S 399

112th CONGRESS
1st Session

S. 399

To modify the purposes and operation of certain facilities of the Bureau of Reclamation to implement the water rights compact among the State of Montana, the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana, and the United States, and for other purposes.

IN THE SENATE OF THE UNITED STATES

February 17, 2011

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 modify the purposes and operation of certain facilities of the Bureau of Reclamation to implement the water rights compact among the State of Montana, the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana, and the United States, 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 2011'.

SEC. 2. FINDINGS.

    Congress finds that--

      (1) the reservation of the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana was established from the aboriginal territory of the Tribe by the treaty between the Tribe and the United States dated October 17, 1855 (11 Stat. 657);

      (2) water was reserved by the Tribe in that treaty--

        (A) to fulfill the promise of a homeland for members of the Tribe; and

        (B) for the governmental, economic, social, cultural, and religious well-being of the Tribe and members of the Tribe;

      (3) the water rights of the Tribe have not been consistently protected by the United States regarding--

        (A) the use and allocation of water on the Reservation, including--

          (i) the allocation of water of the St. Mary River and the Milk River in the treaty 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); and

          (ii) the diversion of St. Mary River water for use by the Milk River Project of the Bureau of Reclamation; and

        (B) activities for development carried out on and off the Reservation by non-members of the Tribe;

      (4) as of the date of enactment of this Act, civil actions to determine the water rights of the Tribe are pending in--

        (A) the United States District Court for the District of Montana in the action styled `United States v. Aageson', numbered CIV-79-21-GF, and filed on April 5, 1979; and

        (B) the Montana Water Court in the action styled `In the 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' and numbered WC-91-1;

      (5) to avoid divisive, expensive, and lengthy litigation of the water rights of the Tribe, to resolve critical issues relating to administration and development of those water rights, and to provide for appropriate mitigation measures, the Tribe, the State of Montana, and the United States have negotiated the Blackfeet Tribe-Montana Water Rights Compact;

      (6) in addition to quantification of the water rights of the Tribe, development of necessary water supplies on the Reservation through the planning, design, and construction of facilities and infrastructure is essential to carrying out the intent of the treaty referred to in paragraph (1)--

        (A) to create a permanent homeland for members of the Tribe;

        (B) to provide a viable Reservation economy; and

        (C) to implement the Compact; and

      (7) to fulfill the trust responsibility of the United States to Indian tribes and to promote tribal sovereignty and economic self-sufficiency, it is the policy of the United States to resolve tribal reserved water rights claims without lengthy and costly litigation.

SEC. 3. PURPOSES.

    The purposes of this Act are--

      (1) to authorize certain projects on the Reservation to implement the Compact, the Birch Creek Agreement, and this Act in a manner that--

        (A) maximizes the benefits of the water rights of the Tribe established in the Compact; and

        (B) ensures for the Tribe and members of the Tribe the benefits of a permanent homeland, including cultural, economic, social, and governmental benefits;

      (2) to authorize certain modifications of the purposes and operation of certain Bureau of Reclamation facilities to implement the Compact and this Act;

      (3) to authorize the rehabilitation, improvement, and completion of the Blackfeet Irrigation Project--

        (A) to maximize the benefits of the Blackfeet Irrigation Project for all project water users; and

        (B) to implement the Compact and the Birch Creek Agreement;

      (4) to approve, ratify, and confirm the water rights Compact;

      (5) to require the Secretary of the Interior--

        (A) to implement the Compact; and

        (B) to carry out the obligations of the United States under the Compact and this Act;

      (6) to provide for the final resolution of all water rights claims among--

        (A) the United States, on behalf of the Tribe and members of the Tribe;

        (B) the United States, on behalf of the allottees;

        (C) the Tribe, on behalf of the Tribe and members of the Tribe; and

        (D) the State of Montana; and

      (7) to authorize the actions, agreements, and appropriations necessary to implement the Compact and this Act.

SEC. 4. DEFINITIONS.

    In this Act:

      (1) ALLOTTEE- The term `allottee' means any individual who owns or holds a trust allotment or interest in a trust allotment on the Reservation pursuant to the Act of February 8, 1887 (25 U.S.C. 331; 24 Stat. 388, chapter 119), (commonly known as the `General Allotment Act'), the matter under the heading `Montana' of title II of the Act of March 1, 1907 (34 Stat. 1035, chapter 2285), and the Act of June 30, 1919 (41 Stat. 3, chapter 4), subject to the terms and conditions of those Acts.

      (2) AVAILABLE ST. MARY RIVER WATER- The term `available St. Mary River water' means--

        (A) water from the St. Mary River allocated to the United States under the treaty 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 the agreement between the Tribe and the State regarding Birch Creek water use dated January 31, 2008.

      (4) BLACKFEET IRRIGATION PROJECT- The term `Blackfeet Irrigation Project' means the irrigation project on the Reservation 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.

      (5) COMPACT- The term `Compact' means the water rights agreement (including any appendix or amendment to the agreement) among the Tribe, the State, and the United States that was--

        (A) ratified by the legislature of the State, as codified in section 85-20-1501 of the Montana Code Annotated (2009); and

        (B) the subject of Blackfeet Resolution No. 184-2008.

      (6) JOINT BOARD- The term `Joint Board' means the joint board of control of the Milk River Project established in accordance with State law.

      (7) 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).

      (8) LAKE SHERBURNE RESERVOIR- The term `Lake Sherburne Reservoir' means the storage facility of the Milk River Project authorized by the Secretary as part of the St. Mary storage unit on March 25, 1905.

      (9) 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.

      (10) MILK RIVER PROJECT WATER RIGHT- The term `Milk River Project water right' includes any water right held by the Bureau of Reclamation on behalf of the Milk River Project, as finally adjudicated by the Montana Water Court.

      (11) MISSOURI RIVER BASIN- The term `Missouri River Basin' means the hydrologic basin of the Missouri River (including tributaries).

      (12) MONTANA WATER COURT- The term `Montana Water Court' means the court established pursuant to chapter 7 of title 3, Montana Code Annotated, for the adjudication of water rights in the State.

      (13) 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.

      (14) RESERVATION- The term `Reservation' means the Blackfeet Indian Reservation of Montana, as in existence on the date of enactment of this Act.

      (15) ST. MARY RIVER WATER RIGHT- The term `St. Mary River water right' means the water right of the Tribe in the St. Mary River established by article III.G.1.a.i. of the Compact and implemented in accordance with article IV.D.4 of the Compact.

      (16) SECRETARY- The term `Secretary' means the Secretary of the Interior.

      (17) STATE- The term `State' means the State of Montana, including the officers, agencies, departments, and political subdivisions of that State.

      (18) TRIBAL WATER CODE- The term `tribal water code' means the code contained in the ordinance of the Tribe numbered 62, adopted by the business council of the Tribe pursuant to the resolution numbered 127-80 on May 15, 1980, and approved by the Blackfeet Indian Agency Superintendent of the Bureau of Indian Affairs on May 23, 1980, as amended in accordance with the Compact and this Act.

      (19) TRIBAL WATER RIGHT- The term `tribal water right' means--

        (A) any right of the Tribe (including any member of the Tribe or allottee) to divert, use, or store water, as established in the Compact;

        (B) any allocation of water to the Tribe from Lake Elwell pursuant to section 5(c); and

        (C) any allocation of water to the Tribe from Lake Sherburne Reservoir and the available St. Mary River water or any other source pursuant to section 5 that fulfills the St. Mary River water right of the Tribe under the Compact.

      (20) TRIBE- The term `Tribe' means the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana, including the officers, agencies, and departments of that tribe.

      (21) WATER RIGHTS ARISING UNDER STATE LAW- The term `Water Rights Arising Under State Law' has the meaning given the term in article II.52 of the Compact.

SEC. 5. RECLAMATION ACTIVITIES.

    (a) St. Mary River-

      (1) ALLOCATION OF WATER-

        (A) IN GENERAL- In providing to the Tribe the St. Mary River water right, the Secretary shall allocate to the Tribe 50,000 acre-feet per year of stored water in Lake Sherburne Reservoir as part of the tribal water right.

        (B) COSTS- The Tribe shall not be required to pay any operation, maintenance, or replacement costs, capital costs, or other costs associated with the allocation under subparagraph (A).

        (C) PROHIBITION ON INCREASE- The allocation under subparagraph (A) shall not be increased by any year-to-year carryover storage.

      (2) LEASE OF ALLOCATED WATER-

        (A) AGREEMENT-

          (i) IN GENERAL- The Tribe and the Secretary, acting through the Commissioner of Reclamation, shall enter into an agreement to lease the water allocated to the Tribe under paragraph (1) for use by the Secretary for the Milk River Project, in accordance with such terms and conditions on which the Tribe and the Secretary may agree.

          (ii) MEDIATION-

            (I) IN GENERAL- If the Tribe and the Secretary fail to agree to terms and conditions as described in clause (i) by the date that is 1 year after the date of enactment of this Act, a mediator acceptable to the Tribe and the Secretary shall be appointed by the Chief Judge of the United States District Court for the District of Montana to assist the parties in reaching an agreement.

            (II) COSTS- The costs of a mediator appointed under subclause (I) shall be paid by the Secretary.

        (B) EFFECTIVE PERIOD- A lease under subparagraph (A) shall remain in effect until the date described in paragraph (3)(E).

        (C) MILK RIVER PROJECT WATER USERS- No Milk River Project water user or other entity that is a party to any contract on behalf of such a water user shall be required to pay any costs associated with--

          (i) the allocation to the Tribe under paragraph (1); or

          (ii) a lease under this paragraph.

      (3) IDENTIFICATION OF AVAILABLE ST. MARY RIVER WATER-

        (A) INVESTIGATIONS AND STUDIES- The Secretary, in cooperation with the Tribe, may carry out any appropriate investigation or study to identify available St. Mary River water to provide to the Tribe the St. Mary River water right.

        (B) FACILITIES- The Secretary may plan, design, and construct such facilities as the Secretary, the Tribe, and the State determine to be necessary to provide to the Tribe the St. Mary River water right.

        (C) AGREEMENTS WITH TRIBE- The Secretary may enter into such cooperative agreements or contracts under the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) with the Tribe as the Secretary determines to be necessary to carry out subparagraphs (A) and (B).

        (D) MODIFICATIONS TO MILK RIVER PROJECT- The Secretary, in consultation with the Tribe, the State, the Fort Belknap Indian Community, the Joint Board, and other affected stakeholders, may make such modifications as are necessary to carry out this paragraph to--

          (i) the operating procedures of the Milk River Project; or

          (ii) any federally owned facility of the Milk River Project.

        (E) DATE TO BEGIN USE- Beginning on the date on which the Secretary, the Tribe, and the State agree in writing that water has been identified from available St. Mary River water or any other source, and is available to satisfy any portion of the St. Mary River water right in accordance with articles III.G.1.a.i and IV.D.4 of the Compact--

          (i) the Tribe may begin to use that water; and

          (ii) the allocation to the Tribe under paragraph (1) and the lease under paragraph (2) shall terminate with respect to that quantum of water.

    (b) Milk River Project Rights-of-Way and Easements-

      (1) IN GENERAL- As soon as practicable after the date of enactment of this Act, but not later than the enforceability date described in section 12(e), the Secretary shall resolve all issues relating to the use by the United States of tribal land or allotted land for purposes of the Milk River Project, including the payment to the Tribe and members of the Tribe of compensation for that use, notwithstanding any other provision of law, if such compensation--

        (A) has not previously been paid; or

        (B) was inadequate.

      (2) ACTION BY SECRETARY OF TREASURY- Notwithstanding any other provision of law, as soon as practicable after the date of enactment of this Act, but not later than the enforceability date described in section 12(e), the Secretary of the Treasury shall return to the Tribe all amounts paid by the Tribe for land relinquished to the Tribe pursuant to the Act of August 28, 1937 (50 Stat. 864, chapter 868), including interest on those amounts.

    (c) Lake Elwell-

      (1) ALLOCATION-

        (A) IN GENERAL- As part of the tribal water right, the Secretary shall permanently allocate to the Tribe all remaining unallocated water in Lake Elwell, as measured at the outlet works of the dam, minus any quantity of that water that may be allocated to the Fort Belknap Indian Community, as agreed to by the Tribe and the Fort Belknap Indian Community, for use by the Tribe for any beneficial purpose on or off the Reservation.

        (B) REQUEST BY TRIBE- The Secretary may enter into an agreement with the Tribe to establish a procedure through which the Tribe may request and use the allocation under subparagraph (A).

      (2) PRIORITY DATE- The priority date of the allocation to the Tribe under paragraph (1) shall be the priority date of the Lake Elwell water right held by the Bureau of Reclamation.

      (3) COSTS- The Tribe shall not be required to pay any annual operation, maintenance, or replacement costs, capital costs, or other costs associated with the allocation under paragraph (1).

      (4) 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 paragraph (1) if--

        (A) the use of water that is the subject of such an agreement occurs within the Missouri River Basin; and

        (B) the agreement does not permanently alienate any water allocated to the Tribe under paragraph (1).

      (5) EFFECTIVE DATE- The allocation under paragraph (1) takes effect on the enforceability date described in section 12(e).

      (6) PROHIBITION ON INCREASE- The allocation under paragraph (1) shall not be increased by any year-to-year carryover storage.

      (7) EFFECT OF SUBSECTION-

        (A) CHIPPEWA CREE TRIBE- Nothing in this subsection alters or diminishes the allocation from Lake Elwell to the Chippewa Cree Tribe pursuant to the Chippewa Cree Tribe of The Rocky Boy's Reservation Indian Reserved Water Rights Settlement and Water Supply Enhancement Act of 1999 (Public Law 106-163; 113 Stat 1778).

        (B) NO TRANSPORTATION FACILITIES REQUIREMENT- Except as otherwise provided in this Act, nothing in this subsection requires the United States to provide any facility for transport to the Reservation or any other location of the water allocated to the Tribe under this subsection.

      (8) DEVELOPMENT AND DELIVERY COSTS- Except as otherwise provided in this Act, the United States is not required to pay the cost of developing or delivering to the Reservation any water allocated under this subsection.

    (d) Blackfeet Irrigation Project-

      (1) IN GENERAL- The Secretary shall carry out such activities as are necessary relating to--

        (A) planning, design, and construction for rehabilitation and improvement of the Blackfeet Irrigation Project; and

        (B) the completion to authorized acreage of the Blackfeet Irrigation Project.

      (2) FOUR HORNS DAM AND RESERVOIR-

        (A) IN GENERAL- The Secretary shall carry out such activities as are necessary relating to planning, design, and construction for rehabilitation and improvement of the Four Horns Dam and Reservoir and associated delivery systems of the Blackfeet Irrigation Project, including--

          (i) the rehabilitation and improvement of the Four Horns feeder canal system to a capacity of not less than 300 cubic feet per second;

          (ii) the enlargement to maximum practical capacity of the off-stream Four Horns Dam and Reservoir;

          (iii) construction of facilities to deliver not less than 15,000 acre-feet of water per year from the enlarged 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;

          (iv) rehabilitation and improvement of the outlet canal delivery system from Four Horns Dam and Reservoir to Blacktail Creek;

          (v) rehabilitation and improvement of the Badger-Fisher main canal; and

          (vi) measures to enhance on-farm efficiency in the Badger-Fisher irrigation unit of the Blackfeet Irrigation Project.

        (B) COOPERATIVE AGREEMENT- On receipt of a request by the Tribe, the Secretary shall enter into a cooperative agreement or contract under the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) with the Tribe to carry out the activities under this paragraph.

        (C) ALLOCATION OF EXCESS WATER- Notwithstanding any other provision of law, on completion of the activities under this paragraph, the Secretary shall allocate to the Tribe, at no cost, all stored water in Four Horns Reservoir in excess of the quantity of water necessary to serve the land within the Blackfeet Irrigation Project, but not less than 15,000 acre-feet, for--

          (i) fulfillment of the obligations of the Tribe under the Birch Creek Agreement to deliver water to holders of Water Rights Arising Under State Law in Birch Creek; and

          (ii) use or lease by the Tribe for any purpose in accordance with this Act, the Compact, and the Birch Creek Agreement.

        (D) IDENTIFICATION OF FACILITIES-

          (i) IN GENERAL- The Tribe, the State, and the Regional Director of the Great Plains Region of the Bureau of Reclamation, in consultation with the Bureau of Indian Affairs, shall--

            (I) identify each facility or portion of a facility to be constructed, rehabilitated, or improved primarily for the purpose of providing to the Tribe the allocation under subparagraph (C); and

            (II) agree on the ownership, operation, maintenance, and replacement obligations associated with those facilities and portions of facilities.

          (ii) COSTS- No Blackfeet Irrigation Project water user or holder of Water Rights Arising Under State law in Birch Creek shall be required to pay any costs associated with any facility or portion of a facility identified under clause (i).

        (E) STATE CONTRIBUTION- As a condition of ratification of the Compact by this Act, the State shall contribute to the cost of the activities under this paragraph not less than $20,000,000.

      (3) TRANSFER OF TITLE-

        (A) IN GENERAL- Notwithstanding any other provision of law, on receipt of a request by the Tribe, the Secretary shall transfer to the Tribe, at no cost, title in and to each facility, asset, and other property of the Blackfeet Irrigation Project.

        (B) OWNERSHIP- On transfer of title under subparagraph (A), the Blackfeet Irrigation Project shall be considered to be owned, operated, and managed by the Tribe.

        (C) OPERATION AND MAINTENANCE- 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--

          (i) 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--

            (I) appeal and adjudication of denied or disputed distributions of water; and

            (II) resolution of contested administrative decisions; and

          (ii) a system for establishing water rates, including the processes described in subclauses (I) and (II) of clause (i).

      (4) IRRIGATION EFFICIENCY IN UPPER BIRCH DRAINAGE- Any activity carried out by the Tribe in the Upper Birch Drainage (as defined in article II.50 of the Compact) using funds made available under this Act shall achieve an irrigation efficiency of not less than 50 percent.

    (e) Reclamation Water Settlements Fund- In carrying out this section, the Secretary may use amounts in the Reclamation Water Settlements Fund established by subsection (a) of section 10501 of the Omnibus Public Land Management Act of 2009 (43 U.S.C. 407) pursuant to subsection (c)(3)(B)(iii) of that section.

SEC. 6. APPROVAL OF COMPACT AND BIRCH CREEK AGREEMENT.

    (a) Ratification-

      (1) IN GENERAL- Except as modified by this Act, and to the extent that the Compact and the Birch Creek Agreement do not conflict with this Act, the Compact and the Birch Creek Agreement are authorized, ratified, and confirmed.

      (2) AMENDMENTS- To the extent that any amendment is executed to ensure that the Compact or the Birch Creek Agreement is consistent with this Act, the amendment is authorized, ratified, and confirmed.

    (b) Execution-

      (1) IN GENERAL- To the extent that the Compact and the Birch Creek Agreement do not conflict with this Act, the Secretary shall promptly execute the Compact and the Birch Creek Agreement.

      (2) EFFECT OF SUBSECTION- Nothing in this subsection precludes the Secretary from approving a modification to any appendix or exhibit to the Compact or the Birch Creek Agreement that is not inconsistent with this Act, subject to section 2116 of the Revised Statutes (25 U.S.C. 177) and other applicable Federal law (including regulations).

    (c) Action by Other Departments and Agencies- The Secretary and the head of each other appropriate Federal department or agency shall carry out such activities as are necessary to implement the Compact, the Birch Creek Agreement, and this Act.

SEC. 7. TRIBAL WATER RIGHT.

    (a) Treatment- The tribal water right--

      (1) shall be held in trust by the United States for the benefit of the Tribe; and

      (2) shall not be subject to loss by abandonment, forfeiture, or nonuse.

    (b) Allottee Entitlements- Each allottee shall be entitled to a just and equitable allocation of the tribal water right for irrigation purposes pursuant to section 7 of the Act of February 8, 1887 (25 U.S.C. 381), in accordance with the Compact and the tribal water code.

    (c) Federal Reserved Water Rights- Any right to Federal reserved water of a member of the Tribe, an allottee, or an owner of fee land within the boundaries of the Reservation shall be--

      (1) considered to be satisfied by the tribal water right; and

      (2) governed in accordance with the terms and conditions of the Compact, this Act, and the tribal water code (including any applicable requirement to obtain a permit under the tribal water code).

    (d) Limitation on Certain Claims- Notwithstanding any other provision of law, no claim to a Federal reserved water right of an owner of fee land that was within the boundaries of the Reservation on June 30, 1996, as the successor to an allottee may be sustained as a matter of Federal law if the claim was not filed in the Montana water rights adjudication (Mont. Code Ann. 85-2-212, et seq.) by the required filing date.

    (e) Tribal Water Code-

      (1) AMENDMENTS- Not later than 180 days after the date of enactment of this Act, the Tribe shall amend the tribal water code, subject to the approval of the Secretary under paragraph (2)(A), as necessary to administer the tribal water right in accordance with article IV.C of the Compact.

      (2) APPROVAL REQUIRED-

        (A) IN GENERAL- No provision of the tribal water code (or any amendment to the tribal water code) that affects any right of an allottee shall take effect until the date on which the provision is approved by the Secretary.

        (B) INTERIM ADMINISTRATION-

          (i) IN GENERAL- During the period beginning on the date of amendment of the tribal water code under paragraph (1) and ending on the date of approval of the amendment by the Secretary under subparagraph (A), the tribal water right shall be administered by the Tribe pursuant to the tribal water code as in existence on the day before the date of enactment of this Act, to the extent that the tribal water code is not inconsistent with the Compact and this Act.

          (ii) INCONSISTENCIES- If any inconsistency exists between the tribal water code as in existence on the day before the date of enactment of this Act and the Compact or this Act, the applicable provision of the Compact or this Act shall control.

      (3) EXHAUSTION OF REMEDIES- No member of the Tribe, allottee, or owner of fee land within the boundaries of the Reservation shall file against the United States a claim relating to water under the tribal water right pursuant to section 7 of the Act of February 8, 1887 (25 U.S.C. 381), or any other provision of law or otherwise request relief from the Secretary until the member, allottee, or owner exhausts each applicable remedy under the tribal water code or other applicable tribal or Federal law.

    (f) Lease of Tribal Water Right-

      (1) IN GENERAL- The Tribe, without approval of the Secretary, may lease any portion of the tribal water right in accordance with article IV.D.2 of the Compact for use off the Reservation within the Missouri River Basin, subject to the tribal water code and the terms and conditions of the Compact and applicable Federal law.

      (2) USE OF FUNDS- Any funds paid to the Tribe under a lease under this subsection shall be the property of the Tribe, and the United States shall have no trust or other obligation to monitor, administer, or account for the funds.

      (3) PROHIBITION ON PERMANENT ALIENATION- No portion of the tribal water right may be permanently alienated pursuant to a lease under this subsection.

SEC. 8. BLACKFEET LAND AND WATER DEVELOPMENT FUND.

    (a) Establishment- There is the established in the Treasury of the United States a fund, to be known as the `Blackfeet Land and Water Development Fund' (referred to in this section as the `Fund'), to be used to pay or reimburse costs incurred by the Tribe for--

      (1) the acquisition of land or water rights;

      (2) water resources planning, development, and construction, including storage and irrigation;

      (3) agricultural development;

      (4) restoring or improving fish or wildlife habitat;

      (5) fish or wildlife production;

      (6) any other water storage project, land or land-related project, or water or water-related project;

      (7) cultural preservation;

      (8)(A) the operation and maintenance of water and water-related projects; and

      (B) environmental compliance relating to those projects constructed under this Act;

      (9) development and support of administrative infrastructure to implement the Compact, the Birch Creek Agreement, and this Act, including the development of the tribal water code;

      (10) design and construction of water supply and sewer systems and related facilities for tribal communities;

      (11) measures to address environmental conditions on the Reservation; and

      (12) water-related economic development projects.

    (b) Management- The Secretary shall manage the Fund in accordance with the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.), this Act, and the Compact.

    (c) Investment- The Secretary shall invest amounts in the Fund in accordance with--

      (1) the Act of April 1, 1880 (25 U.S.C. 161); and

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

    (d) No Fiscal Year Limitation- Amounts made available under this Act shall be available for expenditure or withdrawal without fiscal year limitation.

    (e) Expenditures and Withdrawals-

      (1) TRIBAL MANAGEMENT PLAN-

        (A) IN GENERAL- The Tribe may withdraw any portion of amounts in the Fund on approval by the Secretary of a tribal management plan under the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.).

        (B) REQUIREMENTS- In addition to the requirements under that Act (25 U.S.C. 4001 et seq.), the tribal management plan shall require that the Tribe shall use any amounts withdrawn from the Fund for the purposes described in subsection (a).

        (C) ACTION BY SECRETARY- The Secretary may take judicial or administrative action to enforce the provisions of a tribal management plan to ensure that amounts withdrawn from the Fund under the plan are used in accordance with this Act and the Compact.

        (D) LIABILITY- On withdrawal by the Tribe of amounts in the Fund, the Secretary and the Secretary of the Treasury shall not retain liability for the expenditure or investment of those amounts.

      (2) EXPENDITURE PLAN-

        (A) IN GENERAL- The Tribe shall submit to the Secretary for approval an expenditure plan for any portion of the amounts in the Fund that the Tribe does not withdraw pursuant to this subsection.

        (B) DESCRIPTION- The expenditure plan shall describe the manner in which, and the purposes for which, the amounts remaining in the Fund will be used.

        (C) APPROVAL- The Secretary shall approve an expenditure plan under this paragraph if the Secretary determines that the plan is--

          (i) reasonable; and

          (ii) consistent with this Act and the Compact.

      (3) REPORTS- The Tribe shall submit to the Secretary an annual report that describes each expenditure from the Fund during the year covered by the report.

    (f) Per Capita Distributions- No portion of the Fund or the income accruing to the Fund shall be distributed to any member of the Tribe on a per capita basis.

SEC. 9. 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 term of the Birch Creek Agreement.

    (d) Authorization of Appropriations- There are authorized to be appropriated to carry out this section such sums as are necessary.

SEC. 10. 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 identified in the applicable claims filed by the United States on behalf of the Tribe, as those claims are finally decreed by the Montana Water Court.

SEC. 11. MILK RIVER WATER RIGHTS.

    (a) Identification of Alternatives- The Secretary shall identify and implement alternatives to resolve any conflict between the Milk River water rights of the Tribe and the Fort Belknap Indian Community in a manner that ensures that the full allocation of the water rights of each Indian tribe under the water rights compacts of the Indian tribes are fully satisfied.

    (b) Agreement of Tribes- The Secretary shall obtain the agreement of the Tribe and the Fort Belknap Indian Community to any alternative identified under subsection (a).

    (c) Funding- Amounts used by the Secretary to implement any alternative identified under subsection (a) shall be in addition to the amounts authorized for the water rights settlements of the Tribe and the Fort Belknap Indian Community.

SEC. 12. WAIVERS AND RELEASES OF CLAIMS.

    (a) Waiver and Release of Claims by Tribe and United States as Trustee for Tribe- As a condition for recognition of the tribal water right and other benefits under the Compact and this Act and subject to the retention of claims and rights under subsection (c), the Tribe and the United States, acting as trustee for the Tribe and the allottees, shall waive and release each claim for a water right that is or could be asserted in the civil action styled `In the 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' and numbered WC-91-1, except to the extent that such a claim is recognized in the Compact or this Act.

    (b) Claims Against United States- As a condition of receiving the tribal water right and other benefits under the Compact and this Act and subject to the retention of claims and rights under subsection (c), the Tribe shall waive and release each claim against the United States--

      (1) for a water right that is or could be asserted in the civil action referred to in subsection (a);

      (2) for failure to protect, acquire, replace, or develop any water right that accrued as of the date of enactment of this Act; or

      (3) arising from the negotiation or adoption of the Compact.

    (c) Retention of Certain Claims and Rights- Notwithstanding the waivers and releases required under this section, the Tribe and the United States, acting as trustee for the Tribe and the allottees, shall retain--

      (1) all claims for enforcement of--

        (A) the Compact;

        (B) any consent decree that settles a water right claim of the Tribe; or

        (C) this Act;

      (2) all rights to use and protect any water right acquired after the date of enactment of this Act;

      (3) all claims to water rights filed by the United States on behalf of the Tribe in Glacier National Park for rights retained under the agreement dated September 19, 1895, and ratified on June 10, 1896 (29 Stat. 321, chapter 398), unless the water right claims are dismissed in their entirety on entry of a final nonappelable decision by a court of competent jurisdiction in any civil action to which the Tribe is a party;

      (4) all claims relating to activities affecting quality of water; and

      (5) all rights, remedies, privileges, immunities, and powers not specifically waived and released pursuant to the Compact or this Act.

    (d) Effective Date of Release and Waivers- The waivers under subsection (a) shall take effect on the enforceability date.

    (e) Enforceability Date-

      (1) IN GENERAL- The enforceability date is the date on which the Secretary publishes in the Federal Register a statement of findings that--

        (A) all parties to the Compact have executed the Compact;

        (B) the Montana Water Court has issued a final judgment and decree approving the Compact, or if the Montana Water Court lacks jurisdiction, the United States district court for the appropriate jurisdiction has approved the Compact as a consent decree, and that approval is final;

        (C) the Compact has been ratified by a majority of eligible members of the Tribe voting in a referendum conducted by the Tribe pursuant to tribal law;

        (D) the waivers and releases under subsection (a) have been executed by the Tribe and the Secretary;

        (E) the Tribe and the Secretary have entered into the agreement described in section 5(a)(2)(A);

        (F) the Secretary has fulfilled the requirements of section 5(b)(1); and

        (G) the amounts authorized to be appropriated under section 14 have been appropriated.

      (2) EFFECT OF FAILURE TO PUBLISH- If the Secretary fails to publish a statement of findings under paragraph (1) by December 31, 2016, or such extended date as is agreed to by the Tribe and the Secretary after reasonable notice to the State--

        (A) the ratification of the Compact is void;

        (B) the waivers and release of claims under this Act are nullified;

        (C) the authority provided by this Act shall terminate; and

        (D) any unexpended or uncommitted funds made available under section 14 shall revert to the general fund of the Treasury.

      (3) TOLLING OF CLAIMS-

        (A) 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 authorized to be appropriated to carry out this Act are appropriated.

        (B) 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.

    (f) Effect- Nothing in the Compact or this Act--

      (1) affects the ability of the United States to carry out any action--

        (A) authorized by law (including regulations), including any law relating to health, safety, or the environment (including the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), the Safe Drinking Water Act (42 U.S.C. 300f et seq.), the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), and the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.)); or

        (B) as trustee for any other Indian tribe or the allottees; or

      (2) confers jurisdiction on any State court--

        (A) to enforce Federal environmental law regarding the duties of the United States; or

        (B) to conduct judicial review of a Federal agency action.

SEC. 13. MISCELLANEOUS PROVISIONS.

    (a) Consent to Jurisdiction-

      (1) IN GENERAL- Except as provided in paragraph (2), the United States consents to the jurisdiction of--

        (A) the Blackfeet-Montana Compact Board to achieve resolution of any dispute under the Compact; and

        (B) any court of competent jurisdiction for the enforcement of a decision of that board.

      (2) EXCEPTION- The consent of the United States to jurisdiction under paragraph (1) does not extend to any civil action for monetary damages, costs, or attorney's fees.

    (b) No Effect on Other Indian Tribes- 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 other than the Tribe.

    (c) No Major Federal Action- The execution of the Compact by the Secretary shall not constitute a major Federal action under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

    (d) Compliance With Federal Law- In carrying out the Compact, the Secretary shall comply with--

      (1) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);

      (2) the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); and

      (3) all other applicable Federal environmental law (including regulations).

    (e) Seeking Other Funds- Nothing in this Act prohibits the Tribe from seeking additional funds for tribal programs or purposes or other funds from the United States or the State based on the status of the Tribe as an Indian tribe.

    (f) Acquisition and Exercise of Other Water Rights- Nothing in this Act or the Compact precludes the acquisition or exercise of--

      (1) a State water right by the Tribe or any member of the Tribe outside the Reservation through purchase of the right, establishment of title to land outside the Reservation, or submission of an application in accordance with State law, except as provided in article III.J of the Compact; or

      (2) a Federal reserved water right associated with Federal land outside the Reservation as the result of--

        (A) the transfer of that land to the Tribe; or

        (B) the establishment of title by the Tribe to the land.

    (g) Objections to Claims- Nothing in this Act or the Compact prohibits the Tribe, a member of the Tribe, an allottee, or the United States in any capacity from objecting to any claim to a water right filed in any general stream adjudication in the Montana Water Court.

    (h) Import and Storage in Basins- Nothing in this Act or the Compact prevents the Tribe from participating in any project to import water to, or improve storage in, any basin affecting the Reservation.

    (i) Enforcement of Existing Law; Damage Claims- Nothing in the Compact or this Act limits--

      (1) the ability of the United States, the State, or the Tribe to enforce any Federal, State, or tribal law (including common law) relating to the protection of the environment; or

      (2) the right to bring any claim of the Tribe, a member of the Tribe, or an allottee, or of the United States on behalf of the Tribe, a member of the Tribe, or an allottee, for--

        (A) damage to water quality on the Reservation; or

        (B) depletion of surface flows or groundwater.

    (j) No Precedent- Nothing in this Act establishes a precedent in any civil action relating to--

      (1) a reserved water right; or

      (2) the interpretation or administration of any compact between the United States and any State.

    (k) No Effect on Services or Programs for Indians- No payment made or benefit provided pursuant to this Act shall result in the reduction or denial of any Federal service or program to any Indian tribe or member of an Indian tribe to which the Indian tribe or member is otherwise entitled or eligible for because of--

      (1) the status of the Tribe as a federally recognized Indian tribe; or

      (2) the status of such a member as an Indian.

    (l) Preference- Applications of the Tribe shall be given preference under section 7(a) of the Federal Power Act (16 U.S.C. 800(a)) for issuance of any preliminary permit or license involving a Federal facility within the Reservation.

    (m) Conflicts Between Act and Compact- If a provision of this Act conflicts with a provision of the Compact, the provision of this Act shall prevail.

SEC. 14. AUTHORIZATION OF APPROPRIATIONS.

    (a) St. Mary River Allocation- There are authorized to be appropriated to the Secretary such sums as are necessary to carry out section 5(a).

    (b) Blackfeet Irrigation Project- There is authorized to be appropriated to the Secretary to carry out section 5(d) $125,000,000, adjusted as appropriate based on ordinary fluctuations during the period beginning on May 1, 2011, and ending on the date on which that amount is appropriated in construction cost indices applicable to the types of construction involved in the rehabilitation and improvement activities under that section.

    (c) Blackfeet Land and Water Development Fund- There is authorized to be appropriated to the Secretary for deposit in the Blackfeet Land and Water Development Fund established by section 8(a) $93,200,000 for each of fiscal years 2012 through 2016.

    (d) Milk River Water Rights- There are authorized to be appropriated to the Secretary such sums as are necessary to carry out section 11 (including the implementation of alternatives identified under subsection (a) of that section).

END