Sec. 108. Waivers, releases and retentions of claims
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/bill/118/s/4705/is/section-108·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Except as provided in paragraph (3), the Yavapai-Apache Nation, on behalf of the Yavapai-Apache Nation and the Members of the Yavapai-Apache Nation (but not Members in the capacity of the Members as Allottees), and the United States, acting as trustee for the Yavapai-Apache Nation and the Members of the Yavapai-Apache Nation (but not Members in the capacity of the Members as Allottees), as part of the performance of the respective obligations of the Yavapai-Apache Nation and the United States under the Agreement and this Act, shall execute a waiver and release of any claims against the State (or any agency or political subdivision of the State), and any other individual, entity, corporation, or municipal corporation under Federal, State, or other law for all— Past, present, and future claims for Water Rights, including rights to Colorado River water, for YAN Land, arising from time immemorial and, thereafter, forever;
Past, present, and future claims for Water Rights, including rights to Colorado River water, arising from time immemorial and, thereafter, forever, that are based on the aboriginal occupancy of land by the Yavapai-Apache Nation, the predecessors of the Yavapai-Apache Nation, the Members of the Yavapai-Apache Nation, or the predecessors of the Members of the Yavapai-Apache Nation; Past and present claims for Injury to Water Rights, including rights to Colorado River water, for YAN Land, arising from time immemorial through the Enforceability Date;
Past, present, and future claims for Injury to Water Rights, including rights to Colorado River water, arising from time immemorial and, thereafter, forever, that are based on the aboriginal occupancy of land by the Yavapai-Apache Nation, the predecessors of the Yavapai-Apache Nation, the Members of the Yavapai-Apache Nation, or the predecessors of the Members of the Yavapai-Apache Nation; Claims for Injury to Water Rights, including rights to Colorado River water, arising after the Enforceability Date, for YAN Land, resulting from the off-Reservation Diversion or Use of Water in a manner not in violation of the Agreement or State law; and Past, present, and future claims arising out of, or relating in any manner to, the negotiation, execution, or adoption of the Agreement, any judgment or decree approving or incorporating the Agreement, or this Act.
The waiver and release of claims described in paragraph
(1)shall be in the form set forth in Exhibit 13.1 to the Agreement and shall take effect on the Enforceability Date. Notwithstanding the waiver and release of claims described in paragraph
(1)and set forth in Exhibit 13.1 to the Agreement, the Yavapai-Apache Nation, acting on behalf of the Yavapai-Apache Nation and the Members of the Yavapai-Apache Nation, and the United States, acting as trustee for the YAN and the Members of the YAN (but not Members in the capacity of the Members as Allottees), shall retain any right— subject to Subparagraph 17.9 of the Agreement, to assert claims for injuries to, and seek enforcement of, their rights under the Agreement or this Act in any Federal or State court of competent jurisdiction; to assert claims for injuries to, and seek enforcement of, their rights under any judgment or decree entered by the Gila River Adjudication Court, including the Verde River Decree; to assert claims for Water Rights or Injury to Water Rights acquired before the Enforceability Date pursuant to Subparagraph 4.14.1 of the Agreement; to challenge or object to any claims for Water Rights or Injury to Water Rights by or for any Indian tribe, or the United States, acting on behalf of any Indian tribe; to assert past, present, or future claims for Injury to Water Rights against any Indian tribe, or the United States, acting on behalf of any Indian tribe; to assert claims for Injury to Water Rights arising after the Enforceability Date for YAN Land resulting from any off-Reservation Diversion of Surface Water within the Verde River Watershed, other than from a well, if the Diversion or Use of Surface Water was first initiated after the Effective Date and was not the subject of a permit to appropriate Surface Water issued by the Arizona Department of Water Resources before the Effective Date; and to assert claims for Injury to Water Rights arising after the Enforceability Date for YAN Land resulting from any off-Reservation Diversion or Use of Water from a well, if— the Water is determined by the Gila River Adjudication Court to be Surface Water; the well is located within the Verde River Watershed above USGS Gage No. 09506000 identified as Verde River near Camp Verde, AZ ; the well was constructed after the Effective Date; and the well is not: a Replacement Well; a new point of Diversion for a Surface Water Use predating the Effective Date; operated by a Municipal Water Provider pursuant to an agreement with the Yavapai-Apache Nation under Subparagraph 16.1.2 of the Agreement; constructed for Domestic Use or Stock Watering Use; constructed to supply a Stockpond with a capacity not to exceed 4 acre-feet; used by a city or town in the Prescott active management area to: withdraw Underground Water from land located in the Big Chino sub-basin of the Verde River groundwater basin that has historically irrigated acres for transportation to an adjacent initial active management area under the criteria set forth in A.R.S. §45–555(A)–(D), as that statute exists as of the Effective Date, a copy of which is attached as Exhibit 13.1.3 to the Agreement; withdraw and transport 8,068 AFY of Underground Water from the Big Chino sub-basin of the Verde River groundwater basin to the Prescott active management area pursuant to the criteria set forth in A.R.S. §45-555(E) and (G), as that statute exists as of the Effective Date, a copy of which is attached as Exhibit 13.1.3 to the Agreement; or withdraw and transport Underground Water from land located in the Big Chino sub-basin of the Verde River groundwater basin to the Prescott active management area to meet the additional needs of an Indian tribe in the Prescott active management area pursuant to a federally-approved Indian water rights settlement under A.R.S §45-555(G) and (F), as that statute exists as of the Effective date, a copy of which is attached as Exhibit 13.1.3 to the Agreement; and providing a source of supply for an M&I Use for a Municipal Water Provider or a Public Water System (that does not have an agreement with the YAN pursuant to subparagraph 16.1.2 of the Agreement) that meets all of the following conditions: The well is located outside the lateral limits of the Verde River Subflow Zone. All buildings constructed after the well is drilled that are served by the Municipal Water Provider or Public Water System have WaterSense Labeled Fixtures, or fixtures that are equivalent to or exceed WaterSense specifications for water efficiency and performance as set forth in Exhibit 2.90 to the Agreement. The Municipal Water Provider or Public Water System uses its best efforts to ensure that all outdoor landscaping installed after the well is drilled that is served by the Municipal Water Provider or Public Water System uses only native or drought tolerant plants, except as provided for in item (dd). All turf or other landscape areas not using native or drought tolerant plants, including for schools, parks, cemeteries, golf courses, or common areas, installed after the well is drilled are, to the extent permitted by State law, prohibited by the Municipal Water Provider or Public Water System unless the plants are 100 percent served with Effluent, greywater, harvested rainwater, or some combination thereof. Ornamental water features (except swimming pools), ponds, and lakes constructed after the well is drilled are, to the extent permitted by State law, prohibited by the Municipal Water Provider or Public Water System unless the features, ponds, and lakes are 100 percent served with Effluent, greywater, harvested rainwater, or some combination thereof. Except as provided in paragraph (3), the Yavapai-Apache Nation, acting on behalf of the Yavapai-Apache Nation and the Members of the Yavapai-Apache Nation (but not Members in the capacity of the Members as Allottees), as part of the performance of the obligations of the Yavapai-Apache Nation under the Agreement and this Act, shall execute a waiver and release of all claims against the United States, including agencies, officials, and employees of the United States, under Federal, State, or other law for all— Past, present, and future claims for Water Rights, including rights to Colorado River water, for YAN Land, arising from time immemorial and, thereafter, forever; Past, present, and future claims for Water Rights, including rights to Colorado River water, arising from time immemorial and, thereafter, forever, that are based on the aboriginal occupancy of land by the Yavapai-Apache Nation, the predecessors of the Yavapai-Apache Nation, the Members of the Yavapai-Apache Nation, or the predecessors of the members of the Yavapai-Apache Nation; Past and present claims relating in any manner to damage, losses, or injury to land or other 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 claims relating to the failure to protect, acquire, or develop Water, Water Rights, or Water infrastructure) within the State that first accrued at any time prior to the Enforceability Date; Past and present claims for Injury to Water Rights, including rights to Colorado River water, for YAN Land, arising from time immemorial through the Enforceability Date; Past, present, and future claims for Injury to Water Rights, including rights to Colorado River water, arising from time immemorial and, thereafter, forever, that are based on the aboriginal occupancy of land by the Yavapai-Apache Nation, the predecessors of the Yavapai-Apache Nation, the Members of the Yavapai-Apache Nation, or the predecessors of the members of the Yavapai-Apache Nation; Claims for Injury to Water Rights, including injury to rights to Colorado River water, arising after the Enforceability Date for YAN Land, resulting from the off-Reservation Diversion or Use of Water in a manner not in violation of the Agreement or State law; and Past, present, and future claims arising out of, or relating in any manner to, the negotiation, execution, or adoption of the Agreement, any judgment or decree approving or incorporating the Agreement, or this Act. The waiver and release of claims described in paragraph
(1)shall be in the form set forth in Exhibit 13.2 to the Agreement and shall take effect on the Enforceability Date. Notwithstanding the waiver and release of claims described in paragraph
(1)and set forth in Exhibit 13.2 to the Agreement, the Yavapai-Apache Nation and the Members of the Yavapai-Apache Nation (but not Members in the capacity of the Members as Allottees) shall retain any right— subject to Subparagraph 17.9 of the Agreement, to assert claims for injuries to, and seek enforcement of, their rights under the Agreement or this Act in any Federal or State court of competent jurisdiction; to assert claims for injuries to, and seek enforcement of, their rights under any judgment or decree entered by the Gila River Adjudication Court, including the Verde River Decree; to assert claims for Water Rights or Injury to Water Rights acquired before the Enforceability Date pursuant to Subparagraph 4.14.1 of the Agreement; to challenge or object to any claims for Water Rights or Injury to Water Rights by or for any Indian Tribe or the United States, acting on behalf of any Indian Tribe; to assert past, present, or future claims for Injury to Water Rights against any Indian Tribe or the United States, acting on behalf of any Indian Tribe; to assert claims for Injury to Water Rights arising after the Enforceability Date for YAN Land resulting from any off-Reservation Diversion of Surface Water within the Verde River Watershed, other than from a well, if the Diversion or Use of Surface Water was first initiated after the Effective Date and was not the subject of a permit to appropriate Surface Water issued by the Arizona Department of Water Resources before the Effective Date; and to assert claims for Injury to Water Rights arising after the Enforceability Date for YAN Land resulting from any off-Reservation Diversion or Use of Water from a well, if— the Water is determined by the Gila River Adjudication Court to be Surface Water; the well is located within the Verde River Watershed above Gage No. 09506000, Verde River near Camp Verde, AZ; the well was constructed after the Effective Date; and the well is not: a Replacement Well; a new point of Diversion for a Surface Water Use predating the Effective Date; operated by a Municipal Water Provider pursuant to an agreement with the Yavapai-Apache Nation under Subparagraph 16.1.2 of the Agreement; constructed for Domestic Use or Stock Watering Use; or constructed to supply a Stockpond with a capacity not to exceed 4 acre-feet. Except as provided in paragraph (3), the United States, in all capacities (except as trustee for an Indian Tribe other than the Yavapai-Apache Nation), as part of the performance of the obligations of the United States under the Agreement and this Act, shall execute a waiver and release of all claims against the Yavapai-Apache Nation, the Members of the Yavapai-Apache Nation, or any agency, official, or employee of the Yavapai-Apache Nation, under Federal, State, or any other law for all— Past and present claims for Injury to Water Rights, including injury to rights to Colorado River water, resulting from the Diversion or Use of Water on YAN Land arising from time immemorial through the Enforceability Date; Claims for Injury to Water Rights, including injury to rights to Colorado River water, arising after the Enforceability Date, resulting from the Diversion or Use of Water on YAN Land in a manner that is not in violation of the Agreement or State law; and Past, present, and future claims arising out of, or related in any manner to, the negotiation, execution, or adoption of the Agreement, any judgment or decree approving or incorporating the Agreement, or this Act. The waiver and release of claims described in paragraph
(1)shall be in the form set forth in Exhibit 13.3 to the Agreement and shall take effect on the Enforceability Date. Notwithstanding the waiver and release of claims described in paragraph
(1)and set forth in Exhibit 13.3 to the Agreement, the United States shall retain any right to assert any claim not expressly waived in accordance with that paragraph and that exhibit. Nothing in the Agreement or this Act affects any right of the United States or the Yavapai-Apache Nation on behalf of the Yavapai-Apache Nation, or on behalf of the Members of the Yavapai-Apache Nation, to take any action authorized by law relating to health, safety, or the environment, including— The Federal Water Pollution Control Act, commonly known as the Clean Water Act , ( 33 U.S.C. 1251 et seq. ); The Safe Drinking Water Act ( 42 U.S.C. 300f et seq. ). The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq. ); and any regulations implementing the Acts described in subsection (d)(1), (d)(2) or (d)(3).
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