S. 1219 — Introduced in Senate

II 113th CONGRESS 1st Session S. 1219 IN THE SENATE OF THE UNITED STATES June 25, 2013 Mrs. Boxer (for herself and Mrs. Feinstein) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs A BILL To authorize the Pechanga Band of Luiseño Mission Indians Water Rights Settlement, and for other purposes. 1. Short title (a) Short title This Act may be cited as the Pechanga Band of Luiseño Mission Indians Water Rights Settlement Act. (b) Table of contents The table of contents of this Act is as follows: Sec. 1. Short title. Sec. 2. Purposes. Sec. 3. Definitions. Sec. 4. Approval of the Pechanga Settlement Agreement. Sec. 5. Tribal Water Right. Sec. 6. Satisfaction of claims. Sec. 7. Waiver of claims. Sec. 8. Water facilities. Sec. 9. Pechanga Settlement Fund. Sec. 10. Miscellaneous provisions. Sec. 11. Authorization of appropriations. Sec. 12. Repeal on failure of enforceability date. Sec. 13. Antideficiency. 2. Purposes The purposes of this Act are— (1) to achieve a fair, equitable, and final settlement of claims to water rights and certain claims for injuries to water rights in the Santa Margarita River Watershed for— (A) the Band; and (B) the United States, acting in its capacity as trustee for the Band and allottees; (2) to achieve a fair, equitable, and final settlement of certain claims by the Band and allottees against the United States; (3) to authorize, ratify, and confirm the Pechanga Settlement Agreement to be entered into by the Band, RCWD, EMWD, and the United States; (4) to authorize and direct the Secretary— (A) to execute the Pechanga Settlement Agreement; and (B) to take any other action necessary to carry out the Pechanga Settlement Agreement in accordance with this Act; and (5) to authorize the appropriation of amounts necessary for the implementation of the Pechanga Settlement Agreement and this Act. 3. Definitions In this Act: (1) Adjudication court The term Adjudication Court means the United States District Court for the Southern District of California, which exercises continuing jurisdiction over the Adjudication Proceeding. (2) Adjudication proceeding The term Adjudication Proceeding means litigation initiated by the United States regarding relative water rights in the Santa Margarita River Watershed in United States v. Fallbrook Public Utility District et al., Civ. No. 3:51–cv–01247 (S.D.C.A.), including any litigation initiated to interpret or enforce the relative water rights in the Santa Margarita River Watershed pursuant to the continuing jurisdiction of the Adjudication Court over the Fallbrook Decree. (3) AFY The term AFY means acre-feet per year. (4) Allottee The term allottee means a member of a federally recognized Indian tribe who holds a beneficial real property interest in an Indian allotment that is— (A) located within the Reservation; and (B) held in trust by the United States. (5) Band (A) In general The term Band means the Pechanga Band of Luiseño Mission Indians, a federally recognized sovereign Indian tribe that functions as a custom and tradition Indian tribe, acting on behalf of itself and its members. (B) Exclusion The term Band does not include an individual member of the Band acting in the capacity of an allottee. (6) Claims The term claims means rights, claims, demands, actions, compensation, or causes of action, whether known or unknown, as of June 30, 2009. (7) EMWD The term EMWD means Eastern Municipal Water District, a municipal water district organized and existing in accordance with the Municipal Water District Law of 1911, Division 20 of the Water Code of the State of California, as amended. (8) EMWD connection fee The term EMWD Connection Fee has the meaning set forth in section 2.3(b) of the Extension of Service Area Agreement. (9) Enforceability date The term enforceability date means the date on which the Secretary publishes in the Federal Register the statement of findings described in section 7(e). (10) ESAA capacity agreement The term ESAA Capacity Agreement means the Agreement to Provide Capacity for Delivery of ESAA Water among the Band, RCWD, and the United States. (11) ESAA water The term ESAA Water means imported potable water that the Band receives from EMWD and MWD pursuant to the Extension of Service Area Agreement. (12) Extension of service area agreement The term Extension of Service Area Agreement means the Agreement for Extension of Existing Service Area, among the Band, EMWD, the United States, and MWD, for the provision of water service by EMWD to a designated portion of the Reservation using water supplied by MWD. (13) Fallbrook decree (A) In general The term Fallbrook Decree means the Modified Final Judgment And Decree, entered in the Adjudication Proceeding on April 6, 1966. (B) Inclusions The term Fallbrook Decree includes all court orders, interlocutory judgments, and decisions supplemental to the Modified Final Judgment And Decree, including Interlocutory Judgment No. 30, Interlocutory Judgment No. 35, and Interlocutory Judgment No. 41. (14) Fund The term Fund means the Pechanga Settlement Fund established by section 9. (15) Indian tribe The term Indian tribe has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b). (16) Injury to water rights The term injury to water rights means an interference with, diminution of, or deprivation of water rights under Federal or State law. (17) Interim capacity The term Interim Capacity has the meaning set forth in section 1 of the ESAA Capacity Agreement. (18) Interim capacity notice The term Interim Capacity Notice has the meaning set forth in section 4(b) of the ESAA Capacity Agreement. (19) MWD The term MWD means the Metropolitan Water District of Southern California, a metropolitan water district organized and incorporated under the Metropolitan Water District Act of the State of California (Stats. 1969, Chapter 209, as amended). (20) MWD connection fee The term MWD Connection Fee has the meaning set forth in section 2.3(a) of the Extension of Service Area Agreement. (21) Pechanga ESAA delivery capacity account The term Pechanga ESAA Delivery Capacity account means the account established by section 9(c)(2). (22) Pechanga recycled water infrastructure account The term Pechanga Recycled Water Infrastructure account means the account established by section 9(c)(1). (23) Pechanga settlement agreement The term Pechanga Settlement Agreement means the Pechanga Settlement Agreement, together with the exhibits to that agreement, entered into by the Band, the United States on behalf of the Band, its members and allottees, RCWD, and EMWD. (24) Pechanga water code The term Pechanga Water Code means a water code to be adopted by the Band in accordance with section 5(f). (25) Pechanga water fund account The term Pechanga Water Fund account means the account established by section 9(c)(3). (26) Pechanga Water quality account The term Pechanga Water Quality account means the account established by section 9(c)(4). (27) Permanent capacity The term Permanent Capacity has the meaning set forth in section 1 of the ESAA Capacity Agreement. (28) Permanent capacity notice The term Permanent Capacity Notice has the meaning set forth in section 5(b) of the ESAA Capacity Agreement. (29) RCWD (A) In general The term RCWD means the Rancho California Water District organized pursuant to section 34000 et seq. of the California Water Code. (B) Inclusions The term RCWD includes all real property owners for whom RCWD acts as an agent pursuant to an agency agreement. (30) Recycled water infrastructure agreement The term Recycled Water Infrastructure Agreement means the Agreement for Recycled Water Infrastructure among the Band, RCWD, and the United States. (31) Recycled water transfer agreement The term Recycled Water Transfer Agreement means the Recycled Water Transfer Agreement between the Band and RCWD. (32) Reservation (A) In general The term Reservation means the land depicted on the map attached to the Pechanga Settlement Agreement as exhibit I. (B) Applicability of term The term Reservation shall be used solely for the purposes of the Pechanga Settlement Agreement. (33) Santa margarita river watershed The term Santa Margarita River Watershed means the watershed that is the subject of the Adjudication Proceeding and the Fallbrook Decree. (34) Secretary The term Secretary means the Secretary of the Interior. (35) State The term State means the State of California. (36) Storage pond The term Storage Pond has the meaning set forth in section 1 of the Recycled Water Infrastructure Agreement. (37) Tribal water right The term Tribal Water Right means the water rights ratified, confirmed, and declared to be valid for the benefit of the Band and allottees of the Band, as set forth and described in section 5. 4. Approval of the Pechanga Settlement Agreement (a) Ratification of Pechanga Settlement Agreement (1) In general Except as modified by this Act, and to the extent that the Pechanga Settlement Agreement does not conflict with this Act, the Pechanga Settlement Agreement is authorized, ratified, and confirmed. (2) Amendments to Compact Any amendment to the Pechanga Settlement Agreement is authorized, ratified, and confirmed, to the extent that the amendment is executed to make the Pechanga Settlement Agreement consistent with this Act. (b) Execution of pechanga settlement agreement (1) In general To the extent that the Pechanga Settlement Agreement does not conflict with this Act, the Secretary is directed to and shall promptly execute— (A) the Pechanga Settlement Agreement (including any exhibits to or part of the Pechanga Settlement Agreement requiring the signature of the Secretary); and (B) any amendment to the Pechanga Settlement Agreement necessary to make the Pechanga Settlement Agreement consistent with this Act. (2) Modifications Nothing in this Act precludes the Secretary from approving modifications to exhibits to the Pechanga Settlement Agreement not inconsistent with this Act, to the extent those modifications do not otherwise require congressional approval pursuant to section 2116 of the Revised Statutes (25 U.S.C. 177) or other applicable Federal law. (c) Environmental compliance (1) In general In implementing the Pechanga Settlement Agreement, the Secretary shall promptly comply with all applicable requirements 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.); (C) all other applicable Federal environmental laws; and (D) all regulations promulgated under the laws described in subparagraphs (A) through (C). (2) Execution of the pechanga settlement agreement (A) In general Execution of the Pechanga Settlement Agreement by the Secretary under this section shall not constitute a major Federal action under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). (B) Compliance The Secretary is directed to carry out all Federal compliance necessary to implement the Pechanga Settlement Agreement. (3) Lead agency The Bureau of Reclamation shall be designated as the lead agency with respect to environmental compliance. 5. Tribal Water Right (a) Intent of congress It is the intent of Congress to provide to each allottee benefits that are equal to or exceed the benefits allottees possess as of 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 Pechanga Settlement Agreement and this Act; (2) the availability of funding under this Act; (3) the availability of water from the Tribal Water Right and other water sources as set forth in the Pechanga Settlement Agreement; 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. (b) Confirmation of tribal water right (1) In general The Tribal Water Right is ratified, confirmed, and declared to be valid. (2) Characteristics of tribal water right (A) In general The Tribal Water Right shall be equal to 4,994 AFY of water that is subject to the jurisdiction of the Adjudication Court. (B) Priority dates The priority date for— (i) 3,019 AFY of the Tribal Water Right shall be June 27, 1882; (ii) 182 AFY of the Tribal Water Right shall be August 29, 1893; (iii) 729 AFY of the Tribal Water Right shall be January 9, 1907; (iv) 563 AFY of the Tribal Water Right shall be March 11, 1907; and (v) 501 AFY of the Tribal Water Right shall be May 25, 1931. (3) Use Subject to the terms of the Pechanga Settlement Agreement, this Act, the Fallbrook Decree, and applicable Federal law, the Band may use the Tribal Water Right for any purpose on the Reservation. (c) Holding in trust The Tribal Water Right— (1) shall be held in trust by the United States on behalf of the Band and the allottees in accordance with this section; and (2) shall not be subject to forfeiture or abandonment. (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 Right. (2) Entitlement to water Any entitlement to water of an allottee who has allotted land that is located within the exterior boundaries of the Reservation under Federal law shall be satisfied from the Tribal Water Right. (3) Allocations Allotted land of an allottee that is located within the exterior boundaries of the Reservation shall be entitled to a just and equitable allocation of water for irrigation purposes from the water resources described in the Pechanga Settlement Agreement. (4) 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 Pechanga Water Code or other applicable tribal law. (5) Claims Following exhaustion of remedies available under the Pechanga Water Code or other applicable tribal law, an allottee may seek relief under section 7 of the Act of February 8, 1887 (25 U.S.C. 381), or other applicable law. (6) Authority The Secretary shall have the authority to protect the rights of allottees as specified in this section. (e) Authority of band (1) In general Except as provided in paragraph (2), the Band shall have authority to use, allocate, distribute, and lease the Tribal Water Right in accordance with— (A) the Pechanga Settlement Agreement; and (B) applicable Federal law. (2) Leases by allottees An allottee may lease any interest in land held by the allottee, together with any water right determined to be appurtenant to that interest in land. (f) Pechanga water code (1) In general Not later than 18 months after the enforceability date, the Band shall enact a Pechanga Water Code, that provides for— (A) the management, regulation, and governance of all uses of the Tribal Water Right in accordance with the Pechanga Settlement Agreement; and (B) establishment by the Band of conditions, permit requirements, and other limitations relating to the storage, recovery, and use of the Tribal Water Right in accordance with the Pechanga Settlement Agreement. (2) Inclusions The Pechanga Water Code shall provide— (A) that allocations of water to allottees shall be satisfied with water from the Tribal Water Right; (B) that charges for delivery of water for irrigation purposes for allottees shall be assessed in accordance with section 7 of the Act of February 8, 1887 (25 U.S.C. 381); (C) a process by which an allottee or water user on allotted land may request that the Band provide water for irrigation use in accordance with this Act; (D) a due process system for the consideration and determination by the Band of any request by an allottee, water user on allotted land, or any successor in interest to an allottee, for an allocation of such 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) a requirement that any allottee or water user on allotted land with a claim relating to the enforcement of rights of the allottee or water user under the Pechanga Water Code or relating to the amount of water allocated to land of the allottee shall first exhaust remedies available to the allottee under tribal law and the Pechanga Water Code before initiating an action against the United States or petitioning the Secretary pursuant to subsection (d)(4). (3) Action by secretary (A) In general The Secretary shall administer the Tribal Water Right until the Pechanga Water Code is enacted and approved in accordance with this section. (B) Approval Any provision of the Pechanga Water Code and any amendment to the Pechanga Water Code that affects the rights of allottees shall— (i) be subject to the approval of the Secretary; and (ii) not be valid until the date on which the amendment is approved by the Secretary. (C) Approval period The Secretary shall approve or disapprove the Pechanga Water Code within a reasonable period of time after the date on which the Band submits the Pechanga Water Code to the Secretary for approval. (g) Effect Except as otherwise specifically provided in this section, nothing in this Act— (1) authorizes any action by an allottee or water user on allotted land against any individual or entity, or against the Band, 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. 6. Satisfaction of claims (a) In general The benefits provided to the Band and the allottees under the Pechanga Settlement Agreement and this Act shall satisfy all claims of the Band and the allottees waived pursuant to section 7. (b) No recognition of water rights Except as provided in section 5(d), nothing in this Act recognizes or establishes any right of a member of the Band or an allottee to water within the Reservation. (c) Claims relating to development of water for reservation (1) In general The amounts authorized to be appropriated under section 11 shall be used to satisfy any claim of the allottees against the United States with respect to the development or protection of water resources for the Reservation. (2) Satisfaction of claims On the complete appropriation of amounts authorized to be appropriated under section 11, any claim of the allottees against the United States with respect to the development or protection of water resources for the Reservation shall be deemed to have been satisfied. 7. Waiver of claims (a) In general (1) Waiver of claims by the band and the United States (A) In general Subject to the retention of rights set forth in subsection (c), notwithstanding any provisions to the contrary in the Pechanga Settlement Agreement, the Band, and the United States on behalf of the Band and allottees, are authorized to execute waivers for any and all claims for water rights in the Santa Margarita River Watershed— (i) for land located within the Reservation in the Santa Margarita River Watershed arising from time immemorial and, thereafter, forever; and (ii) that are based on aboriginal occupancy for land overlying the Santa Margarita River Watershed arising from time immemorial and, thereafter, forever. (B) Claims against RCWD and EMWD Subject to the retention of rights set forth in subsection (c), notwithstanding any provisions to the contrary in the Pechanga Settlement Agreement, the Band and the United States on behalf of the Band and allottees fully release, acquit, and discharge RCWD and EMWD from— (i) claims for injuries to water rights in the Santa Margarita River Watershed for land located within the Reservation in that watershed arising or occurring at any time up to and including June 30, 2009; (ii) claims for injuries to water rights in the Santa Margarita River Watershed for land located within the Reservation in that watershed arising or occurring at any time after June 30, 2009, resulting from the diversion or use of water in a manner not in violation of the Pechanga Settlement Agreement or this Act; (iii) claims for subsidence damage to land located within the Reservation arising or occurring at any time up to and including June 30, 2009; (iv) claims for subsidence damage arising or occurring after June 30, 2009, to land located within the Reservation resulting from the diversion of underground water in a manner consistent with the Pechanga Settlement Agreement or this Act; and (v) claims arising out of, or relating in any manner to, the negotiation or execution of the Pechanga Settlement Agreement or the negotiation or execution of this Act. (2) Claims by the United states against the band Subject to the retention of rights set forth in subsection (c), to the extent consistent with this Act, the United States, in all its capacities (except as trustee for an Indian tribe other than the Band), as part of the performance of obligations under the Pechanga Settlement Agreement, is authorized to execute a waiver and release of any and all claims against the Band, including any agency, official, or employee of the Band, under Federal, State, or any other law for— (A) claims for injuries to water rights in the Santa Margarita River Watershed for land located within the Reservation in that watershed arising or occurring at any time up to and including June 30, 2009; (B) claims for injuries to water rights in the Santa Margarita River Watershed for land located within the Reservation in that watershed arising or occurring at any time after June 30, 2009, resulting from the diversion or use of water in a manner not in violation the Pechanga Settlement Agreement or this Act; (C) claims for subsidence damage to land located within the Reservation arising or occurring at any time up to and including June 30, 2009; (D) claims for subsidence damage arising or occurring after June 30, 2009, to land located within the Reservation resulting from the diversion of underground water in a manner not in violation of the Pechanga Settlement Agreement or this Act; and (E) claims arising out of, or relating in any manner to, the negotiation or execution of the Pechanga Settlement Agreement or the negotiation or execution of this Act. (3) Claims by the band against the United States Subject to the retention of rights set forth in subsection (c), the Band, on behalf of itself and its members, is authorized to 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 in, or water of, the Santa Margarita River Watershed that the United States, acting in its capacity as trustee for the Band, asserted, or could have asserted, in any proceeding, including the Adjudication Proceeding; (B) all claims against the United States, including the agencies and employees of the United States, relating to 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, or taking of water or water rights, or claims relating to failure to protect, acquire, replace, or develop water, water rights, or water infrastructure) in the Santa Margarita River Watershed that first accrued at any time up to and including June 30, 2009; (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 Band in the Adjudication Proceeding; and (D) all claims against the United States, including the agencies and employees of the United States, relating to the negotiation or execution of the Pechanga Settlement Agreement or the negotiation or execution of this Act. (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 authorized in this Act, the Band and the United States, acting in its capacity as trustee for the Band and allottees, retain— (1) claims for enforcement of the Pechanga Settlement Agreement and this Act; (2) claims against persons other than RCWD and EMWD; (3) claims for water rights that are outside the jurisdiction of the Adjudication Court; (4) claims for water rights for land within the Santa Margarita River Watershed that is outside the Reservation, subject to the condition that such claims are for water rights consistent with the water rights recognized for such land in the Fallbrook Decree; (5) rights to use and protect water rights acquired on or after the enforceability date; and (6) remedies, privileges, immunities, powers and claims, including claims for water rights, not specifically waived and released pursuant to this Act and the Pechanga Settlement Agreement. (d) Effect of pechanga settlement agreement and act Nothing in the Pechanga Settlement Agreement or this Act— (1) affects the ability of the United States or the Band, acting as sovereign, 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 implementing the Acts described in subparagraphs (A) through (C); (2) affects the ability of the United States to take actions acting as trustee for any other Indian tribe or an allottee of any other Indian tribe; (3) confers jurisdiction on any State court— (A) to interpret Federal law regarding health, safety, or the environment; (B) to determine the duties of the United States or other parties pursuant to Federal law regarding health, safety, or the environment; or (C) to conduct judicial review of Federal agency action; or (4) waives any claim of a member of the Band in an individual capacity that does not derive from a right of the Band. (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) the Pechanga Settlement Agreement has been approved by the Adjudication Court; (2) all amounts authorized by this Act have been deposited in the Fund; (3) the waivers and releases authorized in subsection (a) have been executed by the Band and the Secretary; and (4) the Extension of Service Area Agreement— (A) has been approved and executed by all the parties to the Extension of Service Area Agreement; and (B) is effective and enforceable in accordance with the terms of that Agreement. (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 earlier of— (A) April 30, 2030; (B) such alternate date as is agreed to by the Band and the Secretary; and (C) the enforceability date. (2) Effects 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. (3) Limitation Nothing in this section precludes the tolling of any period of limitations or any time-based equitable defense under any other applicable law. (g) Restriction If the full amount of appropriations authorized by this Act has not been made available to the Secretary by April 30, 2030— (1) the waivers authorized by this section shall expire and no longer have any force or effect; and (2) the statute of limitations for a claim waived under this section shall be tolled until April 30, 2030. (h) Voiding of waivers If the waivers authorized by this section are void under subsection (g)— (1) the approval of the United States of the Pechanga Settlement Agreement under section 4 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, and any water right or contract to use water and title to other property acquired or constructed with Federal funds appropriated or made available to carry out the activities authorized in this Act shall be returned to the Federal Government, unless otherwise agreed to by the Band 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 set off 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 asserted by the Band or in any future settlement of the water rights of the Band. 8. Water facilities (a) In general The Secretary shall, subject to the availability of appropriations, using amounts from the designated accounts of the Fund, provide the amounts necessary to fulfill the obligations of the Band under the Recycled Water Infrastructure Agreement and the ESAA Capacity Agreement, in an amount not to exceed the amounts deposited in the designated accounts for those purposes, in accordance with this Act and the terms and conditions of those agreements. (b) Nonreimbursability of costs All costs incurred by the Secretary in carrying out this section shall be nonreimbursable. (c) Recycled water infrastructure (1) In general The Secretary shall, using amounts from the Pechanga Recycled Water Infrastructure account, provide amounts for the Storage Pond in accordance with this section. (2) Storage pond (A) In general The Secretary shall, subject to the availability of appropriations, provide the amounts necessary to fulfill the obligations of the Band under the Recycled Water Infrastructure Agreement for the design and construction of the Storage Pond, in an amount not to exceed $2,500,000, adjusted for changes since June 30, 2009, in construction costs as indicated by engineering cost indices applicable to types of construction required to design and construct the Storage Pond. (B) Procedure The procedure for the Secretary to provide amounts pursuant to this section shall be as set forth in the Recycled Water Infrastructure Agreement. (C) Lead agency The Bureau of Reclamation shall be the lead agency for purposes of the implementation of this section. (D) Liability The United States shall have no responsibility or liability for the Storage Pond to be designed and constructed by RCWD. (E) Reversion If RCWD does not submit the Storage Pond notice to the Band by the date that is 3 years after the enforceability date, the amounts remaining in the Pechanga Recycled Water Infrastructure account for purposes of the design and construction of the Storage Pond, including any interest that has accrued on those amounts, shall revert to the general fund of the Treasury. (d) ESAA delivery capacity (1) In general The Secretary shall, using amounts from the Pechanga ESAA Delivery Capacity account, provide amounts for Interim Capacity and Permanent Capacity in accordance with this section. (2) Interim capacity (A) In general The Secretary shall, subject to the availability of appropriations, using amounts from the ESAA Delivery Capacity account, provide amounts necessary to fulfill the obligations of the Band under the ESAA Capacity Agreement for the provision by RCWD of Interim Capacity to the Band in an amount not to exceed $1,000,000. (B) Procedure The procedure for the Secretary to provide amounts pursuant to this section shall be as set forth in the ESAA Capacity Agreement. (C) Lead agency The Bureau of Reclamation shall be the lead agency for purposes of the implementation of this section. (D) Liability The United States shall have no responsibility or liability for the Interim Capacity to be provided by RCWD. (E) Transfer to Band If RCWD does not provide the Interim Capacity Notice required pursuant to the ESAA Capacity Agreement by the date that is 60 days after the date required under the ESAA Capacity Agreement, the amounts in the Pechanga ESAA Delivery Capacity account for purposes of the provision of Interim Capacity and Permanent Capacity, including any interest that has accrued on those amounts, shall be available for use by the Band to provide alternative interim capacity in a manner that is similar to the Interim Capacity and Permanent Capacity that the Band would have received had RCWD provided such Interim Capacity and Permanent Capacity. (3) Permanent capacity (A) In general On receipt of the Permanent Capacity Notice pursuant to section 5(b) of the ESAA Capacity Agreement, the Secretary, acting through the Bureau of Reclamation, shall enter into negotiations with RCWD and the Band to establish an agreement that will allow for the disbursement of amounts from the Pechanga ESAA Delivery Capacity account in accordance with subparagraph (B). (B) Schedule of disbursement (i) In general Subject to clause (ii), on execution of the ESAA Capacity Agreement, the Secretary shall, subject to the availability of appropriations and using amounts from the ESAA Delivery Capacity account, provide amounts necessary to fulfill the obligations of the Band under the ESAA Capacity Agreement for the provision by RCWD of Permanent Capacity to the Band in an amount not to exceed $22,000,000. (ii) Adjustment The amount under clause (i) shall be adjusted for changes in construction costs since June 30, 2009, as indicated by engineering cost indices applicable to types of construction required to design and construct the Permanent Capacity. (C) Procedure The procedure for the Secretary to provide funds pursuant to this section shall be as set forth in the ESAA Capacity Agreement. (D) Lead agency The Bureau of Reclamation shall be the lead agency for purposes of the implementation of this section. (E) Liability The United States shall have no responsibility or liability for the Permanent Capacity to be provided by RCWD. (F) Transfer to Band If RCWD does not provide the Permanent Capacity Notice required pursuant to the ESAA Capacity Agreement by the date that is 5 years after the enforceability date, the amounts in the Pechanga ESAA Delivery Capacity account for purposes of the provision of Permanent Capacity, including any interest that has accrued on those amounts, shall be available for use by the Band to provide alternative permanent capacity in a manner that is similar to the Permanent Capacity that the Band would have received had RCWD provided such Permanent Capacity. 9. Pechanga Settlement Fund (a) Establishment There is established in the Treasury of the United States a fund to be known as the Pechanga Settlement Fund, to be administered by the Secretary for the purpose of carrying out this Act. (b) Transfers to Fund The Fund shall consist of such amounts as are deposited in the Fund under section 11(a). (c) Accounts of pechanga settlement fund The Secretary shall establish in the Fund the following accounts: (1) Pechanga Recycled Water Infrastructure account, consisting of amounts authorized to be appropriated under section 11(a)(1). (2) Pechanga ESAA Delivery Capacity account, consisting of amounts authorized to be appropriated under section 11(a)(2). (3) Pechanga Water Fund account, consisting of amounts authorized to be appropriated under section 11(a)(3). (4) Pechanga Water Quality account, consisting of amounts authorized to be appropriated under section 11(a)(4). (d) Deposits to fund (1) In general The Secretary of the Treasury shall promptly deposit in the Fund any amounts appropriated to the Fund. (2) Deposits to accounts The Secretary of the Treasury shall deposit amounts in the accounts of the Fund established under subsection (c). (e) Management (1) In general The Secretary shall manage the Fund, make investments from the Fund, and make amounts available from the Fund for distribution to the Band consistent with the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.). (2) Investment of pechanga settlement fund The Secretary shall invest amounts in the Fund in accordance with— (A) the Act of April 1, 1880 (25 U.S.C. 161); (B) the first section of the Act of June 24, 1938 (25 U.S.C. 162a); and (C) the obligations of Federal corporations and Federal Government-sponsored entities, the charter documents of which provide that the obligations of the entities are lawful investments for federally managed funds, including— (i) the obligations of the United States Postal Service described in section 2005 of title 39, United States Code; (ii) bonds and other obligations of the Tennessee Valley Authority described in section 15d of the Tennessee Valley Authority Act of 1933 (16 U.S.C. 831n–4); (iii) mortgages, obligations, and other securities of the Federal Home Loan Mortgage Corporation described in section 303 of the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1452); and (iv) bonds, notes, and debentures of the Commodity Credit Corporation described in section 4 of the Act of March 8, 1938 (15 U.S.C. 713a–4). (3) Distributions from pechanga settlement fund (A) In general Amounts from the Fund shall be used in accordance with subparagraphs (B) through (E). (B) Pechanga recycled water infrastructure account The Pechanga Recycled Water Infrastructure account shall be used for expenditures by the Band in accordance with section 8(c). (C) Pechanga esaa delivery capacity account The Pechanga ESAA Delivery Capacity account shall be used for expenditures by the Band in accordance with section 8(d). (D) Pechanga water fund account The Pechanga Water Fund account shall be used for— (i) payment of the EMWD Connection Fee; (ii) payment of the MWD Connection Fee; and (iii) any expenses, charges, or fees incurred by the Band in connection with the delivery or use of water pursuant to the Pechanga Settlement Agreement. (E) Pechanga water quality account The Pechanga Water Quality account shall be used by the Band to fund groundwater desalination activities within the Wolf Valley Basin. (4) Withdrawals by band (A) In general The Band may withdraw any portion of amounts in the Fund on approval by the Secretary of a tribal management plan in accordance with the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.). (B) Requirements (i) 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 of the Band under subparagraph (A) shall require that the Band spend any amounts withdrawn from the Fund in accordance with this Act. (ii) Enforcement The Secretary may carry out such judicial or administrative actions as the Secretary determines to be necessary to enforce a tribal management plan to ensure that amounts withdrawn by the Band from the Fund under this paragraph are used in accordance with this Act. (C) Liability The Secretary and the Secretary of the Treasury shall not be liable for the expenditure or investment of amounts withdrawn from the Fund by the Band under this paragraph. (D) Expenditure plan (i) In general For each fiscal year, the Band shall submit to the Secretary for approval an expenditure plan for any portion of the amounts described in subparagraph (A) that the Band elects not to withdraw under this paragraph during the fiscal year. (ii) Inclusion An expenditure plan under clause (i) shall include a description of the manner in which, and the purposes for which, funds of the Band remaining in the Fund will be used during subsequent fiscal years. (iii) Approval On receipt of an expenditure plan under clause (i), the Secretary shall approve the plan if the Secretary determines that the plan is— (I) reasonable; and (II) consistent with this Act. (5) Annual reports The Band shall submit to the Secretary annual reports describing each expenditure by the Band of amounts in the Fund during the preceding calendar year. (6) Certain per capita distributions prohibited No amounts in the Fund shall be distributed to any member of the Band on a per capita basis. (f) Availability Amounts in the Fund shall be available for use by the Secretary and withdrawal by the Band beginning on the enforceability date. 10. Miscellaneous provisions (a) Waiver of sovereign immunity by the united states 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 Band. (c) Limitation on claims for reimbursement With respect to Indian land within the Reservation— (1) the United States shall not submit against any Indian-owned land located within the Reservation any claim for reimbursement of the cost to the United States of carrying out this Act and the Pechanga Settlement Agreement; and (2) no assessment of any Indian-owned land located within the Reservation shall be made regarding that cost. (d) 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. 11. Authorization of appropriations (a) Authorization of appropriations (1) Pechanga recycled water infrastructure account There is authorized to be appropriated $2,500,000, for deposit in the Pechanga Recycled Water Infrastructure account, adjusted for changes in construction costs since June 30, 2009, in engineering cost indices applicable to types of construction required to design and construct the Storage Pond, to carry out the activities described in section 8(c). (2) Pechanga esaa delivery capacity account There is authorized to be appropriated $23,000,000, for deposit in the Pechanga ESAA Delivery Capacity account, adjusted for changes in construction costs since June 30, 2009, in engineering cost indices applicable to types of construction required to provide the Interim Capacity and the Permanent Capacity, to carry out the activities described in paragraphs (2) and (3) of section 8(d). (3) Pechanga water fund account There is authorized to be appropriated $12,232,000 for deposit in the Pechanga Water Fund account, adjusted to reflect changes in appropriate cost indices during the period beginning on the date of enactment and ending on the date of appropriation, for the purposes set forth in section 9(e)(3)(D). (4) Pechanga water quality account There is authorized to be appropriated $2,460,000 for deposit in the Pechanga Water Quality account, adjusted to reflect changes in appropriate cost indices during the period beginning on the date of enactment and ending on the date of appropriation, for the purposes set forth in section 9(e)(3)(E). 12. Repeal on failure of enforceability date If the Secretary does not publish a statement of findings under section 7(e) by April 30, 2030, or such alternative later date as is agreed to by the Band and the Secretary, as applicable— (1) this Act is repealed effective on the later of May 1, 2030, or the day after the alternative date agreed to by the Band and the Secretary; (2) any action taken by the Secretary and any contract or agreement pursuant to the authority provided under any provision of this Act shall be void; (3) any amounts appropriated under section 11, together with any interest on those amounts, shall immediately revert to the general fund of the Treasury; and (4) any amounts made available under section 11 that remain unexpended shall immediately revert to the general fund of the Treasury. 13. Antideficiency The United States shall not be liable for any failure to carry out any obligation or activity authorized to be carried out by this Act (including any obligation or activity under the Pechanga Settlement Agreement) 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 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)).