96–118 

Calendar No. 719 

108TH CONGRESS REPORT " ! SENATE 2d Session 108–360 

ARIZONA WATER SETTLEMENTS ACT 

SEPTEMBER 28, 2004.—Ordered to be printed 

Mr. DOMENICI, from the Committee on Energy and Natural 

Resources, submitted the following 

R E P O R T 

[To accompany S. 437] 

The Committee on Energy and Natural Resources, to which was 

referred the bill (S. 437) 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, having considered the same, reports favorably 

thereon with an amendment and recommends that the bill, as 

amended, do pass. 

The amendment is as follows: 

Strike out all after the enacting clause and insert in lieu thereof 

the following: 

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. 

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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. 

TITLE IV—SAN CARLOS APACHE TRIBE WATER RIGHTS SETTLEMENT 

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

Sec. 402. Annual report.

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 ‘‘after-acquired 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; 

(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). 

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(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— 

(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. 

4 

(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 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.— 

(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— 

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(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. 

(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 

6 

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. 

(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. 

SEC. 3. ARBITRATION. 

(a) 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. 

(b) 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. 

7 

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— 

(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 acrefeet 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 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. 

8 

(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 

(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; 

9 

(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 

(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 

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 SUBCONTRACTS.— 

(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 subVerDate Aug 04 2004 06:35 Sep 29, 2004 Jkt 096118 PO 00000 Frm 00009 Fmt 6659 Sfmt 6621 E:\HR\OC\SR360.XXX SR360
10 

contracts 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.— (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.— 

11 

(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. 

(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 CONSERVATION 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 (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); 

‘‘(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; 

12 

‘‘(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 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 the Arizona Water Settlements 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; and 

‘‘(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; 

‘‘(E) in addition to amounts made available for the purpose through annual appropriations— 

13 

‘‘(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 CEN- TRAL 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, 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). 

14 

‘‘(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 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)’’; 

(2) by striking ‘‘clause’’ each other place it appears and inserting ‘‘paragraph’’; 

(3) by striking ‘‘clauses’’ each place it appears and inserting ‘‘paragraphs’’; and 

(4) 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. 

15 

(2) REQUIREMENTS.—To ensure that long-term environmental compliance may 

be met without further appropriations, an agreement under paragraph (1) shall 

include a provision 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 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) NO MAJOR FEDERAL ACTION.—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 of 1969 (42 U.S.C. 4321 et seq.). 

(2) ENVIRONMENTAL COMPLIANCE ACTIVITIES.—The Secretary shall promptly 

carry out the environmental compliance activities necessary to implement the 

Gila River agreement, including activities under the National Environmental 

Policy Act of 1969 and the Endangered Species Act of 1973 (16 U.S.C. 1531 et 

seq.). 

(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.— 

16 

(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 

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 COMMUNITY.—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, the San Carlos Irrigation and Drainage District may use locally 

accepted engineering standards and the labor and contracting authorities that are available to the District under State law; 

(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 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 

17 

(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 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 or the United States 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 IrrigaVerDate Aug 04 2004 06:35 Sep 29, 2004 Jkt 096118 PO 00000 Frm 00017 Fmt 6659 Sfmt 6621 E:\HR\OC\SR360.XXX SR360
18 

tion 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 

(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 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 

19 

(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— 

(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 

20 

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. 

(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 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 COM- MUNITY 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 

21 

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 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, offReservation 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 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) 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. 

22 

(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 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; 

(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: 

23 

(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 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 members in their capacities as allottees), as part of the perVerDate Aug 04 2004 06:35 Sep 29, 2004 Jkt 096118 PO 00000 Frm 00023 Fmt 6659 Sfmt 6621 E:\HR\OC\SR360.XXX SR360
24 

formance 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 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, 

25 

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 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, offReservation 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; and 

(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. 

(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 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 

26 

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 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 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), 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 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 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 abVerDate Aug 04 2004 06:35 Sep 29, 2004 Jkt 096118 PO 00000 Frm 00026 Fmt 6659 Sfmt 6621 E:\HR\OC\SR360.XXX SR360
27 

original 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 to the terms, conditions, limitations, requirements, or provisions of the UVD agreement; 

(iii)(I) past, present, and future claims 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 the extent the 

United States holds legal title to the water rights as described in article V 

or VI 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 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 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 

28 

(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 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, 

29 

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. 

(d) ALL LAND WITHIN EXTERIOR BOUNDARIES OF THE RESERVATION.—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.— 

(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. 

30 

(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 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. 

31 

SEC. 211. REDUCTION OF WATER RIGHTS. 

(a) REDUCTION OF TBI ELIGIBLE ACRES.— (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 SUB- PARAGRAPHS (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 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 

32 

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.— 

(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 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.— 

33 

(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 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 

34 

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 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) NO MAJOR FEDERAL ACTION.—Execution of the New Mexico Consumptive 

Use and Forbearance Agreement and of the New Mexico Unit Agreement shall 

not constitute a major Federal action under the National Environmental Policy 

Act of 1969 (42 U.S.C. 4321 et seq.). 

(2) ENVIRONMENTAL COMPLIANCE ACTIVITIES.—Upon execution of the New 

Mexico Unit Agreement, the Secretary shall promptly carry out the environmental compliance activities necessary to implement such agreement, including 

activities under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 

et seq.) and the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.). 

(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 (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 enviVerDate Aug 04 2004 06:35 Sep 29, 2004 Jkt 096118 PO 00000 Frm 00034 Fmt 6659 Sfmt 6621 E:\HR\OC\SR360.XXX SR360
35 

ronmental 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)). 

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 agreeVerDate Aug 04 2004 06:35 Sep 29, 2004 Jkt 096118 PO 00000 Frm 00035 Fmt 6659 Sfmt 6621 E:\HR\OC\SR360.XXX SR360
36 

ment, 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 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 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 

37 

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’’. 

(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 appropriated $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. 

38 

(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 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 Con- servation 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: 

‘‘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); 

39 

‘‘(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 ‘after-acquired 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. 

‘‘(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). 

40 

‘‘(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. 

‘‘(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. 

‘‘(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). 

41 

‘‘(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 95μ09361 (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. 

‘‘(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 

42 

‘‘(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. 

‘‘(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 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 

43 

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); 

‘‘(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— 

44 

‘‘(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; 

‘‘(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.— 

‘‘(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 

45 

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— 

‘‘(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 

46 

‘‘(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 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 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; 

47 

‘‘(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 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 

Novermber 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 

48 

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— 

‘‘(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 

‘‘(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 

49 

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 

‘‘(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 

XavierReservation, 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 

50 

‘‘(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 

‘‘(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 acrefeet 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.— 

‘‘(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— 

51 

‘‘(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, 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.— 

52 

‘‘(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— 

‘‘(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 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 peVerDate Aug 04 2004 06:35 Sep 29, 2004 Jkt 096118 PO 00000 Frm 00052 Fmt 6659 Sfmt 6621 E:\HR\OC\SR360.XXX SR360
53 

riod 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. 

‘‘(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) IN GENERAL.—Execution of an agreement described in paragraph (2) 

shall not constitute major Federal action under the National Environmental 

Policy Act of 1969 (42 U.S.C. 4321 et seq.). 

‘‘(B) ENVIRONMENTAL COMPLIANCE ACTIVITIES.—The Secretary shall carry 

out all necessary environmental compliance activities during the implementation of the agreements described in paragraph (2), including activities 

under— 

‘‘(i) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 

et seq.); and 

‘‘(ii) the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.). 

‘‘(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.— 

54 

‘‘(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 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 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.— 

55 

‘‘(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 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. 

56 

‘‘(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, 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 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. 

57 

‘‘(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 offReservation 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 

‘‘(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 

58 

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 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 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.— 

59 

‘‘(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. 

‘‘(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; 

60 

‘‘(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. 

‘‘(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). 

‘‘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 

61 

‘‘(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; 

‘‘(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 

62 

‘‘(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; 

‘‘(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 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); 

63 

(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— 

(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 shall be construed to amend, alter, or 

limit the authority of— 

(1) 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 

(2) 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). 

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. 

64 

PURPOSE

The purpose of S. 437, as ordered reported, is to provide for adjustments to the Central Arizona Project, 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. 

BACKGROUND AND NEED

S. 437 authorizes and funds the settlement of a number of water 

issues in central and southern Arizona. These issues involve, to a 

large extent, the Central Arizona Project (CAP), a federally-developed water project authorized in 1968 to deliver approximately 1.5 

million acre-feet of Colorado River water annually to central Arizona. The resolution of these CAP-related issues also directly facilitates two Indian water rights settlements which are authorized by 

this bill. Those settlements will benefit the Gila River Indian Community and the Tohono O’odham Nation. 

The CAP settlement and the two Indian water rights settlements 

are contained in Titles I–III of S. 437. They are inextricably linked. 

These matters have involved years of litigation between a large 

number of parties in Arizona. S. 437 will benefit a large portion of 

the population in Arizona by alleviating the water supply uncertainties that currently exist for several communities as a result of 

the ongoing litigation. 

In addition to the three settlements authorized in this bill, S. 437 

contains a fourth title which recognizes the need to complete a 

fourth settlement, that of the San Carlos Apache Tribe for its 

water rights claims in the Gila River. Titles I–IV are described in 

more detail below. 

TITLE I

The Arizona Water Settlements Act is based on a stipulation between the United States and the Central Arizona Water Conservation District (CAWCD), originally approved by the federal district 

court on May 9, 2000, that would resolve litigation concerning repayment and operational issues associated with the CAP. A revised 

Stipulation Regarding a Stay and for Ultimate Judgment Upon the 

Satisfaction of Conditions was filed in United States District Court, 

in Central Arizona Water Conservation District v. United States 

(No. CIV 95–625–TUC–WDB (EHC), No. CIV 95–1720–OHX–EHC 

(Consolidated Action)) on April 24, 2003. The stipulation was revised to reflect a realistic timetable for passing legislation and completing conditions which are a prerequisite to finalizing the settlements. Those conditions include enacting federal legislation that 

would: 

(a) Fix a final allocation of CAP water supplies between the 

federal government and local water users (47% to US/Indian 

tribes and 53% to non-Indian users), including a final additional allocation of 197,500 acre-feet (af) of non-Indian agricultural priority water to the United States for use in facilitating 

new Indian water rights settlements; 

(b) Authorize a settlement of the Gila River Indian Community’s water rights claims (Title II); 

65 

(c) Authorize amendments necessary to finalize the 1982 

Southern Arizona Water Rights Settlement Act (SAWRSA) involving the Tohono O’odham Nation (Title III); and 

(d) Authorize the Secretary of the Interior to use Lower 

Basin Development Fund (created by section 403 of the 1968 

Colorado River Basin Project Act) revenues, without further 

appropriation, to pay fixed operation, maintenance, and replacement (OM&R) costs associated with the delivery of CAP 

water to Arizona Indian tribes, fund Indian water rights settlement costs, fund water delivery systems to allow Indian tribes 

to utilize their CAP water allocation, and fund future Indian 

water rights settlements. 

The stipulation’s conditions must be satisfied by April 2012 or it 

will expire and the underlying litigation will continue. Title I of S. 

437 addresses conditions (a) and (d) as set forth above. 

TITLE II

Title II of S. 437 is the ‘‘Gila River Indian Community Water 

Rights Settlement Act of 2004.’’ This part of the bill is particularly 

noteworthy because the certainty associated with resolving the 

Community’s water rights claims is key to ensuring that Title I’s 

allocation of 197,500 acre-feet of CAP water for Arizona Indian 

tribes is a sufficient amount of water, not only for the Community, 

but to provide an additional supply available to resolve other Indian water rights claims in Arizona. 

The Gila River Indian Reservation (known today as the Gila 

River Indian Community) was created by an Act of Congress in 

1859 and enlarged by seven separate Executive Orders from 1876 

to 1915. Currently, the Reservation encompasses approximately 

377,000 acres of land in central Arizona. Most of these lands are 

located in the Gila River watershed. 

The Community’s settlement would fully resolve its water rights 

claims in the Gila River adjudication—a case currently pending before the state district court in Arizona. The claims, in terms of 

water quantity, are among the largest filed by the United States 

on behalf of an Indian tribe in a water rights adjudication. Resolution of these claims, in addition to providing the Community with 

a long-term water supply consistent with its claims, will help provide certainty for those non-Indian water users whose use of water 

is at risk due to the Community’s water rights claims. The Community’s settlement water budget totals 653,500 acre-feet per year (including approximately 328,000 acre-feet of CAP water) and it will 

receive a direct federal contribution of $200 million to assist the 

Community in putting its water to beneficial use. The Community 

will also benefit from the use of the Lower Colorado River Basin 

Development Fund to pay fixed OM&R costs associated with the 

delivery of the Community’s CAP water. 

The Settlement also resolves a number of long-standing issues 

associated with a federal court decree concerning water use in the 

upper Gila River in Arizona and the Virden Valley in New Mexico. 

The 1935 decree, issued in a suit known as the Globe Equity case, 

has been the basis for ongoing litigation concerning its interpretation. Title II will resolve a number of the issues in Globe Equity 

litigation and will therefore benefit a number of the upper Gila 

River water users. The Settlement also resolves a number of issues 

66 

concerning the rights of New Mexico water users to divert additional water in the upper Gila River system as authorized in the 

1968 Colorado River Basin Project Act. 

TITLE III

Title III of S. 437 is the Southern Arizona Water Rights Settlement Amendments Act of 2004. This Act provides a substitute 

amendment to the original Southern Arizona Water Rights Settlement Act (SAWRSA) that was enacted by Congress in 1982. 

SAWRSA settled a suit filed in 1975 by the United States, on behalf of the Papago Tribe (now the Tohono O’odham Nation) and two 

individual Indian allottees representing a class of Indian trust allotment landowners, against several major water users in the 

upper Santa Cruz Basin, including the City of Tucson and other 

major mining and farming interests, claiming damages and seeking 

to enjoin groundwater pumping (United States v. Tucson). 

The terms of the original settlement called for the Tohono 

O’odham Nation (Nation) to receive, without charge, 66,000 acrefeet of water annually, the right to pump 10,000 acre-feet of 

groundwater annually at San Xavier, farm improvements, and a 

$15 million trust fund. Of the 66,000 acre-feet, 37,800 acre-feet was 

to be the Nation’s contracted CAP water for the San Xavier district 

and the eastern Schuk Toak district. An additional 28,200 acre feet 

was to be acquired by the Secretary and delivered after United 

States v. Tucson was dismissed. This 28,200 acre-feet was to be effluent water transferred from the City to the United States. Additionally, the City along with other State and local entities was to 

contribute a total of $5.25 million to a cooperative fund. The fund 

was to help the United States pay the on-going costs of implementing the settlement. 

The City, State and local interests timely performed all of their 

obligations under the settlement and the Nation agreed to dismiss 

the case. However, a dispute between the Nation and the San Xavier allottees concerning ownership of the settlement water and entitlement to financial benefits prevented final dismissal of the lawsuit and implementation of the settlement. In 1993, the allottees 

filed a new lawsuit (Alvarez v. City of Tucson) in which they 

sought, among other things, to enjoin groundwater pumping by the 

City and others. Motions to dismiss the lawsuits on the basis of 

SAWRSA have been pending before the court for some time. 

For many years, the City and State worked with the Nation, the 

San Xavier District, and a San Xavier allottee group to help them 

achieve a resolution of their dispute. As a result, the Nation, the 

San Xavier District, the Schuk Toak District, the allottees, the City 

of Tucson, the State, and other parties negotiated the amendments 

to SAWRSA which constitute Title III. 

Title III incorporates the elements of the agreement between the 

Nation and the allottees concerning the division of water and financial resources. It would allow the Nation greater flexibility in putting its water resources to beneficial use, and would assure implementation of the basic elements of the 1982 settlement. Title III 

would resolve asserted ambiguities in the existing law and assure 

dismissal of the pending lawsuits. It spells out specific benefits for 

the San Xavier allottee interests. The obligations of the U.S. to rehabilitate the existing Cooperative Farm at San Xavier for the 

67 

allottees and to expand the Farm to 2,200 acres are also clarified. 

Rehabilitation will include bank protection on the Santa Cruz and 

the elimination of sink holes. The United States’ obligation to build 

a new farm in the San Xavier District is clarified, with the District 

having the option to receive cash in lieu of the new farm improvements. In addition, CAP water is identified as the source of the 

28,200 acre feet the Nation is to receive when the lawsuits have 

been dismissed. 

TITLE IV

Title IV of S. 437 does not settle or resolve the San Carlos 

Apache Tribe’s water rights claims in the Gila River adjudication. 

In the absence of a settlement, Title IV simply makes clear that 

Titles I–III do not limit the ability of the San Carlos Apache Tribe, 

or the United States as its trustee, from pursuing any claims. The 

Secretary is also charged with reporting to Congress on the status 

of any water rights settlement negotiations with the Tribe. 

LEGISLATIVE HISTORY

S. 437 was introduced by Senator Kyl on February 12, 2003 and 

referred to the Energy and Natural Resources Committee. Senator 

McCain is an original co-sponsor. Senator Johnson is also a cosponsor. The Committee on Indian Affairs and the Committee on 

Energy and Natural Resources Subcommittee on Water and Power 

held a joint hearing on S. 437 on September 30, 2003 (S. Hrg. 108– 

216). At the business meeting on September 15, 2004, the Committee on Energy and Natural Resources ordered S. 437 favorably 

reported with an amendment in the nature of a substitute. 

During the 107th Congress, a similar measure, S. 2992, was introduced by Senator Kyl and referred to the Committee on Energy 

and Natural Resources on September 24, 2002, but the Committee 

took no further action. 

During the 106th Congress, a similar measure, S. 3231, was introduced by Senator Kyl and referred to the Committee on Energy 

and Natural Resources on October 24, 2000, but the Committee 

took no further action. 

COMMITTEE RECOMMENDATION

The Senate Committee on Energy and Natural Resources, in an 

open business session on September 15, 2004, by a unanimous 

voice vote of a quorum present, recommends that the Senate pass 

S. 437, if amended as described herein. 

COMMITTEE AMENDMENT

The amendment in the nature of a substitute makes the following changes to S. 437 as introduced: 

1. Provides definitions of the NM Cap Entity, the New Mexico 

Unit, New Mexico Unit Agreement, and New Mexico Consumptive 

Use and Forbearance Agreement which is an exhibit to the UVD 

Agreement. 

2. Defines the UV impact zone according to its definition in the 

UVD Agreement. 

3. Clarifies the viability of decisions reached by arbitration irrespective of United States participation. 

68 

4. Protects the United States from claims of not implementing 

the Arizona Water Settlements Act if funds in the Lower Basin Development Act or appropriations are insufficient to carry out all activities authorized. 

5. Changes the name of the Central Arizona Project Settlement 

Act of 2003 to the Central Arizona Project Settlement Act of 2004. 

6. Revises the allocation of entitlements under long-term contracts for CAP water decreasing the allocation to Indians to 

650,724 acre-feet with the balance allocated to other parties. 

7. Allows up to 17,000 acre-feet of CAP municipal and industrial 

water under contract to Asarco to be exchanged with the Gila River 

Indian Community. 

8. Removes the restriction on amended contracts from the Central Arizona Project requiring them to conform to the shortage 

sharing provisions of the Gila River Agreement. 

9. Provides that the Arizona Water Settlements Act supersedes 

any provisions in the Master agreement, Gila River Agreement, 

Joint Control Board Agreement, Amended and Restated Community CAP Water Delivery Contract, leases of Community CAP 

water, Reclaimed Water Exchange Agreement, Community Repayment Contract, the New Mexico Consumptive Use and Forbearance 

Agreement, Tohono O’odham Settlement Agreement, the Tucson 

Agreement, Asarco Agreement, and lease number H54–0916–0972 

should there be any conflicts between the agreements and the Act 

and allows amendments to these agreements to be authorized, ratified, and confirmed to the degree that they make the agreements 

consistent with the Act. 

10. Specifies conditions of debt collection for contractors that do 

not relinquish their agriculture priority water under the master 

agreement. 

11. Provides authority to the Secretary to extend the repayment 

schedule by CAP contractors. 

12. Specifies the priority of funds allocated by the Secretary from 

the Lower Basin Development Fund. 

13. Specifies the amounts and conditions for payments from the 

Lower Colorado Basin Development Fund to the New Mexico Unit 

Fund. 

14. Specifies the amount, annual limits, and indexing of funds allocated from the Lower Colorado Basin Development Fund for the 

San Carlos Irrigation Project rehabilitation. 

15. Creates a Future Indian Water Settlement Subaccount in the 

Lower Colorado Basin Development Fund, specifies the limits and 

conditions on allocation of funds to that subaccount, and ties the 

dispersal of those funds to Congressionally authorized water rights 

settlements. 

16. Allows the U.S. Treasury to invest portions of the Lower Colorado Basin Development Fund in an array of government investment vehicles. 

17. Restricts the Secretary from using funds in the Lower Colorado Basin Development Fund for Ak-Chin OM&R charges. 

18. Restricts payments from the Lower Colorado Basin Development Fund until January 1, 2010. 

19. Modifies the purposes, removes the findings, and changes the 

title of the Gila River Indian Community Water Rights Settlement 

Act of 2004. 

69 

20. Authorizes the Secretary to execute the New Mexico Consumptive Use and Forbearance Agreement . 

21. Modifies Secretarial authority to rehabilitate the San Carlos 

Irrigation Project including providing electric power at direct cost. 

Modifies and articulates the responsibilities and authority of the 

Joint Control Board and the financial responsibilities of the Secretary. Specifies responsibilities for continued operations of certain 

elements of the project. Allows local engineering standards to be 

applied, and specifies the allocation of conserved water pursuant to 

the terms of the Gila River Agreement. 

22. Specifies the manner in which allottee benefits related to 

water rights and water infrastructure will be managed by the Gila 

River Indian Community with United States involvement and the 

authority and restrictions on the authority of the Community to 

lease, distribute, exchange, or allocate CAP water and eliminates 

United States responsibility for financial management and funds 

associated with these transactions. It also specifies methods for 

allottees to seek remedy. 

23. Requires that the Gila River Indian Community develop and 

enact a water code within 18 months and lays out conditions that 

must be met by the code, by allottees who bring claims, and by the 

Community in implementing the code. 

24. Significantly modifies the waiver conditions for most parties 

related to water quality claims. 

25. Rewrites the waivers and conditions of claims by the Gila 

River Indian Community and the United States against the Salt 

River Project. 

26. Reiterates that nothing in the Gila River Indian Water 

Rights Settlement affects the rights of the United States or the 

State of Arizona to take action under laws governing human 

health, safety, or the environment. 

27. Specifies waiver conditions for claims against the Upper Valley Diverters with special emphasis on the newly defined UV impact zone consistent with the UVD Agreement. 

28. Authorizes the Gila River Indian Community in performance 

of its obligations under the Gila River Agreement to agree to never 

adopt water quality standards that are more stringent than the 

State of Arizona. 

29. Specifies the meaning of the concept of land within the exterior boundaries of the Reservation and the ability to allocate water 

rights to various subsets of that land including for lands acquired 

by fee title. 

30. Modifies the creation and conditions of management and investment of the Gila River Indian Community Water OM&R Trust 

Fund. 

31. Authorizes the Secretary to contract with the Gila Valley Irrigation District and the Franklin Irrigation District and provide 

funds for these districts to acquire land and associated UV decreed 

water rights in order to reduce the total water demand on the Gila 

River. The Districts take responsibility to acquire the lands. The 

methods for determining value of the lands, amount of land and 

schedules are articulated and the responsibility to the San Carlos 

Irrigation District for lack of land acquisition is clarified. 

32. Specifies the conditions of the New Mexico Unit. Authorizes, 

ratifies and confirms the New Mexico Consumptive Use and ForVerDate Aug 04 2004 06:35 Sep 29, 2004 Jkt 096118 PO 00000 Frm 00069 Fmt 6659 Sfmt 6602 E:\HR\OC\SR360.XXX SR360
70 

bearance Agreement and authorizes the Secretary to execute the 

NM Consumptive Use and Forbearance Agreement, and the NM 

Unit Agreement. 33. Directs that $15 million be provided to the UV irrigation districts to comply with the New Mexico Consumptive Use and Forbearance Agreement, such funding to be indexed according to the 

referenced standard. 

34. Authorizes the Secretary to accept transfer of title from the 

Salt River Project Agriculture Improvement and Power District a 

transfer of the Blue Ridge Project and to modify the availability of 

the water for municipal and domestic uses, rename the reservoir, 

provide for the long-term care, operation and maintenance, specify 

court of jurisdiction for interpretation of legislation and remove the 

facilities from licensing and regulatory responsibility of the Federal 

Energy Regulatory Commission. 

35. Removes the findings for the Southern Arizona Water Rights 

Settlement and replaces them with purposes. 

SECTION-BY-SECTION ANALYSIS

Section 1 contains the short title and table of contents. 

Section 2 defines terms used in Titles I and II. 

Section 3 addresses the effect of the United States non-participation in any arbitration proceeding conducted pursuant to certain 

specified provisions. The procedures for the United States participation in arbitration are also specified. It is the Committee’s understanding that any arbitration proceeding referred to in subsection 

(a) will concern only certain aspects of the water rights of the Community, the San Carlos Irrigation Project or the Miscellaneous 

Flow Lands, 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. This understanding is important 

because the San Carlos Irrigation Project is a unique entity in 

which the United States hold title to water rights but each of the 

San Carlos Irrigation Project parties have the rights to the benefits 

of those water rights. 

Section 4 limits the liability of the United States for failure to 

carry out any obligation or activity required by the Act. 

Title I—Central Arizona Project Settlement 

Section 101 contains the short title. 

Section 102 contains findings for the Act. 

Section 103 clarifies that, notwithstanding any other law, the 

CAP system may be used to transport non-project water for any 

purpose for which the project was authorized, including municipal 

and industrial uses. 

Section 104 provides for the reallocation of CAP water in accordance with the Master Agreement among the United States, the Arizona Department of Water Resources, and CAWCD. 

Subsection 104(a) directs the Secretary to reallocate water relinquished by CAP non-Indian agricultural subcontractors under the 

Master Agreement for use by Arizona Indian tribes. Section 

104(a)(1) specifies that 197,500 acre-feet of the relinquished CAP 

agricultural water will be available for the reallocation. Of that 

total, 102,000 acre-feet will be reallocated to the Gila River Indian 

71 

Community and 28,200 acre-feet to the Tohono O’odham Nation to 

complete the settlements approved under Titles II and III of this 

Act. The remaining 67,300 acre-feet will be held by the Secretary 

and used in the future to resolve other Indian water claims in Arizona. To encourage Indian water rights settlements, until December 31, 2030, the Secretary may only reallocate the remaining tribal water pursuant to a settlement approved by Congress. After that 

time, if any tribal CAP water remains, the Secretary may allocate 

such water without a congressionally-enacted settlement to help 

ensure that Arizona Indian tribes receive the benefit of the water 

made available in this subsection. Any water so allocated, will be 

credited against any tribal water rights claim. The Committee has 

also included in this subsection, a provision requiring the Secretary 

to report to Congress on the status of Indian water rights settlements and other tribal water needs in Arizona so that the Congress 

can evaluate whether Arizona Indian tribes are receiving the benefits intended. 

Subsection 104(a) also specifically directs the Secretary to retain 

6,411 acre-feet of this water until December 31, 2030, for use in a 

future water rights settlement agreement approved by an Act of 

Congress that settles the Navajo Nation’s claims to water in Arizona. The 6,411 af of reserved CAP water is for possible use by the 

Navajo Nation in association with a water supply project projected 

to deliver water to the Navajo Reservation in eastern Arizona. It 

is not the Committee’s intent that the 6,411 af be interpreted to 

limit additional allocations of tribal CAP water to the Navajo Nation to address water needs elsewhere on its reservation in Arizona. The Committee recognizes that any use of Colorado River 

water, including CAP water reserved for future tribal settlements, 

can only be utilized if consistent with the United States Supreme 

Court Decree in Arizona v. California, and the 1922 Colorado River 

Compact. The Committee recommends that the parties to any tribal settlement that proposes using Colorado River water in a different manner seek appropriate amendments or stipulations to 

change the aforementioned Decree and Compact. 

Section 104(a)(2) directs the Secretary to reallocate up to 96,295 

acre-feet to the Arizona Department of Water Resources to be held 

in trust for future allocation to non-Indian municipal and industrial water users in Arizona. 

Subsection 104(b) directs the Secretary, in accordance with applicable law, to reallocate 65,647 acre-feet of currently uncontracted 

CAP municipal and industrial water to various M&I water providers based on the recommendation of the Arizona Department of 

Water Resources. 

Subsection 104(c) limits the total amount of CAP water entitlements under long-term contracts to 1.415 million acre-feet. Of that 

total, up to 47 percent will be available for use by Arizona Indian 

tribes or their lessees and at least 53 percent will be available for 

use by non-Indian water users in Arizona. Section 104(c) fixes this 

division of the CAP water supply between Indian and non-Indian 

uses in accordance with the Master Agreement. 

Section 104(d) directs the Secretary of the Interior to offer 

amendments to CAP Indian and M&I water service contracts. The 

contract amendments would allow amendment of current CAP Indian and M&I contracts allowing them to be permanent with an 

72 

initial delivery term of 100 years (or longer, if a longer term is authorized by Congress or provided by existing agreements). Under 

section 104(d), all CAP Indian and M&I contract amendments 

would conform to shortage sharing agreements contained in the 

Tohono O’odham settlement agreement approved under Title III 

that have been agreed to among the United States, the State of Arizona, CAWCD and other CAP water users. 

Subsection 104(e) clarifies that CAP water may not be leased, exchanged, forborne or otherwise transferred in any way for use directly or indirectly outside the State of Arizona, except pursuant to 

an agreement with the Arizona Water Banking Authority as part 

of a recognized interstate water banking program or to effect an exchange with New Mexico under the New Mexico Consumptive Use 

and Forbearance Agreement ratified by section 212 of this Act. 

Subsection 105(a) provides that the Secretary of the Interior and 

the State of Arizona will jointly develop a program to ‘‘firm’’ 60,648 

acre-feet of the CAP non-Indian agricultural priority water that is 

to be reallocated to Indian tribes under section 104. When the 

amount of water available for delivery through the CAP in any 

year is insufficient to meet all long-term contract entitlements, 

non-Indian agricultural priority water deliveries are the first to be 

cut. The purpose of the firming program is to insure that the nonIndian agricultural priority water in question is available for delivery with the same degree of reliability as municipal and industrial 

priority CAP water. 

Subsection 105(b) directs the Secretary to firm 28,200 acre-feet 

of CAP non-Indian agricultural priority water that is to be reallocated to the Tohono O’odham Nation and 8,724 acre-feet to be reallocated to other Indian tribes. The State of Arizona is to firm 

15,000 acre-feet of CAP non-Indian agricultural priority water that 

is to be reallocated to the Gila River Indian Community. 

Subsection 105(c) authorizes appropriation of the funds necessary 

to carry out the Secretary’s firming duties under section 105(b). 

Section 106(a) authorizes, ratifies and confirms the Master 

Agreement, under which non-Indian agricultural water service subcontractors will relinquish some or all of their long-term CAP contract entitlements. The CAP water entitlements relinquished under 

the Master Agreement will be reallocated as prescribed in subsections 104(a) and (b). For any such water not relinquished, the 

subcontractor shall continue to be responsible for debt owed to the 

United States as set forth in the Master Agreement. 

Subsection 106(b) specifies that debt incurred by CAP non-Indian 

agriculture subcontractors under section 9(d) under the Reclamation Project Act of August 4, 1939, is nonreimbursable and nonrefundable in return for, and as a condition of, relinquishing longterm CAP contract entitlements as provided in the Master Agreement. Collectively, that 9(d) debt totals more than $158 million. 

Under the Master Agreement, CAWCD has agreed to pay about 

$85 million of that debt and the United States has agreed to debt 

relief in an amount not to exceed $73,561,337. Section 106(b) 

makes the 9(d) debt that the United States has agreed to relieve, 

non-reimbursable and non-returnable. 

Subsection 106(c) exempts the CAP service area and other specified land from the Reclamation Reform Act and any other acreage 

limitation or full cost pricing provisions of federal law. One of the 

73 

purposes of the Central Arizona Project is to provide a renewable 

water supply to agriculture to alleviate the significant groundwater 

overdraft in central Arizona. The Reclamation Reform Act limits 

the agricultural lands that may receive CAP water, and therefore 

has the effect of increasing groundwater pumping in central Arizona. The exemption in section 106 is consistent with the purpose 

of the CAP. 

Subsection 107(a) amends section 403(f) of the Colorado River 

Basin Project Act of 1968 (Basin Project Act) to authorize new uses 

for certain funds deposited into the Lower Colorado River Basin 

Development Fund (Fund). Instead of being returned to the general 

fund of the Treasury, the revenues, after being credited against the 

annual payment owed by CAWCD, would be made available annually, without further appropriation, as described below. Section 

107(a) does not affect the collection and deposit of revenues to the 

Development Fund, nor does it alter CAWCD’s obligation to make 

cash payments sufficient to meet its annual repayment obligation 

for the CAP. 

Subsection 403(f)(1) provides that the Development Fund revenues in question, as well as CAWCD’s annual payments, will continue to be credited against the annual payment owed by CAWCD 

for the CAP. This provision is consistent with the current version 

of section 403(f) and with the CAP repayment contract between 

CAWCD and the United States. 

Subsection 403(f)(2) provides that the monies from the Fund that 

are credited against CAWCD’s annual payment under subsection 

(1) may thereafter be used annually, without further appropriation 

for payment of fixed operation, maintenance and replacement 

(OM&R) charges associated with the delivery of CAP water to Indian tribes; payment of $53 million to the Gila River Indian Community Water OM&R Trust Fund established by section 207 of this 

Act; payment of $147 million (indexed from January 1, 2000) for rehabilitation of the San Carlos Irrigation Project; payment of the following amounts, as reasonably allocated by the Secretary without 

regard to any trust obligation and without regard to priority, except that payments to the New Mexico Unit Fund shall be made 

first: $66 million (indexed from January 1, 2004) into the New 

Mexico Unit Fund to be made in ten equal annual payments beginning in 2012; a minimum of $34 million and a maximum of $62 

million (indexed from January 1, 2004) as provided in section 212, 

for payment of costs associated with construction of the New Mexico Unit upon satisfaction of the conditions set forth in subsections 

(j) and (k) of section 212; costs of constructing water distribution 

systems for the Gila River Indian Community, the San Carlos 

Apache Tribe and the Tohono O’odham Nation; $52,396,000 (indexed from January 1, 2000) for rehabilitation of the San Carlos 

Irrigation Project as provided in section 203(d)(4); other costs specifically identified under sections 213 and 214 or Title III; up to 

$250 million to the Future Indian Water Settlement Subaccount 

within the Development Fund to pay the costs of Indian water 

rights settlements in Arizona approved by the Congress; up to 

$500,000 for installation of gauges on the Gila River and its tributaries to measure water levels for purposes of the New Mexico Consumptive Use and Forbearance Agreement; and payment of the 

costs of constructing on-reservation CAP distribution systems for 

74 

the Yavapai Apache (Camp Verde), Pasqua Yaqui and Tonto 

Apache tribes and the Sif Oidak District of the Tohono O’odham 

Nation. Any funds not used in the year they become available are 

carried over to the following fiscal year and are again available for 

the purposes outlined above. 

Subsection 403(f)(3) deals with revenues to the Development 

Fund that are in excess of the amount required to make CAWCD’s 

annual payment for the CAP. Development Fund revenues that fall 

under new subsection 403(f)(3) may be used by the Bureau of Reclamation for the following, in order of priority: payment of fixed 

OM&R charges associated with the delivery of CAP water to Indian 

tribes; payment of the final outstanding annual payment due from 

CAWCD under its CAP repayment contract with the United States; 

payment to the general fund of the Treasury in reimbursement of 

Indian fixed OM&R charges previously paid from the Development 

Fund under 403(f)(2)(A); payment to the general fund of the Treasury in reimbursement of Indian water rights settlement costs previously paid from the Development Fund under 403(f)(2)(B) 

through (E); payment to the general fund of the Treasury in reimbursement of any federal 9(d) debt made non-reimbursable under 

section 106(b); and payment to the general fund of the Treasury to 

return CAP construction costs, if any, deemed by the Bureau of 

Reclamation to be reimbursable but not covered under the CAP repayment contract between CAWCD and the United States. Any 

funds left over under subsection 403(f)(3) will be deposited in the 

general fund of the Treasury. Subsection 403(f)(4) provides for the 

investment of Development Fund revenues not needed to meet current requirements, which will generate additional interest income 

that may be used for the purposes described in 403(f)(2) and (3). 

Subsection 403(f)(5) provides that Development Fund revenues may 

not be used to fulfill any federal obligation to pay OM&R charges 

pursuant to P.L. 95–328, P.L. 98–530, or any settlement agreement 

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

The Committee recognizes that numerous parties have benefits 

that are to be funded through the Fund. Section 107(a) as amended 

by the Committee substitute, amends section 403(f)(2)(D) of the 

1968 Act to provide that the Secretary will reasonably allocate 

funds among this defined group of projects and beneficiaries. The 

allocation process could create a competition of interests for the 

Secretary to consider when allocating available funds among this 

defined group. To address this issues, the Committee recognizes 

that the Gila Settlement Agreement Parties intend to limit their 

requests for Fund moneys in a manner that would not require the 

Secretary to divide available Fund moneys among the Gila Settlement Agreement Parties. The Committee expects that the Secretary will accept the agreement among the Gila Settlement Parties to limit their requests for funding, will fully fund those limited 

requests and will adequately fund all of the projects and beneficiaries in a time-frame that meets the expectations of such 

projects and beneficiaries. 

To guide the Secretary, the Committee has included in this report a schedule of payments that reasonably and fairly accommodates the expectations of all parties as to the timing of benefits to 

be funded under the bill. To the extent funds are available in the 

75 

Fund, the Secretary should make every effort to allocate these 

funds in accordance with this schedule. 

Of special note, section 403(f)(2)(D)(vi) provides that the Sec- retary will allocate up to $250 million from the Fund to a special 

subaccount that will accrue for future congressionally approved Arizona Indian water rights settlements. The Committee recognizes 

that the Secretary’s timely allocation of these revenues, together 

with the accrual of interest thereon, is of critical importance to Arizona Tribes with unsettled water rights claims to the Gila, the Little Colorado, and the Colorado river systems. The Tribes’ interest 

is shared by the State and the litigants opposing these tribal 

claims since the intent of section 403(f)(2)(D)(iv) is to aid in reaching appropriate settlements of such claims. 

Finally, the Committee expects that the Secretary will provide to 

all beneficiaries under 403(f)(2) of the 1968 Act, as amended, an 

annual report of the funds allocated pursuant to that section. Such 

report shall include, among other things, the basis for the allocations made in that year. 

Subsection 107(b) provides that no monies will be expended or 

withdrawn from the Development Fund pursuant to the amended 

section 403(f) until the date on which the Secretary publishes the 

findings necessary to complete the Gila River Indian Community 

water rights settlement or January 1, 2010, whichever is later. The 

required findings are set forth in section 207(c) of Title 2. Until 

then, funds will be identified for the purposes described in amended section 403(f), but retained in the Development Fund. 

Section 107(c) makes certain technical amendments to the Basin 

Project Act. 

Section 108 makes clear that Title 1 is not intended to alter the 

Law of the Colorado River or affect any existing rights to use Colorado River water except insofar as section 104 directs a reallocation 

of CAP water and section 106(c) amends the Reclamation Reform 

Act. 

Section 109 repeals section 11(h) of the Salt River Pima-Maricopa Indian Community Water Rights Settlement Act of 1988. The 

repealed section required the Secretary of the Interior to reallocate 

certain CAP non-Indian agricultural water to non-Indian agricultural water users. That requirement is inconsistent with the Master Agreement and the reallocation prescribed in section 104. 

Subection 110(a) authorizes appropriations needed to comply 

with various biological opinions issued by the U.S. Fish and Wildlife Service in connection with CAP features and operations. Adherence to these biological opinions is required for the Project to remain in compliance with the Endangered Species Act. 

Subsection 110(b) provides that the amounts made available 

under section 110(a) will be treated as CAP construction costs. 

Subsection 110(c) provides that reasonable and prudent alternatives in the biological opinions identified in section 110(a) may 

be permanently funded through agreements that require the contractor to manage funds through interest-bearing investments. 

Section 111(a) repeals Title 1 effective January 1, 2008, if the 

Gila River Indian Community water rights settlement in Title 2 is 

not fully enforceable by that date. Upon repeal, any actions taken 

by the Secretary under Title 1—for example, the reallocation of 

CAP water—shall be voided and any amounts appropriated under 

76 

section 110 that remain unexpended shall be returned to the general fund of the Treasury. 

Section 111(b) provides that certain CAP subcontract amendments entered into pursuant to a June 18, 2003 Federal Register 

notice (67 Fed. Reg. 36578) are not voided by a repeal of Title I. 

Title II—Gila River Indian Community Water Rights Settlement 

Section 201 contains the short title. 

Section 202 contains purposes for the Act. 

Section 203(a) authorizes, ratifies, and confirms the Gila River 

Agreement, except to the extent the Agreement conflicts with Title 

II. Any amendments executed to make the Agreement consistent 

with this title are also ratified. 

Section 203(b) directs the Secretary to execute the Gila River 

Agreement to the extent it does not conflict with Title II, including 

all exhibits thereto and any amendments that may be necessary to 

make the Agreement consistent with Title II. 

Section 203(c) provides the execution of the Agreement is not a 

major federal action under the National Environmental Policy Act 

(NEPA). The Bureau of Reclamation is designated the lead agency 

with respect to the environmental compliance activity that is to be 

carried out in implementing all aspects of the Gila River Agreement. 

Subsection 203(d) specifies certain actions required by the Secretary related to the San Carlos Irrigation Project. The Secretary 

is authorized to execute a joint control board agreement to the extent such agreement is consistent with this Act. The subsection 

also directs the use of certain resources from the Fund for Project 

rehabilitation costs that are both allocable and not allocable to the 

Community. In addition, the Secretary is to execute a supplemental 

repayment contract with the San Carlos Irrigation and Drainage 

District that addresses labor and contracting opportunities; the allocation of conserved water to the United States; and the portion 

of the District’s share of rehabilitation costs that are nonreimbursable. With respect to the construction and rehabilitation responsibilities authorized by section 203, the Bureau of Reclamation 

(BoR) is to be designated as the lead agency. 

Section 204(a) provides that through the Settlement Agreement, 

Congress intends to provide allottees with benefits that equal or 

exceed the benefits presently available to them, taking several 

specified factors into consideration. The water rights described in 

the Agreement are held in trust for the Community and for 

allottees as provided for in section 204 of the Act. The protection 

afforded to allottees under this section includes a recognition that 

allotted lands with rights under the Globe Equity Decree are entitled to receive a similar quantity of water to the amount historically delivered and the benefit of the rehabilitation of the SCIP facilities. Allottees with land that have no rights under the Globe Equity Decree are entitled to a just and equitable allocation of water 

from the Community for irrigation purposes. These claims and any 

entitlements are to be satisfied from the water resources described 

in the Settlement Agreement. Before asserting certain claims 

against the United States, an allottee must exhaust remedies 

under Community law, including the Community’s water code. 

Nothing in the Act authorizes a claim against any person, entity, 

77 

corporation, or municipal corporation, nor against the Community 

or the United States except as are specified in subparagraphs (E) 

and (F) of paragraph (3) and (e)(2)(C). 

Subsection 204(b) directs the Secretary to reallocate certain CAP 

water previously acquired by the Secretary or acquired pursuant to 

S. 437. The Community’s authority to lease, distribute, or exchange 

CAP water is set forth in the subsection. 

Subsection 204(c) provides that the Community shall not be responsible for water service capital charges for CAP water. 

Subsection 204(d) specifies that any new construction costs associated with delivery of the CAP water described in subsection 

204(b) shall be nonreimbursable and excluded from CAWCD’s repayment obligation. 

Subsection 204(e) provides that the water rights recognized and 

confirmed to the Community and allottees are subject to 25 U.S.C. 

381. The creation of a Community Water Code is also required 

within 18 months from the enactment of S. 437. The Water Code 

requirements are set forth in the subsection. The Water Code and 

any amendments affecting the rights of allottees is to be approved 

by the Secretary. The Secretary retains the responsibility for administering all Community water rights until the water code is approved. 

Subsection 205(a) directs the Secretary to amend the Community 

CAP water delivery contract to provide that the contract is for permanent service under 43 U.S.C. §617d of the Boulder Canyon 

Project Act and not limited as to its term. In addition, the Community CAP contract shall authorize the Community, with approval 

by the Secretary, to enter into lease or exchange its CAP water for 

terms not exceeding 100 years within specified Arizona counties. 

Such leases may include provisions for renegotiation, as long as the 

remaining term of such modified leases do not exceed 100 years. 

The United States will have no claim on the consideration due to 

the Community pursuant to such leases, nor shall the United 

States have a trust obligation related to such revenue. Community 

CAP water is to be delivered through the CAP system, except in 

specified circumstances, and the Community is authorized to use 

its CAP water on or off of the Reservation for Community purposes 

consistent with other provisions in the Act. Except for CAP water 

leased by the Community, the OM&R charges for Community CAP 

water shall be paid from the Basin Development Fund consistent 

with this Act. Further, no water service capital charges are due or 

payable for Community CAP water. 

Subsection 205(b) authorizes, ratifies, and confirms the Amended 

and Restated Community CAP Water Delivery Contract to the extent it is not in conflict with the Act, and directs the Secretary to 

execute the Contract. 

Subsection 205(c) authorizes, ratifies, and confirms certain CAP 

water lease agreements between the cities and specified parties to 

the extent they are not in conflict with the Act, and directs the Secretary to execute the agreements. 

Subsection 205(d) authorizes, ratifies, and confirms the reclaimed 

water exchange agreements between the cities and specified parties 

to the extent they do not conflict with the Act, and directs the Secretary to execute the agreements. 

78 

Subsection 205(e) reiterates that the Community or its lease and 

exchange partners are not obligated to pay water service capital 

charges or other charges for CAP water. 

Subsection 205(f) prohibits exchange, lease or other action that 

moves Community CAP water outside the State of Arizona with 

listed exceptions. 

Subsection 206(a) is self explanatory. 

Subsection 206(b) provides that Title II is not intended to recognize or establish any individual or allottee right to water, except 

as otherwise provided in 204. 

Subsection 207(a) authorizes the United States to execute certain 

waivers of claims in either its own right, its capacity as trustee for 

the Community and Community members, or its capacity as trustee for allottees. The Community is authorized to execute waivers 

in its own capacity and for its members, but not in their capacity 

as allottees. In addition, the United States and the Community 

waive any claims related to the negotiation or execution of the Settlement Agreement or the negotiation or execution of Title I or II. 

Subsection 207(b) establishes the conditions and timing under 

which the waivers are effective. 

Subsection 207(c) ties the enforceability date to a requirement 

that the Secretary publish a statement of findings in the Federal 

Register concerning a number of listed conditions. 

Subsection 207(d) provides a detailed definition of ‘‘land within 

the exterior boundary of the Reservation’’ and ‘‘off-Reservation’’. 

Subsection 207(e) establishes the extent of the water rights available for use on land held in trust for the Community, Community 

members and allottees. 

Section 208(a) establishes the Gila River Indian Community 

OM&R Fund within the Lower Colorado River Basin Fund and provides for $53 million to be deposited for the purposes stated. 

Section 208(b) directs the Secretary to invest the fund consistent 

with the American Indian Trust Fund Management Reform Act of 

1994. 

Subsection 208(c) provides further instructions on investment 

management conditions. 

Subsection 208(d) establishes the conditions for expenditure and 

withdrawals of all or part of the Water O&R Fund; enforcement of 

those conditions; limitation on the liability of federal officials; and 

the requirements for an expenditure plan by the Community. 

Subsection 208(e) specifies that the OM&R Trust Fund is not to 

be distributed on a per capita basis. 

Subsection 208(f) establishes that the OM&R Trust Fund is not 

to be made available until the enforceability date or January 1, 

2010, whichever is later. 

Subsection 209(a) requires the Secretary to establish a Bureau of 

Reclamation program to repair and remediate subsidence damage 

that occurs after the enforceability date consistent with subsection 

107(a). 

Subsection 209(b) specifies that under the program, the Community, a member of the Community, or an allottee are authorized to 

submit a request for the repair of subsidence damage or damage 

to personal property caused by settling that results from underground water pumping. 

79 

Subsection 209(c) directs the Secretary to provide the repair or 

remediation, if the Secretary determines that the Community has 

not exceeded its right to withdraw underground water under the 

Agreement and the party requesting the repair or remediation provides a waiver and release. The waiver and release will only become effective upon satisfactory completion of the relevant repair. 

Subsection 209(d) requires the Secretary to repair, remediate, 

and rehabilitate the subsidence damage specified in exhibit 30.21 

to the Settlement Agreement. 

Subsection 210(a) and (b) provide that the Community may only 

obtain additional lands taken into trust by the United States 

through an act of Congress. Such after-acquired trust lands will not 

include federal reserved water rights. 

Subsection 210(c) provides the sense of Congress concerning the 

water rights associated with future acts of Congress authorizing 

land to be taken into trust for the Community. 

Subsection 210(d) provides that the Secretary will immediately 

hold land in trust for the Community if the Community acquires 

fee land within the Reservation and provides the Secretary with 

specified environmental and title documentation. 

Subsection 211(a) provides for the reduction of irrigation water 

demand in the upper Gila River valley through the acquisition of 

decreed water rights and extinguishing or severing those rights to 

the Project for the benefit of the Community and the San Carlos 

Irrigation and Drainage District and through the use of fallowing 

agreements. This subsection describes certain alternative arrangements the Secretary may pursue to achieve these objectives and 

limits the transfer of the water rights associated with 900 acres to 

the San Carlos Irrigation Project. A mechanism is established to 

determine whether the payment proposed by the upper valley Districts for the acquisition authorized by this program is appropriate. 

With respect to the San Carlos Apache Tribe, this subsection also 

provides for the additional reduction of the water rights associated 

with at least another 500 acres and as much as 3,000 more acres 

if the San Carlos Apache Tribe (SCAT) reaches a comprehensive 

settlement that is approved by Congress. With respect to the water 

rights associated with 300 acres of these acres, the Secretary is to 

extinguish these rights. With respect to 200 acres, the Secretary is 

to transfer the water associated with those acres to the San Carlos 

Irrigation Project. Any remaining balance is to be transferred to 

the San Carlos Apache Tribe. 

As part of the Settlement, persons in the upper Gila River valleys will extinguish 1000 acres of water rights without financial 

compensation. The acquisition and extinguishment or severance 

and transfer of additional water rights in the upper Gila River Valley will benefit the Gila River Indian Community and other interests of the United States. The Committee recognizes, however, that 

the Gila Valley Irrigation District and the Franklin Irrigation District and other persons in the upper Gila River valleys do not have 

the financial ability to acquire and extinguish additional rights. 

Consequently, section 211 directs that the Secretary will provide 

the Irrigation Districts with the funding to acquire and extinguish 

or sever and transfer 2000 acres of water rights in the upper Gila 

River Valley. If the Secretary does not provide any funding for acquisition as provided by section 211, the Irrigation Districts will 

80 

not be required to acquire and extinguish or sever and transfer 

those rights. If the Secretary partially funds the acquisition, as provided in the UVD agreement, the Irrigation Districts will acquire 

and extinguish or sever and transfer water rights in proportion to 

the amounts actually funded. 

Subsection 211(b) directs the Secretary and the UVD settling 

parties to establish a program to extinguish the water rights associated with decreed lands that have not been recently irrigated. 

This program is to be carried out at no cost to the UVD settling 

parties. 

Subsection 212(a) requires the Secretary to refrain from executing the Settlement Agreement until all of the relevant parties 

have executed the New Mexico Consumptive Use and Forbearance 

Agreement and it has been approved by the State of New Mexico. 

Subsection 212(b) authorizes, ratifies, and confirms the New 

Mexico Consumptive Use and Forbearance Agreement except to the 

extent it is inconsistent with Title II. The Secretary is also authorized to execute the New Mexico Consumptive Use and Forbearance 

Agreement and any amendments needed to make it consistent with 

this title. 

Subsection 212(c) describes the New Mexico Unit Agreement and 

the provisions it must include. The Secretary is authorized to execute the New Mexico Unit Agreement in a time certain. 

Subsection 212(d) amends the Colorado Basin Project Act of 1968 

as set forth in the subsection. 

Subsection 212(e) specifies the costs allocable to, or payable by, 

the New Mexico CAP entity. 

Subsection 212(f) excludes costs associated with the New Mexico 

Unit and water delivered under the New Mexico Consumptive Use 

and Forbearance Agreement from the repayment obligation of the 

Central Arizona Water Conservation District. 

Subsection 212(g) reiterates that the Secretary is authorized to 

design, build, or operate the New Mexico Unit of the CAP and that 

this authority and responsibility may be transferred as specified. 

This provision is not a new authorization. It is a follow-up to, and 

consistent with, the authorization of the New Mexico Unit of the 

CAP (‘‘Hooker Dam or suitable alternative’’), contained in section 

301(a)(4) of the Colorado River Basin Project Act (43 U.S.C. 

1521(a)(4)). 

Subsection 212(h) provides that the execution of the New Mexico 

Consumptive Use and Forbearance Agreement and the New Mexico 

Unit Agreement are not major federal actions under NEPA. The 

Secretary, however, shall promptly carry out the environmental reviews necessary to evaluate and implement those agreements. The 

Committee expects that any consideration of water use under Section 212 will be accompanied by the consideration of a full range 

of alternatives that apply to address water supply needs in southwest New Mexico. Furthermore, the Committee recognizes the 

unique and valuable ecology of the Gila Basin. Accordingly, in conducting the environmental reviews, the Committee expects that the 

best available science will be used to fully assess and develop mitigation for the ecological impacts on Southwest New Mexico, the 

Gila River, its tributaries and associated riparian corridors. There 

must also be consideration given to the historic uses of and future 

demands for water in the Basin and the traditions, cultures and 

81 

customs affecting those uses. The Bureau of Reclamation is designated as the lead agency for such review. The committee urges 

that upon request of the State of New Mexico, that the State be 

allowed to serve as a joint lead agency. 

Subsection 212(i) establishes the New Mexico Unit Fund to be 

funded from the Lower Colorado Basin Development Fund, as 

modified by Title I of the Act. It also establishes the authorized 

uses of this fund which include development of a New Mexico Unit 

or other water utilization alternatives that address water demands 

in the Southwest Water Planning Region of New Mexico. 

Subsection 212(j) provides that additional funding may be available for the New Mexico Unit if the State of New Mexico provides 

notice of its intent to construct certain facilities by December 31, 

2014 and the Secretary issues a Record of Decision based on a review of the project pursuant to applicable federal law. 

Subsection 212(k) provides that additional funding may also be 

made available for construction of the New Mexico Unit if the rate 

of return accruing to the Lower Colorado Basin Fund exceeds 4%. 

Subsection 212(l) provides a disclaimer with respect to the Decree in Arizona v. California, (376 U.S. 340). 

Subsection 212(m) provides a limitation on the approval of other 

Gila River exchanges by the Secretary that would amend, alter, or 

conflict with the exchange authorized by the Colorado River Basin 

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

Subsection 213(a) waives the sovereign immunity of the United 

States and the Community for certain specified claims under the 

Settlement Agreement or the New Mexico Consumptive Use and 

Forbearance Agreement. 

Subsection 213(b) provides that this title does not quantify or 

otherwise affect the water rights or claims of any other Indian tribe 

other than the Community. Those tribes include the Ak-Chin Indian Community, Cocopah Tribe, Colorado River Indian Tribes, 

Fort McDowell Yavapai Nation, Fort Mojave Indian Tribe, Fort 

Yuma-Quechan Tribe, Gila River Indian Community, Navajo Nation, Pascua Yaqui Tribe, Salt River Pima-Maricopa Indian Community, San Carlos Apache Tribe, San Juan Southern Paiute, 

Tohono O’odham Nation, Tonto Apache Tribe, Havasupai Tribe, 

The Hopi Nation, Hualapai Tribe, Kaibab-Paiute Tribe, White 

Mountain Apache Tribe, Yavapai-Apache Nation, Yavapai-Prescott 

Indian Tribe, and the Zuni Tribe. It is also the Committee’s intent 

that nothing in Title II affects the water rights or any other rights 

or authorities of the United States in its own capacity or on behalf 

of, or as trustee for, any Indian tribe or individual Indian other 

than the Community and its members except to the extent expressly provided in the Gila River agreement or this title. 

Subsection 213(c) precludes the United States from obtaining reimbursement for the costs of the Agreement through assessments 

of Indian owned land. 

Subsection 213(d) provides that the lease or exchange of Community CAP water shall not affect any future allocation or reallocation 

of CAP water by the Secretary. 

Subsection 213(e) directs the Secretary to execute amendment 

No. 1 to the Community CAP repayment contract to provide that 

costs incurred under that contract are non-reimbursable. 

82 

Subsection 213(f) authorizes, ratifies, and confirms the September 6, 1917 agreement between the United States and the Salt 

River Valley Water Users’ Association and the rights of the Salt 

River Project to store and deliver water from the Salt and Verde 

Rivers as specified. Subsection 213(g) directs that $15 million in funding be provided 

to the UV irrigation districts to comply with the New Mexico Consumptive Use and Forbearance Agreement, such funding to be indexed according to the referenced standard. Congress recognizes that the $15,000,000 paid to the UV irrigation districts may be applied to remedies other than the pipeline 

referenced, but the cost indexing should be scaled by reference to 

the pipeline as described. 

Subsection 213(h) provides a limitation on liability of the United 

States and directs the Community to indemnify the United States 

for the purposes stated. 

Subsection 213(i) authorizes the United States to acquire Blue 

Ridge Dam without cost to the United States to make water available to the Salt River Federal Reclamation Project. 

Subsection 213(j) provides that nothing in this Act will alter federal pre-enforcement review of environmental actions or provides 

jurisdiction on state courts to review specified portions of section 

207. 

Subsection 214(a) authorizes appropriations for a number of activities that are related to the Settlement and are self-explanatory. 

Subsection 214(b) designates some costs as identified costs for 

purposes of the Colorado River Basin Project Act. 

Section 215 repeals Title II if the Secretary does not publish the 

statement of findings under section 207(d) by December 31, 2007 

effective January 1, 2008 and amounts appropriated under paragraphs (1)–(5) of section 213(a) and section 213(b) are to be returned to the Treasury along with any interest. And any amounts 

paid by the Salt River Project are also to be returned. 

Title III Southern Arizona Water Rights Settlement 

Section 301 directs that the Southern Arizona Water Rights Settlement Act of 1982 (96 Stat. 1274) is amended in its entirety by 

Title III. The new sections are described below. 

Section 301 contains the new short title for the 1982 Act. 

Section 302 establishes the purposes of the Act. 

Section 303 contains definitions for the Act. 

Subsection 304(a) specifies that the Secretary is obligated to deliver 37,800 acre-feet of water annually, 27,000 to the San Xavier 

Reservation and 10,800 to the eastern Schuk Toak District; or the 

water may be otherwise used in accordance with Subsection 309(a). 

Subsection 304(b) specifies that the Secretary is obligated to construct, maintain and replace the delivery and distribution system 

necessary to deliver the water in Subsection (a). 

Subsection 304(c) provides that the Secretary is obligated to complete an irrigation system for the cooperative farm, extend the irrigation system of the cooperative farm to serve a total of 2,300 net 

irrigable acres, construct the irrigation system for a new farm within the San Xavier Reservation or, at the District’s election, pay 

$18,300,000 (as adjusted), and complete an irrigation system for 

the Schuk Toak farm. 

83 

Subsection 304(d) allows the Secretary to extend the time deadlines provided in subsection (c) if compliance is impracticable and 

the Secretary provides public notice. 

Subsection 304(e) authorizes the Secretary to enter onto the Nation’s Reservation in order to construct works on the Reservation. 

Subsection 304(f) provides the condition that if the San Xavier District elects to be paid the $18,300,000 as adjusted, the District 

shall deposit the funds into interest bearing deposits and securities, and expend the principal and interest in accordance with a 

budget approved by the District and the Nation. The funds may be 

spent for subjugation of the land, governmental services, allottee 

benefits, costs of the Allottees Association, and administrative costs 

of the Nation or the District, but not for per capita distributions. 

Subsection 305(a) requires the Secretary to deliver the 37,800 

acre-feet of water described in subsection 304(a) and the 28,200 

acre-feet of water described in subsection 306(a) at various points 

within the CAP delivery system as ordered by the Nation. The declaration of a water shortage on the Colorado River or other identified causes, does not excuse the delivery of CAP water or an equivalent quantity of water to meet the delivery obligations of 66,000 

acre-feet of water annually. 

Subsection 305(b) specifies that in the event that the Secretary 

cannot deliver CAP water, the Secretary may acquire water from 

other sources subject to described limitations, including a prohibition on causing depletion of groundwater at San Xavier or eastern 

Schuk Toak, compliance with state water law, prohibition on taking of private rights, compliance with transfers within the Tucson 

basin, and from effluent only with the Nation’s consent. 

Subsection 305(c) allows the Secretary to contract with the State, 

an irrigation district or other entities for the exchange of water and 

the use of water delivery infrastructure to deliver the water obtained in lieu of CAP water. 

Subsection 305(d) provides that if the Secretary cannot deliver either CAP water or equivalent water, or if the Secretary does not 

complete the construction of the irrigation systems, the Secretary 

shall compensate for the value of the water ordered but not delivered. Compensation shall be paid to the San Xavier Cooperative 

Association or the Nation, as applicable. 

Subsection 305(e) establishes that in satisfying the obligations of 

the Secretary under this Section, the Secretary may not acquire or 

affect the water rights of other Indian tribes. 

Subsection 306(a) obligates the Secretary to deliver 28,200 acrefeet of water, 23,000 to the San Xavier Reservation and 5,200 acrefeet of water to the eastern Schuk Toak District; or otherwise used 

in accordance with Subsection 309(a). 

Subsection 306(b) specifies that the State will contribute 

$3,000,000 in cash or in-kind goods and services to assist the Secretary in firming water. 

Subsection 307(a) specifies that the Secretary is obligated to 

carry out Subsection 304(c), Subsections 305(a), (b) and (d), and 

Section 306 only if certain specified conditions are met. 

Subsection 307(b) specifies that neither the United States nor the 

Tohono O’odham Nation is responsible for the operation, maintenance or replacement of irrigation systems constructed pursuant to 

Title III on allotted land. 

84 

Subsection 307(c) specifies that the Nation shall not be responsible for payment of CAP capital charges for water ordered for delivery under Title III. 

Subsection 308(a) specifies that a portion of the water rights described in Title III are subject to a first beneficial right of the 

allottees. 

Subsection 308(b) requires the Nation to prepare an interim allottee water rights code to be incorporated into a comprehensive 

water code. The water codes shall include acknowledgement of the 

water rights described in Title III, a process for the just and equitable distribution of water resources and compensation shall be 

provided to allottees, provisions for the protection of due process, 

and a process for the provision of water resources to fee owners of 

allotted land. 

Subsection 308(c) requires that the Secretary shall approve the 

water code or provide notification and explanation of the nonconforming provisions. Until such time as the Secretary approves the 

water code, the Secretary retains authority under 25 U.S.C. § 381. 

Subsection 308(d) requires the Secretary to develop water management plans, which plans shall meet specified minimum requirements and shall be developed in accordance with 638 contracts at 

a cost of $891,200 for the San Xavier plan and $237,200 for the 

Schuk Toak plan. 

Subsection 308(e) allows the Nation to establish underground 

storage and recovery projects in accordance with the Tohono 

O’odham Settlement Agreement. The Secretary shall not have responsibility to fund or administer such projects. 

Subsection 308(f) allows pumping of up to 10,000 acre-feet of 

groundwater at San Xavier and 3,200 acre-feet at eastern Schuk 

Toak; and allows for deferred pumping up to a maximum of 50,000 

acre-feet in a 10 year period at San Xavier and 16,000 acre-feet for 

a 10 year period at Schuk Toak. The section clarifies that authorization to pump groundwater does not warrant or guarantee that 

groundwater exists or is recoverable. Title III may not serve as the 

basis of a claim by either the United States or the Nation against 

a person or entity withdrawing groundwater from a common water 

supply and the United States and the Nation are barred from asserting a claim for reserved water rights with respect to groundwater. 

Subsection 308(g) allows pumping from an exempt well to be exempt from the pumping limitations of this Title. 

Subsection 308(h) allows the Nation to pump additional groundwater in accordance with the requirements of the Tohono O’odham 

Settlement Agreement if the Secretary is unable to deliver water 

as specified in subsections 304(a) or 306(a). 

Subsection 308(i) specifies that nothing in Section 308 affects the 

obligation of the Secretary to pay compensation pursuant to Subsection 305(d). 

Subsection 309(a) allows the Nation to use water supplies granted or confirmed by this Title for any use subject to the provisions 

of Title III. 

Subsection 309(b) establishes the geographical use area of the 

waters rights granted or confirmed by Title III. 

Subsection 309(c) establishes the parameters for exchanges and 

leases of CAP water under Sections 304(a) and 306(a) and storage 

85 

credits under Section 308(e) including a contract validly agreed to 

by the Nation and approved by the United States with a term not 

to exceed 100 years, a prohibition against permanent alienation, 

and water delivery within the CAP service area. 

Subsection 309(d) specifies that the rights of the Nation to transfer water are conditioned on the Nation’s obligation to ensure, to 

the maximum extent practicable, the availability of water supplies 

to satisfy the first right of beneficial use under Section 

307(a)(1)(G)(i) to the allottees. 

Subsection 309(e) establishes that the transferee or lessee of CAP 

water from the Nation is not obligated to pay to CAWCD any water 

service capital charge. 

Subsection 309(f) specifies that the Nation’s use or lack of use of 

water granted or confirmed under this Title shall not diminish or 

impair such water rights. 

Subsection 309(g) provides that the agreement of December 11, 

1980 between the Nation and the Secretary shall be amended in 

accordance with the terms of Title III and the Tohono O’odham settlement agreement. 

Subsection 309(h) authorizes the Secretary to execute the Tohono 

O’odham Settlement Agreement, the Tucson agreement, the Asarco 

agreement, an existing water well Asarco lease and any new water 

well leases with Asarco, and the FICO agreement and to the extent 

these agreements are not in conflict with this Act, they are authorized, ratified and confirmed. 

Subsection 309(i) directs the Secretary to disburse to the Nation 

all proceeds from the Tucson interim water lease. 

Subsection 309(j) entitles the Nation to all gross proceeds which 

are defined as the proceeds from the Tucson interim water lease, 

the Asarco agreement, and any agreement similar to the Asarco 

agreement limited by the proceeds from 20,000 acre-feet per year. 

Subsection 309(k) specifies that Title III does not establish the 

rights attached to reserved water rights. 

Subsection 310(a) reauthorizes the cooperative fund established 

by the 1982 Act, restates the funds previously contributed by the 

State parties, identifies interest accrued on all amounts in the cooperative fund since its inception on October 12, 1982 and revenues 

received from the sale or lease of effluent and storage credits from 

the storage of that effluent. 

Subsection 310(b) allows the Secretary to use the cooperative 

fund to pay variable costs for the delivery of water under section 

304 and section 306; fixed OM&R costs for the delivery of the 

37,800 acre-feet per year and the 28,200 acre-feet per year to the 

extent funds are not available from the Lower Colorado River 

Basin Development Fund; costs of acquiring alternative water supplies; and any compensation provided in section 305(d). The Secretary may only expend interest income accruing to the cooperative 

fund and may expend such funds without further appropriation. 

Subsection 310(c) directs the Secretary of the Treasury to invest 

monies in the cooperative fund and the interest shall become a part 

of the cooperative fund. 

Subsection 310(d) requires funds to be transferred from the general fund of the Treasury to the cooperative fund as required. 

Subsection 310(e) limits the damages arising under Title III or 

any contract for the delivery of water recognized by Title III to the 

86 

amounts available for expenditure in that year from the cooperative fund. 

Subsection 311(a) specifies that the Secretary’s obligations are 

subject to the Indian Self-Determination and Education Assistance 

Act with certain exceptions. 

Subsection 311(b) defines the San Xavier District as an eligible 

contractor under the Indian Self-Determination and Education Assistance Act. 

Subsection 311(c) restates the Secretary’s obligation to design 

and carry out a groundwater monitoring program for the San Xavier Reservation and the eastern Schuk Toak District not to exceed 

sums of $215,000 for San Xavier and $175,000 for Schuk Toak. The 

Secretary is obligated to consult with the Nation, the San Xavier 

and Schuk Toak Districts and State and local entities and shall 

have no continuing obligations beyond those specified in this subsection. 

Subsection 311(d) restates the Secretary’s obligation to conduct a 

water resources study within the Nation’s Reservation but outside 

the Tucson management area. Subsection 317(a) limits the amount 

of the Water Resources Study to $4,000,000. 

Subsection 311(e) restates the right of the Nation to benefit from 

funding and other assistance if a federal entity is established for 

arid land resources research. 

Subsection 311(f) establishes a new study by the Secretary at a 

sum not to exceed $250,000, on the feasibility of a land exchange 

between Asarco and the Nation. 

Subsection 312(a) specifies that the Nation shall waive certain 

claims for injuries to water rights; failure to protect, acquire and 

develop water rights; claims resulting from off-Reservation diversion; and claims related to negotiation or execution of the Tohono 

O’odham settlement. 

Subsection 312(b) specifies that the allottee classes shall waive 

certain claims for injuries to water rights, failure to protect, acquire and develop water rights; claims resulting from off-Reservation diversion; and claims related to negotiation or execution of the 

Tohono O’odham settlement. 

Subsection 312(c) specifies that the United States shall waive 

certain claims for water rights; claims for injuries to water rights; 

claims related to off-Reservation diversion; claims on behalf of the 

allottees for injuries to water rights against the Nation; and claims 

against Asarco on behalf of the allottee class for the fourth cause 

of action in the pending federal Alvarez litigation. 

Subsection 312(d) provides the Nation and the United States as 

Trustee the right to assert certain claims related to groundwater 

protection under State law. 

Subsection 312(e) provides that any party to the Tohono O’odham 

settlement agreement may waive and release additional claims on 

terms and conditions agreed to by the parties. 

Subsection 312(f) establishes the rights of and prohibits claims 

by allottees including the benefits granted to the allottees, entitlements to water, rights and limits to water rights and prohibitions. 

Subsection 312(g) authorizes the Nation and the San Xavier Cooperative Association to maintain a civil action against the United 

States to recover monetary damages for the breach of the SecVerDate Aug 04 2004 06:35 Sep 29, 2004 Jkt 096118 PO 00000 Frm 00086 Fmt 6659 Sfmt 6602 E:\HR\OC\SR360.XXX SR360
87 

retary’s obligations. An award of damages shall be offset by funds 

made available by Congress or paid by the Secretary. 

Subsection 312(h) acknowledges and establishes that the State 

Gila River adjudication court has jurisdiction to enforce Title III, 

the Tohono O’odham settlement agreement, other agreements referred to in the settlement agreement, and claims by allottees and 

fee owners of allotted land not barred, waived and released by Title 

III and the settlement agreement. The sovereign immunity of the 

Nation and the United States are waived for declaratory judgment 

and injunctive relief, but not for monetary relief, and for claims 

and remedies prescribed in agreements authorized by Title III; but 

as to other parties with immunity to suit, only to the extent that 

such other party waives its immunity. The Nation shall be provided notice by an allottee of an intent to file litigation, accompanied by a request for consultation. The Nation shall be joined in 

such litigation. 

Subsection 312(i) clarifies that the Nation shall have regulatory 

jurisdiction to manage, control and administer the water resources 

of the Nation, its members, districts and allottees. Disputes regarding regulatory jurisdiction are vested in the Courts of the Nation. 

Subsection 312(j) establishes the concurrent jurisdiction of the 

federal court in claims brought under subsection (h). 

Subsection 313(a) allows the Nation to obtain additional lands 

taken into trust by the United States but only through an Act of 

Congress. Such after-acquired trust lands shall not include federal 

reserved water rights, nor is it the intent of Congress that any 

after-acquired lands include federal reserved water rights. After-acquired lands shall only include water rights consistent with state 

water law. 

Subsection 313(b) exempts land acquired pursuant to the Gila 

Bend Indian Reservation Lands Replacement Act (100 Stat. 1798) 

from subsection (a). 

Subsection 314(a) makes costs associated with the delivery of the 

37,800 acre-feet per year or the 28,200 acre-feet per year nonreimbursable and excluded from the repayment obligation of 

CAWCD. 

Subsection 314(b) specifies that the United States may make no 

claim for the Nation or allottees for reimbursement of the costs associated with the construction of facilities, the delivery of CAP 

water or the implementation of this Title and against the Nation 

for reimbursement of costs associated with the construction of facilities at the San Lucy Farm and at such other lands acquired 

pursuant to the Gila Bend Indian Reservation Lands Replacement 

Act or other trust or allotted land. 

Subsection 315(a) reauthorizes the $15,000,000 trust fund for use 

in carrying out this Title. 

Subsection 315(b) specifies that the Nation may use both principal and interest from the trust fund for any governmental purpose and may be invested by the Nation in accordance with policies 

the Nation may adopt. 

Subsection 315(c) establishes that the Secretary shall not be responsible for the review, approval or audit of the use and expenditure of the trust funds and shall not be liable for claims brought 

for use or expenditure related to this trust fund. 

88 

Subsection 315(d) specifies that the Nation shall reserve from the trust fund the principal sum of $3,000,000 for the cost of land subjugation, plus interest on that amount for a period of 10 years from 

the enforceability date after which the restrictions on the fund terminate and the remaining funds may be used by the Nation under 

subsection (b)(1). 

Subsection 316(a) specifies that nothing in Title III supports or 

invalidates the doctrine of federal reserved water rights as applied 

to groundwater; limits the ability of the Nation to contract with the 

Arizona Water Banking Authority; prohibits the Nation, an allottee, or a fee owner of allotted land from acquiring water rights in 

addition to those granted in this Title III; abrogates rights or remedies under 28 U.S.C. § 1346 or § 1491; affects the rights of the 

United States and the Nation regarding the 8,000 af/annum of CAP 

water for Sif Oidak District; applies to exempt wells; or diminishes 

the right to use water under contracts in existence prior to the enforceability date, or the Asarco Agreement. 

Subsection 316(b) specifies that the receipt of an exchange of 

water or a lease pursuant to Title III does not affect a future allocation of CAP water by the Secretary. 

Subsection 316(c) requires that the United States shall not have 

any trust or other obligation regarding any funds monitored, funded or administered by Title III and the Nation agrees to indemnify 

the United States for claims arising out of receipts or expenditure 

of funds described in this subsection. 

Subsection 317(a) authorizes appropriations of $3,500,000 plus adjustments for construction of the irrigation systems, $18,300,000 

plus an adjustment from January 1, 2008 through the date on 

which the cash is paid to the San Xavier District, $891,200 for 

water management planning for San Xavier and $237,200 for water 

management planning for Schuk Toak, $4,000,000 for water resources study, $215,000 for groundwater monitoring for San Xavier 

and $175,000 for eastern Schuk Toak, and $250,000 for an Asarco 

land exchange study. 

Subsection 317(b) specifies that amounts made available under 

Subsection 317(a) shall be authorized costs for expenditure from 

the Lower Colorado River Basin Fund as provided in Subsection 

107(a) of this Act. 

Title IV—San Carlos Apache Tribe Settlement 

Section 401 expressly provides that none of the provisions of Titles I, II, or III limit the authority of the United States or the San 

Carlos Apache Tribe (SCAT or Tribe), or the United States in its 

capacity as trustee for the Tribe or its members or allottees to assert claims on their behalf, including any claim for water rights, injury to water rights, or injury to water quality. 

While this section confirms the Federal Government’s and the 

Tribe’s ability to pursue any and all legal remedies and claims 

available to them without any effect from this Act, it is the Committee’s expectation, given the testimony and communications before it, that the Tribe and the parties to the settlements included 

in S. 437 are committed to negotiating a settlement of the Tribe’s 

remaining water rights claims in the Gila River basin. The Committee encourages and supports this approach. Accordingly, S. 437 

includes provisions intended to assist in facilitating a settlement. 

89 

For example, much of the controversy associated with water use on 

the Gila River centers around the interpretation and enforcement 

of the Globe Equity Decree. While preserving the Tribe’s claims, S. 

437 establishes a program for the reduction of irrigated acreage 

within the upper valley irrigation districts which should reduce 

water use requirements in the upper Gila River. Under section 

211(a)(2)(C), the acreage reduction program will be expanded if the 

Tribe enters into a comprehensive water rights settlement. S. 437 

also includes a provision that conserved water from the San Carlos 

Irrigation Project will be made available to maintain a permanent 

pool of water for fish and wildlife purposes in San Carlos Reservoir. 

Notwithstanding these provisions, the Committee recognizes that 

the Tribe itself will determine the range of benefits it needs to settle its remaining water rights claims. 

Section 402 directs the Secretary to provide up to three annual 

reports on the progress in reaching a settlement agreement covering the Tribe’s claims to the Gila River. 

COST AND BUDGETARY CONSIDERATIONS

The Congressional Budget Office estimate of the costs of this 

measure has been requested but was not received at the time the 

report was filed. When the report is available, the Chairman will 

request it to be printed in the Congressional Record for the advice 

of the Senate. 

REGULATORY IMPACT EVALUATION

In compliance with paragraph 11(b) of rule XXVI of the Standing 

Rules of the Senate, the Committee makes the following evaluation 

of the regulatory impact which would be incurred in carrying out 

S. 437. The bill is not a regulatory measure in the sense of imposing government-established standards or significant responsibilities 

on private individuals and businesses. 

No personal information would be collected in administering the 

program. Therefore, there would be no impact on personal privacy. 

Little, if any, additional paperwork would result from the enactment of S. 437. 

EXECUTIVE COMMUNICATIONS

The testimony provided by the Department of the Interior at the 

Subcommittee hearing follows: 

STATEMENT OF BENNETT W. RALEY, ASSISTANT SECRETARY, 

WATER AND SCIENCE, DEPARTMENT OF THE INTERIOR

Good morning, Mr. Chairman and members of the Committee. I am Bennett W. Raley, Assistant Secretary for 

Water and Science at the Department of the Interior. I am 

accompanied by Aurene Martin, Acting Assistant Secretary 

for Indian Affairs. I appreciate the opportunity to appear 

before this Committee to discuss S. 437, a bill to authorize 

the Arizona Water Rights Settlement Act of 2003. 

S. 437 is the single most far-reaching piece of federal 

legislation regarding water use within Arizona since Congress authorized the Central Arizona Project thirty-five 

90 

years ago. S. 437 is an impressive and complex bill, designed to provide a comprehensive resolution of critical 

water use issues facing the State of Arizona, and Arizona 

Indian tribes today. This legislation provides certainty regarding the use of water in Arizona in a number of ways: 

it provides water to settle outstanding water rights claims 

of certain Arizona tribes; provides financing of infrastructure so that all tribes can put CAP water to use; and it 

provides water for future water rights settlements. It also 

provides water necessary to accommodate the explosive 

population growth in the cities of central Arizona; it provides certainty for farmers who currently utilize imported 

water supplies from the Colorado River; and it also provides a mechanism to secure water to protect against future droughts. These arrangements, necessary to all users 

of Colorado River water in Arizona are accomplished utilizing local tax revenues to accomplish the financing of all 

undertakings under the global settlement embodied in the 

legislation. 

The Administration supports the core concepts of the 

settlements that are achieved through S. 437 and the overarching goal of resolving many important water challenges 

facing the State of Arizona, with the caveats discussed 

below. We believe that the comprehensive approach that is 

embodied in S. 437 is the right way to resolve these longstanding disputes regarding the use of the CAP and this 

portion of Arizona’s allocation of the Colorado River. 

Before providing detailed comments on particular provisions of the bill, some of which will require addressing outstanding concerns, it is necessary to review the overall 

structure and goals of S. 437. As we move forward, this 

Administration remains committed to working with the 

Committee, Senator Kyl, and the settlement parties to 

reach mutually agreeable solutions to all remaining issues. 

The resolution of these outstanding issues is an extremely 

high priority for the Department of the Interior. 

BACKGROUND

Even in the days before statehood, Arizona’s leaders saw 

the need to bring Colorado River water to the interior portions of the State. During the 1940’s and 50’s California 

developed facilities allowing the utilization of more than 

its apportionment from the Colorado River and quickly 

began full use of its share of the river, and more. During 

that same time, Arizona began developing its own plans 

for utilization of its 2.8 maf apportionment. However, California effectively prevented Arizona from implementing its 

plan, arguing that development and use of water from Colorado River tributaries within Arizona counted against its 

apportionment and limited significant additional development and diversion from the mainstream by Arizona. 

Unable to reach resolution on this issue, in 1952 Arizona 

brought an original action in the U.S. Supreme Court, asking the Court to clarify and support Arizona’s apportionment from the Colorado. After 12 years of fact finding by 

91 

a Special Master and arguments by the two states, the Supreme Court issued a decision in 1963 affirming Arizona’s 

2.8 maf apportionment. 

Despite Arizona’s victory in the Supreme Court, California was still able to extract a final concession from Arizona. In exchange for California’s support of Congressional 

authorization in 1968 for the Central Arizona Project 

(CAP), Arizona was forced to allow its CAP water to have 

a subservient priority to California water use during times 

of shortage on the Colorado River system. This was a significant concession since CAP water use represents more 

than half of Arizona’s Lower Basin apportionment—approximately 1.5 maf of its 2.8 maf. The CAP brings this 

critical supply from the Colorado River through Phoenix, 

to Tucson, Arizona via a primary canal of more than 330 

miles. 

After decades of fighting to get the CAP authorized and 

constructed, in the early 1990s, Arizona faced financial 

and water supply disputes over how the Project—and the 

State’s allocation from the Colorado River—would be utilized. 

For most of the 1990s uncertainty existed for Arizona: 

uncertainty over who would receive water from the CAP, 

and uncertainty over the costs of the project and who 

would repay those costs. Perhaps most importantly to the 

State, uncertainty existed over the ability of the State to 

store water and protect against the eventual shortages on 

the Colorado—which have a unique impact on Arizona 

water users due to the junior status imposed by Congress 

in 1968. 

The uncertainty also involved complex and contentious 

litigation filed in 1995 between the Federal Government 

and the Central Arizona Water Conservation District, the 

political entity which operates the CAP and repays the 

local costs of the project. After years of litigation over the 

CAP, extensive negotiations were conducted to resolve the 

complicated CAP issues so that the needs of all project 

beneficiaries would be adequately addressed. 

During these discussions it became clear that financial 

repayment and other operational issues could not be resolved until there was a firm agreement on the amount of 

CAP water that would be allocated to Federal uses, i.e., allocations to Indian tribes in Arizona. When these discussions were initiated, 32 percent of the CAP water was allocated for Federal uses, 56 percent for non-Federal uses 

and 12 percent was un-contracted. 

Both the United States and the State of Arizona were interested in dedicating uncontracted water to allow settlement of outstanding Indian water rights claims and to 

meet emerging needs for municipal purposes. The amount 

of water needed for future Indian water rights settlements 

within Arizona turned in large part on consideration of the 

large pending claim of the Gila River Indian Community 

(Community) in the on-going general stream adjudication 

of the Gila River system. The Gila River Indian ReservaVerDate Aug 04 2004 07:36 Sep 29, 2004 Jkt 096118 PO 00000 Frm 00091 Fmt 6659 Sfmt 6969 E:\HR\OC\SR360.XXX SR360
92 

tion encompasses approximately 372,000 acres south of, 

and adjacent to, Phoenix, Arizona. 

The claim filed by the United States on behalf of the 

Community in the Gila River adjudication was for 1.5 million AFA. This represents the largest single Indian claim 

in Arizona—and one of the largest Indian claims in the 

West. If this claim were successful, the amount of water 

available to central Arizona cities, towns, utilities, industrial and commercial users, and major agricultural interests would be greatly reduced. 

Consequently, on-going negotiations of that claim were 

put on a parallel track with the CAP litigation negotiations, with the understanding that tandem resolution of 

the issues would be necessary. The underlying premise of 

the settlement that emerged—including the framework of 

this legislation—is to achieve a comprehensive resolution 

of all outstanding CAP issues. This, in turn, will allow sustainable operation of the CAP in a manner that provides 

benefits and equitable treatment to all intended project 

beneficiaries. The alternative, piecemeal and sequential 

resolution of all of the outstanding disputes on the CAP, 

would be doomed to fail. 

The linkage embodied in this legislation integrates U.S. 

obligations under Federal statutes and the trust relationship with Indian tribes. As with the initial authorization 

of the CAP in 1968, we are presented with a unique opportunity to provide a final settlement of many of the complex 

Federal, State, Local, Tribal and private water issues in 

the State. 

In May of 2000, the Department and CAWCD reached 

agreement on a stipulated settlement of the CAP litigation. This stipulation serves as a blueprint for a comprehensive resolution of the suite of CAP issues I have 

identified above. The stipulation requires that a number of 

conditions must occur before it is effective or final. Under 

the stipulation, these conditions must occur before December 2012 or the stipulation will terminate. 

The CAWCD v. U.S. settlement stipulation is contingent 

on Congressional enactment of a Gila River Indian Community Settlement; Amendment of the Southern Arizona 

Indian Water Rights Settlement (SAWRSA); and the identification of a firm funding mechanism for the CAP, GRIC 

and SAWRSA settlements. 

Settlement Stipulation & S. 437: The Arizona Water Rights 

Settlement Act of 2003 

S. 437 approves three separate and significant settlements: the settlement stipulation reached in the CAWCD 

v. U.S. litigation (addressing CAP operational and repayment issues), the Gila River settlement (addressing water 

rights claims of the Gila River Indian Community), and 

the SAWRSA settlement (addressing water rights claims of 

the Tohono O’Odham Nation). 

The basic structure of the stipulation developed in 2000 

is preserved in S. 437, subject to certain conditions. The 

93 

main components of the settlement contained in S. 437 are 

to provide: (1) additional water to resolve tribal claims; (2) 

certainty regarding allocation of available water supply; (3) 

additional water supplies for Arizona’s growing cities; (4) 

financial and operational certainty for CAWCD (operator 

and repayment entity of CAP); (5) affordable water for 

non-Indian agriculture; (6) appropriate repayment of CAP 

costs; (7) structures and programs to bank water for Arizona’s future; (8) and a firm funding mechanism to provide 

affordable water to tribes, while developing the infrastructure necessary to allow all of Arizona’s tribes to fully utilize their CAP supplies. 

The structure of S. 437 represents Arizona’s extensive 

efforts to resolve these contentious issues. The bill is 

strongly supported by the relevant Arizona State Agencies, 

Members of Congress with Arizona constituencies, the Gila 

River Community, the Tohono O’odham tribe, and a wide 

array of Arizona interests. In light of the diverse parties, 

competing interests and longstanding controversies involved, S. 437, if amended to address certain issues, represents the best prospect to restructure the CAP in a context that reconciles the Public, Tribal and Private interests—including statutory obligations of the United States. 

I will summarize each of the three titles contained in S. 

437 and comment on some of the provisions of each that 

are of concern to the Administration. 

Title I—Central Arizona Project Settlement 

The critical components of the CAP stipulated settlement are set forth in Title I of S. 437. They include: (1) 

a final allocation of CAP water supplies so that 47% of 

Project water is dedicated to Arizona Indian tribes and 

53% is dedicated to Arizona cities, industrial users and agriculture; (2) setting aside a final additional allocation pool 

of 197,500 acre-feet for use in facilitating the GRIC settlement and future Arizona Indian water rights settlements; 

(3) a final allocation of 65,647 AFA of remaining high priority (M&I) water to Arizona cities and towns; (4) relief 

from debt incurred under section 9(d) of the 1939 Reclamation Projects Act by agricultural water uses, which allows 

these users to relinquish their long term CAP water contracts so that the water can be used for the Indian water 

rights settlements and future municipal use; and (5) allowing the Colorado River Lower Basin Development Fund 

(LBDF), the Treasury fund where CAP repayment funds 

are deposited, to be used for the costs of Indian water 

rights settlements, completing tribal water delivery systems and reducing the cost of CAP water for tribes to affordable levels. 

S. 437’s utilization of the Colorado River Lower Development Fund is intended to meet the terms of the stipulation 

by providing for, among other things, subsidizing fixed 

OM&R costs for Indian tribes, including OM&R costs for 

the Gila River Indian Community, rehabilitation of the 

San Carlos Irrigation Project (SCIP), construction of InVerDate Aug 04 2004 06:35 Sep 29, 2004 Jkt 096118 PO 00000 Frm 00093 Fmt 6659 Sfmt 6969 E:\HR\OC\SR360.XXX SR360
94 

dian Distribution Systems, and funds for future Indian 

water settlements. 

The financing mechanism assumed in S. 437 is complex, 

and operates outside of the normal appropriations process. 

Given this, the Administration is currently reviewing the 

funding provision to determine whether it is an appropriate way to satisfy the contingencies of the settlement. 

There may be other funding mechanisms that meet the 

firm funding requirement of the settlement. We look forward to working with the Committee on this issue. 

Title II—Gila River Indian Community Water Rights Settlement 

Title II of S. 437 is the Gila River Indian Community 

Settlement. This settlement would resolve all of the Community’s water rights claims in the general stream adjudication of the Gila River system, litigation that covers 

much of the water supply of central Arizona. This litigation has been the subject of negotiation and settlement 

talks for more than 13 years. 

The major components of the settlement are: (1) confirmation of existing, and dedication of additional, water 

supplies for the Community in satisfaction of its water 

rights claims; (2) use of existing facilities to deliver the additional water supplies; (3) funding for on-Reservation agricultural development; and (4) protection of the Reservation groundwater supplies. 

While the United States supports a settlement of the 

Gila River Community’s water claims, and believes the 

majority of the provisions of the Settlement Act in this 

title are consistent with that objective, we do have concerns, detailed below, that we want to work on with the 

Committee, Senator Kyl and the various parties to promptly resolve. 

A. Inclusion of a settlement with the San Carlos 

Apache Tribe 

In resolving the water rights claims of the Gila River Indian Community, we must remain mindful not to place the 

United States in a position of having conflicting obligations 

to two Indian tribes. The Gila River Indian Community 

and the San Carlos Apache Tribe have reservations and 

existing decreed water rights in the same watershed. In 

litigation underlying the settlement, the United States has 

argued in favor of both the Gila River Indian Community’s 

and the San Carlos Apache’s water rights under the 1935 

Globe Equity Decree. That Federal Consent Decree addresses the water rights of those tribes, as well as the 

rights of most non-Indian water users, in the mainstem of 

the Gila River above the confluence of the Gila and Salt 

rivers. The GRIC settlement will alter operations under 

the Gila Decree. These changes have the potential to impact the rights of the San Carlos Apache Tribe. 

We believe that additional efforts to resolve the concerns 

of the San Carlos Apache Tribe should be taken, and InteVerDate Aug 04 2004 06:35 Sep 29, 2004 Jkt 096118 PO 00000 Frm 00094 Fmt 6659 Sfmt 6969 E:\HR\OC\SR360.XXX SR360
95 

rior has engaged in a serious effort to do that. The Department has taken a number of steps in this regard and is 

prepared to do more. Interior officials have met with the 

San Carlos Tribal leaders on numerous occasions, and our 

sincere hope is that we can reach resolution on a wide 

array of issues so that agreement on the San Carlos 

Apache Tribe’s water rights can be added to this legislation as it proceeds. We look forward to working with the 

Committee and the Tribes on this matter. 

B. Waivers of the United States enforcement authorities 

S. 437, as introduced, also includes significant waivers of 

the United States ability to enforce environmental statutes 

relating to water quality in the Gila River basin. The settling parties seek to limit their exposure to environmental 

liability. However, the Administration believes the waivers, as currently drafted, may provide undue immunity 

from environmental liability and shift costs for cleanup to 

the Federal government. This could restrict the ability for 

the federal government to clean up the most contaminated 

waste sites in the Gila River Basin. For example, the legislation waives claims by the United States against both 

parties to the settlement as well as non-parties. As drafted, this legislation can also be interpreted to provide a 

waiver for future claims under certain environmental statutes, including those under the Superfund authority. This 

could restrict the ability for the federal government to 

cleanup the most serious hazardous waste sites in the Gila 

River Basin. These water quality waivers were not included in prior water rights settlements affecting Indian 

Tribes and are not necessary in this legislation. 

Following the introduction of S. 437, the Department of 

Justice entered into discussions with the settlement parties regarding the waivers. These discussions continue to 

progress. The Administration is committed to continuing 

these discussions to find a solution to these significant 

issues, as this legislation must maintain the Federal government’s ability to protect human health and 

environnment. 

C. Overly broad waiver of the United States sovereign immunity 

The Administration also is concerned, as we believe that 

S. 437 contains an overly-broad waiver of United States 

sovereign immunity. We believe that this provision is unnecessary, as sovereign immunity waivers in the 

McCarran Amendment allow a suit against the United 

States to administer its adjudicated water rights. Further, 

if such a waiver is retained, it should be narrowly drafted. 

The Administration also has some concern about the scope 

of certain waivers under Section 312 of the bill. 

96 

D. Impacts of the intended water exchanges 

S. 437 authorizes several water exchanges between the 

Community and various parties in the State, including the 

Phelps Dodge Corporation, ASARCO and several municipalities in the Upper Gila River watershed. While we support the mechanism of water exchanges, we want to work 

with the committee to ensure that the current language 

adequately takes into account the water rights of the San 

Carlos Apache Tribe, parties affected in the State of New 

Mexico (under the Colorado River Basin Project Act), listed 

species and critical habitat under the Endangered Species 

Act (ESA), and rights to divert water in relation to the 

Globe Equity Decree. Previous analyses indicate that appurtenant structures and dams involved in this agreement 

could lead to more extensive and frequent Gila River drying, which, in turn, could lead to potential ESA conflicts. 

E. Fifth amendment takings concern 

Title II places the ownership of all settlement water in 

the hands of Gila River Indian Community, notwithstanding the fact that the Gila Decree (the 1935 Globe Equity Decree) framed its award under that Decree ‘‘for the 

reclamation and irrigation of the irrigable Indian allotments on said reservation.’’ We would like to refine the 

language of the bill to reduce the likelihood that an individual allottee may assert a ‘‘takings’’ claim based on the 

settlement. Both Interior and Justice are committed to 

working with the settlement parties and the proponents of 

S. 437 to reduce any risk of a Fifth Amendment taking 

and to assure that the rights of individual Indian allottees 

are protected. 

F. Costs associated 

Federal contributions to the proposed settlement within 

this Title include the fulfillment of existing statutory and 

programmatic responsibilities and the assumption of new 

obligations designed to put GRIC in a position to utilize 

the water resources confirmed or granted in the settlement. There are also numerous costs contained within this 

title, which the United States does not believe are reasonably related to the costs avoided and benefits received, and 

we look forward to working with the Committee and Senator Kyl prior to further consideration of this legislation to 

ensure the costs contained in the legislation are appropriate. 

For example, given the correlative benefits, we support 

the rehabilitation and completion of the Indian portion of 

the San Carlos Irrigation Project (SCIP)—an irrigation 

project that was initiated in the 1930’s but never completed and which has fallen into significant disrepair. 

However, we believe that the language of S. 437, requiring 

the Secretary to provide for the ‘‘rehabilitation, operation, 

maintenance and replacement’’ of the San Carlos Irrigation Project, needs to be refined. Our view is that both the 

97 

cost control and indexing mechanisms for these expenditures need to be revisited. 

Similarly, when looking at the government’s cost of addressing subsidence damages on the reservation, we recognize the settlement requires the United States to repair 

past and future subsidence damage. We believe that federal liability for such damages should be limited. 

Additionally, in some instances we believe that existing 

costs have been shifted from State parties to the United 

States, and those costs may be more appropriately addressed by other existing Federal programs. We believe 

disbursements from the Lower Basin Fund should be limited to those costs which have a direct relationship to the 

core concepts of the settlements addressed in S. 437. 

We also believe that a closer look should be given to 

some of the costs included in the provisions of Title II, 

dealing with the Upper Gila River. One example is the 

costs identified to line San Carlos Irrigation and Drainage 

District (the non-Indian component of SCIP) canals so that 

water can be conserved. The Administration supports this 

concept but believes a greater share of the conserved water 

should be provided to the United States for possible use in 

settling the San Carlos Apache Tribe’s water rights claims 

in the Gila River. 

Title III—Amendments to the Southern Arizona Water 

Rights Settlement Act (SAWRSA) 

The Southern Arizona Water Rights Settlement Act, 

known as ‘‘SAWRSA,’’ Pub. L. 97–293, was enacted in 1982 

to resolve Indian water rights claims arising within the 

San Xavier and Shuk Toak Districts of the Tohono 

O’odham Nation. SAWRSA did not settle all outstanding 

Tohono O’odham water rights claims. Claims for the Sif 

Oidak District and other Reservation lands remain to be 

settled. 

As originally enacted, SAWRSA allocated 37,000 AFA of 

CAP water to the San Xavier and Shuk Toak Districts of 

the Nation, together with another 28,200 AFA of water to 

be delivered from any source by the United States to the 

Districts. All of the water is to be delivered without cost 

to the Nation. The original settlement also requires the 

United States to rehabilitate and extend an historic allotee 

farming operation and design and construct irrigation facilities sufficient to put remaining settlement water to use. 

Construction of all irrigation facilities and the full implementation of SAWRSA has not occurred, principally because of a disagreement over proper allocation of settlement benefits between the Nation and allottees within the 

San Xavier District. Because of this disagreement, the 

allottees have refused to join in the dismissal of United 

States v. City of Tucson, CIV. 75–39 TUC–WDB (D. Ariz.), 

the litigation which lead to the enactment of the settlement. SAWRSA requires the United States, the Nation 

and the allottees to dismiss the litigation as a condition of 

full effectiveness of the settlement. 

98 

For over ten years, the Department of the Interior, the 

City of Tucson and other state parties have been engaged 

in discussions with the Nation and the allottees in an attempt to agree on amendments that would resolve disputed issues. The Nation and the allottees have now 

agreed on how settlement water resources and funds 

should be distributed. The agreements between the Nation 

and the allottees are contained in Title III of S. 437. Essentially, the Nation and the allottees have agreed upon 

allocation of water resources, construction of new irrigation facilities and sharing of settlement funds. 

In general, the Administration supports these agreements and we look forward to working with the Committee 

to clarify or refine a few items we remain concerned about. 

Chief among these is the so called ‘‘net proceeds’’ issue 

that revolves around the United States ability to make the 

Cooperative Fund a self sustaining fund and potential federal liability if it is not self sustaining or is under-funded. 

CONCLUSION

It is important to emphasize that the Administration 

fundamentally supports this important settlement effort if 

it is amended to address concerns discussed above, and we 

look forward to working with the Committee to revise specific provisions of the legislation so that we can support 

the bill without reservation. 

The Administration lauds the tremendous efforts dedicated by all parties to find a workable solution to this complex set of issues and supports the core settlement concepts and framework as set forth in S. 437. We recognize 

that this legislation will resolve long-standing and critical 

water challenges facing the State of Arizona. We look forward to working with the Committee, Senator Kyl, and the 

settlement parties to craft legislation that accomplishes 

these goals in a manner that comports with Federal financial policy and legal considerations. 

This concludes my testimony. I would be pleased to answer any questions that the members of the Committee 

may have. 

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

rules of the Senate, changes in existing law made by S. 437, as ordered reported, are shown as follows (existing law proposed to be 

omitted is enclosed in black brackets, new matter is printed in 

italic, existing law in which no change is proposed is shown in 

roman): 

COLORADO RIVER BASIN PROJECT ACT 

P.L. 90–537 

SEC. 101 * * * 

* * * * * * * 

99 

SEC. 304(f). NEW MEXICO USERS; WATER EXCHANGE CONTRACTS. 

ø(1) In the operation of the Central Arizona Project, the Secretary shall offer to contract with water users in New Mexico 

for water from the Gila River, its tributaries and underground 

water sources in amounts that will permit consumptive user of 

water in New Mexico of not to exceed an annual average in 

any period of ten consecutive years of eighteen thousand acrefeet, 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 against California (376 U.S. 340). Such increased consumptive uses shall 

not begin until, and 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 chapter, 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 waters involved.¿ 

(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. 

ø(2) The Secretary shall further offer to contract with water 

users in New Mexico for water from the Gila River, its tributaries, and underground water sources in amounts that will 

permit consumptive uses of water in New Mexico of not to exceed an annual average in any period of ten consecutive years 

of an additional thirty thousand acre-feet, including reservoir 

evaporation. Such further increases in consumptive use shall 

not begin until, and shall continue only so long as, works capable of augmenting the water supply of the Colorado River system have been completed and water sufficiently in excess of 

two million eight hundred thousand acre-feet per annum is 

available from the main stream of the Colorado River for consumptive use in Arizona to provide water for the exchanges 

herein authorized and provided. In determining the amount required for this purpose full consideration shall be given to any 

differences in the quality of the waters involved.¿ 

100 

ø(3)¿(2) All additional consumptive uses provided for in 

clauses (1) and (2) of this subsection shall be subject to all 

rights in New Mexico and Arizona as established by the decree 

entered by the United States District Court for the District of 

Arizona on June 29, 1935, in United States against Gila Valley 

Irrigation District and others (Globe Equity Numbered 59) and 

to all other rights existing on September 30, 1968, in New 

Mexico and Arizona to water from the Gila River, its tributaries, and underground water sources, and shall be junior 

thereto and shall be made only to the extend possible without 

economic injury or cost to the holders of such rights. 

* * * * * * * 

SEC. 403. LOWER COLORADO RIVER BASIN DEVELOPMENT FUND. 

(a) ESTABLISHMENT.—There is hereby established a separate 

fund in the Treasury of the United States to be known as the 

Lower Colorado River Basin Development Fund (hereafter called 

the ‘‘development fund’’), which shall remain available until expended as hereafter provided. 

* * * * * * * 

(e) APPROPRIATION BY CONGRESS REQUIRED FOR CONSTRUCTION

OF WORKS øREVENUES¿ Except as provided in subsection (f), revenues credited to the development fund shall not be available for 

construction of the works comprised within any unit of the project 

herein or hereafter authorized except upon appropriation by the 

Congress. 

ø(f) RETURN OF COSTS AND INTEREST.—Moneys credited to the 

development fund pursuant to subsection (b) and clauses (1) and 

(3) of subsection (c) of this section and the portion of revenues derived from the sale of power and energy for use in Arizona pursuant to clause (2) of subsection (c) of this section in excess of the 

amount necessary to meet the requirements of clauses (1) and(2) of 

subsection (d) of this section shall be paid annually to the general 

fund of the Treasury to return— 

ø(1) the costs of each unit of the projects or separable feature 

thereof authorized pursuant to title III of this Act which are 

allocated to irrigation, commercial power, or municipal and industrial water supply, pursuant to this Act within a period not 

exceeding fifty years from the date of completion of each such 

unit or separable feature, exclusive of any development period 

authorized by law: Provided, That return of the cost, if any, required by section 307 shall not be made until after the payout 

period of the Central Arizona Project as authorized herein; and 

ø(2) interest (including interest during construction) on the 

unamortized balance of the investment in the commercial 

power and municipal and industrial water supply features of 

the project at a rate determined by the Secretary of the Treasury in accordance with the provisions of subsection (h) of this 

section, and interest due shall be a first charge.¿ 

(f) ADDITIONAL USES OF REVENUE FUNDS.— 

(1) CREDITING AGAINST CENTRAL ARIZONA WATER CONSERVATION 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 

101 

subsection (c)(2) in excess of the amount necessary to meet the 

requirements of paragraphs (1) and (2) of subsection (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 PAY- MENTS 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); (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 reflect 

changes since January 1, 2004, in the construction cost 

102 

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 the Arizona Water Settlements 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; and 

(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; 

(E) in addition to amounts made available for the purpose through annual appropriations— 

(i) to pay the costs associated with the construction 

of on-reservation Central Arizona Project distribution 

103 

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 Act of August 4, 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, in the 

judgment of the Secretary of the Interior, required to meet 

current needs of the development fund. 

(B) PERMITTED INVESTMENTS.— 

104 

(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 OBLIGA- TIONS.—None of the provisions of this section, including paragraphs (2)(A) and (3)(A), shall be construed to make any 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 

105 

with the United States (or amendments thereto) approved by or 

pursuant to either of those acts. 

(g) REPAYMENT OF COSTS.—All revenues credited to the development fund in accordance with øclause (c)(2)¿ subsection (c)(2) of 

this section (excluding only those revenues derived from the sale of 

power and energy for use in Arizona during the payout period of 

the Central Arizona Project as authorized herein) and such other 

revenues as remain in the development fund after making the payments required by subsections (d) and (f) of this section shall be 

available (1) to make payments, if any, as required by sections 307 

and 502 of this Act (2) for repayment to the general fund of the 

Treasury the costs of each salinity control unit or separable feature 

thereofø,¿ the costs of measures to replace incidental fish and wildlife values foregone, and the costs of on-farm measures payable 

from the Lower Colorado River Basin Development Fund in accordance with sections 205(a)(2), 205(a)(3), and 205(b)(1) of the Colorado River Salinity Control Act ø(a)(2), (a)(3), and (b)(1)¿ and (3) 

upon appropriation by the Congress, to assist in the repayment of 

reimbursable costs incurred in connection with units hereafter constructed to provide for the augmentation of the water supplies of 

the Colorado River for use below Lee Ferry as may be authorized 

as a result of the investigations and recommendations made pursuant to section 201 and subsection 203(a) of this Act. 

Public Law 100–512, 100th Congress 

AN ACT TO PROVIDE FOR THE SETTLEMENT OF THE WATER RIGHTS 

CLAIMS OF THE SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY IN 

MARICOPA COUNTY, ARIZONA, 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. 

This Act may be cited as the ‘‘Salt River Pima-Maricopa Indian 

Community Water Rights Settlement Act of 1988’’. 

* * * * * * * 

SEC. 11. MISCELLANEOUS PROVISIONS. 

(a) In the event any party to the Agreement should file a lawsuit 

in Federal District Court only relating directly to the interpretation 

or enforcement of the agreement, naming the United States of 

America or the Communities as parties, authorization is hereby 

granted to join the United States of America and/or the Community 

in any such litigation, and any claim by the United States of America or the Community to sovereign immunity from such suit is 

hereby waived. 

* * * * * * * 

ø(h) Within thirty days after the date of enactment of this Act, 

the Secretary shall request the Arizona Department of Water Resources to recommend a reallocation of non-Indian agricultural 

CAP water that has been offered to but not contracted for by potential non-Indian agricultural subcontractors. Within one hundred 

and eighty days of receipt of such recommendations, the Secretary 

shall reallocate such water for non-Indian agricultural use, and the 

106 

Secretary and CAWCD shall thereafter offer amendatory or new 

subcontracts for such water to non-Indian agricultural users.¿ 

Public Law 97–293, 97th Congress 

AN ACT To authorize the Secretary of the Interior to construct, operate, and maintain modifications of the existing Buffalo Bill Dam and Reservoir, Shoshone 

project, Pick-Sloan Missouri Basin program, Wyoming, and for other purposes 

Be it enacted by the Senate and House of Representatives of the 

United States of America in Congress assembled, 

TITLE I 

CONSTRUCTION OF DAM MODIFICATIONS

SEC. 101. The Secretary of the Interior, acting pursuant to Federal reclamation law (Act of June 17, 1902, 32 Stat. 388 and Acts 

amendatory thereof and supplemental thereto), is hereby authorized to construct, operate, and maintain modifications to the Buffalo Bill Dam and Reservoir, Shoshone project, Pick-Sloan Missouri 

Basin program, Wyoming, for the purposes of providing approximately seventy-four thousand acre-feet of additional water annually for irrigation, municipal and industrial use, increased hydroelectric power generation, outdoor recreation, fish and wildlife conservation and development, environmental quality, and other purposes. The principal modifications to the Buffalo Bill Dam and Reservoir shall include raising the height of the existing Buffalo Bill 

Dam by twenty-five feet, enlarging the capacity of the existing Buffalo Bill Reservoir by approximately two hundred and seventy-one 

thousand acre-feet, replacing the existing Shoshone Powerplant, 

enlarging a spillway, construction of a visitor’s center, dikes and 

impoundments, and necessary facilities to effect the aforesaid purposes of the modifications. These modifications are hereby authorized as part of the Pick-Sloan Missouri Basin program: Provided, 

That the powerplant authorized by this section shall be designed, 

constructed, and operated in such a manner as to not limit, restrict, or alter the release of water from any existing reservoir, impoundment, or canal adverse to the satisfaction of valid existing 

water rights or water delivery to the holder of any valid water 

service contract. 

* * * * * * * 

øTITLE III 

øCONGRESSIONAL FINDINGS

øSEC. 301. The Congress finds that— 

ø(1) water rights claims of the Papago Tribe with respect to 

the San Xavier Reservation and the Schuk Toak District of the 

Sells Papago Reservation are the subject of existing and prospective lawsuits against numerous parties in southern Arizona, including major mining companies, agricultural interests, 

and the city of Tucson; 

ø(2) these lawsuits not only will prove expensive and time 

consuming for all participants, but also could have a profound 

107 

adverse impact upon the health and development of the Indian 

and non-Indian economies of southern Arizona; 

ø(3) the parties to the lawsuits and others interested in the 

settlement of the water rights claims of the Papago Indians 

within the Tucson Active Management Area and that part of 

the Upper Santa Cruz Basin not within that area have diligently attempted to settle these claims and the Federal Government, by providing the assistance specified in this title, will 

make possible the execution and implementation of a permanent settlement agreement; 

ø(4) it is in the long-term interest of the United States, the 

State of Arizona, its political subdivisions, the Papago Indian 

Tribe, and the non-Indian community of southern Arizona that 

the United States Government assist in the implementation of 

a fair and equitable settlement of the water rights claims of 

the Papago Indians respecting certain portions of the Papago 

Reservation; and 

ø(5) the settlement contained in this title will— 

ø(A) provide the necessary flexibility in the management 

of water resources and will encourage allocation of those 

resources to their highest and best uses; and 

ø(B) insure conservation and management of water resources in a manner consistent with the goals and programs of the State of Arizona and the Papago Tribe. 

øDEFINITIONS

øSEC. 302. For purposes of this title— 

ø(1) The term ‘‘acre-foot’’ means the amount of water necessary to cover one acre of land to a depth of one foot. 

ø(2) The term ‘‘Central Arizona Project’’ means the project 

authorized under title III of the Colorado River Basin Project 

Act (82 Stat. 887; 43 U.S.C. 1521, et seq.). 

ø(3) The term ‘‘Papago Tribe’’ means the Papago Tribe of Arizona organized under section 16 of the Act of June 18, 1934 (48 

Stat. 987; 25 U.S.C. 476). 

ø(4) The term ‘‘Secretary’’ means the Secretary of the Interior. 

ø(5) The term ‘‘subjugate’’ means to prepare land for the 

growing of crops through irrigation. 

ø(6) The term ‘‘Tucson Active Management Area’’ means the 

area of land corresponding to the area initially designated as 

the Tucson Active Management Area pursuant to the Arizona 

Groundwater Management Act of 1980, laws 1980, fourth special session, chapter 1. 

ø(7) The term ‘‘December 11, 1980, agreement’’ means the 

Central Arizona Project water delivery contract between the 

United States and the Papago Tribe. 

ø(8) The term ‘‘replacement costs’’ means the reasonable cost 

of acquiring and delivering water from sources within the Tucson Active Management Area and that part of the Upper Santa 

Cruz Basin not within that area. Such costs shall include costs 

of necessary construction amortized in accordance with standard Bureau of Reclamation Procedures. 

108 

ø(9) The term ‘‘value’’ means the value attributed to the 

water based on the Tribe’s anticipated or actual use of the 

water, or its fair market value, whichever is greater. 

øWATER DELIVERIES TO TRIBE FROM CAP; MANAGEMENT PLAN; 

REPORT ON WATER AVAILABILITY; CONTRACT WITH TRIBE

øSEC. 303. (a) As soon as is possible but not later than ten years 

after the enactment of this title, if the Papago Tribe has agreed to 

the conditions set forth in section 306, the Secretary, acting 

through the Bureau of Reclamation, shall— 

ø(1) in the case of the San Xavier Reservation— 

ø(A) deliver annually from the main project works of the 

Central Arizona Project twenty-seven thousand acre-feet of 

water suitable for agricultural use to the reservation in accordance with the provisions of section 304(a); and 

ø(B) improve and extend the existing irrigation system 

on the San Xavier Reservation and design and construct 

within the reservation such additional canals, laterals, 

farm ditches, and irrigation works as are necessary for the 

efficient distribution for agricultural purposes of the water 

referred to in subparagraph (A); and 

ø(2) in the case of the Schuk Toak District of the Sells 

Papago Reservation— 

ø(A) deliver annually from the main project works of the 

Central Arizona Project ten thousand eight hundred acrefeet of water suitable for agricultural use to the reservation in accordance with the provisions of section 304(a); 

and 

ø(B) design and construct an irrigation system in the 

Eastern Schuk Toak District of the Sells Papago Reservation, including such canals, laterals, farm ditches, and irrigation works, as are necessary for the efficient distribution 

for agricultural purposes of the water referred to in subparagraph (A); and 

ø(3) establish a water management plan for the San Xavier 

Reservation and the Schuk Toak District of the Sells Papago 

Reservation which, except as is necessary to be consistent with 

the provisions of this title, will have the same effect as any 

management plan developed under Arizona law. 

ø(4) There are authorized to be appropriated up to 

$3,500,000, plus or minus such amounts, if any, as may be justified by reason of ordinary fluctuations in construction costs 

as indicated by engineering cost indices applicable to the type 

of construction involved for those features of the irrigation system described in paragraph (1)(B) or (2)(B) of section 303(a) 

which are not authorized to be constructed under any other 

provision of law. 

ø(b)(1) In order to encourage the Papago Tribe to develop sources 

of water on the Sells Papago Reservation, the Secretary shall, if so 

requested by the tribe, carry out a study to determine the availability and suitability of water resources within the Sells Papago 

Reservation but outside the Tucson Active Management Area and 

that part of the Upper Santa Cruz Basin not within that area. 

109 

ø(2) The Secretary shall, in cooperation with the Secretary of Energy, or, with the appropriate agency or officials, carry out a study 

to determine— 

ø(A) the availability of energy and the energy requirements 

which result from the enactment of the provisions of this title, 

and 

ø(B) the feasibility of constructing a solar power plant or 

other alternative energy producing facility to meet such requirements. 

ø(c) The Papago Tribe shall have the right to withdraw ground 

water from beneath the San Xavier Reservation subject to the limitations of section 306(a). 

ø(d) Nothing contained in this title shall diminish or abrogate 

any obligations of the Secretary to the Papago Tribe under the December 11, 1980, agreement. 

ø(e) Nothing contained in sections 303(c) and 306(c) shall be construed to establish whether or not the Federal reserved rights doctrine applies, or does not apply, to ground water. 

øDELIVERIES UNDER EXISTING CONTRACT; ALTERNATIVE WATER

SUPPLIES; OPERATION AND MAINTENANCE

øSEC. 304. (a) The water delivered from the main project works 

of the Central Arizona Project to the San Xavier Reservation and 

to the Schuk Toak District of the Sells Papago Reservation as provided in section 303(a), shall be delivered in such amounts, and according to such terms and conditions, as are set forth in the December 11, 1980, agreement, except as otherwise provided under 

this section. 

ø(b) Where the Secretary, pursuant to the terms and conditions 

of the agreement referred to in subsection (a), is unable, during any 

year, to deliver from the main project works of the Central Arizona 

Project any portion of the full amount of water specified in section 

303(a)(1)(A) and section 303(a)(2)(A), the Secretary shall acquire 

and deliver an equivalent quantity of water from the following 

sources or any combination thereof: 

ø(1) agricultural water from the Central Arizona Project 

which has been contracted for but has been released or will be 

unused by the contractor during the period in which the Secretary will acquire the water; 

ø(2) any water available for delivery through the Central Arizona Project which exists by reason of the augmentation of the 

water supply available for use and distribution through the 

Central Arizona Project by subsequent Acts of Congress; and 

ø(3) water from any of the following sources or any combination thereof within the Tucson Active Management Area and 

that part of the Upper Santa Cruz Basin not within that area 

in the State of Arizona; 

ø(A) private lands or interests therein having rights in 

surface or ground water recognized under State law; or 

ø(B) reclaimed water to which the seller has a specific 

right. 

Deliveries of water from lands or interests referred to in subparagraph (A) shall be made only to the extent such water may 

be transported within the Tucson Active Management Area 

pursuant to State law. 

110 

ø(c) If the Secretary is unable to acquire and deliver quantities 

of water adequate to fulfill his obligations under this section or 

paragraphs (1)(A) and (2)(A) of section 303(a), he shall pay damages in an amount equal to— 

ø(1) the actual replacement costs of such quantities of water 

as are not acquired and delivered, where a delivery system has 

not been completed within ten years after the day of enactment 

of this title, or 

ø(2) the value of such quantities of water as are not acquired 

and delivered, where the delivery system is completed. 

ø(d) No land, water, water rights, contract rights, or reclaimed 

water may be acquired under subsection (b) without the consent of 

the owner thereof. No private lands may be acquired under subsection (b)(3)(A) unless the lands have a recent history of receiving 

or being capable of actually receiving all or substantially all of the 

water right the use of which is recognized by State law. In acquiring any private lands under subsection (b)(3)(A), the Secretary 

shall give preference to the acquisition of lands upon which water 

has actually been put to beneficial use in any one of the five years 

preceding the date of acquisition. Nothing in this section shall authorize the Secretary to acquire or disturb the water rights of any 

Indian tribe, band, group, or community. 

ø(e)(1) To meet the obligation referred to in paragraphs (1)(A) 

and (2)(A) of section 303(a), the Secretary shall, acting through the 

Bureau of Reclamation, as part of the main project works of the 

Central Arizona Project— 

ø(A) design, construct and, without cost to the Papago Tribe, 

operate, maintain, and replace such facilities as are appropriate including any aqueduct and appurtenant pumping facilities, powerplants, and electric power transmission facilities 

which may be necessary for such purposes; and 

ø(B) deliver the water to the southern boundary of the San 

Xavier Reservation, and to the boundary of the Schuk Toak 

District of the Sells Papago Reservation, at points agreed to by 

the Secretary and the tribe which are suitable for delivery to 

the reservation distribution systems. 

ø(2) There is hereby authorized to be appropriated by this title 

in addition to other sums authorized to be appropriated by this 

title, a sum equal to that portion of the total costs of phase B of 

the Tucson Aqueduct of the Central Arizona Project which the Secretary determines to be properly allocable to construction of facilities for the delivery of water to Indian lands as described in subparagraphs (A) and (B) of paragraph (1). Sums allocable to the construction of such facilities shall be reimbursable as provided by the 

Act of July 1, 1932 (Public Law 72–240; 25 U.S.C. 386(a)), as long 

as such water is used for irrigation of Indian lands. 

ø(f) to facilitate the delivery of water to the San Xavier and the 

Schuk Toak District of the Sells Papago Reservation under this 

title, the Secretary is authorized— 

ø(1) to enter into contracts or agreements for the exchange 

of water, or for the use of aqueducts, canals, conduits, and 

other facilities for water delivery, including pumping plants, 

with the State of Arizona or any of its subdivisions, with any 

irrigation district or project, or with any authority, corporation, 

partnership, individual, or other legal entity; and 

111 

ø(2) to use facilities constructed in whole or in part with 

Federal funds. 

øRECLAIMED WATER; ALTERNATIVE WATER SUPPLIES

øSEC. 305. (a) As soon as possible, but not later than ten years 

after the date of enactment of this title, the Secretary shall acquire 

reclaimed water in accordance with the agreement described in section 307(a)(1) and deliver annually twenty-three thousand acre-feet 

of water suitable for agricultural use to the San Xavier Reservation 

and deliver annually five thousand two hundred acre-feet of water 

suitable for agricultural use to the Schuk Toak District of the Sells 

Papago Reservation. 

ø(b)(1) The obligation of the Secretary referred to in subsection 

(a) to deliver water suitable for agricultural use may be fulfilled by 

voluntary exchange of that reclaimed water for any other water 

suitable for agricultural use or by other means. To make available 

and deliver such water, the Secretary acting through the Bureau 

of Reclamation shall design, construct, operate, maintain, and replace such facilities as are appropriate. The costs of design, construction, operation, maintenance, and replacement of on-reservation systems for the distribution of the water referred to in subsection (a) are the responsibility of the Papago Tribe. 

ø(2) The Secretary shall not construct a separate delivery system 

to deliver reclaimed water referred to in subsection (a) to the San 

Xavier Reservation and the Schuk Toak District of the Sells 

Papago Reservation. 

ø(3) To facilitate the delivery of water under this title, the Secretary shall, to the extent possible, utilize unused capacity of the 

main project works of the Central Arizona Project without reallocation of costs. 

ø(c) The Secretary may, as an alternative to, and in satisfaction 

of the obligation to deliver the quantities of water to be delivered 

under subsection (a), acquire and deliver pursuant to agreements 

authorized in section 307(b), an equivalent quantity of water from 

the following sources or any combination thereof— 

ø(1) agricultural water from the Central Arizona Project 

which has been contracted for but has been released or will be 

unused by the contractor during the period in which the Secretary will acquire the water; 

ø(2) any water available for delivery through the Central Arizona Project which exists by reason of the augmentation of the 

water supply available for use and distribution through the 

Central Arizona Project by subsequent Acts of Congress; and 

ø(3) water from any of the following sources or any combination thereof within the Tucson Active Management Area in the 

State of Arizona and that part of the Upper Santa Cruz Basin 

not within that area— 

ø(A) private lands or interests therein having rights in 

surface or ground water recognized under State law; or 

ø(B) reclaimed water to which the seller has a specific 

right. 

Deliveries of water from lands referred to in subparagraph (A) 

shall be made only to the extent such water may be transported within the Tucson Active Management Area pursuant to 

State law. 

112 

ø(d) If the Secretary is unable to acquire and deliver quantities 

of water adequate to fulfill his obligations under this section, he 

shall pay damages in an amount equal to— 

ø(1) the actual replacement costs of such quantities of water 

as are not acquired and delivered, where a delivery system has 

not been completed within ten years after the date of enactment of this title, or 

ø(2) the value of such quantities of water as are not acquired 

and delivered, where a delivery system is completed. 

ø(e) No land, water, water rights, contract rights, or reclaimed 

water may be acquired under subsection (c) without the consent of 

the owner thereof. No private lands may be acquired under subsection (c)(3)(A) unless the lands have a recent history of receiving 

or being capable of actually receiving all or substantially all of the 

water the right to the use of which is recognized by State law. In 

acquiring said private lands, the Secretary shall give preference to 

the acquisition of lands upon which water has actually been put to 

beneficial use in any one of the five years preceding the date of acquisition. Nothing in this section shall authorize the Secretary to 

acquire or disturb the water rights of any Indian tribe, band, 

group, or community. 

LIMITATION ON PUMPING FACILITIES FOR WATER DELIVERIES; 

DISPOSITION OF WATER

øSEC. 306. (a) The Secretary shall be required to carry out his 

obligation under subsections (b), (c), and (e) of section 304 and 

under section 305 only if the Papago Tribe agrees to— 

ø(1) limit pumping of ground water from beneath the San 

Xavier Reservation to not more than ten thousand acre-feet per 

year; 

ø(2) limit the quantity of ground water pumped from beneath the eastern Schuk Toak District of the Sells Papago Reservation which lies within the Tucson Active Management 

Area to those quantities being withdrawn on January 1, 1981; 

and 

ø(3) comply with the management plan established by the 

Secretary under section 303(a)(3). 

Nothing contained in paragraph (1) shall restrict the tribe from 

drilling wells and withdrawing ground water therefrom on the San 

Xavier Reservation if such wells have a capacity of less than thirtyfive gallons per minute and are used only for domestic and livestock purposes. Nothing contained in paragraph (2) shall restrict 

the tribe from drilling wells and withdrawing ground water therefrom in the eastern Schuk Toak District of the Sells Papago Reservation which lies within the Tucson Active Management Area if 

such wells have a capacity of less than thirty-five gallons per 

minute and which are used only for domestic and livestock purposes. 

ø(b) The Secretary shall be required to carry out his obligations 

with respect to distribution systems under paragraphs (1)(B) and 

(2)(B) of section 303(a) only if the Papago Tribe agrees to— 

ø(1) subjugate, at no cost to the United States, the land for 

which those distribution systems are to be planned, designed, 

and constructed by the Secretary; and 

113 

ø(2) assume responsibility, through the tribe or its members 

or an entity designated by the tribe, as appropriate, following 

completion of those distribution systems and upon delivery of 

water under this title, for the operation, maintenance, and replacement of those systems in accordance with the first section 

of the act of August 1, 1914 (38 Stat. 583; 25 U.S.C. 385). 

ø(c)(1) The Papago Tribe shall have the right to devote all water 

supplies under this title, whether delivered by the Secretary or 

pumped by the tribe, to any use, including but not limited to agricultural, municipal, industrial, commercial, mining, or recreational 

use whether within or outside the Papago Reservation so long as 

such use is within the Tucson Active Management Area and that 

part of the Upper Santa Cruz Basin not within such area. 

ø(2) The Papago Tribe may sell, exchange, or temporarily dispose 

of water, but the tribe may not permanently alienate any water 

right. In the event the tribe sells, exchanges, or temporarily disposes of water, such sale, exchange, or temporary disposition shall 

be pursuant to a contract which has been accepted and ratified by 

a resolution of the Papago Tribal Council and approved and executed by the Secretary as agent and trustee for the tribe. Such contract shall specifically provide that an action may be maintained by 

the contracting party against the United States and the Secretary 

for the breach thereof. The net proceeds from any sale, exchange, 

or disposition of water by the Papago Tribe shall be used for social 

or economic programs or for tribal administrative purposes which 

benefit the Papago Tribe. 

ø(d) Nothing in section 306(c) shall be construed to establish 

whether or not reserved water may be put to use, or sold for use, 

off of any reservation to which reserved water rights attach. 

øOBLIGATION OF THE SECRETARY; CONTRACT FOR RECLAIMED WATER; 

DISMISSAL AND WAIVER OR CLAIMS OF PAPAGO TRIBE AND ALLOTTEES

øSEC. 307. (a) The Secretary shall be required to carry out his 

obligations under subsections (b), (c), and (e) of section 304 and 

under section 305 only if— 

ø(1) within one year of the date of enactment of this title— 

ø(A) the city of Tucson and the Secretary agree that the 

city will make immediately available, without payment to 

the city, such quantity of reclaimed water treated to secondary standards as is adequate, after evaporative losses, 

to deliver annually, as contemplated in section 305(a), 

twenty-eight thousand two hundred acre-feet of water for 

the Secretary to dispose of as he sees fit; such agreement 

may provide terms and conditions under which the Secretary may relinquish to the city of Tucson such quantities 

of water as are not needed to satisfy the Secretary’s obligations under this title; 

ø(B) the Secretary and the city of Tucson, the State of 

Arizona, the Anamax Mining Company, the Cyprus-Pima 

Mining Company, the American Smelting and Refining 

Company, the Duval Corporation, and the Farmers Investment Company agree that funds will be contributed, in accordance with the paragraphs (1)(B) and (2) of subsection 

(b) of section 313, to the Cooperative Fund established 

under subsection (a) of such section. 

114 

ø(C) the Papago Tribe agrees to file with the United 

States District Court for the District of Arizona a stipulation for voluntary dismissal with prejudice, in which the 

Attorney General is authorized and directed to join on behalf of the United States, and the allottee class representatives’ petition for dismissal of the class action with prejudice in the United States, the Papago Indian Tribe, and 

others against the city of Tucson, and others, civil numbered 75–39 TUC (JAW); and 

ø(D) the Papago Tribe executes a waiver and release in 

a manner satisfactory to the Secretary of— 

ø(i) any and all claims of water rights or injuries to 

water rights (including water rights in both ground 

water and surface water) within the Tucson Active 

Management Area and that part of the Upper Santa 

Cruz Basin not within said area, from time immemorial to the date of the execution by the tribe of such 

waiver, which the Papago Tribe has against the 

United States, the State of Arizona and any agency or 

political subdivision thereof, or any other person, corporation, or municipal corporation, arising under the 

laws of the United States or the State of Arizona; and 

ø(ii) any and all future claims of water rights (including water rights in both ground water and surface 

water) within the Tucson Active Management Area 

and that part of the Upper Santa Cruz Basin not within said area, from and after the date of execution of 

such waiver, which the Papago Tribe has against the 

United States, the State of Arizona and any agency or 

political subdivision thereof, or any other person, corporation, or municipal corporation, under the laws of 

the United States or the State of Arizona; and 

ø(2) the suit referred to in paragraph (a)(C) is finally dismissed; 

ø(b) After the conditions referred to in subsection (a) have been 

met the Secretary shall be authorized and required, if necessary or 

desirable, to enter into agreements with other individuals or entities to acquire and deliver water from such sources set forth in section 305(c) if through such contracts as exercised in conjunction 

with the contract required in subsection (a)(1)(A) it is possible to 

deliver the quantities of water required in section 305(a). 

ø(c) Nothing in this section shall be construed as a waiver or release by the Papago Tribe of any claim where such claim arises 

under this title. 

ø(d) The waiver and release referred to in this section shall not 

take effect until such time as the trust fund referred to in section 

309 is in existence, the conditions set forth in subsection (a) have 

been met, and the full amount authorized to be appropriated to the 

trust fund under section 309 has been appropriated by the Congress. 

ø(e) The settlement provided in this title shall be deemed to fully 

satisfy any and all claims of water rights or injuries to water rights 

(including water rights in both ground water and surface water) of 

all individual members of the Papago Tribe that have a legal interest in lands of the San Xavier Reservation and the Schuk Toak 

115 

District of the Sells Reservation located within the Tucson Active 

Management Area and that part of the Upper Santa Cruz Basin 

not within said area, as of the date the waiver and release referred 

to in this section take effect. Any entitlement to water of any individual member of the Papago Tribe shall be satisfied out of the 

water resources provided in this title. 

øSTUDY OF LANDS WITHIN THE GILA BEND RESERVATION; EXCHANGE

OF LANDS AND ADDITION OF LANDS TO THE RESERVATION; AUTHORIZED APPROPRIATIONS

øSEC. 308. (a) The Secretary is hereby authorized and directed 

to carry out such studies and analysis as he deems necessary to determine which lands, if any, within the Gila Bend Reservation have 

been rendered unsuitable for agriculture by reason of the operation 

of the Painted Rock Dam. Such study and analysis shall be completed within one year after the date of the enactment of this title. 

ø(b) If, on the basis of the study and analysis conducted under 

subsection (a), the Secretary determines that lands have been rendered unsuitable for agriculture for the reasons set forth in subsection (a), and if the Papago Tribe consents, the Secretary is authorized to exchange such lands for an equivalent acreage of land 

under his jurisdiction which are within the Federal public domain 

and which, but for their suitability for agriculture, are of like quality. 

ø(c) The lands exchanged under this section shall be held in trust 

for the Papago Tribe and shall be part of the Gila Bend Reservation for all purposes. Such lands shall be deemed to have been reserved as of the date of the reservation of the lands for which they 

are exchanged. 

ø(d) Lands exchanged under this section which, prior to the exchange, were part of the Gila Bend Reservation, shall be managed 

by the Secretary of the Interior through the Bureau of Land Management. 

ø(e) The Secretary may require the Papago Tribe to reimburse 

the United States for moneys paid, if any, by the Federal Government for flood easements on lands which the Secretary replaces by 

exchange under subsection (b). 

øESTABLISHMENT OF TRUST FUND; EXPENDITURES FROM FUND

øSEC. 309. (a) Pursuant to appropriations the Secretary of the 

Treasury shall pay to the authorized governing body of the Papago 

Tribe the sum of $15,000,000 to be held in trust for the benefit of 

such Tribe and invested in interest bearing deposits and securities 

including deposits and securities of the United States. 

ø(b) The authorized governing body of the Papago Tribe, as trustee for such Tribe, may only spend each year the interest and dividends accruing on the sum held and invested pursuant to subsection (a). Such amount may only be used by the Papago Tribe for 

the subjugation of land, development of water resources, and the 

construction, operation, maintenance, and replacement of related 

facilities on the Papago Reservation which are not the obligation of 

the United States under this or any other Act of Congress. 

116 

øAPPLICATION OF INDIAN SELF-DETERMINATION AND EDUCATION

ASSISTANCE ACT

øSEC. 310. The functions of the Bureau of Reclamation under 

this title shall be subject to the provisions of the Indian Self-Determination and Education Assistance Act (88 Stat. 2203; 25 U.S.C. 

450) to the same extent as if performed by the Bureau of Indian 

Affairs. 

øEXTENSION OF STATUTE OF LIMITATIONS

øSEC. 311. Except as otherwise provided in section 107 of this 

title, notwithstanding section 2415 of title 28, United States Code, 

any action relating to water rights of the Papago Indian Tribe or 

any member of such tribe brought by the United States for, or on 

behalf of, such tribe or member of such tribe, or by such tribe on 

its own behalf, shall not be barred if the compliant is filed prior 

to January 1, 1985. 

øARID LAND RENEWABLE RESOURCE ASSISTANCE

øSEC. 312. If a Federal entity is established to provide financial 

assistance to undertake arid land renewable resources projects and 

to encourage and assure investment in the development of domestic 

sources of arid land renewable resources, such entity shall give 

first priority to the needs of the Papago Tribe in providing such assistance. Such entity shall make available to the Papago Tribe— 

ø(1) price guarantees, loan guarantees, or purchase agreements, 

ø(2) loans, and 

ø(3) joint venture projects, at a level to adequately cultivate 

a minimum number of acres as determined by such entity to 

be necessary to the economically successful cultivation of arid 

land crops and a level to contribute significantly to the economy of the Papago Tribe. 

COOPEERATIVE FUND

øSEC. 313. (a) There is established in the Treasury of the United 

States a fund to be known as the ‘‘Cooperative Fund’’ for purposes 

of carrying out the obligations of the Secretary under sections 303, 

304, and 305 of this title, including— 

ø(A) operations, maintenance, and repair costs related to the 

delivery of water under sections 303, 304, 305; 

ø(B) any costs of acquisition an delivery of water from alternative sources under section 304(b) and 305(c); and 

ø(C) any damages payable by the Secretary under section 

304(c) or 305(d) of this title. 

ø(b)(1) The Cooperative fund shall consist of— 

ø(A) amounts appropriated to the Fund under paragraph (3) 

of this subsection; 

ø(B) $5,250,000 to be contributed as follows: 

ø(i) $2,750,000 (adjusted as provided in paragraph (2)) 

contributed by the State of Arizona; 

2 ø(ii) $1,500,000 (adjusted as provided in paragraph (2)) 

contributed by the City of Tucson; and 

ø(iii) $1,000,000 (adjusted as provided in paragraph (2)) 

contributed jointly by the Anamax Mining Company, the 

117 

Cyprus-Pine Mining Company, the American Smelting and 

Refining Company, the Duval Corporation, and the Farmers Investment Company; and 

ø(C) interest accruing to the fund under subsection (a) which 

is not expended as provided in subsection (c). 

ø(2) The amounts referred to in subparagraph (B) of paragraph 

(1) shall be contributed before the expiration of the three-year period beginning on the date of the enactment of this title. To the extent that any portion of such amounts is contributed after the oneyear period beginning on the date of the enactment of this title, the 

contribution shall include an adjustment representing the additional interest which would have been earned by the Cooperative 

Fund if that portion had been contributed before the end of the 

one-year period. 

ø(3) There are hereby authorized to be appropriated to the Cooperative Fund the following: 

ø(A) $5,250,000; and 

ø(B) Such sums up to $16,000,000 (adjusted as provided in 

paragraph 2) which the Secretary determines, by notice to the 

Congress, are necessary to meet his obligations under this 

title; and 

ø(C) Such additional sums as may be provided by Act of Congress. 

ø(c)(1) Only interest accruing to the Cooperative Fund may be expended and no such interest may be expended prior to the earlier 

of— 

ø(A) 10 years after the date of this enactment of this title; 

or 

ø(B) the date of completion of the main project works of the 

Central Arizona Project. 

ø(2) Interest accruing to the Fund during the twelve-month period before the date determined under paragraph (1) and interest 

accruing to Fund thereafter shall, without further appropriation, be 

available for expenditure after the date determined under paragraph (1). 

ø(d) The Secretary of the Treasury shall be the trustee of the Cooperative Fund. It shall be the duty of the Secretary of the Treasury to invest such portion of the Fund as is not, in his judgment, 

required to meet current withdrawals. Such investments shall be 

in public debt securities with maturities suitable for the needs of 

such Fund and bearing interest at rates determined by the Secretary of the Treasury, taking into consideration current market 

yields on outstanding marketable obligations of the United States 

of comparable maturities. 

ø(e) If, before the date three years after the date of the enactment of this title— 

ø(1) the waiver and release referred to in section 307 does 

not take effect by reason of section 307(d); or 

ø(2) the suit referred to in section 307(a)(1)(C) is not finally 

dismissed 

the Cooperative Fund under this section shall be terminated and 

the Secretary of the Treasury shall return all amounts contributed 

to the Fund (together with a ratable share of accrued interest) to 

the respective contributors. Upon such termination, the share conVerDate Aug 04 2004 06:35 Sep 29, 2004 Jkt 096118 PO 00000 Frm 00117 Fmt 6659 Sfmt 6602 E:\HR\OC\SR360.XXX SR360
118 

tributed by the United States under subsection (b)(3) shall be deposited in the General Fund of the Treasury. 

ø(f) Payments for damages arising under 304(c) and 305(d) shall 

not exceed in any given year the amounts available for expenditure 

in any given year from the Cooperative Fund established under 

this section. 

øCOMPLIANCE WITH BUDGET ACT

øSEC. 314. No authority under this title to enter into contracts 

or to make payments shall be effective except to the extent and in 

such amounts as provided in advance in appropriations Acts. Any 

provision of this title which, directly or indirectly, authorizes the 

enactment of new budget authority shall be effective only for fiscal 

years beginning after September 30, 1982. 

øSHORT TITLE

øSEC. 315. This title may be cited as the ‘‘Southern Arizona 

Water Rights Settlement Act of 1982’’.¿ 

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 ‘‘after-acquired 

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. 

119 

(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. 

(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). 

120 

(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. 

(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.— 

121 

(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. 

(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 

95μ09361 (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 

122 

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. 

(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— 

123 

(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. 

(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 addiVerDate Aug 04 2004 06:35 Sep 29, 2004 Jkt 096118 PO 00000 Frm 00123 Fmt 6659 Sfmt 6603 E:\HR\OC\SR360.XXX SR360
124 

tion 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 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) 

125 

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); 

(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.— 

126 

(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; 

(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; 

127 

(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.— 

(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. 

128 

(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— 

(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— 

129 

(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 

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); 

130 

(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 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 

131 

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 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 Novermber 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— 

132 

(I) to use, or authorize other persons or entities 

to use, any portion of the allocation of 35,000 acrefeet 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— 

(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)— 

133 

(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 

(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 

134 

(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 

(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 XavierReservation, 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 

135 

(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 

(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— 

136 

(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.— 

(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 

137 

(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, 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. 

138 

(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— 

(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— 

139 

(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 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; 

140 

(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. 

(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) IN GENERAL.—Execution of an agreement described in 

paragraph (2) shall not constitute major Federal action 

under the National Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.). 

(B) ENVIRONMENTAL COMPLIANCE ACTIVITIES.—The Secretary shall carry out all necessary environmental compliance activities during the implementation of the agreements 

described in paragraph (2), including activities under— 

(i) the National Environmental Policy Act of 1969 

(42 U.S.C. 4321 et seq.); and 

141 

(ii) the Endangered Species Act of 1973 (16 U.S.C. 

1531 et seq.). 

(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 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; 

142 

(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 

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. 

143 

(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 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 conVerDate Aug 04 2004 06:35 Sep 29, 2004 Jkt 096118 PO 00000 Frm 00143 Fmt 6659 Sfmt 6603 E:\HR\OC\SR360.XXX SR360
144 

tinuing 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, 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— 

145 

(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 offReservation 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; 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 ReservaVerDate Aug 04 2004 06:35 Sep 29, 2004 Jkt 096118 PO 00000 Frm 00145 Fmt 6659 Sfmt 6603 E:\HR\OC\SR360.XXX SR360
146 

tion 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 

(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 offReservation 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 

147 

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 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 fuVerDate Aug 04 2004 06:35 Sep 29, 2004 Jkt 096118 PO 00000 Frm 00147 Fmt 6659 Sfmt 6603 E:\HR\OC\SR360.XXX SR360
148 

ture 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 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.— 

149 

(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. 

(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. 

150 

(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. 

(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— 

151 

(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). 

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)— 

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(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; 

(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). 

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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; 

(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). 

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Insert offset folio 440 here SR360.001