Snake River Water Rights Act of 2004 - Approves, ratifies, and confirms the Mediator's Term Sheet dated April 20, 2004, (the Agreement) to resolve the Snake River Basin Adjudication litigation involving the United States, the Nez Perce Tribe (the Tribe), and the State of Idaho. Requires the Secretary of the Interior and the heads of other Federal agencies to execute and perform all actions that are necessary to carry out the Agreement.
Authorizes appropriations to the Secretary for a one-time payment to local governments to mitigate for the change of use of water acquired by the Bureau of Reclamation.
Requires the Secretary to transfer land selected by the Tribe to the Bureau of Indian Affairs to be held in trust for the Tribe.
Provides that the consumptive use and the springs or fountains water rights be held in trust by the United States for the benefit of the Tribe. Requires the Tribe to enact a water code to be approved by the Secretary.
Establishes: (1) the Nez Perce Tribe Water and Fisheries Fund for the Tribe to acquire land and water rights, restore or improve fish habitat, or for fish production, agricultural development, cultural preservation, water resource development, or fisheries-related projects; (2) the Nez Perce Domestic Water Supply Fund to pay for the design and construction of water supply and sewer systems for tribal communities; and (3) the Salmon and Clearwater River Basins Habitat Fund to pay for habitat protection and restoration in the Salmon and Clearwater River basins.Sets forth waiver and release provisions.
Allows the Secretary of Housing and Urban Development to make a grant to the City of Blackfoot, Idaho to assist with natural resource restoration and conservation and water resource development associated with the Jensen Grove Lake.
[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4981 Introduced in House (IH)]
108th CONGRESS
2d Session
H. R. 4981
To direct the Secretary of the Interior and the heads of other Federal
agencies to carry out an agreement resolving major issues relating to
the adjudication of water rights in the Snake River Basin, Idaho, and
for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 22, 2004
Mr. Otter (for himself and Mr. Simpson) introduced the following bill;
which was referred to the Committee on Resources
_______________________________________________________________________
A BILL
To direct the Secretary of the Interior and the heads of other Federal
agencies to carry out an agreement resolving major issues relating to
the adjudication of water rights in the Snake River Basin, Idaho, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Snake River Water Rights Act of
2004''.
SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to resolve some of the largest outstanding issues with
respect to the Snake River Basin Adjudication in Idaho in such
a manner as to provide important benefits to the United States,
the State of Idaho, the Nez Perce Tribe, the allottees, and
citizens of the State;
(2) to achieve a fair, equitable, and final settlement of
all claims of the Nez Perce Tribe, its members, and allottees
and the United States on behalf of the Tribe, its members, and
allottees to the water of the Snake River Basin within Idaho;
(3) to authorize, ratify, and confirm the Agreement among
the parties submitted to the Snake River Basin Adjudication
Court and provide all parties with the benefits of the
Agreement;
(4) to direct--
(A) the Secretary, acting through the Bureau of
Reclamation, the Bureau of Land Management, the Bureau
of Indian Affairs, and other agencies; and
(B) the heads of other Federal agencies authorized
to execute and perform actions necessary to carry out
the Agreement;
to perform all of their obligations under the Agreement and
this Act; and
(5) to authorize the actions and appropriations necessary
for the United States to meet the obligations of the United
States under the Agreement and this Act.
SEC. 3. DEFINITIONS.
In this Act:
(1) Agreement.--The term ``Agreement'' means the document
titled ``Mediator's Term Sheet'' dated April 20, 2004, and
submitted on that date to the SRBA Court in SRBA Consolidated
Subcase 03-10022 and SRBA Consolidated Subcase 67-13701, with
all appendices to the document.
(2) Allottee.--The term ``allottee'' means a person that
holds a beneficial real property interest in an Indian
allotment that is--
(A) located within the Nez Perce Reservation; and
(B) held in trust by the United States.
(3) Consumptive use reserved water right.--The term
``consumptive use reserved water right'' means the Federal
reserved water right of 50,000 acre-feet per year, as described
in the Agreement, to be decreed to the Tribe and the allottees,
with a priority date of 1855.
(4) Parties.--The term ``parties'' means the United States,
the State, the Tribe, and any other entity or person that
submitted, or joined in the submission, of the Agreement to the
SRBA Court on April 20, 2004.
(5) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(6) Snake river basin.--The term ``Snake River Basin''
means the geographic area in the State described in paragraph 3
of the Commencement Order issued by the SRBA Court on November
19, 1987.
(7) Springs or fountains water right.--The term ``springs
or fountains water right'' means the Tribe's treaty right of
access to and use of water from springs or fountains on Federal
public land within the area ceded by the Tribe in the Treaty of
June 9, 1863 (14 Stat. 647), as recognized under the Agreement.
(8) SRBA.--The term ``SRBA'' means the Snake River Basin
Adjudication litigation before the SRBA Court styled as In re
Snake River Basin Adjudication, Case No. 39576.
(9) SRBA court.--The term ``SRBA Court'' means the District
Court of the Fifth Judicial District of the State of Idaho, In
and For the County of Twin Falls in re Snake River Basin
Adjudication.
(10) State.--The term ``State'' means the State of Idaho.
(11) Tribe.--The term ``Tribe'' means the Nez Perce Tribe.
SEC. 4. APPROVAL, RATIFICATION, AND CONFIRMATION OF AGREEMENT.
(a) In General.--Except to the extent that the Agreement conflicts
with the express provisions of this Act, the Agreement is approved,
ratified, and confirmed.
(b) Execution and Performance.--The Secretary and the other heads
of Federal agencies with obligations under the Agreement shall execute
and perform all actions, consistent with this Act, that are necessary
to carry out the Agreement.
SEC. 5. BUREAU OF RECLAMATION WATER USE.
(a) In General.--As part of the overall implementation of the
Agreement, the Secretary shall take such actions consistent with the
Agreement, this Act, and water law of the State as are necessary to
carry out the Snake River Flow Component of the Agreement.
(b) Mitigation for Change of Use of Water.--
(1) Authorization of appropriations.--There is authorized
to be appropriated to the Secretary $2,000,000 for a 1-time
payment to local governments to mitigate for the change of use
of water acquired by the Bureau of Reclamation under section
III.C.6 of the Agreement.
(2) Distribution of funds.--Funds made available under
paragraph (1) shall be distributed by the Secretary to local
governments in accordance with a plan provided to the Secretary
by the State.
(3) Payments.--Payments by the Secretary shall be made on a
pro rata basis as water rights are acquired by the Bureau of
Reclamation.
SEC. 6. BUREAU OF LAND MANAGEMENT LAND TRANSFER.
(a) Transfer.--
(1) In general.--The Secretary shall transfer land selected
by the Tribe under paragraph (2) to the Bureau of Indian
Affairs to be held in trust for the Tribe.
(2) Land selection.--The land transferred shall be selected
by the Tribe from a list of parcels of land managed by the
Bureau of Land Management that are available for transfer, as
depicted on the map entitled ``North Idaho BLM Land Eligible
for Selection by the Nez Perce Tribe'' dated May 2004, on file
with the Director of the Bureau of Land Management, not
including any parcel designated on the map as being on the
Clearwater River or Lolo Creek.
(3) Maximum value.--The land selected by the Tribe for
transfer shall be limited to a maximum value in total of not
more than $7,000,000, as determined by an independent appraisal
of fair market value prepared in accordance with the Uniform
Standards of Professional Appraisal Practice and the Uniform
Appraisal Standards for Federal Land Acquisitions.
(b) Existing Rights and Uses.--
(1) In general.--On any land selected by the Tribe under
subsection (a)(2), any use in existence on the date of transfer
under subsection (a) under a lease or permit with the Bureau of
Land Management, including grazing, shall remain in effect
until the date of expiration of the lease or permit, unless the
holder of the lease or permit requests an earlier termination
of the lease or permit, in which case the Secretary shall grant
the request.
(2) Availability of amounts.--Amounts that accrue to the
United States under a lease or permit described in paragraph
(1) from sales, bonuses, royalties, and rentals relating to any
land transferred to the Tribe under this section shall be made
available to the Tribe by the Secretary in the same manner as
amounts received from other land held by the Secretary in trust
for the Tribe.
(c) Date of Transfer.--No land shall be transferred to the Tribe
under this section until the waivers and releases take effect.
SEC. 7. WATER RIGHTS.
(a) Holding in Trust.--
(1) In general.--The consumptive use reserved water right
shall be held in trust by the United States for the benefit of
the Tribe and allottees.
(2) Springs or fountains water right.--The springs or
fountains water right of the Tribe shall be held in trust by
the United States for the benefit of the Tribe.
(b) Water Code.--
(1) In general.--The consumptive use reserved water right
shall be subject to section 7 of the Act of February 8, 1887
(25 U.S.C. 381; 24 Stat. 390, chapter 119).
(2) Enactment of water code.--Not later than 3 years after
the date of enactment of this Act, the Tribe shall enact a
water code, subject to any applicable provision of law, that--
(A) manages, regulates, and controls the
consumptive use reserved water right; and
(B) includes, subject to approval of the
Secretary--
(i) a process by which an allottee, or any
successor in interest to an allottee, may
request and be provided with an allocation of
water for irrigation use on allotted land of
the allottee; and
(ii) a due process system for the
consideration and determination of any request
by an allottee, or any successor in interest to
an allottee, for an allocation of water,
including a process for appeal and adjudication
of denied or disputed distributions of water
and for resolution of contested administrative
decisions.
(3) Rights of allottees.--Any provision of the water code
and any amendments to the water code that affect the rights of
the allottees shall be subject to the approval of the
Secretary, and no such provision or amendment shall be valid
until approved by the Secretary.
(4) Interim administration.--The Secretary shall administer
the consumptive use reserved water right until such date as the
water code described in paragraph (2) has been enacted by the
Tribe and approved by the Secretary.
(c) Satisfaction of Claims.--
(1) In general.--The water rights and other benefits
granted or confirmed by the Agreement and this Act shall be in
full satisfaction of all claims for water rights and injuries
to water rights of the allottees.
(2) Satisfaction of entitlements.--Any entitlement to water
of any allottee under Federal law shall be satisfied out of the
consumptive use reserved water right.
(d) Abandonment, Forfeiture, or Nonuse.--The consumptive use
reserved water right and the springs or fountains water right shall not
be subject to loss by abandonment, forfeiture, or nonuse.
(e) Lease of Water.--
(1) In general.--The Tribe, without further approval of the
Secretary, may lease water to which the Tribe is entitled under
the consumptive use reserved water right through any State
water bank in the same manner and subject to the same rules and
requirements that govern any other lessor of water to the water
bank.
(2) Funds.--Any funds accruing to the Tribe from any lease
under paragraph (1) shall be the property of the Tribe, and the
United States shall have no trust obligation or other
obligation to monitor, administer, or account for any
consideration received by the Tribe under any such lease.
SEC. 8. TRIBAL FUNDS.
(a) Definition of Fund.--In this section, the term ``Fund'' means--
(1) the Nez Perce Tribe Water and Fisheries Fund
established under subsection (b)(1); and
(2) the Nez Perce Tribe Domestic Water Supply Fund
established under subsection (b)(2).
(b) Establishment.--There are established in the Treasury of the
United States--
(1) a fund to be known as the ``Nez Perce Tribe Water and
Fisheries Fund'', to be used to pay or reimburse costs incurred
by the Tribe in acquiring land and water rights, restoring or
improving fish habitat, or for fish production, agricultural
development, cultural preservation, water resource development,
or fisheries-related projects; and
(2) a fund to be known as the ``Nez Perce Domestic Water
Supply Fund'', to be used to pay the costs for design and
construction of water supply and sewer systems for tribal
communities, including a water quality testing laboratory.
(c) Management of the Funds.--The Secretary shall manage the Funds,
make investments from the Funds, and make amounts available from the
Funds for distribution to the Tribe consistent with the American Indian
Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.), this
Act, and the Agreement.
(d) Investment of the Funds.--The Secretary shall invest amounts in
the Funds in accordance with--
(1) the Act of April 1, 1880 (25 U.S.C. 161; 21 Stat. 70,
chapter 41);
(2) the first section of the Act of June 24, 1938 (25
U.S.C. 162a; 52 Stat. 1037, chapter 648); and
(3) subsection (c).
(e) Availability of Amounts From the Funds.--Amounts made available
under subsection (h) shall be available for expenditure or withdrawal
only after the waivers and releases under section 10 take effect.
(f) Expenditures and Withdrawal.--
(1) Tribal management plan.--
(A) In general.--The Tribe may withdraw all or part
of 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.).
(B) 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 the Tribe spend any
amounts withdrawn from the Funds in accordance with the
purposes described in subsection (b).
(C) 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 Funds under the plan are used in
accordance with this Act and the Agreement.
(D) 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.
(2) Expenditure plan.--
(A) In general.--The Tribe shall submit to the
Secretary for approval an expenditure plan for any
portion of the amounts made available under subsection
(h) that the Tribe does not withdraw under this
subsection.
(B) Description.--The expenditure plan shall
describe the manner in which, and the purposes for
which, amounts of the Tribe remaining in the Funds will
be used.
(C) Approval.--On receipt of an expenditure plan
under subparagraph (A), the Secretary shall approve the
plan if the Secretary determines that the plan is
reasonable and consistent with this Act and the
Agreement.
(D) Annual report.--For each Fund, the Tribe shall
submit to the Secretary an annual report that describes
all expenditures from the Fund during the year covered
by the report.
(g) No Per Capita Payments.--No part of the principal of the Funds,
or of the income accruing in the Funds, shall be distributed to any
member of the Tribe on a per capita basis.
(h) Authorization of Appropriations.--There are authorized to be
appropriated--
(1) $60,100,000 to the Nez Perce Tribe Water and Fisheries
Fund; and
(2) $23,000,000 to the Nez Perce Tribe Domestic Water
Supply Fund.
SEC. 9. SALMON AND CLEARWATER RIVER BASINS HABITAT FUND.
(a) Establishment of Fund.--
(1) In general.--There is established in the Treasury of
the United States a fund to be known as the ``Salmon and
Clearwater River Basins Habitat Fund'' (referred to in this
section as the ``Fund''), to be administered by the Secretary.
(2) Accounts.--There is established within the Fund--
(A) an account to be known as the ``Nez Perce Tribe
Salmon and Clearwater River Basins Habitat Account'',
which shall be administered by the Secretary for use by
the Tribe subject to the same provisions for
management, investment, and expenditure as the funds
established by section 8; and
(B) an account to be known as the ``Idaho Salmon
and Clearwater River Basins Habitat Account'', which
shall be administered by the Secretary and provided to
the State as provided in the Agreement and this Act.
(b) Use of the Fund.--
(1) In general.--The Fund shall be used to supplement
amounts made available under other law for habitat protection
and restoration in the Salmon and Clearwater River basins,
including projects and programs intended to protect and restore
listed fish and their habitat in the Salmon and Clearwater
basins, as specified in the Agreement and this Act.
(2) No allocation requirement.--The use of the Fund shall
not be subject to the allocation procedures under section
6(d)(1) of the Endangered Species Act of 1973 (16 U.S.C.
1535(d)(1)).
(3) Release of funds.--The Secretary shall release funds
from the Clearwater River Basins Habitat Account in accordance
with section 6(d)(2) of the Endangered Species Act (16 U.S.C.
1535(d)(2)).
(c) Availability of Amounts in the Fund.--Amounts made available
under subsection (d) shall be available for expenditure or withdrawal
only after the waivers and releases under section 10(a) take effect.
(d) Authorization of Appropriations.--There are authorized to be
appropriated--
(1) $12,666,670 to the Nez Perce Tribe Salmon and
Clearwater River Basins Habitat Account; and
(2) $25,333,330 to the Idaho Salmon and Clearwater River
Basins Habitat Account.
SEC. 10. TRIBAL WAIVER AND RELEASE OF CLAIMS.
(a) Waiver and Release of Claims in General.--
(1) Claims to water rights; claims for injuries to water
rights or treaty rights.--Except as otherwise provided in this
Act, the United States on behalf of the Tribe and the
allottees, and the Tribe, waive and release--
(A) all claims to water rights within the Snake
River Basin (as defined in section 3(b));
(B) all claims for injuries to such water rights;
and
(C) all claims for injuries to the treaty rights of
the Tribe to the extent that such injuries result or
resulted from flow modifications or reductions in the
quantity of water available that accrued at any time up
to and including the effective date of the settlement,
and any continuation thereafter of any such claims,
against the State, any agency or political subdivision
of the State, or any person, entity, corporation,
municipal corporation, or quasi-municipal corporation.
(2) Claims based on reduced water quantity or reductions in
water quantity.--The United States on behalf of the Tribe and
the allottees, and the Tribe, waive and release any claim,
under any treaty theory, based on reduced water quality
resulting directly from flow modifications or reductions in the
quantity of water available in the Snake River Basin against
any party to the Agreement or this Act.
(3) No future assertion of claims.--No water right claim
that the Tribe or the allottees have asserted or may in the
future assert outside the Snake River Basin shall require water
to be supplied from the Snake River Basin to satisfy the claim.
(4) Effect of waivers and releases.--The waivers and
releases by the United States and the Tribe under this
subsection--
(A) shall be permanent and enforceable; and
(B) shall survive any subsequent termination of any
component of the settlement described in the Agreement
or this Act.
(5) Effective date.--The waivers and releases under this
subsection take effect on the date on which the Secretary
causes to be published in the Federal Register a statement of
findings that the actions set forth in section IV.L of the
Agreement--
(A) have been completed, including issuance of a
judgment and decree by the SRBA court from which no
further appeal may be taken; and
(B) have been determined by the United States on
behalf of the Tribe and the allottees, the Tribe, and
the State of Idaho to be consistent in all material
aspects with the Agreement.
(b) Waiver and Release of Claims Against the United States.--
(1) In general.--In consideration of performance by the
United States of all actions required by the Agreement and this
Act, including the appropriation of all funds authorized under
sections 8(h) and 9(d)(1), the Tribe shall execute a waiver and
release of the United States from--
(A) all claims for water rights within the Snake
River Basin, injuries to such water rights, or breach
of trust claims for failure to protect, acquire, or
develop such water rights that accrued at any time up
to and including the effective date determined under
paragraph (2);
(B) all claims for injuries to the Tribe's treaty
fishing rights, to the extent that such injuries result
or resulted from reductions in the quantity of water
available in the Snake River Basin;
(C) all claims of breach of trust for failure to
protect Nez Perce springs or fountains treaty rights
reserved in article VIII of the Treaty of June 9, 1863
(14 Stat. 651); and
(D) all claims of breach of trust arising out of
the negotiation of or resulting from the adoption of
the Agreement.
(2) Effective date.--The waiver and release contained in
this subsection take effect on the date on which the funds
authorized under sections 8(h) and 9(d)(1) of this Act have
been appropriated as authorized by this Act.
(c) Retention of Rights.--
(1) In general.--The Tribe shall retain all rights not
specifically waived or released in the Agreement or this Act.
(2) Dworshak project.--Nothing in the Agreement or this Act
constitutes a waiver by the Tribe of any claim against the
United States relating to non-water-based injuries resulting
from the construction and operation of the Dworshak Project.
(3) Future acquisition of water rights.--Nothing in the
Agreement or this Act precludes the Tribe, or the United States
as trustee for the Tribe, from purchasing or otherwise
acquiring water rights in the future to the same extent as any
other entity in the State.
SEC. 11. MISCELLANEOUS.
(a) General Disclaimer.--The parties expressly reserve all rights
not specifically granted, recognized, or relinquished by the settlement
described in the Agreement or this Act.
(b) Disclaimer Regarding Other Agreements and Precedent.--
(1) In general.--Except as expressly provided in this Act,
nothing in this Act amends, supersedes, or preempts any State
law, Federal law, Tribal law, or interstate compact that
pertains to the Snake River or its tributaries.
(2) No establishment of standard.--Nothing in this Act--
(A) establishes any standard for the quantification
of Federal reserved water rights or any other Indian
water claims of any other Indian tribes in any other
judicial or administrative proceeding; or
(B) limits the rights of the parties to litigate
any issue not resolved by the Agreement or this Act.
(3) No admission against interest.--Nothing in this Act
constitutes an admission against interest against any party in
any legal proceeding.
(c) Treaty Rights.--Nothing in the Agreement or this Act impairs
the treaty fishing, hunting, pasturing, or gathering rights of the
Tribe, except to the extent expressly provided in the Agreement or this
Act.
(d) Other Claims.--Nothing in the Agreement or this Act quantifies
or otherwise affects the water rights, claims, or entitlements to
water, or any other treaty right, of any Indian tribe, band, or
community other than the Tribe.
(e) Recreation on Dworshak Reservoir.--
(1) In general.--In implementing the provisions of the
Agreement and this Act relating to the use of water stored in
Dworshak Reservoir for flow augmentation purposes, the heads of
the Federal agencies involved in the operational Memorandum of
Agreement referred to in the Agreement shall implement a flow
augmentation plan beneficial to fish and consistent with the
Agreement.
(2) Contents of plan.--The flow augmentation plan may
include provisions beneficial to recreational uses of the
reservoir through maintenance of the full level of the
reservoir for prolonged periods during the summer months.
(f) Jurisdiction.--
(1) No effect on subject matter jurisdiction.--Nothing in
the Agreement or this Act restricts, enlarges, or otherwise
determines the subject matter jurisdiction of any Federal,
State, or Tribal court.
(2) Consent to jurisdiction.--The United States consents to
jurisdiction in a proper forum for purposes of enforcing the
provisions of the Agreement.
(3) Effect of subsection.--Nothing in this subsection
confers jurisdiction on any State court to--
(A) enforce Federal environmental laws regarding
the duties of the United States; or
(B) conduct judicial review of Federal agency
action.
SEC. 12. NATURAL RESOURCE RESTORATION AND CONSERVATION AND WATER
RESOURCE DEVELOPMENT OF JENSEN GROVE LAKE, CITY OF
BLACKFOOT, IDAHO.
Using funds available in the community development fund of the
Department of Housing and Urban Development for economic development
initiatives, the Secretary of Housing and Urban Development may make a
grant of $1,000,000 to the City of Blackfoot, Idaho, to assist the city
with natural resource restoration and conservation and water resource
development associated with Jensen Grove Lake.
SEC. 13. UPPER SNAKE RIVER BASIN WATER STORAGE FEASIBILITY STUDY.
(a) Study Authorized.--Not later than one year after the date of
the enactment of this Act, the Secretary, acting through the Bureau of
Reclamation, shall complete a feasibility study of the Upper Snake
River Basin in Idaho to determine the feasibility of providing
additional water storage for municipal use, industrial supply, flood
control, irrigation, and other purposes. The study shall include
consideration of new storage sites, raising existing dams, and off-
stream storage.
(b) Funding Source.--The Secretary shall not require matching funds
as a condition of conducting the study, and the Federal funds expended
for the study shall not be reimbursed.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Resources.
Referred to the Subcommittee on Water and Power.
Executive Comment Requested from Interior.
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