0. PECHANGA WATER SETTLEMENT 2016 October 8, 2017
Settlement of Indian Reserved Rights Water Claims
Katie Brossy—Akin Gump Strauss Hauer & Feld
Rod Lewis—Akin Gump Strauss Hauer & Feld
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1. Congress Passed the Pechanga Water Settlement Act
In early December of 2016, during the lame duck session of Congress, both the House and the Senate passed the Pechanga Water Settlement Act and President Obama signed the bill on December 9, 2016.
The Pechanga Water Settlement Act was included as Title III, Subtitle D of the Water Infrastructure Improvements for the Nation Act or the WIIN Act.
Public Law No
The WIIN Act also included the Blackfeet Water Settlement Act, the San Luis Rey Water Settlement Act, and the Chickasaw/Choctaw Water Settlement Act.
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2. Next Steps: Implementation of the Act and Settlement Agreements
While the Pechanga Water Settlement Act passed Congress as part of the Water Resources Development Act and was signed by the President in December, there are a number of requirements that must be met before the Act is fully enforceable.
What is the Enforceability Date:
The enforceability date is the date on which the Tribe has met a number of requirements—when this happens the legislation is officially “enforceable”.
Section 3407(e) of the legislation requires that the Secretary of Interior publish a list of findings in the Federal Register that the Band has met certain enforceability requirements.
The Band has until April 30, 2021 to meet these requirements and have the Secretary of Interior publish the list of findings in the Federal Register.
However, if the Band and the Secretary do not think that they will be able to meet all of the requirements by April 30, 2021, they can agree to extend the deadline.

3. History of Pechanga’s Claims
In 1951 the United States initiated litigation over water rights in the Santa Margarita Fiver Watershed known as United States v. Fallbrook.
The United States, as trustee for Pechanga, Ramona, and Cahuilla, represented all three Tribes before the Fallbrook Court. In 1966, the Court issued Interlocutory Judgment 41 which concluded that each of the Tribes have a Federally Reserved Water Right and set the amount of 4,994 acre feet of water for Pechanga on a Prima Facie basis.

4. Unsatisfied with the way in which the United States was protecting Pechanga’s interest in the Fallbrook case, Pechanga chose to intervene in Fallbrook and was granted party status and therefore able to protect its own interest in the court proceedings.
Pechanga has not yet filed a Motion to Quantify its Federal Reserved Water Right. Pechanga has avoided litigation and entered into mutual private agreements with entities around Pechanga for sharing the limited water resources.

5. Enforceability Requirements
The Fallbrook Adjudication Court has approved and entered a judgment and decree approving the Pechanga Settlement Agreement in substantially the same form as Appendix 2 to the Pechanga Settlement Agreement;
All amounts authorized by the Act have been deposited in the Fund;
The waivers and releases authorized in Section 3407 have been executed by the Band and the Secretary;
The Extension of Service Area Agreement has been approved and executed by all the parties and is effective and enforceable; and
The ESAA Water Delivery Agreement has been approved and executed by all the parties and is effective and enforceable.
We are working with the United States and the Water Districts to complete all of these requirements by April 30, 2021.

6. Tribal Water Right
Section 3405 of the Pechanga Settlement Act confirms the Band’s water right of up to 4,994 acre-feet per year may be used for any purpose on the Reservation and mandates the water right be held in trust by the United States.
This section also describes the intent of Congress to protect any water rights held by individual allottees.
Guarantees that Allottee benefits are equal to or exceed the benefits Allottees possessed prior to enactment of the Act.
Requires the Band to enact a Water Code.
Defines the authority of the Band to use its water.

7. What Exactly is Pechanga Settling and What does Pechanga Get in Return?
Pechanga will be settling and waiving its claims to water and injuries to water against the Rancho California Water District and the United States
In exchange for settling and waiving these claims, Pechanga will receive:
A confirmed Tribal Water Right and groundwater supply from the Wolf Valley Basin
Federal Funding to provide the necessary infrastructure to get a permanent supply of imported water
Protections for allottees

8. What Funds Does the Act provide: Authorization of Appropriations
Total Authorized Appropriations is $28.5 million
4 Separate Appropriations:
Pechanga Recycled Water Infrastructure Account($2,656,374)
Federal Funds used to pay RCWD for Storage Ponds for recycled water
Pechanga ESAA Delivery Capacity Account ($17,900,000)
Infrastructure for Pechanga to obtain water from MWD
Pechanga Water Fund Account ($5,483,653)
Funds for Pechanga to subsidize the cost of MWD water
Pechanga Water Quality Account ($2,460,000)
Funds used to bring down the salinity in the Wolf Valley Basin

9. Additional Pechanga Water Not Part of the Settlement
Groundwater
Recycled
Water
MWD Imported Water
1575 afy
afy
Unlimited
Supply
Include Acre Feet labels
Tribal Council wants animation on this slide to bring up these one at a time.
Consider breaking up the Groundwater and Recycled Water diagram
Discussion to remove 4,994, add the language “Up to”, or move the 4,994 at the top of the page.
Total Water Supply= AFY + Unlimited Supply from MWD
Granitic Supply
Additional Pechanga Water Not Part of the Settlement
Additional Pechanga water not part of the Settlement

10. What the Water Settlement Does NOT Do
Pechanga will not be giving up its exclusive water rights. Instead, the Band’s federally reserved water right will be confirmed and no longer prima facie only
It does not settle Pechanga’s future claims against RCWD or the United States. This means that the United States will still be responsible for protecting the Band’s water rights in the future
Pechanga will not be giving up its good quality water for treated salty water. Instead, Pechanga will have a right to more of the Wolf Valley groundwater water and receive funds to bring down the salinity in the water. Pechanga can use the MWD water for industrial/commercial uses and the good quality groundwater to directly serve Pechanga tribal members and allottees
The allottees’ water usage is not limited to residential use. Allottees will still be able to receive water from the Tribal Water Right for irrigation uses
RCWD will not determine who gets the groundwater during times of shortage or over development. There are provisions in place to establish a water banking system that Pechanga can use during times of drought

11. How does the Settlement Agreement and Legislation Impact Pechanga Tribal Sovereignty?
Ensures tribal jurisdiction over water rights, rather than state or federal courts
Ensures tribal role in all dispute resolution processes where a tribal right is involved
Provides funding for the Band to oversee necessary water infrastructure to get “wet” water to the Reservation
Nothing in the Settlement Agreement or Settlement legislation “terminates” the Pechanga Band, or any aspect of sovereignty of the Pechanga Band

12. How does the Pechanga Settlement Act Protect Allottees?
Allottee water rights originate from Section 7 of the Dawes Act (25 U.S.C. 381) which states:
“In cases where the use of water for irrigation is necessary to render the lands within any Indian reservation available for agricultural purposes, the Secretary of the Interior be, and he is hereby authorized to prescribe such rules and regulations as he may deem necessary to secure a just and equal distribution thereof among the Indians residing upon any such reservation”
In other words, under 25 U.S.C. 381, allottees have a right to:
A just and equal distribution of
the total water rights reserved for an entire reservation
but only for irrigation purposes

13. How does the Pechanga Settlement Act Protect Allottees (cont.)?
The Act specifically provides protections for allottees:
25 U.S.C. 381 shall apply to the tribal water rights, which confirms the continuation of existing allottee water rights
Any entitlement to water of an allottee shall be satisfied by the Band from the tribal water right
Allottees shall be entitled to a just and equitable allocation of water for irrigation and domestic purposes
Allottees have the right to bring a claim under 25 U.S.C. 381 after they have exhausted remedies under the Tribal Water Code or other applicable tribal law
The Secretary of Interior has the authority to protect allottees’ rights, creating a second, separate basis for protection of allottee rights

14. How does the Pechanga Settlement Act Protect Allottees (cont.)?
The Act requires the Band to enact a Tribal Water Code. The Tribal Water Code provides further protections for allottees because it must provide that:
Tribal allocations of water to allottees shall be satisfied with water from the tribal water right
Charges for delivery of water for irrigation purposes for allottees be assessed on a just and equitable basis
There is a due process system for an allottee to request that Pechanga provide water for irrigation use to the allottee
There is a due process system for Pechanga to consider a request by an allottee (appeal and adjudication of any denied or disputed distribution of water and resolution of any contested administrative decision)
The Tribal Water Code MUST be approved by the Secretary, which will ensure that these allottee protections are included

15. How does the Pechanga Settlement Act Protect Allottees (cont.)?
What rights did allottees have prior to the legislation?
What rights will allottees have under the legislation?
Section 381 rights
No confirmed Winters right entitlement
Winters right confirmed at 4,994 AFY
Tribal Water Code that is not subject to Secretarial approval to protect allottee rights
Tribal Water Code that must be approved by the Secretary of Interior to provide protections to allottees
Cost of conflict with RCWD
Section 5(d) protections
Ultimate shortage of water to meet Band’s growing needs
No more cost of conflict with RCWD
Assured future water supply from imported water supply
Subsidy for water
Fund to improve Band’s groundwater supply

16. Next Steps: Further Congressional Activities and Funding
Pechanga’s Congressional Delegation:
Sen. Dianne Feinstein (D-CA)
Committees: Judiciary (Ranking Member); Appropriations (Interior Subcmte.); Rules & Administration
Sen. Kamala Harris (D-CA)
Committees: Homeland Security & Governmental Affairs; Intelligence; Environment & Public Works; Budget
Cong. Ken Calvert (R-CA)
Committees: Appropriations Subcmtes.: Interior; Defense; Energy & Water
Cong. Duncan Hunter (R-CA)
Committees: Transportation & Infrastructure; Armed Services; Education & the Workforce

17. Next Steps: Further Congressional Activities and Funding
Funding of the Pechanga Water Settlement will come out of the Department of Interior Appropriations bill.
Eligible for funding beginning in FY2019, but will depend on available funding for the Department of Interior to pay for Indian water settlements.
Enforceability date of 2021 works in our favor (other Indian water settlements have later enforceability dates).
Pechanga will work with the delegation to support increased funding levels at the DOI.

18. Next Steps: Further Congressional Activities and Funding
Pechanga will work with the Administration for inclusion in the President’s FY2019 Budget Request of the funds necessary.
Expect funding over multiple years.
PROCESS: public notice requirement.
ADD: Granitic Well Non-inclusion