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[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 2508 Engrossed in Senate (ES)]

  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
106th CONGRESS
  2d Session
                                S. 2508

_______________________________________________________________________

                                 AN ACT

 
To amend the Colorado Ute Indian Water Rights Settlement Act of 1988 to 
provide for a final settlement of the claims of the Colorado Ute Indian 
                    Tribes, and for other purposes.

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

SECTION 1. SHORT TITLE; FINDINGS; DEFINITIONS.

    (a) Short Title.--This Act may be cited as the ``Colorado Ute 
Settlement Act Amendments of 2000''.
    (b) Findings.--Congress makes the following findings:
            (1) In order to provide for a full and final settlement of 
        the claims of the Colorado Ute Indian Tribes on the Animas and 
        La Plata Rivers, the Tribes, the State of Colorado, and certain 
        of the non-Indian parties to the Agreement have proposed 
        certain modifications to the Colorado Ute Indian Water Rights 
        Settlement Act of 1988 (Public Law 100-585; 102 Stat. 2973).
            (2) The claims of the Colorado Ute Indian Tribes on all 
        rivers in Colorado other than the Animas and La Plata Rivers 
        have been settled in accordance with the provisions of the 
        Colorado Ute Indian Water Rights Settlement Act of 1988 (Public 
        Law 100-585; 102 Stat. 2973).
            (3) The Indian and non-Indian communities of southwest 
        Colorado and northwest New Mexico will be benefited by a 
        settlement of the tribal claims on the Animas and La Plata 
        Rivers that provides the Tribes with a firm water supply 
        without taking water away from existing uses.
            (4) The Agreement contemplated a specific timetable for the 
        delivery of irrigation and municipal and industrial water and 
        other benefits to the Tribes from the Animas-La Plata Project, 
        which timetable has not been met. The provision of irrigation 
        water can not presently be satisfied under the current 
        implementation of the Federal Water Pollution Control Act (33 
        U.S.C. 1251 et seq.) and the Endangered Species Act of 1973 (16 
        U.S.C. 1531 et seq.).
            (5) In order to meet the requirements of the Endangered 
        Species Act of 1973 (16 U.S.C. 1531 et seq.), and in particular 
        the various biological opinions issued by the Fish and Wildlife 
        Service, the amendments made by this Act are needed to provide 
        for a significant reduction in the facilities and water supply 
        contemplated under the Agreement.
            (6) The substitute benefits provided to the Tribes under 
        the amendments made by this Act, including the waiver of 
        capital costs and the provisions of funds for natural resource 
        enhancement, result in a settlement that provides the Tribes 
        with benefits that are equivalent to those that the Tribes 
        would have received under the Colorado Ute Indian Water Rights 
        Settlement Act of 1988 (Public Law 100-585; 102 Stat. 2973).
            (7) The requirement that the Secretary of the Interior 
        comply with the National Environmental Policy Act of 1969 (42 
        U.S.C. 4321 et seq.) and other national environmental laws 
        before implementing the proposed settlement will ensure that 
        the satisfaction of the tribal water rights is accomplished in 
        an environmentally responsible fashion.
            (8) In considering the full range of alternatives for 
        satisfying the water rights claims of the Southern Ute Indian 
        Tribe and Ute Mountain Ute Indian Tribe, Congress has held 
        numerous legislative hearings and deliberations, and reviewed 
        the considerable record including the following documents:
                    (A) The Final EIS No. INT-FES-80-18, dated July 1, 
                1980.
                    (B) The Draft Supplement to the FES No. INT-DES-92-
                41, dated October 13, 1992.
                    (C) The Final Supplemental to the FES No. 96-23, 
                dated April 26, 1996;
                    (D) The Draft Supplemental EIS, dated January 14, 
                2000.
                    (E) The Final Supplemental EIS, dated July 2000.
                    (F) The Record of Decision for the Settlement of 
                the Colorado Ute Indian Waters, September 25, 2000.
            (9) In the Record of Decision referred to in paragraph 
        (8)(F), the Secretary determined that the preferred alternative 
        could only proceed if Congress amended the Colorado Ute Indian 
        Water Rights Settlement Act of 1988 (Public Law 100-585; 102 
        Stat. 2973) so as to satisfy the Tribal water rights claim 
        through the construction of the features authorized by this 
        Act. The amendments to the Colorado Ute Indian Water Rights 
        Settlement Act of 1988 set forth in this Act will provide the 
        Ute Tribes with substitute benefits equivalent to those that 
        the Tribes would have received under the Colorado Ute Indian 
        Water Rights Settlement Act of 1988, in a manner consistent 
        with paragraph (8) and the Federal Government's trust 
        obligation.
            (10) Based upon paragraph (8), it is the intent of Congress 
        to enact legislation that implements the Record of Decision 
        referred to in paragraph (8)(F).
    (c) Definitions.--In this Act:
            (1) Agreement.--The term ``Agreement'' has the meaning 
        given that term in section 3(1) of the Colorado Ute Indian 
        Water Rights Settlement Act of 1988 (Public Law 100-585; 102 
        Stat. 2973).
            (2) Animas-la plata project.--The term ``Animas-La Plata 
        Project'' has the meaning given that term in section 3(2) of 
        the Colorado Ute Indian Water Rights Settlement Act of 1988 
        (Public Law 100-585; 102 Stat. 2973).
            (3) Dolores project.--The term ``Dolores Project'' has the 
        meaning given that term in section 3(3) of the Colorado Ute 
        Indian Water Rights Settlement Act of 1988 (Public Law 100-585; 
        102 Stat. 2974).
            (4) Tribe; tribes.--The term ``Tribe'' or ``Tribes'' has 
        the meaning given that term in section 3(6) of the Colorado Ute 
        Indian Water Rights Settlement Act of 1988 (Public Law 100-585; 
        102 Stat. 2974).

SEC. 2. AMENDMENTS TO SECTION 6 OF THE COLORADO UTE INDIAN WATER RIGHTS 
              SETTLEMENT ACT OF 1988.

    Subsection (a) of section 6 of the Colorado Ute Indian Water Rights 
Settlement Act of 1988 (Public Law 100-585; 102 Stat. 2975) is amended 
to read as follows:
    ``(a) Reservoir; Municipal and Industrial Water.--
            ``(1) Facilities.--
                    ``(A) In general.--After the date of enactment of 
                this subsection, but prior to January 1, 2005, or the 
                date established in the Amended Final Decree described 
                in section 18(c), the Secretary, in order to settle the 
                outstanding claims of the Tribes on the Animas and La 
                Plata Rivers, acting through the Bureau of Reclamation, 
                is specifically authorized to--
                            ``(i) complete construction of, and operate 
                        and maintain, a reservoir, a pumping plant, a 
                        reservoir inlet conduit, and appurtenant 
                        facilities with sufficient capacity to divert 
                        and store water from the Animas River to 
                        provide for an average annual depletion of 
                        57,100 acre-feet of water to be used for a 
                        municipal and industrial water supply, which 
                        facilities shall--
                                    ``(I) be designed and operated in 
                                accordance with the hydrologic regime 
                                necessary for the recovery of the 
                                endangered fish of the San Juan River 
                                as determined by the San Juan River 
                                Recovery Implementation Program;
                                    ``(II) be operated in accordance 
                                with the Animas-La Plata Project 
                                Compact as approved by Congress in 
                                Public Law 90-537;
                                    ``(III) include an inactive pool of 
                                an appropriate size to be determined by 
                                the Secretary following the completion 
                                of required environmental compliance 
                                activities; and
                                    ``(IV) include those recreation 
                                facilities determined to be appropriate 
                                by agreement between the State of 
                                Colorado and the Secretary that shall 
                                address the payment of any of the costs 
                                of such facilities by the State of 
                                Colorado in addition to the costs 
                                described in paragraph (3); and
                            ``(ii) deliver, through the use of the 
                        project components referred to in clause (i), 
                        municipal and industrial water allocations--
                                    ``(I) with an average annual 
                                depletion not to exceed 16,525 acre-
                                feet of water, to the Southern Ute 
                                Indian Tribe for its present and future 
                                needs;
                                    ``(II) with an average annual 
                                depletion not to exceed 16,525 acre-
                                feet of water, to the Ute Mountain Ute 
                                Indian Tribe for its present and future 
                                needs;
                                    ``(III) with an average annual 
                                depletion not to exceed 2,340 acre-feet 
                                of water, to the Navajo Nation for its 
                                present and future needs;
                                    ``(IV) with an average annual 
                                depletion not to exceed 10,400 acre-
                                feet of water, to the San Juan Water 
                                Commission for its present and future 
                                needs;
                                    ``(V) with an average annual 
                                depletion of an amount not to exceed 
                                2,600 acre-feet of water, to the 
                                Animas-La Plata Conservancy District 
                                for its present and future needs;
                                    ``(VI) with an average annual 
                                depletion of an amount not to exceed 
                                5,230 acre-feet of water, to the State 
                                of Colorado for its present and future 
                                needs; and
                                    ``(VII) with an average annual 
                                depletion of an amount not to exceed 
                                780 acre-feet of water, to the La Plata 
                                Conservancy District of New Mexico for 
                                its present and future needs.
                    ``(B) Applicability of other federal law.--The 
                responsibilities of the Secretary described in 
                subparagraph (A) are subject to the requirements of 
                Federal laws related to the protection of the 
                environment and otherwise applicable to the 
                construction of the proposed facilities, including the 
                National Environmental Policy Act of 1969 (42 U.S.C. 
                4321 et seq.), the Clean Water Act (42 U.S.C. 7401 et 
                seq.), and the Endangered Species Act of 1973 (16 
                U.S.C. 1531 et seq.). Nothing in this Act shall be 
                construed to predetermine or otherwise affect the 
                outcome of any analysis conducted by the Secretary or 
                any other Federal official under applicable laws.
                    ``(C) Limitation.--
                            ``(i) In general.--If constructed, the 
                        facilities described in subparagraph (A) shall 
                        constitute the Animas-La Plata Project. 
                        Construction of any other project features 
                        authorized by Public Law 90-537 shall not be 
                        commenced without further express authorization 
                        from Congress.
                            ``(ii) Contingency in application.--If the 
                        facilities described in subparagraph (A) are 
                        not constructed and operated, clause (i) shall 
                        not take effect.
            ``(2) Tribal construction costs.--Construction costs 
        allocable to the facilities that are required to deliver the 
        municipal and industrial water allocations described in 
        subclauses (I), (II) and (III) of paragraph (1)(A)(ii) shall be 
        nonreimbursable to the United States.
            ``(3) Nontribal water capital obligations.--
                    ``(A) In general.--Under the provisions of section 
                9 of the Act of August 4, 1939 (43 U.S.C. 485h), the 
                nontribal municipal and industrial water capital 
                repayment obligations for the facilities described in 
                paragraph (1)(A)(i) may be satisfied upon the payment 
                in full of the nontribal water capital obligations 
                prior to the initiation of construction. The amount of 
                the obligations described in the preceding sentence 
                shall be determined by agreement between the Secretary 
                of the Interior and the entity responsible for such 
                repayment as to the appropriate reimbursable share of 
                the construction costs allocated to that entity's 
                municipal water storage. Such repayment shall be 
                consistent with Federal reclamation law, including the 
                Colorado River Storage Project Act of 1956 (43 U.S.C. 
                620 et seq.). Such agreement shall take into account 
                the fact that the construction of certain project 
                facilities, including those facilities required to 
                provide irrigation water supplies from the Animas-La 
                Plata Project, is not authorized under paragraph 
                (1)(A)(i) and no costs associated with the design or 
                development of such facilities, including costs 
                associated with environmental compliance, shall be 
                allocable to the municipal and industrial users of the 
                facilities authorized under such paragraph.
                    ``(B) Nontribal repayment obligation subject to 
                final cost allocation.--The nontribal repayment 
                obligation set forth in subparagraph (A) shall be 
                subject to a final cost allocation by the Secretary 
                upon project completion. In the event that the final 
                cost allocation indicates that additional repayment is 
                warranted based on the applicable entity's share of 
                project water storage and determination of overall 
                reimbursable cost, that entity may elect to enter into 
                a new agreement to make the additional payment 
                necessary to secure the full water supply identified in 
                paragraph (1)(A)(ii). If the repayment entity elects 
                not to enter into a new agreement, the portion of 
                project storage relinquished by such election shall be 
                available to the Secretary for allocation to other 
                project purposes. Additional repayment shall only be 
                warranted for reasonable and unforeseen costs 
                associated with project construction as determined by 
                the Secretary in consultation with the relevant 
                repayment entities.
                    ``(C) Report.--Not later than April 1, 2001, the 
                Secretary shall report to Congress on the status of the 
                cost-share agreements contemplated in subparagraph (A). 
                In the event that no agreement is reached with either 
                the Animas-La Plata Conservancy District or the State 
                of Colorado for the water allocations set forth in 
                subclauses (V) and (VI) of paragraph (1)(A)(ii), those 
                allocations shall be reallocated equally to the 
                Colorado Ute Tribes.
            ``(4) Tribal water allocations.--
                    ``(A) In general.--With respect to municipal and 
                industrial water allocated to a Tribe from the Animas-
                La Plata Project or the Dolores Project, until that 
                water is first used by a Tribe or used pursuant to a 
                water use contract with the Tribe, the Secretary shall 
                pay the annual operation, maintenance, and replacement 
                costs allocable to that municipal and industrial water 
                allocation of the Tribe.
                    ``(B) Treatment of costs.--A Tribe shall not be 
                required to reimburse the Secretary for the payment of 
                any cost referred to in subparagraph (A).
            ``(5) Repayment of pro rata share.--Upon a Tribe's first 
        use of an increment of a municipal and industrial water 
        allocation described in paragraph (4), or the Tribe's first use 
        of such water pursuant to the terms of a water use contract--
                    ``(A) repayment of that increment's pro rata share 
                of those allocable construction costs for the Dolores 
                Project shall be made by the Tribe; and
                    ``(B) the Tribe shall bear a pro rata share of the 
                allocable annual operation, maintenance, and 
                replacement costs of the increment as referred to in 
                paragraph (4).''.

SEC. 3. MISCELLANEOUS.

    The Colorado Ute Indian Water Rights Settlement Act of 1988 (Public 
Law 100-585; 102 Stat. 2973) is amended by adding at the end the 
following:

``SEC. 15. NEW MEXICO AND NAVAJO NATION WATER MATTERS.

    ``(a) Assignment of Water Permit.--Upon the request of the State 
Engineer of the State of New Mexico, the Secretary shall, as soon as 
practicable, in a manner consistent with applicable law, assign, 
without consideration, to the New Mexico Animas-La Plata Project 
beneficiaries or to the New Mexico Interstate Stream Commission in 
accordance with the request of the State Engineer, the Department of 
the Interior's interest in New Mexico State Engineer Permit Number 
2883, dated May 1, 1956, in order to fulfill the New Mexico non-Navajo 
purposes of the Animas-La Plata Project, so long as the permit 
assignment does not affect the application of the Endangered Species 
Act of 1973 (16 U.S.C. 1531 et seq.) to the use of the water involved.
    ``(b) Navajo Nation Municipal Pipeline.--The Secretary is 
specifically authorized to construct a water line to augment the 
existing system that conveys the municipal water supplies, in an amount 
not less than 4,680 acre-feet per year, to the Navajo Indian 
Reservation at or near Shiprock, New Mexico. The Secretary shall comply 
with all applicable environmental laws with respect to such water line. 
Construction costs allocated to the Navajo Nation for such water line 
shall be nonreimbursable to the United States.
    ``(c) Protection of Navajo Water Claims.--Nothing in this Act, 
including the permit assignment authorized by subsection (a), shall be 
construed to quantify or otherwise adversely affect the water rights 
and the claims of entitlement to water of the Navajo Nation.

``SEC. 16. RESOURCE FUNDS.

    ``(a) Authorization of Appropriations.--There is authorized to be 
appropriated to carry out this section, $8,000,000 for each of fiscal 
years 2002 through 2006. Not later than 60 days after amounts are 
appropriated and available to the Secretary for a fiscal year under 
this paragraph, the Secretary shall make a payment to each of the 
Tribal Resource Funds established under subsection (b). Each such 
payment shall be equal to 50 percent of the amount appropriated for the 
fiscal year involved.
    ``(b) Funds.--The Secretary shall establish a--
            ``(1) Southern Ute Tribal Resource Fund; and
            ``(2) Ute Mountain Ute Tribal Resource Fund.
    ``(c) Tribal Development.--
            ``(1) Investment.--The Secretary shall, in the absence of 
        an approved tribal investment plan provided for under paragraph 
        (2), invest the amount in each Tribal Resource Fund established 
        under subsection (b) in accordance with the Act entitled, `An 
        Act to authorize the deposit and investment of Indian funds' 
        approved June 24, 1938 (25 U.S.C. 162a). With the exception of 
        the funds referred to in paragraph (3)(B)(i), the Secretary 
        shall disburse, at the request of a Tribe, the principal and 
        income in its Resource Fund, or any part thereof, in accordance 
        with a resource acquisition and enhancement plan approved under 
        paragraph (3).
            ``(2) Investment plan.--
                    ``(A) In general.--In lieu of the investment 
                provided for in paragraph (1), a Tribe may submit a 
                tribal investment plan applicable to all or part of the 
                Tribe's Tribal Resource Fund, except with respect to 
                the funds referred to in paragraph (3)(B)(i).
                    ``(B) Approval.--Not later than 60 days after the 
                date on which an investment plan is submitted under 
                subparagraph (A), the Secretary shall approve such 
                investment plan if the Secretary finds that the plan is 
                reasonable and sound. If the Secretary does not approve 
                such investment plan, the Secretary shall set forth in 
                writing and with particularity the reasons for such 
                disapproval. If such investment plan is approved by the 
                Secretary, the Tribal Resource Fund involved shall be 
                disbursed to the Tribe to be invested by the Tribe in 
                accordance with the approved investment plan, subject 
                to subsection (d).
                    ``(C) Compliance.--The Secretary may take such 
                steps as the Secretary determines to be necessary to 
                monitor the compliance of a Tribe with an investment 
                plan approved under subparagraph (B). The United States 
                shall not be responsible for the review, approval, or 
                audit of any individual investment under the plan. The 
                United States shall not be directly or indirectly 
                liable with respect to any such investment, including 
                any act or omission of the Tribe in managing or 
                investing such funds.
                    ``(D) Economic development plan.--The principal and 
                income derived from tribal investments under an 
                investment plan approved under subparagraph (B) shall 
                be subject to the provisions of this section and shall 
                be expended only in accordance with an economic 
                development plan approved under paragraph (3)(B).
            ``(3) Economic development plan.--
                    ``(A) In general.--Each Tribe shall submit to the 
                Secretary a resource acquisition and enhancement plan 
                for all or any portion of its Tribal Resource Fund.
                    ``(B) Approval.--Not later than 60 days after the 
                date on which a plan is submitted under subparagraph 
                (A), the Secretary shall approve such plan if it is 
                consistent with the following requirements:
                            ``(i) With respect to at least \3/4\ of the 
                        funds appropriated pursuant to this section and 
                        consistent with the long-standing practice of 
                        the Tribes and other local entities and 
                        communities to work together to use their 
                        respective water rights and resources for 
                        mutual benefit, at least \3/4\ of the funds 
                        appropriated pursuant to this section shall be 
                        utilized to enhance, restore, and utilize the 
                        Tribes' natural resources in partnership with 
                        adjacent non-Indian communities or entities in 
                        the area.
                            ``(ii) The plan must be reasonably related 
                        to the protection, acquisition, enhancement, or 
                        development of natural resources for the 
                        benefit of the Tribe and its members.
                            ``(iii) Notwithstanding any other provision 
                        of law and in order to ensure that the Federal 
                        Government fulfills the objectives of the 
                        Record of Decision referred to in section 
                        1(b)(8)(F) of the Colorado Ute Settlement Act 
                        Amendments of 2000 by requiring that the funds 
                        referred to in clause (i) are expended directly 
                        by employees of the Federal Government, the 
                        Secretary acting through the Bureau of 
                        Reclamation shall expend not less than \1/3\ of 
                        the funds referred to in clause (i) for 
                        municipal or rural water development and not 
                        less than \2/3\ of the funds referred to such 
                        clause for resource acquisition and 
                        enhancement.
                    ``(C) Modification.--Subject to the provisions of 
                this Act and the approval of the Secretary, each Tribe 
                may modify a plan approved under subparagraph (B).
                    ``(D) Liability.--The United States shall not be 
                directly or indirectly liable for any claim or cause of 
                action arising from the approval of a plan under this 
                paragraph, or from the use and expenditure by the Tribe 
                of the principal or interest of the Funds.
    ``(d) Limitation on Per Capita Distributions.--No part of the 
principal contained in the Tribal Resource Fund, or of the income 
accruing to such funds, or the revenue from any water use contract, 
shall be distributed to any member of either Tribe on a per capita 
basis.
    ``(e) Limitation on Setting Aside Final Consent Decree.--Neither 
the Tribes nor the United States shall have the right to set aside the 
final consent decree solely because the requirements of subsection (c) 
are not complied with or implemented.
    ``(f) Limitation on Disbursement of Tribal Resource Funds.--Any 
funds appropriated under this section shall be placed into the Southern 
Ute Tribal Resource Fund and the Ute Mountain Ute Tribal Resource Fund 
in the Treasury of the United States but shall not be available for 
disbursement under this section until the final settlement of the 
tribal claims as provided in section 18. The Secretary of the Interior 
may, in the Secretary's sole discretion, authorize the disbursement of 
funds prior to the final settlement in the event that the Secretary 
determines that substantial portions of the settlement have been 
completed. In the event that the funds are not disbursed under the 
terms of this section by December 31, 2012, such funds shall be 
deposited in the general fund of the Treasury.

``SEC. 17. COLORADO UTE SETTLEMENT FUND.

    ``(a) Establishment of Fund.--There is hereby established within 
the Treasury of the United States a fund to be known as the `Colorado 
Ute Settlement Fund'.
    ``(b) Authorization of Appropriations.--There is authorized to be 
appropriated to the Colorado Ute Settlement Fund such funds as are 
necessary to complete the construction of the facilities described in 
sections 6(a)(1)(A) and 15(b) within 7 years of the date of enactment 
of this section. Such funds are authorized to be appropriated for each 
of the first 5 fiscal years beginning with the first full fiscal year 
following the date of enactment of this section.

``SEC. 18. FINAL SETTLEMENT.

    ``(a) In General.--The construction of the facilities described in 
section 6(a)(1)(A), the allocation of the water supply from those 
facilities to the Tribes as described in that section, and the 
provision of funds to the Tribes in accordance with section 16 and the 
issuance of an amended final consent decree as contemplated in 
subsection (c) shall constitute final settlement of the tribal claims 
to water rights on the Animas and La Plata Rivers in the State of 
Colorado.
    ``(b) Statutory Construction.--Nothing in this section shall be 
construed to affect the right of the Tribes to water rights on the 
streams and rivers described in the Agreement, other than the Animas 
and La Plata Rivers, to receive the amounts of water dedicated to 
tribal use under the Agreement, or to acquire water rights under the 
laws of the State of Colorado.
    ``(c) Action by the Attorney General.--The Attorney General shall 
file with the District Court, Water Division Number 7, of the State of 
Colorado, such instruments as may be necessary to request the court to 
amend the final consent decree to provide for the amendments made to 
this Act under the Colorado Ute Indian Water Rights Settlement Act 
Amendments of 2000. The amended final consent decree shall specify 
terms and conditions to provide for an extension of the current January 
1, 2005, deadline for the Tribes to commence litigation of their 
reserved rights claims on the Animas and La Plata Rivers.

``SEC. 19. STATUTORY CONSTRUCTION; TREATMENT OF CERTAIN FUNDS.

    ``(a) In General.--Nothing in the amendments made by the Colorado 
Ute Settlement Act Amendments of 2000 shall be construed to affect the 
applicability of any provision of this Act.
    ``(b) Treatment of Uncommitted Portion of Cost-Sharing 
Obligation.--The uncommitted portion of the cost-sharing obligation of 
the State of Colorado referred to in section 6(a)(3) shall be made 
available, upon the request of the State of Colorado, to the State of 
Colorado after the date on which payment is made of the amount 
specified in that section.''.

            Passed the Senate October 25 (legislative day, September 
      22), 2000.

            Attest:

                                                             Secretary.
106th CONGRESS

  2d Session

                                S. 2508

_______________________________________________________________________

                                 AN ACT

To amend the Colorado Ute Indian Water Rights Settlement Act of 1988 to 
provide for a final settlement of the claims of the Colorado Ute Indian 
                    Tribes, and for other purposes.

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