Pechanga Band of Luiseno Mission Indians Water Rights Settlement Act - Authorizes, ratifies, and confirms the Pechanga Settlement Agreement.
Directs the Secretary of the Department of the Interior to execute the Extension of Service Area Agreement, the Recycled Water Infrastructure Agreement, and the ESAA Capacity Agreement within 60 days of enactment of this Act.
Ratifies, confirms, and declares valid the Tribal Water Right which shall be held in trust by the United States for the use and benefit of the Band and allottees.
States that the Band shall: (1) have authority to use, allocate, and lease the Tribal Water Right; and (2) enact a Pechanga Water Code.
Waives certain water rights and land claims of the Band and the United States with respect to the Santa Margarita River Watershed.
Directs the Secretary to provide specified funds: (1) to fulfill the Band's obligations under the Recycled Water Infrastructure Agreement and the ESAA Capacity Agreement; (2) for the Storage Pond and the Demineralization and Brine Disposal Project; (3) to fulfill the Band's obligations under the Recycled Water Infrastructure Agreement for the Storage Pond's design and construction; and (4) for Interim Capacity and Permanent Capacity.
Establishes in the Treasury the Pechanga Settlement Fund.
Repeals this Act and voids any related agreements effective January 1, 2016, if the Secretary does not publish a statement of findings required under this Act by December 31, 2015. Returns any appropriations and unobligated amounts to the general fund of the Treasury.
[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4285 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 4285
To authorize the Pechanga Band of Luiseno Mission Indians Water Rights
Settlement, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
December 11, 2009
Mrs. Bono Mack (for herself, Mr. Grijalva, Ms. Richardson, Mr. Calvert,
Mr. Baca, and Mr. Issa) introduced the following bill; which was
referred to the Committee on Natural Resources
_______________________________________________________________________
A BILL
To authorize the Pechanga Band of Luiseno Mission Indians Water Rights
Settlement, 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.
(a) Short Title.--This Act may be cited as the ``Pechanga Band of
Luiseno Mission Indians Water Rights Settlement Act''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title.
Sec. 2. Purposes.
Sec. 3. Definitions.
Sec. 4. Approval of the pechanga settlement agreement.
Sec. 5. Tribal Water Right.
Sec. 6. Satisfaction of claims.
Sec. 7. Waiver of claims.
Sec. 8. Water facilities.
Sec. 9. Pechanga Settlement Fund.
Sec. 10. Miscellaneous provisions.
Sec. 11. Authorization of appropriations.
Sec. 12. Repeal on failure of enforceability date.
SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to achieve a fair, equitable, and final settlement of
claims to water rights and certain claims for injuries to water
rights in the Santa Margarita River Watershed for--
(A) the Band; and
(B) the United States acting in its capacity as
trustee for the Band and Allottees;
(2) to achieve a fair, equitable, and final settlement of
certain claims by the Band against the United States;
(3) to authorize, ratify, and confirm the Pechanga
Settlement Agreement to be entered into by the Band, RCWD,
EMWD, and the United States;
(4) to authorize and direct the Secretary--
(A) to execute the Pechanga Settlement Agreement;
and
(B) to take any other action necessary to carry out
the Pechanga Settlement Agreement in accordance with
this Act; and
(5) to authorize the appropriation of funds necessary for
the implementation of the Pechanga Settlement Agreement and
this Act.
SEC. 3. DEFINITIONS.
In this Act:
(1) Adjudication court.--The term ``Adjudication Court''
means the U.S. District Court for the Southern District of
California exercising continuing jurisdiction over the
Adjudication Proceeding.
(2) Adjudication proceeding.--The term ``Adjudication
Proceeding'' means litigation initiated by the United States
regarding relative water rights in the Santa Margarita River
Watershed in United States v. Fallbrook Public Utility District
et al., Civ. No. 3:51-cv-01247 (S.D.C.A.), including any
litigation initiated to interpret or enforce the relative water
rights in the Santa Margarita River Watershed pursuant to the
Adjudication Court's continuing jurisdiction over the Fallbrook
Decree.
(3) AFY.--The term ``AFY'' means acre-feet per year.
(4) Allottee.--The term ``allottee'' means a person who
holds a beneficial real property interest in an Indian
allotment that is--
(A) located within the Reservation; and
(B) held in trust by the United States.
(5) Band.--The term ``Band'' means the sovereign government
of the Pechanga Band of Luiseno Mission Indians, which is
organized under section 16 of the Act of June 18, 1934 (25
U.S.C. 476), acting on behalf of itself and its members.
(6) Brine disposal facility notice.--The term ``Brine
Disposal Facility Notice'' has the meaning set forth in section
5 of the Recycled Water Infrastructure Agreement.
(7) Claims.--The term ``claims'' means rights, claims,
demands, actions, compensation or causes of action whether
known or unknown as of the date of the Pechanga Settlement
Agreement.
(8) Demineralization and brine disposal project.--The term
``Demineralization and Brine Disposal Project'' has the meaning
set forth in section 1 of the Recycled Water Infrastructure
Agreement.
(9) Emwd.--The term ``EMWD'' means Eastern Municipal Water
District, a municipal water district organized and existing in
accordance with the Municipal Water District Law of 1911,
Division 20 of the Water Code of the State of California, as
amended.
(10) Emwd connection fee.--The term ``EMWD Connection Fee''
has the meaning set forth in section 2.3(b) of the Extension of
Service Area Agreement.
(11) 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 7(f).
(12) ESAA capacity agreement.--The term ``ESAA Capacity
Agreement'' means the ``Agreement to Provide Capacity for
Delivery of ESAA Water'', among the Band, RCWD and the United
States.
(13) Esaa water.--The term ``ESAA Water'' means imported
potable water that the Band receives from EMWD and MWD pursuant
to the Extension of Service Area Agreement.
(14) Extension of service area agreement.--The term
``Extension of Service Area Agreement'' means the ``Agreement
for Extension of Existing Service Area'', among the Band, EMWD,
the United States and MWD for purposes of provision of water
service by EMWD to a designated portion of the Reservation
using water supplied by MWD.
(15) Fallbrook decree.--The term ``Fallbrook Decree'' means
the ``Modified Final Judgment And Decree'', entered in the
Adjudication Proceeding on April 6, 1966. The term ``Fallbrook
Decree'' includes all court orders, interlocutory judgments and
decisions supplemental to the ``Modified Final Judgment And
Decree'', including Interlocutory Judgment No. 30,
Interlocutory Judgment No. 35, and Interlocutory Judgment No.
41.
(16) 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).
(17) Injury to water rights.--The term ``Injury to Water
Rights'' means an interference with, diminution of, or
deprivation of water rights under Federal or State law.
(18) Interim capacity.--The term ``Interim Capacity'' has
the meaning set forth in section 1 of the ESAA Capacity
Agreement.
(19) Interim capacity notice.--The term ``Interim Capacity
Notice'' has the meaning set forth in section 4(b) of the ESAA
Capacity Agreement.
(20) MWD.--The term ``MWD'' means the Metropolitan Water
District of Southern California, a metropolitan water district
organized and incorporated under the Metropolitan Water
District Act of the State of California (Stats. 1969, Chapter
209, as amended).
(21) MWD connection fee.--The term ``MWD Connection Fee''
has the meaning set forth in section 2.3(a) of the Extension of
Service Area Agreement.
(22) Pechanga esaa delivery capacity account.--The term
``Pechanga ESAA Delivery Capacity Account'' means the fund
authorized by section 11(a)(2) of this Act.
(23) Pechanga recycled water infrastructure account.--The
term ``Pechanga Recycled Water Infrastructure Account'' means
the fund authorized by section 11(a)(1) of this Act.
(24) Pechanga settlement agreement.--The term ``Pechanga
Settlement Agreement'' means that agreement, together with the
exhibits thereto. The parties to the Pechanga Settlement
Agreement are the Band, the United States on behalf of the
Band, its members and allottees, RCWD and EMWD.
(25) Pechanga settlement fund.--The term ``Pechanga
Settlement Fund'' means the fund authorized by section 9 of
this Act.
(26) Pechanga water code.--The term ``Pechanga Water Code''
means a water code to be adopted by the Band in accordance with
section 5(f).
(27) Pechanga water fund account.--The term ``Pechanga
Water Fund Account'' means the fund authorized by section
11(a)(3) of this Act.
(28) Permanent capacity.--The term ``Permanent Capacity''
has the meaning set forth in section 1 of the ESAA Capacity
Agreement.
(29) Permanent capacity notice.--The term ``Permanent
Capacity Notice'' has the meaning set forth in section 5(b) of
the ESAA Capacity Agreement.
(30) Rcwd.--The term ``RCWD'' means the California water
district organized pursuant to California Water code section
34000 et seq. and includes all real property owners for whom
RCWD acts as an agent pursuant to an agency agreement.
(31) Recycled water infrastructure agreement.--The term
``Recycled Water Infrastructure Agreement'' means the
``Agreement for Recycled Water Infrastructure'' among the Band,
RCWD, and the United States.
(32) Recycled water transfer agreement.--The term
``Recycled Water Transfer Agreement'' means the ``Recycled
Water Transfer Agreement'' between the Band and RCWD.
(33) Reservation.--The term ``Reservation'' means land
depicted on the map attached to the Pechanga Settlement
Agreement as exhibit I. The term ``Reservation'' is solely for
the purposes of the Pechanga Settlement Agreement only, and not
for any of the exhibits, and shall not be used for any other
purpose.
(34) Santa margarita river watershed.--The ``Santa
Margarita River Watershed'' means the watershed that is the
subject of the Adjudication Proceeding and the Fallbrook
Decree.
(35) Secretary.--The term ``Secretary'' means the Secretary
of the United States Department of the Interior.
(36) State.--The term ``State'' means the State of
California.
(37) Storage pond.--The term ``Storage Pond'' has the
meaning set forth in section 1 of the Recycled Water
Infrastructure Agreement.
(38) Tribal water right.--The term ``Tribal Water Right''
means the water rights ratified, confirmed and declared to be
valid for the benefit of the Band and allottees as specifically
set forth and described in section 5 of the Act.
SEC. 4. APPROVAL OF THE PECHANGA SETTLEMENT AGREEMENT.
(a) In General.--Except as modified by this Act, and to the extent
the Pechanga Settlement Agreement does not conflict with this Act, the
Pechanga Settlement Agreement is authorized, ratified, and confirmed.
To the extent amendments are executed to make the Pechanga Settlement
Agreement consistent with this Act, such amendments are also
authorized, ratified, and confirmed.
(b) Execution of Pechanga Settlement Agreement.--To the extent that
the Pechanga Settlement Agreement does not conflict with this Act, the
Secretary is directed to and shall promptly execute the Pechanga
Settlement Agreement, including all exhibits to or parts of the
Pechanga Settlement Agreement requiring the signature of the Secretary.
Nothing herein precludes the Secretary from approving modifications to
exhibits to the Pechanga Settlement Agreement not inconsistent with
this Act, to the extent such modifications do not otherwise require
Congressional approval pursuant to the Trade and Intercourse Act, 25
U.S.C. 177, or pursuant to other Federal statute.
(c) Execution of Extension of Service Area Agreement, Recycled
Water Infrastructure Agreement and ESAA Capacity Agreement.--The
Secretary shall execute the Extension of Service Area Agreement, the
Recycled Water Infrastructure Agreement and the ESAA Capacity Agreement
within 60 days of the enactment of this Act. Such agreements shall be
effective and enforceable as between the parties to such agreements,
except the United States, as from the date all parties thereto have
executed such agreements. Such agreements shall be enforceable as to
the United States only as from the enforceability date.
(d) National Environmental Policy Act of 1969.--
(1) Environmental compliance.--In implementing the Pechanga
Settlement Agreement, 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 pechanga settlement agreement.--
Execution of the Pechanga Settlement 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.). The Secretary is directed to carry out all
Federal compliance necessary to implement the Pechanga
Settlement Agreement.
(3) Lead agency.--The Bureau of Reclamation shall be
designated as the lead agency with respect to environmental
compliance.
SEC. 5. TRIBAL WATER RIGHT.
(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 currently possess, taking into consideration--
(1) the potential risks, cost, and time delay associated
with litigation that would be resolved by the Pechanga
Settlement Agreement and this Act;
(2) the availability of funding under this Act;
(3) the availability of water from the Tribal Water Right
and other water sources as set forth in the Pechanga Settlement
Agreement; and
(4) the applicability of section 7 of the Act of February
8, 1887 (25 U.S.C. 381) and this Act to protect the interests
of allottees.
(b) Confirmation of Tribal Water Right.--
(1) In general.--The Tribal Water Right is ratified,
confirmed, and declared to be valid.
(2) Characteristics of tribal water right.--The Tribal
Water Right shall be equal to 4,994 AFY of water that is
subject to the jurisdiction of the Adjudication Court. The
priority date for 3,019 AFY of the Tribal Water Right shall be
June 27, 1882. The priority date for 182 AFY of the Tribal
Water Right shall be August 29, 1893. The priority date for 729
AFY of the Tribal Water Right shall be January 9, 1907. The
priority date for 563 AFY of the Tribal Water Right shall be
March 11, 1907. The priority date for 501 AFY of the Tribal
Water Right shall be May 25, 1931.
(3) Use.--Subject to the terms of the Pechanga Settlement
Agreement, this Act and the Fallbrook Decree, the Band may use
the Tribal Water Right for any purpose on the Reservation.
(c) Holding in Trust.--The Tribal Water Right shall be held in
trust by the United States for the use and benefit of the Band, and the
allottees in accordance with this section.
(d) Allottees.--As specified in and provided for in this Act:
(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 Right.
(2) Entitlement to water.--Any entitlement to water of an
allottee under Federal law for such allottee's allotment shall
be satisfied by the Band and no allottee shall have any
additional entitlement to water except as set forth in the
Pechanga Settlement Agreement and this Act.
(3) 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 Pechanga
Water Code or other applicable tribal law.
(4) Claims.--Following exhaustion of remedies available
under the Pechanga 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.
(5) Authority.--The Secretary shall have the authority to
protect allottees' rights as specified in this section.
(e) Authority of Band.--
(1) In general.--Except as provided in paragraph (2), the
Band shall have authority to use, allocate, distribute, and
lease the Tribal Water Right--
(A) in accordance with the Pechanga Settlement
Agreement; and
(B) subject to approval of the Secretary of the
Pechanga Water Code under section 5(f).
(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) Pechanga Water Code.--
(1) In general.--No later than eighteen (18) months
following the enforceability date, the Band shall enact a
Pechanga Water Code, that provides for--
(A) the management, regulation and governance of
all uses of the Tribal Water Right in accordance with
the Pechanga Settlement Agreement; and
(B) establishment by the Band of conditions, permit
requirements, and other limitations relating to the
storage, recovery, and use of the Tribal Water Right in
accordance with the Pechanga Settlement Agreement.
(2) Inclusions.--Subject to the approval of the Secretary,
the Pechanga Water Code shall provide that--
(A) tribal allocations of water to allottees shall
be satisfied with water from the Tribal Water Right;
(B) charges for delivery of water for irrigation
purposes for allottees shall be assessed in accordance
with section 7 of the Act of February 8, 1887 (25
U.S.C. 381);
(C) there is a process by which an allottee may
request that the Band provide water for irrigation use
in accordance with this Act;
(D) there is a due process system for the
consideration and determination by the Band 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
(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 Pechanga 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 Pechanga Water Code before
initiating an action against the United States or
petitioning the Secretary pursuant to subsection
(d)(4).
(3) Action by secretary.--
(A) In general.--The Secretary shall administer the
Tribal Water Right until the Pechanga Water Code is
enacted in accordance with paragraph (1) and those
provisions requiring approval pursuant to paragraph
(2).
(B) Approval.--The Pechanga Water Code shall not be
valid unless--
(i) the provisions of the Pechanga Water
Code required by paragraph (2) are approved by
the Secretary; and
(ii) each amendment to the Pechanga Water
Code that affects a right of an allottee is
approved by the Secretary.
(C) Approval period.--
(i) In general.--Except as provided by
clause (ii), if the Secretary does not approve
or disapprove the Pechanga Water Code before
the date that is 180 days after the date on
which the Pechanga Water Code is submitted to
the Secretary for approval, the Pechanga Water
Code shall be considered to have been approved
by the Secretary to the extent that it is not
inconsistent with the Pechanga Settlement
Agreement or this Act.
(ii) Mutual extension of approval period.--
The Pechanga Water Code may not be considered
to have been approved by the Secretary under
clause (i) if the Secretary and the Band agree
to extend the approval period.
(g) Effect.--Except as otherwise specifically provided in this
section, nothing in this Act--
(1) authorizes any action by an allottee against any
individual or entity, or against the Band, 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.
SEC. 6. SATISFACTION OF CLAIMS.
(a) In General.--The benefits provided to the Band and the
allottees under the Pechanga Settlement Agreement and this Act shall
satisfy all claims of the Band and the allottees waived pursuant to
section 7.
(b) No Recognition of Water Rights.--Notwithstanding subsection (a)
and except as provided in section 5(d), nothing in this Act recognizes
or establishes any right of a member of the Band or an allottee to
water within the Reservation.
SEC. 7. WAIVER OF CLAIMS.
(a) In General.--
(1) Waiver of claims by the band and the united states.--
(A) Subject to the retention of rights set forth in
subsection (c), notwithstanding any provisions to the
contrary in the Pechanga Settlement Agreement, and in
return for the ratification, confirmation and
declaration to be valid of the Tribal Water Right and
other benefits, including the commitments by RCWD and
EMWD as set forth in the Pechanga Settlement Agreement
and this Act, the Band, and the United States on behalf
of the Band and allottees waive any and all of the
following claims--
(i) claims for water rights in the Santa
Margarita River Watershed for lands located
within the Reservation arising from time
immemorial and, thereafter, forever; and
(ii) claims for water rights in the Santa
Margarita River Watershed that are based on
aboriginal occupancy for lands overlying the
Santa Margarita River Watershed arising from
time immemorial and, thereafter, forever.
(B) Subject to the retention of rights set forth in
subsection (c), notwithstanding any provisions to the
contrary in the Pechanga Settlement Agreement, and in
return for the ratification, confirmation and
declaration to be valid of the Tribal Water Right and
other benefits, including the commitments by RCWD and
EMWD as set forth in the Pechanga Settlement Agreement
and this Act, the Band and the United States on behalf
of the Band and allottees fully release, acquit and
discharge RCWD and EMWD from the following claims--
(i) claims for Injuries to Water Rights in
the Santa Margarita River Watershed for lands
located within the Reservation arising or
occurring at any time up to and including June
30, 2009;
(ii) claims for Injuries to Water Rights in
the Santa Margarita River Watershed for lands
located within the Reservation arising or
occurring at any time after June 30, 2009,
resulting from the diversion or use of water in
a manner not in violation of the Pechanga
Settlement Agreement or this Act;
(iii) claims for subsidence damage to land
located within the Reservation arising or
occurring at any time up to and including June
30, 2009;
(iv) claims for subsidence damage arising
or occurring after June 30, 2009, to lands
located within the Reservation resulting from
the diversion of underground water in a manner
not in violation of the Pechanga Settlement
Agreement or this Act; and
(v) claims arising out of or relating in
any manner to the negotiation or execution of
the Pechanga Settlement Agreement or the
negotiation or execution of this Act.
(2) Claims by the united states against the band.--Subject
to the retention of rights set forth in subsection (c), to the
extent consistent with this Act, the United States, in all its
capacities (except as trustee for an Indian tribe other than
the Band), as part of the performance of obligations under the
Pechanga Settlement Agreement, is authorized to execute a
waiver and release of any and all claims against the Band, or
any agency, official, or employee of the Band, under Federal,
State, or any other law for--
(A) claims for Injuries to Water Rights in the
Santa Margarita River Watershed for lands located
within the Reservation arising or occurring at any time
up to and including June 30, 2009;
(B) claims for Injuries to Water Rights in the
Santa Margarita River Watershed for lands located
within the Reservation arising or occurring at any time
after June 30, 2009, resulting from the diversion or
use of water in a manner not in violation this
Agreement or the Act;
(C) claims for subsidence damage to land located
within the Reservation arising or occurring at any time
up to and including June 30, 2009;
(D) claims for subsidence damage arising or
occurring after June 30, 2009, to lands located within
the Reservation resulting from the diversion of
underground water in a manner not in violation of this
Agreement or the Act; and
(E) claims arising out of or relating in any manner
to the negotiation or execution of this Agreement or
the negotiation or execution of the Act.
(3) Claims by the band against the united states.--Subject
to the retention of rights set forth in subsection (c), the
Band, on behalf of itself and its members, is authorized to
execute a waiver and release of--
(A) all claims against the United States, its
agencies, or employees relating to claims for water
rights in or water of the Santa Margarita River
Watershed or any other river systems outside of the
Santa Margarita River Watershed that the United States
acting in its capacity as trustee for the Band
asserted, or could have asserted, in any proceeding,
including but not limited to the Adjudication
Proceeding;
(B) 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 Santa Margarita
River Watershed that first accrued at any time up to
and including June 30, 2009;
(C) all claims against the United States, its
agencies, or employees encompassed within the case
Pechanga Band of Luiseno Indians v. Salazar, Civ. No.
1:06-cv-02206 (D.D.C);
(D) all claims against the United States, its
agencies, or employees relating to the pending
litigation of claims relating to the Band's water
rights in the Adjudication Proceeding; and
(E) all claims against the United States, its
agencies, or employees relating to the negotiation,
execution or the adoption of the Pechanga Settlement
Agreement, exhibits thereto, or this Act.
(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 Act, the Band on behalf of
itself and its members and the United States acting in its capacity as
trustee for the Band retain--
(1) claims for enforcement of the Pechanga Settlement
Agreement and this Act;
(2) claims against persons other than RCWD and EMWD;
(3) claims for water rights that are outside the
jurisdiction of the Adjudication Court;
(4) claims for water rights for lands within the Santa
Margarita River Watershed that are outside the Reservation;
provided, however, that such claims are for water rights
consistent with water rights recognized for such lands in the
Fallbrook Decree;
(5) rights to use and protect water rights acquired on or
after the enforceability date; and
(6) remedies, privileges, immunities, powers and claims,
including claims for water rights, not specifically waived and
released pursuant to this Act and the Pechanga Settlement
Agreement.
(d) Effect of Pechanga Settlement Agreement and Act.--Nothing in
the Pechanga Settlement Agreement or this Act--
(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 Clean Water Act,
the Safe Drinking Water Act, the Comprehensive Environmental
Response, Compensation, and Liability Act, Resource
Conservation and Recovery Act, 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 Band in an
individual capacity that does not derive from a right of the
Band.
(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) December 31, 2015; or
(B) the enforceability date.
(2) Effects of subsection.--Nothing in this subsection
revives any claim or tolls any period of limitation or time-
based 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.
(f) Enforceability Date.--The enforceability date shall be the date
on which the Secretary publishes in the Federal Register a statement of
findings that--
(1) the Pechanga Settlement Agreement has been approved by
the Adjudication Court;
(2) all funds authorized by this Act for such purpose have
been deposited in the Pechanga Settlement Fund;
(3) the waivers and releases authorized in subsection (a)
have been executed by the Band and the Secretary; and
(4) the Extension of Service Area Agreement has been
approved and executed by all parties thereto and is effective
and enforceable in accordance with its terms.
SEC. 8. WATER FACILITIES.
(a) In General.--The Secretary shall, subject to the availability
of appropriations, using funds from the designated accounts of the
Pechanga Settlement Fund, provide the funds necessary to fulfill the
Band's obligations under the Recycled Water Infrastructure Agreement
and the ESAA Capacity Agreement, in an amount not to exceed the amounts
deposited in the designated accounts for such purposes, in accordance
with this Act and the terms and conditions of such agreements.
(b) Non-Reimbursability.--The funds provided by the Secretary
pursuant to subsection (a) shall be non-reimbursable.
(c) Recycled Water Infrastructure.--
(1) In general.--The Secretary shall, using funds from the
Pechanga Recycled Water Infrastructure Account, provide funds
for the Storage Pond and the Demineralization and Brine
Disposal Project in accordance with this section.
(2) Storage pond.--The Secretary shall, subject to the
availability of appropriations, provide the funding necessary
to fulfill the Band's obligations under the Recycled Water
Infrastructure Agreement for the design and construction of the
Storage Pond, in an amount not to exceed $2,500,000, such
amount to be adjusted for changes since June 30, 2009, in
construction costs as indicated by engineering cost indices
applicable to types of construction required to design and
construct the Storage Pond.
(A) The procedure for the Secretary to provide
funds pursuant to this section shall be as set forth in
the Recycled Water Infrastructure Agreement.
(B) The Bureau of Reclamation shall be the lead
agency for purposes of the implementation of this
section.
(C) The United States shall have no responsibility
or liability for the Storage Pond to be designed and
constructed by RCWD.
(D) In the event that RCWD does not submit the
Storage Pond Notice to the Band within 3 years after
the enforceability date, the funds set aside within the
Pechanga Recycled Water Infrastructure Account,
including any interest that has accrued thereon, for
purposes of the design and construction of the Storage
Pond shall revert to the U.S. Treasury.
(3) Demineralization and brine disposal project.--Upon
receipt of a written request from the Band pursuant to section
5(c) of the Recycled Water Infrastructure Agreement, the
Secretary, acting through the Bureau of Reclamation, shall
enter into negotiations with RCWD and the Band to establish an
agreement that will allow the Bureau of Reclamation to make
payment directly to RCWD in the amount below. Upon execution of
said agreement the Secretary shall, subject to the availability
of appropriations, provide the funding necessary to fulfill the
Band's obligations under the Recycled Water Infrastructure
Agreement for the design and construction of the
Demineralization and Brine Disposal Project, in an amount not
to exceed $4,460,000, such amount to be adjusted for changes
since June 30, 2009, in construction costs as indicated by
engineering cost indices applicable to types of construction
required to design and construct the Demineralization and Brine
Disposal Project.
(A) The procedure for the Secretary to provide
funds pursuant to this section shall be as set forth in
the Recycled Water Infrastructure Agreement and the
funding agreement required pursuant to section 8(c)(3).
(B) The Bureau of Reclamation shall be the lead
agency for purposes of the implementation of this
section.
(C) The United States shall have no responsibility
or liability for the Demineralization and Brine
Disposal Project to be designed and constructed by
RCWD.
(D) In the event that RCWD, the Band and the United
States do not enter into the funding agreement required
by section 8(c)(3) within 5 years after the
enforceability date, the funds set aside within the
Pechanga Recycled Water Infrastructure Account,
including any interest that has accrued thereon, for
purposes of the design and construction of the
Demineralization and Brine Disposal Project shall be
available for use by the Band to design and construct
alternative demineralization and brine disposal
facilities that will provide benefits and improvements
in the quality of groundwater on the Reservation that
are similar to those that the Band would have received
had RCWD constructed the Demineralization and Brine
Disposal Project.
(d) ESAA Delivery Capacity.--
(1) In general.--The Secretary shall, using funds from the
Pechanga ESAA Delivery Capacity Account, provide funds for
Interim Capacity and Permanent Capacity in accordance with this
section.
(2) Interim capacity.--The Secretary shall, subject to the
availability of appropriations, using funds from the ESAA
Delivery Capacity Account, provide the funding necessary to
fulfill the Band's obligations under the ESAA Capacity
Agreement for the provision by RCWD of Interim Capacity to the
Band in an amount not to exceed $1,000,000.
(A) The procedure for the Secretary to provide
funds pursuant to this section shall be as set forth in
the ESAA Capacity Agreement.
(B) The Bureau of Reclamation shall be the lead
agency for purposes of the implementation of this
section.
(C) The United States shall have no responsibility
or liability for the Interim Capacity to be provided by
RCWD.
(D) In the event that RCWD does not provide the
Interim Capacity Notice required pursuant to the ESAA
Capacity Agreement within 60 days after the date
required under such agreement, the funds set aside in
the Pechanga ESAA Delivery Capacity Account, including
any interest that has accrued thereon, for purposes of
the provision of Interim Capacity and Permanent
Capacity shall be available for use by the Band to
provide alternative interim capacity in a manner that
is similar to the Interim Capacity and Permanent
Capacity that the Band would have received had RCWD
provided such Interim Capacity and Permanent Capacity.
(3) Permanent capacity.--Upon receipt of the Permanent
Capacity Notice pursuant to section 5(b) of the ESAA Capacity
Agreement, the Secretary, acting through the Bureau of
Reclamation, shall enter into negotiations with RCWD and the
Band to establish an agreement that will allow for the
disbursement of funds from the Pechanga ESAA Delivery Capacity
Account in the amount below. Upon execution of said agreement
the Secretary shall, subject to the availability of
appropriations, using funds from the ESAA Delivery Capacity
Account, provide the funding necessary to fulfill the Band's
obligations under the ESAA Capacity Agreement for the provision
by RCWD of Permanent Capacity to Pechanga in an amount not to
exceed $16,900,000, such amount to be adjusted for changes
since June 30, 2009, in construction costs as indicated by
engineering cost indices applicable to types of construction
required to design and construct the Permanent Capacity.
(A) The procedure for the Secretary to provide
funds pursuant to this section shall be as set forth in
the ESAA Capacity Agreement.
(B) The Bureau of Reclamation shall be the lead
agency for purposes of the implementation of this
section.
(C) The United States shall have no responsibility
or liability for the Permanent Capacity to be provided
by RCWD.
(D) In the event that RCWD does not provide the
Permanent Capacity Notice required pursuant to the ESAA
Capacity Agreement within 5 years after the
enforceability date, the funds set aside in the
Pechanga ESAA Delivery Capacity Account, including any
interest that has accrued thereon, for purposes of the
provision of Permanent Capacity shall be available for
use by the Band to provide alternative permanent
capacity in a manner that is similar to the Permanent
Capacity that the Band would have received had RCWD
provided such Permanent Capacity.
SEC. 9. PECHANGA SETTLEMENT FUND.
(a) Establishment.--There is established in the Treasury of the
United States the Pechanga Settlement Fund, consisting of such amounts
as are deposited in the fund under subsections (a)(1), (a)(2), and
(a)(3) of section 11.
(b) Accounts of Pechanga Settlement Fund.--The Secretary shall
establish in the Pechanga Settlement Fund the following accounts:
(1) Pechanga Recycled Water Infrastructure Account,
consisting of amounts authorized pursuant to section 11(a)(1).
(2) Pechanga ESAA Delivery Capacity Account, consisting of
amounts authorized pursuant to section 11(a)(2).
(3) Pechanga Water Fund Account, consisting of amounts
authorized pursuant to section 11(a)(3).
(c) Deposits to Pechanga Settlement Fund.--
(1) In general.--The Secretary of the Treasury shall
promptly deposit in the Pechanga Settlement Fund any amounts
appropriated for that purpose.
(2) Deposits to accounts.--The Secretary of the Treasury
shall deposit amounts in the accounts of the Pechanga
Settlement Fund established under subsection (b).
(d) Management.--
(1) In general.--The Secretary shall manage the Pechanga
Settlement Fund, make investments from the Pechanga Settlement
Fund, and make monies available from the Pechanga Settlement
Fund for distribution to the Band consistent with the American
Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001
et seq.) (referred to in this subsection as the ``Trust Fund
Reform Act'').
(2) Investment of pechanga settlement fund.--Upon the
enforceability date the Secretary shall invest amounts in the
Pechanga Settlement 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);
(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); and
(D) the obligations referred to in section 201 of
the Social Security Act (42 U.S.C. 401).
(3) Distributions from pechanga settlement fund.--
(A) In general.--Funds from the Pechanga Settlement
Fund shall be used for each purpose described in
subparagraphs (B) through (D).
(B) Pechanga recycled water infrastructure
account.--The Pechanga Recycled Water Infrastructure
Account shall be used for expenditures by the Band in
accordance with section 8(c).
(C) Pechanga esaa delivery capacity account.--The
Pechanga ESAA Delivery Capacity Account shall be used
for expenditures by the Band in accordance with section
8(d).
(D) Pechanga water fund account.--The Pechanga
Water Fund Account shall be used for--
(i) payment of the EMWD Connection Fee;
(ii) payment of the MWD Connection Fee; and
(iii) any expenses, charges or fees
incurred by the Band in connection with the
delivery or use of water pursuant to the
Pechanga Settlement Agreement.
(4) Withdrawals by band.--
(A) In general.--The Band may withdraw any portion
of amounts in the Pechanga Settlement Fund on approval
by the Secretary of a tribal management plan in
accordance with the Trust Fund Reform Act.
(B) Requirements.--
(i) In general.--In addition to the
requirements under the Trust Fund Reform Act,
the tribal management plan of the Band under
subparagraph (A) shall require that the Band
spend any amounts withdrawn from the Pechanga
Settlement Fund in accordance with this Act.
(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 Band from the Pechanga
Settlement Fund under this paragraph are used
in accordance with this Act.
(C) Liability.--The Secretary and the Secretary of
the Treasury shall not be liable for the expenditure or
investment of amounts withdrawn from the Pechanga
Settlement Fund by the Band under this paragraph.
(D) Expenditure plan.--
(i) In general.--For each fiscal year, the
Band shall submit to the Secretary for approval
an expenditure plan for any portion of the
amounts described in subparagraph (A) that the
Band elects 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,
funds of the Band remaining in the Pechanga
Settlement 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--
(I) reasonable; and
(II) consistent with this Act.
(5) Annual reports.--The Band shall submit to the Secretary
annual reports describing each expenditure by the Band of
amounts in the Pechanga Settlement Fund during the preceding
calendar year.
(6) Certain per capita distributions prohibited.--No amount
in the Pechanga Settlement Fund shall be distributed to any
member of the Band on a per capita basis.
(e) Availability.--The amounts in the Pechanga Settlement Fund
shall be available for use by the Secretary and withdrawal by the Band
beginning on the enforceability date.
SEC. 10. 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 Act waives the sovereign immunity of the United States.
(b) Other Tribes Not Adversely Affected.--Nothing in this Act
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 Band.
(c) Limitation on Claims for Reimbursement.--With respect to Indian
land within the Reservation--
(1) the United States shall not submit against any Indian-
owned land located within the Reservation any claim for
reimbursement of the cost to the United States of carrying out
this Act and the Pechanga Settlement Agreement; and
(2) no assessment of any Indian-owned land located within
the Reservation shall be made regarding that cost.
(d) 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.
SEC. 11. AUTHORIZATION OF APPROPRIATIONS.
(a) Authorization of Appropriations.--
(1) Pechanga recycled water infrastructure account.--There
is authorized to be appropriated $6,960,000, such amount to be
adjusted for changes since June 30, 2009, in construction costs
as indicated by engineering cost indices applicable to types of
construction required to design and construct the Storage Pond
and the Demineralization and Brine Disposal Project for deposit
into the Pechanga Recycled Water Infrastructure Account.
(2) Pechanga esaa delivery capacity account.--There is
authorized to be appropriated $17,900,000, such amount to be
adjusted for changes since June 30, 2009, in construction costs
as indicated by engineering cost indices applicable to types of
construction required to provide the Interim Capacity and the
Permanent Capacity for deposit into the Pechanga ESAA Delivery
Capacity Account.
(3) Pechanga water fund account.--There is authorized to be
appropriated $25,382,000 for deposit into the Pechanga Water
Fund Account for the purposes set forth in section 9(d)(3)(D).
SEC. 12. REPEAL ON FAILURE OF ENFORCEABILITY DATE.
If the Secretary does not publish a statement of findings under
section 7(f) by December 31, 2015--
(1) this Act is repealed effective January 1, 2016, and any
action taken by the Secretary and any contract or agreement
pursuant to the authority provided under any provision of this
Act shall be void;
(2) any amounts appropriated under section 11, together
with any interest on those amounts, shall immediately revert to
the general fund of the Treasury; and
(3) any amounts made available under section 11 that remain
unexpended shall immediately revert to the general fund of the
Treasury.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Natural Resources.
Referred to the Subcommittee on Water and Power.
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