79–006

106TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 106–743

SHIVWITS BAND OF THE PAIUTE INDIAN TRIBE OF UTAH

WATER RIGHTS SETTLEMENT ACT

JULY 17, 2000.—Committed to the Committee of the Whole House on the State of

the Union and ordered to be printed

Mr. YOUNG of Alaska, from the Committee on Resources,

submitted the following

R E P O R T

[To accompany H.R. 3291]

[Including cost estimate of the Congressional Budget Office]

The Committee on Resources, to whom was referred the bill

(H.R. 3291) to provide for the settlement of the water rights claims

of the Shivwits Band of the Paiute Indian Tribe of Utah, and for

other purposes, having considered the same, report favorably thereon with an amendment and recommend 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.

This Act may be cited as the ‘‘Shivwits Band of the Paiute Indian Tribe of Utah

Water Rights Settlement Act’’.

SEC. 2. FINDINGS.

Congress finds the following:

(1) It is the official policy of the United States, in keeping with its trust responsibility to Indian tribes, to promote Indian self-determination and economic

self-sufficiency, and to settle the water rights claims of Indian tribes to avoid

lengthy and costly litigation.

(2) Any meaningful policy of Indian self-determination and economic self-sufficiency requires the development of viable Indian reservation economies.

(3) The quantification of water rights and the development of water use facilities is essential to the development of viable Indian reservation economies, particularly in the arid Western States.

(4) The Act of March 3, 1891, provided for the temporary support of the

Shebit (or Shivwits) tribe of Indians in Washington County, Utah, and appropriated moneys for the purchase of improvements on lands along the Santa

Clara River for the use of said Indians. Approximately 26,880 acres in the same

area were set aside as a reservation for the Shivwits Band by Executive order

dated April 21, 1916. An additional 1,280 acres were added to the reservation

by Congress on May 28, 1937.
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(5) The waters of the Santa Clara River are fully appropriated except during

high flow periods. A water right was awarded to the United States for the benefit of the Shivwits Band in the 1922 adjudication entitled St. George Santa

Clara Field Co., et al. v. Newcastle Reclamation Co., et al., for ‘‘1.38 cubic feet

of water per second for the irrigation of 83.2 acres of land and for culinary, domestic, and stock watering purposes’’, but no provision has been made for water

resource development to benefit the Shivwits Band. In general, the remainder

of the Santa Clara River’s flow is either diverted on the reservation and delivered through a canal devoted exclusively to non-Indian use that traverses the

reservation to a reservoir owned by the Ivins Irrigation Company; dedicated to

decreed and certificated rights of irrigation companies downstream of the reservation; or impounded in the Gunlock Reservoir upstream of the reservation.

The Band’s lack of access to water has frustrated its efforts to achieve meaningful self-determination and economic self-sufficiency.

(6) On July 21, 1980, the State of Utah, pursuant to title 73, chapter 4, Utah

Code Ann., initiated a statutory adjudication of water rights in the Fifth Judicial District Court in Washington County, Utah, Civil No. 800507596, which encompasses all of the rights to the use of water, both surface and underground,

within the drainage area of the Virgin River and its tributaries in Utah (‘‘Virgin

River Adjudication’’), including the Santa Clara River Drainage (‘‘Santa Clara

System’’).

(7) The United States was joined as a party in the Virgin River Adjudication

pursuant to section 666 of title 43, United States Code. On February 17, 1987,

the United States filed a Statement of Water User Claim asserting water rights

and aboriginal claims for the benefit of the Shivwits Band to water from the

Santa Clara River System; said claim covered all potential water rights for Indian tribes or bands in the Virgin River System.

(8) The Virgin River Adjudication will take many years to conclude, entail

great expense, and prolong uncertainty as to the availability of water supplies,

and thus the parties have sought to settle their dispute over water and reduce

the burdens of litigation.

(9) After lengthy negotiation, which included participation by representatives

of the United States Government for the benefit of the Shivwits Band, the State

of Utah, the Shivwits Band, the Washington County Water Conservancy District, the city of St. George, and others on the Santa Clara River System, the

parties have entered into agreements to resolve all water rights claims between

and among themselves and to quantify the water right entitlement of the

Shivwits Band, and to provide for the construction of water projects to facilitate

the settlement of these claims.

(10) Pursuant to the St. George Water Reuse Project Agreement, the Santa

Clara Project Agreement, and the Settlement Agreement, the Shivwits Band

will receive the right to a total of 4,000 acre-feet of water annually in settlement of its existing State law claims and Federal reserved water right claims.

(11) To advance the goals of Federal Indian policy and consistent with the

trust responsibility of the United States to the Shivwits Band, it is appropriate

that the United States participate in the implementation of the St. George

Water Reuse Project Agreement, the Santa Clara Project Agreement, and the

Settlement Agreement in accordance with this Act.

SEC. 3. PURPOSES.

The purposes of this Act are—

(1) to achieve a fair, equitable, and final settlement of all claims to water

rights in the Santa Clara River for the Shivwits Band, and the United States

for the benefit of the Shivwits Band;

(2) to promote the self-determination and economic self-sufficiency of the

Shivwits Band, in part by providing funds to the Shivwits Band for its use in

developing a viable reservation economy;

(3) to approve, ratify, and confirm the St. George Water Reuse Project Agreement, the Santa Clara Project Agreement, and the Settlement Agreement, and

the Shivwits Water Right described therein;

(4) to authorize the Secretary of the Interior to execute the St. George Water

Reuse Project Agreement, the Santa Clara Project Agreement, and the Settlement Agreement, and to take such actions as are necessary to implement these

agreements in a manner consistent with this Act; and

(5) to authorize the appropriation of funds necessary for implementation of

the St. George Water Reuse Project Agreement, the Santa Clara Project Agreement, and the Settlement Agreement.

SEC. 4. DEFINITIONS.

In this Act:
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(1) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of the Interior.

(2) UTAH.—The term ‘‘Utah’’ means the State of Utah, by and through its Department of Natural Resources.

(3) SHIVWITS BAND.—The term ‘‘Shivwits Band’’ means the Shivwits Band of

the Paiute Indian Tribe of Utah, a constituent band of the Paiute Indian Tribe

of Utah, a federally recognized Indian tribe organized under section 16 of the

Indian Reorganization Act of June 18, 1934 (48 Stat. 987; 25 U.S.C. 476), and

the Act of April 3, 1980 (94 Stat. 317).

(4) PAIUTE INDIAN TRIBE OF UTAH.—The term ‘‘Paiute Indian Tribe of Utah’’

means the federally recognized Indian Tribe organized under section 16 of the

Indian Reorganization Act of June 18, 1934 (48 Stat. 987; 25 U.S.C. 476), and

the Act of April 3, 1980 (94 Stat. 317), comprised of five bands of Southern Paiute Indians (Shivwits, Indian Peaks, Cedar, Koosharem, and Kanosh Bands).

(5) DISTRICT.—The term ‘‘District’’ means the Washington County Water Conservancy District, a Utah water conservancy district.

(6) ST. GEORGE.—The term ‘‘St. George’’ means St. George City, a Utah municipal corporation.

(7) VIRGIN RIVER ADJUDICATION.—The term ‘‘Virgin River Adjudication’’ means

the statutory adjudication of water rights initiated pursuant to title 73, chapter

4, Utah Code Ann. and pending in the Fifth Judicial District Court in Washington County, Utah, Civil No. 800507596.

(8) ST. GEORGE WATER REUSE PROJECT AGREEMENT.—The term ‘‘St. George

Water Reuse Project Agreement’’ means the agreement among the United

States for the benefit of the Shivwits Band, Utah, the Shivwits Band, and St.

George City, together with all exhibits thereto, as the same is approved and executed by the Secretary of the Interior pursuant to section 8 of this Act.

(9) SANTA CLARA PROJECT AGREEMENT.—The term ‘‘Santa Clara Project Agreement’’ means the agreement among the United States for the benefit of the

Shivwits Band, Utah, the Shivwits Band, the Washington County Water Conservancy District, St. George City, the New Santa Clara Field Canal Company,

the St. George Clara Field Canal Company, the Ivins Irrigation Company, the

Southgate Irrigation Company, Bloomington Irrigation Company, Ed Bowler,

and the Lower Gunlock Reservoir Company, together with all exhibits thereto,

as the same is approved and executed by the Secretary of the Interior pursuant

to section 8 of this Act.

(10) SETTLEMENT AGREEMENT.—The term ‘‘Settlement Agreement’’ means that

agreement among the United States for the benefit of the Shivwits Band, Utah,

the Shivwits Band, the Washington County Water Conservancy District, St.

George City, the New Santa Clara Field Canal Company, the St. George Clara

Field Canal Company, the Ivins Irrigation Company, the Southgate Irrigation

Company, Bloomington Irrigation Company, Ed Bowler, and the Lower Gunlock

Reservoir Company, together with all exhibits thereto, as the same is approved

and executed by the Secretary of the Interior pursuant to section 8 of this Act.

(11) SHIVWITS WATER RIGHT.—The term ‘‘Shivwits Water Right’’ means the

water rights of the Shivwits Band set forth in the Settlement Agreement and

as settled, confirmed, and ratified by section 7 of this Act.

(12) SHIVWITS BAND TRUST FUND.—The term ‘‘Shivwits Band Trust Fund’’

means the Trust Fund authorized in section 11 of this Act to further the purposes of the Settlement Agreement and this Act.

(13) VIRGIN RIVER RESOURCE MANAGEMENT AND RECOVERY PROGRAM.—The

term ‘‘Virgin River Resource Management and Recovery Program’’ means the

proposed multiagency program, to be administered by the United States Fish

and Wildlife Service, Bureau of Land Management, National Park Service,

Utah, and the District, whose primary purpose is to prioritize and implement

native fish recovery actions that offset impacts due to future water development

in the Virgin River basin.

SEC. 5. ST. GEORGE WATER REUSE PROJECT.

(a) ST. GEORGE WATER REUSE PROJECT.—The St. George Water Reuse Project

shall consist of water treatment facilities, a pipeline, and associated pumping and

delivery facilities owned and operated by St. George, which is a component of, and

shall divert water from, the Water Reclamation Facility located in St. George, Utah,

and shall transport this water for delivery to and use by St. George and the

Shivwits Band. St. George shall make 2,000 acre-feet of water available annually

for use by the Shivwits Band in accordance with the St. George Water Reuse Project

Agreement and this Act.

(b) PROJECT CONSTRUCTION OPERATION AND MAINTENANCE.—(1) St. George shall

be responsible for the design, engineering, permitting, construction, operation, maintenance, repair, and replacement of the St. George Water Reuse Project, and the
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payment of its proportionate share of these project costs as provided for in the St.

George Water Reuse Project Agreement.

(2) The Shivwits Band and the United States for the benefit of the Shivwits Band

shall make available, in accordance with the terms of the St. George Water Reuse

Agreement and this Act, a total of $15,000,000 to St. George for the proportionate

share of the design, engineering, permitting, construction, operation, maintenance,

repair, and replacement of the St. George Water Reuse Project associated with the

2,000 acre-feet annually to be provided to the Shivwits Band.

SEC. 6. SANTA CLARA PROJECT.

(a) SANTA CLARA PROJECT.—The Santa Clara Project shall consist of a pressurized

pipeline from the existing Gunlock Reservoir across the Shivwits Reservation to and

including Ivins Reservoir, along with main lateral pipelines. The Santa Clara

Project shall pool and deliver the water rights of the parties as set forth in the

Santa Clara Project Agreement. The Santa Clara Project shall deliver to the

Shivwits Band a total of 1,900 acre-feet annually in accordance with the Santa

Clara Project Agreement and this Act.

(b) INSTREAM FLOW.—The Santa Clara Project shall release instream flow water

from the Gunlock Reservoir into the Santa Clara River for the benefit of the Virgin

Spinedace, in accordance with the Santa Clara Project Agreement and this Act.

(c) PROJECT FUNDING.—The Utah Legislature and the United States Congress

have each appropriated grants of $750,000 for the construction of the Santa Clara

Project. The District shall provide a grant of $750,000 for the construction of the

Santa Clara Project. The District shall provide any additional funding required for

the construction of the Santa Clara Project.

(d) PROJECT CONSTRUCTION, OPERATION, AND MAINTENANCE.—The District shall

be responsible for the permitting, design, engineering, construction, and the initial

operation, maintenance, repair, and replacement of the Santa Clara Project. Operation, maintenance, repair, and replacement activities and costs of the Santa Clara

Project shall be handled in accordance with the terms of the Santa Clara Project

Agreement.

SEC. 7. SHIVWITS WATER RIGHT.

(a) IN GENERAL.—The Shivwits Band and its members shall have the right in perpetuity to divert, pump, impound, use, and reuse a total of 4,000 acre-feet of water

annually from the Virgin River and Santa Clara River systems, to be taken as follows:

(1) 1,900 acre-feet annually from the Santa Clara River System, with an 1890

priority date in accordance with the terms of the Santa Clara Project Agreement.

(2) 2,000 acre-feet of water annually from the St. George Water Reuse Project

as provided for in the St. George Water Reuse Project Agreement. The Shivwits

Band shall have first priority to the reuse water provided from the St. George

Water Reclamation Facility.

(3) 100 acre-feet annually, with a 1916 priority date, from groundwater on the

Shivwits Reservation.

(b) WATER RIGHTS CLAIMS.—All water rights claims of the Shivwits Band, and the

Paiute Indian Tribe of Utah acting on behalf of the Shivwits Band, are hereby settled. The Shivwits Water Right is hereby ratified, confirmed, and shall be held in

trust by the United States for the benefit of the Shivwits Band.

(c) SETTLEMENT.—The Shivwits Band may use water from the springs and runoff

located on the Shivwits Reservation. The amount used from these sources will be

reported annually to the Utah State Engineer by the Shivwits Band and shall be

counted against the annual 4,000 acre-feet Shivwits Water Right.

(d) ABANDONMENT, FORFEITURE, OR NONUSE.—The Shivwits Water Right shall not

be subject to loss by abandonment, forfeiture, or nonuse.

(e) USE OF LEASE.—The Shivwits Band may use or lease the Shivwits Water

Right for either or both of the following:

(1) For any purpose permitted by tribal or Federal law anywhere on the

Shivwits Band Reservation. Once the water is delivered to the Reservation,

such use shall not be subject to State law, regulation, or jurisdiction.

(2) For any beneficial use off the Shivwits Reservation in accordance with the

St. George Water Reuse Agreement, the Santa Clara Project Agreement, the

Settlement Agreement, and all applicable Federal and State laws.

No service contract, lease, exchange, or other agreement entered into under this

subsection may permanently alienate any portion of the Shivwits Water Right.

SEC. 8. RATIFICATION OF AGREEMENTS.

Except to the extent that the St. George Water Reuse Project Agreement, the

Santa Clara Project Agreement, and the Settlement Agreement conflict with the
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provisions of this Act, such agreements are hereby approved, ratified, and confirmed. The Secretary is hereby authorized to execute, and take such other actions

as are necessary to implement, such agreements.

SEC. 9. SATISFACTION OF CLAIMS.

(a) FULL SATISFACTION OF CLAIMS.—The benefits realized by the Shivwits Band

and its members under the St. George Water Reuse Project Agreement, the Santa

Clara Project Agreement, the Settlement Agreement, and this Act shall constitute

full and complete satisfaction of all water rights claims, and any continuation thereafter of any of these claims, of the Shivwits Band and its members, and the Paiute

Indian Tribe of Utah acting on behalf of the Shivwits Band, for water rights or injuries to water rights under Federal and State laws from time immemorial to the effective date of this Act. Notwithstanding the foregoing, nothing in this Act shall

be—

(1) deemed to recognize or establish any right of a member of the Shivwits

Band to water on the Shivwits Reservation; or

(2) interpreted or construed to prevent or prohibit the Shivwits Band from

participating in the future in other water projects, or from purchasing additional water rights for their benefit and use, to the same extent as any other

entity.

(b) RELEASE.—By the approval, ratification, and confirmation herein of the St.

George Water Reuse Project Agreement, the Santa Clara Project Agreement, and

the Settlement Agreement, the United States executes the following waiver to be

effective upon satisfaction of the conditions set forth in section 14 of this Act. For

purposes of this section—

(1) ‘‘water rights’’ means rights under State and Federal law to divert, pump,

impound, use, or reuse, or to permit others to divert, pump, impound, use or

reuse water; and

(2) ‘‘injuries to water rights’’ means the loss, deprivation, or diminution of

water rights.

(c) WAIVER AND RELEASE.—Except as otherwise provided in the Settlement Agreement, this Act, or the proposed judgment and decree referred to in section 14(a)(7)

of this Act, the United States, on behalf of the Shivwits Band and the Paiute Indian

Tribe of Utah acting on behalf of the Shivwits Band, waives and releases the following:

(1) All claims for water rights or injuries to water rights for lands within the

Shivwits Reservation that accrued at any time up to and including the effective

date determined by section 14 of this Act, and any continuation thereafter of

any of these claims, that the United States for the benefit of the Shivwits Band

may have against Utah, any agency or political subdivision thereof, or any person, entity, corporation, or municipal corporation.

(2) All claims for water rights or injuries to water rights for lands outside of

the Shivwits Reservation, where such claims are based on aboriginal occupancy

of the Shivwits Band, its members, or their predecessors, that accrued at any

time up to and including the effective date determined by section 14 of this Act,

and any continuation thereafter of any of these claims, that the United States

for the benefit of the Shivwits Band may have against Utah, any agency or political subdivision thereof, or any person, entity, corporation, or municipal corporation.

(3) All claims for trespass to lands on the Shivwits Reservation regarding the

use of Ivins Reservoir that accrued at any time up to and including the effective

date determined by section 14 of this Act.

(d) SAVINGS PROVISION.—In the event the authorizations contained in subsection

(d) of this section do not become effective pursuant to section 14, the Shivwits Band

and the United States shall retain the right to assert past and future water rights

claims as to all lands of the Shivwits Reservation, and the water rights claims and

defenses of all other parties to the agreements shall also be retained.

SEC. 10. WATER RIGHTS AND HABITAT ACQUISITION PROGRAM.

(a) IN GENERAL.—The Secretary is authorized to establish a water rights and

habitat acquisition program in the Virgin River Basin—

(1) primarily for the benefit of native plant and animal species in the Santa

Clara River Basin which have been listed, are likely to be listed, or are the subject of a duly approved conservation agreement under the Endangered Species

Act; and

(2) secondarily for the benefit of native plant and animal species in other

parts of the Virgin River Basin which have been listed, are likely to be listed,

or are the subject of a duly approved conservation agreement under the Endangered Species Act.
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(b) WATER AND WATER RIGHTS.—The Secretary is authorized to acquire water and

water rights, with or without the lands to which such rights are appurtenant, and

to acquire shares in irrigation and water companies, and to transfer, hold, and exercise such water and water rights and related interests to assist the conservation and

recovery of any native plant or animal species described in subsection (a).

(c) REQUIREMENTS.—Acquisition of the water rights and related interests pursuant to this section shall be subject to the following requirements:

(1) Water rights acquired must satisfy eligibility criteria adopted by the Secretary.

(2) Water right purchases shall be only from willing sellers, but the Secretary

may target purchases in areas deemed by the Secretary to be most beneficial

to the water rights acquisition program established by this section.

(3) All water rights shall be transferred and administered in accordance with

any applicable State law.

(d) HABITAT PROPERTY.—The Secretary is authorized to acquire, hold, and transfer habitat property to assist the conservation and recovery of any native plant or

animal species described in section 10(a). Acquisition of habitat property pursuant

to this section shall be subject to the following requirements:

(1) Habitat property acquired must satisfy eligibility criteria adopted by the

Secretary.

(2) Habitat property purchases shall be only from willing sellers, but the Secretary may target purchases in areas deemed by the Secretary to be most beneficial to the habitat acquisition program established by this section.

(e) CONTRACT.—The Secretary is authorized to administer the water rights and

habitat acquisition program by contract or agreement with a non-Federal entity

which the Secretary determines to be qualified to administer such program. The

water rights and habitat acquisition program shall be administered pursuant to the

Virgin River Resource Management and Recovery Program.

(f) AUTHORIZATION.—There is authorized to be appropriated from the Land and

Water Conservation Fund in fiscal year 2003 or any year thereafter, a total of

$3,000,000 for the water rights and habitat acquisition program authorized in this

section. The Secretary is authorized to deposit and maintain this appropriation in

an interest bearing account, said interest to be used for the purposes of this section.

The funds authorized to be appropriated by this section shall not be in lieu of or

supersede any other commitments by Federal, State, or local agencies. The funds

appropriated pursuant to this section shall be available until expended, and shall

not be expended for the purpose set forth in subsection (a)(2) until the Secretary

has evaluated the effectiveness of the instream flow required and provided by the

Santa Clara Project Agreement, and has assured that the appropriations authorized

in this section are first made available for the purpose set forth in subsection (a)(1).

SEC. 11. SHIVWITS BAND TRUST FUND.

(a) ESTABLISHMENT OF TRUST FUND.—There is established in the Treasury of the

United States a fund to be known as the ‘‘Shivwits Band Trust Fund’’ (hereinafter

called the ‘‘Trust Fund’’). The Secretary shall deposit into the Trust Fund the funds

authorized to be appropriated in subsections (b) and (c). Except as otherwise provided in this Act, the Trust Fund principal and any income accruing thereon shall

be managed in accordance with the American Indian Trust Fund Management Reform Act (108 Stat. 4239; 25 U.S.C. 4001 et seq.).

(b) AUTHORIZATION.—There is authorized to be appropriated a total of

$20,000,000, in the 2001, 2002, or 2003 fiscal years for the following purposes:

(1) $5,000,000, which shall be made available to the Shivwits Band from the

Trust Fund for purposes including but not limited to those that would enable

the Shivwits Band to put to beneficial use all or part of the Shivwits Water

Right, to defray the costs of any water development project in which the

Shivwits Band is participating, or to undertake any other activity that may be

necessary or desired for implementation of the St. George Water Reuse Project

Agreement, the Santa Clara Project Agreement, the Settlement Agreement, or

for economic development on the Shivwits Reservation.

(2) $15,000,000, which shall be made available by the Secretary and the

Shivwits Band to St. George for the St. George Water Reuse Project, in accordance with the St. George Water Reuse Project Agreement.

(c) SHARE OF CERTAIN COSTS.—There is authorized to be appropriated to the

Trust Fund in fiscal year 2001, 2002, or 2003 a total of $1,000,000 to assist with

the Shivwits Band’s proportionate share of operation, maintenance, repair, and replacement costs of the Santa Clara Project as provided for in the Santa Clara

Project Agreement.

(d) USE OF THE TRUST FUND.—Except for the $15,000,000 appropriated pursuant

to subsection (b)(2), all Trust Fund principal and income accruing thereon may be
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used by the Shivwits Band for the purposes described in subsection (b)(1). The

Shivwits Band, with the approval of the Secretary, may withdraw the Trust Fund

and deposit it in a mutually agreed upon private financial institution. That withdrawal shall be made pursuant to the American Indian Trust Fund Management

Reform Act of 1994 (25 U.S.C. 4001 et seq.). If the Shivwits Band exercises its right

pursuant to this subsection to withdraw the Trust Fund and deposit it in a private

financial institution, except as provided in the withdrawal plan, neither the Secretary nor the Secretary of the Treasury shall retain any oversight over or liability

for the accounting, disbursement, or investment of the funds.

(e) NO PER CAPITA PAYMENTS.—No part of the principal of the Trust Fund, or of

the income accruing thereon, or of any revenue generated from any water use subcontract, shall be distributed to any member of the Shivwits Band on a per capita

basis.

(f) LIMITATION.—The moneys authorized to be appropriated under subsections (b)

and (c) shall not be available for expenditure or withdrawal by the Shivwits Band

until the requirements of section 14 have been met so that the decree has become

final and the waivers and releases executed pursuant to section 9(b) have become

effective. Once the settlement becomes effective pursuant to the terms of section 14

of this Act, the assets of the Trust Fund belong to the Shivwits Band and are not

returnable to the United States Government.

SEC. 12. ENVIRONMENTAL COMPLIANCE.

(a) NATIONAL ENVIRONMENTAL POLICY ACT.—Execution by the Secretary of the St.

George Water Reuse Project Agreement, the Santa Clara Project Agreement, or the

Settlement Agreement shall not constitute major Federal action under the National

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

(b) OTHER REQUIREMENTS.—The Secretary shall comply with all other aspects of

the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), and other

applicable environmental laws in implementing the terms of the St. George Water

Reuse Agreement, the Santa Clara Project Agreement, the Settlement Agreement,

and this Act.

SEC. 13. MISCELLANEOUS PROVISIONS.

(a) OTHER INDIAN TRIBES.—Nothing in the Settlement Agreement or this Act shall

be construed in any way to quantify or otherwise adversely affect the land and

water rights, claims, or entitlements to water of any Indian tribe, pueblo, or community, other than the Shivwits Band and the Paiute Indian Tribe of Utah acting on

behalf of the Shivwits Band.

(b) PRECEDENT.—Nothing in this Act shall be construed or interpreted as a precedent for the litigation of reserved water rights or the interpretation or administration of future water settlement Acts.

(c) WAIVER OF SOVEREIGN IMMUNITY.—Except to the extent provided in subsections (a), (b), and (c) of section 208 of the Department of Justice Appropriation

Act, 1953 (43 U.S.C. 666), nothing in this Act may be construed to waive the sovereign immunity of the United States. Furthermore, the submission of any portion

of the Settlement Agreement to the District Court in the Virgin River Adjudication

shall not expand State court jurisdiction or expand in any manner the waiver of sovereign immunity of the United States in section 666 of title 43, United States Code,

or any other provision of Federal law.

(d) APPRAISALS.—Notwithstanding any other law to the contrary, the Secretary is

authorized to approve any right-of-way appraisal which has been completed in accordance with the provisions of the Santa Clara Project Agreement.

SEC. 14. EFFECTIVE DATE.

(a) IN GENERAL.—The authorization contained in section 9(b) of this Act shall become effective as of the date the Secretary causes to be published in the Federal

Register a statement of findings that—

(1) the funds authorized by section 11 (b) and (c) have been appropriated and

deposited into the Trust Fund;

(2) the funds authorized by section 10(c) have been appropriated;

(3) the St. George Water Reuse Project Agreement has been modified to the

extent it is in conflict with this Act and has been executed by all parties thereto;

(4) the Santa Clara Project Agreement has been modified to the extent it is

in conflict with this Act and has been executed by all parties thereto;

(5) the Settlement Agreement has been modified to the extent it is in conflict

with this Act and has been executed by all parties thereto;

(6) the State Engineer of Utah has taken all actions and approved all applications necessary to implement the provisions of the St. George Water Reuse
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Agreement, the Santa Clara Project Agreement, and the Settlement Agreement,

from which no further appeals may be taken; and

(7) the court has entered a judgment and decree confirming the Shivwits

Water Right in the Virgin River Adjudication pursuant to Utah Rule of Civil

Procedure 54(b), that confirms the Shivwits Water Right and is final as to all

parties to the Santa Clara Division of the Virgin River Adjudication and from

which no further appeals may be taken, which the United States and Utah find

is consistent in all material aspects with the Settlement Agreement and with

the proposed judgment and decree agreed to by the parties to the Settlement

Agreement.

(b) DEADLINE.—If the requirements of paragraphs (1) through (7) of subsection (a)

are not completed to allow the Secretary’s statement of findings to be published by

December 31, 2003—

(1) except as provided in section 9(c), this Act shall be of no further force and

effect; and

(2) all unexpended funds appropriated under section 11 (b) and (c), together

with all interest earned on such funds shall revert to the general fund of the

United States Treasury on December 31, 2004.

PURPOSE OF THE BILL

The purpose of H.R. 3291 is to provide for the settlement of the

water rights claims of the Shivwits Band of the Paiute Indian Tribe

of Utah, and for other purposes.

BACKGROUND AND NEED FOR LEGISLATION

On July 21, 1980, the State of Utah initiated a statutory adjudication of water rights within the drainage of the Virgin River, including the Santa Clara River. The United States was joined as a

party in the Virgin River Adjudication and filed a claim on its own

behalf and on behalf of the Shivwits Band of Paiute Indian Tribe

as their trustee. However, due to the time and expense of such adjudication, the parties have entered into agreements to resolve the

water rights claims by construction of two water projects and guaranteeing 4,000 acre-feet of water per year to the Shivwits. These

projects are particularly necessary due to the variability of water

flows in the Santa Clara River.

First, the St. George Water Reuse Project, consisting of water

treatment facilities, a pipeline, and other associated facilities,

would be built to provide reuse water to St. George, Utah, and provide 2,000 acre-feet annually to the Shivwits Band. Construction

cost for the project, amounting to $15 million, would be provided

by the Shivwits Band and the United States pursuant to this legislation.

Second, the Santa Clara Project, a pressurized pipeline, would

pool and deliver water, including 1,900 acre-feet in an average or

above average year to the Shivwits Band. Additionally, the Santa

Clara Project would release instream flow water from the Gunlock

Reservoir for the benefit of the Virgin Spinedace, a fish. Utah, the

United States, the Washington County Water Conservancy District

would each contribute a grant of $750,000 for the construction of

this project. The District will provide any additional funding required for the construction of the project. The United States would

make available to the Shivwits Band $1 million to cover the

Shivwits’ proportionate share of the operation, maintenance repair

and replacement costs of the Project.

Third, the Shivwits would receive the right to 100 acre-feet annually of groundwater produced from wells on the Shivwits Reservation. A $5 million Trust Fund is established for the Shivwits
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for the purposes of using the Shivwits water, defraying other water

development project costs or for economic development on the reservation.

Finally, this legislation authorizes the Secretary of the Interior

to establish a water right and habitat acquisition program in the

Virgin River Basin for the benefit of native plant and animal species, which have been listed, are likely to be listed, or are the subject of a conservation agreement under the Endangered Species

Act. Acquisition of water rights and habitat property must be primarily in the Santa Clara River Basin and secondarily in other

parts of the Virgin River Basin, be from willing sellers and would

be funded by an appropriation of $3 million.

COMMITTEE ACTION

H.R. 3291 was introduced on November 10, 1999, by Congressman James V. Hansen (R–UT). The bill was referred to the Committee on Resources. On April 4, 2000, the Full Committee on Resources held a hearing on the bill. On May 24, 2000, the Full Resources Committee met to consider the bill. Congressman Hansen

offered an amendment in the nature of a substitute which, along

with technical corrections to the bill, did four things. First, it dictated that the requirements of section 14 of the bill be met before

funds are available. Second, it stated that nothing in the bill may

be construed as expanding the waiver of U.S. sovereign immunity

provided for in 43 U.S.C. 666. Third, it established a deadline to

limit the further funding of the project if the requirements of section 14 of the bill is not met. Fourth, it authorized to be appropriated from the Land and Water Conservation Fund in fiscal 2003

a total of $3 million for the water rights and habitat acquisition

program authorized in the bill.

The main objective of these changes is to clarify intent and conform the language to existing statutory law and practice. The

amendment was the result of discussions between the Department

of the Interior, the Shivwits Band of the Paiute Indian Tribe of

Utah, the Department of Justice, the State of Utah, the City of St.

George and the Washington County Water Conservancy District.

The amendment was adopted by voice vote. The bill as amended

was then ordered favorably reported to the House of Representatives by voice vote.

SECTION-BY-SECTION ANALYSIS

Section 1. Short title

The short title of the bill is the Shivwits Band of the Paiute Indian Tribe of Utah Water Rights Settlement Act.

Section 2. Findings

This section provides 11 findings.

Section 3. Purposes

The main purpose of H.R. 3291 is to resolve and settle all water

right claims of the Shivwits Band and the United States for the

benefit of the Shivwits Band on the Santa Clara River system.
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Section 4. Definitions

This section defines 13 terms used in the bill.

Section 5. St. George Water Reuse Project

The St. George Water Reuse Project will consist of water treatment facilities, a pipeline, and associated pumping and delivery facilities owned and operated by City of St. George, Utah. These facilities will divert water from the Water Reclamation Facility near

St. George, Utah, and transport this water for delivery and use by

St. George and Shivwits Band. St. George will make 2,000 acre feet

of water available annually to the Shivwits Band at the eastern

boundary of the Shivwits Reservation and shall be responsible for

the construction, operation and maintenance, repair and replacement of the St. George Water Reuse Project. The Shivwits Band,

and the United States on behalf of the Shivwits, is obligated to pay

$15 million to St. George for the Shivwits proportionate share of

the construction, operation, maintenance, repair and replacement

of the St. George Water Reuse Project.

Section 6. Santa Clara project

The Santa Clara Project pools the water from the water rights

of the St. George Clara Field

Canal Company, the New Santa Clara Field Canal Company, the

Ivins Irrigation Company and the Lower Gunlock Reservoir Corporation and the Shivwits Band. This pooled water is then distributed to the pooling parties. Pursuant to the Santa Clara Project

Agreement, the Shivwits Band will receive 1900 acre feet annually

from the Santa Clara River in an average water year.

All users will take proportionate reductions in below-average

water years. Surface water rights will be supplemented by underground water rights of the parties, including St. George, in belowaverage years.

Section 7. Shivwits water right

The total water right of the Shivwits Band under the settlement

agreements is 4,000 acre-feet per year. The water will be provided

from three projects or sources, which are: 2,000 acre-feet from the

St. George Water Reuse Project; 1,900 acre-feet from the Santa

Clara Project; and 100 acre-feet from wells on the Shivwits reservation.

Section 8. Ratification of agreements

Except to the extent that the St. George Water Reuse Project

Agreement, the Santa Clara Project Agreement, and the Settlement Agreement conflict with the provisions of this bill, this section approves, ratifies and confirms those agreements.

Section 9. Satisfaction of claims

The benefits realized by the Shivwits Band and its members

under the settlement agreements and this bill constitute full and

complete satisfaction of all water rights claims of the Shivwits

Band and its members.

On behalf of the Shivwits Band, and the Paiute Indian Tribe of

Utah acting on behalf of the Shivwits Band, the United States

waives all claims for water rights or injuries to those rights within
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the Shivwits Reservation or lands outside the reservation where

such claims are based on aboriginal occupancy of the Shivwits

Band, that accrued up to and including the effective date determined by section 14 of this bill, that they may have against the

State of Utah, any agency or political subdivision thereof, or any

person, entity, corporation, or municipal corporation.

Section 10. Water rights and habitat acquisition program

Under existing practices, the Santa Clara River below the Gunlock Reservoir is generally dry during the non-irrigation season.

The River is habitat for the Virgin Spinedace. Under this section,

the Secretary of the Interior is authorized to establish a water

rights and habitat acquisition program. This section authorizes to

be appropriated from the Land and Water Conservation Fund in

fiscal years 2003 or thereafter a total of $3 million for the water

rights and habitat acquisition program. These funds are non-lapsing.

Section 11. Shivwits Band Trust Fund

It is established in the Treasury of the United States a fund that

will be known as the Shivwits Band Trust Fund. There is authorized to be appropriated a total of $20 million in the 2001, 2002, and

2003 fiscal years, for this fund. This fund shall be managed in accordance with the American Indian Trust Fund Management Reform Act (25 U.S.C. 4001).

From the Shivwits Band Trust Fund, $15 million shall be made

available by the Secretary and Shivwits Band to St. George for the

St. George Water Reuse Project. The remaining $5 million should

go toward putting to beneficial use the Shivwits water rights or

any water development projects the tribe is participating in, or for

economic development on the Shivwits Reservation.

There is also authorized to be appropriated to the Trust Fund in

fiscal year 2001, 2002, or 2003 a total of $1 million to assist with

the Shivwits Band’s proportionate share of operation, maintenance,

repair, and replacement costs of the Santa Clara Project.

No part of the Shivwits Trust Fund or income accruing thereon

may be distributed to any member of the Shivwits Band on a per

capita basis.

Section 12. Environmental compliance

Execution by the Secretary of the St. George Water Reuse Project

Agreement, the Santa Clara Project Agreement, or the Settlement

Agreement does not constitute major federal action under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

Section 13. Miscellaneous provisions

Nothing in the bill may be construed as waiving or expanding

the waiver of U.S. sovereign immunity as provided for in 43 U.S.C.

666 or as a precedent for the litigation of reserved water rights or

the interpretation or administration of future water settlement

acts. Nothing in this bill or the Settlement Agreement be construed

to affect land and water rights claims of a Indian tribe, pueblo, or

community, other than the Shivwits Band and the Paiute Indian

Tribe of Utah acting on behalf of the Shivwits Band.
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The Secretary of Interior is authorized to approve right-of-way

appraisals completed in accordance with the provisions of the

Santa Clara Project Agreement.

Section 14. Effective date

The authorization contained in section 9(b) of this bill shall become effective once the requirements of section 14 are met. If the

requirements of this section are not met by December 31, 2003, the

authorization contained in section 9(b) of this bill shall not take effect and all unexpended funds appropriated or otherwise generated

under subsections 11(b) and (c), shall revert to the general fund of

the United States Treasury on December 31, 2004.

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII

of the Rules of the House of Representatives, the Committee on Resources’ oversight findings and recommendations are reflected in

the body of this report.

CONSTITUTIONAL AUTHORITY STATEMENT

Article I, section 8 of the Constitution of the United States

grants Congress the authority to enact this bill.

COMPLIANCE WITH HOUSE RULE XIII

1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the Rules of

the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out this bill. However, clause 3(d)(3)(B) of that rule provides

that this requirement does not apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974.

2. Congressional Budget Act. As required by clause 3(c)(2) of rule

XIII of the Rules of the House of Representatives and section

308(a) of the Congressional Budget Act of 1974, this bill does not

contain any new budget authority, spending authority, credit authority, or an increase or decrease in revenues or tax expenditures.

3. Government Reform Oversight Findings. Under clause 3(c)(4)

of rule XIII of the Rules of the House of Representatives, the Committee has received no report of oversight findings and recommendations from the Committee on Government Reform on this

bill.

4. Congressional Budget Office Cost Estimate. Under clause

3(c)(3) of rule XIII of the Rules of the House of Representatives and

section 403 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for this bill from the

Director of the Congressional Budget Office:
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U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, June 15, 2000.

Hon. DON YOUNG,

Chairman, Committee on Resources,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 3291, the Shivwits Band

of the Paiute Indian Tribe of Utah Water Rights Settlement Act.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contact is Lanette Keith (for federal costs) and Majorie Miller (for the impact on state, local, and

tribal governments).

Sincerely,

BARRY B. ANDERSON

(For Dan L. Crippen, Director).

Enclosure.

H.R. 3291—Shivwits Band of the Paiute Indian Tribe of Utah

Water Rights Settlement Act

Summary: H.R. 3291 would provide for the settlement of water

rights claims of the Shivwits Band of the Paiute Indian Tribe,

pending final approval by the tribe and the state of Utah. The bill

would authorize appropriations for the Department of the Interior

(DOI) to implement the agreement, but these funds could not be

spent until the agreement is approved by a Utah court. H.R. 3291

would create the Shivwits Band Trust Fund and would allow the

tribe to spend amounts appropriated to the fund. In addition, the

bill would authorize funding to acquire water rights and wildlife

habitat in the Virgin River Basin.

Based on information from DOI, CBO estimates that implementing H.R. 3291 would cost $24 million over the 2001–2005 period, assuming the appropriation of the authorized amounts. Enacting H.R. 3291 would not affect direct spending or receipts; therefore, pay-as-you-go procedures would not apply. H.R. 3291 contains

no intergovernmental or private-sector mandates as defined in the

Unfunded Mandates Reform Act (UMRA). Any costs resulting from

the settlement agreement would be incurred voluntarily by the

state, local, and tribal government as parties to that agreement.

Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 3291 is shown in the following table. The costs

of this legislation would be discretionary and would fall within

budget function 450 (community and regional development).

By fiscal year, in millions of dollars—

2000 2001 2002 2003 2004 2005

SPENDING SUBJECT TO APPROPRIATION

Authorization level ........................................................................ 0 0 0 24 0 0

Estimated outlays ......................................................................... 0 0 0 22 1 1

Basis of estimate

H.R. 3291 would authorize the appropriation of $24 million over

the 2001–2003 period; however, no funds could be spent until all

requirements in section 14 are satisfied, including approval of the
14

water rights settlement agreement by all parties to the agreement

and by a Utah court. Based on information from the tribe, other

parties to the agreement and DOI, CBO expects that the parties

would approve the settlement during fiscal year 2001. For this estimate, CBO assumes the authorized funds would be appropriated in

2003 because, under the provisions of the bill, no funds would be

available until an appropriation has been provided for the water

rights and habitat acquisition program, which is authorized to commence in 2003.

Shivwits Band Trust Fund.—H.R. 3291 would authorize the appropriation of $21 million to the Shivwits Band Trust Fund over

the 2001–2003 period. This amount includes $15 million for the St.

George Water Reuse Project, $1 million for operation, maintenance

and repair of the Santa Clara Project, and $5 million for the tribe.

After the settlement agreement is approved, funds deposited into

this trust fund would become the tribe’s property. Thus, assuming

that appropriations of $21 million are provided in 2003, outlays of

that amount would be recorded in that year.

Water Rights and Habitat Acquisition Program.—H.R. 3291

would authorize the appropriation of $3 million in 2003 for DOI to

develop a water rights and habitat acquisition program for the purpose of conserving native plant and animal species within the Virgin River Basin. None of these funds could be spent until the settlement agreement is approved. This appropriation would not be

deposited into the trust fund, so spending would occur as the program is implemented over the 2003–2005 period.

Pay-as-you-go considerations: None.

Estimated impact of State, local, and tribal governments: H.R.

3291, contains no intergovernmental mandates as defined in

UMRA. Any costs resulting from the settlement agreement would

be incurred voluntarily by the state, local, and tribal governments

that are parties to that agreement. The tribe has agreed to release

the United States from all claims relating to its water rights in exchange for the benefits to be provided by this bill. The state of

Utah and the affected local governments have agreed to make financial contributions in support of the projects covered by this

agreement

Estimated impact on the private sector: This bill contains no new

private-sector mandates as defined in UMRA.

Estimate prepared by: Federal costs: Lanette Keith; impact on

State, local, and tribal governments: Marjorie Miller; impact on the

private sector: Natalie Tawil.

Estimate approved by: Robert A. Sunshine, Assistant Director for

Budget Analysis.

COMPLIANCE WITH PUBLIC LAW 104–4

This bill contains no unfunded mandates.

CHANGES IN EXISTING LAW

If enacted, this bill would make no changes in existing law.

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