[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 2508 Introduced in Senate (IS)]
106th CONGRESS
2d Session
S. 2508
To amend the Colorado Ute Indian Water Rights Settlement Act of 1988 to
provide for a final settlement of the claims of the Colorado Ute Indian
Tribes, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 4, 2000
Mr. Campbell (for himself and Mr. Allard) introduced the following
bill; which was read twice and referred to the Committee on Indian
Affairs
_______________________________________________________________________
A BILL
To amend the Colorado Ute Indian Water Rights Settlement Act of 1988 to
provide for a final settlement of the claims of the Colorado Ute Indian
Tribes, 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; FINDINGS; DEFINITIONS.
(a) Short Title.--This Act may be cited as the ``Colorado Ute
Settlement Act Amendments of 2000''.
(b) Findings.--Congress makes the following findings:
(1) In order to provide for a full and final settlement of
the claims of the Colorado Ute Indian Tribes on the Animas and
La Plata Rivers, the Tribes, the State of Colorado, and certain
of the non-Indian parties to the Agreement have proposed
certain modifications to the Colorado Ute Indian Water Rights
Settlement Act of 1988 (Public Law 100-585; 102 Stat. 2973).
(2) The claims of the Colorado Ute Indian Tribes on all
rivers in Colorado other than the Animas and La Plata Rivers
have been settled in accordance with the provisions of the
Colorado Ute Indian Water Rights Settlement Act of 1988 (Public
Law 100-585; 102 Stat. 2973).
(3) The Indian and non-Indian communities of southwest
Colorado and northwest New Mexico will be benefited by a
settlement of the tribal claims on the Animas and La Plata
Rivers that provides the Tribes with a firm water supply
without taking water away from existing uses.
(4) The Agreement contemplated a specific timetable for the
delivery of irrigation and municipal and industrial water and
other benefits to the Tribes from the Animas-La Plata Project,
which timetable has not been met. The provision of irrigation
water can not presently be satisfied under the current
implementation of the Federal Water Pollution Control Act (33
U.S.C. 1251 et seq.) and the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.).
(5) In order to meet the requirements of the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.), and in particular
the various biological opinions issued by the Fish and Wildlife
Service, the amendments made by this Act are needed to provide
for a significant reduction in the facilities and water supply
contemplated under the Agreement.
(6) The substitute benefits provided to the Tribes under
the amendments made by this Act, including the waiver of
capital costs and the provisions of funds for natural resource
enhancement, result in a settlement that provides the Tribes
with benefits that are equivalent to those that the Tribes
would have received under the Colorado Ute Indian Water Rights
Settlement Act of 1988 (Public Law 100-585; 102 Stat. 2973).
(7) The requirement that the Secretary of the Interior
comply with the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) and other national environmental laws
before implementing the proposed settlement will ensure that
the satisfaction of the tribal water rights is accomplished in
an environmentally responsible fashion.
(8) Federal courts have considered the nature and the
extent of Congressional participation when reviewing Federal
compliance with the requirements of the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(9) In considering the full range of alternatives for
satisfying the water rights claims of the Southern Ute Indian
Tribe and Ute Mountain Ute Indian Tribe, Congress has held
numerous legislative hearings and deliberations, and reviewed
the considerable record including the following documents:
(A) The Final EIS No. INT-FES-80-18, dated July 1,
1980.
(B) The Draft Supplement to the FES No. INT-DES-92-
41, dated October 13, 1992.
(C) The Final Supplemental to the FES No. 96-23,
dated April 26, 1996;
(D) The Draft Supplemental EIS, dated January 14,
2000.
(c) Definitions.--In this Act:
(1) Agreement.--The term ``Agreement'' has the meaning
given that term in section 3(1) of the Colorado Ute Indian
Water Rights Settlement Act of 1988 (Public Law 100-585; 102
Stat. 2973).
(2) Animas-la plata project.--The term ``Animas-La Plata
Project'' has the meaning given that term in section 3(2) of
the Colorado Ute Indian Water Rights Settlement Act of 1988
(Public Law 100-585; 102 Stat. 2973).
(3) Dolores project.--The term ``Dolores Project'' has the
meaning given that term in section 3(3) of the Colorado Ute
Indian Water Rights Settlement Act of 1988 (Public Law 100-585;
102 Stat. 2974).
(4) Tribe; tribes.--The term ``tribe'' or ``tribes'' has
the meaning given that term in section 3(6) of the Colorado Ute
Indian Water Rights Settlement Act of 1988 (Public Law 100-585;
102 Stat. 2974).
SEC. 2. AMENDMENTS TO SECTION 6 OF THE COLORADO UTE INDIAN WATER RIGHTS
SETTLEMENT ACT OF 1988.
Subsection (a) of section 6 of the Colorado Ute Indian Water Rights
Settlement Act of 1988 (Public Law 100-585; 102 Stat. 2975) is amended
to read as follows:
``(a) Reservoir; Municipal and Industrial Water.--
``(1) Facilities.--
``(A) In general.--After the date of enactment of
this subsection, but prior to January 1, 2005, the
Secretary, in order to settle the outstanding claims of
the Tribes on the Animas and La Plata Rivers, acting
through the Bureau of Reclamation, is specifically
authorized to--
``(i) complete construction of, and operate
and maintain, a reservoir, a pumping plant, a
reservoir inlet conduit, and appurtenant
facilities with sufficient capacity to divert
and store water from the Animas River to
provide for an average annual depletion of
57,100 acre-feet of water to be used for a
municipal and industrial water supply, which
facilities shall--
``(I) be designed and operated in
accordance with the hydrologic regime
necessary for the recovery of the
endangered fish of the San Juan River
as determined by the San Juan River
Recovery Implementation Program;
``(II) include an inactive pool of
an appropriate size to be determined by
the Secretary following the completion
of required environmental compliance
activities; and
``(III) include those recreation
facilities determined to be appropriate
by agreement between the State of
Colorado and the Secretary that shall
address the payment of any of the costs
of such facilities by the State of
Colorado in addition to the costs
described in paragraph (3); and
``(ii) deliver, through the use of the
project components referred to in clause (i),
municipal and industrial water allocations--
``(I) with an average annual
depletion not to exceed 16,525 acre-
feet of water, to the Southern Ute
Indian Tribe for its present and future
needs;
``(II) with an average annual
depletion not to exceed 16,525 acre-
feet of water, to the Ute Mountain Ute
Indian Tribe for its present and future
needs;
``(III) with an average annual
depletion not to exceed 2,340 acre-feet
of water, to the Navajo Nation for its
present and future needs;
``(IV) with an average annual
depletion not to exceed 10,400 acre-
feet of water, to the San Juan Water
Commission for its present and future
needs;
``(V) with an average annual
depletion of an amount not to exceed
2,600 acre-feet of water, to the
Animas-La Plata Conservancy District
for its present and future needs;
``(VI) with an average annual
depletion of an amount not to exceed
5,230 acre-feet of water, to the State
of Colorado for its present and future
needs; and
``(VII) with an average annual
depletion of an amount not to exceed
780 acre-feet of water, to the La Plata
Conservancy District of New Mexico for
its present and future needs.
``(B) Applicability of other federal law.--The
responsibilities of the Secretary described in
subparagraph (A) are subject to the requirements of
Federal laws related to the protection of the
environment and otherwise applicable to the
construction of the proposed facilities, including the
National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.), the Clean Water Act (42 U.S.C. 7401 et
seq.), and the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.). Nothing in this Act shall be
construed to predetermine or otherwise affect the
outcome of any analysis conducted by the Secretary or
any other Federal official under applicable laws.
``(C) Limitation.--
``(i) In general.--If constructed, the
facilities described in subparagraph (A) shall
not be used in conjunction with any other
facility authorized as part of the Animas-La
Plata Project without express authorization
from Congress.
``(ii) Contingency in application.--If the
facilities described in subparagraph (A) are
not constructed and operated, clause (i) shall
not take effect.
``(2) Tribal construction costs.--Construction costs
allocable to the facilities that are required to deliver the
municipal and industrial water allocations described in
subclauses (I), (II) and (III) of paragraph (1)(A)(ii) shall be
nonreimbursable to the United States.
``(3) Nontribal water capital obligations.--Under the
provisions of section 9 of the Act of August 4, 1939 (43 U.S.C.
485h), the nontribal municipal and industrial water capital
repayment obligations for the facilities described in paragraph
(1)(A)(i) may be satisfied upon the payment in full of the
nontribal water capital obligations prior to the initiation of
construction. The amount of the obligations described in the
preceding sentence shall be determined by agreement between the
Secretary of the Interior and the entity responsible for such
repayment as to the appropriate reimbursable share of the
construction costs allocated to that entity's municipal water
supply. Such agreement shall take into account the fact that
the construction of facilities to provide irrigation water
supplies from the Animas-La Plata Project is not authorized
under paragraph (1)(A)(i) and no costs associated with the
design or development of such facilities, including costs
associated with environmental compliance, shall be allocable to
the municipal and industrial users of the facilities authorized
under such paragraph.
``(4) Tribal water allocations.--
``(A) In general.--With respect to municipal and
industrial water allocated to a Tribe from the Animas-
La Plata Project or the Dolores Project, until that
water is first used by a Tribe or used pursuant to a
water use contract with the Tribe, the Secretary shall
pay the annual operation, maintenance, and replacement
costs allocable to that municipal and industrial water
allocation of the Tribe.
``(B) Treatment of costs.--A Tribe shall not be
required to reimburse the Secretary for the payment of
any cost referred to in subparagraph (A).
``(5) Repayment of pro rata share.--Upon a Tribe's first
use of an increment of a municipal and industrial water
allocation described in paragraph (4), or the Tribe's first use
of such water pursuant to the terms of a water use contract--
``(A) repayment of that increment's pro rata share
of those allocable construction costs for the Dolores
Project shall be made by the Tribe; and
``(B) the Tribe shall bear a pro rata share of the
allocable annual operation, maintenance, and
replacement costs of the increment as referred to in
paragraph (4).''.
SEC. 3. COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969.
Section 6 of the Colorado Ute Indian Water Rights Settlement Act of
1988 (Public Law 100-585; 102 Stat. 2975) is amended by adding at the
end the following:
``(i) Compliance With the National Environmental Policy Act of
1969.--
``(1) Authority.--Nothing in this Act shall be construed to
alter, amend, or modify the authority or discretion of the
Secretary or any other Federal official under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) or
any other Federal law.
``(2) Determination of congress.--Subject to paragraph (3),
in any defense to a challenge of the Final Environmental Impact
Statement prepared pursuant to the Notice of Intent to Prepare
a Draft Environmental Impact Statement, as published in the
Federal Register on January 4, 1999 (64 Fed Reg 176-179), or
the compliance with the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.) or the Federal Water Pollution
Control Act (33 U.S.C. 1251 et seq.), and in addition to the
Record of Decision and any other documents or materials
submitted in defense of its decision, the United States may
assert in its defense that Congress, based upon the deliberations and
review described in paragraph (9) of section 1(b) of the Colorado Ute
Settlement Act Amendments of 2000, has determined that the alternative
described in such Final Statement meets the Federal government's water
supply obligations to the Ute tribes under this Act in a manner that
provides the most benefits to, and has the least impact on, the quality
of the human environment.
``(3) Application of provision.--This subsection shall only
apply if Alternative #4, as presented in the Draft Supplemental
Environmental Impact Statement dated January 14, 2000, or an
alternative substantially similar to Alternative #4, is
selected by the Secretary.
``(4) No effect of modification of facilities.--The
application of this section shall not be affected by a
modification of the facilities described in subsection
(a)(1)(A)(i) to address the provisions in the San Juan River
Recovery Implementation Program.''.
SEC. 4. COMPLIANCE WITH THE ENDANGERED SPECIES ACT OF 1973.
Section 6 of the Colorado Ute Indian Water Rights Settlement Act of
1988 (Public Law 100-585; 102 Stat. 2975), as amended by section 3, is
amended by adding at the end the following:
``(j) Compliance With the Endangered Species Act of 1973.--
``(1) Authority.--Nothing in this section shall be
construed to alter, amend, or modify the authority or
discretion of the Secretary or any other Federal official under
the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) or
any other Federal law.
``(2) Determination of congress.--Subject to paragraph (3),
in any defense to a challenge of the Biological Opinion
resulting from the Bureau of Reclamation Biological Assessment,
January 14, 2000, or the compliance with the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.), and in addition to the
Record of Decision and any other documents or materials
submitted in defense of its decision, the United States may
assert in its defense that Congress, based on the deliberations
and review described in paragraph (9) of section 1(b) of the
Colorado Ute Settlement Act Amendments of 2000, has determined
that constructing and operating the facilities described in
subsection (a)(1)(A)(i) meets the Federal government's water
supply obligation to the Ute tribes under that Act without
violating the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.).
``(3) Application of provision.--This subsection shall only
apply if the Biological Opinion referred to in paragraph (2) or
any reasonable and prudent alternative suggested by the
Secretary pursuant to section 7 of the Endangered Species Act
of 1973 (16 U.S.C. 1536) authorizes an average annual depletion
of at least 57,100 acre-feet of water.
``(4) No effect of modification of facilities.--The
application of this subsection shall not be affected by a
modification of the facilities described in subsection
(a)(1)(A)(i) to address the provisions in the San Juan River
Recovery Implementation Program.''.
SEC. 5. MISCELLANEOUS.
The Colorado Ute Indian Water Rights Settlement Act of 1988 (Public
Law 100-585; 102 Stat. 2973) is amended by adding at the end the
following:
``SEC. 15. NEW MEXICO AND NAVAJO NATION WATER
MATTERS.
``(a) Assignment of Water Permit.--Upon the request of the State
Engineer of the State of New Mexico, the Secretary shall, in a manner
consistent with applicable State law, assign, without consideration, to
the New Mexico Animas-La Plata Project beneficiaries or the New Mexico
Interstate Stream Commission any portion of the Department of the
Interior's interest in New Mexico Engineer Permit Number 2883, dated
May 1, 1956, in order to fulfill the New Mexico purposes of the Animas-
La Plata Project, so long as the permit assignment does not affect the
application of the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.) to the use of the water involved.
``(b) Navajo Nation Municipal Pipeline.--The Secretary may
construct a water line to augment the existing system that conveys the
municipal water supplies, in an amount not less than 4,680 acre-feet
per year, of the Navajo Nation to the Navajo Indian Reservation at
Shiprock, New Mexico. The Secretary shall comply with all applicable
environmental laws with respect to such water line. Construction costs
allocated to the Navajo Nation for such water line shall be
nonreimbursable to the United States.
``(c) Protection of Navajo Water Claims.--Nothing in this Act shall
be construed to quantify or otherwise adversely affect the water rights
and the claims of entitlement to water of the Navajo Nation.
``SEC. 16. TRIBAL RESOURCE FUNDS.
``(a) Establishment.--
``(1) Authorization of appropriations.--There is authorized
to be appropriated to carry out this section, $20,000,000 for
fiscal year 2001 and $20,000,000 for fiscal year 2002. Not
later than 60 days after amounts are appropriated and available
to the Secretary for a fiscal year under this paragraph, the
Secretary shall make a payment to each of the Tribal Resource
Funds established under paragraph (2). Each such payment shall
be equal to 50 percent of the amount appropriated for the
fiscal year involved.
``(2) Funds.--The Secretary shall establish a--
``(A) Southern Ute Tribal Resource Fund; and
``(B) Ute Mountain Ute Tribal Resource Fund.
A separate account shall be maintained for each such Fund.
``(b) Adjustment.--To the extent that the amount appropriated under
subsection (a)(1) in any fiscal year is less than the amount authorized
for such fiscal year under such subsection, the Secretary shall,
subject to the availability of appropriations, pay to each of the
Tribal Reserve Funds an adjustment amount equal to the interest income,
as determined by the Secretary in his or her sole discretion, that
would have been earned on the amount authorized but not appropriated
under such subsection had that amount been placed in the Fund as
required under such subsection.
``(c) Tribal Development.--
``(1) Investment.--The Secretary shall, in the absence of
an approved tribal investment plan provided for under paragraph
(2), invest the amount in each Tribal Resource Fund in
accordance with the Act entitled, `An Act to authorize the
deposit and investment of Indian funds' approved June 24, 1938
(25 U.S.C. 162a). The Secretary shall disburse, at the request
of a Tribe, the principal and income in its Resource Fund, or
any part thereof, in accordance with a resource acquisition and
enhancement plan approved under paragraph (3).
``(2) Investment plan.--
``(A) In general.--In lieu of the investment
provided for in paragraph (1), a Tribe may submit a
tribal investment plan applicable to all or part of the
Tribe's Tribal Resource Fund.
``(B) Approval.--Not later than 60 days after the
date on which an investment plan is submitted under
subparagraph (A), the Secretary shall approve such
investment plan if the Secretary finds that the plan is
reasonable and sound. If the Secretary does not approve
such investment plan, the Secretary shall set forth in
writing and with particularity the reasons for such
disapproval. If such investment plan is approved by the
Secretary, the Tribal Resource Fund involved shall be
disbursed to the Tribe to be invested by the Tribe in
accordance with the approved investment plan.
``(C) Compliance.--The Secretary may take such
steps as the Secretary determines to be necessary to
monitor the compliance of a Tribe with an investment
plan approved under subparagraph (B). The United States
shall not be responsible for the review, approval, or
audit of any individual investment under the plan. The
United States shall not be directly or indirectly liable with respect
to any such investment, including any act or omission of the Tribe in
managing or investing such funds.
``(D) Economic development plan.--The principal and
income derived from tribal investments under an
investment plan approved under subparagraph (B) shall
be subject to the provisions of this section and shall
be expended only in accordance with an economic
development plan approved under paragraph (3).
``(3) Economic development plan.--
``(A) In general.--Each Tribe shall submit to the
Secretary a resource acquisition and enhancement plan
for all or any portion of its Tribal Resource Fund.
``(B) Approval.--Not later than 60 days after the
date on which a plan is submitted under subparagraph
(A), the Secretary shall approve such investment plan
if the Secretary finds that the plan is reasonably
related to the protection, acquisition, enhancement, or
development of natural resources for the benefit of the
Tribe and its members. If the Secretary does not
approve such plan, the Secretary shall, at the time of
such determination, set forth in writing and with
particularity the reasons for such disapproval.
``(C) Modification.--Subject to the approval of the
Secretary, each Tribe may modify a plan approved under
subparagraph (B).
``(D) Liability.--The United States shall not be
directly or indirectly liable for any claim or cause of
action arising from the approval of a plan under this
paragraph, or from the use and expenditure by the Tribe
of the principal or interest of the Funds.
``(d) Limitation on Per Capita Distributions.--No part of the
principal contained in the Tribal Resource Fund, or of the income
accruing to such funds, or the revenue from any water use contract,
shall be distributed to any member of either Tribe on a per capita
basis.
``(e) Limitation on Setting Aside Final Consent Decree.--Neither
the Tribes nor the United States shall have the right to set aside the
final consent decree solely because the requirements of subsection (c)
are not complied with or implemented.
``SEC. 17. COLORADO UTE SETTLEMENT FUND.
``(a) Establishment of Fund.--There is hereby established within
the Treasury of the United States a fund to be known as the `Colorado
Ute Settlement Fund.'
``(b) Authorization of Appropriations.--There is authorized to be
appropriated to the Colorado Ute Settlement Fund such funds as are
necessary to complete the construction of the facilities described in
section 6(a)(1)(A) within 6 years of the date of enactment of this
section. Such funds are authorized to be appropriated for each of the
first 5 fiscal years beginning with the first full fiscal year
following the date of enactment of this section.
``(c) Interest.--Amounts appropriated under subsection (b) shall
accrue interest, to be paid on the dates that are 1, 2, 3, 4, and 5
years after the date of enactment of this section, at a rate to be
determined by the Secretary of the Treasury taking into consideration
the average market yield on outstanding Federal obligations of
comparable maturity, except that no such interest shall be paid during
any period where a binding final court order prevents construction of
the facilities described in section 6(a)(1)(A).
``SEC. 18. FINAL SETTLEMENT.
``(a) In General.--The construction of the facilities described in
section 6(a)(1)(A), the allocation of the water supply from those
facilities to the Tribes as described in that section, and the
provision of funds to the Tribes in accordance with sections 16 and 17
shall constitute final settlement of the tribal claims to water rights
on the Animas and La Plata Rivers in the State of Colorado.
``(b) Statutory Construction.--Nothing in this section shall be
construed to affect the right of the Tribes to water rights on the
streams and rivers described in the Agreement, other than the Animas
and La Plata Rivers, to receive the amounts of water dedicated to
tribal use under the Agreement, or to acquire water rights under the
laws of the State of Colorado.
``(c) Action by the Attorney General.--The Attorney General shall
file with the District Court, Water Division Number 7, of the State of
Colorado, such instruments as may be necessary to request the court to
amend the final consent decree to provide for the amendments made to
this Act under the Colorado Ute Indian Water Rights Settlement Act
Amendments of 2000.
``SEC. 19. STATUTORY CONSTRUCTION; TREATMENT OF CERTAIN FUNDS.
``(a) In General.--Nothing in the amendments made by the Colorado
Ute Settlement Act Amendments of 2000 shall be construed to affect the
applicability of any provision of this Act.
``(b) Treatment of Uncommitted Portion of Cost-Sharing
Obligation.--The uncommitted portion of the cost-sharing obligation of
the State of Colorado referred to in section 6(a)(3) shall be made
available, upon the request of the State of Colorado, to the State of
Colorado after the date on which payment is made of the amount
specified in that section.''.
<all>