S. 4104 — what changed

Establishment— The Secretary shall establish a trust fund account, to be known as the Hualapai Water Trust Fund Account, to be managed, invested, and distributed by the Secretary and to remain available until expended, withdrawn, or reverted to the general fund of the Treasury, consisting of the amounts deposited in the Hualapai Water Trust Fund Account under paragraph (2), together with any interest earned on those amounts, for the purposes of carrying out this Act.

Deposits— The Secretary shall deposit in the Hualapai Water Trust Fund Account the amounts made available pursuant to section 7(a)(1).

Management— On receipt and deposit of funds into the Hualapai Water Trust Fund Account, the Secretary shall manage, invest, and distribute all amounts in the Hualapai Water Trust Fund Account in a manner that is consistent with the investment authority of the Secretary under—

the first section of the Act of June 24, 1938 (25 U.S.C. 162a);

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

this subsection.

In general— Amounts appropriated to, and deposited in, the Hualapai Water Trust Fund Account, including any investment earnings, shall be made available to the Hualapai Tribe by the Secretary beginning on the Enforceability Date, subject to the requirements of this section.

Use— Notwithstanding subparagraph (A), amounts deposited in the Hualapai Water Trust Fund Account shall be available to the Hualapai Tribe on the date on which the amounts are deposited for environmental compliance, as provided in section 8.

In general— The Hualapai Tribe may withdraw any portion of the amounts in the Hualapai Water Trust Fund Account 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.).

Requirements— In addition to the requirements under the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.), the Tribal management plan under this subparagraph shall require that the Hualapai Tribe spend all amounts withdrawn from the Hualapai Water Trust Fund Account and any investment earnings accrued through the investments under the Tribal management plan in accordance with this Act.

Enforcement— The Secretary may carry out such judicial and administrative actions as the Secretary determines to be necessary to enforce the Tribal management plan under this subparagraph to ensure that amounts withdrawn by the Hualapai Tribe from the Hualapai Water Trust Fund Account under clause (i) are used in accordance with this Act.

In general— The Hualapai Tribe may submit to the Secretary a request to withdraw funds from the Hualapai Water Trust Fund Account pursuant to an approved expenditure plan.

Requirements— To be eligible to withdraw amounts under an expenditure plan under this subparagraph, the Hualapai Tribe shall submit to the Secretary an expenditure plan for any portion of the Hualapai Water Trust Fund Account that the Hualapai Tribe elects to withdraw pursuant to this subparagraph, subject to the condition that the amounts shall be used for the purposes described in this Act.

Inclusions— An expenditure plan under this subparagraph shall include a description of the manner and purpose for which the amounts proposed to be withdrawn from the Hualapai Water Trust Fund Account will be used by the Hualapai Tribe, in accordance with paragraph (7).

Approval— The Secretary shall approve an expenditure plan submitted under clause (ii) if the Secretary determines that the plan—

is reasonable; and

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

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

Uses— Amounts from the Hualapai Water Trust Fund Account shall be used by the Hualapai Tribe—

to plan, design, construct, and conduct related activities, including compliance with Federal environmental laws under section 8, the Hualapai Water Project, which shall be designed to divert, treat, and convey up to 3,414 AFY of water from the Colorado River in the lower basin in the State, including locations on or directly adjacent to the Hualapai Reservation, for municipal, commercial, and industrial uses on the Hualapai Reservation;

to perform OM&R on the Hualapai Water Project;

to construct facilities to transport electrical power to pump water for the Hualapai Water Project;

to construct, repair, and replace such infrastructure as may be necessary for groundwater wells on the Hualapai Reservation and to construct infrastructure for delivery and use of such groundwater on the Hualapai Reservation;

to acquire land, interests in land, and water rights outside the exterior boundaries of the Hualapai Reservation that are located in the Truxton Basin;

to reimburse the Hualapai Tribe for any—

planning, design, and engineering costs associated with the Hualapai Water Project that the Hualapai Tribe incurs using Tribal funds during the period—

beginning on the date of enactment of this Act; and

ending on the Enforceability Date; and

construction costs associated with the Hualapai Water Project that the Hualapai Tribe incurs using Tribal funds during the period—

beginning on the date on which the Secretary issues a record of decision; and

ending on the Enforceability Date; and

to make contributions to the Economic Development Fund described in section 8.1 of the Amended and Restated Hualapai Tribe Bill Williams River Water Rights Settlement Agreement for the purpose of purchasing additional Colorado River water entitlements and appurtenant land.

Liability— The Secretary and the Secretary of the Treasury shall not be liable for the expenditure or investment of any amounts withdrawn from the Hualapai Water Trust Fund Account by the Hualapai Tribe under paragraph (5).

Title to infrastructure— Title to, control over, and operation of any project constructed using funds from the Hualapai Water Trust Fund Account shall remain in the Hualapai Tribe.

OM&R— All OM&R costs of any project constructed using funds from the Hualapai Water Trust Fund Account shall be the responsibility of the Hualapai Tribe.

No per capita distributions— No portion of the Hualapai Water Trust Fund Account shall be distributed on a per capita basis to any member of the Hualapai Tribe.

Expenditure reports— The Hualapai Tribe shall annually submit to the Secretary an expenditure report describing accomplishments and amounts spent from use of withdrawals under a Tribal management plan or an expenditure plan under this Act.

Establishment— There is established in the Treasury of the United States a nontrust, interest-bearing account, to be known as the Hualapai Water Settlement Implementation Fund Account (referred to in this subsection as the “Implementation Fund Account”) to be managed and distributed by the Secretary, for use by the Secretary for carrying out this Act.

Deposits— The Secretary shall deposit in the Implementation Fund Account the amounts made available pursuant to section 7(a)(2).

Uses— The Implementation Fund Account shall be used by the Secretary to carry out section 15(c), including for groundwater monitoring in the Truxton Basin.

Interest— In addition to the deposits under paragraph (2), any investment earnings, including interest, credited to amounts unexpended in the Implementation Fund Account are authorized to be appropriated to be used in accordance with paragraph (3).

Hualapai water settlement implementation fund account— There is authorized to be appropriated to the Secretary for deposit in the Hualapai Water Settlement Implementation Fund account established by section 6(b)(1) $5,000,000.

In general— The amount authorized to be appropriated under subsection (a)(1) shall be increased or decreased, as appropriate, by such amounts as may be justified by reason of ordinary fluctuations in costs occurring after the date of enactment of this Act, as indicated by the Bureau of Reclamation Construction Cost Index—Composite Trend.

Construction costs adjustment— The amount authorized to be appropriated under subsection (a)(1) shall be adjusted to address construction cost changes necessary to account for unforeseen market volatility that may not otherwise be captured by engineering cost indices as determined by the Secretary, including repricing applicable to the types of construction and current industry standards involved.

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

Period of indexing— The period of indexing adjustment for any increment of funding shall end on the date on which the funds are deposited in the Hualapai Water Trust Fund Account.

Public Law 93–560— The land held in trust by the United States for the Hualapai Tribe pursuant to the first section of Public Law 93–560 (88 Stat. 1820).

1947 judgment— The land deeded to the United States in the capacity of the United States as trustee for the Hualapai Tribe pursuant to the 1947 judgment.

Truxton triangle— That portion of the S1⁄2 sec. 3, lying south of the south boundary of the Hualapai Reservation and north of the north right-of-way boundary of Arizona Highway 66, and bounded by the west section line of that sec. 3 and the south section line of that sec. 3, T. 24 N., R. 12 W., Gila and Salt River Base and Meridian, Mohave County, Arizona.

Hunt parcel 4— SW1⁄4NE1⁄4 sec. 7, T. 25 N., R. 13 W., Gila and Salt River Base and Meridian, Mohave County, Arizona.

Hunt parcels 1 and 2— In T. 26 N., R. 14 W., Gila and Salt River Base and Meridian, Mohave County, Arizona—

NE1⁄4SW1⁄4 sec. 9; and

NW1⁄4SE1⁄4 sec. 27.

Hunt parcel 3— SW1⁄4NE1⁄4 sec. 25, T. 27 N., R. 15 W., Gila and Salt River Base and Meridian, Mohave County, Arizona.

Hunt parcel 5— In sec. 1, T. 25 N., R. 14 W., Gila and Salt River Base and Meridian, Mohave County, Arizona—

SE1/4;

E1/2SW1/4; and

SW1/4SW1/4.

In general— Except as provided in subsection (d), the Hualapai Tribe water rights settlement agreement, including the waivers and releases of claims described in section 9, shall take effect and be fully enforceable on the date on which the Secretary publishes in the Federal Register a statement of findings that—

to the extent the Hualapai Tribe water rights settlement agreement conflicts with this Act—

the Hualapai Tribe water rights settlement agreement has been revised through an amendment to eliminate the conflict; and

the revised Hualapai Tribe water rights settlement agreement, including any exhibits requiring execution by any party to the Hualapai Tribe water rights settlement agreement, has been executed by the required party;

the waivers and releases of claims described in section 9 have been executed by the Hualapai Tribe and the United States;

the abstracts referred to in subparagraphs 4.8.1.2, 4.8.2.1, and 4.8.2.2 of the Hualapai Tribe water rights settlement agreement have been completed by the Hualapai Tribe;

the full amount described in section 7(a)(1), as adjusted by section 7(b), has been deposited in the Hualapai Water Trust Fund Account;

the Gila River adjudication decree has been approved by the Gila River adjudication court substantially in the form of the judgment and decree attached to the Hualapai Tribe water rights settlement agreement as Exhibit 3.1.43, as amended to ensure consistency with this Act; and

In general— Except as provided in paragraph (2), if the Secretary fails to publish in the Federal Register a statement of findings under subsection (a) by April 15, 2029, or such alternative later date as may be agreed to by the Hualapai Tribe, the Secretary, and the State—

this Act is repealed;

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

any amounts appropriated under section 7, together with any investment earnings on those amounts, less any amounts expended under section 6(a)(4)(B), shall revert immediately to the general fund of the Treasury.

Severability— Notwithstanding paragraph (1), if the Secretary fails to publish in the Federal Register a statement of findings under subsection (a) by April 15, 2029, or such alternative later date as may be agreed to by the Hualapai Tribe, the Secretary, and the State, section 11 and subsections (a), (b), (c), and (d) of section 12 shall remain in effect.

Right To offset— If the Secretary has not published in the Federal Register the statement of findings under subsection (a) by April 15, 2029, or such alternative later date as may be agreed to by the Hualapai Tribe, the Secretary, and the State, the United States shall be entitled to offset any Federal amounts made available under section 6(a)(4)(B) that were used or authorized for any use under that section against any claim asserted by the Hualapai Tribe against the United States described in section 9(a)(2)(A).

Bill williams river phase 2 enforceability date— Notwithstanding any other provision of this Act, the Bill Williams River phase 2 water rights settlement agreement (including the waivers and releases described in section 9(d) of this Act and section 5 of the Bill Williams River phase 2 water rights settlement agreement) shall take effect and become enforceable among the parties to the Bill Williams River phase 2 water rights settlement agreement on the date on which all of the following conditions have occurred:

The Hualapai Tribe water rights settlement agreement becomes enforceable pursuant to subsection (a).

Freeport has submitted to the Arizona Department of Water Resources a conditional withdrawal of any objection to the Bill Williams River watershed instream flow applications pursuant to section 4.4(i) of the Bill Williams River phase 2 water rights settlement agreement, which withdrawal shall take effect on the Bill Williams River Phase 2 Enforceability Date described in this subsection.

Not later than the Enforceability Date, the Arizona Department of Water Resources has issued an appealable, conditional decision and order for the Bill Williams River watershed instream flow applications pursuant to section 4.4(iii) of the Bill Williams River phase 2 water rights settlement agreement, which order shall become nonconditional and effective on the Bill Williams River Phase 2 Enforceability Date described in this subsection.

The conditional decision and order described in paragraph (3)—

becomes final; and

is not subject to any further appeal.

In general— In any circumstance described in paragraph (2)—

the United States or the Hualapai Tribe may be joined in the action described in the applicable subparagraph of that paragraph; and

subject to subparagraph (B), any claim by the United States or the Hualapai Tribe to sovereign immunity from the action is waived.

Limitation— A waiver under subparagraph (A)(ii)—

shall only be for the limited and sole purpose of the interpretation or enforcement of—

this Act;

the Hualapai Tribe water rights settlement agreement, as ratified by this Act; or

the Bill Williams River phase 2 water right settlement agreement, as ratified by this Act; and

shall not include any award against the United States or the Hualapai Tribe for money damages, court costs, or attorney fees.

Circumstances described— A circumstance referred to in paragraph (1)(A) is any of the following:

Any party to the Hualapai Tribe water rights settlement agreement—

brings an action in any court of competent jurisdiction relating only and directly to the interpretation or enforcement of—

this Act; or

the Hualapai Tribe water rights settlement agreement; and

names the United States or the Hualapai Tribe as a party in that action.

Any landowner or water user in the Verde River Watershed—

brings an action in any court of competent jurisdiction relating only and directly to the interpretation or enforcement of—

paragraph 10.0 of the Hualapai Tribe water rights settlement agreement;

Exhibit 3.1.43 to the Hualapai Tribe water rights settlement agreement; or

section 9; and

names the United States or the Hualapai Tribe as a party in that action.

Any party to the Bill Williams River phase 2 settlement agreement—

brings an action in any court of competent jurisdiction relating only and directly to the interpretation or enforcement of—

this Act; or

the Bill Williams River phase 2 settlement agreement; and

names the United States or the Hualapai Tribe as a party in that action.

Effect on current law— Nothing in this section alters the law with respect to pre-enforcement review of Federal environmental or safety-related enforcement actions.

In general— Not later than 1 year of the date of enactment of this Act, the Secretary, acting through the United States Geological Survey Water Use Program, shall issue an estimate for groundwater withdrawals in the Truxton Basin outside the boundaries of the Hualapai Reservation.

Annual estimates— Each year after publication of the initial estimate required by subparagraph (A), the Secretary, acting through the United States Geological Survey Water Use Program, shall issue an estimate for groundwater withdrawals in the Truxton Basin outside the boundaries of the Hualapai Reservation until such time as the Secretary, after consultation with the Hualapai Tribe, determines that annual estimates are not warranted.

Notice to the state— Based on the estimates under paragraph (1), the Secretary shall notify the State, in writing, if the total withdrawal of groundwater from the Truxton Basin outside the boundaries of the Hualapai Reservation exceeds the estimate prepared pursuant to that paragraph by 3,000 or more AFY, exclusive of any diversion or use of groundwater on Hualapai fee land and any land acquired by the Hualapai Tribe, including by a tribally owned corporation, in fee after the Enforceability Date.

Antideficiency— Notwithstanding any authorization of appropriations to carry out this Act, the United States shall not be liable for any failure of the United States to carry out any obligation or activity authorized by this Act (including all agreements or exhibits ratified or confirmed by this Act) if—

adequate appropriations are not provided expressly by Congress to carry out the purposes of this Act; or

there are not enough monies available to carry out this Act in the Lower Colorado River Basin Development Fund.

Application of reclamation reform act of 1982— The Reclamation Reform Act of 1982 (43 U.S.C. 390aa et seq.) and any other acreage limitation or full-cost pricing provision of Federal law shall not apply to any person, entity, or tract of land solely on the basis of—

receipt of any benefit under this Act;

execution or performance of this Act; or

the use, storage, delivery, lease, or exchange of CAP water.

No modification or preemption of other law— Unless expressly provided in this Act, nothing in this Act modifies, conflicts with, preempts, or otherwise affects—

the Boulder Canyon Project Act (43 U.S.C. 617 et seq.);

the Boulder Canyon Project Adjustment Act (43 U.S.C. 618 et seq.);

the Act of April 11, 1956 (commonly known as the “Colorado River Storage Project Act”) (43 U.S.C. 620 et seq.);

the Colorado River Basin Project Act (Public Law 90–537; 82 Stat. 885);

the Treaty between the United States of America and Mexico respecting utilization of waters of the Colorado and Tijuana Rivers and of the Rio Grande, signed at Washington February 3, 1944 (59 Stat. 1219);

the Colorado River Compact;

the Upper Colorado River Basin Compact;

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

case law concerning water rights in the Colorado River system other than any case to enforce the Hualapai Tribe water rights settlement agreement or this Act.

Effect on agreements— Nothing in this Act or the Hualapai Tribe water rights settlement agreement limits the right of the Hualapai Tribe to enter into any agreement for the storage or banking of water in accordance with State law with—

the Arizona Water Banking Authority (or a successor agency or entity); or

any other lawful authority.

quantifies or otherwise affects the water rights, claims, or entitlements to water of any Indian Tribe other than the Hualapai Tribe;

affects the ability of the United States to take action on behalf of any Indian Tribe other than the Hualapai Tribe, the members of the Hualapai Tribe, and the allottees; or

limits the right of the Hualapai Tribe to use any water of the Hualapai Tribe in any location on the Hualapai Reservation.