Text of S. 3013 (114th): Salish and Kootenai Water Rights Settlement Act of 2016 (Introduced version)

114th CONGRESS

2d Session

S. 3013

IN THE SENATE OF THE UNITED STATES

May 26, 2016

Mr. Tester introduced the following bill; which was read twice and referred to the Committee on Indian Affairs

A BILL

To authorize and implement the water rights compact among the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation, the State of Montana, and the United States, and for other purposes.

This Act may be cited as the Salish and Kootenai Water Rights Settlement Act of 2016.

The purposes of this Act are—

(1)

to achieve a fair, equitable, and final settlement of claims to water rights in the State of Montana for—

(A)

the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation; and

(B)

the United States, for the benefit of the Tribes and allottees;

(2)

to authorize, ratify, confirm, and provide funding for the Compact, to the extent that the Compact is consistent with this Act;

(3)

to authorize and direct the Secretary of the Interior—

(A)

to execute the Compact; and

(B)

to take any other action necessary to carry out the Compact in accordance with this Act; and

(4)

to authorize funds necessary for the implementation of the Compact and this Act.

In this Act:

(1)

The term Agriculture Development Account means the Selis-Qlispe Ksanka Agriculture Development Account established under section 9(b)(1).

(2)

The term allottee means an individual who holds a beneficial real property interest in Indian land that is—

(A)

located within the Reservation; and

(B)

held in trust by the United States.

(3)

The term Commissioner means the Commissioner of Reclamation.

(4)

The term Community Development Account means the Selis-Qlispe Ksanka Community Development Account established under section 9(b)(3).

(5)

(A)

The term Compact means the water rights settlement entered into by the Tribes, the State, and the United States, as contained in part 19 of chapter 20 of title 85, Montana Code Annotated (2015).

(B)

The term Compact includes any appendix, exhibit, or amendment (including any amendment to an appendix or exhibit) to the Compact that is executed in accordance with this Act.

(6)

The term Compact Fund means the Salish and Kootenai Compact Fund established by section 10(a).

(7)

The term Compact Implementation Account means the Compact Implementation Account established under section 10(b)(1).

(8)

The term Economic Development Account means the Selis-Qlispe Ksanka Economic Development Account established under section 9(b)(2).

(9)

The term enforceability date means the date described in section 12(b).

(10)

(A)

The term Flathead Indian irrigation project means the irrigation project developed by the United States to irrigate land within the Reservation pursuant to—

(i)

the Act of April 23, 1904 (33 Stat. 302, chapter 1495); and

(ii)

the Act of May 29, 1908 (35 Stat. 444, chapter 216).

(B)

The term Flathead Indian irrigation project includes—

(i)

all land and any reservoir, easement, right-of-way, canal, ditch, lateral, and any other facility of the Flathead Indian irrigation project (whether located on or off the Reservation); and

(ii)

any headgate, pipeline, pump, building, heavy equipment, vehicle, supplies, record, copy of a record, and any other physical, tangible object (whether of real or personal property) used in the management and operation of the Flathead Indian irrigation project.

(11)

The term Flathead Indian Irrigation Project Account means the Flathead Indian Irrigation Project Account established under section 10(b)(2).

(12)

The term Hungry Horse Dam means the dam that is a part of the Hungry Horse Project.

(13)

The term Hungry Horse Project means that project authorized to be carried out by the Secretary under the Act of June 5, 1944 (58 Stat. 270, chapter 234; 43 U.S.C. 593a et seq.).

(14)

The term Hungry Horse Reservoir means the reservoir that is a part of the Hungry Horse Project.

(15)

The term Indian land means land owned by an Indian tribe or a member of an Indian tribe.

(16)

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)

The term law of administration means the Unitary Administration and Management Ordinance described in the Compact.

(18)

(A)

The term Reservation means all land within the exterior boundaries of the Indian reservation established under the Treaty between the United States and the Flathead, Kootenay, and Upper Pend d'Oreilles Indians, concluded at Hell Gate July 16, 1855 (12 Stat. 975), notwithstanding the issuance of any patent on the Reservation.

(B)

The term Reservation includes any right-of-way through the Reservation.

(19)

The term Secretary means the Secretary of the Interior.

(20)

The term State means the State of Montana.

(21)

The term tribal water right means the water right of the Tribes as set forth in the Compact.

(22)

(A)

The term Tribes means the Confederated Salish and Kootenai Tribes of the Flathead Reservation of Montana.

(B)

The term Tribes includes all officers, agencies, and departments of the Tribes.

(23)

The term Trust Fund means the Selis-Qlispe Ksanka Settlement Trust Fund established by section 9(a).

(a)

(1)

Except as modified by this Act, and to the extent that the Compact does not conflict with this Act, the Compact is authorized, ratified, and confirmed.

(2)

If an amendment to the Compact is executed in accordance with this Act to make the Compact consistent with this Act, the amendment is authorized, ratified, and confirmed.

(b)

(1)

To the extent that the Compact does not conflict with this Act, the Secretary shall execute the Compact, and all exhibits and appendices to, or parts of, the Compact requiring the signature of the Secretary.

(2)

Nothing in this Act precludes the Secretary from approving any modification to an appendix or exhibit to the Compact that is consistent with this Act, to the extent that the modification does not otherwise require congressional approval under section 2116 of the Revised Statutes (25 U.S.C. 177) or any other applicable Federal law.

(c)

(1)

In implementing the Compact and this Act, the Secretary shall comply with each applicable provision of—

(A)

the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.);

(B)

the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); and

(C)

any other applicable environmental law.

(2)

(A)

The execution of the Compact by the Secretary under this section shall not constitute a major Federal action for purposes of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(B)

The Secretary shall carry out any Federal compliance activity necessary to implement the Compact and this Act.

(a)

It is the intent of Congress to provide to each allottee benefits that are equal to, or greater than, the benefits the allottee possesses on the day before 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 Act;

(2)

the availability of funding under this Act and from other sources;

(3)

the availability of water from the tribal water right; 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 the allottees.

(b)

(1)

The tribal water right is ratified, confirmed, and declared to be valid.

(2)

Any use of the tribal water right shall be subject to the terms and conditions of the Compact and this Act.

(3)

In the event of a conflict between the Compact and this Act, this Act shall control.

(c)

The tribal water right—

(1)

shall be held in trust by the United States for the use and benefit of the Tribes and allottees in accordance with this Act; and

(2)

shall not be subject to loss through nonuse, forfeiture or abandonment, or other operation of law.

(d)

(1)

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)

Any entitlement to water of an allottee under Federal law shall be satisfied from the tribal water right.

(3)

Each allottee shall be entitled to a just and equitable allocation of irrigation water for irrigation purposes.

(4)

(A)

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 law of administration.

(B)

After the exhaustion of all remedies available under the law of administration, an allottee may seek relief under section 7 of the Act of February 8, 1887 (25 U.S.C. 381), or any other applicable law.

(5)

The Secretary shall have the authority to protect the rights of allottees described in this section.

(e)

(1)

The Tribes shall have the authority to allocate, distribute, and lease the tribal water right for any use on the Reservation in accordance with the Compact, the law of administration, this Act, and applicable Federal law.

(2)

The Tribes may allocate, distribute, and lease the tribal water right for off-Reservation use in accordance with the Compact, subject to the approval of the Secretary.

(f)

(1)

During the period beginning on the date of enactment of this Act and ending on the date on which the law of administration becomes effective on the Reservation, the Secretary shall administer, with respect to the rights of the allottees, the tribal water right in accordance with this Act.

(2)

The Secretary shall approve—

(A)

the law of administration not later than 180 days after the date of ratification of the law of administration by the Tribes and the State; and

(B)

each amendment to the law of administration affecting a right of an allottee, to the extent it is consistent with this Act, not later than 180 days after the date of ratification of the amendment by the Tribes and the State.

(3)

Any deadline described in paragraph (2) may be extended by the Secretary, subject to the approval of the Tribes.

(g)

(1)

The Tribes shall not permanently alienate any portion of the tribal water right.

(2)

The authorization provided by this Act for the allocation, distribution, leasing, or other arrangement entered into pursuant to this Act shall be considered to satisfy any requirement for authorization of the action by treaty or convention under section 2116 of the Revised Statutes (25 U.S.C. 177).

(3)

The nonuse of all or any portion of the tribal water right by a lessee or contractor shall not result in the forfeiture, abandonment, relinquishment, or other loss of all or any portion of the tribal water right.

(a)

Subject to subsection (b)(4), the Secretary shall allocate to the Tribes 90,000 acre-feet per year, as measured at the Hungry Horse Dam, of storage water in Hungry Horse Reservoir for use by the Tribes for any beneficial purpose on or off the Reservation.

(b)

(1)

The allocation under subsection (a) shall be considered to be part of the tribal water right.

(2)

The priority date of the allocation to the Tribes under subsection (a) shall be July 16, 1855.

(3)

The Tribes shall administer the water allocated under subsection (a) in accordance with the Compact and this Act.

(4)

(A)

The allocation under subsection (a) shall be limited in accordance with the report of the State entitled Biological Impact Evaluation and Operational Constraints for a Proposed 90,000 Acre-Foot Withdrawal, dated September 14, 2011, and attached to the Compact as Appendix 8.

(B)

(i)

The United States, the Tribes, and the State, on mutual written agreement and in accordance with any applicable law (including the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)), may amend the Biological Impact Evaluation Constraints identified in the report described in subparagraph (A).

(ii)

Any amendment under clause (i) shall be considered an amendment pursuant to, and not an amendment of, this Act or the Compact.

(c)

(1)

As a condition of receiving the allocation under subsection (a), the Tribes shall enter into an agreement with the Secretary to establish the terms and conditions of the allocation, in accordance with the Compact and this Act.

(2)

The agreement under paragraph (1) shall include provisions establishing that—

(A)

the agreement shall be without a limit as to a term;

(B)

the Tribes, and not the United States, shall be entitled to all consideration due to the Tribes under any lease, contract, or agreement entered into by the Tribes pursuant to subsection (d);

(C)

the United States shall have no obligation to monitor, administer, or account for—

(i)

any funds received by the Tribes as consideration under any lease, contract, or agreement entered into by the Tribes pursuant to subsection (d); or

(ii)

the expenditure of those funds;

(D)

if the capacity or function of any facility of Hungry Horse Reservoir or Hungry Horse Dam is significantly reduced, or is anticipated to be significantly reduced, for an extended period of time, the Tribes shall have the same storage rights as other storage contractors with respect to the allocation under subsection (a);

(E)

the costs associated with the construction and operation of the storage facilities at Hungry Horse Reservoir and Hungry Horse Dam allocable to the Tribes shall be nonreimbursable;

(F)

no water service capital charge shall be due or payable for any water allocated under subsection (a) or the allocation agreement, regardless of whether that water is delivered for use by the Tribes or under a lease, contract, or by an agreement entered into by the Tribes pursuant to subsection (d); and

(G)

the Tribes shall not be required to make payments to the United States for any water allocated under subsection (a) or the agreement.

(d)

The Tribes may use, lease, contract, exchange, or enter into one or more other agreements for use of the water allocated under subsection (a) if—

(1)

the water that is the subject of the agreement is used within the Flathead Basin or Clark Fork Basin within the State; and

(2)

the agreement does not permanently alienate any portion of the water allocated under subsection (a).

(e)

The Tribes shall, in accordance with the Compact, make available not more than 11,000 acre-feet per year of the water allocated under subsection (a) to the State for mitigation of future and existing growth outside the boundaries of the Reservation.

(f)

The allocation under subsection (a) shall not be increased by any year-to-year carryover storage.

(g)

The United States shall not be required to pay the cost of developing or delivering any water allocated under subsection (a).

(h)

Except as provided in Article III.C.1.c of the Compact, the Tribes shall not develop any new use for the allocation under subsection (a) until the date on which the agreement entered into under subsection (c) takes effect.

(i)

With respect to any water right arising under the law of the State in the Hungry Horse Reservoir owned or acquired by the Tribes, the Tribes—

(1)

may continue any use in existence on the date of enactment of this Act; and

(2)

shall not change any use until the date on which the agreement is entered into under subsection (c).

(j)

The allocation under subsection (a) takes effect on the enforceability date.

(a)

The Commissioner shall have exclusive jurisdiction to authorize the development of any hydroelectric power generation project within the Reservation.

(b)

Notwithstanding any other provision of law, the Tribes shall have the exclusive right to develop and market any hydroelectric power generation project on bodies of water within the Reservation.

(c)

The Commissioner shall cooperate with the Tribes in the development of any hydroelectric power generation project under this section.

(d)

Before construction of a hydroelectric power generation project under this section, the Tribes shall enter into an agreement with the Commissioner that includes provisions—

(1)

requiring that—

(A)

the design, construction, and operation of the hydroelectric power generation project shall be consistent with the Bureau of Reclamation guidelines and methods for hydroelectric power development at Bureau of Reclamation facilities, as appropriate; and

(B)

the hydroelectric power generation project will not impair the efficiencies of any Bureau of Indian Affairs or Bureau of Reclamation project for authorized purposes;

(2)

regarding construction and operating criteria and emergency procedures; and

(3)

under which any modification proposed by the Tribes to a facility owned by the Bureau of Indian Affairs or the Bureau of Reclamation shall be subject to review and approval by the Secretary, acting through the Commissioner, in coordination with the Director of the Bureau of Indian Affairs if applicable.

(e)

Any hydroelectric power generated in accordance with this section shall be used or marketed by the Tribes.

(f)

The Tribes shall collect and retain any revenue from the sale of hydroelectric power generated by a hydroelectric power generation project under this section.

(g)

The United States shall have no obligation to monitor, administer, or account for—

(1)

any revenue received by the Tribes under this section; or

(2)

the expenditure of that revenue.

(a)

Subject to the availability of appropriations, the Secretary, acting through the Commissioner, shall, in accordance with subsection (b), carry out the following activities relating to the Flathead Indian irrigation project:

(1)

(A)

Rehabilitation of structures, canals, and pumping facilities, including dam safety improvements, irrigation facility upgrades that improve water management and operational control at irrigation diversion works, and irrigation facility upgrades to reduce losses in conveyance of water from irrigation sources of supply to irrigation points of use.

(B)

Rehabilitation activities under subparagraph (A) include reconstruction, replacement, and automation at irrigation diversion works, lining of open canals, and placement of open canals in pipe.

(2)

Modernization, including the planning, design, and construction of additional pumping facilities and operational improvements to infrastructure within the distribution network of the Flathead Indian irrigation project.

(3)

Mitigation, reclamation, and restoration of streams, wetlands, banks, slopes, and wasteways within, appurtenant to, or affected by the Flathead Indian irrigation project.

(4)

Acquisition, in accordance with subsection (e), of easements or other interests in real property necessary to carry out any activity under this section.

(5)

The Bureau of Reclamation shall serve as the lead agency with respect to any activity carried out under this section.

(b)

(1)

(A)

Subject to the conditions described in subparagraph (B), the scope of a rehabilitation activity under subsection (a)(1) shall be as generally described in—

(i)

the document entitled Engineering Evaluation and Condition Assessment: Flathead Indian Irrigation Project, prepared by HKM Engineering for the Bureau of Indian Affairs, Division of Irrigation, Power, and Safety of Dams, and dated March 2008; and

(ii)

the document entitled Update Engineering Evaluation of Existing Conditions: Flathead Agency Irrigation Division (FAID), prepared by HKM Engineering for the Confederated Salish and Kootenai Tribes, and dated July 2005.

(B)

The conditions referred to in subparagraph (A) are that, before carrying out the activity, the Secretary shall—

(i)

review the design of the proposed activity;

(ii)

perform value engineering analyses relating to the proposed activity; and

(iii)

perform appropriate Federal environmental compliance activities relating to the proposed activity.

(2)

(A)

Subject to the conditions described in subparagraph (B), the scope of a modernization activity under subsection (a)(2) shall be as generally described in—

(i)

the document entitled Flathead Indian Irrigation Project Modernization Plan and prepared for the Bureau of Indian Affairs Division of Water; and

(ii)

the document entitled Power by Irrigation Technology Research Center at the Department of Agricultural Engineering at California Polytechnic State University.

(B)

The conditions referred to in subparagraph (A) are that, before carrying out the activity, the Secretary shall—

(i)

review the design of the proposed activity;

(ii)

perform value engineering analyses relating to the proposed activity; and

(iii)

perform appropriate Federal environmental compliance activities relating to the proposed activity.

(3)

(A)

Subject to the conditions described in subparagraph (B), the scope of a mitigation, reclamation, and restoration activity under subsection (a)(3) shall be as generally described in the document entitled Final Biological Assessment for Operation and Maintenance of the Flathead Indian Irrigation Project, Including Transfer, prepared by the United States Department of the Interior, Bureau of Indian Affairs, and dated January 2008.

(B)

The conditions referred to in subparagraph (A) are that, before carrying out the activity, the Secretary shall—

(i)

plan and design the activity;

(ii)

perform value engineering analyses relating to the activity; and

(iii)

perform appropriate Federal environmental compliance activities relating to the activity.

(4)

After reviewing the design of a proposed activity under paragraphs (1)(B)(i), (2)(B)(i), and (3)(B)(i) and before carrying out the activity, the Secretary shall negotiate with the Tribes appropriate changes to the final design of the activity to ensure that the final design complies with applicable—

(A)

industry standards; and

(B)

tribal natural resources management plans.

(c)

(1)

The total amount of obligations incurred by the Secretary in carrying out this section shall not exceed $1,519,408,000, of which—

(A)

$471,071,000 shall be allocated to carry out the activities under subsection (a)(1);

(B)

$377,901,000 shall be allocated to carry out the activities under subsection (a)(2); and

(C)

$670,436,000 shall be allocated to carry out the activities under subsection (a)(3).

(2)

All costs incurred by the Secretary in carrying out this section shall be nonreimbursable.

(3)

No part of an activity under paragraph (1) or (2) of subsection (a) shall be commenced until the State has made available $55,000,000 to carry out those activities.

(4)

(A)

Subject to subparagraph (B), the Commissioner and the Tribes shall negotiate the cost of any oversight activity carried out by the Bureau of Reclamation under any agreement entered into under subsection (g).

(B)

The total cost described in subparagraph (A) shall not exceed 3 percent of the total project costs for each project.

(5)

If the total cost of planning, design, and construction activities of the Flathead Indian irrigation project described in subsection (a) results in cost savings and is less than the amounts authorized to be obligated, the Secretary, on request of the Tribes, may transfer an amount equal to those cost savings to one or more accounts established under section 10(b).

(d)

The Secretary, acting through the Director of the Bureau of Indian Affairs, shall enter into an agreement with the Tribes for the operation and maintenance of the Flathead Indian irrigation project in accordance with applicable law, including section 7 of the Act of February 8, 1887 (24 Stat. 390, chapter 119; 25 U.S.C. 381).

(e)

(1)

(A)

On request of the Secretary, as a condition of receiving benefits under this section, the Tribes shall grant, at no cost to the United States, such easements and rights-of-way over the land of the Tribes as are necessary for construction relating to activities under subsection (a).

(B)

An easement or right-of-way granted by the Tribes under subparagraph (A) shall not affect in any respect the civil or criminal jurisdiction of the Tribes over the easement or right-of-way.

(2)

In partial consideration for construction relating to activities under subsection (a) and as a condition of receiving service from the Flathead Indian irrigation project or the Mission Valley Power Project, a landowner shall grant, at no cost to the United States or the Tribes, such easements and rights-of-way over the land of the landowner as are necessary for the construction, rehabilitation, operation, and maintenance of the Flathead Indian irrigation project or the Mission Valley Power Project.

(f)

Any land acquired within the Reservation by the United States or the Tribes relating to construction relating to activities under subsection (a) shall be held in trust by the United States for the benefit of the Tribes.

(g)

On request of the Tribes, the Secretary shall enter into one or more agreements with the Tribes in accordance with the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) to carry out this section.

(h)

Nothing in this section—

(1)

alters any applicable law under which the Bureau of Indian Affairs collects assessments or carries out the operation and maintenance of the Flathead Indian irrigation project; or

(2)

affects the availability of amounts made available under section 9(m) or 10(f).

(a)

(1)

There is established in the Treasury of the United States a fund to be known as the Selis-Qlispe Ksanka Settlement Trust Fund to be managed, invested, and distributed by the Secretary and to remain available until expended, for the purpose of carrying out this Act.

(2)

The Trust Fund shall consist of the amounts deposited in the Trust Fund under subsection (c), together with any interest earned on those amounts.

(b)

The Secretary shall establish in the Trust Fund the following accounts:

(1)

The Selis-Qlispe Ksanka Agriculture Development Account.

(2)

The Selis-Qlispe Ksanka Economic Development Account.

(3)

The Selis-Qlispe Ksanka Community Development Account.

(c)

The Secretary shall deposit in the Trust Fund—

(1)

in the Agriculture Development Account, the amount made available pursuant to subsection (m)(1)(A);

(2)

in the Economic Development Account, the amount made available pursuant to subsection (m)(1)(B); and

(3)

in the Community Development Account, the amount made available pursuant to subsection (m)(1)(C).

(d)

The Secretary shall manage, invest, and distribute all amounts in the Trust Fund in a manner that is consistent with the investment authority of the Secretary under—

(1)

the Act of April 1, 1880 (21 Stat. 70, chapter 41; 25 U.S.C. 161);

(2)

the first section of the Act of June 24, 1938 (52 Stat. 1037, chapter 648; 25 U.S.C. 162a);

(3)

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—

(A)

obligations of the United States Postal Service described in section 2005 of title 39, United States Code;

(B)

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);

(C)

mortgages, obligations, or 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

(D)

bonds, notes, or debentures of the Commodity Credit Corporation described in section 4 of the Act of March 8, 1938 (15 U.S.C. 713a–4);

(4)

the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.); and

(5)

this section.

(e)

The interest on, and the proceeds from, the sale or redemption of any obligations held in an account under the Trust Fund shall be credited to, and form a part of, that account.

(f)

Amounts appropriated to, and deposited in, the Trust Fund, including any investment earnings, shall be made available to the Tribes by the Secretary beginning on the enforceability date.

(g)

(1)

The Tribes may withdraw any portion of the funds in the Trust Fund on approval by the Secretary of a tribal management plan submitted by the Tribes in accordance with the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.).

(2)

(A)

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 under paragraph (1) shall require that the Tribes spend all amounts withdrawn from the Trust Fund in accordance with this Act.

(B)

The Secretary may carry out such judicial and administrative actions as the Secretary determines to be necessary to enforce the tribal management plan to ensure that amounts withdrawn by the Tribes from the Trust Fund under this subsection are used in accordance with this Act.

(h)

(1)

The Tribes may submit to the Secretary a request to withdraw funds from the Trust Fund in accordance with an expenditure plan approved under paragraph (4).

(2)

To be eligible to withdraw funds under an expenditure plan under paragraph (1), the Tribes shall submit to the Secretary for approval an expenditure plan for any portion of the Trust Fund that the Tribes elect to withdraw pursuant to this subsection, subject to the condition that the funds shall be used for the purposes described in this Act.

(3)

An expenditure plan under this subsection shall include a description of the manner and purpose for which the amounts proposed to be withdrawn from the Trust Fund will be used by the Tribes, in accordance with this subsection.

(4)

(A)

On receipt of an expenditure plan under this subsection, the Secretary shall approve the plan not later than 90 days after the date of receipt, if the Secretary determines that the plan is—

(i)

reasonable; and

(ii)

consistent with, and will be used for, the purposes of this Act.

(B)

If the Secretary does not approve or disapprove an expenditure plan under subparagraph (A) not later than 90 days after the date of receipt, the expenditure plan shall be considered to have been approved by the Secretary.

(5)

The Secretary may carry out such judicial and administrative actions as the Secretary determines to be necessary to enforce an expenditure plan to ensure that amounts disbursed under this subsection are used in accordance with this Act.

(i)

Amounts from the Trust Fund shall be used by the Tribes for the following purposes:

(1)

The Agriculture Development Account shall be used—

(A)

to implement the tribal water right through rehabilitation and improvement of agricultural Indian land within the Reservation;

(B)

to construct and rehabilitate livestock fencing on Indian land within the Reservation;

(C)

to mitigate and control noxious weeds on Indian land within the Reservation;

(D)

to plan, design, and construct improvements to irrigation systems on Indian land served by the Flathead Indian irrigation project;

(E)

to plan, design, and construct irrigation facilities on Indian land within the Reservation that is not served by the Flathead Indian irrigation project; and

(F)

to install screens, barriers, passages, or ladders to prevent fish entrainment in irrigation ditches and canals within the Reservation.

(2)

The Economic Development Account shall be used—

(A)

to implement the tribal water right;

(B)

to plan, design, construct, operate, maintain, and replace community water distribution and wastewater treatment facilities on the Reservation; and

(C)

to develop geothermal water resources on Indian land within the Reservation.

(3)

(A)

The Community Development Account shall be used to develop and establish community services, including education services and centers for native language and cultural education for children and adults on or near the Reservation.

(B)

The Community Development Account shall be distributed as follows:

(i)

Subject to clause (ii), all interest earned on the account shall be distributed to the Tribes annually.

(ii)

If the Tribes withdraw all or a portion of the principal under subsection (g) or (h)—

(I)

clause (i) shall not apply; and

(II)

the Secretary shall distribute the interest earned on the account for that year as the Secretary determines appropriate.

(j)

The Secretary and the Secretary of the Treasury shall not be liable for the expenditure or investment of any amounts withdrawn from the Trust Fund by the Tribes under subsection (g) or (h).

(k)

No portion of the Fund shall be distributed on a per capita basis to any member of the Tribes.

(l)

On request by the Tribes, the Secretary may transfer amounts from an account described in paragraph (1), (2), or (3) of subsection (b) to any other account the Secretary determines to be appropriate.

(m)

(1)

Subject to paragraph (2), there are authorized to be appropriated to the Secretary, as adjusted on appropriation to reflect changes in the Consumer Price Index for All Urban Consumers West Urban 50,000 to 1,500,000 index dated April 2010 for the amount appropriated—

(A)

for deposit in the Agriculture Development Account, $365,207,225;

(B)

for deposit in the Economic Development Account, $93,633,566; and

(C)

for deposit in the Community Development Account, $233,361,200.

(2)

(A)

The adjustment of the amounts authorized to be appropriated pursuant to paragraph (1) shall occur each time an amount is appropriated for an account and shall add to, or subtract from, as applicable, the total amount authorized.

(B)

The adjustment process under this subsection shall be repeated for each subsequent amount appropriated until the amount authorized, as adjusted, has been appropriated.

(C)

The amount of an adjustment may be considered—

(i)

to be authorized as of the date on which congressional action occurs; and

(ii)

in determining the amount authorized to be appropriated.

10.

(a)

There is established in the Treasury of the United States a nontrust, interest bearing account, to be known as the Salish and Kootenai Compact Fund to be managed and distributed by the Secretary, for use by the Secretary to carry out this Act.

(b)

The Secretary shall establish in the Compact Fund the following accounts:

(1)

The Compact Implementation Account.

(2)

The Flathead Indian Irrigation Project Account.

(c)

The Secretary shall deposit in the Compact Fund—

(1)

in the Compact Implementation Account, the amount made available pursuant to subsection (f)(1)(A); and

(2)

in the Flathead Indian Irrigation Project Account, the amount made available pursuant to subsection (f)(1)(B).

(d)

Amounts from the Compact Fund shall be used by the Tribes for the following purposes:

(1)

The Compact Implementation Account shall be used in accordance with subsection (e)(2) and for administration, implementation, and management of the tribal water right and the regulation and administration of water rights within the Reservation under this Act, the Compact, and the law of administration.

(2)

The Flathead Indian Irrigation Project Account shall be used to carry out section 8.

(e)

(1)

Except as provided in paragraph (2), amounts in the Compact Implementation Account shall be available to the Secretary for expenditure beginning on the enforceability date.

(2)

Notwithstanding paragraph (1), subject to the availability of appropriations, as soon as practicable after the date on which the Tribes ratify the Compact, the Secretary shall make available from the Compact Implementation Account to the Tribes to carry out this Act $7,194,496.

(f)

(1)

Subject to paragraph (2), there are authorized to be appropriated to the Secretary, as adjusted on appropriation to reflect changes in the Bureau of Reclamation Construction Cost Trends Index dated April 2010 for the amount appropriated—

(A)

for deposit in the Compact Implementation Account, $116,209,294; and

(B)

for deposit in the Flathead Indian Irrigation Project Account, $1,519,408,000.

(2)

(A)

(B)

The adjustment process under this subsection shall be repeated for each subsequent amount appropriated until the amount authorized, as adjusted, has been appropriated.

(C)

The amount of an adjustment may be considered—

(i)

to be authorized as of the date on which congressional action occurs; and

(ii)

in determining the amount authorized to be appropriated.

11.

(a)

The instream flow water rights of the Tribes in or adjacent to the land described subsection (b), as described in the Compact, are confirmed.

(b)

The land referred to in subsection (a) is—

(1)

Bitterroot National Forest;

(2)

Flathead National Forest;

(3)

Kootenai National Forest;

(4)

Lolo National Forest; and

(5)

the National Bison Range Complex and affiliated Waterfowl Production Areas.

12.

(a)

(1)

Subject to the retention of water rights described in subsection (c), as consideration for recognition of the tribal water right and other benefits under the Compact and this Act, the Tribes, on behalf of the Tribes and members of the Tribes (except any member of the Tribes in the capacity of the member as an allottee), and the United States, acting as trustee for the Tribes and the members of the Tribes (except any member of the Tribes in the capacity of the member as an allottee), shall execute a waiver and release of all claims for water rights within the State that the Tribes, or the United States acting as trustee for the Tribes, asserted or could have asserted in any proceeding, including a State stream adjudication, on or before the enforceability date, except to the extent that those rights are recognized in the Compact and this Act.

(2)

Subject to the retention of water rights described in subsection (c), as consideration for recognition of the tribal water right and other benefits under the Compact and this Act, the United States, acting as trustee for allottees, may execute a waiver and release of all claims for water rights within the Reservation that the United States, acting as trustee for the allottees, asserted or could have asserted in any proceeding, including a State stream adjudication, on or before the enforceability date, except to the extent that those rights are recognized in the Compact and this Act.

(3)

Subject to the retention of water rights described in subsection (c), the Tribes, on behalf of the Tribes and members of the Tribes (except any member of the Tribes in the capacity of the member as an allottee), shall execute a waiver and release of all claims against the United States (including any agency or employee of the United States)—

(A)

relating to—

(i)

claims for water rights within the State that the United States, acting as trustee for the Tribes, asserted or could have asserted in any proceeding, including a stream adjudication in the State, except to the extent that those rights are recognized as part of the tribal water right under this Act;

(ii)

damage, loss, or injury 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 that first accrued on or before the enforceability date;

(iii)

failure to establish or provide a municipal, rural, or industrial water delivery system on the Reservation;

(iv)

failure to provide—

(I)

for operation or maintenance, or deferred maintenance, for the Flathead Indian irrigation project or any other irrigation system or irrigation project; or

(II)

dam safety improvements to dams within the Reservation;

(v)

the litigation of claims relating to the water rights of the Tribes in the State; or

(vi)

the negotiation, execution, or adoption of the Compact or this Act;

(B)

reserved in subsections (b) through (d) of section 6 of the settlement for the case styled Nez Perce Tribe v. Salazar, No. 06cv2239TFH (D.D.C. 2012); and

(C)

that first accrued on or before the enforceability date arising from the taking or acquisition of the land of the Tribes or resources for the construction of the features of the Flathead Indian irrigation project.

(b)

The waivers under subsection (a) shall take effect on the date on which the Secretary publishes in the Federal Register a statement of findings that—

(1)

(A)

the Montana Water Court has issued a final judgment and decree approving the Compact; or

(B)

if the Montana Water Court is found to lack jurisdiction, the United States district court has approved the Compact as a consent decree and the approval is final;

(2)

all amounts authorized to be appropriated under sections 9(m) and 10(f) have been appropriated;

(3)

the Secretary has fulfilled the requirements of section 5(f)(2);

(4)

the State has appropriated and paid into an interest-bearing escrow account any payments due as of the date of enactment of this Act to the Tribes under the Compact and this Act;

(5)

the Tribes have ratified the Compact;

(6)

the Secretary has fulfilled the requirements of section 6(a); and

(7)

the waivers and releases described in subsection (a) have been executed by the Tribes and the Secretary.

(c)

Notwithstanding subsection (a), the Tribes, on behalf of the Tribes and members of the Tribes, and the United States, acting as trustee for the Tribes and allottees, retain—

(1)

all claims relating to—

(A)

enforcement of, or claims accruing after the enforceability date relating to water rights recognized under, the Compact, any final decree, or this Act; and

(B)

activities affecting the quality of water, including any claims the Tribes may have under—

(i)

the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), including damages to natural resources;

(ii)

the Safe Drinking Water Act (42 U.S.C. 300f et seq.);

(iii)

the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) (commonly referred to as the Clean Water Act); and

(iv)

any regulations implementing the Acts described in clauses (i) through (iii);

(2)

all claims relating to damage caused by structures, dams, or facilities, as a result of preexisting conditions, while performing any activity under section 8;

(3)

all rights to use and protect water rights acquired after the date of enactment of this Act;

(4)

all claims relating to damage, loss, or injury to land or natural resources that are not due to loss of water or water rights (including hunting, fishing, gathering, or cultural rights);

(5)

all claims to title to land, including title to land as a result of the movement of water bodies;

(6)

all claims relating to failure to make productive use of any land created by the movement of water bodies to which the Tribes has claimed title; and

(7)

all rights, remedies, privileges, immunities, and powers not specifically waived and released under this Act or the Compact.

(d)

Nothing in the Compact or this Act—

(1)

affects the ability of the United States, acting as a 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.);

(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.) (commonly referred to as the Clean Water Act); and

(D)

any regulations implementing the Acts described in subparagraphs (A) through (C);

(2)

affects the ability of the United States to act 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 laws described in paragraph (1);

(B)

to determine the duties of the United States or other parties under Federal laws described in paragraph (1); or

(C)

to conduct judicial review of Federal agency action;

(4)

waives any claim of a member of the Tribes in an individual capacity that does not derive from a right of the Tribes;

(5)

revives any claim waived by the Tribes in the case styled Nez Perce Tribe v. Salazar, No. 06cv2239TFH (D.D.C. 2012); or

(6)

revives any claim released by an allottee or a member of the Tribes in the settlement for the case styled Cobell v. Salazar, No. 1:96CV01285–JR (D.D.C. 2012).

(e)

(1)

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 the amounts made available to carry out this Act are transferred to the Secretary.

(2)

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.

(f)

If all appropriations authorized under this Act have not been made available to the Secretary by January 21, 2031—

(1)

the waivers under subsection (a) shall have no force or effect;

(2)

the authorization, ratification, and confirmation of the Compact under section 4(a) shall have no force or effect;

(3)

the Tribes shall return to the United States, unless otherwise agreed to by the Tribes and the United States and approved by Congress—

(A)

any unexpended Federal funds made available to carry out this Act, together with any interest earned on those funds;

(B)

any water rights or contracts to use water under this Act; and

(C)

title to other property acquired or constructed with Federal funds made available to carry out this Act; and

(4)

the United States may offset any Federal funds made available to carry out this Act that were expended or withdrawn (except for Federal funds used to acquire or construct property that is returned to the United States under paragraph (2)), together with any interest earned on those funds, against any claims against the United States—

(A)

relating to water rights in the State asserted by the Tribes or any users of the tribal water right; or

(B)

in any future settlement of the water rights of the Tribes or allottees.

13.

(a)

The benefits realized by the Tribes under this Act shall be in full satisfaction of all claims of the Tribes against the United States that are waived and released in accordance with section 12.

(b)

The benefits realized by the allottees under this Act shall be in full satisfaction of—

(1)

all claims that are waived and released pursuant to section 12(a)(2); and

(2)

any claims of the allottees against the United States that the allottees have or could have asserted that are similar in nature to any claim described in section 12(a)(2).

14.

(a)

(1)

Section 9 of the Act of April 23, 1904 (33 Stat. 304, chapter 1495; 35 Stat. 450, chapter 216), is amended in the seventh paragraph by striking When the payments and all that follows through acceptable to the Secretary of the Interior and inserting the following: The irrigation and power diversions of the Flathead Indian irrigation project (as defined in section 3 of the Salish and Kootenai Water Rights Settlement Act of 2016) shall be held in trust for the benefit of the Confederated Salish and Kootenai Tribes.

(2)

Section 2 of the Act of May 25, 1948 (62 Stat. 269, chapter 340), is amended—

(A)

by striking paragraph (6) of subsection (h) and inserting the following:

(6)

To enhance fisheries habitat or to improve water conservation management of the project.

; and

(B)

by adding at the end the following:

(k)

(1)

The Secretary of the Interior (referred to in this section as the Secretary), or the Tribes (as defined in section 3 of the Salish and Kootenai Water Rights Settlement Act of 2016) acting on behalf of the Secretary, as the entity with the legal authority and responsibility to operate the Mission Valley division of the project (referred to in this subsection as the project operator), may allocate revenues derived from the Mission Valley division in accordance with paragraph (2) for the purposes described in subsection (h)(6).

(2)

(A)

Subject to subparagraphs (B) and (C), the revenues described in paragraph (1) shall be allocated by providing $100,000 to the Tribes and $100,000 to the project operator.

(B)

After the period of 10 fiscal years following the date of enactment of the Salish and Kootenai Water Rights Settlement Act of 2016, the Tribes, the State of Montana, and the Secretary may negotiate for an appropriate allocation that differs from the allocation described in subparagraph (A).

(C)

If the project operator does not use the full allocation of the project operator under this paragraph for a fiscal year, an amount equal to the difference between that full allocation and the amount used by the project operator shall be set aside and accumulated for expenditure in subsequent fiscal years for the purposes described in subsection (h)(6).

(3)

Section 403(b)(4) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 458cc(b)(4)) is amended—

(A)

in subparagraph (A), by adding at the end the following: and;

(B)

in subparagraph (B), by striking and at the end; and

(C)

by striking subparagraph (C).

(b)

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.

(c)

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 other than the Tribes.

(d)

With respect to Indian land located within the Reservation—

(1)

the United States shall not submit against the Indian land any claim for reimbursement of the cost to the United States of carrying out this Act or the Compact; and

(2)

no assessment of the Indian land shall be made regarding that cost.

(e)

(1)

The United States shall have no obligation—

(A)

to monitor, administer, or account for, in any manner, any funds provided to the Tribes by the State; or

(B)

to review or approve any expenditure of those funds.

(2)

The Tribes 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 to carry out this Act.

(f)

The United States shall not be liable for any failure to carry out any obligation or activity under this Act (including any obligation or activity under the Compact) if insufficient amounts are made available to carry out this Act—

(1)

by Congress expressly to carry out this Act; or

(2)

in the Reclamation Water Settlements Fund established by section 10501(a) of the Omnibus Public Land Management Act of 2009 (43 U.S.C. 407(a)).

(g)

If insufficient amounts are made available to carry out this Act for a fiscal year, the Secretary may use to carry out this Act such amounts as are necessary from other amounts available to the Secretary for that fiscal year that are not otherwise obligated.

(h)

The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to any activity or function carried out by the Secretary under this Act.

15.

If the Secretary fails to publish in the Federal Register a statement of findings under section 12(b) by January 21, 2031—

(1)

this Act is repealed effective January 22, 2031;

(2)

any action taken by the Secretary under this Act and any contract or agreement entered into pursuant to this Act shall be void;

(3)

any amounts made available under section 9(m) that remain unexpended shall revert immediately to the general fund of the Treasury;

(4)

any amounts made available under section 10(f), together with any interest on those amounts, shall immediately revert to the general fund of the Treasury; and

(5)

the United States shall be entitled to offset against any claims asserted by the Tribes against the United States relating to water rights—

(A)

any amounts expended or withdrawn from the amounts made available to carry out this Act; and

(B)

any amounts made available to carry out this Act from other authorized sources.

16.

(a)

Nothing in this Act 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.

(b)

The activities carried out by the Commissioner under this Act shall not establish a precedent or impact the authority provided under any other provision of the reclamation laws, including—

(1)

the Reclamation Rural Water Supply Act of 2006 (43 U.S.C. 2401 et seq.); and

(2)

the Omnibus Public Land Management Act of 2009 (Public Law 111–11; 123 Stat. 991).

(c)

Nothing in this Act or the Compact—

(1)

makes an allocation or apportionment of water between or among States; or

(2)

addresses or implies whether, how, or to what extent the tribal water right, or any portion of the tribal water right, should be accounted for as part of, or otherwise charged against, an allocation or apportionment of water made to a State in an interstate allocation or apportionment.

(d)

Except as otherwise expressly provided in this Act, nothing in this Act—

(1)

authorizes any action by an allottee against any individual or entity, or against the Tribes, under Federal, State, tribal, or local law; or

(2)

alters or affects the status of any action brought pursuant to section 1491(a) of title 28, United States Code.

S. 3013 (114^th): Salish and Kootenai Water Rights Settlement Act of 2016

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