Montana Water Rights Protection Act

II 116TH CONGRESS 1ST SESSION S. 3019 To protect access to water for all Montanans, and for other purposes. IN THE SENATE OF THE UNITED STATES DECEMBER 11, 2019 Mr. DAINES (for himself and Mr. TESTER) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs A BILL To protect access to water for all Montanans, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Montana Water Rights 4 Protection Act’’. 5 SEC. 2. PURPOSES. 6 The purposes of this Act are— 7 (1) to achieve a fair, equitable, and final settle- 8 ment of claims to water rights in the State of Mon- 9 tana, and in recognition of article I, and section 3 10 VerDate Sep 11 2014 23:10 Dec 14, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3019.IS S3019 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 3019 IS of article IX, of the Montana State Constitution 1 for— 2 (A) the Confederated Salish and Kootenai 3 Tribes of the Flathead Indian Reservation; and 4 (B) the United States, for the benefit of 5 the Tribes and allottees; 6 (2) to authorize, ratify, and confirm the water 7 rights compact entered into by the Tribes and the 8 State, to the extent that the Compact is consistent 9 with this Act; 10 (3) to authorize and direct the Secretary of the 11 Interior— 12 (A) to execute the Compact; and 13 (B) to take any other action necessary to 14 carry out the Compact in accordance with this 15 Act; and 16 (4) to authorize funds necessary for the imple- 17 mentation of— 18 (A) the Compact; and 19 (B) this Act. 20 SEC. 3. DEFINITIONS. 21 In this Act: 22 (1) ALLOTTEE.—The term ‘‘allottee’’ means an 23 individual who holds a beneficial real property inter- 24 est in an allotment of Indian land that is— 25 VerDate Sep 11 2014 23:10 Dec 14, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3019.IS S3019 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 3019 IS (A) located within the Reservation; and 1 (B) held in trust by the United States. 2 (2) BISON.—The term ‘‘bison’’ means North 3 American plains bison. 4 (3) COMPACT.—The term ‘‘Compact’’ means— 5 (A) the water rights compact entered into 6 and ratified, as applicable, by the Confederated 7 Salish and Kootenai Tribes, the State, and the 8 United States, as contained in section 85–20– 9 1901 of the Montana Code Annotated (2017), 10 including any appendix or exhibit to that com- 11 pact; and 12 (B) any amendment to the compact re- 13 ferred to in subparagraph (A) (including an 14 amendment to an appendix or exhibit) that is 15 executed to ensure that the Compact is con- 16 sistent with this Act. 17 (4) DAMAGES REPORT.—The term ‘‘Damages 18 Report’’ means the report entitled ‘‘Damages of the 19 Confederated Salish and Kootenai Tribes Due to Ac- 20 tions By the United States’’, volume I (March 21 2011), volume II (March 2011), volume III (October 22 2011), and the final supplement and economic valu- 23 ation (February 2016), which is on file at the De- 24 partment of Justice. 25 VerDate Sep 11 2014 23:10 Dec 14, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3019.IS S3019 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 3019 IS (5) ENFORCEABILITY DATE.—The term ‘‘en- 1 forceability date’’ means the date described in sec- 2 tion 10(b). 3 (6) FLATHEAD INDIAN IRRIGATION PROJECT.— 4 (A) IN GENERAL.—The term ‘‘Flathead 5 Indian irrigation project’’ means the Federal ir- 6 rigation project developed by the United States 7 to irrigate land within the Reservation pursuant 8 to— 9 (i) the Act of April 23, 1904 (33 Stat. 10 302, chapter 1495); and 11 (ii) the Act of May 29, 1908 (35 Stat. 12 444, chapter 216). 13 (B) INCLUSIONS.—The term ‘‘Flathead In- 14 dian irrigation project’’ includes— 15 (i) all land and any reservoir, ease- 16 ment, right-of-way, canal, ditch, lateral, or 17 any other facility of the project referred to 18 in subparagraph (A) (regardless of location 19 on or off the Reservation); and 20 (ii) any headgate, pipeline, pump, 21 building, heavy equipment, vehicle, sup- 22 plies, record, copy of a record, or any other 23 physical, tangible object of real or personal 24 property used in the management and op- 25 VerDate Sep 11 2014 23:10 Dec 14, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3019.IS S3019 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 3019 IS eration of the project referred to in sub- 1 paragraph (A). 2 (7) HUNGRY HORSE DAM.—The term ‘‘Hungry 3 Horse Dam’’ means the dam that is a part of the 4 Hungry Horse Project. 5 (8) HUNGRY HORSE PROJECT.—The term 6 ‘‘Hungry Horse Project’’ means the project author- 7 ized to be carried out by the Secretary under the Act 8 of June 5, 1944 (43 U.S.C. 593a et seq.). 9 (9) HUNGRY HORSE RESERVOIR.—The term 10 ‘‘Hungry Horse Reservoir’’ means the reservoir that 11 is a part of the Hungry Horse Project. 12 (10) INDIAN TRIBE.—The term ‘‘Indian tribe’’ 13 has the meaning given the term in section 4 of the 14 Indian Self-Determination and Education Assistance 15 Act (25 U.S.C. 5304). 16 (11) LAW OF ADMINISTRATION.—The term 17 ‘‘Law of Administration’’ means the Unitary Admin- 18 istration and Management Ordinance, as set forth in 19 Appendix 4 of the Compact. 20 (12) RESERVATION.— 21 (A) IN GENERAL.—The term ‘‘Reserva- 22 tion’’ means all land within the exterior bound- 23 aries of the Indian reservation established 24 under the Treaty between the United States 25 VerDate Sep 11 2014 23:10 Dec 14, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3019.IS S3019 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 3019 IS and the Flathead, Kootenay, and Upper Pend 1 d’Oreilles Indians, concluded at Hell Gate July 2 16, 1855 (12 Stat. 975), notwithstanding the 3 issuance of any patent on the Reservation. 4 (B) INCLUSIONS.—The term ‘‘Reserva- 5 tion’’ includes any right-of-way through the 6 Reservation. 7 (13) SECRETARY.—The term ‘‘Secretary’’ 8 means the Secretary of the Interior. 9 (14) STATE.— 10 (A) IN GENERAL.—The term ‘‘State’’ 11 means the State of Montana. 12 (B) INCLUSIONS.—The term ‘‘State’’ in- 13 cludes all officers, agencies, departments, and 14 political subdivisions of the State. 15 (15) TRIBAL WATER RIGHT.—The term ‘‘Tribal 16 Water Right’’ means the water right of the Tribes, 17 as established in— 18 (A) the Compact; and 19 (B) section 5. 20 (16) TRIBES.— 21 (A) IN GENERAL.—The term ‘‘Tribes’’ 22 means the Confederated Salish and Kootenai 23 Tribes of the Flathead Reservation of Montana. 24 VerDate Sep 11 2014 23:10 Dec 14, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3019.IS S3019 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 3019 IS (B) INCLUSIONS.—The term ‘‘Tribes’’ in- 1 cludes all officers, agencies, and departments of 2 the Tribes. 3 (17) TRUST FUND.—The term ‘‘Trust Fund’’ 4 means the Se´lisˇ-Qlispe´ Ksanka Settlement Trust 5 Fund established under section 8(a). 6 SEC. 4. RATIFICATION OF COMPACT. 7 (a) RATIFICATION.— 8 (1) IN GENERAL.—As modified by this Act, the 9 Compact is authorized, ratified, and confirmed. 10 (2) AMENDMENTS.—Any amendment to the 11 Compact is authorized, ratified, and confirmed, to 12 the extent that the amendment is executed to ensure 13 that the Compact is consistent with this Act. 14 (b) EXECUTION.— 15 (1) IN GENERAL.—To the extent that the Com- 16 pact does not conflict with this Act, the Secretary 17 shall execute the Compact, including all exhibits to, 18 appendices to, and parts of the Compact requiring 19 the signature of the Secretary. 20 (2) MODIFICATIONS.—Nothing in this Act pre- 21 cludes the Secretary from approving a modification 22 to an appendix or exhibit to the Compact that is 23 consistent with this Act, to the extent that the modi- 24 VerDate Sep 11 2014 23:10 Dec 14, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3019.IS S3019 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 3019 IS fication does not otherwise require congressional ap- 1 proval under— 2 (A) section 2116 of the Revised Statutes 3 (25 U.S.C. 177); or 4 (B) any other applicable Federal law. 5 (c) ENVIRONMENTAL COMPLIANCE.— 6 (1) IN GENERAL.—In implementing the Com- 7 pact and this Act, the Secretary and the Tribes shall 8 comply with— 9 (A) the Endangered Species Act of 1973 10 (16 U.S.C. 1531 et seq.); 11 (B) the National Environmental Policy Act 12 of 1969 (42 U.S.C. 4321 et seq.); and 13 (C) all other applicable environmental laws 14 (including regulations). 15 (2) EFFECT OF EXECUTION.— 16 (A) IN GENERAL.—The execution of the 17 Compact by the Secretary under this section 18 shall not constitute a major Federal action for 19 purposes of the National Environmental Policy 20 Act of 1969 (42 U.S.C. 4321 et seq.). 21 (B) COMPLIANCE.—The Secretary and the 22 Tribes shall carry out all Federal compliance 23 activities necessary to implement the Compact 24 and this Act. 25 VerDate Sep 11 2014 23:10 Dec 14, 2019 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3019.IS S3019 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 3019 IS (d) PUBLIC AVAILABILITY.—As provided in articles 1 IV.I.b (relating to hearings), IV.I.c (relating to the em- 2 ployment of a water engineer), and IV.I.7.e (relating to 3 Board records) of the Compact, and in recognition of sec- 4 tion 9 of article II of the Montana State Constitution, all 5 records of the Flathead Reservation Water Management 6 Board and the Water Engineer employed by the Board 7 shall be open to public inspection. 8 SEC. 5. TRIBAL WATER RIGHT. 9 (a) INTENT OF CONGRESS.—It is the intent of Con- 10 gress to provide to each allottee benefits that are equiva- 11 lent to, or that exceed, the benefits possessed by the 12 allottees on the day before the date of enactment of this 13 Act, taking into consideration— 14 (1) the potential risks, cost, and time delay as- 15 sociated with litigation that would be resolved by the 16 Compact and this Act; 17 (2) the availability of funding under this Act 18 and from other sources; 19 (3) the availability of water from the Tribal 20 Water Right; and 21 (4) the applicability of section 7 of the Act of 22 February 8, 1887 (25 U.S.C. 381), and this Act to 23 protect the interests of allottees. 24 (b) CONFIRMATION OF TRIBAL WATER RIGHT.— 25 VerDate Sep 11 2014 23:10 Dec 14, 2019 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3019.IS S3019 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 3019 IS (1) IN GENERAL.—The Tribal Water Right is 1 ratified, confirmed, and declared to be valid. 2 (2) USE.—Any use of the Tribal Water Right 3 shall be subject to the terms and conditions of— 4 (A) the Compact; and 5 (B) this Act. 6 (3) CONFLICT.—In the event of a conflict be- 7 tween the Compact and this Act, the provisions of 8 this Act shall control. 9 (c) TRUST STATUS OF TRIBAL WATER RIGHT.—The 10 Tribal Water Right— 11 (1) shall be held in trust by the United States 12 for the use and benefit of the Tribes and the 13 allottees in accordance with this Act; and 14 (2) shall not be subject to forfeiture or aban- 15 donment. 16 (d) ALLOTTEES.— 17 (1) APPLICABILITY OF ACT OF FEBRUARY 8, 18 1887.—The provisions of section 7 of the Act of Feb- 19 ruary 8, 1887 (25 U.S.C. 381), relating to the use 20 of water for irrigation purposes shall apply to the 21 Tribal Water Right. 22 (2) ENTITLEMENTS TO WATER.— 23 VerDate Sep 11 2014 23:10 Dec 14, 2019 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3019.IS S3019 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 3019 IS (A) IN GENERAL.—Any entitlement to 1 water of an allottee under Federal law shall be 2 satisfied from the Tribal Water Right. 3 (B) WATER FOR IRRIGATION.—Each allot- 4 tee shall be entitled to a just and equitable allo- 5 cation of water for irrigation purposes, to be 6 enforceable under paragraph (3)(B). 7 (3) CLAIMS.— 8 (A) EXHAUSTION OF REMEDIES.—Before 9 asserting any claim against the United States 10 under section 7 of the Act of February 8, 1887 11 (25 U.S.C. 381), or any other applicable law, 12 an allottee shall exhaust remedies available 13 under— 14 (i) the Law of Administration; or 15 (ii) other applicable law. 16 (B) WATER FOR IRRIGATION.—After the 17 exhaustion of all remedies available under the 18 Law of Administration or other applicable law, 19 an allottee may seek relief under section 7 of 20 the Act of February 8, 1887 (25 U.S.C. 381), 21 or other applicable law, to seek a just and equi- 22 table allocation of water for irrigation purposes 23 under paragraph (2)(B). 24 VerDate Sep 11 2014 23:10 Dec 14, 2019 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3019.IS S3019 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 3019 IS (4) AUTHORITY OF SECRETARY.—The Sec- 1 retary shall have the authority to protect the rights 2 of allottees in accordance with this section. 3 (e) AUTHORITY OF TRIBES.— 4 (1) IN GENERAL.—The Tribes shall have the 5 authority to allocate, distribute, and lease the Tribal 6 Water Right for any use on the Reservation in ac- 7 cordance with— 8 (A) the Compact; 9 (B) the Law of Administration; 10 (C) this Act; and 11 (D) applicable Federal law. 12 (2) OFF-RESERVATION USE.—The Tribes may 13 allocate, distribute, and lease the Tribal Water Right 14 for off-Reservation use in the State in accordance 15 with the Compact, subject to the approval of the 16 Secretary. 17 (3) LAND LEASES BY ALLOTTEES.—Notwith- 18 standing paragraph (1), an allottee may lease any 19 interest in land held by the allottee, together with 20 any water right determined to be appurtenant to the 21 interest in land, in accordance with the Law of Ad- 22 ministration. 23 (f) LAW OF ADMINISTRATION.— 24 VerDate Sep 11 2014 23:10 Dec 14, 2019 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3019.IS S3019 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 3019 IS (1) IN GENERAL.—During the period beginning 1 on the date of enactment of this Act and ending on 2 the date on which the Law of Administration be- 3 comes effective on the Reservation, the Secretary 4 shall administer, with respect to the rights of 5 allottees, the Tribal Water Right in accordance with 6 this Act. 7 (2) APPROVAL.— 8 (A) IN GENERAL.—The Law of Adminis- 9 tration is approved. 10 (B) REGISTRATIONS.—As provided in sec- 11 tions 3 and 4 of article IX of the Montana 12 State Constitution and section 1–1–108 of the 13 Law of Administration, all registrations shall be 14 provided to the department of natural resources 15 and conservation of the State, to be entered 16 into the water rights database of the depart- 17 ment. 18 (C) AMENDMENTS.—An amendment to the 19 Law of Administration that affects a r [Text truncated for display. 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