I

105TH CONGRESS

2D SESSION H. R. 4746

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

and for the construction of certain water projects.

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 8, 1998

Mr. HANSEN introduced the following bill; which was referred to the

Committee on Resources

A BILL

To provide for the settlement of the reserved water rights

of the Shivwits and for the construction of certain water

projects.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Shivwits Paiute Indian

5 Band Settlement Act’’.

6 SEC. 2. FINDINGS.

7 Congress finds the following:

8 (1) The Santa Clara River, a tributary of the

9 Virgin River, flows through the reservation of the

10 Shivwits Paiute Indian Band.
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1 (2) The Santa Clara River is subject to erratic

2 flows and in most years does not supply sufficient

3 water to satisfy all existing water rights. The annual

4 flow of the Santa Clara River is characterized by ei5 ther low flows or extremely high flood flows, with

6 very few average water years.

7 (3) The Virgin River system is the subject of a

8 Statutory Adjudication of Water Rights pending in

9 the Fifth Judicial Court in and for Washington

10 County, Utah (Civil No. 800507596).

11 (4) The United States has been joined as a

12 party in the Statutory Adjudication of Water Rights

13 and has filed a water users claim asserting a re14 served water right claim on behalf of the Shivwits.

15 (5) It is the official policy of the United States,

16 in fulfillment of its trust responsibility to Indian

17 tribes, to promote Indian self-determination and eco18 nomic self-sufficiency, and to settle the water rights

19 claims of Indian tribes to avoid lengthy and costly

20 litigation.

21 (6) Any meaningful policy of Indian self-deter22 mination and economic self-sufficiency requires the

23 development of viable Indian reservation economies.

24 (7) The quantification of water rights and the

25 development of water use and storage facilities is es-
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1 sential to the development of viable Indian reserva2 tion economies, particularly in arid western States.

3 (8) Recognizing that final resolution of pending

4 Statutory Adjudication litigation will take many

5 years and entail great expense to all parties, as well

6 as prolong uncertainty as to the availability of water

7 supplies and impair the long-term economic planning

8 and development of all parties, the Shivwits, the

9 State of Utah and local water users have sought to

10 settle disputes over water and reduce the burdens of

11 litigation.

12 (9) After more than 5 years of negotiation

13 (which included participation by representatives of

14 the United States Government), the Shivwits, the

15 Washington County Water Conservancy District, the

16 State of Utah, the City of St. George, the Towns of

17 Ivins and Santa Clara and local water user compa18 nies have entered into a Memorandum of Under19 standing executed by the Shivwits Band on March

20 26, 1998, to resolve all water rights claims between

21 and among themselves, to quantify the Shivwits’ en22 titlement to water, and to provide for the construc23 tion of water projects to facilitate the settlement of

24 all claims.
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1 (10) Pursuant to the Memorandum of Under2 standing, the Shivwits Band will receive a total of

3 4,000 acre-feet of water from a combination of the

4 Santa Clara drainage and the Virgin River drainage

5 which will be provided through the construction of

6 the Santa Clara Project and the St. George Water

7 Reuse Project (which are identified in the Memoran8 dum of Understanding).

9 (11) To advance the goals of Federal Indian

10 policy and to fulfill the trust responsibility of the

11 United States to the Shivwits Band, it is appro12 priate that the United States participate in the im13 plementation of the Settlement Agreement and con14 tribute funds for the construction of such project fa15 cilities.

16 SEC. 3. DEFINITIONS.

17 In this Act:

18 (1) The term ‘‘Secretary’’ means the Secretary

19 of the Interior.

20 (2) The term ‘‘Utah’’ means the State of Utah.

21 (3) The term ‘‘Shivwits’’ means the Shivwits

22 Paiute Indian Band, a constituent band of the Pai23 ute Indian Tribe of Utah, a federally recognized

24 American Indian Tribe.
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1 (4) The term ‘‘District’’ means the Washington

2 County Water Conservancy District.

3 (5) The term ‘‘St. George’’ means St. George

4 City.

5 (6) The term ‘‘Statutory Adjudication’’ means

6 the statutory adjudication of water rights pending in

7 Washington County, Civil No. 800507596.

8 (7) The term ‘‘MOU’’ means the Memorandum

9 of Understanding executed by the Shivwits on March

10 26, 1998, to implement construction, operation, and

11 maintenance of the St. George Water Reuse Project

12 and the Santa Clara Project.

13 (8) The term ‘‘St. George Water Reuse

14 Project’’ means the St. George Water Reuse Project

15 described in paragraph (2) of the MOU.

16 (9) The term ‘‘Santa Clara Project’’ means the

17 Santa Clara Project as described in paragraph (1)

18 of the MOU.

19 SEC. 4. PURPOSES.

20 The purposes of this Act are to—

21 (1) approve, ratify, and incorporate by ref22 erence the Memorandum of Understanding between

23 the Parties, and implement the construction of the

24 St. George Water Reuse Project and the Santa

25 Clara Project as provided for herein; and
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1 (2) authorize the actions and appropriations

2 necessary for the United States to fulfill its obliga3 tions under this Act.

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

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

6 George Water Reuse Project shall consist of water treat7 ment facilities, a pipeline and associated pumping and de8 livery facilities which will divert water from the Waste9 water Treatment Plant located near St. George, Utah and

10 transport this water for delivery and use in the Santa

11 Clara River Basin by St. George and the Shivwits. The

12 St. George Water Reuse Project shall be sized to deliver

13 2,000 acre-feet annually for use by the Shivwits, which

14 will be in addition to the water delivered to St. George

15 for its use. The Shivwits water shall be delivered by St.

16 George through the St. George Water Reuse Project facili17 ties to the eastern boundary of the Shivwits Reservation.

18 (b) PROJECT CONSTRUCTION OPERATION AND MAIN19 TENANCE.—St. George shall be responsible for the engi20 neering, construction, operation, and maintenance of the

21 St. George Water Reuse Project.

22 (c) PAYMENT OF PROJECT COSTS.—St. George and

23 the Shivwits shall each be responsible for their propor24 tionate share of the construction, operation, and mainte25 nance costs of the St. George Water Reuse Project based
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1 on the respective quantity of water delivered to St. George

2 and the Shivwits.

3 (1) SHARE.—St. George shall fund its propor4 tionate share of the construction, operation, and

5 maintenance of the St. George Water Reuse Project.

6 (2) SHIVWITS ASSISTANCE FOR PROJECT.—In

7 furtherance of the settlement of the reserved water

8 right claims of the Shivwits, the Secretary shall

9 make a grant in an amount equal to $15,000,000 to

10 St. George to cover the Shivwits’ portion of the con11 struction, operation, and maintenance costs of the

12 St. George Water Reuse Project, on the condition

13 that—

14 (A) the appropriate officials of St. George

15 provide assurances to the Secretary that St.

16 George will carry out the St. George Water

17 Reuse Project and provide the Shivwits with

18 2,000 acre-feet of water annually in a manner

19 consistent with the MOU;

20 (B) parties involved in the Santa Clara

21 Project agree that the Santa Clara Project will

22 be carried out and will provide the Shivwits up

23 to an additional 1,900 acre-feet annually in a

24 manner consistent with the MOU; and
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1 (C) the parties involved in the St. George

2 Water Reuse Project and the Santa Clara

3 Project recognize an additional 100 acre-feet

4 annually of groundwater for the Shivwits, as

5 provided for in section 7(c) of this Act.

6 (3) AUTHORIZATION OF APPROPRIATIONS.—

7 There are authorized to be appropriated to the De8 partment of the Interior to provide for the grant

9 under paragraph (2), $15,000,000.

10 (d) ST. GEORGE WATER REUSE PROJECT AGREE11 MENT.—The parties, including the Secretary shall imple12 ment the MOU and the construction of the St. George

13 Water Reuse Project by the execution of a St. George

14 Water Reuse Project Agreement consistent with the provi15 sions of this Act.

16 SEC. 6. SANTA CLARA PROJECT.

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

18 Project shall consist of a pressurized irrigation pipeline

19 from the existing Gunlock Reservoir to the lower part of

20 the Santa Clara River, along with main lateral pipelines.

21 The Santa Clara Project will result in the pooling of the

22 water rights of the Parties to the MOU, including the

23 Shivwits. The water users shall receive their irrigation

24 water from the Santa Clara Project based on a set delivery

25 schedule. The water supply from the Santa Clara River
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1 for irrigation purposes shall be supplemented by ground2 water provided by St. George and other water users and

3 from the modified operation of the Gunlock Reservoir. It

4 is projected that in an average or above average year, the

5 Shivwits will receive 1,900 acre-feet of water from the

6 Santa Clara Project. In a below average year, all users,

7 including the Shivwits, shall have a proportionate reduc8 tion in the quantity of water delivered.

9 (b) PROJECT FUNDING.—The Utah Legislature and

10 Congress have each appropriated $750,000 toward the

11 construction of the Santa Clara Project. The District shall

12 provide a grant of $750,000 for the construction of the

13 Santa Clara Project. The District shall also provide fund14 ing for the project in excess of the grants. All beneficiaries

15 of the Santa Clara Project, except the Shivwits, shall pay

16 the District their pro rata share of costs advanced by the

17 District for the construction of the Project in excess of

18 the Federal, State, and District grants.

19 (c) PROJECT CONSTRUCTION, OPERATION, AND

20 MAINTENANCE.—The District shall be responsible for the

21 engineering, construction, operation, and maintenance of

22 the Santa Clara Project. An advisory committee, including

23 all of the parties to the MOU, will assist the District in

24 developing the final plan and budget for the Santa Clara

25 Project, and advise the District on related construction,
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1 operation, and maintenance matters. All project bene2 ficiaries, including the Shivwits, shall pay their pro rata

3 share of operation and maintenance costs.

4 (d) SANTA CLARA PROJECT AGREEMENT.—The par5 ties, including the Secretary, will implement the MOU and

6 the construction of the Santa Clara Project by the execu7 tion of a Santa Clara Project Agreement consistent with

8 the provisions of this Act.

9 SEC. 7. SHIVWITS WATER RIGHTS.

10 Subject to the provisions of this Act and the imple11 mentation of the MOU through the execution of a St.

12 George Water Reuse Project Agreement and a Santa

13 Clara Project Agreement and the construction of these 2

14 projects, the Shivwits’ claim to water is hereby settled as

15 follows:

16 (1) The Shivwits will receive a total of 1,900

17 acre-feet annually from the Santa Clara River in an

18 average and above average year, and will have a pro19 portionate reduction with other Santa Clara Project

20 water users in a below average year. The 1,900 acre21 feet provided for herein shall include the 500.60

22 acre-feet of water under Water Right Nos. 81–2313

23 and 81–2425 specified in the Proposed Determina24 tion of Water Rights for the Santa Clara River-Bea25 ver Dam Wash Division, Book No. 1 at Pages 199–
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1 200. The priority of the 1,900 acre-feet water right

2 provided for herein for the Shivwits shall be the

3 same priority as the other primary water users from

4 the Santa Clara River.

5 (2) The Shivwits will receive 2,000 acre-feet of

6 water annually from the St. George Water Reuse

7 Project. St. George and the Shivwits shall have an

8 equal priority to the water provided from the St.

9 George Water Reuse Project.

10 (3) The Shivwits will also have the right to the

11 groundwater produced from existing wells located on

12 the reservation for 100 acre-feet of water annually.

13 The priority of the Shivwits groundwater right shall

14 be 1916.

15 (4) The Shivwits water right, specified in para16 graphs (1), (2), and (3) above, includes all water

17 rights of every nature and description derived from

18 the reserved water right doctrine and State water

19 rights from all sources, both surface and under20 ground, and includes all types and kinds of uses

21 whatsoever and encompasses all claims asserted by

22 and through the Shivwits and all persons and enti23 ties whose claims or rights are derived from the

24 Shivwits. The Shivwits’ water rights provided for

25 herein shall be deemed to have the characteristics of
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1 Federal reserved water rights and shall not be sub2 ject to loss by abandonment or forfeiture for nonuse.

3 (5) The Shivwits may use the Shivwits Water

4 Right for either or both of the following:

5 (A) For any purpose anywhere on the

6 Shivwits Reservation.

7 (B) Off the Shivwits Reservation within

8 the Virgin River Drainage Basin in Washington

9 County, Utah. The Shivwits or the United

10 States on behalf of the Shivwits shall comply

11 with the provisions of section 73–3–3, Utah

12 Code Annotated with regard to any change in

13 point of diversion, place, or nature of use off

14 the Shivwits Reservation. Any off reservation

15 use of the Shivwits Water Right shall also be

16 in accordance with applicable Federal law.

17 SEC. 8. INTERLOCUTORY DECREE.

18 Following the construction of the St. George Water

19 Reuse Project and the Santa Clara Project, the parties,

20 including the Secretary, shall cooperate in obtaining an

21 interlocutory decree in the Statutory Adjudication con22 firming the Shivwits’ water right as provided for in section

23 7.
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1 SEC. 9. ADDITIONAL PROJECTS.

2 (a) BEAVER DAM WASH PROJECT.—The Shivwits

3 shall have the right to participate with the District in the

4 development and construction of the Beaver Dam Wash

5 Project. The Shivwits will have the right to receive up to

6 1,000 acre-feet of water annually from the Beaver Dam

7 Wash Project subject to the payment of their propor8 tionate share of construction, operation, maintenance, and

9 repair costs.

10 (b) OTHER PROJECTS AND PURCHASES.—Nothing in

11 this Act shall be interpreted or construed to prevent the

12 Shivwits from participating in other water development

13 projects, including the Lake Powell Pipeline Project, or

14 from purchasing additional water rights for their benefit

15 and use.

16 SEC. 10. ESTABLISHMENT OF TRUST FUND.

17 (a) ESTABLISHMENT OF TRUST FUND.—There is

18 hereby established in the Treasury a fund to be known

19 as the Shivwits Band Resources Development Trust Fund

20 (in this section referred to as the ‘‘Fund’’).

21 (b) AUTHORIZATION OF APPROPRIATIONS.—There

22 are authorized to be appropriated—

23 (1) $5,000,000 for deposit, in accordance with

24 the following schedule, in the Fund, to be expended

25 by the Band for any water resource development
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1 costs, including costs associated with this settle2 ment—

3 (A) $2,000,000 shall be deposited in the

4 first fiscal year which commences following the

5 date of the enactment of this Act;

6 (B) $2,000,000 during the fiscal year next

7 following the first fiscal year referred to in sub8 paragraph (A); and

9 (C) $1,000,000 during the fiscal year next

10 following the second fiscal year referred to in

11 subparagraph (B); and

12 (2) such amounts as are necessary, for expendi13 tures by the Secretary, to pay the Band’s share of

14 the construction, operation, maintenance, and re15 placement costs for the Gunlock Pipeline Project

16 and the St. George Reuse Project.

17 (c) NO PER CAPITA PAYMENTS.—No part of the

18 principal of the fund, or of the income accruing to such

19 fund, or the revenue from any water use subcontract, shall

20 be distributed to any member of the Band on a per capita

21 basis.

22 SEC. 11. ENVIRONMENTAL COMPLIANCE.

23 (a) NATIONAL ENVIRONMENTAL POLICY ACT.—Exe24 cution of the St. George Water Reuse Agreement and the

25 construction of the St. George Water Reuse Project shall
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1 not constitute a major Federal action under the National

2 Environmental Policy Act of 1969 (42 U.S.C. 4321 et

3 seq.) by reason of the participation of the Shivwits or the

4 Secretary in the St. George Water Reuse Project. The Sec5 retary shall comply with all other aspects of the National

6 Environmental Policy Act of 1969, the Endangered Spe7 cies Act, and other applicable environmental laws and reg8 ulations in fulfilling the terms of the Santa Clara Project

9 and the St. George Water Reuse Project Agreements.

10 (b) ENVIRONMENTAL COMPLIANCE.—There is hereby

11 authorized to be appropriated such sums as may be nec12 essary to carry out all necessary environmental compliance

13 associated with this settlement, including mitigation meas14 ures adopted by the Secretary. The Secretary shall pay

15 any additional environmental compliance costs associated

16 with the St. George Water Reuse Project and the Santa

17 Clara Project by reason of the Shivwits’ involvement in

18 these 2 projects.

19 (c) BUREAU OF LAND MANAGEMENT.—With respect

20 to this settlement, the Bureau of Land Management shall

21 be designated as the lead agency in regard to environ22 mental compliance, and shall coordinate and cooperate

23 with the other affected Federal agencies as required under

24 applicable environmental laws.
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1 SEC. 12. MISCELLANEOUS PROVISIONS.

2 Nothing in the Settlement Agreement or this Act

3 shall be construed in any way to quantify or otherwise ad4 versely affect the land and water rights, claims, or entitle5 ments to water of any Indian tribe, pueblo, or community,

6 other than the Shivwits Band.

Æ