II 

Calendar No. 777

108TH CONGRESS 

2D SESSION S. 2605

[Report No. 108–389] 

To direct the Secretary of the Interior and the heads of other Federal 

agencies to carry out an agreement resolving major issues relating to 

the adjudication of water rights in the Snake River Basin, Idaho, and 

for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 24, 2004

Mr. CRAIG (for himself and Mr. CRAPO) introduced the following bill; which 

was read twice and referred to the Committee on Indian Affairs 

OCTOBER 7, 2004

Reported by Mr. CAMPBELL, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL

To direct the Secretary of the Interior and the heads of 

other Federal agencies to carry out an agreement resolving major issues relating to the adjudication of water 

rights in the Snake River Basin, Idaho, and for other 

purposes.

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

2 This Act may be cited as the ‘‘Snake River Water 

3 Rights Act of 2004’’. 

4 SEC. 2. PURPOSES. 

5 The purposes of this Act are— 

6 (1) to resolve some of the largest outstanding 

7 issues with respect to the Snake River Basin Adju8 dication in Idaho in such a manner as to provide im9 portant benefits to the United States, the State of 

10 Idaho, the Nez Perce Tribe, the allottees, and citi11 zens of the State; 

12 (2) to achieve a fair, equitable, and final settle13 ment of all claims of the Nez Perce Tribe, its mem14 bers, and allottees and the United States on behalf 

15 of the Tribe, its members, and allottees to the water 

16 of the Snake River Basin within Idaho; 

17 (3) to authorize, ratify, and confirm the Agree18 ment among the parties submitted to the Snake 

19 River Basin Adjudication Court and provide all par20 ties with the benefits of the Agreement; 

21 (4) to direct— 

22 (A) the Secretary, acting through the Bu23 reau of Reclamation, the Bureau of Land Man24 agement, the Bureau of Indian Affairs, and 

25 other agencies; and 
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1 (B) the heads of other Federal agencies 

2 authorized to execute and perform actions nec3 essary to carry out the Agreement; 

4 to perform all of their obligations under the Agree5 ment and this Act; and 

6 (5) to authorize the actions and appropriations 

7 necessary for the United States to meet the obliga8 tions of the United States under the Agreement and 

9 this Act. 

10 SEC. 3. DEFINITIONS. 

11 In this Act: 

12 (1) AGREEMENT.—The term ‘‘Agreement’’ 

13 means the document titled ‘‘Mediator’s Term Sheet’’ 

14 dated April 20, 2004, and submitted on that date to 

15 the SRBA Court in SRBA Consolidated Subcase 

16 03–10022 and SRBA Consolidated Subcase 67–

17 13701, with all appendices to the document. 

18 (2) ALLOTTEE.—The term ‘‘allottee’’ means a 

19 person that holds a beneficial real property interest 

20 in an Indian allotment that is— 

21 (A) located within the Nez Perce Reserva22 tion; and 

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

24 (3) CONSUMPTIVE USE RESERVED WATER

25 RIGHT.—The term ‘‘consumptive use reserved water 
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1 right’’ means the Federal reserved water right of 

2 50,000 acre-feet per year, as described in the Agree3 ment, to be decreed to the Tribe and the allottees, 

4 with a priority date of 1855. 

5 (4) PARTIES.—The term ‘‘parties’’ means the 

6 United States, the State, the Tribe, and any other 

7 entity or person that submitted, or joined in the sub8 mission, of the Agreement to the SRBA Court on 

9 April 20, 2004. 

10 (5) SECRETARY.—The term ‘‘Secretary’’ means 

11 the Secretary of the Interior. 

12 (6) SNAKE RIVER BASIN.—The term ‘‘Snake 

13 River Basin’’ means the geographic area in the 

14 State described in paragraph 3 of the Commence15 ment Order issued by the SRBA Court on November 

16 19, 1987. 

17 (7) SPRINGS OR FOUNTAINS WATER RIGHT.—

18 The term ‘‘springs or fountains water right’’ means 

19 the Tribe’s treaty right of access to and use of water 

20 from springs or fountains on Federal public land 

21 within the area ceded by the Tribe in the Treaty of 

22 June 9, 1863 (14 Stat. 647), as recognized under 

23 the Agreement. 

24 (8) SRBA.—The term ‘‘SRBA’’ means the 

25 Snake River Basin Adjudication litigation before the 
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1 SRBA Court styled as In re Snake River Basin Ad2 judication, Case No. 39576. 

3 (9) SRBA COURT.—The term ‘‘SRBA Court’’ 

4 means the District Court of the Fifth Judicial Dis5 trict of the State of Idaho, In and For the County 

6 of Twin Falls in re Snake River Basin Adjudication. 

7 (10) STATE.—The term ‘‘State’’ means the 

8 State of Idaho. 

9 (11) TRIBE.—The term ‘‘Tribe’’ means the Nez 

10 Perce Tribe. 

11 SEC. 4. APPROVAL, RATIFICATION, AND CONFIRMATION OF 

12 AGREEMENT. 

13 (a) IN GENERAL.—Except to the extent that the 

14 Agreement conflicts with the express provisions of this 

15 Act, the Agreement is approved, ratified, and confirmed. 

16 (b) EXECUTION AND PERFORMANCE.—The Secretary 

17 and the other heads of Federal agencies with obligations 

18 under the Agreement shall execute and perform all ac19 tions, consistent with this Act, that are necessary to carry 

20 out the Agreement. 

21 SEC. 5. BUREAU OF RECLAMATION WATER USE. 

22 (a) IN GENERAL.—As part of the overall implementa23 tion of the Agreement, the Secretary shall take such ac24 tions consistent with the Agreement, this Act, and water 
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1 law of the State as are necessary to carry out the Snake 

2 River Flow Component of the Agreement. 

3 (b) MITIGATION FOR CHANGE OF USE OF WATER.—

4 (1) AUTHORIZATION OF APPROPRIATIONS.—

5 There is authorized to be appropriated to the Sec6 retary $2,000,000 for a 1-time payment to local gov7 ernments to mitigate for the change of use of water 

8 acquired by the Bureau of Reclamation under sec9 tion III.C.6 of the Agreement. 

10 (2) DISTRIBUTION OF FUNDS.—Funds made 

11 available under paragraph (1) shall be distributed by 

12 the Secretary to local governments in accordance 

13 with a plan provided to the Secretary by the State. 

14 (3) PAYMENTS.—Payments by the Secretary 

15 shall be made on a pro rata basis as water rights 

16 are acquired by the Bureau of Reclamation. 

17 SEC. 6. BUREAU OF LAND MANAGEMENT LAND TRANSFER. 

18 (a) TRANSFER.— 

19 (1) IN GENERAL.—The Secretary shall transfer 

20 land selected by the Tribe under paragraph (2) to 

21 the Bureau of Indian Affairs to be held in trust for 

22 the Tribe. 

23 (2) LAND SELECTION.—The land transferred 

24 shall be selected by the Tribe from a list of parcels 

25 of land managed by the Bureau of Land Manage-
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1 ment that are available for transfer, as depicted on 

2 the map entitled ‘‘North Idaho BLM Land Eligible 

3 for Selection by the Nez Perce Tribe’’ dated May 

4 2004, on file with the Director of the Bureau of 

5 Land Management, not including any parcel des6 ignated on the map as being on the Clearwater River 

7 or Lolo Creek. 

8 (3) MAXIMUM VALUE.—The land selected by 

9 the Tribe for transfer shall be limited to a maximum 

10 value in total of not more than $7,000,000, as deter11 mined by an independent appraisal of fair market 

12 value prepared in accordance with the Uniform 

13 Standards of Professional Appraisal Practice and 

14 the Uniform Appraisal Standards for Federal Land 

15 Acquisitions. 

16 (b) EXISTING RIGHTS AND USES.— 

17 (1) IN GENERAL.—On any land selected by the 

18 Tribe under subsection (a)(2), any use in existence 

19 on the date of transfer under subsection (a) under 

20 a lease or permit with the Bureau of Land Manage21 ment, including grazing, shall remain in effect until 

22 the date of expiration of the lease or permit, unless 

23 the holder of the lease or permit requests an earlier 

24 termination of the lease or permit, in which case the 

25 Secretary shall grant the request. 
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1 (2) AVAILABILITY OF AMOUNTS.—Amounts 

2 that accrue to the United States under a lease or 

3 permit described in paragraph (1) from sales, bo4 nuses, royalties, and rentals relating to any land 

5 transferred to the Tribe under this section shall be 

6 made available to the Tribe by the Secretary in the 

7 same manner as amounts received from other land 

8 held by the Secretary in trust for the Tribe. 

9 (c) DATE OF TRANSFER.—No land shall be trans10 ferred to the Tribe under this section until the waivers 

11 and releases under section 10 take effect. 

12 SEC. 7. WATER RIGHTS. 

13 (a) HOLDING IN TRUST.— 

14 (1) IN GENERAL.—The consumptive use re15 served water right shall be held in trust by the 

16 United States for the benefit of the Tribe and 

17 allottees. 

18 (2) SPRINGS OR FOUNTAINS WATER RIGHT.—

19 The springs or fountains water right of the Tribe 

20 shall be held in trust by the United States for the 

21 benefit of the Tribe. 

22 (b) WATER CODE.— 

23 (1) IN GENERAL.—The consumptive use re24 served water right shall be subject to section 7 of 
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1 the Act of February 8, 1887 (25 U.S.C. 381; 24 

2 Stat. 390, chapter 119). 

3 (2) ENACTMENT OF WATER CODE.—Not later 

4 than 3 years after the date of enactment of this Act, 

5 the Tribe shall enact a water code, subject to any 

6 applicable provision of law, that— 

7 (A) manages, regulates, and controls the 

8 consumptive use reserved water right; and 

9 (B) includes, subject to approval of the 

10 Secretary— 

11 (i) a process by which an allottee, or 

12 any successor in interest to an allottee, 

13 may request and be provided with an allo14 cation of water for irrigation use on allot15 ted land of the allottee; and 

16 (ii) a due process system for the con17 sideration and determination of any re18 quest by an allottee, or any successor in in19 terest to an allottee, for an allocation of 

20 water, including a process for appeal and 

21 adjudication of denied or disputed distribu22 tions of water and for resolution of con23 tested administrative decisions. 

24 (3) RIGHTS OF ALLOTTEES.—Any provision of 

25 the water code and any amendments to the water 
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1 code that affect the rights of the allottees shall be 

2 subject to the approval of the Secretary, and no such 

3 provision or amendment shall be valid until approved 

4 by the Secretary. 

5 (4) INTERIM ADMINISTRATION.—The Secretary 

6 shall administer the consumptive use reserved water 

7 right until such date as the water code described in 

8 paragraph (2) has been enacted by the Tribe and 

9 approved by the Secretary. 

10 (c) SATISFACTION OF CLAIMS.— 

11 (1) IN GENERAL.—The water rights and other 

12 benefits granted or confirmed by the Agreement and 

13 this Act shall be in full satisfaction of all claims for 

14 water rights and injuries to water rights of the 

15 allottees. 

16 (2) SATISFACTION OF ENTITLEMENTS.—Any 

17 entitlement to water of any allottee under Federal 

18 law shall be satisfied out of the consumptive use re19 served water right. 

20 (d) ABANDONMENT, FORFEITURE, OR NONUSE.—

21 The consumptive use reserved water right and the springs 

22 or fountains water right shall not be subject to loss by 

23 abandonment, forfeiture, or nonuse. 

24 (e) LEASE OF WATER.— 
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1 (1) IN GENERAL.—The Tribe, without further 

2 approval of the Secretary, may lease water to which 

3 the Tribe is entitled under the consumptive use re4 served water right through any State water bank in 

5 the same manner and subject to the same rules and

6 requirements that govern any other lessor of water 

7 to the water bank. 

8 (2) FUNDS.—Any funds accruing to the Tribe 

9 from any lease under paragraph (1) shall be the 

10 property of the Tribe, and the United States shall 

11 have no trust obligation or other obligation to mon12 itor, administer, or account for any consideration re13 ceived by the Tribe under any such lease. 

14 SEC. 8. TRIBAL FUNDS. 

15 (a) DEFINITION OF FUND.—In this section, the term 

16 ‘‘Fund’’ means— 

17 (1) the Nez Perce Tribe Water and Fisheries 

18 Fund established under subsection (b)(1); and 

19 (2) the Nez Perce Tribe Domestic Water Sup20 ply Fund established under subsection (b)(2). 

21 (b) ESTABLISHMENT.—There are established in the 

22 Treasury of the United States— 

23 (1) a fund to be known as the ‘‘Nez Perce 

24 Tribe Water and Fisheries Fund’’, to be used to pay 

25 or reimburse costs incurred by the Tribe in acquir-
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1 ing land and water rights, restoring or improving 

2 fish habitat, or for fish production, agricultural de3 velopment, cultural preservation, water resource de4 velopment, or fisheries-related projects; and 

5 (2) a fund to be known as the ‘‘Nez Perce Do6 mestic Water Supply Fund’’, to be used to pay the 

7 costs for design and construction of water supply 

8 and sewer systems for tribal communities, including 

9 a water quality testing laboratory. 

10 (c) MANAGEMENT OF THE FUNDS.—The Secretary 

11 shall manage the Funds, make investments from the 

12 Funds, and make amounts available from the Funds for 

13 distribution to the Tribe consistent with the American In14 dian Trust Fund Management Reform Act of 1994 (25 

15 U.S.C. 4001 et seq.), this Act, and the Agreement. 

16 (d) INVESTMENT OF THE FUNDS.—The Secretary 

17 shall invest amounts in the Funds in accordance with— 

18 (1) the Act of April 1, 1880 (25 U.S.C. 161; 

19 21 Stat. 70, chapter 41); 

20 (2) the first section of the Act of June 24, 

21 1938 (25 U.S.C. 162a; 52 Stat. 1037, chapter 648); 

22 and 

23 (3) subsection (c). 

24 (e) AVAILABILITY OF AMOUNTS FROM THE

25 FUNDS.—Amounts made available under subsection (h) 
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1 shall be available for expenditure or withdrawal only after 

2 the waivers and releases under section 10 take effect. 

3 (f) EXPENDITURES AND WITHDRAWAL.— 

4 (1) TRIBAL MANAGEMENT PLAN.— 

5 (A) IN GENERAL.—The Tribe may with6 draw all or part of amounts in the Funds on 

7 approval by the Secretary of a tribal manage8 ment plan as described in the American Indian 

9 Trust Fund Management Reform Act of 1994 

10 (25 U.S.C. 4001 et seq.). 

11 (B) REQUIREMENTS.—In addition to the 

12 requirements under the American Indian Trust 

13 Fund Management Reform Act of 1994 (25 

14 U.S.C. 4001 et seq.), the tribal management 

15 plan shall require that the Tribe spend any 

16 amounts withdrawn from the Funds in accord17 ance with the purposes described in subsection 

18 (b). 

19 (C) ENFORCEMENT.—The Secretary may 

20 take judicial or administrative action to enforce 

21 the provisions of any tribal management plan to 

22 ensure that any amounts withdrawn from the 

23 Funds under the plan are used in accordance 

24 with this Act and the Agreement. 
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1 (D) LIABILITY.—If the Tribe exercises the 

2 right to withdraw amounts from the Funds, 

3 neither the Secretary nor the Secretary of the 

4 Treasury shall retain any liability for the ex5 penditure or investment of the amounts. 

6 (2) EXPENDITURE PLAN.— 

7 (A) IN GENERAL.—The Tribe shall submit 

8 to the Secretary for approval an expenditure 

9 plan for any portion of the amounts made avail10 able under subsection (h) that the Tribe does 

11 not withdraw under this subsection. 

12 (B) DESCRIPTION.—The expenditure plan 

13 shall describe the manner in which, and the 

14 purposes for which, amounts of the Tribe re15 maining in the Funds will be used. 

16 (C) APPROVAL.—On receipt of an expendi17 ture plan under subparagraph (A), the Sec18 retary shall approve the plan if the Secretary 

19 determines that the plan is reasonable and con20 sistent with this Act and the Agreement. 

21 (D) ANNUAL REPORT.—For each Fund, 

22 the Tribe shall submit to the Secretary an an23 nual report that describes all expenditures from 

24 the Fund during the year covered by the report. 
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1 (g) NO PER CAPITA PAYMENTS.—No part of the 

2 principal of the Funds, or of the income accruing in the 

3 Funds, shall be distributed to any member of the Tribe 

4 on a per capita basis. 

5 (h) AUTHORIZATION OF APPROPRIATIONS.—There 

6 are authorized to be appropriated— 

7 (1) $60,100,000 to the Nez Perce Tribe Water 

8 and Fisheries Fund; and 

9 (2) $23,000,000 to the Nez Perce Tribe Do10 mestic Water Supply Fund. 

11 SEC. 9. SALMON AND CLEARWATER RIVER BASINS HABITAT 

12 FUND. 

13 (a) ESTABLISHMENT OF FUND.— 

14 (1) IN GENERAL.—There is established in the 

15 Treasury of the United States a fund to be known 

16 as the ‘‘Salmon and Clearwater River Basins Habi17 tat Fund’’ (referred to in this section as the 

18 ‘‘Fund’’), to be administered by the Secretary. 

19 (2) ACCOUNTS.—There is established within the 

20 Fund— 

21 (A) an account to be known as the ‘‘Nez 

22 Perce Tribe Salmon and Clearwater River Ba23 sins Habitat Account’’, which shall be adminis24 tered by the Secretary for use by the Tribe sub25 ject to the same provisions for management, in-
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1 vestment, and expenditure as the funds estab2 lished by section 8; and 

3 (B) an account to be known as the ‘‘Idaho 

4 Salmon and Clearwater River Basins Habitat 

5 Account’’, which shall be administered by the

6 Secretary and provided to the State as provided 

7 in the Agreement and this Act. 

8 (b) USE OF THE FUND.— 

9 (1) IN GENERAL.—The Fund shall be used to 

10 supplement amounts made available under other law 

11 for habitat protection and restoration in the Salmon 

12 and Clearwater River basins, including projects and 

13 programs intended to protect and restore listed fish 

14 and their habitat in the Salmon and Clearwater ba15 sins, as specified in the Agreement and this Act. 

16 (2) NO ALLOCATION REQUIREMENT.—The use 

17 of the Fund shall not be subject to the allocation 

18 procedures under section 6(d)(1) of the Endangered 

19 Species Act of 1973 (16 U.S.C. 1535(d)(1)). 

20 (3) RELEASE OF FUNDS.—The Secretary shall 

21 release funds from the Clearwater River Basins 

22 Habitat Account in accordance with section 6(d)(2) 

23 of the Endangered Species Act (16 U.S.C. 

24 1535(d)(2)). 
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1 (c) AVAILABILITY OF AMOUNTS IN THE FUND.—

2 Amounts made available under subsection (d) shall be 

3 available for expenditure or withdrawal only after the 

4 waivers and releases under section 10(a) take effect. 

5 (d) AUTHORIZATION OF APPROPRIATIONS.—There 

6 are authorized to be appropriated— 

7 (1) $12,666,670 to the Nez Perce Tribe Salmon 

8 and Clearwater River Basins Habitat Account; and 

9 (2) $25,333,330 to the Idaho Salmon and 

10 Clearwater River Basins Habitat Account. 

11 SEC. 10. TRIBAL WAIVER AND RELEASE OF CLAIMS. 

12 (a) WAIVER AND RELEASE OF CLAIMS IN GEN13 ERAL.— 

14 (1) CLAIMS TO WATER RIGHTS; CLAIMS FOR IN15 JURIES TO WATER RIGHTS OR TREATY RIGHTS.—Ex16 cept as otherwise provided in this Act, the United 

17 States on behalf of the Tribe and the allottees, and 

18 the Tribe, waive and release— 

19 (A) all claims to water rights within the 

20 Snake River Basin (as defined in section 3(b)); 

21 (B) all claims for injuries to such water 

22 rights; and 

23 (C) all claims for injuries to the treaty 

24 rights of the Tribe to the extent that such inju25 ries result or resulted from flow modifications 
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1 or reductions in the quantity of water available 

2 that accrued at any time up to and including 

3 the effective date of the settlement, and any 

4 continuation thereafter of any such claims, 

5 against the State, any agency or political sub6 division of the State, or any person, entity, cor7 poration, municipal corporation, or quasi-mu8 nicipal corporation. 

9 (2) CLAIMS BASED ON REDUCED WATER QUAL10 ITY OR REDUCTIONS IN WATER QUANTITY.—The 

11 United States on behalf of the Tribe and the 

12 allottees, and the Tribe, waive and release any claim, 

13 under any treaty theory, based on reduced water 

14 quality resulting directly from flow modifications or 

15 reductions in the quantity of water available in the 

16 Snake River Basin against any party to the Agree17 ment or this Act. 

18 (3) NO FUTURE ASSERTION OF CLAIMS.—No 

19 water right claim that the Tribe or the allottees have 

20 asserted or may in the future assert outside the 

21 Snake River Basin shall require water to be supplied 

22 from the Snake River Basin to satisfy the claim. 

23 (4) EFFECT OF WAIVERS AND RELEASES.—The 

24 waivers and releases by the United States and the 

25 Tribe under this subsection— 
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1 (A) shall be permanent and enforceable; 

2 and 

3 (B) shall survive any subsequent termi4 nation of any component of the settlement de5 scribed in the Agreement or this Act. 

6 (5) EFFECTIVE DATE.—The waivers and re7 leases under this subsection take effect on the date 

8 on which the Secretary causes to be published in the 

9 Federal Register a statement of findings that the ac10 tions set forth in section IV.L of the Agreement— 

11 (A) have been completed, including 

12 issuance of a judgment and decree by the 

13 SRBA court from which no further appeal may 

14 be taken; and 

15 (B) have been determined by the United 

16 States on behalf of the Tribe and the allottees, 

17 the Tribe, and the State of Idaho to be con18 sistent in all material aspects with the Agree19 ment. 

20 (b) WAIVER AND RELEASE OF CLAIMS AGAINST THE

21 UNITED STATES.— 

22 (1) IN GENERAL.—In consideration of perform23 ance by the United States of all actions required by 

24 the Agreement and this Act, including the appro25 priation of all funds authorized under sections 8(h) 
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1 and 9(d)(1), the Tribe shall execute a waiver and re2 lease of the United States from— 

3 (A) all claims for water rights within the 

4 Snake River Basin, injuries to such water 

5 rights, or breach of trust claims for failure to 

6 protect, acquire, or develop such water rights 

7 that accrued at any time up to and including 

8 the effective date determined under paragraph 

9 (2); 

10 (B) all claims for injuries to the Tribe’s 

11 treaty fishing rights, to the extent that such in12 juries result or resulted from reductions in the 

13 quantity of water available in the Snake River 

14 Basin; 

15 (C) all claims of breach of trust for failure 

16 to protect Nez Perce springs or fountains treaty 

17 rights reserved in article VIII of the Treaty of 

18 June 9, 1863 (14 Stat. 651); and 

19 (D) all claims of breach of trust arising 

20 out of the negotiation of or resulting from the 

21 adoption of the Agreement. 

22 (2) EFFECTIVE DATE.—The waiver and release 

23 contained in this subsection take effect on the date 

24 on which the funds authorized under sections 8(h) 
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1 and 9(d)(1) of this Act have been appropriated as 

2 authorized by this Act. 

3 (c) RETENTION OF RIGHTS.— 

4 (1) IN GENERAL.—The Tribe shall retain all 

5 rights not specifically waived or released in the 

6 Agreement or this Act.

7 (2) DWORSHAK PROJECT.—Nothing in the 

8 Agreement or this Act constitutes a waiver by the 

9 Tribe of any claim against the United States relat10 ing to non-water-based injuries resulting from the 

11 construction and operation of the Dworshak Project. 

12 (3) FUTURE ACQUISITION OF WATER RIGHTS.—

13 Nothing in the Agreement or this Act precludes the 

14 Tribe, or the United States as trustee for the Tribe, 

15 from purchasing or otherwise acquiring water rights 

16 in the future to the same extent as any other entity 

17 the State. 

18 SEC. 11. MISCELLANEOUS. 

19 (a) GENERAL DISCLAIMER.—The parties expressly 

20 reserve all rights not specifically granted, recognized, or 

21 relinquished by the settlement described in the Agreement 

22 or this Act. 

23 (b) DISCLAIMER REGARDING OTHER AGREEMENTS

24 AND PRECEDENT.— 
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1 (1) IN GENERAL.—Except as expressly provided 

2 in this Act, nothing in this Act amends, supersedes, 

3 or preempts any State law, Federal law, Tribal law, 

4 or interstate compact that pertains to the Snake 

5 River or its tributaries. 

6 (2) NO ESTABLISHMENT OF STANDARD.—Noth7 ing in this Act— 

8 (A) establishes any standard for the quan9 tification of Federal reserved water rights or 

10 any other Indian water claims of any other In11 dian tribes in any other judicial or administra12 tive proceeding; or 

13 (B) limits the rights of the parties to liti14 gate any issue not resolved by the Agreement or 

15 this Act. 

16 (3) NO ADMISSION AGAINST INTEREST.—Noth17 ing in this Act constitutes an admission against in18 terest against any party in any legal proceeding. 

19 (c) TREATY RIGHTS.—Nothing in the Agreement or 

20 this Act impairs the treaty fishing, hunting, pasturing, or 

21 gathering rights of the Tribe except to the extent expressly 

22 provided in the Agreement or this Act. 

23 (d) OTHER CLAIMS.—Nothing in the Agreement or 

24 this Act quantifies or otherwise affects the water rights, 

25 claims, or entitlements to water, or any other treaty right, 
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1 of any Indian tribe, band, or community other than the 

2 Tribe. 

3 (e) RECREATION ON DWORSHAK RESERVOIR.— 

4 (1) IN GENERAL.—In implementing the provi5 sions of the Agreement and this Act relating to the 

6 use of water stored in Dworshak Reservoir for flow 

7 augmentation purposes, the heads of the Federal 

8 agencies involved in the operational Memorandum of 

9 Agreement referred to in the Agreement shall imple10 ment a flow augmentation plan beneficial to fish and 

11 consistent with the Agreement. 

12 (2) CONTENTS OF PLAN.—The flow augmenta13 tion plan may include provisions beneficial to rec14 reational uses of the reservoir through maintenance 

15 of the full level of the reservoir for prolonged periods 

16 during the summer months. 

17 (f) JURISDICTION.— 

18 (1) NO EFFECT ON SUBJECT MATTER JURIS19 DICTION.—Nothing in the Agreement or this Act re20 stricts, enlarges, or otherwise determines the subject 

21 matter jurisdiction of any Federal, State, or Tribal 

22 court. 

23 (2) CONSENT TO JURISDICTION.—The United 

24 States consents to jurisdiction in a proper forum for 
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1 purposes of enforcing the provisions of the Agree2 ment. 

3 (3) EFFECT OF SUBSECTION.—Nothing in this 

4 subsection confers jurisdiction on any State court 

5 to— 

6 (A) enforce Federal environmental laws re7 garding the duties of the United States; or 

8 (B) conduct judicial review of Federal 

9 agency action.

10 SECTION 1. SHORT TITLE. 

11 This Act may be cited as the ‘‘Snake River Water 

12 Rights Act of 2004’’. 

13 SEC. 2. PURPOSES. 

14 The purposes of this Act are— 

15 (1) to resolve some of the largest outstanding 

16 issues with respect to the Snake River Basin Adju17 dication in Idaho in such a manner as to provide im18 portant benefits to the United States, the State of 

19 Idaho, the Nez Perce Tribe, the allottees, and citizens 

20 of the State; 

21 (2) to achieve a fair, equitable, and final settle22 ment of all claims of the Nez Perce Tribe, its mem23 bers, and allottees and the United States on behalf of 

24 the Tribe, its members, and allottees to the water of 

25 the Snake River Basin within Idaho;
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1 (3) to authorize, ratify, and confirm the Agree2 ment among the parties submitted to the Snake River 

3 Basin Adjudication Court and provide all parties 

4 with the benefits of the Agreement; 

5 (4) to direct— 

6 (A) the Secretary, acting through the Bu7 reau of Reclamation, the Bureau of Land Man8 agement, the Bureau of Indian Affairs, and other 

9 agencies; and 

10 (B) the heads of other Federal agencies au11 thorized to execute and perform actions necessary 

12 to carry out the Agreement; 

13 to perform all of their obligations under the Agree14 ment and this Act; and 

15 (5) to authorize the actions and appropriations 

16 necessary for the United States to meet the obligations 

17 of the United States under the Agreement and this 

18 Act. 

19 SEC. 3. DEFINITIONS. 

20 In this Act: 

21 (1) AGREEMENT.—The term ‘‘Agreement’’ means 

22 the document titled ‘‘Mediator’s Term Sheet’’ dated 

23 April 20, 2004, and submitted on that date to the 

24 SRBA Court in SRBA Consolidated Subcase 03–
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1 10022 and SRBA Consolidated Subcase 67–13701, 

2 with all appendices to the document. 

3 (2) ALLOTTEE.—The term ‘‘allottee’’ means a 

4 person that holds a beneficial real property interest in 

5 an Indian allotment that is— 

6 (A) located within the Nez Perce Reserva7 tion; and 

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

9 (3) CONSUMPTIVE USE RESERVED WATER

10 RIGHT.—The term ‘‘consumptive use reserved water 

11 right’’ means the Federal reserved water right of 

12 50,000 acre-feet per year, as described in the Agree13 ment, to be decreed to the United States in trust for 

14 the Tribe and the allottees, with a priority date of 

15 1855. 

16 (4) PARTIES.—The term ‘‘parties’’ means the 

17 United States, the State, the Tribe, and any other en18 tity or person that submitted, or joined in the submis19 sion of, the Agreement to the SRBA Court on April 

20 20, 2004. 

21 (5) SECRETARY.—The term ‘‘Secretary’’ means 

22 the Secretary of the Interior. 

23 (6) SNAKE RIVER BASIN.—The term ‘‘Snake 

24 River Basin’’ means the geographic area in the State 
27

•S 2605 RS 

1 described in paragraph 3 of the Commencement Order 

2 issued by the SRBA Court on November 19, 1987. 

3 (7) SPRINGS OR FOUNTAINS WATER RIGHT.—The 

4 term ‘‘springs or fountains water right’’ means the 

5 Tribe’s treaty right of access to and use of water from 

6 springs or fountains on Federal public land within 

7 the area ceded by the Tribe in the Treaty of June 9, 

8 1863 (14 Stat. 647), as recognized under the Agree9 ment. 

10 (8) SRBA.—The term ‘‘SRBA’’ means the Snake 

11 River Basin Adjudication litigation before the SRBA 

12 Court styled as In re Snake River Basin Adjudica13 tion, Case No. 39576. 

14 (9) SRBA COURT.—The term ‘‘SRBA Court’’ 

15 means the District Court of the Fifth Judicial Dis16 trict of the State of Idaho, In and For the County of 

17 Twin Falls in re Snake River Basin Adjudication. 

18 (10) STATE.—The term ‘‘State’’ means the State 

19 of Idaho. 

20 (11) TRIBE.—The term ‘‘Tribe’’ means the Nez 

21 Perce Tribe. 
28

•S 2605 RS 

1 SEC. 4. APPROVAL, RATIFICATION, AND CONFIRMATION OF 

2 AGREEMENT. 

3 (a) IN GENERAL.—Except to the extent that the Agree4 ment conflicts with this Act, the Agreement is approved, 

5 ratified, and confirmed. 

6 (b) EXECUTION AND PERFORMANCE.—The Secretary 

7 and the other heads of Federal agencies with obligations 

8 under the Agreement shall execute and perform all actions, 

9 consistent with this Act, that are necessary to carry out the 

10 Agreement. 

11 SEC. 5. BUREAU OF RECLAMATION WATER USE. 

12 (a) IN GENERAL.—As part of the overall implementa13 tion of the Agreement, the Secretary shall take such actions 

14 consistent with the Agreement, this Act, and water law of 

15 the State as are necessary to carry out the Snake River 

16 Flow Component of the Agreement. 

17 (b) MITIGATION FOR CHANGE OF USE OF WATER.—

18 (1) AUTHORIZATION OF APPROPRIATIONS.—

19 There is authorized to be appropriated to the Sec20 retary $2,000,000 for a 1-time payment to local gov21 ernments to mitigate for the change of use of water 

22 acquired by the Bureau of Reclamation under section 

23 III.C.6 of the Agreement. 

24 (2) DISTRIBUTION OF FUNDS.—Funds made 

25 available under paragraph (1) shall be distributed by
29

•S 2605 RS 

1 the Secretary to local governments in accordance with 

2 a plan provided to the Secretary by the State. 

3 (3) PAYMENTS.—Payments by the Secretary 

4 shall be made on a pro rata basis as water rights are 

5 acquired by the Bureau of Reclamation. 

6 SEC. 6. BUREAU OF LAND MANAGEMENT LAND TRANSFER. 

7 (a) TRANSFER.— 

8 (1) IN GENERAL.—The Secretary shall transfer 

9 land selected by the Tribe under paragraph (2) to the 

10 Bureau of Indian Affairs to be held in trust for the 

11 Tribe. 

12 (2) LAND SELECTION.—The land transferred 

13 shall be selected by the Tribe from a list of parcels of 

14 land managed by the Bureau of Land Management 

15 that are available for transfer, as depicted on the map 

16 entitled ‘‘North Idaho BLM Land Eligible for Selec17 tion by the Nez Perce Tribe’’ dated May 2004, on file 

18 with the Director of the Bureau of Land Management, 

19 not including any parcel designated on the map as 

20 being on the Clearwater River or Lolo Creek. 

21 (3) MAXIMUM VALUE.—The land selected by the 

22 Tribe for transfer shall be limited to a maximum 

23 value in total of not more than $7,000,000, as deter24 mined by an independent appraisal of fair market 

25 value prepared in accordance with the Uniform 
30

•S 2605 RS 

1 Standards of Professional Appraisal Practice and the 

2 Uniform Appraisal Standards for Federal Land Ac3 quisitions. 

4 (b) EXISTING RIGHTS AND USES.— 

5 (1) IN GENERAL.—On any land selected by the 

6 Tribe under subsection (a)(2), any use in existence on 

7 the date of transfer under subsection (a) under a lease 

8 or permit with the Bureau of Land Management, in9 cluding grazing, shall remain in effect until the date 

10 of expiration of the lease or permit, unless the holder 

11 of the lease or permit requests an earlier termination 

12 of the lease or permit, in which case the Secretary 

13 shall grant the request. 

14 (2) AVAILABILITY OF AMOUNTS.—Amounts that 

15 accrue to the United States under a lease or permit 

16 described in paragraph (1) from sales, bonuses, royal17 ties, and rentals relating to any land transferred to 

18 the Tribe under this section shall be made available 

19 to the Tribe by the Secretary in the same manner as 

20 amounts received from other land held by the Sec21 retary in trust for the Tribe. 

22 (c) DATE OF TRANSFER.—No land shall be transferred 

23 to the Bureau of Indian Affairs to be held in trust for the 

24 Tribe under this section until the waivers and releases 

25 under section 10(a) take effect. 
31

•S 2605 RS 

1 (d) AUTHORIZATION OF APPROPRIATIONS.—

2 (1) IN GENERAL.—There is authorized to be ap3 propriated to the Secretary $200,000 for 1-time pay4 ments to local governments to mitigate for the trans5 fer of land by the Bureau of Land Management to the 

6 Tribe under section I.F of the Agreement. 

7 (2) PAYMENTS.—Payments under paragraph (1) 

8 shall be made on a pro rata basis as parcels of land 

9 are acquired by the Tribe. 

10 SEC. 7. WATER RIGHTS. 

11 (a) HOLDING IN TRUST.— 

12 (1) IN GENERAL.—The consumptive use reserved 

13 water right shall—

14 (A) be held in trust by the United States for 

15 the benefit of the Tribe and allottees as set forth 

16 in this section; and 

17 (B) be subject to section 7 of the Act of Feb18 ruary 8, 1887 (25 U.S.C. 381). 

19 (2) SPRINGS OR FOUNTAINS WATER RIGHT.—The 

20 springs or fountains water right of the Tribe shall be 

21 held in trust by the United States for the benefit of 

22 the Tribe. 

23 (3) ALLOTTEES.—Allottees shall be entitled to a 

24 just and equitable allocation of the consumptive use 

25 reserved water right for irrigation purposes. 
32

•S 2605 RS 

1 (b) WATER CODE.—

2 (1) ENACTMENT OF WATER CODE.—Not later 

3 than 3 years after the date of enactment of this Act, 

4 the Tribe shall enact a water code, subject to any ap5 plicable provision of law, that— 

6 (A) manages, regulates, and controls the 

7 consumptive use reserved water right so as to al8 locate water for irrigation, domestic, commercial, 

9 municipal, industrial, cultural, or other uses; 

10 and 

11 (B) includes, subject to approval of the Sec12 retary— 

13 (i) a due process system for the consid14 eration and determination of any request by 

15 an allottee, or any successor in interest to 

16 an allottee, for an allocation of such water 

17 for irrigation purposes on allotted land, in18 cluding a process for an appeal and adju19 dication of denied or disputed distribution 

20 of water and for resolution of contested ad21 ministrative decisions; and 

22 (ii) a process to protect the interests of 

23 allottees when entering into any lease under 

24 subsection (e).
33

•S 2605 RS 

1 (2) SECRETARIAL APPROVAL.—Any provision of 

2 the water code and any amendments to the water code 

3 that affect the rights of the allottees shall be subject 

4 to approval by the Secretary, and no such provision 

5 or amendment shall be valid until approved by the 

6 Secretary. 

7 (3) INTERIM ADMINISTRATION.—The Secretary 

8 shall administer the consumptive use reserved water 

9 right until such date as the water code described in 

10 paragraph (2) has been enacted by the Tribe and the 

11 Secretary has approved the relevant portions of the 

12 water code. 

13 (c) EXHAUSTION OF REMEDIES.—Before asserting any 

14 claim against the United States under section 7 of the Act 

15 of February 8, 1887 (25 U.S.C. 381) or other applicable 

16 law, a claimant shall exhaust remedies available under the 

17 Tribe’s water code and Tribal law. 

18 (d) PETITION TO THE SECRETARY.—Following ex19 haustion of remedies in accordance with subsection (c), a 

20 claimant may petition the Secretary for relief. 

21 (e) SATISFACTION OF CLAIMS.—

22 (1) IN GENERAL.—The water rights and other 

23 benefits granted or confirmed by the Agreement and 

24 this Act shall be in full satisfaction of all claims for 
34

•S 2605 RS 

1 water rights and injuries to water rights of the 

2 allottees. 

3 (2) SATISFACTION OF ENTITLEMENTS.—Any en4 titlement to water of any allottee under Federal law 

5 shall be satisfied out of the consumptive use reserved 

6 water right. 

7 (3) COMPLETE SUBSTITUTION.—The water 

8 rights, resources, and other benefits provided by this 

9 Act are a complete substitution for any rights that 

10 may have been held by, or any claims that may have 

11 been asserted by, allottees within the exterior bound12 aries of the Reservation before the date of enactment 

13 of this Act. 

14 (f) ABANDONMENT, FORFEITURE, OR NONUSE.—The 

15 consumptive use reserved water right and the springs or 

16 fountains water right shall not be subject to loss by aban17 donment, forfeiture, or nonuse. 

18 (g) LEASE OF WATER.— 

19 (1) IN GENERAL.—Subject to the water code, the 

20 Tribe, without further approval of the Secretary, may 

21 lease water to which the Tribe is entitled under the 

22 consumptive use reserved water right through any 

23 State water bank in the same manner and subject to 

24 the same rules and requirements that govern any 

25 other lessor of water to the water bank. 
35

•S 2605 RS 

1 (2) FUNDS.—Any funds accruing to the Tribe 

2 from any lease under paragraph (1) shall be the prop3 erty of the Tribe, and the United States shall have no 

4 trust obligation or other obligation to monitor, ad5 minister, or account for any consideration received by 

6 the Tribe under any such lease. 

7 SEC. 8. TRIBAL FUNDS. 

8 (a) DEFINITION OF FUND.—In this section, the term 

9 ‘‘Fund’’ means— 

10 (1) the Nez Perce Tribe Water and Fisheries 

11 Fund established under subsection (b)(1); and 

12 (2) the Nez Perce Tribe Domestic Water Supply 

13 Fund established under subsection (b)(2). 

14 (b) ESTABLISHMENT.—There are established in the 

15 Treasury of the United States— 

16 (1) a fund to be known as the ‘‘Nez Perce Tribe 

17 Water and Fisheries Fund’’, to be used to pay or re18 imburse costs incurred by the Tribe in acquiring land 

19 and water rights, restoring or improving fish habitat, 

20 or for fish production, agricultural development, cul21 tural preservation, water resource development, or 

22 fisheries-related projects; and 

23 (2) a fund to be known as the ‘‘Nez Perce Domes24 tic Water Supply Fund’’, to be used to pay the costs 

25 for design and construction of water supply and 
36

•S 2605 RS 

1 sewer systems for tribal communities, including a 

2 water quality testing laboratory. 

3 (c) MANAGEMENT OF THE FUNDS.—The Secretary 

4 shall manage the Funds, make investments from the Funds, 

5 and make amounts available from the Funds for distribu6 tion to the Tribe consistent with the American Indian Trust 

7 Fund Management Reform Act of 1994 (25 U.S.C. 4001 et 

8 seq.), this Act, and the Agreement. 

9 (d) INVESTMENT OF THE FUNDS.—The Secretary shall 

10 invest amounts in the Funds in accordance with— 

11 (1) the Act of April 1, 1880 (25 U.S.C. 161; 21 

12 Stat. 70, chapter 41); 

13 (2) the first section of the Act of June 24, 1938 

14 (25 U.S.C. 162a; 52 Stat. 1037, chapter 648); and 

15 (3) subsection (c). 

16 (e) AVAILABILITY OF AMOUNTS FROM THE FUNDS.—

17 Amounts made available under subsection (h) shall be avail18 able for expenditure or withdrawal only after the waivers 

19 and releases under section 10(a) take effect. 

20 (f) EXPENDITURES AND WITHDRAWAL.— 

21 (1) TRIBAL MANAGEMENT PLAN.— 

22 (A) IN GENERAL.—The Tribe may with23 draw all or part of amounts in the Funds on ap24 proval by the Secretary of a tribal management 

25 plan as described in the American Indian Trust
37

•S 2605 RS 

1 Fund Management Reform Act of 1994 (25 

2 U.S.C. 4001 et seq.). 

3 (B) REQUIREMENTS.—In addition to the 

4 requirements under the American Indian Trust 

5 Fund Management Reform Act of 1994 (25 

6 U.S.C. 4001 et seq.), the tribal management plan 

7 shall require that the Tribe spend any amounts 

8 withdrawn from the Funds in accordance with 

9 the purposes described in subsection (b). 

10 (C) ENFORCEMENT.—The Secretary may 

11 take judicial or administrative action to enforce 

12 the provisions of any tribal management plan to 

13 ensure that any amounts withdrawn from the 

14 Funds under the plan are used in accordance 

15 with this Act and the Agreement. 

16 (D) LIABILITY.—If the Tribe exercises the 

17 right to withdraw amounts from the Funds, nei18 ther the Secretary nor the Secretary of the Treas19 ury shall retain any liability for the expenditure 

20 or investment of the amounts. 

21 (2) EXPENDITURE PLAN.— 

22 (A) IN GENERAL.—The Tribe shall submit 

23 to the Secretary for approval an expenditure 

24 plan for any portion of the amounts made avail-
38

•S 2605 RS 

1 able under subsection (h) that the Tribe does not 

2 withdraw under this subsection. 

3 (B) DESCRIPTION.—The expenditure plan 

4 shall describe the manner in which, and the pur5 poses for which, amounts of the Tribe remaining 

6 in the Funds will be used. 

7 (C) APPROVAL.—On receipt of an expendi8 ture plan under subparagraph (A), the Secretary 

9 shall approve the plan if the Secretary deter10 mines that the plan is reasonable and consistent 

11 with this Act and the Agreement. 

12 (D) ANNUAL REPORT.—For each Fund, the 

13 Tribe shall submit to the Secretary an annual 

14 report that describes all expenditures from the 

15 Fund during the year covered by the report. 

16 (g) NO PER CAPITA PAYMENTS.—No part of the prin17 cipal of the Funds, or of the income accruing in the Funds, 

18 shall be distributed to any member of the Tribe on a per 

19 capita basis. 

20 (h) AUTHORIZATION OF APPROPRIATIONS.—There are 

21 authorized to be appropriated— 

22 (1) to the Nez Perce Tribe Water and Fisheries 

23 Fund—

24 (A) for fiscal year 2007, $7,830,000; 

25 (B) for fiscal year 2008, $4,730,000; 
39

•S 2605 RS 

1 (C) for fiscal year 2009, $7,380,000; 

2 (D) for fiscal year 2010, $10,080,000; 

3 (E) for fiscal year 2011, $11,630,000; 

4 (F) for fiscal year 2012, $9,450,000; and 

5 (G) for fiscal year 2013, $9,000,000; and 

6 (2) to the Nez Perce Tribe Domestic Water Sup7 ply Fund—

8 (A) for fiscal year 2007, $5,100,000; 

9 (B) for fiscal year 2008, $8,200,000; 

10 (C) for fiscal year 2009, $5,550,000; 

11 (D) for fiscal year 2010, $2,850,000; and 

12 (E) for fiscal year 2011, $1,300,000. 

13 SEC. 9. SALMON AND CLEARWATER RIVER BASINS HABITAT 

14 FUND. 

15 (a) ESTABLISHMENT OF FUND.— 

16 (1) IN GENERAL.—There is established in the 

17 Treasury of the United States a fund to be known as 

18 the ‘‘Salmon and Clearwater River Basins Habitat 

19 Fund’’ (referred to in this section as the ‘‘Fund’’), to 

20 be administered by the Secretary. 

21 (2) ACCOUNTS.—There is established within the 

22 Fund— 

23 (A) an account to be known as the ‘‘Nez 

24 Perce Tribe Salmon and Clearwater River Ba25 sins Habitat Account’’, which shall be adminis-
40

•S 2605 RS 

1 tered by the Secretary for use by the Tribe sub2 ject to the same provisions for management, in3 vestment, and expenditure as the funds estab4 lished by section 8; and 

5 (B) an account to be known as the ‘‘Idaho 

6 Salmon and Clearwater River Basins Habitat 

7 Account’’, which shall be administered by the

8 Secretary and provided to the State as provided 

9 in the Agreement and this Act. 

10 (b) USE OF THE FUND.— 

11 (1) IN GENERAL.—The Fund shall be used to 

12 supplement amounts made available under any other 

13 law for habitat protection and restoration in the 

14 Salmon and Clearwater River Basins in Idaho, in15 cluding projects and programs intended to protect 

16 and restore listed fish and their habitat in those ba17 sins, as specified in the Agreement and this Act. 

18 (2) RELEASE OF FUNDS.—The Secretary shall 

19 release funds from the Idaho Salmon and Clearwater 

20 River Basins Habitat Account in accordance with 

21 section 6(d)(2) of the Endangered Species Act (16 

22 U.S.C. 1535(d)(2)). 

23 (3) NO ALLOCATION REQUIREMENT.—The use of 

24 the Fund shall not be subject to the allocation proce-
41

•S 2605 RS 

1 dures under section 6(d)(1) of the Endangered Species 

2 Act of 1973 (16 U.S.C. 1535(d)(1)). 

3 (c) AVAILABILITY OF AMOUNTS IN THE FUND.—

4 Amounts made available under subsection (d) shall be 

5 available for expenditure or withdrawal only after the waiv6 ers and releases under section 10(a) take effect. 

7 (d) AUTHORIZATION OF APPROPRIATIONS.—There are 

8 authorized to be appropriated— 

9 (1) to the Nez Perce Tribe Salmon and Clear10 water River Basins Habitat Account, $2,533,334 for 

11 each of fiscal years 2007 through 2011; and 

12 (2) to the Idaho Salmon and Clearwater River 

13 Basins Habitat Account, $5,066,666 for each of fiscal 

14 years 2007 through 2011. 

15 SEC. 10. TRIBAL WAIVER AND RELEASE OF CLAIMS. 

16 (a) WAIVER AND RELEASE OF CLAIMS IN GENERAL.— 

17 (1) CLAIMS TO WATER RIGHTS; CLAIMS FOR IN18 JURIES TO WATER RIGHTS OR TREATY RIGHTS.—Ex19 cept as otherwise provided in this Act, the United 

20 States on behalf of the Tribe and the allottees, and the 

21 Tribe, waive and release— 

22 (A) all claims to water rights within the 

23 Snake River Basin (as defined in section 3); 

24 (B) all claims for injuries to such water 

25 rights; and 
42

•S 2605 RS 

1 (C) all claims for injuries to the treaty 

2 rights of the Tribe to the extent that such inju3 ries result or resulted from flow modifications or 

4 reductions in the quantity of water available 

5 that accrued at any time up to and including 

6 the effective date of the settlement, and any con7 tinuation thereafter of any such claims, against 

8 the State, any agency or political subdivision of 

9 the State, or any person, entity, corporation, 

10 municipal corporation, or quasi-municipal cor11 poration. 

12 (2) CLAIMS BASED ON REDUCED WATER QUALITY

13 OR REDUCTIONS IN WATER QUANTITY.—The United 

14 States on behalf of the Tribe and the allottees, and the 

15 Tribe, waive and release any claim, under any treaty 

16 theory, based on reduced water quality resulting di17 rectly from flow modifications or reductions in the 

18 quantity of water available in the Snake River Basin 

19 against any party to the Agreement. 

20 (3) NO FUTURE ASSERTION OF CLAIMS.—No 

21 water right claim that the Tribe or the allottees have 

22 asserted or may in the future assert outside the Snake 

23 River Basin shall require water to be supplied from 

24 the Snake River Basin to satisfy the claim. 
43

•S 2605 RS 

1 (4) EFFECT OF WAIVERS AND RELEASES.—The 

2 waivers and releases by the United States and the 

3 Tribe under this subsection— 

4 (A) shall be permanent and enforceable; and 

5 (B) shall survive any subsequent termi6 nation of any component of the settlement de7 scribed in the Agreement or this Act. 

8 (5) EFFECTIVE DATE.—The waivers and releases 

9 under this subsection shall take effect on the date on 

10 which the Secretary causes to be published in the Fed11 eral Register a statement of findings that the actions 

12 set forth in section IV.L of the Agreement— 

13 (A) have been completed, including issuance 

14 of a judgment and decree by the SRBA court 

15 from which no further appeal may be taken; and 

16 (B) have been determined by the United 

17 States on behalf of the Tribe and the allottees, the 

18 Tribe, and the State of Idaho to be consistent in 

19 all material aspects with the Agreement. 

20 (b) WAIVER AND RELEASE OF CLAIMS AGAINST THE

21 UNITED STATES.— 

22 (1) IN GENERAL.—In consideration of perform23 ance by the United States of all actions required by 

24 the Agreement and this Act, including the appropria25 tion of all funds authorized under sections 8(h) and 
44

•S 2605 RS 

1 9(d)(1), the Tribe shall execute a waiver and release 

2 of the United States from— 

3 (A) all claims for water rights within the 

4 Snake River Basin, injuries to such water rights, 

5 or breach of trust claims for failure to protect, 

6 acquire, or develop such water rights that ac7 crued at any time up to and including the effec8 tive date determined under paragraph (2); 

9 (B) all claims for injuries to the Tribe’s 

10 treaty fishing rights, to the extent that such inju11 ries result or resulted from reductions in the 

12 quantity of water available in the Snake River 

13 Basin; 

14 (C) all claims of breach of trust for failure 

15 to protect Nez Perce springs or fountains treaty 

16 rights reserved in article VIII of the Treaty of 

17 June 9, 1863 (14 Stat. 651); and 

18 (D) all claims of breach of trust arising out 

19 of the negotiation of or resulting from the adop20 tion of the Agreement. 

21 (2) EFFECTIVE DATE.—

22 (A) IN GENERAL.—The waiver and release 

23 contained in this subsection shall take effect on 

24 the date on which the amounts authorized under 

25 sections 8(h) and 9(d)(1) are appropriated.
45

•S 2605 RS 

1 (B) PERIODS OF LIMITATION; EQUITABLE

2 CLAIMS.—

3 (i) IN GENERAL.—All periods of limi4 tation and time-based equitable defenses ap5 plicable to the claims set forth in paragraph 

6 (1) are tolled for the period between the date 

7 of enactment of this Act until the earlier 

8 of—

9 (I) the date on which the amounts 

10 authorized under sections 8(h) and 

11 9(d)(1) are appropriated; or 

12 (II) October 1, 2017. 

13 (ii) EFFECT OF SUBPARAGRAPH.—This 

14 subparagraph neither revives any claim nor 

15 tolls any period of limitation or time-based 

16 equitable defense that may have expired be17 fore the date of enactment of this Act. 

18 (3) DEFENSE.—The making of the amounts of 

19 appropriations authorized under sections 8(h) and 

20 9(d)(1) shall constitute a complete defense to any 

21 claim pending in any court of the United States on 

22 the date on which the appropriations are made. 

23 (c) RETENTION OF RIGHTS.— 
46

•S 2605 RS 

1 (1) IN GENERAL.—The Tribe shall retain all 

2 rights not specifically waived or released in the Agree3 ment or this Act.

4 (2) DWORSHAK PROJECT.—Nothing in the Agree5 ment or this Act constitutes a waiver by the Tribe of 

6 any claim against the United States resulting from 

7 the construction and operation of the Dworshak 

8 Project (Project PWI 05090), other than those speci9 fied in subparagraphs (A) and (B) of subsection 

10 (b)(1). 

11 (3) FUTURE ACQUISITION OF WATER RIGHTS.—

12 Nothing in the Agreement or this Act precludes the 

13 Tribe or allottees, or the United States as trustee for 

14 the Tribe or allottees, from purchasing or otherwise 

15 acquiring water rights in the future to the same ex16 tent as any other entity in the State. 

17 SEC. 11. MISCELLANEOUS. 

18 (a) GENERAL DISCLAIMER.—The parties expressly re19 serve all rights not specifically granted, recognized, or relin20 quished by the settlement described in the Agreement or this 

21 Act. 

22 (b) DISCLAIMER REGARDING OTHER AGREEMENTS

23 AND PRECEDENT.— 

24 (1) IN GENERAL.—Subject to section 9(b)(3), 

25 nothing in this Act amends, supersedes, or preempts 
47

•S 2605 RS 

1 any State law, Federal law, Tribal law, or interstate 

2 compact that pertains to the Snake River Basin. 

3 (2) NO ESTABLISHMENT OF STANDARD.—Noth4 ing in this Act— 

5 (A) establishes any standard for the quan6 tification of Federal reserved water rights or any 

7 other Indian water claims of any other Indian 

8 tribes in any other judicial or administrative 

9 proceeding; or 

10 (B) limits the rights of the parties to liti11 gate any issue not resolved by the Agreement or 

12 this Act. 

13 (3) NO ADMISSION AGAINST INTEREST.—Nothing 

14 in this Act constitutes an admission against interest 

15 against any party in any legal proceeding. 

16 (c) TREATY RIGHTS.—Nothing in the Agreement or 

17 this Act impairs the treaty fishing, hunting, pasturing, or 

18 gathering rights of the Tribe except to the extent expressly 

19 provided in the Agreement or this Act. 

20 (d) OTHER CLAIMS.—Nothing in the Agreement or this 

21 Act quantifies or otherwise affects the water rights, claims, 

22 or entitlements to water, or any other treaty right, of any 

23 Indian tribe, band, or community other than the Tribe. 

24 (e) RECREATION ON DWORSHAK RESERVOIR.—
48

•S 2605 RS 

1 (1) IN GENERAL.—In implementing the provi2 sions of the Agreement and this Act relating to the use 

3 of water stored in Dworshak Reservoir for flow aug4 mentation purposes, the heads of the Federal agencies 

5 involved in the operational Memorandum of Agree6 ment referred to in the Agreement shall implement a 

7 flow augmentation plan beneficial to fish and con8 sistent with the Agreement. 

9 (2) CONTENTS OF PLAN.—The flow augmentation 

10 plan may include provisions beneficial to recreational 

11 uses of the reservoir through maintenance of the full 

12 level of the reservoir for prolonged periods during the 

13 summer months. 

14 (f) JURISDICTION.— 

15 (1) NO EFFECT ON SUBJECT MATTER JURISDIC16 TION.—Nothing in the Agreement or this Act restricts, 

17 enlarges, or otherwise determines the subject matter 

18 jurisdiction of any Federal, State, or Tribal court. 

19 (2) CONSENT TO JURISDICTION.—The United 

20 States consents to jurisdiction in a proper forum for 

21 purposes of enforcing the provisions of the Agreement. 

22 (3) EFFECT OF SUBSECTION.—Nothing in this 

23 subsection confers jurisdiction on any State court 

24 to— 
49

•S 2605 RS 

1 (A) enforce Federal environmental laws re2 garding the duties of the United States; or 

3 (B) conduct judicial review of Federal agen4 cy action.
Calendar No. 777

108TH CONGRESS 

2D SESSION S. 2605

[Report No. 108–389] 

A BILL

To direct the Secretary of the Interior and the 

Basin, Idaho, and for other purposes. adjudication of water rights in the Snake River agreement resolving major issues relating to the heads of other Federal agencies to carry out an 

OCTOBER 7, 2004

Reported with an amendment