I 

111TH CONGRESS 

2D SESSION H. R. 5413 

To authorize the Pechanga Band of Luiseno Mission Indians Water Rights 

Settlement, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 26, 2010 

Mr. BACA (for himself, Mr. KILDEE, Mr. GRIJALVA, Mr. BOREN, Ms. RICHARDSON, Mr. HONDA, and Mr. LUJA ́N) introduced the following bill; 

which was referred to the Committee on Natural Resources 

A BILL 

To authorize the Pechanga Band of Luiseno Mission Indians 

Water Rights Settlement, 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 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Pechanga Band of Luisen ̃o Mission Indians Water 

6 Rights Settlement Act of 2010’’. 

7 (b) TABLE OF CONTENTS.—The table of contents of 

8 this Act is as follows: 

Sec. 1. Short title. 

Sec. 2. Purposes. 

Sec. 3. Definitions. 

Sec. 4. Approval of the Pechanga Settlement Agreement. 


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Sec. 5. Tribal Water Right. 

Sec. 6. Satisfaction of claims. 

Sec. 7. Waiver of claims. 

Sec. 8. Water facilities. 

Sec. 9. Pechanga Settlement Fund. 

Sec. 10. Miscellaneous provisions. 

Sec. 11. Authorization of appropriations. 

Sec. 12. Repeal on failure of enforceability date. 

1 SEC. 2. PURPOSES. 

2 The purposes of this Act are— 

3 (1) to achieve a fair, equitable, and final settle4 ment of claims to water rights and certain claims for 

5 injuries to water rights in the Santa Margarita 

6 River Watershed for— 

7 (A) the Band; and 

8 (B) the United States acting in its capac9 ity as trustee for the Band and Allottees; 

10 (2) to achieve a fair, equitable, and final settle11 ment of certain claims by the Band against the 

12 United States; 

13 (3) to authorize, ratify, and confirm the 

14 Pechanga Settlement Agreement to be entered into 

15 by the Band, RCWD, EMWD, and the United 

16 States; 

17 (4) to authorize and direct the Secretary— 

18 (A) to execute the Pechanga Settlement 

19 Agreement; and 


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1 (B) to take any other action necessary to 

2 carry out the Pechanga Settlement Agreement 

3 in accordance with this Act; and 

4 (5) to authorize the appropriation of funds nec5 essary for the implementation of the Pechanga Set6 tlement Agreement and this Act. 

7 SEC. 3. DEFINITIONS. 

8 In this Act— 

9 (1) ADJUDICATION COURT.—The term ‘‘Adju10 dication Court’’ means the United States District 

11 Court for the Southern District of California exer12 cising continuing jurisdiction over the Adjudication 

13 Proceeding. 

14 (2) ADJUDICATION PROCEEDING.—The term 

15 ‘‘Adjudication Proceeding’’ means litigation initiated 

16 by the United States regarding relative water rights 

17 in the Santa Margarita River Watershed in United 

18 States v. Fallbrook Public Utility District et al., Civ. 

19 No. 3:51–cv–01247 (S.D.C.A.), including any litiga20 tion initiated to interpret or enforce the relative 

21 water rights in the Santa Margarita River Water22 shed pursuant to the Adjudication Court’s con23 tinuing jurisdiction over the Fallbrook Decree. 

24 (3) AFY.—The term ‘‘AFY’’ means acre-feet 

25 per year. 


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1 (4) ALLOTTEE.—The term ‘‘allottee’’ means a 

2 person who holds a beneficial real property interest 

3 in an Indian allotment that is— 

4 (A) located within the Reservation; and 

5 (B) held in trust by the United States. 

6 (5) BAND.—The term ‘‘Band’’ means the sov7 ereign government of the Pechanga Band of Luisen ̃o 

8 Mission Indians, which is organized under section 16 

9 of the Act of June 18, 1934 (25 U.S.C. 476), acting 

10 on behalf of itself and its members. 

11 (6) BRINE DISPOSAL FACILITY NOTICE.—The 

12 term ‘‘Brine Disposal Facility Notice’’ has the 

13 meaning set forth in section 5 of the Recycled Water 

14 Infrastructure Agreement. 

15 (7) CLAIMS.—The term ‘‘claims’’ means rights, 

16 claims, demands, actions, compensation, or causes of 

17 action whether known or unknown as of June 30, 

18 2009. 

19 (8) DEMINERALIZATION AND BRINE DISPOSAL

20 PROJECT.—The term ‘‘Demineralization and Brine 

21 Disposal Project’’ has the meaning set forth in sec22 tion 1 of the Recycled Water Infrastructure Agree23 ment. 

24 (9) EMWD.—The term ‘‘EMWD’’ means East25 ern Municipal Water District, a municipal water disVerDate Mar 15 2010 23:38 May 27, 2010 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5413.IH H5413

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1 trict organized and existing in accordance with the 

2 Municipal Water District Law of 1911, Division 20 

3 of the Water Code of the State of California, as 

4 amended. 

5 (10) EMWD CONNECTION FEE.—The term 

6 ‘‘EMWD Connection Fee’’ has the meaning set forth 

7 in section 2.3(b) of the Extension of Service Area 

8 Agreement. 

9 (11) ENFORCEABILITY DATE.—The term ‘‘en10 forceability date’’ means the date on which the Sec11 retary publishes in the Federal Register the state12 ment of findings described in section 7(f). 

13 (12) ESAA CAPACITY AGREEMENT.—The term 

14 ‘‘ESAA Capacity Agreement’’ means the ‘‘Agree15 ment to Provide Capacity for Delivery of ESAA 

16 Water’’, among the Band, RCWD, and the United 

17 States. 

18 (13) ESAA WATER.—The term ‘‘ESAA Water’’ 

19 means imported potable water that the Band re20 ceives from EMWD and MWD pursuant to the Ex21 tension of Service Area Agreement. 

22 (14) EXTENSION OF SERVICE AREA AGREE23 MENT.—The term ‘‘Extension of Service Area 

24 Agreement’’ means the ‘‘Agreement for Extension of 

25 Existing Service Area’’, among the Band, EMWD, 


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1 the United States, and MWD for purposes of provi2 sion of water service by EMWD to a designated por3 tion of the Reservation using water supplied by 

4 MWD. 

5 (15) FALLBROOK DECREE.—The term 

6 ‘‘Fallbrook Decree’’ means the ‘‘Modified Final 

7 Judgment And Decree’’, entered in the Adjudication 

8 Proceeding on April 6, 1966. The term ‘‘Fallbrook 

9 Decree’’ includes all court orders, interlocutory judg10 ments, and decisions supplemental to the ‘‘Modified 

11 Final Judgment And Decree’’, including Interlocu12 tory Judgment No. 30, Interlocutory Judgment No. 

13 35, and Interlocutory Judgment No. 41. 

14 (16) INDIAN TRIBE.—The term ‘‘Indian tribe’’ 

15 has the meaning given the term in section 4 of the 

16 Indian Self-Determination and Education Assistance 

17 Act (25 U.S.C. 450b). 

18 (17) INJURY TO WATER RIGHTS.—The term 

19 ‘‘Injury to Water Rights’’ means an interference 

20 with, diminution of, or deprivation of water rights 

21 under Federal or State law. 

22 (18) INTERIM CAPACITY.—The term ‘‘Interim 

23 Capacity’’ has the meaning set forth in section 1 of 

24 the ESAA Capacity Agreement. 


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1 (19) INTERIM CAPACITY NOTICE.—The term 

2 ‘‘Interim Capacity Notice’’ has the meaning set 

3 forth in section 4(b) of the ESAA Capacity Agree4 ment. 

5 (20) MWD.—The term ‘‘MWD’’ means the 

6 Metropolitan Water District of Southern California, 

7 a metropolitan water district organized and incor8 porated under the Metropolitan Water District Act 

9 of the State of California (Stats. 1969, Chapter 209, 

10 as amended). 

11 (21) MWD CONNECTION FEE.—The term 

12 ‘‘MWD Connection Fee’’ has the meaning set forth 

13 in section 2.3(a) of the Extension of Service Area 

14 Agreement. 

15 (22) PECHANGA ESAA DELIVERY CAPACITY AC16 COUNT.—The term ‘‘Pechanga ESAA Delivery Ca17 pacity Account’’ means the fund authorized by sec18 tion 11(a)(2) of this Act. 

19 (23) PECHANGA RECYCLED WATER INFRA20 STRUCTURE ACCOUNT.—The term ‘‘Pechanga Recy21 cled Water Infrastructure Account’’ means the fund 

22 authorized by section 11(a)(1) of this Act. 

23 (24) PECHANGA SETTLEMENT AGREEMENT.— 

24 The term ‘‘Pechanga Settlement Agreement’’ means 

25 that agreement, together with the exhibits thereto. 


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1 The parties to the Pechanga Settlement Agreement 

2 are the Band, the United States on behalf of the 

3 Band, its members and allottees, RCWD, and 

4 EMWD. 

5 (25) PECHANGA SETTLEMENT FUND.—The 

6 term ‘‘Pechanga Settlement Fund’’ means the fund 

7 authorized by section 9 of this Act. 

8 (26) PECHANGA WATER CODE.—The term 

9 ‘‘Pechanga Water Code’’ means a water code to be 

10 adopted by the Band in accordance with section 5(f). 

11 (27) PECHANGA WATER FUND ACCOUNT.—The 

12 term ‘‘Pechanga Water Fund Account’’ means the 

13 fund authorized by section 11(a)(3) of this Act. 

14 (28) PERMANENT CAPACITY.—The term ‘‘Per15 manent Capacity’’ has the meaning set forth in sec16 tion 1 of the ESAA Capacity Agreement. 

17 (29) PERMANENT CAPACITY NOTICE.—The 

18 term ‘‘Permanent Capacity Notice’’ has the meaning 

19 set forth in section 5(b) of the ESAA Capacity 

20 Agreement. 

21 (30) RCWD.—The term ‘‘RCWD’’ means the 

22 California water district organized pursuant to Cali23 fornia Water code section 34000 et seq. and includes 

24 all real property owners for whom RCWD acts as an 

25 agent pursuant to an agency agreement. 


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1 (31) RECYCLED WATER INFRASTRUCTURE

2 AGREEMENT.—The term ‘‘Recycled Water Infra3 structure Agreement’’ means the ‘‘Agreement for 

4 Recycled Water Infrastructure’’ among the Band, 

5 RCWD, and the United States. 

6 (32) RECYCLED WATER TRANSFER AGREE7 MENT.—The term ‘‘Recycled Water Transfer Agree8 ment’’ means the ‘‘Recycled Water Transfer Agree9 ment’’ between the Band and RCWD. 

10 (33) RESERVATION.—The term ‘‘Reservation’’ 

11 means land depicted on the map attached to the 

12 Pechanga Settlement Agreement as exhibit I. The 

13 term ‘‘Reservation’’ is solely for the purposes of the 

14 Pechanga Settlement Agreement only, and not for 

15 any of the exhibits, and shall not be used for any 

16 other purpose. 

17 (34) SANTA MARGARITA RIVER WATERSHED.— 

18 The term ‘‘Santa Margarita River Watershed’’ 

19 means the watershed that is the subject of the Adju20 dication Proceeding and the Fallbrook Decree. 

21 (35) SECRETARY.—The term ‘‘Secretary’’ 

22 means the Secretary of the United States Depart23 ment of the Interior. 

24 (36) STATE.—The term ‘‘State’’ means the 

25 State of California. 


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1 (37) STORAGE POND.—The term ‘‘Storage 

2 Pond’’ has the meaning set forth in section 1 of the 

3 Recycled Water Infrastructure Agreement. 

4 (38) TRIBAL WATER RIGHT.—The term ‘‘Tribal 

5 Water Right’’ means the water rights ratified, con6 firmed, and declared to be valid for the benefit of 

7 the Band and allottees as specifically set forth and 

8 described in section 5 of the Act. 

9 SEC. 4. APPROVAL OF THE PECHANGA SETTLEMENT 

10 AGREEMENT. 

11 (a) IN GENERAL.—Except as modified by this Act, 

12 and to the extent the Pechanga Settlement Agreement 

13 does not conflict with this Act, the Pechanga Settlement 

14 Agreement is authorized, ratified, and confirmed. To the 

15 extent amendments are executed to make the Pechanga 

16 Settlement Agreement consistent with this Act, such 

17 amendments are also authorized, ratified, and confirmed. 

18 (b) EXECUTION OF PECHANGA SETTLEMENT AGREE19 MENT.—To the extent that the Pechanga Settlement 

20 Agreement does not conflict with this Act, the Secretary 

21 is directed to and shall promptly execute the Pechanga 

22 Settlement Agreement, including all exhibits to or parts 

23 of the Pechanga Settlement Agreement requiring the sig24 nature of the Secretary. Nothing herein precludes the Sec25 retary from approving modifications to exhibits to the 


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1 Pechanga Settlement Agreement not inconsistent with this 

2 Act, to the extent such modifications do not otherwise re3 quire Congressional approval pursuant to the Trade and 

4 Intercourse Act, 25 U.S.C. 177, or pursuant to other Fed5 eral statute. 

6 (c) NATIONAL ENVIRONMENTAL POLICY ACT OF

7 1969.— 

8 (1) ENVIRONMENTAL COMPLIANCE.—In imple9 menting the Pechanga Settlement Agreement, the 

10 Secretary shall promptly comply with all applicable 

11 aspects of the National Environmental Policy Act of 

12 1969 (42 U.S.C. 4321 et seq.), the Endangered Spe13 cies Act of 1973 (16 U.S.C. 1531 et seq.), and all 

14 other applicable environmental Acts and regulations. 

15 (2) EXECUTION OF THE PECHANGA SETTLE16 MENT AGREEMENT.—Execution of the Pechanga 

17 Settlement Agreement by the Secretary under this 

18 section shall not constitute a major Federal action 

19 under the National Environmental Policy Act of 

20 1969 (42 U.S.C. 4321 et seq.). The Secretary is di21 rected to carry out all Federal compliance necessary 

22 to implement the Pechanga Settlement Agreement. 

23 (3) LEAD AGENCY.—The Bureau of Reclama24 tion shall be designated as the lead agency with re25 spect to environmental compliance. 


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1 SEC. 5. TRIBAL WATER RIGHT. 

2 (a) INTENT OF CONGRESS.—It is the intent of Con3 gress to provide to each allottee benefits that are equiva4 lent to or exceed the benefits allottees currently possess, 

5 taking into consideration— 

6 (1) the potential risks, cost, and time delay as7 sociated with litigation that would be resolved by the 

8 Pechanga Settlement Agreement and this Act; 

9 (2) the availability of funding under this Act; 

10 (3) the availability of water from the Tribal 

11 Water Right and other water sources as set forth in 

12 the Pechanga Settlement Agreement; and 

13 (4) the applicability of section 7 of the Act of 

14 February 8, 1887 (25 U.S.C. 381) and this Act to 

15 protect the interests of allottees. 

16 (b) CONFIRMATION OF TRIBAL WATER RIGHT.— 

17 (1) IN GENERAL.—The Tribal Water Right is 

18 ratified, confirmed, and declared to be valid. 

19 (2) CHARACTERISTICS OF TRIBAL WATER

20 RIGHT.—The Tribal Water Right shall be equal to 

21 4,994 AFY of water that is subject to the jurisdic22 tion of the Adjudication Court. The priority date for 

23 3,019 AFY of the Tribal Water Right shall be June 

24 27, 1882. The priority date for 182 AFY of the 

25 Tribal Water Right shall be August 29, 1893. The 

26 priority date for 729 AFY of the Tribal Water Right 


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1 shall be January 9, 1907. The priority date for 563 

2 AFY of the Tribal Water Right shall be March 11, 

3 1907. The priority date for 501 AFY of the Tribal 

4 Water Right shall be May 25, 1931. 

5 (3) USE.—Subject to the terms of the 

6 Pechanga Settlement Agreement, this Act, and the 

7 Fallbrook Decree, the Band may use the Tribal 

8 Water Right for any purpose on the Reservation. 

9 (c) HOLDING IN TRUST.—The Tribal Water Right 

10 shall be held in trust by the United States for the use 

11 and benefit of the Band and the allottees in accordance 

12 with this section. 

13 (d) ALLOTTEES.—As specified in and provided for in 

14 this Act: 

15 (1) APPLICABILITY OF ACT OF FEBRUARY 8, 

16 1887.—The provisions of section 7 of the Act of Feb17 ruary 8, 1887 (25 U.S.C. 381), relating to the use 

18 of water for irrigation purposes shall apply to the 

19 Tribal Water Right. 

20 (2) ENTITLEMENT TO WATER.—Any entitle21 ment to water of an allottee under Federal law for 

22 such allottee’s allotment shall be satisfied by the 

23 Band and no allottee shall have any additional enti24 tlement to water except as set forth in the Pechanga 

25 Settlement Agreement and this Act. 


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1 (3) EXHAUSTION OF REMEDIES.—Before as2 serting any claim against the United States under 

3 section 7 of the Act of February 8, 1887 (25 U.S.C. 

4 381), or any other applicable law, an allottee shall 

5 exhaust remedies available under the Pechanga 

6 Water Code or other applicable tribal law. 

7 (4) CLAIMS.—Following exhaustion of remedies 

8 available under the Pechanga Water Code or other 

9 applicable tribal law, an allottee may seek relief 

10 under section 7 of the Act of February 8, 1887 (25 

11 U.S.C. 381), or other applicable law. 

12 (5) AUTHORITY.—The Secretary shall have the 

13 authority to protect allottees’ rights as specified in 

14 this section. 

15 (e) AUTHORITY OF BAND.— 

16 (1) IN GENERAL.—Except as provided in para17 graph (2), the Band shall have authority to use, al18 locate, distribute, and lease the Tribal Water Right 

19 in accordance with— 

20 (A) the Pechanga Settlement Agreement; 

21 and 

22 (B) applicable Federal law. 

23 (2) LEASES BY ALLOTTEES.—Notwithstanding 

24 paragraph (1), an allottee may lease any interest in 


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1 land held by the allottee, together with any water 

2 right appurtenant to such interest in land. 

3 (f) PECHANGA WATER CODE.— 

4 (1) IN GENERAL.—No later than 18 months 

5 following the enforceability date, the Band shall 

6 enact a Pechanga Water Code that provides for— 

7 (A) the management, regulation, and gov8 ernance of all uses of the Tribal Water Right 

9 in accordance with the Pechanga Settlement 

10 Agreement; and 

11 (B) establishment by the Band of condi12 tions, permit requirements, and other limita13 tions relating to the storage, recovery, and use 

14 of the Tribal Water Right in accordance with 

15 the Pechanga Settlement Agreement. 

16 (2) INCLUSIONS.—The Pechanga Water Code 

17 shall provide that— 

18 (A) tribal allocations of water to allottees 

19 shall be satisfied with water from the Tribal 

20 Water Right; 

21 (B) charges for delivery of water for irriga22 tion purposes for allottees shall be assessed in 

23 accordance with section 7 of the Act of Feb24 ruary 8, 1887 (25 U.S.C. 381); 


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1 (C) there is a process by which an allottee 

2 may request that the Band provide water for ir3 rigation use in accordance with this Act; 

4 (D) there is a due process system for the 

5 consideration and determination by the Band of 

6 any request by an allottee, or any successor in 

7 interest to an allottee, for an allocation of such 

8 water for irrigation purposes on allotted land, 

9 including a process for— 

10 (i) appeal and adjudication of any de11 nied or disputed distribution of water; and 

12 (ii) resolution of any contested admin13 istrative decision; and 

14 (E) there is a requirement that any allot15 tee with a claim relating to the enforcement of 

16 rights of the allottee under the Pechanga Water 

17 Code or relating to the amount of water allo18 cated to land of the allottee must first exhaust 

19 remedies available to the allottee under tribal 

20 law and the Pechanga Water Code before initi21 ating an action against the United States or pe22 titioning the Secretary pursuant to subsection 

23 (d)(4). 

24 (3) ACTION BY SECRETARY.— 


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1 (A) IN GENERAL.—The Secretary shall ad2 minister the Tribal Water Right until the 

3 Pechanga Water Code is enacted in accordance 

4 with paragraph (1) and those provisions requir5 ing approval pursuant to paragraph (2). 

6 (B) APPROVAL.—The Pechanga Water 

7 Code shall not be valid unless— 

8 (i) the provisions of the Pechanga 

9 Water Code required by paragraph (2) are 

10 approved by the Secretary; and 

11 (ii) each amendment to the Pechanga 

12 Water Code that affects a right of an allot13 tee is approved by the Secretary. 

14 (C) APPROVAL PERIOD.— 

15 (i) IN GENERAL.—Except as provided 

16 by clause (ii), if the Secretary does not ap17 prove or disapprove the Pechanga Water 

18 Code before the date that is 180 days after 

19 the date on which the Pechanga Water 

20 Code is submitted to the Secretary for ap21 proval, the Pechanga Water Code shall be 

22 considered to have been approved by the 

23 Secretary to the extent that it is not incon24 sistent with the Pechanga Settlement 

25 Agreement or this Act. 


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1 (ii) MUTUAL EXTENSION OF AP2 PROVAL PERIOD.—The Pechanga Water 

3 Code may not be considered to have been 

4 approved by the Secretary under clause (i) 

5 if the Secretary and the Band agree to ex6 tend the approval period. 

7 (g) EFFECT.—Except as otherwise specifically pro8 vided in this section, nothing in this Act— 

9 (1) authorizes any action by an allottee against 

10 any individual or entity, or against the Band, under 

11 Federal, State, tribal, or local law; or 

12 (2) alters or affects the status of any action 

13 pursuant to section 1491(a) of title 28, United 

14 States Code. 

15 SEC. 6. SATISFACTION OF CLAIMS. 

16 (a) IN GENERAL.—The benefits provided to the Band 

17 and the allottees under the Pechanga Settlement Agree18 ment and this Act shall satisfy all claims of the Band and 

19 the allottees waived pursuant to section 7. 

20 (b) NO RECOGNITION OF WATER RIGHTS.—Notwith21 standing subsection (a) and except as provided in section 

22 5(d), nothing in this Act recognizes or establishes any 

23 right of a member of the Band or an allottee to water 

24 within the Reservation. 


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1 SEC. 7. WAIVER OF CLAIMS. 

2 (a) IN GENERAL.— 

3 (1) WAIVER OF CLAIMS BY THE BAND AND THE

4 UNITED STATES.— 

5 (A) Subject to the retention of rights set 

6 forth in subsection (c), notwithstanding any 

7 provisions to the contrary in the Pechanga Set8 tlement Agreement, and in return for the ratifi9 cation, confirmation, and declaration to be valid 

10 of the Tribal Water Right and other benefits, 

11 including the commitments by RCWD and 

12 EMWD as set forth in the Pechanga Settlement 

13 Agreement and this Act, the Band, and the 

14 United States on behalf of the Band and 

15 allottees are authorized to execute waivers for 

16 any and all of the following claims: 

17 (i) Claims for water rights in the 

18 Santa Margarita River Watershed for 

19 lands located within the Reservation aris20 ing from time immemorial and, thereafter, 

21 forever. 

22 (ii) Claims for water rights in the 

23 Santa Margarita River Watershed that are 

24 based on aboriginal occupancy for lands 

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1 tershed arising from time immemorial and, 

2 thereafter, forever. 

3 (B) Subject to the retention of rights set 

4 forth in subsection (c), notwithstanding any 

5 provisions to the contrary in the Pechanga Set6 tlement Agreement, and in return for the ratifi7 cation, confirmation, and declaration to be valid 

8 of the Tribal Water Right and other benefits, 

9 including the commitments by RCWD and 

10 EMWD as set forth in the Pechanga Settlement 

11 Agreement and this Act, the Band and the 

12 United States on behalf of the Band and 

13 allottees fully release, acquit and discharge 

14 RCWD and EMWD from the following claims: 

15 (i) Claims for Injuries to Water 

16 Rights in the Santa Margarita River Wa17 tershed for lands located within the Res18 ervation arising or occurring at any time 

19 up to and including June 30, 2009. 

20 (ii) Claims for Injuries to Water 

21 Rights in the Santa Margarita River Wa22 tershed for lands located within the Res23 ervation arising or occurring at any time 

24 after June 30, 2009, resulting from the di25 version or use of water in a manner not in 


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1 violation of the Pechanga Settlement 

2 Agreement or this Act. 

3 (iii) Claims for subsidence damage to 

4 land located within the Reservation arising 

5 or occurring at any time up to and includ6 ing June 30, 2009. 

7 (iv) Claims for subsidence damage 

8 arising or occurring after June 30, 2009, 

9 to lands located within the Reservation re10 sulting from the diversion of underground 

11 water in a manner not in violation of the 

12 Pechanga Settlement Agreement or this 

13 Act. 

14 (v) Claims arising out of or relating in 

15 any manner to the negotiation or execution 

16 of the Pechanga Settlement Agreement or 

17 the negotiation or execution of this Act. 

18 (2) CLAIMS BY THE UNITED STATES AGAINST

19 THE BAND.—Subject to the retention of rights set 

20 forth in subsection (c), to the extent consistent with 

21 this Act, the United States, in all its capacities (ex22 cept as trustee for an Indian tribe other than the 

23 Band), as part of the performance of obligations 

24 under the Pechanga Settlement Agreement, is au25 thorized to execute a waiver and release of any and 


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1 all claims against the Band, or any agency, official, 

2 or employee of the Band, under Federal, State, or 

3 any other law for— 

4 (A) claims for Injuries to Water Rights in 

5 the Santa Margarita River Watershed for lands 

6 located within the Reservation arising or occur7 ring at any time up to and including June 30, 

8 2009; 

9 (B) claims for Injuries to Water Rights in 

10 the Santa Margarita River Watershed for lands 

11 located within the Reservation arising or occur12 ring at any time after June 30, 2009, resulting 

13 from the diversion or use of water in a manner 

14 not in violation this Agreement or the Act; 

15 (C) claims for subsidence damage to land 

16 located within the Reservation arising or occur17 ring at any time up to and including June 30, 

18 2009; 

19 (D) claims for subsidence damage arising 

20 or occurring after June 30, 2009, to lands lo21 cated within the Reservation resulting from the 

22 diversion of underground water in a manner not 

23 in violation of this Agreement or the Act; and 

24 (E) claims arising out of or relating in any 

25 manner to the negotiation or execution of the 


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1 Pechanga Settlement Agreement or the negotia2 tion or execution of the Act. 

3 (3) CLAIMS BY THE BAND AGAINST THE

4 UNITED STATES.—Subject to the retention of rights 

5 set forth in subsection (c), the Band, on behalf of 

6 itself and its members, is authorized to execute a 

7 waiver and release of— 

8 (A) all claims against the United States, 

9 its agencies, or employees relating to claims for 

10 water rights in or water of the Santa Margarita 

11 River Watershed that the United States acting 

12 in its capacity as trustee for the Band asserted, 

13 or could have asserted, in any proceeding, in14 cluding but not limited to the Adjudication Pro15 ceeding; 

16 (B) all claims against the United States, 

17 its agencies, or employees relating to damages, 

18 losses, or injuries to water, water rights, land, 

19 or natural resources due to loss of water or 

20 water rights (including but not limited to dam21 ages, losses or injuries to hunting, fishing, 

22 gathering, or cultural rights due to loss of 

23 water or water rights; claims relating to inter24 ference with, diversion or taking of water or 

25 water rights; or claims relating to failure to 


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1 protect, acquire, replace, or develop water, 

2 water rights or water infrastructure) in the 

3 Santa Margarita River Watershed that first ac4 crued at any time up to and including June 30, 

5 2009; 

6 (C) all claims against the United States, 

7 its agencies, or employees encompassed within 

8 the case Pechanga Band of Luisen ̃o Indians v. 

9 Salazar, Civ. No. 1:06–cv–02206 (D.D.C); 

10 (D) all claims against the United States, 

11 its agencies, or employees relating to the pend12 ing litigation of claims relating to the Band’s 

13 water rights in the Adjudication Proceeding; 

14 and 

15 (E) all claims against the United States, 

16 its agencies, or employees relating to the nego17 tiation, execution, or adoption of the Pechanga 

18 Settlement Agreement, exhibits thereto, or this 

19 Act. 

20 (b) EFFECTIVENESS OF WAIVERS AND RELEASES.— 

21 The waivers under subsection (a) shall take effect on the 

22 enforceability date. 

23 (c) RESERVATION OF RIGHTS AND RETENTION OF

24 CLAIMS.—Notwithstanding the waivers and releases au25 thorized in this Act, the Band on behalf of itself and its 


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1 members, and the United States acting in its capacity as 

2 trustee for the Band and allottees retain— 

3 (1) claims for enforcement of the Pechanga Set4 tlement Agreement and this Act; 

5 (2) claims against persons other than RCWD 

6 and EMWD; 

7 (3) claims for water rights that are outside the 

8 jurisdiction of the Adjudication Court; 

9 (4) claims for water rights for lands within the 

10 Santa Margarita River Watershed that are outside 

11 the Reservation; provided, however, that such claims 

12 are for water rights consistent with water rights rec13 ognized for such lands in the Fallbrook Decree; 

14 (5) rights to use and protect water rights ac15 quired on or after the enforceability date; and 

16 (6) remedies, privileges, immunities, powers, 

17 and claims, including claims for water rights, not 

18 specifically waived and released pursuant to this Act 

19 and the Pechanga Settlement Agreement. 

20 (d) EFFECT OF PECHANGA SETTLEMENT AGREE21 MENT AND ACT.—Nothing in the Pechanga Settlement 

22 Agreement or this Act— 

23 (1) affects the ability of the United States act24 ing in its sovereign capacity to take actions author25 ized by law, including but not limited to any laws reVerDate Mar 15 2010 23:38 May 27, 2010 Jkt 089200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\H5413.IH H5413

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1 lating to health, safety, or the environment, includ2 ing but not limited to the Clean Water Act, the Safe 

3 Drinking Water Act, the Comprehensive Environ4 mental Response, Compensation, and Liability Act, 

5 Resource Conservation and Recovery Act, and the 

6 regulations implementing such Acts; 

7 (2) affects the ability of the United States to 

8 take actions acting in its capacity as trustee for any 

9 other Indian tribe or allottee; 

10 (3) confers jurisdiction on any State court to— 

11 (A) interpret Federal law regarding health, 

12 safety, or the environment or determine the du13 ties of the United States or other parties pursu14 ant to such Federal law; or 

15 (B) conduct judicial review of Federal 

16 agency action; or 

17 (4) waives any claim of a member of the Band 

18 in an individual capacity that does not derive from 

19 a right of the Band. 

20 (e) TOLLING OF CLAIMS.— 

21 (1) IN GENERAL.—Each applicable period of 

22 limitation and time-based equitable defense relating 

23 to a claim described in this section shall be tolled for 

24 the period beginning on the date of enactment of 

25 this Act and ending on the earlier of— 


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1 (A) December 31, 2015; or 

2 (B) the enforceability date. 

3 (2) EFFECTS OF SUBSECTION.—Nothing in this 

4 subsection revives any claim or tolls any period of 

5 limitation or time-based equitable defense that ex6 pired before the date of enactment of this Act. 

7 (3) LIMITATION.—Nothing in this section pre8 cludes the tolling of any period of limitations or any 

9 time-based equitable defense under any other appli10 cable law. 

11 (f) ENFORCEABILITY DATE.—The enforceability date 

12 shall be the date on which the Secretary publishes in the 

13 Federal Register a statement of findings that— 

14 (1) the Pechanga Settlement Agreement has 

15 been approved by the Adjudication Court; 

16 (2) all funds authorized by this Act for such 

17 purpose have been deposited in the Pechanga Settle18 ment Fund; 

19 (3) the waivers and releases authorized in sub20 section (a) have been executed by the Band and the 

21 Secretary; and 

22 (4) the Extension of Service Area Agreement 

23 has been approved and executed by all parties there24 to and is effective and enforceable in accordance 

25 with its terms. 


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1 SEC. 8. WATER FACILITIES. 

2 (a) IN GENERAL.—The Secretary shall, subject to the 

3 availability of appropriations, using funds from the des4 ignated accounts of the Pechanga Settlement Fund, pro5 vide the funds necessary to fulfill the Band’s obligations 

6 under the Recycled Water Infrastructure Agreement and 

7 the ESAA Capacity Agreement, in an amount not to ex8 ceed the amounts deposited in the designated accounts for 

9 such purposes, in accordance with this Act and the terms 

10 and conditions of such agreements. 

11 (b) NON-REIMBURSABILITY.—The funds provided by 

12 the Secretary pursuant to subsection (a) shall be non-re13 imbursable. 

14 (c) RECYCLED WATER INFRASTRUCTURE.— 

15 (1) IN GENERAL.—The Secretary shall, using 

16 funds from the Pechanga Recycled Water Infra17 structure Account, provide funds for the Storage 

18 Pond and the Demineralization and Brine Disposal 

19 Project in accordance with this section. 

20 (2) STORAGE POND.—The Secretary shall, sub21 ject to the availability of appropriations, provide the 

22 funding necessary to fulfill the Band’s obligations 

23 under the Recycled Water Infrastructure Agreement 

24 for the design and construction of the Storage Pond, 

25 in an amount not to exceed $2,500,000, such 

26 amount to be adjusted for changes since June 30, 


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1 2009, in construction costs as indicated by engineer2 ing cost indices applicable to types of construction 

3 required to design and construct the Storage Pond. 

4 (3) The procedure for the Secretary to provide 

5 funds pursuant to this section shall be as set forth 

6 in the Recycled Water Infrastructure Agreement. 

7 (4) The Bureau of Reclamation shall be the 

8 lead agency for purposes of the implementation of 

9 this section. 

10 (5) The United States shall have no responsi11 bility or liability for the Storage Pond to be designed 

12 and constructed by RCWD. 

13 (6) In the event that RCWD does not submit 

14 the Storage Pond Notice to the Band within 3 years 

15 after the enforceability date, the funds set aside 

16 within the Pechanga Recycled Water Infrastructure 

17 Account, including any interest that has accrued 

18 thereon, for purposes of the design and construction 

19 of the Storage Pond shall revert to the United 

20 States Treasury. 

21 (7) DEMINERALIZATION AND BRINE DISPOSAL

22 PROJECT.—Upon receipt of a written request from 

23 the Band pursuant to section 5(c) of the Recycled 

24 Water Infrastructure Agreement, the Secretary, act25 ing through the Bureau of Reclamation, shall enter 


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1 into negotiations with RCWD and the Band to es2 tablish an agreement that will allow the Bureau of 

3 Reclamation to make payment directly to RCWD in 

4 the amount below. Upon execution of said agreement 

5 the Secretary shall, subject to the availability of ap6 propriations, provide the funding necessary to fulfill 

7 the Band’s obligations under the Recycled Water In8 frastructure Agreement for the design and construc9 tion of the Demineralization and Brine Disposal 

10 Project, in an amount not to exceed $4,460,000, 

11 such amount to be adjusted for changes since June 

12 30, 2009, in construction costs as indicated by engi13 neering cost indices applicable to types of construc14 tion required to design and construct the 

15 Demineralization and Brine Disposal Project. 

16 (d) ESAA DELIVERY CAPACITY.— 

17 (1) IN GENERAL.—The Secretary shall, using 

18 funds from the Pechanga ESAA Delivery Capacity 

19 Account, provide funds for Interim Capacity and 

20 Permanent Capacity in accordance with this section. 

21 (2) INTERIM CAPACITY.—The Secretary shall, 

22 subject to the availability of appropriations, using 

23 funds from the ESAA Delivery Capacity Account, 

24 provide the funding necessary to fulfill the Band’s 

25 obligations under the ESAA Capacity Agreement for 


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1 the provision by RCWD of Interim Capacity to the 

2 Band in an amount not to exceed $1,000,000. 

3 (3) PERMANENT CAPACITY.—Upon receipt of 

4 the Permanent Capacity Notice pursuant to section 

5 5(b) of the ESAA Capacity Agreement, the Sec6 retary, acting through the Bureau of Reclamation, 

7 shall enter into negotiations with RCWD and the 

8 Band to establish an agreement that will allow for 

9 the disbursement of funds from the Pechanga ESAA 

10 Delivery Capacity Account in the amount below. 

11 Upon execution of said agreement the Secretary 

12 shall, subject to the availability of appropriations, 

13 using funds from the ESAA Delivery Capacity Ac14 count, provide the funding necessary to fulfill the 

15 Band’s obligations under the ESAA Capacity Agree16 ment for the provision by RCWD of Permanent Ca17 pacity to Pechanga in an amount not to exceed 

18 $16,900,000, such amount to be adjusted for 

19 changes since June 30, 2009, in construction costs 

20 as indicated by engineering cost indices applicable to 

21 types of construction required to design and con22 struct the Permanent Capacity. 

23 (e) PROCEDURE.—The procedure for the Secretary to 

24 provide funds pursuant to this section shall be as set forth 

25 in the ESAA Capacity Agreement. 


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1 (f) LEAD AGENCY.—The Bureau of Reclamation 

2 shall be the lead agency for purposes of the implementa3 tion of this section. 

4 (g) LIABILITY.—The United States shall have no re5 sponsibility or liability for the Permanent Capacity to be 

6 provided by RCWD. 

7 (h) AVAILABILITY OF FUNDS FOR CERTAIN PUR8 POSE.—In the event that RCWD does not provide the Per9 manent Capacity Notice required pursuant to the ESAA 

10 Capacity Agreement within 5 years after the enforceability 

11 date, the funds set aside in the Pechanga ESAA Delivery 

12 Capacity Account, including any interest that has accrued 

13 thereon, for purposes of the provision of Permanent Ca14 pacity shall be available for use by the Band to provide 

15 alternative permanent capacity in a manner that is similar 

16 to the Permanent Capacity that the Band would have re17 ceived had RCWD provided such Permanent Capacity. 

18 SEC. 9. PECHANGA SETTLEMENT FUND. 

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

20 Treasury of the United States the Pechanga Settlement 

21 Fund, consisting of such amounts as are deposited in the 

22 fund under subsections (a)(1), (a)(2), and (a)(3) of section 

23 11. 


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1 (b) ACCOUNTS OF PECHANGA SETTLEMENT

2 FUND.—The Secretary shall establish in the Pechanga 

3 Settlement Fund the following accounts: 

4 (1) Pechanga Recycled Water Infrastructure 

5 Account, consisting of amounts authorized pursuant 

6 to section 11(a)(1). 

7 (2) Pechanga ESAA Delivery Capacity Account, 

8 consisting of amounts authorized pursuant to section 

9 11(a)(2). 

10 (3) Pechanga Water Fund Account, consisting 

11 of amounts authorized pursuant to section 11(a)(3). 

12 (c) DEPOSITS TO PECHANGA SETTLEMENT FUND.— 

13 (1) IN GENERAL.—The Secretary of the Treas14 ury shall promptly deposit in the Pechanga Settle15 ment Fund any amounts appropriated for that pur16 pose. 

17 (2) DEPOSITS TO ACCOUNTS.—The Secretary of 

18 the Treasury shall deposit amounts in the accounts 

19 of the Pechanga Settlement Fund established under 

20 subsection (b). 

21 (d) MANAGEMENT.— 

22 (1) IN GENERAL.—The Secretary shall manage 

23 the Pechanga Settlement Fund, make investments 

24 from the Pechanga Settlement Fund, and make 

25 monies available from the Pechanga Settlement 


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1 Fund for distribution to the Band consistent with 

2 the American Indian Trust Fund Management Re3 form Act of 1994 (25 U.S.C. 4001 et seq.) (referred 

4 to in this subsection as the ‘‘Trust Fund Reform 

5 Act’’). 

6 (2) INVESTMENT OF PECHANGA SETTLEMENT

7 FUND.—Upon the enforceability date the Secretary 

8 shall invest amounts in the Pechanga Settlement 

9 Fund in accordance with— 

10 (A) the Act of April 1, 1880 (25 U.S.C. 

11 161); 

12 (B) the first section of the Act of June 24, 

13 1938 (25 U.S.C. 162a); 

14 (C) the obligations of Federal corporations 

15 and Federal Government-sponsored entities the 

16 charter documents of which provide that the ob17 ligations of the entities are lawful investments 

18 for federally managed funds, including— 

19 (i) the obligations of the United 

20 States Postal Service described in section 

21 2005 of title 39, United States Code; 

22 (ii) bonds and other obligations of the 

23 Tennessee Valley Authority described in 

24 section 15d of the Tennessee Valley Au25 thority Act of 1933 (16 U.S.C. 831n–4); 


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1 (iii) mortgages, obligations, and other 

2 securities of the Federal Home Loan Mort3 gage Corporation described in section 303 

4 of the Federal Home Loan Mortgage Cor5 poration Act (12 U.S.C. 1452); and 

6 (iv) bonds, notes, and debentures of 

7 the Commodity Credit Corporation de8 scribed in section 4 of the Act of March 8, 

9 1938 (15 U.S.C. 713a–4); and 

10 (D) the obligations referred to in section 

11 201 of the Social Security Act (42 U.S.C. 401). 

12 (3) DISTRIBUTIONS FROM PECHANGA SETTLE13 MENT FUND.— 

14 (A) IN GENERAL.—Funds from the 

15 Pechanga Settlement Fund shall be used for 

16 each purpose described in subparagraphs (B) 

17 through (D). 

18 (B) PECHANGA RECYCLED WATER INFRA19 STRUCTURE ACCOUNT.—The Pechanga Recy20 cled Water Infrastructure Account shall be used 

21 for expenditures by the Band in accordance 

22 with section 8(c). 

23 (C) PECHANGA ESAA DELIVERY CAPACITY

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1 pacity Account shall be used for expenditures 

2 by the Band in accordance with section 8(d). 

3 (D) PECHANGA WATER FUND ACCOUNT.— 

4 The Pechanga Water Fund Account shall be 

5 used for— 

6 (i) payment of the EMWD Connection 

7 Fee; 

8 (ii) payment of the MWD Connection 

9 Fee; and 

10 (iii) any expenses, charges, or fees in11 curred by the Band in connection with the 

12 delivery or use of water pursuant to the 

13 Pechanga Settlement Agreement. 

14 (4) WITHDRAWALS BY BAND.— 

15 (A) IN GENERAL.—The Band may with16 draw any portion of amounts in the Pechanga 

17 Settlement Fund on approval by the Secretary 

18 of a tribal management plan in accordance with 

19 the Trust Fund Reform Act. 

20 (B) REQUIREMENTS.— 

21 (i) IN GENERAL.—In addition to the 

22 requirements under the Trust Fund Re23 form Act, the tribal management plan of 

24 the Band under subparagraph (A) shall re25 quire that the Band spend any amounts 


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1 withdrawn from the Pechanga Settlement 

2 Fund in accordance with this Act. 

3 (ii) ENFORCEMENT.—The Secretary 

4 may carry out such judicial or administra5 tive actions as the Secretary determines to 

6 be necessary to enforce a tribal manage7 ment plan to ensure that amounts with8 drawn by the Band from the Pechanga 

9 Settlement Fund under this paragraph are 

10 used in accordance with this Act. 

11 (C) LIABILITY.—The Secretary and the 

12 Secretary of the Treasury shall not be liable for 

13 the expenditure or investment of amounts with14 drawn from the Pechanga Settlement Fund by 

15 the Band under this paragraph. 

16 (D) EXPENDITURE PLAN.— 

17 (i) IN GENERAL.—For each fiscal 

18 year, the Band shall submit to the Sec19 retary for approval an expenditure plan for 

20 any portion of the amounts described in 

21 subparagraph (A) that the Band elects to 

22 withdraw under this paragraph during the 

23 fiscal year. 

24 (ii) INCLUSION.—An expenditure plan 

25 under clause (i) shall include a description 


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1 of the manner in which, and the purposes 

2 for which, funds of the Band remaining in 

3 the Pechanga Settlement Fund will be 

4 used during subsequent fiscal years. 

5 (iii) APPROVAL.—On receipt of an ex6 penditure plan under clause (i), the Sec7 retary shall approve the plan if the Sec8 retary determines that the plan is— 

9 (I) reasonable; and 

10 (II) consistent with this Act. 

11 (5) ANNUAL REPORTS.—The Band shall submit 

12 to the Secretary annual reports describing each ex13 penditure by the Band of amounts in the Pechanga 

14 Settlement Fund during the preceding calendar 

15 year. 

16 (6) CERTAIN PER CAPITA DISTRIBUTIONS PRO17 HIBITED.—No amount in the Pechanga Settlement 

18 Fund shall be distributed to any member of the 

19 Band on a per capita basis. 

20 (e) AVAILABILITY.—The amounts in the Pechanga 

21 Settlement Fund shall be available for use by the Sec22 retary and withdrawal by the Band beginning on the en23 forceability date. 


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1 SEC. 10. MISCELLANEOUS PROVISIONS. 

2 (a) WAIVER OF SOVEREIGN IMMUNITY BY THE

3 UNITED STATES.—Except as provided in subsections (a) 

4 through (c) of section 208 of the Department of Justice 

5 Appropriation Act, 1953 (43 U.S.C. 666), nothing in this 

6 Act waives the sovereign immunity of the United States. 

7 (b) OTHER TRIBES NOT ADVERSELY AFFECTED.— 

8 Nothing in this Act quantifies or diminishes any land or 

9 water right, or any claim or entitlement to land or water, 

10 of an Indian tribe, band, or community other than the 

11 Band. 

12 (c) LIMITATION ON CLAIMS FOR REIMBURSEMENT.— 

13 With respect to Indian land within the Reservation— 

14 (1) the United States shall not submit against 

15 any Indian-owned land located within the Reserva16 tion any claim for reimbursement of the cost to the 

17 United States of carrying out this Act and the 

18 Pechanga Settlement Agreement; and 

19 (2) no assessment of any Indian-owned land lo20 cated within the Reservation shall be made regard21 ing that cost. 

22 (d) EFFECT ON CURRENT LAW.—Nothing in this 

23 section affects any provision of law (including regulations) 

24 in effect on the day before the date of enactment of this 

25 Act with respect to preenforcement review of any Federal 

26 environmental enforcement action. 


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1 SEC. 11. AUTHORIZATION OF APPROPRIATIONS. 

2 (a) AUTHORIZATION OF APPROPRIATIONS.— 

3 (1) PECHANGA RECYCLED WATER INFRASTRUC4 TURE ACCOUNT.—There is authorized to be appro5 priated $6,960,000, such amount to be adjusted for 

6 changes since June 30, 2009, in construction costs 

7 as indicated by engineering cost indices applicable to 

8 types of construction required to design and con9 struct the Storage Pond and the Demineralization 

10 and Brine Disposal Project for deposit into the 

11 Pechanga Recycled Water Infrastructure Account. 

12 (2) PECHANGA ESAA DELIVERY CAPACITY AC13 COUNT.—There is authorized to be appropriated 

14 $17,900,000, such amount to be adjusted for 

15 changes since June 30, 2009, in construction costs 

16 as indicated by engineering cost indices applicable to 

17 types of construction required to provide the Interim 

18 Capacity and the Permanent Capacity for deposit 

19 into the Pechanga ESAA Delivery Capacity Account. 

20 (3) PECHANGA WATER FUND ACCOUNT.—There 

21 is authorized to be appropriated $25,382,000 for de22 posit into the Pechanga Water Fund Account for the 

23 purposes set forth in section 9(d)(3)(D). 

24 SEC. 12. REPEAL ON FAILURE OF ENFORCEABILITY DATE. 

25 If the Secretary does not publish a statement of find26 ings under section 7(f) by December 31, 2015— 


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1 (1) this Act is repealed effective January 1, 

2 2016, and any action taken by the Secretary and 

3 any contract or agreement pursuant to the authority 

4 provided under any provision of this Act shall be 

5 void; 

6 (2) any amounts appropriated under section 11 

7 together with any interest on those amounts, shall 

8 immediately revert to the general fund of the Treas9 ury; and 

10 (3) any amounts made available under section 

11 11 that remain unexpended shall immediately revert 

12 to the general fund of the Treasury. 

Æ 


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