II

106TH CONGRESS

2D SESSION S. 2351

To provide for the settlement of the water rights claims of the Shivwits

Band of the Paiute Indian Tribe of Utah, and for other purposes.

IN THE SENATE OF THE UNITED STATES

APRIL 4, 2000

Mr. HATCH (for himself and Mr. BENNETT) introduced the following bill;

which was read twice and referred to the Committee on Indian Affairs

A BILL

To provide for the settlement of the water rights claims

of the Shivwits Band of the Paiute Indian Tribe of

Utah, 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 ‘‘Shivwits Band of the

5 Paiute Indian Tribe of Utah Water Rights Settlement

6 Act’’.

7 SEC. 2. FINDINGS.

8 Congress finds that—

9 (1) on July 21, 1980, the State of Utah, pursu10 ant to title 73, chapter 4, Utah Code Ann. initiated
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1 a statutory adjudication of water rights in the Fifth

2 Judicial District Court in Washington County, Utah,

3 Civil No. 800507596, which encompasses all of the

4 rights to the use of water, both surface and under5 ground, within the drainage area of the Virgin River

6 and its tributaries in Utah (‘‘Virgin River Adjudica7 tion’’), including the Santa Clara River Drainage

8 (‘‘Santa Clara System’’);

9 (2) the United States was joined as a party in

10 the Virgin River Adjudication pursuant to section

11 666 of title 43, United States Code. On February

12 13, 1987, the United States filed a Statement of

13 Water User Claim asserting a water right based on

14 State law and a Federal reserved water rights claim

15 on its own behalf and on behalf of the Shivwits

16 Band to water from the Santa Clara River System;

17 (3) the Virgin River Adjudication will take

18 many years to conclude, entail great expense, and

19 prolong uncertainty as to the availability of water

20 supplies, and thus the parties have sought to settle

21 their dispute over water and reduce the burdens of

22 litigation;

23 (4) after lengthy negotiation, which included

24 participation by representatives of the United States

25 Government, the State of Utah, the Shivwits Band,
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1 the Washington County Water Conservancy District,

2 the city of St. George, and other water users on the

3 Santa Clara River System, the parties have entered

4 into agreements to resolve all water rights claims be5 tween and among themselves and to quantify the

6 water right entitlement of the Shivwits Band, and to

7 provide for the construction of water projects to fa8 cilitate the settlement of these claims;

9 (5) pursuant to the St. George Water Reuse

10 Project Agreement, the Santa Clara Project Agree11 ment, and the Settlement Agreement, the Shivwits

12 Band will receive the right to a total of 4,000 acre13 feet of water annually in settlement of their existing

14 State law claims and Federal reserved water right

15 claims;

16 (6) it is the official policy of the United States,

17 in fulfillment of its trust responsibility to Indian

18 tribes, to promote Indian self-determination and eco19 nomic self-sufficiency, and to settle the water rights

20 claims of Indian tribes to avoid lengthy and costly

21 litigation;

22 (7) any meaningful policy of Indian self-deter23 mination and economic self-sufficiency requires the

24 development of viable Indian reservation economies;
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1 (8) the quantification of water rights and the

2 development of water use facilities is essential to the

3 development of viable Indian reservation economies,

4 particularly in the arid western States; and

5 (9) to advance the goals of Federal Indian pol6 icy and to fulfill the trust responsibility of the

7 United States to the Shivwits Band, it is appro8 priate that the United States participate in the im9 plementation of the St. George Water Reuse Project

10 Agreement, the Santa Clara Project Agreement, and

11 the Settlement Agreement in accordance with this

12 Act.

13 SEC. 3. PURPOSES.

14 The purposes of this Act are—

15 (1) to achieve a fair, equitable, and final settle16 ment of all claims to water rights in the Santa Clara

17 River for the Shivwits Band, and the United States

18 for the benefit of the Shivwits Band;

19 (2) to approve, ratify, and confirm the St.

20 George Water Reuse Project Agreement, the Santa

21 Clara Project Agreement, and the Settlement Agree22 ment, and the Shivwits Water Right described there23 in;

24 (3) to authorize the Secretary of the Interior to

25 execute the St. George Water Reuse Project Agree-
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1 ment, the Santa Clara Project Agreement, and the

2 Settlement Agreement, and to take such actions as

3 are necessary to implement these agreements in a

4 manner consistent with this Act; and

5 (4) to authorize the appropriation of funds nec6 essary for implementation of the St. George Water

7 Reuse Project Agreement, the Santa Clara Project

8 Agreement, and the Settlement Agreement.

9 SEC. 4. DEFINITIONS.

10 In this Act:

11 (1) SECRETARY.—The term ‘‘Secretary’’ means

12 the Secretary of the Interior.

13 (2) UTAH.—The term ‘‘Utah’’ means the State

14 of Utah, by and through its Department of Natural

15 Resources.

16 (3) SHIVWITS BAND.—The term ‘‘Shivwits

17 Band’’ means the Shivwits Band of the Paiute In18 dian Tribe of Utah, a constituent band of the Paiute

19 Indian Tribe of Utah, a federally recognized Indian

20 tribe organized under section 16 of the Indian Reor21 ganization Act of June 18, 1934 (48 Stat. 987; 25

22 U.S.C. 476), and the Act of April 3, 1980 (94 Stat.

23 317).
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1 (4) DISTRICT.—The term ‘‘District’’ means the

2 Washington County Water Conservancy District, a

3 Utah water conservancy district.

4 (5) ST. GEORGE.—The term ‘‘St. George’’

5 means St. George City, a Utah municipal corpora6 tion.

7 (6) VIRGIN RIVER ADJUDICATION.—The term

8 ‘‘Virgin River Adjudication’’ means the statutory ad9 judication of water rights initiated pursuant to title

10 73, chapter 4, Utah Code Ann. and pending in the

11 Fifth Judicial District Court in Washington County,

12 Utah, Civil No. 800507596.

13 (7) ST. GEORGE WATER REUSE PROJECT

14 AGREEMENT.—The term ‘‘St. George Water Reuse

15 Project Agreement’’ means the agreement among

16 the United States, Utah, the Shivwits Band, and St.

17 George City, together with all exhibits thereto, as

18 the same is approved and executed by the Secretary

19 of the Interior pursuant to section 8 of this Act.

20 (8) SANTA CLARA PROJECT AGREEMENT.—The

21 term ‘‘Santa Clara Project Agreement’’ means the

22 agreement among the United States, Utah, the

23 Shivwits Band, the Washington County Water Con24 servancy District, St. George City, the town of Ivins,

25 the town of Santa Clara, the New Santa Clara Field
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1 Canal Company, the St. George Clara Field Canal

2 Company, the Ivins Irrigation Company, the

3 Southgate Irrigation Company, Bloomington Irriga4 tion Company, Ed Bowler, and the Lower Gunlock

5 Reservoir Company, together with all exhibits there6 to, as the same is approved and executed by the Sec7 retary of the Interior pursuant to section 8 of this

8 Act.

9 (9) SETTLEMENT AGREEMENT.—The term

10 ‘‘Settlement Agreement’’ means that agreement

11 among the United States, Utah, the Shivwits Band,

12 the Washington County Water Conservancy District,

13 St. George City, the town of Ivins, the town of

14 Santa Clara, the New Santa Clara Field Canal Com15 pany, the St. George Clara Field Canal Company,

16 the Ivins Irrigation Company, the Southgate Irriga17 tion Company, Bloomington Irrigation Company, Ed

18 Bowler, and the Lower Gunlock Reservoir Company,

19 together with all exhibits thereto, as the same is ap20 proved and executed by the Secretary of the Interior

21 pursuant to section 8 of this Act.

22 (10) SHIVWITS WATER RIGHT.—The term

23 ‘‘Shivwits Water Right’’ means the water right of

24 the Shivwits Band set forth in the Settlement Agree-
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1 ment and as settled, confirmed, and ratified by sec2 tion 7 of this Act.

3 (11) SHIVWITS BAND WATER DEVELOPMENT

4 TRUST FUND.—The term ‘‘Shivwits Band Water De5 velopment Trust Fund’’ means the Trust Fund au6 thorized in section 11 of this Act to further the pur7 poses of the Settlement Agreement and this Act.

8 SEC. 5. ST. GEORGE WATER REUSE PROJECT.

9 (a) ST. GEORGE WATER REUSE PROJECT.—The St.

10 George Water Reuse Project shall consist of water treat11 ment facilities, a pipeline, and associated pumping and de12 livery facilities owned and operated by St. George which

13 is a component of and which shall divert water from the

14 Water Reclamation Facility located in St. George, Utah,

15 and shall transport this water for delivery and use by St.

16 George and the Shivwits Band. St. George shall make

17 2,000 acre-feet of water available annually to the Shivwits

18 Band at the eastern boundary of the Shivwits Reservation

19 from the St. George Water Reuse Project and in accord20 ance with the St. George Water Reuse Project Agreement

21 and this Act.

22 (b) PROJECT CONSTRUCTION OPERATION AND MAIN23 TENANCE.—(1) St. George shall be responsible for the en24 gineering, permitting, construction, operation, mainte25 nance, repair, and replacement of the St. George Water
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1 Reuse Project, and the payment of its proportionate share

2 of these project costs as provided for in the St. George

3 Water Reuse Project Agreement.

4 (2) The Shivwits Band and the United States on be5 half of the Shivwits Band shall make available, in accord6 ance with the terms of the St. George Water Reuse Agree7 ment and this Act, a total of $15,000,000 to St. George

8 for the proportionate share of the engineering, permitting,

9 construction, operation, maintenance, repair, and replace10 ment of the St. George Water Reuse Project associated

11 with the 2,000 acre-feet annually to be provided to the

12 Shivwits Band.

13 SEC. 6. SANTA CLARA PROJECT.

14 (a) SANTA CLARA PROJECT.—The Santa Clara

15 Project shall consist of a pressurized pipeline from the ex16 isting Gunlock Reservoir across the Shivwits Reservation

17 to and including Ivins Reservoir, along with main lateral

18 pipelines. The Santa Clara Project shall pool and deliver

19 the water rights of the parties as set forth in the Santa

20 Clara Agreement. The Santa Clara Project shall deliver

21 to the Shivwits Band a total of 1,900 acre-feet annually

22 in accordance with the Santa Clara Project Agreement

23 and this Act.

24 (b) INSTREAM FLOW.—The Santa Clara Project shall

25 release instream flow water from the Gunlock Reservoir
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1 into the Santa Clara River for the benefit of the Virgin

2 Spinedace, in accordance with the Santa Clara Project

3 Agreement and this Act.

4 (c) PROJECT FUNDING.—The Utah Legislature and

5 Congress have each appropriated grants of $750,000 for

6 the construction of the Santa Clara Project. The District

7 shall provide a grant of $750,000 for the construction of

8 the Santa Clara Project. The District shall provide any

9 additional funding required for the construction of the

10 Santa Clara Project. The parties to the Santa Clara

11 Project Agreement, except the Paiute Indian Tribe of

12 Utah, Shivwits Band, and the United States on behalf of

13 the Shivwits Band, shall pay the District their propor14 tionate share of costs advanced by the District for the con15 struction of the project in excess of the Federal, State,

16 and District grants.

17 (d) PROJECT CONSTRUCTION, OPERATION, AND

18 MAINTENANCE.—The District shall be responsible for the

19 permitting, engineering, construction, and the initial oper20 ation and maintenance of the Santa Clara Project. Oper21 ation, maintenance, repair, and replacement activities and

22 costs of the Santa Clara Project shall be handled in ac23 cordance with the terms of the Santa Clara Project Agree24 ment.
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1 SEC. 7. SHIVWITS WATER RIGHT.

2 The Shivwits Band and its members shall have the

3 following rights to water, which are hereby settled, rati4 fied, and confirmed and which shall be held in trust by

5 the United States on behalf of the Shivwits Band and its

6 members:

7 (1) The Shivwits Band shall have the right in

8 perpetuity to a total of 1,900 acre-feet annually

9 from the Santa Clara River System as set forth in

10 the Santa Clara Project Agreement. The priority of

11 the Shivwits Band Water Right from the Santa

12 Clara River shall be 1890.

13 (2) The Shivwits Band shall have the right in

14 perpetuity to 2,000 acre-feet of water annually from

15 the St. George Water Reuse Project as provided for

16 in the St. George Water Reuse Project Agreement.

17 The Shivwits Band shall have first priority to the

18 water generated by the St. George Water Reuse

19 Project.

20 (3) The Shivwits Band shall have a right in

21 perpetuity to 100 acre-feet annually from ground22 water on the Shivwits Reservation. The priority of

23 the Shivwits groundwater right shall be 1916.

24 (4) The Shivwits Water Right shall not be sub25 ject to loss by abandonment or forfeiture for nonuse.
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1 (5) The Shivwits Band may use the Shivwits

2 Water Right for either or both of the following:

3 (A) For any purpose anywhere on the

4 Shivwits Band Reservation. Once the water is

5 delivered to the Reservation, such use shall not

6 be subject to State law, regulation, or jurisdic7 tion.

8 (B) For any beneficial use off the Shivwits

9 Reservation in accordance with the St. George

10 Water Reuse Agreement, the Santa Clara

11 Project Agreement, the Settlement Agreement,

12 and all applicable Federal and State laws.

13 No service contract, lease, exchange, or other agree14 ment entered into under this subsection may perma15 nently alienate any portion of the Shivwits Water

16 Right.

17 SEC. 8. RATIFICATION OF AGREEMENTS.

18 Except to the extent that the St. George Water Reuse

19 Project Agreement, the Santa Clara Project Agreement,

20 and the Settlement Agreement conflict with the provisions

21 of this Act, such agreements are hereby approved, ratified,

22 and confirmed. The Secretary is authorized to execute,

23 and take such other actions as are necessary to implement,

24 such agreements.
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1 SEC. 9. SATISFACTION OF CLAIMS.

2 (a) FULL SATISFACTION OF CLAIMS.—The benefits

3 realized by the Shivwits Band and its members under the

4 St. George Water Reuse Project Agreement, the Santa

5 Clara Project Agreement, the Settlement Agreement, and

6 this Act shall constitute full and complete satisfaction of

7 all water rights claims of the Shivwits Band and its mem8 bers for water rights or injuries to water rights under Fed9 eral and State laws from time immemorial to the effective

10 date of this Act. Notwithstanding the foregoing, nothing

11 in this Act shall be—

12 (1) deemed to recognize or establish any right

13 of a member of the Shivwits Band to water on the

14 Shivwits Reservation; or

15 (2) interpreted or construed to prevent or pro16 hibit the Shivwits Band from participating in the fu17 ture in other water projects, or from purchasing ad18 ditional water rights for their benefit and use, to the

19 same extent as any other entity.

20 (b) RELEASE.—The Shivwits Band on behalf of itself

21 and its members, the Paiute Indian Tribe of Utah on be22 half of itself and its members in the Santa Clara River

23 System, and on behalf of the Shivwits Band, and the Sec24 retary on behalf of the United States, are authorized as

25 part of the performance of the obligations under the St.

26 George Water Reuse Project Agreement, the Santa Clara
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1 Project Agreement, and the Settlement Agreement, to exe2 cute a waiver and release, except as provided in the agree3 ments, of all claims of water rights or injuries to water

4 rights from time immemorial to the effective date of this

5 Act, which the Shivwits Band and its members may have

6 against the United States, the State of Utah or any agen7 cy or political subdivision thereof, or any other person,

8 corporation, or municipal corporation, arising under the

9 laws of the United States or the State of Utah.

10 (c) SAVINGS PROVISION.—In the event the authoriza11 tions contained in subsection (b) of this section do not be12 come effective pursuant to section 14, the Shivwits Band

13 and the United States shall retain the right to assert past

14 and future water rights claims as to all lands of the

15 Shivwits Reservation, and the water rights claims and de16 fenses of all other parties to the agreements shall also be

17 retained.

18 SEC. 10. WATER RIGHTS AND HABITAT ACQUISITION PRO19 GRAM.

20 (a) IN GENERAL.—The Secretary is authorized to es21 tablish a water rights and habitat acquisition program in

22 the Virgin River Basin—

23 (1) primarily for the benefit of species and

24 plants in the Santa Clara River Basin which have

25 been listed, are likely to be listed, or are the subject
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1 of a duly approved conservation agreement under

2 the Endangered Species Act; and

3 (2) secondarily for the benefit of species and

4 plants in other parts of the Virgin River Basin

5 which have been listed, are likely to be listed, or are

6 the subject of a duly approved conservation agree7 ment under the Endangered Species Act.

8 (b) WATER AND WATER RIGHTS.—The Secretary is

9 authorized to acquire water and water rights, with or with10 out the lands to which such rights are appurtenant, and

11 to acquire shares in irrigation and water companies, and

12 to transfer, hold, and exercise such water and water rights

13 and related interests to assist the conservation and recov14 ery of any species or plant described in subsection (a).

15 (c) REQUIREMENTS.—Acquisition of the water rights

16 and related interests pursuant to this section shall be sub17 ject to the following requirements:

18 (1) Water rights acquired must satisfy eligi19 bility criteria adopted by the Secretary.

20 (2) Water right purchases shall be only from

21 willing sellers, but the Secretary may target pur22 chases in areas deemed by the Secretary to be most

23 beneficial to the water rights acquisition program es24 tablished by this section.
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1 (3) All water rights shall be transferred and ad2 ministered in accordance with any applicable State

3 law.

4 (d) HABITAT PROPERTY.—The Secretary is author5 ized to acquire, hold, and transfer habitat property to as6 sist the conservation and recovery of any species or plants

7 described in section 10(a). Acquisition of habitat property

8 pursuant to this section shall be subject to the following

9 requirements:

10 (1) Habitat property acquired must satisfy eli11 gibility criteria adopted by the Secretary.

12 (2) Habitat property purchases shall be only

13 from willing sellers, but the Secretary may target

14 purchases in areas deemed by the Secretary to be

15 most beneficial to the habitat acquisition program

16 established by this section.

17 (e) CONTRACT.—The Secretary is authorized to ad18 minister the water rights and habitat acquisition program

19 by contract or agreement with a non-Federal entity which

20 the Secretary determines to be qualified to administer

21 such program. The water rights and habitat acquisition

22 program shall be administered pursuant to the Virgin

23 River Management Program.

24 (f) AUTHORIZATION.—There is authorized to be ap25 propriated $3,000,000 for the water rights and habitat ac-
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1 quisition program authorized in this section. The funds

2 authorized to be appropriated by this section shall not be

3 in lieu of or supersede any other commitments by Federal,

4 State, or local agencies.

5 SEC. 11. SHIVWITS BAND TRUST FUND.

6 (a) ESTABLISHMENT OF TRUST FUND.—There is es7 tablished in the Treasury of the United States a fund to

8 be known as the ‘‘Shivwits Band Trust Fund’’ (herein9 after called the ‘‘Trust Fund’’). The Secretary shall de10 posit into the Trust Fund the funds authorized to be ap11 propriated in subsections (b) and (c). Except as otherwise

12 provided in this Act, the Trust Fund principal and any

13 income accruing thereon shall be managed in accordance

14 with the American Indian Trust Fund Management Re15 form Act (108 Stat. 4239; 25 U.S.C. 4001 et seq.).

16 (b) AUTHORIZATION.—There is authorized to be ap17 propriated a total of $20,000,000, in 2 equal annual in18 stallments in the 2001 and 2002 fiscal years for the fol19 lowing purposes:

20 (1) $5,000,000 which shall be made available to

21 the Shivwits Band from the Trust Fund for pur22 poses including but not limited to those that would

23 enable the Shivwits Band to put to beneficial use all

24 or part of the Shivwits Water Right, to defray the

25 costs of any water development project in which the
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1 Shivwits Band is participating, or to undertake any

2 other activity that may be necessary or desired for

3 implementation of the St. George Water Reuse

4 Project Agreement, the Santa Clara Project Agree5 ment, the Settlement Agreement, or for economic de6 velopment on the Shivwits Reservation.

7 (2) $15,000,000 which shall be made available

8 by the Secretary and the Shivwits Band to St.

9 George for the St. George Water Reuse Project, in

10 accordance with the St. George Water Reuse Project

11 Agreement.

12 (c) SHARE OF CERTAIN COSTS.—There is authorized

13 to be appropriated to the Trust Fund in fiscal year 2001

14 a total of $1,000,000 to assist with the Shivwits Band’s

15 proportionate share of operation, maintenance, repair, and

16 replacement costs of the Santa Clara Project as provided

17 for in the Santa Clara Project Agreement.

18 (d) USE OF THE TRUST FUND.—Except for the

19 $15,000,000 appropriated pursuant to subsection (b)(2),

20 all Trust Fund principal and income accruing thereon may

21 be used by the Shivwits Band for the purposes described

22 in subsection (b)(1). The Shivwits Band, with the approval

23 of the Secretary, may withdraw the Trust Fund and de24 posit it in a mutually agreed upon private financial institu25 tion. That withdrawal shall be made pursuant to the
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1 American Indian Trust Fund Management Reform Act of

2 1994 (25 U.S.C. 4001 et seq.).

3 (e) NO PER CAPITA PAYMENTS.—No part of the

4 principal of the Trust Fund, or of the income accruing

5 thereon, or of any revenue generated from any water use

6 subcontract, shall be distributed to any member of the

7 Shivwits Band on a per capita basis.

8 SEC. 12. ENVIRONMENTAL COMPLIANCE.

9 (a) NATIONAL ENVIRONMENTAL POLICY ACT.—Exe10 cution by the Secretary of the St. George Water Reuse

11 Project Agreement, the Santa Clara Project Agreement,

12 or the Settlement Agreement shall not constitute major

13 Federal action under the National Environmental Policy

14 Act of 1969 (42 U.S.C. 4321 et seq.).

15 (b) OTHER REQUIREMENTS.—The Secretary shall

16 comply with all other aspects of the National Environ17 mental Policy Act (42 U.S.C. 4321 et seq.), and other ap18 plicable environmental laws in implementing the terms of

19 the St. George Water Reuse Agreement, the Santa Clara

20 Project Agreement, the Settlement Agreement, and this

21 Act.

22 SEC. 13. MISCELLANEOUS PROVISIONS.

23 (a) OTHER INDIAN TRIBES.—Nothing in the Settle24 ment Agreement or this Act shall be construed in any way

25 to quantify or otherwise adversely affect the land and
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1 water rights, claims, or entitlements to water of any In2 dian tribe, pueblo, or community, other than the Shivwits

3 Band.

4 (b) PRECEDENT.—Nothing in this Act shall be con5 strued or interpreted as a precedent for the litigation of

6 reserved water rights or the interpretation or administra7 tion of future water settlement Acts.

8 SEC. 14. EFFECTIVE DATE.

9 The authorization contained in section 9(b) of this

10 Act shall become effective as of the date the Secretary

11 causes to be published in the Federal Register a statement

12 of findings that—

13 (1) the funds authorized by section 11 (b) and

14 (c) have been appropriated and deposited into the

15 Trust Fund;

16 (2) the funds authorized by section 10(c) have

17 been appropriated;

18 (3) the St. George Water Reuse Project Agree19 ment has been modified to the extent it is in conflict

20 with this Act and has been executed by all parties

21 thereto;

22 (4) the Santa Clara Project Agreement has

23 been modified to the extent it is in conflict with this

24 Act and has been executed by all parties thereto;
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1 (5) the Settlement Agreement has been modi2 fied to the extent it is in conflict with this Act and

3 has been executed by all parties thereto;

4 (6) the State Engineer of Utah has taken all

5 actions and approved all applications necessary to

6 implement the provisions of the St. George Water

7 Reuse Agreement, the Santa Clara Project Agree8 ment, and the Settlement Agreement, from which no

9 further appeals may be taken; and

10 (7) the court has entered a decree confirming

11 the Shivwits Water Right in the Virgin River Adju12 dication.

Æ