Arizona Tribes Water Marketing Act of 2022
Bill: H.R.9633 | Sponsor: Rep. O'Halleran, Tom (D-AZ)
Policy area: Water Resources Development

Summary:
Arizona Tribes Water Marketing Act of 2022
This bill authorizes Arizona Tribes to enter into an agreement or option to lease, exchange, or store a certain portion of their water to be used or located off a tribe's reservation if it is used or located in the Lower Basin in the state of Arizona and not in Navajo, Apache, or Cochise counties.

To authorize Arizona Tribes to enter into lease or exchange agreements 
and storage agreements relating to their decreed water entitlements as 
      a long-term source of water supply, 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 ``Arizona Tribes Water Marketing Act 
of 2022''.

SEC. 2. FINDINGS.

    Congress finds as follows:
            (1) The entire American West and Southwest are facing 
        forecasts of prolonged droughts that will leave States and 
        Tribes facing major water shortages.
            (2) Recent periods of drought in the American West have 
        also occurred with higher temperatures and reduced snowpack and 
        led to what climate scientists recently concluded was possibly 
        the most severe drought in over 1,200 years.
            (3) The Colorado River has been under drought conditions 
        since 2000, most recently denoted as the most endangered river 
        in the United States, and the State of Arizona is in a ``mega-
        drought'' according to climate scientists.
            (4) The Secretary manages the lower Colorado River system 
        in accordance with Federal law including--
                    (A) the Boulder Canyon Project Act of 1928;
                    (B) the 1963 Decision of the U.S. Supreme Court in 
                Arizona v. California;
                    (C) the 2006 Consolidated Decree of the U.S. 
                Supreme Court in Arizona v. California;
                    (D) the Colorado River Basin Project Act of 1968;
                    (E) the Criteria for Coordinated Long-Range 
                Operation of Colorado River Reservoirs Pursuant to the 
                Colorado River Basin Project Act of September 30, 1968;
                    (F) the Grand Canyon Protection Act of 1992;
                    (G) the 2007 Interim Guidelines; and
                    (H) other applicable provisions of Federal law.
            (5) The 2007 Interim Guidelines will expire in 2026. The 7 
        States that are within the Colorado River basin are re-
        negotiating these guidelines with the Federal Government to 
        take account of current forecasts of available supply from the 
        Colorado River, which is dramatically reduced from what it had 
        been when the guidelines were adopted in 2007.
            (6) Colorado River water that had been stored in Lake 
        Powell and Lake Mead has been gradually used up as the drought 
        has continued. Conservation of water supplies is for the 
        foreseeable future the only viable way to address water 
        shortage and water supplies from the Colorado River.
            (7) While conservation is the current focus to address the 
        ``mega-drought'' in the State of Arizona, additional efforts 
        should be made now to identify future long-term water supplies 
        to offset the reduced supplies available from the Colorado 
        River and other natural rivers and streams flowing in the 
        State.
            (8) Congress recognizes that there are 22 Tribes in the 
        State of Arizona. Of those Tribes, some have judicially decreed 
        water entitlements decreed to them through various State and 
        Federal court decrees. Other Arizona Tribes have claims pending 
        for additional water entitlements, many of which will also 
        result in judicially decreed Tribal entitlements. These 
        judicially decreed Tribal entitlements to water are currently 
        not available as a potential water supply to offset the reduced 
        supplies available from the Colorado River and other natural 
        rivers and streams flowing in the State.
            (9) Congress further recognizes that Arizona Tribes that 
        hold judicially decreed rights to water from the Colorado River 
        or other rivers and streams flowing in Arizona should be able 
        to enter into lease or exchange agreements and storage 
        agreements to make such decreed entitlements potentially 
        available to other water users in the State as part of a long-
        term alternative supply.
            (10) Making such judicially decreed Tribal water supplies 
        available as a long-term water supply should be considered and 
        implemented as part of a long-term strategy for addressing the 
        mega-drought in the Southwest, and should be considered as part 
        of the ongoing basin State re-negotiation of the 2007 Interim 
        Guidelines.
            (11) In the meantime, to address the current crisis, all 
        parties with excess supplies of water should consider ways of 
        conserving those supplies through existing Federal and State 
        programs that provide for the conservation of such supplies for 
        the benefit of both Lake Mead and Lake Powell.

SEC. 3. PURPOSES.

    The purposes of this Act are--
            (1) to authorize Arizona Tribes to enter into Lease or 
        Exchange Agreements and Storage Agreements to make their 
        judicially decreed Tribal water entitlements available for use 
        off of their respective Reservations for their economic well-
        being and for the benefit of their surrounding jurisdictions as 
        water supplies in Arizona become more scarce; and
            (2) to authorize the Secretary to approve any Lease or 
        Exchange Agreements or Storage Agreements entered into by 
        Arizona Tribes pursuant to paragraph (1).

SEC. 4. DEFINITIONS.

    In this Act:
            (1) 2007 interim guidelines.--The term ``2007 Interim 
        Guidelines'' means The Final Environmental Impact Statement--
        Colorado River Interim Guidelines for Lower Basin Shortages and 
        Coordinated Operations for Lake Powell and Lake Mead, dated 
        October 2007, prepared pursuant to the National Environmental 
        Policy Act of 1969, the Council on Environmental Quality's 
        Regulations for Implementing the Procedural Provisions of NEPA 
        (40 C.F.R. Parts 1500 through 1508), Department of the Interior 
        Policies, and the Bureau of Reclamation's NEPA Handbook.
            (2) Allottee.--The term ``allottee'' means an individual 
        who holds a beneficial real property interest in an allotment 
        of Indian land that is--
                    (A) located within the exterior boundaries of a 
                Reservation; and
                    (B) held in trust by the United States.
            (3) Arizona indian water settlement.--The term ``Arizona 
        Indian Water Settlement'' means an Indian water settlement for 
        an Indian Tribe located within the State that--
                    (A) has been approved and authorized by Congress; 
                and
                    (B) includes as part of the Indian Tribe's approved 
                and authorized entitlement a judicially decreed 
                entitlement to water for lands located within the 
                boundaries of the State.
            (4) Arizona tribe.--The term ``Arizona Tribe'' means an 
        Indian Tribe with lands located within the State that has a 
        decreed water right.
            (5) Decreed water right.--The term ``decreed water right'' 
        means an entitlement to water included in any final decree 
        entered by a Federal court on behalf of an Arizona Tribe that 
        is appurtenant to lands located within such Arizona Tribe's 
        Reservation.
            (6) Consumptive use.--The term ``Consumptive Use'' means--
                    (A) a portion of the decreed water right that has 
                been consumptively used by an Arizona Tribe within the 
                exterior boundary of its Reservation for a minimum of 4 
                of the 5 calendar years immediately preceding the year 
                of delivery of a portion of the decreed right according 
                to a Lease or Exchange Agreement or Storage Agreement; 
                and
                    (B) any verified reduction in Consumptive Use 
                pursuant to a System Conservation Agreement, a Lease or 
                Exchange Agreement, or Storage Agreement, or from the 
                creation of Intentionally Created Surplus, shall be 
                deemed to be a Consumptive Use in the year in which the 
                reduction occurred, if the reduction is reflected in 
                the Water Accounting Report.
            (7) Intentionally created surplus or ics.--The term 
        ``Intentionally Created Surplus'' or ``ICS'' means water that 
        is conserved to Lake Mead for future use by a water user 
        pursuant to the 2007 Interim Guidelines.
            (8) Lease or exchange agreement.--The term ``Lease or 
        Exchange Agreement'' means an agreement to lease or exchange, 
        or an option to lease or exchange, a portion of the Consumptive 
        Use off of a Reservation.
            (9) Lower basin.--The term ``Lower Basin'' has the meaning 
        given the term in article II(g) of the Colorado River Compact 
        of 1922, as approved by Congress in section 13 of the Boulder 
        Canyon Project Act (43 U.S.C. 617l), and by the Presidential 
        Proclamation of June 25, 1929 (46 Stat. 3000).
            (10) Person.--The term ``person'' means an individual, a 
        public or private corporation, a company, a partnership, a 
        joint venture, a firm, an association, a society, an estate or 
        trust, a private organization or enterprise, the United States, 
        any Indian Tribe, a governmental entity, or a political 
        subdivision or municipal corporation organized under, or 
        subject to, the constitution and laws of the State.
            (11) Reservation.--The term ``Reservation'' means the 
        reservation established for each Arizona Tribe but only as to 
        those reservation lands that are located in the State.
            (12) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior.
            (13) State.--The term ``State'' means the State of Arizona.
            (14) Storage.--The term ``storage'' means the underground 
        storage, in accordance with State law, of a portion of the 
        Consumptive Use off of the Reservation within the Lower Basin 
        in the State.
            (15) Storage agreement.--The term ``Storage Agreement'' 
        means an agreement, including with the Arizona Water Banking 
        Authority (or successor agency or entity), for the storage of a 
        portion of the Consumptive Use, or the water received under an 
        exchange pursuant to an Lease or Exchange Agreement, or more 
        underground storage facilities or groundwater savings 
        facilities located in the State.
            (16) Water accounting report.--The term ``Water Accounting 
        Report'' means the annual report of the Bureau of Reclamation 
        entitled the ``Colorado River Accounting and Water Use Report: 
        Arizona, California, and Nevada''.

SEC. 5. LEASE OR EXCHANGE AGREEMENTS.

    (a) Authorization.--Notwithstanding section 2116 of the Revised 
Statutes (commonly known as the ``Indian Trade and Intercourse Act''; 
25 U.S.C. 177) or any other provision of law, beginning on January 1, 
2026, each Arizona Tribe is authorized to, subject to the approval of 
the Secretary under section 7(a), and has the sole authority to, enter 
into, with any person, a Lease or Exchange Agreement, on the condition 
that the use off of the Reservation is located in the Lower Basin in 
the State and is not in Navajo, Apache, or Cochise counties.
    (b) Term of Lease or Exchange Agreement.--The term of any Lease or 
Exchange Agreement entered into under subsection (a) shall be mutually 
agreed, except that the term shall not exceed 100 years.
    (c) Modifications.--Any Lease or Exchange Agreement entered into 
under subsection (a) may be renegotiated or modified at any time during 
the term of the Lease or Exchange Agreement, subject to the approval of 
the Secretary under section 7(a), on the condition that the term of the 
renegotiated Lease or Exchange Agreement and the term of the original 
Lease or Exchange Agreement, in the aggregate, does not exceed 100 
years.
    (d) Applicable Law.--Any person entering into a Lease or Exchange 
Agreement with an Arizona Tribe under this section shall use the water 
received under the Lease or Exchange Agreement in accordance with 
applicable Federal and State law.
    (e) Effect on Arizona Indian Water Settlements.--
            (1) In general.--This Act shall not be construed to amend 
        any Arizona Indian Water Settlement that prohibits off-
        Reservation Lease and Exchange Agreements. Before entering into 
        a Lease or Exchange Agreement pursuant to the authority set 
        forth in this Act, an Arizona Tribe with a restriction on its 
        authority to lease or exchange its decreed water rights outside 
        the exterior boundaries of its Reservation set forth in its 
        Arizona Indian Water Settlement must first amend the settlement 
        agreement to modify such restrictions in a manner in accordance 
        with its terms.
            (2) Authorization, ratification and confirmation of 
        amendments.--An amendment to an Arizona Indian Water Settlement 
        to allow a Lease and Exchange Agreement is hereby deemed to be 
        authorized, ratified, and confirmed in accordance with its 
        terms without further need for congressional action.

SEC. 6. STORAGE AGREEMENTS.

    (a) Authorization.--Notwithstanding section 2116 of the Revised 
Statutes (commonly known as the ``Indian Trade and Intercourse Act''; 
25 U.S.C. 177) or any other provision of law, each Arizona Tribe is 
authorized to, subject to the approval of the Secretary under section 
7(a), and has the sole authority to, enter into a Storage Agreement, on 
the condition that the facility shall be located in the Lower Basin in 
the State and is not in Navajo, Apache, or Cochise counties.
    (b) Applicable Law.--Any Storage Agreement entered into under this 
section shall be in accordance with applicable Federal and State law.
    (c) Delegation of Rights.--An Arizona Tribe may assign or sell any 
long-term storage credits accrued as a result of a Storage Agreement, 
on the condition that the assignment or sale is in accordance with 
applicable State law.
    (d) Effect on Arizona Indian Water Settlements.--
            (1) In general.--This Act shall not be construed to amend 
        any Arizona Indian Water Settlement that prohibits off-
        Reservation Storage Agreements. Before entering into a Storage 
        Agreement pursuant to the authority set forth in this Act, an 
        Arizona Tribe with a restriction on its authority to store its 
        decreed water rights outside the exterior boundaries of its 
        Reservation set forth in its Arizona Indian Water Settlement 
        must first amend the settlement agreement to modify such 
        restrictions in a manner in accordance with its terms.
            (2) Authorization, ratification and confirmation of 
        amendments.--An amendment to an Arizona Indian Water Settlement 
        Agreement to allow Storage Agreements, is hereby deemed to be 
        authorized, ratified and confirmed in accordance with its terms 
        without need for further congressional action.

SEC. 7. APPROVAL BY THE SECRETARY.

    (a) Authorization.--The Secretary shall approve or disapprove any--
            (1) Lease or Exchange Agreement;
            (2) modification to a Lease or Exchange Agreement;
            (3) Storage Agreement; or
            (4) modification to a Storage Agreement.
    (b) Secretarial Agreements.--The Secretary is authorized to enter 
Lease or Exchange Agreements or Storage Agreements with an Arizona 
Tribe, provided the Secretary pays the fair market value for the 
Arizona Tribe's reduced consumptive use.
    (c) Requirements.--
            (1) In general.--The Secretary shall not approve any Lease 
        or Exchange Agreement, or any modification to a Lease or 
        Exchange Agreement, any Storage Agreement, or any modification 
        to a Storage Agreement that is not in compliance with--
                    (A) this Act; and
                    (B) the agreement entered into between the Arizona 
                Tribe, the State, and the Secretary under section 
                10(a).
            (2) Permanent alienation.--The Secretary shall not approve 
        any Lease or Exchange Agreement, any modification to a Lease or 
        Exchange Agreement, or any Storage Agreement that permanently 
        alienates any portion of any Arizona Tribe decreed water right.
    (d) Other Requirements.--The requirement for Secretarial approval 
under subsection (a) shall satisfy the requirements of section 2116 of 
the Revised Statutes (commonly known as the ``Indian Trade and 
Intercourse Act''; 25 U.S.C. 177).
    (e) Authority of the Secretary.--Nothing in this Act, or any 
agreement entered into or approved by the Secretary under this Act, 
including any Lease or Exchange Agreement or Storage Agreement, shall 
diminish or abrogate the authority of the Secretary to act under 
applicable Federal law or regulation.

SEC. 8. RESPONSIBILITIES OF THE SECRETARY.

    (a) Compliance.--The Secretary, when approving a Lease or Exchange 
Agreement or a Storage Agreement under this Act, shall ensure such 
agreement complies with--
            (1) the National Environmental Policy Act of 1969 (42 
        U.S.C. 4321 et seq.);
            (2) the Endangered Species Act of 1973 (16 U.S.C. 1531 et 
        seq.); and
            (3) all other applicable Federal environmental laws.
    (b) Documentation.--The Secretary shall document any Lease or 
Exchange Agreement or Storage Agreement in the Water Accounting Report.

SEC. 9. AGREEMENT BETWEEN AN ARIZONA TRIBE AND THE STATE.

    (a) In General.--Before entering into the first Lease or Exchange 
Agreement or Storage Agreement, an Arizona Tribe shall enter into an 
agreement with the State that outlines all notice, information sharing, 
and collaboration requirements that shall apply to any potential Lease 
or Exchange Agreement or Storage Agreement into which the Arizona Tribe 
may enter.
    (b) Requirement.--The agreement under subsection (a) shall include 
a provision that requires the Arizona Tribe to submit to the State all 
documents regarding a proposed Lease or Exchange Agreement or Storage 
Agreement.

SEC. 10. AGREEMENT BETWEEN AN ARIZONA TRIBE, THE STATE, AND THE 
              SECRETARY.

    (a) In General.--Before approving the first Lease or Exchange 
Agreement or Storage Agreement under section 7, the Secretary shall 
enter into an agreement with the State and the Arizona Tribe that 
describes the procedural, technical, and accounting methodologies for 
any Lease or Exchange Agreement or Storage Agreement into which the 
Arizona Tribe may enter, including quantification of the reduction in 
Consumptive Use and water accounting.
    (b) NEPA.--The execution of the agreement under subsection (a) 
shall not constitute a major Federal action for purposes of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
    (c) Effect.--Nothing in this Act shall prohibit the Secretary from 
agreeing with the Arizona Tribe and the State to a modification to an 
agreement entered into under subsection (a) (including an appendix or 
exhibit to the agreement) on the condition that the modification--
            (1) is in compliance with this Act; and
            (2) does not otherwise require congressional approval under 
        section 2116 of the Revised Statutes (commonly known as the 
        ``Indian Trade and Intercourse Act'') (25 U.S.C. 177) or any 
        other provision of law.

SEC. 11. NO EFFECT ON ARIZONA TRIBE DECREED WATER RIGHTS.

    (a) Temporary Use.--A Lease or Exchange Agreement or Storage 
Agreement--
            (1) shall provide for the temporary use or storage of a 
        portion of the Consumptive Use off of the Arizona Tribe's 
        Reservation; and
            (2) shall not permanently alienate the decreed water right.
    (b) Priority Status.--
            (1) In general.--The lease or exchange of a portion of the 
        Consumptive Use shall not cause that portion to lose or change 
        its priority under the relevant decree.
            (2) Non-use.--Any non-use by a person who is a party to any 
        Lease or Exchange Agreement or Storage Agreement with the 
        Arizona Tribe shall not result in forfeiture, abandonment, 
        relinquishment, or other loss by the Arizona Tribe of all or 
        any portion of the decreed water right.
    (c) Reservation of Rights.--The lease, exchange, or storage of a 
portion of the Consumptive Use shall not reduce or limit the right of 
the Arizona Tribe to use the remaining portion of the decreed water 
right on its Reservation.
    (d) Storage Agreements.--Any Storage Agreement shall account for 
the quantity of water in storage off of an Arizona Tribe's Reservation 
in accordance with applicable State law.

SEC. 12. ALLOTTEE USE OF WATER.

    (a) Interference.--The lease, exchange, or storage of a portion of 
the Consumptive Use shall not directly or indirectly interfere with, or 
diminish, any entitlement to water for an allottee under Federal or 
Tribal law.
    (b) Water Rights of Allottees.--The Secretary shall protect the 
rights of the allottees to a just and equitable distribution of water 
for irrigation purposes, pursuant to section 7 of the Act of February 
8, 1887 (commonly known as the ``Indian General Allotment Act'') (24 
Stat. 390, chapter 119; 25 U.S.C. 381) (referred to in this section as 
the ``Act'').
    (c) Relief Under Tribal Law.--Prior to asserting any claim against 
the United States pursuant to the Act, or any other applicable law, an 
allottee shall exhaust all remedies available under applicable Tribal 
law.
    (d) Relief Under the Indian General Allotment Act.--Following an 
exhaustion of remedies available under applicable Tribal law, an 
allottee may seek relief under the Act, or any other applicable law.
    (e) Relief From the Secretary.--Following exhaustion of remedies 
available under the Act, or any other applicable law, an allottee may 
petition the Secretary for relief.

SEC. 13. CONSIDERATION PAID TO ARIZONA TRIBES.

    An Arizona Tribe, and not the United States in any capacity, shall 
be entitled to all consideration due to an Arizona Tribe under any 
Lease or Exchange Agreement or Storage Agreement.

SEC. 14. LIABILITY OF THE UNITED STATES.

    (a) Limitation of Liability.--The United States shall not be liable 
to an Arizona Tribe or to any party to a Lease or Exchange Agreement or 
Storage Agreement in any claim relating to the negotiation, execution, 
or approval of any Lease or Exchange Agreement or Storage Agreement, 
including any claim relating to the terms included in such an 
agreement, except for claims related to section 8(a).
    (b) Obligations.--The United States shall have no trust obligation 
or other obligation to monitor, administer, or account for--
            (1) any funds received by an Arizona Tribe as consideration 
        under any Lease or Exchange Agreement or Storage Agreement; or
            (2) the expenditure of such funds.

SEC. 15. APPLICATION.

    (a) In General.--This Act shall apply only to the portion of the 
decreed water right that is available for use in the State.
    (b) Requirement.--The portion of the decreed water right described 
in subsection (a) shall not be used, directly or indirectly, outside 
the Lower Basin in the State or in Navajo, Apache, or Cochise Counties, 
unless such use is otherwise authorized pursuant to a congressionally 
approved Indian water rights settlement.
    (c) No Effect on Navajo-Utah Water Rights Settlement.--This Act 
shall not affect any provisions in the Navajo-Utah Water Rights 
Settlement Act, Consolidated Appropriations Act, section 1102 (Public 
Law 116-260, December 27, 2020), that authorize the Navajo Nation to 
allocate, distribute, and lease the Navajo water rights for any use on 
the Reservation in accordance with the Navajo-Utah settlement 
agreement, and applicable Tribal and Federal law or allocate, 
distribute, and lease the Navajo water rights for off-Reservation use 
in accordance with the Navajo-Utah settlement agreement, subject to the 
approval of the Secretary.

SEC. 16. RULE OF CONSTRUCTION.

    (a) In General.--Nothing in this Act establishes, or shall be 
considered to establish, a precedent in any litigation involving, or 
alters, affects, or quantifies, any water right with respect to--
            (1) the United States;
            (2) any other Indian Tribe, band, or community;
            (3) any State or political subdivision or district of a 
        State; or
            (4) any person.
    (b) Effect.--Nothing in this Act exempts the implementation of a 
Lease or Exchange Agreement, or a Storage Agreement and the operation 
of applicable Colorado River System reservoirs from any requirements of 
applicable Federal environmental laws.
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