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[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 222 Engrossed in Senate (ES)]

  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
108th CONGRESS
  1st Session
                                 S. 222

_______________________________________________________________________

                                 AN ACT

 
To approve the settlement of the water rights claims of the Zuni Indian 
        Tribe in Apache County, Arizona, 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.

    This Act may be cited as the ``Zuni Indian Tribe Water Rights 
Settlement Act of 2003''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress makes the following findings:
            (1) It is the policy of the United States, in keeping with 
        its trust responsibility to Indian tribes, to promote Indian 
        self-determination, religious freedom, political and cultural 
        integrity, and economic self-sufficiency, and to settle, 
        wherever possible, the water rights claims of Indian tribes 
        without lengthy and costly litigation.
            (2) Quantification of rights to water and development of 
        facilities needed to use tribal water supplies effectively is 
        essential to the development of viable Indian reservation 
        communities, particularly in arid western States.
            (3) On August 28, 1984, and by actions subsequent thereto, 
        the United States established a reservation for the Zuni Indian 
        Tribe in Apache County, Arizona upstream from the confluence of 
        the Little Colorado and Zuni Rivers for long-standing religious 
        and sustenance activities.
            (4) The water rights of all water users in the Little 
        Colorado River basin in Arizona have been in litigation since 
        1979, in the Superior Court of the State of Arizona in and for 
        the County of Apache in Civil No. 6417, In re The General 
        Adjudication of All Rights to Use Water in the Little Colorado 
        River System and Source.
            (5) Recognizing that the final resolution of the Zuni 
        Indian Tribe's water claims through litigation will take many 
        years and entail great expense to all parties, continue to 
        limit the Tribe's access to water with economic, social, and 
        cultural consequences to the Tribe, prolong uncertainty as to 
        the availability of water supplies, and seriously impair the 
        long-term economic planning and development of all parties, the 
        Tribe and neighboring non-Indians have sought to settle their 
        disputes to water and reduce the burdens of litigation.
            (6) After more than 4 years of negotiations, which included 
        participation by representatives of the United States, the Zuni 
        Indian Tribe, the State of Arizona, and neighboring non-Indian 
        communities in the Little Colorado River basin, the parties 
        have entered into a Settlement Agreement to resolve all of the 
        Zuni Indian Tribe's water rights claims and to assist the Tribe 
        in acquiring surface water rights, to provide for the Tribe's 
        use of groundwater, and to provide for the wetland restoration 
        of the Tribe's lands in Arizona.
            (7) To facilitate the wetland restoration project 
        contemplated under the Settlement Agreement, the Zuni Indian 
        Tribe acquired certain lands along the Little Colorado River 
        near or adjacent to its Reservation that are important for the 
        success of the project and will likely acquire a small amount 
        of similarly situated additional lands. The parties have agreed 
        not to object to the United States taking title to certain of 
        these lands into trust status; other lands shall remain in 
        tribal fee status. The parties have worked extensively to 
        resolve various governmental concerns regarding use of and 
        control over those lands, and to provide a successful model for 
        these types of situations, the State, local, and tribal 
        governments intend to enter into an Intergovernmental Agreement 
        that addresses the parties' governmental concerns.
            (8) Pursuant to the Settlement Agreement, the neighboring 
        non-Indian entities will assist in the Tribe's acquisition of 
        surface water rights and development of groundwater, store 
        surface water supplies for the Zuni Indian Tribe, and make 
        substantial additional contributions to carry out the 
        Settlement Agreement's provisions.
            (9) To advance the goals of Federal Indian policy and 
        consistent with the trust responsibility of the United States 
        to the Tribe, it is appropriate that the United States 
        participate in the implementation of the Settlement Agreement 
        and contribute funds for the rehabilitation of religious 
        riparian areas and other purposes to enable the Tribe to use 
        its water entitlement in developing its Reservation.
    (b) Purposes.--The purposes of this Act are--
            (1) to approve, ratify, and confirm the Settlement 
        Agreement entered into by the Tribe and neighboring non-
        Indians;
            (2) to authorize and direct the Secretary of the Interior 
        to execute and perform the Settlement Agreement and related 
        waivers;
            (3) to authorize and direct the United States to take legal 
        title and hold such title to certain lands in trust for the 
        benefit of the Zuni Indian Tribe; and
            (4) to authorize the actions, agreements, and 
        appropriations as provided for in the Settlement Agreement and 
        this Act.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Eastern lcr basin.--The term ``Eastern LCR basin'' 
        means the portion of the Little Colorado River basin in Arizona 
        upstream of the confluence of Silver Creek and the Little 
        Colorado River, as identified on Exhibit 2.10 of the Settlement 
        Agreement.
            (2) Fund.--The term ``Fund'' means the Zuni Indian Tribe 
        Water Rights Development Fund established by section 6(a).
            (3) Intergovernmental agreement.--The term 
        ``Intergovernmental Agreement'' means the intergovernmental 
        agreement between the Zuni Indian Tribe, Apache County, Arizona 
        and the State of Arizona described in article 6 of the 
        Settlement Agreement.
            (4) Pumping protection agreement.--The term ``Pumping 
        Protection Agreement'' means an agreement, described in article 
        5 of the Settlement Agreement, between the Zuni Tribe, the 
        United States on behalf of the Tribe, and a local landowner 
        under which the landowner agrees to limit pumping of 
        groundwater on his lands in exchange for a waiver of certain 
        claims by the Zuni Tribe and the United States on behalf of the 
        Tribe.
            (5) Reservation; zuni heaven reservation.--The term 
        ``Reservation'' or ``Zuni Heaven Reservation'', also referred 
        to as ``Kolhu:wala:wa'', means the following property in Apache 
        County, Arizona: Sections 26, 27, 28, 33, 34, and 35, Township 
        15 North, Range 26 East, Gila and Salt River Base and Meridian; 
        and Sections 2, 3, 4, 9, 10, 11, 13, 14, 15, 16, 23, 26, and 
        27, Township 14 North, Range 26 East, Gila and Salt River Base 
        and Meridian.
            (6) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior.
            (7) Settlement agreement.--The term ``Settlement 
        Agreement'' means that agreement dated June 7, 2002, together 
        with all exhibits thereto. The parties to the Settlement 
        Agreement include the Zuni Indian Tribe and its members, the 
        United States on behalf of the Tribe and its members, the State 
        of Arizona, the Arizona Game and Fish Commission, the Arizona 
        State Land Department, the Arizona State Parks Board, the St. 
        Johns Irrigation and Ditch Co., the Lyman Water Co., the Round 
        Valley Water Users' Association, the Salt River Project 
        Agricultural Improvement and Power District, the Tucson 
        Electric Power Company, the City of St. Johns, the Town of 
        Eagar, and the Town of Springerville.
            (8) SRP.--The term ``SRP'' means the Salt River Project 
        Agricultural Improvement and Power District, a political 
        subdivision of the State of Arizona.
            (9) TEP.--The term ``TEP'' means Tucson Electric Power 
        Company.
            (10) Tribe, zuni tribe, or zuni indian tribe.--The terms 
        ``Tribe'', ``Zuni Tribe'', or ``Zuni Indian Tribe'' means the 
        body politic and federally recognized Indian nation, and its 
        members.
            (11) Zuni lands.--The term ``Zuni Lands'' means all the 
        following lands, in the State of Arizona, that, on the 
        effective date described in section 9(a), are--
                    (A) within the Zuni Heaven Reservation;
                    (B) held in trust by the United States for the 
                benefit of the Tribe or its members; or
                    (C) held in fee within the Little Colorado River 
                basin by or for the Tribe.

SEC. 4. AUTHORIZATION, RATIFICATIONS, AND CONFIRMATIONS.

    (a) Settlement Agreement.--To the extent the Settlement Agreement 
does not conflict with the provisions of this Act, such Settlement 
Agreement is hereby approved, ratified, confirmed, and declared to be 
valid. The Secretary is authorized and directed to execute the 
Settlement Agreement and any amendments approved by the parties 
necessary to make the Settlement Agreement consistent with this Act. 
The Secretary is further authorized to perform any actions required by 
the Settlement Agreement and any amendments to the Settlement Agreement 
that may be mutually agreed upon by the parties to the Settlement 
Agreement.
    (b) Authorization of Appropriations.--There is authorized to be 
appropriated to the Zuni Indian Tribe Water Rights Development Fund 
established in section 6(a), $19,250,000, to be allocated by the 
Secretary as follows:
            (1) $3,500,000 for fiscal year 2004, to be used for the 
        acquisition of water rights and associated lands, and other 
        activities carried out, by the Zuni Tribe to facilitate the 
        enforceability of the Settlement Agreement, including the 
        acquisition of at least 2,350 acre-feet per year of water 
        rights before the deadline described in section 9(b).
            (2) $15,750,000, of which $5,250,000 shall be made 
        available for each of fiscal years 2004, 2005, and 2006, to 
        take actions necessary to restore, rehabilitate, and maintain 
        the Zuni Heaven Reservation, including the Sacred Lake, 
        wetlands, and riparian areas as provided for in the Settlement 
        Agreement and under this Act.
    (c) Other Agreements.--Except as provided in section 9, the 
following 3 separate agreements, together with all amendments thereto, 
are approved, ratified, confirmed, and declared to be valid:
            (1) The agreement between SRP, the Zuni Tribe, and the 
        United States on behalf of the Tribe, dated June 7, 2002.
            (2) The agreement between TEP, the Zuni Tribe, and the 
        United States on behalf of the Tribe, dated June 7, 2002.
            (3) The agreement between the Arizona State Land 
        Department, the Zuni Tribe, and the United States on behalf of 
        the Tribe, dated June 7, 2002.

SEC. 5. TRUST LANDS.

    (a) New Trust Lands.--Upon satisfaction of the conditions in 
paragraph 6.2 of the Settlement Agreement, and after the requirements 
of section 9(a) have been met, the Secretary shall take the legal title 
of the following lands into trust for the benefit of the Zuni Tribe:
            (1) In T. 14 N., R. 27 E., Gila and Salt River Base and 
        Meridian:
                    (A) Section 13: SW 1/4, S 1/2 NE 1/4 SE 1/4, W 1/2 
                SE 1/4, SE 1/4 SE 1/4;
                    (B) Section 23: N 1/2, N 1/2 SW 1/4, N 1/2 SE 1/4, 
                SE 1/4 SE 1/4, N 1/2 SW 1/4 SE 1/4, SE 1/4 SW 1/4 SE 1/
                4;
                    (C) Section 24: NW 1/4, SW 1/4, S 1/2 NE 1/4, N 1/2 
                SE 1/4; and
                    (D) Section 25: N 1/2 NE 1/4, SE 1/4 NE 1/4, NE 1/4 
                SE 1/4.
            (2) In T. 14 N., R. 28 E., Gila and Salt River Base and 
        Meridian:
                    (A) Section 19: W 1/2 E 1/2 NW 1/4, W 1/2 NW 1/4, W 
                1/2 NE 1/4 SW 1/4, NW 1/4 SW 1/4, S 1/2 SW 1/4;
                    (B) Section 29: SW 1/4 SW 1/4 NW 1/4, NW 1/4 NW 1/4 
                SW 1/4, S 1/2 N 1/2 SW 1/4, S 1/2 SW 1/4, S 1/2 NW 1/4 
                SE 1/4, SW 1/4 SE 1/4;
                    (C) Section 30: W 1/2 , SE 1/4; and
                    (D) Section 31: N 1/2 NE 1/4, N 1/2 S 1/2 NE 1/4, S 
                1/2 SE 1/4 NE 1/4, NW 1/4, E 1/2 SW 1/4, N 1/2 NW 1/4 
                SW 1/4, SE 1/4 NW 1/4 SW 1/4, E 1/2 SW 1/4 SW 1/4, SW 
                1/4 SW 1/4 SW 1/4.
    (b) Future Trust Lands.--Upon satisfaction of the conditions in 
paragraph 6.2 of the Settlement Agreement, after the requirements of 
section 9(a) have been met, and upon acquisition by the Zuni Tribe, the 
Secretary shall take the legal title of the following lands into trust 
for the benefit of the Zuni Tribe:
            (1) In T. 14 N., R. 26E., Gila and Salt River Base and 
        Meridian: Section 25: N 1/2 NE 1/4, N 1/2 S 1/2 NE 1/4, NW 1/4, 
        N 1/2 NE 1/4 SW 1/4, NE 1/4 NW 1/4 SW 1/4.
            (2) In T. 14 N., R. 27 E., Gila and Salt River Base and 
        Meridian:
                    (A) Section 14: SE 1/4 SW 1/4, SE 1/4;
                    (B) Section 16: S 1/2 SW 1/4 SE 1/4;
                    (C) Section 19: S 1/2 SE 1/4 SE 1/4;
                    (D) Section 20: S 1/2 SW 1/4 SW 1/4, E 1/2 SE 1/4 
                SE 1/4;
                    (E) Section 21: N 1/2 NE 1/4, E 1/2 NE 1/4 NW 1/4, 
                SE 1/4 NW 1/4, W 1/2 SW 1/4 NE 1/4, N 1/2 NE 1/4 SW 1/
                4, SW 1/4 NE 1/4 SW 1/4, E 1/2 NW 1/4 SW 1/4, SW 1/4 NW 
                1/4 SW 1/4, W 1/2 SW 1/4 SW 1/4;
                    (F) Section 22: SW 1/4 NE 1/4 NE 1/4, NW 1/4 NE 1/
                4, S 1/2 NE 1/4, N 1/2 NW 1/4, SE 1/4 NW1/4, N 1/2 SW 
                1/4 NW 1/4, SE 1/4 SW 1/4 NW 1/4, N 1/2 N 1/2 SE 1/4, N 
                1/2 NE 1/4 SW 1/4;
                    (G) Section 24: N 1/2 NE 1/4, S 1/2 SE 1/4;
                    (H) Section 29: N 1/2 N 1/2;
                    (I) Section 30: N 1/2 N 1/2, N 1/2 S 1/2 NW 1/4, N 
                1/2 SW 1/4 NE 1/4; and
                    (J) Section 36: SE 1/4 SE 1/4 NE 1/4, NE 1/4 NE 1/4 
                SE 1/4.
            (3) In T. 14 N., R. 28 E., Gila and Salt River Base and 
        Meridian:
                    (A) Section 18: S 1/2 NE 1/4, NE 1/4 SW 1/4, NE 1/4 
                NW 1/4 SW 1/4, S 1/2 NW 1/4 SW 1/4, S 1/2 SW 1/4, N 1/2 
                SE 1/4, N 1/2 SW 1/4 SE 1/4, SE 1/4 SE 1/4;
                    (B) Section 30: S 1/2 NE 1/4, W 1/2 NW 1/4 NE 1/4; 
                and
                    (C) Section 32: N 1/2 NW 1/4 NE 1/4, SW 1/4 NE 1/4, 
                S 1/2 SE 1/4 NE 1/4, NW 1/4, SW 1/4, N 1/2 SE 1/4, SW 
                1/4 SE 1/4, N 1/2 SE 1/4 SE 1/4, SW 1/4 SE 1/4 SE 1/4.
    (c) New Reservation Lands.--Upon satisfaction of the conditions in 
paragraph 6.2 of the Settlement Agreement, after the requirements of 
section 9(a) have been met, and upon acquisition by the Zuni Tribe, the 
Secretary shall take the legal title of the following lands in Arizona 
into trust for the benefit of the Zuni Tribe and make such lands part 
of the Zuni Indian Tribe Reservation in Arizona: Section 34, T. 14 N., 
R. 26 E., Gila and Salt River Base and Meridian.
    (d) Limitation on Secretarial Discretion.--The Secretary shall have 
no discretion regarding the acquisitions described in subsections (a), 
(b), and (c).
    (e) Lands Remaining in Fee Status.--The Zuni Tribe may seek to have 
the legal title to additional lands in Arizona, other than the lands 
described in subsection (a), (b), or (c), taken into trust by the 
United States for the benefit of the Zuni Indian Tribe pursuant only to 
an Act of Congress enacted after the date of enactment of this Act 
specifically authorizing the transfer for the benefit of the Zuni 
Tribe.
    (f) Final Agency Action.--Any written certification by the 
Secretary under subparagraph 6.2.B of the Settlement Agreement 
constitutes final agency action under the Administrative Procedure Act 
and is reviewable as provided for under chapter 7 of title 5, United 
States Code.
    (g) No Federal Water Rights.--Lands taken into trust pursuant to 
subsection (a), (b), or (c) shall not have Federal reserved rights to 
surface water or groundwater.
    (h) State Water Rights.--The water rights and uses for the lands 
taken into trust pursuant to subsection (a) or (c) must be determined 
under subparagraph 4.1.A and article 5 of the Settlement Agreement. 
With respect to the lands taken into trust pursuant to subsection (b), 
the Zuni Tribe retains any rights or claims to water associated with 
these lands under State law, subject to the terms of the Settlement 
Agreement.
    (i) Forfeiture and Abandonment.--Water rights that are appurtenant 
to lands taken into trust pursuant to subsection (a), (b), or (c) shall 
not be subject to forfeiture and abandonment.
    (j) Ad Valorem Taxes.--With respect to lands that are taken into 
trust pursuant to subsection (a) or (b), the Zuni Tribe shall make 
payments in lieu of all current and future State, county, and local ad 
valorem property taxes that would otherwise be applicable to those 
lands if they were not in trust.
    (k) Authority of Tribe.--For purposes of complying with this 
section and article 6 of the Settlement Agreement, the Tribe is 
authorized to enter into--
            (1) the Intergovernmental Agreement between the Zuni Tribe, 
        Apache County, Arizona, and the State of Arizona; and
            (2) any intergovernmental agreement required to be entered 
        into by the Tribe under the terms of the Intergovernmental 
        Agreement.
    (l) Federal Acknowledgement of Intergovernmental Agreements.--
            (1) In general.--The Secretary shall acknowledge the terms 
        of any intergovernmental agreement entered into by the Tribe 
        under this section.
            (2) No abrogation.--The Secretary shall not seek to 
        abrogate, in any administrative or judicial action, the terms 
        of any intergovernmental agreement that are consistent with 
        subparagraph 6.2.A of the Settlement Agreement and this Act.
            (3) Removal.--
                    (A) In general.--Except as provided in subparagraph 
                (B), if a judicial action is commenced during a dispute 
                over any intergovernmental agreement entered into under 
                this section, and the United States is allowed to 
                intervene in such action, the United States shall not 
                remove such action to the Federal courts.
                    (B) Exception.--The United States may seek removal 
                if--
                            (i) the action concerns the Secretary's 
                        decision regarding the issuance of rights-of-
                        way under section 8(c);
                            (ii) the action concerns the authority of a 
                        Federal agency to administer programs or the 
                        issuance of a permit under--
                                    (I) the Federal Water Pollution 
                                Control Act (33 U.S.C. 1251 et seq.);
                                    (II) the Safe Drinking Water Act 
                                (42 U.S.C. 300f et seq.);
                                    (III) the Clean Air Act (42 U.S.C. 
                                7401 et seq.); or
                                    (IV) any other Federal law 
                                specifically addressed in 
                                intergovernmental agreements; or
                            (iii) the intergovernmental agreement is 
                        inconsistent with a Federal law for the 
                        protection of civil rights, public health, or 
                        welfare.
    (m) Rule of Construction.--Nothing in this Act shall be construed 
to affect the application of the Act of May 25, 1918 (25 U.S.C. 211) 
within the State of Arizona.
    (n) Disclaimer.--Nothing in this section repeals, modifies, amends, 
changes, or otherwise affects the Secretary's obligations to the Zuni 
Tribe pursuant to the Act entitled ``An Act to convey certain lands to 
the Zuni Indian Tribe for religious purposes'' approved August 28, 1984 
(Public Law 98-408; 98 Stat. 1533) (and as amended by the Zuni Land 
Conservation Act of 1990 (Public Law 101-486; 104 Stat. 1174)).

SEC. 6. DEVELOPMENT FUND.

    (a) Establishment of the Fund.--
            (1) In general.--There is established in the Treasury of 
        the United States a fund to be known as the ``Zuni Indian Tribe 
        Water Rights Development Fund'', to be managed and invested by 
        the Secretary, consisting of--
                    (A) the amounts authorized to be appropriated in 
                section 4(b); and
                    (B) the appropriation to be contributed by the 
                State of Arizona pursuant to paragraph 7.6 of the 
                Settlement Agreement.
            (2) Additional deposits.--The Secretary shall deposit in 
        the Fund any other monies paid to the Secretary on behalf of 
        the Zuni Tribe pursuant to the Settlement Agreement.
    (b) Management of the Fund.--The Secretary shall manage the Fund, 
make investments from the Fund, and make monies available from the Fund 
for distribution to the Zuni Tribe consistent with the American Indian 
Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.) 
(referred to in this section as the ``Trust Fund Reform Act''), this 
Act, and the Settlement Agreement.
    (c) Investment of the Fund.--The Secretary shall invest amounts in 
the Fund in accordance with--
            (1) the Act of April 1, 1880 (21 Stat. 70, ch. 41, 25 
        U.S.C. 161);
            (2) the first section of the Act of June 24, 1938 (52 Stat. 
        1037, ch. 648, 25 U.S.C. 162a); and
            (3) subsection (b).
    (d) Availability of Amounts From the Fund.--The funds authorized to 
be appropriated pursuant to section 3104(b)(2) and funds contributed by 
the State of Arizona pursuant to paragraph 7.6 of the Settlement 
Agreement shall be available for expenditure or withdrawal only after 
the requirements of section 9(a) have been met.
    (e) Expenditures and Withdrawal.--
            (1) Tribal management plan.--
                    (A) In general.--The Zuni Tribe may withdraw all or 
                part of the Fund on approval by the Secretary of a 
                tribal management plan as described in the Trust Fund 
                Reform Act.
                    (B) Requirements.--In addition to the requirements 
                under the Trust Fund Reform Act, the tribal management 
                plan shall require that the Zuni Tribe spend any funds 
                in accordance with the purposes described in section 
                4(b).
            (2) Enforcement.--The Secretary may take judicial or 
        administrative action to enforce the provisions of any tribal 
        management plan to ensure that any monies withdrawn from the 
        Fund under the plan are used in accordance with this Act.
            (3) Liability.--If the Zuni Tribe exercises the right to 
        withdraw monies from the Fund, neither the Secretary nor the 
        Secretary of the Treasury shall retain any liability for the 
        expenditure or investment of the monies withdrawn.
            (4) Expenditure plan.--
                    (A) In general.--The Zuni Tribe shall submit to the 
                Secretary for approval an expenditure plan for any 
                portion of the funds made available under this Act that 
                the Zuni Tribe does not withdraw under this subsection.
                    (B) Description.--The expenditure plan shall 
                describe the manner in which, and the purposes for 
                which, funds of the Zuni Tribe remaining in the Fund 
                will be used.
                    (C) Approval.--On receipt of an expenditure plan 
                under subparagraph (A), the Secretary shall approve the 
                plan if the Secretary determines that the plan is 
                reasonable and consistent with this Act.
            (5) Annual report.--The Zuni Tribe shall submit to the 
        Secretary an annual report that describes all expenditures from 
        the Fund during the year covered by the report.
    (f) Funds for Acquisition of Water Rights.--
            (1) Water rights acquisitions.--Notwithstanding subsection 
        (e), the funds authorized to be appropriated pursuant to 
        section 4(b)(1)--
                    (A) shall be available upon appropriation for use 
                in accordance with section 4(b)(1); and
                    (B) shall be distributed by the Secretary to the 
                Zuni Tribe on receipt by the Secretary from the Zuni 
                Tribe of a written notice and a tribal council 
                resolution that describe the purposes for which the 
                funds will be used.
            (2) Right to set off.--In the event the requirements of 
        section 9(a) have not been met and the Settlement Agreement has 
        become null and void under section 9(b), the United States 
        shall be entitled to set off any funds expended or withdrawn 
        from the amount appropriated pursuant to section 4(b)(1), 
        together with any interest accrued, against any claims asserted 
        by the Zuni Tribe against the United States relating to water 
        rights at the Zuni Heaven Reservation.
            (3) Water rights.--Any water rights acquired with funds 
        described in paragraph (1) shall be credited against any water 
        rights secured by the Zuni Tribe, or the United States on 
        behalf of the Zuni Tribe, for the Zuni Heaven Reservation in 
        the Little Colorado River General Stream Adjudication or in any 
        future settlement of claims for those water rights.
    (g) No Per Capita Distributions.--No part of the Fund shall be 
distributed on a per capita basis to members of the Zuni Tribe.

SEC. 7. CLAIMS EXTINGUISHMENT; WAIVERS AND RELEASES.

    (a) Full Satisfaction of Members' Claims.--
            (1) In general.--The benefits realized by the Tribe and its 
        members under this Act, including retention of any claims and 
        rights, shall constitute full and complete satisfaction of all 
        members' claims for--
                    (A) water rights under Federal, State, and other 
                laws (including claims for water rights in groundwater, 
                surface water, and effluent) for Zuni Lands from time 
                immemorial through the effective date described in 
                section 9(a) and any time thereafter; and
                    (B) injuries to water rights under Federal, State, 
                and other laws (including claims for water rights in 
                groundwater, surface water, and effluent, claims for 
                damages for deprivation of water rights, and claims for 
                changes to underground water table levels) for Zuni 
                Lands from time immemorial through the effective date 
                described in section 9(a).
            (2) No recognition or establishment of individual water 
        right.--Nothing in this Act recognizes or establishes any right 
        of a member of the Tribe to water on the Reservation.
    (b) Tribe and United States Authorization and Water Quantity 
Waivers.--The Tribe, on behalf of itself and its members and the 
Secretary on behalf of the United States in its capacity as trustee for 
the Zuni Tribe and its members, are authorized, as part of the 
performance of their obligations under the Settlement Agreement, to 
execute a waiver and release, subject to paragraph 11.4 of the 
Settlement Agreement, for claims against the State of Arizona, or any 
agency or political subdivision thereof, or any other person, entity, 
corporation, or municipal corporation, under Federal, State, or other 
law for any and all--
            (1) past, present, and future claims to water rights 
        (including water rights in groundwater, surface water, and 
        effluent) for Zuni Lands from time immemorial through the 
        effective date described in section 9(a) and any time 
        thereafter, except for claims within the Zuni Protection Area 
        as provided in article 5 of the Settlement Agreement;
            (2) past and present claims for injuries to water rights 
        (including water rights in groundwater, surface water, and 
        effluent and including claims for damages for deprivation of 
        water rights and any claims for changes to underground water 
        table levels) for Zuni Lands from time immemorial through the 
        effective date described in section 9(a); and
            (3) past, present, and future claims for water rights and 
        injuries to water rights (including water rights in 
        groundwater, surface water, and effluent and including any 
        claims for damages for deprivation of water rights and any 
        claims for changes to underground water table levels) from time 
        immemorial through the effective date described in section 
        9(a), and any time thereafter, for lands outside of Zuni Lands 
        but located within the Little Colorado River basin in Arizona, 
        based upon aboriginal occupancy of lands by the Zuni Tribe or 
        its predecessors.
    (c) Tribal Waivers Against the United States.--The Tribe is 
authorized, as part of the performance of its obligations under the 
Settlement Agreement, to execute a waiver and release, subject to 
paragraphs 11.4 and 11.6 of the Settlement Agreement, for claims 
against the United States (acting in its capacity as trustee for the 
Zuni Tribe or its members, or otherwise acting on behalf of the Zuni 
Tribe or its members), including any agencies, officials, or employees 
thereof, for any and all--
            (1) past, present, and future claims to water rights 
        (including water rights in groundwater, surface water, and 
        effluent) for Zuni Lands, from time immemorial through the 
        effective date described in section 9(a) and any time 
        thereafter;
            (2) past and present claims for injuries to water rights 
        (including water rights in groundwater, surface water, and 
        effluent and any claims for damages for deprivation of water 
        rights) for Zuni Lands from time immemorial through the 
        effective date described in section 9(a);
            (3) past, present, and future claims for water rights and 
        injuries to water rights (including water rights in 
        groundwater, surface water, and effluent and any claims for 
        damages for deprivation of water rights) from time immemorial 
        through the effective date described in section 9(a), and any 
        time thereafter, for lands outside of Zuni Lands but located 
        within the Little Colorado River basin in Arizona, based upon 
        aboriginal occupancy of lands by the Zuni Tribe or its 
        predecessors;
            (4) past and present claims for failure to protect, 
        acquire, or develop water rights of, or failure to protect 
        water quality for, the Zuni Tribe within the Little Colorado 
        River basin in Arizona from time immemorial through the 
        effective date described in section 9(a); and
            (5) claims for breach of the trust responsibility of the 
        United States to the Zuni Tribe arising out of the negotiation 
        of the Settlement Agreement or this Act.
    (d) Tribal Waiver of Water Quality Claims and Interference With 
Trust Claims.--
            (1) Claims against the state and others.--
                    (A) Interference with trust responsibility.--The 
                Tribe, on behalf of itself and its members, is 
                authorized, as part of the performance of its 
                obligations under the Settlement Agreement, to waive 
                and release all claims against the State of Arizona, or 
                any agency or political subdivision thereof, or any 
                other person, entity, corporation, or municipal 
                corporation under Federal, State, or other law, for 
                claims of interference with the trust responsibility of 
                the United States to the Zuni Tribe arising out of the 
                negotiation of the Settlement Agreement or this Act.
                    (B) Injury or threat of injury to water quality.--
                The Tribe, on behalf of itself and its members, is 
                authorized, as part of the performance of its 
                obligations under the Settlement Agreement, to waive 
                and release, subject to paragraphs 11.4, 11.6, and 11.7 
                of the Settlement Agreement, all claims against the 
                State of Arizona, or any agency or political 
                subdivision thereof, or any other person, entity, 
                corporation, or municipal corporation under Federal, 
                State, or other law, for--
                            (i) any and all past and present claims, 
                        including natural resource damage claims under 
                        the Comprehensive Environmental Response, 
                        Compensation, and Liability Act of 1980 (42 
                        U.S.C. 9601 et seq.), the Oil Pollution Act of 
                        1990 (33 U.S.C. 2701 et seq.), or any other 
                        applicable statute, for injury to water quality 
                        accruing from time immemorial through the 
                        effective date described in section 9(a), for 
                        lands within the Little Colorado River basin in 
                        the State of Arizona; and
                            (ii) any and all future claims, including 
                        natural resource damage claims under the 
                        Comprehensive Environmental Response, 
                        Compensation, and Liability Act of 1980 (42 
                        U.S.C. 9601 et seq.), the Oil Pollution Act of 
                        1990 (33 U.S.C. 2701 et seq.), or any other 
                        applicable statute, for injury or threat of 
                        injury to water quality, accruing after the 
                        effective date described in section 9(a), for 
                        any lands within the Eastern LCR basin caused 
                        by--
                                    (I) the lawful diversion or use of 
                                surface water;
                                    (II) the lawful withdrawal or use 
                                of underground water, except within the 
                                Zuni Protection Area, as provided in 
                                article 5 of the Settlement Agreement;
                                    (III) the Parties' performance of 
                                any obligations under the Settlement 
                                Agreement;
                                    (IV) the discharge of oil 
                                associated with routine physical or 
                                mechanical maintenance of wells or 
                                diversion structures not inconsistent 
                                with applicable law;
                                    (V) the discharge of oil associated 
                                with routine start-up and operation of 
                                well pumps not inconsistent with 
                                applicable law; or
                                    (VI) any combination of the causes 
                                described in subclauses (I) through 
                                (V).
            (2) Claims of the united states.--The Tribe, on behalf of 
        itself and its members, is authorized to waive its right to 
        request that the United States bring--
                    (A) any claims for injuries to water quality under 
                the natural resource damage provisions of the 
                Comprehensive Environmental Response, Compensation, and 
                Liability Act of 1980 (42 U.S.C. 9601 et seq.), the Oil 
                Pollution Act of 1990 (33 U.S.C. 2701 et seq.) or any 
                other applicable statute, for lands within the Little 
                Colorado River Basin in the State of Arizona, accruing 
                from time immemorial through the effective date 
                described in section 9(a); and
                    (B) any future claims for injuries or threat of 
                injury to water quality under the natural resource 
                damage provisions of the Comprehensive Environmental 
                Response, Compensation, and Liability Act of 1980 (42 
                U.S.C. 9601 et seq.), the Oil Pollution Act of 1990 (33 
                U.S.C. 2701 et seq.), or any other applicable statute, 
                accruing after the effective date described in section 
                9(a), for any lands within the Eastern LCR basin, 
                caused by--
                            (i) the lawful diversion or use of surface 
                        water;
                            (ii) the lawful withdrawal or use of 
                        underground water, except within the Zuni 
                        Protection Area, as provided in article 5 of 
                        the Settlement Agreement;
                            (iii) the Parties' performance of any 
                        obligations under the Settlement Agreement;
                            (iv) the discharge of oil associated with 
                        routine physical or mechanical maintenance of 
                        wells or diversion structures not inconsistent 
                        with applicable law;
                            (v) the discharge of oil associated with 
                        routine start-up and operation of well pumps 
                        not inconsistent with applicable law; or
                            (vi) any combination of the causes 
                        described in clauses (i) through (v).
            (3) Limitations.--Notwithstanding the authorization for the 
        Tribe's waiver of future water quality claims in paragraph 
        (1)(B)(ii) and the waiver in paragraph (2)(B), the Tribe, on 
        behalf of itself and its members, retains any statutory claims 
        for injury or threat of injury to water quality under the 
        Comprehensive Environmental Response, Compensation, and 
        Liability Act of 1980 (42 U.S.C. 9601 et seq.) and the Oil 
        Pollution Act of 1990 (33 U.S.C. 2701 et seq.), as described in 
        subparagraph 11.4(D)(3) and (4) of the Settlement Agreement, 
        that accrue at least 30 years after the effective date 
        described in section 9(a).
    (e) Waiver of United States Water Quality Claims Related to 
Settlement Land and Water.--
            (1) Past and present claims.--As part of the performance of 
        its obligations under the Settlement Agreement, the United 
        States waives and releases, subject to the retentions in 
        paragraphs 11.4, 11.6 and 11.7 of the Settlement Agreement, all 
        claims against the State of Arizona, or any agency or political 
        subdivision thereof, or any other person, entity, corporation, 
        or municipal corporation for--
                    (A) all past and present common law claims accruing 
                from time immemorial through the effective date 
                described in section 9(a) arising from or relating to 
                water quality in which the injury asserted is to the 
                Tribe's interest in water, trust land, and natural 
                resources in the Little Colorado River basin in the 
                State of Arizona; and
                    (B) all past and present natural resource damage 
                claims accruing through the effective date described in 
                section 9(a) arising from or relating to water quality 
                in which the claim is based on injury to natural 
                resources or threat to natural resources in the Little 
                Colorado River basin in Arizona, only for those cases 
                in which the United States, through the Secretary or 
                other designated Federal official, would act on behalf 
                of the Tribe as a natural resource trustee pursuant to 
                the National Contingency Plan, as set forth, as of the 
                date of enactment of this Act, in section 300.600(b)(2) 
                of title 40, Code of Federal Regulations.
            (2) Future claims.--As part of the performance of its 
        obligations under the Settlement Agreement, the United States 
        waives and releases, subject to the retentions in paragraphs 
        11.4, 11.6 and 11.7 of the Settlement Agreement, the State of 
        Arizona, or any agency or political subdivision thereof, or any 
        other person, entity, corporation, or municipal corporation 
        for--
                    (A) all future common law claims arising from or 
                relating to water quality in which the injury or threat 
                of injury asserted is to the Tribe's interest in water, 
                trust land, and natural resources in the Eastern LCR 
                basin in Arizona accruing after the effective date 
                described in section 9(a) caused by--
                            (i) the lawful diversion or use of surface 
                        water;
                            (ii) the lawful withdrawal or use of 
                        underground water, except within the Zuni 
                        Protection Area, as provided in article 5 of 
                        the Settlement Agreement;
                            (iii) the Parties' performance of any 
                        obligations under the Settlement Agreement;
                            (iv) the discharge of oil associated with 
                        routine physical or mechanical maintenance of 
                        wells or diversion structures not inconsistent 
                        with applicable law;
                            (v) the discharge of oil associated with 
                        routine start-up and operation of well pumps 
                        not inconsistent with applicable law; or
                            (vi) any combination of the causes 
                        described in clauses (i) through (v); and
                    (B) all future natural resource damage claims 
                accruing after the effective date described in section 
                9(a) arising from or relating to water quality in which 
                the claim is based on injury to natural resources or 
                threat to natural resources in the Eastern LCR basin in 
                Arizona, only for those cases in which the United 
                States, through the Secretary or other designated 
                Federal official, would act on behalf of the Tribe as a 
                natural resource trustee pursuant to the National 
                Contingency Plan, as set forth, as of the date of 
                enactment of this Act, in section 300.600(b)(2) of 
                title 40, Code of Federal Regulations, caused by--
                            (i) the lawful diversion or use of surface 
                        water;
                            (ii) the lawful withdrawal or use of 
                        underground water, except within the Zuni 
                        Protection Area as provided in article 5 of the 
                        Settlement Agreement;
                            (iii) the Parties' performance of their 
                        obligations under this Settlement Agreement;
                            (iv) the discharge of oil associated with 
                        routine physical or mechanical maintenance of 
                        wells or diversion structures not inconsistent 
                        with applicable law;
                            (v) the discharge of oil associated with 
                        routine start-up and operation of well pumps 
                        not inconsistent with applicable law; or
                            (vi) any combination of the causes 
                        described in clauses (i) through (v).
    (f) Effect.--Subject to subsections (b) and (e), nothing in this 
Act or the Settlement Agreement affects any right of the United States, 
or the State of Arizona, to take any actions, including enforcement 
actions, under any laws (including regulations) relating to human 
health, safety and the environment.

SEC. 8. MISCELLANEOUS PROVISIONS.

    (a) Waiver of Sovereign Immunity.--If any party to the Settlement 
Agreement or a Pumping Protection Agreement files a lawsuit only 
relating directly to the interpretation or enforcement of this Act, the 
Settlement Agreement, an agreement described in paragraph (1), (2), or 
(3) of section 4(c), or a Pumping Protection Agreement, naming the 
United States or the Tribe as a party, or if any other landowner or 
water user in the Little Colorado River basin in Arizona files a 
lawsuit only relating directly to the interpretation or enforcement of 
Article 11, the rights of de minimis users in subparagraph 4.2.D or the 
rights of underground water users under Article 5 of the Settlement 
Agreement, naming the United States or the Tribe as a party--
            (1) the United States, the Tribe, or both may be added as a 
        party to any such litigation, and any claim by the United 
        States or the Tribe to sovereign immunity from such suit is 
        hereby waived, other than with respect to claims for monetary 
        awards except as specifically provided for in the Settlement 
        Agreement; and
            (2) the Tribe may waive its sovereign immunity from suit in 
        the Superior Court of Apache County, Arizona for the limited 
        purposes of enforcing the terms of the Intergovernmental 
        Agreement, and any intergovernmental agreement required to be 
        entered into by the Tribe under the terms of the 
        Intergovernmental Agreement, other than with respect to claims 
        for monetary awards except as specifically provided in the 
        Intergovernmental Agreement.
    (b) Tribal Use of Water.--
            (1) In general.--With respect to water rights made 
        available under the Settlement Agreement and used on the Zuni 
        Heaven Reservation--
                    (A) such water rights shall be held in trust by the 
                United States in perpetuity, and shall not be subject 
                to forfeiture or abandonment;
                    (B) State law shall not apply to water uses on the 
                Reservation;
                    (C) the State of Arizona may not regulate or tax 
                such water rights or uses (except that the court with 
                jurisdiction over the decree entered pursuant to the 
                Settlement Agreement or the Norviel Decree Court may 
                assess administrative fees for delivery of this water);
                    (D) subject to paragraph 7.7 of the Settlement 
                Agreement, the Zuni Tribe shall use water made 
                available to the Zuni Tribe under the Settlement 
                Agreement on the Zuni Heaven Reservation for any use it 
                deems advisable;
                    (E) water use by the Zuni Tribe or the United 
                States on behalf of the Zuni Tribe for wildlife or 
                instream flow use, or for irrigation to establish or 
                maintain wetland on the Reservation, shall be 
                considered to be consistent with the purposes of the 
                Reservation; and
                    (F)(i) not later than 3 years after the deadline 
                described in section 9(b), the Zuni Tribe shall adopt a 
                water code to be approved by the Secretary for 
                regulation of water use on the lands identified in 
                subsections (a) and (b) of section 5 that is reasonably 
                equivalent to State water law (including statutes 
                relating to dam safety and groundwater management); and
                    (ii) until such date as the Zuni Tribe adopts a 
                water code described in clause (i), the Secretary, in 
                consultation with the State of Arizona, shall 
                administer water use and water regulation on lands 
                described in that clause in a manner that is reasonably 
                equivalent to State law (including statutes relating to 
                dam safety and groundwater management).
            (2) Limitation.--
                    (A) In general.--Except as provided in subparagraph 
                (B), the Zuni Tribe or the United States shall not 
                sell, lease, transfer, or transport water made 
                available for use on the Zuni Heaven Reservation to any 
                other place.
                    (B) Exception.--Water made available to the Zuni 
                Tribe or the United States for use on the Zuni Heaven 
                Reservation may be severed and transferred from the 
                Reservation to other Zuni Lands if the severance and 
                transfer is accomplished in accordance with State law 
                (and once transferred to any lands held in fee, such 
                water shall be subject to State law).
    (c) Rights-of-Way.--
            (1) New and future trust land.--The land taken into trust 
        under subsections (a) and (b) of section 5 shall be subject to 
        existing easements and rights-of-way.
            (2) Additional rights-of-way.--
                    (A) In general.--Notwithstanding any other 
                provision of law, the Secretary, in consultation with 
                the Tribe, shall grant additional rights-of-way or 
                expansions of existing rights-of-way for roads, 
                utilities, and other accommodations to adjoining 
                landowners if--
                            (i) the proposed right-of-way is necessary 
                        to the needs of the applicant;
                            (ii) the proposed right-of-way will not 
                        cause significant and substantial harm to the 
                        Tribe's wetland restoration project or 
                        religious practices; and
                            (iii) the proposed right-of-way acquisition 
                        will comply with the procedures in part 169 of 
                        title 25, Code of Federal Regulations, not 
                        inconsistent with this subsection and other 
                        generally applicable Federal laws unrelated to 
                        the acquisition of interests across trust 
                        lands.
                    (B) Alternatives.--If the criteria described in 
                clauses (i) through (iii) of subparagraph (A) are not 
                met, the Secretary may propose an alternative right-of-
                way, or other accommodation that complies with the 
                criteria.
    (d) Certain Claims Prohibited.--The United States shall make no 
claims for reimbursement of costs arising out of the implementation of 
this Act or the Settlement Agreement against any Indian-owned land 
within the Tribe's Reservation, and no assessment shall be made in 
regard to such costs against such lands.
    (e) Vested Rights.--Except as described in paragraph 5.3 of the 
Settlement Agreement (recognizing the Zuni Tribe's use of 1,500 acre-
feet per annum of groundwater) this Act and the Settlement Agreement do 
not create any vested right to groundwater under Federal or State law, 
or any priority to the use of groundwater that would be superior to any 
other right or use of groundwater under Federal or State law, whether 
through this Act, the Settlement Agreement, or by incorporation of any 
abstract, agreement, or stipulation prepared under the Settlement 
Agreement. Notwithstanding the preceding sentence, the rights of 
parties to the agreements referred to in paragraph (1), (2), or (3) of 
section 4(c) and paragraph 5.8 of the Settlement Agreement, as among 
themselves, shall be as stated in those agreements.
    (f) Other Claims.--Nothing in the Settlement Agreement or this Act 
quantifies or otherwise affects the water rights, claims, or 
entitlements to water of any Indian tribe, band, or community, other 
than the Zuni Indian Tribe.
    (g) No Major Federal Action.--
            (1) In general.--Execution of the Settlement Agreement by 
        the Secretary as provided for in section 4(a) shall not 
        constitute major Federal action under the National 
        Environmental Policy Act (42 U.S.C. 4321 et seq.).
            (2) Settlement agreement.--In implementing the Settlement 
        Agreement, the Secretary shall comply with all aspects of--
                    (A) the National Environmental Policy Act of 1969 
                (42 U.S.C. 4321 et seq.);
                    (B) the Endangered Species Act of 1973 (16 U.S.C. 
                1531 et seq.); and
                    (C) all other applicable environmental laws 
                (including regulations).

SEC. 9. EFFECTIVE DATE FOR WAIVER AND RELEASE AUTHORIZATIONS.

    (a) In General.--The waiver and release authorizations contained in 
subsections (b) and (c) of section 7 shall become effective as of the 
date the Secretary causes to be published in the Federal Register a 
statement of all the following findings:
            (1) This Act has been enacted in a form approved by the 
        parties in paragraph 3.1.A of the Settlement Agreement.
            (2) The funds authorized by section 4(b) have been 
        appropriated and deposited into the Fund.
            (3) The State of Arizona has appropriated and deposited 
        into the Fund the amount required by paragraph 7.6 of the 
        Settlement Agreement.
            (4) The Zuni Indian Tribe has either purchased or acquired 
        the right to purchase at least 2,350 acre-feet per annum of 
        surface water rights, or waived this condition as provided in 
        paragraph 3.2 of the Settlement Agreement.
            (5) Pursuant to subparagraph 3.1.D of the Settlement 
        Agreement, the severance and transfer of surface water rights 
        that the Tribe owns or has the right to purchase have been 
        conditionally approved, or the Tribe has waived this condition 
        as provided in paragraph 3.2 of the Settlement Agreement.
            (6) Pursuant to subparagraph 3.1.E of the Settlement 
        Agreement, the Tribe and Lyman Water Company have executed an 
        agreement relating to the process of the severance and transfer 
        of surface water rights acquired by the Zuni Tribe or the 
        United States, the pass-through, use, or storage of the Tribe's 
        surface water rights in Lyman Lake, and the operation of Lyman 
        Dam.
            (7) Pursuant to subparagraph 3.1.F of the Settlement 
        Agreement, all the parties to the Settlement Agreement have 
        agreed and stipulated to certain Arizona Game and Fish 
        abstracts of water uses.
            (8) Pursuant to subparagraph 3.1.G of the Settlement 
        Agreement, all parties to the Settlement Agreement have agreed 
        to the location of an observation well and that well has been 
        installed.
            (9) Pursuant to subparagraph 3.1.H of the Settlement 
        Agreement, the Zuni Tribe, Apache County, Arizona and the State 
        of Arizona have executed an Intergovernmental Agreement that 
        satisfies all of the conditions in paragraph 6.2 of the 
        Settlement Agreement.
            (10) The Zuni Tribe has acquired title to the section of 
        land adjacent to the Zuni Heaven Reservation described as 
        Section 34, Township 14 North, Range 26 East, Gila and Salt 
        River Base and Meridian.
            (11) The Settlement Agreement has been modified if and to 
        the extent it is in conflict with this Act and such 
        modification has been agreed to by all the parties to the 
        Settlement Agreement.
            (12) A court of competent jurisdiction has approved the 
        Settlement Agreement by a final judgment and decree.
    (b) Deadline for Effective Date.--If the publication in the Federal 
Register required under subsection (a) has not occurred by December 31, 
2006, sections 4 and 5, and any agreements entered into pursuant to 
sections 4 and 5 (including the Settlement Agreement and the 
Intergovernmental Agreement) shall not thereafter be effective and 
shall be null and void. Any funds and the interest accrued thereon 
appropriated pursuant to section 4(b)(2) shall revert to the Treasury, 
and any funds and the interest accrued thereon appropriated pursuant to 
paragraph 7.6 of the Settlement Agreement shall revert to the State of 
Arizona.

            Passed the Senate March 13, 2003.

            Attest:

                                                             Secretary.
108th CONGRESS

  1st Session

                                 S. 222

_______________________________________________________________________

                                 AN ACT

To approve the settlement of the water rights claims of the Zuni Indian 
        Tribe in Apache County, Arizona, and for other purposes.
```