89–010 

Calendar No. 260 

111TH CONGRESS REPORT " ! SENATE 2d Session 111–119 

TO RESOLVE WATER RIGHTS CLAIMS OF THE WHITE 

MOUNTAIN APACHE TRIBE IN THE STATE OF ARIZONA, 

AND FOR OTHER PURPOSES 

JANUARY 21, 2010.—Ordered to be printed 

Mr. DORGAN, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany S. 313] 

The Committee on Indian Affairs, to which was referred the bill 

(S. 313) to resolve water rights claims of the White Mountain 

Apache Tribe in the State of Arizona, and for other purposes, having considered the same, reports favorably thereon with an amendment and recommends that the bill (as amended) do pass. 

PURPOSE

The purpose of S. 313 is to authorize and confirm the White 

Mountain Apache Tribe’s water settlement and authorize funding 

for a drinking water project on the Tribe’s reservation in Arizona. 

BACKGROUND

The Tribe is located on the Fort Apache Indian Reservation, 

which was established on November 9, 1871. The Reservation is 

over 2,600 square miles covering some 1.66 million acres in the 

White Mountains of east central Arizona. 

The headwaters and tributaries of the Salt River originate on the 

Reservation and are the primary source of water for the Tribe and 

the downstream cities of Avondale, Chandler, Gilbert, Glendale, 

Mesa, Peoria, Phoenix, Scottsdale, and Tempe, the Salt River 


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1The non-federal parties to the Settlement include the State of Arizona; the Tribe; the Salt 

River Project Agricultural Improvement and Power District; the Salt River Valley Water Users’ 

Association; the Roosevelt Water Conservation District; the Arizona Water Company; the cities 

of Phoenix, Mesa, Tempe, Chandler, Glendale, Scottsdale, Avondale, Peoria and Show Low; the 

Town of Gilbert; the Buckeye Irrigation Company; the Buckeye Water Conservation and Drainage District; and the Central Arizona Water Conservation District. 

Project, the Roosevelt Water Conservation District, and other parties to the Gila River and Little Colorado River Adjudication proceedings. Because the Salt River system is a major source of water 

for the Phoenix metropolitan area, any claim against the system 

creates uncertainty among many of Arizona’s water users. 

Claims filed on behalf of the White Mountain Apache Tribe 

On behalf of the Tribe, the United States, in its capacity as trustee of the Tribe’s reserved water rights, filed claims to approximately 180,000 acre-feet of water annually from the Salt River system in the pending Gila River Adjudication in Arizona. The United 

States also filed claims to water on behalf of the Tribe in the Little 

Colorado River Adjudication, which is also pending in Arizona. 

The Settlement and major provisions of S. 313, as amended 

After years of negotiation, the Tribe and the non-federal parties 1

entered into a Quantification Agreement (the ‘‘Agreement’’ or ‘‘Settlement’’), which would, among other things, resolve the Tribe’s 

claims to water by allocating to it a total annual depletion amount 

of 52,000 acre-feet per year and a maximum annual diversion 

amount of approximately 99,000 acre-feet per year through a combination of surface water, underground water, and Central Arizona 

Project (CAP) water sources. The Tribe and all of the non-federal 

parties have approved the Settlement. 

A significant portion of the CAP water allocated to the Tribe will 

come from the pool of CAP water set aside in the Arizona Water 

Settlements Act (P.L. 108–451, Sec. 104(a)(1)(A)(iii)) for future Arizona Indian water settlements. Under the Settlement, the Tribe 

may, with the approval of the Secretary of the Interior, enter into 

leases within Maricopa, Pinal, Pima, and Yavapai counties for the 

temporary (not to exceed 100 years) delivery of any portion of the 

Tribe’s CAP water. 

The centerpiece of S. 313 and the Agreement is the authorization 

of construction and funding for a drinking water project on the 

Tribe’s Reservation—the Miner Flat Project. The Project will consist of a dam, reservoir, treatment plant, and water delivery pipeline. The Project will serve the Reservation’s 15,000 residents and 

accommodate a growing population. 

Currently, a small well field serves the drinking water needs of 

the majority of the residents on the Tribe’s Reservation, and production from the wells has declined significantly over the last few 

years. As a result, the Tribe has experienced chronic drinking 

water shortages. The Tribe is constructing a small diversion project 

on the North Fork of the White River on the Reservation this year. 

The Tribe indicates that when the project is completed it will replace most of the lost production from the existing well field, but 

will not produce enough water to meet the current peak demand 

of the Tribe’s population. The Project would provide a long-term solution for the Tribe’s drinking water shortages. 


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S. 313 and the Settlement also provide the Tribe opportunities 

to utilize its water quantified in the Agreement. S. 313 authorizes approximately $292 million in federal appro- priations. Of this, $126 million is authorized to construct the Miner 

Flat Project (Project). Some funding for the Project may be available from sources other than appropriations. In addition to appropriations, the Secretary of the Interior may access other sources of 

funding available for Indian water settlements. The remaining 

$166 million in the bill’s federal appropriations are authorized for 

(1) a $50 million operation, maintenance, and replacement fund; 

and (2) a fund for water related resource management and economic development opportunities on the Reservation. For the settlement to become legally binding on all the parties, $126,193,000 

must be appropriated by October 31, 2015. No other appropriations 

are required for the settlement to become enforceable. Finally, in 

addition to federal appropriations, non-federal parties will contribute an additional $152 million in financial and in-kind contributions. 

Tribe’s claims against the U.S. that would be waived under S. 313 

The Tribe would provide waivers and releases of its water rights 

claims in exchange for the water rights quantified in S. 313 and 

the Agreement; the funds for the Miner Flat Project and for its operation, maintenance, and replacement; and rehabilitation of existing irrigation systems. 

The Tribe claims that the United States has breached its trust 

obligations to the Tribe by suppressing, neglecting, and opposing 

the reserved water rights of the Tribe. Specifically, the Tribe claims 

that the United States breached its trust obligations to the Tribe 

by intentionally destroying thousands of trees and other riparian 

vegetation along the Tribe’s streams to increase water runoff to the 

Salt River and Theodore Roosevelt Reservoir. The Tribe also claims 

that the United States cleared thousands of acres of juniper trees 

and doubled the annual allowable cut of its commercial forests in 

several reservation watersheds for the purpose of increasing runoff. 

According to the Tribe, the ecosystem damage from the United 

States’ actions is still negatively affecting the Reservation. Under 

the Settlement, the Tribe would waive these claims against the 

United States. 

The Tribe would also waive its other breach of trust claims 

against the United States for, among others things (1) historic failure to maintain approximately 90 miles of irrigation ditches on the 

Reservation; (2) historic failure to meet the trust obligation to provide a safe drinking water supply for the Tribe; (3) suppression of 

agricultural irrigation; (4) failure of the Secretary to reserve the 

Tribe’s water from contracts issued downstream for storage in Roosevelt Dam; (5) failure of the Secretary to set aside New Conservation Storage for the Tribe in the 1995–96 enlargement of Roosevelt 

Reservoir; and (6) failure of the United States to assert the reserved water rights of the Tribe in the Environmental Impact 

Statement for the reallocation of CAP water. 

The Tribe would also waive its claims existing prior to the enforcement date of this legislation against the United States for any 

claim for allowing trespass, use, and occupancy on the Tribe’s Reservation in, on, or along the Black River. The Tribe, however, reVerDate Nov 24 2008 23:36 Jan 22, 2010 Jkt 089010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR119.XXX SR119

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tains past, present, and future claims against Freeport McMoRan 

Copper & Gold, Inc., formerly known as Phelps Dodge, in S. 313 

for trespass, use, and occupancy of the Reservation in, on, or along 

the Black River (‘‘Black River Claims’’). The legislation does not affect the ability of the Tribe or Freeport McMoRan Copper & Gold, 

Inc. to assert any claims or defenses against each other regarding 

the Black River Claims. 

LEGISLATIVE HISTORY

In the 110th Congress, Senator Kyl introduced S. 3473, the 

White Mountain Apache Tribe Water Rights Quantification Act of 

2008, and the bill was referred to the Committee on Indian Affairs. 

No action was taken on S. 3473. 

In the 111th Congress, a similar bill, S. 313, was introduced on 

January 26, 2009 by Senator Kyl. Senator McCain is a cosponsor. 

The bill was referred to the Committee on Indian Affairs. On April 

2, 2009, the Committee held a hearing on S. 313. On September 

10, 2009, at an open business meeting, the Committee considered 

S. 313, and a substitute amendment was offered by Senator 

Barrasso on behalf of Senator Kyl. The Committee approved the 

substitute amendment and ordered the bill to be favorably reported, with an amendment, to the Senate. 

SUMMARY OF THE SUBSTITUTE AMENDMENT

During an open business meeting on September 10, 2009, the 

Committee considered and approved an amendment in the nature 

of a substitute to S. 313. Like the original bill, the amendment in 

the nature of the substitute (1) approves, ratifies, and confirms the 

Settlement resolving the Tribe’s water-related claims in the Gila 

River and Little Colorado River Adjudications; (2) resolves the 

Tribe’s claims for money damages against the United States; (3) 

authorizes the Tribe to execute certain waivers of claims against 

the United States and other parties; and (4) authorizes funding for 

the Project and water-related economic development projects benefitting the Tribe. 

The substitute amendment, in large part, responds to concerns 

raised by the Administration. It also makes a number of technical 

changes to the bill. 

Section 7, authorizing the water system, is amended in several 

places. In particular, the amendment addresses the Administration’s concern that the legislation directs the Secretary to hold the 

Project in trust for the benefit of the Tribe in perpetuity. Instead, 

the amendment authorizes the United States to convey title to the 

Project to the Tribe if certain conditions are met—one condition, 

contained in section 12(b)(3)(B), is that $50 million is appropriated 

for the operation, maintenance, and replacement of the Miner Flat 

Project. 

Section 9, including waivers and releases of claims, amends Section 12 of the introduced bill in several places. As introduced, S. 

313 requires that a number of conditions be met by October 31, 

2013, in order for the bill’s waiver provisions to take effect. One of 

the conditions is that approximately $126 million be deposited in 

a newly created fund for the construction of the Miner Flat Project. 

In order to allow for more time to secure appropriations for the 


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project, the amendment extends the enforceability deadline by two 

years to 2015. 

In addition, at the Administration’s request, the substitute 

amendment (1) adds the retention of claims language included in 

the underlying Quantification Agreement; and (2) authorizes a 

waiver of the Tribe’s trespass claims against the United States relating to the construction of an existing diversion dam on the Black 

River. Section 12, authorizing appropriations, amends section 16 of 

the introduced bill in several places. In order to resolve a potential 

cost issue, the substitute amendment modifies the funding mechanism for the planning, engineering, design, environmental compliance, and construction of the Miner Flat Project. 

One of the funding mechanisms modified by the substitute 

amendment relates to the Emergency Fund for Indian Safety and 

Health (‘‘Emergency Fund’’) that was established by Title 6 of Public Law 110–293, 25 U.S.C. 443c. In the introduced bill, up to $100 

million of the Emergency Fund was authorized to be transferred to 

the White Mountain Apache Tribe Water Rights Settlement Account if the Secretary determined that annual appropriations were 

not adequate to complete the Miner Flat Project by the settlement 

enforceability date. The substitute amendment would require that 

up to $50 million be transferred from the Emergency Fund to the 

White Mountain Apache Water Rights Settlement Subaccount not 

later than 90 days after the date of enactment of the Act. The substitute amendment also provides that a separate amount, up to $50 

million, may be transferred from the Emergency Fund to the White 

Mountain Apache Tribe Water Rights Settlement Subaccount if the 

Secretary determines that annual appropriations will not be sufficient to complete required actions before the settlement enforceability deadline. 

While it is the intent of the Committee and bill sponsor that the 

funding mechanisms in the substitute amendment only apply to 

the water settlement portion of the Emergency Fund, the Committee notes that the law governing the Emergency Fund requires 

that the funds be spent according to an Emergency Plan developed 

jointly by the Attorney General, the Secretary of the Interior, and 

the Secretary of Health and Human Services. The Committee expects that an Emergency Plan should be completed prior to any 

funds in the Emergency Fund being distributed. Further, there is 

no intent that the provisions of the substitute amendment to S. 313 

authorize transfers of funds from the amounts set aside for Indian 

health and public safety pursuant to section 601(f) of Title 6 of 

Public Law 110–293, 25 U.S.C. 443c(f). 

Without increasing the cost of the bill, section 12 of the substitute amendment also includes an authorization for any cost overruns of the Project up to $25 million. If there are any cost overruns, a corresponding amount would be deducted from the other 

appropriations authorized in the legislation, resulting in no net increase cost to the bill. 

SECTION-BY-SECTION ANALYSIS OF S. 313 (SUBSTITUTE AMENDMENT) 

Section 1. Short title 

Section 1 provides the short title of the bill as the ‘‘White Mountain Apache Tribe Water Rights Quantification Act of 2009.’’ 


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Section 2. Findings and purpose 

Section 2(a) provides that the White Mountain Apache Tribe, the 

State of Arizona, and the parties to the Quantification Agreement 

have agreed to permanently quantify the water rights of the Tribe 

and settle the Tribe’s pending claims in the Gila River and Little 

Colorado River Adjudications in Arizona. It also provides that it is 

federal policy to settle Indian water rights claims without lengthy 

and costly litigation. 

Section 2(b) states that the bill’s purposes are to: (1) Authorize, 

ratify, and confirm the Agreement as defined in the legislation; (2) 

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

authorize the appropriations necessary for the United States to 

meet its obligations under the Agreement; and (4) permanently resolve certain damage claims and all water rights claims of the 

Tribe. 

Section 3. Definitions 

This section defines important terms in S. 313. 

Section 4. Approval of the agreement 

This section authorizes, ratifies, and confirms the Agreement. It 

also requires the Secretary in implementing the Agreement to comply with the National Environmental Policy Act, the Endangered 

Species Act, and all other applicable federal environmental laws. 

Section 5. Tribal water rights 

Section 5(a) provides that the Secretary shall hold the Tribe’s 

water rights in trust and that they cannot be lost by forfeiture or 

abandonment. 

Sections 5(b), (c), and (d) describe the reallocation of and costs 

associated with CAP water allocated to the Tribe under the Agreement. 

Section 5(e) requires the Tribe to enact a tribal water code to 

govern its water rights. 

Section 6. Contracts 

Section 6 (a) directs the Secretary to enter into the contract as 

defined in the legislation to provide, among other things, that the 

Tribe may enter into contracts or options to lease, contracts to exchange, or options to exchange tribal CAP water in four counties 

within the State of Arizona. 

Section 6(b) specifies the requirements of the contract. 

Section 6(c) ratifies, authorizes, and confirms the contract. 

Section 6(d) directs the Secretary to execute the contract. 

Section 6(e) describes the fees and charges applicable to tribal 

CAP water. 

Section 6(f) provides that no tribal CAP water may be leased, exchanged, forborne or otherwise transferred by the Tribe outside of 

the State of Arizona. 

Section 6(g) ratifies, confirms, and authorizes the leases of tribal 

CAP water attached as exhibits to the Agreement. 


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Section 7. Authorization of rural water system 

Sections 7(a) through (d) authorize the planning, design, and construction of the Miner Flat Project and describe its components, 

service area, and construction requirements. 

Section 7(e) provides that the Secretary is authorized to convey 

title to the Project to the Tribe after publication in the Federal 

Register of a statement of findings providing that the conditions 

specified in this subsection have been satisfied. 

Section 7(g) discusses the applicability of the Indian Self-Determination and Education and Assistance Act (25 U.S.C. 450, et seq.) 

and directs any contracts entered into under this subsection to include the necessary terms to ensure the appropriate stewardship of 

federal funds. 

Section 7(h) requires that the Tribe provide at no cost to the Secretary all land that the Secretary deems necessary for the Project. 

Section 8. Satisfaction of claims 

Section 8(a) provides that the benefits to the Tribe and its members under the bill are in full satisfaction of the Tribe’s and its 

members’ claims for water rights and injuries to water rights. 

Section 8(b) provides that the Agreement’s maximum annual diversion amounts and maximum annual depletion amounts apply to 

uses of water on any lands outside the Reservation subsequently 

determined to be part of the Reservation and to uses of water on 

any fee lands within the Reservation put into trust and made part 

of the Reservation. 

Section 8(c) provides that the Act is not intended to recognize or 

establish any individual right to water. 

Section 9. Waiver and release of claims 

Section 9(a) authorizes the United States to execute certain waivers of claims in either its capacity as trustee for the Tribe and its 

members or in its own right. It also authorizes the Tribe to execute 

waivers in its own capacity and for its members. 

Section 9(b) reserves certain rights of and retains certain claims 

by the Tribe on its own behalf and its members, and the United 

States as trustee for the Tribe and its members, or in its own right. 

Section 9(c) establishes the conditions and timing under which 

the waivers are effective. 

Section 9(d) provides that the enforceability date of the Settlement will be the date that the Secretary publishes a statement of 

findings in the Federal Register concerning a number of listed conditions. Section 9(d) also provides that, if the Secretary has not 

published these findings by October 31, 2015, then section 9 providing waivers and releases of claims will not become effective. It 

also establishes the extent of the water rights available for use on 

land held in trust for the Tribe and its members. 

Section 9(e) provides that there is no effect on the right of the 

United States to take certain actions relating to human health, 

safety, or the environment. 

Section 9(f) provides that except as specified in the legislation, 

there is no effect on rights to water for land outside the Reservation boundaries or off-reservation trust land. 


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Section 9(g) provides that entitlements to water are to be satisfied from the water resources set forth in the Agreement and the 

legislation. 

Section 9(h) sets forth certain prohibited objections of the Tribe 

and the United States as trustee for the Tribe. 

Section 10. White Mountain Apache Tribe Water Rights Settlement 

Subaccount 

Section 10(a) establishes the White Mountain Apache Tribe 

Water Rights Settlement Subaccount within the Lower Colorado 

River Basin Development Fund. The subaccount consists of the 

amounts appropriated to the subaccount pursuant subsections (a) 

and (d) of Section 12, and other amounts as are available, including 

$2 million from the State of Arizona as provided in subparagraph 

13.3 of the White Mountain Apache Tribe Water Rights Quantification Agreement dated January 13, 2009. 

Section 10(b) establishes the conditions for expenditures and 

withdrawals of all or part of the White Mountain Apache Tribe 

Water Rights Settlement Subaccount, enforcement of those conditions, limitation on the liability of federal officials, requirements for 

an expenditure plan by the Tribe, and requirements for annual 

tribal reporting. 

Section 10(c) specifies that the White Mountain Apache Tribe 

Water Rights Settlement Subaccount is not to be distributed on a 

per capita basis. 

Section 10(d) establishes that amounts in the White Mountain 

Apache Tribe Water Rights Settlement Subaccount are not to be 

made available until the enforceability date. 

Section 11. Miscellaneous provisions 

Section 11(a) waives the sovereign immunity of the United States 

and the Tribe for certain specified civil actions under the Agreement and the Act. 

Section 11(b) provides that this Act does not quantify or otherwise affect the water rights or claims of any other Indian tribe 

other than the Tribe. 

Section 11(c) provides a limitation on liability of the United 

States and directs the Tribe to indemnify the United States for 

stated purposes. 

Section 11(d) provides that the Reclamation Reform Act of 1982 

(43 U.S.C. 390aa et seq.) does not apply in specified circumstances. 

Section 11(e) transfers and restores to the Tribe and the San 

Carlos Apache Tribe certain specified portions of named secretarial 

power site reserves located on the Fort Apache Indian Reservation 

and the San Carlos Apache Reservation, respectively. 

Section 11(f) provides that the lease or exchange of tribal CAP 

water shall not affect any future allocation or reallocation of CAP 

water by the Secretary. 

Section 11(g) provides that, except with respect to certain restored lands and off-Reservation trust land acquired prior to January 1, 2008, the Tribe may only obtain additional lands taken into 

trust by the United States through an Act of Congress. It further 

provides that after-acquired trust lands outside the Reservation 

shall not include federal reserved water rights and that certain restored lands shall have water rights pursuant to Section 8(b). 


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Section 11(h) amends Section 3(b)(2) of the White Mountain 

Apache Tribe Rural Water System Loan Authorization Act (Public 

Law 110–390; 122 Stat. 4191) to extend the loan repayment commencement date from January 1, 2013 to January 1, 2016 in order 

to coincide with the Act’s enforceability date. 

Section 12. Authorization of appropriations 

Section 12(a) authorizes appropriations of $126,193,000 for White 

Mountain Apache Tribe Rural Water System planning, engineering, design, environmental compliance, and construction including 

Bureau oversight activities. 

Section 12(b) establishes within the Treasury the White Mountain Apache Tribe Settlement Fund, authorizes for deposit an appropriation of $113,500,000, and prescribes the uses thereof. It also 

establishes within the Treasury the White Mountain Apache Tribe 

Maintenance Fund, authorizes for deposit an appropriation of 

$50,000,000, and prescribes the uses thereof. It further directs the 

Secretary to manage and invest the funds and establishes the 

availability date and conditions for expenditures and withdrawals. 

Section 12(c) provides for adjustments to the appropriated 

amounts in Subsections 12(a) and (b) based upon certain cost indices. 

Section 12(d) authorizes a total transfer of up to $100,000,000 

from the Emergency Fund for Indian Safety and Health to the 

White Mountain Apache Tribe Water Rights Settlement Subaccount. The $100,000,000 total is the result of two potential transfers. First, if funding is available in the Emergency Fund for Indian Safety and Health account within 90 days from the date of enactment of this bill, the Secretary is required to transfer up to 

$50,000,000 from the Emergency Fund to the White Mountain 

Apache Tribe Water Rights Settlement Subaccount. Second, beginning on January 1, 2012, if the Secretary determines that the enforceability date set out in the bill is not going to be met because 

the amounts authorized under section 9(a) have not been appropriated, a subsequent transfer of up to $50,000,000 from the Emergency Fund is authorized. 

Section 12(e) authorizes an appropriation of $2,500,000 for operation, maintenance, and replacement costs of the White Mountain 

Apache Tribe Rural Water System and provides its availability 

shall continue until satisfaction of the conditions in Subsection 

12(g). It further authorizes use of the White Mountain Apache 

Tribe Maintenance Fund beginning January 1, 2021 for operation, 

maintenance, and replacement costs of the White Mountain Apache 

Tribe Rural Water System. 

Section 12(f) authorizes an appropriation of up to $25,000,000 for 

WMAT Rural Water System cost overruns. If there are any cost 

overruns, a corresponding amount would be deducted from the appropriations authorized in 12(b)(2)(B) of the legislation, resulting in 

no net increase cost to the bill. 

Section 12(g) provides conditions for expenditures and withdrawals of appropriated amounts deposited in the White Mountain 

Apache Tribe Maintenance Fund. 


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Section 13. Antideficiency 

Section 13 limits the liability of the United States for failure to 

carry out obligations or activities required by the Act. 

Section 14. Repeal on failure of enforceability date 

Section 14 repeals S. 313 if the Secretary does not publish the 

statement of findings under Subsection 9(d) by October 31, 2015 effective beginning on November 1, 2015 and provides for return to 

the Treasury of amounts appropriated under subsections (a), (b), 

(d), and (e) of section 12 along with any interest. It further provides 

for return of other amounts deposited in the White Mountain 

Apache Tribe Water Settlement Subaccount along with any interest 

to the respective sources. 

Section 15. Compliance with environmental laws 

Section 15 provides that the Secretary, in carrying out the Act, 

must comply with applicable federal environmental laws and regulations. 

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

In an open business meeting on September 10, 2009, the Committee on Indian Affairs, by voice vote, adopted S. 313 with an 

amendment in the nature of a substitute and ordered the bill reported to the Senate, with the recommendation that the Senate do 

pass S. 313 as reported. 

COST AND BUDGETARY CONSIDERATIONS

S. 313—White Mountain Apache Tribe Water Rights Quantification 

Act of 2009 

Summary: S. 313 would approve and ratify a settlement agreement between the White Mountain Apache Tribe and the state of 

Arizona. The agreement would resolve tribal claims to water rights 

in the state. As part of that agreement, the bill would authorize the 

appropriation of funds to construct a rural water system to deliver 

water to tribal lands. The bill also would establish two trust funds 

for the tribe to protect and restore tribal lakes and forests, conduct 

certain economic development projects, and operate and maintain 

the rural water system. Finally, the bill would authorize appropriations for the Department of the Interior (DOI) to operate and maintain the water system until it is conveyed to the tribe. 

Assuming appropriation of the necessary amounts, CBO estimates that implementing S. 313 would increase discretionary 

spending by $134 million over the 2010–2019 period and $66 million after 2019. CBO also estimates that enacting S. 313 would increase direct spending by $125 million over the 2010–2019 period 

and $22 million after 2019. Enacting the legislation would not affect revenues. 

S. 313 contains intergovernmental mandates as defined in the 

Unfunded Mandates Reform Act (UMRA) because it would require 

the tribe to enact a tribal water code and prohibit it from objecting 

to the drilling or use of some wells. CBO estimates that the cost 

of complying with those mandates would be small and far below 


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the threshold established in UMRA ($69 million in 2009, adjusted 

annually for inflation). 

S. 313 contains no private-sector mandates as defined in UMRA. 

Estimated cost to the Federal Government: The estimated budgetary impact of S. 313 is shown in the following table. The costs 

of this legislation fall within budget functions 300 (natural resources and environment) and 450 (community and regional development). 


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By fiscal year, in millions of dollars— 

2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2010– 2014 2010– 2019 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 1

Settlement Fund: 

Estimated Authorization Level ....................................................................................... 0 0 0 0 0 0 132 0 0 0 0 132 Estimated Outlays ......................................................................................................... 0 0 0 0 0 0 132 0 0 0 0 132 

DOI Operation & Maintenance: 

Estimated Authorization Level ....................................................................................... 0 0 0 0 0 0 * * * * 0 2 Estimated Outlays ......................................................................................................... 0 0 0 0 0 0 * * * * 0 2 Total Changes: 

Estimated Authorization Level .............................................................................. 0 0 0 0 0 0 132 * * * 0 134 Estimated Outlays ................................................................................................ 0 0 0 0 0 0 132 * * * 0 134 

CHANGES IN DIRECT SPENDING 

Rural Water System: 2

Estimated Budget Authority .......................................................................................... 0 0 0 0 0 0 50 40 30 20 0 140 

Estimated Outlays ......................................................................................................... 0 0 0 0 0 0 44 37 25 19 0 125 

1 Excludes amounts authorized to be appropriated for a Tribal Maintenance Fund because CBO expects those amounts would not be needed until 2021. 2 CBO estimates that an additional $22 million would be spent for the water system after 2019. 

Note: DOI = Department of the Interior; * = less than $500,000. 

Amounts may not sum to totals because of rounding. 


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Basis of estimate: For this estimate, CBO assumes that S. 313 

will be enacted by the end of calendar year 2010 and that the necessary amounts will be appropriated when the settlement becomes 

effective. The enforcement of the settlement agreement depends on 

the completion of a number of actions by federal, state, local, and 

tribal entities. CBO expects that those actions will be completed 

early in fiscal year 2016. The estimated costs for the authorized 

water projects are based on information from DOI and on historical 

spending patterns for similar activities. 

The White Mountain Apache Tribe and several other parties 

have signed a settlement agreement resolving a water-rights dispute in northeast Arizona. The United States would become a party 

to that agreement upon enactment of S. 313, provided that certain 

other conditions are met. Among those conditions, the Secretary of 

the Interior would have to publish a statement of findings in the 

Federal Register indicating that all parties have executed the 

agreement; the U.S. district court would have to issue a decree concerning the agreement; sufficient funds to construct a rural water 

system, which CBO estimates would cost $147 million, would have 

to be deposited into the White Mountain Apache Tribe Water 

Rights Settlement Subaccount; and Arizona would have to appropriate $2 million for the construction of the rural water system. 

Should the Secretary not publish the required statement of findings by October 31, 2015, verifying that all conditions necessary to 

execute the agreement have been met, the agreement would not 

take effect, and no federal funds could be spent after that date. 

Spending subject to appropriation 

S. 313 would authorize the appropriation of funds for a variety 

of activities to benefit the White Mountain Apache Tribe. The bill 

would authorize appropriations to construct a rural water system 

and to protect and restore tribal lakes and forests, conduct certain 

economic development projects, and operate and maintain the rural 

water system. Assuming appropriation of the necessary amounts, 

CBO estimates that implementing the settlement agreement would 

increase discretionary spending by $134 million over the 2010– 

2019 period and $66 million after 2019. 

Most of the amounts authorized to be appropriated by S. 313 

would be allowed to accrue interest on unspent amounts. CBO considers the authority to spend amounts credited as interest on 

unspent balances of appropriated funds to be an increase in direct 

spending as discussed later in this cost estimate. CBO expects that 

funds would be appropriated in the year the settlement becomes effective. If the Congress chose to appropriate funds prior to the year 

in which those funds would be spent, interest would accrue on the 

unspent balances, and the legislation’s estimated impact on direct 

spending would be larger. 

Settlement Fund. The bill would authorize the appropriation of 

about $114 million (plus additional amounts needed because of increases in construction costs) for the White Mountain Apache Tribe 

Settlement Fund. CBO expects that those funds would be appropriated near the beginning of fiscal year 2016—the enforcement 

date of the settlement. Funds would be used to protect and restore 

tribal lakes and forests and for certain economic development 

projects. CBO expects that the entire amount in the fund (including 


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adjustments for inflation) would be recorded as an outlay of $132 

million in 2016. 

Payments to certain tribal trust funds that are held and managed in a fiduciary capacity by the federal government on behalf 

of Indian tribes are treated as payments to a nonfederal entity. As 

a result, CBO expects that the entire amount deposited into the 

settlement fund would be recorded as an outlay in 2016 when the 

funds could be spent by the tribe. Subsequently, any use of such 

funds and interest payments to the tribe would have no effect on 

the federal budget. 

DOI Operation & Maintenance. The bill would authorize the ap- propriation of $2.5 million for DOI to operate and maintain the 

new rural water system until 2021 when funds from the tribal 

maintenance fund could be spent. CBO estimates that operating 

and maintaining the rural water system would cost about $500,000 

a year over the 2016–2020 period. 

Tribal Maintenance Fund. The bill would authorize the appro- priation of $50 million (plus additional amounts needed because of 

increases in construction costs) for the White Mountain Apache 

Tribe Maintenance Fund. CBO expects that those funds would be 

appropriated in fiscal year 2021 when the funds could be spent. 

Funds would be used to operate and maintain the rural water system. CBO expects that the entire amount in the fund (including adjustments for inflation) would be recorded as an outlay of $66 million in 2021. 

Rural Water System Subaccount. The bill would authorize the appropriation of $126 million (plus additional amounts needed because of increases in construction costs) to build a rural water system for the tribe. Following enactment of S. 313, however, the Secretary of the Interior would be authorized to use funds from the 

Future Indian Water Settlement subaccount established under 

Public Law 108–451 and designated to implement Indian water 

settlements in Arizona. CBO expects that amounts in that account 

would be used to execute the settlement. The expenditure of those 

funds would increase direct spending (see Direct Spending section, 

below). 

CBO assumes that the full amount necessary to construct the 

rural water system would be expended from the Future Indian 

Water Settlement Subaccount, resulting in direct spending. If, instead, the Congress appropriated funds for that purpose, it would 

reduce the amounts expended from that subaccount and lower the 

legislation’s estimated impact on direct spending. 

The bill also would require the Secretary of the Treasury to 

transfer such sums as are available—up to $50 million—from the 

Emergency Fund for Indian Safety and Health (established under 

Public Law 110–293) to the rural water system subaccount in 2010. 

Because no funds have been appropriated for the emergency fund, 

CBO expects that no funds would be available for transfer to the 

subaccount in 2010. 

Direct spending 

Future Indian Water Settlement Subaccount. The Arizona Water 

Settlements Act (Public Law 108–451) established this subaccount 

and authorized it to receive up to $250 million of receipts from the 

Lower Colorado River Basin Development Fund, with deposits into 


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the subaccount starting by January 2010. The Colorado River 

Basin Development Fund collects receipts from the users of the 

Central Arizona water project and certain other receipts from the 

sale of electricity generated at federal water projects. Those 

amounts are available for federal agencies to spend without further 

appropriation for a variety of purposes including operating and 

maintaining certain water projects. The Arizona Water Settlements 

Act provided that amounts deposited in the Future Indian Water 

Settlement Subaccount may be used for Indian water rights settlements in Arizona approved by the Congress subsequent to its enactment. 

CBO expects that funds from the Future Indian Water Settlement Subaccount would be used to construct the rural water system on tribal lands. Based on information from DOI, CBO also expects that the tribe would enter into a contract with the federal 

government under the Indian Self-Determination and Education 

Act, which allows Indian tribes to assume responsibilities for programs, functions, and services or activities that would otherwise be 

carried out by the federal government. Because CBO expects the 

tribe to assume responsibility for constructing the water system, 

we expect that construction of that system would begin in 2016 

when the tribe would spend funds designated for that purpose. We 

estimate that constructing the water system would increase direct 

spending by $125 million over the 2016–2019 period and by $22 

million after 2019. 

Interest Earnings on the Settlement Fund and the Maintenance 

Fund. Because we expect that funds would be appropriated for both 

the settlement and maintenance funds during the fiscal years in 

which those funds would be needed, we estimate that accrued interest earnings would total less than $500,000 and spending of that 

interest would have a negligible impact on direct spending. 

Estimated impact on state, local, and tribal governments: S. 313 

would require the White Mountain Apache Tribe to enact policies 

that would govern tribal water rights and would prohibit the tribe 

from objecting to the use of some existing wells or the drilling of 

new wells pursuant to future adjudication proceedings, as detailed 

in the agreement. Those provisions would be intergovernmental 

mandates as defined in UMRA because they would place statutory 

requirements on the tribe that are separate from provisions of the 

agreement. CBO estimates that the cost of complying with those 

mandates would be small and well below the threshold established 

in UMRA ($69 million in 2009, adjusted annually for inflation). 

Furthermore, amounts authorized for the settlement fund could be 

used to develop the tribal water code. 

Other provisions of the bill would benefit the tribe. Any costs to 

the tribe from those provisions would be incurred voluntarily as a 

result of entering into the settlement agreement. 

Estimated impact on the private sector: S. 313 contains no private-sector mandates as defined in UMRA. 

Estimate prepared by: Federal costs: Jeff LaFave; Impact on 

state, local, and tribal governments: Melissa Merrell; Impact on the 

private sector: Marin Randall. 

Estimate approved by: Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 


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REGULATORY IMPACT STATEMENT

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 that would be incurred in carrying out S. 

313. The Committee believes that the regulatory impact of S. 313 

will be minimal. 


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ADDITIONAL VIEWS 

On September 10, 2009, this Committee held a business meeting 

and voted to report S. 313, the White Mountain Apache Tribe 

Water Rights Quantification Act of 2009 (the ‘‘legislation’’ or S. 

313). On November 10, 2009, the Administration, through Commissioner of the Bureau of Reclamation Michael L. Connor, submitted 

a views letter (‘‘Views Letter’’) regarding the legislation as reported 

by the Committee. 

The Views Letter acknowledges that ‘‘[a]s reflected by the 

changes made in the marked up version of S. 313, substantial work 

has been done and refinements made to this settlement by the parties and the Arizona delegation.’’ (Views Letter, p. 2). The Views 

Letter notes with approval a number of changes that the White 

Mountain Apache Tribe (the ‘‘Tribe’’) agreed to make in response 

to the Administration’s concerns relating to, among other things, 

(1) the findings, (2) the definitions, (3) potential cost overruns of 

the Miner Flat Dam and Reservoir (the ‘‘Miner Flat Project’’), (4) 

funding for water development activities, and (5) the contract provisions under the Indian Self Determination Act. The Views Letter 

also emphasizes improvements in areas such as (1) waivers and (2) 

the title transfer of the Miner Flat Project. 

The White Mountain Apache Tribe (the ‘‘Tribe’’) has sent Senator 

Kyl and me a letter that responds to the issues raised by Commissioner Connor in the Views Letter. I would like to submit portions 

of the responses from the Tribe’s letter so that the Report also reflects the Tribe’s responses to the letter: 

* * * * * * * 

1. The Conditions Required for the U.S. to Convey to the 

Tribe the Miner Flat Project Are Reasonable and Appropriate Given the Complex Nature of the Project 

At the Administration’s request, the Tribe agreed to accept title 

to the Miner Flat Project once the following three conditions have 

been met: (1) The project is declared substantially complete; (2) the 

funds authorized to be appropriated for the operation, maintenance, and replacement (‘‘OM&R’’) of the project have been deposited into the WMAT Maintenance Fund; and (3) the Tribe has operated the project for five years. S. 313, Section 7(e)(2). Commissioner 

Connor believes ‘‘this new language is an improvement over the 

original language.’’ (Views Letter, p. 3) 

The Views Letter, however, recommends several changes, none of 

which the Tribe believes are necessary or warranted. For example, 

it recommends reducing the time period that the Tribe is required 

to operate the project from five years to one year. The Miner Flat 

Project is a relatively complex municipal water supply project comprised of a dam, reservoir, water treatment plant, 55 mile long 


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water transmission pipeline, several pumping stations, and connected distribution systems. The Tribe will need to operate the 

project for several years before it has the requisite experience and 

technical expertise to accept title to the project from the United 

States. It is unreasonable for the United States to expect the Tribe 

to have the requisite expertise to operate a Reservation-wide drinking water system in only one year. Finally, the language in the bill 

concerning the title transfer is eminently reasonable since at least 

seven other previously authorized Reclamation Indian drinking 

water projects are held in trust in perpetuity by the United States. 

The Views Letter also recommends language limiting the liability 

of the United States associated with the Miner Flat Project that becomes effective once the conditions for conveyance have been met. 

S. 313, however, already authorizes a waiver of any claims the 

Tribe may have against the United States relating to the OM&R 

of the Miner Flat Project. (The waiver becomes effective once the 

funds authorized under the legislation for the OM&R are deposited 

into the WMAT Maintenance Fund. See S. 313, Section 9(a)(3)(F).) 

As a result, the additional language concerning the United States’ 

liability is unnecessary. 

2. The Waivers Are Appropriate and Consistent With 

Previous Arizona Indian Water Settlements 

Attachment 2 of the Views Letter recommends several unnecessary revisions regarding waiver language. For example, the 

changes suggested to the introductory paragraphs in section 

9(a)(1), (2), and (3) are editorial changes that add nothing to the 

clarity of the waivers. The first suggested change of switching the 

word ‘‘provided’’ to ‘‘specifically retained’’ is unnecessary since the 

referenced subparagraphs make it absolutely clear that the Tribe 

and the United States ‘‘shall retain’’ any claims listed in the subparagraph. The second suggested change of adding the words ‘‘and 

notwithstanding any provision to the contrary in the Agreement’’ 

creates confusion over the effect of the waivers by creating the implication that some provision of the underlying settlement agreement (‘‘Agreement’’) is inconsistent with the language of the waivers. There is no inconsistency between the waivers and the Agreement and neither the Department nor anyone else has identified 

any such inconsistency. If there were an inconsistency, which there 

is not, that should be addressed directly by revising the language 

of the Agreement, not adding some imprecise wording to the waivers. 

The suggested addition of a new subparagraph 9(a)(3)(D) to the 

Tribe’s waiver of claims against the United States is unnecessary 

in light of the language of section 13 of the legislation, which incorporates the federal Antideficiency Act. This proposed wording has 

never been used in any prior Arizona Indian water settlements legislation and the inclusion of the proposed language in this instance 

could be used as an argument to infer that such a claim was not 

waived in the earlier settlements. The inclusion of the antideficiency provision is sufficient protection against such claim under 

federal law. 

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tions set forth in subparagraphs 9(b)(1)(A)(iv), (vii), and (b)(2)(D) 

and (E) would preclude the Tribe from objecting to conflicting 

water claims and claims for injuries to the water rights of the Tribe 

when those claims are asserted by the United States on behalf of 

another tribe. In essence, the United States is creating the dichotomy where the Tribe could object to those claims if they were asserted directly by another tribe, but not when the United States 

was asserting the claims on behalf of another tribe. The suggestion 

of this language deletion raises serious questions whether the 

United States is breaching its trust responsibility to the Tribe and 

not protecting the water rights the Tribe is securing through this 

settlement. The language proposed for deletion has been included 

in several of the prior Arizona Indian water settlement agreements. 

The Tribe opposes the proposed addition of language to subparagraph 9(b)(2)(F) in Attachment 2, as it injects concepts not addressed by the waivers since they are, by their terms, limited to 

waivers and retentions of claims. No such proposed language has 

been included in any prior Arizona water settlement act or agreement. 

The Tribe is opposed to deletion of section 9(b)(2)(F) as suggested 

in Attachment 2 to the Views Letter. The suggested deletion of language essential for the protection of the Tribe’s ground water and 

surface water rights accentuates the conflict of interests that permeates the Department of Interior’s trust obligation to the Tribe. 

The current language was inserted to protect the Tribe’s Northern 

boundary for a distance of 12 miles where it abuts the National 

Forest. Presently, there is no threat to the Tribe’s agreed to water 

use rights. The Tribe has constructed a housing development along 

the northern boundary. Future Tribal plans project up to as many 

as 30,000 homes and commercial development along this 12 mile 

corridor next to national forest lands. If national forest lands along 

this common boundary are traded or sold, or if the Forest Service 

allows pumping of water from national forest land along the Tribe’s 

boundary for non-Indian municipal use, injury could occur to the 

Tribe’s water rights as agreed to in the Agreement. The current 

reservation of rights and retention of claims by the Tribe is necessary to protect the integrity of the Tribe’s water rights in the 

Agreement. 

The addition of the proposed new subparagraph 9(d)(1)(G) is unnecessary since the definition of the Agreement includes all of the 

attached exhibits, which includes the waivers, and subsection 

9(d)(1)(A)(ii) already requires the Tribe and the Secretary to execute the waivers as part of the Agreement. 

The Tribe also objects to the proposed language in section 9(a)(4) 

of Attachment 2 of the Views Letter. The Tribe has a long-standing 

claim (unrelated to water) that approximately 16,000 acres of reservation land along the 1871 Executive Order Northern boundary 

of the Fort Apache Indian Reservation were erroneously surveyed 

outside of the Tribe’s reservation and placed in the National Forest. The language that the Views Letter proposes in the subsection 

entitled, ‘‘Effect On Claims,’’ is not necessary and confuses the 

issue. For example, Attachment 2 uses the term ‘‘concerning title 

to lands outside the current boundary of the reservation.’’ It is the 

Tribe’s position that title to the erroneously surveyed 16,000 acres 


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never changed and remains within the 1871 Executive Order 

boundaries. A survey error cannot change Executive Order boundaries of a reservation. Also, the suggested use of the term ‘‘current 

boundary of the reservation,’’ implies that the boundary has 

changed or that the ‘‘current boundary’’ is an established fact. The 

present language in S. 313, section 3, Definitions, (20) Reservation—appropriately deals with the survey claim by stating that the 

depiction of the reservation on a map attached to the Agreement 

as Exhibit 2.81 does not constitute an admission by the Tribe with 

regard to any dispute between the Tribe and the United States concerning the legal boundary of the reservation. The recently suggested language is unnecessary and raises more issues than it resolves. 

3. The White Mountain Apache Tribe Water Rights 

Settlement Subaccount 

Section 10 establishes the White Mountain Apache Tribe Water 

Rights Settlement Subaccount for the planning, design, and construction of the Miner Flat Project for the Tribe. Funding in the 

Subaccount established under section 10 consists of funds from (1) 

the Lower Colorado River Basin Development Fund; (2) amounts 

appropriated under section 12(a); (3) the Emergency Fund for Indian Safety and Health; and (4) Arizona state funds provided under 

subparagraph 13.3 of the Agreement. 

The Views Letter states that section 10(b)(1)(A) as written allows 

the White Mountain Apache Tribe to ‘‘withdraw any portion of the 

White Mountain Apache Tribe Water Rights Settlement Subaccount.’’ The Views Letter suggests that because of this, the provision is inconsistent with the concept of an Indian Self-Determination and Education Assistance Act (ISDEAA) contract as laid out 

in section 7(g). Accordingly, the Views Letter states the legislation 

should be changed to clarify whether the Secretary is being called 

upon to establish a trust fund to be controlled by the Tribe or to 

accomplish the construction of the Miner Flat Project under the Act 

through an ISDEAA contract. 

The Views Letter excerpt from section 10(b)(1)(A) is incomplete. 

Section 10(b)(1)(A), read in its entirety, unequivocally states that 

the Tribe may only withdraw amounts from the Subaccount on approval of the Secretary and then only pursuant to a ISDEAA agreement with the Secretary under section 7(g). The Subaccount is 

under the control of the Secretary, not the Tribe. Moreover, section 

10(b)(1)(B) states that the Tribe under a section 7(g) ISDEAA 

agreement with the Secretary shall only use amounts from the 

Subaccount for (1) the planning, design, and construction of the 

Miner Flat Project, including sums necessary for the Bureau of 

Reclamation to carry out its oversight of the planning, design and 

construction of the Miner Flat Project, (2) to pay any outstanding 

balance on the loan authorized by the White Mountain Apache 

Tribe Rural Water System Loan Authorization Act (Pub. L. 110– 

390; 122 Stat. 4191), and (3) to carry out required environmental 

compliance activities associated with planning, design, and construction of the Miner Flat Project. 

Section 7(g)(2) referenced in section 10(b)(A) and (B), provides 

that any contract with the Tribe entered pursuant to the ISDEAA 


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‘‘for the purpose of carrying out any provision of this Act shall incorporate such provisions regarding periodic payment of funds, timing for the use of funds, transparency, oversight, reporting, and accountability as the Secretary determines to be necessary (at the 

sole discretion of the Secretary) to ensure appropriate stewardship 

of Federal funds.’’ No stronger language is required in the legislation to place the Subaccount under the control of the Secretary and 

subject to the requirements of the ISDEAA. 

4. The Limited Waiver of Sovereign Immunity Is 

Appropriate 

The Views Letter’s objection to the breadth of the waiver of sovereign immunity in section 11(a) for the enforcement or interpretation of the legislation or the Agreement would leave some of the 

beneficiaries of the legislation and the Agreement without an effective remedy to enforce some of the provisions of the legislation or 

the Agreement if they were violated by the Tribe or the United 

States. There is no risk of additional litigation from this waiver unless either the United States or the Tribe allegedly violates the legislation or the Agreement. In that event, the adversely affected 

beneficiaries of the settlement should be able to seek to enforce the 

bargain approved by Congress and the parties. This waiver is also 

the same as the one included in the Gila River Indian Community 

Water Rights Settlement Act of 2004. 

5. The Amount of Federal Funding for the Settlement Is 

Appropriate and Justified 

The Views Letter questions whether the $113.5 million authorized to be established under section 12 is an appropriate amount 

of federal funding. In that regard, it states that the uses to which 

the $113.5 million fund would be put are not clearly specified because of the latitude given to the Tribe in section 12(b)(2)(C) to 

spend the funds in a number of very different ways. This is contradictory to what the Views Letter states in the first paragraph 

of its ninth point that ‘‘ . . . authorizing funding for water development activities to be carried out directly by the Tribe rather than 

the Secretary is consistent with the goals of self-determination and 

self-sufficiency and will allow the Tribe to prioritize what projects 

to carry out with available funds.’’ 

The WMAT Settlement Fund was negotiated by the Tribe to fund 

water related economic development projects such as, rehabilitation 

of fish hatcheries and existing recreational lakes facilities, repair 

and rehabilitation of existing irrigation systems neglected by the 

Bureau of Indian Affairs, protection, restoration, and economic development of forest and watershed health, and other water related 

economic development projects utilizing the Tribe’s retained water 

rights. The Views Letter is incorrect when it states that the $113.5 

million authorized to be appropriated to the Secretary is not part 

of the consideration for settlement of the Tribe’s reserved water 

rights. The Views Letter is correct that $4.95 million of the $113.5 

million authorized to be appropriated for repairs to the irrigation 

system is contingently tied to a waiver by the Tribe of a breach of 

trust claim against the federal government. The waiver becomes efVerDate Nov 24 2008 01:15 Jan 23, 2010 Jkt 089010 PO 00000 Frm 00034 Fmt 6604 Sfmt 6604 E:\HR\OC\SR119.XXX SR119

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fective upon appropriation of the $4.95 million to rehabilitate the 

irrigation system. The $109 million of remaining funding would be subject to appropriations and is not a condition precedent that must be accomplished in order for the settlement to be final and enforceable, but 

that does not mean that the $109 million is not consideration for 

the settlement. The Tribe is aware that these appropriations are 

not a condition precedent for the settlement to become effective and 

that the United States is not liable to the Tribe if it fails to appropriate these funds under S. 313. The authorization of these appropriations, however, is of great value to the Tribe and is part of the 

consideration of the settlement. 

The Tribe negotiated for the authorizations for appropriations for 

wet water development in exchange and in consideration for relinquishing approximately 25,000 acre-feet of Salt River Water annually. The Salt River Project places a value of $6,000 per acre foot 

for Salt River Water. The Tribe relinquished Salt River Water with 

an 1871 priority date valued at $150 million annually in exchange 

for and in consideration for funding for wet water development. 

The 25,000 acre-feet annually is part of the original 180,000 acrefeet diversion right claimed by the United States in 1985 for the 

Tribe in the general stream adjudications. 

The Views Letter also ignores the Tribe’s agreement to waive its 

breach of trust claims against the federal government, the Tribe’s 

trustee, for its total failure to stop the Phelps Dodge Corp., now 

known as Freeport Copper and Gold Inc., from trespassing on the 

Tribe’s land since 1944. Hundreds of millions of dollars in profit 

were made by Freeport from the construction of a diversion dam 

on the Black River, half of which is on the Tribe’s reservation trust 

land. The trespass is still ongoing. The Tribe waived its very valuable trespass and unjust enrichment claim against the United 

States in exchange for anticipated Administration support of S. 

313, but that support has not been forthcoming as evidenced by the 

Views Letter that questions the amount of the Federal Government’s contribution to the Tribe’s water rights settlement. 

The value of other potential breach of trust claims against the 

United States that will be waived by the Tribe and which are summarized in the Tribe’s Liability Paper dated August 19, 2009, and 

addressed to Pam Williams, Director of the Secretary’s Indian 

Water Rights Office, far exceeds the total federal contribution to 

the Tribe’s water rights settlement, including the cost of the Miner 

Flat Project, which without question, is a trust obligation of United 

States (Views Letter at 1, ‘‘The Reservation’s need for reliable and 

safe drinking water is not in question.’’). 

Mentioned, but not addressed by the Views Letter, is the trust 

fund to subsidize the OM&R costs of the domestic water supply 

system to be constructed under S. 313. The Tribe’s expert consultants have estimated that the OM&R trust obligation would cost the 

United States approximately $2.163 million a year. Once the 

OM&R trust fund in the amount of $50 million is established 

under section 12(b)(3), the United States shall be relieved of paying 

annual OM&R expenses of the trust obligation. Assuming inflation 

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ment of the trust fund by the Tribe, it will take 42 years. Stated 

another way, assuming a 100 year lifetime of the Miner Flat 

Project, the United States is being relieved of $84 million in taxpayer expense if the trust fund cannot achieve more than a 4% rate 

of return with an average annual inflation rate of 3%. 

In sum, the Views Letter is dismissive, without citation or viable 

argument, of the value of the Tribe’s waiver in S. 313 of potential 

water related breach of trust claims against the United States. 

6. The Use of Funds for the WMAT Settlement From the 

Emergency Fund for Indian Safety and Health Is Consistent With the Underlying Authorization 

Under Title VI of the Tom Lantos and Henry J. Hyde United 

States Global Leadership Against HIV/AIDS, Tuberculosis, and 

Malaria Reauthorization Act of 2008 (P.L. 110–293) (the ‘‘Act’’), 

Congress established the Emergency Fund for Indian Safety and 

Health (‘‘Emergency Fund’’) and authorized up to $1 billion over a 

five-year period for water supply projects that are part of congressionally approved water settlements. The Miner Flat Project fits 

squarely within this criterion. Accordingly, S. 313, as reported, authorizes the use of a limited amount of funds from the Emergency 

Fund for the construction of the Miner Flat Project. The Views Letter argues that this provision undermines the language in the Act 

specifying that the funding be allocated in accordance with a Secretarial plan. While the Act requires the Administration to prepare 

this plan by July 30, 2009, it has failed to do so. Therefore, the Administration cannot require that S. 313 comply with a plan it has 

failed to prepare. 

7. The Parties Have Agreed To Extend the Time To Secure 

Federal Funding for the Project 

The Views Letter correctly points out the challenges associated 

with securing the federal funding necessary to implement the settlement by 2015. As a result, the parties have agreed to extend 

that date until 2020. 

JOHN MCCAIN. 


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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 the bill S. 

313 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): 

Subsection (b)(2) of P.L. 110–390, 122 Stat. 4191—TERMS AND

CONDITIONS OF LOAN.—The loan provided under subsection (a) 

shall—(1) be at a rate of interest of 0 percent; and (2) be repaid 

over a term of 25 years, beginning on January 1, ø2013¿ 2016. 

Æ 


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