H. R. 3291
One Hundred Sixth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Monday,
the twenty-fourth day of January, two thousand
An Act
To provide for the settlement of the water rights claims of the Shivwits Band
of the Paiute Indian Tribe of Utah, and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Shivwits Band of the Paiute
Indian Tribe of Utah Water Rights Settlement Act’’.
SEC. 2. FINDINGS.
Congress finds the following:
(1) It is the official policy of the United States, in keeping
with its trust responsibility to Indian tribes, to promote Indian
self-determination and economic self-sufficiency, and to settle
the water rights claims of Indian tribes to avoid lengthy and
costly litigation.
(2) Any meaningful policy of Indian self-determination and
economic self-sufficiency requires the development of viable
Indian reservation economies.
(3) The quantification of water rights and the development
of water use facilities is essential to the development of viable
Indian reservation economies, particularly in the arid Western
States.
(4) The Act of March 3, 1891, provided for the temporary
support of the Shebit (or Shivwits) tribe of Indians in Wash-
ington County, Utah, and appropriated moneys for the purchase
of improvements on lands along the Santa Clara River for
the use of said Indians. Approximately 26,880 acres in the
same area were set aside as a reservation for the Shivwits
Band by Executive order dated April 21, 1916. Additional lands
were added to the reservation by Congress on May 28, 1937.
(5) The waters of the Santa Clara River are fully appro-
priated except during high flow periods. A water right was
awarded to the United States for the benefit of the Shivwits
Band in the 1922 adjudication entitled St. George Santa Clara
Field Co., et al. v. Newcastle Reclamation Co., et al., for ‘‘1.38
cubic feet of water per second for the irrigation of 83.2 acres
of land and for culinary, domestic, and stock watering pur-
poses’’, but no provision has been made for water resource
development to benefit the Shivwits Band. In general, the
remainder of the Santa Clara River’s flow is either diverted
on the reservation and delivered through a canal devoted exclu-
sively to non-Indian use that traverses the reservation to a
reservoir owned by the Ivins Irrigation Company; dedicated
H. R. 3291—2
to decreed and certificated rights of irrigation companies down-
stream of the reservation; or impounded in the Gunlock Res-
ervoir upstream of the reservation. The Band’s lack of access
to water has frustrated its efforts to achieve meaningful self-
determination and economic self-sufficiency.
(6) On July 21, 1980, the State of Utah, pursuant to title
73, chapter 4, Utah Code Ann., initiated a statutory adjudica-
tion of water rights in the Fifth Judicial District Court in
Washington County, Utah, Civil No. 800507596, which encom-
passes all of the rights to the use of water, both surface and
underground, within the drainage area of the Virgin River
and its tributaries in Utah (‘‘Virgin River Adjudication’’),
including the Santa Clara River Drainage (‘‘Santa Clara
System’’).
(7) The United States was joined as a party in the Virgin
River Adjudication pursuant to section 666 of title 43, United
States Code. On February 17, 1987, the United States filed
a Statement of Water User Claim asserting a water right
based on State law and a Federal reserved water rights claim
for the benefit of the Shivwits Band to water from the Santa
Clara River System. This was the only claim the United States
filed for any Indian tribe or band in the Virgin River Adjudica-
tion within the period allowed by title 73, chapter 4, Utah
Code Ann., which bars the filing of claims after the time pre-
scribed therein.
(8) The Virgin River adjudication will take many years
to conclude, entail great expense, and prolong uncertainty as
to the availability of water supplies, and thus, the parties
have sought to settle their dispute over water and reduce
the burdens of litigation.
(9) After lengthy negotiation, which included participation
by representatives of the United States Government for the
benefit of the Shivwits Band, the State of Utah, the Shivwits
Band, the Washington County Water Conservancy District, the
City of St. George, and others on the Santa Clara River System,
the parties have entered into agreements to resolve all water
rights claims between and among themselves and to quantify
the water right entitlement of the Shivwits Band, and to provide
for the construction of water projects to facilitate the settlement
of these claims.
(10) Pursuant to the St. George Water Reuse Project Agree-
ment, the Santa Clara Project Agreement, and the Settlement
Agreement, the Shivwits Band will receive the right to a total
of 4,000 acre-feet of water annually in settlement of its existing
State law claims and Federal reserved water right claims.
(11) To advance the goals of Federal Indian policy and
consistent with the trust responsibility of the United States
to the Shivwits Band, it is appropriate that the United States
participate in the implementation of the St. George Water
Reuse Project Agreement, the Santa Clara Project Agreement,
and the Settlement Agreement in accordance with this Act.
SEC. 3. PURPOSES.
The purposes of this Act are—
(1) to achieve a fair, equitable, and final settlement of
all claims to water rights in the Santa Clara River for the
H. R. 3291—3
Shivwits Band, and the United States for the benefit of the
Shivwits Band;
(2) to promote the self-determination and economic self-
sufficiency of the Shivwits Band, in part by providing funds
to the Shivwits Band for its use in developing a viable reserva-
tion economy;
(3) to approve, ratify, and confirm the St. George Water
Reuse Project Agreement, the Santa Clara Project Agreement,
and the Settlement Agreement, and the Shivwits Water Right
described therein;
(4) to authorize the Secretary of the Interior to execute
the St. George Water Reuse Project Agreement, the Santa
Clara Project Agreement, and the Settlement Agreement, and
to take such actions as are necessary to implement these agree-
ments in a manner consistent with this Act; and
(5) to authorize the appropriation of funds necessary for
implementation of the St. George Water Reuse Project Agree-
ment, the Santa Clara Project Agreement, and the Settlement
Agreement.
SEC. 4. DEFINITIONS.
In this Act:
(1) SECRETARY.—The term ‘‘Secretary’’ means the Secretary
of the Interior.
(2) UTAH.—The term ‘‘Utah’’ means the State of Utah,
by and through its Department of Natural Resources.
(3) SHIVWITS BAND.—The term ‘‘Shivwits Band’’ means the
Shivwits Band of the Paiute Indian Tribe of Utah, a constituent
band of the Paiute Indian Tribe of Utah, a federally recognized
Indian tribe organized under section 16 of the Indian Reorga-
nization Act of June 18, 1934 (48 Stat. 987; 25 U.S.C. 476),
and the Act of April 3, 1980 (94 Stat. 317).
(4) PAIUTE
INDIAN
TRIBE
OF
UTAH.—The term ‘‘Paiute
Indian Tribe of Utah’’ means the federally recognized Indian
Tribe organized under section 16 of the Indian Reorganization
Act of June 18, 1934 (48 Stat. 987; 25 U.S.C. 476), and the
Act of April 3, 1980 (94 Stat. 317), comprised of five bands
of Southern Paiute Indians (Shivwits, Indian Peaks, Cedar,
Koosharem, and Kanosh Bands).
(5) DISTRICT.—The term ‘‘District’’ means the Washington
County Water Conservancy District, a Utah water conservancy
district.
(6) ST. GEORGE.—The term ‘‘St. George’’ means St. George
City, a Utah municipal corporation.
(7) VIRGIN RIVER ADJUDICATION.—The term ‘‘Virgin River
Adjudication’’ means the statutory adjudication of water rights
initiated pursuant to title 73, chapter 4, Utah Code Ann. and
pending in the Fifth Judicial District Court in Washington
County, Utah, Civil No. 800507596.
(8) ST. GEORGE WATER REUSE PROJECT AGREEMENT.—The
term ‘‘St. George Water Reuse Project Agreement’’ means the
agreement among the United States for the benefit of the
Shivwits Band, Utah, the Shivwits Band, and St. George City,
together with all exhibits thereto, as the same is approved
and executed by the Secretary of the Interior pursuant to
section 8 of this Act.
H. R. 3291—4
(9) SANTA CLARA PROJECT AGREEMENT.—The term ‘‘Santa
Clara Project Agreement’’ means the agreement among the
United States for the benefit of the Shivwits Band, Utah,
the Shivwits Band, the Washington County Water Conservancy
District, St. George City, the New Santa Clara Field Canal
Company, the St. George Clara Field Canal Company, the
Ivins Irrigation Company, the Southgate Irrigation Company,
Bloomington Irrigation Company, Ed Bowler, and the Lower
Gunlock Reservoir Company, together with all exhibits thereto,
as the same is approved and executed by the Secretary of
the Interior pursuant to section 8 of this Act.
(10) SETTLEMENT
AGREEMENT.—The term ‘‘Settlement
Agreement’’ means that agreement among the United States
for the benefit of the Shivwits Band, Utah, the Shivwits Band,
the Washington County Water Conservancy District, St. George
City, the New Santa Clara Field Canal Company, the St. George
Clara Field Canal Company, the Ivins Irrigation Company,
the Southgate Irrigation Company, Bloomington Irrigation
Company, Ed Bowler, and the Lower Gunlock Reservoir Com-
pany, together with all exhibits thereto, as the same is approved
and executed by the Secretary of the Interior pursuant to
section 8 of this Act.
(11) SHIVWITS WATER RIGHT.—The term ‘‘Shivwits Water
Right’’ means the water rights of the Shivwits Band set forth
in the Settlement Agreement and as settled, confirmed, and
ratified by section 7 of this Act.
(12) SHIVWITS
BAND
TRUST
FUND.—The term ‘‘Shivwits
Band Trust Fund’’ means the Trust Fund authorized in section
11 of this Act to further the purposes of the Settlement Agree-
ment and this Act.
(13) VIRGIN RIVER RESOURCE MANAGEMENT AND RECOVERY
PROGRAM.—The term ‘‘Virgin River Resource Management and
Recovery Program’’ means the proposed multiagency program,
to be administered by the United States Fish and Wildlife
Service, Bureau of Land Management, National Park Service,
Utah, and the District, whose primary purpose is to prioritize
and implement native fish recovery actions that offset impacts
due to future water development in the Virgin River basin.
SEC. 5. ST. GEORGE WATER REUSE PROJECT.
(a) ST. GEORGE WATER REUSE PROJECT.—The St. George Water
Reuse Project shall consist of water treatment facilities, a pipeline,
and associated pumping and delivery facilities owned and operated
by St. George, which is a component of, and shall divert water
from, the Water Reclamation Facility located in St. George, Utah,
and shall transport this water for delivery to and use by St. George
and the Shivwits Band. St. George shall make 2,000 acre-feet
of water available annually for use by the Shivwits Band in accord-
ance with the St. George Water Reuse Project Agreement and
this Act.
(b) PROJECT CONSTRUCTION OPERATION AND MAINTENANCE.—
(1) St. George shall be responsible for the design, engineering,
permitting, construction, operation, maintenance, repair, and
replacement of the St. George Water Reuse Project, and the pay-
ment of its proportionate share of these project costs as provided
for in the St. George Water Reuse Project Agreement.
H. R. 3291—5
(2) The Shivwits Band and the United States for the benefit
of the Shivwits Band shall make available, in accordance with
the terms of the St. George Water Reuse Agreement and this
Act, a total of $15,000,000 to St. George for the proportionate
share of the design, engineering, permitting, construction, operation,
maintenance, repair, and replacement of the St. George Water
Reuse Project associated with the 2,000 acre-feet annually to be
provided to the Shivwits Band.
SEC. 6. SANTA CLARA PROJECT.
(a) SANTA CLARA PROJECT.—The Santa Clara Project shall con-
sist of a pressurized pipeline from the existing Gunlock Reservoir
across the Shivwits Reservation to and including Ivins Reservoir,
along with main lateral pipelines. The Santa Clara Project shall
pool and deliver the water rights of the parties as set forth in
the Santa Clara Project Agreement. The Santa Clara Project shall
deliver to the Shivwits Band a total of 1,900 acre-feet annually
in accordance with the Santa Clara Project Agreement and this
Act.
(b) INSTREAM FLOW.—The Santa Clara Project shall release
instream flow water from the Gunlock Reservoir into the Santa
Clara River for the benefit of the Virgin Spinedace, in accordance
with the Santa Clara Project Agreement and this Act.
(c) PROJECT FUNDING.—The Utah Legislature and the United
States Congress have each appropriated grants of $750,000 for
the construction of the Santa Clara Project. The District shall
provide a grant of $750,000 for the construction of the Santa Clara
Project. The District shall provide any additional funding required
for the construction of the Santa Clara Project.
(d) PROJECT CONSTRUCTION, OPERATION, AND MAINTENANCE.—
The District shall be responsible for the permitting, design,
engineering, construction, and the initial operation, maintenance,
repair, and replacement of the Santa Clara Project. Operation,
maintenance, repair, and replacement activities and costs of the
Santa Clara Project shall be handled in accordance with the terms
of the Santa Clara Project Agreement.
SEC. 7. SHIVWITS WATER RIGHT.
(a) IN GENERAL.—The Shivwits Band and its members shall
have the right in perpetuity to divert, pump, impound, use, and
reuse a total of 4,000 acre-feet of water annually from the Virgin
River and Santa Clara River systems, to be taken as follows:
(1) 1,900 acre-feet annually from the Santa Clara River
System, with an 1890 priority date in accordance with the
terms of the Santa Clara Project Agreement.
(2) 2,000 acre-feet of water annually from the St. George
Water Reuse Project as provided for in the St. George Water
Reuse Project Agreement. The Shivwits Band shall have first
priority to the reuse water provided from the St. George Water
Reclamation Facility.
(3) 100 acre-feet annually, with a 1916 priority date, from
groundwater on the Shivwits Reservation.
(b) WATER RIGHTS CLAIMS.—All water rights claims of the
Shivwits Band, and the Paiute Indian Tribe of Utah acting on
behalf of the Shivwits Band, are hereby settled. The Shivwits Water
Right is hereby ratified, confirmed, and shall be held in trust
by the United States for the benefit of the Shivwits Band.
H. R. 3291—6
(c) SETTLEMENT.—The Shivwits Band may use water from the
springs and runoff located on the Shivwits Reservation. The amount
used from these sources will be reported annually to the Utah
State Engineer by the Shivwits Band and shall be counted against
the annual 4,000 acre-feet Shivwits Water Right.
(d) ABANDONMENT, FORFEITURE, OR NONUSE.—The Shivwits
Water Right shall not be subject to loss by abandonment, forfeiture,
or nonuse.
(e) USE OR LEASE.—The Shivwits Band may use or lease the
Shivwits Water Right for either or both of the following:
(1) For any purpose permitted by tribal or Federal law
anywhere on the Shivwits Band Reservation. Once the water
is delivered to the Reservation, such use shall not be subject
to State law, regulation, or jurisdiction.
(2) For any beneficial use off the Shivwits Reservation
in accordance with the St. George Water Reuse Agreement,
the Santa Clara Project Agreement, the Settlement Agreement,
and all applicable Federal and State laws.
No service contract, lease, exchange, or other agreement entered
into under this subsection may permanently alienate any portion
of the Shivwits Water Right.
SEC. 8. RATIFICATION OF AGREEMENTS.
Except to the extent that the St. George Water Reuse Project
Agreement, the Santa Clara Project Agreement, and the Settlement
Agreement conflict with the provisions of this Act, such agreements
are hereby approved, ratified, and confirmed. The Secretary is
hereby authorized to execute, and take such other actions as are
necessary to implement, such agreements.
SEC. 9. SATISFACTION OF CLAIMS.
(a) FULL SATISFACTION OF CLAIMS.—The benefits realized by
the Shivwits Band and its members under the St. George Water
Reuse Project Agreement, the Santa Clara Project Agreement, the
Settlement Agreement, and this Act shall constitute full and com-
plete satisfaction of all water rights claims, and any continuation
thereafter of any of these claims, of the Shivwits Band and its
members, and the Paiute Indian Tribe of Utah acting on behalf
of the Shivwits Band, for water rights or injuries to water rights
under Federal and State laws from time immemorial to the effective
date of this Act. Notwithstanding the foregoing, nothing in this
Act shall be—
(1) deemed to recognize or establish any right of a member
of the Shivwits Band to water on the Shivwits Reservation;
or
(2) interpreted or construed to prevent or prohibit the
Shivwits Band from participating in the future in other water
projects, or from purchasing additional water rights for their
benefit and use, to the same extent as any other entity.
(b) WAIVER AND RELEASE.—By the approval, ratification, and
confirmation herein of the St. George Water Reuse Project Agree-
ment, the Santa Clara Project Agreement, and the Settlement
Agreement, the United States executes the following waiver and
release in conjunction with the Reservation of Rights and Retention
of Claims set forth in the Settlement Agreement, to be effective
upon satisfaction of the conditions set forth in section 14 of this
Act. Except as otherwise provided in the Settlement Agreement,
this Act, or the proposed judgment and decree referred to in section
H. R. 3291—7
14(a)(7) of this Act, the United States, on behalf of the Shivwits
Band and the Paiute Indian Tribe of Utah acting on behalf of
the Shivwits Band, waives and releases the following:
(1) All claims for water rights or injuries to water rights
for lands within the Shivwits Reservation that accrued at any
time up to and including the effective date determined by
section 14 of this Act, and any continuation thereafter of any
of these claims, that the United States for the benefit of the
Shivwits Band may have against Utah, any agency or political
subdivision thereof, or any person, entity, corporation, or munic-
ipal corporation.
(2) All claims for water rights or injuries to water rights
for lands outside of the Shivwits Reservation, where such claims
are based on aboriginal occupancy of the Shivwits Band, its
members, or their predecessors, that accrued at any time up
to and including the effective date determined by section 14
of this Act, and any continuation thereafter of any of these
claims, that the United States for the benefit of the Shivwits
Band may have against Utah, any agency or political subdivi-
sion thereof, or any person, entity, corporation, or municipal
corporation.
(3) All claims for trespass to lands on the Shivwits Reserva-
tion regarding the use of Ivins Reservoir that accrued at any
time up to and including the effective date determined by
section 14 of this Act.
(c) DEFINITIONS.—For purposes of this section—
(1) ‘‘water rights’’ means rights under State and Federal
law to divert, pump, impound, use or reuse, or to permit others
to divert, pump, impound, use or reuse water; and
(2) ‘‘injuries to water rights’’ means the loss, deprivation,
or diminution of water rights.
(d) SAVINGS PROVISION.—In the event the waiver and release
contained in subsection (b) of this section do not become effective
pursuant to section 14, the Shivwits Band and the United States
shall retain the right to assert past and future water rights claims
as to all lands of the Shivwits Reservation, and the water rights
claims and defenses of all other parties to the agreements shall
also be retained.
SEC. 10. WATER RIGHTS AND HABITAT ACQUISITION PROGRAM.
(a) IN GENERAL.—The Secretary is authorized to establish a
water rights and habitat acquisition program in the Virgin River
Basin—
(1) primarily for the benefit of native plant and animal
species in the Santa Clara River Basin which have been listed,
are likely to be listed, or are the subject of a duly approved
conservation agreement under the Endangered Species Act;
and
(2) secondarily for the benefit of native plant and animal
species in other parts of the Virgin River Basin which have
been listed, are likely to be listed, or are the subject of a
duly approved conservation agreement under the Endangered
Species Act.
(b) WATER AND WATER RIGHTS.—The Secretary is authorized
to acquire water and water rights, with or without the lands to
which such rights are appurtenant, and to acquire shares in irriga-
tion and water companies, and to transfer, hold, and exercise such