Arizona Water Settlements Act
PL 108-451 (S.437), enacted 12/10/2004

118 STAT. 3478
PUBLIC LAW 108–451—DEC. 10, 2004
Public Law 108–451
108th Congress
An Act
To provide for adjustments to the Central Arizona Project in Arizona, to authorize
the Gila River Indian Community water rights settlement, to reauthorize and
amend the Southern Arizona Water Rights Settlement Act of 1982, 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; TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the ‘‘Arizona Water
Settlements Act’’.
(b) TABLE OF CONTENTS.—The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Sec. 3. Arbitration.
Sec. 4. Antideficiency.
TITLE I—CENTRAL ARIZONA PROJECT SETTLEMENT
Sec. 101. Short title.
Sec. 102. Findings.
Sec. 103. General permissible uses of the Central Arizona Project.
Sec. 104. Allocation of Central Arizona Project water.
Sec. 105. Firming of Central Arizona Project Indian water.
Sec. 106. Acquisition of agricultural priority water.
Sec. 107. Lower Colorado River Basin Development Fund.
Sec. 108. Effect.
Sec. 109. Repeal.
Sec. 110. Authorization of appropriations.
Sec. 111. Repeal on failure of enforceability date under title II.
TITLE II—GILA RIVER INDIAN COMMUNITY WATER RIGHTS SETTLEMENT
Sec. 201. Short title.
Sec. 202. Purposes.
Sec. 203. Approval of the Gila River Indian Community Water Rights Settlement
Agreement.
Sec. 204. Water rights.
Sec. 205. Community water delivery contract amendments.
Sec. 206. Satisfaction of claims.
Sec. 207. Waiver and release of claims.
Sec. 208. Gila River Indian Community Water OM&R Trust Fund.
Sec. 209. Subsidence remediation program.
Sec. 210. After-acquired trust land.
Sec. 211. Reduction of water rights.
Sec. 212. New Mexico Unit of the Central Arizona Project.
Sec. 213. Miscellaneous provisions.
Sec. 214. Authorization of appropriations.
Sec. 215. Repeal on failure of enforceability date.
TITLE III—SOUTHERN ARIZONA WATER RIGHTS SETTLEMENT
Sec. 301. Southern Arizona water rights settlement.
Sec. 302. Southern Arizona water rights settlement effective date.
43 USC 1501
note.
Arizona Water
Settlements Act.
Dec. 10, 2004
[S. 437]
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118 STAT. 3479
PUBLIC LAW 108–451—DEC. 10, 2004
TITLE IV—SAN CARLOS APACHE TRIBE WATER RIGHTS SETTLEMENT
Sec. 401. Effect of titles I, II, and III.
Sec. 402. Annual report.
Sec. 403. Authorization of appropriations.
SEC. 2. DEFINITIONS.
In titles I and II:
(1) ACRE-FEET.—The term ‘‘acre-feet’’ means acre-feet per
year.
(2) AFTER-ACQUIRED
TRUST
LAND.—The term ‘‘after-
acquired trust land’’ means land that—
(A) is located—
(i) within the State; but
(ii) outside the exterior boundaries of the Reserva-
tion; and
(B) is taken into trust by the United States for the
benefit of the Community after the enforceability date.
(3) AGRICULTURAL
PRIORITY
WATER.—The term ‘‘agricul-
tural priority water’’ means Central Arizona Project non-Indian
agricultural priority water, as defined in the Gila River agree-
ment.
(4) ALLOTTEE.—The term ‘‘allottee’’ means a person who
holds a beneficial real property interest in an Indian allotment
that is—
(A) located within the Reservation; and
(B) held in trust by the United States.
(5) ARIZONA
INDIAN
TRIBE.—The term ‘‘Arizona Indian
tribe’’ means an Indian tribe (as defined in section 4 of the
Indian Self-Determination and Education Assistance Act (25
U.S.C. 450b)) that is located in the State.
(6) ASARCO.—The term ‘‘Asarco’’ means Asarco Incor-
porated, a New Jersey corporation of that name, and its subsidi-
aries operating mining operations in the State.
(7) CAP CONTRACTOR.—The term ‘‘CAP contractor’’ means
a person or entity that has entered into a long-term contract
(as that term is used in the repayment stipulation) with the
United States for delivery of water through the CAP system.
(8) CAP OPERATING AGENCY.—The term ‘‘CAP operating
agency’’ means the entity or entities authorized to assume
responsibility for the care, operation, maintenance, and replace-
ment of the CAP system.
(9) CAP REPAYMENT CONTRACT.—
(A) IN GENERAL.—The term ‘‘CAP repayment contract’’
means the contract dated December 1, 1988 (Contract No.
14–0906–09W–09245, Amendment No. 1) between the
United States and the Central Arizona Water Conservation
District for the delivery of water and the repayment of
costs of the Central Arizona Project.
(B) INCLUSIONS.—The term ‘‘CAP repayment contract’’
includes all amendments to and revisions of that contract.
(10) CAP SUBCONTRACTOR.—The term ‘‘CAP subcontractor’’
means a person or entity that has entered into a long-term
subcontract (as that term is used in the repayment stipulation)
with the United States and the Central Arizona Water Con-
servation District for the delivery of water through the CAP
system.
(11) CAP SYSTEM.—The term ‘‘CAP system’’ means—
(A) the Mark Wilmer Pumping Plant;
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118 STAT. 3480
PUBLIC LAW 108–451—DEC. 10, 2004
(B) the Hayden-Rhodes Aqueduct;
(C) the Fannin-McFarland Aqueduct;
(D) the Tucson Aqueduct;
(E) the pumping plants and appurtenant works of the
Central Arizona Project aqueduct system that are associ-
ated with the features described in subparagraphs (A)
through (D); and
(F) any extensions of, additions to, or replacements
for the features described in subparagraphs (A) through
(E).
(12) CENTRAL
ARIZONA
PROJECT.—The term ‘‘Central
Arizona Project’’ means the reclamation project authorized and
constructed by the United States in accordance with title III
of the Colorado River Basin Project Act (43 U.S.C. 1521 et
seq.).
(13) CENTRAL ARIZONA WATER CONSERVATION DISTRICT.—
The term ‘‘Central Arizona Water Conservation District’’ means
the political subdivision of the State that is the contractor
under the CAP repayment contract.
(14) CITIES.—The term ‘‘Cities’’ means the cities of Chan-
dler, Glendale, Goodyear, Mesa, Peoria, Phoenix, and Scotts-
dale, Arizona.
(15) COMMUNITY.—The term ‘‘Community’’ means the Gila
River Indian Community, a government composed of members
of the Pima Tribe and the Maricopa Tribe and organized under
section 16 of the Act of June 18, 1934 (25 U.S.C. 476).
(16) COMMUNITY CAP WATER.—The term ‘‘Community CAP
water’’ means water to which the Community is entitled under
the Community water delivery contract.
(17) COMMUNITY REPAYMENT CONTRACT.—
(A) IN GENERAL.—The term ‘‘Community repayment
contract’’ means Contract No. 6–0907–0903–09W0345
between the United States and the Community dated July
20, 1998, providing for the construction of water delivery
facilities on the Reservation.
(B) INCLUSIONS.—The term ‘‘Community repayment
contract’’ includes any amendments to the contract
described in subparagraph (A).
(18) COMMUNITY WATER DELIVERY CONTRACT.—
(A) IN GENERAL.—The term ‘‘Community water delivery
contract’’ means Contract No. 3–0907–0930–09W0284
between the Community and the United States dated
October 22, 1992.
(B) INCLUSIONS.—The term ‘‘Community water delivery
contract’’ includes any amendments to the contract
described in subparagraph (A).
(19) CRR PROJECT WORKS.—
(A) IN GENERAL.—The term ‘‘CRR project works’’ means
the portions of the San Carlos Irrigation Project located
on the Reservation.
(B) INCLUSION.—The term ‘‘CRR Project works’’
includes the portion of the San Carlos Irrigation Project
known as the ‘‘Southside Canal’’, from the point at which
the Southside Canal connects with the Pima Canal to the
boundary of the Reservation.
(20) DIRECTOR.—The term ‘‘Director’’ means—
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118 STAT. 3481
PUBLIC LAW 108–451—DEC. 10, 2004
(A) the Director of the Arizona Department of Water
Resources; or
(B) with respect to an action to be carried out under
this title, a State official or agency designated by the Gov-
ernor or the State legislature.
(21) ENFORCEABILITY DATE.—The term ‘‘enforceability date’’
means the date on which the Secretary publishes in the Federal
Register the statement of findings described in section 207(c).
(22) FEE LAND.—The term ‘‘fee land’’ means land, other
than off-Reservation trust land, owned by the Community out-
side the exterior boundaries of the Reservation as of December
31, 2002.
(23) FIXED OM&R CHARGE.—The term ‘‘fixed OM&R charge’’
has the meaning given the term in the repayment stipulation.
(24) FRANKLIN IRRIGATION DISTRICT.—The term ‘‘Franklin
Irrigation District’’ means the entity of that name that is a
political subdivision of the State and organized under the laws
of the State.
(25) GILA
RIVER
ADJUDICATION
PROCEEDINGS.—The term
‘‘Gila River adjudication proceedings’’ means the action pending
in the Superior Court of the State of Arizona in and for the
County of Maricopa styled ‘‘In Re the General Adjudication
of All Rights To Use Water In The Gila River System and
Source’’ W–091 (Salt), W–092 (Verde), W–093 (Upper Gila),
W–094 (San Pedro) (Consolidated).
(26) GILA RIVER AGREEMENT.—
(A) IN GENERAL.—The term ‘‘Gila River agreement’’
means the agreement entitled the ‘‘Gila River Indian
Community Water Rights Settlement Agreement’’, dated
February 4, 2003.
(B) INCLUSIONS.—The term ‘‘Gila River agreement’’
includes—
(i) all exhibits to that agreement (including the
New Mexico Risk Allocation Agreement, which is also
an exhibit to the UVD Agreement); and
(ii) any amendment to that agreement or to an
exhibit to that agreement made or added pursuant
to that agreement consistent with section 203(a) or
as approved by the Secretary.
(27) GILA VALLEY IRRIGATION DISTRICT.—The term ‘‘Gila
Valley Irrigation District’’ means the entity of that name that
is a political subdivision of the State and organized under
the laws of the State.
(28) GLOBE EQUITY DECREE.—
(A) IN
GENERAL.—The term ‘‘Globe Equity Decree’’
means the decree dated June 29, 1935, entered in United
States of America v. Gila Valley Irrigation District, Globe
Equity No. 59, et al., by the United States District Court
for the District of Arizona.
(B) INCLUSIONS.—The term ‘‘Globe Equity Decree’’
includes all court orders and decisions supplemental to
that decree.
(29) HAGGARD DECREE.—
(A) IN GENERAL.—The term ‘‘Haggard Decree’’ means
the decree dated June 11, 1903, entered in United States
of America, as guardian of Chief Charley Juan Saul and
Cyrus Sam, Maricopa Indians and 400 other Maricopa
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118 STAT. 3482
PUBLIC LAW 108–451—DEC. 10, 2004
Indians similarly situated v. Haggard, et al., Cause No.
19, in the District Court for the Third Judicial District
of the Territory of Arizona, in and for the County of Mari-
copa.
(B) INCLUSIONS.—The term ‘‘Haggard Decree’’ includes
all court orders and decisions supplemental to that decree.
(30) INCLUDING.—The term ‘‘including’’ has the same
meaning as the term ‘‘including, but not limited to’’.
(31) INJURY TO WATER QUALITY.—The term ‘‘injury to water
quality’’ means any contamination, diminution, or deprivation
of water quality under Federal, State, or other law.
(32) INJURY TO WATER RIGHTS.—
(A) IN GENERAL.—The term ‘‘injury to water rights’’
means an interference with, diminution of, or deprivation
of water rights under Federal, State, or other law.
(B) INCLUSION.—The term ‘‘injury to water rights’’
includes a change in the underground water table and
any effect of such a change.
(C) EXCLUSION.—The term ‘‘injury to water rights’’ does
not include subsidence damage or injury to water quality.
(33) LOWER COLORADO RIVER BASIN DEVELOPMENT FUND.—
The term ‘‘Lower Colorado River Basin Development Fund’’
means the fund established by section 403 of the Colorado
River Basin Project Act (43 U.S.C. 1543).
(34) MASTER AGREEMENT.—The term ‘‘master agreement’’
means the agreement entitled ‘‘Arizona Water Settlement
Agreement’’ among the Director, the Central Arizona Water
Conservation District, and the Secretary, dated August 16,
2004.
(35) NM CAP ENTITY.—The term ‘‘NM CAP entity’’ means
the entity or entities that the State of New Mexico may
authorize to assume responsibility for the design, construction,
operation, maintenance, and replacement of the New Mexico
Unit.
(36) NEW
MEXICO
CONSUMPTIVE
USE
AND
FORBEARANCE
AGREEMENT.—
(A) IN GENERAL.—The term ‘‘New Mexico Consumptive
Use and Forbearance Agreement’’ means that agreement
entitled the ‘‘New Mexico Consumptive Use and Forbear-
ance Agreement,’’ entered into by and among the United
States, the Community, the San Carlos Irrigation and
Drainage District, and all of the signatories to the UVD
Agreement, and approved by the State of New Mexico,
and authorized, ratified, and approved by section 212(b).
(B) INCLUSIONS.—The ‘‘New Mexico Consumptive Use
and Forbearance Agreement’’ includes—
(i) all exhibits to that agreement (including the
New Mexico Risk Allocation agreement, which is also
an exhibit to the UVD agreement); and
(ii) any amendment to that agreement made or
added pursuant to that agreement.
(37) NEW
MEXICO
UNIT.—The term ‘‘New Mexico Unit’’
means that unit or units of the Central Arizona Project author-
ized by sections 301(a)(4) and 304 of the Colorado River Basin
Project Act (43 U.S.C. 1521(a)(4), 1524) (as amended by section
212).
(38) NEW MEXICO UNIT AGREEMENT.—
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118 STAT. 3483
PUBLIC LAW 108–451—DEC. 10, 2004
(A) IN GENERAL.—The term ‘‘New Mexico Unit Agree-
ment’’ means that agreement entitled the ‘‘New Mexico
Unit Agreement,’’ to be entered into by and between the
United States and the NM CAP entity upon notice to
the Secretary from the State of New Mexico that the State
of New Mexico intends to have the New Mexico Unit con-
structed or developed.
(B) INCLUSIONS.—The ‘‘New Mexico Unit Agreement’’
includes—
(i) all exhibits to that agreement; and
(ii) any amendment to that agreement made or
added pursuant to that agreement.
(39) OFF-RESERVATION
TRUST
LAND.—The term ‘‘off-Res-
ervation trust land’’ means land outside the exterior boundaries
of the Reservation that is held in trust by the United States
for the benefit of the Community as of the enforceability date.
(40) PHELPS DODGE.—The term ‘‘Phelps Dodge’’ means the
Phelps Dodge Corporation, a New York corporation of that
name, and Phelps Dodge’s subsidiaries (including Phelps Dodge
Morenci, Inc., a Delaware corporation of that name), and Phelps
Dodge’s successors or assigns.
(41) REPAYMENT
STIPULATION.—The term ‘‘repayment
stipulation’’ means the Revised Stipulation Regarding a Stay
of Litigation, Resolution of Issues During the Stay, and for
Ultimate Judgment Upon the Satisfaction of Conditions, filed
with the United States District Court for the District of Arizona
in Central Arizona Water Conservation District v. United
States, et al., No. CIV 95–09625–09TUC–09WDB(EHC), No.
CIV 95–091720–09PHX–09EHC (Consolidated Action), and that
court’s order dated April 28, 2003, and any amendments or
revisions thereto.
(42) RESERVATION.—
(A) IN GENERAL.—Except as provided in sections 207(d)
and 210(d), the term ‘‘Reservation’’ means the land located
within the exterior boundaries of the reservation created
under sections 3 and 4 of the Act of February 28, 1859
(11 Stat. 401, chapter LXVI) and Executive Orders of
August 31, 1876, June 14, 1879, May 5, 1882, November
15, 1883, July 31, 1911, June 2, 1913, August 27, 1914,
and July 19, 1915.
(B) EXCLUSION.—The term ‘‘Reservation’’ does not
include the land located in sections 16 and 36, Township
4 South, Range 4 East, Salt and Gila River Base and
Meridian.
(43) ROOSEVELT HABITAT CONSERVATION PLAN.—The term
‘‘Roosevelt Habitat Conservation Plan’’ means the habitat con-
servation plan approved by the United States Fish and Wildlife
Service under section 10(a)(1)(B) of the Endangered Species
Act of 1973 (16 U.S.C. 1539(a)(1)(B)) for the incidental taking
of endangered, threatened, and candidate species resulting from
the continued operation by the Salt River Project of Roosevelt
Dam and Lake, near Phoenix, Arizona.
(44) ROOSEVELT WATER CONSERVATION DISTRICT.—The term
‘‘Roosevelt Water Conservation District’’ means the entity of
that name that is a political subdivision of the State and
an irrigation district organized under the law of the State.
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118 STAT. 3484
PUBLIC LAW 108–451—DEC. 10, 2004
(45) SAFFORD.—The term ‘‘Safford’’ means the city of
Safford, Arizona.
(46) SALT RIVER PROJECT.—The term ‘‘Salt River Project’’
means the Salt River Project Agricultural Improvement and
Power District, a political subdivision of the State, and the
Salt River Valley Water Users’ Association, an Arizona Terri-
torial corporation.
(47) SAN CARLOS APACHE TRIBE.—The term ‘‘San Carlos
Apache Tribe’’ means the San Carlos Apache Tribe, a tribe
of Apache Indians organized under Section 16 of the Indian
Reorganization Act of June 18, 1934, 48 Stat. 987 (25 U.S.C.
476).
(48) SAN
CARLOS
IRRIGATION
AND
DRAINAGE
DISTRICT.—
The term ‘‘San Carlos Irrigation and Drainage District’’ means
the entity of that name that is a political subdivision of the
State and an irrigation and drainage district organized under
the laws of the State.
(49) SAN CARLOS IRRIGATION PROJECT.—
(A) IN
GENERAL.—The term ‘‘San Carlos Irrigation
Project’’ means the San Carlos irrigation project authorized
under the Act of June 7, 1924 (43 Stat. 475).
(B) INCLUSIONS.—The term ‘‘San Carlos Irrigation
Project’’ includes any amendments and supplements to the
Act described in subparagraph (A).
(50) SECRETARY.—The term ‘‘Secretary’’ means the Sec-
retary of the Interior.
(51) SPECIAL HOT LANDS.—The term ‘‘special hot lands’’
has the meaning given the term in subparagraph 2.34 of the
UVD agreement.
(52) STATE.—The term ‘‘State’’ means the State of Arizona.
(53) SUBCONTRACT.—
(A) IN GENERAL.—The term ‘‘subcontract’’ means a Cen-
tral Arizona Project water delivery subcontract.
(B) INCLUSION.—The term ‘‘subcontract’’ includes an
amendment to a subcontract.
(54) SUBSIDENCE DAMAGE.—The term ‘‘subsidence damage’’
means injury to land, water, or other real property resulting
from the settling of geologic strata or cracking in the surface
of the Earth of any length or depth, which settling or cracking
is caused by the pumping of underground water.
(55) TBI ELIGIBLE ACRES.—The term ‘‘TBI eligible acres’’
has the meaning given the term in subparagraph 2.37 of the
UVD agreement.
(56) UNCONTRACTED MUNICIPAL AND INDUSTRIAL WATER.—
The term ‘‘uncontracted municipal and industrial water’’ means
Central Arizona Project municipal and industrial priority water
that is not subject to subcontract on the date of enactment
of this Act.
(57) UV DECREED ACRES.—
(A) IN GENERAL.—The term ‘‘UV decreed acres’’ means
the land located upstream and to the east of the Coolidge
Dam for which water may be diverted pursuant to the
Globe Equity Decree.
(B) EXCLUSION.—The term ‘‘UV decreed acres’’ does
not include the reservation of the San Carlos Apache Tribe.
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118 STAT. 3485
PUBLIC LAW 108–451—DEC. 10, 2004
(58) UV DECREED WATER RIGHTS.—The term ‘‘UV decreed
water rights’’ means the right to divert water for use on UV
decreed acres in accordance with the Globe Equity Decree.
(59) UV IMPACT ZONE.—The term ‘‘UV impact zone’’ has
the meaning given the term in subparagraph 2.47 of the UVD
agreement.
(60) UV SUBJUGATED
LAND.—The term ‘‘UV subjugated
land’’ has the meaning given the term in subparagraph 2.50
of the UVD agreement.
(61) UVD AGREEMENT.—The term ‘‘UVD agreement’’ means
the agreement among the Community, the United States, the
San Carlos Irrigation and Drainage District, the Franklin
Irrigation District, the Gila Valley Irrigation District, Phelps
Dodge, and other parties located in the upper valley of the
Gila River, dated September 2, 2004.
(62) UV SIGNATORIES PARTIES.—The term ‘‘UV signatories’’
means the parties to the UVD agreement other than the United
States, the San Carlos Irrigation and Drainage District, and
the Community.
(63) WATER OM&R FUND.—The term ‘‘Water OM&R Fund’’
means the Gila River Indian Community Water OM&R Trust
Fund established by section 208.
(64) WATER RIGHT.—The term ‘‘water right’’ means any
right in or to groundwater, surface water, or effluent under
Federal, State, or other law.
(65) WATER
RIGHTS
APPURTENANT
TO
NEW
MEXICO
381
ACRES.—The term ‘‘water rights appurtenant to New Mexico
381 acres’’ means the water rights—
(A) appurtenant to the 380.81 acres described in the
decree in Arizona v. California, 376 U.S. 340, 349 (1964);
and
(B) appurtenant to other land, or for other uses, for
which the water rights described in subparagraph (A) may
be modified or used in accordance with that decree.
(66) WATER RIGHTS FOR NEW MEXICO DOMESTIC PURPOSES.—
The term ‘‘water rights for New Mexico domestic purposes’’
means the water rights for domestic purposes of not more
than 265 acre-feet of water for consumptive use described in
paragraph IV(D)(2) of the decree in Arizona v. California, 376
U.S. 340, 350 (1964).
(67) 1994 BIOLOGICAL OPINION.—The term ‘‘1994 biological
opinion’’ means the biological opinion, numbered 2–21–90–F–
119, and dated April 15, 1994, relating to the transportation
and delivery of Central Arizona Project water to the Gila River
basin.
(68) 1996 BIOLOGICAL OPINION.—The term ‘‘1996 biological
opinion’’ means the biological opinion, numbered 2–21–95–F–
462 and dated July 23, 1996, relating to the impacts of modi-
fying Roosevelt Dam on the southwestern willow flycatcher.
(69) 1999 BIOLOGICAL OPINION.—The term ‘‘1999 biological
opinion’’ means the draft biological opinion numbered 2–21–
91–F–706, and dated May 1999, relating to the impacts of
the Central Arizona Project on Gila Topminnow in the Santa
Cruz River basin through the introduction and spread of non-
native aquatic species.
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118 STAT. 3486
PUBLIC LAW 108–451—DEC. 10, 2004
SEC. 3. ARBITRATION.
(a) NO PARTICIPATION BY THE UNITED STATES.—
(1) IN GENERAL.—No arbitration decision rendered pursu-
ant to subparagraph 12.1 of the UVD agreement or exhibit
20.1 of the Gila River agreement (including the joint control
board agreement attached to exhibit 20.1) shall be considered
invalid solely because the United States failed or refused to
participate in such arbitration proceedings that resulted in
such arbitration decision, so long as the matters in arbitration
under subparagraph 12.1 of the UVD agreement or exhibit
20.1 of the Gila River Agreement concern aspects of the water
rights of the Community, the San Carlos Irrigation Project,
or the Miscellaneous Flow Lands (as defined in subparagraph
2.18A of the UVD agreement) and not the water rights of
the United States in its own right, any other rights of the
United States, or the water rights or any other rights of the
United States acting on behalf of or for the benefit of another
tribe.
(2) ARBITRATION INEFFECTIVE.—If an issue otherwise sub-
ject to arbitration under subparagraph 12.1 of the UVD agree-
ment or exhibit 20.1 of the Gila River Agreement cannot be
arbitrated or if an arbitration decision will not be effective
because the United States cannot or will not participate in
the arbitration, then the issue shall be submitted for decision
to a court of competent jurisdiction, but not a court of the
Community.
(b) PARTICIPATION BY THE SECRETARY.—Notwithstanding any
provision of any agreement, exhibit, attachment, or other document
ratified by this Act, if the Secretary is required to enter arbitration
pursuant to this Act or any such document, the Secretary shall
follow the procedures for arbitration established by chapter 5 of
title 5, United States Code.
SEC. 4. ANTIDEFICIENCY.
The United States shall not be liable for failure to carry out
any obligation or activity required by this Act, including all titles
and all agreements or exhibits ratified or confirmed by this Act,
funded by—
(1) the Lower Basin Development Fund established by sec-
tion 403 of the Colorado River Basin Project Act (43 U.S.C.
1543), if there are not enough monies in that fund to fulfill
those obligations or carry out those activities; or
(2) appropriations, if appropriations are not provided by
Congress.
TITLE I—CENTRAL ARIZONA PROJECT
SETTLEMENT
SEC. 101. SHORT TITLE.
This title may be cited as the ‘‘Central Arizona Project Settle-
ment Act of 2004’’.
SEC. 102. FINDINGS.
Congress finds that—
43 USC 1501
note.
Central Arizona
Project
Settlement Act of
2004.
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118 STAT. 3487
PUBLIC LAW 108–451—DEC. 10, 2004
(1) the water provided by the Central Arizona Project to
Maricopa, Pinal, and Pima Counties in the State of Arizona,
is vital to citizens of the State; and
(2) an agreement on the allocation of Central Arizona
Project water among interested persons, including Federal and
State interests, would provide important benefits to the Federal
Government, the State of Arizona, Arizona Indian Tribes, and
the citizens of the State.
SEC. 103. GENERAL PERMISSIBLE USES OF THE CENTRAL ARIZONA
PROJECT.
In accordance with the CAP repayment contract, the Central
Arizona Project may be used to transport nonproject water for—
(1) domestic, municipal, fish and wildlife, and industrial
purposes; and
(2) any purpose authorized under the Colorado River Basin
Project Act (43 U.S.C. 1501 et seq.).
SEC. 104. ALLOCATION OF CENTRAL ARIZONA PROJECT WATER.
(a) NON-INDIAN AGRICULTURAL PRIORITY WATER.—
(1) REALLOCATION TO ARIZONA INDIAN TRIBES.—
(A) IN
GENERAL.—The Secretary shall reallocate
197,500 acre-feet of agricultural priority water made avail-
able pursuant to the master agreement for use by Arizona
Indian tribes, of which—
(i) 102,000 acre-feet shall be reallocated to the
Gila River Indian Community;
(ii) 28,200 acre-feet shall be reallocated to the
Tohono O’odham Nation; and
(iii) subject to the conditions specified in subpara-
graph (B), 67,300 acre-feet shall be reallocated to
Arizona Indian tribes.
(B) CONDITIONS.—The reallocation of agricultural pri-
ority water under subparagraph (A)(iii) shall be subject
to the conditions that—
(i) such water shall be used to resolve Indian water
claims in Arizona, and may be allocated by the Sec-
retary to Arizona Indian Tribes in fulfillment of future
Arizona Indian water rights settlement agreements
approved by an Act of Congress. In the absence of
an Arizona Indian water rights settlement that is
approved by an Act of Congress after the date of enact-
ment of this Act, the Secretary shall not allocate any
such water until December 31, 2030. Any allocations
made by the Secretary after such date shall be accom-
panied by a certification that the Secretary is making
the allocation in order to assist in the resolution of
an Arizona Indian water right claim. Any such water
allocated to an Arizona Indian Tribe pursuant to a
water delivery contract with the Secretary under this
clause shall be counted on an acre-foot per acre-foot
basis against any claim to water for that Tribe’s res-
ervation;
(ii) notwithstanding clause (i), the Secretary shall
retain 6,411 acre-feet of water for use for a future
water rights settlement agreement approved by an Act
of Congress that settles the Navajo Nation’s claims
to water in Arizona. If Congress does not approve
Effective date.
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this settlement before December 31, 2030, the 6,411
acre-feet of CAP water shall be available to the Sec-
retary under clause (i); and
(iii) the agricultural priority water shall not, with-
out specific authorization by Act of Congress, be leased,
exchanged, forborne, or otherwise transferred by an
Arizona Indian tribe for any direct or indirect use
outside the reservation of the Arizona Indian tribe.
(C) REPORT.—The Secretary, in consultation with
Arizona Indian tribes and the State, shall prepare a report
for Congress by December 31, 2016, that assesses whether
the potential benefits of subparagraph (A) are being con-
veyed to Arizona Indian tribes pursuant to water rights
settlements enacted subsequent to this Act. For those
Arizona Indian tribes that have not yet settled water rights
claims, the Secretary shall describe whether any active
negotiations are taking place, and identify any critical
water needs that exist on the reservation of each such
Arizona Indian tribe. The Secretary shall also identify and
report on the use of unused quantities of agricultural pri-
ority water made available to Arizona Indian tribes under
subparagraph (A).
(2) REALLOCATION TO THE ARIZONA DEPARTMENT OF WATER
RESOURCES.—
(A) IN
GENERAL.—Subject to subparagraph (B) and
subparagraph 9.3 of the master agreement, the Secretary
shall reallocate up to 96,295 acre-feet of agricultural pri-
ority water made available pursuant to the master agree-
ment to the Arizona Department of Water Resources, to
be held under contract in trust for further allocation under
subparagraph (C).
(B) REQUIRED
DOCUMENTATION.—The reallocation of
agricultural priority water under subparagraph (A) is sub-
ject to the condition that the Secretary execute any appro-
priate 
documents 
to 
memorialize 
the 
reallocation,
including—
(i) an allocation decision; and
(ii) a contract that prohibits the direct use of the
agricultural priority water by the Arizona Department
of Water Resources.
(C) FURTHER ALLOCATION.—With respect to the alloca-
tion of agricultural priority water under subparagraph
(A)—
(i) before that water may be further allocated—
(I) the Director shall submit to the Secretary,
and the Secretary shall receive, a recommendation
for reallocation;
(II) as soon as practicable after receiving the
recommendation, the Secretary shall carry out all
necessary reviews of the proposed reallocation, in
accordance with applicable Federal law; and
(III) if the recommendation is rejected by the
Secretary, the Secretary shall—
(aa) request a revised recommendation
from the Director; and
(bb) proceed with any reviews required
under subclause (II); and
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118 STAT. 3489
PUBLIC LAW 108–451—DEC. 10, 2004
(ii) as soon as practicable after the date on which
agricultural priority water is further allocated, the Sec-
retary shall offer to enter into a subcontract for that
water in accordance with paragraphs (1) and (2) of
subsection (d).
(D) MASTER AGREEMENT.—The reallocation of agricul-
tural priority water under subparagraphs (A) and (C) is
subject to the master agreement, including certain rights
provided by the master agreement to water users in Pinal
County, Arizona.
(3) PRIORITY.—The agricultural priority water reallocated
under paragraphs (1) and (2) shall be subject to the condition
that the water retain its non-Indian agricultural delivery pri-
ority.
(b) UNCONTRACTED CENTRAL ARIZONA PROJECT MUNICIPAL AND
INDUSTRIAL PRIORITY WATER.—
(1) REALLOCATION.—The Secretary shall, on the rec-
ommendation of the Director, reallocate 65,647 acre-feet of
uncontracted municipal and industrial water, of which—
(A) 285 acre-feet shall be reallocated to the town of
Superior, Arizona;
(B) 806 acre-feet shall be reallocated to the Cave Creek
Water Company;
(C) 1,931 acre-feet shall be reallocated to the Chaparral
Water Company;
(D) 508 acre-feet shall be reallocated to the town of
El Mirage, Arizona;
(E) 7,211 acre-feet shall be reallocated to the city of
Goodyear, Arizona;
(F) 147 acre-feet shall be reallocated to the H2O Water
Company;
(G) 7,115 acre-feet shall be reallocated to the city of
Mesa, Arizona;
(H) 5,527 acre-feet shall be reallocated to the city of
Peoria, Arizona;
(I) 2,981 acre-feet shall be reallocated to the city of
Scottsdale, Arizona;
(J) 808 acre-feet shall be reallocated to the AVRA
Cooperative;
(K) 4,986 acre-feet shall be reallocated to the city of
Chandler, Arizona;
(L) 1,071 acre-feet shall be reallocated to the Del Lago
(Vail) Water Company;
(M) 3,053 acre-feet shall be reallocated to the city
of Glendale, Arizona;
(N) 1,521 acre-feet shall be reallocated to the Commu-
nity Water Company of Green Valley, Arizona;
(O) 4,602 acre-feet shall be reallocated to the Metropoli-
tan Domestic Water Improvement District;
(P) 3,557 acre-feet shall be reallocated to the town
of Oro Valley, Arizona;
(Q) 8,206 acre-feet shall be reallocated to the city of
Phoenix, Arizona;
(R) 2,876 acre-feet shall be reallocated to the city of
Surprise, Arizona;
(S) 8,206 acre-feet shall be reallocated to the city of
Tucson, Arizona; and
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118 STAT. 3490
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(T) 250 acre-feet shall be reallocated to the Valley
Utilities Water Company.
(2) SUBCONTRACTS.—
(A) IN GENERAL.—As soon as practicable after the date
of enactment of this Act, and in accordance with paragraphs
(1) and (2) of subsection (d) and any other applicable Fed-
eral laws, the Secretary shall offer to enter into sub-
contracts for the delivery of the uncontracted municipal
and industrial water reallocated under paragraph (1).
(B) REVISED
RECOMMENDATION.—If the Secretary is
precluded under applicable Federal law from entering into
a subcontract with an entity identified in paragraph (1),
the Secretary shall—
(i) request a revised recommendation from the
Director; and
(ii) on receipt of a recommendation under clause
(i), reallocate and enter into a subcontract for the
delivery of the water in accordance with subparagraph
(A).
(c) LIMITATIONS.—
(1) AMOUNT.—
(A) IN
GENERAL.—The total amount of entitlements
under long-term contracts (as defined in the repayment
stipulation) for the delivery of Central Arizona Project
water in the State shall not exceed 1,415,000 acre-feet,
of which—
(i) 650,724 acre-feet shall be—
(I) under contract to Arizona Indian tribes;
or
(II) available to the Secretary for allocation
to Arizona Indian tribes; and
(ii) 764,276 acre-feet shall be under contract or
available for allocation to—
(I) non-Indian municipal and industrial enti-
ties;
(II) 
the 
Arizona 
Department 
of 
Water
Resources; and
(III) non-Indian agricultural entities.
(B) EXCEPTION.—Subparagraph (A) shall not apply to
Central Arizona Project water delivered to water users
in Arizona in exchange for Gila River water used in New
Mexico as provided in section 304 of the Colorado River
Basin Project Act (43 U.S.C. 1524) (as amended by section
212).
(2) TRANSFER.—
(A) IN GENERAL.—Except pursuant to the master agree-
ment, Central Arizona Project water may not be transferred
from—
(i) a use authorized under paragraph (1)(A)(i) to
a use authorized under paragraph (1)(A)(ii); or
(ii) a use authorized under paragraph (1)(A)(ii)
to a use authorized under paragraph (1)(A)(i).
(B) EXCEPTIONS.—
(i) LEASES.—A lease of Central Arizona Project
water by an Arizona Indian tribe to an entity described
in paragraph (1)(A)(ii) under an Indian water rights
settlement approved by an Act of Congress shall not
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118 STAT. 3491
PUBLIC LAW 108–451—DEC. 10, 2004
be considered to be a transfer for purposes of subpara-
graph (A).
(ii) EXCHANGES.—An exchange of Central Arizona
Project water by an Arizona Indian tribe to an entity
described in paragraph (1)(A)(ii) shall not be considered
to be a transfer for purposes of subparagraph (A).
(iii) Notwithstanding subparagraph (A), up to
17,000 acre-feet of CAP municipal and industrial water
under the subcontract among the United States, the
Central Arizona Water Conservation District, and
Asarco, 
subcontract 
No. 
3–07–30–W0307, 
dated
November 7, 1993, may be reallocated to the Commu-
nity on execution of an exchange and lease agreement
among the Community, the United States, and Asarco.
(d) 
CENTRAL
ARIZONA
PROJECT
CONTRACTS
AND
SUB-
CONTRACTS.—
(1) IN GENERAL.—Notwithstanding section 6 of the Rec-
lamation Project Act of 1939 (43 U.S.C. 485e), and paragraphs
(2) and (3) of section 304(b) of the Colorado River Basin Project
Act (43 U.S.C. 1524(b)), as soon as practicable after the date
of enactment of this Act, the Secretary shall offer to enter
into subcontracts or to amend all Central Arizona Project con-
tracts and subcontracts in effect as of that date in accordance
with paragraph (2).
(2) REQUIREMENTS.—All subcontracts and amendments to
Central Arizona Project contracts and subcontracts under para-
graph (1)—
(A) shall be for permanent service (within the meaning
of section 5 of the Boulder Canyon Project Act of 1928
(43 U.S.C. 617d));
(B) shall have an initial delivery term that is the
greater of—
(i) 100 years; or
(ii) a term—
(I) authorized by Congress; or
(II) provided under the appropriate Central
Arizona Project contract or subcontract in exist-
ence on the date of enactment of this Act;
(C) shall conform to the shortage sharing criteria
described in paragraph 5.3 of the Tohono O’odham settle-
ment agreement;
(D) shall include the prohibition and exception
described in subsection (e); and
(E) shall not require—
(i) that any Central Arizona Project water received
in exchange for effluent be deducted from the contrac-
tual entitlement of the CAP contractor or CAP subcon-
tractor; or
(ii) that any additional modification of the Central
Arizona Project contracts or subcontracts be made as
a condition of acceptance of the subcontract or amend-
ments.
(3) APPLICABILITY.—This subsection does not apply to—
(A) a subcontract for non-Indian agricultural use; or
(B) a contract executed under paragraph 5(d) of the
repayment stipulation.
(e) PROHIBITION ON TRANSFER.—
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118 STAT. 3492
PUBLIC LAW 108–451—DEC. 10, 2004
(1) IN GENERAL.—Except as provided in paragraph (2), no
Central Arizona Project water shall be leased, exchanged,
forborne, or otherwise transferred in any way for use directly
or indirectly outside the State.
(2) EXCEPTIONS.—Central Arizona Project water may be—
(A) leased, exchanged, forborne, or otherwise trans-
ferred under an agreement with the Arizona Water
Banking Authority that is in accordance with part 414
of title 43, Code of Federal Regulations; and
(B) delivered to users in Arizona in exchange for Gila
River water used in New Mexico as provided in section
304 of the Colorado River Basin Project Act (43 U.S.C.
1524) (as amended by section 212).
(3) EFFECT
OF
SUBSECTION.—Nothing in this subsection
prohibits any entity from entering into a contract with the
Arizona Water Banking Authority or a successor of the
Authority under State law.
SEC. 105. FIRMING OF CENTRAL ARIZONA PROJECT INDIAN WATER.
(a) FIRMING PROGRAM.—The Secretary and the State shall
develop a firming program to ensure that 60,648 acre-feet of the
agricultural priority water made available pursuant to the master
agreement and reallocated to Arizona Indian tribes under section
104(a)(1), shall, for a 100-year period, be delivered during water
shortages in the same manner as water with a municipal and
industrial delivery priority in the Central Arizona Project system
is delivered during water shortages.
(b) DUTIES.—
(1) SECRETARY.—The Secretary shall—
(A) firm 28,200 acre-feet of agricultural priority water
reallocated to the Tohono O’odham Nation under section
104(a)(1)(A)(ii); and
(B) firm 8,724 acre-feet of agricultural priority water
reallocated 
to 
Arizona 
Indian 
tribes 
under 
section
104(a)(1)(A)(iii).
(2) STATE.—The State shall—
(A) firm 15,000 acre-feet of agricultural priority water
reallocated to the Community under section 104(a)(1)(A)(i);
(B) firm 8,724 acre-feet of agricultural priority water
reallocated 
to 
Arizona 
Indian 
tribes 
under 
section
104(a)(1)(A)(iii); and
(C) assist the Secretary in carrying out obligations
of the Secretary under paragraph (1)(A) in accordance with
section 306 of the Southern Arizona Water Rights Settle-
ment Amendments Act (as added by section 301).
(c) AUTHORIZATION OF APPROPRIATIONS.—There are authorized
to be appropriated to the Secretary such sums as are necessary
to carry out the duties of the Secretary under subsection (b)(1).
SEC. 106. ACQUISITION OF AGRICULTURAL PRIORITY WATER.
(a) APPROVAL OF AGREEMENT.—
(1) IN GENERAL.—Except to the extent that any provision
of the master agreement conflicts with any provision of this
title, the master agreement is authorized, ratified, and con-
firmed. To the extent that amendments are executed to make
the master agreement consistent with this title, such amend-
ments are also authorized, ratified, and confirmed.
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118 STAT. 3493
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(2) EXHIBITS.—The Secretary is directed to and shall exe-
cute the master agreement and any of the exhibits to the
master agreement that have not been executed as of the date
of enactment of this Act.
(3) DEBT COLLECTION.—For any agricultural priority water
that is not relinquished under the master agreement, the sub-
contractor shall continue to pay, consistent with the master
agreement, the portion of the debt associated with any retained
water under section 9(d) of the Reclamation Project Act of
1939 (43 U.S.C. 485h(d)), and the Secretary shall apply such
revenues toward the reimbursable section 9(d) debt of that
subcontractor.
(4) EFFECTIVE DATE.—The provisions of subsections (b) and
(c) shall take effect on the date of enactment of this Act.
(b) NONREIMBURSABLE DEBT.—
(1) IN GENERAL.—In accordance with the master agreement,
the portion of debt incurred under section 9(d) of the Reclama-
tion Project Act of 1939 (43 U.S.C. 485h(d)), and identified
in the master agreement as nonreimbursable to the United
States, shall be nonreimbursable and nonreturnable to the
United States in an amount not to exceed $73,561,337.
(2) EXTENSION.—In accordance with the master agreement,
the Secretary may extend, on an annual basis, the repayment
schedule of debt incurred under section 9(d) of the Reclamation
Project Act of 1939 (43 U.S.C. 485h(d)) by CAP subcontractors.
(c) EXEMPTION.—The Reclamation Reform Act of 1982 (43
U.S.C. 390aa et seq.) and any other acreage limitation or full
cost pricing provisions of Federal law shall not apply to—
(1) land within the exterior boundaries of the Central
Arizona Water Conservation District or served by Central
Arizona Project water;
(2) land within the exterior boundaries of the Salt River
Reservoir District;
(3) land held in trust by the United States for an Arizona
Indian tribe that is—
(A) within the exterior boundaries of the Central
Arizona Water Conservation District; or
(B) served by Central Arizona Project water; or
(4) any person, entity, or land, solely on the basis of—
(A) receipt of any benefits under this Act;
(B) execution or performance of the Gila River agree-
ment; or
(C) the use, storage, delivery, lease, or exchange of
Central Arizona Project water.
SEC. 107. LOWER COLORADO RIVER BASIN DEVELOPMENT FUND.
(a) IN GENERAL.—Section 403 of the Colorado River Basin
Project Act (43 U.S.C. 1543) is amended by striking subsection
(f) and inserting the following:
‘‘(f) ADDITIONAL USES OF REVENUE FUNDS.—
‘‘(1) CREDITING
AGAINST
CENTRAL
ARIZONA
WATER
CON-
SERVATION DISTRICT PAYMENTS.—Funds credited to the develop-
ment fund pursuant to subsection (b) and paragraphs (1) and
(3) of subsection (c), the portion of revenues derived from the
sale of power and energy for use in the State of Arizona pursu-
ant to subsection (c)(2) in excess of the amount necessary
to meet the requirements of paragraphs (1) and (2) of subsection
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118 STAT. 3494
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(d), and any annual payment by the Central Arizona Water
Conservation District to effect repayment of reimbursable Cen-
tral Arizona Project construction costs, shall be credited
annually against the annual payment owed by the Central
Arizona Water Conservation District to the United States for
the Central Arizona Project.
‘‘(2) FURTHER USE OF REVENUE FUNDS CREDITED AGAINST
PAYMENTS
OF
CENTRAL
ARIZONA
WATER
CONSERVATION
DIS-
TRICT.—After being credited in accordance with paragraph (1),
the funds and portion of revenues described in that paragraph
shall be available annually, without further appropriation, in
order of priority—
‘‘(A) to pay annually the fixed operation, maintenance,
and replacement charges associated with the delivery of
Central Arizona Project water held under long-term con-
tracts for use by Arizona Indian tribes (as defined in section
2 of the Arizona Water Settlements Act) in accordance
with clause 8(d)(i)(1)(i) of the Repayment Stipulation (as
defined in section 2 of the Arizona Water Settlements Act);
‘‘(B) to make deposits, totaling $53,000,000 in the
aggregate, in the Gila River Indian Community Water
OM&R Trust Fund established by section 208 of the
Arizona Water Settlements Act;
‘‘(C) to pay $147,000,000 for the rehabilitation of the
San Carlos Irrigation Project, of which not more than
$25,000,000 shall be available annually consistent with
attachment 6.5.1 of exhibit 20.1 of the Gila River agree-
ment, except that the total amount of $147,000,000 shall
be increased or decreased, as appropriate, based on ordi-
nary fluctuations since January 1, 2000, in construction
cost indices applicable to the types of construction involved
in the rehabilitation;
‘‘(D) in addition to amounts made available for the
purpose through annual appropriations, as reasonably allo-
cated by the Secretary without regard to any trust obliga-
tion on the part of the Secretary to allocate the funding
under any particular priority and without regard to priority
(except that payments required by clause (i) shall be made
first)—
‘‘(i) to make deposits totaling $66,000,000, adjusted
to reflect changes since January 1, 2004, in the
construction cost indices applicable to the types of
construction involved in construction of the New
Mexico Unit, into the New Mexico Unit Fund as pro-
vided by section 212(i) of the Arizona Water Settle-
ments Act in 10 equal annual payments beginning
in 2012;
‘‘(ii) upon satisfaction of the conditions set forth
in subsections (j) and (k) of section 212, to pay certain
of the costs associated with construction of the New
Mexico Unit, in addition to any amounts that may
be expended from the New Mexico Unit Fund, in a
minimum amount of $34,000,000 and a maximum
amount of $62,000,000, as provided in section 212 of
the Arizona Water Settlements Act, as adjusted to
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118 STAT. 3495
PUBLIC LAW 108–451—DEC. 10, 2004
reflect changes since January 1, 2004, in the construc-
tion cost indices applicable to the types of construction
involved in construction of the New Mexico Unit;
‘‘(iii) to pay the costs associated with the construc-
tion of distribution systems required to implement the
provisions of—
‘‘(I) the contract entered into between the
United States and the Gila River Indian Commu-
nity, numbered 6–07–03–W0345, and dated July
20, 1998;
‘‘(II) section 3707(a)(1) of the San Carlos
Apache Tribe Water Rights Settlement Act of 1992
(106 Stat. 4747); and
‘‘(III) section 304 of the Southern Arizona
Water Rights Settlement Amendments Act of 2004;
‘‘(iv) to pay $52,396,000 for the rehabilitation of
the San Carlos Irrigation Project as provided in section
203(d)(4) of the Arizona Water Settlements Act, of
which not more than $9,000,000 shall be available
annually, except that the total amount of $52,396,000
shall be increased or decreased, as appropriate, based
on ordinary fluctuations since January 1, 2000, in
construction cost indices applicable to the types of
construction involved in the rehabilitation;
‘‘(v) to pay other costs specifically identified
under—
‘‘(I) sections 213(g)(1) and 214 of the Arizona
Water Settlements Act; and
‘‘(II) the Southern Arizona Water Rights
Settlement Amendments Act of 2004;
‘‘(vi) to pay a total of not more than $250,000,000
to the credit of the Future Indian Water Settlement
Subaccount of the Lower Colorado Basin Development
Fund, for use for Indian water rights settlements in
Arizona approved by Congress after the date of enact-
ment of this Act, subject to the requirement that, not-
withstanding any other provision of this Act, any funds
credited to the Future Indian Water Settlement Sub-
account that are not used in furtherance of a congres-
sionally approved Indian water rights settlement in
Arizona by December 31, 2030, shall be returned to
the main Lower Colorado Basin Development Fund
for expenditure on authorized uses pursuant to this
Act, provided that any interest earned on funds held
in the Future Indian Water Settlement Subaccount
shall remain in such subaccount until disbursed or
returned in accordance with this section;
‘‘(vii) to pay costs associated with the installation
of gages on the Gila River and its tributaries to
measure the water level of the Gila River and its
tributaries for purposes of the New Mexico Consump-
tive Use and Forbearance Agreement in an amount
not to exceed $500,000; and
‘‘(viii) to pay the Secretary’s costs of implementing
the Central Arizona Project Settlement Act of 2004;
‘‘(E) in addition to amounts made available for the
purpose through annual appropriations—
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118 STAT. 3496
PUBLIC LAW 108–451—DEC. 10, 2004
‘‘(i) to pay the costs associated with the construc-
tion of on-reservation Central Arizona Project distribu-
tion systems for the Yavapai Apache (Camp Verde),
Tohono O’odham Nation (Sif Oidak District), Pascua
Yaqui, and Tonto Apache tribes; and
‘‘(ii) to make payments to those tribes in accord-
ance with paragraph 8(d)(i)(1)(iv) of the repayment
stipulation (as defined in section 2 of the Arizona Water
Settlements Act), except that if a water rights settle-
ment Act of Congress authorizes such construction,
payments to those tribes shall be made from funds
in the Future Indian Water Settlement Subaccount;
and
‘‘(F) if any amounts remain in the development fund
at the end of a fiscal year, to be carried over to the following
fiscal year for use for the purposes described in subpara-
graphs (A) through (E).
‘‘(3) REVENUE FUNDS IN EXCESS OF REVENUE FUNDS CRED-
ITED AGAINST CENTRAL ARIZONA WATER CONSERVATION DISTRICT
PAYMENTS.—The funds and portion of revenues described in
paragraph (1) that are in excess of amounts credited under
paragraph (1) shall be available, on an annual basis, without
further appropriation, in order of priority—
‘‘(A) to pay annually the fixed operation, maintenance
and replacement charges associated with the delivery of
Central Arizona Project water under long-term contracts
held by Arizona Indian tribes (as defined in section 2
of the Arizona Water Settlements Act);
‘‘(B) to make the final outstanding annual payment
for the costs of each unit of the projects authorized under
title III that are to be repaid by the Central Arizona
Water Conservation District;
‘‘(C) to reimburse the general fund of the Treasury
for fixed operation, maintenance, and replacement charges
previously paid under paragraph (2)(A);
‘‘(D) to reimburse the general fund of the Treasury
for costs previously paid under subparagraphs (B) through
(E) of paragraph (2);
‘‘(E) to pay to the general fund of the Treasury the
annual installment on any debt relating to the Central
Arizona Project under section 9(d) of the Reclamation
Project Act of 1939 (43 U.S.C. 485h(d)), made nonreimburs-
able under section 106(b) of the Arizona Water Settlements
Act;
‘‘(F) to pay to the general fund of the Treasury the
difference between—
‘‘(i) the costs of each unit of the projects authorized
under title III that are repayable by the Central
Arizona Water Conservation District; and
‘‘(ii) any costs allocated to reimbursable functions
under any Central Arizona Project cost allocation
undertaken by the United States; and
‘‘(G) for deposit in the general fund of the Treasury.
‘‘(4) INVESTMENT OF AMOUNTS.—
‘‘(A) IN GENERAL.—The Secretary of the Treasury shall
invest such portion of the development fund as is not,
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PUBLIC LAW 108–451—DEC. 10, 2004
in the judgment of the Secretary of the Interior, required
to meet current needs of the development fund.
‘‘(B) PERMITTED INVESTMENTS.—
‘‘(i) IN
GENERAL.—Notwithstanding any other
provision of law, including any provision requiring the
consent or concurrence of any party, the investments
referred to in subparagraph (A) shall include 1 or
more of the following:
‘‘(I) Any investments referred to in the Act
of June 24, 1938 (25 U.S.C. 162a).
‘‘(II) Investments in obligations of government
corporations and government-sponsored entities
whose charter statutes provide that their obliga-
tions are lawful investments for federally managed
funds.
‘‘(III) The obligations referred to in section
201 of the Social Security Act (42 U.S.C. 401).
‘‘(ii) LAWFUL INVESTMENTS.—For purposes of clause
(i), obligations of government corporations and govern-
ment-sponsored entities whose charter statutes provide
that their obligations are lawful investments for
federally managed funds includes any of the following
securities or securities with comparable language con-
cerning the investment of federally managed funds:
‘‘(I) Obligations of the United States Postal
Service as authorized by section 2005 of title 39,
United States Code.
‘‘(II) Bonds and other obligations of the Ten-
nessee Valley Authority as authorized by section
15d of the Tennessee Valley Authority Act of 1933
(16 U.S.C. 831n–4).
‘‘(III) Mortgages, obligations, or other securi-
ties of the Federal Home Loan Mortgage Corpora-
tion as authorized by section 303 of the Federal
Home Loan Mortgage Corporation Act (12 U.S.C.
1452).
‘‘(IV) Bonds, notes, or debentures of the Com-
modity Credit Corporation as authorized by section
4 of the Act of March 4, 1939 (15 U.S.C. 713a–
4).
‘‘(C) ACQUISITION OF OBLIGATIONS.—For the purpose
of investments under subparagraph (A), obligations may
be acquired—
‘‘(i) on original issue at the issue price; or
‘‘(ii) by purchase of outstanding obligations at the
market price.
‘‘(D) SALE OF OBLIGATIONS.—Any obligation acquired
by the development fund may be sold by the Secretary
of the Treasury at the market price.
‘‘(E) CREDITS TO FUND.—The interest on, and the pro-
ceeds from the sale or redemption of, any obligations held
in the development fund shall be credited to and form
a part of the development fund.
‘‘(5) AMOUNTS
NOT
AVAILABLE
FOR
CERTAIN
FEDERAL
OBLIGATIONS.—None of the provisions of this section, including
paragraphs (2)(A) and (3)(A), shall be construed to make any
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118 STAT. 3498
PUBLIC LAW 108–451—DEC. 10, 2004
of the funds referred to in this section available for the fulfill-
ment of any Federal obligation relating to the payment of
OM&R charges if such obligation is undertaken pursuant to
Public Law 95–328, Public Law 98–530, or any settlement
agreement with the United States (or amendments thereto)
approved by or pursuant to either of those acts.’’.
(b) LIMITATION.—Amounts made available under the amend-
ment made by subsection (a)—
(1) shall be identified and retained in the Lower Colorado
River Basin Development Fund established by section 403 of
the Colorado River Basin Project Act (43 U.S.C. 1543); and
(2) shall not be expended or withdrawn from that fund
until the later of—
(A) the date on which the findings described in section
207(c) are published in the Federal Register; or
(B) January 1, 2010.
(c) TECHNICAL
AMENDMENTS.—The Colorado River Basin
Project Act (43 U.S.C. 1501 et seq.) is amended—
(1) in section 403(g), by striking ‘‘clause (c)(2)’’ and inserting
‘‘subsection (c)(2)’’; and
(2) in section 403(e), by deleting the first word and inserting
‘‘Except as provided in subsection (f), revenues’’.
SEC. 108. EFFECT.
Except for provisions relating to the allocation of Central
Arizona Project water and the Reclamation Reform Act of 1982
(43 U.S.C. 390aa et seq.), nothing in this title affects—
(1) any treaty, law, or agreement governing the use of
water from the Colorado River; or
(2) any rights to use Colorado River water existing on
the date of enactment of this Act.
SEC. 109. REPEAL.
Section 11(h) of the Salt River Pima-Maricopa Indian Commu-
nity Water Rights Settlement Act of 1988 (102 Stat. 2559) is
repealed.
SEC. 110. AUTHORIZATION OF APPROPRIATIONS.
(a) IN GENERAL.—There are authorized to be appropriated such
sums as are necessary to comply with—
(1) the 1994 biological opinion, including any funding trans-
fers required by the opinion;
(2) the 1996 biological opinion, including any funding trans-
fers required by the opinion; and
(3) any final biological opinion resulting from the 1999
biological opinion, including any funding transfers required by
the opinion.
(b) CONSTRUCTION COSTS.—Amounts made available under sub-
section (a) shall be treated as Central Arizona Project construction
costs.
(c) AGREEMENTS.—
(1) IN GENERAL.—Any amounts made available under sub-
section (a) may be used to carry out agreements to permanently
fund long-term reasonable and prudent alternatives in accepted
biological opinions relating to the Central Arizona Project.
(2) REQUIREMENTS.—To ensure that long-term environ-
mental compliance may be met without further appropriations,
an agreement under paragraph (1) shall include a provision
43 USC 1543.
Deadline.
Federal Register,
publication.
43 USC 1543
note.
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118 STAT. 3499
PUBLIC LAW 108–451—DEC. 10, 2004
requiring that the contractor manage the funds through
interest-bearing investments.
SEC. 111. REPEAL ON FAILURE OF ENFORCEABILITY DATE UNDER
TITLE II.
(a) IN GENERAL.—Except as provided in subsection (b), if the
Secretary does not publish a statement of findings under section
207(c) by December 31, 2007—
(1) this title is repealed effective January 1, 2008, and
any action taken by the Secretary and any contract entered
under any provision of this title shall be void; and
(2) any amounts appropriated under section 110 that
remain unexpended shall immediately revert to the general
fund of the Treasury.
(b) EXCEPTION.—No subcontract amendment executed by the
Secretary under the notice of June 18, 2003 (67 Fed. Reg. 36578),
shall be considered to be a contract entered into by the Secretary
for purposes of subsection (a)(1).
TITLE II—GILA RIVER INDIAN COMMU-
NITY WATER RIGHTS SETTLEMENT
SEC. 201. SHORT TITLE.
This title may be cited as the ‘‘Gila River Indian Community
Water Rights Settlement Act of 2004’’.
SEC. 202. PURPOSES.
The purposes of this title are—
(1) to resolve permanently certain damage claims and all
water rights claims among the United States on behalf of
the Community, its members, and allottees, and the Community
and its neighbors;
(2) to authorize, ratify, and confirm the Gila River agree-
ment;
(3) to authorize and direct the Secretary to execute and
perform all obligations of the Secretary under the Gila River
agreement;
(4) to authorize the actions and appropriations necessary
for the United States to meet obligations of the United States
under the Gila River agreement and this title; and
(5) to authorize and direct the Secretary to execute the
New Mexico Consumptive Use and Forbearance Agreement to
allow the Secretary to exercise the rights authorized by sub-
sections (d) and (f) of section 304 of the Colorado River Basin
Project Act (43 U.S.C. 1524).
SEC. 203. APPROVAL OF THE GILA RIVER INDIAN COMMUNITY WATER
RIGHTS SETTLEMENT AGREEMENT.
(a) IN GENERAL.—Except to the extent that any provision of
the Gila River agreement conflicts with any provision of this title,
the Gila River agreement is authorized, ratified, and confirmed.
To the extent amendments are executed to make the Gila River
agreement consistent with this title, such amendments are also
authorized, ratified, and confirmed.
(b) EXECUTION OF AGREEMENT.—To the extent that the Gila
River agreement does not conflict with this title, the Secretary
Gila River Indian
Community
Water Rights
Settlement Act of
2004.
43 USC 1501
note.
Effective date.
43 USC 1501
note.
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118 STAT. 3500
PUBLIC LAW 108–451—DEC. 10, 2004
is directed to and shall execute the Gila River agreement, including
all exhibits to the Gila River agreement requiring the signature
of the Secretary and any amendments necessary to make the Gila
River agreement consistent with this title, after the Community
has executed the Gila River agreement and any such amendments.
(c) NATIONAL ENVIRONMENTAL POLICY ACT.—
(1) ENVIRONMENTAL
COMPLIANCE.—In implementing the
Gila River agreement, the Secretary shall promptly comply
with all aspects of the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.), the Endangered Species Act
of 1973 (16 U.S.C. 1531 et seq.), and all other applicable
environmental Acts and regulations.
(2) EXECUTION OF THE GILA RIVER AGREEMENT.—Execution
of the Gila River agreement by the Secretary under this section
shall not constitute a major Federal action under the National
Environmental Policy Act (42 U.S.C. 4321 et seq.). The Sec-
retary is directed to carry out all necessary environmental
compliance required by Federal law in implementing the Gila
River agreement.
(3) LEAD AGENCY.—The Bureau of Reclamation shall be
designated as the lead agency with respect to environmental
compliance.
(d) REHABILITATION
AND
OPERATION, MAINTENANCE, 
AND
REPLACEMENT OF CERTAIN WATER WORKS.—
(1) IN GENERAL.—In addition to any obligations of the Sec-
retary with respect to the San Carlos Irrigation Project,
including any operation or maintenance responsibility existing
on the date of enactment of this Act, the Secretary shall—
(A) in accordance with exhibit 20.1 to the Gila River
agreement, provide for the rehabilitation of the San Carlos
Irrigation Project water diversion and delivery works with
the funds provided for under section 403(f)(2) of the Colo-
rado River Basin Project Act; and
(B) provide electric power for San Carlos Irrigation
Project wells and irrigation pumps at the Secretary’s direct
cost of transmission, distribution, and administration,
using the least expensive source of power available.
(2) JOINT CONTROL BOARD AGREEMENT.—
(A) IN GENERAL.—Except to the extent that it is in
conflict with this title, the Secretary shall execute the
joint control board agreement described in exhibit 20.1
to the Gila River agreement, including all exhibits to the
joint control board agreement requiring the signature of
the Secretary and any amendments necessary to the joint
control board agreement consistent with this title.
(B) CONTROLS.—The joint control board agreement
shall contain the following provisions, among others:
(i) The Secretary, acting through the Bureau of
Indian Affairs, shall continue to be responsible for
the operation and maintenance of Picacho Dam and
Coolidge Dam and Reservoir, and for scheduling and
delivering water to the Community and the District
through the San Carlos Irrigation Project joint works.
(ii) The actions and decisions of the joint control
board that pertain to construction and maintenance
of those San Carlos Irrigation Project joint works that
are the subject of the joint control board agreement
Deadlines.
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118 STAT. 3501
PUBLIC LAW 108–451—DEC. 10, 2004
shall be subject to the approval of the Secretary, acting
through the Bureau of Indian Affairs within 30 days
thereof, or sooner in emergency situations, which
approval shall not be unreasonably withheld. Should
a required decision of the Bureau of Indian Affairs
not be received by the joint control board within 60
days following an action or decision of the joint control
board, the joint control board action or decision shall
be deemed to have been approved by the Secretary.
(3) REHABILITATION
COSTS
ALLOCABLE
TO
THE
COMMU-
NITY.—The rehabilitation costs allocable to the Community
under exhibit 20.1 to the Gila River agreement shall be paid
from the funds available under paragraph (2)(C) of section
403(f) of the Colorado River Basin Project Act (43 U.S.C.
1543(f)) (as amended by section 107(a)).
(4) REHABILITATION COSTS NOT ALLOCABLE TO THE COMMU-
NITY.—
(A) IN GENERAL.—The rehabilitation costs not allocable
to the Community under exhibit 20.1 to the Gila River
agreement shall be provided from funds available under
paragraph (2)(D)(iv) of section 403(f) of the Colorado River
Basin Project Act (43 U.S.C. 1543(f)) (as amended by section
107(a)).
(B) SUPPLEMENTARY REPAYMENT CONTRACT.—Prior to
the advance of any funds made available to the San Carlos
Irrigation and Drainage District pursuant to the provisions
of this Act, the Secretary shall execute a supplementary
repayment contract with the San Carlos Irrigation and
Drainage District in the form provided for in exhibit 20.1
to the Gila River agreement which shall, among other
things, provide that—
(i) in accomplishing the work under the supple-
mental repayment contract—
(I) the San Carlos Irrigation and Drainage
District—
(aa) may use locally accepted engineering
standards and the labor and contracting
authorities that are available to the District
under State law; and
(bb) 
shall 
be 
subject 
to 
the 
value
engineering program of the Bureau of Rec-
lamation established pursuant to OMB Cir-
cular A–131; and
(II) in accordance with FAR Part 48.101(b),
the incentive returned to the contractor through
this ‘‘Incentive Clause’’ shall be 55 percent after
the Contractor is reimbursed for the allowable
costs of developing and implementing the proposal
and the Government shall retain 45 percent of
such savings in the form of reduced expenditures;
(ii) up to 18,000 acre-feet annually of conserved
water will be made available by the San Carlos Irriga-
tion and Drainage District to the United States pursu-
ant to the terms of exhibit 20.1 to the Gila River
agreement; and
(iii) a portion of the San Carlos Irrigation and
Drainage District’s share of the rehabilitation costs
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118 STAT. 3502
PUBLIC LAW 108–451—DEC. 10, 2004
specified in exhibit 20.1 to the Gila River agreement
shall be nonreimbursable.
(5) LEAD AGENCY.—The Bureau of Reclamation shall be
designated as the lead agency for oversight of the construction
and rehabilitation of the San Carlos Irrigation Project author-
ized by this section.
(6) FINANCIAL RESPONSIBILITY.—Except as expressly pro-
vided by this section, nothing in this Act shall affect—
(A) any responsibility of the Secretary under the provi-
sions of the Act of June 7, 1924 (commonly known as
the ‘‘San Carlos Irrigation Project Act of 1924’’) (43 Stat.
475); or
(B) any other financial responsibility of the Secretary
relating to operation and maintenance of the San Carlos
Irrigation Project existing on the date of enactment of
this Act.
SEC. 204. WATER RIGHTS.
(a) RIGHTS HELD IN TRUST; ALLOTTEES.—
(1) INTENT
OF
CONGRESS.—It is the intent of Congress
to provide allottees with benefits that are equal to or that
exceed the benefits that the allottees currently possess, taking
into account—
(A) the potential risks, cost, and time delay associated
with the litigation that will be resolved by the Gila River
agreement;
(B) the availability of funding under title I for the
rehabilitation of the San Carlos Irrigation Project and for
other benefits;
(C) the availability of water from the CAP system
and other sources after the enforceability date, which will
supplement less secure existing water supplies; and
(D) the applicability of section 7 of the Act of February
8, 1887 (25 U.S.C. 381), and this title to protect the
interests of allottees.
(2) HOLDING IN TRUST.—The water rights and resources
described in the Gila River agreement shall be held in trust
by the United States on behalf of the Community and the
allottees as described in this section.
(3) ALLOTTED LAND.—As specified in and provided for under
this Act—
(A) agricultural allottees, other than allottees with
rights under the Globe Equity Decree, shall be entitled
to a just and equitable allocation of water from the Commu-
nity for irrigation purposes from the water resources
described in the Gila River agreement;
(B) allotted land with rights under the Globe Equity
Decree shall be entitled to receive—
(i) a similar quantity of water from the Community
to the quantity historically delivered under the Globe
Equity Decree; and
(ii) the benefit of the rehabilitation of the San
Carlos Irrigation Project as provided in this Act, a
more secure source of water, and other benefits under
this Act;
(C) the water rights and resources and other benefits
provided by this Act are a complete substitution of any
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118 STAT. 3503
PUBLIC LAW 108–451—DEC. 10, 2004
rights that may have been held by, or any claims that
may have been asserted by, the allottees before the date
of enactment of this Act for land within the exterior bound-
aries of the Reservation;
(D) any entitlement to water of allottees for land
located within the exterior boundaries of the Reservation
shall be satisfied by the Community using the water
resources described in subparagraph 4.1 in the Gila River
agreement;
(E) before asserting any claim against the United
States under section 1491(a) of title 28, United States
Code, or under section 7 of the Act of February 8, 1887
(25 U.S.C. 381), an allottee shall first exhaust remedies
available to the allottee under the Community’s water code
and Community law; and
(F) following exhaustion of remedies on claims relating
to section 7 of the Act of February 8, 1887 (25 U.S.C.
381), a claimant may petition the Secretary for relief.
(4) ACTIONS, CLAIMS, AND LAWSUITS.—
(A) IN GENERAL.—Nothing in this Act authorizes any
action, claim, or lawsuit by an allottee against any person,
entity, corporation, or municipal corporation, under Fed-
eral, State, or other law.
(B) THE COMMUNITY AND THE UNITED STATES.—Except
as provided in subparagraphs (E) and (F) of paragraph
(3) and subsection (e)(2)(C), nothing in this Act either
authorizes any action, claim, or lawsuit by an allottee
against the Community under Federal, State, or other law,
or alters available actions pursuant to section 1491(a) of
title 28, of the United States Code, or section 381 of title
25, of the United States Code.
(b) REALLOCATION.—
(1) IN
GENERAL.—In accordance with this title and the
Gila River agreement, the Secretary shall reallocate and con-
tract with the Community for the delivery in accordance with
this section of—
(A) an annual entitlement to 18,600 acre-feet of CAP
agricultural priority water in accordance with the agree-
ment among the Secretary, the Community, and Roosevelt
Water Conservation District dated August 7, 1992;
(B) an annual entitlement to 18,100 acre-feet of CAP
Indian priority water, which was permanently relinquished
by Harquahala Valley Irrigation District in accordance with
Contract No. 3–0907–0930–09W0290 among the Central
Arizona Water Conservation District, the Harquahala
Valley Irrigation District, and the United States, and con-
verted to CAP Indian priority water under the Fort
McDowell Indian Community Water Rights Settlement Act
of 1990 (104 Stat. 4480);
(C) on execution of an exchange and lease agreement
among the Community, the United States, and Asarco,
an annual entitlement of up to 17,000 acre-feet of CAP
municipal and industrial priority water under the sub-
contract among the United States, the Central Arizona
Water Conservation District, and Asarco, Subcontract No.
3–07–30–W0307, dated November 7, 1993; and
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118 STAT. 3504
PUBLIC LAW 108–451—DEC. 10, 2004
(D) as provided in section 104(a)(1)(A)(i), an annual
entitlement to 102,000 acre-feet of CAP agricultural pri-
ority water acquired pursuant to the master agreement.
(2) SOLE AUTHORITY.—In accordance with this section, the
Community shall have the sole authority, subject to the Sec-
retary’s approval pursuant to section 205(a)(2), to lease, dis-
tribute, exchange, or allocate the CAP water described in this
subsection, except that this paragraph shall not impair the
right of an allottee to lease land of the allottee together with
the water rights appurtenant to the land. Nothing in this
paragraph shall affect the validity of any lease or exchange
ratified in section 205(c) or 205(d).
(c) WATER SERVICE CAPITAL CHARGES.—The Community shall
not be responsible for water service capital charges for CAP water.
(d) ALLOCATION AND REPAYMENT.—For the purpose of deter-
mining the allocation and repayment of costs of any stages of
the Central Arizona Project constructed after the date of enactment
of this Act, the costs associated with the delivery of water described
in subsection (b), whether that water is delivered for use by the
Community or in accordance with any assignment, exchange, lease,
option to lease, or other agreement for the temporary disposition
of water entered into by the Community—
(1) shall be nonreimbursable; and
(2) shall be excluded from the repayment obligation of
the Central Arizona Water Conservation District.
(e) APPLICATION OF PROVISIONS.—
(1) IN
GENERAL.—The water rights recognized and con-
firmed to the Community and allottees by the Gila River agree-
ment and this title shall be subject to section 7 of the Act
of February 8, 1887 (25 U.S.C. 381).
(2) WATER CODE.—
(A) IN GENERAL.—Not later than 18 months after the
enforceability date, the Community shall enact a water
code, subject to any applicable provision of law (including
subsection (a)(3)), that—
(i) manages, regulates, and controls the water
resources on the Reservation;
(ii) governs all of the water rights that are held
in trust by the United States; and
(iii) provides that, subject to approval of the
Secretary—
(I) the Community shall manage, regulate, and
control the water resources described in the Gila
River agreement and allocate water to all water
users on the Reservation pursuant to the water
code;
(II) the Community shall establish conditions,
limitations, and permit requirements relating to
the storage, recovery, and use of the water
resources described in the Gila River agreement;
(III) any allocation of water shall be from the
pooled water resources described in the Gila River
agreement;
(IV) charges for delivery of water for irrigation
purposes to water users on the Reservation
(including water users on allotted land) shall be
assessed on a just and equitable basis without
Deadline.
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118 STAT. 3505
PUBLIC LAW 108–451—DEC. 10, 2004
regard to the status of the Reservation land on
which the water is used;
(V) there is a process by which any user of
or applicant to use water for irrigation purposes
(including water users on allotted land) may
request that the Community provide water for
irrigation use in accordance with this title;
(VI) there is a due process system for the
consideration and determination by the Commu-
nity of any request by any water user on the
Reservation (including water users on allotted
land), for an allocation of water, including a
process for appeal and adjudication of denied or
disputed distributions of water and for resolution
of contested administrative decisions; and
(VII) there is a requirement that any allottee
with a claim relating to the enforcement of rights
of the allottee under the water code or relating
to the amount of water allocated to land of the
allottee must first exhaust remedies available to
the allottee under Community law and the water
code before initiating an action against the United
States or petitioning the Secretary pursuant to
subsection (a)(3)(F).
(B) APPROVAL.—Any provision of the water code and
any amendments to the water code that affect the rights
of the allottees shall be subject to the approval of the
Secretary, and no such provision or amendment shall be
valid until approved by the Secretary.
(C) INCLUSION OF REQUIREMENT IN WATER CODE.—The
Community is authorized to and shall include in the water
code the requirement in subparagraph (A)(VII) that any
allottee with a claim relating to the enforcement of rights
of the allottee under the water code or relating to the
amount of water allocated to land of the allottee must
first exhaust remedies available to the allottee under
Community law and the water code before initiating an
action against the United States.
(3) ADMINISTRATION.—The Secretary shall administer all
rights to water granted or confirmed to the Community and
allottees by the Gila River agreement and this Act until such
date as the water code described in paragraph (2) has been
enacted and approved by the Secretary, at which time the
Community shall have authority, subject to the Secretary’s
authority under section 7 of the Act of February 8, 1887 (25
U.S.C. 381), to manage, regulate, and control the water
resources described in the Gila River agreement, subject to
paragraph (2), except that this paragraph shall not impair
the right of an allottee to lease land of the allottee together
with the water rights appurtenant to the land.
SEC. 205. COMMUNITY WATER DELIVERY CONTRACT AMENDMENTS.
(a) IN GENERAL.—The Secretary shall amend the Community
water delivery contract to provide, among other things, in accord-
ance with the Gila River agreement, that—
(1) the contract shall be—
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(A) for permanent service (as that term is used in
section 5 of the Boulder Canyon Project Act (43 U.S.C.
617d)); and
(B) without limit as to term;
(2) the Community may, with the approval of the Secretary,
including approval as to the Secretary’s authority under section
7 of the Act of February 8, 1887 (25 U.S.C. 381)—
(A) enter into contracts or options to lease (for a term
not to exceed 100 years) or contracts or options to exchange,
Community CAP water within Maricopa, Pinal, Pima, La
Paz, Yavapai, Gila, Graham, Greenlee, Santa Cruz, or
Coconino Counties, Arizona, providing for the temporary
delivery to others of any portion of the Community CAP
water; and
(B) renegotiate any lease at any time during the term
of the lease, so long as the term of the renegotiated lease
does not exceed 100 years;
(3)(A) the Community, and not the United States, shall
be entitled to all consideration due to the Community under
any leases or options to lease and exchanges or options to
exchange Community CAP water entered into by the Commu-
nity; and
(B) the United States shall have no trust obligation or
other obligation to monitor, administer, or account for—
(i) any funds received by the Community as consider-
ation under any such leases or options to lease and
exchanges or options to exchange; or
(ii) the expenditure of such funds;
(4)(A) all Community CAP water shall be delivered through
the CAP system; and
(B) if the delivery capacity of the CAP system is signifi-
cantly reduced or is anticipated to be significantly reduced
for an extended period of time, the Community shall have
the same CAP delivery rights as other CAP contractors and
CAP subcontractors, if such CAP contractors or CAP sub-
contractors are allowed to take delivery of water other than
through the CAP system;
(5) the Community may use Community CAP water on
or off the Reservation for Community purposes;
(6) as authorized by subparagraph (A) of section 403(f)(2)
of the Colorado River Basin Project Act (43 U.S.C. 1543(f)(2))
(as amended by section 107(a)) and to the extent that funds
are available in the Lower Colorado River Basin Development
Fund established by section 403 of that Act (43 U.S.C. 1543),
the United States shall pay to the CAP operating agency the
fixed OM&R charges associated with the delivery of Community
CAP water, except for Community CAP water leased by others;
(7) the costs associated with the construction of the CAP
system allocable to the Community—
(A) shall be nonreimbursable; and
(B) shall be excluded from any repayment obligation
of the Community; and
(8) no CAP water service capital charges shall be due
or payable for Community CAP water, whether CAP water
is delivered for use by the Community or is delivered under
any leases, options to lease, exchanges or options to exchange
Community CAP water entered into by the Community.
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118 STAT. 3507
PUBLIC LAW 108–451—DEC. 10, 2004
(b) AMENDED
AND RESTATED COMMUNITY WATER DELIVERY
CONTRACT.—To the extent it is not in conflict with the provisions
of this Act, the Amended and Restated Community CAP Water
Delivery Contract set forth in exhibit 8.2 to the Gila River agree-
ment is authorized, ratified, and confirmed, and the Secretary is
directed to and shall execute the contract. To the extent amend-
ments are executed to make the Amended and Restated Community
CAP Water Delivery Contract consistent with this title, such amend-
ments are also authorized, ratified, and confirmed.
(c) LEASES.—To the extent they are not in conflict with the
provisions of this Act, the leases of Community CAP water by
the Community to Phelps Dodge, and any of the Cities, attached
as exhibits to the Gila River agreement, are authorized, ratified,
and confirmed, and the Secretary is directed to and shall execute
the leases. To the extent amendments are executed to make such
leases consistent with this title, such amendments are also author-
ized, ratified, and confirmed.
(d) RECLAIMED WATER EXCHANGE AGREEMENT.—To the extent
it is not in conflict with the provisions of this Act, the Reclaimed
Water Exchange Agreement among the cities of Chandler and Mesa,
Arizona, the Community, and the United States, attached as exhibit
18.1 to the Gila River agreement, is authorized, ratified, and con-
firmed, and the Secretary shall execute the agreement. To the
extent amendments are executed to make the Reclaimed Water
Exchange Agreement consistent with this title, such amendments
are also authorized, ratified, and confirmed.
(e) PAYMENT OF CHARGES.—Neither the Community nor any
recipient of Community CAP water through lease or exchange shall
be obligated to pay water service capital charges or any other
charges, payments, or fees for the CAP water, except as provided
in the lease or exchange agreement.
(f) PROHIBITIONS.—
(1) USE OUTSIDE THE STATE.—None of the Community CAP
water shall be leased, exchanged, forborne, or otherwise trans-
ferred in any way by the Community for use directly or
indirectly outside the State.
(2) USE OFF RESERVATION.—Except as authorized by this
section and subparagraph 4.7 of the Gila River agreement,
no water made available to the Community under the Gila
River agreement, the Globe Equity Decree, the Haggard Decree,
or this title may be sold, leased, transferred, or used off the
Reservation other than by exchange.
(3) AGREEMENTS
WITH
THE
ARIZONA
WATER
BANKING
AUTHORITY.—Nothing in this Act or the Gila River agreement
limits the right of the Community to enter into any agreement
with the Arizona Water Banking Authority, or any successor
agency or entity, in accordance with State law.
SEC. 206. SATISFACTION OF CLAIMS.
(a) IN GENERAL.—The benefits realized by the Community,
Community members, and allottees under this title shall be in
complete replacement of and substitution for, and full satisfaction
of, all claims of the Community, Community members, and allottees
for water rights, injury to water rights, injury to water quality
and subsidence damage, except as set forth in the Gila River agree-
ment, under Federal, State, or other law with respect to land
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118 STAT. 3508
PUBLIC LAW 108–451—DEC. 10, 2004
within the exterior boundaries of the Reservation, off-Reservation
trust land, and fee land.
(b) NO RECOGNITION OF WATER RIGHTS.—Notwithstanding sub-
section (a) and except as provided in section 204(a), nothing in
this title has the effect of recognizing or establishing any right
of a Community member or allottee to water on the Reservation.
SEC. 207. WAIVER AND RELEASE OF CLAIMS.
(a) IN GENERAL.—
(1) CLAIMS AGAINST THE STATE AND OTHERS.—
(A) CLAIMS FOR WATER RIGHTS AND INJURY TO WATER
RIGHTS BY THE COMMUNITY AND THE UNITED STATES ON
BEHALF
OF
THE
COMMUNITY.—Except as provided in
subparagraph 25.12 of the Gila River agreement, the
Community, on behalf of the Community and Community
members (but not members in their capacities as allottees),
and the United States, on behalf of the Community and
Community members (but not members in their capacities
as allottees), as part of the performance of their obligations
under the Gila River agreement, are authorized to execute
a waiver and release of any claims against the State (or
any agency or political subdivision of the State) or any
other person, entity, corporation, or municipal corporation
under Federal, State, or other law for—
(i)(I) past, present, and future claims for water
rights for land within the exterior boundaries of the
Reservation, off-Reservation trust land, and fee land
arising from time immemorial and, thereafter, forever;
and
(II) past, present, and future claims for water
rights arising from time immemorial and, thereafter,
forever, that are based on aboriginal occupancy of land
by the Community and Community members, or their
predecessors;
(ii)(I) past and present claims for injury to water
rights for land within the exterior boundaries of the
Reservation, off-Reservation trust land, and fee land
arising from time immemorial through the enforce-
ability date;
(II) past, present, and future claims for injury
to water rights arising from time immemorial and,
thereafter, forever, that are based on aboriginal occu-
pancy of land by the Community and Community mem-
bers, or their predecessors; and
(III) claims for injury to water rights arising after
the enforceability date for land within the exterior
boundaries of the Reservation, off-Reservation trust
land, and fee land resulting from the off-Reservation
diversion or use of water in a manner not in violation
of the Gila River agreement or State law;
(iii) past, present, and future claims arising out
of or relating in any manner to the negotiation or
execution of the Gila River agreement or the negotia-
tion or enactment of titles I and II; and
(iv)(I) past and present claims for subsidence dam-
age occurring to land within the exterior boundaries
of the Reservation, off-Reservation trust land, or fee
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118 STAT. 3509
PUBLIC LAW 108–451—DEC. 10, 2004
land arising from time immemorial through the
enforceability date; and
(II) claims for subsidence damage arising after
the enforceability date occurring to land within the
exterior boundaries of the Reservation, off-Reservation
trust land, or fee land resulting from the diversion
of underground water in a manner not in violation
of the Gila River agreement or State law.
(B) CLAIMS FOR WATER RIGHTS AND INJURY TO WATER
RIGHTS
BY
THE
UNITED
STATES
AS
TRUSTEE
FOR
THE
ALLOTTEES.—Except as provided in subparagraph 25.12 of
the Gila River agreement, the United States, as trustee
for the allottees, as part of the performance of its obliga-
tions under the Gila River agreement, is authorized to
execute a waiver and release of any claims against the
State (or any agency or political subdivision of the State)
or any other person, entity, corporation, or municipal cor-
poration under Federal, State, or other law, for—
(i)(I) past, present, and future claims for water
rights for land within the exterior boundaries of the
Reservation arising from time immemorial and, there-
after, forever; and
(II) past, present, and future claims for water
rights arising from time immemorial and, thereafter,
forever, that are based on aboriginal occupancy of land
by allottees, or their predecessors;
(ii)(I) past and present claims for injury to water
rights for land within the exterior boundaries of the
Reservation arising from time immemorial through the
enforceability date;
(II) past, present, and future claims for injury
to water rights arising from time immemorial and,
thereafter, forever, that are based on aboriginal occu-
pancy of land by allottees or their predecessors; and
(III) claims for injury to water rights arising after
the enforceability date for land within the exterior
boundaries of the Reservation resulting from the off-
Reservation diversion or use of water in a manner
not in violation of the Gila River agreement or State
law;
(iii) past, present, and future claims arising out
of or relating in any manner to the negotiation or
execution of the Gila River agreement or the negotia-
tion or enactment of titles I and II; and
(iv) past and present claims for subsidence damage
occurring to land within the exterior boundaries of
the Reservation arising from time immemorial through
the enforceability date.
(C) CLAIMS
FOR
INJURY
TO
WATER
QUALITY
BY
THE
COMMUNITY.—Except as provided in subparagraph 25.12
of the Gila River agreement, the Community, on behalf
of the Community and Community members (but not mem-
bers in their capacities as allottees), as part of the perform-
ance of its obligations under the Gila River agreement,
is authorized to execute a waiver and release of any claims,
and to agree to waive its right to request the United
States to bring any claims, against the State (or any agency
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118 STAT. 3510
PUBLIC LAW 108–451—DEC. 10, 2004
or political subdivision of the State) or any other person,
entity, corporation, or municipal corporation under Federal,
State, or other law for—
(i) past and present claims for injury to water
quality (other than claims arising out of the actions
that resulted in the remediations described in exhibit
25.4.1.1 to the Gila River agreement), including claims
for trespass, nuisance, and real property damage and
claims under all current and future Federal, State,
and 
other 
environmental 
laws 
and 
regulations,
including claims under the Comprehensive Environ-
mental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601 et seq.) and the Arizona Water
Quality Assurance Revolving Fund (Ariz. Rev. Stat.
49–281 et seq. as amended) arising from time immemo-
rial through December 31, 2002, for land within the
exterior boundaries of the Reservation, off-Reservation
trust land, and fee land;
(ii) past, present, and future claims for injury to
water quality (other than claims arising out of actions
that resulted in the remediations described in exhibit
25.4.1.1 to the Gila River agreement), including claims
for trespass, nuisance, and real property damage and
claims under all current and future Federal, State,
and 
other 
environmental 
laws 
and 
regulations,
including claims under the Comprehensive Environ-
mental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601 et seq.) and the Arizona Water
Quality Assurance Revolving Fund (Ariz. Rev. Stat.
49–281 et seq.), arising from time immemorial and,
thereafter, forever, that are based on aboriginal occu-
pancy of land by the Community and Community mem-
bers, or their predecessors;
(iii) claims for injury to water quality (other than
claims arising out of actions that resulted in the
remediations described in exhibit 25.4.1.1 to the Gila
River agreement) arising after December 31, 2002,
including claims for trespass, nuisance, and real prop-
erty damage and claims under all current and future
Federal, State, and other environmental laws and regu-
lations, including claims under the Comprehensive
Environmental Response, Compensation, and Liability
Act of 1980 (42 U.S.C. 9601 et seq.) and the Arizona
Water Quality Assurance Revolving Fund (Ariz. Rev.
Stat. 49–9281 et seq.), that result from—
(I) the delivery of water to the Community;
(II) the off-Reservation diversion (other than
pumping), or ownership or operation of structures
for the off-Reservation diversion (other than
pumping), of water;
(III) the off-Reservation pumping, or owner-
ship or operation of structures for the off-Reserva-
tion pumping, of water in a manner not in violation
of the Gila River agreement or of any applicable
pumping limitations under State law;
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118 STAT. 3511
PUBLIC LAW 108–451—DEC. 10, 2004
(IV) the recharge, or ownership or operation
of structures for the recharge, of water under a
State permit; and
(V) the off-Reservation application of water
to land for irrigation,
except that the waiver provided in this clause shall
extend only to the State (or any agency or political
subdivision of the State) or any other person, entity,
or municipal or other corporation to the extent that
the person, entity, or corporation is engaged in an
activity specified in this clause.
(D) PAST AND PRESENT CLAIMS FOR INJURY TO WATER
QUALITY BY THE UNITED STATES.—Except as provided in
subparagraph 25.12 of the Gila River agreement and except
for any claims arising out of the actions that resulted
in the remediations described in exhibit 25.4.1.1 to the
Gila River agreement, the United States, acting as trustee
for the Community, Community members and allottees,
and as part of the performance of its obligations under
the Gila River agreement, to the extent consistent with
this section, is authorized to execute a waiver and release
of any claims arising from time immemorial through
December 31, 2002, for injury to water quality where all
of the following conditions are met:
(i) The claims are brought solely on behalf of the
Community, members, or allottees.
(ii) The claims are brought against the State (or
any agency or political subdivision of the State) or
any person, entity, corporation, or municipal corpora-
tion.
(iii) The claims arise under Federal, State, or other
law, including claims, if any, for trespass, nuisance,
and real property damage, and claims, if any, under
any current or future Federal, State, or other environ-
mental laws or regulation, including under the Com-
prehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9601 et seq.)
or the Arizona Water Quality Assurance Revolving
Fund (Ariz. Rev. Stat. 49–281 et seq.).
(iv) The claimed injury is to land, water, or natural
resources located on trust land within the exterior
boundaries of the Reservation or on off-Reservation
trust land.
(E) FUTURE
CLAIMS
FOR
INJURY
TO
WATER
QUALITY
BY THE UNITED STATES.—Except as provided in subpara-
graph 25.12 of the Gila River agreement and except for
any claims arising out of the actions that resulted in the
remediations described in exhibit 25.4.1.1 to the Gila River
agreement, the United States, in its own right and as
trustee for the Community, its members and allottees, as
part of the performance of its obligations under the Gila
River agreement, to the extent consistent with this section,
is authorized to execute a waiver and release of the fol-
lowing claims for injury or threat of injury to water quality
arising after December 31, 2002, against the State (or
any agency or political subdivision of the State) or any
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118 STAT. 3512
PUBLIC LAW 108–451—DEC. 10, 2004
other person, entity, corporation, or municipal corporation
under Federal, State, or other law:
(i) All common law claims for injury or threat
of injury to water quality where the injury or threat
of injury asserted is to the Community’s, Community
members’ or allottees’ interests in trust land, water,
or natural resources located within the exterior bound-
aries of the Reservation or within off-Reservation trust
lands caused by—
(I) the delivery of water to the Community;
(II) the off-Reservation diversion (other than
pumping), or ownership or operation of structures
for the off-Reservation diversion (other than
pumping), of water;
(III) the off-Reservation pumping, or owner-
ship or operation of structures for the off-Reserva-
tion pumping, of water in a manner not in violation
of the Gila River agreement or of any applicable
pumping limitations under State law;
(IV) the recharge, or ownership or operation
of structures for the recharge, of water under a
State permit; and
(V) the off-Reservation application of water
to land for irrigation.
(ii) All natural resource damage claims for injury
or threat of injury to water quality where the United
States, through the Secretary of the Interior or other
designated officials, would act on behalf of the Commu-
nity, its members or allottees as a natural resource
trustee pursuant to the National Contingency Plan,
(as currently set forth in section 300.600(b)(2) of title
40, Code of Federal Regulations, or as it may hereafter
be amended), and where the claim is based on injury
to natural resources or threat of injury to natural
resources within the exterior boundaries of the Res-
ervation or off-Reservation trust lands, caused by—
(I) the delivery of water to the Community;
(II) the off-Reservation diversion (other than
pumping), or ownership or operation of structures
for the off-Reservation diversion (other than
pumping), of water;
(III) the off-Reservation pumping, or owner-
ship or operation of structures for the off-Reserva-
tion pumping, of water in a manner not in violation
of the Gila River agreement or of any applicable
pumping limitations under State law;
(IV) the recharge, or ownership or operation
of structures for the recharge, of water under a
State permit; and
(V) the off-Reservation application of water
to land for irrigation.
(F) CLAIMS BY THE COMMUNITY AGAINST THE SALT RIVER
PROJECT.—
(i) IN GENERAL.—Except as provided in subpara-
graph 25.12 of the Gila River agreement, to the extent
consistent with this section, the Community, on behalf
of the Community and Community members (but not
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118 STAT. 3513
PUBLIC LAW 108–451—DEC. 10, 2004
members in their capacities as allottees), as part of
the performance of its obligations under the Gila River
agreement, is authorized to execute a waiver and
release of claims against the Salt River Project (or
its successors or assigns or its officers, governors, direc-
tors, employees, agents, or shareholders), where all
of the following conditions are met:
(I) The claims are brought solely on behalf
of the Community or its, members.
(II) The claims arise from the discharge,
transportation, seepage, or other movement of
water in, through, or from drains, canals, or other
facilities or land in the Salt River Reservoir Dis-
trict to trust land located within the exterior
boundaries of the Reservation.
(III) The claims arise from time immemorial
through the enforceability date.
(IV) The claims assert a past or present injury
to water rights, injury on the Reservation to water
quality, or injury to trust property located within
the exterior boundaries of the Reservation.
(ii) EFFECT OF WAIVER.—The waiver provided for
in this subparagraph is effective as of December 31,
2002, and shall continue to preclude claims as they
may arise until the enforceability date, or until such
time as the Salt River Project alters its historical oper-
ations of the drains, canals, or other facilities within
the Salt River Reservoir District in a manner that
would cause significant harm to trust lands within
the exterior boundaries of the Reservation, whichever
occurs earlier.
(G) CLAIMS BY THE UNITED STATES AGAINST THE SALT
RIVER PROJECT.—
(i) IN GENERAL.—Except as provided in subpara-
graph 25.12 of the Gila River agreement, to the extent
consistent with this section, the United States, acting
as trustee for the Community, Community members
and allottees, and as part of the performance of its
obligations under the Gila River agreement, is author-
ized to execute a waiver and release of claims against
the Salt River Project (or its successors or assigns
or its officers, governors, directors, employees, agents,
or shareholders), where all of the following conditions
are met:
(I) The claims are brought solely on behalf
of the Community, members, or allottees.
(II) The claims arise from the discharge,
transportation, seepage, or other movement of
water in, through, or from drains, canals, or other
facilities or land in the Salt River Reservoir Dis-
trict to trust land located within the exterior
boundaries of the Reservation.
(III) The claims arise from time immemorial
through the enforceability date.
(IV) The claims assert a past or present injury
to water rights, injury on the Reservation to water
Effective date.
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118 STAT. 3514
PUBLIC LAW 108–451—DEC. 10, 2004
quality, or injury to trust property located within
the exterior boundaries of the Reservation.
(ii) EFFECT OF WAIVER.—The waiver provided for
in this subsection is effective as of December 31, 2002,
and shall continue to preclude claims as they may
arise until the enforceability date, or until such time
as the Salt River Project alters its historical operations
of the drains, canals, or other facilities within the
Salt River Reservoir District in a manner that would
cause significant harm to trust lands within the exte-
rior boundaries of the Reservation, whichever occurs
earlier.
(H) UNITED STATES ENFORCEMENT AUTHORITY.—Except
as provided in subparagraphs (D), (E), and (G), nothing
in this Act or the Gila River agreement affects any right
of the United States, or the State, to take any action,
including environmental actions, under any laws (including
regulations and the common law) relating to human health,
safety, or the environment.
(2) CLAIMS FOR SUBSIDENCE BY THE COMMUNITY, ALLOTTEES,
AND THE UNITED STATES ON BEHALF OF THE COMMUNITY AND
ALLOTTEES.—In accordance with the subsidence remediation
program under section 209, the Community, a Community
member, or an allottee, and the United States, on behalf of
the Community, a Community member, or an allottee, as part
of the performance of obligations under the Gila River agree-
ment, are authorized to execute a waiver and release of all
claims against the State (or any agency or political subdivision
of the State) or any other person, entity, corporation or munic-
ipal corporation under Federal, State, or other law for the
damage claimed.
(3) CLAIMS AGAINST THE COMMUNITY.—
(A) IN GENERAL.—Except as provided in subparagraph
25.12 of the Gila River agreement, to the extent consistent
with this Act, the United States, in all its capacities (except
as trustee for an Indian tribe other than the Community),
as part of the performance of obligations under the Gila
River agreement, is authorized to execute a waiver and
release of any and all claims against the Community, or
any agency, official, or employee of the Community, under
Federal, State, or any other law for—
(i) past and present claims for subsidence damage
to trust land within the exterior boundaries of the
Reservation, off-Reservation trust lands, and fee land
arising from time immemorial through the enforce-
ability date; and
(ii) past, present, and future claims arising out
of or relating in any manner to the negotiation or
execution of the Gila River agreement or the negotia-
tion or enactment of titles I and II.
(4) CLAIMS AGAINST THE UNITED STATES.—
(A) IN GENERAL.—Except as provided in subparagraph
25.12 of the Gila River agreement, the Community, on
behalf of the Community and Community members (but
not members in their capacities as allottees), as part of
the performance of obligations under the Gila River agree-
ment, is authorized to execute a waiver and release of
Effective date.
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118 STAT. 3515
PUBLIC LAW 108–451—DEC. 10, 2004
any claim against the United States (or agencies, officials,
or employees of the United States) under Federal, State,
or other law for—
(i)(I) past, present, and future claims for water
rights for land within the exterior boundaries of the
Reservation, off-Reservation trust land, and fee land
arising from time immemorial and, thereafter, forever;
and
(II) past, present, and future claims for water
rights arising from time immemorial and, thereafter,
forever, that are based on aboriginal occupancy of land
by the Community and Community members, or their
predecessors;
(ii)(I) past and present claims for injury to water
rights for land within the exterior boundaries of the
Reservation, off-Reservation trust land, and fee land
arising from time immemorial through the enforce-
ability date;
(II) past, present, and future claims for injury
to water rights arising from time immemorial and,
thereafter, forever, that are based on aboriginal occu-
pancy of land by the Community and Community mem-
bers, or their predecessors; and
(III) claims for injury to water rights arising after
the enforceability date for land within the exterior
boundaries of the Reservation, off-Reservation trust
land, or fee land resulting from the off-Reservation
diversion or use of water in a manner not in violation
of the Gila River agreement or applicable law;
(iii) past, present, and future claims arising out
of or relating in any manner to the negotiation or
execution of the Gila River agreement or the negotia-
tion or enactment of titles I and II;
(iv)(I) past and present claims for subsidence dam-
age occurring to land within the exterior boundaries
of the Reservation, off-Reservation trust land, or fee
land arising from time immemorial through the
enforceability date; and
(II) claims for subsidence damage arising after
the enforceability date occurring to land within the
exterior boundaries of the Reservation, off-Reservation
trust land or fee land resulting from the diversion
of underground water in a manner not in violation
of the Gila River agreement or applicable law;
(v) past and present claims for failure to protect,
acquire, or develop water rights for or on behalf of
the Community and Community members arising
before December 31, 2002; and
(vi) past, present, and future claims relating to
failure to assert any claims expressly waived pursuant
to section 207(a)(1) (C) through (E).
(B) EXHAUSTION
OF
REMEDIES.—To the extent that
members in their capacity as allottees assert that this
title impairs or alters their present or future claims to
water or constitutes an injury to present or future water
rights, the members shall be required to exhaust their
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118 STAT. 3516
PUBLIC LAW 108–451—DEC. 10, 2004
remedies pursuant to the tribal water code prior to
asserting claims against the United States.
(5) CLAIMS AGAINST CERTAIN PERSONS AND ENTITIES IN THE
UPPER GILA VALLEY.—
(A) BY
THE
COMMUNITY
AND
THE
UNITED
STATES.—
Except as provided in the UVD agreement, the Community,
on behalf of the Community and Community members
(but not members in their capacities as allottees), and
the United States on behalf of the Community and Commu-
nity members (but not members in their capacities as
allottees), are authorized, as part of the performance of
obligations under the UVD agreement, to execute a waiver
and release of the following claims against the UV signato-
ries and the UV Non-signatories (and the predecessors
in interest of each) for—
(i)(I) past, present, and future claims for water
rights for land within the exterior boundaries of the
Reservation and the San Carlos Irrigation Project
arising from time immemorial and, thereafter, forever;
and
(II) past, present, and future claims for water
rights arising from time immemorial and, thereafter,
forever, that are based on aboriginal occupancy of land
by the Community, Community members, or prede-
cessors of the Community or Community members;
(ii)(I) past, present, and future claims for injuries
to water rights for land within the exterior boundaries
of the Reservation or the San Carlos Irrigation Project
arising from time immemorial and, thereafter, forever;
(II) past, present, and future claims for injury
to water rights arising from time immemorial and,
thereafter, forever, that are based on aboriginal occu-
pancy of land by the Community, Community mem-
bers, or predecessors of Community members, for so
long as and to the extent that any individual bene-
ficiary of such waiver is acting in a manner that is
consistent with and not in violation of or contrary
to the terms, conditions, requirements, limitations, or
other provisions of the UVD agreement;
(III) claims for injury to water rights arising after
the enforceability date for land within the exterior
boundaries of the Reservation and the San Carlos
Irrigation Project, resulting from the diversion,
pumping, or use of water in a manner that is consistent
with and not in violation of or contrary to the terms,
conditions, limitations, requirements, or provisions of
the UVD agreement; and
(IV) claims for injury to water rights arising after
the enforceability date for water rights transferred to
the Project pursuant to section 211 resulting from the
diversion, pumping or use of water in a manner that
is consistent with and not in violation of or contrary
to the terms, conditions, limitations, requirements, or
provisions of the UVD agreement;
(iii)(I) past, present, and future claims for injuries
to water rights arising out of or relating to the use
of water rights appurtenant to New Mexico 381 acres,
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118 STAT. 3517
PUBLIC LAW 108–451—DEC. 10, 2004
on the conditions that such water rights remain subject
to the oversight and reporting requirements set forth
in the decree in Arizona v. California, 376 U.S. 340
(1964), and that the State of New Mexico shall make
available on request a copy of any records prepared
pursuant to that decree; and
(II) past, present, and future claims arising out
of and relating to the use of water rights for New
Mexico domestic purposes, on the conditions that such
water rights remain subject to the oversight and
reporting requirements set forth in the decree in
Arizona v. California, 376 U.S. 340 (1964), and that
the State of New Mexico shall make available on
request a copy of any records prepared pursuant to
that decree; and
(iv) past, present, and future claims arising out
of or relating to the negotiation or execution of the
UVD agreement, or the negotiation or enactment of
titles I and II.
(B) BY THE UNITED STATES ON BEHALF OF ALLOTTEES.—
Except as provided in the UVD agreement, to the extent
consistent with this section, the United States as trustee
for the allottees, as part of the performance under the
UVD agreement, is authorized to execute a waiver and
release of the following claims under Federal, State, or
other law against the UV signatories and the UV Non-
signatories (and the predecessors in interest of each) for—
(i)(I) past, present, and future claims for water
rights for land within the exterior boundaries of the
Reservation arising from time immemorial, and there-
after, forever; and
(II) past, present, and future claims for water
rights arising from time immemorial and, thereafter,
forever, that are based on aboriginal occupancy of lands
by allottees or their predecessors;
(ii)(I) past and present claims for injury to water
rights for lands within the exterior boundaries of the
Reservation arising from time immemorial, through
the enforceability date, for so long as and to the extent
that any individual beneficiary of such waiver is acting
in a manner that is consistent with and not in violation
of or contrary to the terms, conditions, requirements,
limitations, or other provisions of the UVD agreement;
(II) past, present, and future claims for injury
to water rights arising from time immemorial and,
thereafter, forever, that are based on aboriginal occu-
pancy of lands by allottees or their predecessors, for
so long as and to the extent that any individual bene-
ficiary of such waiver is acting in a manner that is
consistent with and not in violation of or contrary
to the terms, conditions, requirements, limitations, or
other provisions of the UVD agreement; and
(III) claims for injury to water rights for land
within the exterior boundaries of the Reservation
arising after the enforceability date resulting from the
diversion, pumping, or use of water in a manner that
is consistent with and not in violation of or contrary
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118 STAT. 3518
PUBLIC LAW 108–451—DEC. 10, 2004
to the terms, conditions, limitations, requirements, or
provisions of the UVD agreement;
(iii)(I) past, present, and future claims for injuries
to water rights arising out of or relating to the use
of water rights appurtenant to New Mexico 381 acres,
on the conditions that such water rights remain subject
to the oversight and reporting requirements set forth
in the decree in Arizona v. California, 376 U.S. 340
(1964), as supplemented, and that the State of New
Mexico shall make available on request a copy of any
records prepared pursuant to that decree; and
(II) past, present, and future claims arising out
of or relating to the use of water rights for New Mexico
domestic purposes, on the conditions that such water
rights remain subject to the oversight and reporting
requirements set forth in the decree in Arizona v.
California, 376 U.S. 340 (1964), as supplemented, and
that the State of New Mexico shall make available
on request a copy of any records prepared pursuant
to that decree; and
(iv) past, present, and future claims arising out
of or relating to the negotiation or execution of the
UVD agreement, or the negotiation or enactment of
titles I and II.
(C) ADDITIONAL WAIVER OF CERTAIN CLAIMS BY THE
UNITED STATES.—Except as provided in the UVD Agree-
ment, the United States (to the extent the waiver and
release authorized by this subparagraph is not duplicative
of the waiver and release provided in subparagraph (B)
and to the extent the United States holds legal title to
(but not the beneficial interest in) the water rights as
described in article V or VI of the Globe Equity Decree
(but not on behalf of the San Carlos Apache Tribe pursuant
to article VI(2) of the Globe Equity Decree) on behalf of
lands within the San Carlos Irrigation and Drainage Dis-
trict and the Miscellaneous Flow Lands) shall execute a
waiver and release of the following claims under Federal,
State or other law against the UV signatories and the
UV Non-signatories (and the predecessors of each) for—
(i) past, present, and future claims for water rights
for land within the San Carlos Irrigation and Drainage
District and the Miscellaneous Flow Lands arising from
time immemorial, and thereafter, forever;
(ii)(I) past and present claims for injury to water
rights for land within the San Carlos Irrigation and
Drainage District and the Miscellaneous Flow Lands
arising from time immemorial through the enforce-
ability date, for so long as and to the extent that
any individual beneficiary of such waiver is acting
in a manner that is consistent with and not in violation
of or contrary to the terms, conditions, requirements,
limitations, or other provisions of the UVD agreement;
(II) claims for injury to water rights arising after
the enforceability date for land within the San Carlos
Irrigation and Drainage District and the Miscellaneous
Flow Lands resulting from the diversion, pumping,
or use of water in a manner that is consistent with
Records.
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118 STAT. 3519
PUBLIC LAW 108–451—DEC. 10, 2004
and not in violation of or contrary to the terms, condi-
tions, limitations, requirements, or provisions of the
UVD agreement;
(iii)(I) past, present, and future claims for injuries
to water rights arising out of or relating to the use
of water rights appurtenant to New Mexico 381 acres,
on the conditions that such water rights remain subject
to the oversight and reporting requirements set forth
in the decree in Arizona v. California, 376 U.S. 340
(1964), as supplemented, and that the State of New
Mexico shall make available on request a copy of any
records prepared pursuant to that decree; and
(II) past, present, and future claims arising out
of or relating to the use of water rights for New Mexico
domestic purposes, on the conditions that such water
rights remain subject to the oversight and reporting
requirements set forth in the decree in Arizona v.
California, 376 U.S. 340 (1964), as supplemented, and
that the State of New Mexico shall make available
on request a copy of any records prepared pursuant
to that decree; and
(iv) past, present, and future claims arising out
of or relating to the negotiation or execution of the
UVD agreement, or the negotiation or enactment of
titles I and II.
(6) TRIBAL WATER QUALITY STANDARDS.—The Community,
on behalf of the Community and Community members, as part
of the performance of its obligations under the Gila River
agreement, is authorized to agree never to adopt any water
quality standards, or ask the United States to promulgate
such standards, that are more stringent than water quality
standards adopted by the State if the Community’s adoption
of such standards could result in the imposition by the State
or the United States of more stringent water quality limitations
or requirements than those that would otherwise be imposed
by the State or the United States on—
(A) any water delivery system used to deliver water
to the Community; or
(B) the discharge of water into any such system.
(b) EFFECTIVENESS OF WAIVER AND RELEASES.—
(1) IN GENERAL.—The waivers under paragraphs (1) and
(3) through (5) of subsection (a) shall become effective on the
enforceability date.
(2) CLAIMS FOR SUBSIDENCE DAMAGE.—The waiver under
subsection (a)(2) shall become effective on execution of the
waiver by—
(A) the Community, a Community member, or an
allottee; and
(B) the United States, on behalf of the Community,
a Community member, or an allottee.
(c) ENFORCEABILITY DATE.—
(1) IN
GENERAL.—This section takes effect on the date
on which the Secretary publishes in the Federal Register a
statement of findings that—
(A) to the extent the Gila River agreement conflicts
with this title, the Gila River agreement has been revised
through an amendment to eliminate the conflict and the
Effective date.
Federal Register,
publication.
Effective date.
Records.
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118 STAT. 3520
PUBLIC LAW 108–451—DEC. 10, 2004
Gila River agreement, so revised, has been executed by
the Secretary and the Governor of the State;
(B) the Secretary has fulfilled the requirements of—
(i) paragraphs (1)(A)(i) and (2) of subsection (a)
and subsections (b) and (d) of section 104; and
(ii) sections 204, 205, and 209(a);
(C) the master agreement authorized, ratified, and con-
firmed by section 106(a) has been executed by the parties
to the master agreement, and all conditions to the enforce-
ability of the master agreement have been satisfied;
(D) $53,000,000 has been identified and retained in
the Lower Colorado River Basin Development Fund for
the benefit of the Community in accordance with section
107(b);
(E) the State has appropriated and paid to the Commu-
nity any amount to be paid under paragraph 27.4 of the
Gila River agreement;
(F) the Salt River Project has paid to the Community
$500,000 under subparagraph 16.9 of the Gila River agree-
ment;
(G) the judgments and decrees attached to the Gila
River agreement as exhibits 25.18A (Gila River adjudica-
tion proceedings) and 25.18B (Globe Equity Decree pro-
ceedings) have been approved by the respective courts;
(H) the dismissals attached to the Gila River agree-
ment as exhibits 25.17.1A and B, 25.17.2, and 25.17.3A
and B have been filed with the respective courts and any
necessary dismissal orders entered;
(I) legislation has been enacted by the State to—
(i) implement the Southside Replenishment Pro-
gram in accordance with subparagraph 5.3 of the Gila
River agreement;
(ii) authorize the firming program required by sec-
tion 105; and
(iii) establish the Upper Gila River Watershed
Maintenance Program in accordance with subpara-
graph 26.8.1 of the Gila River agreement;
(J) the State has entered into an agreement with the
Secretary to carry out the obligation of the State under
section 105(b)(2)(A); and
(K) a final judgment has been entered in Central
Arizona Water Conservation District v. United States (No.
CIV 95–625–TUC–WDB(EHC), No. CIV 95–1720PHX–
EHC) (Consolidated Action) in accordance with the repay-
ment stipulation.
(2) FAILURE
OF
ENFORCEABILITY
DATE
TO
OCCUR.—If,
because of the failure of the enforceability date to occur by
December 31, 2007, this section does not become effective,
the Community, Community members, and allottees, and the
United States on behalf of the San Carlos Irrigation and Drain-
age District, the Community, Community members, and
allottees, shall retain the right to assert past, present, and
future water rights claims, claims for injury to water rights,
claims for injury to water quality, and claims for subsidence
damage as to all land within the exterior boundaries of the
Reservation, off-Reservation trust land, and fee land.
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(d) ALL LAND WITHIN EXTERIOR BOUNDARIES OF THE RESERVA-
TION.—Notwithstanding section 2(42), for purposes of this section,
section 206, and section 210(d)—
(1) the term ‘‘land within the exterior boundaries of the
Reservation’’ includes—
(A) land within the Reservation created pursuant to
the Act of February 28, 1859, and modified by the executive
orders of August 31, 1876, June 14, 1879, May 5, 1882,
November 15, 1883, July 31, 1911, June 2, 1913, August
27, 1914, and July 19, 1915; and
(B) land located in sections 16 and 36, T. 4 S., R.
4 E., Salt and Gila River Baseline and Meridian; and
(2) the term ‘‘off-Reservation’’ refers to land located outside
the exterior boundaries of the Reservation (as defined in para-
graph (1)).
(e) NO RIGHTS TO WATER.—Upon the occurrence of the enforce-
ability date—
(1) all land held by the United States in trust for the
Community, Community members, and allottees and all land
held by the Community within the exterior boundaries of the
Reservation shall have no rights to water other than those
specifically granted to the Community and the United States
for the Reservation pursuant to paragraph 4.0 of the Gila
River agreement; and
(2) all water usage on land within the exterior boundaries
of the Reservation, including the land located in sections 16
and 36, T. 4 S., R. 4 E., Salt and Gila River Baseline and
Meridian, upon acquisition by the Community or the United
States on behalf of the Community, shall be taken into account
in determining compliance by the Community and the United
States with the limitations on total diversions specified in
subparagraph 4.2 of the Gila River agreement.
SEC. 208. GILA RIVER INDIAN COMMUNITY WATER OM&R TRUST
FUND.
(a) ESTABLISHMENT.—There is established in the Treasury of
the United States a fund to be known as the ‘‘Gila River Indian
Community Water OM&R Fund’’, to be managed and invested
by the Secretary, consisting of $53,000,000, the amount made avail-
able for this purpose under paragraph (2)(B) of section 403(f) of
the Colorado River Basin Project Act (43 U.S.C. 1543(f)) (as
amended by section 107(a)).
(b) MANAGEMENT.—The Secretary shall manage the Water
OM&R Fund, make investments from the Fund, and make monies
available from the Fund for distribution to the Community con-
sistent with the American Indian Trust Fund Management Reform
Act of 1994 (25 U.S.C. 4001 et seq.), hereafter referred to in this
section as the ‘‘Trust Fund Reform Act’’.
(c) INVESTMENT
OF
THE FUND.—The Secretary shall invest
amounts in the Fund in accordance with—
(1) the Act of April 1, 1880 (21 Stat. 70, chapter 41; 25
U.S.C. 161);
(2) the first section of the Act of June 24, 1938 (52 Stat.
1037, chapter 648; 25 U.S.C. 162a); and
(3) subsection (b).
(d) EXPENDITURES AND WITHDRAWALS.—
(1) TRIBAL MANAGEMENT PLAN.—
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118 STAT. 3522
PUBLIC LAW 108–451—DEC. 10, 2004
(A) IN GENERAL.—The Community may withdraw all
or part of the Water OM&R Fund on approval by the
Secretary of a tribal management plan as described in
the Trust Fund Reform Act.
(B) REQUIREMENTS.—In addition to the requirements
under the Trust Fund Reform Act, the tribal management
plan shall require that the Community only spend any
funds, as provided in the Gila River agreement, to assist
in paying operation, maintenance, and replacement costs
associated with the delivery of CAP water for Community
purposes.
(2) ENFORCEMENT.—The Secretary may take judicial or
administrative action to enforce the provisions of any tribal
management plan to ensure that the monies withdrawn from
the Water OM&R Fund are used in accordance with this Act.
(3) LIABILITY.—If the Community exercises the right to
withdraw monies from the Water OM&R Fund, neither the
Secretary nor the Secretary of the Treasury shall retain any
liability for the expenditure or investment of the monies with-
drawn.
(4) EXPENDITURE PLAN.—
(A) IN GENERAL.—The Community shall submit to the
Secretary for approval an expenditure plan for any portion
of the funds made available under this section that the
Community does not withdraw under this subsection.
(B) DESCRIPTION.—The expenditure plan shall describe
the manner in which, and the purposes for which, funds
of the Community remaining in the Water OM&R Fund
will be used.
(C) APPROVAL.—On receipt of an expenditure plan
under subparagraph (A), the Secretary shall approve the
plan if the Secretary determines that the plan is reasonable
and consistent with this Act.
(5) ANNUAL REPORT.—The Community shall submit to the
Secretary an annual report that describes all expenditures from
the Water OM&R Fund during the year covered by the report.
(e) NO DISTRIBUTION TO MEMBERS.—No part of the principal
of the Water OM&R Fund, or of the interest or income accruing
on the principal, shall be distributed to any Community member
on a per capita basis.
(f) FUNDS NOT AVAILABLE UNTIL ENFORCEABILITY DATE.—
Amounts in the Water OM&R Fund shall not be available for
expenditure or withdrawal by the Community until the enforce-
ability date, or until January 1, 2010, whichever is later.
SEC. 209. SUBSIDENCE REMEDIATION PROGRAM.
(a) IN GENERAL.—Subject to the availability of funds and con-
sistent with the provisions of section 107(a), the Secretary shall
establish a program under which the Bureau of Reclamation shall
repair and remediate subsidence damage and related damage that
occurs after the enforceability date.
(b) DAMAGE.—Under the program, the Community, a Commu-
nity member, or an allottee may submit to the Secretary a request
for the repair or remediation of—
(1) subsidence damage; and
(2) damage to personal property caused by the settling
of geologic strata or cracking in the earth’s surface of any
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118 STAT. 3523
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length or depth, which settling or cracking is caused by
pumping of underground water.
(c) REPAIR OR REMEDIATION.—The Secretary shall perform the
requested repair or remediation if—
(1) the Secretary determines that the Community has not
exceeded its right to withdraw underground water under the
Gila River agreement; and
(2) the Community, Community member, or allottee, and
the Secretary as trustee for the Community, Community
member, or allottee, execute a waiver and release of claim
in the form specified in exhibit 25.9.1, 25.9.2, or 25.9.3 to
the Gila River agreement, as applicable, to become effective
on satisfactory completion of the requested repair or remedi-
ation, as determined under the Gila River agreement.
(d) SPECIFIC SUBSIDENCE DAMAGE.—Subject to the availability
of funds, the Secretary, acting through the Commissioner of Rec-
lamation, shall repair, remediate, and rehabilitate the subsidence
damage that has occurred to land before the enforceability date
within the Reservation, as specified in exhibit 30.21 to the Gila
River agreement.
SEC. 210. AFTER-ACQUIRED TRUST LAND.
(a) REQUIREMENT OF ACT OF CONGRESS.—The Community may
seek to have legal title to additional land in the State located
outside the exterior boundaries of the Reservation taken into trust
by the United States for the benefit of the Community pursuant
only to an Act of Congress enacted after the date of enactment
of this Act specifically authorizing the transfer for the benefit
of the Community.
(b) WATER RIGHTS.—After-acquired trust land shall not include
federally reserved rights to surface water or groundwater.
(c) SENSE
OF CONGRESS.—It is the sense of Congress that
future Acts of Congress authorizing land to be taken into trust
under subsection (a) should provide that such land will have only
such water rights and water use privileges as would be consistent
with State water law and State water management policy.
(d) ACCEPTANCE OF LAND IN TRUST STATUS.—
(1) IN GENERAL.—If the Community acquires legal fee title
to land that is located within the exterior boundaries of the
Reservation (as defined in section 207(d)), the Secretary shall
accept the land in trust status for the benefit of the Community
upon receipt by the Secretary of a submission from the Commu-
nity that provides evidence that—
(A) the land meets the Department of the Interior’s
minimum environmental standards and requirements for
real estate acquisitions set forth in 602 DM 2.6, or any
similar successor standards or requirements for real estate
acquisitions in effect on the date of the Community’s
submission; and
(B) the title to the land meets applicable Federal title
standards in effect on the date of the Community’s submis-
sion.
(2) RESERVATION
STATUS.—Land taken or held in trust
by the Secretary under paragraph (1) shall be deemed part
of the Community’s reservation.
SEC. 211. REDUCTION OF WATER RIGHTS.
(a) REDUCTION OF TBI ELIGIBLE ACRES.—
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118 STAT. 3524
PUBLIC LAW 108–451—DEC. 10, 2004
(1) IN GENERAL.—Consistent with this title and as provided
in the UVD agreement to assist in reducing the total water
demand for irrigation use in the upper valley of the Gila River,
the Secretary shall provide funds to the Gila Valley Irrigation
District and the Franklin Irrigation District (hereafter in this
section referred to as ‘‘the Districts’’) for the acquisition of
UV decreed water rights and the extinguishment of those rights
to decrease demands on the Gila River, or severance and
transfer of those rights to the San Carlos Irrigation Project
for the benefit of the Community and the San Carlos Irrigation
and Drainage District in accordance with applicable law.
(2) ACQUISITIONS.—
(A) REQUIRED PHASE I ACQUISITION.—Not later than
December 31 of the third calendar year that begins after
the enforceability date (or December 31 of the first calendar
year that begins after the payment provided by subpara-
graph (D)(iii), if later), the Districts shall acquire the UV
decreed water rights appurtenant to 1,000 acres of land
(other than special hot lands).
(B) REQUIRED PHASE II ACQUISITION.—Not later than
December 31 of the sixth calendar year that begins after
the enforceability date (or December 31 of the first calendar
year that begins after the payment provided by subpara-
graph (D)(iii), if later), the Districts shall acquire the UV
decreed water rights appurtenant to 1,000 acres of land
(other than special hot lands). The reduction of TBI eligible
acres under this subparagraph shall be in addition to that
accomplished under subparagraph (A).
(C) ADDITIONAL ACQUISITION IN CASE OF SETTLEMENT.—
If the San Carlos Apache Tribe reaches a comprehensive
settlement that is approved by Congress and finally
approved by all courts the approval of which is required,
the Secretary shall offer to acquire for fair market value
the UV decreed water rights associated with not less than
500 nor more than 3,000 TBI eligible acres of land (other
than special hot lands).
(D) METHODS OF ACQUISITION FOR RIGHTS ACQUIRED
PURSUANT TO SUBPARAGRAPHS (A) AND (B).—
(i) DETERMINATION OF VALUE.—
(I) APPRAISALS.—Not later than December 31
of the first calendar year that begins after the
enforceability date in the case of the phase I
acquisition, and not later than December 31 of
the fourth calendar year that begins after the
enforceability date in the case of the phase II
acquisition, the Districts shall submit to the Sec-
retary an appraisal of the average value of water
rights appurtenant to 1,000 TBI eligible acres.
(II) REVIEW.—The Secretary shall review the
appraisal submitted to ensure its consistency with
the Uniform Appraisal Standards for Federal Land
Acquisition and notify the Districts of the results
of the review within 30 days of submission of the
appraisal. In the event that the Secretary finds
that the appraisal is not consistent with such
standards, the Secretary shall so notify the Dis-
tricts with a full explanation of the reasons for
Notification.
Deadlines.
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PUBLIC LAW 108–451—DEC. 10, 2004
that finding. Within 60 days of being notified by
the Secretary that the appraisal is not consistent
with such Standards, the Districts shall resubmit
an appraisal to the Secretary that is consistent
with such standards. The Secretary shall review
the resubmitted appraisal to ensure its consistency
with nationally approved standards and notify the
Districts of the results of the review within 30
days of resubmission.
(III) PETITION.—In the event that the Sec-
retary finds that such resubmitted appraisal is
not consistent with those Standards, either the
Districts or the Secretary may petition a Federal
court in the District of Arizona for a determination
of whether the appraisal is consistent with nation-
ally approved Standards. If such court finds the
appraisal is so consistent, the value stated in the
appraisal shall be final for all purposes. If such
court finds the appraisal is not so consistent, the
court shall determine the average value of water
rights appurtenant to 1,000 TBI eligible acres.
(IV) NO OBJECTION.—If the Secretary does not
object to an appraisal within the time periods pro-
vided in this clause (i), the value determined in
the appraisal shall be final for all purposes.
(ii) APPRAISAL.—In determining the value of water
rights pursuant to this paragraph, any court, the Dis-
tricts, the Secretary, and any appraiser shall take into
account the obligations the owner of the land (to which
the rights are appurtenant) will have after acquisition
for phreatophyle control as provided in the UVD agree-
ment and to comply with environmental laws because
of the acquisition and severance and transfer or
extinguishment of the water rights.
(iii) PAYMENT.—No more than 30 days after the
average value of water rights appurtenant to 1,000
acres of land has been determined in accordance with
clauses (i) and (ii), the Secretary shall pay 125 percent
of such values to the Districts.
(iv) REDUCTION
OF
ACREAGE.—No later than
December 31 of the first calendar year that begins
after each such payment, the Districts shall acquire
the UV decreed water rights appurtenant to one thou-
sand (1,000) acres of lands that would have been
included in the calculation of TBI eligible acres (other
than special hot lands), if the calculation of TBI eligible
acres had been undertaken at the time of acquisition.
To the extent possible, the Districts shall select the
rights to be acquired in compliance with subsection
5.3.7 of the UVD agreement.
(3) REDUCTION
OF
TBI
ELIGIBLE
ACRES.—Simultaneously
with the acquisition of UV decreed water rights under para-
graph (2), the number of TBI eligible acres, but not the number
of acres of UV subjugated land, shall be reduced by the number
of acres associated with those UV decreed water rights.
(4) ALTERNATIVES TO ACQUISITION.—
Notification.
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118 STAT. 3526
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(A) SPECIAL HOT LANDS.—After the payments provided
by paragraph (2)(D)(iii), the Districts may fulfill the
requirements of paragraphs (2) and (3) in full or in part,
by entering into an agreement with an owner of special
hot lands to prohibit permanently future irrigation of the
special 
hot 
lands 
if 
the 
UVD 
settling 
parties
simultaneously—
(i) acquire UV decreed water rights associated with
a like number of UV decreed acres that are not TBI
eligible acres; and
(ii) sever and transfer those rights to the San
Carlos Irrigation Project for the benefit of the Commu-
nity and the San Carlos Irrigation and Drainage Dis-
trict.
(B) FALLOWING AGREEMENT.—After the payment pro-
vided by paragraph (2)(D)(iii), the Districts may fulfill the
requirements of paragraphs (2) and (3) in full or in part,
by entering into an agreement with 1 or more owners
of UV decreed acres and the UV irrigation district in which
the acres are located, if any, under which—
(i) the number of TBI eligible acres is reduced;
but
(ii) the owner of the UV decreed acres subject
to the reduction is permitted to periodically irrigate
the UV decreed acres under a fallowing agreement
authorized under the UVD agreement.
(5) DISPOSITION OF ACQUIRED WATER RIGHTS.—
(A) IN
GENERAL.—Of the UV decreed water rights
acquired by the Districts pursuant to subparagraphs (A)
and (B) of paragraph (2), the Districts shall, in accordance
with all applicable law and the UVD agreement—
(i) sever, and transfer to the San Carlos Irrigation
Project for the benefit of the Community and the San
Carlos Irrigation and Drainage District, the UV
decreed water rights associated with up to 900 UV
decreed acres; and
(ii) extinguish the balance of the UV decreed water
rights so acquired (except and only to the extent that
those rights are associated with a fallowing agreement
authorized under paragraph (4)(B)).
(B) SAN CARLOS APACHE SETTLEMENT.—With respect
to water rights acquired by the Secretary pursuant to para-
graph (2)(C), the Secretary shall, in accordance with
applicable law—
(i) cause to be severed and transferred to the San
Carlos Irrigation Project, for the benefit of the Commu-
nity and the San Carlos Irrigation and Drainage Dis-
trict, the UV decreed water rights associated with 200
UV decreed acres;
(ii) cause to be extinguished the UV decreed water
rights associated with 300 UV decreed acres; and
(iii) cause to be transferred the balance of those
acquired water rights to the San Carlos Apache Tribe
pursuant to the terms of the settlement described in
paragraph (2)(C).
(6) MITIGATION.—To the extent the Districts, after the pay-
ments provided by paragraph (2)(D)(iii), do not comply with
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118 STAT. 3527
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the acquisition requirements of paragraph (2) or otherwise
comply with the alternatives to acquisition provided by para-
graph (4), the Districts shall provide mitigation to the San
Carlos Irrigation Project as provided by the UVD agreement.
(b) ADDITIONAL REDUCTIONS.—
(1) COOPERATIVE PROGRAM.—In addition to the reduction
of TBI eligible acres to be accomplished under subsection (a),
not later than 1 year after the enforceability date, the Secretary
and the UVD settling parties shall cooperatively establish a
program to purchase and extinguish UV decreed water rights
associated with UV decreed acres that have not been recently
irrigated.
(2) FOCUS.—The primary focus of the program under para-
graph (1) shall be to prevent any land that contains riparian
habitat from being reclaimed for irrigation.
(3) FUNDS AND RESOURCES.—The program under this sub-
section shall not require any expenditure of funds, or commit-
ment of resources, by the UVD signatories other than such
incidental expenditures of funds and commitments of resources
as are required to cooperatively participate in the program.
SEC. 212. NEW MEXICO UNIT OF THE CENTRAL ARIZONA PROJECT.
(a) REQUIRED APPROVALS.—The Secretary shall not execute the
Gila River agreement pursuant to section 203(b), and the agreement
shall not become effective, unless and until the New Mexico
Consumptive Use and Forbearance Agreement has been executed
by all signatory parties and approved by the State of New Mexico.
(b) NEW MEXICO CONSUMPTIVE USE AND FORBEARANCE AGREE-
MENT.—
(1) IN GENERAL.—Except to the extent a provision of the
New Mexico Consumptive Use and Forbearance Agreement con-
flicts with a provision of this title, the New Mexico Consumptive
Use and Forbearance Agreement is authorized, ratified, and
confirmed. To the extent amendments are executed to make
the New Mexico Consumptive Use and Forbearance Agreement
consistent with this title, such amendments are also authorized,
ratified, and confirmed.
(2) EXECUTION.—To the extent the New Mexico Consump-
tive Use and Forbearance Agreement does not conflict with
this title, the Secretary shall execute the New Mexico Consump-
tive Use and Forbearance Agreement, including all exhibits
to which the Secretary is a party to the New Mexico Consump-
tive Use and Forbearance Agreement and any amendments
to the New Mexico Consumptive Use and Forbearance nec-
essary to make it consistent with this title.
(c) NEW MEXICO UNIT AGREEMENT.—The Secretary is author-
ized to execute the New Mexico Unit Agreement, which agreement
shall be executed within 1 year of receipt by the Secretary of
written notice from the State of New Mexico that the State of
New Mexico intends to build the New Mexico Unit, which notice
must be received not later than December 31, 2014. The New
Mexico Unit Agreement shall, among other things, provide that—
(1) all funds from the Lower Colorado River Basin Develop-
ment Fund disbursed in accordance with section 403(f)(2)(D)
(i) and (ii) of the Colorado River Basin Project Act (as amended
by section 107(a)) shall be nonreimbursable (and such costs
Deadlines.
Notice.
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118 STAT. 3528
PUBLIC LAW 108–451—DEC. 10, 2004
shall be excluded from the repayment obligation, if any, of
the NM CAP entity under the New Mexico Unit Agreement);
(2) in determining payment for CAP water under the New
Mexico Unit Agreement, the NM CAP entity shall be respon-
sible only for its share of operations, maintenance, and replace-
ment costs (and no capital costs attendant to other units or
portions of the Central Arizona Project shall be charged to
the NM CAP entity);
(3) upon request by the NM CAP entity, the Secretary
shall transfer to the NM CAP entity the responsibility to design,
build, or operate and maintain the New Mexico Unit, or all
or any combination of those responsibilities, provided that the
Secretary shall not transfer the authority to divert water pursu-
ant to the New Mexico Consumptive Use and Forbearance
Agreement, provided further that the Secretary, shall remain
responsible to the parties to the New Mexico Consumptive
Use and Forbearance Agreement for the NM CAP entity’s
compliance with the terms and conditions of that agreement;
(4) the Secretary shall divert water and otherwise exercise
her rights and authorities pursuant to the New Mexico
Consumptive Use and Forbearance Agreement solely for the
benefit of the NM CAP entity and for no other purpose;
(5) the NM CAP entity shall own and hold title to all
portions of the New Mexico Unit constructed pursuant to the
New Mexico Unit Agreement; and
(6) the Secretary shall provide a waiver of sovereign immu-
nity for the sole and exclusive purpose of resolving a dispute
in Federal court of any claim, dispute, or disagreement arising
under the New Mexico Unit Agreement.
(d) AMENDMENT TO SECTION 304.—Section 304(f) of the Colorado
River Basin Project Act (43 U.S.C. 1524(f)) is amended—
(1) by striking paragraph (1) and inserting the following:
‘‘(1) In the operation of the Central Arizona Project, the Sec-
retary shall offer to contract with water users in the State
of New Mexico, with the approval of its Interstate Stream
Commission, or with the State of New Mexico, through its
Interstate Stream Commission, for water from the Gila River,
its tributaries and underground water sources in amounts that
will permit consumptive use of water in New Mexico of not
to exceed an annual average in any period of 10 consecutive
years of 14,000 acre-feet, including reservoir evaporation, over
and above the consumptive uses provided for by article IV
of the decree of the Supreme Court of the United States in
Arizona v. California (376 U.S. 340). Such increased consump-
tive uses shall continue only so long as delivery of Colorado
River water to downstream Gila River users in Arizona is
being accomplished in accordance with this Act, in quantities
sufficient to replace any diminution of their supply resulting
from such diversion from the Gila River, its tributaries and
underground water sources. In determining the amount
required for this purpose, full consideration shall be given
to any differences in the quality of the water involved.’’;
(2) by striking paragraph (2); and
(3) by redesignating paragraph (3) as paragraph (2).
(e) COST LIMITATION.—In determining payment for CAP water
under the New Mexico Consumptive Use and Forbearance Agree-
ment, the NM CAP entity shall be responsible only for its share
Contracts.
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118 STAT. 3529
PUBLIC LAW 108–451—DEC. 10, 2004
of operations, maintenance, and repair costs. No capital costs
attendant to other Units or portions of the Central Arizona Project
shall be charged to the NM CAP entity.
(f) EXCLUSION OF COSTS.—For the purpose of determining the
allocation and repayment of costs of the Central Arizona Project
under the CAP Repayment Contract, the costs associated with
the New Mexico Unit and the delivery of Central Arizona Project
water pursuant to the New Mexico Consumptive Use and Forbear-
ance Agreement shall be nonreimbursable, and such costs shall
be excluded from the Central Arizona Water Conservation District’s
repayment obligation.
(g) NEW MEXICO UNIT CONSTRUCTION AND OPERATIONS.—The
Secretary is authorized to design, build, and operate and maintain
the New Mexico Unit. Upon request by the State of New Mexico,
the Secretary shall transfer to the NM CAP entity responsibility
to design, build, or operate and maintain the New Mexico Unit,
or all or any combination of those functions.
(h) NATIONAL ENVIRONMENTAL POLICY ACT.—
(1) ENVIRONMENTAL COMPLIANCE.—Upon execution of the
New Mexico Consumptive Use and Forbearance Agreement and
the New Mexico Unit Agreement, the Secretary shall promptly
comply with all aspects of the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et seq.), the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.), and all other applicable
environmental Acts and regulations.
(2) EXECUTION OF THE NEW MEXICO CONSUMPTIVE USE AND
FORBEARANCE AGREEMENT AND THE NEW MEXICO UNIT AGREE-
MENT.—Execution of the New Mexico Consumptive Use and
Forbearance Agreement and the New Mexico Unit Agreement
by the Secretary under this section shall not constitute a major
Federal action under the National Environmental Policy Act
(42 U.S.C. 4321 et seq.). The Secretary is directed to carry
out all necessary environmental compliance required by Federal
law in implementing the New Mexico Consumptive Use and
Forbearance Agreement and the New Mexico Unit Agreement.
(3) LEAD AGENCY.—The Bureau of Reclamation shall be
designated as the lead agency with respect to environmental
compliance. Upon request by the State of New Mexico to the
Secretary, the State of New Mexico shall be designated as
joint lead agency with respect to environmental compliance.
(i) NEW MEXICO UNIT FUND.—The Secretary shall deposit the
amounts made available under paragraph (2)(D)(i) of section 403(f)
of the Colorado River Basin Project Act (43 U.S.C. 1543(f)) (as
amended by section 107(a)) into the New Mexico Unit Fund, a
State of New Mexico Fund established and administered by the
New Mexico Interstate Stream Commission. Withdrawals from the
New Mexico Unit Fund shall be for the purpose of paying costs
of the New Mexico Unit or other water utilization alternatives
to meet water supply demands in the Southwest Water Planning
Region of New Mexico, as determined by the New Mexico Interstate
Stream Commission in consultation with the Southwest New Mexico
Water Study Group or its successor, including costs associated
with planning and environmental compliance activities and environ-
mental mitigation and restoration.
(j) ADDITIONAL FUNDING FOR NEW MEXICO UNIT.—The Sec-
retary shall pay for an additional portion of the costs of constructing
the New Mexico Unit from funds made available under paragraph
Deadlines.
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118 STAT. 3530
PUBLIC LAW 108–451—DEC. 10, 2004
(2)(D)(ii) of section 403(f) of the Colorado River Basin Project Act
(43 U.S.C. 1543(f)) (as amended by section 107(a)) on a construction
schedule basis, up to a maximum amount under this subparagraph
(j) of $34,000,000, as adjusted to reflect changes since January
1, 2004, in the construction cost indices applicable to the types
of construction involved in construction of the New Mexico Unit,
upon satisfaction of the conditions that—
(1) the State of New Mexico must provide notice to the
Secretary in writing not later than December 31, 2014, that
the State of New Mexico intends to have constructed or devel-
oped the New Mexico Unit; and
(2) the Secretary must have issued in the Federal Register
not later than December 31, 2019, a Record of Decision
approving the project based on an environmental analysis
required pursuant to applicable Federal law and on a dem-
onstration that construction of a project for the New Mexico
Unit that would deliver an average annual safe yield, based
on a 50-year planning period, greater than 10,000 acre feet
per year, would not cost more per acre foot of water diverted
than a project sized to produce an average annual safe yield
of 10,000 acre feet per year. If New Mexico exercises all reason-
able efforts to obtain the issuance of such Record of Decision,
but the Secretary is not able to issue such Record of Decision
by December 31, 2019, for reasons outside the control of the
State of New Mexico, the Secretary may extend the deadline
for a reasonable period of time, not to extend beyond December
31, 2030.
(k) RATE OF RETURN EXCEEDING 4 PERCENT.—If the rate of
return on carryover funds held in the Lower Colorado Basin
Development Fund on the date that construction of the New Mexico
Unit is initiated exceeds an average effective annual rate of 4
percent for the period beginning on the date of enactment of this
Act through the date of initiation of construction of the New Mexico
Unit, the Secretary shall pay an additional portion of the costs
of the construction costs associated with the New Mexico Unit,
on a construction schedule basis, using funds made available under
paragraph (2)(D)(ii) of section 403(f) of the Colorado River Basin
Project Act (43 U.S.C. 1543(f)) (as amended by section 107(a)).
The amount of such additional payments shall be equal to 25
percent of the total return on the carryover funds earned during
the period in question that is in excess of a return on such funds
at an annual average effective return of 4 percent, up to a maximum
total of not more than $28,000,000, as adjusted to reflect changes
since January 1, 2004, in the construction cost indices applicable
to the types of construction involved in construction of the New
Mexico Unit.
(l) DISCLAIMER.—Nothing in this Act shall affect, alter, or
diminish rights to use of water of the Gila River within New
Mexico, or the authority of the State of New Mexico to administer
such rights for use within the State, as such rights are quantified
by article IV of the decree of the United States Supreme Court
in Arizona v. California (376 U.S. 340).
(m) PRIORITY OF OTHER EXCHANGES.—The Secretary shall not
approve any exchange of Gila River water for water supplied by
the CAP that would amend, alter, or conflict with the exchanges
authorized by section 304(f) of the Colorado River Basin Project
Act (43 U.S.C. 1524(f)).
Federal Register,
publication.
Notices.
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118 STAT. 3531
PUBLIC LAW 108–451—DEC. 10, 2004
SEC. 213. MISCELLANEOUS PROVISIONS.
(a) WAIVER OF SOVEREIGN IMMUNITY.—If any party to the Gila
River agreement or signatory to an exhibit executed pursuant to
section 203(b) or to the New Mexico Consumptive Use and Forbear-
ance Agreement brings an action in any court of the United States
or any State court relating only and directly to the interpretation
or enforcement of this title or the Gila River agreement (including
enforcement of any indemnity provisions contained in the Gila
River agreement) or the New Mexico Consumptive Use and Forbear-
ance Agreement, and names the United States or the Community
as a party, or if any other landowner or water user in the Gila
River basin in Arizona (except any party referred to in subpara-
graph 28.1.4 of the Gila River agreement) files a lawsuit relating
only and directly to the interpretation or enforcement of subpara-
graph 6.2, subparagraph 6.3, paragraph 25, subparagraph 26.2,
subparagraph 26.8, and subparagraph 28.1.3 of the Gila River
agreement, naming the United States or the Community as a
party—
(1) the United States, the Community, or both, may be
joined in any such action; and
(2) any claim by the United States or the Community
to sovereign immunity from the action is waived, but only
for the limited and sole purpose of such interpretation or
enforcement (including any indemnity provisions contained in
the Gila River agreement).
(b) EFFECT OF ACT.—Nothing in this title quantifies or other-
wise affects the water rights, or claims or entitlements to water,
of any Indian tribe, band, or community, other than the Community.
(c) LIMITATION ON CLAIMS FOR REIMBURSEMENT.—The United
States shall not make a claim for reimbursement of costs arising
out of the implementation of this title or the Gila River agreement
against any Indian-owned land within the Reservation, and no
assessment shall be made in regard to those costs against that
land.
(d) NO EFFECT
ON FUTURE ALLOCATIONS.—Water received
under a lease or exchange of Community CAP water under this
title shall not affect any future allocation or reallocation of CAP
water by the Secretary.
(e) COMMUNITY REPAYMENT CONTRACT.—To the extent it is
not in conflict with this Act, the Secretary is directed to and
shall execute Amendment No. 1 to the Community repayment con-
tract, attached as exhibit 8.1 to the Gila River agreement, to pro-
vide, among other things, that the costs incurred under that contract
shall be nonreimbursable by the Community. To the extent amend-
ments are executed to make Amendment No. 1 consistent with
this title, such amendments are also authorized, ratified, and con-
firmed.
(f) SALT RIVER PROJECT RIGHTS AND CONTRACTS.—
(1) IN GENERAL.—Subject to paragraph (2), the agreement
between the United States and the Salt River Valley Water
Users’ Association dated September 6, 1917, as amended, and
the rights of the Salt River Project to store water from the
Salt River and Verde River at Roosevelt Dam, Horse Mesa
Dam, Mormon Flat Dam, Stewart Mountain Dam, Horseshoe
Dam, and Bartlett Dam and to deliver the stored water to
shareholders of the Salt River Project and others for all bene-
ficial uses and purposes recognized under State law and to
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118 STAT. 3532
PUBLIC LAW 108–451—DEC. 10, 2004
the Community under the Gila River agreement, are author-
ized, ratified, and confirmed.
(2) PRIORITY DATE; QUANTIFICATION.—The priority date and
quantification of rights described in paragraph (1) shall be
determined in an appropriate proceeding in State court.
(3) CARE, OPERATION, AND MAINTENANCE.—The Salt River
Project shall retain authority and responsibility existing on
the date of enactment of this Act for decisions relating to
the care, operation, and maintenance of the Salt River Project
water delivery system, including the Salt River Project res-
ervoirs on the Salt River and Verde River, vested in Salt
River Project under the 1917 agreement, as amended, described
in paragraph (1).
(g) UV IRRIGATION DISTRICTS.—
(1) IN GENERAL.—As partial consideration for obligations
the UV irrigation districts shall be undertaking, the obligation
to comply with the terms and conditions of term 5 of exhibit
2.30 (New Mexico Risk Allocation Terms) to the New Mexico
Consumptive Use and Forbearance Agreement, the Gila Valley
Irrigation District, in 2010, shall receive funds from the Sec-
retary in an amount of $15,000,000 (adjusted to reflect changes
since the date of enactment of this Act in the cost indices
applicable to the type of design and construction involved in
the design and construction of a pipeline at or upstream from
the Ft. Thomas Diversion Dam to the lands farmed by the
San Carlos Apache Tribe, together with canal connections
upstream from the Ft. Thomas Diversion Dam and connection
devices appropriate to introduce pumped water into the Pipe-
line).
(2) RESTRICTION.—The funds to be received by the Gila
Valley Irrigation District shall be used solely for the purpose
of developing programs or constructing facilities to assist with
mitigating the risks and costs associated with compliance with
the terms and conditions of term 5 of exhibit 2.30 (New Mexico
Risk Allocation Terms) of the New Mexico Consumptive and
Forbearance Agreement, and for no other purpose.
(h) LIMITATION ON LIABILITY OF UNITED STATES.—
(1) IN GENERAL.—The United States shall have no trust
or other obligation—
(A) to monitor, administer, or account for, in any
manner, any of the funds paid to the Community by any
party to the Gila River agreement; or
(B) to review or approve the expenditure of those funds.
(2) INDEMNIFICATION.—The Community shall indemnify the
United States, and hold the United States harmless, with
respect to any and all claims (including claims for takings
or breach of trust) arising out of the receipt or expenditure
of funds described in paragraph (1)(A).
(i) BLUE RIDGE PROJECT TRANSFER AUTHORIZATION.—
(1) DEFINITIONS.—In this subsection:
(A) BLUE
RIDGE
PROJECT.—The term ‘‘Blue Ridge
Project’’ means the water storage reservoir known as ‘‘Blue
Ridge Reservoir’’ situated in Coconino and Gila Counties,
Arizona, consisting generally of—
(i) Blue Ridge Dam and all pipelines, tunnels,
buildings, hydroelectric generating facilities, and other
structures of every kind, transmission, telephone and
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fiber optic lines, pumps, machinery, tools, and appli-
ances; and
(ii) all real or personal property, appurtenant to
or used, or constructed or otherwise acquired to be
used, in connection with Blue Ridge Reservoir.
(B) SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT
AND POWER DISTRICT.—The term ‘‘Salt River Project Agri-
cultural Improvement and Power District’’ means the Salt
River Project Agricultural Improvement and Power District,
a political subdivision of the State of Arizona.
(2) TRANSFER OF TITLE.—The United States, acting through
the Secretary of the Interior, shall accept from the Salt River
Project Agricultural Improvement and Power District the
transfer of title to the Blue Ridge Project. The transfer of
title to the Blue Ridge Project from the Salt River Project
Agricultural Improvement and Power District to the United
States shall be without cost to the United States. The transfer,
change of use or change of place of use of any water rights
associated with the Blue Ridge Project shall be made in accord-
ance with Arizona law.
(3) USE AND BENEFIT OF SALT RIVER FEDERAL RECLAMATION
PROJECT.—
(A) IN
GENERAL.—Subject to subparagraph (B), the
United States shall hold title to the Blue Ridge Project
for the exclusive use and benefit of the Salt River Federal
Reclamation Project.
(B) AVAILABILITY OF WATER.—Up to 3,500 acre-feet of
water per year may be made available from Blue Ridge
Reservoir for municipal and domestic uses in Northern
Gila County, Arizona, without cost to the Salt River Federal
Reclamation Project.
(4) TERMINATION OF JURISDICTION.—
(A) LICENSING AND REGULATORY AUTHORITY.—Upon the
transfer of title of the Blue Ridge Project to the United
States under paragraph (2), the Federal Energy Regulatory
Commission shall have no further licensing and regulatory
authority over Project Number 2304, the Blue Ridge
Project, located within the State.
(B) ENVIRONMENTAL LAWS.—All other applicable Fed-
eral environmental laws shall continue to apply to the
Blue Ridge Project, including the Endangered Species Act
of 1973 (16 U.S.C. 1531 et seq.) and the National Environ-
mental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(5) CARE, 
OPERATION, 
AND
MAINTENANCE.—Upon the
transfer of title of the Blue Ridge Project to the United States
under paragraph (2), the Salt River Valley Water Users’
Association and the Salt River Project Agricultural Improve-
ment and Power District shall be responsible for the care,
operation, and maintenance of the project pursuant to the con-
tract between the United States and the Salt River Valley
Water Users’ Association, dated September 6, 1917, as
amended.
(6) C.C. CRAGIN DAM & RESERVOIR.—Upon the transfer of
title of the Blue Ridge Project to the United States under
paragraph (2), Blue Ridge Dam and Reservoir shall thereafter
be known as the ‘‘C.C. Cragin Dam and Reservoir’’.
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PUBLIC LAW 108–451—DEC. 10, 2004
(j) EFFECT
ON CURRENT LAW; JURISDICTION
OF COURTS.—
Nothing in this section—
(1) alters law in effect on the day before the date of enact-
ment of this Act with respect to pre-enforcement review of
Federal environmental enforcement actions; or
(2) confers jurisdiction on any State court to interpret sub-
paragraphs (D), (E), and (G) of section 207(a)(1) where such
jurisdiction does not otherwise exist.
SEC. 214. AUTHORIZATION OF APPROPRIATIONS.
(a) AUTHORIZATION OF APPROPRIATIONS.—
(1) REHABILITATION OF IRRIGATION WORKS.—
(A) IN
GENERAL.—There is authorized to be appro-
priated $52,396,000, adjusted to reflect changes since
January 1, 2000, under subparagraph (B) for the rehabilita-
tion of irrigation works under section 203(d)(4).
(B) ADJUSTMENT.—The amount under subparagraph
(A) shall be adjusted by such amounts, if any, as may
be required by reason of changes in construction costs
as indicated by engineering cost indices applicable to the
types of construction required by the rehabilitation.
(2) BUREAU OF RECLAMATION CONSTRUCTION OVERSIGHT.—
There are authorized to be appropriated such sums as are
necessary for the Bureau of Reclamation to undertake the
oversight of the construction projects authorized under section
203.
(3) SUBSIDENCE REMEDIATION PROGRAM.—There are author-
ized to be appropriated such sums as are necessary to carry
out the subsidence remediation program under section 209
(including such sums as are necessary, not to exceed $4,000,000,
to carry out the subsidence remediation and repair required
under section 209(d)).
(4) WATER RIGHTS REDUCTION.—There are authorized to
be appropriated such sums as are necessary to carry out the
water rights reduction program under section 211.
(5) SAFFORD FACILITY.—There are authorized to be appro-
priated such sums as are necessary to—
(A) retire $13,900,000, minus any amounts appro-
priated for this purpose, of the debt incurred by Safford
to pay costs associated with the construction of the Safford
facility as identified in exhibit 26.1 to the Gila River agree-
ment; and
(B) pay the interest accrued on that amount.
(6) ENVIRONMENTAL
COMPLIANCE.—There are authorized
to be appropriated—
(A) such sums as are necessary to carry out—
(i) all necessary environmental compliance activi-
ties undertaken by the Secretary associated with the
Gila River agreement and this title;
(ii) any mitigation measures adopted by the Sec-
retary that are the responsibility of the Community
associated with the construction of the diversion and
delivery facilities of the water referred to in section
204 for use on the reservation; and
(iii) no more than 50 percent of the cost of any
mitigation measures adopted by the Secretary that
are the responsibility of the Community associated
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118 STAT. 3535
PUBLIC LAW 108–451—DEC. 10, 2004
with the diversion or delivery of the water referred
to in section 204 for use on the Reservation, other
than any responsibility related to water delivered to
any other person by lease or exchange; and
(B) to carry out the mitigation measures in the Roo-
sevelt 
Habitat 
Conservation 
Plan, 
not 
more 
than
$10,000,000.
(7) UV IRRIGATION DISTRICTS.—There are authorized to be
appropriated such sums as are necessary to pay the Gila Valley
Irrigation District an amount of $15,000,000 (adjusted to reflect
changes since the date of enactment of the Arizona Water
Settlements Act of 2004 in the cost indices applicable to the
type of design and construction involved in the design and
construction of a pipeline at or upstream from the Ft. Thomas
Diversion Dam to the lands farmed by the San Carlos Apache
Tribe, together with canal connections upstream from the Ft.
Thomas Diversion Dam and connection devices appropriate to
introduce pumped water into the Pipeline).
(b) IDENTIFIED COSTS.—
(1) IN
GENERAL.—Amounts made available under sub-
section (a) shall be considered to be identified costs for purposes
of paragraph (2)(D)(v)(I) of section 403(f) of the Colorado River
Basin Project Act (43 U.S.C. 1543(f)) (as amended by section
107(a)).
(2) EXCEPTION.—Amounts made available under subsection
(a)(4) to carry out section 211(b) shall not be considered to
be identified costs for purposes of section 403(f)(2)(D)(v)(I) of
the 
Colorado 
River 
Basin 
Project 
Act 
(43 
U.S.C.
1543(f)(2)(D)(v)(I)) (as amended by section 107(a)).
SEC. 215. REPEAL ON FAILURE OF ENFORCEABILITY DATE.
If the Secretary does not publish a statement of findings under
section 207(c) by December 31, 2007—
(1) except for section 213(i), this title is repealed effective
January 1, 2008, and any action taken by the Secretary and
any contract entered under any provision of this title shall
be void;
(2) any amounts appropriated under paragraphs (1)
through (7) of section 214(a), together with any interest on
those amounts, shall immediately revert to the general fund
of the Treasury;
(3) any amounts made available under section 214(b) that
remain unexpended shall immediately revert to the general
fund of the Treasury; and
(4) any amounts paid by the Salt River Project in accord-
ance with the Gila River agreement shall immediately be
returned to the Salt River Project.
TITLE III—SOUTHERN ARIZONA WATER
RIGHTS SETTLEMENT
SEC. 301. SOUTHERN ARIZONA WATER RIGHTS SETTLEMENT.
The Southern Arizona Water Rights Settlement Act of 1982
(96 Stat. 1274) is amended to read as follows:
43 USC 1501
note.
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‘‘TITLE III—SOUTHERN ARIZONA WATER
RIGHTS SETTLEMENT
‘‘SEC. 301. SHORT TITLE.
‘‘This title may be cited as the ‘Southern Arizona Water Rights
Settlement Amendments Act of 2004’.
‘‘SEC. 302. PURPOSES.
‘‘The purposes of this title are—
‘‘(1) to authorize, ratify, and confirm the agreements
referred to in section 309(h);
‘‘(2) to authorize and direct the Secretary to execute and
perform all obligations of the Secretary under those agreements;
and
‘‘(3) to authorize the actions and appropriations necessary
for the United States to meet obligations of the United States
under those agreements and this title.
‘‘SEC. 303. DEFINITIONS.
‘‘In this title:
‘‘(1) ACRE-FOOT.—The term ‘acre-foot’ means the quantity
of water necessary to cover 1 acre of land to a depth of 1
foot.
‘‘(2) AFTER-ACQUIRED
TRUST
LAND.—The term ‘after-
acquired trust land’ means land that—
‘‘(A) is located—
‘‘(i) within the State; but
‘‘(ii) outside the exterior boundaries of the Nation’s
Reservation; and
‘‘(B) is taken into trust by the United States for the
benefit of the Nation after the enforceability date.
‘‘(3) AGREEMENT OF DECEMBER 11, 1980.—The term ‘agree-
ment of December 11, 1980’ means the contract entered into
by the United States and the Nation on December 11, 1980.
‘‘(4) AGREEMENT OF OCTOBER 11, 1983.—The term ‘agreement
of October 11, 1983’ means the contract entered into by the
United States and the Nation on October 11, 1983.
‘‘(5) ALLOTTEE.—The term ‘allottee’ means a person that
holds a beneficial real property interest in an Indian allotment
that is—
‘‘(A) located within the Reservation; and
‘‘(B) held in trust by the United States.
‘‘(6) ALLOTTEE CLASS.—The term ‘allottee class’ means an
applicable plaintiff class certified by the court of jurisdiction
in—
‘‘(A) the Alvarez case; or
‘‘(B) the Tucson case.
‘‘(7) ALVAREZ CASE.—The term ‘Alvarez case’ means the
first through third causes of action of the third amended com-
plaint in Alvarez v. City of Tucson (Civ. No. 93–09039 TUC
FRZ (D. Ariz., filed April 21, 1993)).
‘‘(8) APPLICABLE LAW.—The term ‘applicable law’ means
any applicable Federal, State, tribal, or local law.
‘‘(9) ASARCO.—The term ‘Asarco’ means Asarco Incor-
porated, a New Jersey corporation of that name, and its subsidi-
aries operating mining operations in the State.
Southern Arizona
Water Rights
Settlement
Amendments Act
of 2004.
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118 STAT. 3537
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‘‘(10) ASARCO AGREEMENT.—The term ‘Asarco agreement’
means the agreement by that name attached to the Tohono
O’odham settlement agreement as exhibit 13.1.
‘‘(11) CAP REPAYMENT CONTRACT.—
‘‘(A) IN GENERAL.—The term ‘CAP repayment contract’
means the contract dated December 1, 1988 (Contract No.
14–0906–09W–09245, Amendment No. 1) between the
United States and the Central Arizona Water Conservation
District for the delivery of water and the repayment of
costs of the Central Arizona Project.
‘‘(B) INCLUSIONS.—The term ‘CAP repayment contract’
includes all amendments to and revisions of that contract.
‘‘(12) CENTRAL
ARIZONA
PROJECT.—The term ‘Central
Arizona Project’ means the reclamation project authorized and
constructed by the United States in accordance with title III
of the Colorado River Basin Project Act (43 U.S.C. 1521 et
seq.).
‘‘(13) CENTRAL ARIZONA PROJECT LINK PIPELINE.—The term
‘Central Arizona Project link pipeline’ means the pipeline
extending from the Tucson Aqueduct of the Central Arizona
Project to Station 293+36.
‘‘(14) CENTRAL ARIZONA PROJECT SERVICE AREA.—The term
‘Central Arizona Project service area’ means—
‘‘(A) the geographical area comprised of Maricopa,
Pinal, and Pima Counties, Arizona, in which the Central
Arizona Water Conservation District delivers Central
Arizona Project water; and
‘‘(B) any expansion of that area under applicable law.
‘‘(15) CENTRAL ARIZONA WATER CONSERVATION DISTRICT.—
The term ‘Central Arizona Water Conservation District’ means
the political subdivision of the State that is the contractor
under the CAP repayment contract.
‘‘(16) COOPERATIVE
FARM.—The term ‘cooperative farm’
means the farm on land served by an irrigation system and
the extension of the irrigation system provided for under para-
graphs (1) and (2) of section 304(c).
‘‘(17) COOPERATIVE
FUND.—The term ‘cooperative fund’
means the cooperative fund established by section 313 of the
1982 Act and reauthorized by section 310.
‘‘(18) DELIVERY AND DISTRIBUTION SYSTEM.—
‘‘(A) IN GENERAL.—The term ‘delivery and distribution
system’ means—
‘‘(i) the Central Arizona Project aqueduct;
‘‘(ii) the Central Arizona Project link pipeline; and
‘‘(iii) the pipelines, canals, aqueducts, conduits, and
other necessary facilities for the delivery of water
under the Central Arizona Project.
‘‘(B) INCLUSIONS.—The term ‘delivery and distribution
system’ includes pumping facilities, power plants, and elec-
tric power transmission facilities external to the boundaries
of any farm to which the water is distributed.
‘‘(19) EASTERN SCHUK TOAK DISTRICT.—The term ‘eastern
Schuk Toak District’ means the portion of the Schuk Toak
District (1 of 11 political subdivisions of the Nation established
under the constitution of the Nation) that is located within
the Tucson management area.
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118 STAT. 3538
PUBLIC LAW 108–451—DEC. 10, 2004
‘‘(20) ENFORCEABILITY DATE.—The term ‘enforceability date’
means the date on which title III of the Arizona Water Settle-
ments Act takes effect (as described in section 302(b) of the
Arizona Water Settlements Act).
‘‘(21) EXEMPT WELL.—The term ‘exempt well’ means a water
well—
‘‘(A) the maximum pumping capacity of which is not
more than 35 gallons per minute; and
‘‘(B) the water from which is used for—
‘‘(i) the supply, service, or activities of households
or private residences;
‘‘(ii) landscaping;
‘‘(iii) livestock watering; or
‘‘(iv) the irrigation of not more than 2 acres of
land for the production of 1 or more agricultural or
other commodities for—
‘‘(I) sale;
‘‘(II) human consumption; or
‘‘(III) use as feed for livestock or poultry.
‘‘(22) FEE OWNER OF ALLOTTED LAND.—The term ‘fee owner
of allotted land’ means a person that holds fee simple title
in real property on the Reservation that, at any time before
the date on which the person acquired fee simple title, was
held in trust by the United States as an Indian allotment.
‘‘(23) FICO.—The term ‘FICO’ means collectively the
Farmers Investment Co., an Arizona corporation of that name,
and the Farmers Water Co., an Arizona corporation of that
name.
‘‘(24) INDIAN
TRIBE.—The term ‘Indian tribe’ has the
meaning given the term in section 4 of the Indian Self-Deter-
mination and Education Assistance Act (25 U.S.C. 450b).
‘‘(25) INJURY TO WATER QUALITY.—The term ‘injury to water
quality’ means any contamination, diminution, or deprivation
of water quality under applicable law.
‘‘(26) INJURY TO WATER RIGHTS.—
‘‘(A) IN GENERAL.—The term ‘injury to water rights’
means an interference with, diminution of, or deprivation
of water rights under applicable law.
‘‘(B) INCLUSION.—The term ‘injury to water rights’
includes a change in the underground water table and
any effect of such a change.
‘‘(C) EXCLUSION.—The term ‘injury to water rights’ does
not include subsidence damage or injury to water quality.
‘‘(27) IRRIGATION SYSTEM.—
‘‘(A) IN GENERAL.—The term ‘irrigation system’ means
canals, laterals, ditches, sprinklers, bubblers, and other
irrigation works used to distribute water within the bound-
aries of a farm.
‘‘(B) INCLUSIONS.—The term ‘irrigation system’, with
respect to the cooperative farm, includes activities, proce-
dures, works, and devices for—
‘‘(i) rehabilitation of fields;
‘‘(ii) remediation of sinkholes, sinks, depressions,
and fissures; and
‘‘(iii) stabilization of the banks of the Santa Cruz
River.
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118 STAT. 3539
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‘‘(28) LOWER COLORADO RIVER BASIN DEVELOPMENT FUND.—
The term ‘Lower Colorado River Basin Development Fund’
means the fund established by section 403 of the Colorado
River Basin Project Act (43 U.S.C. 1543).
‘‘(29) M&I PRIORITY WATER.—The term ‘M&I priority water’
means Central Arizona Project water that has municipal and
industrial priority.
‘‘(30) NATION.—The term ‘Nation’ means the Tohono
O’odham Nation (formerly known as the Papago Tribe) orga-
nized under a constitution approved in accordance with section
16 of the Act of June 18, 1934 (25 U.S.C. 476).
‘‘(31) NATION’S RESERVATION.—The term ‘Nation’s Reserva-
tion’ means all land within the exterior boundaries of—
‘‘(A) the Sells Tohono O’odham Reservation established
by the Executive order of February 1, 1917, and the Act
of February 21, 1931 (46 Stat. 1202, chapter 267);
‘‘(B) the San Xavier Reservation established by the
Executive order of July 1, 1874;
‘‘(C) the Gila Bend Indian Reservation established by
the Executive order of December 12, 1882, and modified
by the Executive order of June 17, 1909;
‘‘(D) the Florence Village established by Public Law
95–361 (92 Stat. 595);
‘‘(E) all land acquired in accordance with the Gila
Bend Indian Reservation Lands Replacement Act (100 Stat.
1798), if title to the land is held in trust by the Secretary
for the benefit of the Nation; and
‘‘(F) all other land to which the United States holds
legal title in trust for the benefit of the Nation and that
is added to the Nation’s Reservation or granted reservation
status in accordance with applicable Federal law before
the enforceability date.
‘‘(32) NET IRRIGABLE ACRES.—The term ‘net irrigable acres’
means, with respect to a farm, the acreage of the farm that
is suitable for agriculture, as determined by the Nation and
the Secretary.
‘‘(33) NIA PRIORITY WATER.—The term ‘NIA priority water’
means Central Arizona Project water that has non-Indian agri-
cultural priority.
‘‘(34) SAN XAVIER ALLOTTEES ASSOCIATION.—The term ‘San
Xavier Allottees Association’ means the nonprofit corporation
established under State law for the purpose of representing
and advocating the interests of allottees.
‘‘(35) SAN
XAVIER
COOPERATIVE
ASSOCIATION.—The term
‘San Xavier Cooperative Association’ means the entity chartered
under the laws of the Nation (or a successor of that entity)
that is a lessee of land within the cooperative farm.
‘‘(36) SAN XAVIER DISTRICT.—The term ‘San Xavier District’
means the district of that name, 1 of 11 political subdivisions
of the Nation established under the constitution of the Nation.
‘‘(37) SAN XAVIER DISTRICT COUNCIL.—The term ‘San Xavier
District Council’ means the governing body of the San Xavier
District, as established under the constitution of the Nation.
‘‘(38) SAN XAVIER RESERVATION.—The term ‘San Xavier Res-
ervation’ means the San Xavier Indian Reservation established
by the Executive order of July 1, 1874.
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118 STAT. 3540
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‘‘(39) SCHUK TOAK FARM.—The term ‘Schuk Toak Farm’
means a farm constructed in the eastern Schuk Toak District
served by the irrigation system provided for under section
304(c)(4).
‘‘(40) SECRETARY.—The term ‘Secretary’ means the Sec-
retary of the Interior.
‘‘(41) STATE.—The term ‘State’ means the State of Arizona.
‘‘(42) SUBJUGATE.—The term ‘subjugate’ means to prepare
land for agricultural use through irrigation.
‘‘(43) SUBSIDENCE DAMAGE.—The term ‘subsidence damage’
means injury to land, water, or other real property resulting
from the settling of geologic strata or cracking in the surface
of the earth of any length or depth, which settling or cracking
is caused by the pumping of water.
‘‘(44) SURFACE WATER.—The term ‘surface water’ means
all water that is appropriable under State law.
‘‘(45) TOHONO
O’ODHAM
SETTLEMENT
AGREEMENT.—The
term ‘Tohono O’odham settlement agreement’ means the agree-
ment dated April 30, 2003 (including all exhibits of and attach-
ments to the agreement).
‘‘(46) TUCSON CASE.—The term ‘Tucson case’ means United
States et al. v. City of Tucson, et al. (Civ. No. 75–0939 TUC
consol. with Civ. No. 75–0951 TUC FRZ (D. Ariz., filed February
20, 1975)).
‘‘(47) TUCSON INTERIM WATER LEASE.—The term ‘Tucson
interim water lease’ means the lease, and any pre-2004 amend-
ments and extensions of the lease, approved by the Secretary,
between the city of Tucson, Arizona, and the Nation, dated
October 24, 1992.
‘‘(48) TUCSON
MANAGEMENT
AREA.—The term ‘Tucson
management area’ means the area in the State comprised of—
‘‘(A) the area—
‘‘(i) designated as the Tucson Active Management
Area under the Arizona Groundwater Management Act
of 1980 (1980 Ariz. Sess. Laws 1); and
‘‘(ii) subsequently divided into the Tucson Active
Management Area and the Santa Cruz Active Manage-
ment Area (1994 Ariz. Sess. Laws 296); and
‘‘(B) the portion of the Upper Santa Cruz Basin that
is not located within the area described in subparagraph
(A)(i).
‘‘(49) TURNOUT.—The term ‘turnout’ means a point of water
delivery on the Central Arizona Project aqueduct.
‘‘(50) UNDERGROUND
STORAGE.—The term ‘underground
storage’ means storage of water accomplished under a project
authorized under section 308(e).
‘‘(51) UNITED STATES AS TRUSTEE.—The term ‘United States
as Trustee’ means the United States, acting on behalf of the
Nation and allottees, but in no other capacity.
‘‘(52) VALUE.—The term ‘value’ means the value attributed
to water based on the greater of—
‘‘(A) the anticipated or actual use of the water; or
‘‘(B) the fair market value of the water.
‘‘(53) WATER RIGHT.—The term ‘water right’ means any
right in or to groundwater, surface water, or effluent under
applicable law.
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118 STAT. 3541
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‘‘(54) 1982 ACT.—The term ‘1982 Act’ means the Southern
Arizona Water Rights Settlement Act of 1982 (96 Stat. 1274;
106 Stat. 3256), as in effect on the day before the enforceability
date.
‘‘SEC. 304. WATER DELIVERY AND CONSTRUCTION OBLIGATIONS.
‘‘(a) WATER DELIVERY.—The Secretary shall deliver annually
from the main project works of the Central Arizona Project, a
total of 37,800 acre-feet of water suitable for agricultural use,
of which—
‘‘(1) 27,000 acre-feet shall—
‘‘(A) be deliverable for use to the San Xavier Reserva-
tion; or
‘‘(B) otherwise be used in accordance with section 309;
and
‘‘(2) 10,800 acre-feet shall—
‘‘(A) be deliverable for use to the eastern Schuk Toak
District; or
‘‘(B) otherwise be used in accordance with section 309.
‘‘(b) DELIVERY
AND DISTRIBUTION SYSTEMS.—The Secretary
shall (without cost to the Nation, any allottee, the San Xavier
Cooperative Association, or the San Xavier Allottees Association),
as part of the main project works of the Central Arizona Project,
design, construct, operate, maintain, and replace the delivery and
distribution systems necessary to deliver the water described in
subsection (a).
‘‘(c) DUTIES OF THE SECRETARY.—
‘‘(1) COMPLETION OF DELIVERY AND DISTRIBUTION SYSTEM
AND
IMPROVEMENT
TO
EXISTING
IRRIGATION
SYSTEM.—Except
as provided in subsection (d), not later than 8 years after
the enforceability date, the Secretary shall complete the design
and construction of improvements to the irrigation system that
serves the cooperative farm.
‘‘(2) EXTENSION
OF
EXISTING
IRRIGATION
SYSTEM
WITHIN
THE SAN XAVIER RESERVATION.—
‘‘(A) IN GENERAL.—Except as provided in subsection
(d), not later than 8 years after the enforceability date,
in addition to the improvements described in paragraph
(1), the Secretary shall complete the design and construc-
tion of the extension of the irrigation system for the
cooperative farm.
‘‘(B) CAPACITY.—On completion of the extension, the
extended cooperative farm irrigation system shall serve
2,300 net irrigable acres on the San Xavier Reservation,
unless the Secretary and the San Xavier Cooperative
Association agree on fewer net irrigable acres.
‘‘(3) CONSTRUCTION OF NEW FARM.—
‘‘(A) IN GENERAL.—Except as provided in subsection
(d), not later than 8 years after the enforceability date,
the Secretary shall—
‘‘(i) design and construct within the San Xavier
Reservation such additional canals, laterals, farm
ditches, and irrigation works as are necessary for the
efficient distribution for agricultural purposes of that
portion of the 27,000 acre-feet annually of water
described in subsection (a)(1) that is not required for
Deadlines.
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118 STAT. 3542
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the irrigation systems described in paragraphs (1) and
(2) of subsection (c); or
‘‘(ii) in lieu of the actions described in clause (i),
pay to the San Xavier District $18,300,000 (adjusted
as provided in section 317(a)(2)) in full satisfaction
of the obligations of the United States described in
clause (i).
‘‘(B) ELECTION.—
‘‘(i) IN GENERAL.—The San Xavier District Council
may make a nonrevocable election whether to receive
the benefits described under clause (i) or (ii) of subpara-
graph (A) by notifying the Secretary by not later than
180 days after the enforceability date or January 1,
2010, whichever is later, by written and certified reso-
lution of the San Xavier District Council.
‘‘(ii) NO RESOLUTION.—If the Secretary does not
receive such a resolution by the deadline specified in
clause (i), the Secretary shall pay $18,300,000 (adjusted
as provided in section 317(a)(2)) to the San Xavier
District in lieu of carrying out the obligations of the
United States under subparagraph (A)(i).
‘‘(C) SOURCE OF FUNDS AND TIME OF PAYMENT.—
‘‘(i) 
IN
GENERAL.—Payment 
of 
$18,300,000
(adjusted as provided in section 317(a)(2)) under this
paragraph shall be made by the Secretary from the
Lower Colorado River Basin Development Fund—
‘‘(I) not later than 60 days after an election
described in subparagraph (B) is made (if such
an election is made), but in no event earlier than
the enforceability date or January 1, 2010, which-
ever is later; or
‘‘(II) not later than 240 days after the enforce-
ability date or January 1, 2010, whichever is later,
if no timely election is made.
‘‘(ii) PAYMENT FOR ADDITIONAL STRUCTURES.—Pay-
ment of amounts necessary to design and construct
such additional canals, laterals, farm ditches, and
irrigation works as are described in subparagraph (A)(i)
shall be made by the Secretary from the Lower Colo-
rado River Basin Development Fund, if an election
is made to receive the benefits under subparagraph
(A)(i).
‘‘(4) IRRIGATION AND DELIVERY AND DISTRIBUTION SYSTEMS
IN THE EASTERN SCHUK TOAK DISTRICT.—Except as provided
in subsection (d), not later than 1 year after the enforceability
date, the Secretary shall complete the design and construction
of an irrigation system and delivery and distribution system
to serve the farm that is constructed in the eastern Schuk
Toak District.
‘‘(d) EXTENSION OF DEADLINES.—
‘‘(1) IN GENERAL.—The Secretary may extend a deadline
under subsection (c) if the Secretary determines that compliance
with the deadline is impracticable by reason of—
‘‘(A) a material breach by a contractor of a contract
that is relevant to carrying out a project or activity
described in subsection (c);
Notification.
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118 STAT. 3543
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‘‘(B) the inability of such a contractor, under such
a contract, to carry out the contract by reason of force
majeure, as defined by the Secretary in the contract;
‘‘(C) unavoidable delay in compliance with applicable
Federal and tribal laws, as determined by the Secretary,
including—
‘‘(i) the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.); and
‘‘(ii) the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.); or
‘‘(D) stoppage in work resulting from the assessment
of a tax or fee that is alleged in any court of jurisdiction
to be confiscatory or discriminatory.
‘‘(2) NOTICE OF FINDING.—If the Secretary extends a dead-
line under paragraph (1), the Secretary shall—
‘‘(A) publish a notice of the extension in the Federal
Register; and
‘‘(B)(i) include in the notice an estimate of such addi-
tional period of time as is necessary to complete the project
or activity that is the subject of the extension; and
‘‘(ii) specify a deadline that provides for a period for
completion of the project before the end of the period
described in clause (i).
‘‘(e) AUTHORITY OF SECRETARY.—
‘‘(1) IN GENERAL.—In carrying out this title, after providing
reasonable notice to the Nation, the Secretary, in compliance
with all applicable law, may enter, construct works on, and
take such other actions as are related to the entry or construc-
tion on land within the San Xavier District and the eastern
Schuk Toak District.
‘‘(2) EFFECT ON FEDERAL ACTIVITY.—Nothing in this sub-
section affects the authority of the United States, or any Federal
officer, agent, employee, or contractor, to conduct official Fed-
eral business or carry out any Federal duty (including any
Federal business or duty under this title) on land within the
eastern Schuk Toak District or the San Xavier District.
‘‘(f) USE OF FUNDS.—
‘‘(1) IN GENERAL.—With respect to any funds received under
subsection (c)(3)(A), the San Xavier District—
‘‘(A) shall hold the funds in trust, and invest the funds
in interest-bearing deposits and securities, until expended;
‘‘(B) may expend the principal of the funds, and any
interest and dividends that accrue on the principal, only
in accordance with a budget that is—
‘‘(i) authorized by the San Xavier District Council;
and
‘‘(ii) approved by resolution of the Legislative
Council of the Nation; and
‘‘(C) shall expend the funds—
‘‘(i) for any subjugation of land, development of
water resources, or construction, operation, mainte-
nance, or replacement of facilities within the San
Xavier Reservation that is not required to be carried
out by the United States under this title or any other
provision of law;
‘‘(ii) to provide governmental services, including—
‘‘(I) programs for senior citizens;
Federal Register,
publication.
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‘‘(II) health care services;
‘‘(III) education;
‘‘(IV) economic development loans and assist-
ance; and
‘‘(V) legal assistance programs;
‘‘(iii) to provide benefits to allottees;
‘‘(iv) to pay the costs of activities of the San Xavier
Allottees Association; or
‘‘(v) to pay any administrative costs incurred by
the Nation or the San Xavier District in conjunction
with any of the activities described in clauses (i)
through (iv).
‘‘(2) NO LIABILITY OF SECRETARY; LIMITATION.—
‘‘(A) IN GENERAL.—The Secretary shall not—
‘‘(i) be responsible for any review, approval, or
audit of the use and expenditure of the funds described
in paragraph (1); or
‘‘(ii) be subject to liability for any claim or cause
of action arising from the use or expenditure, by the
Nation or the San Xavier District, of those funds.
‘‘(B) LIMITATION.—No portion of any funds described
in paragraph (1) shall be used for per capita payments
to any individual member of the Nation or any allottee.
‘‘SEC. 305. DELIVERIES UNDER EXISTING CONTRACT; ALTERNATIVE
WATER SUPPLIES.
‘‘(a) DELIVERY OF WATER.—
‘‘(1) IN GENERAL.—The Secretary shall deliver water from
the main project works of the Central Arizona Project, in such
quantities, and in accordance with such terms and conditions,
as are contained in the agreement of December 11, 1980, the
1982 Act, the agreement of October 11, 1983, and the Tohono
O’odham settlement agreement (to the extent that the settle-
ment agreement does not conflict with this Act), to 1 or more
of—
‘‘(A) the cooperative farm;
‘‘(B) the eastern Schuk Toak District;
‘‘(C) turnouts existing on the enforceability date; and
‘‘(D) any other point of delivery on the Central Arizona
Project main aqueduct that is agreed to by—
‘‘(i) the Secretary;
‘‘(ii) the operator of the Central Arizona Project;
and
‘‘(iii) the Nation.
‘‘(2) DELIVERY.—The Secretary shall deliver the water cov-
ered by sections 304(a) and 306(a), or an equivalent quantity
of water from a source identified under subsection (b)(1),
notwithstanding—
‘‘(A) any declaration by the Secretary of a water short-
age on the Colorado River; or
‘‘(B) any other occurrence affecting water delivery
caused by an act or omission of—
‘‘(i) the Secretary;
‘‘(ii) the United States; or
‘‘(iii) any officer, employee, contractor, or agent
of the Secretary or United States.
‘‘(b) ACQUISITION OF LAND AND WATER.—
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‘‘(1) DELIVERY.—
‘‘(A) IN GENERAL.—Except as provided in subparagraph
(B), if the Secretary, under the terms and conditions of
the agreements referred to in subsection (a)(1), is unable,
during any year, to deliver annually from the main project
works of the Central Arizona Project any portion of the
quantity of water covered by sections 304(a) and 306(a),
the Secretary shall identify, acquire and deliver an equiva-
lent quantity of water from, any appropriate source.
‘‘(B) EXCEPTION.—The Secretary shall not acquire any
water under subparagraph (A) through any transaction
that would cause depletion of groundwater supplies or
aquifers in the San Xavier District or the eastern Schuk
Toak District.
‘‘(2) PRIVATE LAND AND INTERESTS.—
‘‘(A) ACQUISITION.—
‘‘(i) IN GENERAL.—Subject to subparagraph (B), the
Secretary may acquire, for not more than market value,
such private land, or interests in private land, that
include rights in surface or groundwater recognized
under State law, as are necessary for the acquisition
and delivery of water under this subsection.
‘‘(ii) COMPLIANCE.—In acquiring rights in surface
water under clause (i), the Secretary shall comply with
all applicable severance and transfer requirements
under State law.
‘‘(B) PROHIBITION ON TAKING.—The Secretary shall not
acquire any land, water, water rights, or contract rights
under subparagraph (A) without the consent of the owner
of the land, water, water rights, or contract rights.
‘‘(C) PRIORITY.—In acquiring any private land or
interest in private land under this paragraph, the Secretary
shall give priority to the acquisition of land on which
water has been put to beneficial use during any 1-year
period during the 5-year period preceding the date of
acquisition of the land by the Secretary.
‘‘(3) DELIVERIES FROM ACQUIRED LAND.—Deliveries of water
from land acquired under paragraph (2) shall be made only
to the extent that the water may be transported within the
Tucson management area under applicable law.
‘‘(4) DELIVERY OF EFFLUENT.—
‘‘(A) IN GENERAL.—Except on receipt of prior written
consent of the Nation, the Secretary shall not deliver
effluent directly to the Nation under this subsection.
‘‘(B) NO SEPARATE DELIVERY SYSTEM.—The Secretary
shall not construct a separate delivery system to deliver
effluent to the San Xavier Reservation or the eastern Schuk
Toak District.
‘‘(C) NO IMPOSITION OF OBLIGATION.—Nothing in this
paragraph imposes any obligation on the United States
to deliver effluent to the Nation.
‘‘(c) AGREEMENTS AND CONTRACTS.—To facilitate the delivery
of water to the San Xavier Reservation and the eastern Schuk
Toak District under this title, the Secretary may enter into a
contract or agreement with the State, an irrigation district or
project, or entity—
‘‘(1) for—
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‘‘(A) the exchange of water; or
‘‘(B) the use of aqueducts, canals, conduits, and other
facilities (including pumping plants) for water delivery;
or
‘‘(2) to use facilities constructed, in whole or in part, with
Federal funds.
‘‘(d) COMPENSATION AND DISBURSEMENTS.—
‘‘(1) COMPENSATION.—If the Secretary is unable to acquire
and deliver sufficient quantities of water under section 304(a),
this section, or section 306(a), the Secretary shall provide com-
pensation in accordance with paragraph (2) in amounts equal
to—
‘‘(A)(i) the value of such quantities of water as are
not acquired and delivered, if the delivery and distribution
system for, and the improvements to, the irrigation system
for the cooperative farm have not been completed by the
deadline required under section 304(c)(1); or
‘‘(ii) the value of such quantities of water as—
‘‘(I) are ordered by the Nation for use by the San
Xavier Cooperative Association in the irrigation
system; but
‘‘(II) are not delivered in any calendar year;
‘‘(B)(i) the value of such quantities of water as are
not acquired and delivered, if the extension of the irrigation
system is not completed by the deadline required under
section 304(c)(2); or
‘‘(ii) the value of such quantities of water as—
‘‘(I) are ordered by the Nation for use by the San
Xavier Cooperative Association in the extension to the
irrigation system; but
‘‘(II) are not delivered in any calendar year; and
‘‘(C)(i) the value of such quantities of water as are
not acquired and delivered, if the irrigation system is not
completed by the deadline required under section 304(c)(4);
or
‘‘(ii) except as provided in clause (i), the value of such
quantities of water as—
‘‘(I) are ordered by the Nation for use in the irriga-
tion system, or for use by any person or entity (other
than the San Xavier Cooperative Association); but
‘‘(II) are not delivered in any calendar year.
‘‘(2) DISBURSEMENT.—Any compensation payable under
paragraph (1) shall be disbursed—
‘‘(A) with respect to compensation payable under sub-
paragraphs (A) and (B) of paragraph (1), to the San Xavier
Cooperative Association; and
‘‘(B) with respect to compensation payable under para-
graph (1)(C), to the Nation for retention by the Nation
or disbursement to water users, under the provisions of
the water code or other applicable laws of the Nation.
‘‘(e) NO EFFECT ON WATER RIGHTS.—Nothing in this section
authorizes the Secretary to acquire or otherwise affect the water
rights of any Indian tribe.
‘‘SEC. 306. ADDITIONAL WATER DELIVERY.
‘‘(a) IN GENERAL.—In addition to the delivery of water described
in section 304(a), the Secretary shall deliver annually from the
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main project works of the Central Arizona Project, a total of 28,200
acre-feet of NIA priority water suitable for agricultural use, of
which—
‘‘(1) 23,000 acre-feet shall—
‘‘(A) be delivered to, and used by, the San Xavier
Reservation; or
‘‘(B) otherwise be used by the Nation in accordance
with section 309; and
‘‘(2) 5,200 acre-feet shall—
‘‘(A) be delivered to, and used by, the eastern Schuk
Toak District; or
‘‘(B) otherwise be used by the Nation in accordance
with section 309.
‘‘(b) STATE CONTRIBUTION.—To assist the Secretary in firming
water under section 105(b)(1)(A) of the Arizona Water Settlements
Act, the State shall contribute $3,000,000—
‘‘(1) in accordance with a schedule that is acceptable to
the Secretary and the State; and
‘‘(2) in the form of cash or in-kind goods and services.
‘‘SEC. 307. CONDITIONS ON CONSTRUCTION, WATER DELIVERY, REV-
ENUE SHARING.
‘‘(a) CONDITIONS ON ACTIONS OF SECRETARY.—The Secretary
shall carry out section 304(c), subsections (a), (b), and (d) of section
305, and section 306, only if—
‘‘(1) the Nation agrees—
‘‘(A) except as provided in section 308(f)(1), to limit
the quantity of groundwater withdrawn by nonexempt wells
from beneath the San Xavier Reservation to not more than
10,000 acre-feet;
‘‘(B) except as provided in section 308(f)(2), to limit
the quantity of groundwater withdrawn by nonexempt wells
from beneath the eastern Schuk Toak District to not more
than 3,200 acre-feet;
‘‘(C) to comply with water management plans estab-
lished by the Secretary under section 308(d);
‘‘(D) to consent to the San Xavier District being deemed
a tribal organization (as defined in section 900.6 of title
25, Code of Federal Regulations (or any successor regula-
tions)) for purposes identified in subparagraph (E)(iii)(I),
as permitted with respect to tribal organizations under
title I of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.);
‘‘(E) subject to compliance by the Nation with other
applicable provisions of part 900 of title 25, Code of Federal
Regulations (or any successor regulations), to consent to
contracting by the San Xavier District under section 311(b),
on the conditions that—
‘‘(i)(I) the plaintiffs in the Alvarez case and Tucson
case have stipulated to the dismissal, with prejudice,
of claims in those cases; and
‘‘(II) those cases have been dismissed with preju-
dice;
‘‘(ii) the San Xavier Cooperative Association has
agreed to assume responsibility, after completion of
each of the irrigation systems described in paragraphs
(1), (2), and (3) of section 304(c) and on the delivery
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of water to those systems, for the operation, mainte-
nance, and replacement of those systems in accordance
with the first section of the Act of August 1, 1914
(25 U.S.C. 385); and
‘‘(iii) with respect to the consent of the Nation
to contracting—
‘‘(I) the consent is limited solely to contracts
for—
‘‘(aa) the design and construction of the
delivery and distribution system and the
rehabilitation of the irrigation system for the
cooperative farm;
‘‘(bb) the extension of the irrigation system
for the cooperative farm;
‘‘(cc) the subjugation of land to be served
by the extension of the irrigation system;
‘‘(dd) the design and construction of stor-
age facilities solely for water deliverable for
use within the San Xavier Reservation; and
‘‘(ee) the completion by the Secretary of
a water resources study of the San Xavier
Reservation and subsequent preparation of a
water management plan under section 308(d);
‘‘(II) the Nation shall reserve the right to seek
retrocession or reassumption of contracts described
in subclause (I), and recontracting under subpart
P and other applicable provisions of part 900 of
title 25, Code of Federal Regulations (or any suc-
cessor regulations);
‘‘(III) the Nation, on granting consent to such
contracting, shall be released from any responsi-
bility, liability, claim, or cost from and after the
date on which consent is given, with respect to
past action or inaction by the Nation, and subse-
quent action or inaction by the San Xavier District,
relating to the design and construction of irrigation
systems for the cooperative farm or the Central
Arizona Project link pipeline; and
‘‘(IV) the Secretary shall, on the request of
the Nation, execute a waiver and release to carry
out subclause (III);
‘‘(F) to subjugate, at no cost to the United States,
the land for which the irrigation systems under paragraphs
(2) and (3) of section 304(c) will be planned, designed,
and constructed by the Secretary, on the condition that—
‘‘(i) the obligation of the Nation to subjugate the
land in the cooperative farm that is to be served by
the extension of the irrigation system under section
304(c)(2) shall be determined by the Secretary, in con-
sultation with the Nation and the San Xavier Coopera-
tive Association; and
‘‘(ii) subject to approval by the Secretary of a con-
tract with the San Xavier District executed under sec-
tion 311, to perform that subjugation, a determination
by the Secretary of the subjugation costs under clause
(i), and the provision of notice by the San Xavier Dis-
trict to the Nation at least 180 days before the date
Deadlines.
Notice.
Certification.
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on which the San Xavier District Council certifies by
resolution that the subjugation is scheduled to com-
mence, the Nation pays to the San Xavier District,
not later than 90 days before the date on which the
subjugation is scheduled to commence, from the trust
fund under section 315, or from other sources of funds
held by the Nation, the amount determined by the
Secretary under clause (i); and
‘‘(G) subject to business lease No. H54–16–72 dated
April 26, 1972, of San Xavier Reservation land to Asarco
and approved by the United States on November 14, 1972,
that the Nation—
‘‘(i) shall allocate as a first right of beneficial use
by allottees, the San Xavier District, and other persons
within the San Xavier Reservation—
‘‘(I) 35,000 acre-feet of the 50,000 acre-feet
of water deliverable under sections 304(a)(1) and
306(a)(1), including the use of the allocation—
‘‘(aa) to fulfill the obligations prescribed
in the Asarco agreement; and
‘‘(bb) for groundwater storage, mainte-
nance of instream flows, and maintenance of
riparian vegetation and habitat;
‘‘(II) the 10,000 acre-feet of groundwater
identified in subsection (a)(1)(A);
‘‘(III) the groundwater withdrawn from exempt
wells;
‘‘(IV) the deferred pumping storage credits
authorized by section 308(f)(1)(B); and
‘‘(V) the storage credits resulting from a project
authorized in section 308(e) that cannot be lawfully
transferred or otherwise disposed of to persons
for recovery outside the Nation’s Reservation;
‘‘(ii) subject to section 309(b)(2), has the right—
‘‘(I) to use, or authorize other persons or enti-
ties to use, any portion of the allocation of 35,000
acre-feet of water deliverable under sections
304(a)(1) and 306(a)(1) outside the San Xavier Res-
ervation for any period during which there is no
identified actual use of the water within the San
Xavier Reservation;
‘‘(II) as a first right of use, to use the
remaining acre-feet of water deliverable under sec-
tions 304(a)(1) and 306(a)(1) for any purpose and
duration authorized by this title within or outside
the Nation’s Reservation; and
‘‘(III) subject to section 308(e), as an exclusive
right, to transfer or otherwise dispose of the stor-
age credits that may be lawfully transferred or
otherwise disposed of to persons for recovery out-
side the Nation’s Reservation;
‘‘(iii) shall issue permits to persons or entities for
use of the water resources referred to in clause (i);
‘‘(iv) shall, on timely receipt of an order for water
by a permittee under a permit for Central Arizona
Project water referred to in clause (i), submit the order
to—
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‘‘(I) the Secretary; or
‘‘(II) the operating agency for the Central
Arizona Project;
‘‘(v) shall issue permits for water deliverable under
sections 304(a)(2) and 306(a)(2), including quantities
of water reasonably necessary for the irrigation system
referred to in section 304(c)(3);
‘‘(vi) shall issue permits for groundwater that may
be withdrawn from nonexempt wells in the eastern
Schuk Toak District; and
‘‘(vii) shall, on timely receipt of an order for water
by a permittee under a permit for water referred to
in clause (v), submit the order to—
‘‘(I) the Secretary; or
‘‘(II) the operating agency for the Central
Arizona Project; and
‘‘(2) the Alvarez case and Tucson case have been dismissed
with prejudice.
‘‘(b) RESPONSIBILITIES ON COMPLETION.—On completion of an
irrigation system or extension of an irrigation system described
in paragraph (1) or (2) of section 304(c), or in the case of the
irrigation system described in section 304(c)(3), if such irrigation
system is constructed on individual Indian trust allotments, neither
the United States nor the Nation shall be responsible for the
operation, maintenance, or replacement of the system.
‘‘(c) PAYMENT OF CHARGES.—The Nation shall not be responsible
for payment of any water service capital charge for Central Arizona
Project water delivered under section 304, subsection (a) or (b)
of section 305, or section 306.
‘‘SEC. 308. WATER CODE; WATER MANAGEMENT PLAN; STORAGE
PROJECTS; STORAGE ACCOUNTS; GROUNDWATER.
‘‘(a) WATER RESOURCES.—Water resources described in clauses
(i) and (ii) of section 307(a)(1)(G)—
‘‘(1) shall be subject to section 7 of the Act of February
8, 1887 (25 U.S.C. 381); and
‘‘(2) shall be apportioned pursuant to clauses (i) and (ii)
of section 307(a)(1)(G).
‘‘(b) WATER CODE.—Subject to this title and any other applicable
law, the Nation shall—
‘‘(1) manage, regulate, and control the water resources of
the Nation and the water resources granted or confirmed under
this title;
‘‘(2) establish conditions, limitations, and permit require-
ments, and promulgate regulations, relating to the storage,
recovery, and use of surface water and groundwater within
the Nation’s Reservation;
‘‘(3) enact and maintain—
‘‘(A) an interim allottee water rights code that—
‘‘(i) is consistent with subsection (a);
‘‘(ii) prescribes the rights of allottees identified
in paragraph (4); and
‘‘(iii) provides that the interim allottee water rights
code shall be incorporated in the comprehensive water
code referred to in subparagraph (B); and
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‘‘(B) not later than 3 years after the enforceability
date, a comprehensive water code applicable to the water
resources granted or confirmed under this title;
‘‘(4) include in each of the water codes enacted under sub-
paragraphs (A) and (B) of paragraph (3)—
‘‘(A) an acknowledgement of the rights described in
subsection (a);
‘‘(B) a process by which a just and equitable distribu-
tion of the water resources referred to in subsection (a),
and any compensation provided under section 305(d), shall
be provided to allottees;
‘‘(C) a process by which an allottee may request and
receive a permit for the use of any water resources referred
to in subsection (a), except the water resources referred
to in section 307(a)(1)(G)(ii)(III) and subject to the Nation’s
first right of use under section 307(a)(1)(G)(ii)(II);
‘‘(D) provisions for the protection of due process,
including—
‘‘(i) a fair procedure for consideration and deter-
mination of any request by—
‘‘(I) a member of the Nation, for a permit
for use of available water resources granted or
confirmed by this title; and
‘‘(II) an allottee, for a permit for use of—
‘‘(aa) the water resources identified in sec-
tion 307(a)(1)(G)(i) that are subject to a first
right of beneficial use; or
‘‘(bb) subject to the first right of use of
the Nation, available water resources identi-
fied in section 307(a)(1)(G)(i)(II);
‘‘(ii) provisions for—
‘‘(I) appeals and adjudications of denied or dis-
puted permits; and
‘‘(II) resolution of contested administrative
decisions; and
‘‘(iii) a waiver by the Nation of the sovereign immu-
nity of the Nation only with respect to proceedings
described in clause (ii) for claims of declaratory and
injunctive relief; and
‘‘(E) a process for satisfying any entitlement to the
water resources referred to in section 307(a)(1)(G)(i) for
which fee owners of allotted land have received final deter-
minations under applicable law; and
‘‘(5) submit to the Secretary the comprehensive water code,
for approval by the Secretary only of the provisions of the
water code (and any amendments to the water code), that
implement, with respect to the allottees, the standards
described in paragraph (4).
‘‘(c) WATER CODE APPROVAL.—
‘‘(1) IN GENERAL.—On receipt of a comprehensive water
code under subsection (b)(5), the Secretary shall—
‘‘(A) issue a written approval of the water code; or
‘‘(B) provide a written notification to the Nation that—
‘‘(i) identifies such provisions of the water code
that do not conform to subsection (b) or other applicable
Federal law; and
Notification.
Deadline.
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‘‘(ii) recommends specific corrective language for
each nonconforming provision.
‘‘(2) REVISION BY NATION.—If the Secretary identifies non-
conforming provisions in the water code under paragraph
(1)(B)(i), the Nation shall revise the water code in accordance
with the recommendations of the Secretary under paragraph
(1)(B)(ii).
‘‘(3) INTERIM AUTHORITY.—Until such time as the Nation
revises the water code of the Nation in accordance with para-
graph (2) and the Secretary subsequently approves the water
code, the Secretary may exercise any lawful authority of the
Secretary under section 7 of the Act of February 8, 1887 (25
U.S.C. 381).
‘‘(4) LIMITATION.—Except as provided in this subsection,
nothing in this title requires the approval of the Secretary
of the water code of the Nation (or any amendment to that
water code).
‘‘(d) WATER MANAGEMENT PLANS.—
‘‘(1) IN GENERAL.—The Secretary shall establish, for the
San Xavier Reservation and the eastern Schuk Toak District,
water management plans that meet the requirements described
in paragraph (2).
‘‘(2) REQUIREMENTS.—Water management plans established
under paragraph (1)—
‘‘(A) shall be developed under contracts executed under
section 311 between the Secretary and the San Xavier
District for the San Xavier Reservation, and between the
Secretary and the Nation for the eastern Schuk Toak Dis-
trict, as applicable, that permit expenditures, exclusive of
administrative expenses of the Secretary, of not more
than—
‘‘(i) with respect to a contract between the Sec-
retary and the San Xavier District, $891,200; and
‘‘(ii) with respect to a contract between the Sec-
retary and the Nation, $237,200;
‘‘(B) shall, at a minimum—
‘‘(i) provide for the measurement of all ground-
water withdrawals, including withdrawals from each
well that is not an exempt well;
‘‘(ii) provide for—
‘‘(I) reasonable recordkeeping of water use,
including the quantities of water stored under-
ground and recovered each calendar year; and
‘‘(II) a system for the reporting of withdrawals
from each well that is not an exempt well;
‘‘(iii) provide for the direct storage and deferred
storage of water, including the implementation of
underground storage and recovery projects, in accord-
ance with this section;
‘‘(iv) provide for the annual exchange of informa-
tion collected under clauses (i) through (iii)—
‘‘(I) between the Nation and the Arizona
Department of Water Resources; and
‘‘(II) between the Nation and the city of Tuc-
son, Arizona;
‘‘(v) provide for—
‘‘(I) the efficient use of water; and
Records.
Contracts.
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‘‘(II) the prevention of waste;
‘‘(vi) except on approval of the district council for
a district in which a direct storage project is estab-
lished under subsection (e), provide that no direct stor-
age credits earned as a result of the project shall
be recovered at any location at which the recovery
would adversely affect surface or groundwater supplies,
or lower the water table at any location, within the
district; and
‘‘(vii) provide for amendments to the water plan
in accordance with this title;
‘‘(C) shall authorize the establishment and mainte-
nance of 1 or more underground storage and recovery
projects in accordance with subsection (e), as applicable,
within—
‘‘(i) the San Xavier Reservation; or
‘‘(ii) the eastern Schuk Toak District; and
‘‘(D) shall be implemented and maintained by the
Nation, with no obligation by the Secretary.
‘‘(e) UNDERGROUND STORAGE AND RECOVERY PROJECTS.—The
Nation is authorized to establish direct storage and recovery projects
in accordance with the Tohono O’odham settlement agreement.
The Secretary shall have no responsibility to fund or otherwise
administer such projects.
‘‘(f) GROUNDWATER.—
‘‘(1) SAN XAVIER RESERVATION.—
‘‘(A) 
IN
GENERAL.—In 
accordance 
with 
section
307(a)(1)(A), 10,000 acre-feet of groundwater may be
pumped annually within the San Xavier Reservation.
‘‘(B) DEFERRED PUMPING.—
‘‘(i) IN GENERAL.—Subject to clause (ii), all or any
portion of the 10,000 acre-feet of water not pumped
under subparagraph (A) in a year—
‘‘(I) may be withdrawn in a subsequent year;
and
‘‘(II) if any of that water is withdrawn, shall
be accounted for in accordance with the Tohono
O’odham settlement agreement as a debit to the
deferred pumping storage account.
‘‘(ii) LIMITATION.—The quantity of water author-
ized to be recovered as deferred pumping storage
credits under this subparagraph shall not exceed—
‘‘(I) 50,000 acre-feet for any 10-year period;
or
‘‘(II) 10,000 acre-feet in any year.
‘‘(C) RECOVERY OF ADDITIONAL WATER.—In addition to
the quantity of groundwater authorized to be pumped
under subparagraphs (A) and (B), the Nation may annually
recover within the San Xavier Reservation all or a portion
of the credits for water stored under a project described
in subsection (e).
‘‘(2) EASTERN SCHUK TOAK DISTRICT.—
‘‘(A) 
IN
GENERAL.—In 
accordance 
with 
section
307(a)(1)(B), 3,200 acre-feet of groundwater may be pumped
annually within the eastern Schuk Toak District.
‘‘(B) DEFERRED PUMPING.—
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‘‘(i) IN GENERAL.—Subject to clause (ii), all or any
portion of the 3,200 acre-feet of water not pumped
under subparagraph (A) in a year—
‘‘(I) may be withdrawn in a subsequent year;
and
‘‘(II) if any of that water is withdrawn, shall
be accounted for in accordance with the Tohono
O’odham settlement agreement as a debit to the
deferred pumping storage account.
‘‘(ii) LIMITATION.—The quantity of water author-
ized to be recovered as deferred pumping storage
credits under this subparagraph shall not exceed—
‘‘(I) 16,000 acre-feet for any 10-year period;
or
‘‘(II) 3,200 acre-feet in any year.
‘‘(C) RECOVERY OF ADDITIONAL WATER.—In addition to
the quantity of groundwater authorized to be pumped
under subparagraphs (A) and (B), the Nation may annually
recover within the eastern Schuk Toak District all or a
portion of the credits for water stored under a project
described in subsection (e).
‘‘(3) INABILITY TO RECOVER GROUNDWATER.—
‘‘(A) IN GENERAL.—The authorizations to pump ground-
water in paragraphs (1) and (2) neither warrant nor guar-
antee that the groundwater—
‘‘(i) physically exists; or
‘‘(ii) is recoverable.
‘‘(B) CLAIMS.—With respect to groundwater described
in subparagraph (A)—
‘‘(i) subject to paragraph 8.8 of the Tohono O’odham
settlement agreement, the inability of any person to
pump or recover that groundwater shall not be the
basis for any claim by the United States or the Nation
against any person or entity withdrawing or using
the water from any common supply; and
‘‘(ii) the United States and the Nation shall be
barred from asserting any and all claims for reserved
water rights with respect to that groundwater.
‘‘(g) EXEMPT
WELLS.—Any groundwater pumped from an
exempt well located within the San Xavier Reservation or the
eastern Schuk Toak District shall be exempt from all pumping
limitations under this title.
‘‘(h) INABILITY OF SECRETARY TO DELIVER WATER.—The Nation
is authorized to pump additional groundwater in any year in which
the Secretary is unable to deliver water required to carry out
sections 304(a) and 306(a) in accordance with the Tohono O’odham
settlement agreement.
‘‘(i) PAYMENT
OF
COMPENSATION.—Nothing in this section
affects any obligation of the Secretary to pay compensation in
accordance with section 305(d).
‘‘SEC. 309. USES OF WATER.
‘‘(a) PERMISSIBLE USES.—Subject to other provisions of this
section and other applicable law, the Nation may devote all water
supplies granted or confirmed under this title, whether delivered
by the Secretary or pumped by the Nation, to any use (including
any agricultural, municipal, domestic, industrial, commercial,
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118 STAT. 3555
PUBLIC LAW 108–451—DEC. 10, 2004
mining, underground storage, instream flow, riparian habitat
maintenance, or recreational use).
‘‘(b) USE AREA.—
‘‘(1) USE WITHIN NATION’S RESERVATION.—Subject to sub-
section (d), the Nation may use at any location within the
Nation’s Reservation—
‘‘(A) the water supplies acquired under sections 304(a)
and 306(a);
‘‘(B) groundwater supplies; and
‘‘(C) storage credits acquired as a result of projects
authorized under section 308(e), or deferred storage credits
described in section 308(f), except to the extent that use
of those storage credits causes the withdrawal of ground-
water in violation of applicable Federal law.
‘‘(2) USE OUTSIDE THE NATION’S RESERVATION.—
‘‘(A) IN
GENERAL.—Water resources granted or con-
firmed under this title may be sold, leased, transferred,
or used by the Nation outside of the Nation’s Reservation
only in accordance with this title.
‘‘(B) USE WITHIN CERTAIN AREA.—Subject to subsection
(c), the Nation may use the Central Arizona Project water
supplies acquired under sections 304(a) and 306(a) within
the Central Arizona Project service area.
‘‘(C) STATE
LAW.—With the exception of Central
Arizona Project water and groundwater withdrawals under
the Asarco agreement, the Nation may sell, lease, transfer,
or use any water supplies and storage credits acquired
as a result of a project authorized under section 308(e)
at any location outside of the Nation’s Reservation, but
within the State, only in accordance with State law.
‘‘(D) LIMITATION.—Deferred pumping storage credits
provided for in section 308(f) shall not be sold, leased,
transferred, or used outside the Nation’s Reservation.
‘‘(E) PROHIBITION
ON
USE
OUTSIDE
THE
STATE.—No
water acquired under section 304(a) or 306(a) shall be
leased, exchanged, forborne, or otherwise transferred by
the Nation for any direct or indirect use outside the State.
‘‘(c) EXCHANGES AND LEASES; CONDITIONS ON EXCHANGES AND
LEASES.—
‘‘(1) IN
GENERAL.—With respect to users outside the
Nation’s Reservation, the Nation may, for a term of not to
exceed 100 years, assign, exchange, lease, provide an option
to lease, or otherwise temporarily dispose of to the users, Cen-
tral Arizona Project water to which the Nation is entitled
under sections 304(a) and 306(a) or storage credits acquired
under section 308(e), if the assignment, exchange, lease, option,
or temporary disposal is carried out in accordance with—
‘‘(A) this subsection; and
‘‘(B) subsection (b)(2).
‘‘(2) LIMITATION
ON
ALIENATION.—The Nation shall not
permanently alienate any water right under paragraph (1).
‘‘(3) AUTHORIZED USES.—The water described in paragraph
(1) shall be delivered within the Central Arizona Project service
area for any use authorized under applicable law.
‘‘(4) CONTRACT.—An assignment, exchange, lease, option,
or temporary disposal described in paragraph (1) shall be
executed only in accordance with a contract that—
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118 STAT. 3556
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‘‘(A) is accepted by the Nation;
‘‘(B) is ratified under a resolution of the Legislative
Council of the Nation;
‘‘(C) is approved by the United States as Trustee; and
‘‘(D) with respect to any contract to which the United
States or the Secretary is a party, provides that an action
may be maintained by the contracting party against the
United States and the Secretary for a breach of the contract
by the United States or Secretary, as appropriate.
‘‘(5) TERMS EXCEEDING 25 YEARS.—The terms and conditions
established in paragraph 11 of the Tohono O’odham settlement
agreement shall apply to any contract under paragraph (4)
that has a term of greater than 25 years.
‘‘(d) LIMITATIONS ON USE, EXCHANGES, AND LEASES.—The rights
of the Nation to use water supplies under subsection (a), and
to assign, exchange, lease, provide options to lease, or temporarily
dispose of the water supplies under subsection (c), shall be exercised
on conditions that ensure the availability of water supplies to
satisfy the first right of beneficial use under section 307(a)(1)(G)(i).
‘‘(e) WATER SERVICE CAPITAL CHARGES.—In any transaction
entered into by the Nation and another person under subsection
(c) with respect to Central Arizona Project water of the Nation,
the person shall not be obligated to pay to the United States
or the Central Arizona Water Conservation District any water
service capital charge.
‘‘(f) WATER RIGHTS UNAFFECTED
BY USE
OR NONUSE.—The
failure of the Nation to make use of water provided under this
title, or the use of, or failure to make use of, that water by any
other person that enters into a contract with the Nation under
subsection (c) for the assignment, exchange, lease, option for lease,
or temporary disposal of water, shall not diminish, reduce, or
impair—
‘‘(1) any water right of the Nation, as established under
this title or any other applicable law; or
‘‘(2) any water use right recognized under this title,
including—
‘‘(A) the first right of beneficial use referred to in
section 307(a)(1)(G)(i); or
‘‘(B) the allottee use rights referred to in section 308(a).
‘‘(g) AMENDMENT
TO AGREEMENT
OF DECEMBER 11, 1980.—
The Secretary shall amend the agreement of December 11, 1980,
to provide that—
‘‘(1) the contract shall be—
‘‘(A) for permanent service (within the meaning of sec-
tion 5 of the Boulder Canyon Project Act of 1928 (43 U.S.C.
617d)); and
‘‘(B) without limit as to term;
‘‘(2) the Nation may, with the approval of the Secretary—
‘‘(A) in accordance with subsection (c), assign,
exchange, lease, enter into an option to lease, or otherwise
temporarily dispose of water to which the Nation is entitled
under sections 304(a) and 306(a); and
‘‘(B) renegotiate any lease at any time during the term
of the lease if the term of the renegotiated lease does
not exceed 100 years;
‘‘(3)(A) the Nation shall be entitled to all consideration
due to the Nation under any leases and any options to lease
Applicability.
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118 STAT. 3557
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or exchanges or options to exchange the Nation’s Central
Arizona Project water entered into by the Nation; and
‘‘(B) the United States shall have no trust obligation or
other obligation to monitor, administer, or account for any
consideration received by the Nation under those leases or
options to lease and exchanges or options to exchange;
‘‘(4)(A) all of the Nation’s Central Arizona Project water
shall be delivered through the Central Arizona Project aque-
duct; and
‘‘(B) if the delivery capacity of the Central Arizona Project
aqueduct is significantly reduced or is anticipated to be signifi-
cantly reduced for an extended period of time, the Nation
shall have the same Central Arizona Project delivery rights
as other Central Arizona Project contractors and Central
Arizona Project subcontractors, if the Central Arizona Project
contractors or Central Arizona Project subcontractors are
allowed to take delivery of water other than through the Central
Arizona Project aqueduct;
‘‘(5) the Nation may use the Nation’s Central Arizona
Project water on or off of the Nation’s Reservation for the
purposes of the Nation consistent with this title;
‘‘(6) as authorized by subparagraph (A) of section 403(f)(2)
of the Colorado River Basin Project Act (43 U.S.C. 1543(f)(2))
(as amended by section 107(a)) and to the extent that funds
are available in the Lower Colorado River Basin Development
Fund established by section 403 of that Act (43 U.S.C. 1543),
the United States shall pay to the Central Arizona Project
operating agency the fixed operation, maintenance, and replace-
ment charges associated with the delivery of the Nation’s Cen-
tral Arizona Project water, except for the Nation’s Central
Arizona Project water leased by others;
‘‘(7) the allocated costs associated with the construction
of the delivery and distribution system—
‘‘(A) shall be nonreimbursable; and
‘‘(B) shall be excluded from any repayment obligation
of the Nation;
‘‘(8) no water service capital charges shall be due or payable
for the Nation’s Central Arizona Project water, regardless of
whether the Central Arizona Project water is delivered for
use by the Nation or is delivered pursuant to any leases or
options to lease or exchanges or options to exchange the
Nation’s Central Arizona Project water entered into by the
Nation;
‘‘(9) the agreement of December 11, 1980, conforms with
section 104(d) and section 306(a) of the Arizona Water Settle-
ments Act; and
‘‘(10) the amendments required by this subsection shall
not apply to the 8,000 acre feet of Central Arizona Project
water contracted by the Nation in the agreement of December
11, 1980, for the Sif Oidak District.
‘‘(h) RATIFICATION OF AGREEMENTS.—
‘‘(1) IN GENERAL.—Notwithstanding any other provision of
law, each agreement described in paragraph (2), to the extent
that the agreement is not in conflict with this Act—
‘‘(A) is authorized, ratified, and confirmed; and
‘‘(B) shall be executed by the Secretary.
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118 STAT. 3558
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‘‘(2) AGREEMENTS.—The agreements described in this para-
graph are—
‘‘(A) the Tohono O’odham settlement agreement, to the
extent that—
‘‘(i) the Tohono O’odham settlement agreement is
consistent with this title; and
‘‘(ii) parties to the Tohono O’odham settlement
agreement other than the Secretary have executed that
agreement;
‘‘(B) the Tucson agreement (attached to the Tohono
O’odham settlement agreement as exhibit 12.1); and
‘‘(C)(i) the Asarco agreement (attached to the Tohono
O’odham settlement agreement as exhibit 13.1 to the
Tohono O’odham settlement agreement);
‘‘(ii) lease No. H54–0916–0972, dated April 26, 1972,
and approved by the United States on November 14, 1972;
and
‘‘(iii) any new well site lease as provided for in the
Asarco agreement; and
‘‘(D) the FICO agreement (attached to the Tohono
O’odham settlement agreement as Exhibit 14.1).
‘‘(3) RELATION TO OTHER LAW.—
‘‘(A) ENVIRONMENTAL COMPLIANCE.—In implementing
an agreement described in paragraph (2), the Secretary
shall promptly comply with all aspects of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.),
the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.), and all other applicable environmental Acts and regu-
lations.
‘‘(B) EXECUTION
OF
AGREEMENT.—Execution of an
agreement described in paragraph (2) by the Secretary
under this section shall not constitute a major Federal
action under the National Environmental Policy Act (42
U.S.C. 4321 et seq.). The Secretary is directed to carry
out all necessary environmental compliance required by
Federal law in implementing an agreement described in
paragraph (2).
‘‘(C) LEAD AGENCY.—The Bureau of Reclamation shall
be the lead agency with respect to environmental compli-
ance under the agreements described in paragraph (2).
‘‘(i) DISBURSEMENTS FROM TUCSON INTERIM WATER LEASE.—
The Secretary shall disburse to the Nation, without condition, all
proceeds from the Tucson interim water lease.
‘‘(j) USE OF GROSS PROCEEDS.—
‘‘(1) DEFINITION OF GROSS PROCEEDS.—In this subsection,
the term ‘gross proceeds’ means all proceeds, without reduction,
received by the Nation from—
‘‘(A) the Tucson interim water lease;
‘‘(B) the Asarco agreement; and
‘‘(C) any agreement similar to the Asarco agreement
to store Central Arizona Project water of the Nation,
instead of pumping groundwater, for the purpose of pro-
tecting water of the Nation; provided, however, that gross
proceeds shall not include proceeds from the transfer of
Central Arizona Project water in excess of 20,000 acre
feet annually pursuant to any agreement under this
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118 STAT. 3559
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subparagraph or under the Asarco agreement referenced
in subparagraph (B).
‘‘(2) ENTITLEMENT.—The Nation shall be entitled to receive
all gross proceeds.
‘‘(k) STATUTORY CONSTRUCTION.—Nothing in this title estab-
lishes whether reserved water may be put to use, or sold for
use, off any reservation to which reserved water rights attach.
‘‘SEC. 310. COOPERATIVE FUND.
‘‘(a) REAUTHORIZATION.—
‘‘(1) IN GENERAL.—Congress reauthorizes, for use in car-
rying out this title, the cooperative fund established in the
Treasury of the United States by section 313 of the 1982
Act.
‘‘(2) AMOUNTS IN COOPERATIVE FUND.—The cooperative fund
shall consist of—
‘‘(A)(i) $5,250,000, as appropriated to the cooperative
fund under section 313(b)(3)(A) of the 1982 Act; and
‘‘(ii) such amount, not to exceed $32,000,000, as the
Secretary determines, after providing notice to Congress,
is necessary to carry out this title;
‘‘(B) any additional Federal funds deposited to the
cooperative fund under Federal law;
‘‘(C) $5,250,000, as deposited in the cooperative fund
under section 313(b)(1)(B) of the 1982 Act, of which—
‘‘(i) $2,750,000 was contributed by the State;
‘‘(ii) $1,500,000 was contributed by the city of Tuc-
son; and
‘‘(iii) $1,000,000 was contributed by—
‘‘(I) the Anamax Mining Company;
‘‘(II) the Cyprus-Pima Mining Company;
‘‘(III) the American Smelting and Refining
Company;
‘‘(IV) the Duval Corporation; and
‘‘(V) the Farmers Investment Company;
‘‘(D) all interest accrued on all amounts in the coopera-
tive fund beginning on October 12, 1982, less any interest
expended under subsection (b)(2); and
‘‘(E) all revenues received from—
‘‘(i) the sale or lease of effluent received by the
Secretary under the contract between the United
States and the city of Tucson to provide for delivery
of reclaimed water to the Secretary, dated October
11, 1983; and
‘‘(ii) the sale or lease of storage credits derived
from the storage of that effluent.
‘‘(b) EXPENDITURES FROM FUND.—
‘‘(1) IN GENERAL.—Subject to paragraph (2), upon request
by the Secretary, the Secretary of the Treasury shall transfer
from the cooperative fund to the Secretary such amounts as
the Secretary determines are necessary to carry out obligations
of the Secretary under this title, including to pay—
‘‘(A) the variable costs relating to the delivery of water
under sections 304 through 306;
‘‘(B) fixed operation maintenance and replacement costs
relating to the delivery of water under sections 304 through
306, to the extent that funds are not available from the
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118 STAT. 3560
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Lower Colorado River Basin Development Fund to pay
those costs;
‘‘(C) the costs of acquisition and delivery of water from
alternative sources under section 305; and
‘‘(D) any compensation provided by the Secretary under
section 305(d).
‘‘(2) EXPENDITURE
OF
INTEREST.—Except as provided in
paragraph (3), the Secretary may expend only interest income
accruing to the cooperative fund, and that interest income
may be expended by the Secretary, without further appropria-
tion.
‘‘(3) EXPENDITURE OF REVENUES.—Revenues described in
subsection (a)(2)(E) shall be available for expenditure under
paragraph (1).
‘‘(c) INVESTMENT OF AMOUNTS.—
‘‘(1) IN
GENERAL.—The Secretary of the Treasury shall
invest such portion of the cooperative fund as is not, in the
judgment of the Secretary of the Treasury, required to meet
current withdrawals determined by the Secretary. Investments
may be made only in interest-bearing obligations of the United
States.
‘‘(2) CREDITS TO COOPERATIVE FUND.—The interest on, and
the proceeds from the sale or redemption of, any obligations
held in the cooperative fund shall be credited to and form
a part of the cooperative fund.
‘‘(d) TRANSFERS OF AMOUNTS.—
‘‘(1) IN GENERAL.—The amounts required to be transferred
to the cooperative fund under this section shall be transferred
at least monthly from the general fund of the Treasury to
the cooperative fund on the basis of estimates made by the
Secretary of the Treasury.
‘‘(2) ADJUSTMENTS.—Proper adjustment shall be made in
amounts subsequently transferred to the extent prior estimates
were in excess of or less than the amounts required to be
transferred.
‘‘(e) DAMAGES.—Damages arising under this title or any con-
tract for the delivery of water recognized by this title shall not
exceed, in any given year, the amounts available for expenditure
in that year from the cooperative fund.
‘‘SEC. 311. CONTRACTING AUTHORITY; WATER QUALITY; STUDIES; ARID
LAND ASSISTANCE.
‘‘(a) FUNCTIONS OF SECRETARY.—Except as provided in sub-
section (f), the functions of the Secretary (or the Commissioner
of Reclamation, acting on behalf of the Secretary) under this title
shall be subject to the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.) to the same extent as if
those functions were carried out by the Assistant Secretary for
Indian Affairs.
‘‘(b) SAN XAVIER DISTRICT AS CONTRACTOR.—
‘‘(1) IN GENERAL.—Subject to the consent of the Nation
and other requirements under section 307(a)(1)(E), the San
Xavier District shall be considered to be an eligible contractor
for purposes of this title.
‘‘(2) TECHNICAL ASSISTANCE.—The Secretary shall provide
to the San Xavier District technical assistance in carrying
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out the contracting requirements under the Indian Self-Deter-
mination and Education Assistance Act (25 U.S.C. 450 et seq.).
‘‘(c) GROUNDWATER MONITORING PROGRAMS.—
‘‘(1) SAN XAVIER INDIAN RESERVATION PROGRAM.—
‘‘(A) IN GENERAL.—Not later than 180 days after the
enforceability date, the Secretary shall develop and initiate
a 
comprehensive 
groundwater 
monitoring 
program
(including the drilling of wells and other appropriate
actions) to test, assess, and provide for the long-term moni-
toring of the quality of groundwater withdrawn from
exempt wells and other wells within the San Xavier Res-
ervation.
‘‘(B) LIMITATION ON EXPENDITURES.—In carrying out
this paragraph, the Secretary shall expend not more than
$215,000.
‘‘(2) EASTERN SCHUK TOAK DISTRICT PROGRAM.—
‘‘(A) IN GENERAL.—Not later than 180 days after the
enforceability date, the Secretary shall develop and initiate
a 
comprehensive 
groundwater 
monitoring 
program
(including the drilling of wells and other appropriate
actions) to test, assess, and provide for the long-term moni-
toring of the quality of groundwater withdrawn from
exempt wells and other wells within the eastern Schuk
Toak District.
‘‘(B) LIMITATION ON EXPENDITURES.—In carrying out
this paragraph, the Secretary shall expend not more than
$175,000.
‘‘(3) DUTIES OF SECRETARY.—
‘‘(A) CONSULTATION.—In carrying out paragraphs (1)
and (2), the Secretary shall consult with representatives
of—
‘‘(i) the Nation;
‘‘(ii) the San Xavier District and Schuk Toak Dis-
trict, respectively; and
‘‘(iii) appropriate State and local entities.
‘‘(B) LIMITATION ON OBLIGATIONS OF SECRETARY.—With
respect to the groundwater monitoring programs described
in paragraphs (1) and (2), the Secretary shall have no
continuing obligation relating to those programs beyond
the obligations described in those paragraphs.
‘‘(d) WATER RESOURCES STUDY.—To assist the Nation in devel-
oping sources of water, the Secretary shall conduct a study to
determine the availability and suitability of water resources that
are located—
‘‘(1) within the Nation’s Reservation; but
‘‘(2) outside the Tucson management area.
‘‘(e) ARID LAND RENEWABLE RESOURCES.—If a Federal entity
is established to provide financial assistance to carry out arid
land renewable resources projects and to encourage and ensure
investment in the development of domestic sources of arid land
renewable resources, the entity shall—
‘‘(1) give first priority to the needs of the Nation in pro-
viding that assistance; and
‘‘(2) make available to the Nation, San Xavier District,
Schuk Toak District, and San Xavier Cooperative Association
price guarantees, loans, loan guarantees, purchase agreements,
Deadlines.
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and joint venture projects at a level that the entity determines
will—
‘‘(A) facilitate the cultivation of such minimum number
of acres as is determined by the entity to be necessary
to ensure economically successful cultivation of arid land
crops; and
‘‘(B) contribute significantly to the economy of the
Nation.
‘‘(f) ASARCO LAND EXCHANGE STUDY.—
‘‘(1) IN GENERAL.—Not later than 2 years after the enforce-
ability date, the Secretary, in consultation with the Nation,
the San Xavier District, the San Xavier Allottees’ Association,
and Asarco, shall conduct and submit to Congress a study
on the feasibility of a land exchange or land exchanges with
Asarco to provide land for future use by—
‘‘(A) beneficial landowners of the Mission Complex
Mining Leases of September 18, 1959; and
‘‘(B) beneficial landowners of the Mission Complex
Business Leases of May 12, 1959.
‘‘(2) COMPONENTS.—The study under paragraph (1) shall
include—
‘‘(A) an analysis of the manner in which land exchanges
could be accomplished to maintain a contiguous land base
for the San Xavier Reservation; and
‘‘(B) a description of the legal status exchanged land
should have to maintain the political integrity of the San
Xavier Reservation.
‘‘(3) LIMITATION ON EXPENDITURES.—In carrying out this
subsection, the Secretary shall expend not more than $250,000.
‘‘SEC. 312. WAIVER AND RELEASE OF CLAIMS.
‘‘(a) WAIVER OF CLAIMS BY THE NATION.—Except as provided
in subsection (d), the Tohono O’odham settlement agreement shall
provide that the Nation waives and releases—
‘‘(1) any and all past, present, and future claims for water
rights (including claims based on aboriginal occupancy) arising
from time immemorial and, thereafter, forever, and claims for
injuries to water rights arising from time immemorial through
the enforceability date, for land within the Tucson management
area, against—
‘‘(A) the State (or any agency or political subdivision
of the State);
‘‘(B) any municipal corporation; and
‘‘(C) any other person or entity;
‘‘(2) any and all claims for water rights arising from time
immemorial and, thereafter, forever, claims for injuries to water
rights arising from time immemorial through the enforceability
date, and claims for failure to protect, acquire, or develop
water rights for land within the San Xavier Reservation and
the eastern Schuk Toak District from time immemorial through
the enforceability date, against the United States (including
any agency, officer, and employee of the United States);
‘‘(3) any and all claims for injury to water rights arising
after the enforceability date for land within the San Xavier
Reservation and the eastern Schuk Toak District resulting from
the off-Reservation diversion or use of water in a manner
Deadline.
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not in violation of the Tohono O’odham settlement agreement
or State law against—
‘‘(A) the United States;
‘‘(B) the State (or any agency or political subdivision
of the State);
‘‘(C) any municipal corporation; and
‘‘(D) any other person or entity; and
‘‘(4) any and all past, present, and future claims arising
out of or relating to the negotiation or execution of the Tohono
O’odham settlement agreement or the negotiation or enactment
of this title, against—
‘‘(A) the United States;
‘‘(B) the State (or any agency or political subdivision
of the State);
‘‘(C) any municipal corporation; and
‘‘(D) any other person or entity.
‘‘(b) WAIVER
OF CLAIMS
BY
THE ALLOTTEE CLASSES.—The
Tohono O’odham settlement agreement shall provide that each
allottee class waives and releases—
‘‘(1) any and all past, present, and future claims for water
rights (including claims based on aboriginal occupancy) arising
from time immemorial and, thereafter, forever, claims for
injuries to water rights arising from time immemorial through
the enforceability date for land within the San Xavier Reserva-
tion, against—
‘‘(A) the State (or any agency or political subdivision
of the State);
‘‘(B) any municipal corporation; and
‘‘(C) any other person or entity (other than the Nation);
‘‘(2) any and all claims for water rights arising from time
immemorial and, thereafter, forever, claims for injuries to water
rights arising from time immemorial through the enforceability
date, and claims for failure to protect, acquire, or develop
water rights for land within the San Xavier Reservation from
time immemorial through the enforceability date, against the
United States (including any agency, officer, and employee of
the United States);
‘‘(3) any and all claims for injury to water rights arising
after the enforceability date for land within the San Xavier
Reservation resulting from the off-Reservation diversion or use
of water in a manner not in violation of the Tohono O’odham
settlement agreement or State law against—
‘‘(A) the United States;
‘‘(B) the State (or any agency or political subdivision
of the State);
‘‘(C) any municipal corporation; and
‘‘(D) any other person or entity;
‘‘(4) any and all past, present, and future claims arising
out of or relating to the negotiation or execution of the Tohono
O’odham settlement agreement or the negotiation or enactment
of this title, against—
‘‘(A) the United States;
‘‘(B) the State (or any agency or political subdivision
of the State);
‘‘(C) any municipal corporation; and
‘‘(D) any other person or entity; and
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‘‘(5) any and all past, present, and future claims for water
rights arising from time immemorial and, thereafter, forever,
and claims for injuries to water rights arising from time
immemorial through the enforceability date, against the Nation
(except that under section 307(a)(1)(G) and subsections (a) and
(b) of section 308, the allottees and fee owners of allotted
land shall retain rights to share in the water resources granted
or confirmed under this title and the Tohono O’odham settle-
ment agreement with respect to uses within the San Xavier
Reservation).
‘‘(c) WAIVER OF CLAIMS BY THE UNITED STATES.—Except as
provided in subsection (d), the Tohono O’odham settlement agree-
ment shall provide that the United States as Trustee waives and
releases—
‘‘(1) any and all past, present, and future claims for water
rights (including claims based on aboriginal occupancy) arising
from time immemorial and, thereafter, forever, and claims for
injuries to water rights arising from time immemorial through
the enforceability date, for land within the Tucson management
area against—
‘‘(A) the Nation;
‘‘(B) the State (or any agency or political subdivision
of the State);
‘‘(C) any municipal corporation; and
‘‘(D) any other person or entity;
‘‘(2) any and all claims for injury to water rights arising
after the enforceability date for land within the San Xavier
Reservation and the eastern Schuk Toak District resulting from
the off-Reservation diversion or use of water in a manner
not in violation of the Tohono O’odham settlement agreement
or State law against—
‘‘(A) the Nation;
‘‘(B) the State (or any agency or political subdivision
of the State);
‘‘(C) any municipal corporation; and
‘‘(D) any other person or entity;
‘‘(3) on and after the enforceability date, any and all claims
on behalf of the allottees for injuries to water rights against
the Nation (except that under section 307(a)(1)(G) and sub-
sections (a) and (b) of section 308, the allottees shall retain
rights to share in the water resources granted or confirmed
under this title and the Tohono O’odham settlement agreement
with respect to uses within the San Xavier Reservation); and
‘‘(4) claims against Asarco on behalf of the allottee class
for the fourth cause of action in Alvarez v. City of Tucson
(Civ. No. 93–039 TUC FRZ (D. Ariz., filed April 21, 1993)),
in accordance with the terms and conditions of the Asarco
agreement.
‘‘(d) CLAIMS RELATING
TO GROUNDWATER PROTECTION PRO-
GRAM.—The Nation and the United States as Trustee—
‘‘(1) shall have the right to assert any claims granted
by a State law implementing the groundwater protection pro-
gram described in paragraph 8.8 of the Tohono O’odham settle-
ment agreement; and
‘‘(2) if, after the enforceability date, the State law is
amended so as to have a material adverse effect on the Nation,
shall have a right to relief in the State court having jurisdiction
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over Gila River adjudication proceedings and decrees, against
an owner of any nonexempt well drilled after the effective
date of the amendment (if the well actually and substantially
interferes with groundwater pumping occurring on the San
Xavier Reservation), from the incremental effect of the ground-
water pumping that exceeds that which would have been allow-
able had the State law not been amended.
‘‘(e) SUPPLEMENTAL WAIVERS
OF CLAIMS.—Any party to the
Tohono O’odham settlement agreement may waive and release,
prohibit the assertion of, or agree not to assert, any claims
(including claims for subsidence damage or injury to water quality)
in addition to claims for water rights and injuries to water rights
on such terms and conditions as may be agreed to by the parties.
‘‘(f) RIGHTS OF ALLOTTEES; PROHIBITION OF CLAIMS.—
‘‘(1) IN GENERAL.—As of the enforceability date—
‘‘(A) the water rights and other benefits granted or
confirmed by this title and the Tohono O’odham settlement
agreement shall be in full satisfaction of—
‘‘(i) all claims for water rights and claims for
injuries to water rights of the Nation; and
‘‘(ii) all claims for water rights and injuries to
water rights of the allottees;
‘‘(B) any entitlement to water within the Tucson
management area of the Nation, or of any allottee, shall
be satisfied out of the water resources granted or confirmed
under this title and the Tohono O’odham settlement agree-
ment; and
‘‘(C) any rights of the allottees to groundwater, surface
water, or effluent shall be limited to the water rights
granted or confirmed under this title and the Tohono
O’odham settlement agreement.
‘‘(2) LIMITATION
OF
CERTAIN
CLAIMS
BY
ALLOTTEES.—No
allottee within the San Xavier Reservation may—
‘‘(A) assert any past, present, or future claim for water
rights arising from time immemorial and, thereafter, for-
ever, or any claim for injury to water rights (including
future injury to water rights) arising from time immemorial
and thereafter, forever, against—
‘‘(i) the United States;
‘‘(ii) the State (or any agency or political subdivi-
sion of the State);
‘‘(iii) any municipal corporation; or
‘‘(iv) any other person or entity; or
‘‘(B) continue to assert a claim described in subpara-
graph (A), if the claim was first asserted before the enforce-
ability date.
‘‘(3) CLAIMS BY FEE OWNERS OF ALLOTTED LAND.—
‘‘(A) IN GENERAL.—No fee owner of allotted land within
the San Xavier Reservation may assert any claim to the
extent that—
‘‘(i) the claim has been waived and released in
the Tohono O’odham settlement agreement; and
‘‘(ii) the fee owner of allotted land asserting the
claim is a member of the applicable allottee class.
‘‘(B) OFFSET.—Any benefits awarded to a fee owner
of allotted land as a result of a successful claim shall
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be offset by benefits received by that fee owner of allotted
land under this title.
‘‘(4) LIMITATION OF CLAIMS AGAINST THE NATION.—
‘‘(A) IN GENERAL.—Except as provided in subparagraph
(B), no allottee may assert against the Nation any claims
for water rights arising from time immemorial and, there-
after, forever, claims for injury to water rights arising
from time immemorial and thereafter forever.
‘‘(B) EXCEPTION.—Under section 307(a)(1)(G) and sub-
sections (a) and (b) of section 308, the allottees shall retain
rights to share in the water resources granted or confirmed
under this title and the Tohono O’odham settlement agree-
ment.
‘‘(g) CONSENT.—
‘‘(1) GRANT OF CONSENT.—Congress grants to the Nation
and the San Xavier Cooperative Association under section
305(d) consent to maintain civil actions against the United
States in the courts of the United States under section 1346,
1491, or 1505 of title 28, United States Code, respectively,
to recover damages, if any, for the breach of any obligation
of the Secretary under those sections.
‘‘(2) REMEDY.—
‘‘(A) IN GENERAL.—Subject to subparagraph (B), the
exclusive remedy for a civil action maintained under this
subsection shall be monetary damages.
‘‘(B) OFFSET.—An award for damages for a claim under
this subsection shall be offset against the amount of
funds—
‘‘(i) made available by any Act of Congress; and
‘‘(ii) paid to the claimant by the Secretary in partial
or complete satisfaction of the claim.
‘‘(3) NO CLAIMS ESTABLISHED.—Except as provided in para-
graph (1), nothing in the subsection establishes any claim
against the United States.
‘‘(h) JURISDICTION; WAIVER OF IMMUNITY; PARTIES.—
‘‘(1) JURISDICTION.—
‘‘(A) IN GENERAL.—Except as provided in subsection
(i), the State court having jurisdiction over Gila River adju-
dication proceedings and decrees, shall have jurisdiction
over—
‘‘(i) civil actions relating to the interpretation and
enforcement of—
‘‘(I) this title;
‘‘(II) the Tohono O’odham settlement agree-
ment; and
‘‘(III) agreements referred to in section
309(h)(2); and
‘‘(ii) civil actions brought by or against the allottees
or fee owners of allotted land for the interpretation
of, or legal or equitable remedies with respect to, claims
of the allottees or fee owners of allotted land that
are not claims for water rights, injuries to water rights
or other claims that are barred or waived and released
under this title or the Tohono O’odham settlement
agreement.
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‘‘(B) LIMITATION.—Except as provided in subparagraph
(A), no State court or court of the Nation shall have jurisdic-
tion over any civil action described in subparagraph (A).
‘‘(2) WAIVER.—
‘‘(A) IN GENERAL.—The United States and the Nation
waive sovereign immunity solely for claims for—
‘‘(i) declaratory judgment or injunctive relief in
any civil action arising under this title; and
‘‘(ii) such claims and remedies as may be prescribed
in any agreement authorized under this title.
‘‘(B) LIMITATION
ON
STANDING.—If a governmental
entity not described in subparagraph (A) asserts immunity
in any civil action that arises under this title (unless the
entity waives immunity for declaratory judgment or injunc-
tive relief) or any agreement authorized under this title
(unless the entity waives immunity for the claims and
remedies prescribed in the agreement)—
‘‘(i) the governmental entity shall not have
standing to initiate or assert any claim, or seek any
remedy against the United States or the Nation, in
the civil action; and
‘‘(ii) the waivers of sovereign immunity under
subparagraph (A) shall have no effect in the civil
action.
‘‘(C) MONETARY RELIEF.—A waiver of immunity under
this paragraph shall not extend to any claim for damages,
costs, attorneys’ fees, or other monetary relief.
‘‘(3) NATION AS A PARTY.—
‘‘(A) IN GENERAL.—Not later than 60 days before the
date on which a civil action under paragraph (1)(A)(ii)
is filed by an allottee or fee owner of allotted land, the
allottee or fee owner, as the case may be, shall provide
to the Nation a notice of intent to file the civil action,
accompanied by a request for consultation.
‘‘(B) JOINDER.—If the Nation is not a party to a civil
action as originally commenced under paragraph (1)(A)(ii),
the Nation shall be joined as a party.
‘‘(i) REGULATION
AND JURISDICTION OVER DISPUTE RESOLU-
TION.—
‘‘(1) REGULATION.—The Nation shall have jurisdiction to
manage, control, permit, administer, and otherwise regulate
the water resources granted or confirmed under this title and
the Tohono O’odham settlement agreement—
‘‘(A) with respect to the use of those resources by—
‘‘(i) the Nation;
‘‘(ii) individual members of the Nation;
‘‘(iii) districts of the Nation; and
‘‘(iv) allottees; and
‘‘(B) with respect to any entitlement to those resources
for which a fee owner of allotted land has received a final
determination under applicable law.
‘‘(2) JURISDICTION.—Subject to a requirement of exhaustion
of any administrative or other remedies prescribed under the
laws of the Nation, jurisdiction over any disputes relating to
the matters described in paragraph (1) shall be vested in the
courts of the Nation.
Deadline.
Notice.
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118 STAT. 3568
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‘‘(3) APPLICABLE LAW.—The regulatory and remedial proce-
dures referred to in paragraphs (1) and (2) shall be subject
to all applicable law.
‘‘(j) FEDERAL JURISDICTION.—The Federal Courts shall have
concurrent jurisdiction over actions described in subsection 312(h)
to the extent otherwise provided in Federal law.
‘‘SEC. 313. AFTER-ACQUIRED TRUST LAND.
‘‘(a) IN GENERAL.—Except as provided in subsection (b)—
‘‘(1) the Nation may seek to have taken into trust by
the United States, for the benefit of the Nation, legal title
to additional land within the State and outside the exterior
boundaries of the Nation’s Reservation only in accordance with
an Act of Congress specifically authorizing the transfer for
the benefit of the Nation;
‘‘(2) lands taken into trust under paragraph (1) shall
include only such water rights and water use privileges as
are consistent with State water law and State water manage-
ment policy; and
‘‘(3) after-acquired trust land shall not include Federal
reserved rights to surface water or groundwater.
‘‘(b) EXCEPTION.—Subsection (a) shall not apply to land acquired
by the Nation under the Gila Bend Indian Reservation Lands
Replacement Act (100 Stat. 1798).
‘‘SEC. 314. NONREIMBURSABLE COSTS.
‘‘(a) CENTRAL ARIZONA WATER CONSERVATION DISTRICT.—For
the purpose of determining the allocation and repayment of costs
of any stage of the Central Arizona Project, the costs associated
with the delivery of Central Arizona Project water acquired under
sections 304(a) and 306(a), whether that water is delivered for
use by the Nation or in accordance with any assignment, exchange,
lease, option to lease, or other agreement for the temporary disposi-
tion of water entered into by the Nation—
‘‘(1) shall be nonreimbursable; and
‘‘(2) shall be excluded from the repayment obligation of
the Central Arizona Water Conservation District.
‘‘(b) CLAIMS BY UNITED STATES.—The United States shall—
‘‘(1) make no claim against the Nation or any allottee
for reimbursement or repayment of any cost associated with—
‘‘(A) the construction of facilities under the Colorado
River Basin Project Act (43 U.S.C. 1501 et seq.);
‘‘(B) the delivery of Central Arizona Project water for
any use authorized under this title; or
‘‘(C) the implementation of this title;
‘‘(2) make no claim against the Nation for reimbursement
or repayment of the costs associated with the construction
of facilities described in paragraph (1)(A) for the benefit of
and use on land that—
‘‘(A) is known as the ‘San Lucy Farm’; and
‘‘(B) was acquired by the Nation under the Gila Bend
Indian Reservation Lands Replacement Act (100 Stat.
1798); and
‘‘(3) impose no assessment with respect to the costs referred
to in paragraphs (1) and (2) against—
‘‘(A) trust or allotted land within the Nation’s Reserva-
tion; or
‘‘(B) the land described in paragraph (2).
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‘‘SEC. 315. TRUST FUND.
‘‘(a) REAUTHORIZATION.—Congress reauthorizes the trust fund
established by section 309 of the 1982 Act, containing an initial
deposit of $15,000,000 made under that section, for use in carrying
out this title.
‘‘(b) EXPENDITURE AND INVESTMENT.—Subject to the limitations
of subsection (d), the principal and all accrued interest and divi-
dends in the trust fund established under section 309 of the 1982
Act may be—
‘‘(1) expended by the Nation for any governmental purpose;
and
‘‘(2) invested by the Nation in accordance with such policies
as the Nation may adopt.
‘‘(c) RESPONSIBILITY OF SECRETARY.—The Secretary shall not—
‘‘(1) be responsible for the review, approval, or audit of
the use and expenditure of any funds from the trust fund
reauthorized by subsection (a); or
‘‘(2) be subject to liability for any claim or cause of action
arising from the use or expenditure by the Nation of those
funds.
‘‘(d) CONDITIONS OF TRUST.—
‘‘(1) RESERVE FOR THE COST OF SUBJUGATION.—The Nation
shall reserve in the trust fund reauthorized by subsection (a)—
‘‘(A) the principal amount of at least $3,000,000; and
‘‘(B) interest on that amount that accrues during the
period beginning on the enforceability date and ending
on the earlier of—
‘‘(i) the date on which full payment of such costs
has been made; or
‘‘(ii) the date that is 10 years after the enforce-
ability date.
‘‘(2) PAYMENT.—The costs described in paragraph (1) shall
be paid in the amount, on the terms, and for the purposes
prescribed in section 307(a)(1)(F).
‘‘(3) LIMITATION ON RESTRICTIONS.—On the occurrence of
an event described in clause (i) or (ii) of paragraph (1)(B)—
‘‘(A) the restrictions imposed on funds from the trust
fund described in paragraph (1) shall terminate; and
‘‘(B) any of those funds remaining that were reserved
under paragraph (1) may be used by the Nation under
subsection (b)(1).
‘‘SEC. 316. MISCELLANEOUS PROVISIONS.
‘‘(a) IN GENERAL.—Nothing in this title—
‘‘(1) establishes the applicability or inapplicability to
groundwater of any doctrine of Federal reserved rights;
‘‘(2) limits the ability of the Nation to enter into any agree-
ment with the Arizona Water Banking Authority (or a successor
agency) in accordance with State law;
‘‘(3) prohibits the Nation, any individual member of the
Nation, an allottee, or a fee owner of allotted land in the
San Xavier Reservation from lawfully acquiring water rights
for use in the Tucson management area in addition to the
water rights granted or confirmed under this title and the
Tohono O’odham settlement agreement;
‘‘(4) abrogates any rights or remedies existing under section
1346 or 1491 of title 28, United States Code;
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‘‘(5) affects the obligations of the parties under the Agree-
ment of December 11, 1980, with respect to the 8,000 acre
feet of Central Arizona Project water contracted by the Nation
for the Sif Oidak District;
‘‘(6)(A) applies to any exempt well;
‘‘(B) prohibits or limits the drilling of any exempt well
within—
‘‘(i) the San Xavier Reservation; or
‘‘(ii) the eastern Schuk Toak District; or
‘‘(C) subjects water from any exempt well to any pumping
limitation under this title; or
‘‘(7) diminishes or abrogates rights to use water under—
‘‘(A) contracts of the Nation in existence before the
enforceability date; or
‘‘(B) the well site agreement referred to in the Asarco
agreement and any well site agreement entered into under
the Asarco agreement.
‘‘(b) NO EFFECT
ON FUTURE ALLOCATIONS.—Water received
under a lease or exchange of Central Arizona Project water under
this title does not affect any future allocation or reallocation of
Central Arizona Project water by the Secretary.
‘‘(c) LIMITATION ON LIABILITY OF UNITED STATES.—
‘‘(1) IN GENERAL.—The United States shall have no trust
or other obligation—
‘‘(A) to monitor, administer, or account for, in any
manner, any of the funds paid to the Nation or the San
Xavier District under this Act; or
‘‘(B) to review or approve the expenditure of those
funds.
‘‘(2) INDEMNIFICATION.—The Nation shall indemnify the
United States, and hold the United States harmless, with
respect to any and all claims (including claims for takings
or breach of trust) arising out of the receipt or expenditure
of funds described in paragraph (1)(A).
‘‘SEC. 317. AUTHORIZED COSTS.
‘‘(a) IN GENERAL.—There are authorized to be appropriated—
‘‘(1) to construct features of irrigation systems described
in paragraphs (1) through (4) of section 304(c) that are not
authorized to be constructed under any other provision of law,
an amount equal to the sum of—
‘‘(A) $3,500,000; and
‘‘(B) such additional amount as the Secretary deter-
mines to be necessary to adjust the amount under subpara-
graph (A) to account for ordinary fluctuations in the costs
of construction of irrigation features for the period begin-
ning on October 12, 1982, and ending on the date on
which the construction of the features described in this
subparagraph is initiated, as indicated by engineering cost
indices applicable to the type of construction involved;
‘‘(2) $18,300,000 in lieu of construction to implement section
304(c)(3)(B), including an adjustment representing interest that
would have been earned if this amount had been deposited
in the cooperative fund during the period beginning on January
1, 2008, and ending on the date the amount is actually paid
to the San Xavier District;
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‘‘(3) $891,200 to develop and initiate a water management
plan for the San Xavier Reservation under section 308(d);
‘‘(4) $237,200 to develop and initiate a water management
plan for the eastern Schuk Toak District under section 308(d);
‘‘(5) $4,000,000 to complete the water resources study under
section 311(d);
‘‘(6) $215,000 to develop and initiate a groundwater moni-
toring program for the San Xavier Reservation under section
311(c)(1);
‘‘(7) $175,000 to develop and implement a groundwater
monitoring program for the eastern Schuk Toak District under
section 311(c)(2);
‘‘(8) $250,000 to complete the Asarco land exchange study
under section 311(f); and
‘‘(9) such additional sums as are necessary to carry out
the provisions of this title other than the provisions referred
to in paragraphs (1) through (8).
‘‘(b) TREATMENT OF APPROPRIATED AMOUNTS.—Amounts made
available under subsection (a) shall be considered to be authorized
costs for purposes of section 403(f)(2)(D)(iii) of the Colorado River
Basin Project Act (43 U.S.C. 1543(f)(2)(D)(iii)) (as amended by sec-
tion 107(a) of the Arizona Water Settlements Act).’’.
SEC. 302. SOUTHERN ARIZONA WATER RIGHTS SETTLEMENT EFFEC-
TIVE DATE.
(a) DEFINITIONS.—The definitions under section 301 of the
Southern Arizona Water Rights Settlement Amendments Act of
2004 (as contained in the amendment made by section 301) shall
apply to this title.
(b) EFFECTIVE DATE.—This title and the amendments made
by this title take effect as of the enforceability date, which is
the date the Secretary publishes in the Federal Register a statement
of findings that—
(1)(A) to the extent that the Tohono O’odham settlement
agreement conflicts with this title or an amendment made
by this title, the Tohono O’odham settlement agreement has
been revised through an amendment to eliminate those con-
flicts; and
(B) the Tohono O’odham settlement agreement, as so
revised, has been executed by the parties and the Secretary;
(2) the Secretary and other parties to the agreements
described in section 309(h)(2) of the Southern Arizona Water
Rights Settlement Amendments Act of 2004 (as contained in
the amendment made by section 301) have executed those
agreements;
(3) the Secretary has approved the interim allottee water
rights code described in section 308(b)(3)(A) of the Southern
Arizona Water Rights Settlement Amendments Act of 2004
(as contained in the amendment made by section 301);
(4) final dismissal with prejudice has been entered in each
of the Alvarez case and the Tucson case on the sole condition
that the Secretary publishes the findings specified in this sec-
tion;
(5) the judgment and decree attached to the Tohono
O’odham settlement agreement as exhibit 17.1 has been
approved by the State court having jurisdiction over the Gila
Federal Register,
publication.
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118 STAT. 3572
PUBLIC LAW 108–451—DEC. 10, 2004
River adjudication proceedings, and that judgment and decree
have become final and nonappealable;
(6) implementation costs have been identified and retained
in the Lower Colorado River Basin Development Fund,
specifically—
(A) $18,300,000 to implement section 304(c)(3);
(B) $891,200 to implement a water management plan
for the San Xavier Reservation under section 308(d) of
the Southern Arizona Water Rights Settlement Amend-
ments Act of 2004 (as contained in the amendment made
by section 301);
(C) $237,200 to implement a water management plan
for the eastern Schuk Toak District under section 308(d)
of the Southern Arizona Water Rights Settlement Amend-
ments Act of 2004 (as contained in the amendment made
by section 301);
(D) $4,000,000 to complete the water resources study
under section 311(d) of the Southern Arizona Water Rights
Settlement Amendments Act of 2004 (as contained in the
amendment made by section 301);
(E) $215,000 to develop and implement a groundwater
monitoring program for the San Xavier Reservation under
section 311(c)(1) of the Southern Arizona Water Rights
Settlement Amendments Act of 2004 (as contained in the
amendment made by section 301);
(F) $175,000 to develop and implement a groundwater
monitoring program for the eastern Schuk Toak District
under section 311(c)(2) of the Southern Arizona Water
Rights Settlement Amendments Act of 2004 (as contained
in the amendment made by section 301); and
(G) $250,000 to complete the Asarco land exchange
study under section 311(f) of the Southern Arizona Water
Rights Settlement Amendments Act of 2004 (as contained
in the amendment made by section 301);
(7) the State has enacted legislation that—
(A) qualifies the Nation to earn long-term storage
credits under the Asarco agreement;
(B) implements the San Xavier groundwater protection
program in accordance with paragraph 8.8 of the Tohono
O’odham settlement agreement;
(C) enables the State to carry out section 306(b); and
(D) confirms the jurisdiction of the State court having
jurisdiction over Gila River adjudication proceedings and
decrees to carry out the provisions of sections 312(d) and
312(h) of the Southern Arizona Water Rights Settlement
Amendments Act of 2004 (as contained in the amendment
made by section 301);
(8) the Secretary and the State have agreed to an accept-
able firming schedule referred to in section 105(b)(2)(C); and
(9) a final judgment has been entered in Central Arizona
Water Conservation District v. United States (No. CIV 95–
625–TUC–WDB(EHC), No. CIV 95–1720–PHX–EHC) (Consoli-
dated Action) in accordance with the repayment stipulation
as provided in section 207.
(c) FAILURE TO PUBLISH STATEMENT OF FINDINGS.—If the Sec-
retary does not publish a statement of findings under subsection
(a) by December 31, 2007—
Deadline.
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118 STAT. 3573
PUBLIC LAW 108–451—DEC. 10, 2004
(1) the 1982 Act shall remain in full force and effect;
(2) this title shall not take effect; and
(3) any funds made available by the State under this title
that are not expended, together with any interest on those
funds, shall immediately revert to the State.
TITLE IV—SAN CARLOS APACHE TRIBE
WATER RIGHTS SETTLEMENT
SEC. 401. EFFECT OF TITLES I, II, AND III.
None of the provisions of title I, II, or III or the agreements,
attachments, exhibits, or stipulations referenced in those titles shall
be construed to—
(1) amend, alter, or limit the authority of—
(A) the United States to assert any claim against any
party, including any claim for water rights, injury to water
rights, or injury to water quality in its capacity as trustee
for the San Carlos Apache Tribe, its members and allottees,
or in any other capacity on behalf of the San Carlos Apache
Tribe, its members, and allottees, in any judicial, adminis-
trative, or legislative proceeding; or
(B) the San Carlos Apache Tribe to assert any claim
against any party, including any claim for water rights,
injury to water rights, or injury to water quality in its
own behalf or on behalf of its members and allottees in
any judicial, administrative, or legislative proceeding con-
sistent with title XXXVII of Public Law 102–575 (106 Stat.
4600, 4740); or
(2) amend or alter the CAP Contract for the San Carlos
Apache Tribe dated December 11, 1980, as amended April
29, 1999.
SEC. 402. ANNUAL REPORT.
(a) IN GENERAL.—Not later than 1 year after the date of enact-
ment of this Act and annually thereafter, the Secretary shall submit
to the Committee on Energy and Natural Resources of the Senate
and the Committee on Resources of the House of Representatives
a report that describes the status of efforts to reach a negotiated
agreement covering the Gila River water rights claims of the San
Carlos Apache Tribe.
(b) TERMINATION.—This section shall be of no effect after the
later of—
(1) the date that is 3 years after the date of enactment
of this Act; or
(2) the date on which the Secretary submits a third annual
report under this section.
SEC. 403. AUTHORIZATION OF APPROPRIATIONS.
(a) SAN CARLOS APACHE TRIBE.—There is authorized to be
appropriated to assist the San Carlos Apache Tribe in completing
comprehensive water resources negotiations leading to a comprehen-
sive Gila River water settlement for the Tribe, including soil and
water technical analyses, legal, paralegal, and other related efforts,
$150,000 for fiscal year 2006.
(b) WHITE MOUNTAIN APACHE TRIBE.—There is authorized to
be appropriated to assist the White Mountain Apache Tribe in
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118 STAT. 3574
PUBLIC LAW 108–451—DEC. 10, 2004
LEGISLATIVE HISTORY—S. 437 (H.R. 885):
HOUSE REPORTS: No. 108–793 (Comm. on Resources).
SENATE REPORTS: No. 108–360 (Comm. on Energy and Natural Resources).
CONGRESSIONAL RECORD, Vol. 150 (2004):
Oct. 10, considered and passed Senate.
Nov. 17, considered and passed House.
completing comprehensive water resources negotiations leading to
a comprehensive water settlement for the Tribe, including soil and
water technical analyses, legal, paralegal, and other related efforts,
$150,000 for fiscal year 2006.
(c) OTHER ARIZONA INDIAN TRIBES.—There is authorized to
be appropriated to the Secretary to assist Arizona Indian tribes
(other than those specified in subsections (a) and (b)) in completing
comprehensive water resources negotiations leading to a comprehen-
sive water settlement for the Arizona Indian tribes, including soil
and water technical analyses, legal, paralegal, and other related
efforts, $300,000 for fiscal year 2006.
(d) NO LIMITATION ON OTHER FUNDING.—Amounts made avail-
able under subsections (a), (b), and (c) shall not limit, and shall
be in addition to, other amounts available for Arizona tribal water
rights negotiations leading to comprehensive water settlements.
Approved December 10, 2004.
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