Sec. 412. YELLOWTAIL DAM, MONTANA

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## SEC. 412 YELLOWTAIL DAM, MONTANA ###

(a)Streamflow and Lake Level Management Plan ####

(1)In general Nothing in this title, the Compact, or the Streamflow and Lake Level Management Plan referred to in article III(A)(7) of the Compact— #####

(A)limits the discretion of the Secretary under the section 4F of that plan; or #####

(B)requires the Secretary to give priority to any factor described in section 4F of that plan over any other factor described in that section. ####

(2)Bighorn lake management Bighorn Lake water management, including the Streamflow and Lake Level Management Plan, is a Federal activity, and the review and enforcement of any water management decisions relating to Bighorn Lake shall be as provided by Federal law. ####

(3)Applicability of paragraphs

(1)and

(2)The Streamflow and Lake Level Management Plan referred to in and part of the Compact shall be interpreted to clearly reflect paragraphs

(1)and (2). ####

(4)Applicability of instream flow requirements in plan Notwithstanding any term (including any defined term) or provision in the Streamflow and Lake Level Management Plan, for purposes of this title, the Compact, and the Streamflow and Lake Level Management Plan, any requirement in the Streamflow and Lake Level Management Plan that the Tribe dedicate a specified percentage, portion, or number of acre-feet of water per year of the tribal water rights to instream flow means (and is limited in meaning and effect to) an obligation on the part of the Tribe to withhold from development or otherwise refrain from diverting or removing from the Bighorn River the specified quantity of water for the duration, at the locations, and under the conditions set forth in the applicable requirement. ###

(b)Power Generation ####

(1)In general Notwithstanding any other provision of law, the Tribe shall have the exclusive right to develop and market power generation on the Yellowtail Afterbay Dam, provided that this exclusive right shall expire 15 years after the date of enactment of this Act if construction has not been substantially completed on the power generation project of the Tribe. ####

(2)Bureau of reclamation cooperation The Bureau of Reclamation shall cooperate with the Tribe on the development of any power generation project under this subsection. ####

(3)Agreement Before construction of a power generation project under this subsection, the Tribe shall enter into an agreement with the Bureau of Reclamation that contains provisions that— #####

(A)allocate the responsibilities for the design, construction, and operations of the project; #####

(B)assure the compatibility of the power generation project with the operations of the Yellowtail Unit and the Yellowtail Afterbay Dam, which shall include entering into agreements— ######

(i)regarding operating criteria and emergency procedures, as they relate to dam safety; and ######

(ii)under which, should the Tribe propose any modifications to facilities owned by the Bureau of Reclamation, the proposed modifications shall be subject to review and approval by the Secretary, acting through the Bureau of Reclamation; #####

(C)beginning 10 years after the date on which the Tribe begins marketing power generated from the Yellowtail Afterbay Dam, the Tribe shall make annual payments for operation, maintenance, and replacement costs in amounts determined in accordance with the guidelines and methods of the Bureau of Reclamation for assessing operation, maintenance, and replacement charges, provided that such annual payments shall not exceed 3 percent of gross annual revenue produced by the sale of electricity generated by such project; and #####

(D)the Secretary— ######

(i)shall review the charges established in the agreement on the date that is 5 years after the date on which the Tribe makes the first payment described in subparagraph

(C)to the Secretary under the agreement and at 5 year intervals thereafter; and ######

(ii)may increase or decrease the charges in proportion to the amount of any increase or decrease in the costs of operation, maintenance, and replacement for the Yellowtail Afterbay Dam, provided that any increase in operation, maintenance, and replacement costs assessed to the Tribe may not exceed— ######

(I)5 percent in any 5 year period; and ######

(II)3 percent of the gross annual revenue produced by the sale of electricity generated by such project. ####

(4)Use of power by tribe Any hydroelectric power generated in accordance with this subsection shall be used or marketed by the Tribe. ####

(5)Revenues The Tribe shall retain any revenues from the sale of hydroelectric power generated by a project under this subsection. ####

(6)Liability of united states The United States shall have no trust obligation to monitor, administer, or account for— #####

(A)the revenues received by the Tribe under this subsection; or #####

(B)the expenditure of the revenues received by the Tribe under this subsection. ###

(c)Consultation With Tribe The Bureau of Reclamation shall consult with the Tribe on at least a quarterly basis on all issues relating to the management of Yellowtail Dam by the Bureau of Reclamation. ###

(d)Amendments to Compact and Plan The provisions of subsection

(a)apply to any amendment to— ####

(1)the Compact; or ####

(2)the Streamflow and Lake Level Management Plan.