Snake River Water Rights Act of 2004
Excerpted from Public Law 108-447
TITLE X--SNAKE RIVER WATER RIGHTS ACT OF 2004
SECTION 1. SHORT TITLE.
This title may be cited as the "Snake River Water Rights Act of
2004".
SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to resolve some of the largest outstanding issues with
respect to the Snake River Basin Adjudication in Idaho in such a
manner as to provide important benefits to the United States,
the State of Idaho, the Nez Perce Tribe, the allottees, and
citizens of the State;
(2) to achieve a fair, equitable, and final settlement of
all claims of the Nez Perce Tribe, its members, and allottees
and the United States on behalf of the Tribe, its members, and
allottees to the water of the Snake River Basin within Idaho;
(3) to authorize, ratify, and confirm the Agreement among
the parties submitted to the Snake River Basin Adjudication
Court and provide all parties with the benefits of the
Agreement;
(4) to direct--
(A) the Secretary, acting through the Bureau of
Reclamation, the Bureau of Land Management, the Bureau
of Indian Affairs, and other agencies; and
(B) the heads of other Federal agencies authorized
to execute and perform actions necessary to carry out
the Agreement;
to perform all of their obligations under the Agreement and
this Act; and
(5) to authorize the actions and appropriations necessary
for the United States to meet the obligations of the United
States under the Agreement and this Act.
SEC. 3. DEFINITIONS.
In this Act:
(1) Agreement.--The term "Agreement" means the document
titled "Mediator's Term Sheet" dated April 20, 2004, and
submitted on that date to the SRBA Court in SRBA Consolidated
Subcase 03-10022 and SRBA Consolidated Subcase 67-13701, with
all appendices to the document.
(2) Allottee.--The term "allottee" means a person that
holds a beneficial real property interest in an Indian allotment
that is--
(A) located within the Nez Perce Reservation; and
(B) held in trust by the United States.
(3) Consumptive use reserved water right.--The term
"consumptive use reserved water right" means the Federal
reserved water right of 50,000 acre-feet per year, as described
in the Agreement, to be decreed to the United States in trust
for the Tribe and the allottees, with a priority date of 1855.
(4) Parties.--The term "parties" means the United States,
the State, the Tribe, and any other entity or person that
submitted, or joined in the submission of, the Agreement to the
SRBA Court on April 20, 2004.
(5) Secretary.--The term "Secretary" means the Secretary
of the Interior.
(6) Snake river basin.--The term "Snake River Basin" means
the geographic area in the State described in paragraph 3 of the
Commencement Order issued by the SRBA Court on November 19,
1987.
(7) Springs or fountains water right.--The term "springs or
fountains water right" means the Tribe's treaty right of access
to and use of water from springs or fountains on Federal public
land within the area ceded by the Tribe in the Treaty of June 9,
1863 (14 Stat. 647), as recognized under the Agreement.
(8) SRBA.--The term "SRBA" means the Snake River Basin
Adjudication litigation before the SRBA Court styled as In re
Snake River Basin Adjudication, Case No. 39576.
(9) SRBA court.--The term "SRBA Court" means the District
Court of the Fifth Judicial District of the State of Idaho, In
and For the County of Twin Falls in re Snake River Basin
Adjudication.
(10) State.--The term "State" means the State of Idaho.
(11) Tribe.--The term "Tribe" means the Nez Perce Tribe.
SEC. 4. APPROVAL, RATIFICATION, AND CONFIRMATION OF AGREEMENT.
(a) In General.--Except to the extent that the Agreement conflicts
with the express provisions of this Act, the Agreement is approved,
ratified, and confirmed.
(b) Execution and Performance.--The Secretary and the other heads of
Federal agencies with obligations under the Agreement shall execute and
perform all actions, consistent with this Act, that are necessary to
carry out the Agreement.
SEC. 5. BUREAU OF RECLAMATION WATER USE.
(a) In General.--As part of the overall implementation of the
Agreement, the Secretary shall take such actions consistent with the
Agreement, this Act, and water law of the State as are necessary to
carry out the Snake River Flow Component of the Agreement.
(b) Mitigation for Change of Use of Water.--
(1) Authorization of appropriations.--There is authorized to
be appropriated to the Secretary $2,000,000 for a 1-time payment
to local governments to mitigate for the change of use of water
acquired by the Bureau of Reclamation under section III.C.6 of
the Agreement.
(2) Distribution of funds.--Funds made available under
paragraph (1) shall be distributed by the Secretary to local
governments in accordance with a plan provided to the Secretary
by the State.
(3) Payments.--Payments by the Secretary shall be made on a
pro rata basis as water rights are acquired by the Bureau of
Reclamation.
SEC. 6. BUREAU OF LAND MANAGEMENT LAND TRANSFER.
(a) Transfer.--
(1) In general.--The Secretary shall transfer land selected
by the Tribe under paragraph (2) to the Bureau of Indian Affairs
to be held in trust for the Tribe.
(2) Land selection.--The land transferred shall be selected
by the Tribe from a list of parcels of land managed by the
Bureau of Land Management that are available for transfer, as
depicted on the map entitled "North Idaho BLM Land Eligible for
Selection by the Nez Perce Tribe" dated May 2004, on file with
the Director of the Bureau of Land Management, not including any
parcel designated on the map as being on the Clearwater River or
Lolo Creek.
(3) Maximum value.--The land selected by the Tribe for
transfer shall be limited to a maximum value in total of not
more than $7,000,000, as determined by an independent appraisal
of fair market value prepared in accordance with the Uniform
Standards of Professional Appraisal Practice and the Uniform
Appraisal Standards for Federal Land Acquisitions.
(b) Existing Rights and Uses.--
(1) In general.--On any land selected by the Tribe under
subsection (a)(2), any use in existence on the date of transfer
under subsection (a) under a lease or permit with the Bureau of
Land Management, including grazing, shall remain in effect until
the date of expiration of the lease or permit, unless the holder
of the lease or permit requests an earlier termination of the
lease or permit, in which case the Secretary shall grant the
request.
(2) Availability of amounts.--Amounts that accrue to the
United States under a lease or permit described in paragraph (1)
from sales, bonuses, royalties, and rentals relating to any land
transferred to the Tribe under this section shall be made
available to the Tribe by the Secretary in the same manner as
amounts received from other land held by the Secretary in trust
for the Tribe.
(c) Date of Transfer.--No land shall be transferred to the Bureau of
Indian Affairs to be held in trust for the Tribe under this section
until the waivers and releases under section 10(a) take effect.
(d) Authorization of Appropriations.--
(1) In general.--There is authorized to be appropriated to
the Secretary $200,000 for 1-time payments to local governments
to mitigate for the transfer of land by the Bureau of Land
Management to the Tribe under section I.F of the Agreement.
(2) Payments.--Payments under paragraph (1) shall be made on
a pro rata basis as parcels of land are acquired by the Tribe.
SEC. 7. WATER RIGHTS.
(a) Holding in Trust.--
(1) In general.--The consumptive use reserved water right
shall--
(A) be held in trust by the United States for the
benefit of the Tribe and allottees as set forth in this
section; and
(B) be subject to section 7 of the Act of February
8, 1887 (25 U.S.C. 381).
(2) Springs or fountains water right.--The springs or
fountains water right of the Tribe shall be held in trust by the
United States for the benefit of the Tribe.
(3) Allottees.--Allottees shall be entitled to a just and
equitable allocation of the consumptive use reserved water right
for irrigation purposes.
(b) Water Code.--
(1) Enactment of water code.--Not <> later
than 3 years after the date of enactment of this Act, the Tribe
shall enact a water code, subject to any applicable provision of
law, that--
(A) manages, regulates, and controls the consumptive
use reserved water right so as to allocate water for
irrigation, domestic, commercial, municipal, industrial,
cultural, or other uses; and
(B) includes, subject to approval of the Secretary--
(i) a due process system for the consideration
and determination of any request by an allottee,
or any successor in interest to an allottee, for
an allocation of such water for irrigation
purposes on allotted land, including a process for
an appeal and adjudication of denied or disputed
distribution of water and for resolution of
contested administrative decisions; and
(ii) a process to protect the interests of
allottees when entering into any lease under
subsection (e).
(2) Secretarial approval.--Any provision of the water code
and any amendments to the water code that affect the rights of
the allottees shall be subject to approval by the Secretary, and
no such provision or amendment shall be valid until approved by
the Secretary.
(3) Interim administration.--The Secretary shall administer
the consumptive use reserved water right until such date as the
water code described in paragraph (2) has been enacted by the
Tribe and the Secretary has approved the relevant portions of
the water code.
(c) 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 other applicable law, a claimant shall exhaust remedies
available under the Tribe's water code and Tribal law.
(d) Petition to the Secretary.--Following exhaustion of remedies in
accordance with subsection (c), a claimant may petition the Secretary
for relief.
(e) Satisfaction of Claims.--
(1) In general.--The water rights and other benefits granted
or confirmed by the Agreement and this Act shall be in full
satisfaction of all claims for water rights and injuries to
water rights of the allottees.
(2) Satisfaction of entitlements.--Any entitlement to water
of any allottee under Federal law shall be satisfied out of the
consumptive use reserved water right.
(3) Complete substitution.--The water rights, resources, and
other benefits provided by this Act are a complete substitution
for any rights that may have been held by, or any claims that
may have been asserted by, allottees within the exterior
boundaries of the Reservation before the date of enactment of
this Act.
(f) Abandonment, Forfeiture, or Nonuse.--The consumptive use
reserved water right and the springs or fountains water right shall not
be subject to loss by abandonment, forfeiture, or nonuse.
(g) Lease of Water.--
(1) In general.--Subject to the water code, the Tribe,
without further approval of the Secretary, may lease water to
which the Tribe is entitled under the consumptive use reserved
water right through any State water bank in the same manner and
subject to the same rules and requirements that govern any other
lessor of water to the water bank.
(2) Funds.--Any funds accruing to the Tribe from any lease
under paragraph (1) shall be the property of the Tribe, and the
United States shall have no trust obligation or other obligation
to monitor, administer, or account for any consideration
received by the Tribe under any such lease.
SEC. 8. TRIBAL FUNDS.
(a) Definition of Fund.--In this section, the term "Fund" means--
(1) the Nez Perce Tribe Water and Fisheries Fund established
under subsection (b)(1); and
(2) the Nez Perce Tribe Domestic Water Supply Fund
established under subsection (b)(2).
(b) Establishment.--There are established in the Treasury of the
United States--
(1) a fund to be known as the "Nez Perce Tribe Water and
Fisheries Fund", to be used to pay or reimburse costs incurred
by the Tribe in acquiring land and water rights, restoring or
improving fish habitat, or for fish production, agricultural
development, cultural preservation, water resource development,
or fisheries-related projects; and
(2) a fund to be known as the "Nez Perce Domestic Water
Supply Fund", to be used to pay the costs for design and
construction of water supply and sewer systems for tribal
communities, including a water quality testing laboratory.
(c) Management of the Funds.--The Secretary shall manage the Funds,
make investments from the Funds, and make amounts available from the
Funds for distribution to the Tribe consistent with the American Indian
Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.), this
Act, and the Agreement.
(d) Investment of the Funds.--The Secretary shall invest amounts in
the Funds in accordance with--
(1) the Act of April 1, 1880 (25 U.S.C. 161; 21 Stat. 70,
chapter 41);
(2) the first section of the Act of June 24, 1938 (25 U.S.C.
162a; 52 Stat. 1037, chapter 648); and
(3) subsection (c).
(e) Availability of Amounts From the Funds.--Amounts made available
under subsection (h) shall be available for expenditure or withdrawal
only after the waivers and releases under section 10(a) take effect.
(f) Expenditures and Withdrawal.--
(1) Tribal management plan.--
(A) In general.--The Tribe may withdraw all or part
of amounts in the Funds on approval by the Secretary of
a tribal management plan as described in the American
Indian Trust Fund Management Reform Act of 1994 (25
U.S.C. 4001 et seq.).
(B) Requirements.--In addition to the requirements
under the American Indian Trust Fund Management Reform
Act of 1994 (25 U.S.C. 4001 et seq.), the tribal
management plan shall require that the Tribe spend any
amounts withdrawn from the Funds in accordance with the
purposes described in subsection (b).
(C) Enforcement.--The Secretary may take judicial or
administrative action to enforce the provisions of any
tribal management plan to ensure that any amounts
withdrawn from the Funds under the plan are used in
accordance with this Act and the Agreement.
(D) Liability.--If the Tribe exercises the right to
withdraw amounts from the Funds, neither the Secretary
nor the Secretary of the Treasury shall retain any
liability for the expenditure or investment of the
amounts.
(2) Expenditure plan.--
(A) In general.--The Tribe shall submit to the
Secretary for approval an expenditure plan for any
portion of the amounts made available under subsection
(h) that the Tribe does not withdraw under this
subsection.
(B) Description.--The expenditure plan shall
describe the manner in which, and the purposes for
which, amounts of the Tribe remaining in the Funds will
be used.
(C) Approval.--On receipt of an expenditure plan
under subparagraph (A), the Secretary shall approve the
plan if the Secretary determines that the plan is
reasonable and consistent with this Act and the
Agreement.
(D) Annual report.--For each Fund, the Tribe shall
submit to the Secretary an annual report that describes
all expenditures from the Fund during the year covered
by the report.
(g) No Per Capita Payments.--No part of the principal of the Funds,
or of the income accruing in the Funds, shall be distributed to any
member of the Tribe on a per capita basis.
(h) Authorization of Appropriations.--There are authorized to be
appropriated--
(1) to the Nez Perce Tribe Water and Fisheries Fund--
(A) for fiscal year 2007, $7,830,000;
(B) for fiscal year 2008, $4,730,000;
(C) for fiscal year 2009, $7,380,000;
(D) for fiscal year 2010, $10,080,000;
(E) for fiscal year 2011, $11,630,000;
(F) for fiscal year 2012, $9,450,000; and
(G) for fiscal year 2013, $9,000,000; and
(2) to the Nez Perce Tribe Domestic Water Supply Fund--
(A) for fiscal year 2007, $5,100,000;
(B) for fiscal year 2008, $8,200,000;
(C) for fiscal year 2009, $5,550,000;
(D) for fiscal year 2010, $2,850,000; and
(E) for fiscal year 2011, $1,300,000.
SEC. 9. SALMON AND CLEARWATER RIVER BASINS HABITAT FUND.
(a) Establishment of Fund.--
(1) In general.--There is established in the Treasury of the
United States a fund to be known as the "Salmon and Clearwater
River Basins Habitat Fund" (referred to in this section as the
"Fund"), to be administered by the Secretary.
(2) Accounts.--There is established within the Fund--
(A) an account to be known as the "Nez Perce Tribe
Salmon and Clearwater River Basins Habitat Account",
which shall be administered by the Secretary for use by
the Tribe subject to the same provisions for management,
investment, and expenditure as the funds established by
section 8; and
(B) an account to be known as the "Idaho Salmon and
Clearwater River Basins Habitat Account", which shall
be administered by the Secretary and provided to the
State as provided in the Agreement and this Act.
(b) Use of the Fund.--
(1) In general.--The Fund shall be used to supplement
amounts made available under any other law for habitat
protection and restoration in the Salmon and Clearwater River
Basins in Idaho, including projects and programs intended to protect
and restore listed fish and their habitat in those basins, as
specified in the Agreement and this Act.
(2) Release of funds.--The Secretary shall release funds
from the Idaho Salmon and Clearwater River Basins Habitat
Account in accordance with section 6(d)(2) of the Endangered
Species Act (16 U.S.C. 1535(d)(2)).
(3) No allocation requirement.--The use of the Fund shall
not be subject to the allocation procedures under section
6(d)(1) of the Endangered Species Act of 1973 (16 U.S.C.
1535(d)(1)).
(c) Availability of Amounts in the Fund.--Amounts made available
under subsection (d) shall be available for expenditure or withdrawal
only after the waivers and releases under section 10(a) take effect.
(d) Authorization of Appropriations.--There are authorized to be
appropriated--
(1) to the Nez Perce Tribe Salmon and Clearwater River
Basins Habitat Account, $2,533,334 for each of fiscal years 2007
through 2011; and
(2) to the Idaho Salmon and Clearwater River Basins Habitat
Account, $5,066,666 for each of fiscal years 2007 through 2011.
SEC. 10. TRIBAL WAIVER AND RELEASE OF CLAIMS.
(a) Waiver and Release of Claims in General.--
(1) Claims to water rights; claims for injuries to water
rights or treaty rights.--Except as otherwise provided in this
Act, the United States on behalf of the Tribe and the allottees,
and the Tribe, waive and release--
(A) all claims to water rights within the Snake
River Basin (as defined in section 3);
(B) all claims for injuries to such water rights;
and
(C) all claims for injuries to the treaty rights of
the Tribe to the extent that such injuries result or
resulted from flow modifications or reductions in the
quantity of water available that accrued at any time up
to and including the effective date of the settlement,
and any continuation thereafter of any such claims,
against the State, any agency or political subdivision
of the State, or any person, entity, corporation,
municipal corporation, or quasi-municipal corporation.
(2) Claims based on reduced water quality or reductions in
water quantity.--The United States on behalf of the Tribe and
the allottees, and the Tribe, waive and release any claim, under
any treaty theory, based on reduced water quality resulting
directly from flow modifications or reductions in the quantity
of water available in the Snake River Basin against any party to
the Agreement.
(3) No future assertion of claims.--No water right claim
that the Tribe or the allottees have asserted or may in the
future assert outside the Snake River Basin shall require water
to be supplied from the Snake River Basin to satisfy the claim.
(4) Effect of waivers and releases.--The waivers and
releases by the United States and the Tribe under this
subsection--
(A) shall be permanent and enforceable; and
(B) shall survive any subsequent termination of any
component of the settlement described in the Agreement
or this Act.
(5) Effective date.--The waivers and releases under this
subsection shall take effect on the date on which the Secretary
causes to be published in the Federal Register a statement of
findings that the actions set forth in section IV.L of the
Agreement--
(A) have been completed, including issuance of a
judgment and decree by the SRBA court from which no
further appeal may be taken; and
(B) have been determined by the United States on
behalf of the Tribe and the allottees, the Tribe, and
the State of Idaho to be consistent in all material
aspects with the Agreement.
(b) Waiver and Release of Claims Against the United States.--
(1) In general.--In consideration of performance by the
United States of all actions required by the Agreement and this
Act, including the appropriation of all funds authorized under
sections 8(h) and 9(d)(1), the Tribe shall execute a waiver and
release of the United States from--
(A) all claims for water rights within the Snake
River Basin, injuries to such water rights, or breach of
trust claims for failure to protect, acquire, or develop
such water rights that accrued at any time up to and
including the effective date determined under paragraph
(2);
(B) all claims for injuries to the Tribe's treaty
fishing rights, to the extent that such injuries result
or resulted from reductions in the quantity of water
available in the Snake River Basin;
(C) all claims of breach of trust for failure to
protect Nez Perce springs or fountains treaty rights
reserved in article VIII of the Treaty of June 9, 1863
(14 Stat. 651); and
(D) all claims of breach of trust arising out of the
negotiation of or resulting from the adoption of the
Agreement.
(2) Effective date.--
(A) In general.--The waiver and release contained in
this subsection shall take effect on the date on which
the amounts authorized under sections 8(h) and 9(d)(1)
are appropriated.
(B) Periods of limitation; equitable claims.--
(i) In general.--All periods of limitation and
time-based equitable defenses applicable to the
claims set forth in paragraph (1) are tolled for
the period between the date of enactment of this
Act until the earlier of--
(I) the date on which the amounts
authorized under sections 8(h) and
9(d)(1) are appropriated; or
(II) October 1, 2017.
(ii) Effect of subparagraph.--This
subparagraph neither revives any claim nor tolls
any period of limitation or time-based equitable
defense that may have expired before the date of
enactment of this Act.
(3) Defense.--The making of the amounts of appropriations
authorized under sections 8(h) and 9(d)(1) shall constitute a
complete defense to any claim pending in any court of the United
States on the date on which the appropriations are made.
(c) Retention of Rights.--
(1) In general.--The Tribe shall retain all rights not
specifically waived or released in the Agreement or this Act.
(2) Dworshak project.--Nothing in the Agreement or this Act
constitutes a waiver by the Tribe of any claim against the
United States resulting from the construction and operation of
the Dworshak Project (Project PWI 05090), other than those
specified in subparagraphs (A) and (B) of subsection (b)(1).
(3) Future acquisition of water rights.--Nothing in the
Agreement or this Act precludes the Tribe or allottees, or the
United States as trustee for the Tribe or allottees, from
purchasing or otherwise acquiring water rights in the future to
the same extent as any other entity in the State.
SEC. 11. MISCELLANEOUS.
(a) General Disclaimer.--The parties expressly reserve all rights
not specifically granted, recognized, or relinquished by the settlement
described in the Agreement or this Act.
(b) Disclaimer Regarding Other Agreements and Precedent.--
(1) In general.--Subject to section 9(b)(3), nothing in this
Act amends, supersedes, or preempts any State law, Federal law,
Tribal law, or interstate compact that pertains to the Snake
River Basin.
(2) No establishment of standard.--Nothing in this Act--
(A) establishes any standard for the quantification
of Federal reserved water rights or any other Indian
water claims of any other Indian tribes in any other
judicial or administrative proceeding; or
(B) limits the rights of the parties to litigate any
issue not resolved by the Agreement or this Act.
(3) No admission against interest.--Nothing in this Act
constitutes an admission against interest against any party in
any legal proceeding.
(c) Treaty Rights.--Nothing in the Agreement or this Act impairs the
treaty fishing, hunting, pasturing, or gathering rights of the Tribe
except to the extent expressly provided in the Agreement or this Act.
(d) Other Claims.--Nothing in the Agreement or this Act quantifies
or otherwise affects the water rights, claims, or entitlements to water,
or any other treaty right, of any Indian tribe, band, or community other
than the Tribe.
(e) Recreation on Dworshak Reservoir.--
(1) In general.--In implementing the provisions of the
Agreement and this Act relating to the use of water stored in
Dworshak Reservoir for flow augmentation purposes, the heads of
the Federal agencies involved in the operational Memorandum of
Agreement referred to in the Agreement shall implement a flow
augmentation plan beneficial to fish and consistent with the
Agreement.
(2) Contents of plan.--The flow augmentation plan may
include provisions beneficial to recreational uses of the
reservoir through maintenance of the full level of the reservoir
for prolonged periods during the summer months.
(f) Jurisdiction.--
(1) No effect on subject matter jurisdiction.--Nothing in
the Agreement or this Act restricts, enlarges, or otherwise
determines the subject matter jurisdiction of any Federal,
State, or Tribal court.
(2) Consent to jurisdiction.--The United States consents to
jurisdiction in a proper forum for purposes of enforcing the
provisions of the Agreement.
(3) Effect of subsection.--Nothing in this subsection
confers jurisdiction on any State court to--
(A) enforce Federal environmental laws regarding the
duties of the United States; or
(B) conduct judicial review of Federal agency
action.