Blackfeet Water Rights Settlement Act of 2013 - Requires the Blackfeet Tribe (Tribe) of the Blackfeet Indian Reservation of Montana to work with the Fort Belknap Indian Community on resolving any conflict concerning Milk River water rights. Directs the Secretary of the Interior to resolve such conflict if the Tribe and Community are unable to do so within a specified period.
Requires the Secretary to enter into contracts with the Tribe for the delivery of: (1) 5,000 acre-feet per year of the St. Mary River water right through Milk River Project facilities to the Tribe or an entity specified by the Tribe, and (2) any additional available St. Mary water.
Lists Milk River Project purposes as irrigation, flood control, fish and wildlife protection, recreation, hydroelectric power generation, and municipal, rural, and industrial water supply.
Directs the Secretary to conduct a study to:
Requires the Secretary to implement the Swift Current Creek Bank Stabilization Project and offer to enter into an agreement with the Tribe to establish a process for resolving issues regarding federal Milk River Project property interests that are located on tribal lands.
Gives the Tribe the exclusive right to develop and market hydroelectric power from the St. Mary Storage Unit of the Milk River Project.
Directs the Secretary to allocate to the Tribe 56,000 acre-feet per year of water stored in Lake Elwell for use by the Tribe for any beneficial purpose on or off the Reservation. Authorizes the Tribe to enter into leases or other agreements for the use of that water, provided its use occurs within the Missouri River Basin and the agreement does not permanently alienate the allocation.
Requires the Secretary, acting through the Commissioner of Reclamation, to:
Establishes the Birch Creek Mitigation Fund to mitigate the impacts of development of the Birch Creek tribal water right on the Birch Creek water supplies of the Pondera County Canal and Reservoir Company Project.
Directs the Secretary, at the Tribe's request, to convey title to the Blackfeet Irrigation Project, Birch Creek Mitigation Project, the MR&I System, and Blackfeet Water, Storage, and Development Projects to the Tribe.
Authorizes, ratifies, and confirms the Blackfeet-Montana water rights compact (Compact) to the extent it does not conflict with this Act.
Requires the tribal water rights to be held in trust by the United States for the Tribe and its allottees.
Requires the Tribe to amend its tribal water code in accordance with the Compact and this Act. Requires the Secretary's approval of the tribal water code for it to be valid.
Establishes the Blackfeet Settlement Trust Fund. Makes appropriations to specified accounts that the Secretary is to establish within the Fund. Authorizes the Tribe to withdraw amounts from the Fund upon the Secretary's approval of a tribal management plan and an expenditure plan that requires the Tribe to spend the withdrawn amounts in accordance with this Act.
Gives the Tribe specified water rights in the Lewis and Clark National Forest.
Provides for the waiver and release by the Tribe of water rights claims against Montana and the United States in return for recognition of the tribal water rights and other benefits provided under the Compact and this Act.
Absolves the United States from liability for any failure to carry out any obligation or activity authorized by this Act if adequate appropriations are not provided expressly by Congress to carry out the purposes of this Act in the Reclamation Water Settlements Fund or the Emergency Fund for Indian Safety and Health.
[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 434 Introduced in Senate (IS)]
113th CONGRESS
1st Session
S. 434
To authorize and implement the water rights compact among the Blackfeet
Tribe of the Blackfeet Indian Reservation and the State of Montana, and
for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 4, 2013
Mr. Baucus (for himself and 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 Blackfeet
Tribe of the Blackfeet Indian Reservation and the State of Montana, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Blackfeet Water Rights Settlement
Act of 2013''.
SEC. 2. PURPOSES.
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 Blackfeet Tribe of the Blackfeet Indian
Reservation; and
(B) the United States, for the benefit of the Tribe
and allottees;
(2) to approve, ratify, and confirm the water rights
compact entered into by the Tribe and the State, to the extent
that the Compact is consistent with this Act;
(3) to require the Secretary of the Interior--
(A) to execute the Compact; and
(B) to carry out any other activity 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.
SEC. 3. DEFINITIONS.
In this Act:
(1) Allottee.--The term ``allottee'' means any individual
who holds a beneficial real property interest in an allotment
of Indian land that is--
(A) located within the Reservation; and
(B) held in trust by the United States.
(2) Available st. mary water.--The term ``available St.
Mary water'' means--
(A) water from the St. Mary River allocated to the
United States under the International Boundary Waters
Treaty of 1909 between the United States and Great
Britain relating to boundary waters between the United
States and Canada entered into force on May 13, 1910
(36 Stat. 2448), minus the quantity of water required
for the Milk River Project water right; and
(B) water that is--
(i) otherwise part of the Milk River
Project water right; and
(ii) made available by the United States to
the Tribe without any net reduction of the
legal entitlement to water of any water user
under the jurisdiction of an entity that is a
party to a contract for water from the Milk
River Project water right, as determined--
(I) initially, by the Secretary;
and
(II) subsequently, by a court of
competent jurisdiction.
(3) Birch creek agreement.--The term ``Birch Creek
Agreement'' means--
(A) the agreement between the Tribe and the State
regarding Birch Creek water use dated January 31, 2008,
as amended on February 13, 2009; and
(B) any amendment or exhibit (including exhibit
amendments) to that agreement that is executed in
accordance with this Act.
(4) Birch creek mitigation project.--The term ``Birch Creek
Mitigation Project'' means the project necessary to provide
water from Four Horns Reservoir to State water rights users on
Birch Creek in fulfillment of the obligations of the Tribe
under the Birch Creek Agreement.
(5) Blackfeet irrigation project.--The term ``Blackfeet
Irrigation Project'' means the irrigation project authorized by
the matter under the heading ``Montana'' of title II of the Act
of March 1, 1907 (34 Stat. 1035, chapter 2285), and
administered by the Bureau of Indian Affairs.
(6) Compact.--The term ``Compact'' means--
(A) the Blackfeet-Montana water rights compact
dated December 14, 2007, as contained in section 85-20-
1501 of the Montana Code Annotated (2011); and
(B) any amendment or exhibit (including exhibit
amendments) to the Compact that is executed in
accordance with this Act.
(7) Enforceability date.--The term ``enforceability date''
means the date described in section 19(e).
(8) Lake elwell.--The term ``Lake Elwell'' means the water
impounded on the Marias River in the State by Tiber Dam, a
feature of the Lower Marias Unit of the Pick-Sloan Missouri
River Basin Program authorized by section 9 of the Act of
December 22, 1944 (commonly known as the ``Flood Control Act of
1944'') (58 Stat. 891, chapter 665).
(9) Milk river basin.--The term ``Milk River basin'' means
the main stem of the Milk River (including tributaries), from
the headwaters of that river to the confluence with the
Missouri River.
(10) Milk river project.--
(A) In general.--The term ``Milk River Project''
means the Bureau of Reclamation project conditionally
approved by the Secretary on March 14, 1903, pursuant
to the Act of June 17, 1902 (32 Stat. 388, chapter
1093), commencing at Lake Sherburne Reservoir and
providing water to a point approximately 6 miles east
of Nashua, Montana.
(B) Inclusions.--The term ``Milk River Project''
includes--
(i) the St. Mary storage unit;
(ii) the Fresno Dam; and
(iii) the Dodson pumping unit.
(11) Milk river project water right.--The term ``Milk River
Project water right'' means the water right held by the Bureau
of Reclamation on behalf of the Milk River Project, as finally
adjudicated by the Montana Water Court.
(12) Milk river water right.--The term ``Milk River water
right'' means the Milk River water right of the Tribe as
established in article III.F of the Compact.
(13) Missouri river basin.--The term ``Missouri River
basin'' means the hydrologic basin of the Missouri River
(including tributaries).
(14) MR&I system.--The term ``MR&I System'' means--
(A) the intake, treatment, pumping, storage,
pipelines, appurtenant items, and real property, as
generally described in the document entitled
``Blackfeet Regional Water System Report'', prepared by
DOWL HKM, and dated June 2010, and updated in the
memorandum entitled ``Blackfeet Regional Water System
Potential Cost Modifications'', prepared by DOWL HKM,
and dated November 3, 2011; and
(B) the existing public water systems improved
under subparagraph (A).
(15) OM&R.--The term ``OM&R'' means--
(A) any recurring or ongoing activity associated
with the day-to-day operation of a project;
(B) any activity relating to scheduled or
unscheduled maintenance of a project; and
(C) any activity relating to replacing a feature of
a project.
(16) Pondera county canal and reservoir company project.--
The term ``Pondera County Canal and Reservoir Company Project''
means the project authorized in part by section 4 of the Act of
August 18, 1894 (28 Stat. 422), and lying south of Birch Creek
in Montana Water Court Basin 41M.
(17) Reservation.--The term ``Reservation'' means the
Blackfeet Indian Reservation of Montana, as in existence on the
date of enactment of this Act.
(18) St. mary river water right.--The term ``St. Mary River
water right'' means the water right of the Tribe in the St.
Mary River as established by article III.G.1.a.i. of the
Compact and implemented in accordance with article IV.D.4 of
the Compact and this Act.
(19) St. mary unit.--
(A) In general.--The term ``St. Mary Unit'' means
the St. Mary Storage Unit of the Milk River Project
authorized by Congress on March 25, 1905.
(B) Inclusions.--The term ``St. Mary Unit''
includes--
(i) Sherburne Dam and Reservoir;
(ii) Swift Current Creek Dike;
(iii) Lower St. Mary Lake;
(iv) St. Mary Canal Diversion Dam; and
(v) St. Mary Canal and appurtenances.
(20) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(21) State.--The term ``State'' means the State of Montana.
(22) Tribal water code.--The term ``tribal water code''
means the code adopted by the Tribe in the tribal ordinance
numbered 62 (as amended in accordance with the Compact and this
Act).
(23) Tribal water right.--The term ``tribal water right''
means the right of the Tribe to divert, use, or store water, as
established in--
(A) article III of the Compact;
(B) the allocation of water to the Tribe from Lake
Elwell pursuant to section 8; and
(C) any allocation of water to the Tribe pursuant
to this Act in fulfillment of the water rights of the
Tribe.
(24) Tribe.--The term ``Tribe'' means the Blackfeet Tribe
of the Blackfeet Indian Reservation.
SEC. 4. MILK RIVER WATER RIGHT.
(a) Resolution Alternatives.--
(1) In general.--Not later than 10 years after the
enforceability date, the Tribe shall identify, and discuss with
the Fort Belknap Indian Community, alternatives to resolve any
conflict between the Milk River water right and the Milk River
water right of the Fort Belknap Indian Community.
(2) Action by secretary.--The Secretary shall--
(A) facilitate discussions between the Tribe and
the Fort Belknap Indian Community under paragraph (1);
and
(B) provide technical assistance to the Tribe and
the Fort Belknap Indian Community to carry out
paragraph (1).
(3) Uses by tribe.--During the 10-year period described in
paragraph (1), the Tribe may--
(A) continue the present and historical uses of
water by the Tribe; and
(B) exercise any State water rights in the Milk
River basin possessed or acquired by the Tribe.
(b) Secretarial Determination.--If the Tribe and the Fort Belknap
Indian Community are unable to reach an agreement on appropriate
alternatives to resolve any conflicts during the period described in
subsection (a)(1), the Secretary shall identify and implement
alternatives to resolve any conflict between the Milk River water right
and the Milk River right of the Fort Belknap Indian Community, subject
to the conditions that--
(1) the Secretary shall consult with the Tribe and the Fort
Belknap Indian Community in identifying the alternatives; and
(2) the Tribe and the Fort Belknap Indian Community shall
agree to the alternatives identified by the Secretary.
SEC. 5. ST. MARY RIVER WATER RIGHT.
(a) In General.--Pursuant to article IV.D.4 of the Compact, the
Secretary, acting through the Commissioner of Reclamation, shall carry
out the activities authorized by this section relating to the St. Mary
River water right.
(b) Water Delivery Contract.--
(1) In general.--Not later than 180 days after the
enforceability date, the Secretary shall enter into a water
delivery contract with the Tribe for the delivery of 5,000
acre-feet per year of the St. Mary River water right through
Milk River Project facilities to the Tribe or another entity
specified by the Tribe.
(2) Terms and conditions.--The contract under paragraph (1)
shall establish the terms and conditions for the water
deliveries described in paragraph (1) in accordance with the
Compact and this Act.
(3) Requirements.--The water delivery contract under
paragraph (1) shall include provisions requiring that--
(A) the contract shall be without limit as to term;
(B) the Tribe, and not the United States, shall
collect, and shall be entitled to, all consideration
due to the Tribe under any lease, contract, or
agreement entered into by the Tribe pursuant to
subsection (e);
(C) the United States shall have no obligation to
monitor, administer, or account for--
(i) any funds received by the Tribe as
consideration under any lease, contract, or
agreement entered into by the Tribe pursuant to
subsection (e); or
(ii) the expenditure of such funds;
(D) if water deliveries under the contract are
interrupted for an extended period of time because of
damage to, or a reduction in the capacity of, St. Mary
Unit facilities, the rights of the Tribe shall be
treated the same as the rights of other contractors
receiving water deliveries through the Milk River
Project with respect to the water delivered under this
section;
(E) the Tribe shall not be required to pay
operation, maintenance, or replacement costs for the
water delivered under this section;
(F) deliveries of water under this section shall be
made at such times at which, and to such places to
which, the Bureau of Reclamation can deliver water
without additional cost to the Bureau; and
(G)(i) the 5,000 acre-feet per year of water
delivered under this section shall not be subject to
shortage sharing or reduction; and
(ii) notwithstanding article IV.D.4 of the Compact,
any reduction in the Milk River Project water supply
caused by the delivery of water under this section
shall not constitute injury to Milk River Project water
users.
(c) Additional Water.--
(1) In general.--If the Secretary determines that there is
available St. Mary water, the Secretary shall enter into a
contract with the Tribe for the delivery of the available St.
Mary water subject to the requirements described in subsection
(b)(3) and this subsection.
(2) Rehabilitation.--Additional water made available
through any rehabilitation of the St. Mary Unit shall be
considered to be available St. Mary water for purposes of this
Act and the Compact.
(3) Enlargement.--Additional water made available through
any enlargement of the St. Mary Canal--
(A) shall not be considered to be a part of the
Milk River Project water right; and
(B) shall be made available to the Tribe as part of
the St. Mary River water right.
(d) Trust Fund Payments.--In consideration for the deferral of the
delivery of the quantity in excess of the 5,000 acre-feet per year of
water specified in subsection (b)(1), the United States shall pay to
the Tribe $27,800,000, which shall be invested and managed in
accordance with section 17(d).
(e) Subcontracts.--
(1) In general.--The Tribe may enter into any subcontract
for the delivery of water under this section to a third party,
in accordance with section 16.
(2) Compliance with other law.--A subcontract described in
paragraph (1) shall comply with the Compact, this Act, and any
other applicable law.
(3) No liability.--The Secretary shall not be liable to any
party, including the Tribe, for any term of, or any loss or
other detriment resulting from, a lease, contract, or other
agreement entered into pursuant to this subsection.
SEC. 6. BUREAU OF RECLAMATION ACTIVITIES TO IMPROVE WATER MANAGEMENT.
(a) Milk River Project Purposes.--
(1) In general.--Subject to paragraphs (2) and (3), the
purposes of the Milk River Project shall include--
(A) irrigation;
(B) flood control;
(C) the protection of fish and wildlife;
(D) recreation;
(E) the provision of municipal, rural, and
industrial water supply; and
(F) hydroelectric power generation.
(2) Limitation.--
(A) In general.--Except as provided in subparagraph
(B), the Secretary shall not increase any water use by
the Milk River Project as a result of the purposes
described in paragraph (1) beyond the quantity of water
use authorized by valid contracts in effect on the date
of enactment of this Act, until the St. Mary River
water right is fulfilled.
(B) Exception.--Subparagraph (A) shall not apply to
any contract entered into by the Secretary and the
Tribe under subsection (b) or (c) of section 5.
(3) Beneficial use by tribe.--In addition to the purposes
described in paragraph (1), use of Milk River Project
facilities to transport water for the Tribe pursuant to
subsections (b), (c), and (e) of section 5, together with any
use by the Tribe of such water in accordance with the tribal
water code--
(A) shall be considered to be an authorized purpose
of the Milk River Project; and
(B) shall not change the priority date of any
tribal water right.
(b) St. Mary River Feasibility Study.--
(1) In general.--Subject to paragraph (2), the Secretary,
acting through the Commissioner of Reclamation, in cooperation
with the Tribe and the State, shall conduct a study--
(A) to evaluate the feasibility of alternatives for
the rehabilitation of the St. Mary Unit;
(B) to identify alternatives to provide additional
St. Mary River water and Milk River water to the Tribe;
(C) to evaluate the feasibility of the development
of increased storage in Fresno Reservoir;
(D) to establish a cost allocation based on the
purposes described in this section; and
(E) to develop a plan for the management and
development of water supplies in the St. Mary River
basin and the Milk River basin.
(2) Consultation.--Before conducting the study under this
subsection, and regularly during the course of the study, the
Secretary shall consult with the Tribe, the State, and the Milk
River Project users concerning the identification of
alternatives to make additional water available to the Tribe in
fulfillment of the St. Mary River water right and the Milk
River water right for delivery through the St. Mary Unit or
from direct flow.
(3) Submission to congress.--Not later than 3 years after
the date on which funds are made available to carry out this
Act, the Secretary shall submit to the Committee on Energy and
Natural Resources of the Senate and the Committee on Natural
Resources of the House of Representatives a report describing
the results of the study under this subsection.
(4) Costs nonreimbursable.--The cost of the study under
this subsection shall not be--
(A) considered to be a project cost; or
(B) reimbursable in accordance with the Federal
reclamation laws.
(c) Consultation With Tribe.--Not later than 1 year after the date
of enactment of this Act, and not less frequently than annually
thereafter, the Commissioner of Reclamation shall consult with the
Tribe regarding the management of the St. Mary Unit by the Bureau of
Reclamation.
(d) Swift Current Creek Bank Stabilization.--
(1) In general.--As soon as practicable after the date of
enactment of this Act, but not later than 5 years after the
enforceability date, the Secretary, acting through the
Commissioner of Reclamation, shall carry out appropriate
activities to implement the Swift Current Creek Bank
stabilization project.
(2) Scope.--The scope of the activities conducted under
this subsection shall be as generally described in the document
entitled ``Boulder/Swiftcurrent Creek Stabilization Project,
Phase II Investigations Report'', prepared by DOWL HKM, and
dated January 2012 (as updated or amended by the phase III
report).
(e) Milk River Project Rights-of-Way and Easements.--As soon as
practicable after the date of enactment of this Act, but not later than
the enforceability date, the Secretary shall offer to enter into an
agreement with the Tribe to establish a process to resolve any issues
associated with the location and extent of the Federal rights-of-way,
easements, and other property interests in and to the Milk River
Project that are located on land of the Tribe.
(f) Funding.--The total amount of obligations incurred by the
Secretary in carrying out this section shall not exceed $25,200,000,
including--
(1) $1,700,000 for a right-of-way survey;
(2) $3,800,000 for the St. Mary River feasibility study
under subsection (b); and
(3) $19,700,000 for the Swift Current Creek Bank
stabilization project under subsection (d).
SEC. 7. ST. MARY CANAL HYDROELECTRIC POWER GENERATION.
(a) In General.--The Tribe shall have the exclusive right to
develop and market hydroelectric power from St. Mary Unit facilities.
(b) Bureau of Reclamation Cooperation.--The Commissioner of
Reclamation shall cooperate with the Tribe in the development of any
hydroelectric power generation project under this section.
(c) Agreement.--Before construction of a hydroelectric power
generation project under this section, the Tribe shall enter into an
agreement with the Commissioner of Reclamation that includes provisions
requiring that--
(1) the design, construction, and operation of the project
shall be consistent with the Bureau of Reclamation guidelines
and methods for hydroelectric power development at Bureau
facilities, as appropriate;
(2) the hydroelectric power generation project shall be
compatible with the operations of the Milk River Project,
including agreements--
(A) regarding operating criteria and emergency
procedures; and
(B) under which any modification proposed by the
Tribe to a facility owned by the Bureau of Reclamation
shall be subject to review and approval by the
Secretary, acting through the Commissioner of
Reclamation;
(3) the Tribe shall receive credit for any cost savings
resulting from an activity for rehabilitation of the St. Mary
Canal if the Tribe constructs a hydroelectric facility in
conjunction with the rehabilitation activity; and
(4) beginning on the date that is 10 years after the date
on which the Tribe begins marketing hydroelectric power
generated from the St. Mary Unit, the Tribe shall make annual
payments for operation, maintenance, and replacement costs
attributable to the direct use of any facilities by the Tribe
for hydroelectric power generation in amounts determined in
accordance with the guidelines and methods of the Bureau of
Reclamation for assessing operation, maintenance, and
replacement charges.
(d) Use of Hydroelectric Power by Tribe.--Any hydroelectric power
generated in accordance with this section shall be used or marketed by
the Tribe.
(e) Revenues.--The Tribe shall collect and retain any revenues from
the sale of hydroelectric power generated by a project under this
section.
(f) Liability of United States.--The United States shall have no
obligation to monitor, administer, or account for--
(1) any revenues received by the Tribe under this section;
or
(2) the expenditure of such revenues.
SEC. 8. STORAGE ALLOCATION FROM LAKE ELWELL.
(a) Storage Allocation to Tribe.--The Secretary shall allocate to
the Tribe 56,000 acre-feet per year of water stored in Lake Elwell for
use by the Tribe for any beneficial purpose on or off the Reservation,
under a water right held by the United States and managed by the Bureau
of Reclamation, as measured at the outlet works of Tiber Dam or through
direct pumping from Lake Elwell.
(b) Treatment.--
(1) In general.--The allocation to the Tribe under
subsection (a) shall be considered to be part of the tribal
water right.
(2) Priority date.--The priority date of the allocation to
the Tribe under subsection (a) shall be the priority date of
the Lake Elwell water right held by the Bureau of Reclamation.
(3) Administration.--
(A) In general.--The Tribe shall administer the
water allocated under subsection (a) in accordance with
the Compact and this Act.
(B) Temporary transfer.--In accordance with
subsection (d), the Tribe may temporarily transfer by
service contract, lease, exchange, or other agreement
the water allocated under subsection (a) off the
Reservation, subject to the approval of the Secretary
and the requirements of the Compact.
(c) Allocation Agreement.--
(1) In general.--As a condition of receiving an allocation
under this section, the Tribe 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) Inclusions.--The agreement under paragraph (1) shall
include provisions that--
(A) the agreement shall be without limit as to
term;
(B) the Tribe, and not the United States, shall be
entitled to all consideration due to the Tribe under
any lease, contract, or agreement entered into by the
Tribe pursuant to subsection (d);
(C) the United States shall have no obligation to
monitor, administer, or account for--
(i) any funds received by the Tribe as
consideration under any lease, contract, or
agreement entered into by the Tribe pursuant to
subsection (d); or
(ii) the expenditure of such funds;
(D) if the capacity or function of Lake Elwell
facilities are significantly reduced, or are
anticipated to be significantly reduced, for an
extended period of time, the Tribe shall have the same
storage rights as other storage contractors with
respect to the allocation under this section;
(E) the costs associated with the construction of
the storage facilities at Tiber Dam allocable to the
Tribe shall be--
(i) nonreimbursable; and
(ii) excluded from any repayment obligation
of the Tribe;
(F) no water service capital charge shall be due or
payable for any water allocated to the Tribe pursuant
to this section or the allocation agreement, regardless
of whether that water is delivered for use by the Tribe
or under a lease, contract, or by agreement entered
into by the Tribe pursuant to subsection (b)(3)(B);
(G) the Tribe shall not be required to make
payments to the United States for any water allocated
to the Tribe under this Act or the allocation
agreement, except for each acre-foot of stored water
leased or sold for industrial purposes as described in
subparagraph (H); and
(H) for each acre-foot of stored water leased or
sold by the Tribe for industrial purposes--
(i) the Tribe shall pay annually to the
United States an amount necessary to cover the
proportional share of the annual operation,
maintenance, and replacement costs allocable to
the quantity of water leased or sold by the
Tribe for industrial purposes; and
(ii) the annual payments of the Tribe shall
be reviewed and adjusted, as appropriate, to
reflect the actual operation, maintenance, and
replacement costs for Tiber Dam.
(d) Agreements by Tribe.--The Tribe may use, lease, contract,
exchange, or enter into other agreements for use of the water allocated
to the Tribe under subsection (a) if--
(1) the use of water that is the subject of such an
agreement occurs within the Missouri River basin; and
(2) the agreement does not permanently alienate any portion
of the water allocated to the Tribe under subsection (a).
(e) Effective Date.--The allocation under subsection (a) takes
effect on the enforceability date.
(f) Prohibition on Increase.--The allocation under subsection (a)
shall not be increased by any year-to-year carryover storage.
(g) Development and Delivery Costs.--The United States shall not be
required to pay the cost of developing or delivering to the Reservation
any water allocated under this section.
SEC. 9. BLACKFEET IRRIGATION PROJECT.
(a) In General.--Notwithstanding any other provision of law, and
without altering applicable law (including regulations) under which the
Bureau of Indian Affairs collects assessments and carries out Blackfeet
Irrigation Project OM&R (other than the maintenance and improvements
carried out under this section), the Secretary, acting through the
Commissioner of Reclamation, shall carry out the following
responsibilities of the United States relating to the Blackfeet
Irrigation Project:
(1) Deferred maintenance.
(2) Dam safety improvements for Four Horns Dam.
(b) Lead Agency.--The Bureau of Reclamation shall serve as the lead
agency with respect to any activities under this section.
(c) Scope.--The scope of the deferred maintenance activities and
Four Horns Dam safety improvements shall be as generally described in
the document entitled ``Engineering Evaluation and Condition
Assessment, Blackfeet Irrigation Project'', prepared by DOWL HKM, and
dated August 2007, subject to the condition that, before commencing
construction activities, the Secretary shall--
(1) review the design of the proposed rehabilitation or
improvement; and
(2) perform value engineering analyses.
(d) Funding.--The total amount of obligations incurred by the
Secretary in carrying out this section shall not exceed $37,900,000.
SEC. 10. BIRCH CREEK MITIGATION PROJECT.
(a) In General.--The Secretary, acting through the Commissioner of
Reclamation, shall carry out activities to provide mitigation water for
Birch Creek water users from Four Horns Reservoir, in accordance with
the Birch Creek Agreement.
(b) Lead Agency.--The Bureau of Reclamation shall serve as the lead
agency with respect to any activities under this section.
(c) Scope.--
(1) In general.--The scope of the rehabilitation and
improvements shall be as generally described in the document
entitled ``Four Horns Feeder Canal Rehabilitation with
Export'', prepared by DOWL HKM, and dated May 31, 2012, subject
to the condition that, before commencing construction
activities, the Secretary shall--
(A) review the design of the proposed
rehabilitation or improvement; and
(B) perform value engineering analyses.
(2) Inclusions.--The activities carried out by the
Secretary under this section shall include--
(A) the rehabilitation or improvement of the Four
Horns feeder canal system to a capacity of not less
than 360 cubic feet per second;
(B) the rehabilitation or improvement of the outlet
works of Four Horns Dam and Reservoir to deliver 15,000
acre-feet of water per year, in accordance with
subparagraph (C); and
(C) construction of facilities to deliver 15,000
acre-feet of water per year from Four Horns Dam and
Reservoir to a point on Birch Creek to be designated by
the Tribe and the State for delivery of water to the
water delivery system of the Pondera County Canal and
Reservoir Company Project on Birch Creek, in accordance
with the Birch Creek Agreement.
(3) Costs.--The costs to construct facilities under this
subsection--
(A) shall not be paid by the United States; and
(B) shall be nonreimbursable.
(4) Negotiation with tribe.--On the basis of the review
described in paragraph (1)(A), the Secretary shall negotiate
with the Tribe appropriate changes to the final design of any
activity under this subsection to ensure that the final design
meets applicable industry standards.
(d) Funding.--No part of the project under this section shall be
commenced until the State has appropriated and made available
$34,000,000 to carry out this section.
SEC. 11. BIRCH CREEK MITIGATION FUND.
(a) Establishment.--There is established in the Treasury of the
United States a fund, to be known as the ``Birch Creek Mitigation
Fund'' (referred to in this section as the ``Fund''), to be used to
mitigate the impacts of development of the tribal water right described
in article III.C.1. of the Compact on the Birch Creek water supplies of
the Pondera County Canal and Reservoir Company Project.
(b) Management.--The Secretary, acting through the Commissioner of
Reclamation, shall manage the Fund in accordance with this section.
(c) Disbursement of Fund.--Amounts from the Fund may not be
disbursed until the expiration of the Birch Creek Agreement.
(d) Authorization of Appropriations.--There are authorized to be
appropriated such sums as are necessary to carry out this section.
SEC. 12. DESIGN AND CONSTRUCTION OF MR&I SYSTEM.
(a) In General.--The Secretary, acting through the Commissioner of
Reclamation, shall plan, design, and construct the MR&I System in
accordance with 1 or more agreements between the Secretary and the
Tribe.
(b) Lead Agency.--The Bureau of Reclamation shall serve as the lead
agency with respect to any activity to design and construct the MR&I
System.
(c) Scope.--
(1) In general.--The scope of the design and construction
under this section shall be as generally described in the
document entitled ``Blackfeet Regional Water System Report'',
prepared by DOWL HKM, and dated June 2010, and updated in a
memorandum entitled ``Blackfeet Regional Water System Potential
Cost Modifications'', prepared by DOWL HKM, and dated November
3, 2011, subject to the condition that, before commencing final
design and construction activities, the Secretary shall--
(A) review the design of the proposed MR&I System;
and
(B) perform value engineering analyses and
appropriate Federal compliance activities.
(2) Negotiation with tribe.--On the basis of the review
described in paragraph (1)(A), the Secretary shall negotiate
with the Tribe appropriate changes to the final design--
(A) to ensure that the final design meets
applicable industry standards; and
(B) to improve the cost-effectiveness of the
delivery of MR&I System water.
(d) Nonreimbursability of Costs.--All costs incurred by the
Secretary in carrying out this section shall be nonreimbursable.
(e) Funding.--The total amount of funding to carry out this section
shall not exceed $76,200,000.
(f) Non-Federal Contribution.--
(1) In general.--Prior to completion of the final design of
the MR&I System required by subsection (c), the Secretary shall
consult with the Tribe, the State, and other affected non-
Federal parties to discuss the practicability of receiving non-
Federal contributions for the cost of the MR&I System.
(2) Negotiations.--If, based on the extent to which non-
Federal parties are expected to use the MR&I System, a non-
Federal contribution to the MR&I System is determined to be
appropriate under paragraph (1), the Secretary shall initiate
negotiations for an agreement regarding the means by which such
contributions shall be provided.
SEC. 13. BLACKFEET WATER, STORAGE, AND DEVELOPMENT PROJECTS.
(a) In General.--The Secretary, acting through the Commissioner of
Reclamation, shall carry out such activities as are necessary to
construct the Blackfeet water, storage, and development projects, in
accordance with an agreement to be negotiated between the Secretary and
the Tribe.
(b) Lead Agency.--The Bureau of Reclamation shall serve as the lead
agency with respect to any activity to rehabilitate or improve the
water diversion or delivery features of the Blackfeet water, storage,
and development projects.
(c) Scope.--
(1) In general.--The scope of the construction under this
section shall be as generally described in the document
entitled ``Blackfeet Water Storage, Development, and Projects
Report'', prepared by DOWL HKM, and dated July 16, 2012, and
any modifications or revisions to the report, subject to the
condition that, before commencing construction activities, the
Secretary shall--
(A) review the design of the proposed
rehabilitation or improvement; and
(B) perform value engineering analyses.
(2) Negotiation with tribe.--On the basis of the review
described in paragraph (1)(A), the Secretary shall negotiate
with the Tribe appropriate changes to the projects, including
final design--
(A) to ensure that the final design meets
applicable industry standards;
(B) to improve the use, management, and
administration of tribal water for irrigation and other
purposes; and
(C) to take into consideration the equitable
distribution of water to allottees.
(d) Nonreimbursability of Costs.--All costs incurred by the
Secretary in carrying out this section shall be nonreimbursable.
(e) Funding.--The total amount of obligations incurred by the
Secretary in carrying out this section shall not exceed $178,300,000.
SEC. 14. TRIBAL IMPLEMENTATION AGREEMENTS. --
(a) Applicability of ISDEAA.--At the request of the Tribe and in
accordance with the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450 et seq.), the Secretary shall enter into 1 or more
agreements with the Tribe to carry out sections 9, 10, 12, and 13.
(b) Administration.--The Commissioner of Reclamation and the Tribe
shall negotiate the cost of any oversight activity carried out by the
Bureau of Reclamation under any agreement entered into under subsection
(a), subject to the condition that the total cost for the oversight
shall not exceed 4 percent of the total project costs for each project.
(c) Acquisition of Land.--
(1) Tribal easements and rights-of-way.--On request of the
Secretary, and in partial consideration for the funding
provided under section 17(k), the Tribe shall consent to the
grant of such easements and rights-of-way over tribal land as
are necessary for the construction of the projects authorized
by sections 9, 10, 12, and 13, at no cost to the United States.
(2) Land acquired by united states.--Land acquired by the
United States or the Tribe in connection with the construction
of the projects authorized by sections 9, 10, 12, and 13 shall
be held in trust by the United States on behalf of the Tribe as
part of the Reservation.
(d) Transfer of Title.--
(1) In general.--Notwithstanding any other provision of
law, the Secretary may transfer to the Tribe, at no cost, any
title held by the United States in and to each facility, asset,
or other property of each of the projects authorized under
sections 9, 10, 12, and 13 in accordance with paragraph (2).
(2) Conveyance to tribe.--The Secretary shall convey to the
Tribe title in and to the projects authorized by sections 9,
10, 12, and 13 not later than 30 days after the date on which
the Secretary publishes in the Federal Register a statement of
findings that--
(A) the Tribe has passed a resolution requesting
that the Secretary transfer to the Tribe any title held
by the United States in and to the property or
facilities of the projects under section 9, 10, 11, or
12; and
(B) the Secretary has provided to the Tribe--
(i) a report regarding the condition of the
project; and
(ii) technical assistance regarding the
operation and maintenance of the projects,
including operation and maintenance training.
(3) Ownership.--On transfer of title under paragraph (1),
the projects or any portion of the projects transferred under
paragraph (2) shall be considered to be owned, operated, and
managed by the Tribe.
(e) Authority of Tribe.--On transfer of title to the project or any
portion of a project or facility to the Tribe in accordance with
subsection (d), or on assumption of the operation of the project by the
Tribe, the Tribe may collect--
(1) OM&R costs; and
(2) any other costs relating to the operation of the
project, as appropriate.
(f) Operation and Maintenance of Blackfeet Irrigation Project.--On
transfer of title to the Blackfeet Irrigation Project pursuant to
subsection (d), the Tribe shall promulgate criteria and procedures,
subject to the approval of the Secretary, under which the Tribe shall
operate and maintain the Blackfeet Irrigation Project, including--
(1) a due process system for the consideration and
determination of any request by a water user for an allocation
of water that provides protection not less stringent than the
protection available under Federal law, including a process
for--
(A) appeal and adjudication of denied or disputed
distributions of water; and
(B) resolution of contested administrative
decisions; and
(2) a system for establishing operation and maintenance
assessment rates, including a process for--
(A) appeal and adjudication of operation and
maintenance assessment rates; and
(B) resolution of contested administrative
decisions.
(g) Liability.--
(1) In general.--Effective on the date of the transfer
authorized by subsection (d), the United States shall not be
liable for damages of any kind arising out of any act,
omission, or occurrence relating to the land, buildings, or
facilities transferred under this subsection, other than
damages caused by acts of negligence committed by the United
States (or an employee or agent of the United States) before
the date of transfer.
(2) Tort claims.--Nothing in this section increases the
liability of the United States beyond the liability provided in
chapter 171 of title 28, United States Code (commonly known as
the ``Federal Tort Claims Act'').
(3) OM&R obligation of federal government after transfer.--
The Federal Government shall have no obligation to pay for the
operation, maintenance, or replacement costs of the projects
authorized by sections 9, 10, 12, and 13 beginning on the later
of--
(A) the date on which title to any project
authorized by sections 9, 10, 12, and 13 is transferred
to the Tribe; and
(B) the date on which the amounts required to be
deposited in the OM&R Account pursuant to section
17(k)(2) have been deposited in that account.
(h) Alienation and Taxation.--Transfer of title to the Tribe
pursuant to subsection (d) does not waive or alter any applicable
Federal law prohibiting alienation or taxation of--
(1) the project; or
(2) the underlying Reservation land.
SEC. 15. RATIFICATION OF COMPACT.
(a) Ratification.--
(1) In general.--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) Amendments.--If an amendment is executed in accordance
with this Act to make the Compact consistent with this Act, the
amendment is authorized, ratified, and confirmed.
(b) Execution.--
(1) In general.--To the extent that the Compact does not
conflict with this Act, the Secretary shall execute the
Compact, including all exhibits to, or parts of, the Compact
requiring the signature of the Secretary.
(2) Modifications.--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 provision of
Federal law.
(c) Environmental Compliance.--
(1) In general.--In implementing the Compact and this Act,
the Secretary shall comply with all applicable provisions of--
(A) the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.);
(B) the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.); and
(C) all other applicable environmental law and
regulations.
(2) Effect of execution.--
(A) In general.--An activity carried out by the
Secretary to execute the Compact pursuant to 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) Compliance.--The Secretary shall carry out all
Federal compliance activities necessary to implement
the Compact.
SEC. 16. TRIBAL WATER RIGHTS.
(a) Confirmation of Tribal Water Rights.--
(1) In general.--The tribal water rights are ratified,
confirmed, and declared to be valid.
(2) Use.--Use of the tribal water rights shall be subject
to the terms and conditions established by the Compact and this
Act.
(b) Holding in Trust.--The tribal water rights--
(1) shall be held in trust by the United States for the use
and benefit of the Tribe in accordance with this section; and
(2) shall not be subject to forfeiture or abandonment.
(c) Intent of Congress.--It is the intent of Congress to provide to
each allottee benefits that are equivalent to, or exceed, the benefits
possessed by allottees 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 rights;
and
(4) the applicability of section 7 of the Act of February
8, 1887 (25 U.S.C. 381), and this Act to protect the interests
of allottees.
(d) Allottees.--
(1) Applicability of act of february 8, 1887.--The
provisions of section 7 of the Act of February 8, 1887 (25
U.S.C. 381), relating to the use of water for irrigation
purposes shall apply to the tribal water rights.
(2) Entitlement to water.--Any entitlement to water of an
allottee under Federal law shall be satisfied from the tribal
water rights.
(3) Allocations.--Pursuant to the Act of February 8, 1887
(24 Stat. 390, chapter 119), allottees shall be entitled to a
just and equitable allocation of water for irrigation purposes.
(4) Claims.--
(A) Exhaustion of remedies.--Before asserting any
claim against the United States under section 7 of the
Act of February 8, 1887 (25 U.S.C. 381), or any other
applicable law, an allottee shall exhaust remedies
available under the tribal water code or other
applicable tribal law.
(B) Action for relief.--After the exhaustion of all
remedies available under the tribal water code or other
applicable tribal law, an allottee may assert a claim
against the United States under section 7 of the Act of
February 8, 1887 (25 U.S.C. 381), or other applicable
law.
(5) Authority.--The Secretary shall have the authority to
protect the rights of allottees in accordance with this
section.
(e) Authority of Tribe.--
(1) In general.--The Tribe shall have the authority to
allocate, distribute, and transfer the tribal water right in
accordance with--
(A) the Compact; and
(B) the tribal water code.
(2) Land leases by allottees.--An allottee may lease any
interest in land held by the allottee, together with any
allocation of water under subsection (d)(3), subject to the
condition that nothing in this section affects the authority of
the Tribe to require a water permit or to otherwise manage use
of the water under the tribal water code.
(f) Tribal Water Code.--
(1) In general.--In accordance with article IV.C.1. of the
Compact, the Tribe shall--
(A) amend the tribal water code in accordance with
the Compact and this Act; and
(B) ensure that the amendments provide for--
(i) the management, regulation, and
governance of all uses of the tribal water
rights in accordance with the Compact and this
Act, including all uses by allottees (or any
successor in interest to an allottee); and
(ii) establishment by the Tribe of
conditions, permit requirements, and other
limitations relating to the storage, recovery,
and use of the tribal water rights in
accordance with the Compact and this Act.
(2) Inclusions.--Subject to the approval of the Secretary,
the tribal water code shall provide that--
(A) tribal allocations of water to allottees shall
be satisfied with water from the tribal water rights;
(B) charges for delivery of water for irrigation
purposes for allottees shall be assessed on a just and
equitable basis;
(C) there is a process by which an allottee may
request that the Tribe provide water for irrigation use
in accordance with this Act, including the provision of
water under any allottee lease;
(D) there is a due process system for the
consideration and determination by the Tribe of any
request by an allottee (or a successor in interest to
an allottee) for an allocation of water for irrigation
purposes on allotted land, including a process for--
(i) appeal and adjudication of any denied
or disputed distribution of water; and
(ii) resolution of any contested
administrative decision; and
(E) any allottee with a claim relating to the
enforcement of rights of the allottee under the tribal
water code, or to the quantity of water allocated to
land of the allottee, shall exhaust all remedies
available to the allottee under tribal law and the
tribal water code before initiating an action against
the United States or petitioning the Secretary pursuant
to subsection (d)(4)(B).
(3) Interim provisions.--
(A) In general.--Subject to the requirements of
section 4 and until the date on which the amendments to
the tribal water code are approved by the Secretary,
the tribal water rights shall be administered by the
Tribe pursuant to ordinance numbered 62 of the tribal
water code, to the extent that the ordinance is not
inconsistent and does not conflict with the Compact or
this Act.
(B) Conflicts.--In the event of an inconsistency or
conflict described in subparagraph (A), the provisions
of the Compact and this Act shall control.
(4) Approval by secretary.--
(A) In general.--The tribal water code, and any
amendment to the tribal water code, shall not be valid
unless the tribal water code or amendment is approved
by the Secretary.
(B) Approval period.--The Secretary shall approve
or disapprove the tribal water code or an amendment to
the tribal water code by not later than 180 days after
the date on which the tribal water code or amendment is
submitted to the Secretary.
(g) Effect.--Except as otherwise expressly provided in this
section, nothing in this Act--
(1) authorizes any action by an allottee against any
individual or entity, or against the Tribe, under Federal,
State, tribal, or local law; or
(2) alters or affects the status of any action pursuant to
section 1491(a) of title 28, United States Code.
SEC. 17. BLACKFEET SETTLEMENT TRUST FUND.
(a) Establishment.--There is established in the Treasury of the
United States a trust fund, to be known as the ``Blackfeet Settlement
Trust Fund'' (referred to in this section as the ``Trust Fund''),
consisting of the amounts deposited in the Fund under subsection (c),
together with any interest earned on those amounts, to be managed,
invested, and distributed by the Secretary for the benefit of the
Tribe, to remain available until expended.
(b) Accounts.--The Secretary shall establish in the Trust Fund the
following accounts:
(1) The Administration and Energy Account.
(2) The OM&R Account.
(3) The Water Deferral Account.
(4) The MR&I System Account.
(5) The Blackfeet Water, Storage, and Development Projects
Account.
(6) The Blackfeet Irrigation Project Deferred Maintenance
and Four Horns Dam Safety Improvements Account.
(7) The St. Mary/Milk Water Management and Activities
Account.
(c) Transfers.--The Secretary shall transfer to the Trust Fund--
(1) to the Administration and Energy Account, the amount
made available pursuant to subsection (k)(1);
(2) to the OM&R Account, the amount made available pursuant
to subsection (k)(2);
(3) to the Water Deferral Account, the amount made
available pursuant to subsection (k)(3);
(4) to the MR&I System Account, the amount made available
pursuant to subsection (k)(4);
(5) to the Blackfeet Water, Storage, and Development
Projects Account, the amount made available pursuant to
subsection (k)(5);
(6) to the Blackfeet Irrigation Project Deferred
Maintenance and Four Horns Dam Safety Improvements Account, the
amount made available pursuant to subsection (k)(6); and
(7) to the St. Mary/Milk Water Management and Activities
Account, the amount made available pursuant to subsection
(k)(7).
(d) Management.--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 first section of the Act of June 24, 1938 (25
U.S.C. 162a);
(2) the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4001 et seq.); and
(3) this section.
(e) Availability of Amounts.--Amounts appropriated to, and
deposited in, the Trust Fund, including any investment earnings, shall
be made available to the Tribe beginning on the enforceability date.
(f) Withdrawals by Tribe.--
(1) In general.--The Tribe may withdraw any portion of the
funds in the accounts established under subsection (b) on
approval by the Secretary of a tribal management plan submitted
by the Tribe in accordance with the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4001 et seq.).
(2) Requirements.--
(A) In general.--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 Tribe shall spend all amounts withdrawn from the
Trust Fund in accordance with this Act.
(B) Enforcement.--The Secretary may carry out such
judicial or administrative actions as the Secretary
determines to be necessary to enforce the tribal
management plan to ensure that amounts withdrawn by the
Tribe from the Trust Fund are used in accordance with
this Act.
(g) Expenditure Plan.--
(1) In general.--The Tribe shall submit to the Secretary
for approval an expenditure plan for any portion of the Trust
Fund that the Tribe elects to withdraw under this subsection.
(2) Inclusions.--An expenditure plan under paragraph (1)--
(A) 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 Tribe, in
accordance with subsection (h); and
(B) may include a description of how any remaining
amounts may be used.
(3) Approval.--On receipt of an expenditure plan under
paragraph (1), the Secretary shall approve the plan, if the
Secretary determines that the plan is consistent with this Act.
(h) Uses.--Amounts from the Trust Fund shall be used by the Tribe
for the following purposes:
(1) The Administration and Energy Account shall be used for
administration of the tribal water right and energy development
projects under the Compact.
(2) The OM&R Account shall be used to assist the Tribe in
paying OM&R costs.
(3) The Water Deferral Account shall be distributed
pursuant to an approved expenditure plan as follows:
(A) The first $1,000,000 deposited in the account
shall be distributed to the Tribe annually as
compensation for the deferral of the St. Mary water
right.
(B) Any additional amounts deposited in the account
may be used by the Tribe to pay OM&R costs or such
other costs as are authorized by the Secretary.
(4) The MR&I System Account shall be used to carry out
section 12.
(5) The Blackfeet Water, Storage, and Development Projects
Account shall be used to carry out section 13.
(6) The Blackfeet Irrigation Project Deferred Maintenance
and Four Horns Dam Safety Improvements Account shall be used to
carry out section 9.
(7) The St. Mary/Milk Water Management and Activities
Account shall be used to carry out section 6.
(i) Liability.--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 Tribe under subsection (f).
(j) No Per Capita Distributions.--No portion of the Trust Fund
shall be distributed on a per capita basis to any member of the Tribe.
(k) Authorization of Appropriations.--Subject to subsection (l),
there is authorized to be appropriated to the Secretary--
(1) for deposit in the Administration and Energy Account,
$28,900,000;
(2) for deposit in the OM&R Account, $25,500,000;
(3) for deposit in the Water Deferral Account, $27,800,000;
(4) for deposit in the MR&I System Account, $76,200,000;
(5) for deposit in the Blackfeet Water, Storage, and
Development Projects Account, $178,300,000;
(6) for deposit in the Blackfeet Irrigation Project
Deferred Maintenance and Four Horns Dam Safety Improvements
Account, $37,900,000; and
(7) for deposit in the St. Mary/Milk Water Management and
Activities Account, $25,200,000.
(l) Cost Indexing.--All amounts made available pursuant to
subsection (k) shall be adjusted as necessary to reflect the changes
since April, 2010, in the construction costs indices applicable to the
construction, maintenance, rehabilitation, or improvement of the
projects and activities described in this Act.
SEC. 18. WATER RIGHTS IN LEWIS AND CLARK NATIONAL FOREST.
As part of the tribal water right, the Tribe shall hold the rights
to water in the Lewis and Clark National Forest, as described in the
document entitled ``More Definite Statement of Claims'', dated November
14, 1997, filed by the United States on behalf of the Tribe, in the
Montana Water Court in the case styled Matter of the Adjudication of
the Existing and Reserved Rights to the Use of Water, Both Surface and
Underground, of the Blackfeet Tribe of the Blackfeet Reservation Within
the State of Montana, Civil No. WC91-1.
SEC. 19. WAIVERS AND RELEASES OF CLAIMS.
(a) Waivers and Releases.--
(1) Claims by tribe and united states as trustee for
tribe.--Subject to the retention of rights described in
subsection (c), in consideration for recognition of the tribal
water rights and other benefits under the Compact and this Act,
the Tribe, on behalf of itself and the members of the Tribe
(but not tribal members in their capacities as allottees), and
the United States, acting as trustee for the Tribe and the
members of the Tribe (but not tribal members in their
capacities as allottees), shall execute a waiver and release of
all claims for water rights within the State that the Tribe, or
the United States acting as trustee for the Tribe, asserted or
could have asserted in any proceeding, including a State stream
adjudication, on or before the enforceability date, except to
the extent that such rights are recognized by this Act.
(2) Claims by united states as trustee for allottees.--
Subject to the retention of claims described in subsection (c),
in consideration for recognition of the tribal water rights and
other benefits under the Compact and this Act, the United
States, acting as trustee for the allottees, shall 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 such rights are
recognized by the Compact or this Act.
(3) Claims by tribe against united states.--Subject to the
retention of rights described in subsection (c), in
consideration for recognition of the tribal water rights and
other benefits under the Compact and this Act, the Tribe, on
behalf of itself and the members of the Tribe (but not tribal
members in their capacities as allottees), shall execute a
waiver and release of--
(A) all claims against the United States (including
the agencies and employees of the United States)
relating to claims for water rights within the State
that the United States, acting as trustee for the
Tribe, asserted or could have asserted in any
proceeding, including a State stream adjudication,
except to the extent that such rights are recognized as
a tribal water right;
(B) all claims against the United States (including
the agencies and employees of the United States)
relating to--
(i) damages, losses, or injuries 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 of, or taking
of water, and claims relating to failure to
protect, acquire, replace, or develop water,
water rights, or water infrastructure) within
the State that first accrued at any time on or
before the enforceability date; or
(ii) the failure to establish or provide a
municipal rural or industrial water delivery
system on the Reservation;
(C) all claims against the United States (including
the agencies and employees of the United States)
relating to the pending litigation of claims relating
to the water rights of the Tribe in the State;
(D) all claims against the United States (including
the agencies and employees of the United States)
relating to the negotiation, execution, or the adoption
of the Compact (including exhibits) and this Act;
(E) all claims against the United States (including
the agencies and employees of the United States) that
first accrued at any time on or before the
enforceability date arising from the taking or
acquisition of the land of the Tribe or resources for
the construction of the features of the St. Mary Unit;
(F) all claims against the United States (including
the agencies and employees of the United States) that
first accrued at any time on or before the
enforceability date relating to--
(i) the construction, operation, or
maintenance of the St. Mary Unit; or
(ii) on completion of the Swift Current
Creek Bank stabilization project, the
management of flows in Swift Current Creek,
including the diversion of Swift Current Creek
into Lower St. Mary's Lake;
(G) all claims against the United States (including
the agencies and employees of the United States) that
first accrued at any time on or before the
enforceability date relating to the construction,
operation, or management of Lower Two Medicine Dam and
Reservoir and Four Horns Dam and Reservoir; and
(H) all claims against the United States (including
the agencies and employees of the United States) that
first accrued at any time on or before the
enforceability date relating to the allocation of water
of the Milk River (including tributaries) or the St.
Mary River (including tributaries) between the United
States and Canada pursuant to the International
Boundary Waters Treaty of 1909 (36 Stat. 2448).
(b) Effectiveness of Waivers and Releases.--The waivers under
subsection (a) shall take effect on the enforceability date.
(c) Reservation of Rights and Retention of Claims.--Notwithstanding
the waivers and releases under this section, the Tribe, on behalf of
itself and the members of the Tribe, and the United States, acting as
trustee for the Tribe and allottees, retain--
(1) all claims for enforcement of the Compact, any final
decree, or this Act;
(2) all rights to use and protect water rights acquired
after the date of enactment of this Act;
(3) all claims relating to activities affecting the quality
of water, including any claims of the Tribe under--
(A) the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601
et seq.), including claims for damages to natural
resources;
(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.); and
(D) any regulations promulgated pursuant to an Act
described in subparagraph (A), (B), or (C);
(4) all claims relating to damages, losses, or injuries to
land or natural resources not due to loss of water or water
rights (including hunting, fishing, gathering, or cultural
rights);
(5) all rights, remedies, privileges, immunities, and
powers not specifically waived and released pursuant to this
Act or the Compact;
(6) all claims for rights retained under the agreement
dated September 19, 1895, and ratified on June 10, 1896 (29
Stat. 321, chapter 398), filed by the United States on behalf
of the Tribe in--
(A) Glacier National Park, as described in the
document entitled ``More Definite Statement of
Claims'', dated November 14, 1997; or
(B) the case styled Matter of the Adjudication of
the Existing and Reserved Rights to the Use of Water,
Both Surface and Underground, of the Blackfeet Tribe of
the Blackfeet Reservation Within the State of Montana,
Civil No. WC91-1;
(7) the water rights of the Tribe, whether adjudicated or
unadjudicated;
(8) the authority of the Tribe to use and protect such
water rights; and
(9) any claim for damages for loss of water resources
allegedly caused by a failure to establish, acquire, enforce,
or protect such water rights.
(d) Effect of Compact and Act.--Nothing in the Compact or this
Act--
(1) affects the ability of the United States 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.); and
(D) any regulations promulgated pursuant to an Act
described in subparagraph (A), (B), or (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 law relating to health,
safety, or the environment;
(B) to determine the duties of the United States or
other parties pursuant to such a Federal law; or
(C) to conduct judicial review of any Federal
agency action;
(4) waives any claim of a member of the Tribe in an
individual capacity that does not derive from a right of the
Tribe;
(5) revives any claim waived by the Tribe in the case
styled Blackfeet Tribe v. United States, No. 02-127L (Fed. Cl.
2012); or
(6) revives any claim released by an allottee or a member
of the Tribe in the settlement for the case styled Cobell v.
Salazar, No. 1:96CV01285-JR (D.D.C. 2012).
(e) Enforceability Date.--The enforceability date shall be 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 of competent
jurisdiction has approved the Compact as a consent decree, and
the approval is final;
(2) all amounts authorized to be appropriated under section
17(k) have been appropriated;
(3) the Tribe has executed the agreements with the
Secretary required by sections 5(b), 6(e), 8(c), and 14(a);
(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 Tribe under the Compact and this
Act;
(5)(A) the Tribe has ratified the Compact by submitting
this Act and the Compact to a vote by the tribal membership for
approval or disapproval; and
(B) the Tribal membership has voted to approve this Act and
the Compact by a majority of votes cast on the day of the vote,
as certified by the Secretary and the Tribe;
(6) the Secretary has fulfilled the requirements of section
8(a);
(7) the Tribe has enacted a tribal water code pursuant to
section 16(f);
(8) the waivers and releases described subsection (a) have
been executed by the Tribe and the Secretary; and
(9) the Secretary has fulfilled the requirements of section
15(b).
(f) Tolling of Claims.--
(1) In general.--Each applicable period of limitation and
time-based equitable defense relating to a claim described in
this section shall be tolled for the period beginning on the
date of enactment of this Act and ending on the date on which
the amounts made available to carry out this Act are
transferred to the Secretary.
(2) Effect of subsection.--Nothing in this subsection
revives any claim or tolls any period of limitation or time-
based equitable defense that expired before the date of
enactment of this Act.
(g) Expiration and Tolling.--If all appropriations authorized by
this Act have not been made available to the Secretary by January 15,
2018--
(1) the waivers and releases described in this section
shall expire and be of no further force or effect; and
(2) all statutes of limitations applicable to any claim
otherwise waived shall be tolled until January 15, 2018.
(h) Voiding of Waivers.--If the waivers pursuant to this section
are void under subsection (g)--
(1) the approval of the Compact under section 15 shall no
longer be effective;
(2) any unexpended Federal funds appropriated or made
available to carry out the activities authorized by this Act,
together with any interest earned on those funds, any water
rights or contracts to use water, and any title in and to other
property acquired or constructed with Federal funds
appropriated or made available to carry out the activities
authorized by this Act, shall be returned to the Federal
Government, unless otherwise agreed to by the Tribe and the
United States and approved by Congress; and
(3) except for Federal funds used to acquire or develop
property that is returned to the Federal Government under
paragraph (2), the United States shall be entitled to offset
any Federal funds appropriated or made available to carry out
the activities authorized by this Act that were expended or
withdrawn, together with any interest accrued, against any
claims against the United States relating to water rights in
the State asserted by the Tribe or in any future settlement of
the water rights of the Tribe.
SEC. 20. SATISFACTION OF CLAIMS.
(a) Tribal Claims.--The benefits realized by the Tribe under this
Act shall be in complete replacement of, complete substitution for, and
complete satisfaction of all claims of the Tribe against the United
States under paragraphs (1) and (3) of section 19(a).
(b) Allottee Claims.--The benefits realized by the allottees under
this Act shall be in complete replacement of, in complete substitution
for, and in complete satisfaction of--
(1) all claims waived and released under section 19; 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 19.
SEC. 21. MISCELLANEOUS PROVISIONS.
(a) Waiver of Sovereign Immunity.--Except as provided in
subsections (a) through (c) of section 208 of the Department of Justice
Appropriation Act, 1953 (43 U.S.C. 666), nothing in this Act waives the
sovereign immunity of the United States.
(b) Other Tribes Not Adversely Affected.--Nothing in this Act
quantifies or diminishes any land or water right, or any claim or
entitlement to land or water, of an Indian tribe, band, or community
other than the Tribe.
(c) Limitation on Claims for Reimbursement.--With respect to
Indian-owned land located within the Reservation--
(1) the United States shall not submit against such 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 such land shall be made regarding that
cost.
(d) Limitation on Liability of United States.--The United States
has no obligation--
(1) to monitor, administer, or account for, in any manner,
any funds provided to the Tribe by any party to the Compact; or
(2) to review or approve any expenditure of those funds.
(e) Effect on Current Law.--Nothing in this section affects any
provision of law (including regulations) in effect on the day before
the date of enactment of this Act with respect to preenforcement review
of any Federal environmental enforcement action.
(f) Effect on Reclamation Law.--The activities carried out by the
Commissioner of Reclamation under this Act shall not establish a
precedent or impact the authority provided under any other provision of
Federal reclamation law, 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).
(g) Irrigation Efficiency in Upper Birch Creek Drainage.--Any
activity carried out by the Tribe in the Upper Birch Creek Drainage (as
defined in article II.50 of the Compact) using funds made available to
carry out this Act shall achieve an irrigation efficiency of not less
than 50 percent.
(h) Birch Creek Agreement Approval.--The Birch Creek Agreement
entered into between the Tribe and the State on January 31, 2008
(including any amendments executed in accordance with this Act to make
the Agreement consistent with this Act), is approved to the extent that
the Birch Creek Agreement requires approval under section 2116 of the
Revised Statutes (25 U.S.C. 177).
SEC. 22. REPEAL ON FAILURE TO MEET ENFORCEABILITY DATE.
If the Secretary fails to publish a statement of findings under
section 19(e) by not later than January 15, 2018, or such alternative
later date as is agreed to by the Tribe and the Secretary, after
reasonable notice to the State, as applicable--
(1) this Act is repealed effective on the later of--
(A) January 15, 2018; and
(B) the day after such alternative later date as is
agreed to by the Tribe and the Secretary;
(2) any action taken by the Secretary and any contract or
agreement entered into pursuant to this Act shall be void;
(3) any amounts made available under section 17(k),
together with any interest on those amounts, shall immediately
revert to the general fund of the Treasury;
(4) any amounts made available under section 17(k) that
remain unexpended 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 Tribe against the United States
relating to water rights--
(A) any funds expended or withdrawn from the
amounts made available pursuant to this Act; and
(B) any funds made available to carry out the
activities authorized by this Act from other authorized
sources.
SEC. 23. ANTIDEFICIENCY.
The United States shall not be liable for any failure to carry out
any obligation or activity authorized by this Act (including any
obligation or activity under the Compact) if adequate appropriations
are not provided expressly by Congress to carry out the purposes of
this Act in--
(1) the Reclamation Water Settlements Fund established
under section 10501(a) of the Omnibus Public Land Management
Act of 2009 (43 U.S.C. 407(a)); or
(2) the Emergency Fund for Indian Safety and Health
established by section 601(a) of the Tom Lantos and Henry J.
Hyde United States Global Leadership Against HIV/AIDS,
Tuberculosis, and Malaria Reauthorization Act of 2008 (25
U.S.C. 443c(a)).
<all>
Introduced in Senate
Read twice and referred to the Committee on Indian Affairs.
Committee on Indian Affairs. Hearings held. Hearings printed: S.Hrg. 113-113.
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