water in a manner that

is consistent with and not in violation of or contrary

118 STAT. 3518 PUBLIC LAW 108–451—DEC. 10, 2004

to the terms, conditions, limitations, requirements, or

provisions of the UVD agreement;

(iii)(I) past, present, and future claims for injuries

to water rights arising out of or relating to the use

of water rights appurtenant to New Mexico 381 acres,

on the conditions that such water rights remain subject

to the oversight and reporting requirements set forth

in the decree in Arizona v. California, 376 U.S. 340

(1964), as supplemented, and that the State of New

Mexico shall make available on request a copy of any

records prepared pursuant to that decree; and

(II) past, present, and future claims arising out

of or relating to the use of water rights for New Mexico

domestic purposes, on the conditions that such water

rights remain subject to the oversight and reporting

requirements set forth in the decree in Arizona v.

California, 376 U.S. 340 (1964), as supplemented, and

that the State of New Mexico shall make available

on request a copy of any records prepared pursuant

to that decree; and

(iv) past, present, and future claims arising out

of or relating to the negotiation or execution of the

UVD agreement, or the negotiation or enactment of

titles I and II.

(C) ADDITIONAL WAIVER OF CERTAIN CLAIMS BY THE

UNITED STATES.—Except as provided in the UVD Agreement, the United States (to the extent the waiver and

release authorized by this subparagraph is not duplicative

of the waiver and release provided in subparagraph (B)

and to the extent the United States holds legal title to

(but not the beneficial interest in) the water rights as

described in article V or VI of the Globe Equity Decree

(but not on behalf of the San Carlos Apache Tribe pursuant

to article VI(2) of the Globe Equity Decree) on behalf of

lands within the San Carlos Irrigation and Drainage District and the Miscellaneous Flow Lands) shall execute a

waiver and release of the following claims under Federal,

State or other law against the UV signatories and the

UV Non-signatories (and the predecessors of each) for—

(i) past, present, and future claims for water rights

for land within the San Carlos Irrigation and Drainage

District and the Miscellaneous Flow Lands arising from

time immemorial, and thereafter, forever;

(ii)(I) past and present claims for injury to water

rights for land within the San Carlos Irrigation and

Drainage District and the Miscellaneous Flow Lands

arising from time immemorial through the enforceability date, for so long as and to the extent that

any individual beneficiary of such waiver is acting

in a manner that is consistent with and not in violation

of or contrary to the terms, conditions, requirements,

limitations, or other provisions of the UVD agreement;

(II) claims for injury to water rights arising after

the enforceability date for land within the San Carlos

Irrigation and Drainage District and the Miscellaneous

Flow Lands resulting from the diversion, pumping,

or use of water in a manner that is consistent with

Records.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3519

and not in violation of or contrary to the terms, conditions, limitations, requirements, or provisions of the

UVD agreement;

(iii)(I) past, present, and future claims for injuries

to water rights arising out of or relating to the use

of water rights appurtenant to New Mexico 381 acres,

on the conditions that such water rights remain subject

to the oversight and reporting requirements set forth

in the decree in Arizona v. California, 376 U.S. 340

(1964), as supplemented, and that the State of New

Mexico shall make available on request a copy of any

records prepared pursuant to that decree; and

(II) past, present, and future claims arising out

of or relating to the use of water rights for New Mexico

domestic purposes, on the conditions that such water

rights remain subject to the oversight and reporting

requirements set forth in the decree in Arizona v.

California, 376 U.S. 340 (1964), as supplemented, and

that the State of New Mexico shall make available

on request a copy of any records prepared pursuant

to that decree; and

(iv) past, present, and future claims arising out

of or relating to the negotiation or execution of the

UVD agreement, or the negotiation or enactment of

titles I and II.

(6) TRIBAL WATER QUALITY STANDARDS.—The Community,

on behalf of the Community and Community members, as part

of the performance of its obligations under the Gila River

agreement, is authorized to agree never to adopt any water

quality standards, or ask the United States to promulgate

such standards, that are more stringent than water quality

standards adopted by the State if the Community’s adoption

of such standards could result in the imposition by the State

or the United States of more stringent water quality limitations

or requirements than those that would otherwise be imposed

by the State or the United States on—

(A) any water delivery system used to deliver water

to the Community; or

(B) the discharge of water into any such system.

(b) EFFECTIVENESS OF WAIVER AND RELEASES.—

(1) IN GENERAL.—The waivers under paragraphs (1) and

(3) through (5) of subsection (a) shall become effective on the

enforceability date.

(2) CLAIMS FOR SUBSIDENCE DAMAGE.—The waiver under

subsection (a)(2) shall become effective on execution of the

waiver by—

(A) the Community, a Community member, or an

allottee; and

(B) the United States, on behalf of the Community,

a Community member, or an allottee.

(c) ENFORCEABILITY DATE.— (1) IN GENERAL.—This section takes effect on the date

on which the Secretary publishes in the Federal Register a

statement of findings that—

(A) to the extent the Gila River agreement conflicts

with this title, the Gila River agreement has been revised

through an amendment to eliminate the conflict and the

Effective date.

Federal Register,

publication.

Effective date.

Records.

118 STAT. 3520 PUBLIC LAW 108–451—DEC. 10, 2004

Gila River agreement, so revised, has been executed by

the Secretary and the Governor of the State;

(B) the Secretary has fulfilled the requirements of—

(i) paragraphs (1)(A)(i) and (2) of subsection (a)

and subsections (b) and (d) of section 104; and

(ii) sections 204, 205, and 209(a);

(C) the master agreement authorized, ratified, and confirmed by section 106(a) has been executed by the parties

to the master agreement, and all conditions to the enforceability of the master agreement have been satisfied;

(D) $53,000,000 has been identified and retained in

the Lower Colorado River Basin Development Fund for

the benefit of the Community in accordance with section

107(b);

(E) the State has appropriated and paid to the Community any amount to be paid under paragraph 27.4 of the

Gila River agreement;

(F) the Salt River Project has paid to the Community

$500,000 under subparagraph 16.9 of the Gila River agreement;

(G) the judgments and decrees attached to the Gila

River agreement as exhibits 25.18A (Gila River adjudication proceedings) and 25.18B (Globe Equity Decree proceedings) have been approved by the respective courts;

(H) the dismissals attached to the Gila River agreement as exhibits 25.17.1A and B, 25.17.2, and 25.17.3A

and B have been filed with the respective courts and any

necessary dismissal orders entered;

(I) legislation has been enacted by the State to—

(i) implement the Southside Replenishment Program in accordance with subparagraph 5.3 of the Gila

River agreement;

(ii) authorize the firming program required by section 105; and

(iii) establish the Upper Gila River Watershed

Maintenance Program in accordance with subparagraph 26.8.1 of the Gila River agreement;

(J) the State has entered into an agreement with the

Secretary to carry out the obligation of the State under

section 105(b)(2)(A); and

(K) a final judgment has been entered in Central

Arizona Water Conservation District v. United States (No.

CIV 95–625–TUC–WDB(EHC), No. CIV 95–1720PHX–

EHC) (Consolidated Action) in accordance with the repayment stipulation.

(2) FAILURE OF ENFORCEABILITY DATE TO OCCUR.—If,

because of the failure of the enforceability date to occur by

December 31, 2007, this section does not become effective,

the Community, Community members, and allottees, and the

United States on behalf of the San Carlos Irrigation and Drainage District, the Community, Community members, and

allottees, shall retain the right to assert past, present, and

future water rights claims, claims for injury to water rights,

claims for injury to water quality, and claims for subsidence

damage as to all land within the exterior boundaries of the

Reservation, off-Reservation trust land, and fee land.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3521

(d) ALL LAND WITHIN EXTERIOR BOUNDARIES OF THE RESERVA- TION.—Notwithstanding section 2(42), for purposes of this section,

section 206, and section 210(d)—

(1) the term ‘‘land within the exterior boundaries of the

Reservation’’ includes—

(A) land within the Reservation created pursuant to

the Act of February 28, 1859, and modified by the executive

orders of August 31, 1876, June 14, 1879, May 5, 1882,

November 15, 1883, July 31, 1911, June 2, 1913, August

27, 1914, and July 19, 1915; and

(B) land located in sections 16 and 36, T. 4 S., R.

4 E., Salt and Gila River Baseline and Meridian; and

(2) the term ‘‘off-Reservation’’ refers to land located outside

the exterior boundaries of the Reservation (as defined in paragraph (1)).

(e) NO RIGHTS TO WATER.—Upon the occurrence of the enforceability date—

(1) all land held by the United States in trust for the

Community, Community members, and allottees and all land

held by the Community within the exterior boundaries of the

Reservation shall have no rights to water other than those

specifically granted to the Community and the United States

for the Reservation pursuant to paragraph 4.0 of the Gila

River agreement; and

(2) all water usage on land within the exterior boundaries

of the Reservation, including the land located in sections 16

and 36, T. 4 S., R. 4 E., Salt and Gila River Baseline and

Meridian, upon acquisition by the Community or the United

States on behalf of the Community, shall be taken into account

in determining compliance by the Community and the United

States with the limitations on total diversions specified in

subparagraph 4.2 of the Gila River agreement.

SEC. 208. GILA RIVER INDIAN COMMUNITY WATER OM&R TRUST

FUND.

(a) ESTABLISHMENT.—There is established in the Treasury of

the United States a fund to be known as the ‘‘Gila River Indian

Community Water OM&R Fund’’, to be managed and invested

by the Secretary, consisting of $53,000,000, the amount made available for this purpose under paragraph (2)(B) of section 403(f) of

the Colorado River Basin Project Act (43 U.S.C. 1543(f)) (as

amended by section 107(a)).

(b) MANAGEMENT.—The Secretary shall manage the Water

OM&R Fund, make investments from the Fund, and make monies

available from the Fund for distribution to the Community consistent with the American Indian Trust Fund Management Reform

Act of 1994 (25 U.S.C. 4001 et seq.), hereafter referred to in this

section as the ‘‘Trust Fund Reform Act’’.

(c) INVESTMENT OF THE FUND.—The Secretary shall invest

amounts in the Fund in accordance with—

(1) the Act of April 1, 1880 (21 Stat. 70, chapter 41; 25

U.S.C. 161);

(2) the first section of the Act of June 24, 1938 (52 Stat.

1037, chapter 648; 25 U.S.C. 162a); and

(3) subsection (b).

(d) EXPENDITURES AND WITHDRAWALS.— (1) TRIBAL MANAGEMENT PLAN.—

118 STAT. 3522 PUBLIC LAW 108–451—DEC. 10, 2004

(A) IN GENERAL.—The Community may withdraw all

or part of the Water OM&R Fund on approval by the

Secretary of a tribal management plan as described in

the Trust Fund Reform Act.

(B) REQUIREMENTS.—In addition to the requirements

under the Trust Fund Reform Act, the tribal management

plan shall require that the Community only spend any

funds, as provided in the Gila River agreement, to assist

in paying operation, maintenance, and replacement costs

associated with the delivery of CAP water for Community

purposes.

(2) ENFORCEMENT.—The Secretary may take judicial or

administrative action to enforce the provisions of any tribal

management plan to ensure that the monies withdrawn from

the Water OM&R Fund are used in accordance with this Act.

(3) LIABILITY.—If the Community exercises the right to

withdraw monies from the Water OM&R Fund, neither the

Secretary nor the Secretary of the Treasury shall retain any

liability for the expenditure or investment of the monies withdrawn.

(4) EXPENDITURE PLAN.—

(A) IN GENERAL.—The Community shall submit to the

Secretary for approval an expenditure plan for any portion

of the funds made available under this section that the

Community does not withdraw under this subsection.

(B) DESCRIPTION.—The expenditure plan shall describe

the manner in which, and the purposes for which, funds

of the Community remaining in the Water OM&R Fund

will be used.

(C) APPROVAL.—On receipt of an expenditure plan

under subparagraph (A), the Secretary shall approve the

plan if the Secretary determines that the plan is reasonable

and consistent with this Act.

(5) ANNUAL REPORT.—The Community shall submit to the

Secretary an annual report that describes all expenditures from

the Water OM&R Fund during the year covered by the report.

(e) NO DISTRIBUTION TO MEMBERS.—No part of the principal

of the Water OM&R Fund, or of the interest or income accruing

on the principal, shall be distributed to any Community member

on a per capita basis.

(f) FUNDS NOT AVAILABLE UNTIL ENFORCEABILITY DATE.—

Amounts in the Water OM&R Fund shall not be available for

expenditure or withdrawal by the Community until the enforceability date, or until January 1, 2010, whichever is later.

SEC. 209. SUBSIDENCE REMEDIATION PROGRAM.

(a) IN GENERAL.—Subject to the availability of funds and consistent with the provisions of section 107(a), the Secretary shall

establish a program under which the Bureau of Reclamation shall

repair and remediate subsidence damage and related damage that

occurs after the enforceability date.

(b) DAMAGE.—Under the program, the Community, a Community member, or an allottee may submit to the Secretary a request

for the repair or remediation of—

(1) subsidence damage; and

(2) damage to personal property caused by the settling

of geologic strata or cracking in the earth’s surface of any

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3523

length or depth, which settling or cracking is caused by

pumping of underground water.

(c) REPAIR OR REMEDIATION.—The Secretary shall perform the

requested repair or remediation if—

(1) the Secretary determines that the Community has not

exceeded its right to withdraw underground water under the

Gila River agreement; and

(2) the Community, Community member, or allottee, and

the Secretary as trustee for the Community, Community

member, or allottee, execute a waiver and release of claim

in the form specified in exhibit 25.9.1, 25.9.2, or 25.9.3 to

the Gila River agreement, as applicable, to become effective

on satisfactory completion of the requested repair or remediation, as determined under the Gila River agreement.

(d) SPECIFIC SUBSIDENCE DAMAGE.—Subject to the availability

of funds, the Secretary, acting through the Commissioner of Reclamation, shall repair, remediate, and rehabilitate the subsidence

damage that has occurred to land before the enforceability date

within the Reservation, as specified in exhibit 30.21 to the Gila

River agreement.

SEC. 210. AFTER-ACQUIRED TRUST LAND.

(a) REQUIREMENT OF ACT OF CONGRESS.—The Community may

seek to have legal title to additional land in the State located

outside the exterior boundaries of the Reservation taken into trust

by the United States for the benefit of the Community pursuant

only to an Act of Congress enacted after the date of enactment

of this Act specifically authorizing the transfer for the benefit

of the Community.

(b) WATER RIGHTS.—After-acquired trust land shall not include

federally reserved rights to surface water or groundwater.

(c) SENSE OF CONGRESS.—It is the sense of Congress that

future Acts of Congress authorizing land to be taken into trust

under subsection (a) should provide that such land will have only

such water rights and water use privileges as would be consistent

with State water law and State water management policy.

(d) ACCEPTANCE OF LAND IN TRUST STATUS.— (1) IN GENERAL.—If the Community acquires legal fee title

to land that is located within the exterior boundaries of the

Reservation (as defined in section 207(d)), the Secretary shall

accept the land in trust status for the benefit of the Community

upon receipt by the Secretary of a submission from the Community that provides evidence that—

(A) the land meets the Department of the Interior’s

minimum environmental standards and requirements for

real estate acquisitions set forth in 602 DM 2.6, or any

similar successor standards or requirements for real estate

acquisitions in effect on the date of the Community’s

submission; and

(B) the title to the land meets applicable Federal title

standards in effect on the date of the Community’s submission.

(2) RESERVATION STATUS.—Land taken or held in trust

by the Secretary under paragraph (1) shall be deemed part

of the Community’s reservation.

SEC. 211. REDUCTION OF WATER RIGHTS.

(a) REDUCTION OF TBI ELIGIBLE ACRES.—

118 STAT. 3524 PUBLIC LAW 108–451—DEC. 10, 2004

(1) IN GENERAL.—Consistent with this title and as provided

in the UVD agreement to assist in reducing the total water

demand for irrigation use in the upper valley of the Gila River,

the Secretary shall provide funds to the Gila Valley Irrigation

District and the Franklin Irrigation District (hereafter in this

section referred to as ‘‘the Districts’’) for the acquisition of

UV decreed water rights and the extinguishment of those rights

to decrease demands on the Gila River, or severance and

transfer of those rights to the San Carlos Irrigation Project

for the benefit of the Community and the San Carlos Irrigation

and Drainage District in accordance with applicable law.

(2) ACQUISITIONS.— (A) REQUIRED PHASE I ACQUISITION.—Not later than

December 31 of the third calendar year that begins after

the enforceability date (or December 31 of the first calendar

year that begins after the payment provided by subparagraph (D)(iii), if later), the Districts shall acquire the UV

decreed water rights appurtenant to 1,000 acres of land

(other than special hot lands).

(B) REQUIRED PHASE II ACQUISITION.—Not later than

December 31 of the sixth calendar year that begins after

the enforceability date (or December 31 of the first calendar

year that begins after the payment provided by subparagraph (D)(iii), if later), the Districts shall acquire the UV

decreed water rights appurtenant to 1,000 acres of land

(other than special hot lands). The reduction of TBI eligible

acres under this subparagraph shall be in addition to that

accomplished under subparagraph (A).

(C) ADDITIONAL ACQUISITION IN CASE OF SETTLEMENT.—

If the San Carlos Apache Tribe reaches a comprehensive

settlement that is approved by Congress and finally

approved by all courts the approval of which is required,

the Secretary shall offer to acquire for fair market value

the UV decreed water rights associated with not less than

500 nor more than 3,000 TBI eligible acres of land (other

than special hot lands).

(D) METHODS OF ACQUISITION FOR RIGHTS ACQUIRED

PURSUANT TO SUBPARAGRAPHS (A) AND (B).—

(i) DETERMINATION OF VALUE.—

(I) APPRAISALS.—Not later than December 31

of the first calendar year that begins after the

enforceability date in the case of the phase I

acquisition, and not later than December 31 of

the fourth calendar year that begins after the

enforceability date in the case of the phase II

acquisition, the Districts shall submit to the Secretary an appraisal of the average value of water

rights appurtenant to 1,000 TBI eligible acres.

(II) REVIEW.—The Secretary shall review the

appraisal submitted to ensure its consistency with

the Uniform Appraisal Standards for Federal Land

Acquisition and notify the Districts of the results

of the review within 30 days of submission of the

appraisal. In the event that the Secretary finds

that the appraisal is not consistent with such

standards, the Secretary shall so notify the Districts with a full explanation of the reasons for

Notification.

Deadlines.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3525

that finding. Within 60 days of being notified by

the Secretary that the appraisal is not consistent

with such Standards, the Districts shall resubmit

an appraisal to the Secretary that is consistent

with such standards. The Secretary shall review

the resubmitted appraisal to ensure its consistency

with nationally approved standards and notify the

Districts of the results of the review within 30

days of resubmission.

(III) PETITION.—In the event that the Secretary finds that such resubmitted appraisal is

not consistent with those Standards, either the

Districts or the Secretary may petition a Federal

court in the District of Arizona for a determination

of whether the appraisal is consistent with nationally approved Standards. If such court finds the

appraisal is so consistent, the value stated in the

appraisal shall be final for all purposes. If such

court finds the appraisal is not so consistent, the

court shall determine the average value of water

rights appurtenant to 1,000 TBI eligible acres.

(IV) NO OBJECTION.—If the Secretary does not

object to an appraisal within the time periods provided in this clause (i), the value determined in

the appraisal shall be final for all purposes.

(ii) APPRAISAL.—In determining the value of water

rights pursuant to this paragraph, any court, the Districts, the Secretary, and any appraiser shall take into

account the obligations the owner of the land (to which

the rights are appurtenant) will have after acquisition

for phreatophyle control as provided in the UVD agreement and to comply with environmental laws because

of the acquisition and severance and transfer or

extinguishment of the water rights.

(iii) PAYMENT.—No more than 30 days after the

average value of water rights appurtenant to 1,000

acres of land has been determined in accordance with

clauses (i) and (ii), the Secretary shall pay 125 percent

of such values to the Districts.

(iv) REDUCTION OF ACREAGE.—No later than

December 31 of the first calendar year that begins

after each such payment, the Districts shall acquire

the UV decreed water rights appurtenant to one thousand (1,000) acres of lands that would have been

included in the calculation of TBI eligible acres (other

than special hot lands), if the calculation of TBI eligible

acres had been undertaken at the time of acquisition.

To the extent possible, the Districts shall select the

rights to be acquired in compliance with subsection

5.3.7 of the UVD agreement.

(3) REDUCTION OF TBI ELIGIBLE ACRES.—Simultaneously

with the acquisition of UV decreed water rights under paragraph (2), the number of TBI eligible acres, but not the number

of acres of UV subjugated land, shall be reduced by the number

of acres associated with those UV decreed water rights.

(4) ALTERNATIVES TO ACQUISITION.—

Notification.

118 STAT. 3526 PUBLIC LAW 108–451—DEC. 10, 2004

(A) SPECIAL HOT LANDS.—After the payments provided

by paragraph (2)(D)(iii), the Districts may fulfill the

requirements of paragraphs (2) and (3) in full or in part,

by entering into an agreement with an owner of special

hot lands to prohibit permanently future irrigation of the

special hot lands if the UVD settling parties

simultaneously—

(i) acquire UV decreed water rights associated with

a like number of UV decreed acres that are not TBI

eligible acres; and

(ii) sever and transfer those rights to the San

Carlos Irrigation Project for the benefit of the Community and the San Carlos Irrigation and Drainage District.

(B) FALLOWING AGREEMENT.—After the payment provided by paragraph (2)(D)(iii), the Districts may fulfill the

requirements of paragraphs (2) and (3) in full or in part,

by entering into an agreement with 1 or more owners

of UV decreed acres and the UV irrigation district in which

the acres are located, if any, under which—

(i) the number of TBI eligible acres is reduced;

but

(ii) the owner of the UV decreed acres subject

to the reduction is permitted to periodically irrigate

the UV decreed acres under a fallowing agreement

authorized under the UVD agreement.

(5) DISPOSITION OF ACQUIRED WATER RIGHTS.—

(A) IN GENERAL.—Of the UV decreed water rights

acquired by the Districts pursuant to subparagraphs (A)

and (B) of paragraph (2), the Districts shall, in accordance

with all applicable law and the UVD agreement—

(i) sever, and transfer to the San Carlos Irrigation

Project for the benefit of the Community and the San

Carlos Irrigation and Drainage District, the UV

decreed water rights associated with up to 900 UV

decreed acres; and

(ii) extinguish the balance of the UV decreed water

rights so acquired (except and only to the extent that

those rights are associated with a fallowing agreement

authorized under paragraph (4)(B)).

(B) SAN CARLOS APACHE SETTLEMENT.—With respect

to water rights acquired by the Secretary pursuant to paragraph (2)(C), the Secretary shall, in accordance with

applicable law—

(i) cause to be severed and transferred to the San

Carlos Irrigation Project, for the benefit of the Community and the San Carlos Irrigation and Drainage District, the UV decreed water rights associated with 200

UV decreed acres;

(ii) cause to be extinguished the UV decreed water

rights associated with 300 UV decreed acres; and

(iii) cause to be transferred the balance of those

acquired water rights to the San Carlos Apache Tribe

pursuant to the terms of the settlement described in

paragraph (2)(C).

(6) MITIGATION.—To the extent the Districts, after the payments provided by paragraph (2)(D)(iii), do not comply with

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3527

the acquisition requirements of paragraph (2) or otherwise

comply with the alternatives to acquisition provided by paragraph (4), the Districts shall provide mitigation to the San

Carlos Irrigation Project as provided by the UVD agreement.

(b) ADDITIONAL REDUCTIONS.—

(1) COOPERATIVE PROGRAM.—In addition to the reduction

of TBI eligible acres to be accomplished under subsection (a),

not later than 1 year after the enforceability date, the Secretary

and the UVD settling parties shall cooperatively establish a

program to purchase and extinguish UV decreed water rights

associated with UV decreed acres that have not been recently

irrigated.

(2) FOCUS.—The primary focus of the program under paragraph (1) shall be to prevent any land that contains riparian

habitat from being reclaimed for irrigation.

(3) FUNDS AND RESOURCES.—The program under this subsection shall not require any expenditure of funds, or commitment of resources, by the UVD signatories other than such

incidental expenditures of funds and commitments of resources

as are required to cooperatively participate in the program.

SEC. 212. NEW MEXICO UNIT OF THE CENTRAL ARIZONA PROJECT.

(a) REQUIRED APPROVALS.—The Secretary shall not execute the

Gila River agreement pursuant to section 203(b), and the agreement

shall not become effective, unless and until the New Mexico

Consumptive Use and Forbearance Agreement has been executed

by all signatory parties and approved by the State of New Mexico.

(b) NEW MEXICO CONSUMPTIVE USE AND FORBEARANCE AGREEMENT.—

(1) IN GENERAL.—Except to the extent a provision of the

New Mexico Consumptive Use and Forbearance Agreement conflicts with a provision of this title, the New Mexico Consumptive

Use and Forbearance Agreement is authorized, ratified, and

confirmed. To the extent amendments are executed to make

the New Mexico Consumptive Use and Forbearance Agreement

consistent with this title, such amendments are also authorized,

ratified, and confirmed.

(2) EXECUTION.—To the extent the New Mexico Consumptive Use and Forbearance Agreement does not conflict with

this title, the Secretary shall execute the New Mexico Consumptive Use and Forbearance Agreement, including all exhibits

to which the Secretary is a party to the New Mexico Consumptive Use and Forbearance Agreement and any amendments

to the New Mexico Consumptive Use and Forbearance necessary to make it consistent with this title.

(c) NEW MEXICO UNIT AGREEMENT.—The Secretary is authorized to execute the New Mexico Unit Agreement, which agreement

shall be executed within 1 year of receipt by the Secretary of

written notice from the State of New Mexico that the State of

New Mexico intends to build the New Mexico Unit, which notice

must be received not later than December 31, 2014. The New

Mexico Unit Agreement shall, among other things, provide that—

(1) all funds from the Lower Colorado River Basin Development Fund disbursed in accordance with section 403(f)(2)(D)

(i) and (ii) of the Colorado River Basin Project Act (as amended

by section 107(a)) shall be nonreimbursable (and such costs

Deadlines.

Notice.

118 STAT. 3528 PUBLIC LAW 108–451—DEC. 10, 2004

shall be excluded from the repayment obligation, if any, of

the NM CAP entity under the New Mexico Unit Agreement);

(2) in determining payment for CAP water under the New

Mexico Unit Agreement, the NM CAP entity shall be responsible only for its share of operations, maintenance, and replacement costs (and no capital costs attendant to other units or

portions of the Central Arizona Project shall be charged to

the NM CAP entity);

(3) upon request by the NM CAP entity, the Secretary

shall transfer to the NM CAP entity the responsibility to design,

build, or operate and maintain the New Mexico Unit, or all

or any combination of those responsibilities, provided that the

Secretary shall not transfer the authority to divert water pursuant to the New Mexico Consumptive Use and Forbearance

Agreement, provided further that the Secretary, shall remain

responsible to the parties to the New Mexico Consumptive

Use and Forbearance Agreement for the NM CAP entity’s

compliance with the terms and conditions of that agreement;

(4) the Secretary shall divert water and otherwise exercise

her rights and authorities pursuant to the New Mexico

Consumptive Use and Forbearance Agreement solely for the

benefit of the NM CAP entity and for no other purpose;

(5) the NM CAP entity shall own and hold title to all

portions of the New Mexico Unit constructed pursuant to the

New Mexico Unit Agreement; and

(6) the Secretary shall provide a waiver of sovereign immunity for the sole and exclusive purpose of resolving a dispute

in Federal court of any claim, dispute, or disagreement arising

under the New Mexico Unit Agreement.

(d) AMENDMENT TO SECTION 304.—Section 304(f) of the Colorado

River Basin Project Act (43 U.S.C. 1524(f)) is amended—

(1) by striking paragraph (1) and inserting the following:

‘‘(1) In the operation of the Central Arizona Project, the Secretary shall offer to contract with water users in the State

of New Mexico, with the approval of its Interstate Stream

Commission, or with the State of New Mexico, through its

Interstate Stream Commission, for water from the Gila River,

its tributaries and underground water sources in amounts that

will permit consumptive use of water in New Mexico of not

to exceed an annual average in any period of 10 consecutive

years of 14,000 acre-feet, including reservoir evaporation, over

and above the consumptive uses provided for by article IV

of the decree of the Supreme Court of the United States in

Arizona v. California (376 U.S. 340). Such increased consumptive uses shall continue only so long as delivery of Colorado

River water to downstream Gila River users in Arizona is

being accomplished in accordance with this Act, in quantities

sufficient to replace any diminution of their supply resulting

from such diversion from the Gila River, its tributaries and

underground water sources. In determining the amount

required for this purpose, full consideration shall be given

to any differences in the quality of the water involved.’’;

(2) by striking paragraph (2); and

(3) by redesignating paragraph (3) as paragraph (2).

(e) COST LIMITATION.—In determining payment for CAP water

under the New Mexico Consumptive Use and Forbearance Agreement, the NM CAP entity shall be responsible only for its share

Contracts.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3529

of operations, maintenance, and repair costs. No capital costs

attendant to other Units or portions of the Central Arizona Project

shall be charged to the NM CAP entity.

(f) EXCLUSION OF COSTS.—For the purpose of determining the

allocation and repayment of costs of the Central Arizona Project

under the CAP Repayment Contract, the costs associated with

the New Mexico Unit and the delivery of Central Arizona Project

water pursuant to the New Mexico Consumptive Use and Forbearance Agreement shall be nonreimbursable, and such costs shall

be excluded from the Central Arizona Water Conservation District’s

repayment obligation.

(g) NEW MEXICO UNIT CONSTRUCTION AND OPERATIONS.—The

Secretary is authorized to design, build, and operate and maintain

the New Mexico Unit. Upon request by the State of New Mexico,

the Secretary shall transfer to the NM CAP entity responsibility

to design, build, or operate and maintain the New Mexico Unit,

or all or any combination of those functions.

(h) NATIONAL ENVIRONMENTAL POLICY ACT.—

(1) ENVIRONMENTAL COMPLIANCE.—Upon execution of the

New Mexico Consumptive Use and Forbearance Agreement and

the New Mexico Unit Agreement, the Secretary shall promptly

comply with all aspects of the National Environmental Policy

Act of 1969 (42 U.S.C. 4321 et seq.), the Endangered Species

Act of 1973 (16 U.S.C. 1531 et seq.), and all other applicable

environmental Acts and regulations.

(2) EXECUTION OF THE NEW MEXICO CONSUMPTIVE USE AND

FORBEARANCE AGREEMENT AND THE NEW MEXICO UNIT AGREEMENT.—Execution of the New Mexico Consumptive Use and

Forbearance Agreement and the New Mexico Unit Agreement

by the Secretary under this section shall not constitute a major

Federal action under the National Environmental Policy Act

(42 U.S.C. 4321 et seq.). The Secretary is directed to carry

out all necessary environmental compliance required by Federal

law in implementing the New Mexico Consumptive Use and

Forbearance Agreement and the New Mexico Unit Agreement.

(3) LEAD AGENCY.—The Bureau of Reclamation shall be

designated as the lead agency with respect to environmental

compliance. Upon request by the State of New Mexico to the

Secretary, the State of New Mexico shall be designated as

joint lead agency with respect to environmental compliance.

(i) NEW MEXICO UNIT FUND.—The Secretary shall deposit the

amounts made available under paragraph (2)(D)(i) of section 403(f)

of the Colorado River Basin Project Act (43 U.S.C. 1543(f)) (as

amended by section 107(a)) into the New Mexico Unit Fund, a

State of New Mexico Fund established and administered by the

New Mexico Interstate Stream Commission. Withdrawals from the

New Mexico Unit Fund shall be for the purpose of paying costs

of the New Mexico Unit or other water utilization alternatives

to meet water supply demands in the Southwest Water Planning

Region of New Mexico, as determined by the New Mexico Interstate

Stream Commission in consultation with the Southwest New Mexico

Water Study Group or its successor, including costs associated

with planning and environmental compliance activities and environmental mitigation and restoration.

(j) ADDITIONAL FUNDING FOR NEW MEXICO UNIT.—The Secretary shall pay for an additional portion of the costs of constructing

the New Mexico Unit from funds made available under paragraph

Deadlines.

118 STAT. 3530 PUBLIC LAW 108–451—DEC. 10, 2004

(2)(D)(ii) of section 403(f) of the Colorado River Basin Project Act

(43 U.S.C. 1543(f)) (as amended by section 107(a)) on a construction

schedule basis, up to a maximum amount under this subparagraph

(j) of $34,000,000, as adjusted to reflect changes since January

1, 2004, in the construction cost indices applicable to the types

of construction involved in construction of the New Mexico Unit,

upon satisfaction of the conditions that—

(1) the State of New Mexico must provide notice to the

Secretary in writing not later than December 31, 2014, that

the State of New Mexico intends to have constructed or developed the New Mexico Unit; and

(2) the Secretary must have issued in the Federal Register

not later than December 31, 2019, a Record of Decision

approving the project based on an environmental analysis

required pursuant to applicable Federal law and on a demonstration that construction of a project for the New Mexico

Unit that would deliver an average annual safe yield, based

on a 50-year planning period, greater than 10,000 acre feet

per year, would not cost more per acre foot of water diverted

than a project sized to produce an average annual safe yield

of 10,000 acre feet per year. If New Mexico exercises all reasonable efforts to obtain the issuance of such Record of Decision,

but the Secretary is not able to issue such Record of Decision

by December 31, 2019, for reasons outside the control of the

State of New Mexico, the Secretary may extend the deadline

for a reasonable period of time, not to extend beyond December

31, 2030.

(k) RATE OF RETURN EXCEEDING 4 PERCENT.—If the rate of

return on carryover funds held in the Lower Colorado Basin

Development Fund on the date that construction of the New Mexico

Unit is initiated exceeds an average effective annual rate of 4

percent for the period beginning on the date of enactment of this

Act through the date of initiation of construction of the New Mexico

Unit, the Secretary shall pay an additional portion of the costs

of the construction costs associated with the New Mexico Unit,

on a construction schedule basis, using funds made available under

paragraph (2)(D)(ii) of section 403(f) of the Colorado River Basin

Project Act (43 U.S.C. 1543(f)) (as amended by section 107(a)).

The amount of such additional payments shall be equal to 25

percent of the total return on the carryover funds earned during

the period in question that is in excess of a return on such funds

at an annual average effective return of 4 percent, up to a maximum

total of not more than $28,000,000, as adjusted to reflect changes

since January 1, 2004, in the construction cost indices applicable

to the types of construction involved in construction of the New

Mexico Unit.

(l) DISCLAIMER.—Nothing in this Act shall affect, alter, or

diminish rights to use of water of the Gila River within New

Mexico, or the authority of the State of New Mexico to administer

such rights for use within the State, as such rights are quantified

by article IV of the decree of the United States Supreme Court

in Arizona v. California (376 U.S. 340).

(m) PRIORITY OF OTHER EXCHANGES.—The Secretary shall not

approve any exchange of Gila River water for water supplied by

the CAP that would amend, alter, or conflict with the exchanges

authorized by section 304(f) of the Colorado River Basin Project

Act (43 U.S.C. 1524(f)).

Federal Register,

publication.

Notices.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3531

SEC. 213. MISCELLANEOUS PROVISIONS.

(a) WAIVER OF SOVEREIGN IMMUNITY.—If any party to the Gila

River agreement or signatory to an exhibit executed pursuant to

section 203(b) or to the New Mexico Consumptive Use and Forbearance Agreement brings an action in any court of the United States

or any State court relating only and directly to the interpretation

or enforcement of this title or the Gila River agreement (including

enforcement of any indemnity provisions contained in the Gila

River agreement) or the New Mexico Consumptive Use and Forbearance Agreement, and names the United States or the Community

as a party, or if any other landowner or water user in the Gila

River basin in Arizona (except any party referred to in subparagraph 28.1.4 of the Gila River agreement) files a lawsuit relating

only and directly to the interpretation or enforcement of subparagraph 6.2, subparagraph 6.3, paragraph 25, subparagraph 26.2,

subparagraph 26.8, and subparagraph 28.1.3 of the Gila River

agreement, naming the United States or the Community as a

party—

(1) the United States, the Community, or both, may be

joined in any such action; and

(2) any claim by the United States or the Community

to sovereign immunity from the action is waived, but only

for the limited and sole purpose of such interpretation or

enforcement (including any indemnity provisions contained in

the Gila River agreement).

(b) EFFECT OF ACT.—Nothing in this title quantifies or otherwise affects the water rights, or claims or entitlements to water,

of any Indian tribe, band, or community, other than the Community.

(c) LIMITATION ON CLAIMS FOR REIMBURSEMENT.—The United

States shall not make a claim for reimbursement of costs arising

out of the implementation of this title or the Gila River agreement

against any Indian-owned land within the Reservation, and no

assessment shall be made in regard to those costs against that

land.

(d) NO EFFECT ON FUTURE ALLOCATIONS.—Water received

under a lease or exchange of Community CAP water under this

title shall not affect any future allocation or reallocation of CAP

water by the Secretary.

(e) COMMUNITY REPAYMENT CONTRACT.—To the extent it is

not in conflict with this Act, the Secretary is directed to and

shall execute Amendment No. 1 to the Community repayment contract, attached as exhibit 8.1 to the Gila River agreement, to provide, among other things, that the costs incurred under that contract

shall be nonreimbursable by the Community. To the extent amendments are executed to make Amendment No. 1 consistent with

this title, such amendments are also authorized, ratified, and confirmed.

(f) SALT RIVER PROJECT RIGHTS AND CONTRACTS.—

(1) IN GENERAL.—Subject to paragraph (2), the agreement

between the United States and the Salt River Valley Water

Users’ Association dated September 6, 1917, as amended, and

the rights of the Salt River Project to store water from the

Salt River and Verde River at Roosevelt Dam, Horse Mesa

Dam, Mormon Flat Dam, Stewart Mountain Dam, Horseshoe

Dam, and Bartlett Dam and to deliver the stored water to

shareholders of the Salt River Project and others for all beneficial uses and purposes recognized under State law and to

118 STAT. 3532 PUBLIC LAW 108–451—DEC. 10, 2004

the Community under the Gila River agreement, are authorized, ratified, and confirmed.

(2) PRIORITY DATE; QUANTIFICATION.—The priority date and

quantification of rights described in paragraph (1) shall be

determined in an appropriate proceeding in State court.

(3) CARE, OPERATION, AND MAINTENANCE.—The Salt River

Project shall retain authority and responsibility existing on

the date of enactment of this Act for decisions relating to

the care, operation, and maintenance of the Salt River Project

water delivery system, including the Salt River Project reservoirs on the Salt River and Verde River, vested in Salt

River Project under the 1917 agreement, as amended, described

in paragraph (1).

(g) UV IRRIGATION DISTRICTS.— (1) IN GENERAL.—As partial consideration for obligations

the UV irrigation districts shall be undertaking, the obligation

to comply with the terms and conditions of term 5 of exhibit

2.30 (New Mexico Risk Allocation Terms) to the New Mexico

Consumptive Use and Forbearance Agreement, the Gila Valley

Irrigation District, in 2010, shall receive funds from the Secretary in an amount of $15,000,000 (adjusted to reflect changes

since the date of enactment of this Act in the cost indices

applicable to the type of design and construction involved in

the design and construction of a pipeline at or upstream from

the Ft. Thomas Diversion Dam to the lands farmed by the

San Carlos Apache Tribe, together with canal connections

upstream from the Ft. Thomas Diversion Dam and connection

devices appropriate to introduce pumped water into the Pipeline).

(2) RESTRICTION.—The funds to be received by the Gila

Valley Irrigation District shall be used solely for the purpose

of developing programs or constructing facilities to assist with

mitigating the risks and costs associated with compliance with

the terms and conditions of term 5 of exhibit 2.30 (New Mexico

Risk Allocation Terms) of the New Mexico Consumptive and

Forbearance Agreement, and for no other purpose.

(h) LIMITATION ON LIABILITY OF UNITED STATES.—

(1) IN GENERAL.—The United States shall have no trust

or other obligation—

(A) to monitor, administer, or account for, in any

manner, any of the funds paid to the Community by any

party to the Gila River agreement; or

(B) to review or approve the expenditure of those funds.

(2) INDEMNIFICATION.—The Community shall indemnify the

United States, and hold the United States harmless, with

respect to any and all claims (including claims for takings

or breach of trust) arising out of the receipt or expenditure

of funds described in paragraph (1)(A).

(i) BLUE RIDGE PROJECT TRANSFER AUTHORIZATION.—

(1) DEFINITIONS.—In this subsection:

(A) BLUE RIDGE PROJECT.—The term ‘‘Blue Ridge

Project’’ means the water storage reservoir known as ‘‘Blue

Ridge Reservoir’’ situated in Coconino and Gila Counties,

Arizona, consisting generally of—

(i) Blue Ridge Dam and all pipelines, tunnels,

buildings, hydroelectric generating facilities, and other

structures of every kind, transmission, telephone and

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3533

fiber optic lines, pumps, machinery, tools, and appliances; and

(ii) all real or personal property, appurtenant to

or used, or constructed or otherwise acquired to be

used, in connection with Blue Ridge Reservoir.

(B) SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT

AND POWER DISTRICT.—The term ‘‘Salt River Project Agricultural Improvement and Power District’’ means the Salt

River Project Agricultural Improvement and Power District,

a political subdivision of the State of Arizona.

(2) TRANSFER OF TITLE.—The United States, acting through

the Secretary of the Interior, shall accept from the Salt River

Project Agricultural Improvement and Power District the

transfer of title to the Blue Ridge Project. The transfer of

title to the Blue Ridge Project from the Salt River Project

Agricultural Improvement and Power District to the United

States shall be without cost to the United States. The transfer,

change of use or change of place of use of any water rights

associated with the Blue Ridge Project shall be made in accordance with Arizona law.

(3) USE AND BENEFIT OF SALT RIVER FEDERAL RECLAMATION

PROJECT.—

(A) IN GENERAL.—Subject to subparagraph (B), the

United States shall hold title to the Blue Ridge Project

for the exclusive use and benefit of the Salt River Federal

Reclamation Project.

(B) AVAILABILITY OF WATER.—Up to 3,500 acre-feet of

water per year may be made available from Blue Ridge

Reservoir for municipal and domestic uses in Northern

Gila County, Arizona, without cost to the Salt River Federal

Reclamation Project.

(4) TERMINATION OF JURISDICTION.—

(A) LICENSING AND REGULATORY AUTHORITY.—Upon the

transfer of title of the Blue Ridge Project to the United

States under paragraph (2), the Federal Energy Regulatory

Commission shall have no further licensing and regulatory

authority over Project Number 2304, the Blue Ridge

Project, located within the State.

(B) ENVIRONMENTAL LAWS.—All other applicable Federal environmental laws shall continue to apply to the

Blue Ridge Project, including the Endangered Species Act

of 1973 (16 U.S.C. 1531 et seq.) and the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(5) CARE, OPERATION, AND MAINTENANCE.—Upon the

transfer of title of the Blue Ridge Project to the United States

under paragraph (2), the Salt River Valley Water Users’

Association and the Salt River Project Agricultural Improvement and Power District shall be responsible for the care,

operation, and maintenance of the project pursuant to the contract between the United States and the Salt River Valley

Water Users’ Association, dated September 6, 1917, as

amended.

(6) C.C. CRAGIN DAM & RESERVOIR.—Upon the transfer of

title of the Blue Ridge Project to the United States under

paragraph (2), Blue Ridge Dam and Reservoir shall thereafter

be known as the ‘‘C.C. Cragin Dam and Reservoir’’.

118 STAT. 3534 PUBLIC LAW 108–451—DEC. 10, 2004

(j) EFFECT ON CURRENT LAW; JURISDICTION OF COURTS.— Nothing in this section—

(1) alters law in effect on the day before the date of enactment of this Act with respect to pre-enforcement review of

Federal environmental enforcement actions; or

(2) confers jurisdiction on any State court to interpret subparagraphs (D), (E), and (G) of section 207(a)(1) where such

jurisdiction does not otherwise exist.

SEC. 214. AUTHORIZATION OF APPROPRIATIONS.

(a) AUTHORIZATION OF APPROPRIATIONS.— (1) REHABILITATION OF IRRIGATION WORKS.— (A) IN GENERAL.—There is authorized to be appro- priated $52,396,000, adjusted to reflect changes since

January 1, 2000, under subparagraph (B) for the rehabilitation of irrigation works under section 203(d)(4).

(B) ADJUSTMENT.—The amount under subparagraph

(A) shall be adjusted by such amounts, if any, as may

be required by reason of changes in construction costs

as indicated by engineering cost indices applicable to the

types of construction required by the rehabilitation.

(2) BUREAU OF RECLAMATION CONSTRUCTION OVERSIGHT.—

There are authorized to be appropriated such sums as are

necessary for the Bureau of Reclamation to undertake the

oversight of the construction projects authorized under section

203.

(3) SUBSIDENCE REMEDIATION PROGRAM.—There are authorized to be appropriated such sums as are necessary to carry

out the subsidence remediation program under section 209

(including such sums as are necessary, not to exceed $4,000,000,

to carry out the subsidence remediation and repair required

under section 209(d)).

(4) WATER RIGHTS REDUCTION.—There are authorized to

be appropriated such sums as are necessary to carry out the

water rights reduction program under section 211.

(5) SAFFORD FACILITY.—There are authorized to be appropriated such sums as are necessary to—

(A) retire $13,900,000, minus any amounts appropriated for this purpose, of the debt incurred by Safford

to pay costs associated with the construction of the Safford

facility as identified in exhibit 26.1 to the Gila River agreement; and

(B) pay the interest accrued on that amount.

(6) ENVIRONMENTAL COMPLIANCE.—There are authorized

to be appropriated—

(A) such sums as are necessary to carry out—

(i) all necessary environmental compliance activities undertaken by the Secretary associated with the

Gila River agreement and this title;

(ii) any mitigation measures adopted by the Secretary that are the responsibility of the Community

associated with the construction of the diversion and

delivery facilities of the water referred to in section

204 for use on the reservation; and

(iii) no more than 50 percent of the cost of any

mitigation measures adopted by the Secretary that

are the responsibility of the Community associated

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3535

with the diversion or delivery of the water referred

to in section 204 for use on the Reservation, other

than any responsibility related to water delivered to

any other person by lease or exchange; and

(B) to carry out the mitigation measures in the Roosevelt Habitat Conservation Plan, not more than

$10,000,000.

(7) UV IRRIGATION DISTRICTS.—There are authorized to be

appropriated such sums as are necessary to pay the Gila Valley

Irrigation District an amount of $15,000,000 (adjusted to reflect

changes since the date of enactment of the Arizona Water

Settlements Act of 2004 in the cost indices applicable to the

type of design and construction involved in the design and

construction of a pipeline at or upstream from the Ft. Thomas

Diversion Dam to the lands farmed by the San Carlos Apache

Tribe, together with canal connections upstream from the Ft.

Thomas Diversion Dam and connection devices appropriate to

introduce pumped water into the Pipeline).

(b) IDENTIFIED COSTS.—

(1) IN GENERAL.—Amounts made available under subsection (a) shall be considered to be identified costs for purposes

of paragraph (2)(D)(v)(I) of section 403(f) of the Colorado River

Basin Project Act (43 U.S.C. 1543(f)) (as amended by section

107(a)).

(2) EXCEPTION.—Amounts made available under subsection

(a)(4) to carry out section 211(b) shall not be considered to

be identified costs for purposes of section 403(f)(2)(D)(v)(I) of

the Colorado River Basin Project Act (43 U.S.C.

1543(f)(2)(D)(v)(I)) (as amended by section 107(a)).

SEC. 215. REPEAL ON FAILURE OF ENFORCEABILITY DATE.

If the Secretary does not publish a statement of findings under

section 207(c) by December 31, 2007—

(1) except for section 213(i), this title is repealed effective

January 1, 2008, and any action taken by the Secretary and

any contract entered under any provision of this title shall

be void;

(2) any amounts appropriated under paragraphs (1)

through (7) of section 214(a), together with any interest on

those amounts, shall immediately revert to the general fund

of the Treasury;

(3) any amounts made available under section 214(b) that

remain unexpended shall immediately revert to the general

fund of the Treasury; and

(4) any amounts paid by the Salt River Project in accordance with the Gila River agreement shall immediately be

returned to the Salt River Project.

TITLE III—SOUTHERN ARIZONA WATER

RIGHTS SETTLEMENT

SEC. 301. SOUTHERN ARIZONA WATER RIGHTS SETTLEMENT.

The Southern Arizona Water Rights Settlement Act of 1982

(96 Stat. 1274) is amended to read as follows:

43 USC 1501

note.

118 STAT. 3536 PUBLIC LAW 108–451—DEC. 10, 2004

‘‘TITLE III—SOUTHERN ARIZONA WATER

RIGHTS SETTLEMENT

‘‘SEC. 301. SHORT TITLE.

‘‘This title may be cited as the ‘Southern Arizona Water Rights

Settlement Amendments Act of 2004’.

‘‘SEC. 302. PURPOSES.

‘‘The purposes of this title are—

‘‘(1) to authorize, ratify, and confirm the agreements

referred to in section 309(h);

‘‘(2) to authorize and direct the Secretary to execute and

perform all obligations of the Secretary under those agreements;

and

‘‘(3) to authorize the actions and appropriations necessary

for the United States to meet obligations of the United States

under those agreements and this title.

‘‘SEC. 303. DEFINITIONS.

‘‘In this title:

‘‘(1) ACRE-FOOT.—The term ‘acre-foot’ means the quantity

of water necessary to cover 1 acre of land to a depth of 1

foot.

‘‘(2) AFTER-ACQUIRED TRUST LAND.—The term ‘afteracquired trust land’ means land that—

‘‘(A) is located—

‘‘(i) within the State; but

‘‘(ii) outside the exterior boundaries of the Nation’s

Reservation; and

‘‘(B) is taken into trust by the United States for the

benefit of the Nation after the enforceability date.

‘‘(3) AGREEMENT OF DECEMBER 11, 1980.—The term ‘agreement of December 11, 1980’ means the contract entered into

by the United States and the Nation on December 11, 1980.

‘‘(4) AGREEMENT OF OCTOBER 11, 1983.—The term ‘agreement

of October 11, 1983’ means the contract entered into by the

United States and the Nation on October 11, 1983.

‘‘(5) ALLOTTEE.—The term ‘allottee’ means a person that

holds a beneficial real property interest in an Indian allotment

that is—

‘‘(A) located within the Reservation; and

‘‘(B) held in trust by the United States.

‘‘(6) ALLOTTEE CLASS.—The term ‘allottee class’ means an

applicable plaintiff class certified by the court of jurisdiction

in—

‘‘(A) the Alvarez case; or

‘‘(B) the Tucson case.

‘‘(7) ALVAREZ CASE.—The term ‘Alvarez case’ means the

first through third causes of action of the third amended complaint in Alvarez v. City of Tucson (Civ. No. 93–09039 TUC

FRZ (D. Ariz., filed April 21, 1993)).

‘‘(8) APPLICABLE LAW.—The term ‘applicable law’ means

any applicable Federal, State, tribal, or local law.

‘‘(9) ASARCO.—The term ‘Asarco’ means Asarco Incorporated, a New Jersey corporation of that name, and its subsidiaries operating mining operations in the State.

Southern Arizona

Water Rights

Settlement

Amendments Act

of 2004.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3537

‘‘(10) ASARCO AGREEMENT.—The term ‘Asarco agreement’

means the agreement by that name attached to the Tohono

O’odham settlement agreement as exhibit 13.1.

‘‘(11) CAP REPAYMENT CONTRACT.—

‘‘(A) IN GENERAL.—The term ‘CAP repayment contract’

means the contract dated December 1, 1988 (Contract No.

14–0906–09W–09245, Amendment No. 1) between the

United States and the Central Arizona Water Conservation

District for the delivery of water and the repayment of

costs of the Central Arizona Project.

‘‘(B) INCLUSIONS.—The term ‘CAP repayment contract’

includes all amendments to and revisions of that contract.

‘‘(12) CENTRAL ARIZONA PROJECT.—The term ‘Central

Arizona Project’ means the reclamation project authorized and

constructed by the United States in accordance with title III

of the Colorado River Basin Project Act (43 U.S.C. 1521 et

seq.).

‘‘(13) CENTRAL ARIZONA PROJECT LINK PIPELINE.—The term

‘Central Arizona Project link pipeline’ means the pipeline

extending from the Tucson Aqueduct of the Central Arizona

Project to Station 293+36.

‘‘(14) CENTRAL ARIZONA PROJECT SERVICE AREA.—The term

‘Central Arizona Project service area’ means—

‘‘(A) the geographical area comprised of Maricopa,

Pinal, and Pima Counties, Arizona, in which the Central

Arizona Water Conservation District delivers Central

Arizona Project water; and

‘‘(B) any expansion of that area under applicable law.

‘‘(15) CENTRAL ARIZONA WATER CONSERVATION DISTRICT.—

The term ‘Central Arizona Water Conservation District’ means

the political subdivision of the State that is the contractor

under the CAP repayment contract.

‘‘(16) COOPERATIVE FARM.—The term ‘cooperative farm’

means the farm on land served by an irrigation system and

the extension of the irrigation system provided for under paragraphs (1) and (2) of section 304(c).

‘‘(17) COOPERATIVE FUND.—The term ‘cooperative fund’

means the cooperative fund established by section 313 of the

1982 Act and reauthorized by section 310.

‘‘(18) DELIVERY AND DISTRIBUTION SYSTEM.—

‘‘(A) IN GENERAL.—The term ‘delivery and distribution

system’ means—

‘‘(i) the Central Arizona Project aqueduct;

‘‘(ii) the Central Arizona Project link pipeline; and

‘‘(iii) the pipelines, canals, aqueducts, conduits, and

other necessary facilities for the delivery of water

under the Central Arizona Project.

‘‘(B) INCLUSIONS.—The term ‘delivery and distribution

system’ includes pumping facilities, power plants, and electric power transmission facilities external to the boundaries

of any farm to which the water is distributed.

‘‘(19) EASTERN SCHUK TOAK DISTRICT.—The term ‘eastern

Schuk Toak District’ means the portion of the Schuk Toak

District (1 of 11 political subdivisions of the Nation established

under the constitution of the Nation) that is located within

the Tucson management area.

118 STAT. 3538 PUBLIC LAW 108–451—DEC. 10, 2004

‘‘(20) ENFORCEABILITY DATE.—The term ‘enforceability date’

means the date on which title III of the Arizona Water Settlements Act takes effect (as described in section 302(b) of the

Arizona Water Settlements Act).

‘‘(21) EXEMPT WELL.—The term ‘exempt well’ means a water

well—

‘‘(A) the maximum pumping capacity of which is not

more than 35 gallons per minute; and

‘‘(B) the water from which is used for—

‘‘(i) the supply, service, or activities of households

or private residences;

‘‘(ii) landscaping;

‘‘(iii) livestock watering; or

‘‘(iv) the irrigation of not more than 2 acres of

land for the production of 1 or more agricultural or

other commodities for—

‘‘(I) sale;

‘‘(II) human consumption; or

‘‘(III) use as feed for livestock or poultry.

‘‘(22) FEE OWNER OF ALLOTTED LAND.—The term ‘fee owner

of allotted land’ means a person that holds fee simple title

in real property on the Reservation that, at any time before

the date on which the person acquired fee simple title, was

held in trust by the United States as an Indian allotment.

‘‘(23) FICO.—The term ‘FICO’ means collectively the

Farmers Investment Co., an Arizona corporation of that name,

and the Farmers Water Co., an Arizona corporation of that

name.

‘‘(24) INDIAN TRIBE.—The term ‘Indian tribe’ has the

meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b).

‘‘(25) INJURY TO WATER QUALITY.—The term ‘injury to water

quality’ means any contamination, diminution, or deprivation

of water quality under applicable law.

‘‘(26) INJURY TO WATER RIGHTS.—

‘‘(A) IN GENERAL.—The term ‘injury to water rights’

means an interference with, diminution of, or deprivation

of water rights under applicable law.

‘‘(B) INCLUSION.—The term ‘injury to water rights’

includes a change in the underground water table and

any effect of such a change.

‘‘(C) EXCLUSION.—The term ‘injury to water rights’ does

not include subsidence damage or injury to water quality.

‘‘(27) IRRIGATION SYSTEM.—

‘‘(A) IN GENERAL.—The term ‘irrigation system’ means

canals, laterals, ditches, sprinklers, bubblers, and other

irrigation works used to distribute water within the boundaries of a farm.

‘‘(B) INCLUSIONS.—The term ‘irrigation system’, with

respect to the cooperative farm, includes activities, procedures, works, and devices for—

‘‘(i) rehabilitation of fields;

‘‘(ii) remediation of sinkholes, sinks, depressions,

and fissures; and

‘‘(iii) stabilization of the banks of the Santa Cruz

River.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3539

‘‘(28) LOWER COLORADO RIVER BASIN DEVELOPMENT FUND.—

The term ‘Lower Colorado River Basin Development Fund’

means the fund established by section 403 of the Colorado

River Basin Project Act (43 U.S.C. 1543).

‘‘(29) M&I PRIORITY WATER.—The term ‘M&I priority water’

means Central Arizona Project water that has municipal and

industrial priority.

‘‘(30) NATION.—The term ‘Nation’ means the Tohono

O’odham Nation (formerly known as the Papago Tribe) organized under a constitution approved in accordance with section

16 of the Act of June 18, 1934 (25 U.S.C. 476).

‘‘(31) NATION’S RESERVATION.—The term ‘Nation’s Reservation’ means all land within the exterior boundaries of—

‘‘(A) the Sells Tohono O’odham Reservation established

by the Executive order of February 1, 1917, and the Act

of February 21, 1931 (46 Stat. 1202, chapter 267);

‘‘(B) the San Xavier Reservation established by the

Executive order of July 1, 1874;

‘‘(C) the Gila Bend Indian Reservation established by

the Executive order of December 12, 1882, and modified

by the Executive order of June 17, 1909;

‘‘(D) the Florence Village established by Public Law

95–361 (92 Stat. 595);

‘‘(E) all land acquired in accordance with the Gila

Bend Indian Reservation Lands Replacement Act (100 Stat.

1798), if title to the land is held in trust by the Secretary

for the benefit of the Nation; and

‘‘(F) all other land to which the United States holds

legal title in trust for the benefit of the Nation and that

is added to the Nation’s Reservation or granted reservation

status in accordance with applicable Federal law before

the enforceability date.

‘‘(32) NET IRRIGABLE ACRES.—The term ‘net irrigable acres’

means, with respect to a farm, the acreage of the farm that

is suitable for agriculture, as determined by the Nation and

the Secretary.

‘‘(33) NIA PRIORITY WATER.—The term ‘NIA priority water’

means Central Arizona Project water that has non-Indian agricultural priority.

‘‘(34) SAN XAVIER ALLOTTEES ASSOCIATION.—The term ‘San

Xavier Allottees Association’ means the nonprofit corporation

established under State law for the purpose of representing

and advocating the interests of allottees.

‘‘(35) SAN XAVIER COOPERATIVE ASSOCIATION.—The term

‘San Xavier Cooperative Association’ means the entity chartered

under the laws of the Nation (or a successor of that entity)

that is a lessee of land within the cooperative farm.

‘‘(36) SAN XAVIER DISTRICT.—The term ‘San Xavier District’

means the district of that name, 1 of 11 political subdivisions

of the Nation established under the constitution of the Nation.

‘‘(37) SAN XAVIER DISTRICT COUNCIL.—The term ‘San Xavier

District Council’ means the governing body of the San Xavier

District, as established under the constitution of the Nation.

‘‘(38) SAN XAVIER RESERVATION.—The term ‘San Xavier Reservation’ means the San Xavier Indian Reservation established

by the Executive order of July 1, 1874.

118 STAT. 3540 PUBLIC LAW 108–451—DEC. 10, 2004

‘‘(39) SCHUK TOAK FARM.—The term ‘Schuk Toak Farm’

means a farm constructed in the eastern Schuk Toak District

served by the irrigation system provided for under section

304(c)(4).

‘‘(40) SECRETARY.—The term ‘Secretary’ means the Secretary of the Interior.

‘‘(41) STATE.—The term ‘State’ means the State of Arizona.

‘‘(42) SUBJUGATE.—The term ‘subjugate’ means to prepare

land for agricultural use through irrigation.

‘‘(43) SUBSIDENCE DAMAGE.—The term ‘subsidence damage’

means injury to land, water, or other real property resulting

from the settling of geologic strata or cracking in the surface

of the earth of any length or depth, which settling or cracking

is caused by the pumping of water.

‘‘(44) SURFACE WATER.—The term ‘surface water’ means

all water that is appropriable under State law.

‘‘(45) TOHONO O’ODHAM SETTLEMENT AGREEMENT.—The

term ‘Tohono O’odham settlement agreement’ means the agreement dated April 30, 2003 (including all exhibits of and attachments to the agreement).

‘‘(46) TUCSON CASE.—The term ‘Tucson case’ means United

States et al. v. City of Tucson, et al. (Civ. No. 75–0939 TUC

consol. with Civ. No. 75–0951 TUC FRZ (D. Ariz., filed February

20, 1975)).

‘‘(47) TUCSON INTERIM WATER LEASE.—The term ‘Tucson

interim water lease’ means the lease, and any pre-2004 amendments and extensions of the lease, approved by the Secretary,

between the city of Tucson, Arizona, and the Nation, dated

October 24, 1992.

‘‘(48) TUCSON MANAGEMENT AREA.—The term ‘Tucson

management area’ means the area in the State comprised of—

‘‘(A) the area—

‘‘(i) designated as the Tucson Active Management

Area under the Arizona Groundwater Management Act

of 1980 (1980 Ariz. Sess. Laws 1); and

‘‘(ii) subsequently divided into the Tucson Active

Management Area and the Santa Cruz Active Management Area (1994 Ariz. Sess. Laws 296); and

‘‘(B) the portion of the Upper Santa Cruz Basin that

is not located within the area described in subparagraph

(A)(i).

‘‘(49) TURNOUT.—The term ‘turnout’ means a point of water

delivery on the Central Arizona Project aqueduct.

‘‘(50) UNDERGROUND STORAGE.—The term ‘underground

storage’ means storage of water accomplished under a project

authorized under section 308(e).

‘‘(51) UNITED STATES AS TRUSTEE.—The term ‘United States

as Trustee’ means the United States, acting on behalf of the

Nation and allottees, but in no other capacity.

‘‘(52) VALUE.—The term ‘value’ means the value attributed

to water based on the greater of—

‘‘(A) the anticipated or actual use of the water; or

‘‘(B) the fair market value of the water.

‘‘(53) WATER RIGHT.—The term ‘water right’ means any

right in or to groundwater, surface water, or effluent under

applicable law.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3541

‘‘(54) 1982 ACT.—The term ‘1982 Act’ means the Southern

Arizona Water Rights Settlement Act of 1982 (96 Stat. 1274;

106 Stat. 3256), as in effect on the day before the enforceability

date.

‘‘SEC. 304. WATER DELIVERY AND CONSTRUCTION OBLIGATIONS.

‘‘(a) WATER DELIVERY.—The Secretary shall deliver annually

from the main project works of the Central Arizona Project, a

total of 37,800 acre-feet of water suitable for agricultural use,

of which—

‘‘(1) 27,000 acre-feet shall—

‘‘(A) be deliverable for use to the San Xavier Reservation; or

‘‘(B) otherwise be used in accordance with section 309;

and

‘‘(2) 10,800 acre-feet shall—

‘‘(A) be deliverable for use to the eastern Schuk Toak

District; or

‘‘(B) otherwise be used in accordance with section 309.

‘‘(b) DELIVERY AND DISTRIBUTION SYSTEMS.—The Secretary

shall (without cost to the Nation, any allottee, the San Xavier

Cooperative Association, or the San Xavier Allottees Association),

as part of the main project works of the Central Arizona Project,

design, construct, operate, maintain, and replace the delivery and

distribution systems necessary to deliver the water described in

subsection (a).

‘‘(c) DUTIES OF THE SECRETARY.—

‘‘(1) COMPLETION OF DELIVERY AND DISTRIBUTION SYSTEM

AND IMPROVEMENT TO EXISTING IRRIGATION SYSTEM.—Except

as provided in subsection (d), not later than 8 years after

the enforceability date, the Secretary shall complete the design

and construction of improvements to the irrigation system that

serves the cooperative farm.

‘‘(2) EXTENSION OF EXISTING IRRIGATION SYSTEM WITHIN

THE SAN XAVIER RESERVATION.—

‘‘(A) IN GENERAL.—Except as provided in subsection

(d), not later than 8 years after the enforceability date,

in addition to the improvements described in paragraph

(1), the Secretary shall complete the design and construction of the extension of the irrigation system for the

cooperative farm.

‘‘(B) CAPACITY.—On completion of the extension, the

extended cooperative farm irrigation system shall serve

2,300 net irrigable acres on the San Xavier Reservation,

unless the Secretary and the San Xavier Cooperative

Association agree on fewer net irrigable acres.

‘‘(3) CONSTRUCTION OF NEW FARM.—

‘‘(A) IN GENERAL.—Except as provided in subsection

(d), not later than 8 years after the enforceability date,

the Secretary shall—

‘‘(i) design and construct within the San Xavier

Reservation such additional canals, laterals, farm

ditches, and irrigation works as are necessary for the

efficient distribution for agricultural purposes of that

portion of the 27,000 acre-feet annually of water

described in subsection (a)(1) that is not required for

Deadlines.

118 STAT. 3542 PUBLIC LAW 108–451—DEC. 10, 2004

the irrigation systems described in paragraphs (1) and

(2) of subsection (c); or

‘‘(ii) in lieu of the actions described in clause (i),

pay to the San Xavier District $18,300,000 (adjusted

as provided in section 317(a)(2)) in full satisfaction

of the obligations of the United States described in

clause (i).

‘‘(B) ELECTION.—

‘‘(i) IN GENERAL.—The San Xavier District Council

may make a nonrevocable election whether to receive

the benefits described under clause (i) or (ii) of subparagraph (A) by notifying the Secretary by not later than

180 days after the enforceability date or January 1,

2010, whichever is later, by written and certified resolution of the San Xavier District Council.

‘‘(ii) NO RESOLUTION.—If the Secretary does not

receive such a resolution by the deadline specified in

clause (i), the Secretary shall pay $18,300,000 (adjusted

as provided in section 317(a)(2)) to the San Xavier

District in lieu of carrying out the obligations of the

United States under subparagraph (A)(i).

‘‘(C) SOURCE OF FUNDS AND TIME OF PAYMENT.—

‘‘(i) IN GENERAL.—Payment of $18,300,000

(adjusted as provided in section 317(a)(2)) under this

paragraph shall be made by the Secretary from the

Lower Colorado River Basin Development Fund—

‘‘(I) not later than 60 days after an election

described in subparagraph (B) is made (if such

an election is made), but in no event earlier than

the enforceability date or January 1, 2010, whichever is later; or

‘‘(II) not later than 240 days after the enforceability date or January 1, 2010, whichever is later,

if no timely election is made.

‘‘(ii) PAYMENT FOR ADDITIONAL STRUCTURES.—Payment of amounts necessary to design and construct

such additional canals, laterals, farm ditches, and

irrigation works as are described in subparagraph (A)(i)

shall be made by the Secretary from the Lower Colorado River Basin Development Fund, if an election

is made to receive the benefits under subparagraph

(A)(i).

‘‘(4) IRRIGATION AND DELIVERY AND DISTRIBUTION SYSTEMS

IN THE EASTERN SCHUK TOAK DISTRICT.—Except as provided

in subsection (d), not later than 1 year after the enforceability

date, the Secretary shall complete the design and construction

of an irrigation system and delivery and distribution system

to serve the farm that is constructed in the eastern Schuk

Toak District.

‘‘(d) EXTENSION OF DEADLINES.—

‘‘(1) IN GENERAL.—The Secretary may extend a deadline

under subsection (c) if the Secretary determines that compliance

with the deadline is impracticable by reason of—

‘‘(A) a material breach by a contractor of a contract

that is relevant to carrying out a project or activity

described in subsection (c);

Notification.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3543

‘‘(B) the inability of such a contractor, under such

a contract, to carry out the contract by reason of force

majeure, as defined by the Secretary in the contract;

‘‘(C) unavoidable delay in compliance with applicable

Federal and tribal laws, as determined by the Secretary,

including—

‘‘(i) the Endangered Species Act of 1973 (16 U.S.C.

1531 et seq.); and

‘‘(ii) the National Environmental Policy Act of 1969

(42 U.S.C. 4321 et seq.); or

‘‘(D) stoppage in work resulting from the assessment

of a tax or fee that is alleged in any court of jurisdiction

to be confiscatory or discriminatory.

‘‘(2) NOTICE OF FINDING.—If the Secretary extends a deadline under paragraph (1), the Secretary shall—

‘‘(A) publish a notice of the extension in the Federal

Register; and

‘‘(B)(i) include in the notice an estimate of such additional period of time as is necessary to complete the project

or activity that is the subject of the extension; and

‘‘(ii) specify a deadline that provides for a period for

completion of the project before the end of the period

described in clause (i).

‘‘(e) AUTHORITY OF SECRETARY.—

‘‘(1) IN GENERAL.—In carrying out this title, after providing

reasonable notice to the Nation, the Secretary, in compliance

with all applicable law, may enter, construct works on, and

take such other actions as are related to the entry or construction on land within the San Xavier District and the eastern

Schuk Toak District.

‘‘(2) EFFECT ON FEDERAL ACTIVITY.—Nothing in this subsection affects the authority of the United States, or any Federal

officer, agent, employee, or contractor, to conduct official Federal business or carry out any Federal duty (including any

Federal business or duty under this title) on land within the

eastern Schuk Toak District or the San Xavier District.

‘‘(f) USE OF FUNDS.—

‘‘(1) IN GENERAL.—With respect to any funds received under

subsection (c)(3)(A), the San Xavier District—

‘‘(A) shall hold the funds in trust, and invest the funds

in interest-bearing deposits and securities, until expended;

‘‘(B) may expend the principal of the funds, and any

interest and dividends that accrue on the principal, only

in accordance with a budget that is—

‘‘(i) authorized by the San Xavier District Council;

and

‘‘(ii) approved by resolution of the Legislative

Council of the Nation; and

‘‘(C) shall expend the funds—

‘‘(i) for any subjugation of land, development of

water resources, or construction, operation, maintenance, or replacement of facilities within the San

Xavier Reservation that is not required to be carried

out by the United States under this title or any other

provision of law;

‘‘(ii) to provide governmental services, including—

‘‘(I) programs for senior citizens;

Federal Register,

publication.

118 STAT. 3544 PUBLIC LAW 108–451—DEC. 10, 2004

‘‘(II) health care services;

‘‘(III) education;

‘‘(IV) economic development loans and assistance; and

‘‘(V) legal assistance programs;

‘‘(iii) to provide benefits to allottees;

‘‘(iv) to pay the costs of activities of the San Xavier

Allottees Association; or

‘‘(v) to pay any administrative costs incurred by

the Nation or the San Xavier District in conjunction

with any of the activities described in clauses (i)

through (iv).

‘‘(2) NO LIABILITY OF SECRETARY; LIMITATION.— ‘‘(A) IN GENERAL.—The Secretary shall not—

‘‘(i) be responsible for any review, approval, or

audit of the use and expenditure of the funds described

in paragraph (1); or

‘‘(ii) be subject to liability for any claim or cause

of action arising from the use or expenditure, by the

Nation or the San Xavier District, of those funds.

‘‘(B) LIMITATION.—No portion of any funds described

in paragraph (1) shall be used for per capita payments

to any individual member of the Nation or any allottee.

‘‘SEC. 305. DELIVERIES UNDER EXISTING CONTRACT; ALTERNATIVE

WATER SUPPLIES.

‘‘(a) DELIVERY OF WATER.—

‘‘(1) IN GENERAL.—The Secretary shall deliver water from

the main project works of the Central Arizona Project, in such

quantities, and in accordance with such terms and conditions,

as are contained in the agreement of December 11, 1980, the

1982 Act, the agreement of October 11, 1983, and the Tohono

O’odham settlement agreement (to the extent that the settlement agreement does not conflict with this Act), to 1 or more

of—

‘‘(A) the cooperative farm;

‘‘(B) the eastern Schuk Toak District;

‘‘(C) turnouts existing on the enforceability date; and

‘‘(D) any other point of delivery on the Central Arizona

Project main aqueduct that is agreed to by—

‘‘(i) the Secretary;

‘‘(ii) the operator of the Central Arizona Project;

and

‘‘(iii) the Nation.

‘‘(2) DELIVERY.—The Secretary shall deliver the water covered by sections 304(a) and 306(a), or an equivalent quantity

of water from a source identified under subsection (b)(1),

notwithstanding—

‘‘(A) any declaration by the Secretary of a water shortage on the Colorado River; or

‘‘(B) any other occurrence affecting water delivery

caused by an act or omission of—

‘‘(i) the Secretary;

‘‘(ii) the United States; or

‘‘(iii) any officer, employee, contractor, or agent

of the Secretary or United States.

‘‘(b) ACQUISITION OF LAND AND WATER.—

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3545

‘‘(1) DELIVERY.— ‘‘(A) IN GENERAL.—Except as provided in subparagraph

(B), if the Secretary, under the terms and conditions of

the agreements referred to in subsection (a)(1), is unable,

during any year, to deliver annually from the main project

works of the Central Arizona Project any portion of the

quantity of water covered by sections 304(a) and 306(a),

the Secretary shall identify, acquire and deliver an equivalent quantity of water from, any appropriate source.

‘‘(B) EXCEPTION.—The Secretary shall not acquire any

water under subparagraph (A) through any transaction

that would cause depletion of groundwater supplies or

aquifers in the San Xavier District or the eastern Schuk

Toak District.

‘‘(2) PRIVATE LAND AND INTERESTS.— ‘‘(A) ACQUISITION.— ‘‘(i) IN GENERAL.—Subject to subparagraph (B), the

Secretary may acquire, for not more than market value,

such private land, or interests in private land, that

include rights in surface or groundwater recognized

under State law, as are necessary for the acquisition

and delivery of water under this subsection.

‘‘(ii) COMPLIANCE.—In acquiring rights in surface

water under clause (i), the Secretary shall comply with

all applicable severance and transfer requirements

under State law.

‘‘(B) PROHIBITION ON TAKING.—The Secretary shall not

acquire any land, water, water rights, or contract rights

under subparagraph (A) without the consent of the owner

of the land, water, water rights, or contract rights.

‘‘(C) PRIORITY.—In acquiring any private land or

interest in private land under this paragraph, the Secretary

shall give priority to the acquisition of land on which

water has been put to beneficial use during any 1-year

period during the 5-year period preceding the date of

acquisition of the land by the Secretary.

‘‘(3) DELIVERIES FROM ACQUIRED LAND.—Deliveries of water

from land acquired under paragraph (2) shall be made only

to the extent that the water may be transported within the

Tucson management area under applicable law.

‘‘(4) DELIVERY OF EFFLUENT.—

‘‘(A) IN GENERAL.—Except on receipt of prior written

consent of the Nation, the Secretary shall not deliver

effluent directly to the Nation under this subsection.

‘‘(B) NO SEPARATE DELIVERY SYSTEM.—The Secretary

shall not construct a separate delivery system to deliver

effluent to the San Xavier Reservation or the eastern Schuk

Toak District.

‘‘(C) NO IMPOSITION OF OBLIGATION.—Nothing in this

paragraph imposes any obligation on the United States

to deliver effluent to the Nation.

‘‘(c) AGREEMENTS AND CONTRACTS.—To facilitate the delivery

of water to the San Xavier Reservation and the eastern Schuk

Toak District under this title, the Secretary may enter into a

contract or agreement with the State, an irrigation district or

project, or entity—

‘‘(1) for—

118 STAT. 3546 PUBLIC LAW 108–451—DEC. 10, 2004

‘‘(A) the exchange of water; or

‘‘(B) the use of aqueducts, canals, conduits, and other

facilities (including pumping plants) for water delivery;

or

‘‘(2) to use facilities constructed, in whole or in part, with

Federal funds.

‘‘(d) COMPENSATION AND DISBURSEMENTS.— ‘‘(1) COMPENSATION.—If the Secretary is unable to acquire

and deliver sufficient quantities of water under section 304(a),

this section, or section 306(a), the Secretary shall provide compensation in accordance with paragraph (2) in amounts equal

to—

‘‘(A)(i) the value of such quantities of water as are

not acquired and delivered, if the delivery and distribution

system for, and the improvements to, the irrigation system

for the cooperative farm have not been completed by the

deadline required under section 304(c)(1); or

‘‘(ii) the value of such quantities of water as—

‘‘(I) are ordered by the Nation for use by the San

Xavier Cooperative Association in the irrigation

system; but

‘‘(II) are not delivered in any calendar year;

‘‘(B)(i) the value of such quantities of water as are

not acquired and delivered, if the extension of the irrigation

system is not completed by the deadline required under

section 304(c)(2); or

‘‘(ii) the value of such quantities of water as—

‘‘(I) are ordered by the Nation for use by the San

Xavier Cooperative Association in the extension to the

irrigation system; but

‘‘(II) are not delivered in any calendar year; and

‘‘(C)(i) the value of such quantities of water as are

not acquired and delivered, if the irrigation system is not

completed by the deadline required under section 304(c)(4);

or

‘‘(ii) except as provided in clause (i), the value of such

quantities of water as—

‘‘(I) are ordered by the Nation for use in the irrigation system, or for use by any person or entity (other

than the San Xavier Cooperative Association); but

‘‘(II) are not delivered in any calendar year.

‘‘(2) DISBURSEMENT.—Any compensation payable under

paragraph (1) shall be disbursed—

‘‘(A) with respect to compensation payable under subparagraphs (A) and (B) of paragraph (1), to the San Xavier

Cooperative Association; and

‘‘(B) with respect to compensation payable under paragraph (1)(C), to the Nation for retention by the Nation

or disbursement to water users, under the provisions of

the water code or other applicable laws of the Nation.

‘‘(e) NO EFFECT ON WATER RIGHTS.—Nothing in this section

authorizes the Secretary to acquire or otherwise affect the water

rights of any Indian tribe.

‘‘SEC. 306. ADDITIONAL WATER DELIVERY.

‘‘(a) IN GENERAL.—In addition to the delivery of water described

in section 304(a), the Secretary shall deliver annually from the

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3547

main project works of the Central Arizona Project, a total of 28,200

acre-feet of NIA priority water suitable for agricultural use, of

which—

‘‘(1) 23,000 acre-feet shall—

‘‘(A) be delivered to, and used by, the San Xavier

Reservation; or

‘‘(B) otherwise be used by the Nation in accordance

with section 309; and

‘‘(2) 5,200 acre-feet shall—

‘‘(A) be delivered to, and used by, the eastern Schuk

Toak District; or

‘‘(B) otherwise be used by the Nation in accordance

with section 309.

‘‘(b) STATE CONTRIBUTION.—To assist the Secretary in firming

water under section 105(b)(1)(A) of the Arizona Water Settlements

Act, the State shall contribute $3,000,000—

‘‘(1) in accordance with a schedule that is acceptable to

the Secretary and the State; and

‘‘(2) in the form of cash or in-kind goods and services.

‘‘SEC. 307. CONDITIONS ON CONSTRUCTION, WATER DELIVERY, REVENUE SHARING.

‘‘(a) CONDITIONS ON ACTIONS OF SECRETARY.—The Secretary

shall carry out section 304(c), subsections (a), (b), and (d) of section

305, and section 306, only if—

‘‘(1) the Nation agrees—

‘‘(A) except as provided in section 308(f)(1), to limit

the quantity of groundwater withdrawn by nonexempt wells

from beneath the San Xavier Reservation to not more than

10,000 acre-feet;

‘‘(B) except as provided in section 308(f)(2), to limit

the quantity of groundwater withdrawn by nonexempt wells

from beneath the eastern Schuk Toak District to not more

than 3,200 acre-feet;

‘‘(C) to comply with water management plans established by the Secretary under section 308(d);

‘‘(D) to consent to the San Xavier District being deemed

a tribal organization (as defined in section 900.6 of title

25, Code of Federal Regulations (or any successor regulations)) for purposes identified in subparagraph (E)(iii)(I),

as permitted with respect to tribal organizations under

title I of the Indian Self-Determination and Education

Assistance Act (25 U.S.C. 450 et seq.);

‘‘(E) subject to compliance by the Nation with other

applicable provisions of part 900 of title 25, Code of Federal

Regulations (or any successor regulations), to consent to

contracting by the San Xavier District under section 311(b),

on the conditions that—

‘‘(i)(I) the plaintiffs in the Alvarez case and Tucson

case have stipulated to the dismissal, with prejudice,

of claims in those cases; and

‘‘(II) those cases have been dismissed with prejudice;

‘‘(ii) the San Xavier Cooperative Association has

agreed to assume responsibility, after completion of

each of the irrigation systems described in paragraphs

(1), (2), and (3) of section 304(c) and on the delivery

118 STAT. 3548 PUBLIC LAW 108–451—DEC. 10, 2004

of water to those systems, for the operation, maintenance, and replacement of those systems in accordance

with the first section of the Act of August 1, 1914

(25 U.S.C. 385); and

‘‘(iii) with respect to the consent of the Nation

to contracting—

‘‘(I) the consent is limited solely to contracts

for—

‘‘(aa) the design and construction of the

delivery and distribution system and the

rehabilitation of the irrigation system for the

cooperative farm;

‘‘(bb) the extension of the irrigation system

for the cooperative farm;

‘‘(cc) the subjugation of land to be served

by the extension of the irrigation system;

‘‘(dd) the design and construction of storage facilities solely for water deliverable for

use within the San Xavier Reservation; and

‘‘(ee) the completion by the Secretary of

a water resources study of the San Xavier

Reservation and subsequent preparation of a

water management plan under section 308(d);

‘‘(II) the Nation shall reserve the right to seek

retrocession or reassumption of contracts described

in subclause (I), and recontracting under subpart

P and other applicable provisions of part 900 of

title 25, Code of Federal Regulations (or any successor regulations);

‘‘(III) the Nation, on granting consent to such

contracting, shall be released from any responsibility, liability, claim, or cost from and after the

date on which consent is given, with respect to

past action or inaction by the Nation, and subsequent action or inaction by the San Xavier District,

relating to the design and construction of irrigation

systems for the cooperative farm or the Central

Arizona Project link pipeline; and

‘‘(IV) the Secretary shall, on the request of

the Nation, execute a waiver and release to carry

out subclause (III);

‘‘(F) to subjugate, at no cost to the United States,

the land for which the irrigation systems under paragraphs

(2) and (3) of section 304(c) will be planned, designed,

and constructed by the Secretary, on the condition that—

‘‘(i) the obligation of the Nation to subjugate the

land in the cooperative farm that is to be served by

the extension of the irrigation system under section

304(c)(2) shall be determined by the Secretary, in consultation with the Nation and the San Xavier Cooperative Association; and

‘‘(ii) subject to approval by the Secretary of a contract with the San Xavier District executed under section 311, to perform that subjugation, a determination

by the Secretary of the subjugation costs under clause

(i), and the provision of notice by the San Xavier District to the Nation at least 180 days before the date

Deadlines.

Notice.

Certification.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3549

on which the San Xavier District Council certifies by

resolution that the subjugation is scheduled to commence, the Nation pays to the San Xavier District,

not later than 90 days before the date on which the

subjugation is scheduled to commence, from the trust

fund under section 315, or from other sources of funds

held by the Nation, the amount determined by the

Secretary under clause (i); and

‘‘(G) subject to business lease No. H54–16–72 dated

April 26, 1972, of San Xavier Reservation land to Asarco

and approved by the United States on November 14, 1972,

that the Nation—

‘‘(i) shall allocate as a first right of beneficial use

by allottees, the San Xavier District, and other persons

within the San Xavier Reservation—

‘‘(I) 35,000 acre-feet of the 50,000 acre-feet

of water deliverable under sections 304(a)(1) and

306(a)(1), including the use of the allocation—

‘‘(aa) to fulfill the obligations prescribed

in the Asarco agreement; and

‘‘(bb) for groundwater storage, maintenance of instream flows, and maintenance of

riparian vegetation and habitat;

‘‘(II) the 10,000 acre-feet of groundwater

identified in subsection (a)(1)(A);

‘‘(III) the groundwater withdrawn from exempt

wells;

‘‘(IV) the deferred pumping storage credits

authorized by section 308(f)(1)(B); and

‘‘(V) the storage credits resulting from a project

authorized in section 308(e) that cannot be lawfully

transferred or otherwise disposed of to persons

for recovery outside the Nation’s Reservation;

‘‘(ii) subject to section 309(b)(2), has the right—

‘‘(I) to use, or authorize other persons or entities to use, any portion of the allocation of 35,000

acre-feet of water deliverable under sections

304(a)(1) and 306(a)(1) outside the San Xavier Reservation for any period during which there is no

identified actual use of the water within the San

Xavier Reservation;

‘‘(II) as a first right of use, to use the

remaining acre-feet of water deliverable under sections 304(a)(1) and 306(a)(1) for any purpose and

duration authorized by this title within or outside

the Nation’s Reservation; and

‘‘(III) subject to section 308(e), as an exclusive

right, to transfer or otherwise dispose of the storage credits that may be lawfully transferred or

otherwise disposed of to persons for recovery outside the Nation’s Reservation;

‘‘(iii) shall issue permits to persons or entities for

use of the water resources referred to in clause (i);

‘‘(iv) shall, on timely receipt of an order for water

by a permittee under a permit for Central Arizona

Project water referred to in clause (i), submit the order

to—

118 STAT. 3550 PUBLIC LAW 108–451—DEC. 10, 2004

‘‘(I) the Secretary; or

‘‘(II) the operating agency for the Central

Arizona Project;

‘‘(v) shall issue permits for water deliverable under

sections 304(a)(2) and 306(a)(2), including quantities

of water reasonably necessary for the irrigation system

referred to in section 304(c)(3);

‘‘(vi) shall issue permits for groundwater that may

be withdrawn from nonexempt wells in the eastern

Schuk Toak District; and

‘‘(vii) shall, on timely receipt of an order for water

by a permittee under a permit for water referred to

in clause (v), submit the order to—

‘‘(I) the Secretary; or

‘‘(II) the operating agency for the Central

Arizona Project; and

‘‘(2) the Alvarez case and Tucson case have been dismissed

with prejudice.

‘‘(b) RESPONSIBILITIES ON COMPLETION.—On completion of an

irrigation system or extension of an irrigation system described

in paragraph (1) or (2) of section 304(c), or in the case of the

irrigation system described in section 304(c)(3), if such irrigation

system is constructed on individual Indian trust allotments, neither

the United States nor the Nation shall be responsible for the

operation, maintenance, or replacement of the system.

‘‘(c) PAYMENT OF CHARGES.—The Nation shall not be responsible

for payment of any water service capital charge for Central Arizona

Project water delivered under section 304, subsection (a) or (b)

of section 305, or section 306.

‘‘SEC. 308. WATER CODE; WATER MANAGEMENT PLAN; STORAGE

PROJECTS; STORAGE ACCOUNTS; GROUNDWATER.

‘‘(a) WATER RESOURCES.—Water resources described in clauses

(i) and (ii) of section 307(a)(1)(G)—

‘‘(1) shall be subject to section 7 of the Act of February

8, 1887 (25 U.S.C. 381); and

‘‘(2) shall be apportioned pursuant to clauses (i) and (ii)

of section 307(a)(1)(G).

‘‘(b) WATER CODE.—Subject to this title and any other applicable

law, the Nation shall—

‘‘(1) manage, regulate, and control the water resources of

the Nation and the water resources granted or confirmed under

this title;

‘‘(2) establish conditions, limitations, and permit requirements, and promulgate regulations, relating to the storage,

recovery, and use of surface water and groundwater within

the Nation’s Reservation;

‘‘(3) enact and maintain—

‘‘(A) an interim allottee water rights code that—

‘‘(i) is consistent with subsection (a);

‘‘(ii) prescribes the rights of allottees identified

in paragraph (4); and

‘‘(iii) provides that the interim allottee water rights

code shall be incorporated in the comprehensive water

code referred to in subparagraph (B); and

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3551

‘‘(B) not later than 3 years after the enforceability

date, a comprehensive water code applicable to the water

resources granted or confirmed under this title;

‘‘(4) include in each of the water codes enacted under subparagraphs (A) and (B) of paragraph (3)—

‘‘(A) an acknowledgement of the rights described in

subsection (a);

‘‘(B) a process by which a just and equitable distribution of the water resources referred to in subsection (a),

and any compensation provided under section 305(d), shall

be provided to allottees;

‘‘(C) a process by which an allottee may request and

receive a permit for the use of any water resources referred

to in subsection (a), except the water resources referred

to in section 307(a)(1)(G)(ii)(III) and subject to the Nation’s

first right of use under section 307(a)(1)(G)(ii)(II);

‘‘(D) provisions for the protection of due process,

including—

‘‘(i) a fair procedure for consideration and determination of any request by—

‘‘(I) a member of the Nation, for a permit

for use of available water resources granted or

confirmed by this title; and

‘‘(II) an allottee, for a permit for use of—

‘‘(aa) the water resources identified in section 307(a)(1)(G)(i) that are subject to a first

right of beneficial use; or

‘‘(bb) subject to the first right of use of

the Nation, available water resources identified in section 307(a)(1)(G)(i)(II);

‘‘(ii) provisions for—

‘‘(I) appeals and adjudications of denied or disputed permits; and

‘‘(II) resolution of contested administrative

decisions; and

‘‘(iii) a waiver by the Nation of the sovereign immunity of the Nation only with respect to proceedings

described in clause (ii) for claims of declaratory and

injunctive relief; and

‘‘(E) a process for satisfying any entitlement to the

water resources referred to in section 307(a)(1)(G)(i) for

which fee owners of allotted land have received final determinations under applicable law; and

‘‘(5) submit to the Secretary the comprehensive water code,

for approval by the Secretary only of the provisions of the

water code (and any amendments to the water code), that

implement, with respect to the allottees, the standards

described in paragraph (4).

‘‘(c) WATER CODE APPROVAL.—

‘‘(1) IN GENERAL.—On receipt of a comprehensive water

code under subsection (b)(5), the Secretary shall—

‘‘(A) issue a written approval of the water code; or

‘‘(B) provide a written notification to the Nation that—

‘‘(i) identifies such provisions of the water code

that do not conform to subsection (b) or other applicable

Federal law; and

Notification.

Deadline.

118 STAT. 3552 PUBLIC LAW 108–451—DEC. 10, 2004

‘‘(ii) recommends specific corrective language for

each nonconforming provision.

‘‘(2) REVISION BY NATION.—If the Secretary identifies nonconforming provisions in the water code under paragraph

(1)(B)(i), the Nation shall revise the water code in accordance

with the recommendations of the Secretary under paragraph

(1)(B)(ii).

‘‘(3) INTERIM AUTHORITY.—Until such time as the Nation

revises the water code of the Nation in accordance with paragraph (2) and the Secretary subsequently approves the water

code, the Secretary may exercise any lawful authority of the

Secretary under section 7 of the Act of February 8, 1887 (25

U.S.C. 381).

‘‘(4) LIMITATION.—Except as provided in this subsection,

nothing in this title requires the approval of the Secretary

of the water code of the Nation (or any amendment to that

water code).

‘‘(d) WATER MANAGEMENT PLANS.—

‘‘(1) IN GENERAL.—The Secretary shall establish, for the

San Xavier Reservation and the eastern Schuk Toak District,

water management plans that meet the requirements described

in paragraph (2).

‘‘(2) REQUIREMENTS.—Water management plans established

under paragraph (1)—

‘‘(A) shall be developed under contracts executed under

section 311 between the Secretary and the San Xavier

District for the San Xavier Reservation, and between the

Secretary and the Nation for the eastern Schuk Toak District, as applicable, that permit expenditures, exclusive of

administrative expenses of the Secretary, of not more

than—

‘‘(i) with respect to a contract between the Secretary and the San Xavier District, $891,200; and

‘‘(ii) with respect to a contract between the Secretary and the Nation, $237,200;

‘‘(B) shall, at a minimum—

‘‘(i) provide for the measurement of all groundwater withdrawals, including withdrawals from each

well that is not an exempt well;

‘‘(ii) provide for—

‘‘(I) reasonable recordkeeping of water use,

including the quantities of water stored underground and recovered each calendar year; and

‘‘(II) a system for the reporting of withdrawals

from each well that is not an exempt well;

‘‘(iii) provide for the direct storage and deferred

storage of water, including the implementation of

underground storage and recovery projects, in accordance with this section;

‘‘(iv) provide for the annual exchange of information collected under clauses (i) through (iii)—

‘‘(I) between the Nation and the Arizona

Department of Water Resources; and

‘‘(II) between the Nation and the city of Tucson, Arizona;

‘‘(v) provide for—

‘‘(I) the efficient use of water; and

Records.

Contracts.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3553

‘‘(II) the prevention of waste;

‘‘(vi) except on approval of the district council for

a district in which a direct storage project is established under subsection (e), provide that no direct storage credits earned as a result of the project shall

be recovered at any location at which the recovery

would adversely affect surface or groundwater supplies,

or lower the water table at any location, within the

district; and

‘‘(vii) provide for amendments to the water plan

in accordance with this title;

‘‘(C) shall authorize the establishment and maintenance of 1 or more underground storage and recovery

projects in accordance with subsection (e), as applicable,

within—

‘‘(i) the San Xavier Reservation; or

‘‘(ii) the eastern Schuk Toak District; and

‘‘(D) shall be implemented and maintained by the

Nation, with no obligation by the Secretary.

‘‘(e) UNDERGROUND STORAGE AND RECOVERY PROJECTS.—The

Nation is authorized to establish direct storage and recovery projects

in accordance with the Tohono O’odham settlement agreement.

The Secretary shall have no responsibility to fund or otherwise

administer such projects.

‘‘(f) GROUNDWATER.—

‘‘(1) SAN XAVIER RESERVATION.—

‘‘(A) IN GENERAL.—In accordance with section

307(a)(1)(A), 10,000 acre-feet of groundwater may be

pumped annually within the San Xavier Reservation.

‘‘(B) DEFERRED PUMPING.—

‘‘(i) IN GENERAL.—Subject to clause (ii), all or any

portion of the 10,000 acre-feet of water not pumped

under subparagraph (A) in a year—

‘‘(I) may be withdrawn in a subsequent year;

and

‘‘(II) if any of that water is withdrawn, shall

be accounted for in accordance with the Tohono

O’odham settlement agreement as a debit to the

deferred pumping storage account.

‘‘(ii) LIMITATION.—The quantity of water authorized to be recovered as deferred pumping storage

credits under this subparagraph shall not exceed—

‘‘(I) 50,000 acre-feet for any 10-year period;

or

‘‘(II) 10,000 acre-feet in any year.

‘‘(C) RECOVERY OF ADDITIONAL WATER.—In addition to

the quantity of groundwater authorized to be pumped

under subparagraphs (A) and (B), the Nation may annually

recover within the San Xavier Reservation all or a portion

of the credits for water stored under a project described

in subsection (e).

‘‘(2) EASTERN SCHUK TOAK DISTRICT.—

‘‘(A) IN GENERAL.—In accordance with section

307(a)(1)(B), 3,200 acre-feet of groundwater may be pumped

annually within the eastern Schuk Toak District.

‘‘(B) DEFERRED PUMPING.—

118 STAT. 3554 PUBLIC LAW 108–451—DEC. 10, 2004

‘‘(i) IN GENERAL.—Subject to clause (ii), all or any

portion of the 3,200 acre-feet of water not pumped

under subparagraph (A) in a year—

‘‘(I) may be withdrawn in a subsequent year;

and

‘‘(II) if any of that water is withdrawn, shall

be accounted for in accordance with the Tohono

O’odham settlement agreement as a debit to the

deferred pumping storage account.

‘‘(ii) LIMITATION.—The quantity of water authorized to be recovered as deferred pumping storage

credits under this subparagraph shall not exceed—

‘‘(I) 16,000 acre-feet for any 10-year period;

or

‘‘(II) 3,200 acre-feet in any year.

‘‘(C) RECOVERY OF ADDITIONAL WATER.—In addition to

the quantity of groundwater authorized to be pumped

under subparagraphs (A) and (B), the Nation may annually

recover within the eastern Schuk Toak District all or a

portion of the credits for water stored under a project

described in subsection (e).

‘‘(3) INABILITY TO RECOVER GROUNDWATER.—

‘‘(A) IN GENERAL.—The authorizations to pump groundwater in paragraphs (1) and (2) neither warrant nor guarantee that the groundwater—

‘‘(i) physically exists; or

‘‘(ii) is recoverable.

‘‘(B) CLAIMS.—With respect to groundwater described

in subparagraph (A)—

‘‘(i) subject to paragraph 8.8 of the Tohono O’odham

settlement agreement, the inability of any person to

pump or recover that groundwater shall not be the

basis for any claim by the United States or the Nation

against any person or entity withdrawing or using

the water from any common supply; and

‘‘(ii) the United States and the Nation shall be

barred from asserting any and all claims for reserved

water rights with respect to that groundwater.

‘‘(g) EXEMPT WELLS.—Any groundwater pumped from an

exempt well located within the San Xavier Reservation or the

eastern Schuk Toak District shall be exempt from all pumping

limitations under this title.

‘‘(h) INABILITY OF SECRETARY TO DELIVER WATER.—The Nation

is authorized to pump additional groundwater in any year in which

the Secretary is unable to deliver water required to carry out

sections 304(a) and 306(a) in accordance with the Tohono O’odham

settlement agreement.

‘‘(i) PAYMENT OF COMPENSATION.—Nothing in this section

affects any obligation of the Secretary to pay compensation in

accordance with section 305(d).

‘‘SEC. 309. USES OF WATER.

‘‘(a) PERMISSIBLE USES.—Subject to other provisions of this

section and other applicable law, the Nation may devote all water

supplies granted or confirmed under this title, whether delivered

by the Secretary or pumped by the Nation, to any use (including

any agricultural, municipal, domestic, industrial, commercial,

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3555

mining, underground storage, instream flow, riparian habitat

maintenance, or recreational use).

‘‘(b) USE AREA.—

‘‘(1) USE WITHIN NATION’S RESERVATION.—Subject to subsection (d), the Nation may use at any location within the

Nation’s Reservation—

‘‘(A) the water supplies acquired under sections 304(a)

and 306(a);

‘‘(B) groundwater supplies; and

‘‘(C) storage credits acquired as a result of projects

authorized under section 308(e), or deferred storage credits

described in section 308(f), except to the extent that use

of those storage credits causes the withdrawal of groundwater in violation of applicable Federal law.

‘‘(2) USE OUTSIDE THE NATION’S RESERVATION.— ‘‘(A) IN GENERAL.—Water resources granted or confirmed under this title may be sold, leased, transferred,

or used by the Nation outside of the Nation’s Reservation

only in accordance with this title.

‘‘(B) USE WITHIN CERTAIN AREA.—Subject to subsection

(c), the Nation may use the Central Arizona Project water

supplies acquired under sections 304(a) and 306(a) within

the Central Arizona Project service area.

‘‘(C) STATE LAW.—With the exception of Central

Arizona Project water and groundwater withdrawals under

the Asarco agreement, the Nation may sell, lease, transfer,

or use any water supplies and storage credits acquired

as a result of a project authorized under section 308(e)

at any location outside of the Nation’s Reservation, but

within the State, only in accordance with State law.

‘‘(D) LIMITATION.—Deferred pumping storage credits

provided for in section 308(f) shall not be sold, leased,

transferred, or used outside the Nation’s Reservation.

‘‘(E) PROHIBITION ON USE OUTSIDE THE STATE.—No

water acquired under section 304(a) or 306(a) shall be

leased, exchanged, forborne, or otherwise transferred by

the Nation for any direct or indirect use outside the State.

‘‘(c) EXCHANGES AND LEASES; CONDITIONS ON EXCHANGES AND

LEASES.—

‘‘(1) IN GENERAL.—With respect to users outside the

Nation’s Reservation, the Nation may, for a term of not to

exceed 100 years, assign, exchange, lease, provide an option

to lease, or otherwise temporarily dispose of to the users, Central Arizona Project water to which the Nation is entitled

under sections 304(a) and 306(a) or storage credits acquired

under section 308(e), if the assignment, exchange, lease, option,

or temporary disposal is carried out in accordance with—

‘‘(A) this subsection; and

‘‘(B) subsection (b)(2).

‘‘(2) LIMITATION ON ALIENATION.—The Nation shall not

permanently alienate any water right under paragraph (1).

‘‘(3) AUTHORIZED USES.—The water described in paragraph

(1) shall be delivered within the Central Arizona Project service

area for any use authorized under applicable law.

‘‘(4) CONTRACT.—An assignment, exchange, lease, option,

or temporary disposal described in paragraph (1) shall be

executed only in accordance with a contract that—

118 STAT. 3556 PUBLIC LAW 108–451—DEC. 10, 2004

‘‘(A) is accepted by the Nation;

‘‘(B) is ratified under a resolution of the Legislative

Council of the Nation;

‘‘(C) is approved by the United States as Trustee; and

‘‘(D) with respect to any contract to which the United

States or the Secretary is a party, provides that an action

may be maintained by the contracting party against the

United States and the Secretary for a breach of the contract

by the United States or Secretary, as appropriate.

‘‘(5) TERMS EXCEEDING 25 YEARS.—The terms and conditions

established in paragraph 11 of the Tohono O’odham settlement

agreement shall apply to any contract under paragraph (4)

that has a term of greater than 25 years.

‘‘(d) LIMITATIONS ON USE, EXCHANGES, AND LEASES.—The rights

of the Nation to use water supplies under subsection (a), and

to assign, exchange, lease, provide options to lease, or temporarily

dispose of the water supplies under subsection (c), shall be exercised

on conditions that ensure the availability of water supplies to

satisfy the first right of beneficial use under section 307(a)(1)(G)(i).

‘‘(e) WATER SERVICE CAPITAL CHARGES.—In any transaction

entered into by the Nation and another person under subsection

(c) with respect to Central Arizona Project water of the Nation,

the person shall not be obligated to pay to the United States

or the Central Arizona Water Conservation District any water

service capital charge.

‘‘(f) WATER RIGHTS UNAFFECTED BY USE OR NONUSE.—The

failure of the Nation to make use of water provided under this

title, or the use of, or failure to make use of, that water by any

other person that enters into a contract with the Nation under

subsection (c) for the assignment, exchange, lease, option for lease,

or temporary disposal of water, shall not diminish, reduce, or

impair—

‘‘(1) any water right of the Nation, as established under

this title or any other applicable law; or

‘‘(2) any water use right recognized under this title,

including—

‘‘(A) the first right of beneficial use referred to in

section 307(a)(1)(G)(i); or

‘‘(B) the allottee use rights referred to in section 308(a).

‘‘(g) AMENDMENT TO AGREEMENT OF DECEMBER 11, 1980.—

The Secretary shall amend the agreement of December 11, 1980,

to provide that—

‘‘(1) the contract shall be—

‘‘(A) for permanent service (within the meaning of section 5 of the Boulder Canyon Project Act of 1928 (43 U.S.C.

617d)); and

‘‘(B) without limit as to term;

‘‘(2) the Nation may, with the approval of the Secretary—

‘‘(A) in accordance with subsection (c), assign,

exchange, lease, enter into an option to lease, or otherwise

temporarily dispose of water to which the Nation is entitled

under sections 304(a) and 306(a); and

‘‘(B) renegotiate any lease at any time during the term

of the lease if the term of the renegotiated lease does

not exceed 100 years;

‘‘(3)(A) the Nation shall be entitled to all consideration

due to the Nation under any leases and any options to lease

Applicability.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3557

or exchanges or options to exchange the Nation’s Central

Arizona Project water entered into by the Nation; and

‘‘(B) the United States shall have no trust obligation or

other obligation to monitor, administer, or account for any

consideration received by the Nation under those leases or

options to lease and exchanges or options to exchange;

‘‘(4)(A) all of the Nation’s Central Arizona Project water

shall be delivered through the Central Arizona Project aqueduct; and

‘‘(B) if the delivery capacity of the Central Arizona Project

aqueduct is significantly reduced or is anticipated to be significantly reduced for an extended period of time, the Nation

shall have the same Central Arizona Project delivery rights

as other Central Arizona Project contractors and Central

Arizona Project subcontractors, if the Central Arizona Project

contractors or Central Arizona Project subcontractors are

allowed to take delivery of water other than through the Central

Arizona Project aqueduct;

‘‘(5) the Nation may use the Nation’s Central Arizona

Project water on or off of the Nation’s Reservation for the

purposes of the Nation consistent with this title;

‘‘(6) as authorized by subparagraph (A) of section 403(f)(2)

of the Colorado River Basin Project Act (43 U.S.C. 1543(f)(2))

(as amended by section 107(a)) and to the extent that funds

are available in the Lower Colorado River Basin Development

Fund established by section 403 of that Act (43 U.S.C. 1543),

the United States shall pay to the Central Arizona Project

operating agency the fixed operation, maintenance, and replacement charges associated with the delivery of the Nation’s Central Arizona Project water, except for the Nation’s Central

Arizona Project water leased by others;

‘‘(7) the allocated costs associated with the construction

of the delivery and distribution system—

‘‘(A) shall be nonreimbursable; and

‘‘(B) shall be excluded from any repayment obligation

of the Nation;

‘‘(8) no water service capital charges shall be due or payable

for the Nation’s Central Arizona Project water, regardless of

whether the Central Arizona Project water is delivered for

use by the Nation or is delivered pursuant to any leases or

options to lease or exchanges or options to exchange the

Nation’s Central Arizona Project water entered into by the

Nation;

‘‘(9) the agreement of December 11, 1980, conforms with

section 104(d) and section 306(a) of the Arizona Water Settlements Act; and

‘‘(10) the amendments required by this subsection shall

not apply to the 8,000 acre feet of Central Arizona Project

water contracted by the Nation in the agreement of December

11, 1980, for the Sif Oidak District.

‘‘(h) RATIFICATION OF AGREEMENTS.—

‘‘(1) IN GENERAL.—Notwithstanding any other provision of

law, each agreement described in paragraph (2), to the extent

that the agreement is not in conflict with this Act—

‘‘(A) is authorized, ratified, and confirmed; and

‘‘(B) shall be executed by the Secretary.

118 STAT. 3558 PUBLIC LAW 108–451—DEC. 10, 2004

‘‘(2) AGREEMENTS.—The agreements described in this paragraph are—

‘‘(A) the Tohono O’odham settlement agreement, to the

extent that—

‘‘(i) the Tohono O’odham settlement agreement is

consistent with this title; and

‘‘(ii) parties to the Tohono O’odham settlement

agreement other than the Secretary have executed that

agreement;

‘‘(B) the Tucson agreement (attached to the Tohono

O’odham settlement agreement as exhibit 12.1); and

‘‘(C)(i) the Asarco agreement (attached to the Tohono

O’odham settlement agreement as exhibit 13.1 to the

Tohono O’odham settlement agreement);

‘‘(ii) lease No. H54–0916–0972, dated April 26, 1972,

and approved by the United States on November 14, 1972;

and

‘‘(iii) any new well site lease as provided for in the

Asarco agreement; and

‘‘(D) the FICO agreement (attached to the Tohono

O’odham settlement agreement as Exhibit 14.1).

‘‘(3) RELATION TO OTHER LAW.—

‘‘(A) ENVIRONMENTAL COMPLIANCE.—In implementing

an agreement described in paragraph (2), the Secretary

shall promptly comply with all aspects of the National

Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.),

the Endangered Species Act of 1973 (16 U.S.C. 1531 et

seq.), and all other applicable environmental Acts and regulations.

‘‘(B) EXECUTION OF AGREEMENT.—Execution of an

agreement described in paragraph (2) by the Secretary

under this section shall not constitute a major Federal

action under the National Environmental Policy Act (42

U.S.C. 4321 et seq.). The Secretary is directed to carry

out all necessary environmental compliance required by

Federal law in implementing an agreement described in

paragraph (2).

‘‘(C) LEAD AGENCY.—The Bureau of Reclamation shall

be the lead agency with respect to environmental compliance under the agreements described in paragraph (2).

‘‘(i) DISBURSEMENTS FROM TUCSON INTERIM WATER LEASE.—

The Secretary shall disburse to the Nation, without condition, all

proceeds from the Tucson interim water lease.

‘‘(j) USE OF GROSS PROCEEDS.—

‘‘(1) DEFINITION OF GROSS PROCEEDS.—In this subsection,

the term ‘gross proceeds’ means all proceeds, without reduction,

received by the Nation from—

‘‘(A) the Tucson interim water lease;

‘‘(B) the Asarco agreement; and

‘‘(C) any agreement similar to the Asarco agreement

to store Central Arizona Project water of the Nation,

instead of pumping groundwater, for the purpose of protecting water of the Nation; provided, however, that gross

proceeds shall not include proceeds from the transfer of

Central Arizona Project water in excess of 20,000 acre

feet annually pursuant to any agreement under this

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3559

subparagraph or under the Asarco agreement referenced

in subparagraph (B).

‘‘(2) ENTITLEMENT.—The Nation shall be entitled to receive

all gross proceeds.

‘‘(k) STATUTORY CONSTRUCTION.—Nothing in this title establishes whether reserved water may be put to use, or sold for

use, off any reservation to which reserved water rights attach.

‘‘SEC. 310. COOPERATIVE FUND.

‘‘(a) REAUTHORIZATION.— ‘‘(1) IN GENERAL.—Congress reauthorizes, for use in carrying out this title, the cooperative fund established in the

Treasury of the United States by section 313 of the 1982

Act.

‘‘(2) AMOUNTS IN COOPERATIVE FUND.—The cooperative fund

shall consist of—

‘‘(A)(i) $5,250,000, as appropriated to the cooperative

fund under section 313(b)(3)(A) of the 1982 Act; and

‘‘(ii) such amount, not to exceed $32,000,000, as the

Secretary determines, after providing notice to Congress,

is necessary to carry out this title;

‘‘(B) any additional Federal funds deposited to the

cooperative fund under Federal law; ‘‘(C) $5,250,000, as deposited in the cooperative fund

under section 313(b)(1)(B) of the 1982 Act, of which—

‘‘(i) $2,750,000 was contributed by the State;

‘‘(ii) $1,500,000 was contributed by the city of Tucson; and

‘‘(iii) $1,000,000 was contributed by—

‘‘(I) the Anamax Mining Company;

‘‘(II) the Cyprus-Pima Mining Company;

‘‘(III) the American Smelting and Refining

Company;

‘‘(IV) the Duval Corporation; and

‘‘(V) the Farmers Investment Company;

‘‘(D) all interest accrued on all amounts in the cooperative fund beginning on October 12, 1982, less any interest

expended under subsection (b)(2); and

‘‘(E) all revenues received from—

‘‘(i) the sale or lease of effluent received by the

Secretary under the contract between the United

States and the city of Tucson to provide for delivery

of reclaimed water to the Secretary, dated October

11, 1983; and

‘‘(ii) the sale or lease of storage credits derived

from the storage of that effluent.

‘‘(b) EXPENDITURES FROM FUND.—

‘‘(1) IN GENERAL.—Subject to paragraph (2), upon request

by the Secretary, the Secretary of the Treasury shall transfer

from the cooperative fund to the Secretary such amounts as

the Secretary determines are necessary to carry out obligations

of the Secretary under this title, including to pay—

‘‘(A) the variable costs relating to the delivery of water

under sections 304 through 306;

‘‘(B) fixed operation maintenance and replacement costs

relating to the delivery of water under sections 304 through

306, to the extent that funds are not available from the

118 STAT. 3560 PUBLIC LAW 108–451—DEC. 10, 2004

Lower Colorado River Basin Development Fund to pay

those costs;

‘‘(C) the costs of acquisition and delivery of water from

alternative sources under section 305; and

‘‘(D) any compensation provided by the Secretary under

section 305(d).

‘‘(2) EXPENDITURE OF INTEREST.—Except as provided in

paragraph (3), the Secretary may expend only interest income

accruing to the cooperative fund, and that interest income

may be expended by the Secretary, without further appropriation.

‘‘(3) EXPENDITURE OF REVENUES.—Revenues described in

subsection (a)(2)(E) shall be available for expenditure under

paragraph (1).

‘‘(c) INVESTMENT OF AMOUNTS.—

‘‘(1) IN GENERAL.—The Secretary of the Treasury shall

invest such portion of the cooperative fund as is not, in the

judgment of the Secretary of the Treasury, required to meet

current withdrawals determined by the Secretary. Investments

may be made only in interest-bearing obligations of the United

States.

‘‘(2) CREDITS TO COOPERATIVE FUND.—The interest on, and

the proceeds from the sale or redemption of, any obligations

held in the cooperative fund shall be credited to and form

a part of the cooperative fund.

‘‘(d) TRANSFERS OF AMOUNTS.—

‘‘(1) IN GENERAL.—The amounts required to be transferred

to the cooperative fund under this section shall be transferred

at least monthly from the general fund of the Treasury to

the cooperative fund on the basis of estimates made by the

Secretary of the Treasury.

‘‘(2) ADJUSTMENTS.—Proper adjustment shall be made in

amounts subsequently transferred to the extent prior estimates

were in excess of or less than the amounts required to be

transferred.

‘‘(e) DAMAGES.—Damages arising under this title or any contract for the delivery of water recognized by this title shall not

exceed, in any given year, the amounts available for expenditure

in that year from the cooperative fund.

‘‘SEC. 311. CONTRACTING AUTHORITY; WATER QUALITY; STUDIES; ARID

LAND ASSISTANCE.

‘‘(a) FUNCTIONS OF SECRETARY.—Except as provided in subsection (f), the functions of the Secretary (or the Commissioner

of Reclamation, acting on behalf of the Secretary) under this title

shall be subject to the Indian Self-Determination and Education

Assistance Act (25 U.S.C. 450 et seq.) to the same extent as if

those functions were carried out by the Assistant Secretary for

Indian Affairs.

‘‘(b) SAN XAVIER DISTRICT AS CONTRACTOR.—

‘‘(1) IN GENERAL.—Subject to the consent of the Nation

and other requirements under section 307(a)(1)(E), the San

Xavier District shall be considered to be an eligible contractor

for purposes of this title.

‘‘(2) TECHNICAL ASSISTANCE.—The Secretary shall provide

to the San Xavier District technical assistance in carrying

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3561

out the contracting requirements under the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.).

‘‘(c) GROUNDWATER MONITORING PROGRAMS.—

‘‘(1) SAN XAVIER INDIAN RESERVATION PROGRAM.—

‘‘(A) IN GENERAL.—Not later than 180 days after the

enforceability date, the Secretary shall develop and initiate

a comprehensive groundwater monitoring program

(including the drilling of wells and other appropriate

actions) to test, assess, and provide for the long-term monitoring of the quality of groundwater withdrawn from

exempt wells and other wells within the San Xavier Reservation.

‘‘(B) LIMITATION ON EXPENDITURES.—In carrying out

this paragraph, the Secretary shall expend not more than

$215,000.

‘‘(2) EASTERN SCHUK TOAK DISTRICT PROGRAM.—

‘‘(A) IN GENERAL.—Not later than 180 days after the

enforceability date, the Secretary shall develop and initiate

a comprehensive groundwater monitoring program

(including the drilling of wells and other appropriate

actions) to test, assess, and provide for the long-term monitoring of the quality of groundwater withdrawn from

exempt wells and other wells within the eastern Schuk

Toak District.

‘‘(B) LIMITATION ON EXPENDITURES.—In carrying out

this paragraph, the Secretary shall expend not more than

$175,000.

‘‘(3) DUTIES OF SECRETARY.—

‘‘(A) CONSULTATION.—In carrying out paragraphs (1)

and (2), the Secretary shall consult with representatives

of—

‘‘(i) the Nation;

‘‘(ii) the San Xavier District and Schuk Toak District, respectively; and

‘‘(iii) appropriate State and local entities.

‘‘(B) LIMITATION ON OBLIGATIONS OF SECRETARY.—With

respect to the groundwater monitoring programs described

in paragraphs (1) and (2), the Secretary shall have no

continuing obligation relating to those programs beyond

the obligations described in those paragraphs.

‘‘(d) WATER RESOURCES STUDY.—To assist the Nation in developing sources of water, the Secretary shall conduct a study to

determine the availability and suitability of water resources that

are located—

‘‘(1) within the Nation’s Reservation; but

‘‘(2) outside the Tucson management area.

‘‘(e) ARID LAND RENEWABLE RESOURCES.—If a Federal entity

is established to provide financial assistance to carry out arid

land renewable resources projects and to encourage and ensure

investment in the development of domestic sources of arid land

renewable resources, the entity shall—

‘‘(1) give first priority to the needs of the Nation in providing that assistance; and

‘‘(2) make available to the Nation, San Xavier District,

Schuk Toak District, and San Xavier Cooperative Association

price guarantees, loans, loan guarantees, purchase agreements,

Deadlines.

118 STAT. 3562 PUBLIC LAW 108–451—DEC. 10, 2004

and joint venture projects at a level that the entity determines

will—

‘‘(A) facilitate the cultivation of such minimum number

of acres as is determined by the entity to be necessary

to ensure economically successful cultivation of arid land

crops; and

‘‘(B) contribute significantly to the economy of the

Nation.

‘‘(f) ASARCO LAND EXCHANGE STUDY.—

‘‘(1) IN GENERAL.—Not later than 2 years after the enforceability date, the Secretary, in consultation with the Nation,

the San Xavier District, the San Xavier Allottees’ Association,

and Asarco, shall conduct and submit to Congress a study

on the feasibility of a land exchange or land exchanges with

Asarco to provide land for future use by—

‘‘(A) beneficial landowners of the Mission Complex

Mining Leases of September 18, 1959; and

‘‘(B) beneficial landowners of the Mission Complex

Business Leases of May 12, 1959.

‘‘(2) COMPONENTS.—The study under paragraph (1) shall

include—

‘‘(A) an analysis of the manner in which land exchanges

could be accomplished to maintain a contiguous land base

for the San Xavier Reservation; and

‘‘(B) a description of the legal status exchanged land

should have to maintain the political integrity of the San

Xavier Reservation.

‘‘(3) LIMITATION ON EXPENDITURES.—In carrying out this

subsection, the Secretary shall expend not more than $250,000.

‘‘SEC. 312. WAIVER AND RELEASE OF CLAIMS.

‘‘(a) WAIVER OF CLAIMS BY THE NATION.—Except as provided

in subsection (d), the Tohono O’odham settlement agreement shall

provide that the Nation waives and releases—

‘‘(1) any and all past, present, and future claims for water

rights (including claims based on aboriginal occupancy) arising

from time immemorial and, thereafter, forever, and claims for

injuries to water rights arising from time immemorial through

the enforceability date, for land within the Tucson management

area, against—

‘‘(A) the State (or any agency or political subdivision

of the State);

‘‘(B) any municipal corporation; and

‘‘(C) any other person or entity;

‘‘(2) any and all claims for water rights arising from time

immemorial and, thereafter, forever, claims for injuries to water

rights arising from time immemorial through the enforceability

date, and claims for failure to protect, acquire, or develop

water rights for land within the San Xavier Reservation and

the eastern Schuk Toak District from time immemorial through

the enforceability date, against the United States (including

any agency, officer, and employee of the United States);

‘‘(3) any and all claims for injury to water rights arising

after the enforceability date for land within the San Xavier

Reservation and the eastern Schuk Toak District resulting from

the off-Reservation diversion or use of water in a manner

Deadline.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3563

not in violation of the Tohono O’odham settlement agreement

or State law against—

‘‘(A) the United States;

‘‘(B) the State (or any agency or political subdivision

of the State);

‘‘(C) any municipal corporation; and

‘‘(D) any other person or entity; and

‘‘(4) any and all past, present, and future claims arising

out of or relating to the negotiation or execution of the Tohono

O’odham settlement agreement or the negotiation or enactment

of this title, against—

‘‘(A) the United States;

‘‘(B) the State (or any agency or political subdivision

of the State);

‘‘(C) any municipal corporation; and

‘‘(D) any other person or entity.

‘‘(b) WAIVER OF CLAIMS BY THE ALLOTTEE CLASSES.—The

Tohono O’odham settlement agreement shall provide that each

allottee class waives and releases—

‘‘(1) any and all past, present, and future claims for water

rights (including claims based on aboriginal occupancy) arising

from time immemorial and, thereafter, forever, claims for

injuries to water rights arising from time immemorial through

the enforceability date for land within the San Xavier Reservation, against—

‘‘(A) the State (or any agency or political subdivision

of the State);

‘‘(B) any municipal corporation; and

‘‘(C) any other person or entity (other than the Nation);

‘‘(2) any and all claims for water rights arising from time

immemorial and, thereafter, forever, claims for injuries to water

rights arising from time immemorial through the enforceability

date, and claims for failure to protect, acquire, or develop

water rights for land within the San Xavier Reservation from

time immemorial through the enforceability date, against the

United States (including any agency, officer, and employee of

the United States);

‘‘(3) any and all claims for injury to water rights arising

after the enforceability date for land within the San Xavier

Reservation resulting from the off-Reservation diversion or use

of water in a manner not in violation of the Tohono O’odham

settlement agreement or State law against—

‘‘(A) the United States;

‘‘(B) the State (or any agency or political subdivision

of the State);

‘‘(C) any municipal corporation; and

‘‘(D) any other person or entity;

‘‘(4) any and all past, present, and future claims arising

out of or relating to the negotiation or execution of the Tohono

O’odham settlement agreement or the negotiation or enactment

of this title, against—

‘‘(A) the United States;

‘‘(B) the State (or any agency or political subdivision

of the State);

‘‘(C) any municipal corporation; and

‘‘(D) any other person or entity; and

118 STAT. 3564 PUBLIC LAW 108–451—DEC. 10, 2004

‘‘(5) any and all past, present, and future claims for water

rights arising from time immemorial and, thereafter, forever,

and claims for injuries to water rights arising from time

immemorial through the enforceability date, against the Nation

(except that under section 307(a)(1)(G) and subsections (a) and

(b) of section 308, the allottees and fee owners of allotted

land shall retain rights to share in the water resources granted

or confirmed under this title and the Tohono O’odham settlement agreement with respect to uses within the San Xavier

Reservation).

‘‘(c) WAIVER OF CLAIMS BY THE UNITED STATES.—Except as

provided in subsection (d), the Tohono O’odham settlement agreement shall provide that the United States as Trustee waives and

releases—

‘‘(1) any and all past, present, and future claims for water

rights (including claims based on aboriginal occupancy) arising

from time immemorial and, thereafter, forever, and claims for

injuries to water rights arising from time immemorial through

the enforceability date, for land within the Tucson management

area against—

‘‘(A) the Nation;

‘‘(B) the State (or any agency or political subdivision

of the State);

‘‘(C) any municipal corporation; and

‘‘(D) any other person or entity;

‘‘(2) any and all claims for injury to water rights arising

after the enforceability date for land within the San Xavier

Reservation and the eastern Schuk Toak District resulting from

the off-Reservation diversion or use of water in a manner

not in violation of the Tohono O’odham settlement agreement

or State law against—

‘‘(A) the Nation;

‘‘(B) the State (or any agency or political subdivision

of the State);

‘‘(C) any municipal corporation; and

‘‘(D) any other person or entity;

‘‘(3) on and after the enforceability date, any and all claims

on behalf of the allottees for injuries to water rights against

the Nation (except that under section 307(a)(1)(G) and subsections (a) and (b) of section 308, the allottees shall retain

rights to share in the water resources granted or confirmed

under this title and the Tohono O’odham settlement agreement

with respect to uses within the San Xavier Reservation); and

‘‘(4) claims against Asarco on behalf of the allottee class

for the fourth cause of action in Alvarez v. City of Tucson

(Civ. No. 93–039 TUC FRZ (D. Ariz., filed April 21, 1993)),

in accordance with the terms and conditions of the Asarco

agreement.

‘‘(d) CLAIMS RELATING TO GROUNDWATER PROTECTION PROGRAM.—The Nation and the United States as Trustee—

‘‘(1) shall have the right to assert any claims granted

by a State law implementing the groundwater protection program described in paragraph 8.8 of the Tohono O’odham settlement agreement; and

‘‘(2) if, after the enforceability date, the State law is

amended so as to have a material adverse effect on the Nation,

shall have a right to relief in the State court having jurisdiction

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3565

over Gila River adjudication proceedings and decrees, against

an owner of any nonexempt well drilled after the effective

date of the amendment (if the well actually and substantially

interferes with groundwater pumping occurring on the San

Xavier Reservation), from the incremental effect of the groundwater pumping that exceeds that which would have been allowable had the State law not been amended.

‘‘(e) SUPPLEMENTAL WAIVERS OF CLAIMS.—Any party to the

Tohono O’odham settlement agreement may waive and release,

prohibit the assertion of, or agree not to assert, any claims

(including claims for subsidence damage or injury to water quality)

in addition to claims for water rights and injuries to water rights

on such terms and conditions as may be agreed to by the parties.

‘‘(f) RIGHTS OF ALLOTTEES; PROHIBITION OF CLAIMS.—

‘‘(1) IN GENERAL.—As of the enforceability date—

‘‘(A) the water rights and other benefits granted or

confirmed by this title and the Tohono O’odham settlement

agreement shall be in full satisfaction of—

‘‘(i) all claims for water rights and claims for

injuries to water rights of the Nation; and

‘‘(ii) all claims for water rights and injuries to

water rights of the allottees;

‘‘(B) any entitlement to water within the Tucson

management area of the Nation, or of any allottee, shall

be satisfied out of the water resources granted or confirmed

under this title and the Tohono O’odham settlement agreement; and

‘‘(C) any rights of the allottees to groundwater, surface

water, or effluent shall be limited to the water rights

granted or confirmed under this title and the Tohono

O’odham settlement agreement.

‘‘(2) LIMITATION OF CERTAIN CLAIMS BY ALLOTTEES.—No

allottee within the San Xavier Reservation may—

‘‘(A) assert any past, present, or future claim for water

rights arising from time immemorial and, thereafter, forever, or any claim for injury to water rights (including

future injury to water rights) arising from time immemorial

and thereafter, forever, against—

‘‘(i) the United States;

‘‘(ii) the State (or any agency or political subdivision of the State);

‘‘(iii) any municipal corporation; or

‘‘(iv) any other person or entity; or

‘‘(B) continue to assert a claim described in subparagraph (A), if the claim was first asserted before the enforceability date.

‘‘(3) CLAIMS BY FEE OWNERS OF ALLOTTED LAND.—

‘‘(A) IN GENERAL.—No fee owner of allotted land within

the San Xavier Reservation may assert any claim to the

extent that—

‘‘(i) the claim has been waived and released in

the Tohono O’odham settlement agreement; and

‘‘(ii) the fee owner of allotted land asserting the

claim is a member of the applicable allottee class.

‘‘(B) OFFSET.—Any benefits awarded to a fee owner

of allotted land as a result of a successful claim shall

118 STAT. 3566 PUBLIC LAW 108–451—DEC. 10, 2004

be offset by benefits received by that fee owner of allotted

land under this title.

‘‘(4) LIMITATION OF CLAIMS AGAINST THE NATION.—

‘‘(A) IN GENERAL.—Except as provided in subparagraph

(B), no allottee may assert against the Nation any claims

for water rights arising from time immemorial and, thereafter, forever, claims for injury to water rights arising

from time immemorial and thereafter forever.

‘‘(B) EXCEPTION.—Under section 307(a)(1)(G) and subsections (a) and (b) of section 308, the allottees shall retain

rights to share in the water resources granted or confirmed

under this title and the Tohono O’odham settlement agreement.

‘‘(g) CONSENT.—

‘‘(1) GRANT OF CONSENT.—Congress grants to the Nation

and the San Xavier Cooperative Association under section

305(d) consent to maintain civil actions against the United

States in the courts of the United States under section 1346,

1491, or 1505 of title 28, United States Code, respectively,

to recover damages, if any, for the breach of any obligation

of the Secretary under those sections.

‘‘(2) REMEDY.—

‘‘(A) IN GENERAL.—Subject to subparagraph (B), the

exclusive remedy for a civil action maintained under this

subsection shall be monetary damages.

‘‘(B) OFFSET.—An award for damages for a claim under

this subsection shall be offset against the amount of

funds—

‘‘(i) made available by any Act of Congress; and

‘‘(ii) paid to the claimant by the Secretary in partial

or complete satisfaction of the claim.

‘‘(3) NO CLAIMS ESTABLISHED.—Except as provided in paragraph (1), nothing in the subsection establishes any claim

against the United States.

‘‘(h) JURISDICTION; WAIVER OF IMMUNITY; PARTIES.—

‘‘(1) JURISDICTION.—

‘‘(A) IN GENERAL.—Except as provided in subsection

(i), the State court having jurisdiction over Gila River adjudication proceedings and decrees, shall have jurisdiction

over—

‘‘(i) civil actions relating to the interpretation and

enforcement of—

‘‘(I) this title;

‘‘(II) the Tohono O’odham settlement agreement; and

‘‘(III) agreements referred to in section

309(h)(2); and

‘‘(ii) civil actions brought by or against the allottees

or fee owners of allotted land for the interpretation

of, or legal or equitable remedies with respect to, claims

of the allottees or fee owners of allotted land that

are not claims for water rights, injuries to water rights

or other claims that are barred or waived and released

under this title or the Tohono O’odham settlement

agreement.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3567

‘‘(B) LIMITATION.—Except as provided in subparagraph

(A), no State court or court of the Nation shall have jurisdiction over any civil action described in subparagraph (A).

‘‘(2) WAIVER.—

‘‘(A) IN GENERAL.—The United States and the Nation

waive sovereign immunity solely for claims for—

‘‘(i) declaratory judgment or injunctive relief in

any civil action arising under this title; and

‘‘(ii) such claims and remedies as may be prescribed

in any agreement authorized under this title.

‘‘(B) LIMITATION ON STANDING.—If a governmental

entity not described in subparagraph (A) asserts immunity

in any civil action that arises under this title (unless the

entity waives immunity for declaratory judgment or injunctive relief) or any agreement authorized under this title

(unless the entity waives immunity for the claims and

remedies prescribed in the agreement)—

‘‘(i) the governmental entity shall not have

standing to initiate or assert any claim, or seek any

remedy against the United States or the Nation, in

the civil action; and

‘‘(ii) the waivers of sovereign immunity under

subparagraph (A) shall have no effect in the civil

action.

‘‘(C) MONETARY RELIEF.—A waiver of immunity under

this paragraph shall not extend to any claim for damages,

costs, attorneys’ fees, or other monetary relief.

‘‘(3) NATION AS A PARTY.—

‘‘(A) IN GENERAL.—Not later than 60 days before the

date on which a civil action under paragraph (1)(A)(ii)

is filed by an allottee or fee owner of allotted land, the

allottee or fee owner, as the case may be, shall provide

to the Nation a notice of intent to file the civil action,

accompanied by a request for consultation.

‘‘(B) JOINDER.—If the Nation is not a party to a civil

action as originally commenced under paragraph (1)(A)(ii),

the Nation shall be joined as a party.

‘‘(i) REGULATION AND JURISDICTION OVER DISPUTE RESOLUTION.—

‘‘(1) REGULATION.—The Nation shall have jurisdiction to

manage, control, permit, administer, and otherwise regulate

the water resources granted or confirmed under this title and

the Tohono O’odham settlement agreement—

‘‘(A) with respect to the use of those resources by—

‘‘(i) the Nation;

‘‘(ii) individual members of the Nation;

‘‘(iii) districts of the Nation; and

‘‘(iv) allottees; and

‘‘(B) with respect to any entitlement to those resources

for which a fee owner of allotted land has received a final

determination under applicable law.

‘‘(2) JURISDICTION.—Subject to a requirement of exhaustion

of any administrative or other remedies prescribed under the

laws of the Nation, jurisdiction over any disputes relating to

the matters described in paragraph (1) shall be vested in the

courts of the Nation.

Deadline.

Notice.

118 STAT. 3568 PUBLIC LAW 108–451—DEC. 10, 2004

‘‘(3) APPLICABLE LAW.—The regulatory and remedial procedures referred to in paragraphs (1) and (2) shall be subject

to all applicable law.

‘‘(j) FEDERAL JURISDICTION.—The Federal Courts shall have

concurrent jurisdiction over actions described in subsection 312(h)

to the extent otherwise provided in Federal law.

‘‘SEC. 313. AFTER-ACQUIRED TRUST LAND.

‘‘(a) IN GENERAL.—Except as provided in subsection (b)—

‘‘(1) the Nation may seek to have taken into trust by

the United States, for the benefit of the Nation, legal title

to additional land within the State and outside the exterior

boundaries of the Nation’s Reservation only in accordance with

an Act of Congress specifically authorizing the transfer for

the benefit of the Nation;

‘‘(2) lands taken into trust under paragraph (1) shall

include only such water rights and water use privileges as

are consistent with State water law and State water management policy; and

‘‘(3) after-acquired trust land shall not include Federal

reserved rights to surface water or groundwater.

‘‘(b) EXCEPTION.—Subsection (a) shall not apply to land acquired

by the Nation under the Gila Bend Indian Reservation Lands

Replacement Act (100 Stat. 1798).

‘‘SEC. 314. NONREIMBURSABLE COSTS.

‘‘(a) CENTRAL ARIZONA WATER CONSERVATION DISTRICT.—For

the purpose of determining the allocation and repayment of costs

of any stage of the Central Arizona Project, the costs associated

with the delivery of Central Arizona Project water acquired under

sections 304(a) and 306(a), whether that water is delivered for

use by the Nation or in accordance with any assignment, exchange,

lease, option to lease, or other agreement for the temporary disposition of water entered into by the Nation—

‘‘(1) shall be nonreimbursable; and

‘‘(2) shall be excluded from the repayment obligation of

the Central Arizona Water Conservation District.

‘‘(b) CLAIMS BY UNITED STATES.—The United States shall—

‘‘(1) make no claim against the Nation or any allottee

for reimbursement or repayment of any cost associated with—

‘‘(A) the construction of facilities under the Colorado

River Basin Project Act (43 U.S.C. 1501 et seq.);

‘‘(B) the delivery of Central Arizona Project water for

any use authorized under this title; or

‘‘(C) the implementation of this title;

‘‘(2) make no claim against the Nation for reimbursement

or repayment of the costs associated with the construction

of facilities described in paragraph (1)(A) for the benefit of

and use on land that—

‘‘(A) is known as the ‘San Lucy Farm’; and

‘‘(B) was acquired by the Nation under the Gila Bend

Indian Reservation Lands Replacement Act (100 Stat.

1798); and

‘‘(3) impose no assessment with respect to the costs referred

to in paragraphs (1) and (2) against—

‘‘(A) trust or allotted land within the Nation’s Reservation; or

‘‘(B) the land described in paragraph (2).

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3569

‘‘SEC. 315. TRUST FUND.

‘‘(a) REAUTHORIZATION.—Congress reauthorizes the trust fund

established by section 309 of the 1982 Act, containing an initial

deposit of $15,000,000 made under that section, for use in carrying

out this title.

‘‘(b) EXPENDITURE AND INVESTMENT.—Subject to the limitations

of subsection (d), the principal and all accrued interest and dividends in the trust fund established under section 309 of the 1982

Act may be—

‘‘(1) expended by the Nation for any governmental purpose;

and

‘‘(2) invested by the Nation in accordance with such policies

as the Nation may adopt.

‘‘(c) RESPONSIBILITY OF SECRETARY.—The Secretary shall not—

‘‘(1) be responsible for the review, approval, or audit of

the use and expenditure of any funds from the trust fund

reauthorized by subsection (a); or

‘‘(2) be subject to liability for any claim or cause of action

arising from the use or expenditure by the Nation of those

funds.

‘‘(d) CONDITIONS OF TRUST.—

‘‘(1) RESERVE FOR THE COST OF SUBJUGATION.—The Nation

shall reserve in the trust fund reauthorized by subsection (a)—

‘‘(A) the principal amount of at least $3,000,000; and

‘‘(B) interest on that amount that accrues during the

period beginning on the enforceability date and ending

on the earlier of—

‘‘(i) the date on which full payment of such costs

has been made; or

‘‘(ii) the date that is 10 years after the enforceability date.

‘‘(2) PAYMENT.—The costs described in paragraph (1) shall

be paid in the amount, on the terms, and for the purposes

prescribed in section 307(a)(1)(F).

‘‘(3) LIMITATION ON RESTRICTIONS.—On the occurrence of

an event described in clause (i) or (ii) of paragraph (1)(B)—

‘‘(A) the restrictions imposed on funds from the trust

fund described in paragraph (1) shall terminate; and

‘‘(B) any of those funds remaining that were reserved

under paragraph (1) may be used by the Nation under

subsection (b)(1).

‘‘SEC. 316. MISCELLANEOUS PROVISIONS.

‘‘(a) IN GENERAL.—Nothing in this title—

‘‘(1) establishes the applicability or inapplicability to

groundwater of any doctrine of Federal reserved rights;

‘‘(2) limits the ability of the Nation to enter into any agreement with the Arizona Water Banking Authority (or a successor

agency) in accordance with State law;

‘‘(3) prohibits the Nation, any individual member of the

Nation, an allottee, or a fee owner of allotted land in the

San Xavier Reservation from lawfully acquiring water rights

for use in the Tucson management area in addition to the

water rights granted or confirmed under this title and the

Tohono O’odham settlement agreement;

‘‘(4) abrogates any rights or remedies existing under section

1346 or 1491 of title 28, United States Code;

118 STAT. 3570 PUBLIC LAW 108–451—DEC. 10, 2004

‘‘(5) affects the obligations of the parties under the Agreement of December 11, 1980, with respect to the 8,000 acre

feet of Central Arizona Project water contracted by the Nation

for the Sif Oidak District;

‘‘(6)(A) applies to any exempt well;

‘‘(B) prohibits or limits the drilling of any exempt well

within—

‘‘(i) the San Xavier Reservation; or

‘‘(ii) the eastern Schuk Toak District; or

‘‘(C) subjects water from any exempt well to any pumping

limitation under this title; or

‘‘(7) diminishes or abrogates rights to use water under—

‘‘(A) contracts of the Nation in existence before the

enforceability date; or

‘‘(B) the well site agreement referred to in the Asarco

agreement and any well site agreement entered into under

the Asarco agreement.

‘‘(b) NO EFFECT ON FUTURE ALLOCATIONS.—Water received

under a lease or exchange of Central Arizona Project water under

this title does not affect any future allocation or reallocation of

Central Arizona Project water by the Secretary.

‘‘(c) LIMITATION ON LIABILITY OF UNITED STATES.—

‘‘(1) IN GENERAL.—The United States shall have no trust

or other obligation—

‘‘(A) to monitor, administer, or account for, in any

manner, any of the funds paid to the Nation or the San

Xavier District under this Act; or

‘‘(B) to review or approve the expenditure of those

funds.

‘‘(2) INDEMNIFICATION.—The Nation shall indemnify the

United States, and hold the United States harmless, with

respect to any and all claims (including claims for takings

or breach of trust) arising out of the receipt or expenditure

of funds described in paragraph (1)(A).

‘‘SEC. 317. AUTHORIZED COSTS.

‘‘(a) IN GENERAL.—There are authorized to be appropriated—

‘‘(1) to construct features of irrigation systems described

in paragraphs (1) through (4) of section 304(c) that are not

authorized to be constructed under any other provision of law,

an amount equal to the sum of—

‘‘(A) $3,500,000; and

‘‘(B) such additional amount as the Secretary determines to be necessary to adjust the amount under subparagraph (A) to account for ordinary fluctuations in the costs

of construction of irrigation features for the period beginning on October 12, 1982, and ending on the date on

which the construction of the features described in this

subparagraph is initiated, as indicated by engineering cost

indices applicable to the type of construction involved;

‘‘(2) $18,300,000 in lieu of construction to implement section

304(c)(3)(B), including an adjustment representing interest that

would have been earned if this amount had been deposited

in the cooperative fund during the period beginning on January

1, 2008, and ending on the date the amount is actually paid

to the San Xavier District;

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3571

‘‘(3) $891,200 to develop and initiate a water management

plan for the San Xavier Reservation under section 308(d);

‘‘(4) $237,200 to develop and initiate a water management

plan for the eastern Schuk Toak District under section 308(d);

‘‘(5) $4,000,000 to complete the water resources study under

section 311(d);

‘‘(6) $215,000 to develop and initiate a groundwater monitoring program for the San Xavier Reservation under section

311(c)(1);

‘‘(7) $175,000 to develop and implement a groundwater

monitoring program for the eastern Schuk Toak District under

section 311(c)(2);

‘‘(8) $250,000 to complete the Asarco land exchange study

under section 311(f); and

‘‘(9) such additional sums as are necessary to carry out

the provisions of this title other than the provisions referred

to in paragraphs (1) through (8).

‘‘(b) TREATMENT OF APPROPRIATED AMOUNTS.—Amounts made

available under subsection (a) shall be considered to be authorized

costs for purposes of section 403(f)(2)(D)(iii) of the Colorado River

Basin Project Act (43 U.S.C. 1543(f)(2)(D)(iii)) (as amended by section 107(a) of the Arizona Water Settlements Act).’’.

SEC. 302. SOUTHERN ARIZONA WATER RIGHTS SETTLEMENT EFFECTIVE DATE.

(a) DEFINITIONS.—The definitions under section 301 of the

Southern Arizona Water Rights Settlement Amendments Act of

2004 (as contained in the amendment made by section 301) shall

apply to this title.

(b) EFFECTIVE DATE.—This title and the amendments made

by this title take effect as of the enforceability date, which is

the date the Secretary publishes in the Federal Register a statement

of findings that—

(1)(A) to the extent that the Tohono O’odham settlement

agreement conflicts with this title or an amendment made

by this title, the Tohono O’odham settlement agreement has

been revised through an amendment to eliminate those conflicts; and

(B) the Tohono O’odham settlement agreement, as so

revised, has been executed by the parties and the Secretary;

(2) the Secretary and other parties to the agreements

described in section 309(h)(2) of the Southern Arizona Water

Rights Settlement Amendments Act of 2004 (as contained in

the amendment made by section 301) have executed those

agreements;

(3) the Secretary has approved the interim allottee water

rights code described in section 308(b)(3)(A) of the Southern

Arizona Water Rights Settlement Amendments Act of 2004

(as contained in the amendment made by section 301);

(4) final dismissal with prejudice has been entered in each

of the Alvarez case and the Tucson case on the sole condition

that the Secretary publishes the findings specified in this section;

(5) the judgment and decree attached to the Tohono

O’odham settlement agreement as exhibit 17.1 has been

approved by the State court having jurisdiction over the Gila

Federal Register,

publication.

118 STAT. 3572 PUBLIC LAW 108–451—DEC. 10, 2004

River adjudication proceedings, and that judgment and decree

have become final and nonappealable;

(6) implementation costs have been identified and retained

in the Lower Colorado River Basin Development Fund,

specifically—

(A) $18,300,000 to implement section 304(c)(3);

(B) $891,200 to implement a water management plan

for the San Xavier Reservation under section 308(d) of

the Southern Arizona Water Rights Settlement Amendments Act of 2004 (as contained in the amendment made

by section 301);

(C) $237,200 to implement a water management plan

for the eastern Schuk Toak District under section 308(d)

of the Southern Arizona Water Rights Settlement Amendments Act of 2004 (as contained in the amendment made

by section 301);

(D) $4,000,000 to complete the water resources study

under section 311(d) of the Southern Arizona Water Rights

Settlement Amendments Act of 2004 (as contained in the

amendment made by section 301);

(E) $215,000 to develop and implement a groundwater

monitoring program for the San Xavier Reservation under

section 311(c)(1) of the Southern Arizona Water Rights

Settlement Amendments Act of 2004 (as contained in the

amendment made by section 301);

(F) $175,000 to develop and implement a groundwater

monitoring program for the eastern Schuk Toak District

under section 311(c)(2) of the Southern Arizona Water

Rights Settlement Amendments Act of 2004 (as contained

in the amendment made by section 301); and

(G) $250,000 to complete the Asarco land exchange

study under section 311(f) of the Southern Arizona Water

Rights Settlement Amendments Act of 2004 (as contained

in the amendment made by section 301);

(7) the State has enacted legislation that—

(A) qualifies the Nation to earn long-term storage

credits under the Asarco agreement;

(B) implements the San Xavier groundwater protection

program in accordance with paragraph 8.8 of the Tohono

O’odham settlement agreement;

(C) enables the State to carry out section 306(b); and

(D) confirms the jurisdiction of the State court having

jurisdiction over Gila River adjudication proceedings and

decrees to carry out the provisions of sections 312(d) and

312(h) of the Southern Arizona Water Rights Settlement

Amendments Act of 2004 (as contained in the amendment

made by section 301);

(8) the Secretary and the State have agreed to an acceptable firming schedule referred to in section 105(b)(2)(C); and

(9) a final judgment has been entered in Central Arizona

Water Conservation District v. United States (No. CIV 95–

625–TUC–WDB(EHC), No. CIV 95–1720–PHX–EHC) (Consolidated Action) in accordance with the repayment stipulation

as provided in section 207.

(c) FAILURE TO PUBLISH STATEMENT OF FINDINGS.—If the Secretary does not publish a statement of findings under subsection

(a) by December 31, 2007—

Deadline.

PUBLIC LAW 108–451—DEC. 10, 2004 118 STAT. 3573

(1) the 1982 Act shall remain in full force and effect;

(2) this title shall not take effect; and

(3) any funds made available by the State under this title

that are not expended, together with any interest on those

funds, shall immediately revert to the State.

TITLE IV—SAN CARLOS APACHE TRIBE

WATER RIGHTS SETTLEMENT

SEC. 401. EFFECT OF TITLES I, II, AND III.

None of the provisions of title I, II, or III or the agreements,

attachments, exhibits, or stipulations referenced in those titles shall

be construed to—

(1) amend, alter, or limit the authority of—

(A) the United States to assert any claim against any

party, including any claim for water rights, injury to water

rights, or injury to water quality in its capacity as trustee

for the San Carlos Apache Tribe, its members and allottees,

or in any other capacity on behalf of the San Carlos Apache

Tribe, its members, and allottees, in any judicial, administrative, or legislative proceeding; or

(B) the San Carlos Apache Tribe to assert any claim

against any party, including any claim for water rights,

injury to water rights, or injury to water quality in its

own behalf or on behalf of its members and allottees in

any judicial, administrative, or legislative proceeding consistent with title XXXVII of Public Law 102–575 (106 Stat.

4600, 4740); or

(2) amend or alter the CAP Contract for the San Carlos

Apache Tribe dated December 11, 1980, as amended April

29, 1999.

SEC. 402. ANNUAL REPORT.

(a) IN GENERAL.—Not later than 1 year after the date of enactment of this Act and annually thereafter, the Secretary shall submit

to the Committee on Energy and Natural Resources of the Senate

and the Committee on Resources of the House of Representatives

a report that describes the status of efforts to reach a negotiated

agreement covering the Gila River water rights claims of the San

Carlos Apache Tribe.

(b) TERMINATION.—This section shall be of no effect after the

later of—

(1) the date that is 3 years after the date of enactment

of this Act; or

(2) the date on which the Secretary submits a third annual

report under this section.

SEC. 403. AUTHORIZATION OF APPROPRIATIONS.

(a) SAN CARLOS APACHE TRIBE.—There is authorized to be

appropriated to assist the San Carlos Apache Tribe in completing

comprehensive water resources negotiations leading to a comprehensive Gila River water settlement for the Tribe, including soil and

water technical analyses, legal, paralegal, and other related efforts,

$150,000 for fiscal year 2006.

(b) WHITE MOUNTAIN APACHE TRIBE.—There is authorized to

be appropriated to assist the White Mountain Apache Tribe in

118 STAT. 3574 PUBLIC LAW 108–451—DEC. 10, 2004

LEGISLATIVE HISTORY—S. 437 (H.R. 885):

HOUSE REPORTS: No. 108–793 (Comm. on Resources).

SENATE REPORTS: No. 108–360 (Comm. on Energy and Natural Resources).

CONGRESSIONAL RECORD, Vol. 150 (2004):

Oct. 10, considered and passed Senate.

Nov. 17, considered and passed House.

Æ

completing comprehensive water resources negotiations leading to

a comprehensive water settlement for the Tribe, including soil and

water technical analyses, legal, paralegal, and other related efforts,

$150,000 for fiscal year 2006.

(c) OTHER ARIZONA INDIAN TRIBES.—There is authorized to

be appropriated to the Secretary to assist Arizona Indian tribes

(other than those specified in subsections (a) and (b)) in completing

comprehensive water resources negotiations leading to a comprehensive water settlement for the Arizona Indian tribes, including soil

and water technical analyses, legal, paralegal, and other related

efforts, $300,000 for fiscal year 2006.

(d) NO LIMITATION ON OTHER FUNDING.—Amounts made available under subsections (a), (b), and (c) shall not limit, and shall

be in addition to, other amounts available for Arizona tribal water

rights negotiations leading to comprehensive water settlements.

Approved December 10, 2004.