II 

110TH CONGRESS 

2D SESSION S. 3473 

To resolve water rights claims of the White Mountain Apache Tribe in 

the State of Arizona, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 11, 2008 

Mr. KYL introduced the following bill; which was read twice and referred to 

the Committee on Indian Affairs 

A BILL 

To resolve water rights claims of the White Mountain Apache 

Tribe in the State of 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 ‘‘White Mountain 

5 Apache Tribe Water Rights Quantification Act of 2008’’. 

6 SEC. 2. FINDINGS AND PURPOSES. 

7 (a) FINDINGS.—Congress finds that— 

8 (1) proceedings to determine the nature and ex9 tent of the water rights of the White Mountain 


jbell on PROD1PC69 with BILLS
2 

•S 3473 IS

1 Apache Tribe, members of the Tribe, the United 

2 States, and other claimants are pending in— 

3 (A) the consolidated civil action in the Su4 perior Court of the State of Arizona for the 

5 County of Maricopa styled In re the General 

6 Adjudication of All Rights To Use Water In 

7 The Gila River System and Source, W–1 (Salt), 

8 W–2 (Verde), W–3 (Upper Gila), W–4 (San 

9 Pedro); and 

10 (B) the civil action pending in the Superior 

11 Court of the State of Arizona for the County of 

12 Apache styled In re the General Adjudication of 

13 All Rights to Use Water in the Little Colorado 

14 River System and Source and numbered CIV– 

15 6417; 

16 (2) a final resolution of those proceedings 

17 might— 

18 (A) take many years; 

19 (B) entail great expense; 

20 (C) prolong uncertainty concerning the 

21 availability of water supplies; and 

22 (D) seriously impair the long-term eco23 nomic well-being of all parties to the pro24 ceedings; 


jbell on PROD1PC69 with BILLS
3 

•S 3473 IS

1 (3) the Tribe, non-Indian communities located 

2 near the reservation of the Tribe, and other Arizona 

3 water users have agreed— 

4 (A) to permanently quantify the water 

5 rights of the Tribe, members of the Tribe, and 

6 the United States in its capacity as trustee for 

7 the Tribe and members in accordance with the 

8 Agreement; and 

9 (B) to seek funding, in accordance with 

10 applicable law, for the implementation of the 

11 Agreement; 

12 (4) it is the policy of the United States to quan13 tify, to the maximum extent practicable, water rights 

14 claims of Indian tribes without lengthy and costly 

15 litigation; 

16 (5) as of the date of enactment of this Act, the 

17 tribal water rights are unquantified vested property 

18 rights held in trust by the United States for the ben19 efit of the Tribe; and 

20 (6) in keeping with the trust responsibility of 

21 the United States to Indian tribes, and to promote 

22 tribal sovereignty and economic self-sufficiency, it is 

23 appropriate that the United States participate in 

24 and contribute funds for the implementation of the 

25 Agreement. 


jbell on PROD1PC69 with BILLS
4 

•S 3473 IS

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

2 (1) to authorize, ratify, and confirm the Agree3 ment; 

4 (2) to authorize and direct the Secretary to exe5 cute the Agreement and carry out all obligations of 

6 the Secretary under the Agreement; 

7 (3) to authorize the actions and appropriations 

8 necessary for the United States to meet the obliga9 tions of the United States under the Agreement and 

10 this Act; and 

11 (4) to permanently resolve certain damage 

12 claims and all water rights claims among— 

13 (A) the Tribe and its members; 

14 (B) the United States in its capacity as 

15 trustee for the Tribe and its members; 

16 (C) the parties to the Agreement; and 

17 (D) all other claimants in the proceedings 

18 referred to in subsection (a)(1). 

19 SEC. 3. DEFINITIONS. 

20 In this Act: 

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

22 (A) the WMAT Water Rights Quantifica23 tion Agreement dated lllll; and 


jbell on PROD1PC69 with BILLS
5 

•S 3473 IS

1 (B) any amendment or exhibit (including 

2 exhibit amendments) to that agreement that 

3 are— 

4 (i) made in accordance with this Act; 

5 or 

6 (ii) otherwise approved by the Sec7 retary. 

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

9 Bureau of Reclamation. 

10 (3) CAP.—The term ‘‘CAP’’ means the rec11 lamation project authorized and constructed by the 

12 United States in accordance with title III of the Col13 orado River Basin Project Act (43 U.S.C. 1521 et 

14 seq.). 

15 (4) CAP CONTRACTOR.—The term ‘‘CAP con16 tractor’’ means an individual or entity that has en17 tered into a long-term contract (as that term is used 

18 in the repayment stipulation) with the United States 

19 for delivery of water through the CAP system. 

20 (5) CAP FIXED OM&R CHARGE.—The term 

21 ‘‘CAP fixed OM&R charge’’ has the meaning given 

22 the term in the repayment stipulation. 

23 (6) CAP M&I PRIORITY WATER.—The term 

24 ‘‘CAP M&I priority water’’ means the CAP water 


jbell on PROD1PC69 with BILLS
6 

•S 3473 IS

1 having a municipal and industrial delivery priority 

2 under the repayment contract. 

3 (7) CAP SUBCONTRACTOR.—The term ‘‘CAP 

4 subcontractor’’ means an individual or entity that 

5 has entered into a long-term subcontract (as that 

6 term is used in the repayment stipulation) with the 

7 United States and the District for the delivery of 

8 water through the CAP system. 

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

10 means— 

11 (A) the Mark Wilmer Pumping Plant; 

12 (B) the Hayden-Rhodes Aqueduct; 

13 (C) the Fannin-McFarland Aqueduct; 

14 (D) the Tucson Aqueduct; 

15 (E) any pumping plant or appurtenant 

16 works of a feature described in any of subpara17 graphs (A) through (D); and 

18 (F) any extension of, addition to, or re19 placement for a feature described in any of sub20 paragraphs (A) through (E). 

21 (9) CAP WATER.—The term ‘‘CAP water’’ 

22 means ‘‘Project Water’’ (as that term is defined in 

23 the repayment stipulation). 

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

25 means— 


jbell on PROD1PC69 with BILLS
7 

•S 3473 IS

1 (A) the contract between the Tribe and the 

2 United States attached as exhibit 7.1 to the 

3 Agreement and numbered 08–XX–30–W0529 

4 and dated llll; and 

5 (B) any amendments to that contract. 

6 (11) DISTRICT.—The term ‘‘District’’ means 

7 the Central Arizona Water Conservation District, a 

8 political subdivision of the State that is the con9 tractor under the repayment contract. 

10 (12) ENFORCEABILITY DATE.—The term ‘‘en11 forceability date’’ means the date described in sec12 tion 12(c)(1). 

13 (13) INJURY TO WATER RIGHTS.— 

14 (A) IN GENERAL.—The term ‘‘injury to 

15 water rights’’ means an interference with, dimi16 nution of, or deprivation of, a water right under 

17 Federal, State, or other law. 

18 (B) INCLUSIONS.—The term ‘‘injury to 

19 water rights’’ includes— 

20 (i) a change in the groundwater table; 

21 and 

22 (ii) any effect of such a change. 

23 (C) EXCLUSION.—The term ‘‘injury to 

24 water rights’’ does not include any injury to 

25 water quality. 


jbell on PROD1PC69 with BILLS
8 

•S 3473 IS

1 (14) OFF-RESERVATION TRUST LAND.—The 

2 term ‘‘off-reservation trust land’’ means land— 

3 (A) located outside the exterior boundaries 

4 of the reservation that is held in trust by the 

5 United States for the benefit of the Tribe as of 

6 the enforceability date; and 

7 (B) depicted on the map attached to the 

8 Agreement as exhibit 2.57. 

9 (15) OPERATING AGENCY.—The term ‘‘Oper10 ating Agency’’ means the 1 or more entities author11 ized to assume responsibility for the care, operation, 

12 maintenance, and replacement of the CAP system. 

13 (16) REPAYMENT CONTRACT.—The term ‘‘re14 payment contract’’ means— 

15 (A) the contract between the United States 

16 and the District for delivery of water and re17 payment of the costs of the CAP, numbered 

18 14–06–W–245 (Amendment No. 1), and dated 

19 December 1, 1988; and 

20 (B) any amendment to, or revision of, that 

21 contract. 

22 (17) REPAYMENT STIPULATION.—The term 

23 ‘‘repayment stipulation’’ means the stipulated judg24 ment and the stipulation for judgment (including 

25 any exhibits to those documents) entered on NovemVerDate Aug 31 2005 03:11 Sep 12, 2008 Jkt 069200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3473.IS S3473

jbell on PROD1PC69 with BILLS
9 

•S 3473 IS

1 ber 21, 2007, in the United States District Court 

2 for the District of Arizona in the consolidated civil 

3 action styled Central Arizona Water Conservation 

4 District v. United States, et al., and numbered CIV 

5 95–625–TUC–WDB (EHC) and CIV 95–1720– 

6 PHX–EHC. 

7 (18) RESERVATION.— 

8 (A) IN GENERAL.—The term ‘‘reservation’’ 

9 means the land within the exterior boundary of 

10 the White Mountain Indian Reservation estab11 lished by the Executive order dated November 

12 9, 1871, as modified by subsequent Executive 

13 orders and Acts of Congress— 

14 (i) known on the date of enactment of 

15 this Act as the ‘‘Fort Apache Reservation’’ 

16 pursuant to the Act of June 7, 1897 (30 

17 Stat. 62, chapter 3); and 

18 (ii) generally depicted on the map at19 tached to the Agreement as exhibit 2.81. 

20 (B) NO EFFECT ON DISPUTE OR AS ADMIS21 SION.—The depiction of the reservation de22 scribed in subparagraph (A)(ii) shall not— 

23 (i) be used to affect any dispute be24 tween the Tribe and the United States 


jbell on PROD1PC69 with BILLS
10 

•S 3473 IS

1 concerning the legal boundary of the res2 ervation; and 

3 (ii) constitute an admission by the 

4 Tribe with regard to any dispute between 

5 the Tribe and the United States con6 cerning the legal boundary of the reserva7 tion. 

8 (19) SECRETARY.—The term ‘‘Secretary’’ 

9 means the Secretary of the Interior. 

10 (20) STATE.—The term ‘‘State’’ means the 

11 State of Arizona. 

12 (21) TRIBAL CAP WATER.—The term ‘‘tribal 

13 CAP water’’ means the CAP water to which the 

14 Tribe is entitled pursuant to the Contract. 

15 (22) TRIBAL WATER RIGHTS.—The term ‘‘tribal 

16 water rights’’ means the water rights of the Tribe 

17 described in paragraph 4.0 of the Agreement. 

18 (23) TRIBE.—The term ‘‘Tribe’’ means the 

19 White Mountain Apache Tribe organized under sec20 tion 16 of the Act of June 18, 1934 (commonly 

21 known as the ‘‘Indian Reorganization Act’’) (25 

22 U.S.C. 476). 

23 (24) WATER RIGHT.—The term ‘‘water right’’ 

24 means any right in or to groundwater, surface 

25 water, or effluent under Federal, State, or other law. 


jbell on PROD1PC69 with BILLS
11 

•S 3473 IS

1 (25) WMAT RURAL WATER SYSTEM.—The 

2 term ‘‘WMAT rural water system’’ means the mu3 nicipal, rural, and industrial water diversion, stor4 age, and delivery system described in section 7. 

5 (26) YEAR.—The term ‘‘year’’ means a cal6 endar year. 

7 SEC. 4. APPROVAL OF AGREEMENT. 

8 (a) APPROVAL.— 

9 (1) IN GENERAL.—Except to the extent that 

10 any provision of the Agreement conflicts with a pro11 vision of this Act, the Agreement is authorized, rati12 fied, and confirmed. 

13 (2) AMENDMENTS.—Any amendment to the 

14 Agreement is authorized, ratified, and confirmed, to 

15 the extent that such an amendment is executed to 

16 ensure the Agreement is consistent with this Act. 

17 (b) EXECUTION OF AGREEMENT.—To the extent that 

18 the Agreement does not conflict with this Act, the Sec19 retary shall— 

20 (1) execute the Agreement (including signing 

21 any exhibit to the Agreement requiring the signature 

22 of the Secretary); and 

23 (2) execute any amendment to the Agreement 

24 necessary to ensure the Agreement is consistent with 

25 this Act. 


jbell on PROD1PC69 with BILLS
12 

•S 3473 IS

1 (c) NATIONAL ENVIRONMENTAL POLICY ACT.— 

2 (1) ENVIRONMENTAL COMPLIANCE.—In imple3 menting the Agreement, the Secretary shall prompt4 ly comply with all applicable requirements of— 

5 (A) the National Environmental Policy Act 

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

7 (B) the Endangered Species Act of 1973 

8 (16 U.S.C. 1531 et seq.); 

9 (C) all other applicable environmental 

10 laws; and 

11 (D) all regulations promulgated under the 

12 laws described in subparagraphs (A) through 

13 (C). 

14 (2) EXECUTION OF AGREEMENT.— 

15 (A) IN GENERAL.—Execution of the Agree16 ment by the Secretary under this section shall 

17 not constitute a major Federal action under the 

18 National Environmental Policy Act of 1969 (42 

19 U.S.C. 4321 et seq.). 

20 (B) ENVIRONMENTAL COMPLIANCE.—The 

21 Secretary shall carry out all necessary environ22 mental compliance required by Federal law in 

23 implementing the Agreement. 

24 (3) LEAD AGENCY.—The Bureau shall serve as 

25 the lead agency with respect to ensuring environVerDate Aug 31 2005 03:11 Sep 12, 2008 Jkt 069200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3473.IS S3473

jbell on PROD1PC69 with BILLS
13 

•S 3473 IS

1 mental compliance associated with the WMAT rural 

2 water system. 

3 SEC. 5. WATER RIGHTS. 

4 (a) RIGHTS HELD IN TRUST.—The tribal water 

5 rights shall be held in trust by the United States on behalf 

6 of Tribe. 

7 (b) REALLOCATION.— 

8 (1) IN GENERAL.—In accordance with this Act 

9 and the Agreement, the Secretary shall reallocate to 

10 the Tribe, and offer to enter into a contract with the 

11 Tribe for the delivery in accordance with this section 

12 of— 

13 (A) an annual entitlement to 23,782 acre14 feet per year of CAP water that has a non-In15 dian agricultural delivery priority (as defined in 

16 the Contract) in accordance with section 

17 104(a)(1)(A)(iii) of the Arizona Water Settle18 ments Act (Public Law 108–451; 118 Stat. 

19 3488), of which— 

20 (i) 3,750 acre-feet per year shall be 

21 firmed by the United States for the benefit 

22 of the Tribe for the 100-year period begin23 ning on January 1, 2008, with priority 

24 equivalent to CAP M&I priority water, in 


jbell on PROD1PC69 with BILLS
14 

•S 3473 IS

1 accordance with section 105(b)(1)(B) of 

2 that Act (118 Stat. 3492); and 

3 (ii) 3,750 acre-feet per year shall be 

4 firmed by the State for the benefit of the 

5 Tribe for the 100-year period beginning on 

6 January 1, 2008, with priority equivalent 

7 to CAP M&I priority water, in accordance 

8 with section 105(b)(2)(B) of that Act (118 

9 Stat. 3492); and 

10 (B) an annual entitlement to 1,218 acre11 feet per year of the water— 

12 (i) acquired by the Secretary through 

13 the permanent relinquishment of the 

14 Harquahala Valley Irrigation District CAP 

15 subcontract entitlement in accordance with 

16 the contract numbered 3–07–30–W0290 

17 among the District, Harquahala Valley Ir18 rigation District, and the United States; 

19 and 

20 (ii) converted to CAP Indian Priority 

21 water (as defined in the Contract) pursu22 ant to the Fort McDowell Indian Commu23 nity Water Rights Settlement Act of 1990 

24 (Public Law 101–628; 104 Stat. 4480). 


jbell on PROD1PC69 with BILLS
15 

•S 3473 IS

1 (2) AUTHORITY OF TRIBE.—Subject to approval 

2 by the Secretary under section 6(a)(1), the Tribe 

3 shall have the sole authority to lease, distribute, ex4 change, or allocate the tribal CAP water described 

5 in paragraph (1). 

6 (c) WATER SERVICE CAPITAL CHARGES.—The Tribe 

7 shall not be responsible for any water service capital 

8 charge for tribal CAP water. 

9 (d) ALLOCATION AND REPAYMENT.—For the pur10 pose of determining the allocation and repayment of costs 

11 of any stages of the CAP constructed after November 21, 

12 2007, the costs associated with the delivery of water de13 scribed in subsection (b), regardless of whether the water 

14 is delivered for use by the Tribe or in accordance with 

15 any assignment, exchange, lease, option to lease, or other 

16 agreement for the temporary disposition of water entered 

17 into by Tribe, shall be— 

18 (1) nonreimbursable; and 

19 (2) excluded from the repayment obligation of 

20 the District. 

21 (e) WATER CODE.—Not later than 18 months after 

22 the enforceability date, the Tribe shall enact a water code 

23 that— 

24 (1) governs the tribal water rights; and 

25 (2) includes, at a minimum— 


jbell on PROD1PC69 with BILLS
16 

•S 3473 IS

1 (A) provisions requiring the measurement, 

2 calculation, and recording of all diversions and 

3 depletions of water on the reservation and on 

4 off-reservation trust land; 

5 (B) terms of a water conservation plan, in6 cluding objectives, conservation measures, and 

7 an implementation timeline; 

8 (C) provisions requiring the approval of 

9 the Tribe for the severance and transfer of 

10 rights to the use of water from historically irri11 gated land identified in paragraph 11.3.2.1 of 

12 the Agreement to diversions and depletions on 

13 other non-historically irrigated land not located 

14 on the watershed of the same water source; and 

15 (D) provisions requiring the authorization 

16 of the Tribe for all diversions of water on the 

17 reservation and on off-reservation trust land by 

18 any individual or entity other than the Tribe. 

19 SEC. 6. CONTRACT. 

20 (a) IN GENERAL.—The Secretary shall enter into the 

21 Contract, in accordance with the Agreement, to provide, 

22 among other things, that— 

23 (1) the Tribe, on approval of the Secretary, 

24 may— 


jbell on PROD1PC69 with BILLS
17 

•S 3473 IS

1 (A) enter into contracts or options to lease 

2 or exchange tribal CAP water in Maricopa, 

3 Pinal, and Pima Counties in the State pro4 viding for the temporary delivery to any indi5 vidual or entity of any portion of the tribal 

6 CAP water, subject to the condition that— 

7 (i) the term of the contract or option 

8 to lease shall not be longer than 100 years; 

9 (ii) the contracts or options to ex10 change shall be for the term provided in 

11 the contract or option; and 

12 (iii) a lease or option to lease pro13 viding for the temporary delivery of tribal 

14 CAP water shall require the lessee to pay 

15 to the Operating Agency all CAP fixed 

16 OM&R charges and all CAP pumping en17 ergy charges (as defined in the repayment 

18 stipulation) associated with the leased 

19 water; and 

20 (B) renegotiate any lease at any time dur21 ing the term of the lease, subject to the condi22 tion that the term of the renegotiated lease 

23 shall not exceed 100 years; 

24 (2) no portion of the tribal CAP water may be 

25 permanently alienated; 


jbell on PROD1PC69 with BILLS
18 

•S 3473 IS

1 (3)(A) the Tribe (and not the United States in 

2 any capacity) shall be entitled to all consideration 

3 due to the Tribe under any contract or option to 

4 lease or exchange tribal CAP water entered into by 

5 the Tribe; and 

6 (B) the United States (in any capacity) has no 

7 trust or other obligation to monitor, administer, or 

8 account for, in any manner— 

9 (i) any funds received by the Tribe as con10 sideration under a contract or option to lease or 

11 exchange tribal CAP water; or 

12 (ii) the expenditure of those funds; 

13 (4)(A) all tribal CAP water shall be delivered 

14 through the CAP system; and 

15 (B) if the delivery capacity of the CAP system 

16 is significantly reduced or anticipated to be signifi17 cantly reduced for an extended period of time, the 

18 Tribe shall have the same CAP delivery rights as a 

19 CAP contractor or CAP subcontractor that is al20 lowed to take delivery of water other than through 

21 the CAP system; 

22 (5) the Tribe may use tribal CAP water on or 

23 off the reservation for any purpose; 

24 (6) as authorized by subsection (f)(2)(A) of sec25 tion 403 of the Colorado River Basin Project Act 


jbell on PROD1PC69 with BILLS
19 

•S 3473 IS

1 (43 U.S.C. 1543) and to the extent that funds are 

2 available in the Lower Colorado River Basin Devel3 opment Fund established by subsection (a) of that 

4 section, the United States shall pay to the Operating 

5 Agency the CAP fixed OM&R charges associated 

6 with the delivery of tribal CAP water (except in the 

7 case of tribal CAP water leased by any individual or 

8 entity); 

9 (7) the Secretary shall waive the right of the 

10 Secretary to capture all return flow from project ex11 change water flowing from the exterior boundary of 

12 the reservation; and 

13 (8) no CAP water service capital charge shall 

14 be due or payable for the tribal CAP water, regard15 less of whether the water is delivered for use by the 

16 Tribe or pursuant to a contract or option to lease 

17 or exchange tribal CAP water entered into by the 

18 Tribe. 

19 (b) REQUIREMENTS.—The Contract shall be— 

20 (1) for permanent service (within the meaning 

21 of section 5 of the Boulder Canyon Project Act (43 

22 U.S.C. 617d)); and 

23 (2) without limit as to term. 

24 (c) RATIFICATION.— 


jbell on PROD1PC69 with BILLS
20 

•S 3473 IS

1 (1) IN GENERAL.—Except to the extent that 

2 any provision of the Contract conflicts with a provi3 sion of this Act, the Contract is authorized, ratified, 

4 and confirmed. 

5 (2) AMENDMENTS.—Any amendment to the 

6 Contract is authorized, ratified, and confirmed, to 

7 the extent that such an amendment is executed to 

8 ensure the Contract is consistent with this Act. 

9 (d) EXECUTION OF CONTRACT.—To the extent that 

10 the Contract does not conflict with this Act, the Secretary 

11 shall execute the Contract. 

12 (e) PAYMENT OF CHARGES.—The Tribe, and any re13 cipient of tribal CAP water through a contract or option 

14 to lease or exchange, shall not be obligated to pay a water 

15 service capital charge or any other charge, payment, or 

16 fee for CAP water, except as provided in an applicable 

17 lease or exchange agreement. 

18 (f) PROHIBITIONS.— 

19 (1) USE OUTSIDE STATE.—No tribal CAP 

20 water may be leased, exchanged, forborne, or other21 wise transferred by the Tribe in any way for use di22 rectly or indirectly outside the State. 

23 (2) USE OFF RESERVATION.—Except as author24 ized by this section and paragraph 4.7 of the Agree25 ment, no tribal water rights under this Act may be 


jbell on PROD1PC69 with BILLS
21 

•S 3473 IS

1 sold, leased, transferred, or used outside the bound2 aries of the reservation or off-reservation trust land 

3 other than pursuant to an exchange. 

4 (3) AGREEMENTS WITH ARIZONA WATER BANK5 ING AUTHORITY.—Nothing in this Act or the Agree6 ment limits the right of the Tribe to enter into an 

7 agreement with the Arizona Water Banking Author8 ity established by section 45–2421 of the Arizona 

9 Revised Statutes (or any successor entity), in ac10 cordance with State law. 

11 (g) LEASES.— 

12 (1) IN GENERAL.—To the extent the leases of 

13 tribal CAP Water by the Tribe to the District and 

14 to any of the cities, attached as exhibits to the 

15 Agreement, are not in conflict with the provisions of 

16 this Act— 

17 (A) those leases are authorized, ratified, 

18 and confirmed; and 

19 (B) the Secretary shall execute the leases. 

20 (2) AMENDMENTS.—To the extent that amend21 ments are executed to make the leases described in 

22 paragraph (1) consistent with this Act, those amend23 ments are authorized, ratified, and confirmed. 


jbell on PROD1PC69 with BILLS
22 

•S 3473 IS

1 SEC. 7. AUTHORIZATION OF THE RURAL WATER SYSTEM. 

2 (a) IN GENERAL.—Subject to the availability of ap3 propriations, the Secretary, acting through the Bureau, 

4 shall plan, design, construct, operate, maintain, replace, 

5 and rehabilitate the WMAT rural water system as gen6 erally described in the project extension report dated Feb7 ruary 2007. 

8 (b) COMPONENTS.—The WMAT rural water system 

9 under subsection (a) shall consist of— 

10 (1) a dam and storage reservoir, pumping 

11 plant, and treatment facilities located along the 

12 North Fork White River near the community of 

13 Whiteriver; 

14 (2) pipelines extending from the water treat15 ment plants to existing water distribution systems 

16 serving the Whiteriver, Carrizo, and Cibecue areas, 

17 together with other communities along the pipeline; 

18 (3) connections to existing distribution facili19 ties, including public and private water systems in 

20 existence on the date of enactment of this Act; 

21 (4) appurtenant buildings and access roads; 

22 (5) electrical power transmission and distribu23 tion facilities necessary for services to rural water 

24 system facilities; 

25 (6) all property and property rights necessary 

26 for the facilities described in this subsection; and 


jbell on PROD1PC69 with BILLS
23 

•S 3473 IS

1 (7) such other project components as the Sec2 retary determines to be appropriate to meet the 

3 water supply, economic, public health, and environ4 mental needs of the portions of the reservation 

5 served by the WMAT rural water system, including 

6 water storage tanks, water lines, and other facilities 

7 for the Tribe and the villages and towns on the res8 ervation. 

9 (c) SERVICE AREA.—The service area of the WMAT 

10 rural water system shall be as described in the Project 

11 Extension report dated February 2007. 

12 (d) CONSTRUCTION REQUIREMENTS.—The compo13 nents of the WMAT rural water system shall be planned 

14 and constructed to a size that is sufficient to meet the 

15 municipal, rural, and industrial water supply requirements 

16 of the WMAT rural water system service area during the 

17 period beginning on the date of enactment of this Act and 

18 ending not earlier than December 31, 2040. 

19 (e) TITLE.—Title to the WMAT rural water system 

20 shall be held in trust by the United States in its capacity 

21 as trustee for the Tribe. 

22 (f) TECHNICAL ASSISTANCE.—The Secretary shall 

23 provide such technical assistance as is necessary to enable 

24 the Tribe to plan, design, construct, operate, maintain, 


jbell on PROD1PC69 with BILLS
24 

•S 3473 IS

1 and replace the WMAT rural water system, including op2 eration and management training. 

3 (g) APPLICABILITY OF ISDEAA.—Planning, design, 

4 construction, operation, maintenance, rehabilitation, and 

5 replacement of the WMAT rural water system on the res6 ervation shall be subject to the Indian Self-Determination 

7 and Education Assistance Act (25 U.S.C. 450 et seq.). 

8 (h) CONDITION.—As a condition of construction of 

9 the facilities authorized by this section, the Tribe shall 

10 provide, at no cost to the Secretary, all land or interests 

11 in land, as appropriate, that the Secretary identifies as 

12 being necessary for those facilities. 

13 SEC. 8. OUTDOOR RECREATION FACILITIES, NATIONAL 

14 FISH HATCHERIES, AND EXISTING IRRIGA15 TION SYSTEMS. 

16 (a) IN GENERAL.—Subject to the availability of ap17 propriations, on request of the Tribe, the Secretary shall 

18 provide financial and technical assistance to complete the 

19 Hawley Lake, Horseshoe Lake, Reservation Lake, Sunrise 

20 Lake, and Big and Little Bear Lake reconstruction 

21 projects and facilities improvements, as generally de22 scribed in the Bureau report entitled ‘‘White Mountain 

23 Apache Tribe Recreation Planning Study—April 2003’’. 

24 (b) ALCHESAY WILLIAMS CREEK NATIONAL FISH

25 HATCHERY COMPLEX.— 


jbell on PROD1PC69 with BILLS
25 

•S 3473 IS

1 (1) IN GENERAL.—Subject to the availability of 

2 appropriations, the Secretary shall operate, main3 tain, rehabilitate, and upgrade the Alchesay-Wil4 liams Creek National Fish Hatchery Complex on the 

5 reservation for the continued general and primary 

6 benefit of the Tribe and the White Mountain region. 

7 (2) COMPLEX REHABILITATION.—The rehabili8 tation of, and upgrades to, the complex described in 

9 paragraph (1) shall include— 

10 (A) raceway construction and rehabilita11 tion, water quality improvements, a water recir12 culation system, supplemental water treatment 

13 capability, equipment acquisition, and building 

14 rehabilitation; and 

15 (B) capital improvement and deferred 

16 maintenance facility needs identified in the re17 ports of the United States Fish and Wildlife 

18 Service entitled ‘‘Facilities Needs Assessment’’ 

19 and ‘‘Merrick Report’’ and dated September 

20 2000, as updated through 2008. 

21 (c) TRIBE FISHERY CENTER.—Subject to the avail22 ability of appropriations, the Secretary shall plan, design, 

23 construct, operate, maintain, rehabilitate, and replace a 

24 fish grow-out facility, to be known as the ‘‘WMAT Fishery 


jbell on PROD1PC69 with BILLS
26 

•S 3473 IS

1 Center’’, on the west side of the reservation for the benefit 

2 of the Tribe, consisting of— 

3 (1) a 10,000-square foot indoor facility; 

4 (2) circular fiberglass tanks; 

5 (3) plumbing and required equipment; 

6 (4) collection and conveyance water systems; 

7 and 

8 (5) raceways and ponds. 

9 (d) SUNRISE SKI PARK SNOW-MAKING INFRASTRUC10 TURE.—Subject to the availability of appropriations, the 

11 Secretary shall plan, design, and construct snow-making 

12 capacity and infrastructure for Sunrise Ski Park, con13 sisting of— 

14 (1) enlargement of Ono Lake; 

15 (2) replacement of snow-making infrastructure, 

16 as necessary; and 

17 (3) expansion of snow-making infrastructure 

18 and capacity to all ski runs on Sunrise Peak, Apache 

19 Peak, and Cyclone Peak. 

20 (e) EXISTING IRRIGATION SYSTEM REHABILITA21 TION.—Subject to the availability of appropriations, the 

22 Secretary shall operate, maintain, rehabilitate, and up23 grade the Canyon Day and other historic irrigation sys24 tems on the reservation for the continued general and pri25 mary benefit of the Tribe. 


jbell on PROD1PC69 with BILLS
27 

•S 3473 IS

1 (f) APPLICABILITY OF ISDEAA.—Planning, design, 

2 construction, operation, maintenance, rehabilitation, re3 placement, and upgrade of the projects identified in this 

4 section shall be subject to the Indian Self-Determination 

5 and Education Assistance Act (25 U.S.C. 450 et seq.). 

6 SEC. 9. FEASIBILITY STUDY OF NEEDED FOREST PROD7 UCTS IMPROVEMENTS. 

8 (a) FEASIBILITY STUDY.—Subject to the availability 

9 of appropriations, on receipt of a request by the Tribe and 

10 pursuant to the Indian Self-Determination and Education 

11 Assistance Act (25 U.S.C. 450 et seq.), the Secretary shall 

12 conduct a feasibility study of options for— 

13 (1) improving the manufacture and use of tim14 ber products derived from commercial forests on the 

15 reservation; and 

16 (2) improving forest management practices, 

17 consistent with sustained yield principles for multi18 purpose forest uses, healthy forest initiatives, and 

19 other applicable law to supply raw materials for fu20 ture manufacture and use. 

21 (b) REPORT.—Not later than 2 years after the date 

22 of enactment of this Act, the Secretary, with concurrence 

23 of the tribal council of the Tribe, shall submit to Congress 

24 a report describing the results of the feasibility study 

25 under subsection (a), including recommendations of the 


jbell on PROD1PC69 with BILLS
28 

•S 3473 IS

1 Secretary, if any, for the improvements described in that 

2 subsection. 

3 (c) IMPLEMENTATION.—Subject to the availability of 

4 appropriations, the Secretary shall plan, design, and con5 struct the improvements recommended under subsection 

6 (b). 

7 SEC. 10. RECREATION IMPOUNDMENTS AND RELATED FA8 CILITIES. 

9 Subject to the availability of appropriations, on re10 ceipt of a request by the Tribe and pursuant to the Indian 

11 Self-Determination and Education Assistance Act (25 

12 U.S.C. 450 et seq.), the Secretary shall— 

13 (1) conduct a feasibility study of recreation im14 poundments throughout the reservation; 

15 (2) develop recommendations for the implemen16 tation, by not later than 1 year after the date of en17 actment of this Act, of feasible recreation impound18 ments; and 

19 (3) plan, design, and construct any rec20 ommended recreation impoundments and related 

21 recreation facilities. 

22 SEC. 11. SATISFACTION OF CLAIMS. 

23 (a) IN GENERAL.—The benefits realized by the Tribe 

24 and its members under this Act shall be in full satisfaction 

25 of all claims of the Tribe and its members for water rights 


jbell on PROD1PC69 with BILLS
29 

•S 3473 IS

1 and injury to water rights, except as set forth in the 

2 Agreement, under Federal, State, or other law with re3 spect to the reservation and off-reservation trust land. 

4 (b) USES OF WATER.—All uses of water on lands 

5 outside of the reservation, if and when such lands are sub6 sequently and finally determined to be part of the reserva7 tion through resolution of any dispute between the Tribe 

8 and the United States over the location of the reservation 

9 boundary, and any fee lands within the reservation put 

10 into trust and made part of the reservation, shall be sub11 ject to the maximum annual diversion amounts and the 

12 maximum annual depletion amounts specified in the 

13 Agreement. 

14 (c) NO RECOGNITION OF WATER RIGHTS.—Notwith15 standing subsection (a), nothing in this Act has the effect 

16 of recognizing or establishing any right of a member of 

17 the Tribe to water on the reservation. 

18 SEC. 12. WAIVER AND RELEASE OF CLAIMS. 

19 (a) IN GENERAL.—– 

20 (1) CLAIMS AGAINST THE STATE AND OTH21 ERS.—–Except as provided in subparagraph 12.6 of 

22 the Agreement, the Tribe, on behalf of itself and its 

23 members, and the United States, acting in its capac24 ity of trustee for the Tribe and its members as part 

25 of the performance of their obligations under the 


jbell on PROD1PC69 with BILLS
30 

•S 3473 IS

1 Agreement, are authorized to execute a waiver and 

2 release of any claims against the State (or any agen3 cy or political subdivision of the State), or any other 

4 person, entity, corporation, or municipal corporation 

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

6 (A)(i) past, present, and future claims for 

7 water rights for the reservation and off-reserva8 tion trust land arising from time immemorial 

9 and, thereafter, forever; and 

10 (ii) past, present, and future claims for 

11 water rights arising from time immemorial and, 

12 thereafter, forever, that are based upon aborigi13 nal occupancy of land by the Tribe, its mem14 bers, or their predecessors; 

15 (B)(i) past and present claims for injury to 

16 water rights for the reservation and off-reserva17 tion trust land arising from time immemorial 

18 through the enforceability date; 

19 (ii) past, present, and future claims for in20 jury to water rights arising from time immemo21 rial and, thereafter, forever, that are based 

22 upon aboriginal occupancy of land by the Tribe 

23 and its members, or their predecessors; and 

24 (iii) claims for injury to water rights aris25 ing after the enforceability date for the reservaVerDate Aug 31 2005 03:11 Sep 12, 2008 Jkt 069200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E:\BILLS\S3473.IS S3473

jbell on PROD1PC69 with BILLS
31 

•S 3473 IS

1 tion and off-reservation trust land resulting 

2 from off-reservation diversion or use of water in 

3 a manner not in violation of the Agreement or 

4 State law; and 

5 (C) past, present, and future claims aris6 ing out of or relating in any manner to the ne7 gotiation or execution of the Agreement or the 

8 negotiation or enactment of this Act. 

9 (2) CLAIMS AGAINST TRIBE.—Except as pro10 vided in subparagraph 12.8 of the Agreement, the 

11 United States, in all its capacities (except as trustee 

12 for an Indian tribe other than the Tribe), as part of 

13 the performance of its obligations under the Agree14 ment, is authorized to execute a waiver and release 

15 of any and all claims against the Tribe, its members, 

16 or any agency, official, or employee of the Tribe, 

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

18 (A) past and present claims for injury to 

19 water rights resulting from the diversion or use 

20 of water on the reservation and on off-reserva21 tion trust land arising from time immemorial 

22 through the enforceability date; 

23 (B) claims for injury to water rights aris24 ing after the enforceability date resulting from 

25 the diversion or use of water on the reservation 


jbell on PROD1PC69 with BILLS
32 

•S 3473 IS

1 and on off-reservation trust land in a manner 

2 not in violation of the Agreement; and 

3 (C) past, present, and future claims aris4 ing out of or related in any manner to the nego5 tiation or execution of the Agreement or the ne6 gotiation or enactment of this Act. 

7 (3) CLAIMS AGAINST THE UNITED STATES.— 

8 Except as provided in subparagraph 12.7 of the 

9 Agreement, the Tribe, on behalf of itself and its 

10 members, as part of the performance of its obliga11 tions under the Agreement, is authorized to execute 

12 a waiver and release of any claim against the United 

13 States, including agencies, officials, or employees 

14 thereof (except in the United States capacity as 

15 trustee for other tribes), under Federal, State, or 

16 other law for any and all— 

17 (A)(i) past, present, and future claims for 

18 water rights for the reservation and off-reserva19 tion trust land arising from time immemorial 

20 and, thereafter, forever; and 

21 (ii) past, present, and future claims for 

22 water rights arising from time immemorial and, 

23 thereafter, forever, that are based on aboriginal 

24 occupancy of land by the Tribe and its mem25 bers, or their predecessors; 


jbell on PROD1PC69 with BILLS
33 

•S 3473 IS

1 (B)(i) past and present claims relating in 

2 any manner to damages, losses, or injuries to 

3 water, water rights, land, or other resources 

4 due to loss of water or water rights (including 

5 but not limited to damages, losses or injuries to 

6 hunting, fishing, gathering, or cultural rights 

7 due to loss of water or water rights; claims re8 lating to interference with, diversion or taking 

9 of water; or claims relating to failure to protect, 

10 acquire, or develop water, water rights or water 

11 infrastructure) within the reservation and off12 reservation trust land that first accrued at any 

13 time prior to the enforceability date; 

14 (ii) past, present, and future claims for in15 jury to water rights arising from time immemo16 rial and, thereafter, forever, that are based on 

17 aboriginal occupancy of land by the Tribe and 

18 its members, or their predecessors; and 

19 (iii) claims for injury to water rights aris20 ing after the enforceability date for the reserva21 tion and off-reservation trust land resulting 

22 from the off-reservation diversion or use of 

23 water in a manner not in violation of the Agree24 ment or applicable law; 


jbell on PROD1PC69 with BILLS
34 

•S 3473 IS

1 (C) past, present, and future claims aris2 ing out of or relating in any manner to the ne3 gotiation or execution of the Agreement or the 

4 negotiation or enactment of this Act; 

5 (D) past and present claims relating in any 

6 manner to the litigation of claims relating to 

7 the Tribe’s water rights for the reservation and 

8 off-reservation trust land that first accrued at 

9 any time prior to the enforceability date; 

10 (E) past and present claims relating to the 

11 failure to maintain existing irrigation systems 

12 on the reservation constructed prior to the en13 forceability date that first accrued at any time 

14 prior to the enforceability date, which waiver 

15 shall only become effective upon the full appro16 priation and payment of such funds authorized 

17 by section 16(c)(4) to the Tribe; 

18 (F) future claims relating to operation, 

19 maintenance, and replacement of the WMAT 

20 rural water system, which waiver shall only be21 come effective upon the full appropriation of 

22 funds authorized by section 16(b) and their de23 posit into the Rural Water System OM&R 

24 Fund; and 


jbell on PROD1PC69 with BILLS
35 

•S 3473 IS

1 (G) past, present, and future breach of 

2 trust and negligence claims for damage to the 

3 natural resources of the Tribe caused by ripar4 ian and other vegetative manipulation, includ5 ing over-cutting of forest resources by the 

6 United States for the purpose of increasing 

7 water runoff from the reservation. 

8 (4) NO WAIVER OF CLAIMS.—Nothing in this 

9 subsection waives any claim of the Tribe against the 

10 United States for future takings by the United 

11 States of reservation land or off-reservation trust 

12 land or property rights appurtenant to those lands, 

13 including any water rights set forth in paragraph 

14 4.0 of the Agreement. 

15 (b) EFFECTIVENESS OF WAIVER AND RELEASES.— 

16 Except where otherwise specifically provided in subpara17 graphs (E) and (F) of subsection (a)(3), the waivers and 

18 releases under subsection (a) shall become effective on the 

19 enforceability date. 

20 (c) ENFORCEABILITY DATE.— 

21 (1) IN GENERAL.—This section takes effect on 

22 the date on which the Secretary publishes in the 

23 Federal Register a statement of findings that— 

24 (A) to the extent the Agreement conflicts 

25 with this Act, the Agreement has been revised 


jbell on PROD1PC69 with BILLS
36 

•S 3473 IS

1 through an amendment to eliminate the conflict 

2 and the Agreement, so revised, has been exe3 cuted by the Secretary, the Tribe and the Gov4 ernor of the State; 

5 (B) the Secretary has fulfilled the require6 ments of sections 5 and 6; 

7 (C) the funds authorized in section 13 and 

8 16(a) have been appropriated and deposited in 

9 the Rural Water Construction Fund; 

10 (D) the State funds described in subpara11 graph 13.3 of the Agreement have been depos12 ited in the Rural Water Construction Fund; 

13 (E) the Secretary has issued a record of 

14 decision approving the construction of the 

15 WMAT rural water system in a configuration 

16 substantially similar to that described in section 

17 7; and 

18 (F) the judgments and decrees substan19 tially in the form of those attached to the 

20 Agreement as exhibits 12.9.6.1 and 12.9.6.2 

21 have been approved by the respective trial 

22 courts. 

23 (2) FAILURE OF ENFORCEABILITY DATE TO

24 OCCUR.—If, because of the failure of the enforce25 ability date to occur by October 31, 2013, this secVerDate Aug 31 2005 03:11 Sep 12, 2008 Jkt 069200 PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 E:\BILLS\S3473.IS S3473

jbell on PROD1PC69 with BILLS
37 

•S 3473 IS

1 tion does not become effective, the Tribe and its 

2 members, and the United States, acting in the ca3 pacity of trustee for the Tribe and its members, 

4 shall retain the right to assert past, present, and fu5 ture water rights claims and claims for injury to 

6 water rights for the reservation and off-reservation 

7 trust land. 

8 (3) NO RIGHTS TO WATER.—Other than the 

9 tribal water rights, upon the occurrence of the en10 forceability date, all land held by the United States 

11 in trust for the Tribe and its members shall have no 

12 rights to water other than those specifically quan13 tified for the Tribe and the United States, acting in 

14 the capacity of trustee for the Tribe and its mem15 bers for the reservation and off-reservation trust 

16 land pursuant to paragraph 4.0 of the Agreement. 

17 (d) UNITED STATES ENFORCEMENT AUTHORITY.— 

18 Nothing in this Act or the Agreement affects any right 

19 of the United States to take any action, including environ20 mental actions, under any laws (including regulations and 

21 the common law) relating to human health, safety, or the 

22 environment. 

23 SEC. 13. LOAN TO TRIBE. 

24 (a) IN GENERAL.—Subject to the availability of ap25 propriations, not later than 90 days after the date on 


jbell on PROD1PC69 with BILLS
38 

•S 3473 IS

1 which appropriations are made available to carry out this 

2 section, the Secretary shall provide to the Tribe a loan 

3 in an amount of $90,200,000 for the construction of the 

4 WMAT rural water system. 

5 (b) TERMS AND CONDITIONS.— 

6 (1) INTEREST; TERM.—The loan provided 

7 under subsection (a) shall— 

8 (A) bear interest at a rate of 0 percent; 

9 and 

10 (B) be repaid over a term of 13 years. 

11 (2) FUNDS FOR REPAYMENT.— 

12 (A) IN GENERAL.—For each of fiscal years 

13 2014 through 2025, in lieu of direct repayment 

14 by the Tribe of the loan provided under sub15 section (a), the amount described in subpara16 graph (B) shall be credited toward repayment 

17 of the loan. 

18 (B) DESCRIPTION OF AMOUNT.—The 

19 amount referred to in subparagraph (A) is an 

20 amount in the Lower Colorado River Basin De21 velopment Fund under section 403(f)(2)(D)(vi) 

22 of the Colorado River Basin Project Act (43 

23 U.S.C. 1543(f)(2)(D)(vi)) equal to— 

24 (i) for fiscal year 2014, $6,200,000; 


jbell on PROD1PC69 with BILLS
39 

•S 3473 IS

1 (ii) for each of fiscal years 2015 

2 through 2024, $8,000,000; and 

3 (iii) for fiscal year 2025, $4,000,000. 

4 (3) REPAYMENT OF LOAN FOR THE PLANNING, 

5 ENGINEERING, AND DESIGN OF THE WMAT RURAL

6 WATER SYSTEM.— 

7 (A) IN GENERAL.—For each of fiscal years 

8 2013 and 2014, in lieu of direct repayment by 

9 the Tribe of the loan authorized in Public Law 

10 lll, the amount described in subparagraph 

11 (B) shall be credited toward repayment of the 

12 loan. 

13 (B) DESCRIPTION OF AMOUNT.—The 

14 amount referred to in subparagraph (A) is a 

15 portion of the funds in the Lower Colorado 

16 River Basin Development Fund pursuant to 

17 section 403(f)(2)(D)(vi) of the Colorado River 

18 Basin Project Act (43 U.S.C. 

19 1543(f)(2)(D)(vi)) equal to— 

20 (i) for fiscal year 2013, $8,000,000; 

21 and 

22 (ii) for fiscal year 2014, $1,800,000. 

23 (C) TREATMENT.—Each credit under this 

24 paragraph shall be considered to be funds used 

25 in furtherance of the Agreement. 


jbell on PROD1PC69 with BILLS
40 

•S 3473 IS

1 SEC. 14. TRUST FUNDS. 

2 (a) ESTABLISHMENT.—There is established in the 

3 Treasury of the United States— 

4 (1) a fund to be known as the ‘‘Rural Water 

5 System Construction Fund’’, consisting of— 

6 (A) the funds made available under section 

7 13; 

8 (B) the amounts appropriated to the fund 

9 pursuant to section 16(a); and 

10 (C) the funds provided in subparagraph 

11 13.3 of the Agreement; and 

12 (2) a fund to be known as the ‘‘Rural Water 

13 System OM&R Fund’’, consisting of amounts appro14 priated to the fund pursuant to section 16(b). 

15 (b) MANAGEMENT.—The Secretary shall manage the 

16 Rural Water System Construction Fund and the Rural 

17 Water System OM&R Fund, including by— 

18 (1) making investments from the funds; and 

19 (2) distributing amounts from the funds to the 

20 Tribe, in accordance with the American Indian 

21 Trust Fund Management Reform Act of 1994 (25 

22 U.S.C. 4001 et seq.). 

23 (c) INVESTMENT OF FUNDS.—The Secretary shall in24 vest amounts in the funds in accordance with— 

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


jbell on PROD1PC69 with BILLS
41 

•S 3473 IS

1 (2) the first section of the Act of June 24, 

2 1938 (25 U.S.C. 162a); 

3 (3) subsection (b); 

4 (4) the obligations of Federal corporations and 

5 Federal Government-sponsored entities the charter 

6 documents of which provide that the obligations of 

7 the entities are lawful investments for federally man8 aged funds, including— 

9 (A) the obligations of the United States 

10 Postal Service described in section 2005 of title 

11 39, United States Code; 

12 (B) bonds and other obligations of the 

13 Tennessee Valley Authority described in section 

14 15d of the Tennessee Valley Authority Act of 

15 1933 (16 U.S.C. 831n–4); 

16 (C) mortgages, obligations, and other secu17 rities of the Federal Home Loan Mortgage Cor18 poration described in section 303 of the Federal 

19 Home Loan Mortgage Corporation Act (12 

20 U.S.C. 1452); and 

21 (D) bonds, notes, and debentures of the 

22 Commodity Credit Corporation described in sec23 tion 4 of the Act of March 8, 1938 (15 U.S.C. 

24 713a–4); and 


jbell on PROD1PC69 with BILLS
42 

•S 3473 IS

1 (5) the obligations referred to in section 201 of 

2 the Social Security Act (42 U.S.C. 401). 

3 (d) EXPENDITURES AND WITHDRAWALS.— 

4 (1) TRIBAL MANAGEMENT PLANS.— 

5 (A) IN GENERAL.—The Tribe may with6 draw any portion of the Rural Water System 

7 Construction Fund or the Rural Water System 

8 OM&R Fund on approval by the Secretary of a 

9 tribal management plan under the American In10 dian Trust Fund Management Reform Act of 

11 1994 (25 U.S.C. 4001 et seq.). 

12 (B) REQUIREMENTS.—In addition to the 

13 requirements under that Act (25 U.S.C. 4001 

14 et seq.), the tribal management plan shall re15 quire that the Tribe shall— 

16 (i) use amounts in the Rural Water 

17 System Construction Fund only for the 

18 planning, design, and construction of the 

19 rural water system, including such sums as 

20 are necessary— 

21 (I) for the Bureau to carry out 

22 oversight of the planning, design, and 

23 construction of the rural water sys24 tem; and 


jbell on PROD1PC69 with BILLS
43 

•S 3473 IS

1 (II) to carry out all required en2 vironmental compliance activities asso3 ciated with the planning, design, and 

4 construction of the rural water sys5 tem; and 

6 (ii) use amounts in the Rural Water 

7 System OM&R Fund only for the oper8 ation, maintenance, and replacement costs 

9 associated with the delivery of water 

10 through the rural water system. 

11 (2) ENFORCEMENT.—The Secretary may pur12 sue such judicial remedies and carry out such ad13 ministrative actions as are necessary to enforce the 

14 tribal management plan to ensure that amounts in 

15 the Rural Water System Construction Fund and the 

16 Rural Water System OM&R Fund are used in ac17 cordance with this section. 

18 (3) LIABILITY.—On withdrawal by the Tribe of 

19 amounts in the Rural Water System Construction 

20 Fund or the Rural Water System OM&R Fund, the 

21 Secretary and the Secretary of the Treasury shall 

22 not retain liability for the expenditure or investment 

23 of those amounts. 

24 (4) EXPENDITURE PLAN.— 


jbell on PROD1PC69 with BILLS
44 

•S 3473 IS

1 (A) IN GENERAL.—The Tribe shall submit 

2 to the Secretary for approval an expenditure 

3 plan for any portion of the amounts in the 

4 funds under this section that the Tribe does not 

5 withdraw pursuant to this subsection. 

6 (B) DESCRIPTION.—The expenditure plan 

7 shall describe the manner in which, and the 

8 purposes for which, the amounts remaining in 

9 the funds will be used. 

10 (C) APPROVAL.—The Secretary shall ap11 prove an expenditure plan under this paragraph 

12 if the Secretary determines that the plan is— 

13 (i) reasonable; and 

14 (ii) consistent with this Act. 

15 (5) ANNUAL REPORTS.—The Tribe shall submit 

16 to the Secretary an annual report that describes 

17 each expenditure from the Rural Water System Con18 struction Fund and the Rural Water System OM&R 

19 Fund during the year covered by the report. 

20 (e) PROHIBITION ON PER CAPITA DISTRIBUTIONS.— 

21 No amount of the principal, or the interest or income ac22 cruing on the principal, of the Rural Water System Con23 struction Fund or the Rural Water System OM&R Fund 

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

25 capita basis. 


jbell on PROD1PC69 with BILLS
45 

•S 3473 IS

1 (f) FUNDS NOT AVAILABLE UNTIL ENFORCEABILITY

2 DATE.—Amounts in the Rural Water System Construc3 tion Fund and the Rural Water System OM&R Fund shall 

4 not be available for expenditure or withdrawal by the 

5 Tribe until the enforceability date. 

6 SEC. 15. MISCELLANEOUS PROVISIONS. 

7 (a) LIMITED WAIVER OF SOVEREIGN IMMUNITY.— 

8 (1) IN GENERAL.—In the case of a civil action 

9 described in paragraph (2)— 

10 (A) the United States or the Tribe, or 

11 both, may be joined in the civil action; and 

12 (B) any claim by the United States or the 

13 Tribe to sovereign immunity from the civil ac14 tion is waived for the sole purpose of resolving 

15 any issue regarding the interpretation or en16 forcement of this Act or the Agreement. 

17 (2) DESCRIPTION OF CIVIL ACTION.—A civil ac18 tion referred to in paragraph (1) is a civil action 

19 filed— 

20 (A) by any party to the Agreement or sig21 natory to an exhibit to the Agreement in a 

22 United States or State court that— 

23 (i) relates solely and directly to the in24 terpretation or enforcement of this Act or 

25 the Agreement; and 


jbell on PROD1PC69 with BILLS
46 

•S 3473 IS

1 (ii) names as a party the United 

2 States or the Tribe; or 

3 (B) by a landowner or water user in the 

4 Gila River basin or Little Colorado River basin 

5 in the State that— 

6 (i) relates solely and directly to the in7 terpretation or enforcement of paragraph 

8 12.0 of the Agreement; and 

9 (ii) names as a party the United 

10 States or the Tribe. 

11 (b) EFFECT OF ACT.—Nothing in this Act quantifies 

12 or otherwise affects any water right or claim or entitle13 ment to water of any Indian tribe, band, or community 

14 other than the Tribe. 

15 (c) LIMITATION ON LIABILITY OF UNITED

16 STATES.— 

17 (1) IN GENERAL.—The United States shall 

18 have no trust or other obligation— 

19 (A) to monitor, administer, or account for, 

20 in any manner, any amount paid to the Tribe 

21 by any party to the Agreement other than the 

22 United States; or 

23 (B) to review or approve the expenditure of 

24 those funds. 


jbell on PROD1PC69 with BILLS
47 

•S 3473 IS

1 (2) INDEMNIFICATION.—The Tribe shall indem2 nify the United States, and hold the United States 

3 harmless, with respect to any claim (including claims 

4 for takings or breach of trust) arising out of the re5 ceipt or expenditure of funds described in paragraph 

6 (1)(A). 

7 (d) APPLICABILITY OF RECLAMATION REFORM

8 ACT.—The Reclamation Reform Act of 1982 (43 U.S.C. 

9 390aa et seq.) and any other acreage limitation or full10 cost pricing provision under Federal law shall not apply 

11 to any individual, entity, or land solely on the basis of— 

12 (1) receipt of any benefit under this Act; 

13 (2) the execution of this Act; or 

14 (3) the use, storage, delivery, lease, or exchange 

15 of CAP water. 

16 (e) TREATMENT OF TRIBAL WATER RIGHTS.—The 

17 tribal water rights— 

18 (1) shall be held in trust by the United States 

19 in perpetuity; and 

20 (2) shall not be subject to forfeiture or aban21 donment. 

22 (f) SECRETARIAL POWER SITES.—The portions of 

23 the following named secretarial power site reserves that 

24 are located on the reservation shall be transferred and re25 stored into the name of the Tribe: 


jbell on PROD1PC69 with BILLS
48 

•S 3473 IS

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

2 3 N., R. 27 E.). 

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

4 2 N., R. 26 E.; T. 3 N., R. 26 E.). 

5 (3) Carrizo (T. 4 N., R. 20 E.; T. 4 N., R. 21 

E.; T. 41⁄2 N., R. 19 E.; T. 41 6 ⁄2 N., R. 20 E.; T. 

41 7 ⁄2 N., R. 21 E.; T. 5 N., R. 19 E.). 

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

9 E.). 

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

11 R. 18 E.). 

(6) Gleason Flat (T. 41 12 ⁄2 N., R. 16 E.; T. 5 N., 

13 R. 16 E.). 

14 (g) NO EFFECT ON FUTURE ALLOCATIONS.—Water 

15 received under a lease or exchange of tribal CAP water 

16 under this Act shall not affect any future allocation or 

17 reallocation of CAP water by the Secretary. 

18 (h) AFTER-ACQUIRED TRUST LANDS.— 

19 (1) REQUIREMENT OF ACT OF CONGRESS.— 

20 (A) LEGAL TITLE.—After the enforce21 ability date, if the Tribe seeks to have legal title 

22 to additional land in the State of Arizona lo23 cated outside the exterior boundaries of the res24 ervation taken into trust by the United States 

25 for its benefit, the Tribe may do so only pursuVerDate Aug 31 2005 03:11 Sep 12, 2008 Jkt 069200 PO 00000 Frm 00048 Fmt 6652 Sfmt 6201 E:\BILLS\S3473.IS S3473

jbell on PROD1PC69 with BILLS
49 

•S 3473 IS

1 ant to an Act of Congress specifically author2 izing the transfer for the benefit of the Tribe. 

3 (B) EXCEPTIONS.—Subparagraph (A) 

4 shall not apply to— 

5 (i) restoration of land to the reserva6 tion subsequently and finally determined to 

7 be part of the reservation through resolu8 tion of any dispute between the Tribe and 

9 the United States over the location of the 

10 reservation boundary unless required by 

11 Federal law; or 

12 (ii) off-reservation trust land acquired 

13 prior to January 1, 2008. 

14 (2) WATER RIGHTS.— 

15 (A) IN GENERAL.—Under this section, 

16 after-acquired trust land outside the reservation 

17 shall not include federally reserved rights to 

18 surface water or groundwater. 

19 (B) RESTORED LAND.—Land restored to 

20 the reservation as the result of resolution of any 

21 reservation boundary dispute between the Tribe 

22 and the United States, or any fee simple land 

23 within the reservation that are placed into 

24 trust, shall have water rights pursuant to sec25 tion 11(b). 


jbell on PROD1PC69 with BILLS
50 

•S 3473 IS

1 (3) ACCEPTANCE OF LAND IN TRUST STATUS.— 

2 (A) IN GENERAL.—If the Tribe acquires 

3 legal fee title to land that is located within the 

4 exterior boundaries of the reservation, the Sec5 retary shall accept the land in trust status for 

6 the benefit of the Tribe in accordance with ap7 plicable Federal law (including regulations) for 

8 such real estate acquisitions. 

9 (B) RESERVATION STATUS.—Land taken 

10 or held in trust by the Secretary under para11 graph (3), or restored to the reservation as a 

12 result of resolution of a boundary dispute be13 tween the Tribe and the United States, shall be 

14 deemed to be part of the reservation. 

15 SEC. 16. AUTHORIZATION OF APPROPRIATIONS. 

16 (a) RURAL WATER SYSTEM.— 

17 (1) PLANNING, ENGINEERING, DESIGN, AND

18 CONSTRUCTION.— 

19 (A) IN GENERAL.—There is authorized to 

20 be appropriated for the planning, engineering, 

21 design, and construction of the WMAT rural 

22 water system $126,193,000, as adjusted in ac23 cordance with subparagraph (B), less— 

24 (i) the amount of any loans author25 ized under section 13; and 


jbell on PROD1PC69 with BILLS
51 

•S 3473 IS

1 (ii) the funds to be provided under 

2 subparagraph 13.3 of the Agreement. 

3 (B) ADJUSTMENTS AND INCLUSIONS.— 

4 The amount authorized to be appropriated 

5 under subparagraph (A) shall— 

6 (i) be adjusted as may be required 

7 due to changes in construction costs of the 

8 rural water system, as indicated by engi9 neering cost indices applicable to the types 

10 of planning, engineering, design, and con11 struction occurring after October 1, 2007; 

12 and 

13 (ii) include such sums as are nec14 essary for the Bureau to carry out over15 sight of activities for planning, design, and 

16 construction of the rural water system. 

17 (2) ENVIRONMENTAL COMPLIANCE.—There are 

18 authorized to be appropriated to the Secretary such 

19 sums as are necessary to carry out all required Fed20 eral environmental compliance activities associated 

21 with the planning, engineering, design, and construc22 tion of the rural water system. 

23 (b) RURAL WATER SYSTEM OM&R.—There is au24 thorized to be appropriated $50,000,000 for the operation, 


jbell on PROD1PC69 with BILLS
52 

•S 3473 IS

1 maintenance, and replacement costs of the rural water 

2 system. 

3 (c) REHABILITATION OF RECREATION FACILITIES, 

4 NATIONAL FISH HATCHERIES, AND EXISTING IRRIGA5 TION SYSTEMS.—There are authorized to be appropriated, 

6 for use in accordance with section 8— 

7 (1) $23,675,000 to complete the Hawley Lake, 

8 Horseshoe Lake, Reservation Lake, Sunrise Lake, 

9 and Big and Little Bear Lake reconstruction 

10 projects and facilities improvements; 

11 (2) $7,472,000 to the United States Fish and 

12 Wildlife Service for the rehabilitation and improve13 ment of the Alchesay-Williams Creek National Fish 

14 Hatchery Complex; 

15 (3) $5,000,000 to the Bureau of Indian Affairs 

16 for the planning, design, and construction of the 

17 WMAT Fishery Center; and 

18 (4) for the rehabilitation of existing irrigation 

19 systems— 

20 (A) $950,000 for the Canyon Day irriga21 tion system; and 

22 (B) $4,000,000 for the Historic irrigation 

23 system. 


jbell on PROD1PC69 with BILLS
53 

•S 3473 IS

1 (d) FEASIBILITY STUDY OF NEEDED FOREST PROD2 UCTS IMPROVEMENTS.—There are authorized to be appro3 priated— 

4 (1) to the Bureau of Indian Affairs $1,000,000 

5 to conduct a feasibility study of the rehabilitation 

6 and improvement of forest products manufacturing 

7 and forest management on the reservation in accord8 ance with section 9; and 

9 (2) $24,000,000 to implement the recommenda10 tions developed under the study. 

11 (e) SUNRISE SKI PARK SNOW-MAKING INFRASTRUC12 TURE.—There is authorized to be appropriated 

13 $25,000,000 for the planning, design, and construction of 

14 snow-making infrastructure, repairs, and expansion at 

15 Sunrise Ski Park in accordance with section 8. 

16 (f) RECREATION IMPOUNDMENTS AND RELATED FA17 CILITIES.—There is authorized to be appropriated 

18 $25,000,000 to carry out section 10. 

19 (g) ENVIRONMENTAL COMPLIANCE.—There are au20 thorized to be appropriated to the Secretary such sums 

21 as are necessary to carry out all required environmental 

22 compliance activities associated with the Agreement and 

23 this Act. 

24 (h) COST INDEXING.—The amounts authorized to be 

25 appropriated under this section shall be adjusted as approVerDate Aug 31 2005 03:11 Sep 12, 2008 Jkt 069200 PO 00000 Frm 00053 Fmt 6652 Sfmt 6201 E:\BILLS\S3473.IS S3473

jbell on PROD1PC69 with BILLS
54 

•S 3473 IS

1 priate, based on ordinary fluctuations in engineering cost 

2 indices applicable for the relevant types of construction, 

3 if any, during the period beginning on October 1, 2007, 

4 and ending on the date on which the amounts are made 

5 available. 

6 (i) EMERGENCY FUND FOR INDIAN SAFETY AND

7 HEALTH.—Effective beginning on January 1, 2010, if the 

8 Secretary determines that, on an annual basis, the dead9 line described in section 12(c)(2) is not likely to be met 

10 because the funds authorized in sections 13 and 16(a) 

11 have not been appropriated and deposited in the Rural 

12 Water System Construction Fund, not more than 

13 $50,000,000 of the amounts in the Emergency Fund for 

14 Indian Safety and Health established by section 601(a) 

15 of the Tom Lantos and Henry J. Hyde United States 

16 Global Leadership Against HIV/AIDS, Tuberculosis, and 

17 Malaria Reauthorization Act of 2008 (22 U.S.C. 7601 et 

18 seq.) shall be transferred to the Rural Water System Con19 struction Fund. 

20 SEC. 17. ANTIDEFICIENCY. 

21 The United States shall not be liable for failure to 

22 carry out any obligation or activity authorized to be car23 ried out, subject to appropriations, under this Act (includ24 ing any such obligation or activity under the Agreement) 


jbell on PROD1PC69 with BILLS
55 

•S 3473 IS

1 if adequate appropriations for that purpose are not pro2 vided by Congress. 

3 SEC. 18. REPEAL ON FAILURE OF ENFORCEABILITY DATE. 

4 If the Secretary fails to publish in the Federal Reg5 ister a statement of findings as required under section 

6 12(c) by not later than October 31, 2013— 

7 (1) effective beginning on November 1, 2013— 

8 (A) this Act is repealed; and 

9 (B) any action carried out by the Sec10 retary, and any contract entered into, pursuant 

11 to this Act shall be void; 

12 (2) any amounts appropriated under sections 

13 13 and subsections (a) and (b) of section 16, to14 gether with any interest accrued on those amounts, 

15 shall immediately revert to the general fund of the 

16 Treasury; and 

17 (3) any amounts paid by the State in accord18 ance with the Agreement, together with any interest 

19 accrued on those amounts, shall immediately be re20 turned to the State. 

Æ 


jbell on PROD1PC69 with BILLS