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pdfPUBLIC LAW 111–291—DEC. 8, 2010
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CLAIMS RESOLUTION ACT OF 2010
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124 STAT. 3064
PUBLIC LAW 111–291—DEC. 8, 2010
Public Law 111–291
111th Congress
An Act
Dec. 8, 2010
[H.R. 4783]
Claims
Resolution Act
of 2010.
42 USC 1305
note.
This Act may be cited as ‘‘The Claims Resettlement Act of 2010.’’.
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 ‘‘Claims Resolution Act of 2010’’.
(b) TABLE OF CONTENTS.—The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I—INDIVIDUAL INDIAN MONEY ACCOUNT LITIGATION SETTLEMENT
Sec. 101. Individual Indian Money Account Litigation Settlement.
TITLE II—FINAL SETTLEMENT OF CLAIMS FROM IN RE BLACK FARMERS
DISCRIMINATION LITIGATION
Sec. 201. Appropriation of funds for final settlement of claims from In re Black
Farmers Discrimination Litigation.
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TITLE III—WHITE MOUNTAIN APACHE TRIBE WATER RIGHTS
QUANTIFICATION
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Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
301.
302.
303.
304.
305.
306.
307.
308.
309.
310.
311.
312.
313.
314.
Short title.
Purposes.
Definitions.
Approval of Agreement.
Water rights.
Contract.
Authorization of WMAT rural water system.
Satisfaction of claims.
Waivers and releases of claims.
White Mountain Apache Tribe Water Rights Settlement Subaccount.
Miscellaneous provisions.
Funding.
Antideficiency.
Compliance with environmental laws.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
401.
402.
403.
404.
405.
406.
407.
408.
409.
410.
411.
412.
413.
TITLE IV—CROW TRIBE WATER RIGHTS SETTLEMENT
Short title.
Purposes.
Definitions.
Ratification of Compact.
Rehabilitation and improvement of Crow Irrigation Project.
Design and construction of MR&I System.
Tribal water rights.
Storage allocation from Bighorn Lake.
Satisfaction of claims.
Waivers and releases of claims.
Crow Settlement Fund.
Yellowtail Dam, Montana.
Miscellaneous provisions.
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PUBLIC LAW 111–291—DEC. 8, 2010
124 STAT. 3065
Sec. 414. Funding.
Sec. 415. Repeal on failure to meet enforceability date.
Sec. 416. Antideficiency.
TITLE V—TAOS PUEBLO INDIAN WATER RIGHTS
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
501.
502.
503.
504.
505.
506.
507.
508.
509.
510.
511.
512.
513.
Short title.
Purposes.
Definitions.
Pueblo rights.
Taos Pueblo Water Development Fund.
Marketing.
Mutual-Benefit Projects.
San Juan-Chama Project contracts.
Authorizations, ratifications, confirmations, and conditions precedent.
Waivers and releases of claims.
Interpretation and enforcement.
Disclaimer.
Antideficiency.
TITLE VI—AAMODT LITIGATION SETTLEMENT
Sec. 601. Short title.
Sec. 602. Definitions.
Subtitle A—Pojoaque Basin Regional Water System
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
611.
612.
613.
614.
615.
616.
617.
Authorization of Regional Water System.
Operating Agreement.
Acquisition of Pueblo water supply for Regional Water System.
Delivery and allocation of Regional Water System capacity and water.
Aamodt Settlement Pueblos’ Fund.
Environmental compliance.
Funding.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
621.
622.
623.
624.
625.
626.
Settlement Agreement and contract approval.
Environmental compliance.
Conditions precedent and enforcement date.
Waivers and releases of claims.
Effect.
Antideficiency.
Subtitle B—Pojoaque Basin Indian Water Rights Settlement
TITLE VII—RECLAMATION WATER SETTLEMENTS FUND
Sec. 701. Mandatory appropriation.
TITLE VIII—GENERAL PROVISIONS
Subtitle A—Unemployment Compensation Program Integrity
Sec. 801. Collection of past-due, legally enforceable State debts.
Sec. 802. Reporting of first day of earnings to directory of new hires.
Subtitle B—TANF
Sec. 811. Extension of the Temporary Assistance for Needy Families program.
Sec. 812. Modifications to TANF data reporting.
Subtitle C—Customs User Fees; Continued Dumping and Subsidy Offset
Sec. 821. Customs user fees.
Sec. 822. Limitation on distributions relating to repeal of continued dumping and
subsidy offset.
Subtitle D—Emergency Fund for Indian Safety and Health
Sec. 831. Emergency Fund for Indian Safety and Health.
Subtitle E—Rescission of Funds From WIC Program
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Sec. 841. Rescission of funds from WIC program.
Subtitle F—Budgetary Effects
Sec. 851. Budgetary effects.
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PUBLIC LAW 111–291—DEC. 8, 2010
TITLE I—INDIVIDUAL INDIAN MONEY
ACCOUNT LITIGATION SETTLEMENT
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SEC. 101. INDIVIDUAL INDIAN MONEY ACCOUNT LITIGATION SETTLEMENT.
(a) DEFINITIONS.—In this section:
(1) AGREEMENT ON ATTORNEYS’ FEES, EXPENSES, AND
COSTS.—The term ‘‘Agreement on Attorneys’ Fees, Expenses,
and Costs’’ means the agreement dated December 7, 2009,
between Class Counsel (as defined in the Settlement) and the
Defendants (as defined in the Settlement) relating to attorneys’
fees, expenses, and costs incurred by Class Counsel in connection with the Litigation and implementation of the Settlement,
as modified by the parties to the Litigation.
(2) AMENDED COMPLAINT.—The term ‘‘Amended Complaint’’
means the Amended Complaint attached to the Settlement.
(3) FINAL APPROVAL.—The term ‘‘final approval’’ has the
meaning given the term in the Settlement.
(4) LAND CONSOLIDATION PROGRAM.—The term ‘‘Land
Consolidation Program’’ means a program conducted in accordance with the Settlement, the Indian Land Consolidation Act
(25 U.S.C. 2201 et seq.), and subsection (e)(2) under which
the Secretary may purchase fractional interests in trust or
restricted land.
(5) LITIGATION.—The term ‘‘Litigation’’ means the case entitled Elouise Cobell et al. v. Ken Salazar et al., United States
District Court, District of Columbia, Civil Action No. 96–1285
(TFH).
(6) PLAINTIFF.—The term ‘‘Plaintiff’’ means a member of
any class certified in the Litigation.
(7) SECRETARY.—The term ‘‘Secretary’’ means the Secretary
of the Interior.
(8) SETTLEMENT.—The term ‘‘Settlement’’ means the Class
Action Settlement Agreement dated December 7, 2009, in the
Litigation, as modified by the parties to the Litigation.
(9) TRUST ADMINISTRATION ADJUSTMENT FUND.—The term
‘‘Trust Administration Adjustment Fund’’ means the
$100,000,000 deposited in the Settlement Account (as defined
in the Settlement) pursuant to subsection (j)(1) for use in
making the adjustments authorized by that subsection.
(10) TRUST ADMINISTRATION CLASS.—The term ‘‘Trust
Administration Class’’ means the Trust Administration Class
as defined in the Settlement.
(b) PURPOSE.—The purpose of this section is to authorize the
Settlement.
(c) AUTHORIZATION.—
(1) IN GENERAL.—The Settlement is authorized, ratified,
and confirmed.
(2) AMENDMENTS.—Any amendment to the Settlement is
authorized, ratified, and confirmed, to the extent that such
amendment is executed to make the Settlement consistent with
this section.
(d) JURISDICTIONAL PROVISIONS.—
(1) IN GENERAL.—Notwithstanding the limitation on the
jurisdiction of the district courts of the United States in section
1346(a)(2) of title 28, United States Code, the United States
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PUBLIC LAW 111–291—DEC. 8, 2010
124 STAT. 3067
District Court for the District of Columbia shall have jurisdiction of the claims asserted in the Amended Complaint for
purposes of the Settlement.
(2) CERTIFICATION OF TRUST ADMINISTRATION CLASS.—
(A) IN GENERAL.—Notwithstanding the requirements
of the Federal Rules of Civil Procedure, the court in the
Litigation may certify the Trust Administration Class.
(B) TREATMENT.—On certification under subparagraph
(A), the Trust Administration Class shall be treated as
a class certified under rule 23(b)(3) of the Federal Rules
of Civil Procedure for purposes of the Settlement.
(e) TRUST LAND CONSOLIDATION.—
(1) TRUST LAND CONSOLIDATION FUND.—
(A) ESTABLISHMENT.—On final approval of the Settlement, there shall be established in the Treasury of the
United States a fund, to be known as the ‘‘Trust Land
Consolidation Fund’’.
(B) AVAILABILITY OF AMOUNTS.—Amounts in the Trust
Land Consolidation Fund shall be made available to the
Secretary during the 10-year period beginning on the date
of final approval of the Settlement—
(i) to conduct the Land Consolidation Program;
and
(ii) for other costs specified in the Settlement.
(C) DEPOSITS.—
(i) IN GENERAL.—On final approval of the Settlement, the Secretary of the Treasury shall deposit in
the Trust Land Consolidation Fund $1,900,000,000 out
of the amounts appropriated to pay final judgments,
awards, and compromise settlements under section
1304 of title 31, United States Code.
(ii) CONDITIONS MET.—The conditions described in
section 1304 of title 31, United States Code, shall
be deemed to be met for purposes of clause (i).
(D) TRANSFERS.—In a manner designed to encourage
participation in the Land Consolidation Program, the Secretary may transfer, at the discretion of the Secretary,
not more than $60,000,000 of amounts in the Trust Land
Consolidation Fund to the Indian Education Scholarship
Holding Fund established under paragraph (3).
(2) OPERATION.—The Secretary shall consult with Indian
tribes to identify fractional interests within the respective jurisdictions of the Indian tribes for purchase in a manner that
is consistent with the priorities of the Secretary.
(3) INDIAN EDUCATION SCHOLARSHIP HOLDING FUND.—
(A) ESTABLISHMENT.—On final approval of the Settlement, there shall be established in the Treasury of the
United States a fund, to be known as the ‘‘Indian Education
Scholarship Holding Fund’’.
(B) AVAILABILITY.—Notwithstanding any other provision of law governing competition, public notification, or
Federal procurement or assistance, amounts in the Indian
Education Scholarship Holding Fund shall be made available, without further appropriation, to the Secretary to
contribute to an Indian Education Scholarship Fund, as
described in the Settlement, to provide scholarships for
Native Americans.
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Consultation.
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Determination.
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PUBLIC LAW 111–291—DEC. 8, 2010
(4) ACQUISITION OF TRUST OR RESTRICTED LAND.—The Secretary may acquire, at the discretion of the Secretary and
in accordance with the Land Consolidation Program, any fractional interest in trust or restricted land.
(5) TREATMENT OF UNLOCATABLE PLAINTIFFS.—A Plaintiff,
the whereabouts of whom are unknown and who, after reasonable efforts by the Secretary, cannot be located during the
5-year period beginning on the date of final approval of the
Settlement, shall be considered to have accepted an offer made
pursuant to the Land Consolidation Program.
(f) TAXATION AND OTHER BENEFITS.—
(1) INTERNAL REVENUE CODE.—For purposes of the Internal
Revenue Code of 1986, amounts received by an individual
Indian as a lump sum or a periodic payment pursuant to
the Settlement shall not be—
(A) included in gross income; or
(B) taken into consideration for purposes of applying
any provision of the Internal Revenue Code that takes
into account excludable income in computing adjusted gross
income or modified adjusted gross income, including section
86 of that Code (relating to Social Security and tier 1
railroad retirement benefits).
(2) OTHER BENEFITS.—Notwithstanding any other provision
of law, for purposes of determining initial eligibility, ongoing
eligibility, or level of benefits under any Federal or federally
assisted program, amounts received by an individual Indian
as a lump sum or a periodic payment pursuant to the Settlement shall not be treated for any household member, during
the 1-year period beginning on the date of receipt—
(A) as income for the month during which the amounts
were received; or
(B) as a resource.
(g) INCENTIVE AWARDS AND AWARD OF ATTORNEYS’ FEES,
EXPENSES, AND COSTS UNDER SETTLEMENT AGREEMENT.—
(1) IN GENERAL.—Subject to paragraph (3), the court in
the Litigation shall determine the amount to which the Plaintiffs in the Litigation may be entitled for incentive awards
and for attorneys’ fees, expenses, and costs—
(A) in accordance with controlling law, including, with
respect to attorneys’ fees, expenses, and costs, any
applicable rule of law requiring counsel to produce contemporaneous time, expense, and cost records in support of
a motion for such fees, expenses, and costs; and
(B) giving due consideration to the special status of
Class Members (as defined in the Settlement) as beneficiaries of a federally created and administered trust.
(2) NOTICE OF AGREEMENT ON ATTORNEYS’ FEES, EXPENSES,
AND COSTS.—The description of the request of Class Counsel
for an amount of attorneys’ fees, expenses, and costs required
under paragraph C.1.d. of the Settlement shall include a
description of all material provisions of the Agreement on Attorneys’ Fees, Expenses, and Costs.
(3) EFFECT ON AGREEMENT.—Nothing in this subsection
limits or otherwise affects the enforceability of the Agreement
on Attorneys’ Fees, Expenses, and Costs.
(h) SELECTION OF QUALIFYING BANK.—The United States District Court for the District of Columbia, in exercising the discretion
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PUBLIC LAW 111–291—DEC. 8, 2010
124 STAT. 3069
of the Court to approve the selection of any proposed Qualifying
Bank (as defined in the Settlement) under paragraph A.1. of the
Settlement, may consider any factors or circumstances regarding
the proposed Qualifying Bank that the Court determines to be
appropriate to protect the rights and interests of Class Members
(as defined in the Settlement) in the amounts to be deposited
in the Settlement Account (as defined in the Settlement).
(i) APPOINTEES TO SPECIAL BOARD OF TRUSTEES.—The 2 members of the special board of trustees to be selected by the Secretary
under paragraph G.3. of the Settlement shall be selected only
after consultation with, and after considering the names of possible
candidates timely offered by, federally recognized Indian tribes.
(j) TRUST ADMINISTRATION CLASS ADJUSTMENTS.—
(1) FUNDS.—
(A) IN GENERAL.—In addition to the amounts deposited
pursuant to paragraph E.2. of the Settlement, on final
approval, the Secretary of the Treasury shall deposit in
the Trust Administration Adjustment Fund of the Settlement Account (as defined in the Settlement) $100,000,000
out of the amounts appropriated to pay final judgments,
awards, and compromise settlements under section 1304
of title 31, United States Code, to be allocated and paid
by the Claims Administrator (as defined in the Settlement
and pursuant to paragraph E.1.e of the Settlement) in
accordance with this subsection.
(B) CONDITIONS MET.—The conditions described in section 1304 of title 31, United States Code, shall be deemed
to be met for purposes of subparagraph (A).
(2) ADJUSTMENT.—
(A) IN GENERAL.—After the calculation of the pro rata
share in Section E.4.b of the Settlement, the Trust Administration Adjustment Fund shall be used to increase the
minimum payment to each Trust Administration Class
Member whose pro rata share is—
(i) zero; or
(ii) greater than zero, but who would, after adjustment under this subparagraph, otherwise receive a
smaller Stage 2 payment than those Trust Administration Class Members described in clause (i).
(B) RESULT.—The amounts in the Trust Administration
Adjustment Fund shall be applied in such a manner as
to ensure, to the extent practicable (as determined by the
court in the Litigation), that each Trust Administration
Class Member receiving amounts from the Trust Administration Adjustment Fund receives the same total payment
under Stage 2 of the Settlement after making the adjustments required by this subsection.
(3) TIMING OF PAYMENTS.—The payments authorized by
this subsection shall be included with the Stage 2 payments
under paragraph E.4. of the Settlement.
(k) EFFECT OF ADJUSTMENT PROVISIONS.—Notwithstanding any
provision of this section, in the event that a court determines
that the application of subsection (j) is unfair to the Trust Administration Class—
(1) subsection (j) shall not go into effect; and
(2) on final approval of the Settlement, in addition to
the amounts deposited into the Trust Land Consolidation Fund
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PUBLIC LAW 111–291—DEC. 8, 2010
pursuant to subsection (e), the Secretary of the Treasury shall
deposit in that Fund $100,000,000 out of amounts appropriated
to pay final judgments, awards, and compromise settlements
under section 1304 of title 31, United States Code (the conditions of which section shall be deemed to be met for purposes
of this paragraph) to be used by the Secretary in accordance
with subsection (e).
TITLE
II—FINAL
SETTLEMENT
OF
CLAIMS FROM IN RE BLACK FARMERS
DISCRIMINATION LITIGATION
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SEC. 201. APPROPRIATION OF FUNDS FOR FINAL SETTLEMENT OF
CLAIMS FROM IN RE BLACK FARMERS DISCRIMINATION
LITIGATION.
(a) DEFINITIONS.—In this section:
(1) SETTLEMENT AGREEMENT.—The term ‘‘Settlement Agreement’’ means the settlement agreement dated February 18,
2010 (including any modifications agreed to by the parties
and approved by the court under that agreement) between
certain plaintiffs, by and through their counsel, and the Secretary of Agriculture to resolve, fully and forever, the claims
raised or that could have been raised in the cases consolidated
in In re Black Farmers Discrimination Litigation, Misc. No.
08–mc–0511 (PLF), including Pigford claims asserted under
section 14012 of the Food, Conservation, and Energy Act of
2008 (Public Law 110–246; 122 Stat. 2209).
(2) PIGFORD CLAIM.—The term ‘‘Pigford claim’’ has the
meaning given that term in section 14012(a)(3) of the Food,
Conservation, and Energy Act of 2008 (Public Law 110–246;
122 Stat. 2210).
(b) APPROPRIATION OF FUNDS.—There is appropriated to the
Secretary of Agriculture $1,150,000,000, to remain available until
expended, to carry out the terms of the Settlement Agreement
if the Settlement Agreement is approved by a court order that
is or becomes final and nonappealable, and the court finds that
the Settlement Agreement is modified to incorporate the additional
terms contained in subsection (g). The funds appropriated by this
subsection are in addition to the $100,000,000 of funds of the
Commodity Credit Corporation made available by section 14012(i)
of the Food, Conservation, and Energy Act of 2008 (Public Law
110–246; 122 Stat. 2212) and shall be available for obligation only
after those Commodity Credit Corporation funds are fully obligated.
If the Settlement Agreement is not approved as provided in this
subsection, the $100,000,000 of funds of the Commodity Credit
Corporation made available by section 14012(i) of the Food, Conservation, and Energy Act of 2008 shall be the sole funding available
for Pigford claims.
(c) USE OF FUNDS.—The use of the funds appropriated by
subsection (b) shall be subject to the express terms of the Settlement
Agreement.
(d) TREATMENT OF REMAINING FUNDS.—If any of the funds
appropriated by subsection (b) are not obligated and expended to
carry out the Settlement Agreement, the Secretary of Agriculture
shall return the unused funds to the Treasury and may not make
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PUBLIC LAW 111–291—DEC. 8, 2010
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the unused funds available for any purpose related to section 14012
of the Food, Conservation, and Energy Act of 2008, for any other
settlement agreement executed in In re Black Farmers Discrimination Litigation, No. 08–511 (D.D.C.), or for any other purpose.
(e) RULES OF CONSTRUCTION.—Nothing in this section shall
be construed as requiring the United States, any of its officers
or agencies, or any other party to enter into the Settlement Agreement or any other settlement agreement. Nothing in this section
shall be construed as creating the basis for a Pigford claim.
(f) CONFORMING AMENDMENTS.—Section 14012 of the Food,
Conservation, and Energy Act of 2008 (Public Law 110–246; 122
Stat. 2209) is amended—
(1) in subsection (c)(1)—
(A) by striking ‘‘subsection (h)’’ and inserting ‘‘subsection (g)’’; and
(B) by striking ‘‘subsection (i)’’ and inserting ‘‘subsection (h)’’;
(2) by striking subsection (e);
(3) in subsection (g), by striking ‘‘subsection (f)’’ and
inserting ‘‘subsection (e)’’;
(4) in subsection (i)—
(A) by striking ‘‘(1) IN GENERAL.—Of the funds’’ and
inserting ‘‘Of the funds’’;
(B) by striking paragraph (2); and
(C) by striking ‘‘subsection (g)’’ and inserting ‘‘subsection (f)’’;
(5) by striking subsection (j); and
(6) by redesignating subsections (f), (g), (h), (i), and (k)
as subsections (e), (f), (g), (h), and (i), respectively.
(g) ADDITIONAL SETTLEMENT TERMS.—For the purposes of this
section and funding for the Settlement Agreement, the following
are additional terms:
(1) DEFINITIONS.—In this subsection:
(A) SETTLEMENT AGREEMENT.—The term ‘‘Settlement
Agreement’’ means the settlement, including any modifications agreed to by the parties and approved by the court,
between the Secretary of Agriculture and certain plaintiffs,
by and through their counsel in litigation titled Black
Farmers Discrimination Litigation, Misc. No. 08–mc–0511
(PLF).
(B) NEUTRAL ADJUDICATOR.—
(i) IN GENERAL.—The term ‘‘Neutral Adjudicator’’
means a Track A Neutral or a Track B Neutral as
those terms are defined in the Settlement Agreement,
who have been hired by Lead Class Counsel as that
term is defined in the Settlement Agreement.
(ii) REQUIREMENT.—The Track A and B Neutrals
called for in the Settlement Agreement shall be
approved by the Secretary of the United States Department of Agriculture, the Attorney General, and the
court.
(2) OATH.—Every Neutral Adjudicator shall take an oath
administered by the court prior to hearing claims.
(3) ADDITIONAL DOCUMENTATION OR EVIDENCE.—Any Neutral Adjudicator may, during the course of hearing claims,
require claimants to provide additional documentation and evidence if, in the Neutral Adjudicator’s judgment, the additional
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124 STAT. 3072
PUBLIC LAW 111–291—DEC. 8, 2010
documentation and evidence would be necessary or helpful in
deciding the merits of the claim, or if the adjudicator suspects
fraud regarding the claim.
(4) ATTORNEYS FEES, EXPENSES, AND COSTS.—
(A) IN GENERAL.—Subject to subparagraph (B) and the
provisions of the Settlement Agreement regarding attorneys’ fee caps and maximum and minimum percentages
for awards of attorneys fees, the court shall make any
determination as to the amount of attorneys’ fees, expenses,
and costs in accordance with controlling law, including,
with respect to attorneys’ fees, expenses, and costs, any
applicable rule of law requiring counsel to produce contemporaneous time, expenses, and cost records in support of
a motion for such fees, expenses, and costs.
(B) EFFECT ON AGREEMENT.—Nothing in this paragraph limits or otherwise affects the enforceability of provisions regarding attorneys’ fees, expenses, and costs that
may be contained in the Settlement Agreement.
(5) CERTIFICATION.—An attorney filing a claim on behalf
of a claimant shall swear, under penalty of perjury, that: ‘‘to
the best of the attorney’s knowledge, information, and belief
formed after an inquiry reasonable under the circumstances,
the claim is supported by existing law and the factual contentions have evidentiary support’’.
(6) DISTRIBUTION OF CLAIMS DETERMINATIONS AND SETTLEMENT FUNDS.—In order to ensure full transparency of the
administration of claims under the Settlement Agreement, the
Claims Administrator as that term is defined in the Settlement
Agreement, shall provide to the Secretary of Agriculture, the
Inspector General of the Department of Agriculture, the
Attorney General, and Lead Class Counsel as that term is
defined in the Settlement Agreement, all information regarding
Distribution of Claims Determinations and Settlement Funds
described in the Settlement Agreement.
(h) REPORTS.—
(1) GOVERNMENT ACCOUNTABILITY OFFICE.—
(A) IN GENERAL.—The Comptroller General of the
United States shall evaluate the internal controls
(including internal controls concerning fraud and abuse)
created to carry out the terms of the Settlement Agreement,
and report to the Congress at least 2 times throughout
the duration of the claims adjudication process on the
results of this evaluation.
(B) ACCESS TO INFORMATION.—Solely for purposes of
conducting the evaluation under subparagraph (A), the
Comptroller General shall have access, upon request, to
the claims administrator, the claims adjudicators, and
related officials, appointed in connection with the aforementioned settlement, and to any information and records generated, used, or received by them, including names and
addresses.
(2) USDA INSPECTOR GENERAL.—
(A) PERFORMANCE AUDIT.—The Inspector General of
the Department of Agriculture shall, within 180 days of
the initial adjudication of claims, and subsequently as
appropriate, perform a performance audit based on a statistical sampling of adjudicated claims.
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PUBLIC LAW 111–291—DEC. 8, 2010
124 STAT. 3073
(B) AUDIT RECIPIENTS.—The audits described in clause
(i) shall be provided to Secretary of Agriculture and the
Attorney General.
TITLE III—WHITE MOUNTAIN APACHE
TRIBE WATER RIGHTS QUANTIFICATION
White Mountain
Apache Tribe
Water Rights
Quantification
Act of 2010.
SEC. 301. SHORT TITLE.
This title may be cited as the ‘‘White Mountain Apache Tribe
Water Rights Quantification Act of 2010’’.
SEC. 302. PURPOSES.
The purposes of this title are—
(1) to authorize, ratify, and confirm the Agreement;
(2) to authorize and direct the Secretary to execute the
Agreement and take any other action necessary to carry out
all obligations of the Secretary under the Agreement in accordance with this title;
(3) to authorize the amounts necessary for the United
States to meet the obligations of the United States under the
Agreement and this title; and
(4) to permanently resolve certain damage claims and all
water rights claims among—
(A) the Tribe and its members;
(B) the United States, acting as trustee for the Tribe
and its members;
(C) the parties to the Agreement; and
(D) all other claimants seeking to determine the nature
and extent of the water rights of the Tribe, its members,
the United States, acting as trustee for the Tribe and
its members, and other claimants in—
(i) the consolidated civil action in the Superior
Court of the State of Arizona 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–1 (Salt), W–2 (Verde), W–3 (Upper Gila), W–4 (San
Pedro); and
(ii) the civil action pending in the Superior Court
of the State of Arizona for the County of Apache styled
In re the General Adjudication of All Rights to Use
Water in the Little Colorado River System and Source
and numbered CIV–6417.
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SEC. 303. DEFINITIONS.
In this title:
(1) AGREEMENT.—The term ‘‘Agreement’’ means—
(A) the WMAT Water Rights Quantification Agreement
dated January 13, 2009; and
(B) any amendment or exhibit (including exhibit
amendments) to that Agreement that are—
(i) made in accordance with this title; or
(ii) otherwise approved by the Secretary.
(2) BUREAU.—The term ‘‘Bureau’’ means the Bureau of
Reclamation.
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PUBLIC LAW 111–291—DEC. 8, 2010
(3) CAP.—The term ‘‘CAP’’ 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.).
(4) CAP CONTRACTOR.—The term ‘‘CAP contractor’’ means
an individual 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.
(5) CAP FIXED OM&R CHARGE.—The term ‘‘CAP fixed OM&R
charge’’ has the meaning given the term in the repayment
stipulation.
(6) CAP M&I PRIORITY WATER.—The term ‘‘CAP M&I priority water’’ means the CAP water having a municipal and
industrial delivery priority under the repayment contract.
(7) CAP SUBCONTRACTOR.—The term ‘‘CAP subcontractor’’
means an individual or entity that has entered into a longterm subcontract (as that term is used in the repayment stipulation) with the United States and the District for the delivery
of water through the CAP system.
(8) CAP SYSTEM.—The term ‘‘CAP system’’ means—
(A) the Mark Wilmer Pumping Plant;
(B) the Hayden-Rhodes Aqueduct;
(C) the Fannin-McFarland Aqueduct;
(D) the Tucson Aqueduct;
(E) any pumping plant or appurtenant works of a
feature described in any of subparagraphs (A) through
(D); and
(F) any extension of, addition to, or replacement for
a feature described in any of subparagraphs (A) through
(E).
(9) CAP WATER.—The term ‘‘CAP water’’ means ‘‘Project
Water’’ (as that term is defined in the repayment stipulation).
(10) CONTRACT.—The term ‘‘Contract’’ means—
(A) the proposed contract between the Tribe and the
United States attached as exhibit 7.1 to the Agreement
and numbered 08–XX–30–W0529; and
(B) any amendments to that contract.
(11) DISTRICT.—The term ‘‘District’’ means the Central
Arizona Water Conservation District, a political subdivision
of the State that is the contractor under the repayment contract.
(12) ENFORCEABILITY DATE.—The term ‘‘enforceability date’’
means the date described in section 309(d)(1).
(13) INDIAN TRIBE.—The term ‘‘Indian tribe’’ has the
meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b).
(14) INJURY TO WATER RIGHTS.—
(A) IN GENERAL.—The term ‘‘injury to water rights’’
means an interference with, diminution of, or deprivation
of, a water right under Federal, State, or other law.
(B) INCLUSIONS.—The term ‘‘injury to water rights’’
includes—
(i) a change in the groundwater table; and
(ii) any effect of such a change.
(C) EXCLUSION.—The term ‘‘injury to water rights’’ does
not include any injury to water quality.
(15) LOWER COLORADO RIVER BASIN DEVELOPMENT FUND.—
The term ‘‘Lower Colorado River Basin Development Fund’’
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means the fund established by section 403 of the Colorado
River Basin Project Act (43 U.S.C. 1543).
(16) OFF-RESERVATION TRUST LAND.—The term ‘‘off-reservation trust land’’ means land—
(A) located outside the exterior boundaries of the reservation that is held in trust by the United States for
the benefit of the Tribe as of the enforceability date; and
(B) depicted on the map attached to the Agreement
as exhibit 2.57.
(17) OPERATING AGENCY.—The term ‘‘Operating Agency’’
means the 1 or more entities authorized to assume responsibility for the care, operation, maintenance, and replacement
of the CAP system.
(18) REPAYMENT CONTRACT.—The term ‘‘repayment contract’’ means—
(A) the contract between the United States and the
District for delivery of water and repayment of the costs
of the CAP, numbered 14–06–W–245 (Amendment No. 1),
and dated December 1, 1988; and
(B) any amendment to, or revision of, that contract.
(19) REPAYMENT STIPULATION.—The term ‘‘repayment
stipulation’’ means the stipulated judgment and the stipulation
for judgment (including any exhibits to those documents)
entered on November 21, 2007, in the United States District
Court for the District of Arizona in the consolidated civil action
styled Central Arizona Water Conservation District v. United
States, et al., and numbered CIV 95–625–TUC–WDB (EHC)
and CIV 95–1720–PHX–EHC.
(20) RESERVATION.—
(A) IN GENERAL.—The term ‘‘reservation’’ means the
land within the exterior boundary of the White Mountain
Indian Reservation established by the Executive order
dated November 9, 1871, as modified by subsequent Executive orders and Acts of Congress—
(i) known on the date of enactment of this Act
as the ‘‘Fort Apache Reservation’’ pursuant to chapter
3 of the Act of June 7, 1897 (30 Stat. 62); and
(ii) generally depicted on the map attached to the
Agreement as exhibit 2.81.
(B) NO EFFECT ON DISPUTE OR AS ADMISSION.—The
depiction of the reservation described in subparagraph
(A)(ii) shall not—
(i) be used to affect any dispute between the Tribe
and the United States concerning the legal boundary
of the reservation; or
(ii) constitute an admission by the Tribe with
regard to any dispute between the Tribe and the United
States concerning the legal boundary of the reservation.
(21) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of the Interior.
(22) STATE.—The term ‘‘State’’ means the State of Arizona.
(23) TRIBAL CAP WATER.—The term ‘‘tribal CAP water’’
means the CAP water to which the Tribe is entitled pursuant
to the Contract.
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PUBLIC LAW 111–291—DEC. 8, 2010
(24) TRIBAL WATER RIGHTS.—The term ‘‘tribal water rights’’
means the water rights of the Tribe described in paragraph
4.0 of the Agreement.
(25) TRIBE.—The term ‘‘Tribe’’ means the White Mountain
Apache Tribe organized under section 16 of the Act of June
18, 1934 (commonly known as the ‘‘Indian Reorganization Act’’)
(25 U.S.C. 476).
(26) WATER RIGHT.—The term ‘‘water right’’ means any
right in or to groundwater, surface water, or effluent under
Federal, State, or other law.
(27) WMAT RURAL WATER SYSTEM.—The term ‘‘WMAT rural
water system’’ means the municipal, rural, and industrial water
diversion, storage, and delivery system described in section
307.
(28) YEAR.—The term ‘‘year’’ means a calendar year.
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SEC. 304. APPROVAL OF AGREEMENT.
(a) APPROVAL.—
(1) IN GENERAL.—Except to the extent that any provision
of the Agreement conflicts with a provision of this title, the
Agreement is authorized, ratified, and confirmed.
(2) AMENDMENTS.—Any amendment to the Agreement is
authorized, ratified, and confirmed, to the extent that such
amendment is executed to make the Agreement consistent with
this title.
(b) EXECUTION OF AGREEMENT.—
(1) IN GENERAL.—To the extent that the Agreement does
not conflict with this title, the Secretary shall promptly—
(A) execute the Agreement, including all exhibits to
the Agreement requiring the signature of the Secretary;
and
(B) in accordance with the Agreement, execute any
amendment to the Agreement, including any amendment
to any exhibit to the Agreement requiring the signature
of the Secretary, that is not inconsistent with this title;
and
(2) DISCRETION OF THE SECRETARY.—The Secretary may
execute any other amendment to the Agreement, including
any amendment to any exhibit to the Agreement requiring
the signature of the Secretary, that is not inconsistent with
this title if the amendment does not require congressional
approval pursuant to the Trade and Intercourse Act (25 U.S.C.
177) or other applicable Federal law (including regulations).
(c) NATIONAL ENVIRONMENTAL POLICY ACT.—
(1) ENVIRONMENTAL COMPLIANCE.—In implementing the
Agreement and carrying out this title, the Secretary shall
promptly comply with all applicable requirements of—
(A) the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.);
(B) the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.);
(C) all other applicable Federal environmental laws;
and
(D) all regulations promulgated under the laws
described in subparagraphs (A) through (C).
(2) EXECUTION OF AGREEMENT.—
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(A) IN GENERAL.—Execution of the Agreement by the
Secretary under this section shall not constitute a major
Federal action under the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et seq.).
(B) ENVIRONMENTAL COMPLIANCE.—The Secretary shall
carry out all necessary environmental compliance activities
required by Federal law in implementing the Agreement.
(3) LEAD AGENCY.—The Bureau shall serve as the lead
agency with respect to ensuring environmental compliance associated with the WMAT rural water system.
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SEC. 305. WATER RIGHTS.
(a) TREATMENT OF TRIBAL WATER RIGHTS.—The tribal water
rights—
(1) shall be held in trust by the United States on behalf
of the Tribe; and
(2) shall not be subject to forfeiture or abandonment.
(b) REALLOCATION.—
(1) IN GENERAL.—In accordance with this title and the
Agreement, the Secretary shall reallocate to the Tribe, and
offer to enter into a contract with the Tribe for the delivery
in accordance with this section of—
(A) an entitlement to 23,782 acre-feet per year of CAP
water that has a non-Indian agricultural delivery priority
(as defined in the Contract) in accordance with section
104(a)(1)(A)(iii) of the Arizona Water Settlements Act
(Public Law 108–451; 118 Stat. 3488), of which—
(i) 3,750 acre-feet per year shall be firmed by the
United States for the benefit of the Tribe for the 100year period beginning on January 1, 2008, with priority
equivalent to CAP M&I priority water, in accordance
with section 105(b)(1)(B) of that Act (118 Stat. 3492);
and
(ii) 3,750 acre-feet per year shall be firmed by
the State for the benefit of the Tribe for the 100year period beginning on January 1, 2008, with priority
equivalent to CAP M&I priority water, in accordance
with section 105(b)(2)(B) of that Act (118 Stat. 3492);
and
(B) an entitlement to 1,218 acre-feet per year of the
water—
(i) acquired by the Secretary through the permanent relinquishment of the Harquahala Valley Irrigation District CAP subcontract entitlement in accordance with the contract numbered 3–07–30–W0290
among the District, Harquahala Valley Irrigation District, and the United States; and
(ii) converted to CAP Indian Priority water (as
defined in the Contract) pursuant to the Fort McDowell
Indian Community Water Rights Settlement Act of
1990 (Public Law 101–628; 104 Stat. 4480).
(2) AUTHORITY OF TRIBE.—Subject to approval by the Secretary under section 306(a)(1), the Tribe shall have the sole
authority to lease, distribute, exchange, or allocate the tribal
CAP water described in paragraph (1).
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(c) WATER SERVICE CAPITAL CHARGES.—The Tribe shall not
be responsible for any water service capital charge for tribal CAP
water.
(d) ALLOCATION AND REPAYMENT.—For the purpose of determining the allocation and repayment of costs of any stage of the
CAP constructed after November 21, 2007, the costs associated
with the delivery of water described in subsection (b), regardless
of whether the water is delivered for use by the Tribe or in accordance with any assignment, exchange, lease, option to lease, or
other agreement for the temporary disposition of water entered
into by the Tribe, shall be—
(1) nonreimbursable; and
(2) excluded from the repayment obligation of the District.
(e) WATER CODE.—Not later than 18 months after the enforceability date, the Tribe shall enact a water code that—
(1) governs the tribal water rights; and
(2) includes, at a minimum—
(A) provisions requiring the measurement, calculation,
and recording of all diversions and depletions of water
on the reservation and on off-reservation trust land;
(B) terms of a water conservation plan, including objectives, conservation measures, and an implementation
timeline;
(C) provisions requiring the approval of the Tribe for
the severance and transfer of rights to the use of water
from historically irrigated land identified in paragraph
11.3.2.1 of the Agreement to diversions and depletions on
other non-historically irrigated land not located on the
watershed of the same water source; and
(D) provisions requiring the authorization of the Tribe
for all diversions of water on the reservation and on offreservation trust land by any individual or entity other
than the Tribe.
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SEC. 306. CONTRACT.
(a) IN GENERAL.—The Secretary shall enter into the Contract,
in accordance with the Agreement, to provide, among other things,
that—
(1) the Tribe, on approval of the Secretary, may—
(A) enter into contracts or options to lease, contracts
to exchange, or options to exchange tribal CAP water in
Maricopa, Pinal, Pima, and Yavapai Counties in the State
providing for the temporary delivery to any individual or
entity of any portion of the tribal CAP water, subject to
the condition that—
(i) the term of the contract or option to lease
shall not be longer than 100 years;
(ii) the contracts or options to exchange shall be
for the term provided in the contract or option; and
(iii) a lease or option to lease providing for the
temporary delivery of tribal CAP water shall require
the lessee to pay to the Operating Agency all CAP
fixed OM&R charges and all CAP pumping energy
charges (as defined in the repayment stipulation) associated with the leased water; and
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PUBLIC LAW 111–291—DEC. 8, 2010
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(B) renegotiate any lease at any time during the term
of the lease, subject to the condition that the term of
the renegotiated lease shall not exceed 100 years;
(2) no portion of the tribal CAP water may be permanently
alienated;
(3)(A) the Tribe (and not the United States in any capacity)
shall be entitled to all consideration due to the Tribe under
any contract or option to lease or exchange tribal CAP water
entered into by the Tribe; and
(B) the United States (in any capacity) has no trust or
other obligation to monitor, administer, or account for, in any
manner—
(i) any funds received by the Tribe as consideration
under a contract or option to lease or exchange tribal
CAP water; or
(ii) the expenditure of those funds;
(4)(A) all tribal CAP water shall be delivered through the
CAP system; and
(B) if the delivery capacity of the CAP system is significantly reduced or anticipated to be significantly reduced for
an extended period of time, the Tribe shall have the same
CAP delivery rights as a CAP contractor or CAP subcontractor
that is allowed to take delivery of water other than through
the CAP system;
(5) the Tribe may use tribal CAP water on or off the
reservation for any purpose;
(6) as authorized by subsection (f)(2)(A) of section 403 of
the Colorado River Basin Project Act (43 U.S.C. 1543) and
to the extent that funds are available in the Lower Colorado
River Basin Development Fund established by subsection (a)
of that section, the United States shall pay to the Operating
Agency the CAP fixed OM&R charges associated with the
delivery of tribal CAP water (except in the case of tribal CAP
water leased by any individual or entity);
(7) the Secretary shall waive the right of the Secretary
to capture all return flow from project exchange water flowing
from the exterior boundary of the reservation; and
(8) no CAP water service capital charge shall be due or
payable for the tribal CAP water, regardless of whether the
water is delivered for use by the Tribe or pursuant to a contract
or option to lease or exchange tribal CAP water entered into
by the Tribe.
(b) REQUIREMENTS.—The Contract shall be—
(1) for permanent service (within the meaning of section
5 of the Boulder Canyon Project Act (43 U.S.C. 617d)); and
(2) without limit as to term.
(c) RATIFICATION.—
(1) IN GENERAL.—Except to the extent that any provision
of the Contract conflicts with a provision of this title, the
Contract is authorized, ratified, and confirmed.
(2) AMENDMENTS.—Any amendment to the Contract is
authorized, ratified, and confirmed, to the extent that such
amendment is executed to make the Contract consistent with
this title.
(d) EXECUTION OF CONTRACT.—To the extent that the Contract
does not conflict with this title, the Secretary shall execute the
Contract.
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(e) PAYMENT OF CHARGES.—The Tribe, and any recipient of
tribal CAP water through a contract or option to lease or exchange,
shall not be obligated to pay a water service capital charge or
any other charge, payment, or fee for CAP water, except as provided
in an applicable lease or exchange agreement.
(f) PROHIBITIONS.—
(1) USE OUTSIDE STATE.—No tribal CAP water may be
leased, exchanged, forborne, or otherwise transferred by the
Tribe in any way for use directly or indirectly outside the
State.
(2) USE OFF RESERVATION.—Except as authorized by this
section and paragraph 4.7 of the Agreement, no tribal water
rights under this title may be sold, leased, transferred, or
used outside the boundaries of the reservation or off-reservation
trust land other than pursuant to an exchange.
(3) AGREEMENTS WITH ARIZONA WATER BANKING
AUTHORITY.—Nothing in this title or the Agreement limits the
right of the Tribe to enter into an agreement with the Arizona
Water Banking Authority (or any successor entity) established
by section 45–2421 of the Arizona Revised Statutes in accordance with State law.
(g) LEASES.—
(1) IN GENERAL.—To the extent that the leases of tribal
CAP Water by the Tribe to the District and to any of the
cities in the State, attached as exhibits to the Agreement,
are not in conflict with the provisions of this title—
(A) those leases are authorized, ratified, and confirmed;
and
(B) the Secretary shall execute the leases.
(2) AMENDMENTS.—To the extent that amendments are
executed to make the leases described in paragraph (1) consistent with this title, those amendments are authorized, ratified, and confirmed.
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SEC. 307. AUTHORIZATION OF WMAT RURAL WATER SYSTEM.
(a) IN GENERAL.—Consistent with subsections (a) and (e) of
section 312 and subsection (h) of this section, the Secretary, acting
through the Bureau, shall plan, design, and construct the WMAT
rural water system to divert, store, and distribute water from
the North Fork of the White River to the Tribe that shall consist
of—
(1) a dam and storage reservoir, pumping plant, and treatment facilities located along the North Fork of the White River
near the community of Whiteriver;
(2) a distribution system consisting of pipelines extending
from the treatment facilities to existing water distribution systems serving the communities of Whiteriver, Fort Apache,
Canyon Day, Cedar Creek, Carrizo, and Cibecue;
(3) connections to existing distribution facilities for the
communities described in paragraph (2), but not including any
upgrades of, or improvements to, existing or future public water
systems for the communities described in paragraph (2) that
may be necessary to accommodate increased demand and flow
rates (and any associated changes in water quality);
(4) connections to additional communities along the pipeline, provided that the additional connections may be added
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PUBLIC LAW 111–291—DEC. 8, 2010
124 STAT. 3081
to the distribution system described in paragraph (2) at the
expense of the Tribe;
(5) appurtenant buildings and access roads;
(6) electrical power transmission and distribution facilities
necessary for operation of the project; and
(7) any other project components that the Secretary, in
consultation with the Tribe, determines to be necessary.
(b) MODIFICATIONS.—The Secretary and the Tribe—
(1) may modify the components of the WMAT rural water
system described in subsection (a) by mutual agreement; and
(2) shall make all modifications required under subsection
(c)(2).
(c) FINAL PROJECT DESIGN.—
(1) IN GENERAL.—The Secretary shall issue a final project
design of the WMAT rural water system, including the dam,
pumping plants, pipeline, and treatment plant, that is generally
consistent with the project extension report dated February
2007 after the completion of—
(A) any appropriate environmental compliance activity;
and
(B) the review process described in paragraph (2).
(2) REVIEW.—
(A) IN GENERAL.—The Secretary shall review the proposed design of the WMAT rural water system and perform
value engineering analyses.
(B) RESULTS.—Taking into consideration the review
under subparagraph (A), the Secretary, in consultation with
the Tribe, shall require appropriate changes to the design,
so that the final design—
(i) meets Bureau of Reclamation design standards;
(ii) to the maximum extent practicable, incorporates any changes that would improve the costeffectiveness of the delivery of water through the
WMAT rural water system; and
(iii) may be constructed for the amounts made
available under section 312.
(d) CONVEYANCE OF TITLE.—
(1) IN GENERAL.—Title to the WMAT rural water system
shall be held by the United States until title to the WMAT
rural water system is conveyed by the Secretary to the Tribe
pursuant to paragraph (2).
(2) CONVEYANCE TO TRIBE.—The Secretary shall convey
to the Tribe title to the WMAT rural water system not later
than 30 days after the date on which the Secretary publishes
in the Federal Register a statement of findings that—
(A) the operating criteria, standing operating procedures, emergency action plan, and first filling and monitoring criteria of the designers have been established and
are in place;
(B) the WMAT rural water system has operated under
the standing operating procedures of the designers, with
the participation of the Tribe, for a period of 3 years;
(C) the Secretary has provided the Tribe with technical
assistance on the manner by which to operate and maintain
the WMAT rural water system;
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(D) the funds made available under section 312(b)(3)(B)
have been deposited in the WMAT Maintenance Fund;
and
(E) the WMAT rural water system—
(i) is substantially complete, as determined by the
Secretary; and
(ii) satisfies the requirement that—
(I) the infrastructure constructed is capable
of storing, diverting, treating, transmitting, and
distributing a supply of water as set forth in the
final project design described in subsection (c); and
(II) the Secretary has consulted with the Tribe
regarding the proposed finding that the WMAT
rural water system is substantially complete.
(e) ALIENATION AND TAXATION.—
(1) IN GENERAL.—Conveyance of title to the Tribe pursuant
to subsection (d) does not waive or alter any applicable Federal
law (including regulations) prohibiting alienation or taxation
of the WMAT rural water system or the underlying reservation
land.
(2) ALIENATION OF WMAT RURAL WATER SYSTEM.—The
WMAT rural water system, including the components of the
WMAT rural water system, shall not be alienated, encumbered,
or conveyed in any manner by the Tribe, unless a reconveyance
is authorized by an Act of Congress enacted after the date
of enactment of this Act.
(f) OPERATION AND MAINTENANCE.—
(1) IN GENERAL.—Consistent with subsections (d) and (e)
of section 312, the Secretary, acting through the Bureau and
in cooperation with the Tribe, shall operate, maintain, and
replace the WMAT rural water system until the date on which
title to the WMAT rural water system is transferred to the
Tribe pursuant to subsection (d)(2).
(2) LIMITATION.—
(A) IN GENERAL.—Beginning on the date on which title
to the WMAT rural water system is transferred to the
Tribe pursuant to subsection (d)(2), the United States shall
have no obligation to pay for the operation, maintenance,
or replacement costs of the WMAT rural water system.
(B) LIMITATION ON LIABILITY.—Effective on the date
on which the Secretary publishes a statement of findings
in the Federal Register pursuant to subsection (d)(2), the
United States shall not be held liable by any court for
damages arising out of any act, omission, or occurrence
relating to the land or facilities conveyed, other than damages caused by any intentional act or act of negligence
committed by the United States, or by employees or agents
of the United States, prior to the date on which the Secretary publishes a statement of findings in the Federal
Register pursuant to subsection (d)(2).
(g) RIGHT TO REVIEW.—
(1) IN GENERAL.—The statement of findings published by
the Secretary pursuant to subsection (d)(2) shall be considered
to be a final agency action subject to judicial review under
sections 701 through 706 of title 5, United States Code.
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(2) EFFECT OF TITLE.—Nothing in this title gives the Tribe
or any other party the right to judicial review of the determination by the Secretary under subsection (d) except under subchapter II of chapter 5, and chapter 7, of title 5, United States
Code (commonly known as the ‘‘Administrative Procedure Act’’).
(h) APPLICABILITY OF ISDEAA.—
(1) AGREEMENT FOR SPECIFIC ACTIVITIES.—On receipt of
a request of the Tribe, and in accordance with the Indian
Self-Determination and Education Assistance Act (25 U.S.C.
450 et seq.), the Secretary shall enter into 1 or more agreements
with the Tribe to carry out the activities authorized by this
section.
(2) CONTRACTS.—Any contract entered into pursuant to
the Indian Self-Determination and Education Assistance Act
(25 U.S.C. 450 et seq.) for the purpose of carrying out any
provision of this title shall incorporate such provisions
regarding periodic payment of funds, timing for use of funds,
transparency, oversight, reporting, and accountability as the
Secretary determines to be necessary (at the sole discretion
of the Secretary) to ensure appropriate stewardship of Federal
funds.
(i) FINAL DESIGNS; PROJECT CONSTRUCTION.—
(1) FINAL DESIGNS.—All designs for the WMAT rural water
system shall—
(A) conform to Bureau design standards; and
(B) be subject to review and approval by the Secretary.
(2) PROJECT CONSTRUCTION.—Each project component of
the WMAT rural water system shall be constructed pursuant
to designs and specifications approved by the Secretary, and
all construction work shall be subject to inspection and approval
by the Secretary.
(j) CONDITION.—As a condition of construction of the facilities
authorized by this section, the Tribe shall provide, at no cost to
the Secretary, all land or interests in land that the Secretary
identifies as necessary for the construction, operation, and maintenance of those facilities.
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SEC. 308. SATISFACTION OF CLAIMS.
(a) IN GENERAL.—Except as set forth in the Agreement, the
benefits realized by the Tribe and its members under this title
shall be in full satisfaction of all claims of the Tribe, its members,
and the United States, acting as trustee for the benefit of the
Tribe and its members, for water rights and injury to water rights
under Federal, State, or other law with respect to the reservation
and off-reservation trust land.
(b) USES OF WATER.—All uses of water on land outside of
the reservation, if and when that land is subsequently and finally
determined to be part of the reservation through resolution of
any dispute between the Tribe and the United States over the
location of the reservation boundary, and any fee land within the
reservation placed into trust and made part of the reservation,
shall be subject to the maximum annual diversion amounts and
the maximum annual depletion amounts specified in the Agreement.
(c) NO RECOGNITION OF WATER RIGHTS.—Notwithstanding subsection (a), nothing in this title recognizes or establishes any right
of a member of the Tribe to water on the reservation.
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PUBLIC LAW 111–291—DEC. 8, 2010
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SEC. 309. WAIVERS AND RELEASES OF CLAIMS.
(a) IN GENERAL.—–
(1) CLAIMS AGAINST THE STATE AND OTHERS.—Except for
the specifically retained claims described in subsection (b)(1),
the Tribe, on behalf of itself and its members, and the United
States, acting in its capacity as trustee for the Tribe and
its members, as part of the performance of the respective obligations of the United States and the Tribe under the 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 all—
(A)(i) past, present, and future claims for water rights
for the reservation and off-reservation trust 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 Tribe,
its members, or their predecessors;
(B)(i) past and present claims for injury to water rights
for the reservation and off-reservation trust land 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 occupancy of land by
the Tribe, its members, or their predecessors; and
(iii) claims for injury to water rights arising after the
enforceability date for the reservation and off-reservation
trust land resulting from off-reservation diversion or use
of water in a manner that is not in violation of the Agreement or State law; and
(C) past, present, and future claims arising out of,
or relating in any manner to, the negotiation, execution,
or adoption of the Agreement, an applicable settlement
judgement or decree, or this title.
(2) CLAIMS AGAINST TRIBE.—Except for the specifically
retained claims described in subsection (b)(3), the United
States, in all capacities (except as trustee for an Indian tribe
other than the Tribe), as part of the performance of its obligations under the Agreement, is authorized to execute a waiver
and release of any and all claims against the Tribe, its members, or any agency, official, or employee of the Tribe, under
Federal, State, or any other law for all—
(A) past and present claims for injury to water rights
resulting from the diversion or use of water on the reservation and on off-reservation trust land arising from time
immemorial through the enforceability date;
(B) claims for injury to water rights arising after the
enforceability date resulting from the diversion or use of
water on the reservation and on off-reservation trust land
in a manner that is not in violation of the Agreement;
and
(C) past, present, and future claims arising out of
or related in any manner to the negotiation, execution,
or adoption of the Agreement, an applicable settlement
judgement or decree, or this title.
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PUBLIC LAW 111–291—DEC. 8, 2010
124 STAT. 3085
(3) CLAIMS AGAINST UNITED STATES.—Except for the specifically retained claims described in subsection (b)(2), the Tribe,
on behalf of itself and its members, as part of the performance
of the obligations of the Tribe under the Agreement, is authorized to execute a waiver and release of any claim against
the United States, including agencies, officials, or employees
of the United States (except in the capacity of the United
States as trustee for other Indian tribes), under Federal, State,
or other law for any and all—
(A)(i) past, present, and future claims for water rights
for the reservation and off-reservation trust 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 Tribe,
its members, or their predecessors;
(B)(i) past and present claims relating in any manner
to damages, losses, or injuries to water, water rights, land,
or other resources due to loss of water or water rights
(including damages, losses, or injuries to hunting, fishing,
gathering, or cultural rights due to loss of water or water
rights, claims relating to interference with, diversion, or
taking of water, or claims relating to failure to protect,
acquire, or develop water, water rights, or water infrastructure) within the reservation and off-reservation trust land
that first accrued at any time prior to 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 occupancy of land by
the Tribe, its members, or their predecessors; and
(iii) claims for injury to water rights arising after the
enforceability date for the reservation and off-reservation
trust land resulting from the off-reservation diversion or
use of water in a manner that is not in violation of the
Agreement or applicable law;
(C) past, present, and future claims arising out of,
or relating in any manner to, the negotiation, execution,
or adoption of the Agreement, an applicable settlement
judgment or decree, or this title;
(D) past and present claims relating in any manner
to pending litigation of claims relating to the water rights
of the Tribe for the reservation and off-reservation trust
land;
(E) past and present claims relating to the operation,
maintenance, and replacement of existing irrigation systems on the reservation constructed prior to the enforceability date that first accrued at any time prior to the
enforceability date, which waiver shall only become effective on the full appropriation and payment to the Tribe
of $4,950,000 of the amounts made available under section
312(b)(2)(B);
(F) any claims relating to operation, maintenance, and
replacement of the WMAT rural water system, which
waiver shall only become effective on the date on which
funds are made available under section 312(b)(3)(B) and
deposited in the WMAT Maintenance Fund;
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124 STAT. 3086
PUBLIC LAW 111–291—DEC. 8, 2010
(G) past and present breach of trust and negligence
claims for damage to the land and natural resources of
the Tribe caused by riparian and other vegetative manipulation by the United States for the purpose of increasing
water runoff from the reservation that first accrued at
any time prior to the enforceability date; and
(H) past and present claims for trespass, use, and
occupancy of the reservation in, on, and along the Black
River that first accrued at any time prior to the enforceability date.
(4) EFFECT ON BOUNDARY CLAIMS.—Nothing in this title
expands, diminishes, or impacts any claims the Tribe may
assert, or any defense the United States may assert, concerning
title to land outside the most current survey, as of the date
of enactment of this Act, of the northern boundary of the
reservation.
(b) RESERVATION OF RIGHTS AND RETENTION OF CLAIMS.—
(1) RESERVATION OF RIGHTS AND RETENTION OF CLAIMS
BY TRIBE AND UNITED STATES.—
(A) IN GENERAL.—Notwithstanding the waiver and
release of claims authorized under subsection (a)(1), the
Tribe, on behalf of itself and its members, and the United
States, acting as trustee for the Tribe and its members,
shall retain any right—
(i) subject to subparagraph 16.9 of the Agreement,
to assert claims for injuries to, and seek enforcement
of, the rights of the Tribe and its members under
the Agreement or this title in any Federal or State
court of competent jurisdiction;
(ii) to assert claims for injuries to, and seek
enforcement of, the rights of the Tribe under the judgment and decree entered by the court in the Gila
River adjudication proceedings;
(iii) to assert claims for injuries to, and seek
enforcement of, the rights of the Tribe under the judgment and decree entered by the court in the Little
Colorado River adjudication proceedings;
(iv) to object to any claims by or for any other
Indian tribe, Indian community or nation, or dependent
Indian community, or the United States on behalf of
such a tribe, community, or nation;
(v) to participate in the Gila River adjudication
proceedings and the Little Colorado River adjudication
proceedings to the extent provided in subparagraph
14.1 of the Agreement;
(vi) to assert any claims arising after the enforceability date for injury to water rights not specifically
waived under this section;
(vii) to assert any past, present, or future claim
for injury to water rights against any other Indian
tribe, Indian community or nation, dependent Indian
community, allottee, or the United States on behalf
of such a tribe, community, nation, or allottee;
(viii) to assert any past, present, or future claim
for trespass, use, and occupancy of the reservation
in, on, or along the Black River against Freeport-
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PUBLIC LAW 111–291—DEC. 8, 2010
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McMoRan Copper & Gold, Inc., Phelps Dodge Corporation, or Phelps Dodge Morenci, Inc. (or a predecessor
or successor of those entities), including all subsidiaries
and affiliates of those entities; and
(ix) to assert claims arising after the enforceability
date for injury to water rights resulting from the
pumping of water from land located within national
forest land as of the date of the Agreement in the
south 1⁄2 of T. 9 N., R. 24 E., the south 1⁄2 of T.
9 N., R. 25 E., the north 1⁄2 of T. 8 N., R. 24 E.,
or the north 1⁄2 of T. 8 N., R. 25 E., if water from
the land is used on the land or is transported off
the land for municipal, commercial, or industrial use.
(B) AGREEMENT.—On terms acceptable to the Tribe
and the United States, the Tribe and the United States
are authorized to enter into an agreement with FreeportMcMoRan Copper & Gold, Inc., Phelps Dodge Corporation,
or Phelps Dodge Morenci, Inc. (or a predecessor or successor
of those entities), including all subsidiaries and affiliates
of those entities, to resolve the claims of the Tribe relating
to the trespass, use, and occupancy of the reservation in,
on, and along the Black River.
(2) RESERVATION OF RIGHTS AND RETENTION OF CLAIMS
BY TRIBE AGAINST UNITED STATES.—Notwithstanding the waiver
and release of claims authorized under subsection (a)(3), the
Tribe, on behalf of itself and its members, shall retain any
right—
(A) subject to subparagraph 16.9 of the Agreement,
to assert claims for injuries to, and seek enforcement of,
the rights of the Tribe and its members under the Agreement or this title, in any Federal or State court of competent jurisdiction;
(B) to assert claims for injuries to, and seek enforcement of, the rights of the Tribe and members under the
judgment and decree entered by the court in the Gila
River adjudication proceedings;
(C) to assert claims for injuries to, and seek enforcement of, the rights of the Tribe and members under the
judgment and decree entered by the court in the Little
Colorado River adjudication proceedings;
(D) to object to any claims by or for any other Indian
tribe, Indian community or nation, or dependent Indian
community, or the United States on behalf of such a tribe,
community, or nation;
(E) to assert past, present, or future claims for injury
to water rights or any other claims other than a claim
to water rights, against any other Indian tribe, Indian
community or nation, or dependent Indian community, or
the United States on behalf of such a tribe, community,
or nation;
(F) to assert claims arising after the enforceability
date for injury to water rights resulting from the pumping
of water from land located within national forest land
as of the date of the Agreement in the south 1⁄2 of T.
9 N., R. 24 E., the south 1⁄2 of T. 9 N., R. 25 E., the
north 1⁄2 of T. 8 N., R. 24 E., or the north 1⁄2 of T. 8
N., R. 25 E., if water from that land is used on the land
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or is transported off the land for municipal, commercial,
or industrial use;
(G) to assert any claims arising after the enforceability
date for injury to water rights not specifically waived under
this section;
(H) to seek remedies and to assert any other claims
not specifically waived under this section; and
(I) to assert any claim arising after the enforceability
date for a future taking by the United States of reservation
land, off-reservation trust land, or any property rights
appurtenant to that land, including any water rights set
forth in paragraph 4.0 of the Agreement.
(3) RESERVATION OF RIGHTS AND RETENTION OF CLAIMS
BY UNITED STATES.—Notwithstanding the waiver and release
of claims authorized under subsection (a)(2), the United States
shall retain any right to assert any claim not specifically waived
in that subsection.
(c) EFFECTIVENESS OF WAIVER AND RELEASES.—Except as otherwise specifically provided in subparagraphs (E) and (F) of subsection
(a)(3), the waivers and releases under subsection (a) shall become
effective on the enforceability date.
(d) 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)(i) to the extent that the Agreement conflicts with
this title, the Agreement has been revised through an
amendment to eliminate the conflict; and
(ii) the Agreement, as so revised, has been executed
by the Secretary, the Tribe, and the Governor of the State;
(B) the Secretary has fulfilled the requirements of sections 305 and 306;
(C) the amount made available under section 312(a)
has been deposited in the White Mountain Apache Tribe
Water Rights Settlement Subaccount;
(D) the State funds described in subparagraph 13.3
of the Agreement have been deposited in the White Mountain Apache Tribe Water Rights Settlement Subaccount;
(E) the Secretary has issued a record of decision
approving the construction of the WMAT rural water
system in a configuration substantially similar to that
described in section 307;
(F) the judgments and decrees substantially in the
form of those attached to the Agreement as exhibits 12.9.6.1
and 12.9.6.2 have been approved by the respective trial
courts; and
(G) the waivers and releases authorized and set forth
in subsection (a) have been executed by the Tribe and
the Secretary.
(2) FAILURE OF ENFORCEABILITY DATE TO OCCUR.—If the
Secretary does not publish a statement of findings under paragraph (1) by April 30, 2021—
(A) this title is repealed effective May 1, 2021, and
any activity by the Secretary to carry out this title shall
cease;
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(B) any amounts made available under section 312
shall immediately revert to the general fund of the
Treasury;
(C) any other amounts deposited in the White Mountain Apache Tribe Water Rights Settlement Subaccount
(including any amounts paid by the State in accordance
with the Agreement), together with any interest accrued
on those amounts, shall immediately be returned to the
respective sources of those funds; and
(D) the Tribe and its members, and the United States,
acting as trustee for the Tribe and its members, shall
retain the right to assert past, present, and future water
rights claims and claims for injury to water rights for
the reservation and off-reservation trust land.
(3) NO ADDITIONAL RIGHTS TO WATER.—Beginning on the
enforceability date, all land held by the United States in trust
for the Tribe and its members shall have no rights to water
other than those specifically quantified for the Tribe and the
United States, acting as trustee for the Tribe and its members,
for the reservation and off-reservation trust land pursuant to
paragraph 4.0 of the Agreement.
(e) UNITED STATES ENFORCEMENT AUTHORITY.—Nothing in this
title or the Agreement affects any right of the United States to
take any action, including environmental actions, under any laws
(including regulations and the common law) relating to human
health, safety, or the environment.
(f) NO EFFECT ON WATER RIGHTS.—Except as provided in paragraphs (1)(A)(ii), (1)(B)(ii), (3)(A)(ii), and (3)(B)(ii) of subsection (a),
nothing in this title affects any rights to water of the Tribe, its
members, or the United States, acting as trustee for the Tribe
and its members, for land outside the boundaries of the reservation
or the off-reservation trust land.
(g) ENTITLEMENTS.—Any entitlement to water of the Tribe,
its members, or the United States, acting as trustee for the Tribe
and its members, relating to the reservation or off-reservation trust
land shall be satisfied from the water resources granted, quantified,
confirmed, or recognized with respect to the Tribe, its members,
and the United States by the Agreement and this title.
(h) OBJECTION PROHIBITED.—Except as provided in paragraphs
(1)(A)(ix) and (2)(F) of subsection (b), the Tribe and the United
States, acting as trustee for the Tribe shall not—
(1) object to the use of any well located outside the boundaries of the reservation or the off-reservation trust land in
existence on the enforceability date; or
(2) object to, dispute, or challenge after the enforceability
date the drilling of any well or the withdrawal and use of
water from any well in the Little Colorado River adjudication
proceedings, the Gila River adjudication proceedings, or any
other judicial or administrative proceeding.
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SEC. 310. WHITE MOUNTAIN APACHE TRIBE WATER RIGHTS SETTLEMENT SUBACCOUNT.
(a) ESTABLISHMENT.—There is established in the Lower Colorado River Basin Development Fund a subaccount to be known
as the ‘‘White Mountain Apache Tribe Water Rights Settlement
Subaccount’’, consisting of—
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(1) the amounts deposited in the subaccount pursuant to
section 312(a); and
(2) such other amounts as are available, including the
amounts provided in subparagraph 13.3 of the Agreement.
(b) USE OF FUNDS.—
(1) IN GENERAL.—Subject to paragraph (2), the Secretary
shall use amounts from the White Mountain Apache Tribe
Water Rights Settlement Subaccount for the planning, design,
and construction of the WMAT rural water system, in accordance with section 307(a).
(2) REQUIREMENTS.—In carrying out the activities described
in paragraph (1), the Secretary shall use such sums as are
necessary from the White Mountain Apache Tribe Water Rights
Settlement Subaccount—
(A) to provide the Bureau with amounts sufficient to
carry out oversight of the planning, design, and construction of the WMAT rural water system;
(B) to repay to the Treasury (or the United States)
any outstanding balance on the loan authorized by the
White Mountain Apache Tribe Rural Water System Loan
Authorization Act (Public Law 110–390; 122 Stat. 4191),
after which repayment, the Tribe shall have no further
liability for the balance on that loan; and
(C) to carry out all required environmental compliance
activities associated with the planning, design, and
construction of the WMAT rural water system.
(c) ISDEAA CONTRACT.—
(1) IN GENERAL.—If the Tribe so requests, the planning,
design, and construction of the WMAT rural water system
shall be carried out pursuant to the terms of an agreement
or agreements entered into under section 307(h).
(2) ENFORCEMENT.—The Secretary may pursue any judicial
remedies and carry out any administrative actions that are
necessary to enforce an agreement described in paragraph (1)
to ensure that amounts in the White Mountain Apache Tribe
Water Rights Settlement Subaccount are used in accordance
with this section.
(d) PROHIBITION ON PER CAPITA DISTRIBUTIONS.—No amount
of the principal, or the interest or income accruing on the principal,
of the White Mountain Apache Tribe Water Rights Settlement
Subaccount shall be distributed to any member of the Tribe on
a per capita basis.
(e) AVAILABILITY OF FUNDS.—
(1) IN GENERAL.—Amounts in the White Mountain Apache
Tribe Water Rights Settlement Subaccount shall not be available for expenditure by the Secretary until the enforceability
date.
(2) INVESTMENT.—The Secretary shall invest the amounts
in the White Mountain Apache Tribe Water Rights Settlement
Subaccount in accordance with section 403(f)(4) of the Colorado
River Basin Project Act (43 U.S.C. 1543(f)(4)).
(3) USE OF INTEREST.—The interest accrued on amounts
invested under paragraph (2) shall not be available for expenditure or withdrawal until the enforceability date.
SEC. 311. MISCELLANEOUS PROVISIONS.
(a) LIMITED WAIVER OF SOVEREIGN IMMUNITY.—
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PUBLIC LAW 111–291—DEC. 8, 2010
124 STAT. 3091
(1) IN GENERAL.—In the case of a civil action described
in paragraph (2)—
(A) the United States or the Tribe, or both, may be
joined in the civil action; and
(B) any claim by the United States or the Tribe to
sovereign immunity from the civil action is waived for
the sole purpose of resolving any issue regarding the
interpretation or enforcement of this title or the Agreement.
(2) DESCRIPTION OF CIVIL ACTION.—A civil action referred
to in paragraph (1) is a civil action filed—
(A) by any party to the Agreement or signatory to
an exhibit to the Agreement in a United States or State
court that—
(i) relates solely and directly to the interpretation
or enforcement of this title or the Agreement; and
(ii) names as a party the United States or the
Tribe; or
(B) by a landowner or water user in the Gila River
basin or Little Colorado River basin in the State that—
(i) relates solely and directly to the interpretation
or enforcement of section 309 of this title and paragraph 12.0 of the Agreement; and
(ii) names as a party the United States or the
Tribe.
(b) EFFECT OF TITLE.—Nothing in this title quantifies or otherwise affects any water right or claim or entitlement to water of
any Indian tribe, band, or community other than the Tribe.
(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 amount paid to the Tribe by any party to
the Agreement other than the United States; or
(B) to review or approve the expenditure of those funds.
(2) INDEMNIFICATION.—The Tribe shall indemnify the
United States, and hold the United States harmless, with
respect to any claim (including claims for takings or breach
of trust) arising out of the receipt or expenditure of funds
described in paragraph (1)(A).
(d) APPLICABILITY OF RECLAMATION REFORM ACT.—The Reclamation Reform Act of 1982 (43 U.S.C. 390aa et seq.) and any
other acreage limitation or full-cost pricing provision under Federal
law shall not apply to any individual, entity, or land solely on
the basis of—
(1) receipt of any benefit under this title;
(2) the execution or performance of the Agreement; or
(3) the use, storage, delivery, lease, or exchange of CAP
water.
(e) SECRETARIAL POWER SITES.—The portions of the following
named secretarial power site reserves that are located on the Fort
Apache Indian Reservation or the San Carlos Apache Reservation,
as applicable, shall be transferred and restored into the name
of the Tribe or the San Carlos Apache Tribe, respectively:
(1) Lower Black River (T. 3 N., R. 26 E.; T. 3 N., R.
27 E.).
(2) Black River Pumps (T. 2 N., R. 25 E.; T. 2 N., R.
26 E.; T. 3 N., R. 26 E.).
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124 STAT. 3092
PUBLIC LAW 111–291—DEC. 8, 2010
(3) Carrizo (T. 4 N., R. 20 E.; T. 4 N., R. 21 E.; T. 41⁄2
N., R. 19 E.; T. 41⁄2 N., R. 20 E.; T. 41⁄2 N., R. 21 E.; T.
5 N., R. 19 E.).
(4) Knob (T. 5 N., R. 18 E.; T. 5 N., R. 19 E.).
(5) Walnut Canyon (T. 5 N., R. 17 E.; T. 5 N., R. 18
E.).
(6) Gleason Flat (T. 41⁄2 N., R. 16 E.; T. 5 N., R. 16
E.).
(f) NO EFFECT ON FUTURE ALLOCATIONS.—Water received under
a lease or exchange of tribal CAP water under this title shall
not affect any future allocation or reallocation of CAP water by
the Secretary.
(g) AFTER-ACQUIRED TRUST LAND.—
(1) REQUIREMENT OF ACT OF CONGRESS.—
(A) LEGAL TITLE.—Subject to subparagraph (B), after
the enforceability date, if the Tribe seeks 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 Tribe, the Tribe
may do so only pursuant to an Act of Congress specifically
authorizing the transfer for the benefit of the Tribe.
(B) EXCEPTIONS.—Subparagraph (A) shall not apply
to—
(i) the restoration of land to the reservation subsequently and finally determined to be part of the reservation through resolution of any dispute between
the Tribe and the United States over the location of
the reservation boundary, unless required by Federal
law; or
(ii) off-reservation trust land acquired prior to
January 1, 2008.
(2) WATER RIGHTS.—
(A) IN GENERAL.—After-acquired trust land that is
located outside the reservation shall not include federally
reserved rights to surface water or groundwater.
(B) RESTORED LAND.—Land that is restored to the reservation as the result of the resolution of any reservation
boundary dispute between the Tribe and the United States,
or any fee simple land within the reservation that is placed
into trust, shall have water rights pursuant to section
308(b).
(3) ACCEPTANCE OF LAND IN TRUST STATUS.—
(A) IN GENERAL.—If the Tribe acquires legal fee title
to land that is located within the exterior boundaries of
the reservation, the Secretary shall accept the land in
trust status for the benefit of the Tribe in accordance
with applicable Federal law (including regulations) for such
real estate acquisitions.
(B) RESERVATION STATUS.—Land held in trust by the
Secretary under subparagraph (A), or restored to the reservation as a result of resolution of a boundary dispute
between the Tribe and the United States, shall be deemed
to be part of the reservation.
(h) CONFORMING AMENDMENT.—Section 3(b)(2) of the White
Mountain Apache Tribe Rural Water System Loan Authorization
Act (Public Law 110–390; 122 Stat. 4191) is amended by striking
‘‘January 1, 2013’’ and inserting ‘‘May 1, 2021’’.
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SEC. 312. FUNDING.
(a) RURAL WATER SYSTEM.—
(1) MANDATORY APPROPRIATIONS.—Subject to paragraph (2),
out of any funds in the Treasury not otherwise appropriated,
the Secretary of the Treasury shall transfer to the Secretary
to carry out the planning, engineering, design, environmental
compliance, and construction of the WMAT rural water system
$126,193,000.
(2) INCLUSIONS.—The amount made available under paragraph (1) shall include such sums as are necessary, but not
to exceed 4 percent of the construction contract costs, for the
Bureau to carry out oversight of activities for planning, design,
environmental compliance, and construction of the rural water
system.
(b) WMAT SETTLEMENT AND MAINTENANCE FUNDS.—
(1) DEFINITION OF FUNDS.—In this subsection, the term
‘‘Funds’’ means—
(A) the WMAT Settlement Fund established by paragraph (2)(A); and
(B) the WMAT Maintenance Fund established by paragraph (3)(A).
(2) WMAT SETTLEMENT FUND.—
(A) ESTABLISHMENT.—There is established in the
Treasury of the United States a fund to be known as
the ‘‘WMAT Settlement Fund’’, to be administered by the
Secretary, consisting of the amounts deposited in the fund
under subparagraph (B), together with any interest accrued
on those amounts, for use by the Tribe in accordance with
subparagraph (C).
(B) TRANSFERS TO FUND.—
(i) IN GENERAL.—There are authorized to be appropriated to the Secretary for deposit in the WMAT
Settlement Fund—
(I) $78,500,000; and
(II) any additional amounts described in clause
(ii), if applicable.
(ii) AUTHORIZATION OF ADDITIONAL AMOUNTS.—In
accordance with subsection (e)(4)(B), if the WMAT
rural water system is conveyed to the Tribe before
the date on which the $35,000,000 described in subsection (e)(2) is completely made available, there is
authorized to be appropriated to the Secretary, for
deposit in the WMAT Settlement Fund, any remaining
amounts that would otherwise have been made available for expenditure from the Cost Overrun Subaccount.
(C) USE OF FUNDS.—
(i) IN GENERAL.—The Tribe shall use amounts in
the WMAT Settlement Fund for any of the following
purposes:
(I) Fish production, including hatcheries.
(II) Rehabilitation of recreational lakes and
existing irrigation systems.
(III) Water-related economic development
projects.
(IV) Protection, restoration, and economic
development of forest and watershed health.
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124 STAT. 3094
PUBLIC LAW 111–291—DEC. 8, 2010
(ii) EXISTING IRRIGATION SYSTEMS.—Of the
amounts deposited in the Fund under subparagraph
(B), not less than $4,950,000 shall be used for the
rehabilitation of existing irrigation systems.
(3) WMAT MAINTENANCE FUND.—
(A) ESTABLISHMENT.—There is established in the
Treasury of the United States a fund to be known as
the ‘‘WMAT Maintenance Fund’’, to be administered by
the Secretary, consisting of the amounts deposited in the
fund under subparagraph (B), together with any interest
accrued on those amounts, for use by the Tribe in accordance with subparagraph (C).
(B) MANDATORY APPROPRIATIONS.—Out of any funds
in the Treasury not otherwise appropriated, the Secretary
of the Treasury shall transfer to the Secretary $50,000,000
for deposit in the WMAT Maintenance Fund.
(C) USE OF FUNDS.—The Tribe shall use amounts in
the WMAT Maintenance Fund only for the operation,
maintenance, and replacement costs associated with the
delivery of water through the WMAT rural water system.
(4) ADMINISTRATION.—The Secretary shall manage the
Funds in accordance with the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4001 et seq.),
including by investing amounts in the Funds in accordance
with—
(A) the Act of April 1, 1880 (25 U.S.C. 161); and
(B) the first section of the Act of June 24, 1938 (25
U.S.C. 162a).
(5) AVAILABILITY OF AMOUNTS FROM FUNDS.—Amounts in
the Funds shall be available for expenditure or withdrawal
only after the enforceability date and in accordance with subsection (f).
(6) EXPENDITURE AND WITHDRAWAL.—
(A) TRIBAL MANAGEMENT PLAN.—
(i) IN GENERAL.—The Tribe may withdraw all or
part of the amounts in the Funds on approval by
the Secretary of a tribal management plan, as
described in the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.).
(ii) REQUIREMENTS.—In addition to the requirements under the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.),
a tribal management plan under this subparagraph
shall require the Tribe to use any amounts withdrawn
from the Funds in accordance with paragraph (2)(C)
or (3)(C), as applicable.
(iii) ENFORCEMENT.—The Secretary may take
judicial or administrative action to enforce the provisions of a tribal management plan described in clause
(i) to ensure that any amounts withdrawn from the
Funds under the tribal management plan are used
in accordance with this title and the Agreement.
(iv) LIABILITY.—If the Tribe exercises the right
to withdraw amounts from the Funds, neither the Secretary nor the Secretary of the Treasury shall retain
any liability for the expenditure or investment of the
amounts.
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PUBLIC LAW 111–291—DEC. 8, 2010
124 STAT. 3095
(B) EXPENDITURE PLAN.—
(i) IN GENERAL.—The Tribe shall submit to the
Secretary for approval an expenditure plan for any
portion of the amounts in the Funds that the Tribe
does not withdraw under the tribal management plan.
(ii) DESCRIPTION.—The expenditure plan shall
describe the manner in which, and the purposes for
which, amounts remaining in the Funds will be used.
(iii) APPROVAL.—On receipt of an expenditure plan
under clause (i), the Secretary shall approve the plan,
if the Secretary determines that the plan is reasonable
and consistent with this title and the Agreement.
(iv) ANNUAL REPORT.—For each of the Funds, the
Tribe shall submit to the Secretary an annual report
that describes all expenditures from the Fund during
the year covered by the report.
(C) CERTAIN PER CAPITA DISTRIBUTIONS PROHIBITED.—
No amount in the Funds shall be distributed to any member
of the Tribe on a per capita basis.
(c) COST INDEXING.—All amounts made available under subsections (a), (b), and (e) shall be adjusted as necessary to reflect
the changes since October 1, 2007, in the construction cost indices
applicable to the types of construction involved in the construction
of the WMAT rural water supply system, the maintenance of the
rural water supply system, and the construction or rehabilitation
of the other development projects described in subsection (b)(2)(C).
(d) OPERATION, MAINTENANCE, AND REPLACEMENT.—Out of any
funds in the Treasury not otherwise appropriated, the Secretary
of the Treasury shall transfer to the Secretary $2,500,000 for the
operation, maintenance, and replacement costs of the WMAT rural
water system, to remain available until the conditions described
in section 307(f) have been met.
(e) COST OVERRUN SUBACCOUNT.—
(1) ESTABLISHMENT.—There is established in the Lower
Colorado River Basin Development Fund a subaccount to be
known as the ‘‘WMAT Cost Overrun Subaccount’’, to be
administered by the Secretary, consisting of the amounts deposited in the subaccount under paragraph (2), together with any
interest accrued on those amounts, for use by the Secretary
in accordance with paragraph (4).
(2) MANDATORY APPROPRIATIONS; AUTHORIZATION OF APPROPRIATIONS.—
(A) MANDATORY APPROPRIATIONS.—Out of any funds
in the Treasury not otherwise appropriated, the Secretary
of the Treasury shall transfer to the Secretary $24,000,000
for deposit in the WMAT Cost Overrun Subaccount.
(B) AUTHORIZATION OF APPROPRIATIONS.—There is
authorized to be appropriated for deposit in the WMAT
Cost Overrun Subaccount $11,000,000.
(3) AVAILABILITY OF FUNDS.—
(A) IN GENERAL.—Amounts in the WMAT Cost Overrun
Subaccount shall not be available for expenditure by the
Secretary until the enforceability date.
(B) INVESTMENT.—The Secretary shall invest the
amounts in the WMAT Cost Overrun Subaccount in accordance with section 403(f)(4) of the Colorado River Basin
Project Act (43 U.S.C. 1543(f)(4)).
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(C) USE OF INTEREST.—The interest accrued on the
amounts invested under subparagraph (B) shall not be
available for expenditure or withdrawal until the enforceability date.
(4) USE OF COST OVERRUN SUBACCOUNT.—
(A) INITIAL USE.—The Secretary shall use the amounts
in the WMAT Cost Overrun Subaccount to complete the
WMAT rural water system or to carry out activities relating
to the operation, maintenance, or replacement of facilities
of the WMAT rural water system, as applicable, if the
Secretary determines that the amounts made available
under subsections (a) and (d) will be insufficient in the
period before title to the WMAT rural water system is
conveyed to the Tribe—
(i) to complete the WMAT rural water system;
or
(ii) to operate and maintain the WMAT rural water
system.
(B) TRANSFER OF FUNDS.—All unobligated amounts
remaining in the Cost Overrun Subaccount on the date
on which title to the WMAT rural water system is conveyed
to the Tribe shall be—
(i) returned to the general fund of the Treasury;
and
(ii) on an appropriation pursuant to subsection
(b)(2)(B)(ii), deposited in the WMAT Settlement Fund
and made available to the Tribe for use in accordance
with subsection (b)(2)(C).
(f) CONDITIONS.—The amounts made available to the Secretary
for deposit in the WMAT Maintenance Fund, together with any
interest accrued on those amounts under subsection (b)(3) and
any interest accruing on the WMAT Settlement Fund under subsection (b)(2), shall not be available for expenditure or withdrawal
until the WMAT rural water system is transferred to the Tribe
under section 307(d)(2).
(g) RECEIPT AND ACCEPTANCE.—The Secretary shall be entitled
to receive, shall accept, and shall use to carry out this title the
funds transferred under subsections (a), (b), (d), and (e), without
further appropriation, to remain available until expended.
SEC. 313. ANTIDEFICIENCY.
The United States shall not be liable for failure to carry out
any obligation or activity authorized to be carried out under this
title (including any such obligation or activity under the Agreement)
if adequate appropriations are not provided by Congress expressly
to carry out the purposes of this title.
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SEC. 314. COMPLIANCE WITH ENVIRONMENTAL LAWS.
In implementing the Agreement and carrying out this title,
the Secretary shall promptly comply with all applicable requirements of—
(1) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.);
(2) the Endangered Species Act of 1973 (16 U.S.C. 1531
et seq.);
(3) all other applicable Federal environmental laws; and
(4) all regulations promulgated under the laws described
in paragraphs (1) through (3).
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124 STAT. 3097
TITLE IV—CROW TRIBE WATER RIGHTS
SETTLEMENT
SEC. 401. SHORT TITLE.
This title may be cited as the ‘‘Crow Tribe Water Rights Settlement Act of 2010’’.
Crow Tribe
Water Rights
Settlement Act
of 2010.
Montana.
31 USC 1101
note.
SEC. 402. PURPOSES.
The purposes of this title are—
(1) to achieve a fair, equitable, and final settlement of
claims to water rights in the State of Montana for—
(A) the Crow Tribe; and
(B) the United States for the benefit of the Tribe and
allottees;
(2) to authorize, ratify, and confirm the Crow Tribe-Montana Water Rights Compact entered into by the Tribe and
the State of Montana on June 22, 1999;
(3) to authorize and direct the Secretary of the Interior—
(A) to execute the Crow Tribe-Montana Water Rights
Compact; and
(B) to take any other action necessary to carry out
the Compact in accordance with this title; and
(4) to ensure the availability of funds necessary for the
implementation of the Compact and this title.
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SEC. 403. DEFINITIONS.
In this title:
(1) ALLOTTEE.—The term ‘‘allottee’’ means any individual
who holds a beneficial real property interest in an allotment
of Indian land that is—
(A) located within the Reservation or the ceded strip;
and
(B) held in trust by the United States.
(2) CEDED STRIP.—The term ‘‘ceded strip’’ means the area
identified as the ceded strip on the map included in appendix
5 of the Compact.
(3) CIP OM&R.—The term ‘‘CIP OM&R’’ means—
(A) any recurring or ongoing activity associated with
the day-to-day operation of the Crow Irrigation Project;
(B) any activity relating to scheduled or unscheduled
maintenance of the Crow Irrigation Project; and
(C) any activity relating to replacement of a feature
of the Crow Irrigation Project.
(4) COMPACT.—The term ‘‘Compact’’ means the water rights
compact between the Tribe and the State of Montana contained
in section 85–20–901 of the Montana Code Annotated (2009)
(including any exhibit, part, or amendment to the Compact).
(5) CROW IRRIGATION PROJECT.—
(A) IN GENERAL.—The term ‘‘Crow Irrigation Project’’
means the irrigation project—
(i) authorized by section 31 of the Act of March
3, 1891 (26 Stat. 1040);
(ii) managed by the Secretary (acting through the
Bureau of Indian Affairs); and
(iii) consisting of the project units of—
(I) Agency;
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124 STAT. 3098
PUBLIC LAW 111–291—DEC. 8, 2010
(II) Bighorn;
(III) Forty Mile;
(IV) Lodge Grass #1;
(V) Lodge Grass #2;
(VI) Pryor;
(VII) Reno;
(VIII) Soap Creek; and
(IX) Upper Little Horn.
(B) INCLUSION.—The term ‘‘Crow Irrigation Project’’
includes land held in trust by the United States for the
Tribe and the allottees in the Bozeman Trail and Two
Leggins irrigation districts.
(6) 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 410(e).
(7) FINAL.—The term ‘‘final’’ with reference to approval
of the decree described in section 410(e)(1)(A), means—
(A) completion of any direct appeal to the Montana
Supreme Court of a decree by the Montana Water Court
pursuant to section 85–2–235 of the Montana Code Annotated (2009), including the expiration of time for filing
of any such appeal; or
(B) completion of any appeal to the appropriate United
States Court of Appeals, including the expiration of time
in which a petition for certiorari may be filed in the United
States Supreme Court, denial of such petition, or issuance
of a final judgment of the United States Supreme Court,
whichever occurs last.
(8) FUND.—The term ‘‘Fund’’ means the Crow Settlement
Fund established by section 411.
(9) INDIAN TRIBE.—The term ‘‘Indian tribe’’ has the meaning
given the term in section 4 of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450b).
(10) JOINT STIPULATION OF SETTLEMENT.—The term ‘‘joint
stipulation of settlement’’ means the joint stipulation of settlement relating to the civil action styled Crow Tribe of Indians
v. Norton, No. 02–284 (D.D.C. 2006).
(11) MR&I SYSTEM.—
(A) IN GENERAL.—The term ‘‘MR&I System’’ means
the municipal, rural, and industrial water system of the
Reservation, generally described in the document entitled
‘‘Crow Indian Reservation Municipal, Rural and Industrial
Water System Engineering Report’’ prepared by DOWL
HKM, and dated July 2008 and updated in a status report
prepared by DOWL HKM dated December 2009.
(B) INCLUSIONS.—The term ‘‘MR&I System’’ includes—
(i) the raw water intake, water treatment plant,
pipelines, storage tanks, pumping stations, pressurereducing valves, electrical transmission facilities, and
other items (including real property and easements
necessary to deliver potable water to the Reservation)
appurtenant to the system described in subparagraph
(A); and
(ii) in descending order of construction priority—
(I) the Bighorn River Valley Subsystem;
(II) the Little Bighorn River Valley Subsystem;
and
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(III) Pryor Extension.
(12) MR&I SYSTEM OM&R.—The term ‘‘MR&I System
OM&R’’ means—
(A) any recurring or ongoing activity associated with
the day-to-day operation of the MR&I System;
(B) any activity relating to scheduled or unscheduled
maintenance of the MR&I System; and
(C) any activity relating to replacement of project features of the MR&I System.
(13) RESERVATION.—The term ‘‘Reservation’’ means the
area identified as the Reservation on the map in appendix
4 of the Compact.
(14) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of the Interior.
(15) TRIBAL COMPACT ADMINISTRATION.—The term ‘‘Tribal
Compact Administration’’ means any activity relating to—
(A) the development or enactment by the Tribe of the
tribal water code;
(B) establishment by the Tribe of a water resources
department; and
(C) the operation by the Tribe of that water resources
department (or a successor agency) during the 10-year
period beginning on the date of establishment of the department.
(16) TRIBAL WATER CODE.—The term ‘‘tribal water code’’
means a water code adopted by the Tribe in accordance with
section 407(f).
(17) TRIBAL WATER RIGHTS.—The term ‘‘tribal water rights’’
means—
(A) the water rights of the Tribe described in article
III of the Compact; and
(B) the water rights provided to the Tribe under section
408.
(18) TRIBE.—The term ‘‘Tribe’’ means the Crow Tribe of
Indians of the State of Montana on behalf of itself and its
members (but not its members in their capacities as allottees).
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SEC. 404. RATIFICATION OF COMPACT.
(a) RATIFICATION OF COMPACT.—
(1) IN GENERAL.—Except as modified by this title, and
to the extent the Compact does not conflict with this title,
the Compact is authorized, ratified, and confirmed.
(2) AMENDMENTS TO COMPACT.—If amendments are
executed to make the Compact consistent with this title, those
amendments are also authorized, ratified, and confirmed to
the extent such amendments are consistent with this title.
(b) EXECUTION OF COMPACT.—
(1) IN GENERAL.—To the extent that the Compact does
not conflict with this title, the Secretary is directed to and
shall promptly execute the Compact, including all exhibits to
or parts of the Compact requiring the signature of the Secretary.
(2) MODIFICATIONS.—Nothing in this title precludes the
Secretary from approving modifications to appendices or
exhibits to the Compact not inconsistent with this title, to
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the extent such modifications do not otherwise require Congressional approval pursuant to section 2116 of the Revised Statutes
(25 U.S.C. 177) or other applicable Federal law.
(c) ENVIRONMENTAL COMPLIANCE.—
(1) IN GENERAL.—In implementing the Compact, the Secretary shall promptly comply with all applicable 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 COMPACT.—
(A) IN GENERAL.—Execution of the Compact by the
Secretary under this section shall not constitute a major
Federal action under the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et seq.).
(B) COMPLIANCE.—The Secretary shall carry out all
Federal compliance activities necessary to implement the
Compact.
SEC. 405. REHABILITATION AND IMPROVEMENT OF CROW IRRIGATION
PROJECT.
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(a) IN GENERAL.—Notwithstanding any other provision of law,
and without altering applicable law (including regulations) under
which the Bureau of Indian Affairs collects assessments and carries
out CIP OM&R, other than the rehabilitation and improvement
carried out under this section, the Secretary, acting through the
Commissioner of Reclamation, shall carry out such activities as
are necessary to rehabilitate and improve the water diversion and
delivery features of the Crow Irrigation Project, in accordance with
an agreement to be negotiated between the Secretary and the
Tribe.
(b) LEAD AGENCY.—The Bureau of Reclamation shall serve
as the lead agency with respect to any activity to rehabilitate
or improve the water diversion or delivery features of the Crow
Irrigation Project.
(c) SCOPE.—
(1) IN GENERAL.—The scope of the rehabilitation and
improvement under this section shall be as generally described
in the document entitled ‘‘Engineering Evaluation of Existing
Conditions, Crow Agency Rehabilitation Study’’ prepared by
DOWL HKM, and dated August 2007 and updated in a status
report dated December 2009 by DOWL HKM, on the condition
that prior to beginning construction activities, the Secretary
shall review the design of the proposed rehabilitation or
improvement and perform value engineering analyses.
(2) NEGOTIATION WITH TRIBE.—On the basis of the review
described in paragraph (1), the Secretary shall negotiate with
the Tribe appropriate changes to the final design so that the
final design meets applicable industry standards, as well as
changes, if any, that would improve the cost-effectiveness of
the delivery of irrigation water and take into consideration
the equitable distribution of water to allottees.
(d) NONREIMBURSABILITY OF COSTS.—All costs incurred by the
Secretary in carrying out this section shall be nonreimbursable.
(e) FUNDING.—The total amount of obligations incurred by the
Secretary in carrying out this section shall not exceed $131,843,000,
except that the total amount of $131,843,000 shall be increased
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or decreased, as appropriate, based on ordinary fluctuations from
May 1, 2008, in construction cost indices applicable to the types
of construction involved in the rehabilitation and improvement.
(f) TRIBAL IMPLEMENTATION AGREEMENT.—
(1) IN GENERAL.—At the request of the Tribe, in accordance
with applicable Federal law, the Secretary shall enter into
1 or more agreements with the Tribe to implement the provisions of this section by which the Tribe shall plan, design,
and construct any or all of the rehabilitation and improvement
required by this section.
(2) OVERSIGHT COSTS.—The Bureau of Reclamation and
the Tribe shall negotiate the cost of any oversight activities
carried out by the Bureau of Reclamation for each agreement
under this section, provided that the total cost for that oversight
shall not exceed 4 percent of the total project costs.
(g) ACQUISITION OF LAND.—
(1) TRIBAL EASEMENTS AND RIGHTS-OF-WAY.—
(A) IN GENERAL.—Upon request, and in partial consideration for the funding provided under section 414(a), the
Tribe shall consent to the grant of such easements and
rights-of-way over tribal land as may be necessary for
the rehabilitation and improvement of the Crow Irrigation
Project authorized by this section at no cost to the United
States.
(B) JURISDICTION.—The Tribe shall retain criminal and
civil jurisdiction over any lands that were subject to tribal
jurisdiction prior to the granting of an easement or rightof-way in connection with the rehabilitation and improvement of the Crow Irrigation Project.
(2) USER EASEMENTS AND RIGHTS-OF-WAY.—In partial
consideration of the rehabilitation and improvement of the Crow
Irrigation Project authorized by this section and as a condition
of continued service from the Crow Irrigation Project after
the enforceability date, any water user of the Crow Irrigation
Project shall consent to the grant of such easements and rightsof-way as may be necessary for the rehabilitation and improvements authorized under this section at no cost to the Secretary.
(3) LAND ACQUIRED BY THE UNITED STATES.—Land acquired
by the United States in connection with rehabilitation and
improvement of the Crow Irrigation Project authorized by this
section shall be held in trust by the United States on behalf
of the Tribe as part of the Reservation of the Tribe.
(h) PROJECT MANAGEMENT COMMITTEE.—The Secretary shall
facilitate the formation of a project management committee composed of representatives from the Bureau of Reclamation, the
Bureau of Indian Affairs, and the Tribe—
(1) to review cost factors and budgets for construction,
operation, and maintenance activities relating to the Crow
Irrigation Project;
(2) to improve management of inherently governmental
activities through enhanced communication; and
(3) to seek additional ways to reduce overall costs for
the rehabilitation and improvement of the Crow Irrigation
Project.
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Establishment.
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PUBLIC LAW 111–291—DEC. 8, 2010
SEC. 406. DESIGN AND CONSTRUCTION OF MR&I SYSTEM.
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(a) IN GENERAL.—The Secretary, acting through the Commissioner of Reclamation, shall plan, design, and construct the water
diversion and delivery features of the MR&I System, in accordance
with 1 or more agreements between the Secretary and the Tribe.
(b) LEAD AGENCY.—The Bureau of Reclamation shall serve
as the lead agency with respect to any activity to design and
construct the water diversion and delivery features of the MR&I
System.
(c) SCOPE.—
(1) IN GENERAL.—The scope of the design and construction
under this section shall be as generally described in the document entitled ‘‘Crow Indian Reservation Municipal, Rural and
Industrial Water System Engineering Report’’ prepared by
DOWL HKM, and dated July 2008 and updated in a status
report dated December 2009 by DOWL HKM, on the condition
that prior to beginning construction activities, the Secretary
shall review the design of the proposed MR&I System and
perform value engineering analyses.
(2) NEGOTIATION WITH TRIBE.—On the basis of the review
described in paragraph (1), the Secretary shall negotiate with
the Tribe appropriate changes to the final design so that the
final design meets applicable industry standards, as well as
changes, if any, that would improve the cost-effectiveness of
the delivery of MR&I System water and take into consideration
the equitable distribution of water to allottees.
(d) NONREIMBURSABILITY OF COSTS.—All costs incurred by the
Secretary in carrying out this section shall be nonreimbursable.
(e) FUNDING.—The total amount of obligations incurred by the
Secretary in carrying out this section shall not exceed $246,381,000,
except that the total amount of $246,381,000 shall be increased
or decreased, as appropriate, based on ordinary fluctuations from
May 1, 2008, in construction cost indices applicable to the types
of construction involved in the design and construction of the MR&I
System.
(f) TRIBAL IMPLEMENTATION AGREEMENT.—
(1) IN GENERAL.—At the request of the Tribe, in accordance
with applicable Federal law, the Secretary shall enter into
1 or more agreements with the Tribe to implement the provisions of this section by which the Tribe shall plan, design,
and construct any or all of the rehabilitation and improvement
required by this section.
(2) OVERSIGHT COSTS.—The Bureau of Reclamation and
the Tribe shall negotiate the cost of any oversight activities
carried out by the Bureau of Reclamation for each agreement
under this section, provided that the total cost for that oversight
shall not exceed 4 percent of the total project costs.
(g) ACQUISITION OF LAND.—
(1) TRIBAL EASEMENTS AND RIGHTS-OF-WAY.—
(A) IN GENERAL.—Upon request, and in partial consideration for the funding provided under section 414(b), the
Tribe shall consent to the grant of such easements and
rights-of-way over tribal land as may be necessary for
the construction of the MR&I System authorized by this
section at no cost to the United States.
(B) JURISDICTION.—The Tribe shall retain criminal and
civil jurisdiction over any lands that were subject to tribal
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PUBLIC LAW 111–291—DEC. 8, 2010
124 STAT. 3103
jurisdiction prior to the granting of an easement or rightof-way in connection with the construction of the MR&I
System.
(2) LAND ACQUIRED BY THE UNITED STATES.—Land acquired
by the United States in connection with the construction of
the MR&I System authorized by this section shall be held
in trust by the United States on behalf of the Tribe as part
of the Reservation of the Tribe.
(h) CONVEYANCE OF TITLE TO MR&I SYSTEM FACILITIES.——
(1) IN GENERAL.—The Secretary shall convey title to each
MR&I System facility or section of a MR&I System facility
authorized under subsection (a) to the Tribe after completion
of construction of a MR&I System facility or a section of a
MR&I System facility that is operating and delivering water.
(2) LIABILITY.—
(A) IN GENERAL.—Effective on the date of the conveyance authorized by this subsection, the United States shall
not be held liable by any court for damages of any kind
arising out of any act, omission, or occurrence relating
to the land, buildings, or facilities conveyed under this
subsection, other than damages caused by acts of negligence
committed by the United States, or by employees or agents
of the United States, prior to the date of conveyance.
(B) TORT CLAIMS.—Nothing in this section increases
the liability of the United States beyond the liability provided in chapter 171 of title 28, United States Code (commonly known as the ‘‘Federal Tort Claims Act’’).
(3) NOTICE OF PROPOSED CONVEYANCE.—Not later than 45
days before the date of a proposed conveyance of title to any
MR&I System facility, the Secretary shall submit to the Committee on Natural Resources of the House of Representatives
and to the Committee on Energy and Natural Resources of
the Senate notice of the conveyance of each such MR&I System
facility or section of a MR&I System facility.
(4) MR&I SYSTEM OM&R OBLIGATION OF THE FEDERAL
GOVERNMENT AFTER CONVEYANCE.—The Federal Government
shall have no obligation to pay for the operation, maintenance,
or replacement costs of the MR&I System beginning on the
date on which—
(A) title to any MR&I System facility or section of
a MR&I System facility under this subsection is conveyed
to the Tribe; and
(B) the amounts required to be deposited in the MR&I
System OM&R Account pursuant to section 411 have been
deposited in that account.
(i) AUTHORITY OF TRIBE.—Upon transfer of title to the MR&I
System or any section of a MR&I System facility to the Tribe
in accordance with subsection (h), the Tribe is authorized to collect
water use charges from customers of the MR&I System to cover—
(1) MR&I System OM&R costs; and
(2) any other costs relating to the construction and operation of the MR&I System.
(j) ALIENATION AND TAXATION.—Conveyance of title to the Tribe
pursuant to subsection (h) does not waive or alter any applicable
Federal law prohibiting alienation or taxation of the MR&I System
or the underlying Reservation land.
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(k) TECHNICAL ASSISTANCE.—The Secretary shall provide technical assistance to prepare the Tribe for operation of the MR&I
System, including operation and management training.
(l) PROJECT MANAGEMENT COMMITTEE.—The Secretary shall
facilitate the formation of a project management committee composed of representatives from the Bureau of Reclamation, the
Bureau of Indian Affairs, and the Tribe—
(1) to review cost factors and budgets for construction,
operation and maintenance activities for the MR&I System;
(2) to improve management of inherently governmental
activities through enhanced communication; and
(3) to seek additional ways to reduce overall costs for
the MR&I System.
(m) NON-FEDERAL CONTRIBUTION.—
(1) IN GENERAL.—Prior to completion of the final design
of the MR&I System required by subsection (c), the Secretary
shall consult with the Tribe, the State of Montana, and other
affected non-Federal parties to discuss the possibility of
receiving non-Federal contributions to the cost of the MR&I
System.
(2) NEGOTIATIONS.—If, based on the extent to which nonFederal parties are expected to use the MR&I System, a nonFederal contribution to the MR&I System is determined by
the parties described in paragraph (1) to be appropriate, the
Secretary shall initiate negotiations for an agreement on the
means by which such contributions may be provided.
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SEC. 407. TRIBAL WATER RIGHTS.
(a) INTENT OF CONGRESS.—It is the intent of Congress to provide to each allottee benefits that are equivalent to or exceed
the benefits allottees possess as of the date of enactment of this
Act, taking into consideration—
(1) the potential risks, cost, and time delay associated
with litigation that would be resolved by the Compact and
this title;
(2) the availability of funding under this title and from
other sources;
(3) the availability of water from the tribal water rights;
and
(4) 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.
(b) CONFIRMATION OF TRIBAL WATER RIGHTS.—
(1) IN GENERAL.—The tribal water rights are ratified, confirmed, and declared to be valid.
(2) USE.—Use of the tribal water rights shall be subject
to the terms and conditions established by the Compact.
(c) HOLDING IN TRUST.—The tribal water rights—
(1) shall be held in trust by the United States for the
use and benefit of the Tribe and the allottees in accordance
with this section; and
(2) shall not be subject to forfeiture or abandonment.
(d) ALLOTTEES.—
(1) APPLICABILITY OF ACT OF FEBRUARY 8, 1887.—The provisions of section 7 of the Act of February 8, 1887 (25 U.S.C.
381), relating to the use of water for irrigation purposes shall
apply to the tribal water rights.
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124 STAT. 3105
(2) ENTITLEMENT TO WATER.—Any entitlement to water
of an allottee under Federal law shall be satisfied from the
tribal water rights.
(3) ALLOCATIONS.—Allottees shall be entitled to a just and
equitable allocation of water for irrigation purposes.
(4) EXHAUSTION OF REMEDIES.—Before asserting any claim
against the United States under section 7 of the Act of February
8, 1887 (25 U.S.C. 381), or any other applicable law, an allottee
shall exhaust remedies available under the tribal water code
or other applicable tribal law.
(5) CLAIMS.—Following exhaustion of remedies available
under the tribal water code or other applicable tribal law,
an allottee may seek relief under section 7 of the Act of February 8, 1887 (25 U.S.C. 381), or other applicable law.
(6) AUTHORITY.—The Secretary shall have the authority
to protect the rights of allottees as specified in this section.
(e) AUTHORITY OF TRIBE.—
(1) IN GENERAL.—Except as provided in paragraph (2), the
Tribe shall have authority to allocate, distribute, and lease
the tribal water rights—
(A) in accordance with the Compact; and
(B) subject to approval of the Secretary of the tribal
water code under subsection (f)(3)(B).
(2) LEASES BY ALLOTTEES.—Notwithstanding paragraph (1),
an allottee may lease any interest in land held by the allottee,
together with any water right determined to be appurtenant
to the interest in land.
(f) TRIBAL WATER CODE.—
(1) IN GENERAL.—Notwithstanding the time period set forth
in article IV(A)(2)(b) of the Compact, not later than 3 years
after the date on which the Tribe ratifies the Compact as
set forth in section 410(e)(1)(E), the Tribe shall enact a tribal
water code, that provides for—
(A) the management, regulation, and governance of
all uses of the tribal water rights in accordance with the
Compact; and
(B) establishment by the Tribe of conditions, permit
requirements, and other limitations relating to the storage,
recovery, and use of the tribal water rights in accordance
with the Compact.
(2) INCLUSIONS.—Subject to the approval of the Secretary,
the tribal water code shall provide that—
(A) tribal allocations of water to allottees shall be
satisfied with water from the tribal water rights;
(B) charges for delivery of water for irrigation purposes
for allottees shall be assessed on a just and equitable
basis;
(C) there is a process by which an allottee may request
that the Tribe provide water for irrigation use in accordance
with this title;
(D) there is a due process system for the consideration
and determination by the Tribe of any request by an
allottee, or any successor in interest to an allottee, for
an allocation of such water for irrigation purposes on
allotted land, including a process for—
(i) appeal and adjudication of any denied or disputed distribution of water; and
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(ii) resolution of any contested administrative decision; and
(E) there is a requirement that any allottee with a
claim relating to the enforcement of rights of the allottee
under the tribal water code or relating to the amount
of water allocated to land of the allottee must first exhaust
remedies available to the allottee under tribal law and
the tribal water code before initiating an action against
the United States or petitioning the Secretary pursuant
to subsection (d)(6).
(3) ACTION BY SECRETARY.—
(A) IN GENERAL.—The Secretary shall administer the
tribal water rights until the tribal water code is enacted
in accordance with paragraph (1) and those provisions
requiring approval pursuant to paragraph (2).
(B) APPROVAL.—The tribal water code shall not be
valid unless—
(i) the provisions of the tribal water code required
by paragraph (2) are approved by the Secretary; and
(ii) each amendment to the tribal water code that
affects a right of an allottee is approved by the Secretary.
(C) APPROVAL PERIOD.—The Secretary shall approve
or disapprove the tribal water code within a reasonable
period of time after the date on which the Tribe submits
it to the Secretary.
(g) EFFECT.—Except as otherwise specifically provided in this
section, nothing in this title—
(1) authorizes any action by an allottee against any individual or entity, or against the Tribe, under Federal, State,
tribal, or local law; or
(2) alters or affects the status of any action pursuant to
section 1491(a) of title 28, United States Code.
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SEC. 408. STORAGE ALLOCATION FROM BIGHORN LAKE.
(a) STORAGE ALLOCATION TO TRIBE.—
(1) IN GENERAL.—As described in and subject to article
III(A)(1)(b) of the Compact, the Secretary shall allocate to the
Tribe 300,000 acre-feet per year of water stored in Bighorn
Lake, Yellowtail Unit, Lower Bighorn Division, Pick Sloan Missouri Basin Program, Montana, under a water right held by
the United States and managed by the Bureau of Reclamation,
as measured at the outlet works of Yellowtail Dam, including—
(A) not more than 150,000 acre-feet per year of the
allocation, which may be used in addition to the natural
flow right described in article III(A)(1)(a) of the Compact;
and
(B) 150,000 acre-feet per year of the allocation, which
may be used only as supplemental water for the natural
flow right described in article III(A)(1)(a) of the Compact
for use in times of natural flow shortage.
(2) TREATMENT.—
(A) IN GENERAL.—The allocation under paragraph (1)
shall be considered to be part of the tribal water rights.
(B) PRIORITY DATE.—The priority date of the allocation
under paragraph (1) shall be the priority date of the water
right held by the Bureau of Reclamation.
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PUBLIC LAW 111–291—DEC. 8, 2010
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(C) ADMINISTRATION.—
(i) IN GENERAL.—The Tribe shall administer the
water allocated under paragraph (1) in accordance with
the Compact.
(ii) TEMPORARY TRANSFER.—In accordance with
subsection (c), the Tribe may temporarily transfer by
service contract, lease, exchange, or other agreement,
not more than 50,000 acre-feet of water allocated under
paragraph (1)(A) off the Reservation, subject to the
approval of the Secretary and the requirements of the
Compact.
(b) ALLOCATION AGREEMENT.—
(1) IN GENERAL.—As a condition of receiving an allocation
under this section, the Tribe shall enter into an allocation
agreement with the Secretary to establish the terms and conditions of the allocation, in accordance with the terms and conditions of the Compact and this title.
(2) INCLUSIONS.—The allocation agreement under paragraph (1) shall include, among other things, a provision that—
(A) the agreement is without limit as to term;
(B) the Tribe, and not the United States, shall be
entitled to all consideration due to the Tribe under any
lease, contract, or agreement the Tribe may enter into
pursuant to the authority in subsection (c);
(C) the United States shall have no trust obligation
or other obligation to monitor, administer, or account for—
(i) any funds received by the Tribe as consideration
under any lease, contract, or agreement the Tribe may
enter into pursuant to the authority in subsection (c);
or
(ii) the expenditure of such funds;
(D) if the facilities at Yellowtail Dam are significantly
reduced or are anticipated to be significantly reduced for
an extended period of time, the Tribe shall have the same
storage rights as other storage contractors with respect
to the allocation under this section;
(E) the costs associated with the construction of the
storage facilities at Yellowtail Dam allocable to the Tribe—
(i) shall be nonreimbursable; and
(ii) shall be excluded from any repayment obligation of the Tribe;
(F) no water service capital charges shall be due or
payable for any water allocated to the Tribe pursuant to
this title and the allocation agreement, regardless of
whether that water is delivered for use by the Tribe or
is delivered under any leases, contracts, or agreements
the Tribe may enter into pursuant to the authority in
subsection (c);
(G) the Tribe shall not be required to make payments
to the United States for any water allocated to the Tribe
pursuant to this title and the allocation agreement except
for each acre-foot of stored water leased or sold for industrial purposes; and
(H) for each acre-foot of stored water leased or sold
by the Tribe for industrial purposes—
(i) the Tribe shall pay annually to the United
States an amount to cover the proportionate share
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of the annual operation, maintenance, and replacement
costs for the Yellowtail Unit allocable to the amount
of water for industrial purposes leased or sold by the
Tribe; and
(ii) the annual payments of the Tribe shall be
reviewed and adjusted, as appropriate, to reflect the
actual operation, maintenance, and replacement costs
for the Yellowtail Unit.
(c) TEMPORARY TRANSFER FOR USE OFF RESERVATION.—
(1) IN GENERAL.—Notwithstanding any other provision of
statutory or common law and subject to paragraph (2), on
approval of the Secretary and subject to the terms and conditions of the Compact, the Tribe may enter into a service contract, lease, exchange, or other agreement providing for the
temporary delivery, use, or transfer of not more than 50,000
acre-feet per year of water allocated under subsection (a)(1)(A)
for use off the Reservation.
(2) REQUIREMENT.—An agreement under paragraph (1)
shall not permanently alienate any portion of the water allocated under subsection (a)(1)(A).
(d) REMAINING STORAGE.—
(1) IN GENERAL.—As of the date of enactment of this Act,
water in Bighorn Lake shall be considered to be fully allocated
and no further storage allocations shall be made by the Secretary.
(2) EFFECT OF SUBSECTION.—Nothing in this subsection
prevents the Secretary from—
(A) renewing the storage contract with Pennsylvania
Power and Light Company consistent with the allocation
to Pennsylvania Power and Light Company in existence
on the date of enactment of this Act; or
(B) entering into future agreements with either the
Northern Cheyenne Tribe or the Crow Tribe facilitating
either tribe’s use of its respective allocation of water from
Bighorn Lake.
Effective date.
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SEC. 409. SATISFACTION OF CLAIMS.
(a) IN GENERAL.—
(1) SATISFACTION OF TRIBAL CLAIMS.—The benefits realized
by the Tribe under this title shall be in complete replacement
of and substitution for, and full satisfaction of, all claims of
the Tribe against the United States under paragraphs (1) and
(3) of section 410(a).
(2) SATISFACTION OF ALLOTTEE CLAIMS.—The benefits
realized by the allottees under this title shall be in complete
replacement of and substitution for, and full satisfaction of—
(A) all claims waived and released under section
410(a)(2); and
(B) any claims of the allottees against the United
States that the allottees have or could have asserted that
are similar in nature to those described in section 410(a)(3).
(b) SATISFACTION OF CLAIMS RELATING TO CROW IRRIGATION
PROJECT.—
(1) IN GENERAL.—Subject to paragraph (3), the funds made
available under subsections (a) and (f) of section 414 shall
be used to satisfy any claim of the Tribe or the allottees
with respect to the appropriation of funds for the rehabilitation,
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expansion, improvement, repair, operation, or maintenance of
the Crow Irrigation Project.
(2) SATISFACTION OF CLAIMS.—Upon complete transfer of
the funds described in subsections (a) and (f) of section 414
any claim of the Tribe or the allottees with respect to the
transfer of funds for the rehabilitation, expansion, improvement, repair, operation, or maintenance of the Crow Irrigation
Project shall be deemed to have been satisfied.
(3) EFFECT.—Except as provided in section 405, nothing
in this title affects any applicable law (including regulations)
under which the United States collects irrigation assessments
from—
(A) non-Indian users of the Crow Irrigation Project;
and
(B) the Tribe, tribal entities and instrumentalities,
tribal members, allottees, and entities owned by the Tribe,
tribal members, or allottees, to the extent that annual
irrigation assessments on such tribal water users exceed
the amount of funds available under section 411(e)(3)(D)
for costs relating to CIP OM&R.
(c) NO RECOGNITION OF WATER RIGHTS.—Notwithstanding subsection (a) and except as provided in section 407, nothing in this
title recognizes or establishes any right of a member of the Tribe
or an allottee to water within the Reservation or the ceded strip.
SEC. 410. WAIVERS AND RELEASES OF CLAIMS.
(a) IN GENERAL.—
(1) WAIVER AND
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RELEASE OF CLAIMS BY THE TRIBE AND
THE UNITED STATES ACTING IN ITS CAPACITY AS TRUSTEE FOR
THE TRIBE.—Subject to the retention of rights set forth in
subsection (c), in return for recognition of the tribal water
rights and other benefits as set forth in the Compact and
this title, the Tribe, on behalf of itself and the members of
the Tribe (but not tribal members in their capacities as
allottees), and the United States, acting as trustee for the
Tribe and the members of the Tribe (but not tribal members
in their capacities as allottees), are authorized and directed
to execute a waiver and release of all claims for water rights
within the State of Montana that the Tribe, or the United
States acting as trustee for the Tribe, asserted, or could have
asserted, in any proceeding, including the State of Montana
stream adjudication, prior to and including the enforceability
date, except to the extent that such rights are recognized in
the Compact or this title.
(2) WAIVER AND RELEASE OF CLAIMS BY THE UNITED STATES
ACTING IN ITS CAPACITY AS TRUSTEE FOR ALLOTTEES.—Subject
to the retention of rights set forth in subsection (c), in return
for recognition of the water rights of the Tribe and other benefits as set forth in the Compact and this title, the United
States, acting as trustee for allottees, is authorized and directed
to execute a waiver and release of all claims for water rights
within the Reservation and the ceded strip that the United
States, acting as trustee for the allottees, asserted, or could
have asserted, in any proceeding, including the State of Montana stream adjudication, prior to and including the enforceability date, except to the extent that such rights are recognized
in the Compact or this title.
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(3) WAIVER AND RELEASE OF CLAIMS BY THE TRIBE AGAINST
THE UNITED STATES.—Subject to the retention of rights set
forth in subsection (c), the Tribe, on behalf of itself and the
members of the Tribe (but not Tribal members in their capacities as allottees), is authorized to execute a waiver and release
of—
(A) all claims against the United States, including
the agencies and employees of the United States, relating
to claims for water rights within the State of Montana
that the United States, acting as trustee for the Tribe,
asserted, or could have asserted, in any proceeding,
including the State of Montana stream adjudication, except
to the extent that such rights are recognized as tribal
water rights in this title, including all claims relating in
any manner to the claims reserved against the United
States or agencies or employees of the United States in
section 4(e) of the joint stipulation of settlement;
(B) all claims against the United States, including
the agencies and employees of the United States, relating
to damages, losses, or injuries to water, water rights, land,
or natural resources due to loss of water or water rights
(including damages, losses, or injuries to hunting, fishing,
gathering, or cultural rights due to loss of water or water
rights, claims relating to interference with, diversion or
taking of water, or claims relating to failure to protect,
acquire, replace, or develop water, water rights, or water
infrastructure) within the State of Montana that first
accrued at any time prior to and including the enforceability date, including all claims relating to the failure
to establish or provide a municipal rural or industrial
water delivery system on the Reservation and all claims
relating to the failure to provide for, operate, or maintain
the Crow Irrigation Project, or any other irrigation system
or irrigation project on the Reservation;
(C) all claims against the United States, including
the agencies and employees of the United States, relating
to the pending litigation of claims relating to the water
rights of the Tribe in the State of Montana;
(D) all claims against the United States, including
the agencies and employees of the United States, relating
to the negotiation, execution, or the adoption of the Compact (including exhibits) or this title;
(E) subject to the retention of rights set forth in subsection (c), all claims for monetary damages against the
United States that first accrued at any time prior to and
including the enforceability date with respect to—
(i) the failure to recognize or enforce the claim
of the Tribe of title to land created by the movement
of the Bighorn River; and
(ii) the failure to make productive use of that
land created by the movement of the Bighorn River
to which the Tribe has claimed title;
(F) all claims against the United States that first
accrued at any time prior to and including the enforceability date arising from the taking or acquisition of the
land of the Tribe or resources for the construction of the
Yellowtail Dam;
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(G) all claims against the United States that first
accrued at any time prior to and including the enforceability date relating to the construction and operation of
Yellowtail Dam and the management of Bighorn Lake;
and
(H) all claims that first accrued at any time prior
to and including the enforceability date relating to the
generation, or the lack thereof, of power from Yellowtail
Dam.
(b) EFFECTIVENESS OF WAIVERS AND RELEASES.—The waivers
under subsection (a) shall take effect on the enforceability date.
(c) RESERVATION OF RIGHTS AND RETENTION OF CLAIMS.—Notwithstanding the waivers and releases authorized in this title,
the Tribe on behalf of itself and the members of the Tribe and
the United States, acting as trustee for the Tribe and allottees,
retain—
(1) all claims for enforcement of the Compact, any final
decree, or this title;
(2) all rights to use and protect water rights acquired
after the date of enactment of this Act;
(3) all claims relating to activities affecting the quality
of water, including any claims the Tribe may have under—
(A) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.), including for damages to natural resources;
(B) the Safe Drinking Water Act (42 U.S.C. 300f et
seq.);
(C) the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.); and
(D) any regulations implementing the Acts described
in subparagraphs (A) through (C);
(4) all claims relating to damages, losses, or injuries to
land or natural resources not due to loss of water or water
rights (including hunting, fishing, gathering, or cultural rights);
(5) all rights, remedies, privileges, immunities, and powers
not specifically waived and released pursuant to this title or
article VII(E) of the Compact;
(6) all claims against any person or entity other than
the United States, including claims for monetary damages,
with respect to—
(A) the claim of the Tribe of title to land created
by the movement of the Bighorn River; and
(B) the productive use of that land created by the
movement of the Bighorn River to which the Tribe has
claimed title; and
(7) all claims that first accrued after the enforceability
date with respect to claims otherwise waived in accordance
with subparagraphs (B) and (E) through (H) of subsection (a)(3).
(d) EFFECT OF COMPACT AND TITLE.—Nothing in the Compact
or this title—
(1) affects the ability of the United States, acting as sovereign, to take actions authorized by law, including any laws
relating to health, safety, or the environment, including—
(A) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.);
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(B) the Safe Drinking Water Act (42 U.S.C. 300f et
seq.);
(C) the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.); and
(D) any regulations implementing the Acts described
in subparagraphs (A) through (C);
(2) affects the ability of the United States to take actions
acting as trustee for any other Indian tribe or allottee of any
other Indian tribe;
(3) confers jurisdiction on any State court—
(A) to interpret Federal law regarding health, safety,
or the environment;
(B) to determine the duties of the United States or
other parties pursuant to Federal law regarding health,
safety, or the environment; or
(C) to conduct judicial review of Federal agency action;
(4) waives any claim of a member of the Tribe in an
individual capacity that does not derive from a right of the
Tribe; or
(5) revives any claims waived by the Tribe in the joint
stipulation of settlement.
(e) ENFORCEABILITY DATE.—
(1) IN GENERAL.—The enforceability date shall be the date
on which the Secretary publishes in the Federal Register a
statement of findings that—
(A)(i) the Montana Water Court has issued a final
judgment and decree approving the Compact; or
(ii) if the Montana Water Court is found to lack jurisdiction, the district court of jurisdiction has approved the
Compact as a consent decree and such approval is final;
(B) all of the funds made available under subsections
(c) through (f) of section 414 have been deposited in the
Fund;
(C) the Secretary has executed the agreements with
the Tribe required by sections 405(a) and 406(a);
(D) the State of Montana has appropriated and paid
into an interest-bearing escrow account any payments due
as of the date of enactment of this Act to the Tribe under
the Compact;
(E)(i) the Tribe has ratified the Compact by submitting
this title and the Compact to a vote by the tribal membership for approval or disapproval; and
(ii) the tribal membership has voted to approve this
title and the Compact by a majority of votes cast on the
day of the vote, as certified by the Secretary and the
Tribe;
(F) the Secretary has fulfilled the requirements of section 408(a); and
(G) the waivers and releases authorized and set forth
in subsection (a) have been executed by the Tribe and
the Secretary.
(f) TOLLING OF CLAIMS.—
(1) IN GENERAL.—Each applicable period of limitation and
time-based equitable defense relating to a claim described in
this section shall be tolled for the period beginning on the
date of enactment of this Act and ending on the date on which
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the amounts made available to carry out this title are transferred to the Secretary.
(2) EFFECT OF SUBSECTION.—Nothing in this subsection
revives any claim or tolls any period of limitation or timebased equitable defense that expired before the date of enactment of this Act.
(g) EXPIRATION AND TOLLING.—In the event that all appropriations authorized by this Act have not been made available to the
Secretary by June 30, 2030—
(1) the waivers authorized in this section shall expire and
be of no further force or effect; and
(2) all statutes of limitations applicable to any claim otherwise waived shall be tolled until June 30, 2030.
(h) VOIDING OF WAIVERS.—If the waivers pursuant to this section are void under subsection (g)—
(1) the United States’ approval of the Compact under section 404 shall no longer be effective;
(2) any unexpended Federal funds appropriated or made
available to carry out the activities authorized in this Act,
together with any interest earned on those funds, and any
water rights or contracts to use water and title to other property
acquired or constructed with Federal funds appropriated or
made available to carry out the activities authorized in this
Act shall be returned to the Federal Government, unless otherwise agreed to by the Tribe and the United States and approved
by Congress; and
(3) except for Federal funds used to acquire or develop
property that is returned to the Federal Government under
paragraph (2), the United States shall be entitled to set off
any Federal funds appropriated or made available to carry
out the activities authorized in this Act that were expended
or withdrawn, together with any interest accrued, against any
claims against the United States relating to water rights in
the State of Montana asserted by the Tribe or in any future
settlement of the water rights of the Crow Tribe.
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SEC. 411. CROW SETTLEMENT FUND.
(a) ESTABLISHMENT.—There is established in the Treasury of
the United States a fund to be known as ‘‘the Crow Settlement
Fund’’, to be administered by the Secretary for the purpose of
carrying out this title.
(b) TRANSFERS TO FUND.—The Fund shall consist of such
amounts as are deposited in the Fund under subsections (c) through
(h) of section 414.
(c) ACCOUNTS OF CROW SETTLEMENT FUND.—The Secretary
shall establish in the Fund the following accounts:
(1) The Tribal Compact Administration account, consisting
of amounts made available pursuant to section 414(c).
(2) The Energy Development Projects account, consisting
of amounts made available pursuant to section 414(d).
(3) The MR&I System OM&R Account, consisting of
amounts made available pursuant to section 414(e).
(4) The CIP OM&R Account, consisting of amounts made
available pursuant to section 414(f).
(d) DEPOSITS TO CROW SETTLEMENT FUND.—
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(1) IN GENERAL.—The Secretary of the Treasury shall
promptly deposit in the Fund any amounts appropriated for
that purpose.
(2) PRIORITY OF DEPOSITS TO ACCOUNTS.—Of the amounts
appropriated for deposit in the Fund, the Secretary of the
Treasury shall deposit amounts in the accounts listed in subsection (c)—
(A) in full; and
(B) in the order listed in subsection (c).
(e) MANAGEMENT.—
(1) IN GENERAL.—The Secretary shall manage the Fund,
make investments from the Fund, and make amounts available
from the Fund for distribution to the Tribe consistent with
the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4001 et seq.).
(2) INVESTMENT OF CROW SETTLEMENT FUND.—Beginning
on the enforceability date, the Secretary shall invest amounts
in the Fund in accordance with—
(A) the Act of April 1, 1880 (25 U.S.C. 161);
(B) the first section of the Act of June 24, 1938 (25
U.S.C. 162a); and
(C) the obligations of Federal corporations and Federal
Government-sponsored entities, the charter documents of
which provide that the obligations of the entities are lawful
investments for federally managed funds, including—
(i) the obligations of the United States Postal
Service described in section 2005 of title 39, United
States Code;
(ii) bonds and other obligations of the Tennessee
Valley Authority described in section 15d of the Tennessee Valley Authority Act of 1933 (16 U.S.C. 831n–
4);
(iii) mortgages, obligations, and other securities
of the Federal Home Loan Mortgage Corporation
described in section 303 of the Federal Home Loan
Mortgage Corporation Act (12 U.S.C. 1452); and
(iv) bonds, notes, and debentures of the Commodity
Credit Corporation described in section 4 of the Act
of March 8, 1938 (15 U.S.C. 713a–4).
(3) DISTRIBUTIONS FROM CROW SETTLEMENT FUND.—
(A) IN GENERAL.—Amounts from the Fund shall be
used for each purpose described in subparagraphs (B)
through (E).
(B) TRIBAL COMPACT ADMINISTRATION ACCOUNT.—The
Tribal Compact Administration account shall be used for
expenditures by the Tribe for Tribal Compact Administration.
(C) ENERGY DEVELOPMENT PROJECTS ACCOUNT.—The
Energy Development Projects account shall be used for
expenditures by the Tribe for the following types of energy
development on the Reservation, the ceded strip, and land
owned by the Tribe:
(i) Development and marketing of power generation on the Yellowtail Afterbay Dam authorized in
section 412(b).
(ii) Development of clean coal conversion projects.
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PUBLIC LAW 111–291—DEC. 8, 2010
124 STAT. 3115
(iii) Renewable energy projects other than the
project described in clause (i).
(D) CIP OM&R ACCOUNT.—
(i) IN GENERAL.—Amounts in the CIP OM&R
Account shall be used for CIP OM&R costs.
(ii) REDUCTION OF COSTS TO TRIBAL WATER
USERS.—
(I) IN GENERAL.—Subject to subclause (II), the
funds described in clause (i) shall be used to reduce
the CIP OM&R costs to all tribal water users
on a proportional basis for a given year.
(II) LIMITATION ON USE OF FUNDS.—Funds in
the CIP OM&R Account shall be used to pay irrigation assessments only for the Tribe, tribal entities
and instrumentalities, tribal members, allottees,
and entities owned by the Tribe, tribal members,
or allottees.
(E) MR&I SYSTEM OM&R ACCOUNT.—Funds from the
MR&I System OM&R Account shall be used to assist the
Tribe in paying MR&I System OM&R costs.
(4) WITHDRAWALS BY TRIBE.—
(A) IN GENERAL.—The Tribe may withdraw any portion
of amounts in the Fund on approval by the Secretary
of a tribal management plan in accordance with the American Indian Trust Fund Management Reform Act of 1994
(25 U.S.C. 4001 et seq.).
(B) REQUIREMENTS.—
(i) IN GENERAL.—In addition to the requirements
under the American Indian Trust Fund Management
Reform Act of 1994 (25 U.S.C. 4001 et seq.), the tribal
management plan of the Tribe under subparagraph
(A) shall require that the Tribe spend any amounts
withdrawn from the Fund in accordance with this title.
(ii) ENFORCEMENT.—The Secretary may carry out
such judicial or administrative actions as the Secretary
determines to be necessary to enforce a tribal management plan to ensure that amounts withdrawn by the
Tribe from the Fund under this paragraph are used
in accordance with this title.
(C) LIABILITY.—The Secretary and the Secretary of the
Treasury shall not be liable for the expenditure or investment of amounts withdrawn from the Fund by the Tribe
under this paragraph.
(D) EXPENDITURE PLAN.—
(i) IN GENERAL.—For each fiscal year, the Tribe
shall submit to the Secretary for approval an expenditure plan for any portion of the amounts described
in subparagraph (A) that the Tribe elects not to withdraw under this paragraph during the fiscal year.
(ii) INCLUSION.—An expenditure plan under clause
(i) shall include a description of the manner in which,
and the purposes for which, amounts of the Tribe
remaining in the Fund will be used during subsequent
fiscal years.
(iii) APPROVAL.—On receipt of an expenditure plan
under clause (i), the Secretary shall approve the plan
if the Secretary determines that the plan is—
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(I) reasonable; and
(II) consistent with this title.
(5) ANNUAL REPORTS.—The Tribe shall submit to the Secretary annual reports describing each expenditure by the Tribe
of amounts in the Fund during the preceding calendar year.
(6) CERTAIN PER CAPITA DISTRIBUTIONS PROHIBITED.—No
amount in the Fund shall be distributed to any member of
the Tribe on a per capita basis.
(f) AVAILABILITY.—
(1) IN GENERAL.—Except as provided in paragraph (2), the
amounts in the Fund shall be available for use by the Secretary
and withdrawal by the Tribe beginning on the enforceability
date.
(2) EXCEPTION.—The amounts made available under section
414(c) shall be available for use by the Secretary and withdrawal by the Tribe beginning on the date on which the Tribe
ratifies the Compact as provided in section 410(e)(1)(E).
(g) STATE CONTRIBUTION.—The State of Montana contribution
to the Fund shall be provided in accordance with article VI(A)
of the Compact.
(h) SEPARATE APPROPRIATIONS ACCOUNT.—Section 1105(a) of
title 31, United States Code, is amended—
(1) by redesignating paragraphs (35) and (36) as paragraphs
(36) and (37), respectively;
(2) by redesignating the second paragraph (33) (relating
to obligational authority and outlays requested for homeland
security) as paragraph (35); and
(3) by adding at the end the following:
‘‘(38) a separate statement for the Crow Settlement Fund
established under section 411 of the Crow Tribe Water Rights
Settlement Act of 2010, which shall include the estimated
amount of deposits into the Fund, obligations, and outlays
from the Fund.’’.
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SEC. 412. YELLOWTAIL DAM, MONTANA.
(a) STREAMFLOW AND LAKE LEVEL MANAGEMENT PLAN.—
(1) IN GENERAL.—Nothing in this title, the Compact, or
the Streamflow and Lake Level Management Plan referred
to in article III(A)(7) of the Compact—
(A) limits the discretion of the Secretary under the
section 4F of that plan; or
(B) requires the Secretary to give priority to any factor
described in section 4F of that plan over any other factor
described in that section.
(2) BIGHORN LAKE MANAGEMENT.—Bighorn Lake water
management, including the Streamflow and Lake Level
Management Plan, is a Federal activity, and the review and
enforcement of any water management decisions relating to
Bighorn Lake shall be as provided by Federal law.
(3) APPLICABILITY OF PARAGRAPHS (1) AND (2).—The
Streamflow and Lake Level Management Plan referred to in
and part of the Compact shall be interpreted to clearly reflect
paragraphs (1) and (2).
(4) APPLICABILITY OF INSTREAM FLOW REQUIREMENTS IN
PLAN.—Notwithstanding any term (including any defined term)
or provision in the Streamflow and Lake Level Management
Plan, for purposes of this title, the Compact, and the Streamflow
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PUBLIC LAW 111–291—DEC. 8, 2010
124 STAT. 3117
and Lake Level Management Plan, any requirement in the
Streamflow and Lake Level Management Plan that the Tribe
dedicate a specified percentage, portion, or number of acrefeet of water per year of the tribal water rights to instream
flow means (and is limited in meaning and effect to) an obligation on the part of the Tribe to withhold from development
or otherwise refrain from diverting or removing from the Bighorn River the specified quantity of water for the duration,
at the locations, and under the conditions set forth in the
applicable requirement.
(b) POWER GENERATION.—
(1) IN GENERAL.—Notwithstanding any other provision of
law, the Tribe shall have the exclusive right to develop and
market power generation on the Yellowtail Afterbay Dam, provided that this exclusive right shall expire 15 years after the
date of enactment of this Act if construction has not been
substantially completed on the power generation project of the
Tribe.
(2) BUREAU OF RECLAMATION COOPERATION.—The Bureau
of Reclamation shall cooperate with the Tribe on the development of any power generation project under this subsection.
(3) AGREEMENT.—Before construction of a power generation
project under this subsection, the Tribe shall enter into an
agreement with the Bureau of Reclamation that contains provisions that—
(A) allocate the responsibilities for the design, construction, and operations of the project;
(B) assure the compatibility of the power generation
project with the operations of the Yellowtail Unit and the
Yellowtail Afterbay Dam, which shall include entering into
agreements—
(i) regarding operating criteria and emergency
procedures, as they relate to dam safety; and
(ii) under which, should the Tribe propose any
modifications to facilities owned by the Bureau of Reclamation, the proposed modifications shall be subject
to review and approval by the Secretary, acting
through the Bureau of Reclamation;
(C) beginning 10 years after the date on which the
Tribe begins marketing power generated from the
Yellowtail Afterbay Dam, the Tribe shall make annual
payments for operation, maintenance, and replacement
costs in amounts determined in accordance with the guidelines and methods of the Bureau of Reclamation for
assessing operation, maintenance, and replacement
charges, provided that such annual payments shall not
exceed 3 percent of gross annual revenue produced by
the sale of electricity generated by such project; and
(D) the Secretary—
(i) shall review the charges established in the
agreement on the date that is 5 years after the date
on which the Tribe makes the first payment described
in subparagraph (C) to the Secretary under the agreement and at 5 year intervals thereafter; and
(ii) may increase or decrease the charges in proportion to the amount of any increase or decrease in
the costs of operation, maintenance, and replacement
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Expiration date.
Effective date.
Payments.
Review.
Deadlines.
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Deadline.
Applicability.
PUBLIC LAW 111–291—DEC. 8, 2010
for the Yellowtail Afterbay Dam, provided that any
increase in operation, maintenance, and replacement
costs assessed to the Tribe may not exceed—
(I) 5 percent in any 5 year period; and
(II) 3 percent of the gross annual revenue
produced by the sale of electricity generated by
such project.
(4) USE OF POWER BY TRIBE.—Any hydroelectric power generated in accordance with this subsection shall be used or
marketed by the Tribe.
(5) REVENUES.—The Tribe shall retain any revenues from
the sale of hydroelectric power generated by a project under
this subsection.
(6) LIABILITY OF UNITED STATES.—The United States shall
have no trust obligation to monitor, administer, or account
for—
(A) the revenues received by the Tribe under this subsection; or
(B) the expenditure of the revenues received by the
Tribe under this subsection.
(c) CONSULTATION WITH TRIBE.—The Bureau of Reclamation
shall consult with the Tribe on at least a quarterly basis on all
issues relating to the management of Yellowtail Dam by the Bureau
of Reclamation.
(d) AMENDMENTS TO COMPACT AND PLAN.—The provisions of
subsection (a) apply to any amendment to—
(1) the Compact; or
(2) the Streamflow and Lake Level Management Plan.
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SEC. 413. MISCELLANEOUS PROVISIONS.
(a) WAIVER OF SOVEREIGN IMMUNITY BY THE UNITED STATES.—
Except as provided in subsections (a) through (c) of section 208
of the Department of Justice Appropriation Act, 1953 (43 U.S.C.
666), nothing in this title waives the sovereign immunity of the
United States.
(b) OTHER TRIBES NOT ADVERSELY AFFECTED.—Nothing in this
title quantifies or diminishes any land or water right, or any claim
or entitlement to land or water, of an Indian tribe, band, or community other than the Tribe.
(c) LIMITATION ON CLAIMS FOR REIMBURSEMENT.—With respect
to Indian land within the Reservation or the ceded strip—
(1) the United States shall not submit against any Indianowned land located within the Reservation or the ceded strip
any claim for reimbursement of the cost to the United States
of carrying out this title and the Compact; and
(2) no assessment of any Indian-owned land located within
the Reservation or the ceded strip shall be made regarding
that cost.
(d) LIMITATION ON LIABILITY OF UNITED STATES.—
(1) IN GENERAL.—The United States has no trust or other
obligation—
(A) to monitor, administer, or account for, in any
manner, any funds provided to the Tribe by any party
to the Compact other than the United States; or
(B) to review or approve any expenditure of those
funds.
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PUBLIC LAW 111–291—DEC. 8, 2010
124 STAT. 3119
(2) INDEMNIFICATION.—The Tribe shall indemnify the
United States, and hold the United States harmless, with
respect to all claims (including claims for takings or breach
of trust) arising from the receipt or expenditure of amounts
described in paragraph (1)(A).
(e) EFFECT ON CURRENT LAW.—Nothing in this section affects
any provision of law (including regulations) in effect on the day
before the date of enactment of this Act with respect to
preenforcement review of any Federal environmental enforcement
action.
(f) LIMITATIONS ON EFFECT.—
(1) IN GENERAL.—Nothing in this title, the Compact, or
the Streamflow and Lake Level Management Plan referred
to in article III(A)(7) of the Compact—
(A) limits, expands, alters, or otherwise affects—
(i) the meaning, interpretation, implementation,
application, or effect of any article, provision, or term
of the Yellowstone River Compact;
(ii) any right, requirement, or obligation under
the Yellowstone River Compact;
(iii) any allocation (or manner of determining any
allocation) of water under the Yellowstone River Compact; or
(iv) any present or future claim, defense, or other
position asserted in any legal, administrative, or other
proceeding arising under or relating to the Yellowstone
River Compact (including the original proceeding
between the State of Montana and the State of
Wyoming pending as of the date of enactment of this
Act before the United States Supreme Court);
(B) makes an allocation or apportionment of water
between or among States;
(C) addresses or implies whether, how, or to what
extent (if any)—
(i) the tribal water rights, or any portion of the
tribal water rights, should be accounted for as part
of or otherwise charged against any allocation of water
made to a State under the provisions of the Yellowstone
River Compact; or
(ii) the Yellowstone River Compact includes the
tribal water rights or the water right of any Indian
tribe as part of any allocation or other disposition
of water under that compact; or
(D) waives the sovereign immunity from suit of any
State under the Eleventh Amendment to the Constitution
of the United States, except as expressly authorized in
Article IV(F)(8) of the Compact.
(2) EFFECT OF CERTAIN PROVISIONS IN COMPACT.—The provisions in paragraphs (1) and (2) of article III (A)(6)(a), paragraphs (1) and (2) of article III(B)(6)(a), paragraphs (1) and
(2) of article III(E)(6)(a), and paragraphs (1) and (2) of article
III (F)(6)(a) of the Compact that provide protections to certain
water rights recognized under the laws of the State of Montana
do not affect in any way, either directly or indirectly, existing
or future water rights (including the exercise of any such rights)
outside of the State of Montana.
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(g) EFFECT ON RECLAMATION LAW.—The activities carried out
by the Bureau of Reclamation under this title shall not establish
a precedent or impact the authority provided under any other
provision of Federal reclamation law, including—
(1) the Rural Supply Act of 2006 (Public Law 109–451;
120 Stat. 3345); and
(2) the Omnibus Public Land Management Act of 2009
(Public Law 111–11; 123 Stat. 991).
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SEC. 414. FUNDING.
(a) REHABILITATION AND IMPROVEMENT OF CROW IRRIGATION
PROJECT.—
(1) MANDATORY APPROPRIATION.—Out of any funds in the
Treasury not otherwise appropriated, the Secretary of the
Treasury shall transfer to the Secretary $73,843,000, adjusted
to reflect changes since May 1, 2008, in construction cost indices
applicable to the types of construction involved in the rehabilitation and improvement of the Crow Irrigation Project, for the
rehabilitation and improvement of the Crow Irrigation Project.
(2) AUTHORIZATION OF APPROPRIATIONS.—In addition to the
amount made available under paragraph (1), there is authorized
to be appropriated to the Secretary for the rehabilitation and
improvement of the Crow Irrigation Project $58,000,000,
adjusted to reflect changes since May 1, 2008, in construction
cost indices applicable to the types of construction involved
in the rehabilitation and improvement of the Crow Irrigation
Project.
(b) DESIGN AND CONSTRUCTION OF MR&I SYSTEM.—
(1) MANDATORY APPROPRIATION.—Out of any funds in the
Treasury not otherwise appropriated, the Secretary of the
Treasury shall transfer to the Secretary $146,000,000, adjusted
to reflect changes since May 1, 2008, in construction cost indices
applicable to the types of construction involved in the design
and construction of the MR&I System, for the design and
construction of the MR&I System.
(2) AUTHORIZATION OF APPROPRIATIONS.—In addition to the
amount made available under paragraph (1), there is authorized
to be appropriated to the Secretary for the design and construction of the MR&I System $100,381,000, adjusted to reflect
changes since May 1, 2008, in construction cost indices
applicable to the types of construction involved in the design
and construction of the MR&I System.
(c) TRIBAL COMPACT ADMINISTRATION.—Out of any funds in
the Treasury not otherwise appropriated, the Secretary of the
Treasury shall transfer to the Secretary $4,776,000, adjusted to
reflect changes in appropriate cost indices during the period beginning on the date of enactment of this Act and ending on the
date of the transfer, for Tribal Compact Administration.
(d) ENERGY DEVELOPMENT PROJECTS.—Out of any funds in
the Treasury not otherwise appropriated, the Secretary of the
Treasury shall transfer to the Secretary $20,000,000, adjusted to
reflect changes in appropriate cost indices during the period beginning on the date of enactment of this Act and ending on the
date of the transfer, for Energy Development Projects as set forth
in section 411(e)(3)(C).
(e) MR&I SYSTEM OM&R.—Out of any funds in the Treasury
not otherwise appropriated, the Secretary of the Treasury shall
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transfer to the Secretary $47,000,000, adjusted to reflect changes
in appropriate cost indices during the period beginning on the
date of enactment of this Act and ending on the date of the transfer,
for MR&I System OM&R.
(f) CIP OM&R.—Out of any funds in the Treasury not otherwise
appropriated, the Secretary of the Treasury shall transfer to the
Secretary $10,000,000, adjusted to reflect changes in appropriate
cost indices during the period beginning on the date of enactment
of this Act and ending on the date of the transfer, for CIP OM&R.
(g) USE.—In addition to the uses authorized under subsections
(a) and (b), such amounts as may be necessary of the amounts
made available under those subsections may be used to carry out
related activities necessary to comply with Federal environmental
and cultural resource laws.
(h) ACCOUNT TRANSFERS.—
(1) IN GENERAL.—The Secretary may transfer from the
amounts made available under subsection (a) such amounts
as the Secretary, with the concurrence of the Tribe, determines
to be necessary to supplement the amounts made available
under subsection (b), on a determination of the Secretary, in
consultation with the Tribe, that such a transfer is in the
best interest of the Tribe.
(2) OTHER APPROVED TRANSFERS.—The Secretary may
transfer from the amounts made available under subsection
(b) such amounts as the Secretary, with the concurrence of
the Tribe, determines to be necessary to supplement the
amounts made available under subsection (a), on a determination of the Secretary, in consultation with the Tribe, that such
a transfer is in the best interest of the Tribe.
(i) RECEIPT AND ACCEPTANCE.—The Secretary shall be entitled
to receive, shall accept, and shall use to carry out this section
the funds transferred under subsections (a) through (f), without
further appropriation.
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SEC. 415. REPEAL ON FAILURE TO MEET ENFORCEABILITY DATE.
If the Secretary does not publish a statement of findings under
section 410(e) not later than March 31, 2016, or the extended
date agreed to by the Tribe and the Secretary, after reasonable
notice to the State of Montana, as applicable—
(1) this title is repealed effective April 1, 2016, or the
day after the extended date agreed to by the Tribe and the
Secretary after reasonable notice to the State of Montana,
whichever is later;
(2) any action taken by the Secretary and any contract
or agreement pursuant to the authority provided under any
provision of this title shall be void;
(3) any amounts made available under section 414, together
with any interest on those amounts, shall immediately revert
to the general fund of the Treasury;
(4) any amounts made available under section 414 that
remain unexpended shall immediately revert to the general
fund of the Treasury; and
(5) the United States shall be entitled to set off against
any claims asserted by the Tribe against the United States
relating to water rights—
(A) any funds expended or withdrawn from the
amounts made available pursuant to this title; and
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note.
Deadline.
Notification.
Effective date.
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(B) any funds made available to carry out the activities
authorized in this title from other authorized sources.
SEC. 416. ANTIDEFICIENCY.
The United States shall not be liable for any failure to carry
out any obligation or activity authorized by this title (including
any such obligation or activity under the Settlement Agreement)
if adequate appropriations are not provided expressly by Congress
to carry out the purposes of this title in the Reclamation Water
Settlements Fund established under section 10501 of Public Law
111–11 or the ‘‘Emergency Fund for Indian Safety and Health’’
established by section 601(a) of the Tom Lantos and Henry J.
Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008 (25 U.S.C. 443c(a)).
Taos Pueblo
Indian Water
Rights
Settlement Act.
TITLE V—TAOS PUEBLO INDIAN WATER
RIGHTS
SEC. 501. SHORT TITLE.
This title may be cited as the ‘‘Taos Pueblo Indian Water
Rights Settlement Act’’.
SEC. 502. PURPOSES.
The purposes of this title are—
(1) to approve, ratify, and confirm the Taos Pueblo Indian
Water Rights Settlement Agreement;
(2) to authorize and direct the Secretary to execute the
Settlement Agreement and to perform all obligations of the
Secretary under the Settlement Agreement and this title; and
(3) to authorize all actions and appropriations necessary
for the United States to meet its obligations under the Settlement Agreement and this title.
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SEC. 503. DEFINITIONS.
In this title:
(1) ELIGIBLE NON-PUEBLO ENTITIES.—The term ‘‘Eligible
Non-Pueblo Entities’’ means the Town of Taos, the El Prado
Water and Sanitation District, and the New Mexico Department
of Finance and Administration Local Government Division on
behalf of the Acequia Madre del Rio Lucero y del Arroyo Seco,
the Acequia Madre del Prado, the Acequia del Monte, the
Acequia Madre del Rio Chiquito, the Upper Ranchitos Mutual
Domestic Water Consumers Association, the Upper Arroyo
Hondo Mutual Domestic Water Consumers Association, and
the Llano Quemado Mutual Domestic Water Consumers
Association.
(2) ENFORCEMENT DATE.—The term ‘‘Enforcement Date’’
means the date upon which the Secretary publishes the notice
required by section 509(f)(1).
(3) MUTUAL-BENEFIT PROJECTS.—The term ‘‘Mutual-Benefit
Projects’’ means the projects described and identified in articles
6 and 10.1 of the Settlement Agreement.
(4) PARTIAL FINAL DECREE.—The term ‘‘Partial Final
Decree’’ means the Decree entered in New Mexico v. Abeyta
and New Mexico v. Arellano, Civil Nos. 7896–BB (U.S.6 D.N.M.)
and 7939–BB (U.S. D.N.M.) (consolidated), for the resolution
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of the Pueblo’s water right claims and which is substantially
in the form agreed to by the Parties and attached to the
Settlement Agreement as Attachment 5.
(5) PARTIES.—The term ‘‘Parties’’ means the Parties to the
Settlement Agreement, as identified in article 1 of the Settlement Agreement.
(6) PUEBLO.—The term ‘‘Pueblo’’ means the Taos Pueblo,
a sovereign Indian tribe duly recognized by the United States
of America.
(7) PUEBLO LANDS.—The term ‘‘Pueblo lands’’ means those
lands located within the Taos Valley to which the Pueblo,
or the United States in its capacity as trustee for the Pueblo,
holds title subject to Federal law limitations on alienation.
Such lands include Tracts A, B, and C, the Pueblo’s land
grant, the Blue Lake Wilderness Area, and the Tenorio and
Karavas Tracts and are generally depicted in Attachment 2
to the Settlement Agreement.
(8) SAN JUAN-CHAMA PROJECT.—The term ‘‘San JuanChama Project’’ means the Project authorized by section 8
of the Act of June 13, 1962 (76 Stat. 96 and 97), and the
Act of April 11, 1956 (70 Stat. 105).
(9) SECRETARY.—The term ‘‘Secretary’’ means the Secretary
of the Interior.
(10) SETTLEMENT AGREEMENT.—The term ‘‘Settlement
Agreement’’ means the contract dated March 31, 2006, between
and among—
(A) the United States, acting solely in its capacity
as trustee for Taos Pueblo;
(B) the Taos Pueblo, on its own behalf;
(C) the State of New Mexico;
(D) the Taos Valley Acequia Association and its 55
member ditches;
(E) the Town of Taos;
(F) the El Prado Water and Sanitation District; and
(G) the 12 Taos area Mutual Domestic Water Consumers Associations, as amended to conform with this title.
(11) STATE ENGINEER.—The term ‘‘State Engineer’’ means
the New Mexico State Engineer.
(12) TAOS VALLEY.—The term ‘‘Taos Valley’’ means the
geographic area depicted in Attachment 4 of the Settlement
Agreement.
SEC. 504. PUEBLO RIGHTS.
(a) IN GENERAL.—Those rights to which the Pueblo is entitled
under the Partial Final Decree shall be held in trust by the United
States on behalf of the Pueblo and shall not be subject to forfeiture,
abandonment, or permanent alienation.
(b) SUBSEQUENT ACT OF CONGRESS.—The Pueblo shall not be
denied all or any part of its rights held in trust absent its consent
unless such rights are explicitly abrogated by an Act of Congress
hereafter enacted.
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SEC. 505. TAOS PUEBLO WATER DEVELOPMENT FUND.
(a) ESTABLISHMENT.—There is established in the Treasury of
the United States a fund to be known as the ‘‘Taos Pueblo Water
Development Fund’’ (referred to in this section as the ‘‘Fund’’)
to be used to pay or reimburse costs incurred by the Pueblo for—
(1) acquiring water rights;
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124 STAT. 3124
PUBLIC LAW 111–291—DEC. 8, 2010
(2) planning, permitting, designing, engineering, constructing, reconstructing, replacing, rehabilitating, operating,
or repairing water production, treatment or delivery infrastructure, on-farm improvements, or wastewater infrastructure;
(3) restoring, preserving and protecting the Buffalo Pasture,
including planning, permitting, designing, engineering, constructing, operating, managing and replacing the Buffalo Pasture Recharge Project;
(4) administering the Pueblo’s water rights acquisition program and water management and administration system; and
(5) watershed protection and enhancement, support of agriculture, water-related Pueblo community welfare and economic
development, and costs related to the negotiation, authorization, and implementation of the Settlement Agreement.
(b) MANAGEMENT OF FUND.—The Secretary shall manage the
Fund, invest amounts in the Fund, and make monies available
from the Fund for distribution to the Pueblo consistent with the
American Indian Trust Fund Management Reform Act of 1994
(25 U.S.C. 4001 et seq.) (hereinafter, ‘‘Trust Fund Reform Act’’),
this title, and the Settlement Agreement.
(c) INVESTMENT OF FUND.—Upon the Enforcement Date, the
Secretary shall invest amounts in the Fund in accordance with—
(1) the Act of April 1, 1880 (21 Stat. 70, ch. 41, 25 U.S.C.
161);
(2) the first section of the Act of June 24, 1938 (52 Stat.
1037, ch. 648, 25 U.S.C. 162a); and
(3) the American Indian Trust Fund Management Reform
Act of 1994 (25 U.S.C. 4001 et seq.).
(d) AVAILABILITY OF AMOUNTS FROM FUND.—Upon the Enforcement Date, all monies deposited in the Fund pursuant to section
509(c)(1) or made available from other authorized sources shall
be available to the Pueblo for expenditure or withdrawal after
the requirements of subsection (e) have been met.
(e) EXPENDITURES AND WITHDRAWAL.—
(1) TRIBAL MANAGEMENT PLAN.—
(A) IN GENERAL.—The Pueblo may withdraw all or
part of the 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 Pueblo spend any funds in
accordance with the purposes described in subsection (a).
(2) ENFORCEMENT.—The Secretary may take judicial or
administrative action to enforce the requirement that monies
withdrawn from the Fund are used for the purposes specified
in subsection (a).
(3) LIABILITY.—If the Pueblo exercises the right to withdraw monies from the Fund, neither the Secretary nor the
Secretary of the Treasury shall retain any liability for the
expenditure or investment of the monies withdrawn.
(4) EXPENDITURE PLAN.—
(A) IN GENERAL.—The Pueblo shall submit to the Secretary for approval an expenditure plan for any portions
of the funds made available under this title that the Pueblo
does not withdraw under paragraph (1)(A).
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(B) DESCRIPTION.—The expenditure plan shall describe
the manner in which, and the purposes for which, amounts
remaining in the 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 title.
(5) ANNUAL REPORT.—The Pueblo shall submit to the Secretary an annual report that describes all expenditures from
the Fund during the year covered by the report.
(f) AMOUNTS AVAILABLE ON APPROPRIATION.—Notwithstanding
subsection (d), $15,000,000 of the monies deposited in the Fund—
(1) shall be available upon appropriation or availability
of the funds from other authorized sources for the Pueblo’s
acquisition of water rights pursuant to Article 5.1.1.2.3 of the
Settlement Agreement, the Buffalo Pasture Recharge Project,
implementation of the Pueblo’s water rights acquisition program and water management and administration system, the
design, planning, engineering, permitting or construction of
water or wastewater infrastructure eligible for funding under
subsection (a), or costs related to the negotiation, authorization,
and implementation of the Settlement Agreement, provided
that such funds may be expended prior to the Enforcement
Date only for activities which are determined by the Secretary
to be more cost effective when implemented as early as possible;
and
(2) shall be distributed by the Secretary to the Pueblo
on receipt by the Secretary from the Pueblo of a written notice
and a Tribal Council resolution that describes the purposes
under paragraph (1) for which the monies will be used after
a cost-effectiveness determination by the Secretary has been
made as described in paragraph (1). The Secretary shall make
the determination described in paragraph (1) within a reasonable period of time after receipt of the notice and resolution.
(g) NO PER CAPITA DISTRIBUTIONS.—No portion of the Fund
shall be distributed on a per capita basis to members of the Pueblo.
Notice.
Determination.
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SEC. 506. MARKETING.
(a) PUEBLO WATER RIGHTS.—Subject to the approval of the
Secretary in accordance with subsection (e), the Pueblo may market
water rights secured to it under the Settlement Agreement and
Partial Final Decree, provided that such marketing is in accordance
with this section.
(b) PUEBLO CONTRACT RIGHTS TO SAN JUAN-CHAMA PROJECT
WATER.—Subject to the approval of the Secretary in accordance
with subsection (e), the Pueblo may subcontract water made available to the Pueblo under the contract authorized under section
508(b)(1)(A) to third parties to supply water for use within or
without the Taos Valley, provided that the delivery obligations
under such subcontract are not inconsistent with the Secretary’s
existing San Juan-Chama Project obligations and such subcontract
is in accordance with this section.
(c) LIMITATION.—
(1) IN GENERAL.—Diversion or use of water off Pueblo lands
pursuant to Pueblo water rights or Pueblo contract rights to
San Juan-Chama Project water shall be subject to and not
inconsistent with the same requirements and conditions of State
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law, any applicable Federal law, and any applicable interstate
compact as apply to the exercise of water rights or contract
rights to San Juan-Chama Project water held by non-Federal,
non-Indian entities, including all applicable State Engineer
permitting and reporting requirements.
(2) EFFECT ON WATER RIGHTS.—Such diversion or use off
Pueblo lands under paragraph (1) shall not impair water rights
or increase surface water depletions within the Taos Valley.
(d) MAXIMUM TERM.—
(1) IN GENERAL.—The maximum term of any water use
lease or subcontract, including all renewals, shall not exceed
99 years in duration.
(2) ALIENATION OF RIGHTS.—The Pueblo shall not permanently alienate any rights it has under the Settlement Agreement, the Partial Final Decree, and this title.
(e) APPROVAL OF SECRETARY.—The Secretary shall approve or
disapprove any lease or subcontract submitted by the Pueblo for
approval within a reasonable period of time after submission, provided that no Secretarial approval shall be required for any water
use lease for less than 10 acre-feet per year with a term of less
than 7 years, including all renewals.
(f) NO FORFEITURE OR ABANDONMENT.—The nonuse by a lessee
or subcontractor of the Pueblo of any right to which the Pueblo
is entitled under the Partial Final Decree shall in no event result
in a forfeiture, abandonment, relinquishment, or other loss of all
or any part of those rights.
(g) NO PREEMPTION.—
(1) IN GENERAL.—The approval authority of the Secretary
provided under subsection (e) shall not amend, construe, supersede, or preempt any State or Federal law, interstate compact,
or international treaty that pertains to the Colorado River,
the Rio Grande, or any of their tributaries, including the appropriation, use, development, storage, regulation, allocation, conservation, exportation, or quantity of those waters.
(2) APPLICABLE LAW.—The provisions of section 2116 of
the Revised Statutes (25 U.S.C. 177) shall not apply to any
water made available under the Settlement Agreement.
(h) NO PREJUDICE.—Nothing in this title shall be construed
to establish, address, prejudice, or prevent any party from litigating
whether or to what extent any applicable State law, Federal law,
or interstate compact does or does not permit, govern, or apply
to the use of the Pueblo’s water outside of New Mexico.
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SEC. 507. MUTUAL-BENEFIT PROJECTS.
(a) IN GENERAL.—Upon the Enforcement Date, the Secretary,
acting through the Commissioner of Reclamation, shall provide
financial assistance in the form of grants on a nonreimbursable
basis to Eligible Non-Pueblo Entities to plan, permit, design, engineer, and construct the Mutual-Benefit Projects in accordance with
the Settlement Agreement—
(1) to minimize adverse impacts on the Pueblo’s water
resources by moving future non-Indian ground water pumping
away from the Pueblo’s Buffalo Pasture; and
(2) to implement the resolution of a dispute over the allocation of certain surface water flows between the Pueblo and
non-Indian irrigation water right owners in the community
of Arroyo Seco Arriba.
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(b) COST-SHARING.—
(1) FEDERAL SHARE.—The Federal share of the total cost
of planning, designing, and constructing the Mutual-Benefit
Projects authorized in subsection (a) shall be 75 percent and
shall be nonreimbursable.
(2) NON-FEDERAL SHARE.—The non-Federal share of the
total cost of planning, designing, and constructing the MutualBenefit Projects shall be 25 percent and may be in the form
of in-kind contributions, including the contribution of any valuable asset or service that the Secretary determines would
substantially contribute to completing the Mutual-Benefit
Projects.
(3) ADDITIONAL STATE CONTRIBUTION.—As a condition of
expenditure by the Secretary of the funds made available under
section 509(c)(2), the State shall—
(A) appropriate and make available the non-Federal
share described in paragraph (2); and
(B) agree to provide additional funding associated with
the Mutual-Benefit Projects as described in paragraph 10
of the Settlement Agreement.
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SEC. 508. SAN JUAN-CHAMA PROJECT CONTRACTS.
(a) IN GENERAL.—Contracts issued under this section shall
be in accordance with this title and the Settlement Agreement.
(b) CONTRACTS FOR SAN JUAN-CHAMA PROJECT WATER.—
(1) IN GENERAL.—The Secretary shall enter into 3 repayment contracts within a reasonable period after the date of
enactment of this Act, for the delivery of San Juan-Chama
Project water in the following amounts:
(A) 2,215 acre-feet/annum to the Pueblo.
(B) 366 acre-feet/annum to the Town of Taos.
(C) 40 acre-feet/annum to the El Prado Water and
Sanitation District.
(2) REQUIREMENTS.—Each such contract shall provide that
if the conditions precedent set forth in section 509(f)(2) have
not been fulfilled by March 31, 2017, the contract shall expire
on that date.
(3) APPLICABLE LAW.—Public Law 87–483 (76 Stat. 97)
applies to the contracts entered into under paragraph (1) and
no preference shall be applied as a result of section 504(a)
with regard to the delivery or distribution of San Juan-Chama
Project water or the management or operation of the San JuanChama Project.
(c) WAIVER.—With respect to the contract authorized and
required by subsection (b)(1)(A) and notwithstanding the provisions
of Public Law 87–483 (76 Stat. 96) or any other provision of law—
(1) the Secretary shall waive the entirety of the Pueblo’s
share of the construction costs, both principal and the interest,
for the San Juan-Chama Project and pursuant to that waiver,
the Pueblo’s share of all construction costs for the San JuanChama Project, inclusive of both principal and interest shall
be nonreimbursable; and
(2) the Secretary’s waiver of the Pueblo’s share of the
construction costs for the San Juan-Chama Project will not
result in an increase in the pro rata shares of other San
Juan-Chama Project water contractors, but such costs shall
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Expiration date.
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be absorbed by the United States Treasury or otherwise appropriated to the Department of the Interior.
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SEC. 509. AUTHORIZATIONS, RATIFICATIONS, CONFIRMATIONS, AND
CONDITIONS PRECEDENT.
(a) RATIFICATION.—
(1) IN GENERAL.—Except to the extent that any provision
of the Settlement Agreement conflicts with any provision of
this title, the Settlement Agreement is authorized, ratified,
and confirmed.
(2) AMENDMENTS.—To the extent amendments are executed
to make the Settlement Agreement consistent with this title,
such amendments are also authorized, ratified, and confirmed.
(b) EXECUTION OF SETTLEMENT AGREEMENT.—To the extent
that the Settlement Agreement does not conflict with this title,
the Secretary shall execute the Settlement Agreement, including
all exhibits to the Settlement Agreement requiring the signature
of the Secretary and any amendments necessary to make the Settlement Agreement consistent with this title, after the Pueblo has
executed the Settlement Agreement and any such amendments.
(c) FUNDING.—
(1) TAOS PUEBLO WATER DEVELOPMENT FUND.—
(A) MANDATORY APPROPRIATION.—Out of any funds in
the Treasury not otherwise appropriated, the Secretary
of the Treasury shall transfer to the Secretary for deposit
in the Taos Pueblo Water Development Fund established
by section 505(a), for the period of fiscal years 2011 through
2016, $50,000,000, as adjusted by such amounts as may
be required due to increases since April 1, 2007, in
construction costs, as indicated by engineering cost indices
applicable to the types of construction or rehabilitation
involved.
(B) AUTHORIZATION OF APPROPRIATIONS.—In addition
to the amount made available under subparagraph (A),
there is authorized to be appropriated to the Secretary
for deposit in the Taos Pueblo Water Development Fund
established by section 505(a) $38,000,000, as adjusted by
such amounts as may be required due to increases since
April 1, 2007, in construction costs, as indicated by
engineering cost indices applicable to the types of construction or rehabilitation involved, for the period of fiscal years
2011 through 2016.
(2) MUTUAL-BENEFIT PROJECTS FUNDING.—
(A) FUNDING.—
(i) MANDATORY APPROPRIATION.—Out of any funds
in the Treasury not otherwise appropriated, the Secretary of the Treasury shall transfer to the Secretary
to provide grants pursuant to section 507 $16,000,000
for the period of fiscal years 2011 through 2016.
(ii) AUTHORIZATION OF APPROPRIATIONS.—In addition to the amount made available under clause (i),
there is authorized to be appropriated to the Secretary
to provide grants pursuant to section 507 $20,000,000
for the period of fiscal years 2011 through 2016.
(B) DEPOSIT IN FUND.—The Secretary shall deposit the
funds made available pursuant to subparagraph (A) into
a noninterest-bearing fund, to be known as the ‘‘Taos
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Settlement Fund’’, to be established in the Treasury of
the United States so that such funds may be made available
on the Enforcement Date as set forth in section 507(a).
(3) RECEIPT AND ACCEPTANCE.—The Secretary shall be entitled to receive, shall accept, and shall use to carry out this
title the funds transferred under paragraphs (1)(A) and (2)(A)(i),
without further appropriation, to remain available until
expended.
(d) AUTHORITY OF SECRETARY.—The Secretary is authorized
to enter into such agreements and to take such measures as the
Secretary may deem necessary or appropriate to fulfill the intent
of the Settlement Agreement and this title.
(e) ENVIRONMENTAL COMPLIANCE.—
(1) EFFECT OF EXECUTION OF SETTLEMENT AGREEMENT.—
The Secretary’s execution of the Settlement Agreement shall
not constitute a major Federal action under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(2) COMPLIANCE WITH ENVIRONMENTAL LAWS.—In carrying
out this title, the Secretary shall comply with each law of
the Federal Government relating to the protection of the
environment, including—
(A) the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.); and
(B) the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.).
(f) CONDITIONS PRECEDENT AND SECRETARIAL FINDING.—
(1) IN GENERAL.—Upon the fulfillment of the conditions
precedent described in paragraph (2), the Secretary shall publish in the Federal Register a statement of finding that the
conditions have been fulfilled.
(2) CONDITIONS.—The conditions precedent referred to in
paragraph (1) are the following:
(A) The President has signed into law the Taos Pueblo
Indian Water Rights Settlement Act.
(B) To the extent that the Settlement Agreement conflicts with this title, the Settlement Agreement has been
revised to conform with this title.
(C) The Settlement Agreement, so revised, including
waivers and releases pursuant to section 510, has been
executed by the Parties and the Secretary prior to the
Parties’ motion for entry of the Partial Final Decree.
(D) Congress has fully appropriated or the Secretary
has provided from other authorized sources all funds made
available under paragraphs (1) and (2) of subsection (c).
(E) The Legislature of the State of New Mexico has
fully appropriated the funds for the State contributions
as specified in the Settlement Agreement, and those funds
have been deposited in appropriate accounts.
(F) The State of New Mexico has enacted legislation
that amends NMSA 1978, section 72–6–3 to state that
a water use due under a water right secured to the Pueblo
under the Settlement Agreement or the Partial Final
Decree may be leased for a term, including all renewals,
not to exceed 99 years, provided that this condition shall
not be construed to require that said amendment state
that any State law based water rights acquired by the
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Contracts.
Federal Register,
publication.
New Mexico.
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Publication.
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PUBLIC LAW 111–291—DEC. 8, 2010
Pueblo or by the United States on behalf of the Pueblo
may be leased for said term.
(G) A Partial Final Decree that sets forth the water
rights and contract rights to water to which the Pueblo
is entitled under the Settlement Agreement and this title
and that substantially conforms to the Settlement Agreement and Attachment 5 thereto has been approved by
the Court and has become final and nonappealable.
(g) ENFORCEMENT DATE.—The Settlement Agreement shall
become enforceable, and the waivers and releases executed pursuant
to section 510 and the limited waiver of sovereign immunity set
forth in section 511(a) shall become effective, as of the date that
the Secretary publishes the notice required by subsection (f)(1).
(h) EXPIRATION DATE.—
(1) IN GENERAL.—If all of the conditions precedent described
in section (f)(2) have not been fulfilled by March 31, 2017,
the Settlement Agreement shall be null and void, the waivers
and releases executed pursuant to section 510 and the sovereign
immunity waivers in section 511(a) shall not become effective,
and any unexpended Federal funds, together with any income
earned thereon, and title to any property acquired or constructed with expended Federal funds, shall be returned to
the Federal Government, unless otherwise agreed to by the
Parties in writing and approved by Congress.
(2) EXCEPTION.—Notwithstanding subsection (h)(1) or any
other provision of law, except as provided in subsection (i),
title to any property acquired or constructed with expended
Federal funds made available under section 505(f) shall be
retained by the Pueblo.
(i) RIGHT TO SET-OFF.—If the conditions precedent described
in subsection (f)(2) have not been fulfilled by March 31, 2017,
and the Settlement Agreement is null and void under subsection
(h)(1)—
(1) the United States shall be entitled to set off any Federal
funds made available under section 505(f) that were used for
purposes other than the purchase of water rights against any
claim of the Pueblo against the United States described in
section 510(b) (but excluding any claim retained under section
510(c)); and
(2) the Pueblo shall have the option either—
(A) to accept an equitable credit for any water rights
acquired with funds made available under section 505(f)
against any water rights secured for the Pueblo by the
Pueblo, or by the United States on behalf of the Pueblo,
in any litigation or future settlement of the case styled
New Mexico v. Abeyta and New Mexico v. Arellano, Civil
Nos. 7896–BB (U.S.6 D.N.M.) and 7939–BB (U.S. D.N.M.)
(consolidated); or
(B) to convey to the United States any water rights
acquired with funds made available under section 505(f).
(j) EXTENSION.—The dates in subsections (h) and (i) and section
510(e) may be extended if the Parties agree that an extension
is reasonably necessary.
SEC. 510. WAIVERS AND RELEASES OF CLAIMS.
(a) CLAIMS BY THE PUEBLO AND THE UNITED STATES.—In return
for recognition of the Pueblo’s water rights and other benefits,
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PUBLIC LAW 111–291—DEC. 8, 2010
124 STAT. 3131
including but not limited to the commitments by non-Pueblo parties,
as set forth in the Settlement Agreement and this title, the Pueblo,
on behalf of itself and its members, and the United States acting
in its capacity as trustee for the Pueblo are authorized to execute
a waiver and release of claims against the parties to New Mexico
v. Abeyta and New Mexico v. Arellano, Civil Nos. 7896–BB (U.S.6
D.N.M.) and 7939–BB (U.S. D.N.M.) (consolidated) from—
(1) all claims for water rights in the Taos Valley that
the Pueblo, or the United States acting in its capacity as
trustee for the Pueblo, asserted, or could have asserted, in
any proceeding, including but not limited to in New Mexico
v. Abeyta and New Mexico v. Arellano, Civil Nos. 7896–BB
(U.S.6 D.N.M.) and 7939–BB (U.S. D.N.M.) (consolidated), up
to and including the Enforcement Date, except to the extent
that such rights are recognized in the Settlement Agreement
or this title;
(2) all claims for water rights, whether for consumptive
or nonconsumptive use, in the Rio Grande mainstream or its
tributaries that the Pueblo, or the United States acting in
its capacity as trustee for the Pueblo, asserted or could assert
in any water rights adjudication proceedings except those
claims based on Pueblo or United States ownership of lands
or water rights acquired after the Enforcement Date, provided
that nothing in this paragraph shall prevent the Pueblo or
the United States from fully participating in the inter se phase
of any such water rights adjudication proceedings;
(3) all claims for damages, losses or injuries to water rights
or claims of interference with, diversion or taking of water
(including but not limited to claims for injury to lands resulting
from such damages, losses, injuries, interference with, diversion, or taking) in the Rio Grande mainstream or its tributaries
or for lands within the Taos Valley that accrued at any time
up to and including the Enforcement Date; and
(4) all claims against the State of New Mexico, its agencies,
or employees relating to the negotiation or the adoption of
the Settlement Agreement.
(b) CLAIMS BY THE PUEBLO AGAINST THE UNITED STATES.—
The Pueblo, on behalf of itself and its members, is authorized
to execute a waiver and release of—
(1) all claims against the United States, its agencies, or
employees relating to claims for water rights in or water of
the Taos Valley that the United States acting in its capacity
as trustee for the Pueblo asserted, or could have asserted,
in any proceeding, including but not limited to in New Mexico
v. Abeyta and New Mexico v. Arellano, Civil Nos. 7896–BB
(U.S.6 D.N.M.) and 7939–BB (U.S. D.N.M.) (consolidated);
(2) all claims against the United States, its agencies, or
employees relating to damages, losses, or injuries to water,
water rights, land, or natural resources due to loss of water
or water rights (including but not limited to damages, losses
or injuries to hunting, fishing, gathering, or cultural rights
due to loss of water or water rights, claims relating to interference with, diversion or taking of water or water rights,
or claims relating to failure to protect, acquire, replace, or
develop water, water rights or water infrastructure) in the
Rio Grande mainstream or its tributaries or within the Taos
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124 STAT. 3132
PUBLIC LAW 111–291—DEC. 8, 2010
Valley that first accrued at any time up to and including
the Enforcement Date;
(3) all claims against the United States, its agencies, or
employees for an accounting of funds appropriated by the Act
of March 4, 1929 (45 Stat. 1562), the Act of March 4, 1931
(46 Stat. 1552), the Act of June 22, 1936 (49 Stat. 1757),
the Act of August 9, 1937 (50 Stat. 564), and the Act of May
9, 1938 (52 Stat. 291), as authorized by the Pueblo Lands
Act of June 7, 1924 (43 Stat. 636), and the Pueblo Lands
Act of May 31, 1933 (48 Stat. 108), and for breach of trust
relating to funds for water replacement appropriated by said
Acts that first accrued before the date of enactment of this
Act;
(4) all claims against the United States, its agencies, or
employees relating to the pending litigation of claims relating
to the Pueblo’s water rights in New Mexico v. Abeyta and
New Mexico v. Arellano, Civil Nos. 7896–BB (U.S.6 D.N.M.)
and 7939–BB (U.S. D.N.M.) (consolidated); and
(5) all claims against the United States, its agencies, or
employees relating to the negotiation, Execution or the adoption
of the Settlement Agreement, exhibits thereto, the Final Decree,
or this title.
(c) RESERVATION OF RIGHTS AND RETENTION OF CLAIMS.—Notwithstanding the waivers and releases authorized in this title,
the Pueblo on behalf of itself and its members and the United
States acting in its capacity as trustee for the Pueblo retain—
(1) all claims for enforcement of the Settlement Agreement,
the Final Decree, including the Partial Final Decree, the San
Juan-Chama Project contract between the Pueblo and the
United States, or this title;
(2) all claims against persons other than the Parties to
the Settlement Agreement for damages, losses or injuries to
water rights or claims of interference with, diversion or taking
of water rights (including but not limited to claims for injury
to lands resulting from such damages, losses, injuries, interference with, diversion, or taking of water rights) within the
Taos Valley arising out of activities occurring outside the Taos
Valley or the Taos Valley Stream System;
(3) all rights to use and protect water rights acquired
after the date of enactment of this Act;
(4) all rights to use and protect water rights acquired
pursuant to State law, to the extent not inconsistent with
the Partial Final Decree and the Settlement Agreement
(including water rights for the land the Pueblo owns in Questa,
New Mexico);
(5) all claims relating to activities affecting the quality
of water including but not limited to any claims the Pueblo
might have under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.) (including but not limited to claims for damages to natural
resources), the Safe Drinking Water Act (42 U.S.C. 300f et
seq.), the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.), and the regulations implementing those Acts;
(6) all claims relating to damages, losses, or injuries to
land or natural resources not due to loss of water or water
rights (including but not limited to hunting, fishing, gathering,
or cultural rights); and
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(7) all rights, remedies, privileges, immunities, powers, and
claims not specifically waived and released pursuant to this
title and the Settlement Agreement.
(d) EFFECT.—Nothing in the Settlement Agreement or this
title—
(1) affects the ability of the United States acting in its
sovereign capacity to take actions authorized by law, including
but not limited to any laws relating to health, safety, or the
environment, including but not limited to the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.), the Safe Drinking
Water Act (42 U.S.C. 300f et seq.), the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9601 et seq.), the Solid Waste Disposal Act (42 U.S.C.
6901 et seq.), and the regulations implementing such Acts;
(2) affects the ability of the United States to take actions
acting in its capacity as trustee for any other Indian tribe
or allottee;
(3) confers jurisdiction on any State court to—
(A) interpret Federal law regarding health, safety, or
the environment or determine the duties of the United
States or other parties pursuant to such Federal law; or
(B) conduct judicial review of Federal agency action;
or
(4) waives any claim of a member of the Pueblo in an
individual capacity that does not derive from a right of the
Pueblo.
(e) TOLLING OF CLAIMS.—
(1) IN GENERAL.—Each applicable period of limitation and
time-based equitable defense relating to a claim described in
this section shall be tolled for the period beginning on the
date of enactment of this Act and ending on the earlier of—
(A) March 31, 2017; or
(B) the Enforcement Date.
(2) EFFECT OF SUBSECTION.—Nothing in this subsection
revives any claim or tolls any period of limitation or timebased equitable defense that expired before the date of enactment of this Act.
(3) LIMITATION.—Nothing in this subsection precludes the
tolling of any period of limitations or any time-based equitable
defense under any other applicable law.
Time period.
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SEC. 511. INTERPRETATION AND ENFORCEMENT.
(a) LIMITED WAIVER OF SOVEREIGN IMMUNITY.—Upon and after
the Enforcement Date, if any Party to the Settlement Agreement
brings an action in any court of competent jurisdiction over the
subject matter relating only and directly to the interpretation or
enforcement of the Settlement Agreement or this title, and names
the United States or the Pueblo as a party, then the United States,
the Pueblo, or both may be added as a party to any such action,
and any claim by the United States or the Pueblo to sovereign
immunity from the action is waived, but only for the limited and
sole purpose of such interpretation or enforcement, and no waiver
of sovereign immunity is made for any action against the United
States or the Pueblo that seeks money damages.
(b) SUBJECT MATTER JURISDICTION NOT AFFECTED.—Nothing
in this title shall be deemed as conferring, restricting, enlarging,
or determining the subject matter jurisdiction of any court,
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PUBLIC LAW 111–291—DEC. 8, 2010
including the jurisdiction of the court that enters the Partial Final
Decree adjudicating the Pueblo’s water rights.
(c) REGULATORY AUTHORITY NOT AFFECTED.—Nothing in this
title shall be deemed to determine or limit any authority of the
State or the Pueblo to regulate or administer waters or water
rights now or in the future.
SEC. 512. DISCLAIMER.
Nothing in the Settlement Agreement or this title shall be
construed in any way to quantify or otherwise adversely affect
the land and water rights, claims, or entitlements to water of
any other Indian tribe.
SEC. 513. ANTIDEFICIENCY.
The United States shall not be liable for failure to carry out
any obligation or activity authorized to be carried out under this
title (including any such obligation or activity under the Agreement)
if adequate appropriations are not provided expressly to carry out
the purposes of this title by Congress or there are not enough
monies available to carry out the purposes of this title in the
Reclamation Water Settlements Fund established under section
10501 of Public Law 111–11 or the ‘‘Emergency Fund for Indian
Safety and Health’’ established by section 601(a) of the Tom Lantos
and Henry J. Hyde United States Global Leadership Against HIV/
AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008 (25
U.S.C. 443c(a)).
TITLE VI—AAMODT LITIGATION
SETTLEMENT
Aamodt
Litigation
Settlement Act.
SEC. 601. SHORT TITLE.
This title may be cited as the ‘‘Aamodt Litigation Settlement
Act’’.
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SEC. 602. DEFINITIONS.
In this title:
(1) AAMODT CASE.—The term ‘‘Aamodt Case’’ means the
civil action entitled State of New Mexico, ex rel. State Engineer
and United States of America, Pueblo de Nambe, Pueblo de
Pojoaque, Pueblo de San Ildefonso, and Pueblo de Tesuque
v. R. Lee Aamodt, et al., No. 66 CV 6639 MV/LCS (D.N.M.).
(2) ACRE-FEET.—The term ‘‘acre-feet’’ means acre-feet of
water per year.
(3) AUTHORITY.—The term ‘‘Authority’’ means the Pojoaque
Basin Regional Water Authority described in section 9.5 of
the Settlement Agreement or an alternate entity acceptable
to the Pueblos and the County to operate and maintain the
diversion and treatment facilities, certain transmission pipelines, and other facilities of the Regional Water System.
(4) CITY.—The term ‘‘City’’ means the city of Santa Fe,
New Mexico.
(5) COST-SHARING AND SYSTEM INTEGRATION AGREEMENT.—
The term ‘‘Cost-Sharing and System Integration Agreement’’
means the agreement, dated August 27, 2009, to be executed
by the United States, the State, the Pueblos, the County, and
the City that—
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PUBLIC LAW 111–291—DEC. 8, 2010
124 STAT. 3135
(A) describes the location, capacity, and management
(including the distribution of water to customers) of the
Regional Water System; and
(B) allocates the costs of the Regional Water System
with respect to—
(i) the construction, operation, maintenance, and
repair of the Regional Water System;
(ii) rights-of-way for the Regional Water System;
and
(iii) the acquisition of water rights.
(6) COUNTY.—The term ‘‘County’’ means Santa Fe County,
New Mexico.
(7) COUNTY DISTRIBUTION SYSTEM.—The term ‘‘County Distribution System’’ means the portion of the Regional Water
System that serves water customers on non-Pueblo land in
the Pojoaque Basin.
(8) COUNTY WATER UTILITY.—The term ‘‘County Water
Utility’’ means the water utility organized by the County to—
(A) receive water distributed by the Authority; and
(B) provide the water received under subparagraph
(A) to customers on non-Pueblo land in the Pojoaque Basin.
(9) ENGINEERING REPORT.—The term ‘‘Engineering Report’’
means the report entitled ‘‘Pojoaque Regional Water System
Engineering Report’’ dated September 2008 and any amendments thereto, including any modifications which may be
required by section 611(d)(2).
(10) FUND.—The term ‘‘Fund’’ means the Aamodt Settlement Pueblos’ Fund established by section 615(a).
(11) OPERATING AGREEMENT.—The term ‘‘Operating Agreement’’ means the agreement between the Pueblos and the
County executed under section 612(a).
(12) OPERATIONS, MAINTENANCE, AND REPLACEMENT
COSTS.—
(A) IN GENERAL.—The term ‘‘operations, maintenance,
and replacement costs’’ means all costs for the operation
of the Regional Water System that are necessary for the
safe, efficient, and continued functioning of the Regional
Water System to produce the benefits described in the
Settlement Agreement.
(B) EXCLUSION.—The term ‘‘operations, maintenance,
and replacement costs’’ does not include construction costs
or costs related to construction design and planning.
(13) POJOAQUE BASIN.—
(A) IN GENERAL.—The term ‘‘Pojoaque Basin’’ means
the geographic area limited by a surface water divide
(which can be drawn on a topographic map), within which
area rainfall and runoff flow into arroyos, drainages, and
named tributaries that eventually drain to—
(i) the Rio Pojoaque; or
(ii) the 2 unnamed arroyos immediately south; and
(iii) 2 arroyos (including the Arroyo Alamo) that
are north of the confluence of the Rio Pojoaque and
the Rio Grande.
(B) INCLUSION.—The term ‘‘Pojoaque Basin’’ includes
the San Ildefonso Eastern Reservation recognized by section 8 of Public Law 87–231 (75 Stat. 505).
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124 STAT. 3136
PUBLIC LAW 111–291—DEC. 8, 2010
(14) PUEBLO.—The term ‘‘Pueblo’’ means each of the
pueblos of Nambe, Pojoaque, San Ildefonso, or Tesuque.
(15) PUEBLOS.—The term ‘‘Pueblos’’ means collectively the
Pueblos of Nambe, Pojoaque, San Ildefonso, and Tesuque.
(16) PUEBLO LAND.—The term ‘‘Pueblo land’’ means any
real property that is—
(A) held by the United States in trust for a Pueblo
within the Pojoaque Basin;
(B)(i) owned by a Pueblo within the Pojoaque Basin
before the date on which a court approves the Settlement
Agreement; or
(ii) acquired by a Pueblo on or after the date on which
a court approves the Settlement Agreement, if the real
property is located—
(I) within the exterior boundaries of the Pueblo,
as recognized and conformed by a patent issued under
the Act of December 22, 1858 (11 Stat. 374, chapter
V); or
(II) within the exterior boundaries of any territory
set aside for the Pueblo by law, executive order, or
court decree;
(C) owned by a Pueblo or held by the United States
in trust for the benefit of a Pueblo outside the Pojoaque
Basin that is located within the exterior boundaries of
the Pueblo as recognized and confirmed by a patent issued
under the Act of December 22, 1858 (11 Stat. 374, chapter
V); or
(D) within the exterior boundaries of any real property
located outside the Pojoaque Basin set aside for a Pueblo
by law, executive order, or court decree, if the land is
within or contiguous to land held by the United States
in trust for the Pueblo as of January 1, 2005.
(17) PUEBLO WATER FACILITY.—
(A) IN GENERAL.—The term ‘‘Pueblo Water Facility’’
means—
(i) a portion of the Regional Water System that
serves only water customers on Pueblo land; and
(ii) portions of a Pueblo water system in existence
on the date of enactment of this Act that serve water
customers on non-Pueblo land, also in existence on
the date of enactment of this Act, or their successors,
that are—
(I) depicted in the final project design, as modified by the drawings reflecting the completed
Regional Water System; and
(II) described in the Operating Agreement.
(B) INCLUSIONS.—The term ‘‘Pueblo Water Facility’’
includes—
(i) the barrier dam and infiltration project on the
Rio Pojoaque described in the Engineering Report; and
(ii) the Tesuque Pueblo infiltration pond described
in the Engineering Report.
(18) REGIONAL WATER SYSTEM.—
(A) IN GENERAL.—The term ‘‘Regional Water System’’
means the Regional Water System described in section
611(a).
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(B) EXCLUSIONS.—The term ‘‘Regional Water System’’
does not include the County or Pueblo water supply delivered through the Regional Water System.
(19) SAN JUAN-CHAMA PROJECT.—The term ‘‘San JuanChama Project’’ means the Project authorized by section 8
of the Act of June 13, 1962 (76 Stat. 96, 97), and the Act
of April 11, 1956 (70 Stat. 105).
(20) SAN JUAN-CHAMA PROJECT ACT.—The term ‘‘San JuanChama Project Act’’ means sections 8 through 18 of the Act
of June 13, 1962 (76 Stat. 96, 97).
(21) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of the Interior.
(22) SETTLEMENT AGREEMENT.—The term ‘‘Settlement
Agreement’’ means the agreement among the State, the
Pueblos, the United States, the County, and the City dated
January 19, 2006, and signed by all of the government parties
to the Settlement Agreement (other than the United States)
on May 3, 2006, as amended in conformity with this title.
(23) STATE.—The term ‘‘State’’ means the State of New
Mexico.
Subtitle A—Pojoaque Basin Regional
Water System
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SEC. 611. AUTHORIZATION OF REGIONAL WATER SYSTEM.
(a) IN GENERAL.—The Secretary, acting through the Commissioner of Reclamation, shall plan, design, and construct a regional
water system in accordance with the Settlement Agreement, to
be known as the ‘‘Regional Water System’’—
(1) to divert and distribute water to the Pueblos and to
the County Water Utility, in accordance with the Engineering
Report; and
(2) that consists of—
(A) surface water diversion facilities at San Ildefonso
Pueblo on the Rio Grande; and
(B) any treatment, transmission, storage and distribution facilities and wellfields for the County Distribution
System and Pueblo Water Facilities that are necessary
to supply 4,000 acre-feet of water within the Pojoaque
Basin, unless modified in accordance with subsection (d)(2).
(b) FINAL PROJECT DESIGN.—The Secretary shall issue a final
project design within 90 days of completion of the environmental
compliance described in section 616 for the Regional Water System
that—
(1) is consistent with the Engineering Report; and
(2) includes a description of any Pueblo Water Facilities.
(c) ACQUISITION OF LAND; WATER RIGHTS.—
(1) ACQUISITION OF LAND.—Upon request, and in exchange
for the funding which shall be provided in section 617(c), the
Pueblos shall consent to the grant of such easements and
rights-of-way as may be necessary for the construction of the
Regional Water System at no cost to the Secretary. To the
extent that the State or County own easements or rightsof-way that may be used for construction of the Regional Water
System, the State or County shall provide that land or interest
in land as necessary for construction at no cost to the Secretary.
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124 STAT. 3138
PUBLIC LAW 111–291—DEC. 8, 2010
The Secretary shall acquire any other land or interest in land
that is necessary for the construction of the Regional Water
System.
(2) WATER RIGHTS.—The Secretary shall not condemn water
rights for purposes of the Regional Water System.
(d) CONDITIONS FOR CONSTRUCTION.—
(1) IN GENERAL.—The Secretary shall not begin construction of the Regional Water System facilities until the date
on which—
(A) the Secretary executes—
(i) the Settlement Agreement; and
(ii) the Cost-Sharing and System Integration
Agreement; and
(B) the State and the County have entered into an
agreement with the Secretary to contribute the non-Federal
share of the costs of the construction in accordance with
the Cost-Sharing and System Integration Agreement.
(2) MODIFICATIONS TO REGIONAL WATER SYSTEM.—
(A) IN GENERAL.—The State and the County, in agreement with the Pueblos, the City, and other signatories
to the Cost-Sharing and System Integration Agreement,
may modify the extent, size, and capacity of the County
Distribution System as set forth in the Cost-Sharing and
System Integration Agreement.
(B) EFFECT.—A modification under subparagraph (A)—
(i) shall not affect implementation of the Settlement Agreement so long as the provisions in section
623 are satisfied; and
(ii) may result in an adjustment of the State and
County cost-share allocation as set forth in the CostSharing and System Integration Agreement.
(e) APPLICABLE LAW.—The Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) shall not apply to
the design and construction of the Regional Water System.
(f) CONSTRUCTION COSTS.—
(1) PUEBLO WATER FACILITIES.—
(A) IN GENERAL.—Except as provided in subparagraph
(B), the expenditures of the Secretary to construct the
Pueblo Water Facilities under this section shall not exceed
$106,400,000.
(B) EXCEPTION.—The amount described in subparagraph (A) shall be increased or decreased, as appropriate,
based on ordinary fluctuations in construction costs since
October 1, 2006, as determined using applicable
engineering cost indices.
(2) COSTS TO PUEBLO.—The costs incurred by the Secretary
in carrying out activities to construct the Pueblo Water Facilities under this section shall not be reimbursable to the United
States.
(3) COUNTY DISTRIBUTION SYSTEM.—As a condition of the
Secretary using the funds made available pursuant to section
617(a)(1), the costs of constructing the County Distribution
System shall be a State and local expense pursuant to the
Cost-Sharing and System Integration Agreement.
(g) INITIATION OF DISCUSSIONS.—
(1) IN GENERAL.—If the Secretary determines that the cost
of constructing the Regional Water System exceed the amounts
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described in the Cost-Sharing and System Integration Agreement for construction of the Regional Water System and would
necessitate funds in excess of the amount made available pursuant to section 617(a)(1), the Secretary shall initiate negotiations
with the parties to the Cost-Sharing and System Integration
Agreement for an agreement regarding non-Federal contributions to ensure that the Regional Water System can be completed as required by section 623(e).
(2) JOINT RESPONSIBILITIES.—The United States shall not
bear the entire amount of any cost overrun, nor shall the
State be responsible to pay any amounts in addition to the
amounts specified in the Cost-Sharing and System Integration
Agreement.
(h) CONVEYANCE OF REGIONAL WATER SYSTEM FACILITIES.—
(1) IN GENERAL.—Subject to paragraph (2), on completion
of the construction of the Regional Water System as defined
in section 623(e), the Secretary, in accordance with the Operating Agreement, shall convey to—
(A) each Pueblo the portion of any Pueblo Water
Facility that is located within the boundaries of the Pueblo,
including any land or interest in land located within the
boundaries of the Pueblo that is acquired by the United
States for the construction of the Pueblo Water Facility;
(B) the County the County Distribution System,
including any land or interest in land acquired by the
United States for the construction of the County Distribution System; and
(C) the Authority any portions of the Regional Water
System that remain after making the conveyances under
subparagraphs (A) and (B), including any land or interest
in land acquired by the United States for the construction
of the portions of the Regional Water System.
(2) CONDITIONS FOR CONVEYANCE.—The Secretary shall not
convey any portion of the Regional Water System facilities
under paragraph (1) until the date on which—
(A) construction of the Regional Water System is
substantially complete, as defined in section 623(e); and
(B) the Operating Agreement is executed in accordance
with section 612.
(3) SUBSEQUENT CONVEYANCE.—On conveyance by the Secretary under paragraph (1), the Pueblos, the County, and the
Authority shall not reconvey any portion of the Regional Water
System conveyed to the Pueblos, the County, and the Authority,
respectively, unless the reconveyance is authorized by an Act
of Congress enacted after the date of enactment of this Act.
(4) INTEREST OF THE UNITED STATES.—On conveyance of
a portion of the Regional Water System under paragraph (1),
the United States shall have no further right, title, or interest
in and to the portion of the Regional Water System conveyed.
(5) ADDITIONAL CONSTRUCTION.—On conveyance of a portion of the Regional Water System under paragraph (1), the
Pueblos, County, or the Authority, as applicable, may, at the
expense of the Pueblos, County, or the Authority, construct
any additional infrastructure that is necessary to fully use
the water delivered by the Regional Water System.
(6) TAXATION.—Conveyance of title to any portion of the
Regional Water System, the Pueblo Water Facilities, or the
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County Distribution System under paragraph (1) does not waive
or alter any applicable Federal law prohibiting taxation of
such facilities or the underlying land.
(7) LIABILITY.—
(A) IN GENERAL.—Effective on the date of conveyance
of any land or facility under this section, the United States
shall not be held liable by any court for damages of any
kind arising out of any act, omission, or occurrence relating
to the land and facilities conveyed, other than damages
caused by acts of negligence by the United States, or by
employees or agents of the United States, prior to the
date of conveyance.
(B) TORT CLAIMS.—Nothing in this section increases
the liability of the United States beyond the liability provided in chapter 171 of title 28, United States Code (commonly known as the ‘‘Federal Tort Claims Act’’).
(8) EFFECT.—Nothing in any transfer of ownership provided
or any conveyance thereto as provided in this section shall
extinguish the right of any Pueblo, the County, or the Regional
Water Authority to the continuous use and benefit of each
easement or right of way for the use, operation, maintenance,
repair, and replacement of Pueblo Water Facilities, the County
Distribution System or the Regional Water System or for wastewater purposes as provided in the Cost-Sharing and System
Integration Agreement.
SEC. 612. OPERATING AGREEMENT.
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(a) IN GENERAL.—The Pueblos and the County shall submit
to the Secretary an executed Operating Agreement for the Regional
Water System that is consistent with this title, the Settlement
Agreement, and the Cost-Sharing and System Integration Agreement not later than 180 days after the later of—
(1) the date of completion of environmental compliance
and permitting; or
(2) the date of issuance of a final project design for the
Regional Water System under section 611(b).
(b) APPROVAL.—The Secretary shall approve or disapprove the
Operating Agreement within a reasonable period of time after the
Pueblos and the County submit the Operating Agreement described
in subsection (a) and upon making a determination that the Operating Agreement is consistent with this title, the Settlement Agreement, and the Cost-Sharing and System Integration Agreement.
(c) CONTENTS.—The Operating Agreement shall include—
(1) provisions consistent with the Settlement Agreement
and the Cost-Sharing and System Integration Agreement and
necessary to implement the intended benefits of the Regional
Water System described in those documents;
(2) provisions for—
(A) the distribution of water conveyed through the
Regional Water System, including a delineation of—
(i) distribution lines for the County Distribution
System;
(ii) distribution lines for the Pueblo Water Facilities; and
(iii) distribution lines that serve both—
(I) the County Distribution System; and
(II) the Pueblo Water Facilities;
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(B) the allocation of the Regional Water System
capacity;
(C) the terms of use of unused water capacity in the
Regional Water System;
(D) terms of interim use of County unused capacity,
in accordance with section 614(d);
(E) the construction of additional infrastructure and
the acquisition of associated rights-of-way or easements
necessary to enable any of the Pueblos or the County
to fully use water allocated to the Pueblos or the County
from the Regional Water System, including provisions
addressing when the construction of such additional infrastructure requires approval by the Authority;
(F) the allocation and payment of annual operation,
maintenance, and replacement costs for the Regional Water
System, including the portions of the Regional Water
System that are used to treat, transmit, and distribute
water to both the Pueblo Water Facilities and the County
Water Utility;
(G) the operation of wellfields located on Pueblo land;
(H) the transfer of any water rights necessary to provide the Pueblo water supply described in section 613(a);
(I) the operation of the Regional Water System with
respect to the water supply, including the allocation of
the water supply in accordance with section 3.1.8.4.2 of
the Settlement Agreement so that, in the event of a shortage of supply to the Regional Water System, the supply
to each of the Pueblos’ and to the County’s distribution
system shall be reduced on a pro rata basis, in proportion
to each distribution system’s most current annual use;
and
(J) dispute resolution; and
(3) provisions for operating and maintaining the Regional
Water System facilities before and after conveyance under section 611(h), including provisions to—
(A) ensure that—
(i) the operation of, and the diversion and conveyance of water by, the Regional Water System is in
accordance with the Settlement Agreement;
(ii) the wells in the Regional Water System are
used in conjunction with the surface water supply of
the Regional Water System to ensure a reliable firm
supply of water to all users of the Regional Water
System, consistent with the intent of the Settlement
Agreement that surface supplies will be used to the
maximum extent feasible;
(iii) the respective obligations regarding delivery,
payment, operation, and management are enforceable;
and
(iv) the County has the right to serve any new
water users located on non-Pueblo land in the Pojoaque
Basin; and
(B) allow for any aquifer storage and recovery projects
that are approved by the Office of the New Mexico State
Engineer.
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(d) EFFECT.—Nothing in this title precludes the Operating
Agreement from authorizing phased or interim operations if the
Regional Water System is constructed in phases.
SEC. 613. ACQUISITION OF PUEBLO WATER SUPPLY FOR REGIONAL
WATER SYSTEM.
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(a) IN GENERAL.—For the purpose of providing a reliable firm
supply of water from the Regional Water System for the Pueblos
in accordance with the Settlement Agreement, the Secretary, on
behalf of the Pueblos, shall—
(1) acquire water rights to—
(A) 302 acre-feet of Nambe reserved water described
in section 2.6.2 of the Settlement Agreement; and
(B) 1141 acre-feet from water acquired by the County
for water rights commonly referred to as ‘‘Top of the World’’
rights in the Aamodt Case;
(2) enter into a contract with the Pueblos for 1,079 acrefeet in accordance with section 11 of the San Juan-Chama
Project Act; and
(3) by application to the State Engineer, seek approval
to divert the water acquired and made available under paragraphs (1) and (2) at the points of diversion for the Regional
Water System, consistent with the Settlement Agreement and
the Cost-Sharing and System Integration Agreement.
(b) FORFEITURE.—The nonuse of the water supply secured by
the Secretary for the Pueblos under subsection (a) shall in no
event result in forfeiture, abandonment, relinquishment, or other
loss thereof.
(c) TRUST.—The Pueblo water rights secured under subsection
(a) shall be held by the United States in trust for the Pueblos.
(d) APPLICABLE LAW.—The water supply made available pursuant to subsection (a)(2) shall be subject to the San Juan-Chama
Project Act, and no preference shall be provided to the Pueblos
as a result of subsection (c) with regard to the delivery or distribution of San Juan-Chama Project water or the management or operation of the San Juan-Chama Project.
(e) CONTRACT FOR SAN JUAN-CHAMA PROJECT WATER SUPPLY.—
With respect to the contract for the water supply required by
subsection (a)(2), such San Juan-Chama Project contract shall be
pursuant to the following terms:
(1) WAIVERS.—Notwithstanding the provisions of the San
Juan-Chama Project Act, or any other provision of law—
(A) the Secretary shall waive the entirety of the
Pueblos’ share of the construction costs for the San JuanChama Project, and pursuant to that waiver, the Pueblos’
share of all construction costs for the San Juan-Chama
Project, inclusive of both principal and interest, due from
1972 to the execution of the contract required by subsection
(a)(2), shall be nonreimbursable;
(B) the Secretary’s waiver of each Pueblo’s share of
the construction costs for the San Juan-Chama Project
will not result in an increase in the pro rata shares of
other San Juan-Chama Project water contractors, but such
costs shall be absorbed by the United States Treasury
or otherwise appropriated to the Department of the
Interior; and
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(C) the construction costs associated with any water
made available from the San Juan-Chama Project which
were determined nonreimbursable and nonreturnable
pursuant to Public Law No. 88–293, 78 Stat. 171 (March
26, 1964), shall remain nonreimbursable and nonreturnable.
(2) TERMINATION.—The contract shall provide that it shall
terminate only on—
(A) failure of the United States District Court for the
District of New Mexico to enter a final decree for the
Aamodt Case by the expiration date described in section
623(b), or within the time period of any extension of that
deadline granted by the court; or
(B) entry of an order by the United States District
Court for the District of New Mexico voiding the final
decree and Settlement Agreement for the Aamodt Case
pursuant to section 10.3 of the Settlement Agreement.
(f) LIMITATION.—The Secretary shall use the water supply
secured under subsection (a) only for the purposes described in
the Settlement Agreement.
(g) FULFILLMENT OF WATER SUPPLY ACQUISITION OBLIGATIONS.—Compliance with subsections (a) through (f) shall satisfy
any and all obligations of the Secretary to acquire or secure a
water supply for the Pueblos pursuant to the Settlement Agreement.
(h) RIGHTS OF PUEBLOS IN SETTLEMENT AGREEMENT
UNAFFECTED.—Notwithstanding the provisions of subsections (a)
through (g), the Pueblos, the County or the Regional Water
Authority may acquire any additional water rights to ensure all
parties to the Settlement Agreement receive the full allocation
of water provided by the Settlement Agreement and nothing in
this title amends or modifies the quantities of water allocated
to the Pueblos thereunder.
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SEC. 614. DELIVERY AND ALLOCATION OF REGIONAL WATER SYSTEM
CAPACITY AND WATER.
(a) ALLOCATION OF REGIONAL WATER SYSTEM CAPACITY.—
(1) IN GENERAL.—The Regional Water System shall have
the capacity to divert from the Rio Grande a quantity of water
sufficient to provide—
(A) up to 4,000 acre-feet of consumptive use of water;
and
(B) the requisite peaking capacity described in—
(i) the Engineering Report; and
(ii) the final project design.
(2) ALLOCATION TO THE PUEBLOS AND COUNTY WATER
UTILITY.—Of the capacity described in paragraph (1)—
(A) there shall be allocated to the Pueblos—
(i) sufficient capacity for the conveyance of 2,500
acre-feet consumptive use; and
(ii) the requisite peaking capacity for the quantity
of water described in clause (i); and
(B) there shall be allocated to the County Water
Utility—
(i) sufficient capacity for the conveyance of up to
1,500 acre-feet consumptive use; and
(ii) the requisite peaking capacity for the quantity
of water described in clause (i).
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124 STAT. 3144
PUBLIC LAW 111–291—DEC. 8, 2010
(3) APPLICABLE LAW.—Water shall be allocated to the
Pueblos and the County Water Utility under this subsection
in accordance with—
(A) this subtitle;
(B) the Settlement Agreement; and
(C) the Operating Agreement.
(b) DELIVERY OF REGIONAL WATER SYSTEM WATER.—The
Authority shall deliver water from the Regional Water System—
(1) to the Pueblos water in a quantity sufficient to allow
full consumptive use of up to 2,500 acre-feet per year of water
rights by the Pueblos in accordance with—
(A) the Settlement Agreement;
(B) the Operating Agreement; and
(C) this subtitle; and
(2) to the County water in a quantity sufficient to allow
full consumptive use of up to 1,500 acre-feet per year of water
rights by the County Water Utility in accordance with—
(A) the Settlement Agreement;
(B) the Operating Agreement; and
(C) this subtitle.
(c) ADDITIONAL USE OF ALLOCATION QUANTITY AND UNUSED
CAPACITY.—The Regional Water System may be used to—
(1) provide for use of return flow credits to allow for full
consumptive use of the water allocated in the Settlement Agreement to each of the Pueblos and to the County; and
(2) convey water allocated to one of the Pueblos or the
County Water Utility for the benefit of another Pueblo or the
County Water Utility or allow use of unused capacity by each
other through the Regional Water System in accordance with
an intergovernmental agreement between the Pueblos, or
between a Pueblo and County Water Utility, as applicable,
if—
(A) such intergovernmental agreements are consistent
with the Operating Agreement, the Settlement Agreement,
and this title;
(B) capacity is available without reducing water
delivery to any Pueblo or the County Water Utility in
accordance with the Settlement Agreement, unless the
County Water Utility or Pueblo contracts for a reduction
in water delivery or Regional Water System capacity;
(C) the Pueblo or County Water Utility contracting
for use of the unused capacity or water has the right
to use the water under applicable law; and
(D) any agreement for the use of unused capacity or
water provides for payment of the operation, maintenance,
and replacement costs associated with the use of capacity
or water.
(d) INTERIM USE OF COUNTY CAPACITY.—In accordance with
section 9.6.4 of the Settlement Agreement, the County may use
unused capacity and water rights of the County Water Utility
to supply water within the County outside of the Pojoaque Basin—
(1) on approval by the State and the Authority; and
(2) subject to the issuance of a permit by the New Mexico
State Engineer.
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SEC. 615. AAMODT SETTLEMENT PUEBLOS’ FUND.
(a) ESTABLISHMENT OF THE AAMODT SETTLEMENT PUEBLOS’
FUND.—There is established in the Treasury of the United States
a fund, to be known as the ‘‘Aamodt Settlement Pueblos’ Fund,’’
consisting of—
(1) such amounts as are made available to the Fund under
section 617(c) or other authorized sources; and
(2) any interest earned from investment of amounts in
the Fund under subsection (b).
(b) MANAGEMENT OF THE FUND.—The Secretary shall manage
the Fund, invest amounts in the Fund, and make amounts available
from the Fund for distribution to the Pueblos in accordance with—
(1) the American Indian Trust Fund Management Reform
Act of 1994 (25 U.S.C. 4001 et seq.); and
(2) this title.
(c) INVESTMENT OF THE FUND.—On the date on which the
waivers become effective as set forth in section 623(d), the Secretary
shall invest amounts in the Fund in accordance with—
(1) the Act of April 1, 1880 (25 U.S.C. 161);
(2) the first section of the Act of June 24, 1938 (25 U.S.C.
162a); and
(3) the American Indian Trust Fund Management Reform
Act of 1994 (25 U.S.C. 4001 et seq.).
(d) TRIBAL MANAGEMENT PLAN.—
(1) IN GENERAL.—A Pueblo may withdraw all or part of
the Pueblo’s portion of the Fund on approval by the Secretary
of a tribal management plan as described in the American
Indian Trust Fund Management Reform Act of 1994 (25 U.S.C.
4001 et seq.).
(2) REQUIREMENTS.—In addition to the requirements under
the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4001 et seq.), the tribal management plan
shall require that a Pueblo spend any amounts withdrawn
from the Fund in accordance with the purposes described in
section 617(c).
(3) ENFORCEMENT.—The Secretary may take judicial or
administrative action to enforce the provisions of any tribal
management plan to ensure that any amounts withdrawn from
the Fund under an approved tribal management plan are used
in accordance with this subtitle.
(4) LIABILITY.—If a Pueblo or the Pueblos exercise the
right to withdraw amounts from the Fund, neither the Secretary nor the Secretary of the Treasury shall retain any
liability for the expenditure or investment of the amounts withdrawn.
(5) EXPENDITURE PLAN.—
(A) IN GENERAL.—The Pueblos shall submit to the Secretary for approval an expenditure plan for any portion
of the amounts in the Fund that the Pueblos do not withdraw under this subsection.
(B) DESCRIPTION.—The expenditure plan shall describe
the manner in which, and the purposes for which, amounts
remaining in the 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
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and consistent with this title, the Settlement Agreement,
and the Cost-Sharing and System Integration Agreement.
(D) ANNUAL REPORT.—The Pueblos shall submit to the
Secretary an annual report that describes all expenditures
from the Fund during the year covered by the report.
(6) NO PER CAPITA PAYMENTS.—No part of the principal
of the Fund, or the interest or income accruing on the principal
shall be distributed to any member of a Pueblo on a per capita
basis.
(7) AVAILABILITY OF AMOUNTS FROM THE FUND.—
(A) APPROVAL OF SETTLEMENT AGREEMENT.—
(i) IN GENERAL.—Except as provided in clause (ii),
amounts made available under section 617(c)(1), or
from other authorized sources, shall be available for
expenditure or withdrawal only after the publication
of the statement of findings required by section
623(a)(1).
(ii) EXCEPTION.—Notwithstanding clause (i), the
amounts described in that clause may be expended
before the date of publication of the statement of
findings under section 623(a)(1) for any activity that
is more cost-effective when implemented in conjunction
with the construction of the Regional Water System,
as determined by the Secretary.
(B) COMPLETION OF CERTAIN PORTIONS OF REGIONAL
WATER SYSTEM.—Amounts made available under section
617(c)(1) or from other authorized sources shall be available
for expenditure or withdrawal only after those portions
of the Regional Water System described in section 1.5.24
of the Settlement Agreement have been declared substantially complete by the Secretary.
SEC. 616. ENVIRONMENTAL COMPLIANCE.
(a) IN GENERAL.—In carrying out this subtitle, the Secretary
shall comply with each law of the Federal Government relating
to the protection of the environment, including—
(1) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.); and
(2) the Endangered Species Act of 1973 (16 U.S.C. 1531
et seq.).
(b) NATIONAL ENVIRONMENTAL POLICY ACT.—Nothing in this
title affects the outcome of any analysis conducted by the Secretary
or any other Federal official under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.).
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SEC. 617. FUNDING.
(a) REGIONAL WATER SYSTEM.—
(1) FUNDING.—
(A) MANDATORY APPROPRIATION.—Subject to paragraph
(5), out of any funds in the Treasury not otherwise appropriated, the Secretary of the Treasury shall transfer to
the Secretary for the planning, design, and construction
of the Regional Water System and the conduct of environmental compliance activities under section 616 an amount
not to exceed $56,400,000, as adjusted under paragraph
(4), for the period of fiscal years 2011 through 2016, to
remain available until expended.
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PUBLIC LAW 111–291—DEC. 8, 2010
124 STAT. 3147
(B) AUTHORIZATION OF APPROPRIATIONS.—In addition
to the amount made available under subparagraph (A),
there is authorized to be appropriated to the Secretary
for the planning, design, and construction of the Regional
Water System and the conduct of environmental compliance
activities under section 616 $50,000,000, as adjusted under
paragraph (4), for the period of fiscal years 2011 through
2024.
(2) RECEIPT AND ACCEPTANCE.—The Secretary shall be entitled to receive, shall accept, and shall use to carry out this
title the funds transferred under paragraph (1)(A), without
further appropriation, to remain available until expended.
(3) PRIORITY OF FUNDING.—Of the amounts made available
under paragraph (1), the Secretary shall give priority to
funding—
(A) the construction of the San Ildefonso portion of
the Regional Water System, consisting of—
(i) the surface water diversion, treatment, and
transmission facilities at San Ildefonso Pueblo; and
(ii) the San Ildefonso Pueblo portion of the Pueblo
Water Facilities; and
(B) that part of the Regional Water System providing
475 acre-feet to Pojoaque Pueblo pursuant to section 2.2
of the Settlement Agreement.
(4) ADJUSTMENT.—The amounts made available under
paragraph (1) shall be adjusted annually to account for
increases in construction costs since October 1, 2006, as determined using applicable engineering cost indices.
(5) LIMITATIONS.—
(A) IN GENERAL.—No amounts shall be made available
under paragraph (1) for the construction of the Regional
Water System until the date on which the United States
District Court for the District of New Mexico issues an
order approving the Settlement Agreement.
(B) RECORD OF DECISION.—No amounts made available
under paragraph (1) shall be expended for construction
unless the record of decision issued by the Secretary after
completion of an environmental impact statement provides
for a preferred alternative that is in substantial compliance
with the proposed Regional Water System, as defined in
the Engineering Report.
(b) ACQUISITION OF WATER RIGHTS.—
(1) IN GENERAL.—Out of any funds in the Treasury not
otherwise appropriated, the Secretary of the Treasury shall
transfer to the Secretary for the acquisition of the water rights
under section 613(a)(1)(B) $5,400,000.
(2) RECEIPT AND ACCEPTANCE.—The Secretary shall be entitled to receive, shall accept, and shall use to carry out this
title the funds transferred under paragraph (1), without further
appropriation, to remain available until expended.
(c) AAMODT SETTLEMENT PUEBLOS’ FUND.—
(1) FUNDING.—
(A) MANDATORY APPROPRIATIONS.—Out of any funds
in the Treasury not otherwise appropriated, the Secretary
of the Treasury shall transfer to the Secretary the following
amounts for the period of fiscal years 2011 through 2015:
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PUBLIC LAW 111–291—DEC. 8, 2010
(i) $15,000,000, as adjusted according to the CPI
Urban Index beginning on October 1, 2006, which shall
be allocated to the Pueblos, in accordance with section
2.7.1 of the Settlement Agreement, for the rehabilitation, improvement, operation, maintenance, and
replacement of the agricultural delivery facilities,
waste water systems, and other water-related infrastructure of the applicable Pueblo.
(ii) $5,000,000, as adjusted according to the CPI
Urban Index beginning on January 1, 2011, and any
interest on that amount, which shall be allocated to
the Pueblo of Nambe only for the acquisition land,
other real property interests, or economic development
for the Nambe reserved water rights in accordance
with section 613(a)(1)(A).
(B) AUTHORIZATION OF APPROPRIATIONS.—In addition
to the amounts made available under clauses (i) and (ii)
of subparagraph (A), respectively, there are authorized to
be appropriated to the Secretary for the period of fiscal
years 2011 through 2024, $37,500,000 to assist the Pueblos
in paying the Pueblos’ share of the cost of operating,
maintaining, and replacing the Pueblo Water Facilities and
the Regional Water System.
(2) OPERATION, MAINTENANCE, AND REPLACEMENT COSTS.—
(A) IN GENERAL.—Prior to conveyance of the Regional
Water System pursuant to section 611, the Secretary is
authorized to and shall pay any operation, maintenance,
and replacement costs associated with the Pueblo Water
Facilities or the Regional Water System, up to the amount
made available under subparagraph (B).
(B) AUTHORIZATION OF APPROPRIATIONS.—There is
authorized to be appropriated to the Secretary to carry
out subparagraph (A) $5,000,000.
(C) OBLIGATION OF FEDERAL GOVERNMENT AFTER
COMPLETION.—After the date on which construction of the
Regional Water System is completed and the amounts
required to be deposited in the Aamodt Settlement Pueblos’
Fund pursuant to paragraph (1) have been deposited by
the Federal Government—
(i) the Federal Government shall have no obligation to pay for the operation, maintenance, and replacement costs associated with the Pueblo Water Facilities
or the Regional Water System; and
(ii) the authorization for the Secretary to expend
funds for the operation, maintenance, and replacement
costs of those systems under subparagraph (A) shall
expire.
(3) RECEIPT AND ACCEPTANCE.—The Secretary shall be entitled to receive, shall accept, and shall use to carry out this
title the funds transferred under paragraphs (1)(A), without
further appropriation, to remain available until expended or
until the authorization for the Secretary to expend funds pursuant to paragraph (2) expires.
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Subtitle B—Pojoaque Basin Indian Water
Rights Settlement
SEC. 621. SETTLEMENT AGREEMENT AND CONTRACT APPROVAL.
(a) APPROVAL.—To the extent the Settlement Agreement and
the Cost-Sharing and System Integration Agreement do not conflict
with this title, the Settlement Agreement and the Cost-Sharing
and System Integration Agreement (including any amendments
to the Settlement Agreement and the Cost-Sharing and System
Integration Agreement that are executed to make the Settlement
Agreement or the Cost-Sharing and System Integration Agreement
consistent with this title) are authorized, ratified, and confirmed.
(b) EXECUTION.—To the extent the Settlement Agreement and
the Cost-Sharing and System Integration Agreement do not conflict
with this title, the Secretary shall execute the Settlement Agreement and the Cost-Sharing and System Integration Agreement
(including any amendments that are necessary to make the Settlement Agreement or the Cost-Sharing and System Integration Agreement consistent with this title).
(c) AUTHORITIES OF THE PUEBLOS.—
(1) IN GENERAL.—Each of the Pueblos may enter into leases
or contracts to exchange water rights or to forebear undertaking
new or expanded water uses for water rights recognized in
section 2.1 of the Settlement Agreement for use within the
Pojoaque Basin, in accordance with the other limitations of
section 2.1.5 of the Settlement Agreement, provided that section
2.1.5 is amended accordingly.
(2) APPROVAL BY SECRETARY.—Consistent with the Settlement Agreement, the Secretary shall approve or disapprove
a lease or contract entered into under paragraph (1).
(3) PROHIBITION ON PERMANENT ALIENATION.—No lease or
contract under paragraph (1) shall be for a term exceeding
99 years, nor shall any such lease or contract provide for
permanent alienation of any portion of the water rights made
available to the Pueblos under the Settlement Agreement.
(4) APPLICABLE LAW.—Section 2116 of the Revised Statutes
(25 U.S.C. 177) shall not apply to any lease or contract entered
into under paragraph (1).
(5) LEASING OR MARKETING OF WATER SUPPLY.—The water
supply provided on behalf of the Pueblos pursuant to section
613(a)(1) may only be leased or marketed by any of the Pueblos
pursuant to the intergovernmental agreements described in
section 614(c)(2).
(d) AMENDMENTS TO CONTRACTS.—The Secretary shall amend
the contracts relating to the Nambe Falls Dam and Reservoir that
are necessary to use water supplied from the Nambe Falls Dam
and Reservoir in accordance with the Settlement Agreement.
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SEC. 622. ENVIRONMENTAL COMPLIANCE.
(a) EFFECT OF EXECUTION OF SETTLEMENT AGREEMENT.—The
execution of the Settlement Agreement under section 611(b) shall
not constitute a major Federal action under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(b) COMPLIANCE WITH ENVIRONMENTAL LAWS.—In carrying out
this title, the Secretary shall comply with each law of the Federal
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PUBLIC LAW 111–291—DEC. 8, 2010
Government relating to the protection of the environment,
including—
(1) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.); and
(2) the Endangered Species Act of 1973 (16 U.S.C. 1531
et seq.).
SEC. 623. CONDITIONS PRECEDENT AND ENFORCEMENT DATE.
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Federal Register,
publication.
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(a) CONDITIONS PRECEDENT.—
(1) IN GENERAL.—Upon the fulfillment of the conditions
precedent described in paragraph (2), the Secretary shall publish in the Federal Register by September 15, 2017, a statement
of findings that the conditions have been fulfilled.
(2) REQUIREMENTS.—The conditions precedent referred to
in paragraph (1) are the conditions that—
(A) to the extent that the Settlement Agreement conflicts with this subtitle, the Settlement Agreement has
been revised to conform with this subtitle;
(B) the Settlement Agreement, so revised, including
waivers and releases pursuant to section 624, has been
executed by the appropriate parties and the Secretary;
(C) Congress has fully appropriated, or the Secretary
has provided from other authorized sources, all funds
authorized by section 617, with the exception of subsection
(a)(1) of that section;
(D) the Secretary has acquired and entered into appropriate contracts for the water rights described in section
613(a);
(E) for purposes of section 613(a), permits have been
issued by the New Mexico State Engineer to the Regional
Water Authority to change the points of diversion to the
mainstem of the Rio Grande for the diversion and consumptive use of at least 2,381 acre-feet by the Pueblos as part
of the water supply for the Regional Water System, subject
to the conditions that—
(i) the permits shall be free of any condition that
materially adversely affects the ability of the Pueblos
or the Regional Water Authority to divert or use the
Pueblo water supply described in section 613(a),
including water rights acquired in addition to those
described in section 613(a), in accordance with section
613(g); and
(ii) the Settlement Agreement shall establish the
means to address any permit conditions to ensure the
ability of the Pueblos to fully divert and consume at
least 2,381 acre-feet as part of the water supply for
the Regional Water System, including defining the
conditions that will not constitute a material adverse
affect;
(F) the State has enacted any necessary legislation
and provided any funding that may be required under
the Settlement Agreement;
(G) a partial final decree that sets forth the water
rights and other rights to water to which the Pueblos
are entitled under the Settlement Agreement and this subtitle and that substantially conforms to the Settlement
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PUBLIC LAW 111–291—DEC. 8, 2010
124 STAT. 3151
Agreement has been approved by the United States District
Court for the District of New Mexico;
(H) a final decree that sets forth the water rights
for all parties to the Aamodt Case and that substantially
conforms to the Settlement Agreement has been approved
by the United States District Court for the District of
New Mexico; and
(I) the waivers and releases described in section 624
have been executed.
(b) EXPIRATION DATE.—If all the conditions precedent described
in subsection (a)(2) have not been fulfilled by September 15, 2017—
(1) the Settlement Agreement shall no longer be effective;
(2) the waivers and releases described in the Settlement
Agreement and section 624 shall not be effective;
(3) any unexpended Federal funds appropriated or made
available to carry out the activities authorized by this title,
together with any interest earned on those funds, any water
rights or contracts to use water, and title to other property
acquired or constructed with Federal funds appropriated or
made available to carry out the activities authorized by this
title shall be returned to the Federal Government, unless otherwise agreed to by the Pueblos and the United States and
approved by Congress; and
(4) except for Federal funds used to acquire or develop
property that is returned to the Federal Government under
paragraph (3), the United States shall be entitled to set off
any Federal funds appropriated or made available to carry
out the activities authorized by this title that were expended
or withdrawn, together with any interest accrued on those
funds, against any claims against the United States—
(A) relating to water rights in the Pojoaque Basin
asserted by any Pueblo that benefitted from the use of
expended or withdrawn Federal funds; or
(B) in any future settlement of the Aamodt Case.
(c) ENFORCEMENT DATE.—The Settlement Agreement shall
become enforceable beginning on the date on which the United
States District Court for the District of New Mexico enters a partial
final decree pursuant to subsection (a)(2)(G) and an Interim
Administrative Order consistent with the Settlement Agreement.
(d) EFFECTIVENESS OF WAIVERS.—The waivers and releases
executed pursuant to section 624 shall become effective as of the
date that the Secretary publishes the notice required by subsection
(a)(1).
(e) REQUIREMENTS FOR DETERMINATION OF SUBSTANTIAL
COMPLETION OF THE REGIONAL WATER SYSTEM.—
(1) CRITERIA FOR SUBSTANTIAL COMPLETION OF REGIONAL
WATER SYSTEM.—Subject to the provisions in section 611(d)
concerning the extent, size, and capacity of the County Distribution System, the Regional Water System shall be determined
to be substantially completed if the infrastructure has been
constructed capable of—
(A) diverting, treating, transmitting, and distributing
a supply of 2,500 acre-feet of water to the Pueblos; and
(B) diverting, treating, and transmitting the quantity
of water specified in the Engineering Report to the County
Distribution System.
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(2) CONSULTATION.—On or after June 30, 2021, at the
request of 1 or more of the Pueblos, the Secretary shall consult
with the Pueblos and confer with the County and the State
on whether the criteria in paragraph (1) for substantial completion of the Regional Water System have been met or will
be met by June 30, 2024.
(3) WRITTEN DETERMINATION BY SECRETARY.—Not earlier
than June 30, 2021, at the request of 1 or more of the Pueblos
and after the consultation required by paragraph (2), the Secretary shall—
(A) determine whether the Regional Water System has
been substantially completed based on the criteria
described in paragraph (1); and
(B) submit a written notice of the determination under
subparagraph (A) to—
(i) the Pueblos;
(ii) the County; and
(iii) the State.
(4) RIGHT TO REVIEW.—
(A) IN GENERAL.—A determination by the Secretary
under paragraph (3)(A) shall be considered to be a final
agency action subject to judicial review by the Decree Court
under sections 701 through 706 of title 5, United States
Code.
(B) FAILURE TO MAKE TIMELY DETERMINATION.—
(i) IN GENERAL.—If a Pueblo requests a written
determination under paragraph (3) and the Secretary
fails to make such a written determination by the
date described in clause (ii), there shall be a rebuttable
presumption that the failure constitutes agency action
unlawfully withheld or unreasonably delayed under
section 706 of title 5, United States Code.
(ii) DATE.—The date referred to in clause (i) is
the date that is the later of—
(I) the date that is 180 days after the date
of receipt by the Secretary of the request by the
Pueblo; and
(II) June 30, 2023.
(C) EFFECT OF TITLE.—Nothing in this title gives any
Pueblo or Settlement Party the right to judicial review
of a determination of the Secretary regarding whether the
Regional Water System has been substantially completed
except under subchapter II of chapter 5, and chapter 7,
of title 5, United States Code (commonly known as the
‘‘Administrative Procedure Act’’).
(5) RIGHT TO VOID FINAL DECREE.—
(A) IN GENERAL.—Not later than June 30, 2024, on
a determination by the Secretary, after consultation with
the Pueblos, that the Regional Water System is not
substantially complete, 1 or more of the Pueblos, or the
United States acting on behalf of a Pueblo, shall have
the right to notify the Decree Court of the determination.
(B) EFFECT.—The Final Decree shall have no force
or effect on a finding by the Decree Court that a Pueblo,
or the United States acting on behalf of a Pueblo, has
submitted proper notification under subparagraph (A).
Deadlines.
Deadline.
Notice.
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124 STAT. 3153
(f) VOIDING OF WAIVERS.—If the Final Decree is void under
subsection (e)(5)—
(1) the Settlement Agreement shall no longer be effective;
(2) the waivers and releases executed pursuant to section
624 shall no longer be effective;
(3) any unexpended Federal funds appropriated or made
available to carry out the activities authorized by this title,
together with any interest earned on those funds, any water
rights or contracts to use water, and title to other property
acquired or constructed with Federal funds appropriated or
made available to carry out the activities authorized by this
title shall be returned to the Federal Government, unless otherwise agreed to by the Pueblos and the United States and
approved by Congress; and
(4) except for Federal funds used to acquire or develop
property that is returned to the Federal Government under
paragraph (3), the United States shall be entitled to set off
any Federal funds appropriated or made available to carry
out the activities authorized by this title that were expended
or withdrawn, together with any interest accrued on those
funds, against any claims against the United States—
(A) relating to water rights in the Pojoaque Basin
asserted by any Pueblo that benefitted from the use of
expended or withdrawn Federal funds; or
(B) in any future settlement of the Aamodt Case.
(g) EXTENSION.—The dates in subsections (a)(1) and (b) may
be extended if the parties to the Cost-Sharing and System Integration Agreement agree that an extension is reasonably necessary.
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SEC. 624. WAIVERS AND RELEASES OF CLAIMS.
(a) CLAIMS BY THE PUEBLOS AND THE UNITED STATES.—In
return for recognition of the Pueblos’ water rights and other benefits, including waivers and releases by non-Pueblo parties, as set
forth in the Settlement Agreement and this title, the Pueblos,
on behalf of themselves and their members, and the United States
acting in its capacity as trustee for the Pueblos are authorized
to execute a waiver and release of—
(1) all claims for water rights in the Pojoaque Basin that
the Pueblos, or the United States acting in its capacity as
trustee for the Pueblos, asserted, or could have asserted, in
any proceeding, including the Aamodt Case, up to and including
the waiver effectiveness date identified in section 623(d), except
to the extent that such rights are recognized in the Settlement
Agreement or this title;
(2) all claims for water rights for lands in the Pojoaque
Basin and for rights to use water in the Pojoaque Basin that
the Pueblos, or the United States acting in its capacity as
trustee for the Pueblos, might be able to otherwise assert
in any proceeding not initiated on or before the date of enactment of this Act, except to the extent that such rights are
recognized in the Settlement Agreement or this title;
(3) all claims for damages, losses or injuries to water rights
or claims of interference with, diversion or taking of water
(including claims for injury to land resulting from such damages, losses, injuries, interference with, diversion, or taking)
for land within the Pojoaque Basin that accrued at any time
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124 STAT. 3154
PUBLIC LAW 111–291—DEC. 8, 2010
up to and including the waiver effectiveness date identified
in section 623(d);
(4) their defenses in the Aamodt Case to the claims previously asserted therein by other parties to the Settlement
Agreement;
(5) all pending and future inter se challenges to the quantification and priority of water rights of non-Pueblo wells in
the Pojoaque Basin, except as provided by section 2.8 of the
Settlement Agreement;
(6) all pending and future inter se challenges against other
parties to the Settlement Agreement;
(7) all claims for damages, losses, or injuries to water
rights or claims of interference with, diversion or taking of
water (including claims for injury to land resulting from such
damages, losses, injuries, interference with, diversion, or taking
of water) attributable to City of Santa Fe pumping of groundwater that has effects on the ground and surface water supplies
of the Pojoaque Basin, provided that this waiver shall not
be effective by the Pueblo of Tesuque unless there is a water
resources agreement executed between the Pueblo of Tesuque
and the City of Santa Fe; and
(8) all claims for damages, losses, or injuries to water
rights or claims of interference with, diversion or taking of
water (including claims for injury to land resulting from such
damages, losses, injuries, interference with, diversion, or taking
of water) attributable to County of Santa Fe pumping of groundwater that has effects on the ground and surface water supplies
of the Pojoaque Basin.
(b) CLAIMS BY THE PUEBLOS AGAINST THE UNITED STATES.—
The Pueblos, on behalf of themselves and their members, are
authorized to execute a waiver and release of—
(1) all claims against the United States, its agencies, or
employees, relating to claims for water rights in or water of
the Pojoaque Basin or for rights to use water in the Pojoaque
Basin that the United States acting in its capacity as trustee
for the Pueblos asserted, or could have asserted, in any proceeding, including the Aamodt Case;
(2) all claims against the United States, its agencies, or
employees relating to damages, losses, or injuries to water,
water rights, land, or natural resources due to loss of water
or water rights (including damages, losses or injuries to
hunting, fishing, gathering or cultural rights due to loss of
water or water rights; claims relating to interference with,
diversion or taking of water or water rights; or claims relating
to failure to protect, acquire, replace, or develop water, water
rights or water infrastructure) within the Pojoaque Basin that
first accrued at any time up to and including the waiver
effectiveness date identified in section 623(d);
(3) all claims against the United States, its agencies, or
employees for an accounting of funds appropriated by Acts,
including the Act of December 22, 1927 (45 Stat. 2), the Act
of March 4, 1929 (45 Stat. 1562), the Act of March 26, 1930
(46 Stat. 90), the Act of February 14, 1931 (46 Stat. 1115),
the Act of March 4, 1931 (46 Stat. 1552), the Act of July
1, 1932 (47 Stat. 525), the Act of June 22, 1936 (49 Stat.
1757), the Act of August 9, 1937 (50 Stat. 564), and the Act
of May 9, 1938 (52 Stat. 291), as authorized by the Pueblo
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PUBLIC LAW 111–291—DEC. 8, 2010
124 STAT. 3155
Lands Act of June 7, 1924 (43 Stat. 636), and the Pueblo
Lands Act of May 31, 1933 (48 Stat. 108), and for breach
of Trust relating to funds for water replacement appropriated
by said Acts that first accrued before the date of enactment
of this Act;
(4) all claims against the United States, its agencies, or
employees relating to the pending litigation of claims relating
to the Pueblos’ water rights in the Aamodt Case; and
(5) all claims against the United States, its agencies, or
employees relating to the negotiation, Execution or the adoption
of the Settlement Agreement, exhibits thereto, the Partial Final
Decree, the Final Decree, or this title.
(c) RESERVATION OF RIGHTS AND RETENTION OF CLAIMS.—Notwithstanding the waivers and releases authorized in this title,
the Pueblos on behalf of themselves and their members and the
United States acting in its capacity as trustee for the Pueblos
retain.—
(1) all claims for enforcement of the Settlement Agreement,
the Cost-Sharing and System Integration Agreement, the Final
Decree, including the Partial Final Decree, the San JuanChama Project contract between the Pueblos and the United
States or this title;
(2) all rights to use and protect water rights acquired
after the date of enactment of this Act;
(3) all rights to use and protect water rights acquired
pursuant to state law to the extent not inconsistent with the
Partial Final Decree, Final Decree, and the Settlement Agreement;
(4) all claims against persons other than Parties to the
Settlement Agreement for damages, losses or injuries to water
rights or claims of interference with, diversion or taking of
water (including claims for injury to lands resulting from such
damages, losses, injuries, interference with, diversion, or taking
of water) within the Pojoaque Basin arising out of activities
occurring outside the Pojoaque Basin;
(5) all claims relating to activities affecting the quality
of water including any claims the Pueblos may have under
the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9601 et seq.) (including
claims for damages to natural resources), the Safe Drinking
Water Act (42 U.S.C. 300f et seq.), the Federal Water Pollution
Control Act (33 U.S.C. 1251 et seq.), and the regulations implementing those laws;
(6) all claims against the United States relating to damages, losses, or injuries to land or natural resources not due
to loss of water or water rights (including hunting, fishing,
gathering or cultural rights);
(7) all claims for water rights from water sources outside
the Pojoaque Basin for land outside the Pojoaque Basin owned
by a Pueblo or held by the United States for the benefit of
any of the Pueblos; and
(8) all rights, remedies, privileges, immunities, powers and
claims not specifically waived and released pursuant to this
title or the Settlement Agreement.
(d) EFFECT.—Nothing in the Settlement Agreement or this
title—
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PUBLIC LAW 111–291—DEC. 8, 2010
(1) affects the ability of the United States acting in its
sovereign capacity to take actions authorized by law, including
any laws relating to health, safety, or the environment,
including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.),
the Safe Drinking Water Act (42 U.S.C. 300f et seq.), the
Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.),
the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.), and
the regulations implementing those laws;
(2) affects the ability of the United States to take actions
acting in its capacity as trustee for any other Indian tribe
or allottee; or
(3) confers jurisdiction on any State court to—
(A) interpret Federal law regarding health, safety, or
the environment or determine the duties of the United
States or other parties pursuant to such Federal law; or
(B) conduct judicial review of Federal agency action;
(e) TOLLING OF CLAIMS.—
(1) IN GENERAL.—Each applicable period of limitation and
time-based equitable defense relating to a claim described in
this section shall be tolled for the period beginning on the
date of enactment of this Act and ending on June 30, 2021.
(2) EFFECT OF SUBSECTION.—Nothing in this subsection
revives any claim or tolls any period of limitation or timebased equitable defense that expired before the date of enactment of this Act.
(3) LIMITATION.—Nothing in this section precludes the
tolling of any period of limitations or any time-based equitable
defense under any other applicable law.
Time period.
SEC. 625. EFFECT.
Nothing in this title or the Settlement Agreement affects the
land and water rights, claims, or entitlements to water of any
Indian tribe, pueblo, or community other than the Pueblos.
SEC. 626. ANTIDEFICIENCY.
The United States shall not be liable for any failure to carry
out any obligation or activity authorized by this title (including
any such obligation or activity under the Settlement Agreement)
if adequate appropriations are not provided expressly by Congress
to carry out the purposes of this title in the Reclamation Water
Settlements Fund established under section 10501 of Public Law
111–11 or the ‘‘Emergency Fund for Indian Safety and Health’’
established by section 601(a) of the Tom Lantos and Henry J.
Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008 (25 U.S.C. 443c(a)).
TITLE VII—RECLAMATION WATER
SETTLEMENTS FUND
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SEC. 701. MANDATORY APPROPRIATION.
(a) IN GENERAL.—Notwithstanding any other provision of law,
out of any funds in the Treasury not otherwise appropriated, for
each of fiscal years 2012 through 2014, the Secretary of the
Treasury shall transfer to the Secretary of the Interior $60,000,000
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for deposit in the Reclamation Water Settlements Fund established
in section 10501 of Public Law 111–11.
(b) RECEIPT AND ACCEPTANCE.—Starting in fiscal year 2012,
the Secretary of the Interior shall be entitled to receive, shall
accept, and shall use to carry out subtitle B of title X of Public
Law 111–11 the funds transferred under subsection (a), without
further appropriation, to remain available until expended.
TITLE VIII—GENERAL PROVISIONS
Subtitle A—Unemployment Compensation
Program Integrity
SEC. 801. COLLECTION OF PAST-DUE, LEGALLY ENFORCEABLE STATE
DEBTS.
(a) UNEMPLOYMENT COMPENSATION DEBTS.—Section 6402(f) of
the Internal Revenue Code of 1986 is amended—
(1) in the heading, by striking ‘‘RESULTING FROM FRAUD’’;
(2) by striking paragraphs (3) and (8) and redesignating
paragraphs (4) through (7) as paragraphs (3) through (6),
respectively;
(3) in paragraph (3), as so redesignated—
(A) in subparagraph (A), by striking ‘‘by certified mail
with return receipt’’;
(B) in subparagraph (B), by striking ‘‘due to fraud’’
and inserting ‘‘is not a covered unemployment compensation debt’’;
(C) in subparagraph (C), by striking ‘‘due to fraud’’
and inserting ‘‘ is not a covered unemployment compensation debt’’; and
(4) in paragraph (4), as so redesignated—
(A) in subparagraph (A)—
(i) by inserting ‘‘or the person’s failure to report
earnings’’ after ‘‘due to fraud’’; and
(ii) by striking ‘‘for not more than 10 years’’; and
(B) in subparagraph (B)—
(i) by striking ‘‘due to fraud’’; and
(ii) by striking ‘‘for not more than 10 years’’.
(b) EFFECTIVE DATE.—The amendments made by this section
shall apply to refunds payable under section 6402 of the Internal
Revenue Code of 1986 on or after the date of the enactment of
this Act.
26 USC 6402.
26 USC 6402
note.
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SEC. 802. REPORTING OF FIRST DAY OF EARNINGS TO DIRECTORY
OF NEW HIRES.
(a) ADDITION OF REQUIREMENT.—Section 453A(b)(1)(A) of the
Social Security Act (42 U.S.C. 653a(b)(1)(A)) is amended by inserting
‘‘the date services for remuneration were first performed by the
employee,’’ after ‘‘of the employee,’’.
(b) CONFORMING AMENDMENT REGARDING REPORTING FORMAT
AND METHOD.—Section 453A(c) of the Social Security Act (42 U.S.C.
653a(c)) is amended by inserting ‘‘, to the extent practicable,’’ after
‘‘Each report required by subsection (b) shall’’.
(c) EFFECTIVE DATE.—
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42 USC 653a
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PUBLIC LAW 111–291—DEC. 8, 2010
(1) IN GENERAL.—Subject to paragraph (2), the amendments
made by this section shall take effect 6 months after the date
of the enactment of this Act.
(2) COMPLIANCE TRANSITION PERIOD.—If the Secretary of
Health and Human Services determines that State legislation
(other than legislation appropriating funds) is required in order
for a State plan under part D of title IV of the Social Security
Act to meet the additional requirements imposed by the amendment made by subsection (a), the plan shall not be regarded
as failing to meet such requirements before the first day of
the second calendar quarter beginning after the close of the
first regular session of the State legislature that begins after
the effective date of such amendment. If the State has a 2year legislative session, each year of the session is deemed
to be a separate regular session of the State legislature.
Subtitle B—TANF
SEC. 811. EXTENSION OF THE TEMPORARY ASSISTANCE FOR NEEDY
FAMILIES PROGRAM.
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(a) IN GENERAL.—Activities authorized by part A of title IV
and section 1108(b) of the Social Security Act (other than the
Emergency Contingency Fund for State Temporary Assistance for
Needy Families Programs established under subsection (c) of section
403 of such Act) shall continue through September 30, 2011, in
the manner authorized for fiscal year 2010, and out of any money
in the Treasury of the United States not otherwise appropriated,
there are hereby appropriated such sums as may be necessary
for such purpose. Grants and payments may be made pursuant
to this authority on a quarterly basis through fiscal year 2011
at the level provided for such activities for the corresponding quarter
of fiscal year 2010, except that—
(1) in the case of healthy marriage promotion and responsible fatherhood grants under section 403(a)(2) of such Act,
such grants and payments shall be made in accordance with
the amendments made by subsection (b) of this section;
(2) in the case of supplemental grants under section
403(a)(3) of such Act—
(A) such grants and payments for the period beginning
on October 1, 2010, and ending on December 3, 2010,
shall not exceed the level provided for such grants and
payments under the Continuing Appropriations Act, 2011;
and
(B) such grants and payments for the period beginning
on December 4, 2010, and ending on June 30, 2011, shall
not exceed the amount equal to the difference between
$490,000,000 and such sums as are necessary for amounts
obligated under section 403(b) of the Social Security Act
on or after October 1, 2010, and before the date of enactment of this Act; and
(3) in the case of the Contingency Fund for State Welfare
Programs established under section 403(b) of such Act, grants
and payments may be made in the manner authorized for
fiscal year 2010 through fiscal year 2012, in accordance with
the amendments made by subsection (c) of this section.
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(b) HEALTHY MARRIAGE PROMOTION AND RESPONSIBLE FATHERGRANTS.—Section 403(a)(2) of the Social Security Act (42
U.S.C. 603(a)(2)) is amended—
(1) in subparagraph (A)—
(A) in clause (i), by striking ‘‘and (C)’’ and inserting
‘‘, (C), and (E)’’;
(B) in clause (ii), in the matter preceding subclause
(I), by inserting ‘‘(or, in the case of an entity seeking
funding to carry out healthy marriage promotion activities
and activities promoting responsible fatherhood, a combined application that contains assurances that the entity
will carry out such activities under separate programs and
shall not combine any funds awarded to carry out either
such activities)’’ after ‘‘an application’’; and
(C) in clause (iii), by striking subclause (III) and
inserting the following:
‘‘(III) Marriage education, marriage skills, and
relationship skills programs, that may include parenting skills, financial management, conflict resolution, and job and career advancement.’’;
(2) in subparagraph (C)(i), by striking ‘‘$50,000,000’’ and
inserting ‘‘$75,000,000’’;
(3) by striking subparagraph (D) and inserting the following:
‘‘(D) APPROPRIATION.—Out of any money in the
Treasury of the United States not otherwise appropriated,
there are appropriated for fiscal year 2011 for expenditure
in accordance with this paragraph—
‘‘(i) $75,000,000 for awarding funds for the purpose
of carrying out healthy marriage promotion activities;
and
‘‘(ii) $75,000,000 for awarding funds for the purpose of carrying out activities promoting responsible
fatherhood.
If the Secretary makes an award under subparagraph (B)(i)
for fiscal year 2011, the funds for such award shall be
taken in equal portion from the amounts appropriated
under clauses (i) and (ii).’’; and
(4) by adding at the end the following:
‘‘(E) PREFERENCE.—In awarding funds under this paragraph for fiscal year 2011, the Secretary shall give preference to entities that were awarded funds under this
paragraph for any prior fiscal year and that have demonstrated the ability to successfully carry out the programs
funded under this paragraph.’’.
(c) CONTINGENCY FUND.—Section 403(b)(2) of the Social Security Act (42 U.S.C. 603(b)(2)), as amended by section 131(b)(2)(A)
of the Continuing Appropriations Act, 2011, is amended—
(1) by striking ‘‘$506,000,000’’ and inserting ‘‘such sums
as are necessary for amounts obligated on or after October
1, 2010, and before the date of enactment of the Claims Resolution Act of 2010,’’; and
(2) by striking ‘‘, reduced’’ and all that follows up to the
period.
(d) CONFORMING AMENDMENTS.—Section 403(a)(3) of the Social
Security Act (42 U.S.C. 603(a)(3)), as amended by section 131(b)(1)
of the Continuing Appropriations Act, 2011, is amended—
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(1) in subparagraph (F)—
(A) by inserting ‘‘(or portion of a fiscal year)’’ after
‘‘a fiscal year’’; and
(B) by inserting ‘‘(or portion of the fiscal year)’’ after
‘‘the fiscal year’’ each place it appears; and
(2) by striking clause (ii) of subparagraph (H) and inserting
the following:
‘‘(ii) subparagraph (G) shall be applied as if ‘fiscal
year 2011’ were substituted for ‘fiscal year 2001’;’’.
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SEC. 812. MODIFICATIONS TO TANF DATA REPORTING.
(a) IN GENERAL.—Section 411 of the Social Security Act (42
U.S.C. 611) is amended by adding at the end the following new
subsection:
‘‘(c) PRE-REAUTHORIZATION STATE-BY-STATE REPORTS ON
ENGAGEMENT IN ADDITIONAL WORK ACTIVITIES AND EXPENDITURES
FOR OTHER BENEFITS AND SERVICES.—
‘‘(1) STATE REPORTING REQUIREMENTS.—
‘‘(A) REPORTING PERIODS AND DEADLINES.—Each
eligible State shall submit to the Secretary the following
reports:
‘‘(i) MARCH 2011 REPORT.—Not later than May 31,
2011, a report for the period that begins on March
1, 2011, and ends on March 31, 2011, that contains
the information specified in subparagraphs (B) and
(C).
‘‘(ii) APRIL-JUNE, 2011 REPORT.—Not later than
August 31, 2011, a report for the period that begins
on April 1, 2011, and ends on June 30, 2011, that
contains with respect to the 3 months that occur during
that period—
‘‘(I) the average monthly numbers for the
information specified in subparagraph (B); and
‘‘(II) the information specified in subparagraph
(C).
‘‘(B) ENGAGEMENT IN ADDITIONAL WORK ACTIVITIES.—
‘‘(i) With respect to each work-eligible individual
in a family receiving assistance during a reporting
period specified in subparagraph (A), whether the individual engages in any activities directed toward
attaining self-sufficiency during a month occurring in
a reporting period, and if so, the specific activities—
‘‘(I) that do not qualify as a work activity
under section 407(d) but that are otherwise reasonably calculated to help the family move toward
self-sufficiency; or
‘‘(II) that are of a type that would be counted
toward the State participation rates under section
407 but for the fact that—
‘‘(aa) the work-eligible individual did not
engage in sufficient hours of the activity;
‘‘(bb) the work-eligible individual has
reached the maximum time limit allowed for
having participation in the activity counted
toward the State’s work participation rate; or
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PUBLIC LAW 111–291—DEC. 8, 2010
124 STAT. 3161
‘‘(cc) the number of work-eligible individuals engaged in such activity exceeds a limitation under such section.
‘‘(ii) Any other information that the Secretary
determines appropriate with respect to the information
required under clause (i), including if the individual
has no hours of participation, the principal reason
or reasons for such non-participation.
‘‘(C) EXPENDITURES ON OTHER BENEFITS AND SERVICES.—
‘‘(i) Detailed, disaggregated information regarding
the types of, and amounts of, expenditures made by
the State during a reporting period specified in
subparagraph (A) using—
‘‘(I) Federal funds provided under section 403
that are (or will be) reported by the State on
Form ACF–196 (or any successor form) under the
category of other expenditures or the category of
benefits or services provided in accordance with
the authority provided under section 404(a)(2); or
‘‘(II) State funds expended to meet the requirements of section 409(a)(7) and reported by the
State in the category of other expenditures on
Form ACF–196 (or any successor form).
‘‘(ii) Any other information that the Secretary
determines appropriate with respect to the information
required under clause (i).
‘‘(2) PUBLICATION OF SUMMARY AND ANALYSIS OF ENGAGEMENT IN ADDITIONAL ACTIVITIES.—Concurrent with the submission of each report required under paragraph (1)(A), an eligible
State shall publish on an Internet website maintained by the
State agency responsible for administering the State program
funded under this part (or such State-maintained website as
the Secretary may approve)—
‘‘(A) a summary of the information submitted in the
report:
‘‘(B) an analysis statement regarding the extent to
which the information changes measures of total engagement in work activities from what was (or will be) reported
by the State in the quarterly report submitted under subsection (a) for the comparable period; and
‘‘(C) a narrative describing the most common activities
contained in the report that are not countable toward the
State participation rates under section 407.
‘‘(3) APPLICATION OF AUTHORITY TO USE SAMPLING.—
Subparagraph (B) of subsection (a)(1) shall apply to the reports
required under paragraph (1) of this subsection in the same
manner as subparagraph (B) of subsection (a)(1) applies to
reports required under subparagraph (A) of subsection (a)(1).
‘‘(4) SECRETARIAL REPORTS TO CONGRESS.—
‘‘(A) MARCH 2011 REPORT.—Not later than June 30,
2011, the Secretary shall submit to Congress a report on
the information submitted by eligible States for the March
2011 reporting period under paragraph (1)(A)(i). The report
shall include a State-by-State summary and analysis of
such information, identification of any States with missing
or incomplete reports, and recommendations for such
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administrative or legislative changes as the Secretary
determines are necessary to require eligible States to report
the information on a recurring basis.
‘‘(B) APRIL-JUNE, 2011 REPORT.—Not later than September 30, 2011, the Secretary shall submit to Congress
a report on the information submitted by eligible States
for the April-June 2011 reporting period under paragraph
(1)(A)(ii). The report shall include a State-by-State summary and analysis of such information, identification of
any States with missing or incomplete reports, and recommendations for such administrative or legislative
changes as the Secretary determines are necessary to
require eligible States to report the information on a recurring basis
‘‘(5) AUTHORITY FOR EXPEDITIOUS IMPLEMENTATION.—The
requirements of chapter 5 of title 5, United States Code (commonly referred to as the ‘Administrative Procedure Act’) or
any other law relating to rulemaking or publication in the
Federal Register shall not apply to the issuance of guidance
or instructions by the Secretary with respect to the implementation of this subsection to the extent the Secretary determines
that compliance with any such requirement would impede the
expeditious implementation of this subsection.’’.
(b) APPLICATION OF PENALTY FOR FAILURE TO FILE REPORT.—
(1) IN GENERAL.—Section 409(a)(2) of such Act (42 U.S.C.
609(a)(2)) is amended—
(A) by redesignating subparagraphs (A) and (B) as
clauses (i) and (ii), respectively,
(B) by inserting before clause (i) (as redesignated by
paragraph (1)), the following:
‘‘(A) QUARTERLY REPORTS.—’’;
(C) in clause (ii) of subparagraph (A) (as redesignated
by paragraphs (1) and (2)), by striking ‘‘subparagraph (A)’’
and inserting ‘‘clause (i)’’; and
(D) by adding at the end the following:
‘‘(B) REPORT ON ENGAGEMENT IN ADDITIONAL WORK
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ACTIVITIES AND EXPENDITURES FOR OTHER BENEFITS AND
SERVICES.—
‘‘(i) IN GENERAL.—If the Secretary determines that
a State has not submitted the report required by section 411(c)(1)(A)(i) by May 31, 2011, or the report
required by section 411(c)(1)(A)(ii) by August 31, 2011,
the Secretary shall reduce the grant payable to the
State under section 403(a)(1) for the immediately succeeding fiscal year by an amount equal to not more
than 4 percent of the State family assistance grant.
‘‘(ii) RESCISSION OF PENALTY.—The Secretary shall
rescind a penalty imposed on a State under clause
(i) with respect to a report required by section
411(c)(1)(A) if the State submits the report not later
than—
‘‘(I) in the case of the report required under
section 411(c)(1)(A)(i), June 15, 2011; and
‘‘(II) in the case of the report required under
section 411(c)(1)(A)(ii), September 15, 2011.
‘‘(iii) PENALTY BASED ON SEVERITY OF FAILURE.—
The Secretary shall impose a reduction under clause
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(i) with respect to a fiscal year based on the degree
of noncompliance.’’.
(2) APPLICATION OF REASONABLE CAUSE EXCEPTION.—Section 409(b)(2) of such Act (42 U.S.C. 609(b)(2)) is amended
by inserting before the period the following: ‘‘and, with respect
to the penalty under paragraph (2)(B) of subsection (a), shall
only apply to the extent the Secretary determines that the
reasonable cause for failure to comply with a requirement of
that paragraph is as a result of a one-time, unexpected event,
such as a widespread data system failure or a natural or
man-made disaster’’.
(3) NONAPPLICATION OF CORRECTIVE COMPLIANCE PLAN
PROVISIONS.—Section 409(c)(4) of such Act (42 U.S.C. 609(c)(4))
is amended by inserting ‘‘(2)(B),’’ after ‘‘paragraph’’.
Subtitle C—Customs User Fees; Continued
Dumping and Subsidy Offset
SEC. 821. CUSTOMS USER FEES.
Section 13031(j)(3) of the Consolidated Omnibus Budget Reconciliation Act of 1985 (19 U.S.C. 58c(j)(3)) is amended—
(1) in subparagraph (A), by striking ‘‘December 10, 2018’’
and inserting ‘‘September 30, 2019’’; and
(2) in subparagraph (B)(i), by striking ‘‘November 30, 2018’’
and inserting ‘‘September 30, 2019’’.
SEC. 822. LIMITATION ON DISTRIBUTIONS RELATING TO REPEAL OF
CONTINUED DUMPING AND SUBSIDY OFFSET.
Notwithstanding section 1701(b) of the Deficit Reduction Act
of 2005 (Public Law 109–171; 120 Stat. 154 (19 U.S.C. 1675c note))
or any other provision of law, no payments shall be distributed
under section 754 of the Tariff Act of 1930, as in effect on the
day before the date of the enactment of such section 1701, with
respect to the entries of any goods that are, on the date of the
enactment of this Act—
(1) unliquidated; and
(2)(A) not in litigation; or
(B) not under an order of liquidation from the Department
of Commerce.
Subtitle D—Emergency Fund for Indian
Safety and Health
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SEC. 831. EMERGENCY FUND FOR INDIAN SAFETY AND HEALTH.
Section 601 of the Tom Lantos and Henry J. Hyde United
States Global Leadership Against HIV/ AIDS, Tuberculosis, and
Malaria Reauthorization Act of 2008 (25 U.S.C. 443c) is amended—
(1) in subsection (b)(1), by striking ‘‘$2,000,000,000’’ and
inserting ‘‘$1,602,619,000’’; and
(2) in subsection (f)(2)(B), by striking ‘‘50 percent’’ and
inserting ‘‘not more than $602,619,000’’.
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PUBLIC LAW 111–291—DEC. 8, 2010
Subtitle E—Rescission of Funds From WIC
Program
SEC. 841. RESCISSION OF FUNDS FROM WIC PROGRAM.
Notwithstanding any other provision of law, of the amounts
made available in appropriations Acts to provide grants to States
under the special supplemental nutrition program for women,
infants, and children established by section 17 of the Child Nutrition
Act of 1966 (42 U.S.C. 1786), $562,000,000 is rescinded.
Subtitle F—Budgetary Effects
SEC. 851. BUDGETARY EFFECTS.
The budgetary effects of this Act, for the purpose of complying
with the Statutory Pay-As-You-Go-Act of 2010, shall be determined
by reference to the latest statement titled ‘‘Budgetary Effects of
PAYGO Legislation’’ for this Act, submitted for printing in the
Congressional Record by the Chairman of the Senate Budget Committee, provided that such statement has been submitted prior
to the vote on passage.
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Approved December 8, 2010.
LEGISLATIVE HISTORY—H.R. 4783:
CONGRESSIONAL RECORD, Vol. 156 (2010):
Mar. 10, considered and passed House.
Nov. 19, considered and passed Senate, amended.
Nov. 30, House concurred in Senate amendments.
DAILY COMPILATION OF PRESIDENTIAL DOCUMENTS (2010):
Dec. 8, Presidential remarks and statement.
Æ
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| File Type | application/pdf |
| File Modified | 2012-03-20 |
| File Created | 2011-01-08 |