89–006 

111TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 111–391 

WHITE MOUNTAIN APACHE TRIBE WATER RIGHTS 

QUANTIFICATION ACT OF 2009 

JANUARY 12, 2010.—Committeed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. RAHALL, from the Committee on Natural Resources, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany H.R. 1065] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Natural Resources, to whom was referred the 

bill (H.R. 1065) to resolve water rights claims of the White Mountain Apache Tribe in the State of Arizona, 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 all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘White Mountain Apache Tribe Water Rights Quantification Act of 2009’’. 

SEC. 2. FINDINGS AND PURPOSES. 

(a) FINDINGS.—Congress finds that— 

(1) proceedings to determine the nature and extent of the water rights of the 

White Mountain Apache Tribe, members of the Tribe, the United States, and 

other claimants are pending in— 

(A) the consolidated civil action in the Superior Court of the State of Arizona for the County of Maricopa styled In re the General Adjudication of 

All Rights To Use Water In The Gila River System and Source, W–1 (Salt), 

W–2 (Verde), W–3 (Upper Gila), W–4 (San Pedro); and 

(B) the civil action pending in the Superior Court of the State of Arizona 

for the County of Apache styled In re the General Adjudication of All Rights 

to Use Water in the Little Colorado River System and Source and numbered CIV–6417; 

(2) a final resolution of those proceedings might— 


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(A) take many years; 

(B) entail great expense; and 

(C) prolong uncertainty concerning the availability of water supplies; 

(3) the Tribe, non-Indian communities located near the reservation of the 

Tribe, and other Arizona water users have entered into the WMAT Water 

Rights Quantification Agreement— 

(A) to permanently quantify the water rights of the Tribe, members of the 

Tribe, and the United States in its capacity as trustee for the Tribe and 

members in accordance with the Agreement; and 

(B) to seek funding, in accordance with applicable law, for the implementation of the Agreement; 

(4) it is the policy of the United States to quantify and settle Indian water 

rights claims, and to promote Indian self-determination and economic self-sufficiency, without lengthy and costly litigation, if practicable; 

(5) certainty concerning the extent of the water rights of the Tribe will— 

(A) provide opportunities for economic development of all parties to the 

proceeding; and 

(B) assist the Tribe to achieve self-determination and self-sufficiency; and 

(6) in keeping with the trust responsibility of the United States to Indian 

tribes, and to promote tribal sovereignty and economic self-sufficiency, it is appropriate that the United States implement the Agreement. 

(b) PURPOSES.—The purposes of this Act are— 

(1) to authorize, ratify, and confirm the Agreement; 

(2) to authorize and direct the Secretary to execute the Agreement and carry 

out all obligations of the Secretary under the Agreement; 

(3) to authorize the actions and appropriations necessary for the United 

States to meet the obligations of the United States under the Agreement and 

this Act; and 

(4) to permanently resolve certain damage claims and all water rights claims 

among— 

(A) the Tribe and its members; 

(B) the United States in its capacity as trustee for the Tribe and its members; 

(C) the parties to the Agreement; and 

(D) all other claimants in the proceedings referred to in subsection (a)(1). 

SEC. 3. DEFINITIONS. 

In this Act: 

(1) AGREEMENT.—The ‘‘Agreement’’ means— 

(A) the WMAT Water Rights Quantification Agreement dated January 13, 

2009; and 

(B) any amendment or exhibit (including exhibit amendments) to that 

agreement that are— 

(i) made in accordance with this Act; or 

(ii) otherwise approved by the Secretary. 

(2) BUREAU.—The term ‘‘Bureau’’ means the Bureau of Reclamation. 

(3) CAP.—The term ‘‘CAP’’ means the reclamation project authorized and constructed by the United States in accordance with title III of the Colorado River 

Basin Project Act (43 U.S.C. 1521 et seq.). 

(4) CAP CONTRACTOR.—The term ‘‘CAP contractor’’ means an individual or entity that has entered into a long-term contract (as that term is used in the repayment stipulation) with the United States for delivery of water through the 

CAP system. 

(5) CAP FIXED OM&R CHARGE.—The term ‘‘CAP fixed OM&R charge’’ has the 

meaning given the term in the repayment stipulation. 

(6) CAP M&I PRIORITY WATER.—The term ‘‘CAP M&I priority water’’ means 

the CAP water having a municipal and industrial delivery priority under the 

repayment contract. 

(7) CAP SUBCONTRACTOR.—The term ‘‘CAP subcontractor’’ means an individual or entity that has entered into a long-term subcontract (as that term is 

used in the repayment stipulation) with the United States and the District for 

the delivery of water through the CAP system. 

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

(A) the Mark Wilmer Pumping Plant; 

(B) the Hayden-Rhodes Aqueduct; 

(C) the Fannin-McFarland Aqueduct; 

(D) the Tucson Aqueduct; 

(E) any pumping plant or appurtenant works of a feature described in 

any of subparagraphs (A) through (D); and 


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(F) any extension of, addition to, or replacement for a feature described 

in any of subparagraphs (A) through (E). 

(9) CAP WATER.—The term ‘‘CAP water’’ means ‘‘Project Water’’ (as that term 

is defined in the repayment stipulation). 

(10) CONTRACT.—The term ‘‘Contract’’ means— 

(A) the proposed contract between the Tribe and the United States attached as exhibit 7.1 to the Agreement and numbered 08–XX–30–W0529; 

and 

(B) any amendments to that contract. 

(11) DISTRICT.—The term ‘‘District’’ means the Central Arizona Water Conservation District, a political subdivision of the State that is the contractor 

under the repayment contract. 

(12) ENFORCEABILITY DATE.—The term ‘‘enforceability date’’ means the date 

described in section 9(d)(1). 

(13) INDIAN TRIBE.—The term ‘‘Indian tribe’’ has the meaning given the term 

in section 4 of the Indian Self-Determination and Education Assistance Act (25 

U.S.C. 450b). 

(14) INJURY TO WATER RIGHTS.— 

(A) IN GENERAL.—The term ‘‘injury to water rights’’ means an interference with, diminution of, or deprivation of, a water right under Federal, 

State, or other law. 

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

(i) a change in the groundwater table; and 

(ii) any effect of such a change. 

(C) EXCLUSION.—The term ‘‘injury to water rights’’ does not include any 

injury to water quality. 

(15) LOWER COLORADO RIVER BASIN DEVELOPMENT FUND.—The term ‘‘Lower 

Colorado River Basin Development Fund’’ means the fund established by section 403 of the Colorado River Basin Project Act (43 U.S.C. 1543). 

(16) OFF-RESERVATION TRUST LAND.—The term ‘‘off-reservation trust land’’ 

means land— 

(A) located outside the exterior boundaries of the reservation that is held 

in trust by the United States for the benefit of the Tribe as of the enforceability date; and 

(B) depicted on the map attached to the Agreement as exhibit 2.57. 

(17) OPERATING AGENCY.—The term ‘‘Operating Agency’’ means the 1 or more 

entities authorized to assume responsibility for the care, operation, maintenance, and replacement of the CAP system. 

(18) REPAYMENT CONTRACT.—The term ‘‘repayment contract’’ means— 

(A) the contract between the United States and the District for delivery 

of water and repayment of the costs of the CAP, numbered 14–06–W–245 

(Amendment No. 1), and dated December 1, 1988; and 

(B) any amendment to, or revision of, that contract. 

(19) REPAYMENT STIPULATION.—The term ‘‘repayment stipulation’’ means the 

stipulated judgment and the stipulation for judgment (including any exhibits to 

those documents) entered on November 21, 2007, in the United States District 

Court for the District of Arizona in the consolidated civil action styled Central 

Arizona Water Conservation District v. United States, et al., and numbered CIV 

95–625–TUC–WDB (EHC) and CIV 95–1720–PHX–EHC. 

(20) RESERVATION.— 

(A) IN GENERAL.—The term ‘‘reservation’’ means the land within the exterior boundary of the White Mountain Indian Reservation established by the 

Executive order dated November 9, 1871, as modified by subsequent Executive orders and Acts of Congress— 

(i) known on the date of enactment of this Act as the ‘‘Fort Apache 

Reservation’’ pursuant to the Act of June 7, 1897 (30 Stat. 62, chapter 

3); and 

(ii) generally depicted on the map attached to the Agreement as exhibit 2.81. 

(B) NO EFFECT ON DISPUTE OR AS ADMISSION.—The depiction of the reservation described in subparagraph (A)(ii) shall not— 

(i) be used to affect any dispute between the Tribe and the United 

States concerning the legal boundary of the reservation; and 

(ii) 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. 

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

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


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(23) TRIBAL CAP WATER.—The term ‘‘tribal CAP water’’ means the CAP water 

to which the Tribe is entitled pursuant to the Contract. 

(24) TRIBAL WATER RIGHTS.—The term ‘‘tribal water rights’’ means the water 

rights of the Tribe described in paragraph 4.0 of the Agreement. 

(25) TRIBE.—The term ‘‘Tribe’’ means the White Mountain Apache Tribe organized under section 16 of the Act of June 18, 1934 (commonly known as the ‘‘Indian Reorganization Act’’) (25 U.S.C. 476). 

(26) WATER RIGHT.—The term ‘‘water right’’ means any right in or to groundwater, surface water, or effluent under Federal, State, or other law. 

(27) WMAT RURAL WATER SYSTEM.—The term ‘‘WMAT rural water system’’ 

means the municipal, rural, and industrial water diversion, storage, and delivery system described in section 7. 

(28) YEAR.—The term ‘‘year’’ means a calendar year. 

SEC. 4. APPROVAL OF AGREEMENT. 

(a) APPROVAL.— 

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

conflicts with a provision of this Act, the Agreement is authorized, ratified, and 

confirmed. 

(2) AMENDMENTS.—Any amendment to the Agreement is authorized, ratified, 

and confirmed, to the extent that such an amendment is executed to make the 

Agreement consistent with this Act. 

(b) EXECUTION OF AGREEMENT.—To the extent that the Agreement does not conflict with this Act, the Secretary shall— 

(1) execute the Agreement (including signing any exhibit to the Agreement requiring the signature of the Secretary); and 

(2) execute any amendment to the Agreement necessary to make the Agreement consistent with this Act. 

(c) NATIONAL ENVIRONMENTAL POLICY ACT.— 

(1) ENVIRONMENTAL COMPLIANCE.—In implementing the Agreement, the Secretary shall promptly comply with all applicable requirements of— 

(A) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 

seq.); 

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

(C) all other applicable Federal environmental laws; and 

(D) all regulations promulgated under the laws described in subparagraphs (A) through (C). 

(2) EXECUTION OF AGREEMENT.— 

(A) IN GENERAL.—Execution of the Agreement by the Secretary under this 

section shall not constitute a major Federal action under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). 

(B) ENVIRONMENTAL COMPLIANCE.—The Secretary shall carry out all necessary environmental compliance required by Federal law in implementing 

the Agreement. 

(3) LEAD AGENCY.—The Bureau shall serve as the lead agency with respect 

to ensuring environmental compliance associated with the WMAT rural water 

system. 

SEC. 5. WATER RIGHTS. 

(a) TREATMENT OF TRIBAL WATER RIGHTS.—The tribal water rights— 

(1) shall be held in trust by the United States in perpetuity; and 

(2) shall not be subject to forfeiture or abandonment. 

(b) REALLOCATION.— 

(1) IN GENERAL.—In accordance with this Act and the Agreement, the Secretary shall reallocate to the Tribe, and offer to enter into a contract with the 

Tribe for the delivery in accordance with this section of— 

(A) an annual entitlement to 23,782 acre-feet per year of CAP water that 

has a non-Indian agricultural delivery priority (as defined in the Contract) 

in accordance with section 104(a)(1)(A)(iii) of the Arizona Water Settlements Act (Public Law 108–451; 118 Stat. 3488), of which— 

(i) 3,750 acre-feet per year shall be firmed by the United States for 

the benefit of the Tribe for the 100-year period beginning on January 

1, 2008, with priority equivalent to CAP M&I priority water, in accordance with section 105(b)(1)(B) of that Act (118 Stat. 3492); and 

(ii) 3,750 acre-feet per year shall be firmed by the State for the benefit of the Tribe for the 100-year period beginning on January 1, 2008, 

with priority equivalent to CAP M&I priority water, in accordance with 

section 105(b)(2)(B) of that Act (118 Stat. 3492); and 

(B) an annual entitlement to 1,218 acre-feet per year of the water— 


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(i) acquired by the Secretary through the permanent relinquishment 

of the Harquahala Valley Irrigation District CAP subcontract entitlement in accordance with the contract numbered 3–07–30–W0290 

among the District, Harquahala Valley Irrigation District, and the 

United States; and 

(ii) converted to CAP Indian Priority water (as defined in the Contract) pursuant to the Fort McDowell Indian Community Water Rights 

Settlement Act of 1990 (Public Law 101–628; 104 Stat. 4480). 

(2) AUTHORITY OF TRIBE.—Subject to approval by the Secretary under section 

6(a)(1), the Tribe shall have the sole authority to lease, distribute, exchange, or 

allocate the tribal CAP water described in paragraph (1). 

(c) WATER SERVICE CAPITAL CHARGES.—The Tribe shall not be responsible for any 

water service capital charge for tribal CAP water. 

(d) ALLOCATION AND REPAYMENT.—For the purpose of determining the allocation 

and repayment of costs of any stages of the CAP constructed after November 21, 

2007, the costs associated with the delivery of water described in subsection (b), regardless of whether the water is delivered for use by the Tribe or in accordance with 

any assignment, exchange, lease, option to lease, or other agreement for the temporary disposition of water entered into by Tribe, shall be— 

(1) nonreimbursable; and 

(2) excluded from the repayment obligation of the District. 

(e) WATER CODE.—Not later than 18 months after the enforceability date, the 

Tribe shall enact a water code that— 

(1) governs the tribal water rights; and 

(2) includes, at a minimum— 

(A) provisions requiring the measurement, calculation, and recording of 

all diversions and depletions of water on the reservation and on off-reservation trust land; 

(B) terms of a water conservation plan, including objectives, conservation 

measures, and an implementation timeline; 

(C) provisions requiring the approval of the Tribe for the severance and 

transfer of rights to the use of water from historically irrigated land identified in paragraph 11.3.2.1 of the Agreement to diversions and depletions on 

other non-historically irrigated land not located on the watershed of the 

same water source; and 

(D) provisions requiring the authorization of the Tribe for all diversions 

of water on the reservation and on off-reservation trust land by any individual or entity other than the Tribe. 

SEC. 6. CONTRACT. 

(a) IN GENERAL.—The Secretary shall enter into the Contract, in accordance with 

the Agreement, to provide, among other things, that— 

(1) the Tribe, on approval of the Secretary, may— 

(A) enter into contracts or options to lease, contracts to exchange, or options to exchange tribal CAP water in Maricopa, Pinal, Pima, and Yavapai 

Counties in the State providing for the temporary delivery to any individual 

or entity of any portion of the tribal CAP water, subject to the condition 

that— 

(i) the term of the contract or option to lease shall not be longer than 

100 years; 

(ii) the contracts or options to exchange shall be for the term provided in the contract or option; and 

(iii) a lease or option to lease providing for the temporary delivery of 

tribal CAP water shall require the lessee to pay to the Operating Agency all CAP fixed OM&R charges and all CAP pumping energy charges 

(as defined in the repayment stipulation) associated with the leased 

water; and 

(B) renegotiate any lease at any time during the term of the lease, subject 

to the condition that the term of the renegotiated lease shall not exceed 100 

years; 

(2) no portion of the tribal CAP water may be permanently alienated; 

(3)(A) the Tribe (and not the United States in any capacity) shall be entitled 

to all consideration due to the Tribe under any contract or option to lease or 

exchange tribal CAP water entered into by the Tribe; and 

(B) the United States (in any capacity) has no trust or other obligation to 

monitor, administer, or account for, in any manner— 

(i) any funds received by the Tribe as consideration under a contract or 

option to lease or exchange tribal CAP water; or 

(ii) the expenditure of those funds; 


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(4)(A) all tribal CAP water shall be delivered through the CAP system; and 

(B) if the delivery capacity of the CAP system is significantly reduced or anticipated to be significantly reduced for an extended period of time, the Tribe 

shall have the same CAP delivery rights as a CAP contractor or CAP subcontractor that is allowed to take delivery of water other than through the CAP 

system; 

(5) the Tribe may use tribal CAP water on or off the reservation for any purpose; 

(6) as authorized by subsection (f)(2)(A) of section 403 of the Colorado River 

Basin Project Act (43 U.S.C. 1543) and to the extent that funds are available 

in the Lower Colorado River Basin Development Fund established by subsection 

(a) of that section, the United States shall pay to the Operating Agency the CAP 

fixed OM&R charges associated with the delivery of tribal CAP water (except 

in the case of tribal CAP water leased by any individual or entity); 

(7) the Secretary shall waive the right of the Secretary to capture all return 

flow from project exchange water flowing from the exterior boundary of the reservation; and 

(8) no CAP water service capital charge shall be due or payable for the tribal 

CAP water, regardless of whether the water is delivered for use by the Tribe 

or pursuant to a contract or option to lease or exchange tribal CAP water entered into by the Tribe. 

(b) REQUIREMENTS.—The Contract shall be— 

(1) for permanent service (within the meaning of section 5 of the Boulder 

Canyon Project Act (43 U.S.C. 617d)); and 

(2) without limit as to term. 

(c) RATIFICATION.— 

(1) IN GENERAL.—Except to the extent that any provision of the Contract conflicts with a provision of this Act, the Contract is authorized, ratified, and confirmed. 

(2) AMENDMENTS.—Any amendment to the Contract is authorized, ratified, 

and confirmed, to the extent that such an amendment is executed to make the 

Contract consistent with this Act. 

(d) EXECUTION OF CONTRACT.—To the extent that the Contract does not conflict 

with this Act, the Secretary shall execute the Contract. 

(e) PAYMENT OF CHARGES.—The Tribe, and any recipient of tribal CAP water 

through a contract or option to lease or exchange, shall not be obligated to pay a 

water service capital charge or any other charge, payment, or fee for CAP water, 

except as provided in an applicable lease or exchange agreement. 

(f) PROHIBITIONS.— 

(1) USE OUTSIDE STATE.—No tribal CAP water may be leased, exchanged, 

forborne, or otherwise transferred by the Tribe in any way for use directly or 

indirectly outside the State. 

(2) USE OFF RESERVATION.—Except as authorized by this section and paragraph 4.7 of the Agreement, no tribal water rights under this Act may be sold, 

leased, transferred, or used outside the boundaries of the reservation or off-reservation trust land other than pursuant to an exchange. 

(3) AGREEMENTS WITH ARIZONA WATER BANKING AUTHORITY.—Nothing in this 

Act or the Agreement limits the right of the Tribe to enter into an agreement 

with the Arizona Water Banking Authority established by section 45–2421 of 

the Arizona Revised Statutes (or any successor entity), in accordance with State 

law. 

(g) LEASES.— 

(1) IN GENERAL.—To the extent the leases of tribal CAP Water by the Tribe 

to the District and to any of the cities, attached as exhibits to the Agreement, 

are not in conflict with the provisions of this Act— 

(A) those leases are authorized, ratified, and confirmed; and 

(B) the Secretary shall execute the leases. 

(2) AMENDMENTS.—To the extent that amendments are executed to make the 

leases described in paragraph (1) consistent with this Act, those amendments 

are authorized, ratified, and confirmed. 

SEC. 7. AUTHORIZATION OF RURAL WATER SYSTEM. 

(a) IN GENERAL.—Subject to the availability of appropriations, the Secretary, acting through the Bureau, shall plan, design, construct, operate, maintain, replace, 

and rehabilitate the WMAT rural water system as generally described in the project 

extension report dated February 2007. 

(b) COMPONENTS.—The WMAT rural water system under subsection (a) shall consist of— 


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(1) a dam and storage reservoir, pumping plant, and treatment facilities located along the North Fork White River near the community of Whiteriver; 

(2) pipelines extending from the water treatment plants to existing water distribution systems serving the Whiteriver, Carrizo, and Cibecue areas, together 

with other communities along the pipeline; 

(3) connections to existing distribution facilities, including public and private 

water systems in existence on the date of enactment of this Act; 

(4) appurtenant buildings and access roads; 

(5) electrical power transmission and distribution facilities necessary for services to rural water system facilities; 

(6) all property and property rights necessary for the facilities described in 

this subsection; and 

(7) such other project components as the Secretary determines to be appropriate to meet the water supply, economic, public health, and environmental 

needs of the portions of the reservation served by the WMAT rural water system, including water storage tanks, water lines, and other facilities for the 

Tribe and the villages and towns on the reservation. 

(c) SERVICE AREA.—The service area of the WMAT rural water system shall be 

as described in the Project Extension report dated February 2007. 

(d) CONSTRUCTION REQUIREMENTS.—The components of the WMAT rural water 

system shall be planned and constructed to a size that is sufficient to meet the municipal, rural, and industrial water supply requirements of the WMAT rural water 

system service area during the period beginning on the date of enactment of this 

Act and ending not earlier than December 31, 2040. 

(e) TITLE.— 

(1) IN GENERAL.—Title to the WMAT rural water system shall be held in trust 

by the United States in its capacity as trustee for the Tribe. 

(2) CONVEYANCE TO TRIBE.—The Secretary may convey to the Tribe title to 

the WMAT rural water system after publication by the Secretary in the Federal 

Register of a statement of findings that— 

(A) the designers’ operating criteria, standing operating procedures, emergency action plan, and first filling and monitoring criteria are established 

and in place, and the WMAT rural water system has been declared substantially complete; 

(B) the funds authorized to be appropriated under section 12(b)(3)(B) 

have been appropriated and deposited in the WMAT Maintenance Fund; 

and 

(C) the Tribe has been operating successfully under the established 

standing operating procedures for a period of 5 calendar years. 

(3) ALIENATION AND TAXATION.—Conveyance of title to the Tribe pursuant to 

paragraph (2) does not waive or alter any applicable Federal law prohibiting 

alienation or taxation of the WMAT rural water system or the underlying reservation land. 

(f) TECHNICAL ASSISTANCE.—The Secretary shall provide such technical assistance 

as is necessary to enable the Tribe to plan, design, construct, operate, maintain, and 

replace the WMAT rural water system, including operation and management training. 

(g) APPLICABILITY OF ISDEAA.— 

(1) AGREEMENT FOR SPECIFIC ACTIVITIES.—On receipt of a request of the 

Tribe, and in accordance with the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.), the Secretary shall enter into an agreement 

with the Tribe to carry out the activities authorized by this section. 

(2) CONTRACTS.—Any contract entered into pursuant to the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) for the purpose 

of carrying out any provision of this Act shall incorporate such provisions regarding periodic payment of funds, timing for 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. 

(h) CONDITION.—As a condition of construction of the facilities authorized by this 

section, the Tribe shall provide, at no cost to the Secretary, all land or interests in 

land, as appropriate, that the Secretary identifies as being necessary for those facilities. 

(i) OPERATION AND MAINTENANCE.—Subject to the availability of appropriations as 

provided for in section 12(e), the Secretary, acting through the Bureau, shall operate 

and maintain the WMAT rural water system until the date on which title to the 

WMAT rural water system is conveyed to the Tribe pursuant to subsection (e)(2). 


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SEC. 8. SATISFACTION OF CLAIMS. 

(a) IN GENERAL.—The benefits realized by the Tribe and its members under this 

Act shall be in full satisfaction of all claims of the Tribe and its members for water 

rights and injury to water rights, except as set forth in the Agreement, under Federal, State, or other law with respect to the reservation and off-reservation trust 

land. 

(b) USES OF WATER.—All uses of water on land outside of the reservation, if and 

when such land is subsequently and finally determined to be part of the reservation 

through resolution of any dispute between the Tribe and the United States over the 

location of the reservation boundary, and any fee land within the reservation put 

into trust and made part of the reservation, shall be subject to the maximum annual 

diversion amounts and the maximum annual depletion amounts specified in the 

Agreement. 

(c) NO RECOGNITION OF WATER RIGHTS.—Notwithstanding subsection (a), nothing 

in this Act has the effect of recognizing or establishing any right of a member of 

the Tribe to water on the reservation. 

SEC. 9. WAIVER AND RELEASE OF CLAIMS. 

(a) IN GENERAL.—– 

(1) CLAIMS AGAINST THE STATE AND OTHERS.—Except as provided in subsection (b)(1), the Tribe, on behalf of itself and its members, and the United 

States, acting in its capacity of trustee for the Tribe and its members, as part 

of the performance of their obligations under the Agreement, are authorized to 

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

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

municipal corporation under Federal, State, or other law for all— 

(A)(i) past, present, and future claims for water rights for the reservation 

and off-reservation trust land arising from time immemorial and, thereafter, forever; and 

(ii) past, present, and future claims for water rights arising from time immemorial and, thereafter, forever, that are based on aboriginal occupancy 

of land by the Tribe, its members, or their predecessors; 

(B)(i) past and present claims for injury to water rights for the reservation and off-reservation trust land arising from time immemorial through 

the enforceability date; 

(ii) past, present, and future claims for injury to water rights arising from 

time immemorial and, thereafter, forever, that are based on aboriginal occupancy of land by the Tribe and its members, or their predecessors; and 

(iii) claims for injury to water rights arising after the enforceability date 

for the reservation and off-reservation trust land resulting from off-reservation diversion or use of water in a manner not in violation of the Agreement 

or State law; and 

(C) past, present, and future claims arising out of or relating in any manner to the negotiation, execution, or adoption of the Agreement, an applicable settlement judgement or decree, or this Act. 

(2) CLAIMS AGAINST TRIBE.—Except as provided in subsection (b)(3), the 

United States, in all its capacities (except as trustee for an Indian tribe other 

than the Tribe), as part of the performance of its obligations under the Agreement, is authorized to execute a waiver and release of any and all claims 

against the Tribe, its members, or any agency, official, or employee of the Tribe, 

under Federal, State, or any other law for all— 

(A) past and present claims for injury to water rights resulting from the 

diversion or use of water on the reservation and on off-reservation trust 

land arising from time immemorial through the enforceability date; 

(B) claims for injury to water rights arising after the enforceability date 

resulting from the diversion or use of water on the reservation and on offreservation trust land in a manner not in violation of the Agreement; and 

(C) past, present, and future claims arising out of or related in any manner to the negotiation, execution, or adoption of the Agreement, an applicable settlement judgement or decree, or this Act. 

(3) CLAIMS AGAINST UNITED STATES.—Except as provided in subsection (b)(2), 

the Tribe, on behalf of itself and its members, as part of the performance of the 

obligations of the Tribe under the Agreement, is authorized to execute a waiver 

and release of any claim against the United States, including agencies, officials, 

or employees of the United States (except in the capacity of the United States 

as trustee for other Indian tribes), under Federal, State, or other law for any 

and all— 


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(A)(i) past, present, and future claims for water rights for the reservation 

and off-reservation trust land arising from time immemorial and, thereafter, forever; and 

(ii) past, present, and future claims for water rights arising from time immemorial and, thereafter, forever that are based on aboriginal occupancy of 

land by the Tribe, its members, or their predecessors; 

(B)(i) past and present claims relating in any manner to damages, losses, 

or injuries to water, water rights, land, or other resources due to loss of 

water or water rights (including damages, losses, or injuries to hunting, 

fishing, gathering, or cultural rights due to loss of water or water rights, 

claims relating to interference with, diversion, or taking of water, or claims 

relating to failure to protect, acquire, or develop water, water rights, or 

water infrastructure) within the reservation and off-reservation trust land 

that first accrued at any time prior to the enforceability date; 

(ii) past, present, and future claims for injury to water rights arising from 

time immemorial and, thereafter, forever that are based on aboriginal occupancy of land by the Tribe, its members, or their predecessors; and 

(iii) claims for injury to water rights arising after the enforceability date 

for the reservation and off-reservation trust land resulting from the off-reservation diversion or use of water in a manner not in violation of the Agreement or applicable law; 

(C) past, present, and future claims arising out of or relating in any manner to the negotiation, execution, or adoption of the Agreement, an applicable settlement judgment or decree, or this Act; 

(D) past and present claims relating in any manner to pending litigation 

of claims relating to the water rights of the Tribe for the reservation and 

off-reservation trust land; 

(E) past and present claims relating to the operation, maintenance, and 

replacement of existing irrigation systems on the reservation constructed 

prior to the enforceability date that first accrued at any time prior to the 

enforceability date, which waiver shall only become effective on the full appropriation and payment to the Tribe of $4,950,000 authorized by section 

12(b)(2)(B); 

(F) future claims relating to operation, maintenance, and replacement of 

the WMAT rural water system, which waiver shall only become effective on 

the full appropriation of funds authorized by section 12(b)(3)(B) and the deposit of those funds in the WMAT Maintenance Fund; 

(G) past and present breach of trust and negligence claims for damage 

to the land and natural resources of the Tribe caused by riparian and other 

vegetative manipulation by the United States for the purpose of increasing 

water runoff from the reservation that first accrued at any time prior to the 

enforceability date; and 

(H) past and present claims for trespass, use, and occupancy of the reservation in, on, and along the Black River that first accrued at any time 

prior to the enforceability date. 

(b) RESERVATION OF RIGHTS AND RETENTION OF CLAIMS.— 

(1) RESERVATION OF RIGHTS AND RETENTION OF CLAIMS BY TRIBE AND UNITED

STATES.— 

(A) IN GENERAL.—Notwithstanding the waiver and release of claims authorized under subsection (a)(1), the Tribe, on behalf of itself and the members of the Tribe, and the United States, acting as trustee for the Tribe and 

members of the Tribe, shall retain any right— 

(i) subject to subparagraph 16.9 of the Agreement, to assert claims 

for injuries to, and seek enforcement of, the rights of the Tribe and 

members of the Tribe under the Agreement or this Act in any Federal 

or State court of competent jurisdiction; 

(ii) to assert claims for injuries to, and seek enforcement of, the 

rights of the Tribe under the judgment and decree entered by the court 

in the Gila River adjudication proceedings; 

(iii) to assert claims for injuries to, and seek enforcement of, the 

rights of the Tribe under the judgment and decree entered by the court 

in the Little Colorado River adjudication proceedings; 

(iv) to object to any claims by or for any other Indian tribe, Indian 

community or nation, or dependent Indian community, or the United 

States on behalf of such a tribe, community, or nation; 

(v) to participate in the Gila River adjudication proceedings and the 

Little Colorado River adjudication proceedings to the extent provided in 

subparagraph 14.1 of the Agreement; 


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(vi) to assert any claims arising after the enforceability date for injury to water rights not specifically waived under this section; 

(vii) to assert any past, present, or future claim for injury to water 

rights against any other Indian tribe, Indian community or nation, dependent Indian community, allottee, or the United States on behalf of 

such a tribe, community, nation, or allottee; and 

(viii) to assert any past, present, or future claim for trespass, use, 

and occupancy of the reservation in, on, or along the Black River 

against Freeport-McMoRan Copper & Gold, Inc., Phelps Dodge Corporation, or Phelps Dodge Morenci, Inc. (or a predecessor or successor 

of those entities), including all subsidiaries and affiliates of those entities. 

(B) AGREEMENT.—On terms acceptable to the Tribe and the United 

States, the Tribe and the United States are authorized to enter into an 

agreement with Freeport-McMoRan Copper & Gold, Inc., Phelps Dodge Corporation, or Phelps Dodge Morenci, Inc. (or a predecessor or successor of 

those entities), including all subsidiaries and affiliates of those entities, to 

resolve the claims of the Tribe relating to the trespass, use, and occupancy 

of the reservation in, on, and along the Black River. 

(2) RESERVATION OF RIGHTS AND RETENTION OF CLAIMS BY TRIBE AGAINST

UNITED STATES.—Notwithstanding the waiver and release of claims authorized 

under subsection (a)(3), the Tribe, on behalf of itself and the members of the 

Tribe, shall retain any right— 

(A) subject to subparagraph 16.9 of the Agreement, to assert claims for 

injuries to, and seek enforcement of, the rights of the Tribe and members 

under the Agreement or this Act, in any Federal or State court of competent jurisdiction; 

(B) to assert claims for injuries to, and seek enforcement of, the rights 

of the Tribe and members under the judgment and decree entered by the 

court in the Gila River adjudication proceedings; 

(C) to assert claims for injuries to, and seek enforcement of, the rights 

of the Tribe and members under the judgment and decree entered by the 

court in the Little Colorado River adjudication proceedings; 

(D) to object to any claims by or for any other Indian tribe, Indian community or nation, dependent Indian community, or the United States on behalf of such a tribe, community, or nation; 

(E) to assert past, present, or future claims for injury to water rights or 

any other claims other than a claim to water rights, against any other Indian tribe, Indian community or nation, dependent Indian community, or 

the United States on behalf of such a tribe, community, or nation; 

(F) to assert claims arising after the enforceability date for injury to 

water rights resulting from the drilling of wells or pumping of water from 

land located within national forest land as of the effective date of the 

Agreement in the south 1⁄2 of T. 9 N., R. 24 E.; south 1⁄2 of T. 9 N., R. 25 

E.; north 1⁄2 of T. 8 N., R. 24 E.; north 1⁄2 of T. 8 N., R. 25 E., if— 

(i) title to that land is no longer retained by the United States; or 

(ii) water from that land is transported off the land for municipal or 

industrial use; 

(G) to assert any claims arising after the enforceability date for injury to 

water rights not specifically waived under this section; 

(H) to assert any other claims not specifically waived under this section; 

and 

(I) to assert any claim arising after the enforceability date for a future 

taking by the United States of reservation land, off-reservation trust land, 

or any property rights appurtenant to that land, including any water rights 

set forth in paragraph 4.0 of the Agreement. 

(3) RESERVATION OF RIGHTS AND RETENTION OF CLAIMS BY UNITED STATES.— 

Notwithstanding the waiver and release of claims authorized under subsection 

(a)(2), the United States shall retain any right to assert any claim not specifically waived in that subsection. 

(c) EFFECTIVENESS OF WAIVER AND RELEASES.—Except as otherwise specifically 

provided in subparagraphs (E) and (F) of subsection (a)(3), the waivers and releases 

under subsection (a) shall become effective on the enforceability date. 

(d) ENFORCEABILITY DATE.— 

(1) IN GENERAL.—This section takes effect on the date on which the Secretary 

publishes in the Federal Register a statement of findings that— 

(A)(i) to the extent the Agreement conflicts with this Act, the Agreement 

has been revised through an amendment to eliminate the conflict; and 


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(ii) the Agreement, as so revised, has been executed by the Secretary, the 

Tribe, and the Governor of the State; 

(B) the Secretary has fulfilled the requirements of sections 5 and 6; 

(C) the amount authorized by section 12(a) has been deposited in the 

White Mountain Apache Tribe Water Rights Settlement Subaccount; 

(D) the State funds described in subparagraph 13.3 of the Agreement 

have been deposited in the White Mountain Apache Tribe Water Rights 

Settlement Subaccount; 

(E) the Secretary has issued a record of decision approving the construction of the WMAT rural water system in a configuration substantially similar to that described in section 7; and 

(F) the judgments and decrees substantially in the form of those attached 

to the Agreement as exhibits 12.9.6.1 and 12.9.6.2 have been approved by 

the respective trial courts. 

(2) FAILURE OF ENFORCEABILITY DATE TO OCCUR.—If, because of the failure of 

the enforceability date to occur by October 31, 2015, this section does not become effective, the Tribe and its members, and the United States, acting in the 

capacity of trustee for the Tribe and its members, shall retain the right to assert past, present, and future water rights claims and claims for injury to water 

rights for the reservation and off-reservation trust land. 

(3) NO RIGHTS TO WATER.—On the occurrence of the enforceability date, all 

land held by the United States in trust for the Tribe and its members shall 

have no rights to water other than those specifically quantified for the Tribe 

and the United States, acting in the capacity of trustee for the Tribe and its 

members, for the reservation and off-reservation trust land pursuant to paragraph 4.0 of the Agreement. 

(e) UNITED STATES ENFORCEMENT AUTHORITY.—Nothing in this Act or the Agreement affects any right of the United States to take any action, including environmental actions, under any laws (including regulations and the common law) relating 

to human health, safety, or the environment. 

(f) NO EFFECT ON WATER RIGHTS.—Except as provided in paragraphs (1)(A)(ii), 

(1)(B)(ii), (3)(A)(ii), and (3)(B)(ii) of subsection (a), nothing in this Act affects any 

rights to water of the Tribe, its members, or the United States acting as trustee for 

the Tribe and members, for land outside the boundaries of the reservation or the 

off-reservation trust land. 

(g) ENTITLEMENTS.—Any entitlement to water of the Tribe, its members, or the 

United States acting as trustee for the Tribe and members, relating to the reservation or off-reservation trust land shall be satisfied from the water resources granted, 

quantified, confirmed, or recognized with respect to the Tribe, members, and the 

United States by the Agreement and this Act. 

(h) OBJECTION PROHIBITED.—Except as provided in subsection (b)(2)(F), the Tribe 

and the United States acting as trustee for the Tribe shall not— 

(1) object to the usage of any well located outside the boundaries of the reservation or the off-reservation trust land, as in existence on the enforceability 

date; or 

(2) object to, dispute, or challenge after the enforceability date the drilling of 

any well or the withdrawal and use of water from any well in the Little Colorado River adjudication proceedings, the Gila River adjudication proceedings, or 

any other judicial or administrative proceeding. 

SEC. 10. WHITE MOUNTAIN APACHE TRIBE WATER RIGHTS SETTLEMENT SUBACCOUNT. 

(a) ESTABLISHMENT.—There is established in the Lower Colorado River Basin Development Fund a subaccount to be known as the ‘‘White Mountain Apache Tribe 

Water Rights Settlement Subaccount’’, consisting of— 

(1) the amounts appropriated to the subaccount pursuant to subsections (a) 

and (d) of section 12, as applicable; and 

(2) such other amounts as are available, including the funds provided in subparagraph 13.3 of the Agreement. 

(b) EXPENDITURES AND WITHDRAWALS.— 

(1) CONTRACTS.— 

(A) IN GENERAL.—The Tribe may withdraw any portion of the White 

Mountain Apache Tribe Water Rights Settlement Subaccount on approval 

by the Secretary pursuant to the terms of an agreement entered into under 

section 7(g). 

(B) REQUIREMENTS.—An agreement entered into under section 7(g) shall 

require that the Tribe shall use the amounts in the White Mountain 

Apache Tribe Water Rights Settlement Subaccount only for the planning, 

design, and construction of the rural water system, including such sums as 

are necessary— 


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(i) for the Bureau to carry out oversight of the planning, design, and 

construction of the rural water system; 

(ii) to repay any outstanding balance on the loan authorized by the 

White Mountain Apache Tribe Rural Water System Loan Authorization 

Act (Public Law 110-390; 122 Stat. 4191); and 

(iii) to carry out all required environmental compliance activities associated with the planning, design, and construction of the rural water 

system. 

(2) ENFORCEMENT.—The Secretary may pursue such judicial remedies and 

carry out such administrative actions as are necessary to enforce an agreement 

described in paragraph (1) to ensure that amounts in the White Mountain 

Apache Tribe Water Rights Settlement Subaccount are used in accordance with 

this section. 

(3) LIABILITY.—On withdrawal by the Tribe of amounts in the White Mountain Apache Tribe Water Rights Settlement Subaccount, the Secretary and the 

Secretary of the Treasury shall not retain liability for the expenditure or investment of those amounts. 

(4) EXPENDITURE PLAN.— 

(A) IN GENERAL.—The Tribe shall submit to the Secretary for approval an 

expenditure plan for any portion of the amounts in the subaccount under 

this section that the Tribe does not withdraw pursuant to this subsection. 

(B) DESCRIPTION.—The expenditure plan shall describe the manner in 

which, and the purposes for which, the amounts remaining in the subaccount will be used. 

(C) APPROVAL.—The Secretary shall approve an expenditure plan under 

this paragraph if the Secretary determines that the plan is— 

(i) reasonable; and 

(ii) consistent with this Act. 

(5) ANNUAL REPORTS.—The Tribe shall submit to the Secretary an annual report that describes each expenditure from the White Mountain Apache Tribe 

Water Rights Settlement Subaccount during the year covered by the report. 

(c) PROHIBITION ON PER CAPITA DISTRIBUTIONS.—No amount of the principal, or 

the interest or income accruing on the principal, of the White Mountain Apache 

Tribe Water Rights Settlement Subaccount shall be distributed to any member of 

the Tribe on a per capita basis. 

(d) AVAILABILITY OF FUNDS.— 

(1) IN GENERAL.—Amounts in the White Mountain Apache Tribe Water Rights 

Settlement Subaccount shall not be available for expenditure or withdrawal by 

the Tribe until the enforceability date. 

(2) INVESTMENT.—Beginning on the date described in section 9(d), the Secretary shall invest the amounts in the White Mountain Apache Tribe Water 

Rights Settlement Subaccount in accordance with section 403(f)(4) of the Colorado River Basin Project Act (43 U.S.C. 1543(f)(4)). 

SEC. 11. MISCELLANEOUS PROVISIONS. 

(a) LIMITED WAIVER OF SOVEREIGN IMMUNITY.— 

(1) IN GENERAL.—In the case of a civil action described in paragraph (2)— 

(A) the United States or the Tribe, or both, may be joined in the civil action; and 

(B) any claim by the United States or the Tribe to sovereign immunity 

from the civil action is waived for the sole purpose of resolving any issue 

regarding the interpretation or enforcement of this Act or the Agreement. 

(2) DESCRIPTION OF CIVIL ACTION.—A civil action referred to in paragraph (1) 

is a civil action filed— 

(A) by any party to the Agreement or signatory to an exhibit to the 

Agreement in a United States or State court that— 

(i) relates solely and directly to the interpretation or enforcement of 

this Act or the Agreement; and 

(ii) names as a party the United States or the Tribe; or 

(B) by a landowner or water user in the Gila River basin or Little Colorado River basin in the State that— 

(i) relates solely and directly to the interpretation or enforcement of 

section 9 of this Act and paragraph 12.0 of the Agreement; and 

(ii) names as a party the United States or the Tribe. 

(b) EFFECT OF ACT.—Nothing in this Act quantifies or otherwise affects any water 

right or claim or entitlement to water of any Indian tribe, band, or community other 

than the Tribe. 

(c) LIMITATION ON LIABILITY OF UNITED STATES.— 

(1) IN GENERAL.—The United States shall have no trust or other obligation— 


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(A) to monitor, administer, or account for, in any manner, any amount 

paid to the Tribe by any party to the Agreement other than the United 

States; or 

(B) to review or approve the expenditure of those funds. 

(2) INDEMNIFICATION.—The Tribe shall indemnify the United States, and hold 

the United States harmless, with respect to any claim (including claims for 

takings or breach of trust) arising out of the receipt or expenditure of funds described in paragraph (1)(A). 

(d) APPLICABILITY OF RECLAMATION REFORM ACT.—The Reclamation Reform Act 

of 1982 (43 U.S.C. 390aa et seq.) and any other acreage limitation or full-cost pricing provision under Federal law shall not apply to any individual, entity, or land 

solely on the basis of— 

(1) receipt of any benefit under this Act; 

(2) the execution or performance of the Agreement; or 

(3) the use, storage, delivery, lease, or exchange of CAP water. 

(e) SECRETARIAL POWER SITES.—The portions of the following named secretarial 

power site reserves that are located on the Fort Apache Indian Reservation or the 

San Carlos Apache Reservation, as applicable, shall be transferred and restored into 

the name of the Tribe or the San Carlos Apache Tribe, respectively: 

(1) Lower Black River (T. 3 N., R. 26 E.; T. 3 N., R. 27 E.). 

(2) Black River Pumps (T. 2 N., R. 25 E.; T. 2 N., R. 26 E.; T. 3 N., R. 26 

E.). 

(3) Carrizo (T. 4 N., R. 20 E.; T. 4 N., R. 21 E.; T. 41⁄2 N., R. 19 E.; T. 41⁄2

N., R. 20 E.; T. 41⁄2 N., R. 21 E.; T. 5 N., R. 19 E.). 

(4) Knob (T. 5 N., R. 18 E.; T. 5 N., R. 19 E.). 

(5) Walnut Canyon (T. 5 N., R. 17 E.; T. 5 N., R. 18 E.). 

(6) Gleason Flat (T. 41⁄2 N., R. 16 E.; T. 5 N., R. 16 E.). 

(f) NO EFFECT ON FUTURE ALLOCATIONS.—Water received under a lease or exchange of tribal CAP water under this Act shall not affect any future allocation or 

reallocation of CAP water by the Secretary. 

(g) AFTER-ACQUIRED TRUST LAND.— 

(1) REQUIREMENT OF ACT OF CONGRESS.— 

(A) LEGAL TITLE.—After the enforceability date, if the Tribe seeks to have 

legal title to additional land in the State of Arizona located outside the exterior boundaries of the reservation taken into trust by the United States 

for its benefit, the Tribe may do so only pursuant to an Act of Congress specifically authorizing the transfer for the benefit of the Tribe. 

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

(i) restoration of land to the reservation subsequently and finally determined to be part of the reservation through resolution of any dispute 

between the Tribe and the United States over the location of the reservation boundary unless required by Federal law; or 

(ii) off-reservation trust land acquired prior to January 1, 2008. 

(2) WATER RIGHTS.— 

(A) IN GENERAL.—Under this section, after-acquired trust land outside 

the reservation shall not include federally reserved rights to surface water 

or groundwater. 

(B) RESTORED LAND.—Land restored to the reservation as the result of 

resolution of any reservation boundary dispute between the Tribe and the 

United States, or any fee simple land within the reservation that are placed 

into trust, shall have water rights pursuant to section 8(b). 

(3) ACCEPTANCE OF LAND IN TRUST STATUS.— 

(A) IN GENERAL.—If the Tribe acquires legal fee title to land that is located within the exterior boundaries of the reservation, the Secretary shall 

accept the land in trust status for the benefit of the Tribe in accordance 

with applicable Federal law (including regulations) for such real estate acquisitions. 

(B) RESERVATION STATUS.—Land taken or held in trust by the Secretary 

under paragraph (3), or restored to the reservation as a result of resolution 

of a boundary dispute between the Tribe and the United States, shall be 

deemed to be part of the reservation. 

(h) CONFORMING AMENDMENT.—Section 3(b)(2) of the White Mountain Apache 

Tribe Rural Water System Loan Authorization Act (Public Law 110–390; 122 Stat. 

4191) is amended by striking ‘‘2013’’ and inserting ‘‘2016’’. 

SEC. 12. AUTHORIZATION OF APPROPRIATIONS. 

(a) RURAL WATER SYSTEM.— 


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(1) IN GENERAL.—There is authorized to be appropriated for the planning, engineering, design, environmental compliance, and construction of the WMAT 

rural water system $126,193,000. 

(2) INCLUSIONS.—The amount authorized to be appropriated under paragraph 

(1) shall include such sums as are necessary, but not to exceed 4 percent of construction contract costs, for the Bureau to carry out oversight of activities for 

planning, design, environmental compliance, and construction of the rural water 

system. 

(b) WMAT SETTLEMENT AND MAINTENANCE FUNDS.— (1) DEFINITION OF FUNDS.—In this subsection, the term ‘‘Funds’’ means— 

(A) the WMAT Settlement Fund established by paragraph (2)(A); and 

(B) the WMAT Maintenance Fund established by paragraph (3)(A). 

(2) WMAT SETTLEMENT FUND.— (A) ESTABLISHMENT.—There is established in the Treasury of the United 

States a fund to be known as the ‘‘WMAT Settlement Fund’’, for use by the 

Tribe in accordance with subparagraph (C), which shall consist of— 

(i) such amounts as are deposited in the fund under subparagraph 

(B); and 

(ii) any interest accrued on the deposited amounts. 

(B) TRANSFERS TO FUND.—There is authorized to be appropriated to the Secretary $113,500,000 for deposit in the WMAT Settlement Fund, of which 

not less than $4,950,000 shall be used for the rehabilitation of existing irrigation systems. 

(C) USE OF FUNDS.—The Tribe shall use amounts in the WMAT Settlement Fund for any of the following purposes: 

(i) Fish production, including hatcheries. 

(ii) Rehabilitation of recreational lakes and existing irrigation systems. 

(iii) Water-related economic development projects. 

(iv) Protection, restoration, and economic development of forest and 

watershed health. 

(v) Any cost overruns for the completion of the WMAT rural water 

system, as provided in subsection (f). 

(3) WMAT MAINTENANCE FUND.— 

(A) ESTABLISHMENT.—There is established in the Treasury of the United 

States a fund to be known as the ‘‘WMAT Maintenance Fund’’, consisting 

of such amounts as are deposited in the fund under subparagraph (B), together with any interest accrued on those amounts, for use by the Tribe in 

accordance with subparagraph (C). 

(B) TRANSFERS TO FUND.—There is authorized to be appropriated to the 

Secretary $50,000,000 for deposit in the WMAT Maintenance Fund. 

(C) USE OF FUNDS.—The Tribe or the Secretary, as applicable, shall use 

amounts in the WMAT Maintenance Fund only for the operation, maintenance, and replacement costs associated with the delivery of water through 

the rural water system. 

(4) ADMINISTRATION.—The Secretary shall manage the Funds in accordance 

with the American Indian Trust Fund Management Reform Act of 1994 (25 

U.S.C. 4001 et seq.), including by investing amounts in the Funds in accordance 

with— 

(A) the Act of April 1, 1880 (25 U.S.C. 161); and 

(B) the first section of the Act of June 24, 1938 (25 U.S.C. 162a). 

(5) AVAILABILITY OF AMOUNTS FROM FUNDS.—Amounts in the Funds shall be 

available for expenditure or withdrawal only after the enforceability date in accordance with subsection (g). 

(6) EXPENDITURE AND WITHDRAWAL.— 

(A) TRIBAL MANAGEMENT PLAN.— 

(i) IN GENERAL.—The Tribe may withdraw all or part of amounts in 

the Funds on approval by the Secretary of a tribal management plan 

as described in the American Indian Trust Fund Management Reform 

Act of 1994 (25 U.S.C. 4001 et seq.). 

(ii) REQUIREMENTS.—In addition to the requirements under the 

American Indian Trust Fund Management Reform Act of 1994 (25 

U.S.C. 4001 et seq.), a tribal management plan under this subparagraph shall require that the Tribe shall spend any amounts withdrawn 

from the Funds in accordance with the purposes described in paragraph (2)(C) or (3)(C). 

(iii) ENFORCEMENT.—The Secretary may take judicial or administrative action to enforce the provisions of a tribal management plan under 

this subparagraph to ensure that any amounts withdrawn from the 


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Funds under the plan are used in accordance with this Act and the 

Agreement. 

(iv) LIABILITY.—If the Tribe exercises the right to withdraw amounts 

from the Funds, neither the Secretary nor the Secretary of the Treasury shall retain any liability for the expenditure or investment of the 

amounts. 

(B) EXPENDITURE PLAN.— 

(i) IN GENERAL.—The Tribe shall submit to the Secretary for approval 

an expenditure plan for any portion of the amounts in the Funds that 

the Tribe does not withdraw under the tribal management plan. 

(ii) DESCRIPTION.—The expenditure plan shall describe the manner in 

which, and the purposes for which, amounts of the Tribe remaining in 

the Funds will be used. 

(iii) APPROVAL.—On receipt of an expenditure plan under clause (i), 

the Secretary shall approve the plan if the Secretary determines that 

the plan is reasonable and consistent with this Act and the Agreement. 

(iv) ANNUAL REPORT.—For each of the Funds, the Tribe shall submit 

to the Secretary an annual report that describes all expenditures from 

the Fund during the year covered by the report. 

(C) CERTAIN PER CAPITA DISTRIBUTIONS PROHIBITED.—No amount in the 

Funds shall be distributed to any member of the Tribe on a per capita 

basis. 

(c) COST INDEXING.—All amounts authorized to be appropriated under subsections 

(a) and (b) shall be adjusted as may be required to reflect the changes since October 

1, 2007, in the construction cost indices applicable to the types of construction involved in the construction of the WMAT rural water supply system, the maintenance of the rural water supply system, and the construction or rehabilitation of the 

other development projects authorized under subsection (b)(2)(C). 

(d) EMERGENCY FUND FOR INDIAN SAFETY AND HEALTH.— 

(1) DEFINITION OF EMERGENCY FUND FOR INDIAN SAFETY AND HEALTH.—In this 

subsection, the term ‘‘Emergency Fund for Indian Safety and Health’’ means the 

Emergency Fund for Indian Safety and Health established by section 601(a) of 

the Tom Lantos and Henry J. Hyde United States Global Leadership Against 

HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008 (22 U.S.C. 

7601 et seq.). 

(2) INITIAL TRANSFER.—Not later than 90 days after the date of enactment of 

this Act, such amounts as are available, but not to exceed $50,000,000, in the 

Emergency Fund for Indian Safety and Health shall be transferred to the White 

Mountain Apache Tribe Water Rights Settlement Subaccount. 

(3) SUBSEQUENT TRANSFER.—Effective beginning on January 1, 2012, if the 

Secretary determines that, on an annual basis, the deadline described in section 

9(d)(2) is not likely to be met because the amount authorized by subsection (a) 

has not been appropriated and deposited in the White Mountain Apache Tribe 

Water Rights Settlement Subaccount, not more than $50,000,000 of the 

amounts in the Emergency Fund for Indian Safety and Health shall be transferred to the White Mountain Apache Tribe Water Rights Settlement Subaccount, as necessary to complete the WMAT rural water system project. 

(4) LIMITATION.—The total amount transferred from the Emergency Fund for 

Indian Safety and Health to the White Mountain Apache Tribe Water Rights 

Settlement Subaccount under paragraphs (2) and (3) shall not exceed 

$100,000,000. 

(e) OPERATION, MAINTENANCE, AND REPLACEMENT.— 

(1) IN GENERAL.—There is authorized to be appropriated to the Secretary 

$2,500,000 for the operation, maintenance, and replacement costs of the WMAT 

rural water system, to remain available until the conditions described in subsection (g) have been met. 

(2) SUBSEQUENT FUNDING.—Beginning on January 1, 2021, the Tribe or the 

Secretary, as applicable, may use amounts deposited in the WMAT Maintenance 

Fund under subsection (b)(3)(B) for operation, maintenance, and replacement 

costs of the WMAT rural water system. 

(f) COST OVERRUNS.—On a determination by the Secretary that the amount authorized to be appropriated under subsection (a) is not sufficient for the completion 

of the WMAT rural water system, there are authorized to be appropriated such 

sums as are necessary, but not to exceed an additional $25,000,000, to complete the 

WMAT rural water system, to be derived by transfer from the amounts authorized 

to be appropriated to the Secretary for deposit in the WMAT Settlement Fund under 

subsection (b)(2)(B) in such amounts as the Secretary, in concurrence with the 

Tribe, determines to be appropriate. 


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(g) CONDITIONS.—The amounts authorized to be appropriated to the Secretary for 

deposit in the WMAT Maintenance Fund, together with any interest accrued thereon, under subsection (b)(3), and any interest accruing on the WMAT Settlement 

Fund under subsection (b)(2), shall not be available for expenditure or withdrawal 

until the later of— 

(1) December 31, 2020; and 

(2) the date on which the Secretary determines that the conditions described 

in section 9(d) have been met. 

SEC. 13. ANTIDEFICIENCY. 

The United States shall not be liable for failure to carry out any obligation or activity authorized to be carried out, subject to appropriations, under this Act (including any such obligation or activity under the Agreement) if adequate appropriations 

for that purpose are not provided by Congress. 

SEC. 14. REPEAL ON FAILURE OF ENFORCEABILITY DATE. 

If the Secretary fails to publish in the Federal Register a statement of findings 

as required under section 9(d) by not later than October 31, 2015— 

(1) effective beginning on November 1, 2015— 

(A) this Act is repealed; and 

(B) any action carried out by the Secretary, and any contract entered 

into, pursuant to this Act shall be void; 

(2) any amounts appropriated under subsections (a), (b), (d), and (e) of section 

12, together with any interest accrued on those amounts, shall immediately revert to the general fund of the Treasury; and 

(3) any other amounts deposited in the White Mountain Apache Tribe Water 

Settlement Subaccount (including any amounts paid by the State in accordance 

with the Agreement), together with any interest accrued on those amounts, 

shall immediately be returned to the respective sources of those funds. 

SEC. 15. COMPLIANCE WITH ENVIRONMENTAL LAWS. 

In carrying out this Act, the Secretary shall promptly comply with all applicable 

requirements of— 

(1) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); 

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

(3) all other applicable Federal environmental laws; and 

(4) all regulations promulgated under the laws described in paragraphs (1) 

through (3). 

PURPOSE OF THE BILL

The purpose of H.R. 1065 is to resolve water rights claims of the 

White Mountain Apache Tribe in the State of Arizona, and for 

other purposes. 

BACKGROUND AND NEED FOR LEGISLATION

The White Mountain Apache Tribe (Tribe) currently resides on 

1.66 million acres of federal trust land in east-central Arizona. The 

Tribe’s Fort Apache Indian Reservation was established by an Executive Order on November 9, 1871. The headwaters and several 

tributaries of the Salt River originate on reservation land. 

In 1985, the United States, on behalf of the Tribe, filed substantial claims to water with a time immemorial date for approximately 

180,000 acre-feet annually from the Salt River System in the Gila 

River adjudication proceedings in the Maricopa County Superior 

Court, as well as water rights claims in the Little Colorado River 

General Stream adjudication proceedings in the Apache County Superior Court. Both claims were based on the Tribe’s federally reserved water rights established in Winters v. U.S., 207 U.S. 564 

(1908). 

The United States amended its water rights filings in both proceedings in September 2000, asserting the Tribe’s aboriginal and 

federally-reserved rights to transbasin groundwater resources that 

sustain the base flow for the springs and streams on the reservaVerDate Nov 24 2008 12:54 Jan 14, 2010 Jkt 089006 PO 00000 Frm 00016 Fmt 6659 Sfmt 6602 E:\HR\OC\HR391.XXX HR391

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tion. Both claims are currently pending in their respective courts. 

Enactment of H.R. 1065 would confirm the Settlement Agreement 

(Agreement) reached by the Tribe and other parties in both adjudication proceedings and after approval by the state courts, the 

Tribe’s claims in those proceedings would be resolved. 

The Tribe’s substantial and senior water rights claims have created considerable uncertainty for as many as 3.5 million people 

who are dependent on the Salt River for water. The Salt River 

basin is the primary source of water for the Tribe, the Phoenix 

metropolitan area, and the Salt River Reclamation Project, which 

serves about 250,000 irrigated acres of agricultural land in Maricopa County in central Arizona. 

A federal negotiating team was established by the Secretary of 

the Interior at the request of the Tribe to facilitate settlement negotiations in 2004. An agreement was reached in January 2009. To 

ensure a collaborative process the settling parties included the 

Tribe and the United States, the State of Arizona, the Central Arizona Water Conservation District (CAWCD), the Salt River Project 

Agricultural Improvement and Power District, the Salt River Valley Water Users’ Association, the Roosevelt Water Conservation 

District, the Buckeye Irrigation Company, the Buckeye Water Conservation and Drainage District, the Arizona Water Company, and 

the cities and towns of Phoenix, Mesa, Tempe, Chandler, Glendale, 

Scottsdale, Avondale, Peoria, Show Low, and Gilbert. All of the 

non-federal parties have approved the Agreement. 

The comprehensive Agreement resolves the Tribe’s water rights 

claims. The Tribe would have an 1871-reserved water right to divert up to 74,000 acre-feet annually (27,000 acre-feet depletion), 

and in addition the right to divert up to an additional 25,000 acrefeet of Salt River System water through a Central Arizona Project 

(CAP) exchange (25,000 acre-feet depletion). Cumulatively the 

Tribe will have a total diversion right of 99,000 acre-feet per year 

with a total depletion right of 52,000 acre feet per year. A diversion 

right is the amount of water that can be diverted from the river. 

The depletion right represents the amount of water that is diverted, less the return flow to the system from which it was diverted. The Tribe will have an option for leasing the CAP water to 

the existing downstream cities and users. 

An important component of the Agreement addresses the drinking water needs of the Tribe. Currently, a relatively small well field 

serves the drinking water needs of the majority of the residents on 

the Tribe’s reservation. Water production from the wells has declined significantly over the last few years. As a result, the Tribe 

is experiencing chronic drinking water shortages. In 2009 the Tribe 

has been constructing a relatively small diversion project on the 

North Fork of the White River to augment the declining well water 

supply. The Tribe indicates that when the diversion 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 growing population. The drinking water 

project authorized in H.R. 1065 would provide a long-term solution, 

and the only viable one, to address the Tribe’s drinking water 

shortages. 


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COMMITTEE ACTION

H.R. 1065 was introduced on February 13, 2009 by Rep. Ann 

Kirkpatrick (D–AZ). The bill was referred to the Committee on 

Natural Resources, and within the Committee to the Subcommittee 

on Water and Power. On July 21, 2009, the Subcommittee held a 

hearing on the bill. 

On September 30, 2009, the Subcommittee was discharged from 

further consideration of H.R. 1065 and the full Natural Resources 

Committee met to consider the bill. Subcommittee Chairwoman 

Grace F. Napolitano (D–CA) offered an amendment in the nature 

of a substitute that, in large part, responded to concerns raised by 

the Department of the Interior. The amendment in the nature of 

a substitute made technical changes and added language that 

would transfer title of the White Mountain Apache Tribe Rural 

Water System to the Tribe. The amendment in the nature of a substitute was adopted by voice vote. The bill, as amended, was ordered favorably reported to the House of Representatives by voice 

vote. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

Section 1 provides that this Act may be cited as the ‘‘White 

Mountain Apache Tribe Water Rights Quantification Act of 2009.’’ 

Section 2. Findings and purposes 

Subsection 2(a) provides the following findings: that a resolution 

of litigation proceedings intended to quantify the water rights of 

the Tribe might be a lengthy and costly process, prolonging uncertainty to their water rights; that instead, the parties to the litigation 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 by entering into the 

White Mountain Apache Tribe Water Rights Quantification Agreement (the Agreement). 

Subsection 2(b) provides that the purpose of this Act are: (1) to 

authorize, ratify, and confirm the Agreement as defined in the legislation; (2) to authorize and direct the Secretary of the Interior 

(the Secretary) to execute the Agreement; (3) to authorize the appropriations necessary for the U.S. to meet its obligations under 

the Agreement; and (4) to permanently resolve certain damage 

claims and all water rights claims of the Tribe. 

Section 3. Definitions 

Section 3 provides definitions for certain terms used in the White 

Mountain Apache Tribe Water Rights Quantification Act of 2009. 

Section 4. Approval of Agreement 

Section 4 authorizes, ratifies and confirms the Agreement. This 

section also authorizes and directs the Secretary to execute the 

Agreement as approved by Congress, including any and all environmental compliance required by federal law. 


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Section 5. Water rights 

Section 5 provides that tribal water rights will be held in trust 

by the United States, through the Secretary of the Interior, for the 

benefit of the Tribe. This section further requires the Tribe to enact 

a tribal water code to administer tribal water rights, no later than 

18 months after the enforceability date in subsection 9(d), with specific conditions as listed in subsection 5(e). The Tribe’s water rights 

shall not be subject to loss by abandonment or forfeiture. 

Section 5(b), (c), and (d) describe the reallocation of, and costs associated with, Central Arizona Project (CAP) water allocated to the 

Tribe under the Agreement. 

Section 6. Contract 

Section 6 describes contracts related to the Tribe’s leasing of CAP 

water. The Tribe may, with the approval of the Secretary, enter 

into leases with the counties of Maricopa, Pinal, Pima, and Yavapai 

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

of the Tribe’s CAP water. The contact or option to lease is subject 

to specific conditions, as described in Subsections 6(a). 

Subsection 6(b) specifies the requirements of the contract. Subsection 6(c) ratifies, authorizes, and confirms the contract. Subsection 6(d) directs the Secretary to execute the contract, and subsection 6(e) describes the fees and charges applicable to tribal CAP 

water. 

Subsection 6(f) prohibits tribal CAP water from being leased, exchanged, forborne or transferred by the Tribe for use outside the 

State of Arizona. 

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

tribal CAP water attached as exhibits to the Settlement Agreement. 

Section 7. Authorization of Rural Water System 

Section 7 authorizes the planning, design, and construction of the 

White Mountain Apache Tribe (WMAT) Rural Water System and 

describes its components, service area, and construction requirements. 

Subsection 7(e) further specifies 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, including 

the condition that the Tribe has been operating the project successfully for a period of five years. 

Section 8. Satisfaction of claims 

Subsection 8(a) provides that the benefits to the Tribe and its 

members under this Act are in full satisfaction of the Tribe’s and 

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

Subsection 8(b) provides that the Agreement’s maximum annual 

diversion amounts and maximum annual depletion amounts shall 

apply to the use of water on any lands currently outside the reservation that are subsequently determined to be part of the reservation, and to the use of water on any fee lands currently within 

the reservation that are put into trust and made part of the reservation. 


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

or establish any tribal member’s individual right to water on the 

reservation. 

Section 9. Waiver and release of claims 

Section 9(a) authorizes the United States to execute certain waivers and release 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. 

The waiver of water-related claims in Section 9 encompasses claims 

for water rights, injury to water rights, and damages to tribal resources due to loss of water or water rights. 

Subsection 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, including past, present, and future claims against Freeport McMoRan Copper & Gold, Inc., Phelps Dodge Corporation or 

Phelps Dodge Morenci, Inc. 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 the other 

parties to assert any claims or defenses against each other regarding the Black River Claims. 

Subsection 9(c) establishes the conditions and timing under 

which the waivers are effective. 

Subsection 9(d) provides that the enforceability date shall be subject to a requirement that the Secretary publish a statement of 

findings in the Federal Register concerning a number of listed conditions. It also establishes the extent of the water rights available 

for use on land held in trust for the Tribe and its members. 

Subsection 9(e) provides that nothing in this Act or in the Agreement affects the right of the United States to take any action relating to human health, safety, or the environment. 

Subsection 9(f) provides that except as specified, this Act has no 

effect on rights to water for land outside the reservation boundaries 

or off-reservation trust land. 

Subsection 9(g) provides that any tribal entitlements to water 

shall be satisfied from the water resources set forth in the Agreement and this Act. 

Subsection 9(h) sets forth certain objections that are prohibited 

to the Tribe and the United States acting as trustee for the Tribe. 

Section 10. White Mountain Apache Tribe Water Rights Settlement 

Subaccount 

Subsection 10(a) establishes the White Mountain Tribe Water 

Rights Settlement Subaccount within the Lower Colorado River 

Basin Development Fund. 

Subsection 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. 

Subsection 10(c) specifies that funds from the White Mountain 

Apache Tribe Water Rights Settlement Subaccount are not to be 

distributed on a per capita basis. 


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Subsection 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 

Subsection 11(a) waives the sovereign immunity of the United 

States and the Tribe for certain specified civil actions under the 

Agreement and Act. 

Subsection 11(b) provides that nothing in this Act affects any 

water right or claim of any Indian tribe, band or community other 

than the White Mountain Apache Tribe. 

Subsection 11(c) limits the liability of the United States and directs the Tribe to indemnify the United States against certain specific claims. 

Subsection 11(d) provides that the Reclamation Reform Act of 

1982 (43 U.S.C. 390aa et seq.) does not apply under certain listed 

circumstances related to the Agreement and this Act. 

Subsection 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. 

Subsection 11(f) states that water received under a lease or exchange of tribal CAP water has no effect on future allocations of 

CAP water by the Secretary. 

Subsection 11(g) provides that, except with respect to certain restored lands and off-reservation trust land acquired prior to January 1, 2008, the Tribe, after the enforceabilty date, may only have 

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). 

Subsection 11(h) amends Section 3(b)(2) of the WMAT Rural 

Water System Loan Authorization Act (P.L. 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 this Act’s 

enforceability date. 

Section 12. Authorizations of appropriations 

Subsection 12(a) authorizes to be appropriated approximately 

$126 million for the planning, engineering, design, environmental 

compliance, and construction of the WMAT rural water system. 

Subsection 12(b) establishes the WMAT Settlement Fund within 

the Treasury of the United States, and authorizes the appropriation of $113.5 million for deposit therein, of which not less than 

$4.95 million must be used for rehabilitation of existing irrigation 

systems. Authorized uses of funds in the WMAT Settlement Fund 

are listed in Subsection 12(b)(2)(C). Subsection 12(b) also establishes within the Treasury the WMAT Maintenance Fund, authorizes the appropriation of $50 million for deposit therein, 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) indexes the amounts to be appropriated for the 

WMAT rural water supply system, the WMAT Settlement Fund 


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and the WMAT Maintenance Fund to be adjusted to reflect changes 

in construction cost indices since October 1, 2007. 

Section 12(d) provides for the transfer of up to $50 million into 

the White Mountain Apache Subaccount from the Emergency Fund 

for Indian Safety and Health, if funds are available. A subsequent 

transfer of up to $50 million from the Emergency Fund for Indian 

Safety and Health is also authorized, for a total to not exceed $100 

million. 

Section 12(e) authorizes to be appropriated $2.5 million for the 

operation, maintenance, and replacement costs of the WMAT rural 

water system. It also allows the Tribe or the Secretary to use 

amounts deposited in the WMAT Maintenance Fund for operation, 

maintenance, and replacement costs of the WMAT rural water system. 

Section 12(f) authorizes the appropriation of up to $25 million for 

WMAT rural water system cost overruns. These sums are to be derived by transfer from the appropriations authorized in subsection 

12(b)(2)(B), resulting in no net increase of total authorized appropriations under the Act. 

Section 12(g) provides the conditions for expenditure or withdrawal of funds authorized to be appropriated to the Secretary for 

deposit in the WMAT Maintenance Fund, and any interest accrued. 

Section 13. Antideficiency 

Section 13 provides that the United States shall not be liable for 

failure to carry out obligations or activities required by this Act, if 

adequate appropriations for such purposes are not provided by 

Congress. 

Section 14. Repeal on failure of enforceability date 

Section 14 repeals the Act if the Secretary does not publish the 

statement of findings required under Subsection 9(d) by the enforceability date of October 31, 2015, effective beginning on November 1, 2015. Any amounts appropriated under subsections (a), (b), 

(d), and (e) of section 12 along with any interest shall immediately 

revert to the Treasury. The section further provides for return of 

other amounts deposited in the White Mountain Apache Tribe 

Water Settlement Subaccount, along with any interest, to their 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, including the National Environmental Policy Act of 1969 

(42 U.S.C. 4321 et seq.) and the Endangered Species Act of 1973 

(16 U.S.C. 1531 et seq.). 

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 

Natural Resources’ oversight findings and recommendations are reflected in the body of this report. 


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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. General Performance Goals and Objectives. As required by 

clause 3(c)(4) of rule XIII, the general performance goal or objective 

of this bill is to resolve water rights claims of the White Mountain 

Apache Tribe in the State of Arizona, and for other purposes 

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: 

H.R. 1065—White Mountain Apache Tribe Water Rights Quantification Act of 2009 

Summary: H.R. 1065 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 H.R. 1065 would increase discretionary 

spending by $134 million over the 2010–2019 period and $66 million after 2019. CBO also estimates that enacting H.R. 1065 would 

increase direct spending by $125 million over the 2010–2019 period 

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

H.R. 1065 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 


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below the threshold established in UMRA ($69 million in 2009, adjusted annually for inflation). 

H.R. 1065 contains no private-sector mandates as defined in 

UMRA. 

Estimated cost to the federal government: The estimated budgetary impact of H.R. 1065 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 a

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: b

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

Note: DOI = Department of the Interior; * = less than $500,000. Amounts may not sum to totals because of rounding. a Excludes amounts authorized to be appropriated for a Tribal Maintenance Fund because CBO expects those amounts would not be needed until 2021. b CBO estimates that an additional $22 million would be spent for the water system after 2019. 


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Basis of estimate: For this estimate, CBO assumes that H.R. 

1065 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 H.R. 1065, 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 

H.R. 1065 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 H.R. 1065 

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. Under the bill, that spending would 

occur after fiscal year 2020. 

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 


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

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 H.R. 1065, 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 


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Lower Colorado River Basin Development Fund, with deposits into 

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. Under the bill, interest accrued on amounts appropriated for 

both the settlement and maintenance funds could not be spent 

until after 2020. Because we expect that funds would be appropriated for those purposes 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 in 2021. 

Estimated impact on state, local, and tribal governments: H.R. 

1065 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: H.R. 1065 contains no 

private-sector mandates as defined in UMRA. 

Previous CBO estimate: On November, 16, 2009, CBO transmitted a cost estimate for S. 313, the White Mountain Apache 

Tribe Water Rights Quantification Act of 2009, as ordered reported 


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by the Senate Committee on Indian Affairs on September 10, 2009. 

The two bills are similar, and the CBO cost estimates are the 

same. 

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. 

COMPLIANCE WITH PUBLIC LAW 104–4 

This bill contains no unfunded mandates. 

EARMARK STATEMENT

H.R. 1065 does not contain any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9 of rule 

XXI. 

PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

This bill is not intended to preempt any State, local or tribal law. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as 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): 

SECTION 3 OF THE WHITE MOUNTAIN APACHE TRIBE 

RURAL WATER SYSTEM LOAN AUTHORIZATION ACT 

SEC. 3. MINER FLAT PROJECT LOAN. 

(a) * * * 

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

shall— 

(1) * * * 

(2) be repaid over a term of 25 years, beginning on January 1, ø2013¿ 2016. 

* * * * * * * 


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ADDITIONAL VIEWS OF REPRESENTATIVE GRACE F. 

NAPOLITANO 

The White Mountain Apache Tribe Water Rights Quantification 

Act of 2009 (H.R. 1065) would ratify the Settlement Agreement 

that would quantify the water rights of the White Mountain 

Apache Tribe (Tribe). The bill would settle the Tribe’s past, present 

and future claims against the United States for compromising tribal water rights and failing to maintain federal irrigation projects 

serving the reservation and authorize funds for the development of 

a drinking water system on the Tribe’s reservation. 

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 H.R. 1065, 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 

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, 

(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. 

Included with these views is a December 14, 2009, letter sent by 

the Tribe to Representative Kirkpatrick and myself that responds 

to the issues raised by Commissioner Connor in the Views Letter. 

I would like to highlight a few of the Tribe’s responses: 

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. H.R. 1065, 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, 


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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 

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. 

H.R. 1065, 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 H.R. 1065, Section 

9(a)(3)(F).) As a result, the additional language concerning the 

United State’s liability is unnecessary. 

2. 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, H.R. 1065, 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 H.R. 1065 comply with 

a plan it has failed to prepare. 

3. 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. 

GRACE F. NAPOLITANO. 


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ADDITIONAL VIEWS OF REPRESENTATIVE TOM 

MCCLINTOCK 

This bill rightly attempts to resolve longstanding Indian water 

rights claims, but Congress lacks sufficient information to assess 

whether the $292 million authorized in this legislation is appropriate. Therefore, as Ranking Republican of the House Water and 

Power Subcommittee, I have serious fiscal concerns with this wellintended bill. 

It is important that Congress play a role in settling Indian water 

rights claims, some of which comprise the oldest standing litigation 

in the federal court system. Settling legal claims not only resolves 

litigation but also can help establish water supply certainty for 

water users on and off-reservations. 

But Congress must also answer key questions when it considers 

these and other settlements and should not be just a rubber stamp. 

For example, one of the most important questions involving a settlement—especially when American taxpayer dollars will be used is 

whether resolving the litigation will be advantageous to the federal 

government compared to its liability under current law. That question has not been answered for H.R. 1065. 

If Congress were the board of directors of a private corporation 

deciding whether to approve a negotiated legal settlement, we 

would be guilty of breaching our fiduciary responsibility to stockholders if we made that decision without consulting legal counsel 

to determine the company’s financial exposure absent the settlement. 

Since this question remains unanswered, Congress is forced to be 

the arbitrator between sides involved in the litigation. This is a 

role Congress should not be forced to assume without sufficient information. Given the troublesome fact that the current Administration has expressed general fiscal and other reservations about this 

bill, Congress should ask for and deserves answers. As part of this, 

Department of the Interior was asked for its views on the bill as 

passed by the Natural Resources Committee. The Department’s response to Congress, which is attached, clearly indicates there are 

issues that still need to be resolved. 

I also sent a letter on September 25, 2009 to the Department of 

Justice asking for opinions on this legislation. The letter specifically asks the Attorney General to provide his view on the ‘‘likelihood that the recipients of water rights and funds transferred by 

these settlements would prevail on the merits of their claims and 

whether these settlement amounts represent a net benefit to the 

taxpayers as compared to the consequences and costs of litigation.’’ 

To date, I have not received a response from the Department of 

Justice, and I fundamentally believe that Congress needs this and 

other answers before moving forward with spending hundreds of 

millions of American taxpayer dollars. 


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My request is based on precedent. In an appearance before the 

Natural Resources Committee on legislation resolving Colville Indian claims, a Clinton Administration Justice Department official 

testified in 1994, ‘‘[T]he Federal government is not that well postured for a victory on this claim which has been pending for over 

40 years. Absent the settlement, we could well litigate it for another ten years and the outcome could easily be a significant cost 

to the taxpayers and the public.’’ This testimony was very helpful 

in moving that legislation forward. According to the Congressional 

Research Service, Justice Department officials have testified on additional settlements pending before Congress, so there is no reason 

why this Congress should act without similar information on this 

bill. 

Without these transparent answers and with the large amount 

of taxpayer funding in this bill, I have serious concerns with the 

way this Congress and the Obama Administration are moving forward on H.R. 1065 and Indian water rights settlement bills in general. 

TOM MCCLINTOCK. 


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