Sec. 8. iiná bá – paa tuwaqat’si pipeline
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The Secretary, acting through the Commissioner of Reclamation, shall plan, design, and construct the iiná bá – paa tuwaqat’si pipeline in accordance with subparagraph (C), including all necessary power transmission facilities, power substations, power distribution systems, and associated wheeling services to connect the facilities of the iiná bá – paa tuwaqat’si pipeline to new or existing high-voltage transmission facilities and deliver power. Prior to the start of the feasibility study required under subparagraph (C)(ii), the Secretary shall form a Project Construction Committee (referred to in this subparagraph as the Committee ).
The Committee shall consist of representatives from the Bureau and the Bureau of Indian Affairs and members selected by each of the Navajo Nation, the Hopi Tribe, and the San Juan Southern Paiute Tribe for purposes of assisting the Secretary with planning, designing, and constructing the iiná bá – paa tuwaqat’si pipeline, including— to review cost factors and budgets for construction and operation and maintenance activities; to improve construction management through enhanced communication; and to seek additional ways to reduce overall iiná bá – paa tuwaqat’si pipeline costs.
The Secretary shall consult with the Committee during each phase— of design described in subparagraph (C); and of construction of the iiná bá – paa tuwaqat’si pipeline. At the sole discretion of the Secretary, the Secretary may rely on recommendations made by the Committee, subject to the condition that the recommendations are consistent with the design as described in clauses
(i)and
(ii)of subparagraph (C). To the extent the Committee recommendations involve a portion of the iiná bá – paa tuwaqat’si pipeline to which the Hopi Tribe will hold title after title transfer as described in paragraph (3)(B)(ii), the Secretary shall give greater weight to the recommendations of the representatives of the Hopi Tribe on the Committee. To the extent the Committee recommendations involve a portion of the iiná bá – paa tuwaqat’si pipeline to which the Navajo Nation will hold title after title transfer as described in paragraph (3)(B)(i), the Secretary shall give greater weight to the recommendations of the representatives of the Navajo Nation on the Committee. Unless modified pursuant to clauses
(iii)and (iv), the iiná bá – paa tuwaqat’si pipeline shall be substantially configured as Alternative 5, Option B-100 described in the report of the Bureau entitled Navajo-Hopi Value Planning Study—Arizona and dated October 2020. After the date of enactment of this Act, the Bureau shall complete a feasibility study of the iiná bá – paa tuwaqat’si pipeline substantially configured as Alternative 5, Option B-100 described in the report of the Bureau entitled Navajo-Hopi Value Planning Study—Arizona and dated October 2020, which shall include feasibility-level design and cost estimates and a construction phasing plan. On completion of the feasibility study described in clause (ii), the Secretary shall consult with the Navajo Nation and the Hopi Tribe to determine whether to complete a value planning study of the iiná bá – paa tuwaqat’si pipeline to identify and analyze potential lower-cost modifications to substantially meet the existing Alternative 5, Option B-100 configuration described in that clause. If a value planning study is initiated under subclause (I), a value planning team shall include the Project Construction Committee formed pursuant to subparagraph (B). To the extent practicable, the Navajo Nation, the Hopi Tribe, the San Juan Southern Paiute Tribe, and the Secretary shall strive for consensus on selection of a preferred alternative for the Bureau to initiate the final design process of the iiná bá – paa tuwaqat’si pipeline. If consensus cannot be reached on a preferred alternative under item (aa), the decision for the preferred alternative shall be made by the Secretary. A value engineering study based on achieving the essential functions at the lowest life cycle cost consistent with required performance, reliability, quality, and safety shall be completed in accordance with Bureau Manual Policy, Performing Designs and Construction Activities (FAC P03) for each phase of the iiná bá – paa tuwaqat’si pipeline project at the 30 percent design stage. A value engineering team shall include the Project Construction Committee formed pursuant to subparagraph (B). At any time prior to completion of 60 percent design for each phase of the iiná bá – paa tuwaqat’si pipeline project, the Navajo Nation and the Hopi Tribe may request modifications of the design described in this subparagraph, subject to the condition that the proposed design modifications are approved by the Bureau. If a requested modification described in item
(aa)deviates from the design criteria of the Bureau, the modification shall be considered in accordance with the provisions of Bureau Manual Policy, Performing Designs and Construction Activities (FAC P03). The design for each phase of the iiná bá – paa tuwaqat’si pipeline project shall not be modified further after review of the 60 percent design plan unless the modification is made by the Secretary. The iiná bá – paa tuwaqat’si pipeline may include, at the sole discretion of the Secretary after consultation with the Navajo Nation or the Hopi Tribe, components that have already been built or acquired by the Navajo Nation or the Hopi Tribe as a contribution by the Navajo Nation or the Hopi Tribe towards the cost of planning, designing, and constructing the iiná bá – paa tuwaqat’si pipeline. The iiná bá – paa tuwaqat’si pipeline shall deliver potable water for domestic, commercial, municipal, and industrial Uses and be capable of delivering from Lake Powell— up to 7,100 AFY of potable Colorado River Water to the Navajo Nation for Use in delivering up to 6,750 AFY to serve Navajo communities and up to 350 AFY to serve the San Juan Southern Paiute Southern Area; and up to 3,076 AFY of potable Colorado River Water to the Hopi Tribe for Use in delivering up to 3,076 AFY to serve Hopi communities. The Secretary shall not begin construction of the iiná bá – paa tuwaqat’si pipeline until— the design studies described in subparagraph
(C)and final design for the first phase of the iiná bá – paa tuwaqat’si pipeline project are complete; the Secretary, the Navajo Nation, and the Hopi Tribe execute a Cost-Sharing and System Integration Agreement that— based on the final design in accordance with subparagraph (C), describes the design, location, capacity, and management of operations of the iiná bá – paa tuwaqat’si pipeline, including distribution of water to customers; describes the process for acquisition of rights-of-way for the iiná bá – paa tuwaqat’si pipeline described in subsection (b); allocates the costs of the iiná bá – paa tuwaqat’si pipeline, taking into consideration— cost of planning, design, and construction; cost of the operation, maintenance, and repair of the iiná bá – paa tuwaqat’si pipeline before title transfer to the Navajo Nation or the Hopi Tribe pursuant to paragraph (3); and how existing components will be considered as contributions by the Navajo Nation or Hopi Tribe as described in subparagraph (D); and describes construction phasing, including transfer of operations and maintenance for such phasing, as agreed to by the Secretary, the Navajo Nation, and the Hopi Tribe, with the Secretary deciding on phasing if an agreement is not reached; and environmental compliance as described in section 4(c) is complete for the iiná bá – paa tuwaqat’si pipeline. On completion of construction of a phase of the iiná bá – paa tuwaqat’si pipeline, as described in the Cost-Sharing and System Integration Agreement described in paragraph (1)(F)(ii) and on a finding of substantial completion of the phase, the Secretary may transfer operations and maintenance responsibility for the phase to the appropriate entity. The Secretary shall enter into an operations and maintenance contract consistent with this Act and Bureau policy for the purposes of compliance with clause (i). Title to a phase of the iiná bá – paa tuwaqat’si pipeline shall not transfer until substantial completion of the entire iiná bá – paa tuwaqat’si pipeline in accordance with paragraph (3)(B). For purposes of this paragraph, substantial completion of each phase of the iiná bá – paa tuwaqat’si pipeline shall be determined in accordance with Bureau Manual Policy, Performing Designs and Construction Activities (FAC P03). The iiná bá – paa tuwaqat’si pipeline shall be owned by the United States during construction of the iiná bá – paa tuwaqat’si pipeline. On substantial completion of the iiná bá – paa tuwaqat’si pipeline, in accordance with paragraph (4), the Secretary shall— transfer title to the applicable section of the iiná bá – paa tuwaqat’si pipeline on the Navajo Reservation, except that section that lies on the Navajo Reservation between Moenkopi and the boundary of the 1882 Reservation, to the Navajo Nation; and transfer title to the applicable section of the iiná bá – paa tuwaqat’si pipeline on the Hopi Reservation, and the section of the iiná bá – paa tuwaqat’si pipeline that lies on the Navajo Reservation between Moenkopi and the boundary of the 1882 Reservation and the right-of-way for that section of the iiná bá – paa tuwaqat’si pipeline, to the Hopi Tribe. For purposes of paragraph (3)(B), the Secretary shall determine that the iiná bá – paa tuwaqat’si pipeline is substantially complete if— the infrastructure constructed is capable of storing, diverting, treating, transmitting, and distributing a supply of water to the Navajo Nation, the Hopi Tribe, and the San Juan Southern Paiute Southern Area as described in the iiná bá – paa tuwaqat’si pipeline design described in paragraph (1)(C); or the Secretary— diligently proceeds to complete the final design and construct the iiná bá – paa tuwaqat’si pipeline— by the deadline described in subparagraph (B); or if the deadline described in subparagraph
(B)is extended pursuant to subparagraph (C), by the extended deadline; expends all of the available funding provided to construct the iiná bá – paa tuwaqat’si pipeline under section 13(a) and any funding provided by the Navajo Nation or Hopi Tribe pursuant to sections 10(j) and 11(j) ; and despite diligent efforts cannot complete construction of the iiná bá – paa tuwaqat’si pipeline in accordance with paragraph (1)(C) due solely to the lack of authorized funding. Not later than December 31, 2040, the construction of the iiná bá – paa tuwaqat’si pipeline in accordance with paragraph (1)(C) shall be substantially completed, in accordance with subparagraph (A). The deadline described in subparagraph
(B)may be extended through written agreement if the Navajo Nation, Hopi Tribe, and the Secretary agree than an extension is reasonably necessary. Effective on the date of the transfer of ownership of the iiná bá – paa tuwaqat’si pipeline pursuant to paragraph (3)(B), the United States shall not be held liable by any court for damages of any kind arising out of any act, omission, or occurrence relating to the land, buildings, or facilities conveyed under this subsection, other than damages caused by acts of negligence committed by the United States, or by employees or agents of the United States, prior to the date of conveyance. Nothing in this section increases the liability of the United States beyond the liability provided in chapter 171 of title 28, United States Code (commonly known as the Federal Tort Claims Act ). The Navajo Nation shall operate the section of the iiná bá – paa tuwaqat’si pipeline that delivers water to the Navajo communities, other than Coal Mine Mesa, and that may deliver water through the iiná bá – paa tuwaqat’si pipeline to the San Juan Southern Paiute Tribe. The Hopi Tribe shall operate the section of the iiná bá – paa tuwaqat’si pipeline that delivers water to Moenkopi, the 1882 Reservation, and the Navajo community of Coal Mine Mesa. Prior to the start of the first construction phase of the iiná bá – paa tuwaqat’si pipeline, the Secretary shall form a Project Operation Committee consisting of members selected by each of the Navajo Nation and the Hopi Tribe to develop a project operations agreement to be executed by the Navajo Nation and the Hopi Tribe, after review by the Secretary, prior to the transfer of operations and maintenance of any phase of the iiná bá – paa tuwaqat’si pipeline in accordance with paragraph (2). The project operations agreement referred to in subparagraph
(B)shall describe all terms and conditions necessary for long-term operations of the iiná bá – paa tuwaqat’si pipeline, consistent with subparagraph (A), including— distribution of water; responsibility for maintenance of the iiná bá – paa tuwaqat’si pipeline or section of the iiná bá – paa tuwaqat’si pipeline; the allocation and payment of annual OM&R costs of the iiná bá – paa tuwaqat’si pipeline or section of the iiná bá – paa tuwaqat’si pipeline based on the proportionate uses and ownership of the iiná bá – paa tuwaqat’si pipeline; the process for transfer of operations and maintenance of a phase of the iiná bá – paa tuwaqat’si pipeline in accordance with paragraph (2); and a right to sue in a district court of the United States to enforce the project operations agreement. In partial consideration for the funding provided under section 13, the Navajo Nation, the Hopi Tribe, and the San Juan Southern Paiute Tribe shall each timely consent to the grant of rights-of-way as described in, and in accordance with, subparagraphs 12.5.1, 12.5.2, and 12.5.3 of the Settlement Agreement. Rights-of-way described in subparagraph
(A)shall be at no cost to the United States. With the consent of each affected Tribe, the Secretary may enter into legal devices, other than rights-of-way, such as construction corridors agreements, without cost to the United States, when operating within the jurisdiction of the Navajo Nation, Hopi Tribe, or San Juan Southern Paiute Tribe in furtherance of the planning, design, and construction of the iiná bá – paa tuwaqat’si pipeline. The Secretary shall grant the rights-of-way consented to by the Tribes under paragraph (1). The Indian Self-Determination and Education Assistance Act ( 25 U.S.C. 5301 et seq. ) shall not apply to the design, construction, operation, maintenance, or replacement of the iiná bá – paa tuwaqat’si pipeline.
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Sec. 8
iiná bá – paa tuwaqat’si pipeline
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