I

103D CONGRESS

2D SESSION S. 1146

IN THE HOUSE OF REPRESENTATIVES

JULY 27, 1994

Referred to the Committee on Natural Resources

AN ACT

To provide for the settlement of the water rights claims

of the Yavapai-Prescott Indian Tribe in Yavapai County,

Arizona, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Yavapai-Prescott

5 Indian Tribe Water Rights Settlement Act of 1994’’.
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1 SEC. 2. CONGRESSIONAL FINDINGS AND DECLARATIONS.

2 (a) FINDINGS.—The Congress finds that—

3 (1) it is the policy of the United States, in ful4 fillment of its trust responsibility to the Indian

5 tribes, to promote Indian self-determination and eco6 nomic self-sufficiency, and to settle, wherever pos7 sible, the water rights claims of Indian tribes with8 out lengthy and costly litigation;

9 (2) meaningful Indian self-determination and

10 economic self-sufficiency depend on the development

11 of viable Indian reservation economies;

12 (3) quantification of rights to water and devel13 opment of facilities needed to utilize tribal water

14 supplies effectively is essential to the development of

15 viable Indian reservation economies, particularly in

16 arid western States;

17 (4) on June 7, 1935, and by actions subsequent

18 thereto, the United States established a reservation

19 for the Yavapai-Prescott Indian Tribe in Arizona ad20 jacent to the city of Prescott;

21 (5) proceedings to determine the full extent of

22 Yavapai-Prescott Tribe’s water rights are currently

23 pending before the Superior Court of the State of

24 Arizona in and for Maricopa County, as part of the

25 general adjudication of the Gila River system and

26 source;
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1 (6) recognizing that final resolution of the gen2 eral adjudication will take many years and entail

3 great expense to all parties, prolong uncertainty as

4 to the full extent of the Yavapai-Prescott Tribe’s en5 titlement to water and the availability of water sup6 plies to fulfill that entitlement, and impair orderly

7 planning and development by the Tribe and the city

8 of Prescott; the Tribe, the city of Prescott, the

9 Chino Valley Irrigation District, the State of Ari10 zona and the United States have sought to settle all

11 claims to water between and among them;

12 (7) representatives of the Yavapai-Prescott

13 Tribe, the city of Prescott, the Chino Valley Irriga14 tion District, the State of Arizona and the United

15 States have negotiated a Settlement Agreement to

16 resolve all water rights claims between and among

17 them, and to provide the Tribe with long term, reli18 able water supplies for the orderly development and

19 maintenance of the Tribe’s reservation;

20 (8) pursuant to the Settlement Agreement and

21 the Water Service Agreement, the quantity of water

22 made available to the Yavapai-Prescott Tribe by the

23 city of Prescott and the Chino Valley Irrigation Dis24 trict will be secured, such Agreements will be contin25 ued in perpetuity, and the Tribe’s continued on-res-
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1 ervation use of water for municipal and industrial,

2 recreational and agricultural purposes will be pro3 vided for;

4 (9) to advance the goals of Federal Indian pol5 icy and to fulfill the trust responsibility of the Unit6 ed States to the Tribe, it is appropriate that the

7 United States participate in the implementation of

8 the Settlement Agreement and assist in firming up

9 the long-term water supplies of the city of Prescott

10 and the Yavapai-Prescott Tribe so as to enable the

11 Tribe to utilize fully its water entitlements in devel12 oping a diverse, efficient reservation economy; and

13 (10) the assignment of the CAP contract of the

14 Yavapai-Prescott Tribe and the CAP subcontract of

15 the city of Prescott is a cost-effective means to en16 sure reliable, long-term water supplies for the

17 Yavapai-Prescott Tribe and to promote efficient, en18 vironmentally sound use of available water supplies

19 in the Verde River basin.

20 (b) DECLARATION OF PURPOSES.—The Congress de21 clares that the purposes of this Act are—

22 (1) to approve, ratify and confirm the Settle23 ment Agreement among the Yavapai-Prescott Tribe,

24 the city of Prescott, the Chino Valley Irrigation Dis25 trict, the State of Arizona and the United States;
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1 (2) to authorize and direct the Secretary of the

2 Interior to execute and perform the Settlement

3 Agreement;

4 (3) to authorize the actions and appropriations

5 necessary for the United States to fulfill its legal

6 and trust obligations to the Yavapai-Prescott Tribe

7 as provided in the Settlement Agreement and this

8 Act;

9 (4) to require that expenditures of funds ob10 tained through the assignment of CAP contract enti11 tlements by the Yavapai-Prescott Tribe and Prescott

12 for the acquisition or development of replacement

13 water supplies in the Verde River basin shall not be

14 inconsistent with the goals of the Prescott Active

15 Management Area, preservation of riparian habitat,

16 flows and biota of the Verde River and its tribu17 taries; and

18 (5) to repeal section 406(k) of Public Law 101–

19 628 which authorizes $30,000,000 in appropriations

20 for the acquisition of land and water resources in

21 the Verde River basin and for the development

22 thereof as an alternative source of water for the

23 Fort McDowell Indian Community.

24 SEC. 3. DEFINITIONS.

25 For purposes of this Act:
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1 (1) The term ‘‘CAP’’ means the Central Ari2 zona Project, a reclamation project authorized under

3 title III of the Colorado River Basin Project Act of

4 1968 (43 U.S.C. 1521 et seq.).

5 (2) The term ‘‘CAWCD’’ means the Central Ar6 izona Water Conservation District, organized under

7 the laws of the State of Arizona, which is the con8 tractor under a contract with the United States,

9 dated December 1, 1988, for the delivery of water

10 and repayment of costs of the Central Arizona

11 Project.

12 (3) The term ‘‘CVID’’ means the Chino Valley

13 Irrigation District, an irrigation district organized

14 under the laws of the State of Arizona.

15 (4) The term ‘‘Prescott AMA’’ means the Ac16 tive Management Area, established pursuant to Ari17 zona law and encompassing the Prescott ground

18 water basin, wherein the primary goal is to achieve

19 balance between annual ground water withdrawals

20 and natural and artificial recharge by the year 2025.

21 (5) The term ‘‘Prescott’’ means the city of

22 Prescott, an Arizona municipal corporation.

23 (6) The term ‘‘Reservation’’ means the reserva24 tion established by the Act of June 7, 1935 (49
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1 Stat. 332) and the Act of May 18, 1956 (70 Stat.

2 157) for the Yavapai-Prescott Tribe of Indians.

3 (7) The term ‘‘Secretary’’ means the Secretary

4 of the United States Department of the Interior.

5 (8) The term ‘‘Settlement Agreement’’ means

6 that agreement entered into by the city of Prescott,

7 the Chino Valley Irrigation District, the Yavapai8 Prescott Indian Tribe, the State of Arizona, and the

9 United States, providing for the settlement of all

10 water claims between and among them.

11 (9) The term ‘‘Tribe’’ means the Yavapai-Pres12 cott Indian Tribe, a tribe of Yavapai Indians duly

13 recognized by the Secretary.

14 (10) The term ‘‘Water Service Agreement’’

15 means that agreement between the Yavapai-Prescott

16 Indian Tribe and the city of Prescott, as approved

17 by the Secretary, providing for water, sewer, and ef18 fluent service from the city of Prescott to the

19 Yavapai-Prescott Tribe.

20 SEC. 4. RATIFICATION OF SETTLEMENT AGREEMENT.

21 (a) APPROVAL OF SETTLEMENT AGREEMENT.—To

22 the extent the Settlement Agreement does not conflict with

23 the provisions of this Act, such Agreement is approved,

24 ratified and confirmed. The Secretary shall execute and

25 perform such Agreement, and shall execute any amend-
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1 ments to the Agreement and perform any action required

2 by any amendments to the Agreement which may be mutu3 ally agreed upon by the parties.

4 (b) PERPETUITY.—The Settlement Agreement and

5 Water Service Agreement shall include provisions which

6 will ensure that the benefits to the Tribe thereunder shall

7 be secure in perpetuity. Notwithstanding the provisions of

8 section 2103 of the Revised Statutes of the United States

9 (25 U.S.C. 81) relating to the term of the Agreement, the

10 Secretary is authorized and directed to approve the Water

11 Service Agreement with a perpetual term.

12 SEC. 5. ASSIGNMENT OF CAP WATER.

13 The Secretary is authorized and directed to arrange

14 for the assignment of, or to purchase, the CAP contract

15 of the Tribe and the CAP subcontract of the city of Pres16 cott to provide funds for deposit into the Verde River

17 Basin Water Fund established pursuant to section 6.

18 SEC. 6. REPLACEMENT WATER FUND; CONTRACTS.

19 (a) FUND.—The Secretary shall establish a fund to

20 be known as the ‘‘Verde River Basin Water Fund’’ (here21 inafter called the ‘‘Fund’’) to provide replacement water

22 for the CAP water relinquished by the Tribe and by Pres23 cott. Moneys in the Fund shall be available without fiscal

24 year limitations.
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1 (b) CONTENT OF FUND.—The Fund shall consist of

2 moneys obtained through the assignment or purchase of

3 the contract and subcontract referenced in section 5, ap4 propriations as authorized in section 9, and any moneys

5 returned to the Fund pursuant to subsection (d) of this

6 section.

7 (c) PAYMENTS FROM FUND.—The Secretary shall,

8 subsequent to the publication of a statement of findings

9 as provided in section 12(a), promptly cause to be paid

10 from the Fund to the Tribe the amounts deposited to the

11 Fund from the assignment or purchase of the Tribe’s CAP

12 contract, and, to the city of Prescott, the amounts depos13 ited to the Fund from the assignment or purchase of the

14 city’s CAP subcontract.

15 (d) CONTRACTS.—The Secretary shall require, as a

16 condition precedent to the payment of any moneys pursu17 ant to subsection (c), that the Tribe and Prescott agree,

18 by contract with the Secretary, to establish trust accounts

19 into which the payments would be deposited and adminis20 tered, to use such moneys consistent with the purpose and

21 intent of section 7, to provide for audits of such accounts,

22 and for the repayment to the Fund, with interest, any

23 amount determined by the Secretary not to have been used

24 within the purpose and intent of section 7.
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1 SEC. 7. EXPENDITURES OF FUNDS.

2 (a) BY THE CITY.—All moneys paid to Prescott for

3 relinquishing its CAP subcontract and deposited into a

4 trust account pursuant to section 6(d), shall be used for

5 the purposes of defraying expenses associated with the in6 vestigation, acquisition or development of alternative

7 sources of water to replace the CAP water relinquished

8 under this Act. Alternative sources shall be understood to

9 include, but not be limited to, retirement of agricultural

10 land and acquisition of associated water rights, develop11 ment of ground water resources outside the Prescott Ac12 tive Management Area established pursuant to the laws

13 of the State of Arizona, and artificial recharge; except that

14 none of the moneys paid to Prescott may be used for con15 struction or renovation of the city’s existing waterworks

16 or water delivery system.

17 (b) BY THE TRIBE.—All funds paid to the Tribe for

18 relinquishing its CAP contract and deposited into a trust

19 account pursuant to section 6(d), shall be used to defray

20 its water service costs under the Water Service Agreement

21 or to develop and maintain facilities for on-reservation

22 water or effluent use.

23 (c) NO PER CAPITA PAYMENTS.—No amount of the

24 Tribe’s portion of the Fund may be used to make per cap25 ita payments to any member of the Tribe, nor may any

26 amount of any payment made pursuant to section 6(c) be
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1 distributed as a dividend or per capita payment to any

2 constituent, member, shareholder, director or employee of

3 Prescott.

4 (d) DISCLAIMER.—Effective with the payment of

5 funds pursuant to section 6(c), the United States shall not

6 be liable for any claim or cause of action arising from the

7 use of such funds by the Tribe or by Prescott.

8 SEC. 8. ENVIRONMENTAL COMPLIANCE.

9 The Secretary, the Tribe and Prescott shall comply

10 with all applicable Federal environmental and State envi11 ronmental and water laws in developing alternative water

12 sources pursuant to section 7(a). Development of such al13 ternative water sources shall not be inconsistent with the

14 goals of the Prescott Active Management Area, preserva15 tion of the riparian habitat, flows and biota of the Verde

16 River and its tributaries.

17 SEC. 9. APPROPRIATIONS AUTHORIZATION AND REPEAL.

18 (a) AUTHORIZATION.—There are authorized to be ap19 propriated to the Fund established pursuant to section

20 6(a):

21 (1) Such sums as may be necessary, but not to

22 exceed $200,000, to the Secretary for the Tribe’s

23 costs associated with judicial confirmation of the set24 tlement.
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1 (2) Such sums as may be necessary to estab2 lish, maintain and operate the gauging station re3 quired under section 11(e).

4 (b) STATE CONTRIBUTION.—The State of Arizona

5 shall contribute $200,000 to the trust account established

6 by the Tribe pursuant to the Settlement Agreement and

7 section 6(d) for uses consistent with section 7(b).

8 (c) REPEAL.—Subsection 406(k) of the Act of No9 vember 28, 1990 (Public Law 101–628; 104 Stat. 4487)

10 is repealed.

11 SEC. 10. SATISFACTION OF CLAIMS.

12 (a) WAIVER.—The benefits realized by the Tribe or

13 any of its members under the Settlement Agreement and

14 this Act shall constitute full and complete satisfaction of

15 all claims by the Tribe and all members’ claims for water

16 rights or injuries to water rights under Federal and State

17 laws (including claims for water rights in ground water,

18 surface water and effluent) from time immemorial to the

19 effective date of this Act, and for any and all future claims

20 of water rights (including claims for water rights in

21 ground water, surface water, and effluent) from and after

22 the effective date of this Act. Nothing in this Act shall

23 be deemed to recognize or establish any right of a member

24 of the Tribe to water on the Tribe’s reservation.
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1 (b) WAIVER AND RELEASE.—The Tribe, on behalf of

2 itself and its members, and the Secretary on behalf of the

3 United States, are authorized and required, as a condition

4 to the implementation of this Act, to execute a waiver and

5 release, except as provided in subsection (d) and the Set6 tlement Agreement, of all claims of water rights or injuries

7 to water rights (including water rights in ground water,

8 surface water and effluent), from and after the effective

9 date of this Act, which the Tribe and its members may

10 have, against the United States, the State of Arizona or

11 any agency or political subdivision thereof, or any other

12 person, corporation, or municipal corporation, arising

13 under the laws of the United States or the State of Ari14 zona.

15 (c) WAIVER BY UNITED STATES.—Except as pro16 vided in subsection (d) and the Settlement Agreement, the

17 United States, in its own right or on behalf of the Tribe,

18 shall not assert any claim against the State of Arizona

19 or any political subdivision thereof, or against any other

20 person, corporation, or municipal corporation, arising

21 under the laws of the United States or the State of Ari22 zona based upon water rights or injuries to water rights

23 of the Tribe and its members or based upon water rights

24 or injuries to water rights held by the United States on

25 behalf of the Tribe and its members.
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1 (d) RIGHTS RETAINED.—In the event the waivers of

2 claims authorized in subsection (b) of this section do not

3 become effective pursuant to section 12(a), the Tribe, and

4 the United States on behalf of the Tribe, shall retain the

5 right to assert past and future water rights claims as to

6 all reservation lands.

7 (e) JURISDICTION.—The United States District

8 Court for the District of Arizona shall have original juris9 diction of all actions arising under this Act, the Settlement

10 Agreement and the Water Service Agreement, including

11 review pursuant to title 9, United States Code, of any ar12 bitration and award under the Water Service Agreement.

13 (f) CLAIMS.—Nothing in this Act shall be deemed to

14 prohibit the Tribe, or the United States on behalf of the

15 Tribe, from asserting or maintaining any claims for the

16 breach or enforcement of the Settlement Agreement or the

17 Water Service Agreement.

18 (g) DISCLAIMER.—Nothing in this Act shall affect

19 the water rights or claims related to any trust allotment

20 located outside the exterior boundaries of the reservation

21 of any member of the Tribe.

22 (h) FULL SATISFACTION OF CLAIMS.—Payments

23 made to Prescott under this Act shall be in full satisfac24 tion for any claim that Prescott might have against the
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1 Secretary or the United States related to the allocation,

2 reallocation, relinquishment or delivery of CAP water.

3 SEC. 11. MISCELLANEOUS PROVISIONS.

4 (a) JOINING OF PARTIES.—In the event any party

5 to the Settlement Agreement should file a lawsuit in any

6 United States district court relating only and directly to

7 the interpretation or enforcement of the Settlement Agree8 ment or this Act, naming the United States of America

9 or the Tribe as parties, authorization is hereby granted

10 to join the United States of America or the Tribe, or both,

11 in any such litigation, and any claim by the United States

12 of America or the Tribe to sovereign immunity from such

13 suit is hereby waived. In the event Prescott submits a dis14 pute under the Water Service Agreement to arbitration

15 or seeks review by the United States District Court for

16 the District of Arizona of an arbitration award under the

17 Water Service Agreement, any claim by the Tribe to sov18 ereign immunity from such arbitration or review is hereby

19 waived.

20 (b) NO REIMBURSEMENT.—The United States of

21 America shall make no claims for reimbursement of costs

22 arising out of the implementation of the Settlement Agree23 ment or this Act against any lands within the Yavapai24 Prescott Indian Reservation, and no assessment shall be

25 made with regard to such costs against such lands.
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1 (c) WATER MANAGEMENT.—The Tribe shall estab2 lish a ground water management plan for the Reservation

3 which, except to be consistent with the Water Service

4 Agreement, the Settlement Agreement and this Act, will

5 be compatible with the ground water management plan in

6 effect for the Prescott Active Management Area and will

7 include an annual information exchange with the Arizona

8 Department of Water Resources. In establishing a ground

9 water management plan pursuant to this section, the

10 Tribe may enter into a Memorandum of Understanding

11 with the Arizona Department of Water Resources for con12 sultation. Notwithstanding any other law, the Tribe may

13 establish a tribal water code, consistent with the above14 described water management plan, under which the Tribe

15 will manage, regulate, and control the water resources

16 granted it in the Settlement Act, the Settlement Agree17 ment, and the Water Service Agreement, except that such

18 management, regulation and control shall not authorize

19 any action inconsistent with the trust ownership of the

20 Tribe’s water resources.

21 (d) GAUGING STATION.—The Secretary, acting

22 through the Geological Survey, shall establish, maintain

23 and operate a gauging station at the State Highway 89

24 bridge across Granite Creek adjacent to the reservation

25 to assist the Tribe and the CVID in allocating the surface
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1 flows from Granite Creek as provided in the Settlement

2 Agreement.

3 SEC. 12. EFFECTIVE DATE.

4 (a) WAIVERS AND RELEASES.—The waivers and re5 leases required by section 10(b) of this Act shall become

6 effective as of the date the Secretary causes to be pub7 lished in the Federal Register a statement of findings

8 that—

9 (1)(A) the Secretary has determined that an ac10 ceptable party, or parties, have executed contracts

11 for the assignments of the Tribe’s CAP contract and

12 the city of Prescott’s CAP subcontract, and the pro13 ceeds from the assignments have been deposited into

14 the Fund as provided in section 6(d); or,

15 (B) the Secretary has executed contracts for

16 the acquisition of the Tribe’s CAP contract and the

17 city of Prescott’s CAP subcontract as provided in

18 section 6(d);

19 (2) the stipulation which is attached to the Set20 tlement Agreement as exhibit 9.5, has been approved

21 in substantially the form of such exhibit no later

22 than December 31, 1994;

23 (3) the Settlement Agreement has been modi24 fied to the extent it is in conflict with this Act and

25 has been executed by the Secretary; and
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1 (4) the State of Arizona has appropriated and

2 deposited into the Tribe’s trust account $200,000 as

3 required by the Settlement Agreement.

4 (b) DEADLINE.—If the actions described in para5 graphs (1), (2), (3), and (4) of subsection (a) have not

6 occurred by December 31, 1995, any contract between

7 Prescott and the United States entered into pursuant to

8 section 6(d) shall not thereafter be effective, and any

9 funds appropriated by the State of Arizona pursuant to

10 the Settlement Agreement shall be returned by the Tribe

11 to the State of Arizona.

12 SEC. 13. OTHER CLAIMS.

13 (a) OTHER TRIBES.—Nothing in the Settlement

14 Agreement or this Act shall be construed in any way to

15 quantify or otherwise adversely affect the land and water

16 rights, claims or entitlements to water of any Arizona In17 dian tribe, band or community, other than the Tribe.

18 (b) FEDERAL AGENCIES.—Nothing in this Act shall

19 be construed to affect the water rights or the water rights

20 claims of any Federal agency, other than the Bureau of

21 Indian Affairs on behalf of the Tribe.

Passed the Senate July 26 (legislative day, July 20),

1994.

Attest: MARTHA S. POPE,

Secretary.

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