II 

111TH CONGRESS 

1ST SESSION S. 313 

To resolve water rights claims of the White Mountain Apache Tribe in 

the State of Arizona, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 26, 2009 

Mr. KYL introduced the following bill; which was read twice and referred to 

the Committee on Indian Affairs 

A BILL 

To resolve water rights claims of the White Mountain Apache 

Tribe in the State of Arizona, and for other purposes. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘White Mountain 

5 Apache Tribe Water Rights Quantification Act of 2009’’. 

6 SEC. 2. FINDINGS AND PURPOSES. 

7 (a) FINDINGS.—Congress finds that— 

8 (1) proceedings to determine the nature and ex9 tent of the water rights of the White Mountain 


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1 Apache Tribe, members of the Tribe, the United 

2 States, and other claimants are pending in— 

3 (A) the consolidated civil action in the Su4 perior Court of the State of Arizona for the 

5 County of Maricopa styled In re the General 

6 Adjudication of All Rights To Use Water In 

7 The Gila River System and Source, W–1 (Salt), 

8 W–2 (Verde), W–3 (Upper Gila), W–4 (San 

9 Pedro); and 

10 (B) the civil action pending in the Superior 

11 Court of the State of Arizona for the County of 

12 Apache styled In re the General Adjudication of 

13 All Rights to Use Water in the Little Colorado 

14 River System and Source and numbered CIV– 

15 6417; 

16 (2) a final resolution of those proceedings 

17 might— 

18 (A) take many years; 

19 (B) entail great expense; 

20 (C) prolong uncertainty concerning the 

21 availability of water supplies; and 

22 (D) seriously impair the long-term eco23 nomic well-being of all parties to the pro24 ceedings; 


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1 (3) the Tribe, non-Indian communities located 

2 near the reservation of the Tribe, and other Arizona 

3 water users have agreed— 

4 (A) to permanently quantify the water 

5 rights of the Tribe, members of the Tribe, and 

6 the United States in its capacity as trustee for 

7 the Tribe and members in accordance with the 

8 Agreement; and 

9 (B) to seek funding, in accordance with 

10 applicable law, for the implementation of the 

11 Agreement; 

12 (4) it is the policy of the United States to quan13 tify, to the maximum extent practicable, water rights 

14 claims of Indian tribes without lengthy and costly 

15 litigation; 

16 (5) as of the date of enactment of this Act, the 

17 tribal water rights are unquantified vested property 

18 rights held in trust by the United States for the ben19 efit of the Tribe; and 

20 (6) in keeping with the trust responsibility of 

21 the United States to Indian tribes, and to promote 

22 tribal sovereignty and economic self-sufficiency, it is 

23 appropriate that the United States participate in 

24 and contribute funds for the implementation of the 

25 Agreement. 


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1 (b) PURPOSES.—The purposes of this Act are— 

2 (1) to authorize, ratify, and confirm the Agree3 ment; 

4 (2) to authorize and direct the Secretary to exe5 cute the Agreement and carry out all obligations of 

6 the Secretary under the Agreement; 

7 (3) to authorize the actions and appropriations 

8 necessary for the United States to meet the obliga9 tions of the United States under the Agreement and 

10 this Act; and 

11 (4) to permanently resolve certain damage 

12 claims and all water rights claims among— 

13 (A) the Tribe and its members; 

14 (B) the United States in its capacity as 

15 trustee for the Tribe and its members; 

16 (C) the parties to the Agreement; and 

17 (D) all other claimants in the proceedings 

18 referred to in subsection (a)(1). 

19 SEC. 3. DEFINITIONS. 

20 In this Act: 

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

22 (A) the WMAT Water Rights Quantifica23 tion Agreement dated January 13, 2009; and 


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1 (B) any amendment or exhibit (including 

2 exhibit amendments) to that agreement that 

3 are— 

4 (i) made in accordance with this Act; 

5 or 

6 (ii) otherwise approved by the Sec7 retary. 

8 (2) BUREAU.—The term ‘‘Bureau’’ means the 

9 Bureau of Reclamation. 

10 (3) CAP.—The term ‘‘CAP’’ means the rec11 lamation project authorized and constructed by the 

12 United States in accordance with title III of the Col13 orado River Basin Project Act (43 U.S.C. 1521 et 

14 seq.). 

15 (4) CAP CONTRACTOR.—The term ‘‘CAP con16 tractor’’ means an individual or entity that has en17 tered into a long-term contract (as that term is used 

18 in the repayment stipulation) with the United States 

19 for delivery of water through the CAP system. 

20 (5) CAP FIXED OM&R CHARGE.—The term 

21 ‘‘CAP fixed OM&R charge’’ has the meaning given 

22 the term in the repayment stipulation. 

23 (6) CAP M&I PRIORITY WATER.—The term 

24 ‘‘CAP M&I priority water’’ means the CAP water 


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1 having a municipal and industrial delivery priority 

2 under the repayment contract. 

3 (7) CAP SUBCONTRACTOR.—The term ‘‘CAP 

4 subcontractor’’ means an individual or entity that 

5 has entered into a long-term subcontract (as that 

6 term is used in the repayment stipulation) with the 

7 United States and the District for the delivery of 

8 water through the CAP system. 

9 (8) CAP SYSTEM.—The term ‘‘CAP system’’ 

10 means— 

11 (A) the Mark Wilmer Pumping Plant; 

12 (B) the Hayden-Rhodes Aqueduct; 

13 (C) the Fannin-McFarland Aqueduct; 

14 (D) the Tucson Aqueduct; 

15 (E) any pumping plant or appurtenant 

16 works of a feature described in any of subpara17 graphs (A) through (D); and 

18 (F) any extension of, addition to, or re19 placement for a feature described in any of sub20 paragraphs (A) through (E). 

21 (9) CAP WATER.—The term ‘‘CAP water’’ 

22 means ‘‘Project Water’’ (as that term is defined in 

23 the repayment stipulation). 

24 (10) CONTRACT.—The term ‘‘Contract’’ 

25 means— 


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1 (A) the contract between the Tribe and the 

2 United States attached as exhibit 7.1 to the 

3 Agreement and numbered 08–XX–30–W0529 

4 and dated øllll¿; and 

5 (B) any amendments to that contract. 

6 (11) DISTRICT.—The term ‘‘District’’ means 

7 the Central Arizona Water Conservation District, a 

8 political subdivision of the State that is the con9 tractor under the repayment contract. 

10 (12) ENFORCEABILITY DATE.—The term ‘‘en11 forceability date’’ means the date described in sec12 tion 12(c)(1). 

13 (13) INJURY TO WATER RIGHTS.— 

14 (A) IN GENERAL.—The term ‘‘injury to 

15 water rights’’ means an interference with, dimi16 nution of, or deprivation of, a water right under 

17 Federal, State, or other law. 

18 (B) INCLUSIONS.—The term ‘‘injury to 

19 water rights’’ includes— 

20 (i) a change in the groundwater table; 

21 and 

22 (ii) any effect of such a change. 

23 (C) EXCLUSION.—The term ‘‘injury to 

24 water rights’’ does not include any injury to 

25 water quality. 


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1 (14) OFF-RESERVATION TRUST LAND.—The 

2 term ‘‘off-reservation trust land’’ means land— 

3 (A) located outside the exterior boundaries 

4 of the reservation that is held in trust by the 

5 United States for the benefit of the Tribe as of 

6 the enforceability date; and 

7 (B) depicted on the map attached to the 

8 Agreement as exhibit 2.57. 

9 (15) OPERATING AGENCY.—The term ‘‘Oper10 ating Agency’’ means the 1 or more entities author11 ized to assume responsibility for the care, operation, 

12 maintenance, and replacement of the CAP system. 

13 (16) REPAYMENT CONTRACT.—The term ‘‘re14 payment contract’’ means— 

15 (A) the contract between the United States 

16 and the District for delivery of water and re17 payment of the costs of the CAP, numbered 

18 14–06–W–245 (Amendment No. 1), and dated 

19 December 1, 1988; and 

20 (B) any amendment to, or revision of, that 

21 contract. 

22 (17) REPAYMENT STIPULATION.—The term 

23 ‘‘repayment stipulation’’ means the stipulated judg24 ment and the stipulation for judgment (including 

25 any exhibits to those documents) entered on NovemVerDate Nov 24 2008 02:50 Jan 27, 2009 Jkt 079200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S313.IS S313

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1 ber 21, 2007, in the United States District Court 

2 for the District of Arizona in the consolidated civil 

3 action styled Central Arizona Water Conservation 

4 District v. United States, et al., and numbered CIV 

5 95–625–TUC–WDB (EHC) and CIV 95–1720– 

6 PHX–EHC. 

7 (18) RESERVATION.— 

8 (A) IN GENERAL.—The term ‘‘reservation’’ 

9 means the land within the exterior boundary of 

10 the White Mountain Indian Reservation estab11 lished by the Executive order dated November 

12 9, 1871, as modified by subsequent Executive 

13 orders and Acts of Congress— 

14 (i) known on the date of enactment of 

15 this Act as the ‘‘Fort Apache Reservation’’ 

16 pursuant to the Act of June 7, 1897 (30 

17 Stat. 62, chapter 3); and 

18 (ii) generally depicted on the map at19 tached to the Agreement as exhibit 2.81. 

20 (B) NO EFFECT ON DISPUTE OR AS ADMIS21 SION.—The depiction of the reservation de22 scribed in subparagraph (A)(ii) shall not— 

23 (i) be used to affect any dispute be24 tween the Tribe and the United States 


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1 concerning the legal boundary of the res2 ervation; and 

3 (ii) constitute an admission by the 

4 Tribe with regard to any dispute between 

5 the Tribe and the United States con6 cerning the legal boundary of the reserva7 tion. 

8 (19) SECRETARY.—The term ‘‘Secretary’’ 

9 means the Secretary of the Interior. 

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

11 State of Arizona. 

12 (21) TRIBAL CAP WATER.—The term ‘‘tribal 

13 CAP water’’ means the CAP water to which the 

14 Tribe is entitled pursuant to the Contract. 

15 (22) TRIBAL WATER RIGHTS.—The term ‘‘tribal 

16 water rights’’ means the water rights of the Tribe 

17 described in paragraph 4.0 of the Agreement. 

18 (23) TRIBE.—The term ‘‘Tribe’’ means the 

19 White Mountain Apache Tribe organized under sec20 tion 16 of the Act of June 18, 1934 (commonly 

21 known as the ‘‘Indian Reorganization Act’’) (25 

22 U.S.C. 476). 

23 (24) WATER RIGHT.—The term ‘‘water right’’ 

24 means any right in or to groundwater, surface 

25 water, or effluent under Federal, State, or other law. 


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1 (25) WMAT RURAL WATER SYSTEM.—The 

2 term ‘‘WMAT rural water system’’ means the mu3 nicipal, rural, and industrial water diversion, stor4 age, and delivery system described in section 7. 

5 (26) YEAR.—The term ‘‘year’’ means a cal6 endar year. 

7 SEC. 4. APPROVAL OF AGREEMENT. 

8 (a) APPROVAL.— 

9 (1) IN GENERAL.—Except to the extent that 

10 any provision of the Agreement conflicts with a pro11 vision of this Act, the Agreement is authorized, rati12 fied, and confirmed. 

13 (2) AMENDMENTS.—Any amendment to the 

14 Agreement is authorized, ratified, and confirmed, to 

15 the extent that such an amendment is executed to 

16 make the Agreement consistent with this Act. 

17 (b) EXECUTION OF AGREEMENT.—To the extent that 

18 the Agreement does not conflict with this Act, the Sec19 retary shall— 

20 (1) execute the Agreement (including signing 

21 any exhibit to the Agreement requiring the signature 

22 of the Secretary); and 

23 (2) execute any amendment to the Agreement 

24 necessary to make the Agreement consistent with 

25 this Act. 


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1 (c) NATIONAL ENVIRONMENTAL POLICY ACT.— 

2 (1) ENVIRONMENTAL COMPLIANCE.—In imple3 menting the Agreement, the Secretary shall prompt4 ly comply with all applicable requirements of— 

5 (A) the National Environmental Policy Act 

6 of 1969 (42 U.S.C. 4321 et seq.); 

7 (B) the Endangered Species Act of 1973 

8 (16 U.S.C. 1531 et seq.); 

9 (C) all other applicable Federal environ10 mental laws; and 

11 (D) all regulations promulgated under the 

12 laws described in subparagraphs (A) through 

13 (C). 

14 (2) EXECUTION OF AGREEMENT.— 

15 (A) IN GENERAL.—Execution of the Agree16 ment by the Secretary under this section shall 

17 not constitute a major Federal action under the 

18 National Environmental Policy Act of 1969 (42 

19 U.S.C. 4321 et seq.). 

20 (B) ENVIRONMENTAL COMPLIANCE.—The 

21 Secretary shall carry out all necessary environ22 mental compliance required by Federal law in 

23 implementing the Agreement. 

24 (3) LEAD AGENCY.—The Bureau shall serve as 

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1 mental compliance associated with the WMAT rural 

2 water system. 

3 SEC. 5. WATER RIGHTS. 

4 (a) RIGHTS HELD IN TRUST.—The tribal water 

5 rights shall be held in trust by the United States on behalf 

6 of Tribe. 

7 (b) REALLOCATION.— 

8 (1) IN GENERAL.—In accordance with this Act 

9 and the Agreement, the Secretary shall reallocate to 

10 the Tribe, and offer to enter into a contract with the 

11 Tribe for the delivery in accordance with this section 

12 of— 

13 (A) an annual entitlement to 23,782 acre14 feet per year of CAP water that has a non-In15 dian agricultural delivery priority (as defined in 

16 the Contract) in accordance with section 

17 104(a)(1)(A)(iii) of the Arizona Water Settle18 ments Act (Public Law 108–451; 118 Stat. 

19 3488), of which— 

20 (i) 3,750 acre-feet per year shall be 

21 firmed by the United States for the benefit 

22 of the Tribe for the 100-year period begin23 ning on January 1, 2008, with priority 

24 equivalent to CAP M&I priority water, in 


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1 accordance with section 105(b)(1)(B) of 

2 that Act (118 Stat. 3492); and 

3 (ii) 3,750 acre-feet per year shall be 

4 firmed by the State for the benefit of the 

5 Tribe for the 100-year period beginning on 

6 January 1, 2008, with priority equivalent 

7 to CAP M&I priority water, in accordance 

8 with section 105(b)(2)(B) of that Act (118 

9 Stat. 3492); and 

10 (B) an annual entitlement to 1,218 acre11 feet per year of the water— 

12 (i) acquired by the Secretary through 

13 the permanent relinquishment of the 

14 Harquahala Valley Irrigation District CAP 

15 subcontract entitlement in accordance with 

16 the contract numbered 3–07–30–W0290 

17 among the District, Harquahala Valley Ir18 rigation District, and the United States; 

19 and 

20 (ii) converted to CAP Indian Priority 

21 water (as defined in the Contract) pursu22 ant to the Fort McDowell Indian Commu23 nity Water Rights Settlement Act of 1990 

24 (Public Law 101–628; 104 Stat. 4480). 


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1 (2) AUTHORITY OF TRIBE.—Subject to approval 

2 by the Secretary under section 6(a)(1), the Tribe 

3 shall have the sole authority to lease, distribute, ex4 change, or allocate the tribal CAP water described 

5 in paragraph (1). 

6 (c) WATER SERVICE CAPITAL CHARGES.—The Tribe 

7 shall not be responsible for any water service capital 

8 charge for tribal CAP water. 

9 (d) ALLOCATION AND REPAYMENT.—For the pur10 pose of determining the allocation and repayment of costs 

11 of any stages of the CAP constructed after November 21, 

12 2007, the costs associated with the delivery of water de13 scribed in subsection (b), regardless of whether the water 

14 is delivered for use by the Tribe or in accordance with 

15 any assignment, exchange, lease, option to lease, or other 

16 agreement for the temporary disposition of water entered 

17 into by Tribe, shall be— 

18 (1) nonreimbursable; and 

19 (2) excluded from the repayment obligation of 

20 the District. 

21 (e) WATER CODE.—Not later than 18 months after 

22 the enforceability date, the Tribe shall enact a water code 

23 that— 

24 (1) governs the tribal water rights; and 

25 (2) includes, at a minimum— 


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1 (A) provisions requiring the measurement, 

2 calculation, and recording of all diversions and 

3 depletions of water on the reservation and on 

4 off-reservation trust land; 

5 (B) terms of a water conservation plan, in6 cluding objectives, conservation measures, and 

7 an implementation timeline; 

8 (C) provisions requiring the approval of 

9 the Tribe for the severance and transfer of 

10 rights to the use of water from historically irri11 gated land identified in paragraph 11.3.2.1 of 

12 the Agreement to diversions and depletions on 

13 other non-historically irrigated land not located 

14 on the watershed of the same water source; and 

15 (D) provisions requiring the authorization 

16 of the Tribe for all diversions of water on the 

17 reservation and on off-reservation trust land by 

18 any individual or entity other than the Tribe. 

19 SEC. 6. CONTRACT. 

20 (a) IN GENERAL.—The Secretary shall enter into the 

21 Contract, in accordance with the Agreement, to provide, 

22 among other things, that— 

23 (1) the Tribe, on approval of the Secretary, 

24 may— 


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1 (A) enter into contracts or options to lease, 

2 contracts to exchange, or options to exchange 

3 tribal CAP water in Maricopa, Pinal, Pima, and 

4 Yavapai Counties in the State providing for the 

5 temporary delivery to any individual or entity of 

6 any portion of the tribal CAP water, subject to 

7 the condition that— 

8 (i) the term of the contract or option 

9 to lease shall not be longer than 100 years; 

10 (ii) the contracts or options to ex11 change shall be for the term provided in 

12 the contract or option; and 

13 (iii) a lease or option to lease pro14 viding for the temporary delivery of tribal 

15 CAP water shall require the lessee to pay 

16 to the Operating Agency all CAP fixed 

17 OM&R charges and all CAP pumping en18 ergy charges (as defined in the repayment 

19 stipulation) associated with the leased 

20 water; and 

21 (B) renegotiate any lease at any time dur22 ing the term of the lease, subject to the condi23 tion that the term of the renegotiated lease 

24 shall not exceed 100 years; 


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1 (2) no portion of the tribal CAP water may be 

2 permanently alienated; 

3 (3)(A) the Tribe (and not the United States in 

4 any capacity) shall be entitled to all consideration 

5 due to the Tribe under any contract or option to 

6 lease or exchange tribal CAP water entered into by 

7 the Tribe; and 

8 (B) the United States (in any capacity) has no 

9 trust or other obligation to monitor, administer, or 

10 account for, in any manner— 

11 (i) any funds received by the Tribe as con12 sideration under a contract or option to lease or 

13 exchange tribal CAP water; or 

14 (ii) the expenditure of those funds; 

15 (4)(A) all tribal CAP water shall be delivered 

16 through the CAP system; and 

17 (B) if the delivery capacity of the CAP system 

18 is significantly reduced or anticipated to be signifi19 cantly reduced for an extended period of time, the 

20 Tribe shall have the same CAP delivery rights as a 

21 CAP contractor or CAP subcontractor that is al22 lowed to take delivery of water other than through 

23 the CAP system; 

24 (5) the Tribe may use tribal CAP water on or 

25 off the reservation for any purpose; 


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1 (6) as authorized by subsection (f)(2)(A) of sec2 tion 403 of the Colorado River Basin Project Act 

3 (43 U.S.C. 1543) and to the extent that funds are 

4 available in the Lower Colorado River Basin Devel5 opment Fund established by subsection (a) of that 

6 section, the United States shall pay to the Operating 

7 Agency the CAP fixed OM&R charges associated 

8 with the delivery of tribal CAP water (except in the 

9 case of tribal CAP water leased by any individual or 

10 entity); 

11 (7) the Secretary shall waive the right of the 

12 Secretary to capture all return flow from project ex13 change water flowing from the exterior boundary of 

14 the reservation; and 

15 (8) no CAP water service capital charge shall 

16 be due or payable for the tribal CAP water, regard17 less of whether the water is delivered for use by the 

18 Tribe or pursuant to a contract or option to lease 

19 or exchange tribal CAP water entered into by the 

20 Tribe. 

21 (b) REQUIREMENTS.—The Contract shall be— 

22 (1) for permanent service (within the meaning 

23 of section 5 of the Boulder Canyon Project Act (43 

24 U.S.C. 617d)); and 

25 (2) without limit as to term. 


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1 (c) RATIFICATION.— 

2 (1) IN GENERAL.—Except to the extent that 

3 any provision of the Contract conflicts with a provi4 sion of this Act, the Contract is authorized, ratified, 

5 and confirmed. 

6 (2) AMENDMENTS.—Any amendment to the 

7 Contract is authorized, ratified, and confirmed, to 

8 the extent that such an amendment is executed to 

9 make the Contract consistent with this Act. 

10 (d) EXECUTION OF CONTRACT.—To the extent that 

11 the Contract does not conflict with this Act, the Secretary 

12 shall execute the Contract. 

13 (e) PAYMENT OF CHARGES.—The Tribe, and any re14 cipient of tribal CAP water through a contract or option 

15 to lease or exchange, shall not be obligated to pay a water 

16 service capital charge or any other charge, payment, or 

17 fee for CAP water, except as provided in an applicable 

18 lease or exchange agreement. 

19 (f) PROHIBITIONS.— 

20 (1) USE OUTSIDE STATE.—No tribal CAP 

21 water may be leased, exchanged, forborne, or other22 wise transferred by the Tribe in any way for use di23 rectly or indirectly outside the State. 

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1 ment, no tribal water rights under this Act may be 

2 sold, leased, transferred, or used outside the bound3 aries of the reservation or off-reservation trust land 

4 other than pursuant to an exchange. 

5 (3) AGREEMENTS WITH ARIZONA WATER BANK6 ING AUTHORITY.—Nothing in this Act or the Agree7 ment limits the right of the Tribe to enter into an 

8 agreement with the Arizona Water Banking Author9 ity established by section 45–2421 of the Arizona 

10 Revised Statutes (or any successor entity), in ac11 cordance with State law. 

12 (g) LEASES.— 

13 (1) IN GENERAL.—To the extent the leases of 

14 tribal CAP Water by the Tribe to the District and 

15 to any of the cities, attached as exhibits to the 

16 Agreement, are not in conflict with the provisions of 

17 this Act— 

18 (A) those leases are authorized, ratified, 

19 and confirmed; and 

20 (B) the Secretary shall execute the leases. 

21 (2) AMENDMENTS.—To the extent that amend22 ments are executed to make the leases described in 

23 paragraph (1) consistent with this Act, those amend24 ments are authorized, ratified, and confirmed. 


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1 SEC. 7. AUTHORIZATION OF THE RURAL WATER SYSTEM. 

2 (a) IN GENERAL.—Subject to the availability of ap3 propriations, the Secretary, acting through the Bureau, 

4 shall plan, design, construct, operate, maintain, replace, 

5 and rehabilitate the WMAT rural water system as gen6 erally described in the project extension report dated Feb7 ruary 2007. 

8 (b) COMPONENTS.—The WMAT rural water system 

9 under subsection (a) shall consist of— 

10 (1) a dam and storage reservoir, pumping 

11 plant, and treatment facilities located along the 

12 North Fork White River near the community of 

13 Whiteriver; 

14 (2) pipelines extending from the water treat15 ment plants to existing water distribution systems 

16 serving the Whiteriver, Carrizo, and Cibecue areas, 

17 together with other communities along the pipeline; 

18 (3) connections to existing distribution facili19 ties, including public and private water systems in 

20 existence on the date of enactment of this Act; 

21 (4) appurtenant buildings and access roads; 

22 (5) electrical power transmission and distribu23 tion facilities necessary for services to rural water 

24 system facilities; 

25 (6) all property and property rights necessary 

26 for the facilities described in this subsection; and 


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1 (7) such other project components as the Sec2 retary determines to be appropriate to meet the 

3 water supply, economic, public health, and environ4 mental needs of the portions of the reservation 

5 served by the WMAT rural water system, including 

6 water storage tanks, water lines, and other facilities 

7 for the Tribe and the villages and towns on the res8 ervation. 

9 (c) SERVICE AREA.—The service area of the WMAT 

10 rural water system shall be as described in the Project 

11 Extension report dated February 2007. 

12 (d) CONSTRUCTION REQUIREMENTS.—The compo13 nents of the WMAT rural water system shall be planned 

14 and constructed to a size that is sufficient to meet the 

15 municipal, rural, and industrial water supply requirements 

16 of the WMAT rural water system service area during the 

17 period beginning on the date of enactment of this Act and 

18 ending not earlier than December 31, 2040. 

19 (e) TITLE.—Title to the WMAT rural water system 

20 shall be held in trust by the United States in its capacity 

21 as trustee for the Tribe. 

22 (f) TECHNICAL ASSISTANCE.—The Secretary shall 

23 provide such technical assistance as is necessary to enable 

24 the Tribe to plan, design, construct, operate, maintain, 


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1 and replace the WMAT rural water system, including op2 eration and management training. 

3 (g) APPLICABILITY OF ISDEAA.—Planning, design, 

4 construction, operation, maintenance, rehabilitation, and 

5 replacement of the WMAT rural water system on the res6 ervation shall be subject to the provisions (including regu7 lations) of the Indian Self-Determination and Education 

8 Assistance Act (25 U.S.C. 450 et seq.). 

9 (h) CONDITION.—As a condition of construction of 

10 the facilities authorized by this section, the Tribe shall 

11 provide, at no cost to the Secretary, all land or interests 

12 in land, as appropriate, that the Secretary identifies as 

13 being necessary for those facilities. 

14 SEC. 8. OUTDOOR RECREATION FACILITIES, NATIONAL 

15 FISH HATCHERIES, AND EXISTING IRRIGA16 TION SYSTEMS. 

17 (a) IN GENERAL.—Subject to the availability of ap18 propriations, on request of the Tribe, the Secretary shall 

19 provide financial and technical assistance to complete the 

20 Hawley Lake, Horseshoe Lake, Reservation Lake, Sunrise 

21 Lake, and Big and Little Bear Lake reconstruction 

22 projects and facilities improvements, as generally de23 scribed in the Bureau report entitled ‘‘White Mountain 

24 Apache Tribe Recreation Planning Study—April 2003’’. 


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1 (b) ALCHESAY WILLIAMS CREEK NATIONAL FISH

2 HATCHERY COMPLEX.— 

3 (1) IN GENERAL.—Subject to the availability of 

4 appropriations, the Secretary shall operate, main5 tain, rehabilitate, and upgrade the Alchesay-Wil6 liams Creek National Fish Hatchery Complex on the 

7 reservation for the continued general and primary 

8 benefit of the Tribe and the White Mountain region. 

9 (2) COMPLEX REHABILITATION.—The rehabili10 tation of, and upgrades to, the complex described in 

11 paragraph (1) shall include— 

12 (A) raceway construction and rehabilita13 tion, water quality improvements, a water recir14 culation system, supplemental water treatment 

15 capability, equipment acquisition, and building 

16 rehabilitation; and 

17 (B) capital improvement and deferred 

18 maintenance facility needs identified in the re19 ports of the United States Fish and Wildlife 

20 Service entitled ‘‘Facilities Needs Assessment’’ 

21 and ‘‘Merrick Report’’ and dated September 

22 2000, as updated through 2008. 

23 (c) TRIBE FISHERY CENTER.—Subject to the avail24 ability of appropriations, the Secretary shall plan, design, 

25 construct, operate, maintain, rehabilitate, and replace a 


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1 fish grow-out facility, to be known as the ‘‘WMAT Fishery 

2 Center’’, on the west side of the reservation for the benefit 

3 of the Tribe, consisting of— 

4 (1) a 10,000 square foot indoor facility; 

5 (2) circular fiberglass tanks; 

6 (3) plumbing and required equipment; 

7 (4) collection and conveyance water systems; 

8 and 

9 (5) raceways and ponds. 

10 (d) SUNRISE SKI PARK SNOW-MAKING INFRASTRUC11 TURE.—Subject to the availability of appropriations, the 

12 Secretary shall plan, design, and construct snow-making 

13 capacity and infrastructure for Sunrise Ski Park, con14 sisting of— 

15 (1) enlargement of Ono Lake; 

16 (2) replacement of snow-making infrastructure, 

17 as necessary; and 

18 (3) expansion of snow-making infrastructure 

19 and capacity to all ski runs on Sunrise Peak, Apache 

20 Peak, and Cyclone Peak. 

21 (e) EXISTING IRRIGATION SYSTEM REHABILITA22 TION.—Subject to the availability of appropriations, the 

23 Secretary shall operate, maintain, rehabilitate, and up24 grade the Canyon Day and other historic irrigation sysVerDate Nov 24 2008 02:50 Jan 27, 2009 Jkt 079200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\S313.IS S313

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1 tems on the reservation for the continued general and pri2 mary benefit of the Tribe. 

3 (f) APPLICABILITY OF ISDEAA.—Planning, design, 

4 construction, operation, maintenance, rehabilitation, re5 placement, and upgrade of the projects identified in this 

6 section shall be subject to the provisions (including regula7 tions) of the Indian Self-Determination and Education As8 sistance Act (25 U.S.C. 450 et seq.). 

9 SEC. 9. FEASIBILITY STUDY OF NEEDED FOREST PROD10 UCTS IMPROVEMENTS. 

11 (a) FEASIBILITY STUDY.—Subject to the availability 

12 of appropriations and pursuant to the provisions (includ13 ing regulations) of the Indian Self-Determination and 

14 Education Assistance Act (25 U.S.C. 450 et seq.), on re15 ceipt of a request by the Tribe, the Secretary shall conduct 

16 a feasibility study of options for— 

17 (1) improving the manufacture and use of tim18 ber products derived from commercial forests on the 

19 reservation; and 

20 (2) improving forest management practices, 

21 consistent with sustained yield principles for multi22 purpose forest uses, healthy forest initiatives, and 

23 other applicable law to supply raw materials for fu24 ture manufacture and use. 


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1 (b) REPORT.—Not later than 2 years after the date 

2 of enactment of this Act, the Secretary, with concurrence 

3 of the tribal council of the Tribe, shall submit to Congress 

4 a report describing the results of the feasibility study 

5 under subsection (a), including recommendations of the 

6 Secretary, if any, for the improvements described in that 

7 subsection. 

8 (c) IMPLEMENTATION.—Subject to the availability of 

9 appropriations, the Secretary shall plan, design, and con10 struct the improvements recommended under subsection 

11 (b). 

12 SEC. 10. RECREATION IMPOUNDMENTS AND RELATED FA13 CILITIES. 

14 Subject to the availability of appropriations, on re15 ceipt of a request by the Tribe and pursuant to the provi16 sions (including regulations) of the Indian Self-Deter17 mination and Education Assistance Act (25 U.S.C. 450 

18 et seq.), the Secretary shall— 

19 (1) conduct a feasibility study of recreation im20 poundments throughout the reservation; 

21 (2) develop recommendations for the implemen22 tation, by not later than 1 year after the date of en23 actment of this Act, of feasible recreation impound24 ments; and 


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1 (3) plan, design, and construct any rec2 ommended recreation impoundments and related 

3 recreation facilities. 

4 SEC. 11. SATISFACTION OF CLAIMS. 

5 (a) IN GENERAL.—The benefits realized by the Tribe 

6 and its members under this Act shall be in full satisfaction 

7 of all claims of the Tribe and its members for water rights 

8 and injury to water rights, except as set forth in the 

9 Agreement, under Federal, State, or other law with re10 spect to the reservation and off-reservation trust land. 

11 (b) USES OF WATER.—All uses of water on lands 

12 outside of the reservation, if and when such lands are sub13 sequently and finally determined to be part of the reserva14 tion through resolution of any dispute between the Tribe 

15 and the United States over the location of the reservation 

16 boundary, and any fee lands within the reservation put 

17 into trust and made part of the reservation, shall be sub18 ject to the maximum annual diversion amounts and the 

19 maximum annual depletion amounts specified in the 

20 Agreement. 

21 (c) NO RECOGNITION OF WATER RIGHTS.—Notwith22 standing subsection (a), nothing in this Act has the effect 

23 of recognizing or establishing any right of a member of 

24 the Tribe to water on the reservation. 


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1 SEC. 12. WAIVER AND RELEASE OF CLAIMS. 

2 (a) IN GENERAL.—– 

3 (1) CLAIMS AGAINST THE STATE AND OTH4 ERS.—–Except as provided in subparagraph 12.6 of 

5 the Agreement, the Tribe, on behalf of itself and its 

6 members, and the United States, acting in its capac7 ity of trustee for the Tribe and its members as part 

8 of the performance of their obligations under the 

9 Agreement, are authorized to execute a waiver and 

10 release of any claims against the State (or any agen11 cy or political subdivision of the State), or any other 

12 person, entity, corporation, or municipal corporation 

13 under Federal, State, or other law for all— 

14 (A)(i) past, present, and future claims for 

15 water rights for the reservation and off-reserva16 tion trust land arising from time immemorial 

17 and, thereafter, forever; and 

18 (ii) past, present, and future claims for 

19 water rights arising from time immemorial and, 

20 thereafter, forever, that are based upon aborigi21 nal occupancy of land by the Tribe, its mem22 bers, or their predecessors; 

23 (B)(i) past and present claims for injury to 

24 water rights for the reservation and off-reserva25 tion trust land arising from time immemorial 

26 through the enforceability date; 


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1 (ii) past, present, and future claims for in2 jury to water rights arising from time immemo3 rial and, thereafter, forever, that are based 

4 upon aboriginal occupancy of land by the Tribe 

5 and its members, or their predecessors; and 

6 (iii) claims for injury to water rights aris7 ing after the enforceability date for the reserva8 tion and off-reservation trust land resulting 

9 from off-reservation diversion or use of water in 

10 a manner not in violation of the Agreement or 

11 State law; and 

12 (C) past, present, and future claims aris13 ing out of or relating in any manner to the ne14 gotiation or execution of the Agreement or the 

15 negotiation or enactment of this Act. 

16 (2) CLAIMS AGAINST TRIBE.—Except as pro17 vided in subparagraph 12.8 of the Agreement, the 

18 United States, in all its capacities (except as trustee 

19 for an Indian tribe other than the Tribe), as part of 

20 the performance of its obligations under the Agree21 ment, is authorized to execute a waiver and release 

22 of any and all claims against the Tribe, its members, 

23 or any agency, official, or employee of the Tribe, 

24 under Federal, State, or any other law for all— 


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1 (A) past and present claims for injury to 

2 water rights resulting from the diversion or use 

3 of water on the reservation and on off-reserva4 tion trust land arising from time immemorial 

5 through the enforceability date; 

6 (B) claims for injury to water rights aris7 ing after the enforceability date resulting from 

8 the diversion or use of water on the reservation 

9 and on off-reservation trust land in a manner 

10 not in violation of the Agreement; and 

11 (C) past, present, and future claims aris12 ing out of or related in any manner to the nego13 tiation or execution of the Agreement or the ne14 gotiation or enactment of this Act. 

15 (3) CLAIMS AGAINST THE UNITED STATES.— 

16 Except as provided in subparagraph 12.7 of the 

17 Agreement, the Tribe, on behalf of itself and its 

18 members, as part of the performance of its obliga19 tions under the Agreement, is authorized to execute 

20 a waiver and release of any claim against the United 

21 States, including agencies, officials, or employees 

22 thereof (except in the United States capacity as 

23 trustee for other tribes), under Federal, State, or 

24 other law for any and all— 


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1 (A)(i) past, present, and future claims for 

2 water rights for the reservation and off-reserva3 tion trust land arising from time immemorial 

4 and, thereafter, forever; and 

5 (ii) past, present, and future claims for 

6 water rights arising from time immemorial and, 

7 thereafter, forever, that are based on aboriginal 

8 occupancy of land by the Tribe and its mem9 bers, or their predecessors; 

10 (B)(i) past and present claims relating in 

11 any manner to damages, losses, or injuries to 

12 water, water rights, land, or other resources 

13 due to loss of water or water rights (including 

14 but not limited to damages, losses or injuries to 

15 hunting, fishing, gathering, or cultural rights 

16 due to loss of water or water rights; claims re17 lating to interference with, diversion or taking 

18 of water; or claims relating to failure to protect, 

19 acquire, or develop water, water rights or water 

20 infrastructure) within the reservation and off21 reservation trust land that first accrued at any 

22 time prior to the enforceability date; 

23 (ii) past, present, and future claims for in24 jury to water rights arising from time immemo25 rial and, thereafter, forever, that are based on 


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1 aboriginal occupancy of land by the Tribe and 

2 its members, or their predecessors; and 

3 (iii) claims for injury to water rights aris4 ing after the enforceability date for the reserva5 tion and off-reservation trust land resulting 

6 from the off-reservation diversion or use of 

7 water in a manner not in violation of the Agree8 ment or applicable law; 

9 (C) past, present, and future claims aris10 ing out of or relating in any manner to the ne11 gotiation, execution, or adoption of the Agree12 ment, an applicable settlement judgment or de13 cree, or this Act; 

14 (D) past and present claims relating in any 

15 manner to pending litigation of claims relating 

16 to the Tribe’s water rights for the reservation 

17 and off-reservation trust land; 

18 (E) past and present claims relating to the 

19 operation, maintenance, and replacement of ex20 isting irrigation systems on the reservation con21 structed prior to the enforceability date that 

22 first accrued at any time prior to the enforce23 ability date, which waiver shall only become ef24 fective upon the full appropriation and payment 


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1 of such funds authorized by section 16(c)(4) to 

2 the Tribe; 

3 (F) future claims relating to operation, 

4 maintenance, and replacement of the WMAT 

5 rural water system, which waiver shall only be6 come effective upon the full appropriation of 

7 funds authorized by section 16(b) and their de8 posit into the Rural Water System OM&R 

9 Fund; and 

10 (G) past, present, and future breach of 

11 trust and negligence claims for damage to the 

12 natural resources of the Tribe caused by ripar13 ian and other vegetative manipulation, includ14 ing over-cutting of forest resources by the 

15 United States for the purpose of increasing 

16 water runoff from the reservation. 

17 (4) NO WAIVER OF CLAIMS.—Nothing in this 

18 subsection waives any claim of the Tribe against the 

19 United States for future takings by the United 

20 States of reservation land or off-reservation trust 

21 land or property rights appurtenant to those lands, 

22 including any water rights set forth in paragraph 

23 4.0 of the Agreement. 

24 (b) EFFECTIVENESS OF WAIVER AND RELEASES.— 

25 Except where otherwise specifically provided in subparaVerDate Nov 24 2008 02:50 Jan 27, 2009 Jkt 079200 PO 00000 Frm 00035 Fmt 6652 Sfmt 6201 E:\BILLS\S313.IS S313

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1 graphs (E) and (F) of subsection (a)(3), the waivers and 

2 releases under subsection (a) shall become effective on the 

3 enforceability date. 

4 (c) ENFORCEABILITY DATE.— 

5 (1) IN GENERAL.—This section takes effect on 

6 the date on which the Secretary publishes in the 

7 Federal Register a statement of findings that— 

8 (A) to the extent the Agreement conflicts 

9 with this Act, the Agreement has been revised 

10 through an amendment to eliminate the conflict 

11 and the Agreement, so revised, has been exe12 cuted by the Secretary, the Tribe and the Gov13 ernor of the State; 

14 (B) the Secretary has fulfilled the require15 ments of sections 5 and 6; 

16 (C)(i) the funds authorized in sections 13 

17 and 16(a), have been appropriated and depos18 ited in the Rural Water System Construction 

19 Fund; and 

20 (ii) if applicable, the funds described in 

21 section 16(i) have been deposited in the Rural 

22 Water System Construction Fund; 

23 (D) the State funds described in subpara24 graph 13.3 of the Agreement have been deposVerDate Nov 24 2008 02:50 Jan 27, 2009 Jkt 079200 PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 E:\BILLS\S313.IS S313

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1 ited in the Rural Water System Construction 

2 Fund; 

3 (E) the Secretary has issued a record of 

4 decision approving the construction of the 

5 WMAT rural water system in a configuration 

6 substantially similar to that described in section 

7 7; and 

8 (F) the judgments and decrees substan9 tially in the form of those attached to the 

10 Agreement as exhibits 12.9.6.1 and 12.9.6.2 

11 have been approved by the respective trial 

12 courts. 

13 (2) FAILURE OF ENFORCEABILITY DATE TO

14 OCCUR.—If, because of the failure of the enforce15 ability date to occur by October 31, 2013, this sec16 tion does not become effective, the Tribe and its 

17 members, and the United States, acting in the ca18 pacity of trustee for the Tribe and its members, 

19 shall retain the right to assert past, present, and fu20 ture water rights claims and claims for injury to 

21 water rights for the reservation and off-reservation 

22 trust land. 

23 (3) NO RIGHTS TO WATER.—Upon the occur24 rence of the enforceability date, all land held by the 

25 United States in trust for the Tribe and its members 


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1 shall have no rights to water other than those spe2 cifically quantified for the Tribe and the United 

3 States, acting in the capacity of trustee for the 

4 Tribe and its members for the reservation and off5 reservation trust land pursuant to paragraph 4.0 of 

6 the Agreement. 

7 (d) UNITED STATES ENFORCEMENT AUTHORITY.— 

8 Nothing in this Act or the Agreement affects any right 

9 of the United States to take any action, including environ10 mental actions, under any laws (including regulations and 

11 the common law) relating to human health, safety, or the 

12 environment. 

13 SEC. 13. USE OF LOWER COLORADO RIVER BASIN DEVEL14 OPMENT FUND. 

15 (a) USE OF AMOUNTS.— 

16 (1) IN GENERAL.—Subject to paragraph (2), up 

17 to $100,000,000 of amounts in the Lower Colorado 

18 River Basin Development Fund made available 

19 under section 403(f)(2)(D)(vi) of the Colorado River 

20 Basin Project Act (43 U.S.C. 1543(f)(2)(D)(vi)) 

21 may be used, without further appropriation, for the 

22 planning, engineering, design, and construction of 

23 the WMAT rural water system. 

24 (2) REQUIREMENT.—If a loan is made to the 

25 Tribe pursuant to the White Mountain Apache Tribe 


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1 Rural Water System Loan Authorization Act (Public 

2 Law 110–390; 122 Stat. 4191), the Tribe shall use 

3 such amounts made available under paragraph (1) 

4 as are necessary to repay that loan. 

5 (b) OFFSET.—To the extent necessary, the Secretary 

6 shall offset amounts expended pursuant to subsection (a) 

7 using such additional amounts as may be made available 

8 to the Secretary for the applicable fiscal year. 

9 SEC. 14. TRUST FUNDS. 

10 (a) ESTABLISHMENT.—There is established in the 

11 Treasury of the United States— 

12 (1) a fund to be known as the ‘‘Rural Water 

13 System Construction Fund’’, consisting of— 

14 (A) the funds made available under section 

15 13; 

16 (B) the amounts appropriated to the fund 

17 pursuant to subsections (a) and (i) of section 

18 16, as applicable; and 

19 (C) the funds provided in subparagraph 

20 13.3 of the Agreement; and 

21 (2) a fund to be known as the ‘‘Rural Water 

22 System OM&R Fund’’, consisting of amounts appro23 priated to the fund pursuant to section 16(b). 


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1 (b) MANAGEMENT.—The Secretary shall manage the 

2 Rural Water System Construction Fund and the Rural 

3 Water System OM&R Fund, including by— 

4 (1) making investments from the funds; and 

5 (2) distributing amounts from the funds to the 

6 Tribe, in accordance with the American Indian 

7 Trust Fund Management Reform Act of 1994 (25 

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

9 (c) INVESTMENT OF FUNDS.—The Secretary shall in10 vest amounts in the funds in accordance with— 

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

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

13 1938 (25 U.S.C. 162a); 

14 (3) subsection (b); 

15 (4) the obligations of Federal corporations and 

16 Federal Government-sponsored entities the charter 

17 documents of which provide that the obligations of 

18 the entities are lawful investments for federally man19 aged funds, including— 

20 (A) the obligations of the United States 

21 Postal Service described in section 2005 of title 

22 39, United States Code; 

23 (B) bonds and other obligations of the 

24 Tennessee Valley Authority described in section 


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1 15d of the Tennessee Valley Authority Act of 

2 1933 (16 U.S.C. 831n–4); 

3 (C) mortgages, obligations, and other secu4 rities of the Federal Home Loan Mortgage Cor5 poration described in section 303 of the Federal 

6 Home Loan Mortgage Corporation Act (12 

7 U.S.C. 1452); and 

8 (D) bonds, notes, and debentures of the 

9 Commodity Credit Corporation described in sec10 tion 4 of the Act of March 8, 1938 (15 U.S.C. 

11 713a–4); and 

12 (5) the obligations referred to in section 201 of 

13 the Social Security Act (42 U.S.C. 401). 

14 (d) EXPENDITURES AND WITHDRAWALS.— 

15 (1) TRIBAL MANAGEMENT PLANS.— 

16 (A) IN GENERAL.—The Tribe may with17 draw any portion of the Rural Water System 

18 Construction Fund or the Rural Water System 

19 OM&R Fund on approval by the Secretary of a 

20 tribal management plan under the American In21 dian Trust Fund Management Reform Act of 

22 1994 (25 U.S.C. 4001 et seq.). 

23 (B) REQUIREMENTS.—In addition to the 

24 requirements under that Act (25 U.S.C. 4001 


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1 et seq.), the tribal management plan shall re2 quire that the Tribe shall— 

3 (i) use amounts in the Rural Water 

4 System Construction Fund only for the 

5 planning, design, and construction of the 

6 rural water system, including such sums as 

7 are necessary— 

8 (I) for the Bureau to carry out 

9 oversight of the planning, design, and 

10 construction of the rural water sys11 tem; and 

12 (II) to carry out all required en13 vironmental compliance activities asso14 ciated with the planning, design, and 

15 construction of the rural water sys16 tem; and 

17 (ii) use amounts in the Rural Water 

18 System OM&R Fund only for the oper19 ation, maintenance, and replacement costs 

20 associated with the delivery of water 

21 through the rural water system. 

22 (2) ENFORCEMENT.—The Secretary may pur23 sue such judicial remedies and carry out such ad24 ministrative actions as are necessary to enforce the 

25 tribal management plan to ensure that amounts in 


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1 the Rural Water System Construction Fund and the 

2 Rural Water System OM&R Fund are used in ac3 cordance with this section. 

4 (3) LIABILITY.—On withdrawal by the Tribe of 

5 amounts in the Rural Water System Construction 

6 Fund or the Rural Water System OM&R Fund, the 

7 Secretary and the Secretary of the Treasury shall 

8 not retain liability for the expenditure or investment 

9 of those amounts. 

10 (4) EXPENDITURE PLAN.— 

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

12 to the Secretary for approval an expenditure 

13 plan for any portion of the amounts in the 

14 funds under this section that the Tribe does not 

15 withdraw pursuant to this subsection. 

16 (B) DESCRIPTION.—The expenditure plan 

17 shall describe the manner in which, and the 

18 purposes for which, the amounts remaining in 

19 the funds will be used. 

20 (C) APPROVAL.—The Secretary shall ap21 prove an expenditure plan under this paragraph 

22 if the Secretary determines that the plan is— 

23 (i) reasonable; and 

24 (ii) consistent with this Act. 


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1 (5) ANNUAL REPORTS.—The Tribe shall submit 

2 to the Secretary an annual report that describes 

3 each expenditure from the Rural Water System Con4 struction Fund and the Rural Water System OM&R 

5 Fund during the year covered by the report. 

6 (e) PROHIBITION ON PER CAPITA DISTRIBUTIONS.— 

7 No amount of the principal, or the interest or income ac8 cruing on the principal, of the Rural Water System Con9 struction Fund or the Rural Water System OM&R Fund 

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

11 capita basis. 

12 (f) FUNDS NOT AVAILABLE UNTIL ENFORCEABILITY

13 DATE.—Amounts in the Rural Water System Construc14 tion Fund and the Rural Water System OM&R Fund shall 

15 not be available for expenditure or withdrawal by the 

16 Tribe until the enforceability date. 

17 SEC. 15. MISCELLANEOUS PROVISIONS. 

18 (a) LIMITED WAIVER OF SOVEREIGN IMMUNITY.— 

19 (1) IN GENERAL.—In the case of a civil action 

20 described in paragraph (2)— 

21 (A) the United States or the Tribe, or 

22 both, may be joined in the civil action; and 

23 (B) any claim by the United States or the 

24 Tribe to sovereign immunity from the civil ac25 tion is waived for the sole purpose of resolving 


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1 any issue regarding the interpretation or en2 forcement of this Act or the Agreement. 

3 (2) DESCRIPTION OF CIVIL ACTION.—A civil ac4 tion referred to in paragraph (1) is a civil action 

5 filed— 

6 (A) by any party to the Agreement or sig7 natory to an exhibit to the Agreement in a 

8 United States or State court that— 

9 (i) relates solely and directly to the in10 terpretation or enforcement of this Act or 

11 the Agreement; and 

12 (ii) names as a party the United 

13 States or the Tribe; or 

14 (B) by a landowner or water user in the 

15 Gila River basin or Little Colorado River basin 

16 in the State that— 

17 (i) relates solely and directly to the in18 terpretation or enforcement of paragraph 

19 12.0 of the Agreement; and 

20 (ii) names as a party the United 

21 States or the Tribe. 

22 (b) EFFECT OF ACT.—Nothing in this Act quantifies 

23 or otherwise affects any water right or claim or entitle24 ment to water of any Indian tribe, band, or community 

25 other than the Tribe. 


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1 (c) LIMITATION ON LIABILITY OF UNITED

2 STATES.— 

3 (1) IN GENERAL.—The United States shall 

4 have no trust or other obligation— 

5 (A) to monitor, administer, or account for, 

6 in any manner, any amount paid to the Tribe 

7 by any party to the Agreement other than the 

8 United States; or 

9 (B) to review or approve the expenditure of 

10 those funds. 

11 (2) INDEMNIFICATION.—The Tribe shall indem12 nify the United States, and hold the United States 

13 harmless, with respect to any claim (including claims 

14 for takings or breach of trust) arising out of the re15 ceipt or expenditure of funds described in paragraph 

16 (1)(A). 

17 (d) APPLICABILITY OF RECLAMATION REFORM

18 ACT.—The Reclamation Reform Act of 1982 (43 U.S.C. 

19 390aa et seq.) and any other acreage limitation or full20 cost pricing provision under Federal law shall not apply 

21 to any individual, entity, or land solely on the basis of— 

22 (1) receipt of any benefit under this Act; 

23 (2) the execution of this Act; or 

24 (3) the use, storage, delivery, lease, or exchange 

25 of CAP water. 


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1 (e) TREATMENT OF TRIBAL WATER RIGHTS.—The 

2 tribal water rights— 

3 (1) shall be held in trust by the United States 

4 in perpetuity; and 

5 (2) shall not be subject to forfeiture or aban6 donment. 

7 (f) SECRETARIAL POWER SITES.—The portions of 

8 the following named secretarial power site reserves that 

9 are located on the reservation shall be transferred and re10 stored into the name of the Tribe: 

11 (1) Lower Black River (T. 3 N., R. 26 E.; T. 

12 3 N., R. 27 E.). 

13 (2) Black River Pumps (T. 2 N., R. 25 E.; T. 

14 2 N., R. 26 E.; T. 3 N., R. 26 E.). 

15 (3) Carrizo (T. 4 N., R. 20 E.; T. 4 N., R. 21 

E.; T. 41⁄2 N., R. 19 E.; T. 41 16 ⁄2 N., R. 20 E.; T. 

41 17 ⁄2 N., R. 21 E.; T. 5 N., R. 19 E.). 

18 (4) Knob (T. 5 N., R. 18 E.; T. 5 N., R. 19 

19 E.). 

20 (5) Walnut Canyon (T. 5 N., R. 17 E.; T. 5 N., 

21 R. 18 E.). 

(6) Gleason Flat (T. 41 22 ⁄2 N., R. 16 E.; T. 5 N., 

23 R. 16 E.). 

24 (g) NO EFFECT ON FUTURE ALLOCATIONS.—Water 

25 received under a lease or exchange of tribal CAP water 


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1 under this Act shall not affect any future allocation or 

2 reallocation of CAP water by the Secretary. 

3 (h) AFTER-ACQUIRED TRUST LANDS.— 

4 (1) REQUIREMENT OF ACT OF CONGRESS.— 

5 (A) LEGAL TITLE.—After the enforce6 ability date, if the Tribe seeks to have legal title 

7 to additional land in the State of Arizona lo8 cated outside the exterior boundaries of the res9 ervation taken into trust by the United States 

10 for its benefit, the Tribe may do so only pursu11 ant to an Act of Congress specifically author12 izing the transfer for the benefit of the Tribe. 

13 (B) EXCEPTIONS.—Subparagraph (A) 

14 shall not apply to— 

15 (i) restoration of land to the reserva16 tion subsequently and finally determined to 

17 be part of the reservation through resolu18 tion of any dispute between the Tribe and 

19 the United States over the location of the 

20 reservation boundary unless required by 

21 Federal law; or 

22 (ii) off-reservation trust land acquired 

23 prior to January 1, 2008. 

24 (2) WATER RIGHTS.— 


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1 (A) IN GENERAL.—Under this section, 

2 after-acquired trust land outside the reservation 

3 shall not include federally reserved rights to 

4 surface water or groundwater. 

5 (B) RESTORED LAND.—Land restored to 

6 the reservation as the result of resolution of any 

7 reservation boundary dispute between the Tribe 

8 and the United States, or any fee simple land 

9 within the reservation that are placed into 

10 trust, shall have water rights pursuant to sec11 tion 11(b). 

12 (3) ACCEPTANCE OF LAND IN TRUST STATUS.— 

13 (A) IN GENERAL.—If the Tribe acquires 

14 legal fee title to land that is located within the 

15 exterior boundaries of the reservation, the Sec16 retary shall accept the land in trust status for 

17 the benefit of the Tribe in accordance with ap18 plicable Federal law (including regulations) for 

19 such real estate acquisitions. 

20 (B) RESERVATION STATUS.—Land taken 

21 or held in trust by the Secretary under para22 graph (3), or restored to the reservation as a 

23 result of resolution of a boundary dispute be24 tween the Tribe and the United States, shall be 

25 deemed to be part of the reservation. 


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1 SEC. 16. AUTHORIZATION OF APPROPRIATIONS. 

2 (a) RURAL WATER SYSTEM.— 

3 (1) PLANNING, ENGINEERING, DESIGN, AND

4 CONSTRUCTION.— 

5 (A) IN GENERAL.—There is authorized to 

6 be appropriated for the planning, engineering, 

7 design, and construction of the WMAT rural 

8 water system $126,193,000, as adjusted in ac9 cordance with subparagraph (B), less— 

10 (i) the amount of funding applied to11 ward the planning, engineering, design, 

12 and construction of the WMAT rural water 

13 system under section 13; and 

14 (ii) the funds to be provided under 

15 subparagraph 13.3 of the Agreement. 

16 (B) ADJUSTMENTS AND INCLUSIONS.— 

17 The amount authorized to be appropriated 

18 under subparagraph (A) shall— 

19 (i) be adjusted as may be required 

20 due to changes in construction costs of the 

21 rural water system, as indicated by engi22 neering cost indices applicable to the types 

23 of planning, engineering, design, and con24 struction occurring after October 1, 2007; 

25 and 


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1 (ii) include such sums as are nec2 essary for the Bureau to carry out over3 sight of activities for planning, design, and 

4 construction of the rural water system. 

5 (2) ENVIRONMENTAL COMPLIANCE.—There are 

6 authorized to be appropriated to the Secretary such 

7 sums as are necessary to carry out all required Fed8 eral environmental compliance activities associated 

9 with the planning, engineering, design, and construc10 tion of the rural water system. 

11 (b) RURAL WATER SYSTEM OM&R.—There is au12 thorized to be appropriated $50,000,000 for the operation, 

13 maintenance, and replacement costs of the rural water 

14 system. 

15 (c) REHABILITATION OF RECREATION FACILITIES, 

16 NATIONAL FISH HATCHERIES, AND EXISTING IRRIGA17 TION SYSTEMS.—There are authorized to be appropriated, 

18 for use in accordance with section 8— 

19 (1) $23,675,000 to complete the Hawley Lake, 

20 Horseshoe Lake, Reservation Lake, Sunrise Lake, 

21 and Big and Little Bear Lake reconstruction 

22 projects and facilities improvements; 

23 (2) $7,472,000 to the United States Fish and 

24 Wildlife Service for the rehabilitation and improveVerDate Nov 24 2008 02:50 Jan 27, 2009 Jkt 079200 PO 00000 Frm 00051 Fmt 6652 Sfmt 6201 E:\BILLS\S313.IS S313

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1 ment of the Alchesay-Williams Creek National Fish 

2 Hatchery Complex; 

3 (3) $5,000,000 to the Bureau of Indian Affairs 

4 for the planning, design, and construction of the 

5 WMAT Fishery Center; and 

6 (4) for the rehabilitation of existing irrigation 

7 systems— 

8 (A) $950,000 for the Canyon Day irriga9 tion system; and 

10 (B) $4,000,000 for the Historic irrigation 

11 system. 

12 (d) FEASIBILITY STUDY OF NEEDED FOREST PROD13 UCTS IMPROVEMENTS.—There are authorized to be appro14 priated— 

15 (1) to the Bureau of Indian Affairs $1,000,000 

16 to conduct a feasibility study of the rehabilitation 

17 and improvement of forest products manufacturing 

18 and forest management on the reservation in accord19 ance with section 9; and 

20 (2) $24,000,000 to implement the recommenda21 tions developed under the study. 

22 (e) SUNRISE SKI PARK SNOW-MAKING INFRASTRUC23 TURE.—There is authorized to be appropriated 

24 $25,000,000 for the planning, design, and construction of 


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1 snow-making infrastructure, repairs, and expansion at 

2 Sunrise Ski Park in accordance with section 8. 

3 (f) RECREATION IMPOUNDMENTS AND RELATED FA4 CILITIES.—There is authorized to be appropriated 

5 $25,000,000 to carry out section 10. 

6 (g) ENVIRONMENTAL COMPLIANCE.—There are au7 thorized to be appropriated to the Secretary such sums 

8 as are necessary to carry out all required environmental 

9 compliance activities associated with the Agreement and 

10 this Act. 

11 (h) COST INDEXING.—The amounts authorized to be 

12 appropriated under this section shall be adjusted as appro13 priate, based on ordinary fluctuations in engineering cost 

14 indices applicable for the relevant types of construction, 

15 if any, during the period beginning on October 1, 2007, 

16 and ending on the date on which the amounts are made 

17 available. 

18 (i) EMERGENCY FUND FOR INDIAN SAFETY AND

19 HEALTH.—Effective beginning on January 1, 2010, if the 

20 Secretary determines that, on an annual basis, the dead21 line described in section 12(c)(2) is not likely to be met 

22 because the funds authorized in sections 13 and 16(a) 

23 have not been appropriated and deposited in the Rural 

24 Water System Construction Fund, not more than 

25 $100,000,000 of the amounts in the Emergency Fund for 


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1 Indian Safety and Health established by section 601(a) 

2 of the Tom Lantos and Henry J. Hyde United States 

3 Global Leadership Against HIV/AIDS, Tuberculosis, and 

4 Malaria Reauthorization Act of 2008 (22 U.S.C. 7601 et 

5 seq.) shall be transferred to the Rural Water System Con6 struction Fund, as necessary to complete the WMAT rural 

7 water system project. 

8 SEC. 17. ANTIDEFICIENCY. 

9 The United States shall not be liable for failure to 

10 carry out any obligation or activity authorized to be car11 ried out, subject to appropriations, under this Act (includ12 ing any such obligation or activity under the Agreement) 

13 if adequate appropriations for that purpose are not pro14 vided by Congress. 

15 SEC. 18. REPEAL ON FAILURE OF ENFORCEABILITY DATE. 

16 If the Secretary fails to publish in the Federal Reg17 ister a statement of findings as required under section 

18 12(c) by not later than October 31, 2013— 

19 (1) effective beginning on November 1, 2013— 

20 (A) this Act is repealed; and 

21 (B) any action carried out by the Sec22 retary, and any contract entered into, pursuant 

23 to this Act shall be void; 

24 (2) any amounts appropriated under sections 

25 13 and subsections (a) and (b) of section 16, toVerDate Nov 24 2008 02:50 Jan 27, 2009 Jkt 079200 PO 00000 Frm 00054 Fmt 6652 Sfmt 6201 E:\BILLS\S313.IS S313

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1 gether with any interest accrued on those amounts, 

2 shall immediately revert to the general fund of the 

3 Treasury; and 

4 (3) any amounts paid by the State in accord5 ance with the Agreement, together with any interest 

6 accrued on those amounts, shall immediately be re7 turned to the State. 

8 SEC. 19. COMPLIANCE WITH ENVIRONMENTAL LAWS. 

9 In carrying out this Act, the Secretary shall promptly 

10 comply with all applicable requirements of— 

11 (1) the National Environmental Policy Act of 

12 1969 (42 U.S.C. 4321 et seq.); 

13 (2) the Endangered Species Act of 1973 (16 

14 U.S.C. 1531 et seq.); 

15 (3) all other applicable Federal environmental 

16 laws; and 

17 (4) all regulations promulgated under the laws 

18 described in paragraphs (1) through (3). 

Æ 


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