[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 2727 Introduced in Senate (IS)]
113th CONGRESS
2d Session
S. 2727
To approve and implement the Klamath Basin agreements, to improve
natural resource management, support economic development, and sustain
agricultural production in the Klamath River Basin in the public
interest and the interest of the United States, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 31, 2014
Mr. Wyden (for himself and Mr. Merkley) introduced the following bill;
which was read twice and referred to the Committee on Finance
_______________________________________________________________________
A BILL
To approve and implement the Klamath Basin agreements, to improve
natural resource management, support economic development, and sustain
agricultural production in the Klamath River Basin in the public
interest and the interest of 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 ``Klamath Basin Water Recovery and
Economic Restoration Act of 2014''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Agreement.--The term ``Agreement'' means each of--
(A) the Restoration Agreement; and
(B) the Upper Basin Agreement.
(2) Commission.--The term ``Commission'' means the Federal
Energy Regulatory Commission.
(3) Facilities removal.--The term ``facilities removal''
means--
(A) physical removal of all or part of each
facility to achieve, at a minimum, a free-flowing
condition and volitional fish passage;
(B) site remediation and restoration, including
restoration of previously inundated land;
(C) measures to avoid or minimize adverse
downstream impacts; and
(D) all associated permitting for the actions
described in this paragraph.
(4) Facility.--The term ``facility'' means the following 1
or more hydropower facilities (including appurtenant works
licensed to PacifiCorp) within the jurisdictional boundary of
the Klamath Hydroelectric Project, FERC Project No. 2082 (as
applicable):
(A) Iron Gate Dam.
(B) Copco No. 1 Dam.
(C) Copco No. 2 Dam.
(D) J.C. Boyle Dam.
(5) Hydroelectric settlement.--The term ``Hydroelectric
Settlement'' means the agreement entitled ``Klamath
Hydroelectric Settlement Agreement'' and dated February 18,
2010 (including any amendments to that agreement approved
pursuant to section 3(a)).
(6) Joint management entity.--The term ``Joint Management
Entity'' means the entity that--
(A) is comprised of the Landowner Entity, the
Klamath Tribes, the United States, and the State of
Oregon;
(B) represents the interests of the parties to the
Upper Basin Agreement; and
(C) is responsible for overseeing implementation of
the Upper Basin Agreement, as described in section 7 of
the Upper Basin Agreement.
(7) Joint management entity technical team.--The term
``Joint Management Entity Technical Team'' means the group of
specialists appointed by the Joint Management Entity as
provided for in section 7.8 of the Upper Basin Agreement.
(8) Keno facility.--The term ``Keno Facility'' means the
dam located in Klamath County, Oregon, land underlying the dam,
appurtenant facilities, and PacifiCorp-owned property described
as Klamath County Map Tax Lot R-3907-03600-00200-000.
(9) Klamath basin.--
(A) In general.--The term ``Klamath Basin'' means
the land tributary to the Klamath River in Oregon and
California.
(B) Inclusions.--The term ``Klamath Basin''
includes the Lost River and Tule Lake Basins.
(10) Klamath project.--
(A) In general.--The term ``Klamath Project'' means
the Bureau of Reclamation project in the States of
California and Oregon, as authorized under the Act of
June 17, 1902 (32 Stat. 388, chapter 1093).
(B) Inclusions.--The term ``Klamath Project''
includes any dams, canals, and other works and
interests for water diversion, storage, delivery, and
drainage, flood control, and similar functions that are
part of the project described in subparagraph (A).
(11) Klamath project water users.--The term ``Klamath
Project Water Users'' has the meaning given the term in the
Restoration Agreement.
(12) Landowner entity.--The term ``Landowner Entity'' means
the entity established pursuant to section 8 of the Upper Basin
Agreement.
(13) Off-project area.--The term ``Off-Project Area''
means--
(A) the areas within the Sprague River, Sycan
River, Williamson River, and Wood Valley (including the
Wood River, Crooked Creek, Sevenmile Creek, Fourmile
Creek, and Crane Creek) subbasins referred to in
Exhibit B of the Upper Basin Agreement; and
(B) to the extent provided for in the Upper Basin
Agreement, any other areas for which claims described
by section 1.3 or 2.5.1 of the Upper Basin Agreement
are settled as provided for in section 2.5.1 of the
Upper Basin Agreement.
(14) Off-project irrigator.--The term ``Off-Project
Irrigator'' means any person that is--
(A)(i) a claimant for water rights for irrigation
uses in the Off-Project Area in Oregon's Klamath Basin
Adjudication; or
(ii) a holder of a State of Oregon water right
permit or certificate for irrigation use in the Off-
Project Area; and
(B) a Party to the Upper Basin Agreement.
(15) Oregon's klamath basin adjudication.--The term
``Oregon's Klamath Basin adjudication'' means the proceeding to
determine surface water rights pursuant to chapter 539 of the
Oregon Revised Statutes entitled ``In the matter of the
determination of the relative rights of the waters of the
Klamath River, a tributary of the Pacific Ocean'', in the
Circuit Court of the State of Oregon for the County of Klamath,
numbered WA 1300001.
(16) Pacificorp.--The term ``PacifiCorp'' means the owner
and licensee of the facility (as of the date of enactment of
this Act).
(17) Party tribes.--The term ``Party tribes'' means--
(A) the Yurok Tribe;
(B) the Karuk Tribe;
(C) the Klamath Tribes; and
(D) such other federally recognized tribes of the
Klamath Basin as may become party to the Restoration
Agreement after the date of enactment of this Act.
(18) Restoration agreement.--The term ``Restoration
Agreement'' means the agreement entitled ``Klamath River Basin
Restoration Agreement for the Sustainability of Public and
Trust Resources and Affected Communities'' and dated February
18, 2010 (including amendments adopted prior to the date of
enactment of this Act and any further amendments to that
agreement approved pursuant to section 3(a)).
(19) Riparian program.--The term ``Riparian Program'' means
the program described in section 4 of the Upper Basin
Agreement.
(20) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(21) Secretaries.--The term ``Secretaries'' means each of--
(A) the Secretary of the Interior;
(B) the Secretary of Commerce; and
(C) the Secretary of Agriculture.
(22) Settlements.--The term ``Settlements'' means each of--
(A) the Hydroelectric Settlement;
(B) the Restoration Agreement; and
(C) the Upper Basin Agreement.
(23) Upper basin agreement.--The term ``Upper Basin
Agreement'' means the agreement entitled ``Upper Klamath Basin
Comprehensive Agreement'' and dated April 18, 2014 (including
any amendments to that agreement approved pursuant to section
3(a)).
(24) Water use program.--The term ``Water Use Program''
means the program described in section 3 of the Upper Basin
Agreement and section 16.2 of the Restoration Agreement.
SEC. 3. AUTHORIZATION, EXECUTION, AND IMPLEMENTATION OF SETTLEMENTS.
(a) Ratification of Settlements.--
(1) In general.--Except as modified by this Act, and to the
extent that the Settlements do not conflict with this Act, the
Settlements are authorized, ratified, and confirmed.
(2) Amendments consistent with this act.--If any amendment
is executed to make any of the Settlements consistent with this
Act, the amendment is also authorized, ratified, and confirmed
to the extent the amendment is consistent with this Act.
(3) Further amendments.--If any amendment to any of the
Settlements is executed by the parties to the applicable
Settlement after the date of enactment of this Act, unless the
Secretary, the Secretary of Commerce, or Secretary of
Agriculture determines, not later than 90 days after the date
on which the non-Federal parties agree to the amendment, that
the amendment is inconsistent with this Act or other provisions
of law, the amendment is also authorized, ratified, and
confirmed to the extent the amendment--
(A) is not inconsistent with this Act or other
provisions of law;
(B) is executed in a manner consistent with the
terms of the applicable Settlement; and
(C) does not require congressional approval
pursuant to section 2116 of the Revised Statutes (25
U.S.C. 177) or other applicable Federal law.
(b) Execution and Implementation of Settlements.--
(1) The agreements.--
(A) In general.--As authorized, ratified, and
confirmed pursuant to subsection (a)--
(i) the Secretary, the Secretary of
Commerce, and the Secretary of Agriculture
shall promptly execute and implement the
Restoration Agreement; and
(ii) the Secretary and the Secretary of
Commerce shall promptly execute and implement
the Upper Basin Agreement.
(B) Effect of executing agreements.--
Notwithstanding subsection (l), execution by the
applicable Secretaries under subparagraph (A) of either
Agreement shall not be considered a major Federal
action under the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.).
(C) Participation in the upper basin agreement.--As
provided for in the Upper Basin Agreement and as part
of implementing the Upper Basin Agreement, the
Secretary and the Secretary of Commerce may--
(i) participate in the Water Use Program
and in the Riparian Program; and
(ii) serve as members of the Joint
Management Entity representing the Bureau of
Indian Affairs, the United States Fish and
Wildlife Service, the United States Geological
Survey, and the National Marine Fisheries
Service of the Department of Commerce, with the
Secretary serving as the voting member, as
described in section 7.1.5 of the Upper Basin
Agreement.
(2) Hydroelectric settlement.--To the extent that the
Hydroelectric Settlement does not conflict with this Act, the
Secretary, the Secretary of Commerce, and the Commission shall
implement the Hydroelectric Settlement, in consultation with
other applicable Federal agencies.
(c) Federal Responsibilities.--To the extent consistent with the
Settlements, this Act, and other provisions of law, the Secretary, the
Secretary of Commerce, the Secretary of Agriculture, and the Commission
shall perform all actions necessary to carry out each responsibility of
the Secretary, the Secretary of Commerce, the Secretary of Agriculture,
and the Commission, respectively, under the Settlements.
(d) Environmental Compliance.--In implementing the Settlements, the
Secretaries and the Commission 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 law.
(e) Publication of Notice; Effect of Publication.--
(1) Restoration agreement.--
(A) Publication.--The Secretary shall publish the
notice required by section 15.3.4.A or section 15.3.4.C
of the Restoration Agreement, as applicable, in
accordance with the Restoration Agreement.
(B) Effect of publication.--Publication of the
notice described in subparagraph (A) shall have the
effects on the commitments, rights, and obligations of
the Party tribes, the United States (as trustee for the
federally recognized tribes of the Klamath Basin), and
other parties to the Restoration Agreement as the
rights and obligations that are provided for in the
Restoration Agreement.
(2) Upper basin agreement.--
(A) Publication.--The Secretary shall publish the
notice required by section 10.1 of the Upper Basin
Agreement if all requirements of section 10 of the
Upper Basin Agreement have been fulfilled, including
the requirement for notice by the Klamath Tribes of the
willingness of the Tribes to proceed with the Upper
Basin Agreement following enactment of authorizing
legislation as described in section 10.1.10 or 10.2 of
the Upper Basin Agreement, as applicable, in accordance
with the Upper Basin Agreement.
(B) Effect of publication.--
(i) Permanency.--On publication of the
notice required under section 10.1 of the Upper
Basin Agreement, the Upper Basin Agreement
shall become permanent.
(ii) Termination.--On publication of the
notice required under section 10.2 of the Upper
Basin Agreement, the Upper Basin Agreement
shall terminate, according to the terms of that
section.
(3) Judicial review.--
(A) In general.--Judicial review of a decision of
the Secretary pursuant to this subsection shall be in
accordance with the standard and scope of review under
subchapter II of chapter 5, and chapter 7, of title 5,
United States Code (commonly known as the
``Administrative Procedure Act'').
(B) Deadline.--Any petition for review under this
subparagraph shall be filed not later than 1 year after
the date of publication of the notice required under
this paragraph.
(f) Eligibility for Funds Protected.--Notwithstanding any other
provision of law, nothing in this Act or the implementation of the
Settlements, other than as explicitly provided for in this Act or the
Settlements--
(1) restricts or alters the eligibility of any party to any
of the Settlements, or of any Indian tribe, for the receipt of
funds; or
(2) shall be considered an offset against any obligations
or funds in existence on the date of enactment of this Act,
under any Federal or State law.
(g) Tribal Rights Protected.--Nothing in this Act or the
Settlements--
(1) affects the rights of any Indian tribe outside the
Klamath Basin; or
(2) amends, alters, or limits the authority of the Indian
tribes of the Klamath Basin to exercise any water rights the
Indian tribes hold or may be determined to hold except as
expressly provided in the Agreements.
(h) Water Rights.--
(1) In general.--Except as specifically provided in this
Act and the Settlements, nothing in this Act or the Settlements
creates or determines water rights or affects water rights or
water right claims in existence on the date of enactment of
this Act.
(2) No standard for quantification.--Nothing in this Act or
the Settlements establishes any standard for the quantification
of Federal reserved water rights or any water claims of any
Indian tribe in any judicial or administrative proceeding.
(i) Willing Sellers.--Any acquisition of interests in land or water
pursuant to either Agreement shall be from willing sellers.
(j) No Private Right of Action.--
(1) In general.--Nothing in this Act confers on any person
or entity not a party to the Settlements a private right of
action or claim for relief to interpret or enforce this Act or
the Settlements.
(2) Other law.--This subsection does not alter or curtail
any right of action or claim for relief under any other
applicable law.
(k) State Courts.--Nothing in this Act expands the jurisdiction of
State courts to review Federal agency actions or determine Federal
rights.
(l) Relationship to Certain Other Federal Law.--
(1) In general.--Nothing in this Act amends, supersedes,
modifies, or otherwise affects--
(A) Public Law 88-567 (16 U.S.C. 695k et seq.),
except as provided in section 4(c);
(B) the National Wildlife Refuge System
Administration Act of 1966 (16 U.S.C. 668dd et seq.);
(C) the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.);
(D) the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.);
(E) the Federal Water Pollution Control Act (33
U.S.C. 1251 et seq.), except to the extent section
8(b)(4) of this Act requires a permit under section 404
of that Act (33 U.S.C. 1344), notwithstanding section
404(r) of that Act (33 U.S.C. 1344(r));
(F) the Federal Land Policy and Management Act of
1976 (43 U.S.C. 1701 et seq.);
(G) the Treaty between the United States and the
Klamath and Moadoc Tribes and the Yahooskin Band of
Snake Indians dated October 14, 1864 (16 Stat. 707); or
(H) the Klamath Indian Tribe Restoration Act (25
U.S.C. 566 et seq.).
(2) Consistency.--The Agreements shall be considered
consistent with subsections (a) through (c) of section 208 of
the Department of Justice Appropriation Act, 1953 (43 U.S.C.
666).
(3) Federal advisory committee act.--The actions of the
Joint Management Entity and the Joint Management Entity
Technical Team shall not be subject to the Federal Advisory
Committee Act (5 U.S.C. App.).
(m) Waiver of Sovereign Immunity by the United States.--Except as
provided in subsections (a) through (c) of section 208 of the
Department of Justice Appropriations Act, 1953 (43 U.S.C. 666), nothing
in this Act or the implementation of the Settlements waives the
sovereign immunity of the United States.
(n) Waiver of Sovereign Immunity by the Party Tribes.--Nothing in
this Act waives or abrogates the sovereign immunity of the Party
tribes.
SEC. 4. KLAMATH PROJECT AUTHORIZED PURPOSES.
(a) Klamath Project Purposes.--
(1) In general.--Subject to paragraph (2) and subsection
(b), the purposes of the Klamath Project include--
(A) irrigation;
(B) reclamation;
(C) flood control;
(D) municipal;
(E) industrial;
(F) power;
(G) fish and wildlife purposes; and
(H) National Wildlife Refuge purposes.
(2) Effect of fish and wildlife purposes.--
(A) In general.--Subject to subparagraph (B), the
fish and wildlife purposes of the Klamath Project
authorized under paragraph (1) shall not adversely
affect the irrigation purpose of the Klamath Project.
(B) Water allocations and delivery.--
Notwithstanding subparagraph (A), the water allocations
and delivery to the National Wildlife Refuges provided
for in the Restoration Agreement shall not constitute
an adverse effect on the irrigation purpose of the
Klamath Project for purposes of this paragraph.
(b) Water Rights Adjudication.--For purposes of the determination
of water rights in Oregon's Klamath Basin adjudication, until the date
on which the Appendix E-1 to the Restoration Agreement is filed in
Oregon's Klamath Basin adjudication pursuant to the Restoration
Agreement, the purposes of the Klamath Project shall be the purposes in
effect on the day before the date of enactment of this Act.
(c) Disposition of Net Revenues From Leasing of Tule Lake and Lower
Klamath National Wildlife Refuge Land.--Notwithstanding any other
provision of law, net revenues from the leasing of refuge land within
the Tule Lake National Wildlife Refuge and Lower Klamath National
Wildlife Refuge under section 4 of Public Law 88-567 (78 Stat. 851)
(commonly known as the ``Kuchel Act''), shall be provided directly,
without further appropriation, as follows:
(1) 10 percent of net revenues from land within the Tule
Lake National Wildlife Refuge that are within the boundaries of
Tulelake Irrigation District to Tulelake Irrigation District,
as provided in article 4 of Contract No. 14-06-200-5954 and
section 2(a) of the Act of August 1, 1956 (70 Stat. 799,
chapter 828).
(2) Such amounts as are necessary to counties as payments
in lieu of taxes as provided in section 3 of Public Law 88-567
(16 U.S.C. 695m).
(3) 20 percent of net revenues to the Klamath Basin
National Wildlife Refuge Complex of the United States Fish and
Wildlife Service, for wildlife management purposes on the Tule
Lake National Wildlife Refuge and the Lower Klamath National
Wildlife Refuge.
(4) 10 percent of net revenues from land within the Lower
Klamath National Wildlife Refuge that are within the boundaries
of the Klamath Drainage District to Klamath Drainage District,
for operation and maintenance responsibility for the Federal
reclamation water delivery and drainage facilities within the
boundaries of the Klamath Drainage District and the Lower
Klamath National Wildlife Refuge exclusive of the Klamath
Straits Drain, subject to a transfer agreement with the Bureau
of Reclamation under which the Klamath Drainage District
assumes the operation and maintenance duties of the Bureau of
Reclamation for Klamath Drainage District (Area K) lease land
exclusive of Klamath Straits Drain.
(5) The remainder of net revenues to the Bureau of
Reclamation for--
(A) operation and maintenance costs of Link River
and Keno Dams incurred by the United States; and
(B) to the extent that the revenues received under
this paragraph for any year exceed the costs described
in subparagraph (A)--
(i) future capital costs of the Klamath
Project; or
(ii) the Renewable Power Program described
in section 17.7 of the Restoration Agreement,
pursuant to an expenditure plan submitted to
and approved by the Secretary.
SEC. 5. TRIBAL COMMITMENTS; RELEASE OF CLAIMS.
(a) Actions by Klamath Tribes.--
(1) Restoration agreement commitments acknowledged and
agreed to.--In consideration for the resolution of any contest
or exception of the Klamath Project Water Users to the water
rights claims of the Klamath Tribes and the United States
(acting as trustee for the Klamath Tribes and members of the
Klamath Tribes in Oregon's Klamath Basin adjudication), and for
the other commitments of the Klamath Project Water Users
described in the Restoration Agreement, and for other benefits
described in the Restoration Agreement and this Act, the
Klamath Tribes (on behalf of the Klamath Tribes and the members
of the Klamath Tribes) may make the commitments provided in the
Restoration Agreement.
(2) Upper basin agreement commitments acknowledged and
agreed to.--In consideration for the resolution of any contest
or exception of the Off-Project Irrigators to the water rights
claims of the Klamath Tribes and the United States (acting as
trustee for the Klamath Tribes and members of the Klamath
Tribes in Oregon's Klamath Basin adjudication), and for the
other commitments of the Off-Project Irrigators described in
the upper Basin Agreement, and for other benefits described in
the Upper Basin Agreement and this Act, the Klamath Tribes (on
behalf of the Klamath Tribes and the members of the Klamath
Tribes) may make the commitments provided in the Upper Basin
Agreement.
(3) No further action required.--Except as provided in
subsection (c), the commitments described in paragraphs (1) and
(2) are confirmed as effective and binding, in accordance with
the terms of the commitments, without further action by the
Klamath Tribes.
(4) Additional commitments.--The Klamath Tribes (on behalf
of the tribe and the members of the tribe) may make additional
commitments and assurances in exchange for the resolution of
its claims described in section 1.3.1 or 2.5.1 of the Upper
Basin Agreement, subject to the conditions that the commitments
and assurances shall be--
(A) consistent with this Act, the Settlements, and
other applicable provisions of law, based on the
totality of the circumstances; and
(B) covered by a written agreement signed by the
Klamath Tribes and the United States (acting as trustee
for the tribe and the members of the tribe in Oregon's
Klamath Basin adjudication) pursuant to subsection (f).
(b) Actions by Karuk Tribe and Yurok Tribe.--
(1) Commitments acknowledged and agreed to.--In
consideration for the commitments of the Klamath Project Water
Users described in the Restoration Agreement, and other
benefits described in the Restoration Agreement and this Act,
the Karuk Tribe and the Yurok Tribe (on behalf of the tribe and
the members of the tribe) may make the commitments provided in
the Restoration Agreement.
(2) No further action required.--Except as provided in
subsection (c), the commitments described in paragraph (1) are
confirmed as effective and binding, in accordance with the
terms of the commitments, without further action by the Yurok
Tribe or Karuk Tribe.
(c) Release of Claims by Party Tribes.--
(1) In general.--Subject to paragraph (2), subsection (d),
and the Agreements, but without otherwise affecting any right
secured by a treaty, Executive order, or other law, the Party
tribes (on behalf of the tribes and the members of the tribes)
may relinquish and release certain claims against the United
States (including any Federal agencies and employees) described
in sections 15.3.5.A, 15.3.6.B.i, and 15.3.7.B.i of the
Restoration Agreement and, in the case of the Klamath Tribes,
section 2.5 of the Upper Basin Agreement.
(2) Conditions.--The relinquishments and releases under
paragraph (1) shall not take force or effect until the terms
described in sections 15.3.5.C, 15.3.5.D, 15.3.6.B.iii,
15.3.7.B.iii, 15.3.7.B.iv, and 33.2.1 of the Restoration
Agreement and sections 2.4 and 10 of the Upper Basin Agreement
have been fulfilled.
(d) Retention of Rights of Party Tribes.--Notwithstanding
subsections (a) through (c) or any other provision of this Act, the
Party tribes (on behalf of the tribes and the members of the tribes)
and the United States (acting as trustee for the Party tribes), shall
retain--
(1) all claims and rights described in sections 15.3.5.B,
15.3.6.B.ii, and 15.3.7.B.ii of the Restoration Agreement; and
(2) any other claims and rights retained by the Party
Tribes in negotiations pursuant to section 15.3.5.D,
15.3.6.B.iv, and 15.3.7.B.iv of the Restoration Agreement.
(e) Tolling of Claims.--
(1) In general.--Subject to paragraph (2), the period of
limitation and time-based equitable defense relating to a claim
described in subsection (c) shall be tolled during the period--
(A) beginning on the date of enactment of this Act;
and
(B) ending on the earlier of--
(i) the date on which the Secretary
publishes the notice described in sections
15.3.5.C, 15.3.6.B.iii, and 15.3.7.B.iii of the
Restoration Agreement; or
(ii) December 1, 2030.
(2) Effect of tolling.--Nothing in this subsection--
(A) revives any claim or tolls any period of
limitation or time-based equitable defense that expired
before the date of enactment of this Act; or
(B) precludes the tolling of any period of
limitation or any time-based equitable defense under
any other applicable law.
(f) Actions of United States as Trustee.--
(1) Restoration agreement commitments authorized.--In
consideration for the commitments of the Klamath Project Water
Users described in the Restoration Agreement and for other
benefits described in the Restoration Agreement and this Act,
the United States, acting as trustee for the federally
recognized tribes of the Klamath Basin and the members of such
tribes, may make the commitments provided in the Restoration
Agreement.
(2) Upper basin agreement commitments authorized.--In
consideration for the commitments of the Off-Project Irrigators
described in the Upper Basin Agreement and for other benefits
described in the Upper Basin Agreement and this Act, the United
States, acting as trustee for the Klamath Tribes and the
members of the Klamath Tribes, may make the commitments
provided in the Upper Basin Agreement.
(3) No further action.--The commitments described in
paragraphs (1) and (2) are confirmed as effective and binding,
in accordance with the terms of the commitments, without
further action by the United States.
(4) Additional commitments.--The United States, acting as
trustee for the Klamath Tribes and the members of the Klamath
Tribes in Oregon's Klamath Basin Adjudication, may make
additional commitments and assurances of rights in exchange for
the resolution of the tribal water right claims described in
section 1.3.1 or 2.5.1 of the Upper Basin Agreement, subject to
the conditions that the commitments or assurances shall be--
(A) consistent with this Act, the Settlements, and
other applicable provisions of law, based on the
totality of the circumstances; and
(B) covered by a written agreement signed by the
Klamath Tribes and the United States (acting as trustee
for the Klamath Tribes and the members of the tribe in
Oregon's Klamath Basin adjudication) under subsection
(a)(3)(B).
(g) Judicial Review.--Judicial review of a decision of the
Secretary concerning any right or obligation under section 15.3.5.C,
15.3.6.B.iii, 15.3.7.B.iii, 15.3.8.B, or 15.3.9 of the Restoration
Agreement shall be in accordance with the standard and scope of review
under subchapter II of chapter 5, and chapter 7, of title 5, United
States Code (commonly known as the ``Administrative Procedure Act'').
(h) Effect of Section.--Nothing in this section--
(1) affects the ability of the United States to take any
action--
(A) authorized by law to be taken in the sovereign
capacity of the United States, including any law
relating to health, safety, or the environment,
including--
(i) the Federal Water Pollution Control Act
(33 U.S.C. 1251 et seq.);
(ii) the Safe Drinking Water Act (42 U.S.C.
300f et seq.);
(iii) the Solid Waste Disposal Act (42
U.S.C. 6901 et seq.);
(iv) the Comprehensive Environmental
Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601 et seq.);
(v) the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.); and
(vi) regulations implementing the Acts
described in this subparagraph; and
(B) as trustee for the benefit of any federally
recognized Indian tribe other than an Indian tribe of
the Klamath Basin;
(C) as trustee for the Party tribes to enforce the
Agreements and this Act through such legal and
equitable remedies as are available in an appropriate
United States court or State court or administrative
proceeding, including Oregon's Klamath Basin
adjudication; or
(D) as trustee for the federally recognized Indian
tribes of the Klamath Basin and the members of the
tribes, in accordance with the Agreements and this
Act--
(i) to acquire water rights after the
effective date of the Agreements (as defined in
section 1.5.1 of the Restoration Agreement and
section 14.3 of the Upper Basin Agreement);
(ii) to use and protect water rights,
including water rights acquired after the
effective date of the Agreements (as defined in
section 1.5.1 of the Restoration Agreement and
section 14.3 of the Upper Basin Agreement),
subject to the Agreements; or
(iii) to claim a water right or continue to
advocate for an existing claim for water rights
in an appropriate United States court or State
court or administrative proceeding, subject to
the Agreements;
(2) affects the treaty fishing, hunting, trapping,
pasturing, or gathering right of any Indian tribe except to the
extent expressly provided in this Act or the Agreements; or
(3) affects any right, remedy, privilege, immunity, power,
or claim not specifically relinquished and released under, or
limited by, this Act or the Agreements.
SEC. 6. WATER AND POWER PROVISIONS.
The Klamath Basin Water Supply Enhancement Act of 2000 (Public Law
106-498; 114 Stat. 2221) is amended--
(1) by redesignating sections 4 through 6 as sections 5
through 7, respectively; and
(2) by inserting after section 3 the following:
``SEC. 4. WATER MANAGEMENT AND PLANNING ACTIVITIES.
``(a) Definitions.--In this section:
``(1) Off-project area.--The term `Off-Project Area'
means--
``(A) the areas within the Sprague River, Sycan
River, Williamson River, and Wood Valley (including
Crooked Creek, Sevenmile Creek, Fourmile Creek, and
Crane Creek) subbasins referred to in Exhibit B of the
Upper Basin Agreement; and
``(B) to the extent provided for in the Upper Basin
Agreement, any other areas for which claims described
by section 1.3 or 2.5.1 of the Upper Basin Agreement
are settled as provided for in section 2.5.1 of the
Upper Basin Agreement.
``(2) On-project power user.--The term `On-Project Power
User' has the meaning given the term in the Restoration
Agreement.
``(3) Restoration agreement.--The term `Restoration
Agreement' means the agreement entitled `Klamath River Basin
Restoration Agreement for the Sustainability of Public and
Trust Resources and Affected Communities' and dated February
18, 2010 (including any amendments adopted prior to the date of
enactment of this Act and any further amendment to that
agreement approved pursuant to section 3(a) of the Klamath
Basin Water Recovery and Economic Restoration Act of 2014).
``(4) Upper basin agreement.--The term `Upper Basin
Agreement' means the agreement entitled `Upper Klamath Basin
Comprehensive Agreement' and dated April 18, 2014 (including
any amendment to that agreement).
``(b) Action by Secretary.--The Secretary may carry out any
activities, including by entering into an agreement or contract or
otherwise making financial assistance available--
``(1) to align water supplies with demand, including
activities to reduce water consumption and demand, consistent
with the Restoration Agreement or the Upper Basin Agreement;
``(2) to limit the net costs of power used to manage water
(including by arranging for delivery of Federal power,
consistent with the Restoration Agreement and the Upper Basin
Agreement) for--
``(A) the Klamath Project (within the meaning of
section 2);
``(B) the On-Project Power Users;
``(C) irrigators in the Off-Project Area; and
``(D) the Klamath Basin National Wildlife Refuge
Complex; and
``(3) to restore any ecosystem and otherwise protect fish
and wildlife in the Klamath Basin watershed, including tribal
fishery resources held in trust, consistent with Restoration
Agreement and the Upper Basin Agreement.''.
SEC. 7. KLAMATH TRIBES TRIBAL RESOURCE FUND.
(a) Establishment.--There is established in the Treasury of the
United States a fund to be known as the ``Klamath Tribes Tribal
Resource Fund'' (referred to in this section as the ``Fund''),
consisting of the amounts deposited in the Fund under subsection (b),
together with any interest earned on those amounts, to be managed,
invested, and administered by the Secretary for the benefit of the
Klamath Tribes in accordance with the terms of section 2.4 of the Upper
Basin Agreement, to remain available until expended.
(b) Transfers to Fund.--The Fund shall consist of such amounts as
are appropriated to the Fund under subsection (i), which shall be
deposited in the Fund not later than 60 days after the amounts are
appropriated and any interest under subsection (c) or (d).
(c) Management by the Secretary.--Absent an approved tribal
investment plan under subsection (d) or an economic development plan
under subsection (e), the Secretary shall manage, invest, and
distribute all amounts in the Fund in a manner that is consistent with
the investment authority of the Secretary under--
(1) the first section of the Act of June 24, 1938 (25
U.S.C. 162a);
(2) the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4001 et seq.); and
(3) this section.
(d) Investment by the Klamath Tribes.--
(1) Investment plan.--
(A) In general.--In lieu of the investment provided
for in subsection (c), the Klamath Tribes may submit a
tribal investment plan to the Secretary, applicable to
all or part of the Fund, excluding the amounts
described in subsection (e)(4)(A).
(B) Approval.--Not later than 60 days after the
date on which a tribal investment plan is submitted
under subparagraph (A), the Secretary shall approve
such investment plan if the Secretary finds that the
plan--
(i) is reasonable and sound;
(ii) meets the requirements of the American
Indian Trust Fund Management Reform Act of 1994
(25 U.S.C. 4001 et seq.); and
(iii) meets the requirements of this
section.
(C) Disapproval.--If the Secretary does not approve
the tribal investment plan, the Secretary shall set
forth in writing the particular reasons for the
disapproval.
(2) Disbursement.--If the tribal investment plan is
approved by the Secretary, the funds involved shall be
disbursed from the Fund to the Klamath Tribes to be invested by
the Klamath Tribes in accordance with the approved tribal
investment plan, subject to the requirements of this section.
(3) Compliance.--The Secretary may take such steps as the
Secretary determines to be necessary to monitor the compliance
of a Tribe with an investment plan approved under paragraph
(1)(B).
(4) Limitation on liability.--The United States shall not
be--
(A) responsible for the review, approval, or audit
of any individual investment under an approved
investment plan; or
(B) directly or indirectly liable with respect to
any such investment, including any act or omission of
the Klamath Tribes in managing or investing amounts in
the Fund.
(5) Requirements.--The principal and income derived from
tribal investments carried out pursuant to an investment plan
approved under subparagraph (B) shall be--
(A) subject to the requirements of this section;
and
(B) expended only in accordance with an economic
development plan approved under subsection (e).
(e) Economic Development Plan.--
(1) In general.--The Klamath Tribes shall submit to the
Secretary an economic development plan for the use of the Fund,
including the expenditure of any principal or income derived
from management under subsection (c) or from tribal investments
carried out under subsection (d).
(2) Approval.--Not later than 60 days after the date on
which an economic development plan is submitted under paragraph
(1), the Secretary shall approve the economic development plan
if the Secretary finds that the plan meets the requirements of
the American Indian Trust Fund Management Reform Act of 1994
(25 U.S.C. 4001 et seq.) and this section.
(3) Use of funds.--The economic development plan under this
subsection shall--
(A) require that the Klamath Tribes spend all
amounts withdrawn from the Fund in accordance with this
section; and
(B) include such terms and conditions as are
necessary to meet the requirements of this section.
(4) Resource acquisition and enhancement plan.--The
economic development plan shall include a resource acquisition
and enhancement plan, which shall--
(A) require that not less than \1/2\ of the amounts
appropriated for each fiscal year to carry out this
section shall be used to enhance, restore, and utilize
the natural resources of the Klamath Tribes, in a
manner that also provides for the economic development
of the Klamath Tribes and, as determined by the
Secretary, directly or indirectly benefit adjacent non-
Indian communities; and
(B) be reasonably related to the protection,
acquisition, enhancement, or development of natural
resources for the benefit of the Klamath Tribes and
members of the Klamath Tribes.
(5) Modification.--Subject to the requirements of this Act
and approval by the Secretary, the Klamath Tribes may modify a
plan approved under this subsection.
(6) Limitation on liability.--The United States shall not
be directly or indirectly liable for any claim or cause of
action arising from--
(A) the approval of a plan under this paragraph; or
(B) the use or expenditure by the Klamath Tribes of
any amount in the Fund.
(f) Limitation on Per Capita Distributions.--No amount in the Fund
(including any income accruing to the amount) and no revenue from any
water use contract may be distributed to any member of the Klamath
Tribes on a per capita basis.
(g) Limitation on Disbursement.--
(1) In general.--Subject to paragraph (2), amounts in the
Fund shall not be available for disbursement under this section
until the Klamath Tribes--
(A) make the commitments set forth in the
Agreements; and
(B) are determined by the Secretary to be in
substantial compliance with those commitments.
(2) Early disbursement.--Based on the unique history of the
loss of reservation land by the Klamath Tribes through
termination of Federal recognition and acknowledging that
restoration of tribal land is essential to building the tribal
economy and achieving self-determination, the Secretary may
disburse funds to the Klamath Tribes prior to the satisfaction
of the requirements of paragraph (1) on a determination by the
Secretary that such funds are available and that early
disbursement will support activities designed to increase
employment opportunities for members of the Klamath Tribes.
(3) Agreements.--Any such disbursement shall be in
accordance with a written agreement between the Secretary and
the Klamath Tribes that provides the following:
(A) For any disbursement to purchase land that is
to be placed in trust pursuant to section 6 of the
Klamath Indian Tribe Restoration Act (25 U.S.C. 566d),
the written agreement shall specify that if assurances
made do not become permanent as described in section
15.3.3 of the Restoration Agreement and on publication
of a notice by the Secretary pursuant to section
15.3.4.C of the Restoration Agreement or section 10.2
of the Upper Basin Agreement, any land purchased with
disbursements from the Fund shall revert back to sole
ownership by the United States unless, prior to
reversion, the Klamath Tribes enter into a written
agreement to repay the purchase price to the United
States, without interest, in annual installments over a
period not to exceed 40 years.
(B) For any disbursement to support economic
activity and creation of tribal employment
opportunities (including any rehabilitation of existing
properties to support economic activities), the written
agreement shall specify that if assurances made do not
become permanent as described in section 15.3.3 of the
Restoration Agreement and on publication of a notice by
the Secretary pursuant to section 15.3.4.C of the
Restoration Agreement or section 10.2 of the Upper
Basin Agreement, any amounts disbursed from the Fund
shall be repaid to the United States, without interest,
in annual installments over a period not to exceed 40
years.
(h) Prohibition.--Amounts in the Fund may not be made available for
any purpose other than a purpose described in this section.
(i) Annual Reports.--
(1) In general.--Not later than 60 days after the end of
each fiscal year beginning with fiscal year 2014, the Secretary
shall submit to the Committee on Appropriations of the House of
Representatives, the Committee on Appropriations of the Senate,
and the appropriate authorizing committees of the Senate and
the House of Representatives a report on the operation of the
Fund during the fiscal year.
(2) Contents.--Each report shall include, for the fiscal
year covered by the report, the following:
(A) A statement of the amounts deposited into the
Fund.
(B) A description of the expenditures made from the
Fund for the fiscal year, including the purpose of the
expenditures.
(C) Recommendations for additional authorities to
fulfill the purpose of the Fund.
(D) A statement of the balance remaining in the
Fund at the end of the fiscal year.
(j) No Third Party Rights.--This section does not create or vest
rights or benefits for any party other than the Klamath Tribes and the
United States.
(k) Authorization of Appropriations.--There is authorized to be
appropriated to carry out this section $8,000,000 for each fiscal year,
not to exceed a total amount of $40,000,000.
SEC. 8. HYDROELECTRIC FACILITIES.
(a) Secretarial Determination.--
(1) In general.--Subject to paragraph (3), in accordance
with section 3 of the Hydroelectric Settlement, the Secretary
shall--
(A) as soon as practicable after the date of
enactment of this Act, determine whether to proceed
with facilities removal, based on whether facilities
removal--
(i) would advance restoration of the
salmonid fisheries of the Klamath Basin; and
(ii) is in the public interest, taking into
account potential impacts on affected local
communities and federally recognized Indian
tribes; and
(B) if the Secretary determines under subparagraph
(A) to proceed with facilities removal, include in the
determination the designation of a dam removal entity,
subject to paragraph (6).
(2) Basis for secretarial determination to proceed.--For
purposes of making a determination under paragraph (1)(A), the
Secretary, in cooperation with the Secretary of Commerce and
other appropriate entities, shall--
(A) use existing information;
(B) conduct any necessary additional studies;
(C) comply with the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et seq.); and
(D) take such other actions as the Secretary
determines to be appropriate to support the
determination of the Secretary under paragraph (1).
(3) Conditions for secretarial determination to proceed.--
The Secretary may not make or publish the determination under
this subsection, unless the conditions specified in section
3.3.4 of the Hydroelectric Settlement have been satisfied.
(4) Publication of notice.--The Secretary shall publish
notification of the determination of the Secretary under this
subsection in the Federal Register.
(5) Judicial review of secretarial determination.--
(A) In general.--For purposes of judicial review,
the determination of the Secretary shall constitute a
final agency action with respect to whether or not to
proceed with facilities removal.
(B) Petition for review.--
(i) Filing.--
(I) In general.--Judicial review of
the determination of the Secretary and
related actions to comply with
environmental laws (including the
National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.), the
Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.), and the National
Historic Preservation Act (16 U.S.C.
470 et seq.)) may be obtained by an
aggrieved person only as provided in
this paragraph.
(II) Jurisdiction.--A petition for
review under this paragraph may be
filed only in the United States Court
of Appeals for the District of Columbia
Circuit or in the Ninth Circuit Court
of Appeals.
(III) Limitation.--A district court
of the United States and a State court
shall not have jurisdiction to review
the determination of the Secretary or
related actions to comply with
environmental laws described in
subclause (I).
(ii) Deadline.--
(I) In general.--Except as provided
in subclause (II), any petition for
review under this paragraph shall be
filed not later than 60 days after the
date of publication of the
determination of the Secretary in the
Federal Register.
(II) Subsequent grounds.--If a
petition is based solely on grounds
arising after the date that is 60 days
after the date of publication of the
determination of the Secretary in the
Federal Register, the petition for
review under this subsection shall be
filed not later than 60 days after the
grounds arise.
(C) Implementation.--Any action of the Secretary
with respect to which review could have been obtained
under this paragraph shall not be subject to judicial
review in any action relating to the implementation of
the determination of the Secretary or in proceedings
for enforcement of the Hydroelectric Settlement.
(D) Applicable standard and scope.--Judicial review
of the determination of the Secretary shall be in
accordance with the standard and scope of review under
subchapter II of chapter 5, and chapter 7, of title 5,
United States Code (commonly known as the
``Administrative Procedure Act'').
(E) Nontolling.--The filing of a petition for
reconsideration by the Secretary of an action subject
to review under this subsection shall not--
(i) affect the finality of the action for
purposes of judicial review;
(ii) extend the time within which a
petition for judicial review under this
subsection may be filed; or
(iii) postpone the effectiveness of the
action.
(6) Requirements for dam removal entity.--A dam removal
entity designated by the Secretary under paragraph (1)(B)
shall--
(A) have the capabilities for facilities removal
described in section 7.1.1 of the Hydroelectric
Settlement; and
(B) be the Department of the Interior, except that
the Secretary, consistent with section 3.3.4.E of the
Hydroelectric Settlement, may designate a non-Federal
dam removal entity if--
(i) the Secretary, in the sole judgment and
discretion of the Secretary, finds that the dam
removal entity-designate--
(I) is qualified; and
(II) has the capabilities described
in subparagraph (A);
(ii) the States of California and Oregon
have concurred in the finding under clause (i);
and
(iii) the dam removal entity-designate has
committed, if so designated, to perform
facilities removal within the State Cost Cap as
described in section 4.1.3 of the Hydroelectric
Settlement.
(7) Responsibilities of dam removal entity.--The dam
removal entity designated by the Secretary under paragraph
(1)(B) shall have the responsibilities described in section
7.1.2 of the Hydroelectric Settlement.
(b) Facilities Removal.--
(1) Applicability.--This subsection shall apply if--
(A) the determination of the Secretary under
subsection (a) provides for proceeding with facilities
removal;
(B) the State of California and the State of Oregon
concur in the determination of the Secretary, in
accordance with section 3.3.5 of the Hydroelectric
Settlement;
(C) the availability of non-Federal funds for the
purposes of facilities removal is consistent with the
Hydroelectric Settlement; and
(D) the Hydroelectric Settlement has not terminated
in accordance with section 8.11 of the Hydroelectric
Settlement.
(2) Non-federal funds.--
(A) In general.--Notwithstanding title 31, United
States Code, if the Department of the Interior is
designated as the dam removal entity under subsection
(a)(1)(B), the Secretary may accept, manage, and
expend, without further appropriation, non-Federal
funds for the purpose of facilities removal in
accordance with sections 4 and 7 of the Hydroelectric
Settlement.
(B) Refund.--The Secretary may administer and
refund any amounts described in subparagraph (A)
received from the State of California in accordance
with the requirements established by the State.
(3) Agreements.--The dam removal entity may enter into
agreements and contracts as necessary to assist in the
implementation of the Hydroelectric Settlement.
(4) Proceeding with facilities removal.--
(A) In general.--The dam removal entity shall,
consistent with the Hydroelectric Settlement--
(i) develop a definite plan for facilities
removal as described in section 7 of the
Hydroelectric Settlement, including a schedule
for facilities removal;
(ii) obtain all permits, authorizations,
entitlements, certifications, and other
approvals necessary to implement facilities
removal, including a permit under section 404
of the Federal Water Pollution Control Act (33
U.S.C. 1344), notwithstanding subsection (r) of
that section; and
(iii) implement facilities removal.
(B) State and local laws.--
(i) In general.--Except as provided in
clause (ii), facilities removal shall be
subject to applicable requirements of State and
local laws relating to permits and other
authorizations, to the extent the requirements
are not in conflict with Federal law, including
the determination of the Secretary under
subsection (a) and the definite plan (including
the schedule) for facilities removal authorized
under this Act.
(ii) Limitations.--Clause (i) shall not
affect--
(I) the authorities of the States
regarding concurrence with the
determination of the Secretary under
subsection (a) in accordance with State
law; or
(II) the authority of a State
public utility commission regarding
funding of facilities removal.
(iii) Jurisdiction.--The United States
district courts shall have original
jurisdiction over all claims regarding the
consistency of State and local laws regarding
permits and other authorizations, and of State
and local actions pursuant to those laws, with
the definite plan (including the schedule) for
facilities removal authorized under this Act.
(C) Acceptance of title to facilities.--
(i) In general.--The dam removal entity may
accept from PacifiCorp all rights, titles,
permits, and other interests in the facilities
and associated land, for facilities removal and
for disposition of facility land (as provided
in section 7.6.4 of the Hydroelectric
Settlement) on providing to PacifiCorp a notice
that the dam removal entity is ready to
commence facilities removal in accordance with
section 7.4.1 of the Hydroelectric Settlement.
(ii) Non-federal dam removal entity.--
Notwithstanding section 8 of the Federal Power
Act (16 U.S.C. 801), the transfer of title to
facilities from PacifiCorp to a non-Federal dam
removal entity, in accordance with the
Hydroelectric Settlement and this Act, is
authorized.
(D) Continued power generation.--
(i) In general.--In accordance with an
agreement negotiated under clause (ii), on
transfer of title pursuant to subparagraph (C)
and until the dam removal entity instructs
PacifiCorp to cease the generation of power,
PacifiCorp may continue, consistent with State
law--
(I) to generate, and retain title
to, any power generated by the
facilities in accordance with section 7
of the Hydroelectric Settlement; and
(II) to transmit and use the power
for the benefit of the customers of
PacifiCorp under the jurisdiction of
applicable State public utility
commissions and the Commission.
(ii) Agreement with dam removal entity.--As
a condition of transfer of title pursuant to
subparagraph (C), the dam removal entity shall
enter into an agreement with PacifiCorp that
provides for continued generation of power in
accordance with clause (i).
(5) Licenses and jurisdiction.--
(A) Annual licenses.--
(i) In general.--The Commission shall issue
annual licenses authorizing PacifiCorp to
continue to operate the facilities until
PacifiCorp transfers title to all of the
facilities.
(ii) Termination.--The annual licenses
shall terminate with respect to a facility on
transfer of title for the facility from
PacifiCorp to the dam removal entity.
(iii) Staged removal.--
(I) In general.--On transfer of
title of any facility by PacifiCorp to
the dam removal entity, annual license
conditions shall no longer be in effect
with respect to the facility.
(II) Nontransfer of title.--Annual
license conditions shall remain in
effect with respect to any facility for
which PacifiCorp has not transferred
title to the dam removal entity to the
extent compliance with the annual
license conditions are not prevented by
the removal of any other facility.
(B) Jurisdiction.--The jurisdiction of the
Commission under part I of the Federal Power Act (16
U.S.C. 792 et seq.) shall terminate with respect to a
facility on the transfer of title for the facility from
PacifiCorp to the dam removal entity.
(C) Relicensing.--
(i) In general.--The Commission shall--
(I) stay the proceeding of the
Commission regarding the pending
license application of PacifiCorp for
Project No. 2082 for the period during
which the Hydroelectric Settlement
remains in effect; and
(II) resume the proceeding and
proceed to take final action on the new
license application only if the
Hydroelectric Settlement terminates
pursuant to section 8.11 of the
Hydroelectric Settlement.
(D) Termination; limitations.--If the Hydroelectric
Settlement is terminated pursuant to section 8.11 of
the Hydroelectric Settlement, the Commission, in
proceedings on the application for relicensing, shall
not be bound by the record or findings of the Secretary
relating to the determination of the Secretary or by
the determination of the Secretary.
(c) Liability Protection.--
(1) In general.--Notwithstanding any other Federal, State,
local, or common law, PacifiCorp shall not be liable for any
harm to an individual or entity, property, or the environment,
or any damages resulting from facilities removal or facility
operations arising from, relating to, or triggered by actions
associated with facilities removal under this Act, including
any damage caused by the release of any material or substance
(including a hazardous substance).
(2) Funding.--Notwithstanding any other Federal, State,
local, or common law, no individual or entity contributing
funds for facilities removal shall be held liable, solely by
virtue of that funding, for any harm to an individual or
entity, property, or the environment, or damages arising from
facilities removal or facility operations arising from,
relating to, or triggered by actions associated with facilities
removal under this Act, including any damage caused by the
release of any material or substance (including a hazardous
substance).
(3) Preemption.--Notwithstanding section 10(c) of the
Federal Power Act (16 U.S.C. 803(c)), protection from liability
pursuant to this section shall preempt the laws of any State to
the extent the laws are inconsistent with this Act, except that
this Act shall not limit any otherwise-available immunity,
privilege, or defense under any other provision of law.
(4) Effective date.--Liability protection under this
subsection shall take effect as the protection relates to any
particular facilities on transfer of title to the facility from
PacifiCorp to the dam removal entity designated by the
Secretary under subsection (a)(1)(B).
(d) Facilities Not Removed.--
(1) Keno facility.--
(A) Transfer.--On notice that the dam removal
entity is ready to commence removal of the J.C. Boyle
Dam, the Secretary shall accept the transfer of title
to the Keno Facility to the United States in accordance
with section 7.5 of the Hydroelectric Settlement.
(B) Effect of transfer.--On the transfer under
subparagraph (A), and without further action by
Congress--
(i) the Keno Facility shall--
(I) become part of the Klamath
Reclamation Project; and
(II) be operated and maintained in
accordance with the Federal reclamation
laws and this Act; and
(ii) the jurisdiction of the Commission
over the Keno Facility shall terminate.
(2) East side and west side developments.--On filing by
PacifiCorp of an application for surrender of the East Side and
West Side Developments in Project No. 2082, the Commission
shall issue an order approving partial surrender of the license
for Project No. 2082, including any reasonable and appropriate
conditions, as provided in section 6.4.1 of the Hydroelectric
Settlement.
(3) Fall creek.--Not later than 60 days after the date of
the transfer of title to the Iron Gate Facility to the dam
removal entity, the Commission shall resume timely
consideration of the pending licensing application for the Fall
Creek development pursuant to the Federal Power Act (16 U.S.C.
791a et seq.), regardless of whether PacifiCorp retains
ownership of Fall Creek or transfers ownership to a new
licensee.
(4) Iron gate hatchery.--Notwithstanding section 8 of the
Federal Power Act (16 U.S.C. 801), consistent with section
7.6.6 of the Hydroelectric Settlement title to the PacifiCorp
hatchery facilities within the State of California shall be
transferred to the State of California at--
(A) the time of transfer to the dam removal entity
of title to the Iron Gate Dam; or
(B) such other time as may be agreed to by the
parties to the Hydroelectric Settlement.
SEC. 9. ADMINISTRATION AND FUNDING.
(a) Agreements.--
(1) In general.--The Secretaries may enter into such
agreements (including contracts, memoranda of understanding,
financial assistance agreements, cost sharing agreements, and
other appropriate agreements) with State, tribal, and local
government agencies or private individuals and entities as the
Secretary concerned consider to be necessary to carry out this
Act and the Settlements, subject to such terms and conditions
as the Secretary concerned considers to be necessary.
(2) Tribal programs.--Consistent with paragraph (1) and
section 32 of the Restoration Agreement, the Secretaries shall
give priority to qualified Party tribes in awarding grants,
contracts, or other agreements for purposes of implementing the
fisheries programs described in part III of the Restoration
Agreement.
(b) Establishment of Accounts.--There are established in the
Treasury for the deposit of appropriations and other funds (including
non-Federal donated funds) the following noninterest-bearing accounts:
(1) The On-Project Plan and Power for Water Management
Fund, to be administered by the Bureau of Reclamation.
(2) The Water Use Retirement and Off-Project Reliance Fund,
to be administered by the United States Fish and Wildlife
Service.
(3) The Klamath Drought Fund, to be administered by the
National Fish and Wildlife Foundation.
(c) Management.--
(1) In general.--The accounts established by subsection (b)
shall be managed in accordance with this Act and section 14.3
of the Restoration Agreement.
(2) Transfers.--Notwithstanding section 1535 of title 31,
United States Code, the Secretaries are authorized to enter
into interagency agreements for the transfer of Federal funds
between Federal programs for the purpose of implementing this
Act and the Settlements.
(d) Acceptance and Expenditure of Non-Federal Funds.--
(1) In general.--Notwithstanding title 31, United States
Code, the Secretaries may accept and expend, without further
appropriation, non-Federal funds, in-kind services, or property
for purposes of implementing the Settlement.
(2) Use.--The funds and property described in paragraph (1)
may be expended or used, as applicable, only for the purpose
for which the funds or property were provided.
(e) Funds Available Until Expended.--All funds made available for
the implementation of the Settlements shall remain available until
expended.
(f) Termination of Agreements.--If any Agreement terminates--
(1) any appropriated Federal funds provided to a party that
are unexpended at the time of the termination of the Agreement
shall be returned to the general fund of the Treasury; and
(2) any appropriated Federal funds provided to a party
shall be treated as an offset against any claim for damages by
the party arising under the Agreement.
(g) Budget.--
(1) In general.--The budget of the President shall include
such requests as the President considers to be necessary for
the level of funding for each of the Federal agencies to carry
out the responsibilities of the agencies under the Settlements.
(2) Crosscut budget.--Not later than the date of submission
of the budget of the President to Congress for each fiscal
year, the Director of the Office of Management and Budget shall
submit to the appropriate authorizing and appropriating
committees of the Senate and the House of Representatives a
financial report containing--
(A) an interagency budget crosscut report that
displays the budget proposed for each of the Federal
agencies to carry out the Settlements for the upcoming
fiscal year, separately showing funding requested under
preexisting authorities and new authorities provided by
this Act;
(B) a detailed accounting of all funds received and
obligated by all Federal agencies responsible for
implementing the Settlements; and
(C) a budget for proposed actions to be carried out
in the upcoming fiscal year by the applicable Federal
agencies in the upcoming fiscal year.
(h) Report to Congress.--Not later than the date of submission of
the budget of the President to Congress for each fiscal year, the
Secretaries shall submit to the appropriate authorizing committees of
the Senate and the House of Representatives a report that describes--
(1) the status of implementation of all of the Settlements;
(2) expenditures during the preceding fiscal year for
implementation of all of the Settlements;
(3) the current schedule and funding levels that are needed
to complete implementation of each of the Settlements;
(4) achievements in advancing the purposes of complying
with the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.) under the Settlements;
(5) additional achievements in restoring fisheries under
the Settlements;
(6) the status of water deliveries for the preceding water
year and projections for the upcoming water year for--
(A) the Klamath Project and irrigators in the Off-
Project Area pursuant to the Agreements; and
(B) the National Wildlife Refuges in areas covered
by the Agreements;
(7) the status of achieving the goals of supporting
sustainable agriculture production (including the goal of
limiting net power costs for water management) and general
economic development in the Klamath Basin;
(8) the status of achieving the goal of supporting the
economic development of the Party tribes; and
(9) the assessment of the Secretaries of the progress being
made toward completing implementation of all of the
Settlements.
SEC. 10. MODIFICATION OF TAX EXEMPTION REQUIREMENTS FOR MUTUAL DITCH OR
IRRIGATION COMPANIES.
(a) In General.--Paragraph (12) of section 501(c) of the Internal
Revenue Code of 1986 is amended by adding at the end the following new
subparagraph:
``(I) Treatment of mutual ditch irrigation
companies.--
``(i) In general.--In the case of a mutual
ditch or irrigation company or of a like
organization to a mutual ditch or irrigation
company, subparagraph (A) shall be applied
without taking into account any income received
or accrued--
``(I) from the sale, lease, or
exchange of fee or other interests in
real property, including interests in
water,
``(II) from the sale or exchange of
stock in a mutual ditch or irrigation
company (or in a like organization to a
mutual ditch or irrigation company) or
contract rights for the delivery or use
of water, or
``(III) from the investment of
proceeds from sales, leases, or
exchanges under subclauses (I) and
(II),
except that any income received under subclause
(I), (II), or (III) which is distributed or
expended for expenses (other than for
operations, maintenance, and capital
improvements) of the mutual ditch or irrigation
company or of the like organization to a mutual
ditch or irrigation company (as the case may
be) shall be treated as nonmember income in the
year in which it is distributed or expended.
For purposes of the preceding sentence,
expenses (other than for operations,
maintenance, and capital improvements) include
expenses for the construction of conveyances
designed to deliver water outside of the system
of the mutual ditch or irrigation company or of
the like organization.
``(ii) Treatment of organizational
governance.--In the case of a mutual ditch or
irrigation company or of a like organization to
a mutual ditch or irrigation company, where
State law provides that such a company or
organization may be organized in a manner that
permits voting on a basis which is pro rata to
share ownership on corporate governance
matters, subparagraph (A) shall be applied
without taking into account whether its member
shareholders have one vote on corporate
governance matters per share held in the
corporation. Nothing in this clause shall be
construed to create any inference about the
requirements of this subsection for companies
or organizations not included in this
clause.''.
(b) Effective Date.--The amendment made by subsection (a) shall
apply to taxable years beginning after the date of the enactment of
this Act.
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