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This is a text-only version of the document "Northeastern Arizona Indian Water Rights Settlement Agreement - 2010". To see the original version of the document click here.
LEGISLATIVE SUMMARY SHEET

0 1tf2-:i-J 0

DATE: July 16,2010 TITLE OF RESOLUTION: PROPOSED NAVAJO NATION COUNCIL RESOLUTION;
RELATING TO RESOURCES AND INTERGOVERJ'JMENTAL RELATIONS; APPROVING THE PROPOSED NORTHEASTERN ARlZONA INDIAN WATER RlGHTS SETTLEMENT AGREEMENT TO RESOLVE THE WATER RlGHTS CLAIMS OF THE NAVAJO NATION AND HOPI TRlBE FOR WATER FROM THE LITTLE COLORADO RIVER SYSTEM AND FROM THE LOWER BASIN OF THE COLORADO RlVER IN ARlZONA IN THE FORM OF OR SUBSTANTIALLY SIMILAR TO THE FORM AS SET FORTH IN EXHIBIT A

PURPOSE: To approve the proposed Northeastern Arizona Indian Water Rights Settlement
Agreement to resolve the Water Rights Claims ofthe Navaj 0 Nation and Hopi Tribe for Water from the Little Colorado River System and from the Lower Basin ofthe Colorado River in Arizona in the form of or substantially similar to the form as set forth in Exhibit A.

This written summary is provided in accord with Navajo Nation Council Rules of Order, Rule l1(A), or Standing Committee Rules of Order, Rule 12, on the resolution as drafted by the Office of Legislative Counsel. This written summary does not address recommended amendments as may be provided by the standing committees. The Office of Legislative Counsel requests each Council Delegate to review each proposed resolution in detail.

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TABLE OF CONTENTS Page 1.0 2.0 3.0 3.1 3.2 4.0 4.1 4.2 4.3 5.0 5.1 5.2 5.3 6.0 6.1 6.2 6.3 6.4 6.5 6.6 7.0 INTRODUCTION ," , 1 1 1 1 16 20 20 25 28 28 28 31 36 37 37 39 39 41 41 .42 42 OF TRIBES FOR SELECTED 42 .42 43 45

? ARTIES
DEFINITIONS EXHIBITS

GENERAL PROVISIONS

TRIBAL WATER RIGHTS NAVAJO NATION WATER RIGHTS HOPI TRIBE WATER RIGHTS REPLACEMENT OF OFF-RESERVATION WELLS INTER-TRIBAL ISSUES TRIBAL WASH MANAGEMENT PLAN USE OF WATER FROM THEN-AQUIFER DISPlJTE RESOLUTION OFF-RESERVATION USES OF SURFACE WATER EXISTING SURFACE WATER USES SURFACE WATER USES OF THE ZUNI TRIBE ABSTRACTED IN THE LCR ADJUDICATION NEW OFF-RESERVATION SURFACE WATER USES SUBFLOW RESERVOIRS STATE IMPLEMENTING LEGISLATION UNDERGROUND WATER EXPANDED DEFINITION SUBPARAGRAPHS

7.1
7.2 7.3 7.4
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WITHDRAWAL AND USE OF UNDERGROUND WATER BY ANY PERSON OUTSIDE THE PROTECTION AREAS WITHDRAWAL AND USE OF UNDERGROUND WATER WITHIN THE PROTECTION AREAS PROTECTION AREA A
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NORTHEASTERN ARIZONA INDIAN WATER RIGHTS SETtLEMENT AGREEMENT

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PROYECTION AREA B PROTECTION AREA C PROTEC'TION ARE!". D MINERAL ESTATES OBJECTIONS TO EXEMPT, EXISTING AND NEW ViELLS STATE IMPLEMENTING LEGISLATION NAVAJO NATION WATER DELIVERY CONTRACT(S) AND RELATED '" PROVISIONS WATER DELIVERY CONTRACT(S) WATER SUPPLIES AVAILABLE FOR DELIVERY CONDITIONS OF DELIVERy AUTHORIZATION LEASES AND EXCHANGES NO USE OUTSIDE THE STATE ENTITLEMENT TO LEASE AND EXCHANGE MONIES USE OF NAVAJO POWER AND PAYMENT OF CAP WATER DELIVERY CHARGES ASSOCIATED WITH THE DELIVERY OF NAVAJO NATION CAP WATER SCHEDULING WATER DELIVERY CAP REPAYMENT NON-REIMBURSABLE CAP CONSTRUCTION COSTS SHORTAGES AND FIRMING OF NAVAJO NATION CAP WATER AND NAVAJO NATION COLORADO RIVER WATER AGREEMENT WITH THE ARIZONA WATER BANKING AUTHORITY WATERUSEONNAVAJOLANDS '

47 47 18 48 .48 .48 48 49 49 .49 51 51 52 52,

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52 54 54 54 54 56 56 56 56 56 57 58 58

8.9 8.10 8.11 8.12 8.13 8.14 9.0 9.1 9.2 9.3 9.4 9.5
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HOPI TRIBE CAP WATER DELIVERY CONTRACT(S) AND RELATED PROVISIONS WATER DELIVERY CONTRACT(S) WATER SUPPLIES AVAILABLE FOR DELIVERY CONDITIONS OF DELIVERy AUTHORIZATION LEASES AND EXCHANGES
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9.6 9.7 NO USE OUTSIDE THE STATE : 59 S9

ENTITLEMENT TO LEASE AND EXCHANGE MONIES USE· OF NAVAJO POWER AND PAYMENT OF rAP WATER DELIVERY CHARGES ASSOCIATED WITH THE DELIVERY OF HOPI 'IRIBE CAP V/ATER SCHEDULING WATER DELIVERY CAP REPAYMENT NON-REIMBURSABLE CAP CONSTRUCTION

9.8

59 61 61

98 9.10 9.11 9.12

costs "

61

SHORTAGES OF HOPI TRIBE CAP WATER, HOPI TRIBE COLORADO RIVER AND HOPI TRIBE CIBOLA WATER; FIRMING OF HOPI TRIBE COLORADO RIVER WATER AGREEMENT WITH THE ARIZONA WATER BANKING AUTHORITY WATER USE ON HOPI LANDS

61 62 62 62 62 63 64 65 65

9.13 .9.14 10.0

CAP AND COLORADO RIVER WATER DELIVERY CONTRACT(S) AND RELATED PROVISIONS FOR NON-INDIAN PARTICIPANT(S) WATER DELIVERY CONTRACT(S) WATER SUPPLIES AVAILABLE FOR DELIVERY EXCHANGES ; ,

10.1 10.2 10.3 10.4 10.5 10.6

NON-INDIAN PARTICIPANT(S) CAP WATER ENERGY, CAPITAL REPAYMENT, FIXED OM&R AND OTHER CHARGES SCHEDULING WATER DELIVERY SHORTAGES OF NON:-INPIAN ;PARTICIPANT(S) CAP WATER OR . NON-INDIAN PARTICIPANT(S) COLORADO RIVER WATER; PARTICIPANT(S) cAp WATER OR FIRMD\lG . OF COLORADO RIVER·WATER

65 66 66 66 69

11.0 12.0

INTENTIONALLY LEFT BLANK INFRASTRUCTURE WESTERN NA\TAJO PIPELINE LEUPP-DILKON GROUNDWATER PROJECT GANADO GROUNDWATER PROJECT OM&R GENERAL CONDITIONS :
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12.1 12.2 12.3 12.4 13.0 13.1
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70 71 72 72

CONDITIONS AND STAGED WAIVERS

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Page 13.2 13.3 14.0 14.1 14.2 14.3 14.4 14.5 14.6 14.7 14 ..8 15';;1 15.2 15.3 15.4 15.5 15.6 15.7 15.8 15.9 LCRAND RIVER WAIVERS
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73 74 75 75 76 77 78 79 96
98 98 98 98 98. 98

LOWER COLORADO RIVER WAIVERS NAVAJO NATION WAIVERS, RELEASES AND RETENTIONS OF CLAIMS : HOPI TRIBE WAIVERS, RELEASES AND RETENTIONS OF CLAIMS ALLOTTEE WAIVERS, RELEASES AND RETENTIONS OF CLAIMS UNITED STATES WAIVERS, RELEASES AND RETENTIONS OF CLAIMS : STATE PARTIES WAIVERS, RELEASES AND RETENTIONS OF CLAIMS SATISFACTION OF WATER RIGHTS AND OTHER BENEFITS EFFECT ON MEMBERS DISMISSAL OF PENDING COURT CASE NO IMPAIRMENT OF EXISTING RIGHTS NO STANDARD FOR USE FOR QUANTIFICATION OF OTHER INDIAN RIGHTS OR CLAIMS ENTIRE UNDERSTANDING MODIFICATIONS EXHIBITS STATE CAPACITy OBLIGATION TO WORK IN GOOD ENFORCEABILITY OF AGREEMENT AUTHORITY TO EXECUTE RIGHT TO PETITION ANY COURT OF COMPETENT JURISDICTION GOVERNING LAW FAITH TO ACHIEVE TO AGREEMENT AND AMENDMENTS TO

WAIVERS, RELEASES AND RETENTIONS OF CLAIMS

15.0 "GENERAL PROVISIONS

99
99

100 100 100 100 100 100 100

15.10 SUCCESSORS AND ASSIGNS 15.11 STATE CONFLICT OF INTEREST 15.12 ANTI-DEFICIENCY ACT 15.13 NO BENEFIT TO COMMISSIONERS
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MEMBERS

OF

CONGRESS

OR RESIDENT 100

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15.14 DUPLICATE ORIGINALS AND COUNTERPARTS 15.15 NGS 15.16 NO QUANTIFICATION OR EFFECT oN WATER RIGHTS, CLAIMS OR ENTITLEMENTS TO WATER OF OTHER TRIBES 15.17 CONSTRUCTION AND EFFECT 15.18 NocfICES 16.0 SIGNA1'URES , 15.19 U:--JHOLDU:--JGS ON THE NAVAJO RESERVATION 101 . 10 1 101 102 102 102

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INTRODUCTION The purpose Gfthis Agreement is to resolve, fully and finally, any and ali claims that the Navajo Nation on bf,i1a1f of itself and Members; the Hopi Tribe on behalf of itself and the Allottees; and the United States acting in its capacity as trustee fa! the its Navajo Nation, the Hopi Tribe, and their Members, and the Allottees, may have to the River system 8.::ld. soUtce, and any and all Lower Colorado River, the Little claims that the Navajo Nation, its Members, and the United States acting in its capacity as trustee for the Navajo Nation and its Members, may have to the Gila River systeiIl and source.

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PARTIES day of ,2010 is entered into among the United This Agreement dated as of this States of America; the State of Arizona; the Navajo Nation; the Hopi Tribe; the Central Arizona Water Conservation District; the Salt River Project Agricultural Improvement and Power District; the Salt River Valley Water Users' Association; the Arizona cities and towns of Flagstaff, Winslow, Holbrook, Taylor, Snowflake, Show Low, Eagar, and Springerville; Catalyst Paper (Snowflake) Inc.; Arizona Public Service Co.; Bar T Bar Ranch Inc.; Crater Ranch, L.L.C.; Flying M Ranch Inc.; Aztec Land and Cattle Company, Limited; Aztec Land Company, LLC; Arizona State Land Department; Arizona Game and Fish Commission; Arizona Department of Transportation; Lyman Irrigation Company; Pioneer Irrigation Company; Show LOW/Pinetop-Woodland Irrigation Company; Silver Creek Irrigation District; Lakeside Irrigation Company; Forest Lakes Domestic Water Improvement District; Pinetop-Lakeside Sanitary District; Euell Lyle Barnes; and Navapache Hospital District.

3.0

GENERAL PROVISIONS 3.1 DEFINITIONS 3.1.1 3.1.2 "1934 Act Case" shall mean that litigation styled Honyoama v. Shirley, Jr., Case No. CIV 74-842-PHX-EHC (D.Ariz. 2006). "26 Bar Ranch" shall mean, for purposes of this Agreement, the lands located in and around the Town of Eagar, Arizona and owned by the Hopi Tribe as indicated on the map attached as Exhibit 3.1.2 and more particularly described in Deed Nos. 980001000 and 98002138 on file with the Apache County Recorder's Office. "Abstract" shall mean a summary of Water Rights or uses held or owned by any Person, as represented in a form substantially similar to the one attached as Exhibit 3.1.3. "Act" shall mean the Northeastern Arizona Indian Water Rights Settlement Act. "AFY" shall mean acre-feet per Year.
1

3.1.3

3.1.4 3.1.5

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"Agreement" shall mean this Northeastern Arizona Indian Water Rights and the Exhibits attached hereto. Settlement "Aja RJP·ch" shall mean, for purposc;,; of this Agreement, the lands located south and east of Clear Creek Ranch portions of which are owned by the United States in trust for the Hopi Tribe and more particularly described in Deed No. 2008-24650 on fiie with the Navajo CG:.mty Recorder's Office, and portions of which are owned in fee by the Hop1 trihe, all as indicated the map attached as Exhibit 3.1.7. .

on

3.1.8 3.1.9

"Allottee" or "Allottees" shall mean a person or persons holding a beneficial real property interest in an Allotment. "Allotment" or "Allotments" shall mean an allotment or allotments: (l) originally allotted to an individual identified in the patent as a Navajo or Hopi Indian; (2) located within the exterior boundaries of the Navajo Reservation, within the exterior boundaries of the Hopi Reservation, or on Off-Reservation lands within Apache, Coconino or Navajo counties, Arizona; and (3) held in trust by the United States for the benefit of an Allottee. "Allowable Economic Drawdown" shall mean, in the absence of data to the contrary, a value of70 percent of the static water column in a Well. "Allowable Physical Drawdown" shall mean the difference between the static water level and the lowest practical pumping water level in the Well. The lowest practical pumping water level depends on the Well discharge rate, depth at which the pump is set, pump and Well characteristics and other factors. "Arizona Department of Water Resources" or "ADWR" shall mean the agency of the State established pursuant to Title 45 of the Arizona Revised Statutes, or its successor agency or entity. "Arizona Water Banking Authority" shaH mean the agency of the State established pursuant to A.R.S. § 45-2401, et seq., or its successor agency or e n t i t y . . "Arizona Water Settlement Agreement" shall mean the Arizona Water Settlement Agreement dated September 20, 2006 among the United States, the State of Arizona and the' Central Arizona. Water Conservation District, thereto. .including all "Arizona Water Settlements Act"or "AWSA" shall mean the Arizona Water Settlements Act of2004, Pub. L. No. 108-451, 118 Stat. 3478 (2004). "Available CAP Supply" shall mean for any given Year all Fourth Priority Colorado River Water available for delivery through the CAP System, water

3.1.10 3.1.11

3.1.12

3.1.13

3.1.14

3.1.15 3.1.16

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available from CAP dams and reservoirs other than Modified Roosevelt Dam, and return flows captured by the Secretary for CAP use. 3.1. t7 "Betterment" shaH mean any water control measures or practices to optimize W?:.ter use, including project reconfiguration, as long as the Diversion capacity, surface storage capacIty, or irrigated acreage is not increased.
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3.1.18

"Central Arizona Project" or "CAP" shall mean the federal reclamation project authorized and constructed by the United States in accordance with Title III of the Colorado River Basin Project Act, 43-U.S.C. § 1521, et seq. "CAp· Contract" shall mean a long-term contract or subcontract (as those terms are used in the CAP Repayment Stipulation) for delivery of CAP Water. "CAP Contractor" shall mean a person or entity that has entered into a longterm contract or subcontract (as those terms are used in the CAP Repayment Stipulation) with the United States or the United States and CAWeD for delivery of water through the CAP System. "CAP Fixed OM&R Charge" shall mean 'Fixed OM&R Charge' as that term is defined in the CAP Repayment Stipulation. "CAP M&I Priority Water" shall mean that Water having a municipal and industrial delivery priority under the CAP Repayment Contract. "CAP NIA Priority Water" shall mean that water deliverable under a CAP Contract providing for the delivery of non-Indian agricultural priority water. "CAP Operating Agency" shall mean the entity or entities authorized to assume responsibility for the care, operation,maintenance and replacement of the CAP System. As of the Execution Date, CAWCD is the CAP Operating Agency. "CAP Pumping Energy Charge" shall mean 'Pumping Energy Charge' as that term is defined in the CAP Repayment Stipulation. "CAP Repayment Contract" shall mean the contract dated December 1, 1988 styled: Contract Between the United States and the Central Arizona Water Conservation District for Delivery of Water and Repayment of Costs of the Central Arizona Project (Contract No. 14-06-W-245, Amendment No.1), including any amendments or revisions thereto. "CAP Repayment Stipulation" shall mean the Stipulated Judgment, Stipulation for Judgment, and exhibits thereto in Central Arizona Water Conservation District v. United States, et ai., Case No. ClV 95-62S-TUCWDB (EHC), Case No. CN 95-1720-PHX-EHC (Consolidated Action) (D.Ariz. Nov. 21,2007), and any modifications thereof.

3.1.19

3.1.20

3.1.21 3.1.22 3.1.23 3.1.24

3.1.25 3.1.26

3.1.27

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3.1.28

"CAP System" shall mean: (1) the Mark Wilmer Pumping Plant; (2) the Hayden-RhGdes Aqueduct;" (3) the Fannin-McFarland Aqueduct; (4) the TucsOll Aqueduct; (5) the pumplr.g plants and appurtenant works of the Arizop-a.Troject aqueduct system that are in (1) through (4); and (6) any extensions. of, additions to, (\t" replacements for the features "if described in (1) through. (5). "CAP Water" shall mean 'Project Water' as that term is'defined in the CAP Repayment Stipulaticil. "Central Arizona Water Conservation District" or "CAWCD" shall mean the political subdivision of the State that is the contractor under the CAP Repayment Contract, or its successor agency or entity. "Claimant" shall mean a Person who has filed a Statement of Claimant in the LCR Adjudication. "Clear Creek Ranch" shall mean, for purposes of this Agreement, the lands located north and west of Aja Ranch portions of which are owned by the United States in trust for the Hopi Tribe and more particularly described in Deed No. 3507892 on file with the Coconino County Recorder's Office, and portions of which are owned in fee by the Hopi Tribe, all as indicated on the map attached as Exhibit 3.1.32. "Closed Basin" shall mean those surface, water subwatersheds within the LCR watershed depicted on the maps attached as Exhibit 3.1.33. "Colorado River Compact" shall mean the Colorado River Compact of 1922, as ratified and reprinted at Title 45, Chapter 7, Article 2 of the Arizona Revised Statutes. "Confined Aquifer" shall mean any location at which the static water level in a Well completed in the N-Aquifer rises 10 feet or more above the top of the geologic formation known as the Navajo Sandstone at the time the Well is drilled; the area generally depicted on Exhibit 3.1.35. lathe case ofa conflict between this definition and Exhibit 3.1.35, Exhibit 3.1.35 shall control. when used: without a modifying adjective shall mean collectively the. decree of the Supreme Court of the United States in Arizona v. California, 376 U.S. 340(1964), the consolidated. decree inArizona v. California, 547 U.S. 150 (2006),artd allY "De Minimis Use" shall mean a Surface Water use for: (1) domestic purposes not to exceed one AFY; (2)stockwatering uses; (3) wildlife uses; or (4) an'''i' . Impoundment having a storage capacity of not more than fifteen acre-feet that is used primarily for watering livestock or wildlife.

3.1.29 3.1.30

3.1.31 3.1.32

3.1.33 3.1.34

3.1.35

3.1.36

3.1.37

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3.1.38 3.1.39 3.1.40

"Director" shall mean the Director of the Arizona Department of Water Resources. "Diversion" shall mean the act ofDiverting.
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"DivCli," "Diverting/?:. and "Diverted" shall mefu'l to receive, withdraw or Surface Water, CAP develop and produce or capture Colorado River water or Effluent by means of a ditch, canal, flume, bypass, pipeline, pit, collection or infiltration gallery, conduit, Well, pump, turnout, or other mechanical device or,' any other human act, inCluding the initial impoundment of water. "Domestic Use" shall mean the Diversion of water by one or more individuals or households for purposes of: (1) drinking, cooking, laundering, and other personal comforts or necessities; (2) the irrigation of a family garden, orchard or yard, less than two acres in size per family unit or household; (3) livestock watering using tanks with a storage capacity of not to exceed 5,000 gallons; or (4) the crafting of articles such as jewelry, pottery or other traditional items by a household resident for personal use or sale. "Drye Ranch" shall mean, for purposes of this Agreement, the lands located immediately west of Hart Ranch owned by the United States in trust for the Hopi Tribe as indicated on the map attached as Exhibit 3.1.42 and more particularly described in Deed No. 3507891 (parcels six and seven) on file with the Coconino County Recorder's Office. "Effective Date" shall mean the date on which the State Implementing Legislation becomes State law. "Effluent" shall mean water that has been used for domestic, municipal or industrial purposes and that is available for use for any purpose, but water shall not become Effluent solely as a result of having been used for hydropower generation. "Excess CAP Water" shall mean 'Excess Water' as that term is defined in the CAP Repayment Stipulation. "Execution Date" shall mean the date as of which this Agreement has been executed by all of the following Parties: the Navajo Nation, the Hopi Tribe, the State of Arizona, the Arizona State Land Department, the Central Arizona Water Conservation District, the Salt River Project Agricultural Improvement and Power District, and the Salt River Valley Water Users' Association. "Exempt Well" shall mean a Well havip.g a pump with a maximum capacity of not more than 35 GPM used to withdraw Underground Water. For purposes of determining whether a Well is an Exempt Well, a series of Wells serving the same facility shall be considered a single Well.

3.1.41

3.1.42

3.1.43 3.1.44

3.1.45 3.1.46

3.1.47

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.·_3.1.48

"Exhibit" shall mean an exhibit to this Agreement as enumerated Subparagraph 3.2.

In

3.1 A9
3.1.50

"ExistingSurface Water. Use" sh;ll any use of Surface\Vater existing as of the Effective Date, which the subject of a Staiel11ent of Claimant. "Existing Well" shall mean a Non-Exempt Well that was completed or substantially completed for the purpose of withdrawing Underground Water, and that has hot been abandoned by filling or sealing the Well so as to .. prevent the Well, including the annular space outside the casing, from being a ·channel allowing the vertical movement of Underground Water, on or before the Effective Date.
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3.1.51

"Fourth Priority Colorado River Water" shall mean Colorado River water available for delivery within the State for satisfa<:;tion of entitlements: (1) pursuant to contracts, Secretarial reservations, perfected rights, and. other arrangements between the United States and water users in the State entered into or. established subsequent to September 30, 1968, for use on federal, State, or privately owned lands in the State (for a total quantity not to exceed 164,652 acre-feet of diversions annually); and (2) after first providing for the delivery of water under 43 U.S.C. §1524(e), pursuantto the CAP Repayment Contract for the de1iveryof Colorado River water for the CAP including use of Colorado River water on Indian lands. "Gila River Adjudication" shall mean that action pending in the Superior Court of the State of Arizona in and for the County of Maricopa styled In re the General Adjudication 0/ All. Rights To Use Water in The Gila River System and Source, W-1 (Salt), W-2 (Verde),W-3 (Upper Gila), W-4(San Pedro) (Consolidated). "Gila River Adjudication Court" shall mean the Superior Court of the State of ArizQna in and for the County of Maricopa exercising jurisdiction over the Gila River Adjudication. "Gila River Adjudication Decree" shall mean and include any final judgment or decree entered by the Gila River Adjudic':ltion including the judgment entered in substantially the same form as the form of judgment hereto as Exhibit 3.1.54. . "GPM" shall mean gallons per minute. mean a,11 water the of the earth within "Groundwater" the State that is not: (1) Surface Water; (2) Underground Water within the Upper Basin; (3) Lower ColoradoJ.liver water; or (4) F:ffluent. "Groundwater Projects Fund" shall mean the subaccount created in the Lower Colorado River Basin Development Fund for the planning, design,

3.1.52

3.1.53

3.1.54

3.1.55 3.1.56

3.1.57

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3nd co.nstruction of the Leupp-Dilkon and Ganado Groundwater projects and 12.3. d('scribed in Subparagraphs 3.1. 58

"Hart Ranch';- shall mean, for purposes 'If this Agreement, the lands located south af the soutJ:1:westem comer of the Navajo Reservation and owned by the· United States in trust for the Hopi Tribe as. indicated on the map attached as Exhibit 3.1.58 and more particularly"described in Deed No. 3507891 on file with the Coconino County Recorder's Office.
"Hopi Fee shall mean land, other than Hopi Trust Land, that as of the LCR Enforceability Date is: (1) owned by the Hopi Tribe, whether in its own name or through a related entity; and (2) located outside the exterior boundaries of the Hopi Reservation. "Hopi Lands" shall mean, collectively, the Hopi Reservation, Hopi Trust Land and Hopi Fee Land. "Hopi Reservation" shall mean, for purposes of this Agreement only, District 6, and all lands withdrawn by the Executive Order of Dec. 16, 1882 and partitioned to the Hopi Tribe in accordance with the Act of Dec. 22, 1974, Pub. L. No. 93-531, § 4, 88 Stat. 1713 (codified as amended at 25 U.S.C. § 640d-3), by Judgment of Partition, Feb. 10, 1977, Sekaquaptewa v. MacDonald, Case No. CIV-579-PCT-JAW (D.Ariz.), affirmed 626 F.2d 113 (9th Cir. 1980); all lands recognized as part of the Hopi Reservation in the 1934 Act Case; and individual allotments made to members of the Hopi Tribe within those lands, all as more particularly set forth on the map attached as Exhibit 3.1.61. "Hopi Tribe" shall mean the Hopi Tribe, a Tribe of Hopi Indians organized under Section 16 of the Indian Reorganization Act of June 18, 1934,48 Stat. 987 (25 U.S.C. § 476), and duly recognized by the Secretary. "Hopi Tribe CAP Water" shall mean CAP Water to which the Hopi Tribe is entitled pursuant to the Hopi Tribe Water Delivery Contract(s). "Hopi Tribe Cibola Water" shall mean that water to which the Hopi Tribe is entitled pursuant to Contract No. 04-XX-30-W0432 between the United States and the Hopi Tribe, dated December 14, 2004, and the Hopi Tribe Water Delivery Contract(s). "Hopi Tribe Colorado River Water" shall mean Fourth Priority Colorado River Water to which the Hopi Tribe is entitled pursuant to the Hopi Tribe Water Delivery Contract(s). "Hopi Trust Land" shall mean land outside of the Hopi Reservation that, as of the LCR Enforceability Date, is held in trust by the United States for the benefit of the Hopi Tribe.

3.1.59

3.1.60 3.1.61

3: 1.62

3.1.63 3.1.64

3.1.65

3.1.66

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3.1.67

"Hopi Tribe Water Delivery Contract(s)" shall mean the contract or contracts entered into pursuant' to this Agreement forthe d(;:Jivery of Hopi Tribe CAP Water, Hopi Tribe Colorado River W!4.ter and Hcpi Tribe Cibola Water, attached herem as Exhibits 9.2:1, 9.22.1, aI!d 9.2.2.1.: copies ofwhith "Impoundment" shall mean a man-made structure uSed to store Water.
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3.1.68 3.1.69

"Industrial Use" shall mean the non-Domestic Use of water by any enterprise in making, converting or extracting objects or materials into valuable products by machinery or any other mechanical process, including but not limited to the extraction, conversion or transportation of any materials. "Injury to Water Quality" shall mean any diminution or degradation of the quality ofWater due to a change in the salinity or concentration of naturally occurring chemical constituents of Water and any effect of such a change where the changes in salinity or concentration and the effects of such changes are due to the withdrawal, Diversion or use of Water. "Injury to Water Rights" shall mean an interference with, diminution of, or deprivation of,Water Rights under federal, State or other law. "Irrigation" shall mean the use of Water. on two (2) or more acres ofland to produce plants or parts of plants for sale or human consumption, or for use as feed for livestock, range livestock or poultry. "LCR" shall mean the Little Colorado River. "LCR Adjudication" shall mean that action pending in the Superior Court of the State of Arizona in and for the County of Apache styled In re: the General Adjudication ofAll Rights to Use Water in the Little Colorado River System and Source, CIV No. 6417.

3.1.70

3.1.71 3.1.72

3.1.73 3.1.74

3.1.75 . "LCR Adjudication Court" shall mean the Superior Court of the State of Arizona in and for the County of Apache exercising jurisdiction over the LCR Adjudication. " 3.1.76 "LCR Decree" shall mean the final judgment or decree·entered by the LCR Adjudication Court in substantially the same form as the form of judgment attached hereto as Exhibit 3.1.76. "LCR Enforceability Date" shall mean the date. on which the Secretary publishes in the Federal Register the statement of findings described in Section of the Act. "LCR Watershed" shall mean, for purposes of this Agreement only, all lands .located within the Surface Water drainage of the Little Colorado River and its tributaries in Arizona.

3.1.77

3.1.78

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3.L79

"Lee Ferry" shag, mean 'Lee Ferry' as defined in Article lICe) of the Colorado River Compact. "Lower Ba3in" shall mean the 'Lower Basin' as defined in-Article II(g) of the Colorado River Compact. "Lower Colorado River" shall mean th(; Colorado River downstream"'from Lee Ferry within the United States, including the reservoirs thereon. For purposes of Paragraph 14.0 only, the term "LO'.lfer Colorado River" shall also include: (1) all tributaries to the Lower Colorado River at or below Lee Ferry other tha.'l tributaries located within the State; (2) all Underground Water that is hydrologically connected to the Lower Colorado River; and (3) all Underground Water that is hydrologically connected to' tributaries to the Lower Colorado River other than tributaries located within the states of Arizona and New Mexico. "Lower Colorado River Basin Development Fund" shall mean the fund established by Section 403 of the Colorado River Basin Project Act (43 U.S.C. § 1543). "Lower Colorado River Enforceability Date" shall mean the date on which the Secretary publishes in the Federal Register the statement of findings described in Section of the Act. "Lower LCR Watershed" shall mean that portion of the LCR Watershed downstream from the mouth of Chevelon Canyon located outside of the Three-Canyon Area. The Lower LCR Watershed is shown on the map attached hereto as Exhibit 3.1.84. "Main Washes" shall mean the mainstem of the five washes north of, and tributary to, the Little Colorado River, which flow across both the Navajo Reservation and the Hopi Reservation: Moenkopi, Dinnebito, Oraibi, Polacca, and Jeddito (also known as Jadito per the United States Geological Survey) washes. "Major Tributary Washes" shall mean the mainstem of Shonto, Begashibito and Wepo washes, which are tributary to the Main Washes. "Managed Washes" shall mean the mainstems of the Main Washes and the Major Tributary Washes. These Managed Washes are shown on the map attached hereto as Exhibit 3.1.87. "Member" or "Members" shall mean any Indian, person or persons duly enrolled as a member or members ofthe Navajo Nation, or the Hopi Tribe, as applicable. "Minor Tributary Washes" shall mean all washes tributary to the Managed Washes, other than the Major Tributary Washes.

3.1.80

3.1. 81

3.1.82

3.1.83

3.1.84

3.1.85

3.1.86

3.1.87

3.1.88

3.1.89

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3.1.90 '. "Municipal Water,Provider" shall mean a City, town, private water company, . speciqlly designated homeowners association, or any special taxing district establis!:led pursuant to Title 48 of the Arizona Revised StRt.. . that supplies water for nO:1-Irrigation use. "'" 3.1.91 "Municipal Use" shaH mean all non-Irrigation uses ofwater suppJied bya Tribe or Municipal WaterProvider.
. .

3.1.92 . "Navajo Aquifer;' or 3.1.35. 3.1.93

shall mean that aquifer depicted on Exhibit

"Navajo Fee Land" shall mean land, other than Navajo Trust Land, that as of the LCR Enforceability Date is: (1) owned by the Navajo Nation in the State, .whether in its own name or through a related' entity; and (2) located outside the exterior boundaries ofthe Navajo Reservation. Wl;l.ter Supply Project" shall mean.the project authorized, constructed and operated pursuant to Title X.B of the Omnibus Public Lands Act of2009, Pub. L. No. 111-11 (the Northwestern New Mexico Rural Water Projects Act). . "Navajo Generating Station" or "NGS" mean the Navajo Generating Station, a steam electric generating station on the Navajo Reservation near Page, Arizona consisting ofUnits 1, 2, and 3, the facilities, and all facilities and structures used or related thereto. "Navajo Lands" shall mean, collectively, the Navajo Reservation, Navajo Trust Land and Navajo Fee Land. "Navajo Nation" shall mean the Navajo Nation, a body politic and federallyrecognized Indian nation, 60 Fed. Reg. 9249, 9252 (Feb. 16, 1995), also known variously as the 'Navajo Tribe: the 'Navajo Tr.ibe of Arizona, New Mexico & Utah' aI;ld the 'Navl;l.jo Tribe of Inoians'and other similar names, and includes all bands of Navajo Indians, and chapters of,the Navajo Nation. "Navajo Nati;

3.1.110 "Non-Indian Participant" shall mean any Municipal Vv'ater Provider in Yavapai, or counties, Arizona that elects to participate in the construction and financing qfthe Western Navajo Pipeline as provided In Subparagraph 12.1 . . , 3.1.111 "Norviel Decree" shall mean the final decree of the State of Arizona Superior Court in and for the County of Apache in The St. John IS Irrigation Company and the Meadows Reservoir Irrigation Company, et ai. v. Round Valley Water Storage & Ditch Company, Eagar Irrigation Company, Springerville Water Right and Ditch Company, et ai., Case No. 569 (Apr. 29, 1918), and any modifications thereof. 3.1.112 "Off-Reservation" shall mean lands located in Arizona outside the exterior boundaries of both the Navajo and Hopi Reservations. 3.1.113 "OM&R" shall mean operation, maintenance, and replacement. 3.1.114 "Paragraph" shall mean a numbered paragraph of this Agreement including all Subparagraphs in such Paragraph. 3.1.115 "Party" or "Parties" shall mean a Person identified in Paragraph 2.0 who is a signatory to this Agreement. 3.1.116 "Peabody" shall mean Peabody Western Coal Company, and any affiliates or successor thereof. 3.1.117 "Permanent Surface Water Control Str\lcture" shall mean any water control structure over fifteen feet in height, as measured from the lowest elevation of the downstream toe at its intersection with the natural ground surface to the spillway crest or the crest of dam if a spillway is not present, or with active storage of more than seventy-five acre-feet. 3.1.118 "Person" shall mean an individual; public or private corporation; company; partnership; joint venture; firm; association; society; estate or trust; any other private organization or enterprise; the -United States; any Indian tribe; any -_state, territory or country; any governmental entity; and any political subdivision or municipal corporation organized under or subject to the cqnstitution and laws of a state, including the officers, directors, agents, insurers, -representatives, employees, attorneys, assigns, subsidiaries, in interest and their heirs, affiliates, enterprises, predecessors and

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----

-----------

--------

---

----

--------- - - - -

legal Per::>on.

assigns preJ:lecesSoors and successors in' interest of any

3.1. I 19 "Protection Area A" shaH mean the 1ands'V;ithin 18 sections south of the southemb8undary, of the Navajo :Reservation, on the east by the line between Coconino County and Navajo County and on the west by the U.S. Forest Service boundary, but excluding the U 6 Ranch fuid the southwest comer State trust land parcel (immecl,iately to the west of the Flying M Ranch). Within Protection Area A there are four Zones south of the Navajo Reservation: Zone'A-1 extends from 0 to 2 sections south of the southern boundary of the Navajo Reservation; Zone A-2 extends from 2 sections to 6 sections south of the southern boundary of the Navajo Reservation; Zone A-3 boundary of the Navajo extends from 6 to 12 sections south of the Reservation; and Zone A-4 extends from 12 to 18 sections south of the southern boundary of the Navajo Reservation. Protection Area A and its Zones are depicted on the map attached hereto as Exhibit 7.4. In the case of a conflict between this definition and Exhibit 7.4, Exhibit 7.4 shall control. Notwithstanding the above description of Zone A-I, only those portions of the Hopi Trust Lands in sections 7, 9, 11, and 12, T20N, RIlE; section 7,9, and 11, T20N, Rl2E; and section 11, T20N, R12.5E within 2 miles of the southern boundary of the Navajo Reservation, shall be included within Zone A-I. The remaining portions of such Hopi Trust Lands in said sections shall be included in Zone A-2. 3.1.120 "Protection Area B" shall mean the lands bound on the west by the line between Coconino County and Navajo County, on the east by the ArizonaNew Mexico state line, and generally within six sections of the southern boundary of the Navajo Reservation. Protection Area B contains two Zones south of the Navajo Reservation boundary: Zone B-1 extends generally from o to 2 sections south of the southern boundary ofthe Navajo Reservation; and Zone B-2 extends generally from 2 sections to 6 sections south of the southern boundary of the Navajo Reservation. Protection Area B and its Zones are depicted on the map attached hereto as Exhibit 7.5. In the case of a conflict between this definition and Exhibit 7.5, Exhibit 7.5 shall control. 3.1.121 "Protection Area C" shall mean the lands extending north from the northern boundary of Protection Area A, Zone 1 to the confluence of the Lower Colorado River and the LCR, bound to the east and north by the western boundary of the Navajo Reservation and to the west and south by the United States Forest Service boundary or up to a maximum of 6 sections. Protection Area C contains two Zones: Zone C-1 extends generally from 0 to 2 sections west and south of the western boundary of the Navajo Reservation;.and Zone C-2 extends from 2 sections west and south of the western boundary of the Navajo Reservation to either the United States Forest Service boundary or up to a maximum of q sections, but excluding all United States Forest Service land. Protection Area C and its Zones are depicted on the map attached

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hereto as Exhibit 7.6. In the case of a conflict between this definition and Exhibit 7.6, Exhibit 7.6 shall control. .. 3.1.122 "ProtectfonArea D" shall mean tr..Qse lands on the Navajo Reservation extending'18 miles north of the southern boundary of the Navajo Reservation, bound on' the east oy the line between Coconino County and Navajo County and on the west by the Navajo Reservation boundary. ProtectiSill Arta D is depicted onthe map attached hereto as Exhibit 7.7. In the case of a conflict between this definition and Exhibit 7.7; Exhibit 7.7 shall control. 3.1.123 "Protection Areas" shall inean Protection Area A, Protection Area B, Protection Area C, and Protection Area D, collectively. 3.1.124 "Reclamation" shall mean the United States Bureau of Reclamation. 3.1.125 "Rehabilitation" shall mean the replacement in kind with comparable works (including limited on-farm or system water conservation measures), which may include technologically improved components, so long as the Diversion capacity, surface storage capacity or irrigated acreage is not increased. 3.1.126 "Reservoir" shall mean a Surface Water Impoundment that is not a De Minimis Use.
)

3.1.127 "Secretary" shall mean the Secretary of the United States Department of the Interior or the s authorized designee. 3.1.128 "Shortage" shall mean the same as the term 'shortage' under criteria developed by the Secretary for management of the Lower Colorado River. 3.1.129 "State" shall mean the State of Arizona. 3.1.130 "State Implementing Legislation" shall mean legislation enacted by the State that incluqes terms substantially similar to those set forth in Exhibit 3.1.130. 3.1.131 "Statement of Claimant" shall mean a domestic use statement of claimant, stockpond use statement of claimant, other .uses statement of claimant or irrigation use statement of claimant filed in the. LCR Adjudication and bearing a file number beginning with the number '39.' 3.1.132 shall mearJ. a numbered subparagraph of this Agreement. .

3.1.133 "Surface Water"shall mean all water that is appropriable under State law, other than appropriable water that is located within the Upper Basin of the Colorado River. 3.1.134 "Three-Canyon Area" shall mean the Clear Creek, Chevelon Creek and Jacks Canyon subwatersheds of the LCR Watershed as depicted· on the map

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attached hereto as-Exhibit 3.1.134. In_JJ1e c::tSe of a conflict between this definition alld Exhibit 3.1.134, Exhibit 3.1.1-34 shall control. --"
3.1.135 "T:-ibe" shall mean either the Navajo Nationor the Hopi Tribe. 1.136 "Tribes" shall mean both the Navajo Nation and the Hopi Tribe. 3.1,137 "Underground Water" shall mean any water beneath the surface of the earth, other than Effluent, regardless of its legal characterization as appropriable or non-appropriable under State, federal or other law. 3.1.138 "Underground Water Allocation" shall mean a per acre, pro rata allocation of Underground Water among landowners within Protection Area A; the formula for calculating said Underground Water Allocation is set forth in Exhibit 7.4.2. 3.1.139 "United States" or "United States of America" in any given reference herein 'United States' shall mean the United States acting in the capacity as set forth in said reference. When the tenn 'United States' or 'United States of America' is used in reference to a particular agreement or contract, the term shall mean the United States acting in the capacity as set forth in such agreement or contract.
J.

3.1.140 "Upper Basin" shall mean 'Upper Basin' as defined in ArtiCle lI(f) of the Colorado River Compact. 3.1.141 "Upper LCR Watershed" shall mean that portion of the LCR Watershed upstream from the mouth of Cheve10n Creek which is located outside of the Three-Canyon Area. The Upper LCR Watershed is shown on the map attached hereto as Exhibit 3.1.141. In the case of a conflict between this definition and Exhibit 3.1.141, Exhibit 3.1.141 shall control. 3.1.142 "Water" when used without a modifying adjective shall mean Underground Water, Groundwater, Surface Water, or Effluent. 3.1.143 "Water Right" shall mean any right in or to Underground Water, Groundwater, Surface Water or Effluent under federal, State or other law. 3.1.144 "Well" shall mean a man-made opening in the earth through which except for wells drilled Underground Water may be withdrawn or for oil, gas, or helium, or geothennal wells when the Director finds that the rules and regulations of the Arizona Oil and Gas Conservation Commission require the reinjection of all waters associated with the geothermal resource to the producing strata. 3.1.145 "Western Navajo Pipeline Fund" shall mean the subaccount established in the Lower Colorado River Basin Development Fund for the planning, design,

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and construction of the Western Navajo Pipeline described in Subparagraph 12.i.'; . 3.1.146 "Window Rock" mean the geograpEc area in Arizona, inch!dj-rog Window Rock, Arizona, to be served by the Navajo-Gallup Water Supply Project. 1.147 "Year" shall a Calendar year.

3.1.148 "Zone" for purposes of Paragraph 7.0 shall mean a geographic subset of the Protection Areas described in Subparagraphs 3.1.119, 3.1.120, and 3.1.121. 3.1.149 "Zone S" shall mean an area four and one-half miles from the intersection of the southern boundary of section 10, T32N, R11E with the midpoint of Pasture Canyon in Tuba City, Arizona, as shown on the map attached hereto as Exhibit 3.1.149. In the case of a conflict between this definition and Exhibit 1.149, Exhibit 3.1.149 shall control. 3.1.150 "Zuni Indian Tribe" or "Zuni Tribe" shall mean the body politic and federally-recognized Indian nation of that mune. 3.2 EXHIBITS
'-

The following is a list of Exhibits to this Agreement. No Party shall have any right to object to an amendment to such an Exhibit except as provided in Subparagraph 15.4.2. No Party shall have, by reason of this Agreement, any third-party enforcement or other rights under any Exhibit to which said Party is not a party, unless otherwise provided ill the Exhibit or exceptwith respect to Exhibits 3.1.54, 3.1.76, 14.1.1, 14.1.2, 14.2.1, 14.2.2, 14.3.1, 14.3.2, 14.4.1,14.1.3, 14.1.4, 14.2.3, 14.2.4. A definition in an Exhibit shall be confined to the Exhibit in which it appears unless such. definition is specifically incorporated by reference in this Agreement or in another Exhibit.

3.1.2 3.1.3 3.1.7 ' 3.1.32 3.1.33 3.1.35 3.1.42 3.1.54

Map of 26 Bar Ranch . Form of Abstract Map of Aja Ranch .Map of Clear Creek Ranch Map'of Closed. Basins .. ." :';:0" Map of Confmed Aquifer (illd N::Aq\lifer Map of. Drye Ranch' Form ofjudgment and ,decree entered by the Gila River

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Adjudication Court in the Gila River Adjudication 3.1.58 3.1.61
'f

Map of Halt Rwch
!

Map of Hopi Reservation Form ofjudgmellt tmd decree entered by the LCR Adjudication Court in the LCR Adjudication Proceedings Map of Lower LCR Watershed Map of Managed Washes Map of Navajo Reservation Map ofNavajo Winslow Tract State Implementing Legislation Map of Three-Canyon Area Map of Upper LCR Watershed Map of Zone S Abstracts of Off-Reservation Navajo Nation Allotments Navajo Nation Off-Reservation land within the LCR Watershed Navajo Nation Off-Reservation Surface Water Abstract Navajo Nation Off-Reservation Underground Water Abstract Map of Navaj 0 Nation Off-Reservation Land Within the Gila River Watershed Navajo Nation Off-Reservation Surface Water Uses Abstracted in the Gila River Adjudication Hopi Tribe Off-Reservation Surface Water Abstract Hopi Tribe Off-Reservation Underground Water Abstract Additional Hopi Ranch Abstracts Hopi Industrial Park Water Rights Table of All Navajo Nation Designated Historic Irrigation Projects Table of All Hopi Tribe Designated Irrigation Projects Table of All Joint Navajo Nation and Hopi Tribe Historic Irrigation Projects

3.1.76 3.1.84 3.1.87 3.1.104 3.1.106 3.1.130 3.1.134 3.1.141 3.1.149 4.1.7.2

.::;..

4.1.8.lA 4.1.8.lB 4.1.8.1C 4.1.8.3A 4.1.8.3B 4.2.4.1A 4.2.4.1B 4.2.4.1C [RESERVED] 4.2.3 5.1.1.2A 5.1.1.2B 5.1.1.2C

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_\

-

r"-. __

"'"
I

5.1.1.2D 5.1.2.1 5.1.3.3 5.2./.1 5.2.7.2.3 5.2.7.2.4 6.1.2.2A 6.1.2.2B 6.1.2.2C 6.2

,-

Map of Designated Historic Irrigation Projects List ofPeabody Permanent Mining Structures .....,.
.. .

IList of springs on Navajo Land3 and Hopi Lands (Filed
under seal) , Formula for Navajo Nation Non-Exempt Well Pumping in ZoneS Formula for Hopi Tribe Non-Exempt Well Pumping in Zone S Abstract of - - Surface Water Uses Abstract of - - Surface Water Uses Abstract of - - Surface Water Uses Abstracts of Surface Water Uses for Zuni Lands, set forth in Exhibit 4.l.A(I) et seq. to the Zuni Indian Tribe Water Rights Settlement Agreement of 2002, as amended Abstract for Wells Outside the Protection Areas Abstract for Wells Outside the Protection Areas Ahstract for Wells Outside the Protection Areas Abstract of Uses ofUnderground Water from Existing Wells within the Protection Areas Abstract of Uses of Underground Water from Existing Wells within the Protection Areas Abstract of Uses of Underground Water from Existing Wells within the Protection Areas Map of Protection Area A Formula for Pro-Rata apportionment of Underground Water Withdrawals in Protection Area A. Map of Protection Area B Map of Protection Area C Map of Protection Area D Navajo Nation CAP Water Delivery Contract Navajo Nation Colorado River Water Delivery Contract

Tableof Aggregate Capacity ofSurface W3.ter Impoundments 'by Main Wash Drainage

I

7.2.2A 7.2.2B 7.2.2C 7.3.6A 7.3.6B 7.3.6C 7.4 7.4.2 7.5 7.6 7.7 8.2.1 8.2.2

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-------1

9.2.1 92.2.1
j-!

Hppi Tribe CAP Water Delivery Contract Hopi Tribe Colorado River Water Delivery Contract Hopi Tribe Ciboh Water Delivery Contract Map of Westem Navajo Pipeline Project Map ofLeupp-Dilkon Groundwater Project Map of Ganado Groundwater Project Form of waiver and release of claims for Water Rights and waiver and release of claims for Injury to Water Rights and Injury to Water Quality, by the Navajo Nation on behalf of itself and its Members (but not Members in their capacity as Allottees) and by the United States acting in its capacity as trustee for the Navajo Nation and its Members (but not Members in their capacity as Allottees) Form of waiver and release of claims of rights to water from the Lower Colorado River and waiver and release of claims of injury to rights to water from the Lower Colorado River by the Navajo Nation on behalf of itself and its Members (but not Members in their capacity as Allottees) and by the United States acting in its capacity as trustee for the Navajo Nation and its Members (but not Members in their capacity as Allottees) Form of waiver and release of claims for Water Rights and waiver and release of claims for Injury to Water Rights and Injury to Water Quality by the Navajo Nation on behalf of itself and its Members (but not Members in their capacity as Allottees) against the United States Form of waiver and release of claims of rights to water from the Lower Colorado River and waiver and release of claims of injury to rights to water from the Lower Colorado River by the Navajo Nation on behalf of itself and its Members (but not members in their capacity as Allottees) against the United States Form of waiver and release of claims for Water Rights and waiver and release of claims for Injury to Water Rights and Injury to Water Quality, by the Hopi Tribe on behalf of itself and its members (but not Members in their capacity as Allottees) and by the United States acting in its capacity as trustee for the Ho i Tribe and its Membeis (but not Members

r· !

-------+-----

9.2.2.2 12.1.1 12.2.2 12.3.1 14.1.1

14.1.2

14.1.3

14.1.4

14.2.1

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in their capacity as Allone.es) 14.2.2 Form of waiver and release of claims of rights to water from the Lower Colorad01liver arid waiver and release of claims of ipJury to rights to water from the Lower Colorado River by the Hopi Tribe on behalf of itself and its Members (but not Members in their c.apacity as Allottees) arid by the Untied States acting in its capacity as trustee for the Hopi Tribe and its Members (but not Members in their capacity as Allottees) Fo.r1ll of waiver and release of claims for Water Rights and waiver and release of claims for Injury to Water Rights and Injury to Water Quality, by the Hopi Tribe on behalf of itself and its Members (but not Members in their capacity as Allottees) against the United States Form of waiver and release of claims of rights to water from the Lower Colorado River and waiver and release of claims of injury to rights to water from the Lower Colorado River by the Hopi Tribe on behalf of itself and its Members (but not Members in their capacity as Allottees) against the United States . Form of waiver and release of claims for Water Rights and Injuries to Water Rights. by the United States acting in its capacity as trustee for Allottees Form of waiver and release of claims of rights to water from the Lower Colorado River and waiver and release of claims of injury to rights to water from the Lower Colorado River by the United States acting in its as trustee for Allottees Form of waiver and release of claims by the United States against the Navajo Nation and the Hopi Tribe Form of Dismissal of Pending Court Action . Party Contact Information for Future Notices

14.2.3

14.2.4

14.3.1

14.3.2

14.4.1 14.23 15.19 4.0

TRIBAL WATER RIGHTS The Tribes sh,all have the following rights to use Water, CAP Water and Colorado River watetin the following amounts and priorities:· . 4.1 NAVAJO NATION WATER RIGHTS .

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4.1.1

Generally Applicable Provisions. The_ Water Rights, Nation CAP \Vater and Navajo Nation Colorado River Water described in this Subparagraph 4.1 may be used for any purpose, cO_Iisistent wiilithis Agreement and thee LCR Decree. Ali Water Rights for lands held in trust for the Navdjo Nation shall be held in trust by the United States for the benefit of the Navajo Nation or, in the case of Allotiilents, in trust for the Allottees.-rhese Water Rights shaH not be subject to loss through non-use, forfeiture, abandonment or other operation of law. All Navajo Nation CAP Water and Navajo Nation Colorado River Water shall be held in trust by the United States for the benefit of the Navajo Nation. Notwithstanding provisions of Subparagraph 6.5.1 and except as provided in Subparagraph 5.1 the Navajo Nation shall have the right to impound, on or off of Navajo Lands, any Water supply to which it has a right to use, pursuant to applicable laws, so long as such Impoundment does not conflict with then-existing Water Rights. Nothing herein shall create any right of access or easement to impound Water on lands not owned by the Navajo Nation. Lands acquired by the Navajo Nation or by the United States in its capacity as trustee for the Navajo Nation after the Execution Date shall be subject to any limitations imposed by this Agreement, and are entitled to any benefits provided by this Agreement, including Water Rights or Underground Water Allocations appurtenant to or associated with the lands that were held by the grantor or transferor of the lands and included in the transaction. Additional Water Rights for these lands may be obtained thereafter in accordance with State law, if applicable, and this Agreement. Underground Water Allocations associated with lands acquired pursuant to this Subparagraph 4.1.1.4 within Protection Area A shall count against the 50,000 AFY allocation set forth in Subparagraph 7.4. The Navajo Nation shall abstract Water Rights for such lands acquired after the Execution Date and prior to the LCR Enforceability Date, and append such abstracted Water Rights through an amendment to this Agreement in accordance with the provisions of Subparagraph 15.4.

4.1.1.1

4.1.1.2

4.1.1.3

4.1.1.4

4.1.2

Underground Water. The Navajo Nation shall have the right to make use of the Underground Water pumped on the Navajo Reservation, subject to the provisions on the use of the N-Aquifer described in Subparagraph 5.2 and the provisions on the use of Underground Water described in Paragraph 7.0. Effluent. The Navajo Nation shall have the right to Effluent developed on the Navajo Reservation which may be used for such purposes as the Navajo Nation may determine.

4.1.3

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4.1.4

Little Colorado River Tributaries. the Navajo Nation shall have the right to m,*e use of all Surface Wl'lter that remains unappropliated as of the Effective Date that flows within the Navajo' Reservation in water courses north of and tributary to the LittleColora.do River, subject to the provisions of Subparagraph 5.1.
. The Navajo Nation shall have the right to make use of all Surface Water that remains unappropriated as of the Effective Date which reaches the Navajo Reservation in· water courses south or west of and tributary to the Little Colorado River.

.4.1.4.1

"

4.1.5

Mainstem Little Colorado River. The Navajo1'ration shall have the right to Divert and use any Surface .Water frorp.the Little Colorado River that' reaches the Navajo is attributable to changes of use of Reservation unless the Surface rights reflected in' the' LCR Decree wlth respect to which a change of place and/or type of use has been approved and the bed of the stream is being used as a means of conveyance. The physical withdrawal of Water from the alluvium of the Little· Colorado River on the Navajo Reservation by the Navajo Nation shall be considered to be a Diversion of Surface Water, and such withdrawals shall' not be subject to the limitations set forth in Subparagraph 7.7. The Navajo Nation shall have the right to Divert Surface Water from the Little Colorado River inthe quantities andwith the priorities described below:'

4.1.5.1

4.1.5.2

II'!'
.".R·,.

••

".

' "

t"

:.::

'.

"\'

- ; . >

,'"I,';
r"W

..

-"

"l"" :"",

mnlMf,'@ '," t" "..•.>._"!.",,.. ..'." I,·,,"" ,,"'''' ',,"'¥' oW!, j1' f,"":; ,L;
,"J

0

. '.

,Jf"': f',
.<

is wholly containeclwithin a Closed Basin; or'e' is located within the Lower LCR Watershed and the Surface \Vater '," stored-is used primarily for Municipal Uses; or stores Surface Water that became available for storage as a result of a change in place or type of use, or change in point of Diversion, and such change does not harm other Water Right holders; or has no permanent water storage, and is operated solely for flood control purposes.

6.5.1.4 6.5.2

Future Navajo Nation Agreements on Storage of Surface Water. Nothing in this Agreement shall be construed to prevent the Navajo Nation, and the United States acting in its capacity as trustee for the Navajo Nation, its Members and Navajo Nation Allottees, from entering into agreements after the LCR Enforceability Date with other Persons for development of new or additional conservation capacity in existing Reservoirs, in the LCR Watershed; provided that such storage does not conflict with thenexisting Water Rights. Other Types ofImpoundments Unaffected. Impoundments containing Effluent shall not be subject to the restrictions or limitations imposed upon Reservoirs by this Agreement. Effluent Impoundments may be' altered, enlarged, or constructed in accordance with State law or applicable tribal law on trust lands. Existing and new tailwater ponds shall not be subject to regulation under this Agreement so long as they are used to recover operational waste from Irrigation use for reuse for any purpose not otherwise prohibited by this Agreement.

6.5.3

6.5.3.1

6.5.3.2

an

6.5.3.3

Impoundments containing Underground Water shall not be subject to the restrictions or limitations, imposed upon Reservoirs by this Agreement. Impoundments containing Underground Water may be altered, enlarged, or constlilcted in' accordance with State law or applicable tribal law on trust lands:

6.5.4

Existing Reservoirs. Existing Reservoirs may be de-silted, drained, dredged or maintained, including lining to prevent seepage and any appropriate maintenance of or replacement of any dam, weir or headgate, so long as the maintenance or replacement is consistent with the operating criteria, if any, specified in the LCR Decree. Such Reservoirs may be modified or reconstructed provided there is no increase in the storage entitlement.

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6.6

STATE IMPLENJENTING LEGISLATION seek' State Implementing After the ExecutioTl 'Date, the· Parties shlil1 Legislation substantially in the form of Exhibit 3.1.130.

7.0

UNDERGROUND WATER 7.1 EXPANDED DEFINITION OF TRIBES FOR SELECTED SUBPARAGRAPHS For purposes of Subparagraphs 7.2, 7.3.1.4, 7.3.5, 7.3.6 and 7.9, "Tribes" shall mean the Navajo Nation, the Hopi Tribe, and their agents or any third-party a.cting on behalf thereof. This definition does not apply to the United States when acting in its capacity as trustee for the Navajo Nation and the Hopi Tribe. 7.2 ViITHDRAWAL AND USE OF UNDERGROUND WATER BY ANY PERSON OUTSIDE THE PROTECTION AREAS 7.2.1 Withdrawals and Use of Underground Water; Objections. This Paragraph 7.0 does not regulate or restrict any Person from drilling or replacing any OffReservation Well located outside the Protection Areas, or withdrawing or using Underground Water from any Off-Reservation Well located outside the Protection Areas. The Tribes and the United States acting in its capacity as trustee for the Tribes, their Members and the Allottees shall not object to, dispute, or challenge the withdrawal or use of Underground Water from any Off-Reservation Well located outside the Protection Areas, or the drilling or replacement of any Well for the withdrawal and use of Underground Water located outside the Protection Areas, in the LCR Adjudication or in any other judicial or administrative proceeding. Except as provided in Subparagraph 5.2, the Parties shall not object to, dispute, or challenge the withdrawal or use of Underground Water from any Well located on the Navajo Reservation or Hopi Reservation outside the Protection Areas, or the drilling or replacement of any Well for the withdrawal and use of Underground Water on the Navajo Reservation or Hopi Reservation located outside the Protection Areas, in the tCR Adjudication or in any other judicial or administrative proceeding. Abstracted Wells Outside the Protection Areas. Existing and future uses of Underground Water outside of the Protection Areas by specific Persons are described in Abstracts attached as Exhibits 7.2.2A, 7.2.2B; 7.2.2C, etc., respectively. Any Claimant that includes an Abstract as an Exhibit to this Agreement and the Tribes agree to the entry of a decree setting forth Water Rights with the attributes described in said Abstracts. The Tribes and the United States acting in its capacity as trustee for the Tribes, their Members and Allottees, shall not object to, dispute, or challenge, on any basis, in the . LCR Adjudication or in any other judicial or administrative proceeding, any Underground Water use described in said Abstracts.

7.2.2

7.3

WITHDRAWAL AND USE OF UNDERGROUND WATER WITHIN THE PROTECTION AREAS 43

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7.3.1

Cataloging Existing Wells Located Within The Protection Areas; Capacity. ADWR shall compile a catalog that 'identifies all FXlsting Wells within,:, ProtectioJ1. Areas A, Band C, other than on t..l1e Navajo Reservation, Nav?Jo Trust Land and Hopi Trust Lalid. The catalog shall identify Well by Well registration number, location by legal description, and ,as determined through the us,;;, of global positioning system units; owner; casing diameter; the larger of the equipped Well capacity (if equipped) or the casing diameter. well capacity set forth in the chart below; and date of completion (if known). For unequipped Wells, the following capacities shall be assigned: '

4

5 6 8 10 12

14
16 or larger 7.3.1.1

87 136 196 348 544 784 1067 1400

Within eighteen months after the Effective Date, any Person that owns an Existing Well within Protection Areas A, B and G that has not been previously registered in accordance with A.R.S. § 45-593 may register, . or amend the existing registration of its Wells. The catalog of Existing Wells shall be completed within three years after the Effective Date. Once the catalog is completed, ADWR shall submit the catalog to the LCR Adjudication Court, and provide notice to the LCR Adjudication Court approved mailing list, the Parties, all Persons that filed Statements of Claimant for water sources located in the Protection Areas and all Persons who own Existing Wells identified in the catalog, and to otlwrs by publication. The catalog may be supplemented upon application to the LCR Adjudication Court for good cause, to include Existing Wells that were omitted from the catalog. Any Existing Well not included in the catalog approved by the LCR Adjudication Court or described in the Abstracts attached as Exhibits 4.1.8.1C, 4.2.4.lB, 7.3.6A,7.3.6B, 7.3.6C, etc. shall be treated as a New Well. .. Any Person including the Tribes who owns ,an Existing Well within Protection Areas A, Band C may' only object totge C(italog of Existing Wells in the· same PrCitectiori Area' on' the basis that information concerning a Well or Wells in the is inaccurate, or that an Existing Well was omitted from the catalog. The LCR Adjudication Court shallresolve any objections.
44

7.3.1.2

. 7.3.1.3

7.3.1.4

8721243.50

7.3.1.5

The Wells listed in the Existing Wfll catalog approved by the LCR Adjudication Court and thv Wells described in the Abstracts attacheitas Exhibits 4.1.8.1C, 4.2.4.1B, 7.3.6A, 7.3.6B, 7.3.6C. etc. are not subject to the regulations set forth in Subparagraphs 7.3,iA and 7.6.

7.3.2

New Non-Exempt Wells. The Parties to this Agreement other thaII'the Navajo Nation shall not drill any new Non-Exempt Well in the Protection Areas between the Execution Date and the Effective Date. Any new NonExempt Wells drilled by the Navajo Nation on the Navajo Reservation within Protection Area D between the Execution Date and the Date shall count against the Navajo Nation's 60,000 AFY allocation as set forth in Subparagraph 7.6. Any new Non-Exempt WellS drilled by the Navajo Nation within Protection Area A shall count against the Navajo Nation's 60,000 AFY allocation as set forth in Subparagraph 7.6 and be subject to the limits set forth in Subparagraphs 7.4.3.2, 7.4.4.1, or 7.4.4.2, as applicable. Areas Relocation of Existing Wells. Any Existing Well within the may be replaced with a Well limited to the same capacity as the original Existing Well located at a site no farther than 660 feet from the location of the Well to be replaced within the same Protection Area and the same Zone; provided, that the relocation complies with any State law, or Hopi law on lands held in trust by the United States for the benefit of the Hopi Tribe, or Navajo law on the Navajo Reservation in Protection Area D and on lands held in trust by the United States for the benefit of the Navajo Nation. The original Existing Well may be operated in conjunction with the replacement Well as long as the combined Underground Water withdrawal from both Wells does not exceed the pumping capacity of the original Existing Well as of the Effective Date. Regulation of Non-Exempt Wells. ADWR shall regulate, to the extent required by State law and this Agreement, all Off-Reservation Non-Exempt Wells in the Protection Areas, but excluding Non-Exempt Wells located on Off-Reservation Allotments or on lands held in trust for the benefit of the Hopi Tribe or the Navajo Nation. The Navajo Nation shall regulate: (1) all Non-Exempt Wells located on the Navajo Reservation within the Protection Areas; (2) all Non-Exempt Wells located on Off-Reservation Allotments owned by Members of the Navajo Nation; and (3) all Non-Exempt Wells located on land held in trust for the benefit of the Navajo Nation. The Hopi Tribe shall regulate all Non-Exempt Wells on land held in trust for the benefit of the Hopi Tribe. In every instance Non-Exempt Wells in the Protection Areas shall be regulated in a manner that conforms to this Agreement. To the extent not regulated by the Navajo Nation, Off-Reservation Allotments are subject to enforcement of the provisions of this Agreement by the LCR Adjudication Court. Exempt Wells Within the Protection Areas. Exempt Wells within Protection Areas A, B and C, regardless of when they are drilled or equipped, shall not

7.3.3

7.3.4

7.3.5

8721243.50

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be cataloged or regulated pursuant to this Agreement. The Tribes and the United States acting in its capacity as trustee for the Tribes, lb.ei, Mefilbers and Allottees sl),all. not object to, dispute ·or cb':illenge .in the LCR Adjudication or in any otller jlldicial or adminisl.iative proceeding the drilling' or the withdrawal and use of Underground or replacement of Exempt Water from Exempt Wells within Protection Areas A, Band C. 7.3.6 Abstracted Existing Wells Within the Protection Areas. Uses of Underground Water from Existing Wells wit.\in the Protection Areas by specific· Persons are described in Abstracts attached hereto as Exhibits 7.3.6A, 7.3.6B, 7.3.6C, etc., respectively. Any Claimant that includes an Abstract as an Exhibit to this Agreement and the Tribes agree to the entry of a decree setting forth Water Rights with the attributes described in said Abstracts. The Tribes and the United States acting in its capacity as trustee for the Tribes, their Members and Allottees, shall not object to, dispute, or challenge, on any basis other than set forth in this Subparagraph 7.3, in the LCR Adjudication or in any other judicial or administrative proceeding; any Existing Underground Water use described in said Abstracts. The omission of Wells from the Abstracts referenced in this subparagraph 7.3.6 shall not preclude Persons from including such Wells in the catalog referred to in subparagraph 7.3.1.

7.4

PROTECTION AREA A The amount of UiidergroundWater withdrawn from New Wells within Protection Area A shall not exceed 50,000 AFY, except as provided in Subparagraphs 7.4.3 and 7.4.4. Except as provided in Subparagraph 7.8, the following apply: 7.4.1 Protection Area A Zones. The Zones in Protection Area A are subject to the following limitations: Except as provided in Subparagraph 7.4.4, no New Wells may be drilled within Zone A-I. Persons may withdraw no mote than 17,500 AFY from New Wells within Zone A-2. Except as provided in Subparagraph 4.2.1.3, no more than 2,000 AFY of that 17,500AFY total may be withdrawn by the Hopi Tribe within Zone A-2. Persons may withdraw no more than 17,500 AFY from New Wells within ZOJ:?eA-3. Except as provided in Subparagraph 4.2.1.3, no more than 2,000 AFY of that 17,500 AFYtotal may be withdrawn by the Hopi .- Tribe within Zone A-3.

7.4.1.1 7.4.1.2

7.4.1.3

7.4.1.4 'Persons may withdraw no more than 15,000 AFY from New Wells within Zone A-4. Except as provided in Subparagraph 4.2.1.3, no more than 2,000 AFY of that 15,000 AFY total may be withdrawn by the Hopi Tribe within Zone A-4.
8721243.50

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.. --.

-----

_ . .

_---------------. --- --

._-------_._.

__..

7.4.2

Underground Water AllocaTions fot New Wells Within Protection Area A. Withdrawals of Underground Water from New" Wells authorized-'"by Subparagraph 7.4 within Protection Area A, which are liPt otherwise attributed to the Navajo Nation or allocated to the Hopi Tribe;"shall be made to an allocation based on a per acre ownership basis in A-2, A-3, and A-4 as seC forth in Exhibit 7.4.2. The Underground Water Allocations are subject to the following: Underground Water may only be withdrawn from a New Well pursuant to an Underground Water Allocation for the Zone in which the New Well is located. A landowner may withdraw, lease, sever, or otherwise transfer its Underground Water Allocation within the same Zone. This Agreement places no restrictions on the place of use of Underground Water withdrawn from a Non-Exempt Well within Zones A-2, A-3, or A-4. Any Person may aggregate the withdrawal of any Underground Water Allocation it owns, leases, or otherwise acquires within the Zone from which the Underground Water Allocation is derived.

7.4.2.1

7.4.2.2 7.4.2.3

7.4.2.4

7.4.3

Navajo Winslow Tract in Protection Area A. All withdrawals from New Wells by the Navajo Nation from the Navajo Winslow Tract shall be considered as part of the 60,000 AFY referenced in Subparagraph 7.6. Not more than 7,500 AFY may be withdrawn from Zones A-I, A-2, and A-3 on the Navajo Winslow Tract, and of that amount, not more than 500 AFY may be withdrawn from Zone A-3. Underground Water withdrawn from the Navajo Winslow Tract can only be used on the Navajo Winslow Tract or transported to and used on the Navajo Reservation.

7.4.3.1

7.4.3.2

7.4.3.3

7.4.4

Other Withdrawals by the Navajo Nation in Protection Area A. Except as provided in Subparagraphs 4.1.1.4 and 7.4.3, the Navajo Nation may only withdraw from Protection Area A the following:

7.4.4.1

Not more than 500 AFY outside of the boundaries of the Hart Ranch from within Zones A-I, A-2, A-3, and A-4, and use such water either on or off the Navajo Reservation. Withdrawals made pursuant to this Subparagraph 7.4.4.1 shall be considered as part of the 60,000 AFY referenced in Subparagraph 7.6.

8721243.50

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7.4A.2

Not more than 1,000 AFY from within,"Zone A-I outside of the boundaries of the Hart Ranch for use on the Navajo Reservation. . Withdraw'als made Bursuant to this Subparagraph 7.4.4.2 shall 'be cunsidered as part of the 60,000 AFY referenced in E:ubparagraph 7.6.

. _,,7'

7.4.5

Other Provisions Concerning Withdrawals9Y the Hopi Tribe. The Hopi Tribe may drill a New Well within Zone A-2 that is greater than two m.iles south but less than two sections south of the Navajo Reservation, provided thatat least sixty (60) days prior to such drilling the Hopi Tribe provides the Navajo Nation with a survey demonstrating that the location of the proposed New Well is more than two miles south of the Navajo Reservation. The Hopi Tribe shall require a Person who owns or operates a New Well on lands held in trust for the benefit of the Hopi Tribe within Protection Area A to install and maintain a flow meter or similar approved Water measuring device capable of measuring and recording all Diversions of Underground Water by or on behalf of the New Well owner. The Hopi Tribe shall require a Person who owns or operates such New Well to use efforts to maintain the accuracy of the measuring and recording its device. The Hopi Tribe shall require a Person who owns or operates a New Well on lands held in trust for the benefit of the Hopi Tribe within Protection Area A to report to the Hopi Tribe annual volume of Underground ·Water withdrawn and used the preceding Year, said report to be made on a form prescribed by the Hopi Tribe. Any such forms shall be filed no later than March 31 of the Year following the Year for which the report is made. No later than June 30 of the Year in which the report is made, the Hopi Tribe shall compile the annual withdrawals of Underground Water on lands held in trust for the benefit of the Hopi Tribe within Protection Area A and file the same with the LCR Adjudication Court.

7.4S1

7.4.5.2

7.4.5.3

7.4.6

Monitoring and Reporting of New Underground Water Uses Within Protection Area A. A Person who owns or operates a New Well within Protection Area A, except on lands held in trust for the benefit of the .Hopi Tribe, shall install and maintain a flow meter or similar approved Water measuring device capable of measuring and recording .' all. Diversions of Underground Water by or on behalf of the New Well owner. A Person . who owns or operates the New'Well within Protection Area A shall use . its best efforts to maintain the accuracy of the measuring and recording device. .

7.4.6.1

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7.4.6.2,

A who owns or operates a New Area A, except on lands held in irust for. the benefit of Hopi Tribe, shall report tuo'ADWR the ar.nual volume oJ Underground Water withoxa\Vii. and used the preceding Year, said report to be made on a form prescribed by ADWR. Any such forms shall be filed no later than March 31 of ' t.he Year following the Year for which the report is made. No later than June 30 of the Year in which the report is made, ADWR shall compile the annual withdrawals of Underground Water within Protection Area A and file the same with the LCR Adjudica!Jon Court. To the extent necessary to enforce this Paragraph 7.4.6, ADWR may amend its existing regulations or adopt new regulations.

7.4.6.3 7.5

PROTECTION AREA B Except as provided in Subparagraph 7.8 and except on the Navajo Reservation lands within Protection Area B, the following apply: 7.5.1 Zone B-1. No New Wells may be drilled within Zone B-1; provided, however, a Municipal Water Provider with an existing certificate of convenience and necessity in Zone B-1, as of the Effective Date, shall not be subject to the limitations of this Subparagraph 7.4. Zone B-2. No New Wells may be equipped with a pumping capacity exceeding 500 GPM for a single use within Zone B-2. For purposes of this Subparagraph, a series of new Wells serving the same facility shall be considered a single New Well.

7.5.2

7.6

PROTECTION AREA C Except as provided in Subparagraph 7.8 and except on the Navajo Reservation lands within Protection Area C, the following apply: 7.6.1 7.6.2 Zone C-l. No New Wells may be drilled within Zone C- L Zone C-2. No New Wells may be equipped with a pumping capacity exceeding 500 GPM for a single use within Zone C-2.

7.7

PROTECTION AREA D 7.7.1 New Well Pumping Limit. Except as provided in Subparagraph 7.8, the amount of Underground Water withdrawn from New Wells within Protection Area D shall not exceed 60,000 AFY, or a lesser amount as a result of the application of Subparagraphs 7.4.3 and 7.4.4. This limitation does not apply to any Underground Water pumped pursuant to Subparagraph 4.1.5.1. Monitoring and Reporting of New Underground Water Uses Within Protection Area D.

7.7.2

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7.7.2.1

The Navajo Nation shall require aPerson who owns-or operates a New Well within Area D install and maintain a flow meter or similar. approved Water measuring device capable of measuring and recording'call Diversions of Underground Water by or OIl behalf of the New Well owner. The Navajo Nation shall :equire a Person who owns or operates the New Well Within Protection Areap to use its best efforts to .maintai!} the accuracy of the measuring and recording device.

to

a Person who owns or operates a New 7.7.2.2· The Navajo Nation shall Well within Protection Area D to report to. the Navajo Nation Department of Water Resou!"ces the annual volume of. Underground Water withdrawn and used the preceding Year, said report to be made on a form prescribed by the Navajo Nation Department of Water Resources. Any such forms shall be filed no later than March 31 of the Year following the Year for which the report is made. No later than June 30 of the Year in which the report is made, the Navajo Nation shall compile the annual withdrawals of Underground Water within Protection Area D and file the same with the LCR Adjudication Court. 7.8 MINERAL ESTATES Water for the development and operation of mineral estate property within the Protection Areas shall not be subject to the Protection Area allocations or prohibitions, provided that the mineral estate owner commits to refrain from withdrawing Underground Water on that remaining portion of its mineral estate wit1:).in the Protection Area that is not being developed and operated, absent consent by the Navajo Nation. The water use by or on behalf of the mineral estate owner, its affiliates, lessees, licensees, permittees, operators, or co-venturers, or by the successors in interest as mineral estate owner or by assignees of the mineral estate, shall not be transferable to any other purpose of use or place of use. 7.9 OBJECTIONS TO EXEMPT, EXISTING AND NEW WELLS The Parties, including the Tribes and the United States in its capacity as trustee for the Tribes, their Members and Allottees, shall not object to, dispute, or challenge the withdrawal or use of Underground Water from any Exempt, Existing or New Well within the Protection Areas,or the drilling or replacement of any Well for the withdrawal and use of Underground Water located within the Protection Areas, in the LCR Adjudication or in any other judicial or administrative proceeding, provided that the Exempt, Existing or New Well is in compliance with the .provisions of Subparagraphs 7.2, 7.3, 7.4,7:5; 7.6,7.7, and 7.8. 7.10 STATE IMPLEMENTING LEGISLATION After· the Execution Date, the Parties Shall jointly seek State Implementing Legislation substantially in the form of Exhibit 3.1.130.

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8.0

NAVAJO NATION . PROVISIONS 8.1

WATER

DELIVERY

CONTRACT(S)

AND

RELATET?

WATER DELIVERY CONTRACT(S) The Navajo Nation Water Delivery Contract(s) shalh confonn to the provisions of Subparagraphs 8.2 through 8.13 of this Agreement.

8.2

WATER SUPPLIES AVAILABLE FOR DELIVERY The Secretary shall deliver to the Navajo Nation, upon the terms and conditions set forth in the Navajo Nation Water Delivery Contract(s) and in Subparagraph 8.3, the following described water: 8.2.1 Navajo Nation CAP Water. 29,000 AFY of CAP NIA Priority Water that was previously allocated to non-Indian agricultural entities and reallocated by the Secretary to Arizona Indian tribes pursuant to Section 104(a)(1)(A)(iii) of the AWSA shall be further reallocated by the Secretary to the Navajo Nation pursuant to Section _ bfthe Act. Of this 29,000 AFY ofCAP NIA Priority Water, 6,411 AFY shall consist of the CAP NIA Priority Water retained by the Secretary pursuant to Section 104(a)(l)(B)(ii) of the AWSA for use in settling the Navajo Nation's claims to water in the State. The Navajo Nation Water Delivery Contract for the delivery of Navajo Nation CAP Water shall be substantially in the form of Exhibit 8.2.1. Navajo Nation Colorado River Water. 2,000 AFY of Fourth Priority Colorado River Water heretofore held by the Secretary for Indian water rights settlements in the State pursuant to subparagraph 11.3 of the Arizona Water Settlement Agreement. The Navajo Nation Water Delivery Contract for the delivery of Navajo Nation Colorado River Water shall be substantially in the form of Exhibit 8.2.2.

8.2.2

8.3

CONDITIONS OF DELIVERY 8.3.1 San Juan River Water. Up to 7,000 AFY of Navajo Nation CAP Water and up to 2,000 AFY of Navajo Nation Colorado River Water may be delivered through the Navajo-Gallup Water Supply Project. Subject to the physical availability of water from the San Juan River and to the Navajo Nation's rights to use such water, such deliveries shall be effected by the Diversion and use of water from the San Juan River pursuant to Section._ of the Northwestern New Mexico Rural Water Projects Act, as amended. CAP and Colorado River Water. Up to 22,000 AFY of Navajo Nation CAP Water and up to 2,000 AFY of Navajo Nation Colorado River Water, or other water authorized to be delivered through the Western Navajo Pipeline that the Navajo Nation may acquire. Such deliveries shall be effected by the Diversion of water from the Colorado River above Lee Ferry pursuant to of the Act. Section
51

8.3.2

8721243.50

8.3.3

Delivery Limits. Notwithstanding Subparagraphs 8.3.1 and 8.3.2, the Navajo Nation may, at its eiection, schedule the delivery of Navaio Nation CAP Water in amoutits greater or letss than those listed ip'Subparagraphs 'g.3.1 and 8.3.2 in any Year, so long as tOtal deliveries ofNav"jo Nation CAP Wakfdo not exceed 29,000 j\FY and total deliveries of Navajo Colorado River Water do not exceed 2,000 AFY. ' Accounting for the Type of Water Delivered. In accordance with Section of the Act: All deliveries of Navajo Nation CAP Water effected by the Diversion of water from the San Juan River or from the Colorado River above Lee Ferry shall be accounted for as deliveries of CAP Water; and All deliveries of Navajo Nation Colorado River Water effected by the Diversion of water from the San Juan River or from the Colorado River above Lee Ferry shall be accounted for as deliveries of Fourth Priority Colorado River Water.

8.3.4

8.3.4.1

8.3.4.2

8.3.5

Curtailment. Except to the extent firmed as provided in this Agreement, deliv,eries of Navajo Nation' CAP Water and Navajo Nation Colorado River Water shall be subject to ,curtailment as follows: effected by the Diversion of Deliveries of Navajo Nation CAP water ,from the San Juan River or from the Colorado River above Lee Ferry shall be curtailed during shortages of CAP NIA Priority Water to the s,ame extent as other CAP NIA Priority Water supplies. The amount of such curtailment shall be determined as provided in Subparagraph 8.12.1. Deliveries of Navajo Nation Colorado River Water effected by the Diversion of water from the San Juan River or from the Colorado River above Lee Ferry shall be curtailed during shortages of Colorado River water to the same extent as other non-CAP Fourth Priority Colorado River Water supplies. The amount of such curtailment ,shall be determined as provided in Subparagraph· 8. 12.2.

8.3.5.1

8.3.5.2

8.3.6

,Accounting Regardless of the Place of Use or Point of Diversion. In accordance with Section _ of the Act, all Navajo Nation CAP Water and all Navajo Nation Colorado River Water delivered to and consumptively used by the Navajo Nation or its lessees pursuant to this Agreement shall be accounted for (a) as if such use had occurred in the Lower Basin, regardless of the point, of Diversion or place of use and (b) asp'1l1 of the 2.8 million acre-feet of Colorado River water apportioned to the State in Article II(B)(1) of the Decree. Accounting for Upper Basin Diversions as Lower Basin Deliveries. In accordance with Section _ ofthe Act, all Navajo Nation CAP Water and

8.3.7

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all Navajo Nation Colorado River Water Diverted from Juan River for delivery through the Navajo-Gallup Water Suppiy Projest to Navajo communities in the State and. all Navajo Nation CAP Water and all Navajo Natioll Colorado River Water Diverted from the Calorado River above Lee Ferry for delivery tfuough the Western Navajo Pipeline shall be ac.counted for as if such water had been delivered to the Lower Basin at Lee Ferry for purposes of Article III(d) of the Colorado Ri'.'er Compact. 8.4 AUTHORIZATION The Navajo Nation Water Delivery Contract(s) shall be as authorized by Section _ of the Act. Such contract(s) shall be for permanent service, as that term is used in Section 5 of the Boulder Canyon Project Act of 1928, 43 U.S.C. § 617d, and shall be without limit as to term. Neither the Navajo Nation, its Members, nor the United States on its or their behalf shall assert a claim of right to water in or from the Lower Colorado River other than as created by a contract approved by the Secretary pursuant to the Act. 8.5 LEASES AND EXCHANGES Navajo Nation CAP Water and Navajo Nation Colorado River Water. The Navajo Nation may, with the approval of the Secretary, enter into contracts to lease, options to lease, contracts to exchange or options to exchange Navajo Nation CAP Water within Cochise, Coconino, Gila, Graham, Maricopa, Navajo, Pima, Pinal, Santa Cruz and Yavapai counties, Arizona, providing for the temporary delivery to others of any portion of Navajo Nation CAP Water. Any such CAP Water lease shall contain provisions substantially similar to those set forth in Exhibit 8.5. The Navajo Nation may, with the approval of the Secretary, enter into contracts to lease, options to lease, contracts to exchange or options to exchange Navajo Nation Colorado River Water within Cochise, Coconino, La Paz, Maricopa, Mohave, Navajo, Pima, Pinal, Santa Cruz, Yavapai, and Yuma counties, Arizona, providing for the temporary delivery to others of any portion of Navajo Nation Colorado River Water. CAWCD's approval shall also be required for any contracts to lease, options to lease, contracts to exchange or options to exchange Navajo Nation Colorado River Water that provide for or anticipate the delivery of Navajo Nation Colorado River Water through the CAP System. Contracts to lease and options to lease shall be for a term not to exceed one hundred years. Contracts to exchange or options to exchange shall be for the term provided for in each such contract or option. The Navajo Nation may, with the approval of the Secretary, renegotiate any lease, at any time during the term of that lease provided the term of such renegotiated lease does not exceed one hundred years. No Navajo Nation CAP Water or Navajo Nation Colorado River Water may be permanently alienated. The firming obligations set forth in Subparagraphs 8.12.3.1, 8.12.3.2 and 8:12.4 shall not apply to any Navajo Nation CAP Water or any Navajo Nation Colorado River Water leased by the Navajo Nation to others. 8.6 NO USE OUTSIDE THE STATE

.:

...

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No Navajo Nation CAP Water or Navajo Nation Colorado River Water may be· used, leased, exchanged, forborne, or otherwise hansferred in a.I1Y way by the Nothing in this Navajo Nation for use directiy or indirectly outside of Agreement limits the right vf the Navajo Nation to enter into any agreement with the Arizona Water Banking A.uthority, or any successor agency ::;r entity, in accorclance with State law. 8.7 ENTITLEMENT TO LEASE AND EXCHANGE MONIES The Navajo Nation, and not the United States in any capacity, shall be entitled to all consideration due to the Navajo Nation under any leases, options to lease, exchanges or options to exchange Navajo Nation CAP Water or Navajo Nation Colorado River Water entered into by the Navajo Nation. The United States in any capacity shall have no trust obligation or other obligation to "monitor, administer or account for, in any manner, any funds received by the Navajo Nation as consideration under any such contracts entered into by the Navajo Nation to lease, option to lease, exchange or option to exchange Navajo Nation CAP Water or Navajo Nation Colorado River Water, except where the Navajo Nation deposits the proceeds of any such lease, option to lease, exchange or option to exchange into an account or accounts held in trust for the Navajo Nation by the United States.
.

.

8.8

USE OF NAVAJO POWER AND PAYMENT. OF CAP WATER DELIVERY CHARGES ASSOCIATED WITH THE DELIVERY OF NAVAJO NATION CAP WATER 8.8.1 Use of Navajo Power to Deliver CAP Water Through the Western Navajo Pipeline. As long as tIle NavajoOenerating Station continues to operate and the CAl? share of the output thereof is no less than 3.25 million megawatt hours per Year, Navajo Power may be used to deliver Navajo Nation CAP Water through the ·Western Navajo Pipeline to the same extent that such power would have been used to deliver an equal amount of CAP Water through the CAP System. The Navajo Nation,. or the United States on the Navajo Nation's behalf, shall provide for the transmission of Navajo Power to points of use on the Western Navajo Pipeline. For purposes of this Subparagraph 8.8, as long as the Navajo Generating Station continues to operate and the CAP share of the output thereof is no less than 3.25 million megawatt hours per Year, the amount of Navajo Power that would have been used to pump CAP Water through the CAP System, shall be deemed to be 1.65 megawatt hours per acre-foot of water delivered. If the amount of power llvailable from the CAP share of the Navajo Generating Station is less than 3.25 million megawatt hours in any Year, the amount of such power that may be used to deliver .Navajo Nation CAP Water through the Western Navajo Pipeline in such Veal-shall be reduced by the same proportion as is the amount of Navajo Power available for the delivery of CAP Water under other long term contracts for CAP Water.

8.8.1.1

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8.8.1.2

For purposes of determining the amount of Navajo Power avaiIable for the pw:nping of Navajo Nation CAP-Water through the- WE-stem Pipeline, the amourit QfNavajo Nation CAP Water delivered through the Navajo-Gallup Water Supply Project pursu<>nt to Subparagraph 8.3.1 from sources other thnn Navajo Power shall bemultipiiedt using as is by 1.65 megawatt hours per acre-foot (or such determined inaccotdance with Subparagraph 8.8.1.1) and the product thus obta.ined shall be added to the amount of Navajo Power otherwise available to deliver Navajo Nation CAP V/ater through the Western Navajo Pipeline pursuant to Subparagraph 8.3.2. For example, if the CAP share of the output of the Navajo Generating Station is not less than 3.25 million megawatt hours and the Navajo Nation schedules delivery of 10,000 acre-feet 'of Navajo Nation CAP Water through the Western Navajo Pipeline and 6,411 acre-feet of Navajo Nation CAP Water through the Navajo-Gallup Water Supply Project (using energy from the Colorado River Storage Project), the Navajo Nation may use 27,085.15 megawatt hours of Navajo Power to deliver Navajo Nation CAP Water through the Western Navajo Pipeline (16,411 acre-feet multiplied by 1.65 megawatt hours per acre-foot). The charges for use of. such Navajo Power shall be as described in Subparagraph 8.8.3.

8.8.1.3 8.8.2

Acquisition of Additional Energy. Any additional amounts of energy needed to deliver water to the Navajo Nation shall be acquired by the Navajo Nation or by the United States on the Navajo Nation's' behalf. CAP Pumping Energy Charges. The Navajo Nation, or the United States on the Navajo Nation's behalf, shall pay the CAP Operating Agency all CAP Pumping Energy Charges associated with the delivery of Navajo Nation CAP Water, except for Navajo Nation CAP Water leased to others. CAP Pumping Energy Charges associated with the delivery of Navajo' Nation CAP Water leased to others shall be paid as provided in Subparagraph 8.8.5. CAP Fixed OM&R Charges. The CAP Operating Agency shall be paid the CAP Fixed OM&R Charges associated with the delivery of all Navajo Nation CAP Water. Except as provided in Subparagraph 8.8.5, the Secretary shall, pursuant to 43 U.S.C. § 1543(f)(2)(A), as amended, pay all CAP Fixed OM&R Charges associated with the delivery of Navajo Nation CAP Water to the Navajo Nation as long as monies therefor are available in the Lower Colorado River Basin Development Fund, and thereafter, such charges shall be paid by the Navajo Nation or by the United States on the Navajo Nation's behalf. Lessee Responsibility for Charges. Any lease or option to lease providing for the temporary delivery to others of any Navajo Nation CAP Water shall require the lessee to pay the CAP Operating Agency all CAP Fixed OM&R

8.8.3

8.8.4

8.8.5

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.

Charges and all CAP Pumping Energy Charges associated with the delivery of the leased water. Neither the Navajo Nation nor the United States in ailY capacity shaH be responsible fuf the payment of any charges associated with of Navaj 0 Nation CAP Water leaseu to others. ':.,8.8.6 Advance Payment. No Navajo Na:tion CAP Water shall be d'eEnred unless OM&R Charges and the CAP Pumping Energy have the CAP been paid-hi"advance. The charges for delivery of Navajo Nation CAP Water Contract(s) shall be calculated pursuant to the Navajo Nation Water in accordance with the CAP.Repayment Stipulation.

8.9

SCHEDULING WATER DELIVERY The Nation shall schedule delivery of Navajo Nation CAP Water and Navajo Nation Colorado River Water in accordance with the Navajo Nation Water Delivery Contract(s).

8.10

CAP REPAYMENT For purposes of determining the allocation and repayment of costs of any stages of the CAP constructed after November 21, 2007, the costs associated with the delivery of Navajo Nation CAP Water, whether such water is delivered for use by the Navajo Nation or in accordance with any lease, option to lease, exchange or option to exchange providing for the delivery to others of Navajo Nation CAP Water, shall be non-reimbursable and shall be excluded from the repayment obligation of CAWCD.

8.11

NON-REIMBURSABLE CAP CONSTRUCTioN COSTS The costs associated with the construction of the CAP allocable to the Navajo Nation shall be non-reimbursable, and the Navajo Nation shall have no repayment obligation for such costs. No CAP water service capital charges shall be due or payable for Navajo Nation CAP Water, whether such wateris delivered for use by the Navajo Nation or is delivered under any lease, option to lease, exchange or option to exchange Navajo Nation CAP Water entered into by the Navajo Nation.

8.12

SHORTAGES AND FIRMING OF NAVAJO NATION CAP WATER AND NAVAJO NATION COLORADO RIVER WATER 8.12.1 Shortages of Navajo Nation CAP Water.. If, in any Year, the Available CAP Supply, is insufficient to, meet all demands under CAP Contracts for the delivery of CAP NIA' Priority' Water, then the Secretary and the CAP .Operating ,Agency shall pro-rate. the available CAP: NIA Priority Water among the CAP Contractors holding contractual entitlements to CAP NIA Priority Water on the basis of the quantity of CAP NIA Priority water used by each such CAP Contractor in the Jast Year in which the Available CAP Supply was sufficient to fill all orders for CAP NIA Priority Water. For purposes of implementing this provision, the quantity ,of CAP NIA Priority
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Water used by the Gila River Indian Community and the Tohono O'odhamNation in the last year in whiCh the Available CAP Supply was sufficient to -' fill all orders f0r CAP NIA Priority Water, shall be uetennilled in a consistent with the settlement agreements with those tribes, 8.12.2 of Navajo Nation Colorado River Water: If, in any Year, available .- Lower Colorado River watl:ic"is insufficient to meet all demands under comracts for Fourth Priority Colorado River Water, the quantity of Navajo Nation Colorado River Water available for delivery to the Navajo Nation shall be determined on the same basis as is the water supply available to other non-CAP holders of entitlements to Fourth Priority Colorado River Water. Finning of Navajo Nation CAP Water. In accordance with Section 105(b)(l)(B) of the AWSA, the United States shall firm four thousand two hundred fifty (4,250) AFY of the CAP NIA Priority Water allocated to the Navajo Nation pursuant to Section _ _ of the Act, for the benefit of the Navajo Nation, to the equivalent of CAP M&I Priority Water for the period of one hundred (l00) Years after January 1,2008. In addition, in accordance with Section 105(b)(2)(B) of the AWSA, the State shall firm four thousand two hundred fifty (4,250) AFY of CAP NIA Priority Water allocated to the Navajo Nation pursuant to Section __ of the Act, for the benefit of the Navajo Nation, to the equivalent of CAP M&I Priority Water for the period of one hundred (100) Years after January 1,2008. In addition to the firming provided for in Subparagraph 8.12.3, the State shall firm two thousand five hundred (2,500) AFY of CAP NIA Priority Water allocated to the Navajo Nation pursuant to Section __ of the Act, for the benefit of the Navajo Nation, to the equivalent of CAP M&I Priority Water for the period of one hundred (100) Years after January 1, 2008.

o

8.12.3

8.12.3.1

8.12.3.2 Except as provided in Subparagraph 8.12.5, for one hundred years following the Lower Colorado River Enforceability Date, in each Year in which the Available CAP Supply firmed pursuant to Subparagraphs 8.12.3 and 8.12.3.1 are insufficient to fully meet the demands of the Navajo Nation for up to 11,000 acre-feet of Navajo Nation CAP Water, the State shall make available to the Navajo Nation sufficient water to meet the demands of the Navajo Nation for up to 11,000 acre-feet of water. The Navajo Nation, or the United States on the Navajo Nation's behalf, shall pay the CAP Operating Agency all CAP Pumping Energy Charges and all CAP Fixed OM&R Charges associated with the delivery of such water consistent with Subparagraphs 8.8.3 and 8.8.4. 8.12.4 Firming of Navajo Nation Colorado River Water. Except as provided in Subparagraph 8.12.5, for one hundred (l00) Years following the Lower Colorado River Enforceability Date, in each Year in which the available Fourth Priority Colorado River Water supply is insufficient to meet the

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demands of the Navajo Nation for Navajo Nation Colorado River Water, the State shall make available to the Navajo Nation an amount of water equal to the difference between the amount of Navajo Nation Coloradc River .scheduled Kor delivery: by the Navajo I'!ation in such Year the amount of Fourth Pfiority Colorado' River ·Water available for delivery to the Navajo ',:':Nation in such Year. For one hundred (100) Years following the 'Lower Colorado Rlver!,:t§otceabilityDate, the Navajo Nation shall have no obligation to reimburse the State for the cost of replacing the water under this Paragraph fer one hundred (lOU) Years after the Lower Colorado River Enforceability Date. . 8.12.5 In any Year in which the Secretary declares a shortage on the Lower Colorado River such that no Fourth Priority Colorado River Water is available for delivery in the State, the State shall have no obligation to make water available to the Navajo Nation under Subparagraphs 8.12.3.2 or 8.12.4 . above.

8.13

AGREEMENT WITH THE ARIZONA WATER BANKING AUTHORITY The Navajo Nation may, at its own expense, take additional actions to firm or supplement Navajo Nation CAP Water or Navajo Nation Colorado River Water, such as by entering into agreements for that purpose with the Arizona Water Banking Authority, or its successor agency or entity in accordance with State law.

8.14

WATER USE ON NAVAlO LANDS Except as provided in Subparagraph 8.S, Navajo Nation CAP .Water and Navajo Nation Colorado River Water may only be used on the Navajo Reservation, lands held in trust by the United States for the benefit of the Navajo Nation, or lands owned by the Navajo .Nation in fee that are located within the State, including .Upper Basin lands within the State, unless delivered through the CAP System under agreements with CAWCD therefor.

9.0

HOPI TRIBE . PROVISIONS 9.1

CAP

WATER DELIVERY

CONTRACT(S) AND

RELATED

WATER DELIVERY CONTRACT(S) The Hopi Tribe Water Delivery Contract(s) shall conform to the provisions of Subparagraphs 9.2 through 9.14 of this Agreement.

9.2

WATER SUPPLIES AVAILABLE FOR DELIVERY The Secretary shall deliver to the Hopi Tribe, upon the terms and conditions set forth in the Hopi Tribe Water Delivery.Contra¢t(s), and in Subparagraph 9.3, the following described water: . .

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9.2.1

Hopi Tribe CAP Water. 1,000. AFY of CAP NIA Priority Water that was previously allocated to non-Indian agricultural entities and reallocated by the Secretary to Arizona Indian tribes pursuant to Section IG4(a)(l)(A)(iii) of the AWSA shall be further reallocated by the Secretary to the Fopi Tribe. pursuant to Section 6(b) of the Act. The Hopi i'ribe Water Delivery Contract for the delivery Q,t.Hopi Tribe CAP Water shall be substantially in the form of Exhibit 9.2:1:' Hopi Tribe Colorado River Water and Hopi Tribe Cibola Water. 1,500 AFY of Fourth Priority Colorado River Water heretofore held by the Secretary for Indian water rights settlements in Arizona pursuant to Subparagraph 11.3 of the Arizona Water Settlement Agreement. The Hopi Tribe Water Delivery Contract for the delivery of Hopi Tribe Colorado River Water shall be substantially in the form of Exhibit 9.2.2.1. The volume of Fourth Priority Colorado River Water deliverable pursuant to Contract No. 04-XX-30-W0432 between the United States and the Hopi Tribe. The Hopi Tribe Water Delivery Contract for the delivery of Hopi Tribe Cibola Water shall be substantially in the form of Exhibit 9.2.2.2.

9.2.2

9.2.2.1

9.2.2.2

9.3

CONDITIONS OF DELIVERY 9.3.1 Western Navajo Pipeline Deliveries. Up to 1,000 AFY of Hopi Tribe CAP Water, up to 1,500 AFY of Hopi Tribe Colorado River Water, and up to the volume of Fourth Priority Colorado River Water deliverable pursuant to Contract No. 04-XX-30-W0432 between the United States and the Hopi Tribe, or other water authorized to be delivered through the Western Navajo Pipeline that the Hopi Tribe may acquire, may be delivered through the Western Navajo Pipeline authorized, constructed and operated [pursuant to Section _ of the Act. Such deliveries shall be effected by the Diversion of water from the Colorado River above Lee Ferry pursuant to Section _ of the Act. Curtailment of Hopi Tribe CAP Water Diverted Above Lee Ferry. Deliveries of Hopi Tribe CAP Water effected by the Diversion of water from the Colorado River above Lee Ferry shall be curtailed during shortages of CAP NIA Priority Water to the same extent as other CAP NIA Priority Water supplies. The amount of such curtailment shall be determined as provided in Subparagraph 9.12.1. Curtailment of Hopi Tribe Colorado River and Cibola Water Diverted Above Lee Ferry. Deliveries of Hopi Tribe Colorado River Water and Hopi Tribe Cibola Water effected by the Diversion of Water from the Colorado River above Lee Ferry shall be curtailed during shortages of Colorado River water

9.3.2

9.3.3

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to the same extent as other non-,CAPFourth Priority Colorado River Water "supplie1? The amount of such curtailment shaH be determined as provided in .12.2. 9.3.4 of the Act: 9.3.4.1 All deliveries of Hopi Tribe CAP Water effected bytfie Diversion of , Water from the Colorado River above Lee Ferry shall -be accounted for as deliveries of CAP Water; and All deliveries of Hopi Tribe Colorado River Water and Hopi Tribe Cibola Water effected by the Diversion of water from the, Colorado River above Lee Ferry shall be accounted for as deliveries of Fourth Priority Colorado River Water. for the Type of Water Delivered. In accordance with Section

9.3.4.2

9.3.5

Accounting Regardless of the Place of Use or Point of Diversion. In accordance with Section _ of the Act, all Hopi Tribe CAP Water, all Hopi Tribe Colorado River Water, and all Hopi Trib'e Cibola Water delivered to and consumptively used by the Hopi Tribe or its lessees pursuant to this Agreement shall be accounted for (a) as 'if such use had occurred in the Lower Basin, regardless of the point of Diversion or place of use and (b) as part of the 2.8 million acre-feet of Colorado River water apportioned to the State of Arizona in Article II(B)(1) of the Decree. Accounting for Upper Basin Diversions as Lower Basin Deliveries. In accordance ,with Section _ 'of the Act, all Hopi Tribe CAP Water, all Hopi Tribe Colorado River Water, and all Hopi Tribe Cibola Water Diverted from the Colorado River above Lee Ferry for delivery through the Western Navajo Pipeline shall be accounted for as if such water had been delivered to the Lower Basin at Lee Ferry for purposes of Article III(d) of the Colorado River Compact.

9.3.6

9.4

AUTHORIZATION The Hopi Tribe Water Delivery Contract(s) shall be as authorized by Section _ of the Act. Such Contract(s) shall be for permanent service, as that term is used in Section 5 of the Boulder Canyon Project Act of 1928, 43 U.S:C. § 617d, and shall be without limit as to term. Neither the Hopi its Members, nor the United States on its or their behalf shall assert a claim of right to water in or from the 'Lower Colorado'River other than as created by contract approved by the Secretary pursuant to the Act or pursuant to Section 5 of the Boulder Canyon Project Act of 1928,43 U.S.C. § 617d.

a

,9.5

LEASES AND EXCHANGES Hopi Tribe CAP Water, Hopi Tribe Colorado River Water, and Hopi Tribe Cibola Water. 'The Hopi Tribe may, with the approval of the Secretary, enter into

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contracts to lease, options to lease, contracts to exchange or options to exchange 'Hopi Tribe CAP Water within Cochise; Cocopino, Gila, Graham, Maricopa, Navajo, Pima, Pinal, SantaCfuz and Yavapai counties, Arizona,.prGviding for me temporary deliver)' to others of any portion of Hopi Tribe CAP Water. Any such CAP Water lease shall contain provisions substantially similar to those set fort1:l in Exhibif"8.5. The Hopi Tribe .W,ay, with the approval of the Secretary enter into contracts to lease, options to' lease, contracts to exchange (jf options to exchange Hopi Tribe Colorado River \Vater or Hopi Tribe Cibob. Water within Cochise, Coconino, La Paz, Maricopa, Mohave, Navajo, Pima, Pinal, Santa Cruz, Yavapai, and Yuma counties, Arizona, providing for the temporary delivery to others of any portion of Hopi Tribe Colorado River Water or the Hopi Tribe Cibola Water. CAWCD' s approval shall also be required for any contracts to lease, options to lease, contracts to exchange or options to exchange Hopi Tribe Colorado River Water or Hopi Tribe Cibola Water that provide for or anticipate the delivery of Hopi Tribe Colorado River Water or Hopi Tribe Cibola Water through the CAP System. Contracts to lease and options to lease shall be for a term not to exceed one hundred years. Contracts to exchange or options to exchange shall be for the term provided for in each such contract or option. The Hopi Tribe may, with the approval of the Secretary, renegotiate any lease, at any time during the term of that lease provided the term of such renegotiated lease does not exceed one hundred years. No Hopi Tribe CAP Water, Hopi Tribe Colorado River Water or Hopi Tribe Cibola Water may be permanently alienated. The firming obligations set forth in Subparagraph 9.12.3 shall not apply to any Hopi Tribe Colorado River Water leased by the Hopi Tribe to others. 9.6 NO USE OUTSIDE THE STATE No Hopi Tribe CAP Water, Hopi Tribe Colorado River Water or Hopi Tribe Cibola Water may be used, leased, exchanged, forborne, or otherwise transferred in any way by the Hopi Tribe for use directly or indirectly outside of the State. Nothing in this Agreement limits the right of the Hopi Tribe to enter into any agreement with the Arizona Water Banking Authority, or any successor agency or entity, in accordance with State law. 9.7 ENTITLEMENT TO LEASE AND EXCHANGE MONIES The Hopi Tribe, and not the United States in any capacity, shall be entitled to all consideration due to the Hopi Tribe under any leases, options to lease, exchanges or options to exchange Hopi Tribe CAP Water, Hopi Tribe Colorado River Water or Hopi Tribe Cibola Water entered into by the Hopi Tribe. The United States in any capacity shall have no trust obligation or other obligation to monitor, administer or account for, in any manner, any funds received by the Hopi Tribe as consideration under any such contracts entered into by the Hopi Tribe to lease, option to lease, exchange or option to exchange Hopi Tribe CAP Water, Hopi Tribe Colorado River Water or Hopi Tribe Cibola Water, except where the Hopi Tribe deposits the proceeds of any such lease, option to lease, exchange or option to exchange into an account or accounts held in trust for the Hopi Tribe by the United States.

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'-i'

9.8
_h_.'

USE OF NAVAJO POWER AND PAYMENT OF CAP WATER DELIVERY CHARGES ASSOCIATED WITH THE DELIVERY OF gOPI TRIBE CAP WATER Power to Deliver CAP Water Through the Western Navajo Use of Pipeline. As long as Navajo Generating Station to operate and 3.25 million megawatt the CAP share of the output thereof is no deliver Hopi Tribe CAP \Vater . hours per Year, Navajo Power may be through the Western Navajo Pipeline to the sarne extent that such power would have been used to deliver an equal amount of CAP Water through the CAP System. The Hopi Tribe, or the United States on the Hopi Tribe's behalf, shall provide for the transmission of Navajo Power to of use on the Western Navajo Pipeline. For purposes of this Subparagraph 9.8, as long as the Navajo Generating Station continues to operate and the CAP share of the output thereof is no less than 3.25 million megawatt hours per Year, the amount of Navajo Power that would have been used to pump CAP Water through the CAP System shall be deemed to be 1.65 megawatt hours power acre-foot of water delivered. If the amount of power available from the CAP share of the Navajo Generating Station is less than 3.25 million megawatt hours in any Year, the amount of such power that may be used to deliver Hopi Tribe CAP Water through the Western Navajo Pipeline in such Year shall be reduced in the same proportion as· is· the amount of Navajo Power available for the delivery of CAP Water under other long term contracts for CAP Water. The charges for use of such Navajo Power shall be as described in Subparagraph 9.8.3.

9.8.1

9.8.1.1

9.8.1.2 9.8.2

Acquisitions of Additional Energy. Any additional amounts of energy needed to deliver water to the Hopi Tribe shall be acquired by the Hopi Tribe . or by the United States on the Hopi Tribe's behalf. CAP Pumping Energy Charges. The Hopi Trihe, or the United States on the Hopi Tribe'sbehalf, shall pay the CAP Operating Agency all CAP Pumping Energy Charges associated with the delivery of Hopi Tribe CAP WCl.ter, except fot Hopi Tribe cAp Water leased to others.. CAP Pumping Energy Charges associated with. the delivery of Hopi Tribe CAP. Water leased to others paid as Pfovide.diIl 9.8.5. CAP Fixed OM&R Charges. The CAP Operating Agency shall be paid the CAP Fixed QM&R Charges associated'with the ·delivery all Hopi Tribe CAP in Subparagtaph" 9.8.5, the Secretary shall, Water. Except as pursuMtto 43' all CAP Fixed OM&R Charges associated with the delivery of Hop! Tribe CAP Water to the Hopi Tribe as long as monies therefore are available in the Lower Colorado

9.8.3

9.8.4

as

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River Basin Development Fund, and thereafter, such charges shall be paid by tffl3'Hopi Tribe or by the United States on the Hopi Tribe's behalf. Lessee Responsibilitvfor Charges. Any lease OJ:" option to lease providing for temporary delivery to others of any Hopi Tribe CAP Water sh8U require the lesseutc pay the CAP Operating Agency all CAP Fixed OM&R Charges delivery of the and Cill CAP .Pumping.Energy Charges associated with leased water. Neither the hupi Tribe nor the United States in any capacity shall be responsible for the payment of any charges associated with the delivery of Hopi Tribe CAP Water leased to others.
9.8.6

AdvancePayment. No Hopi Tribe CAP Water shall be delivered unless the CAP Fixed OM&R Charges and the CAP Pumping Energy Charges have been paid in advance. The charges for delivery of Hopi Tribe CAP Water pursuant to the Hopi Tribe Water Delivery Contract(s) shall be calculated in accordance with the CAP Repayment Stipulation.

9.9

SCHEDULING WATER DELIVERY The Hopi Tribe shall schedule delivery of Hopi Tribe CAP Water, Hopi Tribe Colorado River Water, and Hopi Tribe Cibola Water in accordance with the Hopi Tribe Water Delivery Contract(s).

9.10

CAP REPAYMENT For purposes of determining the allocation and repayment of costs of any stages of the CAP constructed after November 21, 2007, the costs associated with the delivery of Hopi Tribe CAP Water, whether such water is delivered for use by the Hopi Tribe or in accordance with any assignment, lease, option to lease, exchange, or option to lease or option to exchange providing for the delivery to others of Hopi Tribe· CAP Water, shall be non-reimbursable and shall be excluded from the repayment obligation of CAWCD.

9.11

NON-REIMBURSABLE CAP CONSTRUCTION COSTS Pursuant to Section _ of the Act, the costs associated with the construction of the CAP allocable to the Hopi Tribe shall be non-reimbursable, and the Hopi Tribe shall have no repayment obligation for such costs. No CAP water service capital charges shall be due or payable for Hopi Tribe CAP Water, whether such water is delivered for use by the Hopi Tribe or is delivered under any lease, option to lease, exchange or option to exchange Hopi Tribe CAP Water entered into by the Hopi Tribe.

9.12

SHORTAGES OF HOPI TRIBE CAP WATER, HOPI TRIBE COLORADO RIVER AND HOPI TRIBE CIBOLA WATER; FIRMING OF HOPI TRIBE COLORADO RIVER WATER

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9.. 12.1

..",.'

Shortages of Hopi Tribe CAP Water. If, in any Year, the Available CAP Supply IS insufficient to meetthe demands under all CAP Contracts for the delivery of CAP .NIA Priority Water, then the Secretary and the CAP Operating Agency shall pro-rate the available, CAPNIA Piiority Water ..,.• among the CAP cqntractors holding contractual entitlements to CAP NIA,. Priority Water on the basis of'Jhe quantity of CA.P NIA Priority Water used theAvailable Ci\P by each such CAP Contractor in the last Year in Supply was sufficient to fill all orders for CAP NIA Priority Water. For purposes of implementing this provision, the quantity of CAP NIA Priority Water used by the Gila River Indian Community and the Tohono Q'odham Nation in the last Year in which the Available CAP Supply was sufficient to fill all orders for CAP NIA Priority Water, shall be determined in consistent with the settlement agreements with those tribes.. Shortages of Hopi Tribe Colorado River Water and Hopi Tribe Cibola Water: If, in any Year, available Lower Colorado River water is insufficient to meet all demands under contracts for Fourth Priority Colorado River Water, the quantity of Hopi Tribe Colorado River Water and Hopi Tribe Cibola Water available for delivery to the Hopi Tribe shall be determined on the same basis as is the water supply available to other non-CAP holders of entitlements to Fourth Priority Colorado River Water. Firming of Hopi Tribe Colorado River Water: Except as provided in Subparagraph 9.12.4, for one hundred (100) years following the Lower Colorado River Enforceability Date, in each Year in which the available Fourth Priority Colorado River Water supply is insufficient to fully meet the demands of the Hopi Tribe for Hopi Tribe Colorado River Water, the State shall make available to the Hopi Tribe an amount df water equal to the difference between the amount of Hopi Tribe Colorado River Water scheduled for delivery by the Hopi Tribe in such Year and the amount of Fourth Priority Colorado River Water available for delivery to the Hopi Tribe in such Year. For one hundred (100) Years following the Lower Colorado River Enforceability Date, the Hopi Tribe shall reimburse the State for the cost of replacing fifty-five percent of the water' provided under this Paragraph. Shortage. In any Year in which the Secretary declares a shortage on the Lower Colorado River such that no Fourth Priority Colorado River Water is available for delivery in the State, the State shall have no obligation to make water available to the Hopi Tribe under subparagraph 9.12.3 above.

9.12.2

9.12.3

9.12.4

9.13

AGREEMENT WITH THE ARIZONA WATER BANKING AUTHORITY The Hopi Tribe may, 'at its own expense or at the United States' expense, take 'additional actions to finn or supplement Hopi Tribe CAP Water,' Hopi Tribe Colorado River Water or Hopi Tribe Cibola" Water, such, as by entering into

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2greements for that purpose with the Arizona Water Banking Authority, or its successor agencyor enNy, in accordance with State law. 9.14 USE ON HOPI LANDS Except as provided 9.5, Hopi Tribe CAP Water, Hopi Tribe Hopi Colorado River Water and Hopi Tribe Cibola \\Tater may only be used on Reservation, lands held intrust by the Ullited States for the benefit of the Hopi Tribe, or lands owned by the Hopi Tribe in fee that are located within the State, unless delivered through the CAP System under· agreements with CAWCD therefor. 10.0 CAP AND COLORADO RIVER WATER DELIVERY CONTRACT(S) AND RELATED PROVISIONS FOR NON-INDIAN PARTICIPANT(S) 10.1 WATER DELIVERY CONTRACT(S) The water delivery contract(s) for any Non-Indian Participant(s) shall conform to the provisions of Subparagraphs to.2 through 10.6 of this Agreement and shall be consistent with other contracts for the delivery of CAP Water and Colorado River water and the water delivery contract(s) attached hereto as Exhibits 8.2.1, 8.2.2, 9.2.1, and 9.2.2.1. . 10.2 WATER SUPPLIES AVAILABLE FOR DELIVERY The Secretary shall deliver to the Non-Indian Participant(s), upon the terms and conditions set forth in the water delivery contract(s) for Non-Indian Participant(s) the following described water: 10.2.1 Non-Indian Participant(s) CAP Water. The volume of CAP Water of the appropriate priority pursuant to a subcontract with the Secretary and CAWCD. Non-Indian Participant(s) Colorado River Water. The volume of Colorado River water, of appropriate priority, set forth in a contract with the Secretary made pursuant to the Act or pursuant to Section 5 of the Boulder Canyon Project Act of 1928,43 U.S.C. § 617d. Participation in the Western Navajo Pipeline. Non-Indian Participant(s) shall be limited by their entitlement to capacity as set forth in contracts for participation in the construction of the Western Navajo Pipeline authorized, constructed and operated pursuant to Section _ of the Act. Such deliveries shall be effected by the Diversion of water from the Colorado River above Lee Ferry pursuant to Section of the Act. Use of Navajo Power to Deliver CAP Water Through the Western Navajo Pipeline. Navajo Power may be used to deliver CAP Water through the Western Navajo Pipeline to any Non-Indian Participant(s) to the same extent

10.2.2

10.2.3

10.2.4

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that s.uch power would have been used to deliver an equal amount of CAP Water thibugh the CAP System. The ]\fon-Indian Participant(s) shall provide for the to points of use on the Western Navajo Pipeline. For purposes of this Subparagraph 10.2.-4, as long as the Navajo Generating Station to operate and the CAP share of the output hours per Year, the amount of thereof is no less than 3.25 million Navajo Power that wouid have bec!lused to pump CAP W1!.el" through the CAP System shall be deemed to beL65megawatt hours per acre-foot of water delivered. If the amount of power available form the CAP share of the Navajo Generating Station is less than 3.25 million megawatt hours in any Year, the amount of such power that may be used to deliver CAP Water through the Western Navajo Pipeline in such Year shall be reduced in the same proportion as is the amount of Navajo Power available for the delivery of CAP Water under other long term contracts for CAP Water. The charges for sue of such Navajo Power shall be as described in Subparagraph 10.4.1. 10.2.5 Curtailment. Deliveries of CAP Water effected by the Diversion of water from the Colorado River above Lee Ferry shall be curtailed pursuant to the terms of the subcontract among the Secretary, CAWCD, and the Non-Indian Participant(s). Shortages. Deliveries of Colorado River water effected by the Diversion of water from the Colorado River above Lee Ferry shall be curtailed during shortages of Colorado River water in accordance with the terms of the contract(s) between the Secretary and the Non-Indian Participant(s). Accounting for the Type of Water Delivered. Jnaccordance with Section of the Act:

lO.2.6

10.2.7

10.2.7.1 All deliveries of CAP Water to Participant(s) effected by the Diversion of Water from the Colorado River above Lee Ferry shall be accounted for as deliveries of CAP Water; 10.2.72 All deliveries of Colorado River water to Non-Indian Participant(s) effected by the Diversion of water from the Colorado River above Lee Ferry shall be accounted for as deliveries of Colorado River water; 10.2.7.3 All CAP Water and all Colorado River water delivered to and consumptively used by the Non-Indian Participant(s) pursuant to this Agreement shall be accounted for: (a) as if such use occurred in the Lower Basin, regardless of the point of Diversion or place of use, and (b) as part of the 2.8 million acre-feet of Colorado River water apportioned to the Statein Article II(b)(I)ofthe Decree; and 10.2.7.4 .All CAP Water and all Colorado River water Diverted from the Colorado River above Lee Ferry for delivery to Non-Indian Participant(s) through the Western Navajo Pipeline shall be accounted

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-for as if such water had been delivered to the Lower Basin at Lee Ferry rer purposes of Artide IIl(d) ofthe Colorado River Compact. 10.3 EXCHANGES Non-Indian Paxticipant(s) may, with the approval of the Secretary, enter into contracts to exchange or options to exchange CAP Water with the Tribes or with other Non-Indian Participants, providing for the temporary delivery to others of any portion of the CAP Water to which the Non-Indian Participant(s) may be entitled. Non-Indian Participant(s) may, with the approval of the Secretary, enter into contracts to exchange or options to exchange Colorado River water with the Tribes or other Non-Indian Participants, providing for the temporary delivery to olhers of any portion of Colorado River water to which the Non-Indian Participant(s) may be entitled. CAWCD's approval shall also be required for any contracts to exchange or options to exchange Colorado River water that provide for or anticipate delivery of water through the CAP System. Contracts to exchange or options to exchange shall be for the term provided for in each such contract or option. 10.4 NON-D'JDIAN PARTICIPANT(S) CAP WATER ENERGY, CAPITAL, FIXED OM&R AND OTHER CHARGES. To the extent that any Non-Indian Participant is entitled to delivery of CAP Water under any subcontract therefor, the Non-Indian Participant shall pay the following charges: 10.4.1 CAP Pumping Energy and Fixed OM&R Charges; Non-Indian Participant(s) shall pay the CAP Operating Agency all CAP Pumping Energy Charges and all CAP Fixed OM&R charges associated with the delivery of CAP Water. Capital Charges. Except as provided in Subparagraphs 8.11 and 9.11 and with respect to any CAP Water leased from Indian tribes other than the Navajo Nation or the Hopi Tribe, Non-Indian Participant(s) shall pay the CAP Operating Agency all CAP water service capital charges associated with the delivery of CAP Water. Advance Payment. Except as provided in Subparagraphs 8.11 and 9.11 and with respect to any CAP Water leased from Indian tribes other than the Navajo Nation or the Hopi Tribe, no CAP Water shall be delivered to any Non-Indian Participant(s) unless all water service capital charges, all CAP Fixed OM&R charges and all CAP Pumping Energy Charges have been paid in advance. The charges for delivery of CAP Water to Non-Indian Participant(s) pursuant to any subcontract therefor shall be calculated in accordance with the CAP Repayment Stipulation. Other Charges. Non-Indian Participants shall also pay the CAP Operating Agency:

10.4.2

10.4.3

10.4.4

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an appropriate charge in lieu of taxes associated with .CAP Water;

delivery of

10.4.4.2 an appropriate charge for the !f:;;)very' of any debt incurred. pursuant to Project Act of ig39 (43 U.S.C.§ Section 9(d) of the 485h(d)) associated .,vith any CAP NIA',Water to \yhich the 'Non-Indian Participant is e n t i t l e d . " " .-

10.5

SCHEDULING WATER DELIVERY Non-Indian Participant(s) shall schedule delivery of CAP Water and Colorado River water in accordance with the contracts for the de1iveryof such water.

10.6

SHORTAGES OF NON-INDIAN PARTICIPANT(S) CAP WATER OR NON[NbIAN PARTICIPANT(S) COLORADO RIVER WATER; FIlUvlING OF NONINDIAN PARTICIPANT(S) CAP WATER OR COLORADO RIVER WATER 10.6.1 Shortages of Non-Indian ParticipantCs) CAP Water. If, in any Year, the Available CAP Supply is insufficient to meet the demands under all CAP Contracts for the delivery of CAP Water, the quantity of CAP Water available to Non-Indian Participant(s) will be determined in accordance with the terms of their subcontracts with the Secretary and CAWCD. Shortages of Non-Indian Participant(s) Colorado River Water. If, in' any Year, available Lower Colorado River water is insufficient to meet all demands under contracts for Colorado River Water, the quantity of Colorado River water available to Non-Indian Participant(s) will be determined in accordance with the terms of their contract(s) withthe. Secretary. Firming of CAP Water or Colorado River Water for which the Non-Indian Participant(s) Have a Contract. Non-IndianParticipant(s) may have any CAP Water or Colorado Riverwater for which they have a contract firmed by the Arizona Water Banking Authority to the extent permitted by State law. The costs of s.uch firniing shall be borne as provided law. The NonIndian Participant(s) may, at their own expense, take additional actions to firm any CAP Water or Colorado River water for which they have a contract, such as by entering intQagreements for that purpose with the Arizona Water Banking Authority, or its Sll.ccessor agency or entity, in accordance with State law.

10.6.2

10.6.3

11.0 12.0

INTENTIONALLY LEFT BLANK INFRASTRUCTURE Three projects are part of this Agreement: (1) the Western Navajo Pipeline; (2) the Leupp-Dilkon Groundwater Project; and (3) the Ganado Groundwater Project. 12.1 WESTERN NAVAIO PIPELINE

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'12.1.1

Capacity 3.!".d Configuration. _The Western Navajo Pipeline shall be capable of delivering [rom Lake Powell at. least 10,906 AFY of potable water to theN'wajo Nation and at lea§t 4,04lS-AFY of potable the Hopi Tribe for municipal, domestic, commercial and indu3trial uses. The Western Navajo Pipeline snaIl be constructed to serve the communities depicted on Exhibit l2.Ll, including LeChee, Coppermine;'''Bitter Springs, Ridge, Bodaway/Gap, Cameron, and Tuba City on the western portion of the Navajo Reservation and irrcluding Moenkopi, Third Mesa and Second Mesa on the Hopi Reservation. The Western Nav8jo Pipeline shall be configured generally as provided in the Western Navajo-Hopi Pipeline Project Cost Firming Report (Oct. 20, 2008) and shall include a raw water intake, water treatment plant, pipelines, storage tanks, pumping stations, pressure reducing valves, electrical transmission facilities and the other appurtenant items including real property and easements necessary to deliver potable water to the areas served. Construction, Costs and Financing. The Western Navajo Pipeline shall be constructed by Reclamation. The estimated cost of the Western Navajo Pipeline is $515 million (2008 dollars), including the cost of surface damage mitigation. The Western Navajo Pipeline shall be owned by the United States, held in trust for the benefit of the Tribes, and operated by Reclamation, or its designee, for the benefit of the Tribes and any Non-Indian Participants. Except as provided in Subparagraph 12.1.3.8, neither Tribe shall assess any fee, tax or other charge, including right-of-way fees, against the United States, the State or any Non-Indian Participant for the use of land for the Western Navajo Pipeline or for the delivery of water through the Western Navajo Pipeline. The construction and operation of the Pipeline shall not be subject to the Indian Self-Determination and Education Assistance Act, Pub. L. No. 93-638, as amended. The Navajo Nation consents to a grant by the Secretary, pursuant to 25 § 323, of a rightof-way for the benefit of the Hopi Tribe for the Western Navajo Pipeline from the northern boundary of the Navajo Reservation to the western boundary of the 1882 Reservation on terms to be negotiated between the Tribes. Non-Indian Participation in the Western Navajo Pipeline. In accordance with Section _ of the Act, Non-Indian Participants may participate in the Western Navajo Pipeline to increase the capacity to Cameron and extend the Western Navajo Pipeline from Cameron to the southern boundary of the Navajo Reservation; provided that a Non-Indian Participant may not participate in the Pipeline unless it first executes this Agreement and agrees to be bound by its terms and conditions. Any cost of such increased capacity or extension of the Western Navajo Pipeline from Cameron to the southern boundary of the Navajo Reservation or beyond shall be borne exclusively by the Non-Indian Participant(s).

12.1.2

12.1.3

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12.1.3.1

Within,. 90 days after of the pre-construction activities for the Western Navajo· Pipeline identified in Subparagraph 13.1.7, Reclamation will coordinate with anY Participants in developing the scope, schedule and Gcst 'for the plaIUling, engjneering, design and environmental work required to in9rease the capacity and . extend the Western Navajo Pipeline to the Navajo ReservatfQn bound&ry. All Non-Indian Participants' shall vrovide an initial estimate of the amount of additional capacity to be included in the Western Navajo Pipdine.

12.1.3.2 The Non-Indian Participants shall have 180 days after Reclamation has provided the scope, schedule and cost identified in Paragraph 12.1.3.1, to enter into an agreement to. pay all costs identified. If there is no agreement within the 180 day period, Reclamation shall have no further obligations under this Subparagraph 12.1.3. 12.1.3.3

At the completion of the planning phase of the Non-Indian Participant pre-construction activities identified in Subparagraph 12.1.3.1, Reclamation will prepare a report that includes, at a minimum, a feasibility level cost estimate, including the estimated environmental Navajo Pipeline to the mitigation costs, for the extension of the Navajo Reservation boundary. In order for any Non-Indian Participant(s) to participate in the upsizing of the Pipeline, a contract must be in place by the time that the Western Navajo Pipeline Fund has accrued 75% of the feasibility level cost estimate identified in Subparagraph 13.1.8.. The contract shall obligate the Non-Indian Participant(s) to provide funding for the Non-Indian Participant(s)' share of the cost of the Western Navajo Pipeline, specify the additional capacity and terminus for the Non-Indian Participant(s), outline any additional costs and a cost allocation procedure, capacity allocation, and .repayment schedule associated' with the use of the Western Navajo Pipeline by the Non-Indian Participant(s).

12.1.3.4

12.1.3.5 The United States shall incur no additional costs, nor shall the United States have any obligation to adopt a different construction schedule resulting from this Subparagraph 12.1.3. . 12.1.3.6 Reclamation is authorized to conduct a feasibility study for the NonIndianParticipant(s), the non-federal costs ofwhich shall be borne by the Non-Indian' Participartt(s), evaluate water supply alternatives, including the Western Navajo Pipeline. '12.1.3.7 Nothingin this Agreement shall prohibit the Non-Indian Participant(s) . from participating in other federal water resource programs.

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If any Non-Indian Participant(s) elect to participate in the Western Navajo Pipelbe:"

·.-:7,"

12.1.3.8.1 The Navajo to a grant by the Secrdary, pursuant to 25 § 323, of a right-of-way for the benefit of NonIndian Participant(s) to· increase the capacity of, and use, tl1x Western Navajo Pipeline from the northern boundary of "the Navajo Reservation to Cameron, and for the extension and use of the Western Navajo Pipeline from Cameron to the southern boundary of the Navajo Reservation at or near Highway 89. 12.1.3.8.2 Such right-of-way will be sufficient for the capacity of the Western Navajo Pipeline for the benefit of the Non-Indian Participant(s) up to an amount no greater than 12,688 AFY as determined to be feasible in the study conducted pursuant to Subparagraph 12.1.3.6. The right-of-way from the northern boundary of the Navajo Reservation to Cameron shall be at no cost to the Non-Indian Participant(s), and the cost, if any, for the right-of-way from Cameron to the southern boundary of the Navajo Reservation will be negotiated between the Navajo Nation and the Non-Indian Participant(s).

12.2

LEUPP-DILKON GROUNDWATER PROJECT 12.2.1 Capacity and Configuration. The Leupp-Dilkon Groundwater Project shall implement the capital improvement plan for the public water systems serving the Leupp, Birdsprings and Tolani Lake Chapters ("Leupp CIP"), the capital improvement plan for the public water systems serving Dilkon, Teestoh, Indian Wells, White Cone and Lower Greasewood Chapters ("Dilkon CIP"), and authorize the funding and construction of the Leupp-Dilkon Water transmission line to convey water from the C-aquifer Well field to the Leupp and Dilkon public Water systems so that this water may be conveyed through the public water systems improved under the two capital improvement plans. Leupp CIP. The implementation of the Leupp CIP shall improve the Leupp Public Water System so that it will be capable of distributing 1,508 AFY of potable water to the Leupp, Birdsprings, and Tolani Lake Chapters for municipal, domestic, commercial and industrial uses. Such Chapters are depicted, and the improvements shall be configured, generally as provided in Exhibit 12.2.2, and further described in the Final Summary Report Leupp, Birdsprings, and Tolani Lake Water Distribution System Analysis (May 2008). The implementation of the Leupp CIP shall include construction of Wells, water treatment facilities, pipelines, storage tanks, pumping stations, pressure reducing valves, electrical transmission facilities and the other appurtenant items including real property and easements necessary to deliver potable water to the areas served.

12.2.2

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12.2.3

Dilkon CIP. The irnplementationofthe Dilkon CIP shall improve the Dilkon Public W3.ter System so that it will be capable (jf delivering 3,.268 Af)'" of potable water to the Dilkon, Teestoh, Indian Wells, Vlhite Ct:me and LO'"ver Chapters f0f munidpal, domestic, cClTlIIierCial and industrial uses.· Such chapters are depicted, and the3e improvements shall be configured, generally as provided in Exhibit 12.2.2 and furt..'ler in the Final Sum..rnary Report Dilbn and Teestoh \-Vater Distribution System Analysis (May 2008). The Dilkon CIP. shall include construction of water · treatment facilities, pipelines, storage taI',-,1cs,pumping stations, pressure · reducing valves, electrical transmission facilities and the other appurtenant items including real property and easements necessary to deliver potable water to the areas served. Water Transmission Line. The Leupp-Dilkon Water transmission line shall be capable· of delivering at least 3,600 AFY of potable water from the C· aquifer Well Field. The water will be delivered to the Leupp and the Dilkon public Water systems for municipal, domestic, commercial and industrial uses. Such Chapters are depicted, and these improvements shall be configured, generally as provided in Exhibit 12.2.2 and further described in the Raw Water Transmission Pipeline Alignment Alternative Evaluation Final Report (May 2008). The Leupp-Dilkon Water transmission line shall include construction of Wells, pipelines, storage tanks, pumping stations, pressure reducing valves, electrical transmission facilities and the other appurtenant items including real property and easements necessary to deliver water to the areas served. Construction, Costs and Financirig. The Leupp-Dilkon Groundwater Project shall be constructed by Reclamation. The estimated construction cost is $113 million (2008 dollars), including the cost of surface damage mitigation.. The Leupp-Dilkon Groundwater Project shall be owned by the United States, held in trust for the benefit of the Navajo Nation and shall be operated by the Navajo Nation. The Secretary shall have ¢.e authority to transfer title to The Navajo Nation shall not assess .thesefa.cilities to the Navajo Reclamation any fee, tax or other charge, including right-of-way fees, for the use of land for the Leupp-Dilkon Groundw&ter Project or for the delivery of through such project. Except as provided in Subparagraph 13.1.7, the construction of the Leupp-Dilkon Groundwater Project shall not be subject to the Indian Self-Determination and Education Assistance Act, Pub. L. No. 93638, as amended.

12.2.4

12.2.5

12.3

GANADO GROUNDWATER PROJECT
12.3.1

Capacity and Configuration. The Ganado Groundwater Project shall be 5,600 AFY of water to the Ganado, Steamboat, . caplil1:>le of Kinlichee, C'ornfields, Klagetoh, .and Wide Ruins Chapters for municipal, domestic, commercial and industrial uses from Grounq,water Wells in the Ganado area. Such Chapters are depicted, and the improvements shall be

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configtlred, generally as prQwded Exhibit 12.3.1 and further described in the Ganado C-Aquifer Project report The Ganado Groundwate,:, Project shaH include ccnstxuction of Wells, water treatment, pipelines, storage tanks, pumping stations, pressure reducing -valves, electrical transmission fac;.iEties and the other -appurtenant items including -real property and easements necessary to deliver potable water to the areas served. 12.3.2 Construction, Costs and Financing. The Ganado Groundwater Project shall b,e constructed by Reclamation. The estimated construction cost is approximately $66 million (2008 dollars), including the cost of surface damage mitigation. The Ganado Groundwater Project shall be owned by the United States; held in trust for the benefit of the Navajo Nation and operated by the Navajo Nation. The Secretary shall have the authority to transfer title to these facilities to the Navajo Nation. The Navajo Nation shall not assess Reclamation any fee, tax or other charge, including right-of-way fees for the use of land, for the Ganado Groundwater Project or for the delivery of water through such project. Except as provided in Subparagraph 13.1.7, the construction of the Ganado Groundwater Project shall not be subject to the Indian Self-Detennination and Education Assistance Act, Pub. L. No. 93638, as amended.

12.4

OM&R 12.4.1 OM&R Costs. As part of the costs of this Settlement, the United States shall establish two funds for each of the three projects described in this Paragraph 12.0: (1) a replacement fund; and (2) an unused capacity fund. These funds shall be administered by the Secretary in accordance with the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. §§ 4001 et seq.) and as provided in this Subparagraph 12.4. Replacement Funds. The United States shall be responsible for replacement of the components of each project described in this Paragraph 12.0. A replacement fund shall be established in the Treasury of the United States to cover the initial replacement costs of each of the projects in the following initial amounts: (1) $23,435,000 for the Western Navajo Pipeline; (2) $3,112,000 for the Leupp-Dilkon Groundwater Project; and (3) $987,000 for the Ganado Groundwater Project. Each replacement fund shall accumul(ite interest. Payments may be made out of the funds only to cover: (1) replacement costs for the respective project; or (2) costs that result from the premature failure of system components, natural disasters, or acts of God. Payments may not be made out of a replacement fund to cover the normal operation and maintenance costs of a project. Whenever any replacement fund becomes exhausted, the United States shall replenish it as necessarywith funds appropriated by Congress so that each project may operate in perpetuity.

12.4.2

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12.4.3

Unused Capacity Funds.. unused capacity fund shall be established in the' Treasury of the United States to cover the and maintenance .. of each (If the projects described in Paragraph 12.0 in the fo!lowing amounts: (1).$15,225,434 for the Navajo Pipeline;.{2) $3,732,000 for the Leupp-Di1kon Groundwater Project; and (3) $1,496,000 for the Ganado Each unused capaCity fund shall accumulate interest and payments will be made out of the fund'onlytG cover all operation and ..in3.intenance costs of each respective project until: (1) the pn;ject is slJpplying water at its full capacity as described in Subparagraphs 12.1, 12.2 and 12.3 respectively; or (2) the amount in the respective fund is exhausted, whichever occurs later. The Secretary may in his or her discretion continue to pay operation and maintenance costs of any project for ten years after that project is supplying its full capacity, using appropriated funds to do so, if the 'Secretary determines the operation and maintenance costs are beyond the ability of the Tribe to pay. Fluctuation in Replacement and Unused Capacity Costs. The funds authorized to be appropriated in Subparagraphs 12.4.2 and 12.4.3, shall be increased by such amounts as may be justified by reason of ordinary increases in costs incurred after 2008 as indicated by applicable engineering cost indices. Project Design. To the maximum extent feasible, each project described in Subparagraphs 12.1, 12.2 and 12.3 shall be designed so as to minimize operation, maintenance and replacement costs. Availability of Amounts from Funds. Amounts in the funds set forth in Subparagraphs 12.4.2 and 12.4.3 attributable to the Leupp-Dilkon and Ganado Groundwater Projects shall be available for expenditure or withdrawal' only after the LCR Enforceability Date.

0"; ..

12.4.4

12.4.5

12.4.6

12.4.6.1

12.4.6.2 Amounts in the funds set forth in Subparagraphs 12.4.2 and 12.4.3 attributable to the Western Navajo Pipeline shall be available for expenditure or withdrawal only' after the Lower Colorado River Enforceability Date. 13.0 CONDITIONS AND STAGED WAIVERS 13;1 GENERAL CONDITIONS 13.1.1 Trust Accounts. There will be two separate subaccounts established in the Lower Basin Development Fund: (1) the Western Navajo Pipeline Fund; and (2) the Groundwater Projects Fund.

13.1.2 ,Project Funding. Except as providedin Subparagraphs 13.1.4 and 13.1.5, all appropriations and other monies made available by Congress for the projects

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described in Paragraph 12.0 shall equally between and deposited in the western Navajo Pipeline Pund and the Groundwater Projects Fund set forth in Subparagraph 13.2.1 for the until the full funding, Groundwater Projects Fund has been satisfied. An further appropriations and Navajo" Pipeline other monies Illade available by Congress for the described in Subparagraph 12.1 shall thereafter he deposited an(t' used to satisfy the funding requirement set forth in Subparagraph 13.3.1 for the Western Navajo Pipdine Fund. 13.1.3 Projects. Except as provided in Subparagraph 13.1.6, none of the monies deposited into the Groundwater Projects Fund shall be available for expenditure until the LCR Enforceability Date, nor shall any of the monies deposited into the Western Navajo Pipeline Fund be available for expenditure until the Lower Colorado River Enforceability Date. Lower Colorado River Basin Development Fund. Not less than $100 million shall be transferred from the Future Indian Water Settlement Subaccount of the Lower Colorado River Basin Development Fund established pursuant to Section 403(f)(2)(D)(vi) of the Colorado River Basin Project Act,as amended, to the Western Navajo Pipeline Fund. Reclamation Water Settlements Fund. If available, up to $100 million from the Reclamation Water Settlements Fund established in the Omnibus Public Land Management Act of2009 (Pub. L. No. 111-11, § 10501, 123 Stat. 1375 (2009)) will be deposited in the Western Navajo Pipeline Fund. Pre-Construction. Planning, engineering, design and environmental work for the projects described in Paragraph 12.0 shall begin when monies sufficient therefor are made available to Reclamation to perform the work. The Tribes may contract for pre-construction activities under the Indian SelfDetermination and Education Assistance Act, Pub. L. No. 93-638, as amended. The monies authorized and made available for such pre-construction activities for the Leupp-Dilkon and Ganado Groundwater projects shall be credited- against the amount authorized to be deposited in the Groundwater Projects Fund.

13.1.4

13.1.5

13.1.6

13.1.6.1

13.1.6.2 The monies authorized and made available for such pre-construction activities for the Western Navajo Pipeline shall be credited against the amount authorized to be deposited in the Western Navajo Pipeline Fund. 13.1.7 Cost Estimate Report. At the completion of the planning phase of the preconstruction activities, Reclamation will prepare a report that includes, at a minimum, a feasibility level cost estimate, including the estimated environmental mitigation' costs, . for each of the projects described in Subparagraphs 12.1, 12.2, and 12.3.

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13.2

LCRAND GILA RIVER WAIVERS 13.2.1 LCR Enforceability Datt. The LCR and Gila River waivers described in Subparagraphs 14.1.1,14.2.1,14.3.1,14.:<.3,14.2.3,14.5.1, and 145.;,Jshall i.,ecome enforceable when the Secretary publishes in the Federal Register a. statement affindings that all following conditions have been satisfied: to the extent that this Agreement conflicts with the Act, the Agreement has been revised through an amer.dment to eiiminate any conflicts between this Agreement and the Act;

13.2.1.1

13 .2.1.2 the Secretary, the Tribes, and the Governor of the State have executed this Agreement, as revised in accordance with Subparagraph 13.2.1.1, within twenty-four months after the Act becomes law; 13 .2.1.3 $250 million has been deposited in the Western Navajo Pipeline Fund;

13 .2.1.4 the monies authorized in Section of the Act, as adjusted by Subparagraph 13.1.6.1, has been deposited into the Groundwater Projects Fund; 13 .2.1.5 on or before January 1, 2016, the State has enacted legislation substantially in the form of the State Implementing Legislation attached to this Agreement as Exhibit 3.1.130, and said State Implementing Legislation remains effective;

13.2.1.6 the LCR Adjudication Court and the Gila River Adjudication Court have approved the judgment and decree substantiaJIy in the form of Exhibits 3.1.76 and 3.1.54 respectively; and . 13.2.1.7 the Secretary has published in the Federal Register a Record of Decision approving construction of the Leupp-Dilkon and Ganado Groundwater Projects in a configuration substantially similar to' that described in Subparagraphs 12.2 and 12.3. 13.2.2 Failure to Satisfy Conditions. If the provisions of Subparagraph 13.2.1.5 are not satisfied by January 1, 2016, or the LCR waivers set forth in 13 .2.1 do not become enforceable by October 31, 2029, then this Agreement shall be null and void.

13.2.3 . Construction. Except as provided in Subparagraph 13.1.6, construction of the Leupp-Dilkon and Ganado Projects may begin after the LCR Enforceability Date. 13.3 . LOWER COLORADO RIVER WAIVERS 13.3.1 Lower Colorado River Enforceability Date. The Lower Colorado River waivers described in Subparagraphs 14.1.2, 14.2.2, 14.3.2, 14.1.4, 14.2.4, and

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14.5.3 shall become enforceabrewhen the Secretarypyblishes in the Federal Register a statement of findings that all of the followilig conditions set fortif satisfied: have 13.3. L 1 to the extent that this Agreement ."'_»>

--,----_
_

_

Attorney

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SILVER CREEK IRRIGATION DISTRICT
By: Dated: President Attest: Secretary Approved as to form: _ _ _

Attorney

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LAKESIDE IRRIGATION

By: Dated: President Attest: Secretary Approved as to form: _

_

Attorney

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FOREST LAKES DOMESTIC WATER IMPROVEMENT 1)1STRICT
By: Dated: President Attest: Secretary
_.0-

_
.. .•

-'

_

Approved as to form:

Attorney

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PINETOP-LAKESIDE SANITARY DISTRlCT-'·
By:
Dated: President

_

Attest:
Secretary Approved as to fonn:

_

Attorney

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EDELL LYLE BARNES
By: Dated: Approved as to form: _ _

Attorney

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NAV APACHE HOSPITAL DISTRICT

By: Dated: - - - - - - - - - President Attest: Secretary Approved as to form: _

Attorney

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CITY OF FLAGSTAFF
3y: _

D.ated: Mayor Attest:

_

--------"----------

\

City Clerk Approved as to form:

City Attorney

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INDEX OF EXHIBITS

3.1.2 3.1.3 3.1.7 3.1.32 3.1.33 3.1.35 3.1.42 3.1.54 3.1.58 3.1.61 3.1.76 3.1.84 3.1.87 3.1.104 3.1.106 3.1.130 3.1.134 3.1.141 3.1.149 4.1.7.2 4.1.8.1A 4.1.8.1B 4.1.8.1C 4.1.8.3A 4.1.8.3B

Map of 26 Bar Ranch Form of Abstract Map of Aja Ranch Map of Clear Creek Ranch Map-of Closed Basin.sMap of Confined Aquifer and N-Aquifer Map of Drye Ranch Form of judgment and decree entered by the Gila River Adjudication Court in the Gila River Adjudication Map of Hart Ranch Map of Hopi Reservation

Not available

1
--Not available Not available 2 3 Not available Not available Not available Not available

4 Form of judgment and decree entered by the LCR Adjudication Court in the LCR Adjudication Proceedings Map of Lower LCR Watershed Map of Managed Washes Map of Navajo Reservation Map of Navajo Winslow Tract State Implementing Legislation Map of Three-Canyon Area Map of Upper LCR Watershed Map of Zone S Abstracts of Off·Reservation Navajo Nation Allotments Navajo Nation Off-Reservation land within the LCR Watershed Navajo Nation Off-Reservation Surface Water Abstract Navajo Nation Off-Reservation Underground Water Abstract Map of Navajo Nation Off-Reservation Land Within the Gila River Watershed Navajo Nation Off-Reservation Surface Water Uses Abstracted in the Gila River Adjudication 5 6 7 8 9
10

11
12 13 14 Not available Not available Not available Not available

4.2.4.1A 4.2.4.1B 4.2.4.1C [RESERVED] 4.2.3 " 5.1.1.2A 5.1.1.2B 5.1.1.2C 5.1.1.2D 5.1.2.1 5.1.3.3 5.2.7.1 5.2.7.2.3 5.2.7.2.4 6.1.2.2A 6.1.2.2B 6.1.2.2C 6.2
=..,..

Hopi Tribe Off-Reservation Surface Water Abstract

Not available

Hopi Tribe Off-Reservation Underground Water Abstract Not availabie . Additional Hopi Ranch Abstracts Hopi Industrial Park Water Rights Table of All Navajo Nation Irrigation Projects Historic
-"

Not available 15 16 17 18

..

Table of All Hopi Tribe Designated Irrigation Projects Table of All Joint Navajo Nation and Hopi Tribe Historic Irrigation Projects Map of Designated Historic Irrigation Projects List of Peabody Permanent Mining Structures Table of Aggregate Capacityof Surface Water .Impoundments by Main Wash Drainage List of sprIngs on Navajo Lands ·and Hopi Lands (Filed under seal) Formula for Navajo Nation Non-Exempt Well Pumping in Zone S Formula for Hopi Tribe Non-Exempt Well Pumping in ZoneS Abstract of - - Surface Water Uses Abstract of - - Surface Water Uses Abstract of - - Surface Water Uses

19
20 Not disclosed Not Not available Not available Not available Not available

21 Abstracts of Surface Water Uses for Zuni Lands, set forth in Exhibit 4.1.A(1) et seq. to the Zuni Indian Tribe Water Rights Settlement Agreement of2002, as amended Abstract for Wells Outside the Protection Areas Abstract for Wells Outside the Protection Areas Abstract for Wells Outside the Protection Areas Water from Existing Abstract ofUses Wells within the Protection Areas Abstract of Uses of Underground Water froin Wells within the Protection Areas of Uses of Underground Water from Existing . . Wells within the Protection Areas Map of Protection Area A Not available Not available Not available Not available Not available Not available 22

7.2.2A 7.2.2B 7.2.2C 7.3.6A 7.3.6B 7.3.6C 7:4

7.4.2 7.5 7.6 ;·7.7
R --

Formula for Pro-Rata apportionment of Underground Water Withdrawals in Protection Area A. Map of Protection Area B Map of Protection Area C 'Map of Protection Area D ' Navajo Nation CAP Water Delivery Contr,!-ct
'.-"".::";--

Not available 23

...

,-

24

25
Not available Not available Not available Not available Not available Not available 26 27 28

r8.2.1
I 8.2.2

I Navajo Nation Colorado River Vlater Delivery Contract
Provisions for CAP Water leases Hopi Tribe CAP Water Delivery Contract Hopi Tribe Colorado River Water Delivery Contract Hopi Tribe Cibola Water Delivery Contract Map of Western Navajo Pipeline Project Map of Leupp-Dilkon Groundwater Project Map of Ganado Groundwater Project

8.5 9.2.1 9.2.2.1 9.2.2.2 12.1.1 12.2.2 12.3.1 14.1.1

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29 Form of waiver and release of claims for Water Rights and waiver and release of claims for Injury to Water Rights and Injury to Water Quality, by the Navajo Nation on behalf of itself and its Members (but not Members in their capacity as Allottees) and by the United States acting in its capacity as trustee for the Navajo Nation and its Members (but not Members in their capacity as Allottees) 30 Form of waiver and release of claims of rights to water from the Lower Colorado River and waiver and release of claims of injury to rights to water from the Lower Colorado River by the Navajo Nation on behalf of itself and its Members (but not Members in their capacity as Allottees) and by the United States acting in its capacity as trustee for the Navajo Nation and its Members (but not Members in their capacity as Allottees) Form of waiver and release of claims for Water Rights and waiver and release of claims for Injury to Water Rights and Injury to Water Quality by the Navajo Nation on behalf of itself and its Members (but not Members in their capacity as Allottees) against the United States FOrni of waiver and release of claims of rights to water from the Lower Colorado River and waiver and release of claims of injury to rights to water from the Lower Colorado River by the Navajo Nation on behalf of itself and its Members (but not members in their capacity as 31

14.1.2

14.1.3
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J

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32

Allottees) against the United States 14.2.1 Form of waiver and release of claims for Water Rights and waiver and release of claims for Injury to Water· Rights and Injury to Water QualitY,by the Hopi Tribe utI behalf of itself and its members (but .not :i:vlembers in their capacity as Allottees) and by the United States in its capacity a$ trustee for the Hopi Tribe and its (but not Members in their capacity as Allottees) Form of waiver-and release of claims of rights to water from the Lower Colorado River and waiver and release of claims of injury to rights to water from the Lower Colorado River by the Hopi Tribe on behalf of and its Members (but not Members in their capacity as . Allottees) and by the Untied States acting in its capacity as trustee for the Hopi Tribe and its Members (but not Members in their capacity as Allottees) Form of waiVer and release of claims for Water Rights and waiver arid release of claims for Injury to Water Rights and Injury to Water Quality, by the Hopi Tribe on behalf of itself and its Members (but not Members in their capacity as Allottees) against the United States Form of waiver and release of claims of rights to water from the Lower Colorado River and waiver and release of claims of injury to rights to water from the Lower Colorado River by the Hopi Tribe on behalf of itself and its Members (but not Members in their capacity as . Allottees) againstthe United States Form of waiver and release of claims for Water Rights and Injuries to Water Rights by the United States acting in its capacity as trustee for Allottees Form of waiver and release of claims of rights to water from the Lower Colorado River and waiver and release of claims of injury to rights to water from the Lower Colorado River by the United States acting in its capacity as trustee for Allottees Form o£waiver and release of claims by the United States against the Navajo Nation and the Hopi Tribe Form ofwaiver and release of Claims for Injury to Water Rights and Injury to. Water QtJ.a1ity by the Parties, except the United the NclVajq Nationand the Hopi Tribe for claims against the NavajoNation, its members (but not members in their capacity as Allottees), and the United States acting in its capacity as trustee for the 33

j'

73'

I
34

14.2.2

14.2.3

35

14.2.4

36

14.3.1

37

14.3.2

38

14.4 14.5.1

39 40

Navajo Nation and its members (but not members in their capacity as Allottees) 14.5.2

""-"

I Form of waiver ahd release of claims for Injury to Water
Rights and Injury to \Vater Quality by the Parties, except the United States, the Navajo Nation and the Hopi Tribe for claims- against the Hopi Tribe, its members (but not members in their capacity as Ailotlees), and the United States acting in its capacity as trustee for the Hopi Tribe and its members (but not members in their capacity as Allottees)
I

41

I

.

. ..
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'

14.5.3 14.23 15.19

Form of waiver and release of claims against the United States acting in its capacity as trustee for the Allottees
.-

42 Not available 43

Form of Dismissal of Pending Court Action Party Contact Information for Future Notices

[Water Right Owner]

--, C;iaim Number: _ Water Right Owner' .:' Quantitv: Acres SerJed: Priority Date: Source(s): Point(s) of Diversion: Place(s) of Use: Flow RateNolume: Beneficial Use(s): Basis of Remarks:

,.-

-.

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I
Ak.Liltc-C

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""'U:,rdless of its legal characterization as appropriable under state, federal or other law.
-"-

29. "Well" means a man-made opening in the earth through which Underground Water may be withdrawn or obtained, except for wells drilled for oil, gas, or helium, or geothermal wells when the director finds that the rules and regulations of the Arizona Oil and Gas Conservation Commission require the reinjection of all waters associated with the geothermal resource to the producing strata. 30. "Winslow Tract" means off-reservation fee lands within the Little Colorado River Watershed owned by the Navajo Nation as depicted on the map dated _ _ _ _:, 20 and on file with the director.

45-2802

Application to State Lands

This chapter applies to all lands within the Little Colorado River Watershed owned by the state of Arizona.

Article 2.

New Surface Water Appropriations and Uses within the Little Colorado River Watershed New Applications to Appropriate Surface Water within the Little Colorado River Watershed; Prohibitions; Exceptions

45-2821

A. Except as provided in subsection B, after the Enforceability Date, an application to appropriate surface water within the Little Colorado River Watershed shall be filed and processed with the Adjudication Court. An application to appropriate surface water within the Little Colorado River Watershed pending before the director on the Enforceability Date shall be transferred to and processed by the Adjudication Court. B. Neither the director nor the Adjudication Court shall grant applications to appropriate surface water within the Little Colorado River Watershed filed after the effective date of this section for the following:
1. this section.

Irrigation of land that was not irrigated prior to the effective date of

. 2. Any new non-de minimis water use by means of direct diversion of surface water in the Three Canyon Area. As used in this subsection, direct diversion of surface water excludes the withdrawal of underground water from a

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C. Any application for a permit to construct a new reservoir within the Little· Colorado River Watershed shall be subject to section 45-2826.

45-2822

Rights or Change in Type of Use or Severance ai:d Transfer of Point of Diversion of Surface Water within the Little Colorado River Wafershed

A.. After the Enforceability Date, an application for a change in the type of use or the point of diversion of a Surface Water use; or an application for a severance and transfer of a Surface Water right, within the Little Colorado River Watershed, shall be filed with and processed by the Adjudication Court. Any application for a severance and transfer shall, to the extent applicable, follow the criteria set forth in section 45-172.

B. An applicationfor a change in the type of use or the point of diversion for a Surface Water use, or an application for a severance and transfer of a Surface Water right within the Little Colorado River Watershed, pending before the director on the Enforceability Date shall be transferred to and processed by the Adjudication Court.
•.

45-2823

New Reservoirs within the Little Colorado River Watershed

A. After the Enforceability Date, an application for a reservoir permit within with the Adjudication the Little Colorado River Watershed shall be filed and Court. An application for a reservoir permit within the Little Colorado River Watershed pending before the director on the Enforceability Date shall be transferred to and processed by the Adjudication Court.. Any application for a reservoir permit shall, to the extent applicable, follow the criteria set forth in section 45-161.

B. After the effective date of this section, neither the director nor the Adjudication Court shall accept an application for a New Reservoir to be located within the Little Colorado River Watershed unless one of the following applies: . 1. The New Reservoir will store water diverted entirely from within a Closed Basin. 2.. The New Reservoir will be constructed within the Lower Little Colorado River Watershed and surface water stored therein is used primarily for municipal purposes. 3. The New Reservoir will be constructed to store surface water that becomes available for storage as a result of a change in place or type of use or change in point ofdiversion. 4. . Reservoir will not permanently store wllter,but\Vill be for the release operated soleI for flood control purposes and will have an of water..
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5.

The New Reservoir will be a de minimis use.

6. The New Reser·.·oir will be constructed pursuant to an agreement with the Navajo Nation, the Hopi Tribe, or the "United States acting its capa\,;ity 1-'b . .as trustee fior Uk tIl es, theIr members and allottees. 45-2824

Prot'essing of Surface Water Applications within the Little Colorado River Watershed;

A. If, :lfter the Enforceability Date, an application is filed or processed pursuant to section 45-2821, 45-2822 or 45-2823, the Adjudication Court shall direct the applicant to give notice of the application to the court-approved mailing list and to publish notice of the application once each week for three consecutive weeks in a newspaper of general circulation in the county or counties in which the existing and proposed points of diversion are located. The form of the notice shall be approved by the Adjudication Court prior to publication. B. Within thirty days following the last date of publication, a person who has a right or claim to the use of water from a source located within the Little Colorado River Watershed may file a written objection to the application on the basis that it will conflict with the objector's right or claim. The Adjudication Court shall resolve any such objections, and in appropriate circumstances, may approve the appropriation or change sought in the application, but when the proposed use conflicts with vested rights, the application shall be rejected or modified to eliminate any such conflict. Any appeal of the Adjudication Court's determination shall be taken pursuant to section 12-2101.
•

III

C. . The Adjudication Court may request technical assistance from the director connectIOn WIth the processing of the application.
• • .

D. Any hearing associated with any application processed pursuant to this section shall be conducted in a county in which the proposed or existing point of diversion is located.

45-2825

Transportation of Surface Water away from the Little Colorado River Watershed Prohibited; exceptions

A. Except as provided in subsections Band C of this section, after the effective date of this section, surface water from the Little Colorado River Watershed may not be transported away from the Little Colorado River Watershed. B. An owner of a certificate of water right in existence on the effective date of this section or an amendment to that certificate may continue to transport surface water away from the Little Colorado River Watershed if the transportation was initiated before the effective date of this section in accordance with chapter 1 of this title. The owner of such surface water right may also change the point of diversion or type of use, or sever and transfer all or any portion of that surface water right to a location away from the Little Colorado River Watershed in accordance with state law.
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C. A municipal water provider with a service area located in the Little Colorado River Watershed and an adjacent watt:fshed as of the effective dqte of this section may transport arid deliver Surface Water divened within that portion of its service area iocated in the Little Colorado River Watershed to the adjacent watershed for the benefit of the landowners, c}lstomers and residents within its municipal boundaries or service area, or, in the case of a public service corporation, within its certificate of cop.veriience and necessity.

45-2826

Reservoirs within the Little Colorado River Watershed

Reservoirs within the Little ColoIadoRiver Watershed may be de-silted, drained, dredged or maintained, including lining to prevent seepage and any appropriate maintenance of or replacement of any darn, impoundment, spillway, weir or headgate, so long as such actions are consistent with the operating criteria, if any, specified in an order or existing decree governing the use of waters in the Little Colorado River Watershed. Reservoirs may be modified or reconstructed, provided there is n?increase in storage capacity unless such increase is authorized by section

45-2827

Other Types of Impoundments within the Little Colorado River Basin Unaffected

The provisions of this article shall not affect the storage of effluent; tailwater or underground water, or any combination thereof, in an impoundment, provided that any such storage is otherwise in accordance with state law. Any such impoundment may be altered, enlarged, or constructed in accordance with state law. As used in this section, tailwater means water that is operational waste from an irrigation use, which is recovered for reuse for any purpose not otherwise prohibited by the settlement agreement.
.
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, .•

.
A

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,

Arti.cle3.

Use of Underground Water within the Little Colorado River Watershed Establishment of Protection Areas and Zones within Protection Areas

45-2841

Protection Areas A, B and C, and the zones therein, are as 0 f the effective date of this section. The boundaries of the protection areas and zones are depicted on the maps dated ,20_ and on file with the director. The maps shall be available for examination by the public during regular business hours.

45-2842 Underground Water Withdrawals within the Protection Areas and Zones witIiiJl' Pr'otection Areas'
A. Within the Protection Areas established under section may only withdraw underground water:

45-2841, a person

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1. 2848.

From a New Well in accordance with sections 45-2843 through 45From an Existing vlell in accordance with sections 45-2849 and

2.
45-2850.

3. From 311 Exempt Well, regardless of when the Exempt Well was drilled, in accordanc"e with section 45-2851. 4. From a well constructed for purposes of the development and operation of mineral estate property in accordance with section 45-2852.

B. This article does not create a right to appropriable water. The withdrawal of any underground water subject to appropriation shall be pursuant to a decreed or appropriative right under title 45, chapter 1 or article 2 of this chapter, and any such withdrawal from a New Well within Zones A-2, A-3 and A-4 of Protection Area A shall be subject to the underground water allocation limitations established in sections 45-2843 through 45-2848.
45-2843

Withdrawal of Underground Water from New Wells located in Protection Area A

Except as provided in subsection C of this section and section 45-2852, the withdrawal ofunderground water from New Wells within Protection Area A shall be subject to the following limitations and restrictions: 1. No New Wells may be drilled within Zone A-1.

A.

2. No more than a total volume of 15,500 acre-feet withdrawn from New Wells within Zone A-2. ' 3. No more than a total volume of 15,500 acre-feet per year may be withdrawn from New Wells within Zone A-3. 4. No more than a total volume of 13,000 acre-feet per year may be withdrawn from New Wells within Zone A-4.
B. Withdrawals of Underground Water from New Wells authorized by subsection A of this section shall be made only pursuant to an allocation of underground water as determined in accordance with section 45-2844. Except as provided in subsection C of this section, the Navajo. Nation, the Hopi Tribe, and the United States in its capacity as· trustee for the Navajo Nation or the Hopi Tribe may withdraw Underground Water within Protection Area A only pursuant to an Underground Water allocation.

C. Subject to subsection D of this section, the limitations of subsections A and B of this section shall not apply to the following:

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1. The withdrawal of up to 7,500 i\F per year of Underground Water by theNavajo NatIon from New Wells within the WinsluW Tract in Zones A-1, A-2 and A-3 of Protection Area A, of which not more than 500 AF may be from Zone A-3 ... Such UnJerground \-Vater may be used only the Winslow Tract or the Navajo 2. '. The\vithdrawal of up to 1,000 AF per year of Underground Water by the Navajo Nation from New. Wells outside of the boundaries of the Hart Ra..'1ch and the WinslQw Tract in Zone A-I of Protection Area A only for use on the Navajo reservation.
c .•

3. The withdrawal of up to 500 AF per year of Underground Water by the Navajo Nation from New Wells outside the boundaries of the Hart Ranch and the Winslow Tract iIi ZQnes A-1 throughA-4 of Proteetion Area A for lise either on or off the Navajo reservation. 4. The withclrawalofup to 2,000 AF per year of Underground Water from New Wells in Zone A-2, of up to 2,000 AF per year of Underground Water from New Wells in Zone A-3, and of up to 2,000 AF per year ofUnderground Water from New Wells in Zone A-4 by the Hopi Tribe or the United States as trustee of the Hopi Tribe within the Hm:t Ranch and the Clear Creek Ranch.
.
.

D. The total quantity of Underground Water withdrawn inany'year under subsection C, paragraphs 1, 2 and 3 of this section shall not exceed the difference between 60,000 AF andthe amount of underground water withdrawn from within Protection Area D in that year. . 45-2844

Preliminary Determination of Underground Water Allocations; Notice; Objections; Judicial Review; Final Determination

A. Within a reasonable time after the settlement agreement is executed by the United States, the director shall make a preliminary determination of the Underground Water allocations within Zone A;'2, Zone A-3 and Zone A-AofProtection Area A pursuant to Subsection B. For purposes of determining the person who is entitled to an Underground Water allocation associated with the ownership ofland within Zone A-2, Zone A-3 and Zone A-4 of Protection Area A, ownership shall be determined as of the date the United States executes the settlement agreement through a records of the county recorder for the county in which the parcel or part thereof is located.

B. For each parcel ofland within Zone A-2, Zone A-3 and Zone A-4 of ProtectiQn Area A, other than the Winslow Tract, Hart Ranch and the Clear Creek Ranch, the direct9( shl:j.ll detenp.ine the gross acreage of the parcel. The director shall then determine the preliminarY-Underground Water allocation forthe owner of each parcel as follows: '. . . 1. For land within Zone A-2, divide the gross acreage for the parcel or pm thereof within Zone A-2 by the total gross acreage of all such parcels
11331381.12 07/12/10

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within Zone A-2, and then multiply the resulting quotient by 15,500 acre-feet per year. 2. For land within Zone A- 3, divide the gross acreage for. the parcel . or part thereof within Zene A-3 by the total gross acreage of all such parcels within Zone A-3, and then multiply the r::sulting quotient by 15,500 acre-feet per year. 3. For land within Zone A-4, divide the; gross acreage for the parcel or part thereof within Zone A-4 by the total gross acreage of all such parcels within Zone A-4, and then multiply the resulting quotient by 13,000 acre-feet per year. C. Upon preparation of the preliminary underground water allocations, the director shall submit the preliminary allocations to the Adjudication Court for its review and confirmation. Upon submission, the director shall publish a notice of filing once each week for three consecutive weeks in a newspaper of general circulation in Coconino county, and shall further mail by first class mail a copy of the notice of the filing of the preliminary underground water allocations to the following: 1. both tribes. The Navajo Nation, Hopi Tribe and United States as trustee for

2. All landowners within Zone A-2, Zone A-3 and Zone A-4 of Protection Area A at the mailing addresses on file with the county assessor's office for real property tax purposes. The notice described in subsection C of this section shall at a minimum D. include-the following information for each landowner: 1. The name and mailing address of the landowner on file with the county assessor's office for real property tax purposes. 2. If available, the county assessor's parcel number.

3. The zOne from which underground water can be withdrawn from a New Well or New Wells within the zone by the landowner. The amount ofUriderground Water that can be withdrawn from a 4. New Well or New Wells within the zone on an annual basis by the landowner. 5. Such other pertinent information as the director may deem necessary for purposes of administering this article. Within thirty days following the last date of publication, a person who E. owns land within Zone A-2, Zone A-3 or Zone A-4 of Protection Area A may object to the preliminary Underground Water allocation for any landowner within that zone on the basis that the director's determination of ownership or gross acreage, or the calculation of the Underground Water allocation is incorrect. The court shall determine the appropriate

11331381.12 07112110

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manner in which notice ofany objections . provided to other landowners within the will be . . . . Any landowner in the zone who may be adversely affected by the resolution of an objeclion shall be a party to the Adjudication Court's proceeding to re:;olve the objection. The Adjudication COilrt shall resolve any such objection and,y

Shall maintain current accurate records of the person's withdrawals as prescribed by the director. ..

B. For the first calendar year following the Enforceability Date and for each calendar year thereafter, each person in Protection Area A who owns or withdraws Underground Water from one or more New Wells in Protection Area A durin a calendar year shall file an annual report that contains the following information: 1. The quantity of Underground Water withdrawn from each New Well within each zone of Protection Area A during the calendar year and the certificate of Underground Water allocation or allocations pursuant to which the Underground Water was withdrawn. 2. The registration number and location of each New Well from which the Underground Water allocation was withdrawn. 3. The quantity of fuel or electricity consumed by the pump during the calendar year by each New Well from which Underground Water was withdrawn. The annual report required by this section shall be maintained on a C. calendar year basis and shall be filed with the director no later than June 1 of each year for the preceding calendar year. Each report shall contain either a sworn statement or a certification, under penalty of perjury, that the information contained in the report is true and correct according to the best belief and knowledge of the person filing the report. If a person who is required under this section to file an annual report fails to file a report for the calendar year in question on or before June 1 of the following year, the director may assess and collect a penalty of twenty-five dollars for each month or portion of a month that the annual report is delinquent. The total penalty assessed under this subsection shall not exceed one hundred fifty dollars. The director shall deposit, pursuant to sections 35146 and 35-147, all penalties collected under this subsection in the state general fund. The records and reports required to be kept and filed under this section D. shall be in such form as the director prescribes. The director shall prepare blank forms and distribute them on a timely schedule and furnish them upon request, by regular mail or on a web site maintained by the director. Failure to receive or obtain the forms does not relieve any person from keeping the required records or making any required report. The director shall cooperate with cities and towns, private water companies and irrigation districts in establishing the form of the records and reports to be kept and filed by them. A person who withdraws Underground Water from an Existing Well or Exempt Well is exempt from the record keeping and reporting requirements of this section.
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Articfe 5.
45-2881

Enforcement Inspections, Tn..vestigat;o!.s and Audits

A.. The director or the director's authorized representative may enter, at reasonable times, privatt or public property, and the owner, filallager or occupant (1fthe property shall permit the entry to ascertain compliance with this chapter.

B. Inspections and investigations under subsection A shall be on reascnable notice to the owner, manager or occupant ofthe property unless reasonable grounds exist to believe that such notice would frustrate the enforcement of this chapter: Ifwarrants are required by law, the director shall apply for and obtain warrants from the Adjudication Court for entry and inspection to carry out the administrative and enforcement purposes of this article.

C. The director shall provide a written report of each inspection, investigation and audit under this section to the person who is subject to the action, and shall further file the report with the Adjudication Court and provide a notice of filing of the report to those parties oil. the court-approved mailing list for the Little Colorado River Adjudication.
45-2882

Hearing; Relief

A. Ifthe director has reason to believe that a person is violating.or has violated this chapter or an order issued pursuant to this chapter, the director may file a petition with the Adjudication Court requesting the Adjudication Court to issue an order to appear and show cause at a hearing before the Adjudication Court as to why the person should not be ordered to cease and desist from the violation.

B. The decisit)ll and order ofthe Adjudication Court under this section may take such form as the Adjudication Court determines to be reasonable and appropriate, and may include a determination of violation, a temporary restraining order or a preliminary or permanent injunction, or an order directing abatement or mitigation of any harm or damage arising from the violation.. Affirmative relief may include, but is not limited to, the removal of any impoundment or structure constructed in violation of article 2 of this chapter, capping or abandonment of any New Well constructed in violation of article 3 of this chapter or installation of a flow restriction device to limit . discharge from a New Well. C. Any delay between the date of the alleged violation of this chapter and the date of any enforcement action pursuant to this section shall not be a factor in determining whether to issue an injunction or ordering affirmative relief. Court's final determination shall be taken D. Any appeal of the to the court of appeals pursuant to section 12-2101.
45-2883
11331381.12

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07112110

A. Beginning on the effective date of this section, a person adversely affected by an alleged vi('.la:tion of this chapter Play complain to the director. The director shall promptlyjiwcstigate all slich compl?,ints'. If, after investigating::: complaint, has reason to believe a viclation has occurred, the director may file a petition with tne Adjudication Court requesting the Adjudication Court to issue an order toappear and show at a hearing beiore the Adjudication. C01,,lrt as to why the person should not be ordered to cease and desist from the violation. B. The decision and order of the Adjudication Court under this section may take such form as the Adjudication Court determines to be reasonable and appropriate, and may include a determination of violation, a temporary restraining order or a preliminary or permanent injunction, or an order directing abatement or mitigation of any harm or damage arising from the violation. Affirmative relief may include, but is not limited to, the removal of any impoundment or structure constructed. in violation of article 2 of this chapter, capping or abandonment of any New Well constructed in violation of article 3 of this chapter or installation of a flow restriction device to limit discharge from a New Well.
C. Any appeal of the Adjudication Court's final determination shall be taken to the court of appeals pursuant to section 12-210 1.

Section 12.

Appropriation

The sum of one hundred forty thousand dollars is appropriated in fiscal year 2011 - 2012 from the state general fund to the director to perform the cataloging activities required under this section.

Section 13.

Sunset Provision

This chapter is repealed without further action of the legislature in its entirety if the act is not enacted into federal law by January 1, 2016, or the Little Colorado River Enforceability Date does not occur.

Section 14. Section 596.02, Arizona Revised Statutes is repealed without further action of the legislature in its entirety if the act is not enacted into federal law by January 1,2016, or the Little Colorado River Enforceability Date does not occur. Section 15. lfthe act is not enacted into feder&llaw by January 1,2016, or the Little Colorado River Enforceability Date does not occur, without further action of the legislature, section 45-113 is amended to read: 45-113. Fees; refunds

A. Except as otherwise prescribed, the director shall establish by rule and shall collect reasonable fees to cover the costs of administrative services and expenses.
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B. Except as otherwise prescr_ibed, the director may establish by rule and collect and permits relating to surface water, fees for applications, certificates, gr,mndwater, water exchanges, wens, grandfathereq rights, substitution of acres, adequate and assured water supply, groundwater oversupply, AND lakesaflEi-underground water allocations established pursuimt to section 15 2844 and for inspections relating to .dam safety. C. If the director determines that a fee, including a fee collected pursuant to sectiun 45-611, has been erroneously paid during the same fiscal year or during any prior fiscal year, the director shall make an administrative adjustment or a refund, without interest, from the agency fund in which the fee was originally deposited to the current holder of the right, application or registration for which the fee was paid. D. This section does not apply to fees paid or payable under section 45-254 or section 45-255, subsectiQn B. E. Except as provided in subsection F of this section, the director shall deposit, pursuant to se,ctions 35-146 and 35-147, the monies collected under this section in the water resources fund established by section 45-117. F. The director shall deposit, pursuant to sections 35-146 and 35-·147, the fees. collected under this section relating to adequate and assured water supply pursuant to sections 45-1.08, 45-576 and 45-579 in the assured and adequate water supply administration fund established by section 45-580. Section 16. If the act is not enacted into federal law by January 1; 2016, or the Little of the Colorado River Enforceability Date does not occur, without furtper legislature, section 45-141 is amended to read: Public nature of waters of the state; beneficial use; reversion to state; 45-141. actions not constituting abandonment or forfeiture

A. The waters of all sources, flowing in streams, canyons, ravines or other natural channels, or in definite underground channels, whether perennial or intermittent, flood, waste or surplus water, and of lakes, ponds and springs on the surface, belong to the public and are subject to appropriation and beneficial use as provided in this chapter.
B. Beneficial use shall be the basis, measure and limit to the use of water. C. Except as otherwise provided in this title or in title 48, when the owner of a right to the use of water. ceases or fails to use the water appropriated for five successive years, the . right to the use' shall' cease, and the water shall revert to the public and shall again be subject to appropriation. " D. Unc.iergroundwater storage, pursuant to chapter3.l of this 'title, forfuture beneficial use of waters appropriated pursuant to this chapter does not constitute an abandonment or forfeiture.
11331381.12 07112110

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26

E. 1.J).e following water exchange arrangements or substitutions do not constitute an abandGnrnent or forfeiture of all or any portion e;f a right to use surfac.:: water: " 1. Exchangingsbrface "water for groundwater, effluent, Colorado rivet water, including water delivered through, the centraL Arizona project, or another source of surface water pursuant to chapter 4 of this title. --" 2. groundwater, effluent, Colorado river water, including water delivered through the central Arimna project, or another source of surface water for surface water. Section 17. If the act is not enacted into federal law by January 1, 2016, or the Little Colorado River Enforceability Date does not occur, without further action ofthe legislature, section 45-152 is amended to read: 45-152. Application for permit to appropriate water

A. Except"as otherwise prescribed by chapter 17, article 2 of this title, aAny person, including the United States, the state or a municipality, intending to acquire the right to the beneficial use of water, shall make an application to the director of water resources for a permit to make an appropriation ofthe water. The application shall state: 1. The name and address of the applicant. ;'
¥
,;".,-

2. The water supply from which the appropriation is applied for. 3. The nature and amount of the proposed use. 4. The location, point of diversion and description of the proposed works by which the water is to be put to beneficial use. 5. The time within which it is proposed to begin construction of such works and the time required for completion of the construction and the application of the water to the proposed use. B. The application also shall set forth: 1. If for agricultural purposes, the legal subdivisions of the land and the acreage to be irrigated. 2. If for power purposes, the nature of the works by which power is to be developed, the pressure head and amount of water to be utilized, the points of diversion and release'of the water and the uses to which the power is to be applied. 3. If for the construction ofa reservoir, the dimensions and description of the dam, the capacity of the reservoir for each foot in depth, the description of the land to be submerged and the uses to be made of the impounded waters.

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07112110

27

4.·Jf for municipal uses, the population to be served, and an estimate of the future population 5. Ii for mining purposes, the location· and character of the mines to be served and the methods of supplying and utilizing the waters. 6. If for recreation or wildlife, including Esh, the location and the character oftne"area to be used and the specific purposes for which such area shall be used. C. The applic3.tion shall be accompanied by maps, drawings and data prescribed by the director. Section 18. lfthe act is not enacted into federal law by January 1,2016, or the Little Colorado River Enforceability Date does not occur, without further action of the legislature, section 45-156 is amended to read:

§ 45-156. . Legislative authorization for appropriation of water to generate power; change in use
A. An application for appropriation of waters of a stream within the state for generating electric energy in excess oftwenty-five thousand horsepower, or an application for a permit to build a dam for generating hydroelectric energy on a stream within the state in excess of twenty-five thousand horsepower, shall not be approved or granted unless authorized by an act of the legislature. B. Except as otherwise prescribed by this section and chapter -17, article 2 pfthis title, a change in the use of water appropriated for domestic} muniCipal or irrigation uses shall not be made without approval of the director, and if the change contemplates generating hydroelectric energy or power of over twenty-five thousand horsepower, approval shall not be granted unless authorized by an act of the legislature. C. The provisions of subsections A and B requiring legislative authorization for the appropriation or use of water to generate electric energy in excess oftwenty-five thousand horsepower and for the building of a dam for generating hydroelectric energy in excess of twenty-five thousand horsepower shall not apply to the generation of electricity by facilities constructed prior to January 1, 1985 as part of a federally authorized reclamation project or by an agricultural improvement district organized pursuant to title 48, chapter 17. D. Subsection C shall not affect the priority dates for facilities constructed prior to January 1, 1985, or the following components and appurtenant works:

1. New Waddell dam.
2. Cliff dam.

11331381.12 07112110

28

3. Increase in storage capacity of Roosevelt dam. 4. Modification of Stewart lilmmtain dam. by subsection B is not grounds for enjoining a prE'o'ibusly effected'change in use, does r:at in the abandorunent or forfeiture of the associated water right and does·-rtot result in the assigltInent of a later date of priority for that right, provided that a change in use shall net be recognized if the director has denied em application for such change prior to January 1, 1995. If there is no application pending orifthe director has taken no final action with respect to a change in use effected without the director's approval, a court of competent jurisdiction may approve, modify or deny the change in use in order to complete an adjudication of water rights pursuant to article 9 of this chapter. Section 19. lfthe act is riot enacted into federal law by January 1,2016, or the Little Colorado River Enforceability Date does not occur, without further action of the legislature, section 45-161 is amended to read:

E. The failure to obtain the approval of the director ?s

§ 45-161.

Applications for reservoir permits; secondary permits for water

45 -161. Applications for reservoir permits; secondary permits for water A. Except as otherwise prescribed by chapter 17, article 2 of this title, aApplications for' reservoir permits shall be governed by this article, except that the lands proposed to be irrigated from the works need not be enumerated in the primary permit.

h.-••

.....

B. The person proposing to develop the supply of water or to complete the necessary works shall file an application for a primary permit that sets forth the plans and specifications for construction of the reservoir and associated diversion or delivery works, if any. On completion of construction or development of the supply of water, the . holder of the primary permit shall file a notice of completion with the director.
C. The person proposing to apply to a beneficial use the water stored in such reservoir shall file an application for a secondary permit, which shall refer to the reservoir as the supply of water and shall show that a written agreement has been entered into with the owners of the reservoir for a permanent interest in the reservoir sufficient for the purposes set forth in the application. When the beneficial use has been perfected under the secondary permit, the director shall issue to the holder of the secondary permit a final certificate of appropriation that describes both the conduit described in the secondary permit and the reservoir described in the primary permit. D. If the development of the supply of water and the completion of the proposed works are to be undertaken by the same person proposing to apply the water to a beneficial use, the person shall file a single application for a reservoir permit. In processing an application filed pursuant to this subsection, the director shall not issue separate primary and secondary permits but shall issue a single reservoir permit for the development of the

11331381.12 07112/10

29

supply of "",rater, construction of the proposed works and application of the water to a beneficial use. When the beneficia! use has been perfecte,ct under the reservoir permit, the director shall issue to the holder of the reservoir penuit a final certificate of appropriation. that describes both the conduit and the reserioii described in the reservoir permit. E. If at any time it appears to the director, after an that the holder of the primary permit win not or cannot within a reasonable period develop the suppfy Qf'.c water or complete works, the director may, upon application of the holder of the secondary permit, permit such holder joint occupancy and use under the primary permit with theholder oftht primary permit to the extent deemed advisable by the director, but such applicant shall pay to the holder of the primary permit a pro rata portion of the total cost ofthe works, which shall be based on the proportion of water used by the original and the additional users of such works. F. Nothing in this section or in section 45-257, subsection B, paragraph 1, shall be construed as modifying the law of priority or the requirement of section 45-141, subsection g, that beneficial use shall be the basis, measure and limit to the use of water. G. Section 45-114, subsections A and B govern administrative proceedings, rehearing or review and judicial review of final decisions of the director under this section. lfthe act is not enacted into federal law by January 1,2016, or the Little Section 20. Colorado River Enforceability Date does not occur, without further action of the legislature, section 45-172 is amended to read:

§ 45-172.

Transfer of water rights; application; limitations; required consent

A. Except as otherwise prescribed by chapter 17, article' 2 of this title, aAwater right may be severed from the land to which it is appurtenant or from the site of its use if for other than irrigation purposes and with the consent and approval of the owner of such right may be transferred for use for irrigation of agricultural lands or for municipal, stock watering, power and mining purposes and to the state or its political subdivisions for use for recreation and wildlife purposes, including fish, without losing priority theretofore established, subject to the following limitations arid conditions: . 1. Except as otherwise provided in this section no such severance or transfer shall be made unless approved by the director, and the approval of the director shall prescribe the ' conditions of the approval. 2. Vested or existing rights to the use of water shall not be affected, infringed upon nor interfered with, and in no event shall the water diverted orused after the transfer of such rights exceed the rights existing atthe time of severance and transfer, and the limit the to be diyerted, or used director shall annually subsequent transfer. .,'.. . . '.' ,"

11331381.12 07112110

30

-, 3. The water right:; s.o:ught to be transferred shall have been lawfully perfected under the state of Arizona a.ild shall not have been forfeited or laws of the territory or abandoned. 4. No such severance or transfer of water rights shall be permitted or allowed from lands within the exterior boundaries of any irrigation district, agricultural imF0VfO>ment district or water users' association without first having obtained the written consent and approval of such irrigation district, agricultural improvement district or water users' association. 5. No right to the use of water on or from any watershed or drainage area which supplies or contributes water for the irrigation of lands within an irrigation district, agricultural improvement district or water users' association shall be severed or transferred without the consent of the governing body of such irrigation district, agricultural improvement district or water users' association. All proposed applications for the seVerance and transfer of a right to use water of or from any watershed or drainage area which supplies or contributes water for the irrigation of lands within any irrigation district, agricultural improvement district or water users' association shall be submitted to the governing body of such irrigation district, agricultural improvement district or water users' association prior to the filing of such application with the director. Within forty-five days after the receipt of the application such governing body shall reject or approve the proposed application. Failure of such governing body to approve or reject the proposed application within forty-five days after receipt shall constitute approval of the proposed application by such governing body. No application for the severance or transfer of a right to the use of water of or from any watershed or drainage area which supplies or contributes water for the irrigation of lands within any irrigation district, agricultural improvement district or water users' .association shall be accepted for filing by the director unless accompanied by the written consent of the governing body of such irrigation district, agricultural improvement district or water users' association to the proposed application or by satisfactory evidence that such governing body failed to either accept or reject the proposed application within forty-five days after receipt by such governing body. 6. A severance and transfer of an irrigation water right appurtenant to lands within the boundaries of an irrigation district to other lands within the boundaries of the same irrigation district for agricultural use may be accomplished by the exclusion of lands to which a water right is appurtenant from within the boundaries of an irrigation district, and the inclusion in lieu of other lands within the boundaries of such irrigation district. Such severance and transfer of a water right shall require the consent of only the irrigation district within which the affected lands are situated and of the owners of the lands affected by the severance and transfer. No proceedings before nor approval by the director shall be required to accomplish such severance and transfer. 7. An application for severance and transfer of a water right shall be filed with the director. The director shall give notice of the application by publication once a week for three successive weeks in a newspaper of general circulation in the county or counties in which the watershed or drainage area is located. The notice shall state that any interested person may file written objections to the proposed severance and transfer with the

11331381.12

071\2/10

31

director witl)..in thirty days after the last publication of the notice. In appropriate Cases, including cases in which an objection hag,jeenfiled, an administrative hearing may be the director's decision on the applicatinn if the deems a hearing held necessary.

B. Section 45-114, A and B govern administrative proceedings, rehearing or review and judicial review offinal decisions of the directc,: under this section.

Section 21. If the act is net enacted into federal law by January 1,2016, or the Little Colorado River Enforceability Date does not occur, without further action of the legislature, section 45-453 is amended to read: 45-453. Groundwater rights and uses in areas outside active management areas; amounts; transportation; irrigation non-expansion areas In areas outside of active management areas, a person may: 1. Withdraw and use groundwater for reasonable and beneficial use, except as provided in article 8.1 of this chapter, and chapter 17 of this title. 2. Transport groundwater pursuant to articles 8 and 8.1 of this

3. Use groundwater for irrigation purposes within the exteriQrboundaries of an irrigation non-expansion area only pursuant to article 30f this chapter. . Section 22. If the act is not enacted into federal law by January 1, 2016,.orthe Little Colorado River Enforceability Date does not occur, without further action of the legislature, section 45-592 is amended to read: . 45-592. Wells in general

A. A person rp.ayconstruct, replace or deepen a well in this state only pursuant to this article and section§A5-834.01 and 45 2850. The drilling of a well may not begin until all 45 2850, as applicable, are met. requirements of this article and

B. The director may Cidopt temporary rules to allow a person to construct, replace or deepen a well prior to the adoption of final rules pursuant to this article.

11331381.12
07/12/10

32

It

STAN

:-7(
(

noll

Legend
Major Stream Reservation Lands in the LCRAdjudication Area Three-Canyon Area Watersheds

o

A
5
10

N

Q
.

@

ARIZONA
OfWAT£R REsouRcES
ilEP.'

15

o

Exhibit 3.1.134 Three-Canyon Area Map

Bilscm:lp: 1:500.000 USGS Topogtaphic Map

N

Legend
--rv-- Little Colorado River

o _I:=:==10 _ 5

A
15 20 25 c:::===-_Miles

o

Reservation Lands in the LCR Adjudication Area Upper LCR Watershed

Exhibit 3.1.141
Upper LCR Watershed Map

Bascm::lp: I:500,000 USGS Topographic M:lop

a. ro 2

H-V'----/

:c

u

a. a.

g>

C> C>

...... ......

/.:.

",.

Exhibit - - - Zone S Map Tuba City/Moenkopi, Arizona May 27,2010

I
I

Navajo Allotmeni 010034 Water Right Abstract of Groundwater and Surfac WATER RIGHT NUMBER:'Navaja Aliotment 010034 WATER RIGHT HOLDER: United States in trust for heirs ofRost STATEMENT OF CLAlMANT#: Right _ Water Sourres' .Underground Waters

ers of unnamed . Puerco, a tributary ;ver Notes

Icrigated acres served Households served Animal Units served Impoundments served (0.2 acre surface area) Total Annual Diversion Total Annual Depletion Place of Use: Beneficial Uses:

2 1

16

2
3

4

Diversion location Priority date: September 15, 1909 Claim Basis: Federal Reserved Right devolved from Dawes Act, as amended Little Colorado River Ad·udication Court Ri ht Reasonable amount of groundwater diversions not to e . in the vicinit under a settlement ter mana em Notes

5
6

ounts allocated to similarly situated non-Indians

2

3

4

5

ent Application for Lands Outside of Any Reservation, Rosteen-I-whushnt of Lands in Severalty to Indians on the Various Reservations, and to of the United States and the Territories over the Indians, and for Other Stat 388 ude use of unnamed spring within the allotment, as identified on June 10, 1915, by al Agents Follen and Keran.

s

Ext Purposes. Groundwater' 1 General Land Offie

April 1,2010; C. Banet; Bureau oflndian Affairs Albuquerque

NavajoAlIotment 010036 .. Water Right Abstract ofOroundwater and Surfa WATgR RIGHT NUMBER: Navajo Allotment 0 W ATbK RIGHT HOLDER.: United' States in trust for heirs of Not STATEMENT OFCLAIMANT#: [iederal Right '0" : Water Sources Underground Waters

Notes Irrigated acres served Households served Animal D.nits served Impoundments served (0.2 acre surface area Total Annual Diversion Total Annual Depletion Place of Use: Beneficial Uses:

2

16
1.8 acre-feet .9 acre-feet .. allotment watering

z
3 4

Diversion location Priority date: September 15, 1909 Claim Basis: Federal Reserved Right devolved from Dawes Act, as amended Little Colorado River Ad 'udic Reasonable amount of ground Indians in the vicinity under
Notes

5

s

unts allocated to similarly situated nont Ian

2

3

4 5 6
ment A plication for Lands Outside of An Reservation, Notah, a licant. . ent of Lands in Severalty to Indians on the Various Reservations, and to aws ofthe United States and the Territories over the Indj!\ns; and for Other 24 Stat 388 . .

April 1,2010; C. Banet; Bureau of Indian Affairs Albuquerque

Navajo Allotment 010040 Water Right Abstract of Groundwater WATER RIGHT NUMBER: Navajo Allotrr,cnt 010040 WATER RIGHT HOLDER: United States in trust for of Kid-e STATEMENT OF CLAIMANT#: Federal Reserved Right
Water Sources Irrigated acres served Households served Total Annual Diversion Total Annual Depletion Place of Use: Beneficial Uses: Diversion location

5
B

Notes
}

I 2

3

4
5 S 7

t bein arable) , R28E with reference to the Gila & Salt River tent number 783793 dated November 26, 1920; 40 lication for Lands Outside of Any Reservation Na-gle-ha-dez-bah ,

ribing improvements to include "a cultivated field" (area Agents Keran and Follen to Commissioner, General Land Office

April 1, 2010; C. Banet; Bureau ofIndian Affairs Albuquerque

Navajp Allptment 010041 . Water Right Abstract of Groundwater WATER RlGHT NUMBER: Navajo Allotment 010041 . . WATER RlGHTHOLpER: Unjted States in STATEMENT Of CL.A.IMANT#: . . F{'denil Reserverl Right Water Sources Irrigated acres served Households served Total Annual Diversion Total Annual Depletion· Place of Use: Beneficial Uses: Diversion location Priority date: July 25, 1909 Claim Basis: Federal Reserved Right devolved from Dawes Act, as amended Little Colorado River Ad"udication Court Ri Reasonable amount of groundwater diversi similarly situated non-Indians in the vicini mana ement lan

Notes

2
3

4 5

s

ds in Severalty to Indians on the Various Reservations, and to d States and the Territories over the Indians, and for Other

April I, 2010; C. Banet; Bureau ofIndian Affairs Albuquerque

Navajo Allotment 010042 Water Right Abstract of Groundv:ater WA"fERRIGHT NUMBER: Navajo Allotment . WATER RIGHT HOLDER: United States in trust for heirs ot Beg· STATEMENT OF CLAIMANT#: Fec:leral Reserved Right .--=---.Underground Waters· Water Sources
Irrigated acres served 39.5 Households served I 88.07 acre-feet Total Annual Diversion Total Annual Depletion 79.29-feet Within allot Place of Use: Beneficial Uses: Househol Diversion location Place of Priority date: April 10, 1910 5 Claim Basis: Federal Reserved Right S devolved from Dawes Act, as amended Little Colorado River Ad 'udication Court Ri ht Reasonable amount of groundwater diversions not to exceed amounts all situated non-Indians in the vicinity under a wafer.m=a::,:n;::a;;;,.ge::.:ffi=en:::.:-==--Notes

---.J

2

4

, R28E with reference to the Gila & Salt River nt number 791200 dated January 21,1921; Bureau . utside of Any Reservation Begashi-nalkadi,

5

s
7
of June 9, 1915 to the Commissioner of the US General Land .een cultivated" and that the original applicant, Begashi-nalkadi,

April 1. 2010; C. Banet; Bureau ofIndian Affairs Albuquerque

Allotment010043.
Water Right AQstractof Groundwater l\nd Surfac WATER RIGHT NillviBER:N::tvajo Allotment 010043 . WA'IER RIGHT HOLDER: United States in trust for heirs of Host .", ..-STATEMENT OF CLAIlVlANT#:

Federal Reserved Right
Water Sources

-----------------Undergroe::dWaters .

aters of urulamed . . '0 Puerco, a Colorado Notes

Irri ated acres served
Households served . Animal Units served Impoundments served (0.2 acre surface area Total Annual Diversion Total Annual De letion Place of Use: Beneficial Uses:

2 1. 12

1.8 acre-feet 0.. 9 acre-feet ithin allotment watering

2 3 4

5 6

Notes 1 2

3

4
not available nt of Lands in Severalty to Indians on the Various Reservations, and to . s of the United States and the Territories over the Indians, and for Other Stat 388 .

April I, 2010; C. Banet; Bureau ofIndian Affairs Albuquerque

Navajo Allotment 010050 Water Right Abstract of Groundwater and Surfac . WATeR RIGnT NUMBER: Navajo Allotment 010050 WATER HOLDER: United States in trust for heirs of Tz STATEMENT OF CLAlMANT#: I Federal Reserved Rigbt--------'-'--------------,j

I "Vater Sources
I I

Underground Waters

raters of unnamed '0 Puerco, a Colorado
1 Notes

Irri ated acres served Households served Animal Units served Impoundments served (0.2 acre surface area) Total Annual Diversion Total Annual Depletion Place of Use: Beneficial Uses:

2
16

1.8 acre-feet ·0.9 acre-feet ithin allotment watering

2

3 4

5
6

Notes

2

3

4

nt Application for Lands Outside of Any Reservation by Na-ki-de-na,
6

nt of Lands in Severalty to Indians on the Various Reservations, and to ws ofthe United States and the Territories over the rndhins, and for Other 4 Stat 388

April I, 2010; C. Banet; Bureau of Indian Affairs Albuquerque

I
I

I Federal Reserved Right
Water Sources

Navajo Allotment 010053 Water Right Abstract of Groundwater and Surfac WATER RIGHT NUMBER: Allotment 010053 WATER RIGI HOLDER:. United States in trust for heirs of Yas . . . . STATEMENT OF CLAlMANT#:

'
Uriderground Waters aters of unnamed ·0 Puerco, a Colorado

Nctcs
Irriaated acres served Households served Animal Units served Impoundments served (0.2 acre surface area Total Annual Diversion Total Annual De letion Place of Use: Beneficial Uses:
2

16

1.8 acre-feet 0.9 acre-feet Within allotment watering

2 3 4
1

5 6

Notes
2

3

4

6

t Commissioner, General Land Office to Commissioner ofIridian Affairs pril23, 1910 as the date of application for this allotment, on behalf of y Nal-ja, arent of Yashie. Co y of alication is not available. ' , ment ofLands in Severalty to Indians on theVarious ReserVations, and to aws of the United States arid the Territories oVer the for Other '" ",', ," . 24 Stat 388 ' . ','

April I, 2010; C. Banet; Bureau ofIndian Affairs Albuquerque

Navajo Allotment 010068 Water Right Abstract of Groundwater WATER RIGfiT NlJrvlBER: Navajo Allotment 010068 WATER RIGHT HOLDER: United States for heirs ofYe-t Navaj 0 Indian STATEMENT OF CLAIMANT#: .. Federal Peserved Right Water Sources Irri ated acres served Households served Total Annual Diversion Total Annual De letion Place of Use: Beneficial Uses: Diversion location Priority date: March 26, 1920 Claim Basis: Federal Reserved Right devolved from Dawes Act, as amended Little Colorado River Ad 'udication Cou Reasonable amount of groundwater divers situated non-Indians in the vicini under a
Notes
2

Underground Waters

3 ear (90% of allotment bein arable) , R29E with reference to the Gila & Salt River atent number 741678 dated March 26, 1920; Bureau

4

5 6

April!, 2010; C. Banet; Bureau ofIndian Affairs Albuquerque

Navajo Allotment 010069
Water Right Abstract of Groundwater WATER RIGHT :N1.J1v1BER: Navajo Allotment 010069 WATER RIGHT HOL£ER: United States in trust for heirs of Ush. STATEMENT OF CLAIMANT#:

Federal Reserved Right Water 80urces
lrri ated acres served Households served Total Annual Diversion Total Annual Oe ·letion Place of Use: Beneficiai Uses: Diversion location Priority date: March 2.6, 1920 Claim Basis: Federal Reserved Right devolved from Dawes Act, as amended 27.5

1 61.44 acre-feet
55.32 acre-fee Within allot Household Place of
5 6

Little Colorado River Ad'udication Court Ri ht
Reasonable amount of groundwater diversions not to exceed amounts all :::=:=.::...rc=' Indians in the vicinit .under a settlement ement Ian----Notes
2

'milarlysituated non-

------'

3

4

year 70% of allotineiltbdhg irri able uarter)of Section· 18, T21N, R29E with dian allotment: Phoenix 010069; Patent number ernal allotment number: 310069

5 6

....
->i.. ....

April!, 2010; C. Banet; Bureau ofIndian Affairs Albuquerque

Navajo Allotment 010070 Water' Right Abstract of Groundwater and Surfac WATER. RIGHT Nm.1EER: Navajo Allotment 010070 WATER RIGHY'HOLDER: united States in trust fot heirs ofIntl-e STATEMENT OF CLAIMANT#: Federal Reserved Right Water Sources Ucderground Waters. aters of unnamed '0 Puerco, a Colorado Notes Irri ated acres served Households served Animal Units served Impoundments served (0.2 acre surface area) Total Annual Diversion Total Annual De letion Place of Use: Beneficial Uses:

2 1 16

1.8 acre-feet 0.9 acre-feet Within allotment k watering

2 3 4 1

5 6
"

t· .,.:

Notes
2

3

4

April I, 20 I0; C, Banet; Bureau of Indian Affairs Albuquerque

Wafer Right Abstract ofC]roundwater and Surfac
0 Allotment O.lD071 WATER RIGHT NUMBER: ViATER RIGHT HOLDER: Uniteu in trust for heirs of Host STATEMENT OF CLAIMANT#:-o '., '.. .., .

Navajo Allotment 010071

FeMral Reserved Right .. Water Sources

Underground Waters

I
Irrigated acres served Households served Animal Units served Impoundments served (0.2 acre surface area Total Annual Diversion Total Annual De letion Place of Use: Beneficial Uses:
20

aters 0t1,!11named '0 Puerco, it e Colorado Notes

10

1
1.8 acre-feet 0.9 acre-feet ithin allotment watering
2

3
4

5 6

Notes 2

,.
3

4

re-feet/year ear undwater): .00 acre-feet per year ce water: 0.9 acre-feet er ear vicinity ofthe E half of the SW quarter and the SW,quarter ofthe NW ith reference to the Gila & Salt River Meridian (118.29 acres). Indian 'number 741681 dated March 26, 1920; Bureau ofIndian Affairs internal not available ent of Lands in Severalty to Indians on the Various to ws of the United States and the Territories over the Indians,and for Other . ,. '. ',:' -." 24 Stat 3 8 8 '

5 6

April I, 2010; C. Banet; Bureau of Indian Affairs Albuquerque

Navajo Allotment 010072 of Groundwater and Surfac Water Right WATER RlGHT l'H..JMBER: Navajo Allotment 010072 WATER RlGHT HOLDER: United Sm:;:;::; in trust for heirs ofHe:st Indian STATEMENT OF CLAlMANT#: Federal Reserved Right Water Sources Underground Waters

Notes Irri ated acres served Households served Animal Units served Impoundments served (0.2 acre surface area) Total Annual Diversion Total Annual De letion Place of Use: Beneficial Uses:
2

.1
16

1.8 acre-feet .9 acre-feet ·n allotment watering

2 3 4

Diversion location: Priorit date: March 27, 1919 Claim Basis: Federal Reserved Right devolved from Dawes Act, as amended Little Colorado River Ad ·udicat" Reasonable amount of ground Indians in the vicinit under
Notes

5 6

ounts allocated to similarly situated nont

Ian

2

}

4

5 _ _-+6

not available ent ofLands in Severalty to Indians on the Various Reservations, and to ws of the United States and the Territories over the Indians, and for Other 4 Stat 388

April 1,2010; C. Banet; Bureau of Indian Affairs Albuquerque

Navajo Allotment 010316

Water Right Abstract of Groundwater Surfac WATER RlGI-I'f NUMBER: Navajo Allotment 010316 WAfER :RIGHT HOLDER: States i,-;. for heirs of Ja-tlo STATEMENT OF CLAIMANT#:

and

Federal Reserved Right Water Sources

Underground Waters

aters of unnamp:o." . 0 Puerco, a Colorado Notes

Irri ated acres served Households served Animal Units served Impoundments served (0.2 acre surface area Total Annual Diversion Total Annual De letion Place of Use: Beneficial Uses:

20

6

1.8 acre-feet 0.9 acre-feet Within allotment k watering

2 3 4

1

5, .6

Notes
2

3

4

se(groun ter): 0.08 oundwater .. .00 acre-feet per year ace water: 0.9 acre-feet erear and theNW quarter of the SE quarter of Section 22, T21N, R28E with eridian (80 acres). Iridian allotment: Phoenix 0 10316; Patent number eau pfIndian Affairs iriternal allotment number: 310316 pplication for Lands Outside of Any Reservation, Ja-tloly-bega, applicant. nt of Lands in Severalty to Indians on the Various Reservations; and to s of the United States and the Territories over the Indians, and for Other ..... . . .' Stat388 . ,
. .
.....

7

cial Agents C. C. Keran and C. F. Follen, in a "Fa\'orableRep9rt'.' (Departni.ent of ce form 4-480a) for allotment 010316 stated acres have been cultivated, value

Aprill, 20\0; C. Banet; Bureau of Indian Mfairs Albuquerque

Navajo Ailotment 010318
Water Right Abstract ofG!oundwarer and Surfac WATER RIGHT NUMBEr-.: Navajo. Allotment 0 10J i8WATER RIGHT HOLDER: United States for heirs of Sam STATEMENT OF CLAlMANT#: (. Underground Waters

I Fe.deral Reserv_e_d_Ri_'=g'_il_t- - - - - - - - r - - - : - - - . Water Sources

Notes Irri ated acres served Households served Animal Units served Impoundments served (0.2 acre surface area) Total Annual Diversion Total Annual Depletion Place of Use: Beneficial Uses: 20

10

1.8 acre-feet 0.9 acre-feet Within allotment watering

2
3

4
1

5

6

;:,,:.

Notes
2

3

4

April I, 20 I0; C. Banet; Bureau of Indian Affairs Albuquerque

Navajo A,llQtment Water. Right Abstract of and Surfac WATER RIGHT NUMBER: Navajo Allotment 027961 . WATER RIGHT IIOL])ER: United States in trust fOl heirs of Naa1 STAT.CI':1£NT OF CLAlMANT#:' Federal Reserved Right Water Sources Underground Waters'. aters ofQr'.named i 0 Puerr.o, a , Colorado Notes Irri ated acres served Households served Animal Units served Impoundments served (0.2 acre·surface area Total Annual Diversion Total Annual De 1etion Place of Use: Beneficial Uses:

2
12

1.8 acre-feet

0.9 acre-feet
ithin allotment watering

2 3 4

5

Notes
2

3

4

Inchoate Water Diversib Indoor house, Livestock Irrigated garde Stock water im ou Water Depletion Indoor h use (groun Liv . ter): 0.1 oundwater . 0 acre-feet per year Ir ace water): 0.9 acre-feet er ear the NE quarter of the NW quarter of Section 27, T21N, R28E with re(erence , (120 acres). Indian allotment: Phoenix 027961; US Patent number 741640 ridian Affairs internal allotment number: 327961 .lication for Lands 'Outside of Any Reservation, Naalzhee Biye, applicant. Reservations, and to nt of Lands in Severalty to Indians on the . ()f the Unite4 lJ.nd the Territori¢s over.thl<. Ipgians, and for Other Sta1388' .... .... . ..... , .. ' ..' '., reed in his application ofJuly 29, 1915 that among improvements to the appliedId.

7

April I, 2010; C. Banet; Bureau of Indian Affairs Albuquerque

Navajo Allotment 027965 Water Right Abstract arid Sut-fac WATER RIGHT NUMBER: Navajo L\.llotment 027965 WATER RIGHT HOLDER: United States in trust ofDaill STATEMENT OF CLAlMANT#: r-:---Federal PJght Water Sources

-------r-------Underground Waters

ters of unnamed '0 Puerco, d e Colorado

. .:::-.

Notes Irri ated acres served Households served Animal Units served Impoundments served (0.2 acre surface area) Total Annual Diversion Total Annual Depletion Place of Use: Beneficial Uses:

2

4

1.8 acre-feet 0.9 acre-feet Within allotment watering

2 3

4
1

5 6

";:

.

.

Notes
2

3

4 5
6

ent of Lands in Severalty to Indians on the Various ReServations, and to ws of the United States and the Territories over the Indians, and for Other 4 Stat 388

April 1,2010; C. Banet; Bureau of Indian Affairs Albuquerque

..

-----------------------_.

Allotment
Water: Right Abstract of Groundwater and Smfac WATER-RIGHT NUMBER: NaVi:1jo Allotment 042351 . ViATER RIGHT HOLDFR united States in trust for heirs of ntiS Indian . ,i· .. STATEMENT OF CLAIMANT#:

Federal Reserved Right
Water Sources

---'----'-'-------------

Underground Waters

Notes Irri ated acres served Households served Animal Units served Impoundments served (0.2 acre surface· area Total Annual Diversion Total Annual De letion Place of Use: Beneficial Uses:

2
16

1.8 acre-feet 0.9 acre-feet ·n allotment watering

2
3

4

5
6

ounts alloc.ated to t Ian
Notes

situated non..

2

3

4

7

April I, 2010; C. Banet; Bureau ofindian Affairs Albuquerque

Navajo Allot,nent 049096
Water Right Abstract of Groundwater and Sl,'!"fac WATEl{ RlGHT NUMBER: Navajo 049096, '_ V,rA:rER RlGHT HOLDER: United States in trust for heirs offiost STATEMENT OF CLAIMANT#:
r

Federal Reserved-Right Water Sources Undergrounc. Waters

Notes Irri ated acres served Households served Animal Units served Impoundments served (0.2 acre surface area) Total Annual Diversion Total Annual Depletion Place of Use: Beneficial Uses: -

2
16

1.8 acre-feet 0.9 acre-feet Within allotment watering

2 3 4
I

5
6
.' "

:'.'

Notes 2

3

4

5
6
t of Lands in Severalty to Indians on the Various Reservations, and to Extend the ed States and the Territories over the Indians, and for Other Purposes. February 8, in her application of September 11,1920 that she had been planting com on the land

7

April 1,2010; C. Banet; Bureau ofIndian Affairs Albuquerque

Navajo AHQtm.ent 02265

..

rFederal Reserv
Water Sour

Water Right Acstract of GroUndwater end SurfaceWite.r WATER RIGHT NT BER: Navajo AllotlG.ent 02265 WATER RIGHT R: Upited States in trust for heirs a STATEMEN " NT#: . Waters'

.

Surface waters of Cedai' Wash, a tributary 6fthe Little Colorado River
Notes' Notes

Irrigat
Househo Animal Un Impoundment area Total Annual Diversion Total Annual Depletion Place of Use: Beneficial Uses:

7

7.8
Z

3 4 I

5.0 acre-feet 2.5 acre-feet Within allotment Stock watering

z
3

4

Diversion location Priority date: October 21, 1908 Claim Basis: Federal Reserved Ri devolved from Dawes Act, as arne

Place of use

5
B

Little Colorado Ad'udication Cour '.
Reasonable amount of groundwater div Indians in thevicinit under a settlement Notes Inchoate

2

Water Diversion

Indoor household use (groundwater): 0.29acr Livestock use (groundwater): 0.22 acre-feetly Irrigated garden/farm use (groundwater): 4.44 acre-fe Stock water im oundment surface water: 5.0 acr

3

Water Depletion

4

5

7
8

Indoor household use: 0.29acre-feetlyear Livestock use: 0.22 acre-feetlyear Irrigated farm use: 4.00 acre-feet per year Stock water im oundment surface water): 2.5 acre-feet er ear Located in NE quarter Section 10, T27N, R8E with reference to the Gila & Salt River Meridi Indi lll1 allotment: Phoenix 02265; Patent number 928780 dated January 11, 1924; Burea internal allotment number: 311098 October 21, 1908; Indian AIlotmentA lication for Lands Outside of Any Rei An Act to Provide'for the AUotment of Lands in Severalty to Indians on the Extend the Protection of the Laws of the United States and the Territorie pJ Februa 8, 1887. 24 Stat 388 Statement ofNoc-ki-es-ki, April 11, 1923 , Interpretation of aerial photogniphy

Sept 9, 2009; C. Banel; Bureau of Indian Affairs Albuquerque, NM

Navajo Allotment 02267 Water Right Abstract of and Surface WATER RIGHT Nill/BER: Navajo Allotment 02267 . ATER rJGHT R: United States intrust for heirs of Hoska-yah-p.n-Glie-son, a Navajo Indian

Underground Waters

Surface waters of unnamed Wash, a tributaries tributary of the Little Colorado River

Irrigated a Households se Animal Units served Impoundments served (0.2 11. area Total Annual Diversi Total Annual Depletio Place of Use: Beneficial Uses:

Z 3

4
I

0.8 acre-feet 0.4 acre-feet Within allotment Stock watering

z
3 4

Diversion location Priority date: October 21, 1908 Claim Basis: Federal Reserved Right devolved from Dawes Act, as amende Little Colorado' Ad 'udication Court Ri ht Reasonable amount of groundwater diversions not to e Indians in the vicinity under a settlement groundwater
Notes

5 B

2

3

4

5

s

Inchoate Water Diversion Indoor household use (groundwater): 0.29 acre-feet/ Livestock use (groundwater): 0.22 acre-feet/year Irrigated garden/farm use (groundwater): 4.44 acreper year Stock water im oundment (surface water): 1.0·acre-feet er year Water Depletion Indoor household use: 0.29acre-feet/year Livestock use: 0.22 acre-feet/year 'Irrigated farm use: 4.00 acre-feet per year Stock water im oundment (surface water: 0.5 acre-feet er year Located in lots one and two and the south half of the northeast quarter of section tw Range eight east with reference to the Gila & Salt River Meridian (160.43 acre 02267; Patent number 934197 dated March 19, 1924; Bureau ofIndian Af . 302267 October 21, 1908; Indian Allotment Application for Lands Outside of Any allottee) a licant. An Act to Provide for the Allotment of Lands in Severalty to Indians on the Various Reservations, and to Extend the Protection of the Laws of the United States and the Territories over the Indians, and for Other Pur oses. February 8, 1887. 24 Stat 388

Sept 9, 2009; C. Banet; Bureau oflndian Affairs Albuquerque, NM

WATER RIGHT WATER RIGHT STATEMEN i Federal Reserv Water Sour

Navajo Allotment 02268 Water Right Abstract of Groundwater and Surface Water Bi:,R: Navajo Allotment 02263 R: United States i:l trust for heirs of Se-pi, a Navajo Inoian . NT#: . Underground Waters

···-:"-oS

Surface Waters of Cedar Wash, a tributary of the lIttle Colorado . River . .
Notes Notes

Iniga Househo Animal Un Impoundment area Total Annual Diversion Total Annual Depletion Place of Use: Beneficial Uses:

1

7 2 3 4 I

2 3 4 I

7.4 acre-feet 3.7 acre-feet Within aJIotment Stock watering

Diversion location Priority date: October 21, 1908 Claim Basis: Federal Reserved Ri ' devolved from Dawes Act, as ame Little Colorado Ad'udication Court Reasonable amount of groundwater div Indians in the vicinit under a settlement
Notes I

Place of use

5
S

2

3

4

5
B

7

Inchoate Water Diversion Indoor household use (groundwater): 0.29acre Livestock use (groundwater): 0.22 acre-feet/y Irrigated garden/farm use (groundwater): 4.44 acre-fe Stock water im oundment surface water): 7.4 acr Water Depletion Indoor household use: 0.29acre-feet/year Livestock use: 0.22 acre-feet/year Irrigated farm use: 4.00 acre-feet per year Stock water im oundment (surface water :3 .7 acre-feet er ear Located in lots three and four and the south half of the northwest quarter of section 2 in Tow Range 8 east with reference to the Gila & Salt River Meridian (160.52 acres). Indian allo . Patent number 934198 dated March 19, 1924; Bureau ofIndian Affairs internal allo October 21, 1908; Indian Allotment Application for Lands Outside of Any Res father of allottee a licant. An Act to Provide for the Allotment of Lands in Severalty to Indians on t s Reservations, and to Extend the Protection of the Laws of the United States and the Territories the Indians, and for Other Pur oses, February 8,1887, 24 Stat 388 Interpretation of aerial photography

Sept 9.2009; C. Banet; Bureau of Indian Affairs Albuquerque, NM

Navajo Allotnient 02269 Water Right and Surface Water WATER RIGHT Nillvf:3ER: Allotment 02269 ". WATER PJGHT H R: United States in trust for heirs of Ath-ke-nuz-pah, a Navajc Iridian STATEMEN NT#: --,-_ _--, Federal Rescrv Water Sour . Underground Waters Surface Waters of Cedar Wash, a . tributaries of the Little Colorado River and unnamed of Cedar Wash
Notes Nctes

Irrigate Househol Animal Units Impoundments served (0.2 acre s area) lotal Annual Diversio n, Total Annual Depleti(j Place of Use: Beneficial Uses;

z
3 4

0.8 acre-feet 0.4 acre-feet Within allotment Stock watering

2 3 4

Place of use

5
B

Notes

I 2

3

4
5 S

Inchoate Water Diversion Indoor household use (groundwater): 0.29acreLivestock use (groundwater): 0.22 acre-feet/year Irrigated garden/farm use (groundwater): 4.44 acrel Stock water im oundment surface water: 0.8acre-fl Water Depletion Indoor household use: 0.29acre-feet/year Livestock use: 0.22 acre-feet/year Irrigated farm use: 4.00 acre-feet per year Stock water im oundment surface water): 0.4 acre-feet er ear Located in northeast quarter of section lOin Township 27 north, Range 8 east with refer River Meridian (l60 acres). Indian allotment: Phoenix 02269; Patent number 92878 Bureau ofIndian Affairs internal allotment number: 302269. October 21, 1908; Indian Allotment Application for Lands Outside of Any father of allottee) a licant. An Act to Provide for the Allotment of Lands in Severalty to Indians on th arious Reservations, and to Extend the Protection of the Laws ofthe United States and the Territories over the Indians, and for Other Purposes. February 8, 1887.24 Stat 388

Sept 9, 2009; C. Banet; Bureau of Indian Affairs Albuquerque, NM

Navajo 02270 Water of Groundwater and Surface Water \1fATER RIGHT N1J_ BER: Navajo Allotment 02270 WATER RIGHT FR: Dnited States in trust for heirs ofBit-ten-net-des-pah, a Navaj0 . Illdiail .. .

Underground Waters

Surface Waters ofCampbeU Francis Wash, a tributary bfthe Little Colorado River, and unnamed tributaries of Campbell Francis Wash
Notes . Notes

2 3

4
I
Diversion location Priority date: October 21, 1908 Claim Basis: Federal Reserved Rig ht' devolved from Dawes Act, as amended Little Colorado River ad'udication Court Ri ht Reasonable atrlount of groundwater diversions notto e . Indians in the vicinit under a settlement oundwater
Notes

0.8 acre-feet 0.4 acre-feet Within allotment Stock watering

2 3

4
I

Place of use

5 S

I 2

3

4
5

S

Inchoate Water Diversion Indoor household use (groundwater): Livestock use (groundwater): 0.22 acre-feet/year Irrigated garden/farm use (groundwater): 4.44 acre-feet per year Stock water im oundment surface water): 0.8 acre-feet per ear Water Depletion Indoor household use: 0.29 acre-feet/year Livestock use: 0.22 acre-feet/year Irriga,ted farm use: 4.00 acre-feet per Year Stock water im oundment (surface water.: 0.4 acre-feet er ear Located in southwest quarter of section 10 in Township 27 north, Range 8 east . River Meridian (160 acres). Indian allotment: Phoenix 02270; Patent num Bureau ofIndian Affairs internal allotment number: 302270. October 21,1908; IndianAliotment Application for Lands Outside of Any father of allottee ap licant. . An Actio'Provide for the Allotment of Lands in Severalty to Inqi;ms on' the Various Reservations, and to and for Other Extend the Protection of the Laws of the United States and the Territories over the Pu oses. Februa 8, 1887.24 Stat 388

Sept 9, 2009; C. Banet; Bureau ofIndian Affairs Albuquerque, NM

Navajo Allotment 02271 Water Right Abstract of Groundwater and Surface Water WATER RIGHT NUMBER: Navajo 02271 WATER RIGHT F·, R: United States in trust for heirs of Roska-e-ka-des-wood, a Navaj 0 Indian

Underground Waters

Surface Waters of unnamed tributaries of Cedar Wash, a tributary of the Little Colorado River
Notes Notes

Irrigated a Households s Animal Units serve' Impoundments served (0.2 ac area) Total Annual Diversi Total Annual Depletio Place of Use: Beneficial Uses:

I

2 3 4 I

0.8 acre-feet 0.4 acre-feet Within allotment Stock watering

2 3 4
I

Place of use

5
B

..

Notes

2

3

4
5

s

Inchoate Water Diversion Indoor household use (groundwater); Livestock use (groundwater): 0.22 acre-feet/year Irrigated garden/farm use (groundwater): 4.44' acre-fi per year Stock water im oundment (surface water: 0.8 acre-feet Water Depletion Indoor household use: O.29acre-feet/year Livestock use: 0.22 acre-feet/year Irrigated farm use: 4.00 acre-feet per year Stock water im oundment (surface water): 0.4 acre-feet er ear Located in southeast quarter of section 10 in Township 27 north, Range 8 east with River Meridian (160 acres). Indian allotment: Phoenix 02271; Patent number 9 Bureau ofIndian Affairs internal allotment number: 302271. October 21, 1908; Indian Allotment Application for Lands Outside of An' father of allottee) a licant. An Act to Provide for the Allotment of Lands in Severalty to Indians on the Various Reservations, and to Extend the Protection of the Laws of the United States and the Territories over the Indians, and for Other Pur oses. Febru 8, 1887. 24 Stat 388

Sept 9, 2009; C. Banet; Bureau of Indian Affairs Albuquerque, NM

Navajo Allqbnent 02:272 Water Right Abstract ofGroun<;iwater and Surface Water WATER RIGHT NTJ1y[BER: :t-Tavajo 02272 _ ' , , WATER RIGHT, R: Staies in trust for heirs ,of Hoska-di-eth-del-e-wood, a Navajo Indi:d.eli-rigation Projects

Shonto Be ashibito· Be ashibito Dinnebito Oraibi Polacca

102 388 320 236 260
575

I

No Yes No No No No No No

We

0

388

Jeddito

11243994.1

EXHIBIT 5.L1.2.B
All Hopi Designated Historic Irrigation Prujects

Bep;ashibito Dinnebito Dinnebito Oraibi Polacca Polacca We 0 Ieddito 350 350 446 388 144

No No No No
Yes

11244008.\

EXHIBIT 5.1.1.2.C Joint Navajo-Hopi Designaied Historic Irrigation Projects

Moenkopi Dinnebito Oraibi Polacca Polacca Lower Dinnebito Oraibi Delta Polacca Delta

These Navajo and Hopi acreages are based on the Bureau ofIndian AffaiFs Land Use Permit maps dated 1956. These numbers may be altered by mutual agreement of the Tribes in the event ofim roved information.

*

11244037.1

Hydrologic Unit

15020011

;

Exhibit 5.1.1.20 Designated Historic Irrigation Project General Location
All-Hopi Designated Project All-Navajo Designated Project Joint Navajo-Hopi Designated Project Irrigated lands (BfA 2001) within Designated Project

W&&1%1

- - - - Managed Washes

Exhibit 5.1.2.1 Peabody Permanent Mining Structures (list may be modified by mutual consent of the Tribes)
.

POND ID J16-A J16-G J16-L J19-RE3 J1-RA J1-RB J21-A J21-C J21-1 J27-RA J27-RB J27-RC J2-A J3-D J3-E J3-G J7-DAM J7-JR N10-A1 N10-D N10-G N11-A N11-G N12-C N14-D N14-F N14-G N14-H N5-A N6-L N7-D N7-E N8-RA TPF-D TPF-E N1-RA N2-RA N2-RB N2-RC

LONGITUDE (D:M:Sl
110° 18'58.906" W 110° 18' 58.906" W 110° 19' 9.961"W 110 17' 6.136" W 110 22'42.279" W 110° 23' 16.584" W 110 14' 43.472" W 110° 15' 28.653" W 110 17' 33.486" W 110° 22' 46.847" W 110° 22' 45.293" W 110° 23' 1.599" W 110° 25' 45.010" W 110 24' 3.941" W 110 23' 33.516" W 110 25' 16.584" W 110° 23' 24.561" W 110 19' 37.320" W 110° 22' 37.336" W 110 23' 11.851" W 110° 21' 53.491" W 110° 23' 5.077" W 110° 21' 42.888" W 110° 23' 13.966"W 110° 19'44.151"W 110° 18' 32.374" W 110° 18' 10.871" W 110 17' 31.102" W 110° 24' 55.891" W 110° 23' 58.009" W 110° 25' 56.572" W 110° 25' 37.466" W 110 26' 20.836" W 110° 26' 54.600" W 110 0 26' 10.607" W 110° 24'27.176" W 110° 23' 46.557" W 110° 23' 37.998" W 110° 23' 3.285" W
0 0 0 0 0 0 0 0 0 0 0

LATITUDE

Capacity (AFl

lD:M:S\
'36° 29' 47.774" N 36° 29' 47.774" N 36 28' N 36° 27' 8.571" N 36° 30' 9.357" N 36° 29' 35.745" N 36° 26' 22.485" N 36° 25' 58.694" N 36° 23' 58.018" N 36° 27' 10.286" N 36° 26' 58.420" N 36° 27' 7.050" N 36 29' 9.226" N 36° 28' 17.384" N 36 28' 54.093" N 36° 27' 55.534" N 36° 25' N 36° 26' 9.661" N 36° 32' 48.873" N 36° 32' 26.029" N 36° 33' 25.669" N 36° 32' 21.179" N 36° 32' 24.864" N 36° 32' 9.073" N 36° 30' N 36° 30' 36.124" N 36° 30' 45.231" N 36 31' 7.318" N 36° 31' 18.217" N 36 31' 57.128" N 36° 32' 36.714" N 36° 32' 33.761" N 36° 33' 40.023" N 36° 32' 14.291" N 36 0 32' 0.352" N 36° 32' 20.123" N 36° 32' 22.128" N 36° 33' 11.835" N 36° 33' 45.598" N Total
0 0 0 0 0

Capacity Source 1 1 1 2 Not Yet Designed Not Yet Designed 1 1 2 1 1 1 1 1 1 1 1 1 1 1 3 1 1 1 1 1 1 1 1 1 1 1 1 1 1 4 1 4 4

=

26 368 274 87 29 17 20 19 3 1 7 175 18 20 302 431 713 16 14 19 17 17 20 525 81 183 213 15 20 559 17 18 15 19 1133 83 83 170 5987

(1) (2) (3) (4) (5)

PWCC 2005 Inspection Summary Report Design Capacity Design Runoff Capacity Estimate PWCC 2003 Inspection Summary Report Also designated N1-RB

EXHIBIT 5.1.3.3 Aggregate Capacity of Surface Water Impoundments by Main Wash Drainage

Dinnebito Jeddito Moenkopi Oraibi Polacca

856 565 1116 877 1,129

184
133

2,597 215 704

Notes:
1) Data for Hopi Impoundments derived from Hopi Second Amended Statement of Claimant submitted on November 12, 2009. 2) Data for Navajo Impoundments from Navajo Nation from their hydrographic survey. 3) Capacity for all Impoundments calculated by: Length x Width x Depth x 0.4 = Capacity 4) Hopi and Navajo Impoundments within the Pueblo Colorado Wash Cottonwood Wash basin (designated by the USGS as Hydrologic Unit 15020011) and Hopi Impoundments within the Lower Little Colorado River sub-basin (designated by the USGS as Hydrologic Unit 15020016) are not included on this table because these basins and sub-basins do not contribute flows to the five Main Washes. 5) These numbers may be altered by mutual agreement of the Tribes in the event of improved information. . 6) This table excludes Peabody and Pasture Canyon Impoundments, sewage lagoons, and Impoundments permitted pursuant to Subparagraph 5.1.3.4 of the Northeastern Arizona Indian Water Rights Settlement Agreement.

11273512.\

Zuni River Area Historic Irrigati0!1
Facility Name: Water PJght Holder: Water Right Number: Statement of #:
... .
"

[at"Sou,",
Acres Served Total

Zuni River Area Historic Ir::gation Z,mi Tribe NiA remark 2) Zuni River flood waters

Data Source*

I

1,4

801 (see remark 3 ) Maximum historical beneficial use Maximum historical capacity Irrigation NE, S5, Tl4N,R28E plus other locations on various channels throughout S 6; Tl4N,R28E & S I,TI4N,R27E (see remark 4) S I, Tl4N,R27E (see remark 4) July through October (per 36-28627) . 1916 39-89022 and 36-28627 (see remark 2) 1. 2.
.

4

Diversiol1 Capacity Beneficial Use Diversion Location Use Locations Period of Use Priority Date Basis of Right Remarks:

j
1,4 1,4 1,4 4 1,4 1,4

3. 4. *Data Source 1=Statement of Claimant 2=ADWR Inventory of Water Uses 3= Silver Creek HSR 4= Other--See remarks

Data Source 4: 36-28627 and 1984 aerial photos of the Zuni River area 39-89022 was originally filed by Limited Partnership of Meadows Ranch, while 36-28627 was filed by H.B. Heap. Both are former owners ofland now owned by the Zuni Tribe. Acres served based on measurements from aerial photo interpretation within section 1,TI4N,R27E(see remark 4). Diversion and Use Locations-aerial photos indicate a diversion point from the main channel of the Zuni River in the NE, section 5, T14N,R28E upstream of the irrigated area. Claim 39-89022 indicates and aerial photos verify that the Zuni River water also spreads out into several channels or stringers in section 6,Tl4N,R28E and sections 1 & 2, Tl4N,R27E from which a network of several spreaders and headgates further spread out the water onto the land in these sections. This abstract covers irrigation only in section I,Tl4N,R27E owned by Zuni Tribe, and does not include claimed iuigation on land it leases from the State of Arizona in section 6,TI4N,R28E, and section 2,T14N, R27E.

-

.,.

..

'

-

..
"

.

,"

Zuni Meadows Area Acquisition Irrigation Diversions
Facility Name: Water Right Holder: Water RigM Number: Statement of Claimant #: Water Source(s) Acres Served Total Diversion Diversioil Capacity Zuni Meadows Area Historic Irrigation Diversions , Zun; Tribe DV 1,2,3,4, 5- & 6
' -

Data Source*

Beneficial Use Diversion Location(s)

Use Locations

Period of Use Priority Dates

.-

--

Basis ofRight Remarks:

*Data Source I=Statement of Claimant 2=ADWR Inventory of Water Uses 3= Silver Creek HSR 4= Other--See remarks

I 1,2,4'-1 Little Color::>':!o River (LCl\.), oiirizo Wash, Big Hollow Wash 1594 (see remarks 5) 12==i Maximum historical beneficial use DVl: West Side LCR -- 10.95 cfs DV2: East Side LCR -- 13.00 cts DV3: Big Hollow Wash -maximum historical capacity DV4: ' NOrtli Side LCR -- 2.00 cfs DV5: Carrizo Wash - maximum historical capacity DV6: North Side LCR-maximum historical capacity 1,2,4 Irrigation 1,2,4 DVl: NESE, 85, T13N,R28E (West side LCR) (see remark 3) DV2 : NESE,S5, Tl3N,R28E (East side LCR) (see remark 3) DV3: SWNW; S31,TI4N,R28E (Big Hollow Wash)(see remark 3) DV4: NWNW,S30, Tl4N,R28E LCR) (see remark 3) DV5: NENE, 824, TI4N,R27E (CarriZo Wash) (see remark 3) DV6: SESE, S24, TI4N,R27E (North side LCR) (see remark 3) 2,4 DVI & 2: S25,Tl4N,R27E; SI9,29,30,31,Tl4N,R28E (see remark 4) DV3: S25,Tl4N,R27E; S30,Tl4N,R28E (see remark 4) DV4 & 5: S13,23,24,TI4N,R27E (see remark 4) DV6: S23,24,TI4N,R27E (see remark 4) 4 April 15 to September 15 for decreed acres. Non-decreed acres receive water outside ,the irrigation season and during flood flows. 1,2,4 1881 for 170 decreed acres from LCR (rights #1918-13G & 131) 1882 for 15 decreed acres from LCR (right #1923-61A) 1882 for 80 decreed acres from LCR flood water (right #1923-6IB) 1884 for same 150 acres as right #1918-13G from LCR (right #1918-16C) 1916 for 30 decreed acres from LCR (right #1923-60A) 1916 for35 decreed acres from Big Hollow Wash flood water (right #1923-60B) 1916 (per 36-28628 & 28629) for remaining 1164 non-decreed acres from LCR 1940 for 100 acres from Carrizo Wash, per CWR 1174 1,2,4 Norviel Decree, CWR's 74,75,& 1174,39-89021,36-28628,36-28629 , & 'shares in S1. John:s Irrigation Company. 1. Data Source 4-Norvie1 Decree, CWR 74 (covers decreed right #60 A & B), CWR 75 (covers decreed right #61A & B), CWR 1174 (Carrizo Wash), 36-28628 & 3628629(LCR) and aerial photos of the Meadows area. 2. Acres served--.,jetennined by measuring irrigated areas shown on maps in Data Source 2. 3. Diversion locations are based on aerial photographs & USGS quad maps with guidance from Data Sources 1 & 2. Data Source 2 lists 3 diversions in NESE,S5,Tl3N,R28E; however, clahns and filings indicate only 2 diversions at this location. 4. This abstract includes irrigation uses on the former Platt & Wilhelm ranches but does not include claimed irrigation by the State on associated leased State land. 5. In addition to the above decreed rights, the Zuni Meadows area is also serv!=d by 322 shares of St. Johns Irr. Co. based on work sessions with St.Johns Irr. Co.

h

Zuni Hunt Name:.· Water Right Holder: Water Right Number: Statement of Claimant #:
Well Registration Number 55-600440 55-626054 55-626055 55-626056 55-626057

Irr!gation Wells Zuni Hunt Valley Large Irrigation WeBs Zuni Tribt
N/A N/A

Well Leg;:!.l Description SESE, S27,_ TI4N, R26E SESE, S6; TI4N, R26E NENE, S7, T14N, R26E SE, S18, TI4N, R26E SE, SI8,TI4N, R26E

(5d) Zuni abstracts HV [IT Wells final 06/06/02

Zuni Hunt Valley Area Irrigation Diversions-Surface Water
Facility Name: Water Right Holder: W:lter Right Number: of Claim?nt #: Source(s) Acres Served Total Diversion Diversion Capacilf Data Source* Zuni Hunt Valley Area Historic Irription Diversions-Surface Water Zuni Tribe DV 1,2?3,4, & 5 39-88868 & 39-8 7 094 (see remark 4J ,,;-r: 1 2 4 Little Colorado River fLCR), Co".d,.:> Creek , , 2,4 i 2493 (see remarks 2,6, & 7) . M.laims for Inj'JrY to Water Rights or Injury to Water for Water Quality, or g,ny other claims other than a Rights, against any tribe, community,· nation or dependent Indian community (as defined in 25 U.S.C § 450b(e)) or the United States on behalf thereof; and
3.1.9

Assert past, present, or future claims for Watc:r Rights to the Bill Williams River and its tributaries.

4.0

WAIVER EFFECTIVE UPON LOWER COLORADO RIVER ENFORCEABILITY DATE This Waiver and Release of Claims shall become effective upon the Lower Colorado River Enforceability Date.

5.0

COUNTERPARTS AND DUPLICATE ORIGINALS This Waiver and Release of Claims may be executed in one or more counterparts, each of which shall constitute an original, and all of which, when taken together, shall constitute one and the same instrument. This Waiver and Release of Claims may also be executed in duplicate originals, each of which shall constitute an original Agreement.

8

IN WI11-ffiSS WHEREOF; the United States and the Navajo Nation have executed this V.;aiver and Rc!ease of Claims datt;d as of the day and year first . written above.
THE UNITED STATES OF AMERICA
By:

Dated:- - - - - - - - - - - Secretary ofthe Interior
NAVAJO NATION

By:

Dated:- - - - - - - - - - Chairman Attest Approved as To Form: Attorney General _

9

EXHIBIT 14.1.3 'NAIVER AND RELEASE OF CLAIMS .FORWATEP RIGHTS, INJURY TO WATER RIGHTS AND INJ(JRY TO WATER QUALITY BY THE NAVAJO NATION ON BEHALF OF ITSELF AND ITS MEMBERS (BUT l\lEMBERS IN THEIR CAPACITY AS ALLOTTEES) AGAIL-TST THE UNITED STATES. This Waiver and Release of Claims dated as of , is entered into by the Navajo Nation, on behalf of itself and Members (but not Members in their capacity as Allottees), in consideration of the benefits realized under the Northeastern Arizona Indian Water Rights Settlement Agreement dated as of _______, in accordance with the commitments under Subparagraph 14.1.3 of said Agreement and pursuant to the authorization granted in Section _ of the Northeastern Arizona Indian Water Rights Settlement Act, P.L. _ _. 1.0 DEFINITIONS. 1.1
1.2

"Act" shall mean the Northeastern Arizona Indian Water Rights Settlement Act. "Agreement" shall mean the Northeastern Arizona Indian Water Rights Settlement Agreement and the Exhibits thereto. "Allottee" or "Allottees" shall mean a person or persons holding a beneficial real property interest in an Allotment. "Allotment" or "Allotments" shall mean an allotment or allotments: (1) originally allotted to an individual identified in the patent as a Navajo or Hopi Indian; (2) located within the exterior boundaries of the Navajo Reservation, within the exterior boundaries of the Hopi Reservation, or on Off-Reservation lands within Apache, Coconino or Navajo Counties, Arizona; and (3) held in trust by the United States for the benefit of an Allottee. "Central Arizona Project" or "CAP" shall mean the reclamation project authorized and constructed by the United States in accordance with Title III of the Colorado River Basin Project Act, 43 U.S.C. § 1521, et seq. "CAP Water" shall mean 'Project Water' as that term is defined in the CAP Repayment Stipulation. "Colorado River Compact" shall mean the Colorado River Compact

1.3 1.4

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of 1922, ratified and repril}!ed at Title 45, Chapter 7, Article 2 of the Arizona Revised Statutes. .1.8

"Diversion" shall mean the act of "Divert," "Diverting," and "Diverted" shall mean to receive, withdraw or develop and produce cr capture Groundwater, Surface Water, CAP Water, Colorado River water or Effluent by means of a ditch, canal, flume, bypass, pipeline, pit, collection .or infiltration gallery, conduit, Well, pump, turnout,. or other mechanical device or any other human act, including the initial impoundment of water. "Effluent" shall mean water that has been used for domestic, municipal or industrial purposes and that is available for use for any purpose, but water shall not become Effluent solely as a result of having been used for hydropower generation. "Exhibit" shall mean an exhibit to the Agreement as enumerated in subparagraph -3.2 thereof. "Gila River Adjudication" shall mean that action pending in the Superior Court of the State of Arizona in.and for the County of Maricopa styled In re the General Adjudication ofAll Rights· To Use Water in The Gila River System and Source, W-l (Salt),· W-2 (Verde), W-3 (Upper Gila), W-4 (San Pedro) (Consolidated). "Gila River Adjudication Court" shall mean the Superior Court of the State of Arizona in and for the County of Maricopa exercising jurisdiction over the Gila River Adjudication. "Gila River Adjudication Decree" shall mean and include any final judgment or decree entered by the Gila River Adjudication Court, including the judgment entered in substantially the same form as the form ofjudgment attached to the Agreement as Exhibit 3.1.54. "Groundwater" shall mean all water beneath the surface of the Earth within the State of Arizona that is not: (1) Surface Water; (2) Underground Water within the Upper Basin; (3) Lower Colorado River water; or (4) Effluent. "Hopi Reservation" shall for purposes of this Agreement, District 6, and all lands withdrawn by the Executive Order of Dec. 16, 1882 and partitioned to the Hopi Tribe in accordance with the Act of Dec. 22, 1974, Pub. L. 93-531, § 4, 88 Stat. 1713 (codified as amended at 25 U.S.C. § 640d-3), by Judgment of Partition, Feb. 10,
2

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Sekaquapt(Jwa, v. MacDonald, Case No. CIV-579-PCT-JAW (D.Axiz.), affirmed 026 F.2dl13 '(9th Cir. 1980); all lands recognized as part 'of the in the 1934-Act Case; and individual allotments made-tomelnbers ofth6Hopi Tribe v.'ithin those lands, all as more particularly set forth ontb-e map attached to the Agreement as Exhibit 3.1.61. . "' .

1.17

"Hopi Tribe" shall mean the Hopi Tribe, a Tribe of Hopi Indians organized under Section 16 ofthe Indian Reorganization Act of June 18, 1934, 48 Stat. 987 (25 U.S.C. § 476), and duly recognized by the Secretary. "Injury to Water Quality" shall mean any diminution or degradation of the quality of Water due to a change in the salinity or concentration of naturally occurring chemical constituents of Water and any effect of such a change where the changes in salinity or concentration and the effects of such changes are due to the withdrawal, Diversion or use of Water. "Injury to Water Rights" shall mean an interference with, diminution of, or deprivation of, Water Rights under Federal, State or other law. "LCR" shall mean the Little Colorado River. "LCR Adjudication" shall mean that action pending in the Superior Court of the State of Arizona in and for the County of Apache styled In re: the GeneralAdjudication of All Rights to Use Water in the Little Colorado River System and Source, CIV No. 6417. "LCR Adjudication Court" shall mean the Superior Court of the State of Arizona in and for the County of Apache exercising jurisdiction over the LCR Adjudication.. "LCR Decree" shall mean and include any final judgment or decree entered by the LCR Adjudication Court, including the judgment entered in substant.ially the same form as the form of judgment attached to the Agreement as Exhibit 3.1.76. "LCR Enforceability Date" shall mean the date on which the Secretary publishes in the Federal Register the statement of findings described in Section of the Act. "Lower Colorado River" shall mean the Colorado River downstream from Lee Ferry within the United States, including the reservoirs thereon. For purposes of this Waiver and Release of Claims, the
3

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term River" shall also .include: (1) all tributaries to or below Lee Ferry. other than the Lower Colorado River: that is tributaries located within the State; (2) allT Jnderground W hydrologically connected to the Lower .colorado Rlver; and (3) all Underground \Vaterthat is hydrologically connected to tributaries to the Lower Colorado River other than tributaries located within the states of Arizona and New J'vfexico. 1.26 ."Member" or "Members" shall mean any Indian, person or persons duly enrolled as a member or members of the Navajo Nation, or the Hopi Tribe, as applicable. ·1.27 "Navajo Fee Land" shall mean land; other than Navajo Trust Land, that as of the LCREnforceability Date is: (1) owned by the Navajo Nation, whether in its own name or through a related entity; and (2) located outside the exterior boundaries of the Navajo Reservation in Arizona. "Navajo Lands" shall mean, collectively, the Navajo Reservation, Navajo Trust Land and Navajo Fee Land. "Navajo Nation" shall mean the Navajo Nation, a body politic and federally-recognized Indian nation, 60 Fed. Reg. 9249, 9252 (Feb. 16, 1995), also known variously as the "Navajo Tribe," the "Navajo Tribe of Arizona, New Mexico & Utah" and the "Navajo Tribe of Indians" and other similar names, and includes all bands of Navajo Indians and chapters of the Navajo Nation. "Navajo Reservation," for purposes of this Waiver and Release of Claims, shall mean those lands in Arizona within the boundaries of the "Navajo Indian Reservation" .defined by the Act· of June 14, 1934, ch. 521, 48 Stat. 960; all lands withdrawn by the Executive Order of Dec. 16, 1882 and partitioned to the Navajo Nation in accordance with the Act of Dec. 22, 1974, Pub. L. 93-531, § 4, 88 Stat. 1713 (codified as amended at 25 U.S.C. § 640d-3), by Judgment of Partition, Feb. 10, 1977, Sekaquaptewa v. MacDonald, Case No. CIV-579-PCT-JAW (D.Ariz;), affirmed 626 F.2d 113 (9th Cir. 1980); all lands taken into trust as a part of the Navajo Reservation pursuant to section 11 of the Act of Dec. 22, 1974 (codified as amended at 25 U.S.C.§ 640d-10); and excepting all lands within the Hopi Reservation, all as more· particularly set forth on the map attached to the Agreement as Exhibit 3.1.104. In the caseof a conflict between this definition and Exhibit 3.1.104'to the Agreement, Exhibit 3.1.104 to·the Agreement shall control.
4

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"Navaja Trust Land" shall land outside the exterior boundaries of Navajo Reservation in Arizona as of the LCR En;orceability Date, is held in trust by the United fur the benefit of the Navajo Nation. mean lands located in Arizomloutside the exterior boundaries of both the Navajo and Hopi Reservations. "Paragraph" shall mean a numbered paragraph of this Waiver and Release of Claims, including all Subparagraphs in such Paragraph. "State" shall mean the State of Arizona. "Subparagraph" shall mean a numbered subparagraph of this Waiver and Release of Claims. "Surface Water" shall mean all water that is appropriable under Arizona law, other than appropriable water that is located within the Upper Basin of the Colorado River. "Underground Water" shall mean any water beneath the surface of the Earth, other than Effluent, regardless of its legal characterization . as appropriable or non-appropriable under State, Federal or other law. States" or "United States of America" in any given reference herein shall mean the United States acting in the capacity as set forth in said reference. When the term 'United States' or 'United States of America' is used in reference to a particular agreement or· contract, the term shall mean the United States acting in the capacity as set forth in such agreement or contract. "Upper Basin" shall mean 'Upper Basin' as defined in Article lI(f) of the Colorado River Compact. "Waiver and Release of Claims" shall mean this waiver and release of claims by the Navajo Nation and the United States, a copy of which is attached as Exhibit 14.1.3 to the Agreement. "Water" when used without a modifying adjective shall mean Underground Water, Groundwater, Surface Water, or Ef±1uent. "Water Right" shall mean any right in or to Underground Water, Groundwater, Surface Water or Effluent under Federal, State or other law.

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2.0

WAIVER AND RELEASE OF CLAIMS. 2.1 Except as provided in Paragraph 3.0 hereof, the Navajo 0n behalf of itself and its Members (but not Members in their capacity as Allottees), pursuant (0 the authorization set forth in Section _ of the Northeastern Arizona Indian Water Rights Settlement Act, shall execute a waiver and release ofany claim against the United States (or agencies, or employees of the United States) under Federal, State or other law for all: 2.1.1 Past, present and future claims for Water Rights for Navajo Lands arising from time immemorial and, thereafter, forever; 2.1.2 Past, present and future claims for Water Rights arising from time immemorial and, thereafter, forever, that are based upon aboriginal occupancy of land by the Navajo Nation, its Members or their predecessors; 2.1.3 Past and present claims for Injury to Water Rights and Injury to Water Quality for Navajo Lands arising from time immemorial through the LCR Enforceability Date; 2.1.4 .Past, present and future claims for Injury to' Water Rights and Injury to Water Quality arising from time immemorial and, thereafter, forever, that are based upon aboriginal occupancy of land by the Navajo Nation,. its Members, or their predecessors; 2.1.5 Claims for Injury to Water Rights and Injury to Water Quality arising after the LCR Enforceability Date for Navajo Lands resulting from the Diversion OJ; use of Water in a manner not in violation of the Agreement; 2.1.6 Past, present, and future claims arising out of or relating in any manner to the negotiation, execution, or adoption of the Agreement, an applicable settlement judgment or decree, or the Act; 2.1.7 Past, present and future claims for failure to protect, acquire or develop· Water Rights for or on behalf of the Navajo Nation and its Members arising from time immemorial and, thereafter, forever;

6

2.1.8 Claims in The Navajo Nation v. Ul1it€ States Department of d the Interior, No. CV-03-057-PCT-PGR,-pp.nding in the United States. District Court for the District- of Arizona, including all claims based upon the facts alleged in the complaintfiled in said action, except that claim which was dismissed without prejudice pursuant to Subparagraph 14 .23; and 2.1.9 Past, present, and future claims relating to failure to assert any claims expressly waived pursuant to Section _ of the Act. 3.0 RESERVATION OF RIGHTS AND RETENTION OF CLAIMS BY THE NAVAlO NATION ON BEHALF OF ITSELF AND ITS MEMBERS (BUT NOT NlEMBERS IN THEIR CAPACITY AS ALLOTTEES) AGAINST THE UNITED STATES. 3.1 Notwithstanding the Waiver and Release of Claims in Paragraph 2.0 hereof, the Navajo Nation and its Members (but not Members in their capacity as Allottees) shall retain any right to: 3.1.1 Subject to subparagraph 15.15 of the Agreement, assert claims of rights to water from the Upper Basin of the Colorado River for Navajo Lands; 3.1.2 Subject to subparagraph 15.9 of the Agreement, assert claims for injuries to, and seek enforcement of, the rights of the Navajo Nation and its Members under the Agreement or the Act, in any State court of competent jurisdiction or any Federal court of competent jurisdiction; 3.1.3 Assert claims for injuries to, and seek enforcement of, the rights of the Navajo Nation under the LCR Decree, the form of which is attached to the Agreement as Exhibit 3.1.76; 3.1.4 Assert claims for injuries to, and seek enforcement of, the rights of the Navajo Nation under the Gila River Adjudication Decree, the form of which is attached to the Agreement as Exhibit 3.1.54; 3.1.5 Participate in the LCR Adjudication to the extent provided in the Agreement;

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3.1.6 Participate in the Gila River Adjudication to the extent 1.1 8.3 of the Agreement; provided in

....

..

3.1.7 Except as provided in the Agreement, object to any c1,!:ims for Water Rights, Injury to Water Rights or Injury' toWatet Quality by or for any other Indian tribe, community, nation or dependent Indian community (as defined in 25 U.S.C § 450b(e)) or the United Siates on behalf thereof; 3.1.8 Except as provided in the Agreement, assert past, present, or future claims for Injury to Water Rights or Injury to Water Quality, or any other claims other than a claim for Water Rights, against any tribe, community, nation or dependent Indian community (as defined in 25 U.S.C § 450b(e)) or the United States on behalf thereof; and 3.1.9 Assert past, present, or future claims for Water Rights to the Bill Williams River and its tributaries. 4.0 WAIVER EFFECTIVE UPON LCR ENFORCEABILITY DATE This Waiver and Release of Claims shall become effective upon the LCR Enforceability Date. COUNTERPARTS AND DUPLICATE ORIGINALS This Waiver and Release of Claims may be executed in one or more couI).terparts, each of which shall constitute an original, and all of which, when taken together, shall constitute one and the same instrument. This Waiver and Release of Claims may also be executed in duplicate originals, each of which shall constitute an original Agreement.

5.0

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IN WITNESS WHEREOF, the Navajo Nation has executed this Waiver and Rel.:;;ase of Claims dated as of the day and year first written above. NAVAJO NATION

By: Dated:. _ - - - - - - - - - - Chairman Attest Approved as To Fotm: Attorney General _

_

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EXHIBIT 14.1.4 WAIVER AND RELEASE OF CLAIMS OF RIGHTS TO "YATER AND CLAIMS OF INJuRY TOIDGHTS TO WATER FROM THE LOWER COLORADO RIVERBY THE NAVAJO NATION ON BEHALF OF ITSELF ANnITS MEMBERS (BUT NOT MEMBERS IN THEIR CAPACITY AS ALLOTTEES) AGAINST THE UNITED STATES. This Waiver and Rdease of Claims dated as of , is entered into by the Navajo Nation, on behalf of itself and its Members (but not Members in their capacity as Allottees), and the United States on behalf of the Navajo Nation and its Members (but not Members in their capacity as Allottees), in consideration of the benefits realized under the Northeastern Arizona Indian Water , in accordance with the Rights Settlement Agreement dated as of commitments under Subparagraph 14.1.4 of said Agreement and pursuant to the authorization granted in Section _ of the Northeastern Arizona Indian Water Rights Settlement Act, P.L. _ _. 1.0 DEFINITIONS. 1.1
1.2

"Act" shall mean the Northeastern Arizona Indian Water Rights Settlement Act. "Agreement" shall mean the Northeastern Arizona Indian Water Rights Settlement Agreement and the Exhibits thereto. "Allottee" or "Allottees" shall mean a person or persons holding a beneficial real property interest in an Allotment. "Allotment" or "Allotments" shall mean an allotment or allotments: (1) originally allotted to an individual identified in the patent as a Navajo or Hopi Indian; (2) located within the exterior boundaries of the Navajo Reservation, within the exterior boundaries of the Hopi Reservation, or on Off-Reservation land's within Apache, Coconino or Navajo Counties, Arizona; and (3) held in trust by the United States for the benefit of an Allottee. "Central Arizona ProJect" or "CAP" shall mean the reclamation project authorized and constructed by the United States in accordance with Title III of the Colorado River Basin Project Act, 43 U.S.C. § 1521, et seq. "CAP Water" shall mean 'Project Water' as that term is defined in

1.3 1.4

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the CAP Repayment Stipulation.
1.7

"Colorado Rive!: Compact" shall mean the Colcrado River Compact of 1922;' as ratified and reprinted atTitle 45, Chapttf 7, Article 2 of the Ariiona Statutes. "Diversion" shall mean of Diverting. . ."

1.8 1.9

"Divert," "Diverting," and "Diverted" shall mean to receive, withdraw or develop and produce or capture Groundwater, Surface Water, CAP Water, Colorado River water or Effluent by means of a ditch, canal, flume, bypass, pipeline, pit, collection or infiltration gallery, conduit, Well, pump, turnout, or other mechanicaldevice or any other human act, including the initial impoundment of water. "Effluent" shall mean water that has been used for domestic, municipal or industrial purposes and that is available for use for any purpose, but water shall- not become Effluent solely as a result of having been used for hydropower generation. "Exhibit" shall mean an exhibit to the Agreement as enumerated in subparagraph 3.2 thereof. "Gila River Adjudication" shall mean that action pending in the Superior Court of the State of Arizona in and for the County of Maricopa styled In re the General Adjudication ofAll Rights To Use Water in The Gila River System and Source, W-1 (Salt), W-2 (Verde), W-3 (Upper Gila), W-4 (San Pedro) (Consolidated). "Gila River Adjudication Court" shall mean the Superior Court of the State of Arizona in and for the COl1llty of Maricopa exercising jurisdiction over the Gila River Adjudication. "Gila River Adjudication Decree" shall mean and include any final judgment or decree entered by the Gila River Adjudication Court, including the judgment entered in substantially the same form as the form ofjudgment attached to the Agreement as Exhibit 3.1.54. "Groundwater" shall mean all water beneath the surface of the Earth within the State of Arizona that is not: (1) Surface Water; (2) Underground Water within the Upper Basin; (3) Lower Colorado River water; or (4)EfflueIit. "Hopi Reservation" shall mean, for purposes of this Agreement, District 6, and all lands withdrawn by the Executive Order of Dec.
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16, 1882 and partitioned to the Hopi Tribe in accordance with the Act c{bec. 22, 1974, Pub. L. 93-531, § 4, 88 Stat. 1713 (codified as amended at 25 U.S.C. § 640d-3), by judgment of Partition, .eeb. 10, 1977, Sekaquaptewa v. MacDonald, Case No. CIV-579-PCT-JAW (D.Ariz.), affirmed 626 F.2d 113' (9th Cir. 1980); ali lands recognized as part of the Hopi Rl;;'s'ervation in the 1934 Act Case; and individual allotments made to members of the Hopi Tribe within those lands, all as more particularly set forth on the map attached to the Agreement as Exhibit 3.1.61. 1.17 "Hopi Tribe" shall mean the Hopi Tribe, a Tribe of Hopi Indians organized under Section 16 of the Indian Reorganization Act of June 18, 1934,48 Stat. 987 (25 U.S.C. § 476), and duly recognized by the Secretary. "Injury to Water Quality" shall mean any diminution or degradation of the quality of Water due to a change in the salinity or concentration of naturally occurring chemical constituents of Water and any effect of such a change where the changes in salinity or concentration and the effects of such changes are due to the withdrawal, Diversion or use of Water. "Injury to Water Rights" shall mean an interference with, diminution of, or deprivation of, Water Rights under Federal, State or other law. "LCR" shall mean the Little Colorado River. "LCR Adjudication" shall mean that action pending in the Superior Court of the State of Arizona in and for the County of Apache styled In re: the General Adjudication of All Rights to Use Water in the Little Colorado River System and Source, CIVNo. 6417. "LCR Adjudication Court" shall mean the Superior Court of the State of Arizona in .and for the County of Apache exercising jurisdiction over the LCR Adjudication. "LCR Decree" shall mean and include any final judgment or decree entered by the LCR Adjudication Court, including the judgment entered in substantially the same form as the form of judgment attached to the Agreement as Exhibit 3.1.76. "Lower Colorado River" shall mean the Colorado River downstream from Lee Ferry within the United States, including the reservoirs

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thereon. For purposes of this Waiver and Release of Claims, the term "r,Qwer Colorado River" shall also include: (1) all tributaries to at ,or below Lee Ferry other than the Lower Colorado tributaries located within the State; (2) all Underground Water that is hydrologically cOlmected to the Lower Colorado River; and (3) all Underground Water that is hydrologically connected to tributaries to the Lowe{Colorado' River other than tributaries located within the states of Ari'zona and New Mexico. 1.25 "Lower Colorado River Enforceability Date" shall mean the date on which the Secretary publishes in the Federal Register the statement of findings described in Section _ of the Act. "Member" or ":tvfembers" shall mean any Indian, person or persons duly enrolled as a member or members of the Navajo Nation, or the Hopi Tribe, as applicable. "Navajo Fee Land" shall mean land, other than Navajo Trust Land, that as of the LCR Enforceability Date is: (1) owned by the Navajo Nation, whether in its own name or through a related entity; and (2) located outside the exterior boundaries of the Navajo Reservation in Arizona. "Navajo Nation" shall mean the Navajo Nation, a body politic and federally-recognized Indian nation, 60 Fed. Reg. 9249, 9252 (Feb. 16, 1995), also known variously as the "Navajo Tribe," the "Navajo Tribe of Arizona, New Mexico & Utah" and the "Navajo Tribe of Indians" and other similar names, and includes all bands of Navajo Indians and chapters of the Navajo Nation. "Navajo Reservation," for purposes of this Waiver and Release of Claims, shall mean those lands in Arizona within the boundaries of the "Navajo Indian Reservation" defined by the Act of June 14, 1934, ch. 521, 48 Stat. 960; all lands withdrawn by the Executive Order of Dec. 16, 1882 and partitioned to the Navajo Nation in accordance with the Act of Dec. 22, 1974, Pub. L. 93-531, § 4, 88 Stat. 1713 (codified as amended at 25 U.S.C. § 640d-3), by Judgment of Partition, Feb. 10, 1977, Sekaquaptewa v. MacDonald, CIV-579-PCT-JAW (D.Ariz.), affinned 62.6 F.2d 113 (9th Cir. 1980);. all . lands taken into trust as a part.of the Navajo Reservation pursuant to section. 11 of the Act of Dec. 22, 1974 (codified amended at 25 U.S.C. § 640d-1O); and excepting all lands within the Hopi Reservation, all as more particularly set forth on the map attache&to the Agreement as Exhibit 3.1.104. In the
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case of a connict between this definition and Exhibit 3.1.104 to the Agreeme!lt, EXhibit 3.1.104 to the Agreement shall control.1.30

Trust Land" shall mean bnd outside the exterior boundaries of the Navajo Reservation in Arizona that, as of the LCR .?nforceability Date,'ls- held in trust by the' United States for- the berrefit of the Navajo Nation. "Off-Reservation" shall mean lands located in Arizon2. outside the exterior boundaries of both the Navajo and Hopi Reservations. "Paragraph" shall mean a numbered paragraph of this Waiver and Release of Claims, including all Subparagraphs in such Paragraph. "State" shall mean the State of Arizona. "Subparagraph" shall mean a numbered subparagraph of this Waiver and Release of Claims. "Surface Water" shall mean all water that is appropriable under Arizona law, other than appropriable water that is located within the Upper Basin of the Colorado River. "Underground Water" shall mean any water beneath the surface of the Earth, other than Effluent, regardless of its legal characterization as appropriable or non-appropriable under State, Federal or other law. "United States" or "United States of America" in any given reference herein shall mean the United States acting in the capacity as set forth in said reference. When the term 'United States' or 'United States of America' is used in reference to a particular agreement or contract, the term shall mean the United States acting in the capacity as set forth in such agreement or contract. "Upper Basin" shall mean 'Upper Basin' as defined in Article 1I(f) of the Colorado River Compact. "Waiver and Release of Claims" shall mean this waiver and release of claims by the Navajo Nation and the United States, a copy of which is attached as Exhibit 14.1.4 to the Agreement. "Water Right" shall mean any right in or to Underground Water, Groundwater, Surface Water or Effluent under Federal, State or other law.

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WAIVER AND RELEASE OF CLAIMS.
2.1

Except as provided in Paragraph 3.0 hereot, the Navajo Nation, on -behalf of itself and its Members (but ilo(Members in their capacity as Allottees), pursJlant to the authorization set forth in Sectiptl -_--_- of the Act, hereby -waives any claims the United States (or agencies, officials or employees of the Unite:d States) under Federal, state or other law for all:
2.1.1

Past, present and future claims of rights to water from the Lower Colorado River for Navajo Lands arising from time immemorial and, thereafter, forever; Past, present and future claims of rights to water from the Lower Colorado River arising from time immemorial and, thereafter, forever, that are based upon aboriginal occupancy of land by the Navajo Nation, its Members or their predecessors; Past, present and future claims of injury to rights to water from the Lower Colorado River for Navajo Lands arising from time immemorial and, thereafter, forever; Past, present and future claims of injury to rights to water from the Lower Colorado River arising from time immemorial and, thereafter, forever, that are based upon aboriginal occupancy of land by the Navajo Nation, its Members, or their predecessors; Past, present, and future claims -arising out of or relating in any manner to the negotiation, execution, or adoption of the Agreement, an applicable settlement judgment or decree, or the Act; Past, present and future claims for failure to protect, acquire or develop rights to water from the Lower Colorado River for or on behalf of the Navajo Nation and its Members arising from time immemorial, and, thereafter, forever; and Past, present, and future claims relating _ failure to assert to any claims expressly waived pursuant to Section _-_ of the Act.

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-2.1.3

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-2.1.5

2.1.6

2.1.7

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·

..-,

3.0

RESERVATION Of RIGHTS AND RETENTION OF CLAIMS. 3.1 Notwithstanding the Waiver and Release of Claims in Paragraph 2.0 hereof, the Navajo Nation and its. Members (but (lot Members in their capacity as Allottees) shall retain any right to: J.1.1 Subject to subparagraph 15.15 of the Agreement, assert claims of rights tc water from the Upper Basin of the Colorado River for Navajo Lands;

3.1.2 Subject to subparagraph 15,9 of the assert claims for to, and seek· enforcement of, the rights of the Navajo Nation and its Members under the Agreement or the Act, in any State court of competent jurisdiction or any Federal court of jurisdiction; 3.1.3 Assert claims for injuries to, and seek enforcement of, the rights of the Navajo Nation under the LCR Decree, the fonn of which is attached to the Agreement as Exhibit 3.1.76;

3.1.4 Assert claims for injuries to, and seek enforcement of, the rights of the Navajo Nation under the Gila River Adjudication Decree, the form of which is attached to the Agreement as Exhibit 3.1.54; 3.1.5 Participate in the LCR Adjudication to the extent provided in the Agreement; 3.1.6 Participate in the Gila River Adjudication to the extent provided in subparagraph 4.1.8.3 of the Agreement; 3.1.7 Except as provided in the Agreement, object to any claims for Water Rights, Injury to Water Rights or Injury to Water Quality by or for any other Indian tribe, community, nation or dependent Indian community (as defined in 25 U.S.C § 450b(e)) or the United States on behalf thereof; 3.1.8 Except as provided in the Agreement, assert past, present, or future claims for Injury to Water Rights, Injury to Water Quality, or any other claims other than a claim for Water Rights, against any tribe, community, nation or dependent Indian community (as defined in 25 U.S.C § 450b(e)) or the United States on behalf thereof; and
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3.1.9 Assert past, present, or future claims for Water Rights to the Bill Williams River and its tributaries. 4.0 WAIVER EFFECTIVE UPON LOViER COLORADO RIVER ENFORCEABILITY DATE This Waiver and Release of shall become effective upon the Lower, Colorado River Enforceability Date. 5.0 COUNTERPARTS AND DUPLICATE ORIGINALS This Waiver and Release of Claims may be executed in one or more counterparts, each of which shall constitute an original, and all of which, when taken together, shall constitute one and the same instrument. This Waiver and Release of Claims may also be executed in duplicate originals, each of which shall constitute an original Agreement.

8

IN WIu'i'ESS WHEREOF, tl;1e Navajo Nation has executed this Waiver and
Release of Claims dated as of tho day and ye2.!" first written above.

NAVAJO NATION

By: Dated: Chairman Attest: - - - - - - - - - - - - Approved as To Form: Attorney General

9

E4HIBIT 14.2.1 WAIVER AND OF CLAIMS 70R WATER RIGHTS, INJURY TO WATER RIGHTS AND INJIJRYTO WATER QUALITY, BY THE HOPI TRIBE ON BEHALF OF ITSELF AND ITS MEMBERS (BUT NOT MEMBERS IN THEIR CA.PACITY AS ALLOTTEE SfAND BY THE UNITED STATES ACTING IN ITS CAPACITY AS TRUSTEE FOR THE HOPI TRIBE AND ITS MEMBERS (BUT NOT MEMBERS IN THEIR CAPACITY AS ALLOTTEES). This Waiver and Release of Claims dated as of , is entered into by the Hopi Tribe, on behalf of itself and its Members (but not Members in their capacity as Allottees), and the United States on behalf ofthe Hopi Tribe and its Members (but not Members in their capacity as Allottees), in consideration of the benefits realized under the Northeastern Arizona Indian Water Rights , in accordance with the Settlement Agreement dated as of commitments under Subparagraph 14.2.1 of said Agreement and pursuant to the of the Northeastern Arizona Indian Water authorization granted in Section Rights Settlement Act, P.L. . 1.0 DEFINITIONS. 1.1 "Abstract" shall mean a summary of Water Rights or uses held or owned by any Person, as represented in a form substantially similar to the one attached as Exhibit 3.1.3 to the Agreement. "Act" shall mean the Northeastern Arizona Indian Water Rights Settlement Act. "Agreement" shall mean the Northeastern Arizona Iridian Water Rights Settlement Agreement and the Exhibits thereto. "Allottee" or "Allottees" shall mean a person or persons holding a beneficial real property interest in an Allotment. "Allotment" or "Allotments" shall mean an allotment or allotments: (1) originally allotted to an individual identified in the patent as a Navajo or Hopi Indian; (2) located within the exterior boundaries of the Navajo Reservation, within the exterior boundaries of the Hopi Reservation, or on Off-Reservation lands within Apache, Coconino or Navajo Counties, Arizona; and (3) held in trust by the United States for the benefit of an Allottee. "Central Arizona Project" or "CAP" shall mean the reclamation

1.2

1.3

1.4 1.5

1.6

project authorized and by the United States in accordance with Title III of the Colorado River Basin Project Act, 43 U.S.C. § 1521, etseq. 1.7 1.8 "CAP Water" shall mean 'Project Water' as that teim is defined in the Repayment Stipulation. "Colorado River Compact" shall mean the Colorado River Compact of 1922,as ratified and reprinted at Title 45, Chapter 7, Article 2 (of the Arizona Revised Statutes. "Diversion" shall mean the act of Diverting. "Divert," "Diverting," and "Diverted" shall mean to receive, withdraw or develop and produce or capture Groundwater, Surface Water, CAP Water, Colorado River water or Effluent by means of a ditch, canal, flume, bypass, pipeline, ·pit, collection or infiltration gallery, conduit, Well, pump, turnout, or other mechanical device or any other human act, including the initial impoundment of water. "Effluent" shall mean water that has been used for domestic, municipal or industrial purposes and that is available for use for any purpose, but water shall not become Effluent solely as a result of having been used for hydropower generation. "Exhibit" shall mean an exhibit to the Agreement as enumerated in subparagraph 3.2 thereof. "Groundwater" shall mean all water beneath the surface of the Earth within the State of Arizona that is not: (1) Surface Water; (2) Underground Water within the Upper Basin; (3) Lower Colorado River water; or (4) Effluent "Hopi Fee Land" shall mean land, other than Hopi Trust Land, that as of the LCR Enforceability Date is: (1) owned by the Hopi Tribe, whether in its own name or through a related entity; and (2) located outside the exterior boundaries of the Hopi Reservation." "Hopi Lands" shall mean, collectively, the·Hopi Reservation, Hopi TrustLand and Hopi Fee Land. "Hopi Reservation" shall mean, for purposes of this Agreement, District 6, and all lands withdrawn by the Executive Order of Dec. 16, 1882 and partitioned to the Hopi Tribe in accordance with the Act of Dec.. 22, 1974, Pub. L. 93-531, § 4, 88 Stat 1713 (codified as
2

1.9
1.10

1.11

1.12

1.13

1.14

1.15

1.16

amended at 25D.S.C. § 640d-3), by Judgment of Partition, Iieb. 10, 1977, Sekaquaptewa v. MacDonald, Case No. (D.Ariz.), affirmed 626 F.2d 113 (9th Cit. 1980); ali lands recognized Hopi Reservation in the 1934 Act Case; and individual as part of allotments-made to members of the Hopi Tribe within thqse lands, ail as more particularly set forth on the rnap attached to the Agreement as Ex...l}ibit 3.1.61.
1.17

"Hopi Tribe" shall mean the Hopi Tribe, a Tribe of Hopi Indians organized under Section 16 of the Indian Reorganization Act of June 18, 1934,48 Stat. 987 (25 U.S.C. § 476), and duly recognized by the Secretary. "Hopi Tribe Cibola Water" shall mean that water to which the Hopi Tribe is entitled pursuant to Contract No. 04-XX-30-W0432 between the United States and the Hopi Tribe, dated December 14, 2004, and the Hopi Tribe Water Delivery Contract(s). "Hopi Trust Land" shall mean land outside of the Hopi Reservation that, as of the LCR Enforceability Date, is held in trust by the United States for the benefit of the Hopi Tribe. "Injury to Water Quality" shall mean any diminution or degradation of the quality of Water due to a change in the salinity or concentration of naturally occurring chemical constituents of Water and any effect of such a change where the changes in salinity or concentration and the effects of such changes are due to the withdrawal, Diversion or use of Water. of, or deprivation of, Water Rights under Federal, State or other law.

1.18

1.19

1.20

1.21 . "Injury to Water Rights" shall mean an interference with, diminution

1.22 1.23

"LCR" shall mean the Little Colorado River. "LCR Adjudication" shall mean that action pending in the Superior Court of the State of Arizona in and for the County of Apache styled In re: the General Adjudication of All Rights to Use Water in the Little Colorado River System and Source; CIV No. 6417. "LCR Adjudication Court" shall mean the Superior Court of the State of Arizona in and for the County of Apache exercising jurisdiction over the LCR Adjudication. "LCR Decree" shall mean and include any final judgment or decree entered by the LCR Adjudication Court, including the judgment
3

1.24

1.25

entered in substantially the. same fonn as the form of judgment . attached to the Agreement as Exhibit 3.1.76. 1.26 "LCR Enforceability Date" shallmelliithe date on which the Secretary publishes in the Federal Register the statement of findings . described it). Section _ ofthe Act. "Lower Colorado River': shall mean the Colorado downstream from Lee Ft=rry within the United States, including the reservoirs thereon. For purposes of this Waiver and Release of Claims, the term "Lower Colorado River" shall also include: (1) all tributaries to the Lower Colorado River at or below Lee Ferry other than tributaries located within the State; (2) all Underground Water that is hydrologically connected to the Lower Colorado River; and (3) all Underground Water that is hydrologically connected to tributaries to the Lower Colorado River other than tributaries located within the states ofArizona and New Mexico. "Member" or "Members" shall mean any Indian, person or persons duly enrolled as a member or members of the Navajo Nation, or the Hopi Tribe, as applicable. "Navajo Nation" shall mean the Navajo Nation, a body politic and federally-recognized Indian nation, 60 Fed. Reg. 9249, 9252 (Feb. 16, 1995), also known variously as the "Navajo Tribe," the "Navajo Tribe of Arizona, New Mexico & Utah" and the "Navajo Tribe of Indians" and other similar names, and includes all bands of Navajo Indians and chapters of the Navajo Nation. "Navajo Reservation," for purposes of this Waiver and Release of Claims, shall mean those lands in Arizona within the boundaries of the "Navajo Indian Reservation" defined by the Act of June 14, 1934, ch. 521, 48 Stat. 960; all lands withdrawn by the Executive Order of Dec. 16, 1882 and partitioned to the Navajo Nation in accordance with the Act of Dec. 22, 1974, Pub. L. 93-531, § 4, 88 Stat. 1713 (codified as amended at 25 U.S.C. § 640d-3), by Judgment of Partition, Feb. 10, 1977,Sekaquaptewa v. MacDonald, Case No. CIV579-PCT-JAW (D.Ariz.), affinned 626 F.2d 113 (9thCir. 1980); all lands taken into trust as a part of the Navajo Reservation pursuant to section 11 of the Act of Dec. 22, 1974 (codified as amended at 25 U.S.C.. § 640d-10); and excepting all lands within the Hopi Reservation, all as more particularly set forth on the map attached to the Agreement as Exhibit 3.1.104. In the case of a conflict between this definition and Exhibit 3.1.104 to the Agreement, Exhibit 3.1.104
4

1.27

1.28

1.29

1.30

to the Agreement shall control. 1.31 "Norviel shall mean the final decree c:il1d all modifications thert;;of in the case styled: The St. John's Irrigation Company urld the Meadows Reservoir Irrigation Company, etal. v. Round Valley W/lter ,,-Storage & Diteh Company. Eagar Irrigationc;ompany, Springerville Water Right and Ditch Company, et al., Case No. 569 (Apr. 29, 1918) in the Stale of Arizona Superior Court in and for the County of Apache together with any amendments thereto. "Off-Reservation" shall mean lands located in Arizona outside the exterior boundaries of both the Navajo and Hopi Reservations. "Paragraph" shall mean a numbered paragraph of this Waiver and Release of Claims, including all Subparagraphs in such Paragraph. "State" shall mean the State of Arizona. "Subparagraph" shall mean a numbered subparagraph of this Waiver and Release of Claims. "Surface Water" shall mean all water that is appropriable under Arizona law, other than appropriable water that is located within the Upper Basin of the Colorado River. "Underground Water" shall mean any water beneath the surface of the Earth, other than Effluent, regardless of its legal characterization as appropriable or non-appropriable under State, Federal or other law. "United States" or "United States of America" in any given reference herein shall mean the United States acting in the capacity as set forth in said reference. When the term 'United States' or 'United States of America' is used in reference to a particular agreement or contract, the term shall mean the United States acting in the capacity as set forth in such agreement or contract. "Upper Basin" shall mean 'Upper Basin' as defined in Article 1I(f) of the Colorado River Compact. "Waiver and Release of Claims" shall mean this waiver and release of claims by the Hopi Tribe and the United States, a copy of which is attached as Exhibit 14.2.1 to the Agreement. "Water" when used without a modifying adjective shall mean Underground Water, Groundwater, Surface Water, or Effluent.

1.32 1.33 1.34 1.35 1.36

1.37
.-.

1.38

1.39 1.40

1.41

5

1.42

"Water Right" shall mean any right in or to Underground Water, Groundwater, Surface Water or Effluent under Federal, State or other law.

2.0

\VAIVER AND RELEASE OF CLAIMS. 2.1 Except as providedill.Paragraph 3.0 hereof, the Hopi on behalf of itself and its Members (but not Members in their capacity as Allottees), and the United States acting in its capacity as trustee for the Hopi Tribe' and its Members (but not Members in their capacity as Allottees), pursuant to' theauthorizatioG set forth in Section _ of the Act, hereby waive and release any claims against the State (or any agency or political subdivision of the State), the Navajo Nation, or.·any other person, entity, corporation or municipal corporation under Federal, State or other law fOr" all: 2.1.1 Past, present and future claims for Water Rights for Hopi Lands arising from time immemorial and, thereafter, forever; 2.1.2 Past, present and future claims for Water Rights arising from time immemorial and, thereafter, forever, that are based upon aboriginal occupancy of land by the Hopi.Tribe, its Members or their predecessors; 2.1.3 Past and present claims for Injury to Water Rights and Injury to Water Quality for Hopi Lands" arising from time immemorial through the LCR Enforceability Date; 2.1.4 Past, present and future claims for Injury to Water Rights and. Injury to.' Water Quality arising from time immemorial and, thereafter, forever, that are based upon aboriginal occupancy of land by the Hopi Tribe, its Members, or their predecessors; 2.1.5 Claims for Injury to Water Rights and Injury to Water Quality arising after the LCR Enforceability Date for Hopi Lands resulting from the Diversion or use of Water in a manner not in violation of this Agreement; and 2.1.6 Past, present, andfuture claims arising out of or relating in any manner to the negotiation, execution, or adoption of the Agreement, an applicable settlement judgment or decree, or the Act.

6

1.8-

RESERVATION OF RIGHTS AND F.ETENTION OF CLAIlv1S. 3.1 Notwithstanding the Waiver and Release of Claims in Paragraph 2.0 -hereof, the Hopi Tribe on behalf of itstif and its Members (but not as Allottees) and the United States acting lvlefnbers in in its capacity as trustee for the Hopi Tribe alld its Members (but not Members in their capacity as Allottees) shall retain any right to: 3.1.1 Assert claims for enforcement of the rights of the Hopi Tribe to Hopi Tribe Cibola Water; 3.1.2 Assert claims for injuries to, and seek enforcement of, the rights of the Hopi Tribe under the Norvie1 Decree, as set forth in the Abstracts attached as Exhibits 4.2,4.1.A, 4.2,4.1.B and 4.2.4.1.C to the Agreement; 3.1.3 Subject to subparagraphs 5.3 and 15.9 of the Agreement, assert claims for injuries to, and seek enforcement of, the rights of the Hopi Tribe and its Members under the Agreement or the Act, in any State court of competent jurisdiction or any Federal court of competent jurisdiction; 3.1,4 Assert claims for injuries to, and seek enforcement of, the rights of the Hopi Tribe under the LCR Decree, the form of which is attached to the Agreement as Exhibit 3.1.76; 3.1.5 Participate in the LCR Adjudication to the extent provided in the Agreement; 3.1.6 Except as provided in the Agreement, object to any claims for Water Rights, Injury to Water Rights or Injury to Water Quality by or for any other Indian tribe, community, nation or dependent Indian community (as defined in 25 U.S.C § 450b(e)) or the United States on behalf thereof; and 3.1.7 Except as provided in the Agreement, assert past, present, or wture claims for Injury to Water Rights or Injury to Water Quality, or any other claims other than a claim -for Water Rights, against any tribe, community, nation or dependent Indian community (as defined in 25 U.S.C § 450b(e)) or the United States on behalf thereof.

4.0

WAIVER EFFECTIVE UPON LCR ENFORCEABILITY DATE
7

This Waiver and Release of Claims shall become effective upon the LCR Enforceability Date. ·'5.0 COUNTERPARTS. AND DUPLICATE ORIGINALS This Waiver and may be executed in one or more counterparts, each of which shall constitute all of which, when taken together, shall constitute one and the S(!!TIe instrument. This Waiver and Release of Claims may also be executed in duplicate originals, each of which shall constitute an original Agreement. IN WITNESS WHEREOF, the United States and the Hopi Tribe have executed this Waiver and Release of Claims dated as of the day and year first written above. THE UNITED STATES OF AMERICA By: Dated: Secretary of the Interior HOPI TRIBE

By: Dated: -----------Chairman Attest: Approved as To Form: _ _ General Counsel _

_

8

EXBIBIT 14.2.2 AND RELEASE OF CLAIMS OF TO WATER AND INJURY TO RIGHTS TO WATER FROM THE LOWER COLOXADO RIVER BY HOPI TRIBE ON BEHALF OF ITSELF AND ITS MEMBERS (BUT NOT IN THEIR CAPACITY AS ALLOTTEES) AND BY THE UriITED STATES ACTING IN ITS CAPACITY AS TRUSTEE FOR THE. HOPI TRIBE AND ITS fvIEMBERS (BUT NOT MElVIBERS IN THEIR CAPACITY AS ALLOTTEES). This Waiver and Release of Claims dated as of , is entered into by the Hopi Tribe, on behalf of itself and its Members (but not Menlbers in their capacity as Allottees), and the United States on behalf of the Hopi Tribe and its Members (but not Members in their capacity as Allottees), in consideration of the benefits realized under the Northeastern Arizona Indian Water Rights Settlement Agreement dated as of , in accordance with the commitments under Subparagraph 14.2.2 of said Agreement and pursuant to the authorization granted in Section of the Northeastern Arizona Indian Water Rights Settlement Act, P.L. __. 1.0 DEFINITIONS.
1.1

"Abstract" shall mean a summary of Water Rights or uses held or owned by any Person, as represented in a form similar to the one attached as Exhibit 3.1.3 to the Agreement. "Act" shall mean the Northeastern Arizona Indian Water Rights Settlement Act. "Agreement" shall mean the Northeastern Arizona Indian Water Rights Settlement Agreement and the Exhibits thereto. "Allottee" or "Allottees" shall mean a person or persons holding a beneficial real property interest in an Allotment. "Allotment" or "Allotments" shall mean an allotment or allotments: (1) originally allotted to an individual identified in the patent as a Navajo or Hopi Indian; (2) located within the exterior boundaries of the Navajo Reservation, within the exterior boundaries of the Hopi Reservation, or on Off-Reservation lands within Apache, Coconino or Navajo Counties, Arizona; and (3) held in trust by the United States for the benefit of an Allottee.

1.2

1.3

1.4

1.5

1-.6

"Central Arizona Project" or "CAP" shall mean the reclamation project authorized and constructed b)'the United States in ,n.ccordance with Title III' of the Colorado River Basin Project Act, 43 U.S_c, § 1521, et seq. "CAP Water" :;.:hall mean 'Project Water' as that. term is defined in the CAP Repayment Stipulation. "Colorado River Compact" shall mean the Colorado River Compacl of 1922, as ratified and reprinted at Title 45, Chapter 7, Article 2 of the Arizona'Revised Statutes. "Diversion" shall mean the act of Diverting. "Divert" "Diverting" and "Diverted" shall mean to receive , " withdraw or develop and produce or capture Groundwater, Surface Water, CAP Water, Colorado River water or Effluent by means of a ditch, canal, flume, bypass, pipeline, pit, collection or infiltration gallery, conduit, Well, pump, turnout, or other mechanical device or any other human act, including the initial impoundment of water. "Effluent" shall mean water that has been used for domestic, municipal or industrial purposes and that is. available for use for any purpose, but water shall not become Effluent solely as a result of having been used for hydropower generation. "Exhibit" shall mean an exhibit to the Agreement as enumerated in subparagraph 3.2 thereof. "Groundwater" shall mean all water beneath the surface of the Earth within the State of Arizona that is not: (1) Surface Water; (2) Underground Water within the Upper Basin; (3) Lower Colorado River water; or (4) Effluent. "Hopi Fee Land" shall mean land, other than Hopi Trust Land, that as of the LCR Enforceability Date is: (1) owned by the Hopi Tribe, whether in its own name or through a related entity; and (2) located outside the exterior boundaries of the Hopi Reservation. "Hopi Lands" shall mean, collectively, the Hopi Reservation, Hopi Trust Land and Hopi Fee Land. "Hopi'Reservation" shall mean, for purposes of this Agreement, District 6, and all lands withdrawn by the Exe.cutive Order of Dec. 16, 1882 and partitioned to the Hopi Tribe in accordance with the
2

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Act ofDe.'c. 22, 1974, Pub. L § 4, 88 Stat. 1713 (codified as amended at 25 U.S.C. § 640d-3), by Judgment ofP-ilrtition, Feb. 10, 19Ti;Sekaquaptewa v. MacDonald, No: W (D.Ariz.), affirmed· 626 F.2d 113 (9th - CiL 1980); all lands recggnized as'part of the Hopi Reservation in the 1934 Act Case;. and individuclallotments made to of the Hopi Tribe within those lands, all as more particularly set forth on the map attached to the Agreement as Exhibit 3.1.61.
.

-

1.17

"Hopi Tribe" shall mean the Hopi Tribe, a Tribe of Hopi Indians organized under Section 16 of the Indian Reorganization Act of June 18, 1934,48 Stat. 987 (25 U.S.C. § 476), and duly recognized by the Secretary. "Hopi Tribe Cibola Water" shall mean that water to which the Hopi Tribe is entitled pursuant to Contract No. 04-XX-30-W0432 between the United States and the Hopi Tribe, dated December 14, 2004, and the Hopi Tribe Water Delivery Contract(s). "Hopi Trust Land" shall mean land outside of the Hopi Reservation that, as of the LCR Enforceability Date, is held in trust by the United States for the benefit ofthe Hopi Tribe. "Injury to Water Quality" shall mean any diminution or degradation of the quality of Water due to a change in the salinity or concentration of naturally occurring chemical constituents of Water and any effect of such a change where the changes in salinity or concentration and the effects of such changes are due to the withdrawal, Diversion or use of Water. "Injury to Water Rights" shall mean an interference with, diminution of, or deprivation of, Water Rights under Federal, State or other law. "LCR" shall mean the Little Colorado River. "LCR Adjudication" shall mean that action pending in the Superior Court of the State of Arizona in and for the County of Apache styled In re: the General Adjudication of All Rights to Use Water in the Little Colorado River System and Source, CIV No. 6417. "LCR Adjudication Court" shall mean the Superior Court of the State of Arizona in and for the County of Apache exercising jurisdiction over the LCR Adjudication. "LCR Decree" shall mean and include any final judgment or decree
3

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1.20

1.21

1.22 1.23

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1.25

entered by the LCR Adjudication Court, including the judgment entered in substantially the same form as the10nn of judgment attacht'rt to the Agreement as Exhibit 3.1.76. 1.26 "Lower Colorado River" shall mean the Colorado River downstream from Lee Ferry within the United· States, including the reservoirs thereon. For purposes of this V/aiver and Release of Claims, the term "Lo'vver Colorado River" shall also include: (1) all tributaries to the Lower Colorado River at or below Lee Ferry other than tributaries located within the State; (2) all Underground Water that is hydrologically connected to the Lower Colorado River; and (3) all Underground Water that is hydrologically connected to tributaries to the Lower Colorado River other than tributaries located within the states of Arizona and New Mexico. "Lower Colorado River Enforceability Date" shall mean the date on which the Secretary publishes in the Federal Register the statement of findings described in Section _ of the Act. "Member" or "Members" shall mean any Indian,person or persons duly enrolled as a memberor members of the Navajo Nation, or the Hopi Tribe, as applicable. "Navajo Nation" shall mean the Navajo Nation, a body politic and federally-recognized Indian nation, 60 Fed. Reg. 9249, 9252 (Feb. 16, 1995), also known variously as the "Navajo Tribe," the "Navajo Tribe of Arizona, New Mexico & Utah" and the "Navajo Tribe of Indians" and other similar names, and includes all bands of Navajo Indians and chapters of the Navajo Nation. "Navajo Reservation," for purposes of this Waiver and Release of Claims, shall mean those lands in Arizona within· the boundaries of the "Navajo Indian Reservation" defined by the Act of June 14, 1934, ch. 521, 48 Stat. 9'60; all lands withdrawn by the Executive Order of Dec. 16, 1882 and partitioned to the Navajo Nation in accordance with the Act of Dec. 22, 1974, Pub. L. 93-531, § 4, 88 Stat. 1713 (codified as amended at 25 U.S.C. §. 640d-3), by Judgment of Partition, Feb. 10, 1977, Sekaquaptewa v. MacDonald, Case No.CIV-579-PCT-JAW (D.Ariz.), affinned 626 F.2d 113 (9th Cir. 1980); all lands taken into trust as a part of the Navajo Reservation pursuant to section 11 of the Act of Dec. 22, 1974 (codified as amended at 25 U;S.C. § 640d-1O); and excepting all lands within the Hopi Reservation, all as more particularly set forth on the map attached to·the Agreement as Exhibit 3.1.104. In the
4

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case of a cont1ier between this definition and Exhibit 3.1.104 to the Agreement, Exhibit 3,1.104 to the Agreement shall controL ...•

1.31

Decree" shall mean the final decree a;Id all modifications thereof in the case styled: The St. John's Irrigation Company and tbe Meadows Reservoir Irrigation Company, al. v. Round Valley Water Storage· & Ditch· Company, Eagar Irrigation Company, Springerville Water Right and Ditch Company, et al., Case Nc. 569 (Apr. 29, 1918) in the State of Arizona Superior Court in and tor the County of Apache together with any amendments thereto. "Off-Reservation" shall mean lands located in Arizona outside the exterior boundaries of both the Navajo and Hopi Reservations. "Paragraph" shall mean a numbered paragraph of this Waiver and Release of Claims, including all Subparagraphs in such Paragraph. "State" shall mean the State of Arizona. "Subparagraph" shall mean a numbered subparagraph of this Waiver and Release of Claims. "Surface Water" shall mean all water that is appropriable under Arizona law, other than appropriable water that is located within the Upper Basin of the Colorado River. "Underground Water" shall mean any water beneath the surface of the Earth, other than Effluent, regardless of its legal characterization as appropriable or non-appropriable under State, Federal or other law. "United States" or "United States of America" in any given reference herein shall mean tIle United States acting in the capacity as set forth in said reference. When the term 'United States' or 'United States of America' .is used in reference to a particular agreement or contract, the term shall mean the United States acting in the capacity as set forth in such agreement or contract. "Upper Basin" shall mean 'Upper Basin' as defined in Article lI(t) of the Colorado River Compact. "Waiver and Release of Claims" shall mean this waiver and release of claims by the Hopi Tribe and the United States, a copy of which is attached as Exhibit 14.2.2 to the Agreement.

1.32 1.33 1.34 1.35 1.36

1.37

1.38

1.39 .1.40

5

1.41

"Water Right" shall mean any right in or to Underground Water, Groundwflter; Surface Water or Effluent under Federal, -State or other law.
"':

... ,.-

2.0

WAIVER AND RELEASEOF CLAIMS. -2.1 Except as provided in -Paragraph 3.0 _ hereof, the Hopi Trihe; on behalf of itself and its Members (but not Members in their capacity as Allottees), and the United States acting in its capacity as trustee for the Hopi Tribe and its Members (but not Members in their capacity as Allottees), pursuant to the authorization set forth in Section __ of the Act, hereby waive and release any claims against the State (or any agency or political subdivision of the State), the _Navajo Nation, or any other person, entity, corporation or municipal corporation under Federal, State or other law for all: 2.1.1 Past, present and future claims of rights to water from the Lower Colorado River for Hopi Lands arising from time immemorial and; thereafter, forever; 2.1.2 Past, present and future claims of rights to water from the Lower Colorado River arising from time immemorial and, thereafter, forever, that are based upon aboriginal occupancy ofland by the Hopi Tribe, its Members or-their predecessors; 2.1.3 Past, present and future claims _ injury to rights to water of from the Lower Colorado River for Hopi Lands arising from time immemorial and, thereafter, forever; 2.1.4 Past, present and future claims of injury to rights to water from the Lower Colorado - River arising from time immemorial and, thereafter, forever, that are based upon aboriginal occupancy of land by the Hopi Tribe, its Members, -or their predecessors; and 2.1.5 Past, present, and future claims arising out of or relating in -any manner to the negotiation, execution, or adoption of the Agreement, an applicable settlement judgment or decree, or the Act.

3.0

RESER,VATIQN OF RIGHTS AND RETENTION OF CLAIMS. . . . .
,

3.1

Notwithstandingthe Waiver and Release of Claims in Paragraph 2.0 hereof, the Hopi Tribe on behalf of itself and its Members (but not

6

Members in their capacity as Allottees) and the United States acting in its capacity as trustee for the Hopi Tribe and Its Members (but not Members in their capacity as Allottees) shall retain any right to: . 3.1.1 Assert claims for enforcement of the rights of the Hopi Tribe to Hopi Tribe Cibola '"'Vater; 3.1 Assert claims for injuries to, and seek enforCement of, the rights of the Hopi Tribe under the Norviel Decree, as set forth in the Abstracts attached as Exhibits 4.2.4. LA, 4.2.4.1.B and 4.2.4.1.C to the Agreement;

3.1.3 Subject to subparagraphs 5.3 and 15.9 of the Agreement, assert claims for injuries to, and seek enforcement of, the rights of the Hopi Tribe and its Members under the Agreement or the Act, in any State court of competent jurisdiction or any Federal court of competent jurisdiction; 3.1.4 Assert claims for injuries to, and seek enforcement of, the rights of the Hopi Tribe under the LCR Decree, the form of which is attached to the Agreement as Exhibit 3.1.76; 3.1.5 Participate in the LCR Adjudication to the extent provided in the Agreement; 3.1.6 Except as provided in the Agreement, object to any claims for Water Rights, Injury to Water Rights or Injury to Water Quality by or for any other Indian tribe, community, nation or dependent Indian community (as defined in 25 U.S.C § 450b(e)) or the United States on behalf thereof; and 3.1.7 Except as provided in the Agreement, assert past, present, or future claims for Injury to Water Rights or Injury to Water Quality, or any other claims other than a claim for Water Rights, against any tribe, community, nation or dependent Indian community (as defined in 25 U.S.C § 450b(e)) or the United States on behalf thereof. 4.0 WAIVER EFFECTIVE UPON LOWER COLORADO RIVER ENFORCEABILITY DATE This Waiver and Release of Claims shall become effective upon the Lower Colorado River Enforceability Date. 5.0 COUNTERPARTS AND DUPLICATE ORIGINALS
7

This \f.. Taiver and of Claims may executed in one or more each of which constitute an ()riginal, and all of which, when taken together, shall constitute one and the same instrument. This Waiver and Release of Glaims may also be executed in duplicate originals, each of which shall constitute an original Agteement. IN V/ITNESS WHEREOF, the United States and the Hopi Tribe have executed . this Waiver and Release of Claims dated as of the day and year first written above. THE UNITED STATES OF AMERICA By: Dated: Secretary of the Interior HOPI TRIBE

By: Dated:- - - - - - - - - - - Chairman Attest: Approved as To Form: General Counsel _

8

EXHIBIT 14.2.3

Vor' AlVER AND R.13:LEASE OF FOR WATER RIGHTS, INJURY TO WATER RIGHTS ANDiNJlJRYTO WATER QUALITY, BY THE HOPI TRIBE ON BEHALF OF ITSELF ANDITS IVIEMBERS(BUT NOT ., MEl\1BERSIN THEIR CAPAGITY AS ALLOTTEES) AGA1NS'r THE UNITED STATES.
, is entered This Waiver and Release of Claims dated as of into by the Hopi Tribe, on behalf of itself and its Members (but not Members in their capacity as Allottees), and the United States on behalf of the Hopi Tribe and its Members (but not Members in their capacity as Allottees), in consideration of the benefits realized under the Northeastern Arizona Indian Water Rights Settlement Agreement dated as of , in accordance with the commitments under Subparagraph 14.13 of said Agreement and pursuant to the authorization granted in Section _ of the Northeastern Arizona Indian Water ,Rights Settlement Act, P.1. . 1.0 DEFINITIONS.
1.1

"Abstract" shall mean a summary of Water Rights or uses held or owned by any Person, as represented in a form substantially similar to the one attached as Exhibit 3.1.3 to the Agreement. "Act" shall mean the Northeastern Arizona Indian Water Rights Settlement Act. "Agreement" shall mean the Northeastern Arizona Indian Water Rights Settlement Agreement and the Exhibits thereto. "Allottee" or "Allottees" shall mean a person or persons holding a beneficial real property interest in an Allotment. "Allotment" or "Allotments" shall mean an allotment or allotments: (1) originally allotted to an individual identifie4 in the patent as a Navajo or Hopi Indian; (2) located within the exterior boundaries of the Navajo Reservation, within the exterior boundaries of the Hopi Reservation, or on Off-Reservation lands within Apache, Coconino or Navajo Counties, Arizona; and (3) held in trust by the United States for the benefit of an Allottee. "Central Arizona Project" or "CAP" shall mean the reclamation project authorized and constructed by the United States in accordance with Title III of the Colorado River Basin Project Act, 43 U.S.C. §

1.2
1.3

1.4 1.5

1.6

1521, et seq. 1.7 1.8 shall mean 'Projcst Water' as that term is defilled in the CA..B,Repayment Stipulation. "Colorado River Compact" shall mean the CGlorado River Compact of 1.922, as ratified and reprinted at Title 45, Chapter 7, Article 2 of the Arizona Revised Statutes. "Diversion" shall mean the act of Diverting. "Divert," "Diverting," and "Diverted" shall mean to receive, withdraw or develop and produce or capture Groundwater, Surface Water, CAP Water, Colorado River water or EfUuent by means ofa ditch, canal, Uume, bypass, pipeline, pit, collection or infiltration gallery, conduit, Well, pump, turnout, or other mechanical device or any other human act, including the initial impoundment of water. "Effluent" shall mean water that has been. used for domestic, municipal or industrial purposes and that is available for use for any purpose, but water shall not become EfUuent solely as a result of having been used for hydropower generation. "Exhibit" shall mean an exhibit to the Agreement as enumerated in subparagraph 3.2 thereof. "Groundwater" shall mean all water beneath the surface of the Earth within the State of Arizona that is not: (1) Surface Water; (2) Underground Water within the Upper Basin; (3) Lower Colorado River water; or (4) Effluent. "Hopi Fee Land" shall mean land, other than Hopi Trust Land, that as of the LCR Enforceability Date is: (1) owned by the Hopi Tribe, whether in its own name or through a related entity; and (2) located outside the exterior boundaries of the Hopi Reservation. "Hopi Lands" shall mean, collectively, the Hopi Trust Land and Hopi Fee Land. Hopi

1.9 1.10

1.11

1.12 1.13

1.14

1.15 1.16

"Hopi Reservation" shall mean, for purposes of this Agreement, District 6, and all lands withdrawn by the Executive Order of Dec. 16, 1882 and partitioned to the Hopi Tribe in accordance with the Act of Dec., 22,1974, Pub.L. 93-531, § 4, 88 Stat. 1713 (codified as amended at 25 U.S.C. §640d-3), by Judgment ,of Partition, Feb. 10, 1977, Sekaquaptewa v.MacDonald, Case No. CIV-579-PCT-JAW
2

(D.Ariz.); affirmed 626 F.2d 113 (9th Cir. 1980); all lands recognized part of the Hapi Reservation in the 1934 Act Case; and individual a!lotments made to members of the l-iopi Tribe within those la;::;ds, all (1s more particularly set forth an the map attached to the Agreement as Exhi:bit).L61. 1.17 "Hopi Tribe" shall mean the 'Hopi Tribe, a Tribe of Hopi Indi:l:ls organized under Section 16 of the Indian Reorganization Act of June 18, 1934,48 Stat. 987 (25 § 476), and duly recognized by the Secretary.

1.18 . "Hopi Tribe Cibola Water" shall mean that water to which the Hopi Tribe is entitled pursuant to Contract No. 04-XX-30-W0432 between the United States and the Hopi Tribe, dated December 14, 2004, and the Hopi Tribe Water Delivery Contract(s). 1.19 "Hopi Trust Land" shall mean land outside of the Hopi Reservation that, as of the LCR Enforceability Date, is held in trust by the United States for the benefit of the Hopi Tribe. "Injury to Water Quality" shall mean any diminution or degradation of the quality of Water due to a change in the salinity or concentration of naturally occurring chemical constituents· of Water and any effect of such a change where the changes in salinity or concentration and the effects of such changes are due to the withdrawal, Diversion or use of Water. "Injury to Water Rights" shall mean an interference with, diminution of, or deprivation of, Water Rights under Federal, State or other law. "LCR" shall mean the Little Colorado River. "LCR Adjudication" shall mean that action pending in the Superior Court of the State of Arizona in and for the County of Apache styled In re: the General Adjudication of All Rights to Use Water in the Little Colorado River System and Source, CIV No. 6417. "LCR Adjudication Court" shall mean the Superior Court of the State of Arizona in and for the County of Apache exercising jurisdiction over the LCR Adjudication. "LCR Decree" shall mean and include any final judgment or decree . entered by the LCR Adjudication Court, including the judgment entered in substantially the same form as the form of judgment attached to the Agreement as Exhibit 3.1.76.
3

1.20

1.21 1.22 1.23

1.24

1.25

1.26

"LCR Enforceability Date" shall mean the date on which the publishes in'the Federal Register the statement of findings described in SectiOii. of the Act. "Lower Colorado River" sha,JJ mean the Colondv River downstream from Lee Ferry within the United States, including the reserv·oirs thereon. For purposes of this Waiver and Release of Claims, the term "Lower Colorado River" shall also include: (1) all tributaries to the Lower Colorado River at or below Lee Ferry other than tributaries located within the State; (2) all Underground Water that is hydrologically connected to the Lower Colorado River; and (3) all Underground Water that is hydrologically connected to tributaries to the Lower Colorado River other than tributaries located within the states of Arizona and New Mexico. "Member" or "Members" shall mean any Indian, person or persons duly enrolled as a member or members of the Navajo Nation, or the Hopi Tribe, as applicable. "Navajo Nation" shall mean the Navajo Nation, a body politic and federally-recognized Indian nation, 60 Fed. Reg. 9249, 9252 (Feb. 16, 1995), also known variously as the "Navajo Tribe," the "Navajo Tribe of Ar,izona, New Mexico & Utah" and the "Navajo Tribe of Indians" and other similar names, and includes all bands of Navajo Indians and chapters of the Navajo Nation. ''Navajo Reservation," for purposes of this Waiver and Release of Claims, shall mean those lands in Arizona within the boundaries of the "Navajo Indian Reservation" defined by the Act ofJune 14, 1934, ch. 521, 48 Stat. 960; all lands withdrawn by the Executive Order of Dec. 16, 1882 and partitioned to the Navajo Nation in accordance with the Act of Dec. 22, 1974, Pub. L. 93-531, § 4, 88 Stat. 1713 (codified as amended at 25 U.S.C. § 640d-3), by Judgment of Partition, Feb. 10, 1977, Sekaquaptewa v. MacDonald, Case No. CIV579-PCT-JAW (D.Ariz.), affirmed 626 F.2d 113 (9th Cir. 1980); all lands taken into trust as a part ofthe Navajo Reservation pursuant to section 11 of the Act of Dec. 22, 1974 (codified as amended at 25 § 640d-1O); and excepting all lands within the Hopi Reservation, all as more particularly set forth on the map attached to the Agreement as Exhibit 3.1.104. In the case ofa conflict between this definition and Exhibit 3.1.104 to. the Agreement, Exhibit 3.1.104 tathe Agreement Shall control. "Norviel Decree" shall mean the final decree and all modifications
4

1.27

1.28

1.29

1.30

1.31

thereof in the case styled: The St. John's Irrigation Company and the Meadows J(eservoir IrrigQJion Company, et aLv. Round. Valley Water .storage&: Ditch Company, Eagar Irrigaticrl Comparly, Springerville Water Right and Ditch Company, pial., Case No. 569 (Apr. 29, 1918) in the State of Arizona Superior Court in and for the County of Apache together with any amendments.thereto.
1.32

"Off-Reservation" shall mean lands located in Arizona outside the exterior boundaries of both the Navajo and Hopi Resecvations. "Paragraph" shall mean a numbered paragraph of this Waiver and Release of Claims, including all Subparagraphs in such Paragraph. "State" shall mean the State of Arizona. "Subparagraph" shall mean a numbered subparagraph of this Waiver and Release of Claims. "Surface Water" shall mean all water that is appropriable under Arizona law, other than appropriable water that is located within the Upper Basin of the Colorado River. "Underground Water" shall mean any water beneath the surface of the Earth, other than Effluent, regardless of its legal characterization as appropriable or non-appropriable under State, Federal or other law. "United States" or "United States of America" in any given reference herein shall mean the United States acting in the capacity as set forth in said reference. When the term 'United States' or 'United States of America' is used in reference to a particular agreement or contract, the term shall mean the United States acting in the capacity as set forth in such agreement or contract. "Upper Basin" shall mean 'Upper Basin' as defined in Article II(f) of the Colorado River Compact. "Waiver and Release of Claims" shall mean this waiver and release of claims by the Hopi Tribe and the United States, a copy of which is attached as Exhibit 14.2.3 to the Agreement. "Water" when used without a modifying adjective shall mean Underground Water, Groundwater, Surface Water, or Effluent. "Water Right" shall mean any right in or to Underground Water, Groundwater, Surface Water or Eft1uent under Federal, State or other

1.33

1.34 1.35

1.36

1.37

'.'
1.38

1.39

1.40

1.41

1.42

5

law. 2.0 W.AJVER AND RELEASE OF CLAIMS. 2.1 Except as provided in Paragraph 3.0 hereof, the Hopi Tribe, on behalf of itself and its Members (but not Members in their capacity as Allottees), pursuant to the authorization set forth in Section _ of the Act, hereby waives and releases any claims against the United States (or agencies, officials or employees of the United States) under Federal, State or other lav{ for all: 2.1.1 Past, present and future claims for Water Rights for Hopi Lands arising from time immemorial and, thereafter, forever; 2.1.2 Past, present and future claims for Water Rights arising from time immemorial and, thereafter, forever, that are based upon aboriginal occupancy of land by the Hopi Tribe, its Members or their predecessors; 2.1.3 Past and present claims for Injury to Water Rights and Injury to Water Quality for Hopi Lands arising from time immemorial through the LCR Enforceability Date; 2.1.4 Past, present and future claims for Injury to Water Rights and Injury to Water Quality arising from time immemorial and, thereafter, forever, that are based upon .aboriginal occupancy of land by the Hopi Tribe, its Members; or their predecessors; 2.1.5 Claims for Injury to Water Rights and Injury to Water Quality arising after the LCR Enforceability Date for Hopi Lands of Water in a manner not resulting from the Diversion or in violation of this Agreement; 2.1.6 Past, present, and future claims arising out of or relating in any manner to the negotiation, execution, or adoption of the Agreement, an applicable settlement judgment or decree, or the Act; 2.1.7 Past,present and future cla,ims for failure to protect, acquire or develop Water Rights for or on behalf of the Hopi Tribe and its Members arising from time immemorial and, thereafter, forever; and

6

2. L8 Past, present, and future claims relating to failure to assert .any claims expressly pursuant to Section _ of the Act. 3.0· RESERVATION OFRIGHTS AND RETENTION OF CLAIMS. 3.1 Notwithstanding the waivers and releases of claims in Paragraph 2.0 hereof, the Hopi Tribe on behalf of itself and its Members (but not Members in their capacity as Allottees) shall retain any right to: 3.1.1 Assert claims for enforcement of the rights of the Hopi Tribe to Hopi Tribe Cibola Water. 3.1.2 Assert claims for injuries to, and seek enforcement of, the rights of the Hopi Tribe under the Norviel Decree, as set forth in the Abstracts attached as to the Agreement as Exhibits 4.2.4.1.A, 4.2.4.1.B and 4.2.4.1.C; 3.1.3 Subject to subparagraph 15.9 of the Agreement, assert claims for injuries to, and seek enforcement of, the rights of the Hopi Tribe and its Members under the Agreement or the Act, in any State court of competent jurisdiction or any Federal court of competent jurisdiction; 3.1.4 Assert claims for injuries to, and seek enforcement of, the rights of the Hopi Tribe under the LCR Decree, the form of which is attached to the Agreement as Exhibit 3.1.76; 3.1.5 Participate in the LCR Adjudication to the extent provided in the Agreement; 3.1.6 Except as provided in the Agreement, object to any claims for Water Rights, Injury to Water Rights or Injury to Water - Quality by or for any other Indian tribe, community, nation or dependent Indian community (as defined in 25 U.S.C § 450b(e)) or the United States on behalf thereof; and 3.1.7 Except as provided in the Agreement, assert past, present, or future claims for Injury to Water Rights or Injury to Water Quality, or any other claims other than a claim for Water Rights, against any tribe, community, nation or dependent Indian community (as defined in 25 V.S.C § 450b(e)) or the United States on behalf thereof.

7

4.0

WAIVER EFFECTIVE UPON LCR ENFORCEABILITY DATE Waiver and Release of Claims shall become effeetiveupon the LCR Enforceability Date. COUNTERPARTS AND DUPLICATE ORIGINALS This Waiver and Release of Claims may be executed in one or more of which shall constitute an original, and all of which, counterparts, when taken together, shall constitute one and the same instrument. This Waiver and Release of Claims may also be executed in duplicate originals, each of which shall constitute an original Agreement.

5.0

IN WITNESS WHEREOF, the Hopi Tribe has executed this Waiver and Release of Claims dated as of the day and year first written above. HOPI TRIBE By: Dated: -----------Chairman Attest: Approved as To Form: - - - - - - - - - - General Counsel

8

EXHIBIT 14.2.4 WAIVF.RAND RELEASE OF CLAIMS OF RIGHTS TOWATRRAND INJURY TO RIGHTS TO WATER FROM THE LOWER COLORADO RIVER BY THE HOPI TRIBE ON BEHALF OF ITSELF AND ITS MEMBERS "(BUT NOT MEMBERS IN THEIR CAPACITY AS ALLOTTEES) AGAINST THE UNITED STATES. This Waiver and Release of Claims dated as of , is entered into by the Hopi Tribe, on behalf of itself and its Members (but not Members in their capacity as Allottees), and the United States on behalf of the Hopi Tribe and its Members (but not Members in their capacity as Allottees), in consideration of the benefits realized under the Northeastern Arizona Indian Water Rights Settlement Agreement dated as of , in accordance with the commitments under Subparagraph 14.2.4 of said Agreement and pursuant to the authorization granted in Section of the Northeastern Arizona Indian Water Rights Settlement Act, P.L. 1.0 DEFIN1TIONS.
1.1
M"'"

"Abstract" shall mean a summary of Water Rights or uses held or owned by any Person, as represented in a form substantially similar to the one attached as Exhibit 3.1.3 to the Agreement. "Act" shall mean the Northeastern Arizona Indian Water Rights Settlement Act. "Agreement" shall mean the Northeastern Arizona Indian Water Rights Settlement Agreement and the Exhibits thereto. "Allottee" or "Allottees" shall mean a person or persons holding a beneficial real property interest in an Allotment. "Allotment" or "Allotments" shall mean an allotment or allotments: (l) originally allotted to an individual identified in the patent as a Navajo or Hopi Indian; (2) located within the exterior boundaries of the Navajo Reservation, within the exterior boundaries of the Hopi Reservation, or on Off-Reservation lands within Apache, Coconino or Navajo Counties, Arizona; and (3) held in trust by the United States for the benefit of an Allottee. "Central Arizona Project" or "CAP" shall mean the reclamation project authorized and constructed by the United States in accordance with Title III of the Colorado River Basin Project Act, 43 U.S.C. §

1.2

1.3

1.4 1.5

1.6

1521, et seq. 1.7 1.8 "CAP \Vater" shall mean 'Project Water' as that terJ1l is defil1ed in the CAP Repayment Stipulation. "Colorado River Compact" shall mean the Colorado River Compact of 1922, as ratified and reprinted at Title 45, Chapter 7, Article 2 of. the Arizona Revised Statutes. "Diversion" shall mean the act of Diverting. "Divert," "Diverting," and "Diverted" shall mean to receive, withdraw or develop and produce or capture Groundwater, Surface Water, CAP Water, Colorado River water or Eft1uent by means of a ditch, canal, . flume, bypass, pipeline, pit, collection or infiltration gallery, conduit, Well, pump, turnout, or other mechanical device or an)"'other human act, including the initial impoundment of water. "Effluent". shall mean water that has been used for domestic, municipal or industrial purposes and that is available for use for any purpose, but water shall not become Effluent solely as a result of having been used for hydropower generation. "Exhibit" shall mean an exhibit to the Agreement as enumerated in subparagraph 3.2 thereof. "Groundwater" shall mean all water beneath the surface of the Earth within the State of Arizona that is not: (1) Surface Water; (2) Underground Water within the Upper Basin; (3) Lower Colorado River water; or (4) Effluent. "Hopi Fee Land" shall mean land, other than Hopi Trust Land, that as of the LCR Enforceability Date is: (1) owned by the Hopi Tribe, whether in its own name or through a related entity; and (2) located outside the exterior boundaries of the Hopi Reservation. "Hopi Lands" shall mean, collectively, the Hopi Reservation, Hopi Trust Land and Hopi Fee Land. "Hopi Reservation" shall mean, for purposes, of this Agreement, District 6, and all lands withdrawn by the Executive Order of Dec. 16, 1882 and partitioned to the Hopi Tribe in accordance with. the Act of Dec. 22, 1974, Pub. L. 93':'531,§ 4, 88 Stat. 1713 (codified as at 25 U.S.C. § 640d-3), by Judgment of Partition, Feb. 10, 1977, Sekaquaptewa v. MacDonald, Case No. CIV-579-PCT-JAW
2

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1.11

1.12 1.13

1.14

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(D.Ariz.), affirmed 626 F.2d J 13 (9th Cir. 1980); all lands recognized as part of the Hopi Reservation in the 1934 Acf and individual allotrrlents made to members of the Hopi Tribe within those lanrls,aH as more particularly set forth on the.map attached to the Agreement as Ex.,ibit 3.1.61. 1.17 "Hopi Tribe" shall mean the Hopi a Tribe of Hopi Indians orga!"lizedunder Section 16 of the Indian Reorganization Act of June 18; 1934,48 Stat. 987 (25 U.S.c, § 476), and duly recognized by the Secretary. "Hopi Tribe Cibola Water" shall mean that water to which the Hopi Tribe is entitled pursuant to Contract No. 04-XX-30-W0432 between the United States and the Hopi Tribe, dated December 14, 2004, and the Hopi Tribe Water Delivery Contract(s). "Hopi Trust Land" shall mean land outside of the Hopi Reservation that, as of the LCR Enforceability Date, is held in trust by the United States for the benefit of the Hopi Tribe. "Injury to Water Quality" shall mean any diminution or degradation of the quality of Water due to a change in the salinity or concentration of naturally occurring chemical constituents of Water and any effect of such a change where the changes in salinity or concentration and the effects of such changes are due to the withdrawal,· Diversion or use of Water. "Injury to Water Rights" shall mean an interference with, diminution of, or deprivation of, Water Rights under Federal, State or other law. "LCR" shall mean the Little Colorado River. "LCR Adjudication" shall mean that action pending in the Superior Court of the State of Arizona in and for the County of Apache styled In re: the General Adjudication of All Rights to Use Water in the Little Colorado River System and Source, ClV No. 6417. "LCR Adjudication Court" shall mean the Superior Court of the State of Arizona in and for the County of Apache exercising jurisdiction over the LCR Adjudication. "LCR Decree" shall mean and include any final judgment or decree entered by the LCR Adjudication Court, including the judgment entered in substantially the same form as the form of judgment attached to the Agreement as Exhibit 3.1.76.
3

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1.26

"Lower Colorado River" shall mean the Colorado River downstream from ,Lee Ferry within the United States, ilic!udingthe reservoirs thereon.. For of this Waiver and Release of Claims, the tern ((Lower Colorado River" shall also include: (1) all tributaries to the Lower Colorado River at or below Lee Ferry' other than tributaries located wit.;'in the State; (2) all Underground Water that is hydrologically connected to the Lower Colorado River; and (3) all Underground Water is hydrologically connected to tributaries to the Lower Colorado River other than tributaries located within the states of Arizona and New Mexico.
I,

1.27

"Lower Colorado River Enforceability Date" shall mean the date on whieh the Secretary publishes in the Federal Register the statement of findings described in Section of the Act. "11ember" or "Members" shall mean any Indian, person or persons duly enrolled as a member or members of the Navajo Nation, or the Hopi Tribe, as applicable. "Navajo Nation" shall mean the Navajo Nation, a body politic and federally-recognized Indian nation, 60 Fed. Reg. 9249, 9252 (Feb. 16, 1995), also known variously as the "Navajo Tribe," the "Navajo Tribe of Arizona, New Mexico & Utah" and the "Navajo Tribe of Indians" and other similar names, and includes all bands of Navajo Indians and chapters of the Navajo Nation. "NavcYo Reservation," for purposes of this Waiver and Release of Claims, shall mean those lands in Arizona within the boundaries of the "Navajo Indian Reservation" defined by the Act of June 14, 1934, ch. 521, 48 Stat. 960; all lands withdrawn by the Executive Order of Dec. 16, 1882 and partitioned to the Navajo Nation in accordance with the Act of Dec. 22, 1974, Pub. L. 93-531, § 4, 88 Stat. 1713 (codified as amended at 25 U.S.C. § 640d-3), by Judgment of Partition, Feb. 10, 1977, Sekaquaptewa v. MacDonald, Case No. CIV579-PCT-JAW (D.Ariz.), affirmed 626 F.2d 113 (9th Cir. 1980); all lands taken into trust as a part of the Navajo Reservation pursuant to section 11 of the Act. of Dec. 22, 1974 (codified as. amended at 25 U.S.C.§ 640d-l0); and excepting all lands within the Hopi Reservation, alIas more particularly set forth on the map attached to the Agreement as Exhibit 3.1.104. In the case of a conflict between ,this definition and Exhibit 3.1.104 to the Agreement, Exhibit 3. L 104 .. . to the A.greement'shan control. "Norviel Decree" shall mean the final decree and all modifications
4

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1.30

1.31

..

-<"

1.32

thereof in the case styled: The St. J.'J.hn's Irrigation Company and the lJ{-:Jadows Reservoir Irrigation Company, et al. v. Round Valley Water Storage & Eitch Company, Eagar Irrigation Company; Springerville Water Right and Ditch Company, et at., Case No; 569 (Apr. 29, j 913) in the State of Arizona Superior Court in and for the Coqnty of Apache together with any amendments thereto. "Off-Reserv?tion" shall mean lands located in Arizona outside the exterior boundaries of both the Navajo and Hopi Reservations. "Paragraph" shall mean a numbered paragraph of this Waiver and Release of Claims, including all Subparagraphs in such Paragraph. "State" shall mean the State ofArizona. "Subparagraph" shall mean a numbered subparagraph of this Waiver and Release of Claims. "Surface Water" shall mean all water that is appropriable under Arizona law, other than appropriable water that is located within the Upper Basin of the Colorado River. "Underground Water" shall mean any water beneath the surface ofthe Earth, other than Effluent, regardless of its legal characterization as appropriable or non-appropriable under State, Federal or other law. "United States" or "United States of America" in any given reference herein shall mean the United States acting in the capacity as set forth in said reference. When the term 'United States' or 'United States of America' is used in reference to a particular agreement or contract, the term shall mean the United States acting in the capacity as set forth in such agreement or contract. "Upper Basin" shall mean 'Upper Basin' as defined in Article lI(f) of the Colorado River Compact. "Waiver and Release of Claims" shall mean this waiver and release of claims by the Hopi Tribe and the United States, a copy of which is attached as Exhibit 14.2.4 to the Agreement. "Water Right" shall mean any right in or to Underground Water, Groundwater, Surface Water or Effluent under Federal, State or other law.

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lAO

1041

2.0

WAIVER AND RELEASE OF CLAIMS.

5

2.1

Except as provideu in Paragraph 3.0 the Hopi Ti"ibe, on .behalf of itself and its (but not fvIel11bers in their capacity as pursuant to the aUthorization set forth in Section _ of the Act, hereby waive and release any claims against the United States (or agSilcies, officials or employees of the United States) under Federal, state or other law for all: 2.1.1 Past, present and future claims of rights to water from the Lower Colorado River for Hopi Lands arising from time immemorial and, thereafter, forever;
..

2.1.2

present and future claims of rights to water from the Lower Colorado River arising from time immemorial and, thereafter, forever, that are based upon aboriginal occupancy of land by the Hopi Tribe, its Members or their predecessors;

2.1.3 Past, present and future claims of injury to rights to water from the Lower Colorado River for Hopi Lands arising from time immemorial and, thereafter, forever;

2.1.4 Past, present and future claims of injury to rights to water from the Lower' Colorado River arising from time immemorial and, thereafter, forever, that are based upon aboriginal occupancy of land by the Hopi Tribe, its Members, or their predecessors;
2.1.5 Past, present, and future claims arising out of or relating in any manner to the negotiation, execution, or adoption of the Agreement, an applicable settlement judgment or decree, or the Act;

2.1.6 Past, present and future claims for failure to protect, acquire or develop rights to water from the Lower Colorado River for or on behalf of the Hopi Tribe and its Members arising from time immemorial and, thereafter, forever; and
2.1.7 Past, present, and future claims relating to failure to assert

any claims expressly waived pursuant to Section _ Act.

of the

6

3.0

RESERVATION OF RIGHTS A1'-ID RETENTION OF CLAIMS. 3.1 Notwithstanding Waiver and Release of Claims lrrParagrapi12.0 hereof, the Hopi Tribe on behalf of itself and its Members (but not Members in their capacity as Allottees) shall retain any right to:

3. r.1 Assert claims for enforcement of the rights of.the Hopi Tribe to Hopi Tribe Cibola Water.
3.1.2 Assert claims for injuries to, and seek enforcement of, the rights of the Hopi Tribe under the Norvie1 Decree, as set forth in the Abstracts attached as to the Agreement as Exhibits 4.2.4.1:A, 4.2.4.1.B and 4.2.4.1.C; 3.1.3 Subject to subparagraph 15.9 of the Agreement, assert claims for injuries to, and seek enforcement of, the rights of the Hopi Tribe and its Members under the Agreement or the Act, ill any State court of competent jurisdiction or any Federal court of competent jurisdiction; 3.1.4 Assert claims for injuries to, and seek enforcement of, the rights of the Hopi Tribe under the LCR Decree, the fonn of which is attached to the Agreement as Exhibit 3.1.76; / 3.1.5 Participate in the LCR Adjudication to the extent provided in the Agreement; . 3.1.6 Except as provided in the Agreement, object to any claims for Water Rights, Injury to Water Rights or Injury to Water Quality by or for any other Indian tribe, community, nation or dependent Indian community (as defined in 25 V.S.C § 450b(e)) or the United States on behalf thereof; and 3.1.7 Except as provided in the Agreement, assert past, present, or future claims for Injury to Water Rights or Injury to Water Quality, or any other claims other than a claim for Water Rights, against any tribe, community, nation or dependent Indian community (as defined in 25 U.S.C § 450b(e)) or the United States on behalf thereof.

7

4.0

EFFECTIVE UPON LO\VER COLORADO RlVER E]WORCEABILITY DATE This Waiver and Release of Claims shall become effective upon the Lower Colorado River EnforceabilityDate.

5.0

COUNTERPARTS AND DUPLICATE ORIGINALS This Waiver and Release of Claims may be executed in one or more counterparts, each of which shall constitute an original, and all of which, when taken together, shall constitute one and the same instrument. This Waiver and Release of Claims may also be executed in duplicate originals, each of which shall constitute an original Agreement.

IN WITNESS WHEREOF, the Hopi Tribe has executed this Waiver and Release of Claims dated as ofthe day and year first written above.

HOPI TRIBE
By: Dated: Chairman Attest Approved as To Form: General Counsel _

_

8

EXHIBIT 14.3.1 \VAIVER AND RELEASE OF CLAIMS'FOR \VkTER RIGHTS, INJURY TOWATEl{ RIGJlTS, AND INJUR. Y QUALITY BY THE UNITED-BTATES AS TRUSTEE FORALLOTTEES.
This Waiver and Release'ufClaims dated as of , is entered into by the United States as trustee for the Allottees, in consideration of the benefits realized under the Northeastern Arizona Indian Water Rights Settlement Agreement dated as of , in accordance with the commitments under Subparagraph 14.3.1 of said Agreement and pursuant to the authorization granted iri Section _ ofthe Northeastern Arizona Indian Water Rights Settlement Act, P.L. 1.0 DEFINITIONS.
1.1

"Act" shall mean the Northeastern Arizona Indian Water Rights Settlement Act. "Agreement" shall mean the Northeastern Arizona Indian Water Rights Settlement Agreement and the Exhibits thereto. "Allottee" or "Allottees" shall mean a person or persons holding a beneficial real property interest in an Allotment. "Allotment" or "Allotments" shall mean an allotment or allotments: (1) originally allotted to an individual identified in the patent as a Navajo or Hopi Indian; (2) located within the exterior boundaries of the Navajo Reservation, within the exterior boundaries of the Hopi Reservation, or on Off-Reservation lands within Apache, Coconino or Navajo Counties, Arizona; and (3) held in trust by the United States for the benefit of an Allottee. "Central Arizona Project" or "CAP" shall mean the reclamation project authorized and constructed by the United States in accordance with Title III of the Colorado River Basin Project Act, 43 U.S.C. § 1521, et seq. "CAP Water" shall mean 'Project Water' as that tenn is defined in the CAP Repayment Stipulation. "Colorado River Compact" shall mean the Colorado River Compact of 1922, as ratified and reprinted at Title 45, Chapter 7, Article 2 of the Arizona Revised Statutes.

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"Diversion" shall mean the actofDiverting. ,"Divert," "Diverting," and "Diverted" shall mean to r,eceive, withdraw or develop and. produce or capture Groenuwater, Surface Water, CAP Water,' Colorado River water or Effluent by means of a ditch, canal, flume, bypass', pipeline, pit, collection or infiltration conduit, Well, pump, turnout, or other mechanical device or" . any other human act, inc1udingthe initial impoundment of water. "Effluent" . shall mean water that has been used for domestic, municipalor purposes and that is available for use for any purpose, but water shall not become Effluent solely as a result of having been used for hydropower generation. "Exhibit" shall mean an exhibit to the Agreement as enumerated in subparagraph 3:2 thereof. "Groundwater" shall mean all water beneath the surface of the Earth within the State of Arizona that is not: (1) Surface Water; (2) Underground Water within the Upper Basin; (3) Lower Colorado River water; or (4) Effluent. "Hopi Reservation" shall mean, for purposes of this Agreement, District 6, and all lands withdrawn by the Executive Order of Dec. 16, 1882 and partitioned to the Hopi Tribe in accordance with the Act of Dec. 22, 1974, Pub. L. 93-53 i, § 4,88 Stat. 1713 (codified as amended at 25 U.S.C. § by Judgment of Partition, Feb. 10, 1977, Sekaquaptewa v. MacDonald, Case No. CIV-579-PCT-JAW (D.Ariz.), affirmed 626 F2d 113. (9th Cir. 1980); all lands recognized as part of the Hopi Reservation in the 1934 Act Case; and individual allotments made to members of the Hopi Tribe within those lands, all as more particularly set forth on the map attached to the Agreement as Exhibit 3.1.61. "Hopi Tribe" shall mean the Hopi Tribe, a Tribe of Hopi Indians organized under Section 16 of the Indian Reorganization Act of June 18, 1934,48 Stat. 987 (25 U.S.C. § 476), and duly recognized by the Secretary. "Injury to Water Quality" shall mean any diminution or degradation of the quality of Water due to a change in the salinity or concentration of naturaUyoccurringchemical constituents of Water and any effect of such a change where the changes in salinity or concentration and the effects of such .changes are due to the

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withdrawal, Diversion or use QfWatcr.
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"Injury to Water Rights" shall mean an interference with, diminution of, or deprivaticn of, Water Rights undc£Federal, State or other law. "LCR" shaH mean the Little Colorado River. "LCR Adjudication" shall mean tha.t action pending in the Superior Court of the State of Arizona in and for the County of Apache styled In re: the Gzneral Adjudication of All Rights to Use Water in the Little Colorado River System and Source, CIV No. 6417. "LCR Adjudication· Court" shall mean the Superior. Court of the State of Arizona in and for the County of Apache exercising jurisdiction over the LCR Adjudication. "LCR Decree" shall mean and include any final judgment or decree entered by the LCR Adjudication Court, including the judgment entered in substantially the same form as the fonn of judgment attached to the Agreement as Exhibit 3.1.76. "LCR Enforceability Date" shall mean the date on which the Secretary publishes in the Federal Register the statement of findings described in Section of the Act. "Lower Colorado River" shall mean the Colorado River downstream from Lee Ferry within the United States, including the reservoirs thereon. For purposes of this Waiver and Release of Claims, the tenn "Lower Colorado River" shall also include: (1) all tributaries to the Lower Colorado River at or below Lee Ferry other than tributaries located within the State; (2) all Underground Water that is hydrologically connected to the Lower Colorado River; and (3) all Underground Water that is hydrologically connected to tributaries to the Lower Colorado River other than tributaries located within the states of Arizona and New Mexico. "Navajo Nation" shall mean the Navajo Nation, a body politic and federally-recognized Indian nation, 60 Fed. Reg. 9249, 9252 (Feb. 16, 1995), also known variously as the "Navajo Tribe," the "Navajo Tribe of Arizona, New Mexico & Utah" and the "Navajo Tribe of Indians" and other similar names, and includes all bands of Navajo Indians and chapters of the Navajo Nation. "Navajo Reservation," for purposes of this Waiver and Release of Claims, shall mean those lands in Arizona within the boundaries of

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the "Navajo Indian Reserv2.tion" defined by the Act of June 14, 1934, ch. 521, 48 Stat. 960; all lands withdrawp by the Executive Order .of Dec. 16, 1882 and partitioned tv the Navajo Nation jj, . accordance with the Act of Dec. 22, 1974; Pub. L. 93-531'," § 4, 88 Stat. 1713 (codified as amended, at 25 U.S.C. § 640d-3), by Judgment ofPartition,-Feb. 10, 1977, Sekaquaptewa v. MacDonald, Case No. ClV-579-PCT-JAW (D.Ariz.), affirmed 626 F.2d 113 (9th Cir. 1980); all lands taken into trust as a part of the. Navajo Reservation pursuant· to section 11 of the Act of Dec. 22, 1974 (codified as amended at 25 U.S.C. § 640d-10); and excepting all lands within the Hopi Reservation, all as more particularly set forth on the map attached to the Agreement as Exhibit 3.1.104. In the case of a conflict between this definition and Exhibit 3.1.104 to the Agreement,Exhibit 3.1.104 to the Agreement shaH control.
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"Off-Reservation" shall mean lands located in Arizona outside the exterior boundaries of both the Navajo and Hopi Reservations. "Paragraph" shall mean a numbered paragraph of this Waiver and Release of Claims, including all Subparagraphs in such Paragraph. "State" shall mean the State of Arizona. "Subparagraph" shall mean a numbered subparagraph of this Waiver and Release of Claims. "Surface Water" shall mean all water that is appropriable under Arizona law, other than appropriable water that is located within the Upper Basin of the Colorado River. "Underground Water" shall mean any water beneath the surface of the Earth, other than Effluent, regardless of its legal characterization as appropriable or non-appropriable under State, Federal or other law. "United States" or "United States of America" in any given reference herein shall mean the United States acting in the capacity as set forth in said reference. When the term 'United States' or 'United States'of America' is used in reference to a particular agreement or contract, the. term shall meap the United States acting· . in the capacity as set forto. in:such agreement or contract. "Upper Basin" shall mean· 'Upper Basin' as' defined in Article II(f) of the Colorado River Compact.

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"Waiver and Release of Claims" shaH mean this waiver and release of claims by the United States as truste\; for the Allottees, a copy of which is attached as Exhibit 14.3.1 to the "Water" when used without a modifying adjective shall mean UndergrOlind Water, Groundwater, Surface Water, or Effluent. "Water Right" shall mean any right in or to Underground Water, Groundwater, Surface \Vater or Effluent under Federal, State or other law.

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2.0

WAIVER AND RELEASE OF CLAIMS. 2.1 Except as provided in Paragraph 3.0 hereof, the United States acting in its capacity as trustee for the Allottees, pursuant to the of the Act, hereby waives and authorization set forth in Section releases any 'claims against the State (or any agency or political subdivision of the State), the Navajo Nation, the Hopi Tribe, or any other person, entity, corporation or municipal corporation under Federal, State or other law, for all: 2.1.1 Past, present, and future claims for Water Rights for Allotments arising from time immemorial, and, thereafter, forever; 2.1.2 Past, present, and future claims for Water Rights arising from time immemorial and, thereafter, forever, that are based on aboriginal occupancy of land by .Allottees, or their predecessors; 2.1.3 Past and present claims for Injury to Water Rights and Injury to Water Quality for Allotments arising from time immemorial through the LCR Enforceability Date; 2.1.4 Past, present, and future claims for Injury to Water Rights and Injury to Water Quality arising from time immemorial and, thereafter, forever, that are based on aboriginal occupancy of land by Allottees or their predecessors; 2.1.5 Claims for Injury to Water Rights and Injury to Water Quality arising after the LCR Enforceability Date for Allotments resulting from the Diversion or Use of Water in a manner not in violation of the Agreement; and

2.1.6 Past, present, and future claims arising out of or relating in . any manner to the lJ.egotiation, execution, or ad6ft,on of the Agreen:ent, an f'lpplicable settlement judgment or decree, or the Act. . . 3.0 RESERVATION OF RIGHTS AND RETENTION OF CLAIMS. 3.1 Notwithstanding the Waiver and Release af Claims in Paragraph 2.0 hereof, the United States acting in its capacity as trustee fQf the< Aliottees shall retain any right to: 3.1.1 Subject to subparagraph 15.9 of the Agreement, assert claims of -rights, if any, to water from the Upper Basin of the Colorado River for Allotments; 3.1.2 Subject to subparagraph 15.9 of the Agreement, assert claims for injuries to, and seek enforcement of, the rights of Allottees, if any, under the Agreement or the Act, in any State court of competent jurisdiction or any Federal court of competent jurisdiction;
\

3.1.3 Assert claims for injuries to, and seek enforcement of, the rights of Allottees, if any, under the LCR Decree, the form of which is attached to the Agreement as EXhibit 3.1.76; 3.1.4 Participate in the LCR Adjudication to the extent provided in the Agreement; 3.1.5 Except as provided in the Agreement, object to any claims for Water Rights, Injury to Water Rights or Injury to Water Quality by or for any other Indian tribe, community, nation or dependent Indian community (as defined in 25 U.S.C § 450b(e)) or the United States on behalf thereof; and 3.1.6 Except as provided in the Agreement, assert past, present, or future claims for Injury to Water Rights or Injury to Water Quality, if any, or any other claims other than a claim for . Water Rights, against any. tribe, community, nation or dependent Indian community (as defined in 25 U.S.C § 450b(e)) or the United States on behalf thereof. 4.0 WAIVER EFFECTIVE UPON LCRENFORCEABILITY DATE . This Waiver and Release of Claims shall become effective upon the LCR Enforceability Date. . .

5.0

COUNTERPARTS AND DUPLICATE ORIGINALS This Waiver and of Claims may be executeci. in one or r:lore counterparts, each of which shall constitute an original, and all of which, when taken together, shall constitute one and the same instmment. This Waiver and Release of Claims may also be executed in duplicate originals, each of which sh:'l.U constitute an origitial Agreement.

WITNESS WHEREOF, the United States has executed this Waiver and Release of Claims dated as of the day and year first written above.

THE UNITED STATES OF AMERICA
By:

Dated:- - - - - - - - - - - Secretary of the Interior

E:Y.HIBIT 14.3.2 V,.1AIVER-AND RELEASE OF CllAIMS OF RIGHTS TO WATER AND INJURY TO RIGHTS TO WATER FROM THE LOWER COLORADO RIVElfBY THE UNITED STATES AS TRUSTE'E FORALLOTTEES.
This 'Waiver and Ret;::ase of Claims dated as of , is entered into by the United States as trustee for the Allottees, in consideration of the benefits realized under L'le Northeastern Arizona Indian \Vater Rights Settlement , in accordance with the commitments Agreement dated as of under Subparagraph 14.3.2 of said Agreement and pursuant to the authorization granted in Section _ of the Northeastern Arizona Indian Water !3-ights Act, P.L. 1.0 DEFINITIONS.
1.1

"Act" shall mean the Northeastern Arizona Indian Water Rights Settlement Act. "Agreement" shall mean the Northeastern Arizona Indian Water Rights Settlement Agreement and the Exhibits thereto. "Allottee" or "Allottees" shall mean a person or persons holding a beneficial real property interest in an Allotment.· "Allotment" or "Allotments" shall mean an allotment or allotments: (1) originally allotted to an individual identified in the patent as a Navajo or Hopi Indian; (2) located within the exterior boundaries of the Navajo Reservation, within the exterior boundaries of the Hopi Reservation, or on Off-Reservation lands within Apache, Coconino or Navajo Counties, Arizona; and (3) held in trust by the United States for the benefit of an Allottee. "Central Arizona Project" or "CAP" shall mean the reclamation project authorized and constructed by the United States in accordance with Title III of the Colorado River Basin Project Act, 43 U.S.C. § 1521, et seq. "CAP Water" shall mean 'Project Water' as that term is defined in the CAP Repayment Stipulation. "Colorado River Compact" shall mean the Colorado River Compact of 1922, as ratified and reprinted at Title 45, Chapter 7, Article 2 of the Arizona Revised Statutes.

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"Diversion" shall mean the act of Diverting. "Divert," "Diverting," and "Diverted" shall mean to withdra-,,"·"()r develop and produce or capture Groundwater, Surface Water, CAP Colora1' Arizona that, as of the LCR Eriforceability Date, is held In- trust by the United States for the benefit of the Navajo Nation. "Off-Reservation" shall mean lands located in Arizona outside the exterior boundaries of both the Navajo and Hopi Reservations. "Paragraph" shall mean a numbered paragraph of this Waiver and Release of Claims, including all Subparagraphs in such Paragraph. "State" shall mean the State of Arizona. "Subparagraph" shall mean a numbered subparagraph of this Waiver and Release of Claims. "Surface Water" shall mean all water that is appropriable under Arizona law, other than appropriable water that is located within the Upper Basin ofthe Colorado River. "Underground Water" shall mean any water beneath the surface of the Earth, other than Eft1uent, regardless of its legal· characterization as appropriable or non-appropriable under State, Federal or other law. "United States" or "United States of America" in any given reference herein shall mean the United States acting in the capacity as set forth in said reference. When the term 'United States' or 'United States of America' is used in reference to a particular agreement or contract, the term shall mean the United States acting in the capacity as seC forth in such agreement or contract. "Upper Basin" shall mean 'Upper Basin' as defined in Article lI(t) of the Colorado River Compact. "Waiver and Release of Claims" shall mean this waiver and release of claims by the United States, acting in all of its capacities, a copy of which is attached as Exhibit 14.4 to the Agreement. "Water" when used without a modifying adjective shall mean Underground Water, Groundwater, Surface Water, or Effluent.

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"Water Right" shall mean any right in or to Underground Water, Gro1 mdwater, Surface \Vater or Effluent underFederal, State or other law.

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WAIVER AND RELEASE OF CLAIMS. 2.1 Except as provided in Paragraph 3.0 hereof, the United States, in all itscapacities (except as trustee for an Indian tribe other than the Navajo Nation and the Hopi Tribe), pursuant to the authorizations set forth in Section _ of the Act, hereby waives and releases any and all claims against the Navajo Nation and the Hopi Tribe, or any agency, official or employee of the Navajo Nation or the Hopi Tribe, under Federal, State or any other law for all: 2.1.1 Past, present, and future claims arising out of or relating in any manner to the negotiation or execution of the Agreement, or the negotiation or enactment of the Act; and 2.1.2 Past and present claims for Injury to Water Rights and Injury to Water Quality resulting from the Diversion or use ofWater on Navajo Lands and Hopi Lands arising from time immemorial through the LCR Enforceability Date; and 2.1.3 Claims for Injury to Water Rights and Injury to Water Quality arising after the LCR Enforceability Date resulting from the Diversion or use of Water on Navajo Lands and Hopi Lands in a manner not in violation of the Agreement.

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RESERVATION OF RIGHTS AND RETENTION OF-CLAIMS. 3.1 Notwithstanding the waiver of claims and release in Paragraph 2.0 hereof, the United States. acting in all of. its capacities, shall retain any right to: 3.1.1 Subject to subparagraph 15.9 of the Agreement, assert claims for injuries to, and seek of the Agreement or the Act, in any State court of competent jurisdiction or any Federal court of competent jurisdiction; 3.1.2 Enforce the Gila River Adjudication Decree, the form of which is attached to the Agreement as Exhibit 3.1.54; and 3.1.3 . Enforce the LOR Decree, the form of which is attached as to the Agreement as Exhibit 3.1.76.

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WAIVER EFFECTIVE UPON LCR ENFORCEABILITY DATE.

This W?:iver and Release of Claims shall become effective upon the LCR Enforceability Date. . 5.0 COUNTERPARTS AND DUPLICATE ORIGIi"JALS

This Waiver and Release of Claims may be executed in one or more counterparts, each of which shall constitute an original, and all of which, when taken together, shall constitute one and the same instrument. This Waiver and Release of Claims may also be executed in duplicate originals, each of which shall constitute an original Agreement. IN WITNESS WHEREOF, the United States has executed this Waiver and Release of Claims dated as of the day and year first written above.

THE UNITED STATES OF AMERICA
By: Dated:- - - - - - - - - - - Secretary of the Interior

EXHIBIT 14.5.1 'NAIVER AND RELEASE OF CLAIMS FOR INJURY TO WATER RIGHTS AND INJURYT'O WATER QUALITY BY THEPARTIES 2 EXCEPT THE UNITED STATES. TIiE NAVAJO NATION AND THE HOPI TRIBE FOR CLAIMS AGAINST THE NAVA.TO NATION, ITS MEMBERS (BUT NOT MEMBERS IN THEiR CAPACITY AS ALLOTTEES), AND THE UNITED STATES ACTING IN ITS CAPACITY AS TRUSTEE FOR THE NAVAJO NATION ANn ITS IVIEMBERS (BUT NOT MEMBERS IN THEIR CAPACITYAS ALLOTTEES). This Waiver and Release of Claims dated as of ; is entered into by the Parties, Except the United States, the Navajo Nation and the Hopi Tribe, in consideration of the benefits realized under the Northeastern Arizona Indian Water Rights Settlement Agreement dated as of , and in accordance with the commitments under Subparagraph 14.5.1 of said Agreement. 1.0 DEFINITIONS.
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"Act" shall mean the Northeastern Arizona Indian Water Rights Settlement Act. "Agreement" shall mean the Northeastern Arizona Indian Water Rights Settlement Agreement and the Exhibits thereto. "Allottee" or "Allottees" shall mean a person or persons holding a beneficial real property interest in an Allotment. "Allotment" or "Allotments" shall mean an allotment or allotments: (1) originally allotted ·to an individual identified in the patent as a Navajo or Hopi Indian; (2) located within the exterior boundaries of the Navajo Reservation, within the exterior boundaries of the Hopi Reservation, or on Off-Reservation lands within Apache, Coconino or Navajo Counties, Arizona; and (3) held in trust by the United States for the benefit of an Allottee. "Central Arizona Project" or "CAP" shall mean the reclamation project authorized and constructed by the United States in accordance with Title III of the Colorado River Basin Project Act, 43 U.S.C. § 1521, et seq. "CAP Water" shall mean 'Project Water' as that term is defined in the CAP Repayment Stipulation. "Colorado River Compact" shall mean the Colorado River Compact

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of 1922, as ratified and reprinted at Title 45, Chapter 7, Article 2 of the Arizona Revised Statutes.
LR
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"Diversion" shaH mean the act of Diverting. "Divert," "Diverting,': and "Diverted;' shall mean to receive, withdraw or develop and produce or capture Groundwater, Surface Water, CAP Water, Colorado River water or Eft1uent by means of a ditch, canal" flume, bypass, pipeline, pit, collection or infiltration gallery, conduit, Well, pump, turnout, or other mechanicai device or any other human act, including the initial impoundment of water. "Effluent" shall mean water that has been used for domestic, municipal or industrial purposes and that is available for use for any purpose, but water shall not become Effluent solely as a result of having been used for hydropower generation. "Exhibit" shall mean an exhibit to the Agreement as enumerated in subparagraph 3.2 thereof. "Gila River Adjudication'" shall mean that action pending in the Superior Court of the State of Arizona in and for the County of Maricopa styled In re the General Adjudication ofAll Rights To Use Water in The Gila River System and Source, W-l (Salt), W-2 (Verde), W-3 (Upper Gila), W-4 (San Pedro) (Consolidated). "Gila River Adjudication Court" shall mean the Superior Court of the State of Arizona in and for the' County of Maricopa exercising jurisdiction over the Gila River Adjudication. "Gila River Adjudication Decree" shall mean and include any final judgment' or .decree entered by the Gila River Adjudication Court, including the judgment entered in substantially the same form as the form ofjudgment attached to the Agreement as Exhibit 3.1.54. "Groundwater" shall mean all water beneath the surface of the Earth within the State of Arizona that is not: (1) Surface Water; (2) Underground Water within the Upper Basin; (3) Lower Colorado River water; or (4) Effluent. "Hopi Reservation" shall mean, for purposes of this Agreement, District 6, and all lands withdrawn by the Executive Order of Dec. 16, 1882 and partitioned to the Hopi Tribe in accordance with the Act of Dec. 22,1974, Pub. L. 93-531, § 4,88 Stat. 1713 (codified as amended at 25 U.S.C. § 640d-3), by Judgment of Partition, Feb. 10,

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1977, Sekaquaptewa v. j'vfacDona!d, Case No. CIV,-579-PCT-JAW (O.Ariz.), . affinned 626 F.2d 113 (9th Cir. 1980): all lands part of the Hopi Reservation in the 1934 Act Case; and individual allotments made to members of the Hopi Tribe within those lands, all as, more particularly set forth on the map attached to the Agreement as Exhibit 3.1.61.
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"Hopi Tribe'; shall mean the Hopi Tribe, a Tribe of Hopi Indians organized under Section 16 of the Indian Reorganization Act of June 18, 1934,48 Stat. 987 (25 U.S.C. § 476), and duly recognized by the Secretary. "Injuryto Water Quality" shall mean any diminution or degradation of the quality of Water due to a change in the salinity or concentration of naturally occurring chemical constituents of Water and any effect of such a change where the changes in salinity or concentration and the effects o( such changes are due to the withdrawal, Diversion or use of Water. "Injury to Water Rights" shall mean an interference with, diminution of,. or deprivation of, Water Rights under Federal, State or other law. "LCR" shall mean the Little Colorado River. "LCR Adjudication" shall mean that action pending in the Superior Court of the State of Arizona in and for the County of Apache styled In re: the General Adjudication of All Rights to Use Water in the Little Colorado River System and Source, CIV No. 6417. "LCR Adjudication Court" shall mean the Superior Court of the State of Arizona in and for the County of Apache exercising jurisdiction over the LCR Adjudication. "LCR Decree" shall mean and include any final judgment or decree entered by the LCR Adjudication Court, including the judgment entered in substantially the same form as the form of judgment attached to the Agreement as Exhibit 3.1.76.. "LCR Enforceability Date" shall mean the date on which the Secretary publishes in the Federal Register the statement of findings described in Section of the Act. "Lower Colorado River" shall mean the Colorado River downstream from Lee Ferry within the United States, including the reservoirs thereon. For purposes of this Waiver and Release of Claims, the

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term "LO\yer Colorado River" shall also include: (1) all tributaries to the Lower Coloradn River. at or below Lee Ferry other than tributaries located wiihin the-State; (2) all Underground Water that is hydrologically .conrtected to the Lower Colorado River; and (3) all Underground Water that is hydrologically connected to tributaries to the Lower Colorado River other than tributaries located within the states of Arizona (tl1.d New Mexico. 1.26 "ivlember" or "Members" shall mean any Indian, person or persons duly enrolled as a member or members of the Navajo Nation, or the Hopi Tribe, as applicable. "Navajo Fee.Land" shall mean land, other than Navajo Trust Land, that as of the LCR Enforceability Date is: (1) owned by the Navajo Nation, whether in its own name or through a related entity; and (2) located outside the exterior boundaries of the Navajo Reservation in Arizona. "Navajo Lands" shall mean, collectively, the Navajo Reservation, Navajo Trust Land and Navajo Fee Land. "Navajo Nation" shall mean the Navajo Nation, a body politic and federally-recognized Indian nation, 60 Fed. Reg. 9249, 9252 (Feb. 16, 1995), also known variously as the "Navajo Tribe," the "Navajo Tribe of Arizona, New Mexico & Utah" and the "Navajo Tribe of Indians" and other similar names, and includes all bands of Navajo Indians and chapters of the Navajo Nation. "Navajo Reservation," for purposes of this Waiver and Release of Claims, shall mean those lands in Arizona within the boundaries of the "Navajo Indian Reservation" defined by the Act of June 14, 1934, ch. 521, 48 Stat. 960; all lands withdrawn by the Executive Order of Dec. 16, 1882 and partitioned to the Navajo Nation in accordance with the Act of Dec. 22,1974, Pub. L. 93-531, § 4, 88 Stat. 1713 (codified as amended at 25 U.S.C. § 640d-3), by Judgment of Partition, Feb. 10, 1977, Sekaquaptewa v. MacDonald, Case No. CIV-579-PCT-JAW (D.Ariz.); affirmed 626 F.2d 113 (9th Cir. 1980); all lands taken into trust as a part of the Navajo Reservation pursuant to section 11 of the Act of Dec.· 22, 1974 (codified as amended at 25 U.S.C. § 640d-1O); and excepting all lands within the Hopi Reservation, all as more particularly set forth on the map attached to the Agreement as Exhibit 3.1.104. In the case of a conflict between this definition and Exhibit 3.1.104 to the Agreement, Exhibit 3.1.104 to the Agreement shall control.

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"Navajo Trust Land" shall mean land outside the exterior boundaries of the Na.vajo Reservation in Arizona that, as of the I.CR nate, is held in trust by the United States for the benefit of the Navajo Nation. "Off-Reservation" shall mean lands"located in Arizona outside the .exterior boundaries of both the Navajo and Hopi Reservations. "Paragraph" shall mean a numbered paragraph of this Waiver and Release of Claims, including all Subparagraphs in such Paragraph. "Party" is the singular form of "Parties," which shall mean a Person identified as a: signatory in paragraph 2.0 of the Agreement. "State" shall mean the State of Arizona. "Subparagraph" shall mean a numbered subparagraph of this Waiver and Release of Claims. "Surface Water" shall mean all water that is appropriable under Arizona law, other than appropriable water that is located within the Upper Basin of the Colorado River. "Underground Water" shall mean any water beneath the surface of the Earth, other than Effluent, regardless of its legal characterization as appropriable or non-appropriable under State, Federal or other law. "United States" or "United States of America" in any given reference herein shall mean the United States acting in the capacity as set forth in said reference. When the term 'United States' or 'United States of America' is used in reference to a particular agreement or contract, the term shall mean the United States acting in the capacity as set forth in such agreement or contract. "Upper Basin" shall mean 'Upper Basin' as defined in Article Ir(t) of the Colorado River Compact. "Waiver and Release of Claims" shall mean this waiver and release of claims by the Parties, other than the United States, the Navajo Nation and the Hopi Tribe, a copy of which is attached as Exhibit 14.5.1 to the Agreement. "Water" when used without a modifying adjective shall mean Underground Water, Groundwater, Surface Water, or Effluent.

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"Water Right" shall mean any right in or to Underground Water, Groundwater, S'l:.rface Water or Effluent under Federal, State or other kw. WAIVER AND RELEASE OF CLAIMS. Except as provided in Paragraph 3.0 hereof, the Parties, except United States, the Navajo Nation and the Hopi Tribe, as part of their obligatiOilS under the Agreement, hereby waive and release any claims that such Parties may have against the Navajo Nation, its Members (but not Members in their capacity as Allottees), and the United States acting in its capacity as trustee for the Navajo Nation and its Members (but not Members in their capacity as Allottees), under Federal, State or other law for:

2.0 2.1

2.1.1 Past and present claims for Injury to Water Rights and Injury to Water Quality resulting from the Diversion or use of Water on or for Lands, arising from time immemorial through the LCR Enforceability Date; 2.1.2 Claims for Injury to Water Rights and Injury to Water Quality arising after the LCR Enforceability Date resulting from the Diversion or use of Water on or for Navajo Lands in a manner not in violation of the Agreement or applicable law; and 2.1.3 Past, present, and future claims arising out of or relating in any manner to the negotiation, execution, or adoption of the Agreement, an applicable settlement judgment or decree, or the Act. 3.0 RESERVATION OF RIGHTS AND RETENTION OF CLAIMS. 3.1 Notwithstanding the Waiver and Release of Claims in Paragraph 2.0 hereof, the Parties, other than the Navajo Nation, the Hopi Tribe and the United States, shall retain any right to: 3.1.1 Assert claims for injuries to, and seek enforcement of, their rights under the Agreement or the Act in any State or Federal court of competent jurisdiction; 3.1.2 Assert claims for injury to and seek enforcement of their rights under the LCR Decree,·the form of which is attached to the Agreement as Exhibit 3.1.76;

3.1.3_ Assert claims for injury to and seek enforcement of their rights under the Gila River Adjudication Decree, the form of which is attached t!1e Agreement as Exhibit 3.1.54:

to

··.3.1.4 Assert past, and future claims to Surface Water that are subject to' the Giili' River' Adjudicaticn; the LCR Adjudication or other applicable law, and"that are not inconsistent with the Agreement or the Act; 3.1.5 Assert past, present and future claims to' Underground Water that are subject to the Gila River Adjudication, the LCR or other applicable law, and that are not inconsistent with the Agreement or the Act; and 3.1.6 Nothing in Paragraph 2.0 shall preclude the State from taking any action, including environmental actions, under any laws (including regulations and the common law) relating to human health, safety or the environment. 3.2 Nothing in Paragraph 2.0 shall bind the State as to a waiver and release of claims, if any, relating to lands received by the State from the United States pursuant to the provisions of: ' 3.2.1 The Act of September 9, 1850, 9 Stat. 446 (creating the Territory ofNew Mexico); 3.2.2 The December 30, 1853 Treaty with Mexico, 10 Stat. 1031 (the Gadsden Purchase); 3.2.3 The Act of February 24, 1863, 12 Stat. 664 (creating the Territory of Arizona); 3.2.4 The Act of February 18, 1881, 21 Stat. 326 (University of Arizona 1881 Grant); 3.2.5 The Arizona-New Mexico Enabling Act of June 20, 1910,36 Stat. 557; and 3.2.6 The Act of February 20, 1929, c. 280, § 2, 45 Stat. 1252 (land for mjners' hospitals for disabled miners within said State). 4.0 WAIVER EFFECTIVE UPON LCR ENFORCEABILITY DATE This Waiver and Release of Claims shall become effective upon the LCR Enforceability Date.

5.0

COUNTERPARTS AND DUPLICATE ORIGINALS of Claims execui.c:d in one or more This Waiver and shaH original, "and all of which, counterparts, each of when taken together, shall constitute one and the same instrument. This Waiver and Release of Claims may also be executed in dupiicate origin(l.ls, ea,.ci!ofwhich shall constitute an original Agreement.

IN" WITNESS WHEREOF, the Parties, other than the United States the Navajo Nation and the Hopi Tribe have executed this Waiver and Release of Claims dated as of the day and year first written above.

EXHIBIT 14.5.2
V1AiVER AND RELEASE OF CLAIMS FOR INJURY TO WATER RIGHTS AND INJURY TO WATER QUALITY BY THE PARTIES, EXCEPT THE UNITED STATES, THE NAVAJO NATION AND HOPI TRtj3'E FOR CLAIMS AGAINST THE HOPI TRIBE, ITS MEMBERS (BUT NOT MEMBERS IN THEIR CAPACITY AS ALLOTTEES), AND THE UNITED STATES ACTING IN ITS CAPACITY AS TRUSTEE FOR THE HOPI TRIBE AND ITS MEMBERS (BUT NOT MEMBERS IN THEIR CAPACITY AS ALLOTTEES).

This Waiveraild Release of Claims dated asaf , is entered into by the Hopi Tribe, on behalf of itself and its Members (but not Members in their capacity as Allottees), and the United States on behalf of the Hopi Tribe and its Members (but not Members in their capacity as Allottees), in consideration of the benefits realized under the Northeastern Arizona Indian Water Rights Settlement Agreement dated as of , and in accordance with the commitments under Subparagraph 14,5.2 of said Agreement.

1.0

DEFINITIONS.
1.1

"Act" shall mean the Northeastern Arizona Indian Water Rights Settlement Act. "Agreement" shall mean the Northeastern Arizona Indian Water Rights Settlement Agreement and the Exhibits thereto. "Allottee" or "Allottees" shall mean a person or persons holding a beneficial real property interest in an Allotment. "Allotment" or "Allotments" shall mean an allotment or allotments: (1) originally allotted to an individual identified in the patent as a Navajo or Hopi Indian; (2) located within the exterior boundaries of the Navajo Reservation, within the exterior boundaries of the Hopi Reservation, or on Off-Reservation lands within Apache, Coconino or Navajo Counties, Arizona; and (3) held in trust by the United States for the benefit of an Allottee. "Central Arizona Project" or "CAP" shall mean the reclamation project authorized and constructed by the United States in accordance with Title III of the Colorado River Basin Project Act, 43 U.S.C. § 1521, et seq.

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1.6
1.7

"CAP Water" shall mean 'Project Water' as that term is defined in the CAP Repayrnent Stipulation. "Colorado River Compact" shall mean the Colorado River Compact of 1922, as ratified an(reprinted at Title 45, Chapter 7, Article 2 of the Arizona Revised Statutes. "Dhiersion" shall mean the act ofDiverting. "Divert," "Diverting," and "Diverted" shall mean to receive, withdraw or, develop and produce or capture Groundwater, Surface Water, CAP Water, Colorado River water or Effluent by means of a ditch, canal, flume, bypass, pipeline, pit, collection or infiltration gallery, conduit, Well, pump, turnout, or other mechanical device or any other human act, including the initial impoundment of water. "Effluent" shall mean water that has been used for domestic, municipal or industrial purposes and that is available for use for any purpose, but water shall not become Effluent solely as a result of having been used for hydropower generation. "Exhibit" shall mean an exhibit to the Agreement as enumerated in subparagraph 3.2 thereof. "Groundwater" shall mean all water beneath the surface of the Earth within the State of Arizona that is not: (1) Surface Water; (2) Underground Water within the Upper Basin; (3) Lower Colorado River water; or (4), Effluent. "Hopi Fee Land" shall mean land, other than Hopi Trust Land, that as of the LCR Enforceability Date is: (1) owned by the Hopi Tribe, whether in its own name or through a related entity; and (2) locate.d outside the exterior boundaries of the Hopi Reservation. "Hopi Lands" shall mean, collectively, the Hopi Reservation, Hopi Trust Land and Hopi Fee Land. "Hopi Reservation" shall.. mean, for purposes of this Agreement, District 6, and all lands withdrawn by the Executive Order of Dec. 16, 1882 and partitioned to the Hopi Tribe in accordance with the (codified as Act of Dec. 22,1974, Pub.L. 93-531, § 4,88Stat. . amended at 25U.S.C. § 640d-3), by Judgment ofPartition, Feb. 10, .1977,Sekaquaptewa v. MacDonald, Case No. CIV-579-PCT-JAW. (D.Ariz.), affirmed 626 F.2d 113 (9th Cir. 1980);. all lands recognized as part of the Hopi Reservation in the 1934 Act Case;

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and individual allotments made to members of the Hopi Tribe within those'lands, all as more particularly set forth on the map attached to the Agreement as Exhibit 3.1.61.
1.16

c:Hopi Tribe" shall mean the Hopi Tribe, a Tribe of Hcpi Indians Reorganization Act of June organized under Section 16.of - 18, 1934,48 Stat. 987 (25 U.S.C:' § 476), and duly recognized by the Secretary. "Hopi Tribe Cibola Water" shall mean that water to which the Hopi Tribe is entitled pursuant to Contract No. 04-XX-30-W0432 between the United States and the Hopi Tribe, dated December 14, 2004, and the Hopi Tribe Water Delivery ·Contract(s). "Hopi Trust Land" shall mean land outside of the Hopi Reservation that, as of the LCR Enforceability Date, is held in trust by the United States for the benefit of the Hopi Tribe. "Injury to Water Quality" shall mean any diminution or degradation of the quality of Water due to a change in the salinity or concentration of naturally occurring chemical constituents of Water and any effect of such a change where the changes in salinity or concentration and the effects of such changes are due to the withdrawal, Diversion or use of Water. "Injury to Water Rights" shall mean an interference with, diminution of, or deprivation of, Water Rights under Federal, State or other law. "LCR" shall mean the Little Colorado River. "LCR Adjudication" shall mean that action pending in the Superior Court of the State of Arizona in and for the County of Apache styled In re: the General Adjudication of All Rights to Use Water in the Little Colorado River System and Source, CIV No. 6417. "LCR Adjudication Court" shall mean the Superior Court of the State of Arizona in and for the County of Apache exercising jurisdiction over the LCR Adjudication. "LCR Decree" shall mean and include any final judgment or decree entered by the LCR Adjudication Court, including the judgment entered in substantially the same form as the form of judgment attached to the Agreement as Exhibit 3.1.76. "LCR Enforceability Date" shall mean the date on which the

1.17

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1.21 1.22

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Secretary publishes in the Federal Register the statement of findings de-scribed in Section of the Act.
i .26

"Lower Colorado River" shaii mean the Colorado River downstream from Lee Ferry within the United States, including the reservoirs thereon. For purposes of this- Waiver and Release· of Claims, the term "Lower Coloretc!o River" shall also include: (Irall tributaries to the Lower Colorado River at .or below Lee Ferry other than tributaries located within the (2) all Underground Water that is hydrologically connected to the Lower Colorado River; and (3) all Underground Water that is hydrologically connected to tributaries to the Lower Colorado River other than tributaries located within the states of Arizona and New Mexico. "Member" or "Members" shall mean any Indian, person or persons duly enrolled as a member or members of the Navajo Nation, or the Hopi as applicable. "Navajo Nation" shall mean the Navajo Nation, a body politic and federally-recognized Indian nation, 60 Fed. Reg. 9249, 9252 (Feb. 16, 1995), &lso known variously as the "Navajo Tribe," the "Navajo Tribe of Arizona, New Mexico & Utah" and the "Navajo Tribe of Indians" and other similar names, and includes all bands of Navajo Indians and chapters of the Navajo Nation.· "Navajo Reservation," for purposes of this Waiver and Release of Claims, shall mean those lands in Arizona within the boundaries of the "Navajo Indian Reservation" defined by the Act of June 14, 1934, ch. 521, 48 Stat. 960; all lands withdrawn by the Executive Order of Dec. 16, 1882 and partitioned to the Navajo Nation in accordance with the Act of Dec. 22, 1974, Pub. L. 93-531, § 4, 88 Stat. 1713 (codified as amended at 25 U.S.C. § 640d-3), by Judgment of Partition, Feb. 10, 1977, Sekaquaptewa v. MacDonald, Case No. CIV-579-PCT-JAW (D.Ariz.), affirmed 626 F.2d 113 (9th Cir. 1980); all lands taken into trust as a part of the Navajo Reservation pursuant to section 11 of the Act of Dec. 22, 1974 (codified as amended at 25 U.S.C. § 640d.,;10); and excepting all lands within the Hopi Reservation, all as more particularly set forth on the map attached to the Agreement as Exhibit 3.1.104. In the case of a conflict between this definition and Exhibit 3.1.104 to the . Agreement, Exhibit 3.1.104 to the Agreement shan control. "Norviel Decree" shall mean the final decree and all modifications thereofinthe case styled: The St. John's Irrigation Company and the

1.27

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Meadows Reservoir Irrigation Company, et at. v. Round Valley Water Storage & Ditch Company, Eagar irrigation . Company, Sptingervllle Water Right and Ditch. Company, et af., Case No. 569 . (Apr. 29, 1918) in the State of Arizona Superior Court in and for the ' County of Apache tiJgether with any amendments thereto.
1.3 1

"Off-Reservation" shall mean lar..ds located in Arizona outside the exterior boundaries of both the Navajo and Hopi Reservations. "Paragraph" shall mean a· numbered paragraph of this Waiver and Release of Claims, including all Subparagraphs in such Paragraph. "State" shall mean the State of Arizona. "Subparagraph" shall mean a numbered subparagraph of this Waiver and Release of Claims. "Surface Water" shall mean all water that is appropriable under Arizona law, other than appropriable water that is located within the Upper Basin of the Colorado River. "Underground Water" shall mean any water beneath the surface of the Earth, other than Effluent, regardless of its legal characterization as appropriable or non-appropriable under State, Federal or other law. "United States" or "United States of America" in any given reference herein shall mean the United States acting in the capacity as set forth in said reference. When the term 'United States' or 'United States of America' is used in reference to a particular agreement or contract, the term shall mean the United States acting in the capacity as set forth in such agreement or contract. "Upper Basin" shall mean 'Upper Basin' as defined in Article II(f) of the Colorado River Compact. "Waiver and Release of Claims" shall mean this waiver and release of claims by the Parties, other than the United States, the Navajo Nation and the Hopi Tribe, a copy of which is attached as Exhibit 14.5.2 to the Agreement. "Water" when used without a modifying adjective shall mean Underground Water, Groundwater, Surface Water, or Effluent. "Water Right" shall mean any right in or to Underground Water,

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...

Groundwater, Surface Water or Effluent under Federal, State or other law.2.0 \VAIVER AND RELEASE-OF CLAIMS. 2.1 Except as provided in Paragraph 3.0 hereof, the Parties, except the United States, Lhe Navajo and the Hopi Tribe, as part of their obligations under this hereby waive and release any claims that such Parties may have against the Hopi Tribe, its Members (but not Members in their capacity as Allottees), and the United State3 acting in its capacity as trustee for the Hopi Tribe and its Members (but not Members in their capacity as Allottees), under Federal, State or other law for: 2.1.1 .Past and present claims for Injury to Water Rights and Injury to Water Quality resulting from the Diversion or use of Water on or for Hopi Lands arising from time immemorial through the LCR Enforceability Date; 2.1.2 Claims for Injury to Water Rights and Injury to Water Quality arising after the LCR Enforceability Date resulting from the Diversion or use of Water on or for Hopi Lands in a manner not in violation of this Agreement or applicable law; and 2.1.3 Past, present, and future claims arising out of or relating in any manner to the negotiation, execution, or adoption of the Agreement, an applicable settlement judgment or decree, or the Act. ·3.0 RESERVATION OF RIGHTS AND RETENTION OF CLAIMS. 3.1 Notwithstanding the waivers of claims and releases described in Paragraph 2.0 hereof, the Parties, other than the United States, the Navajo Nation and the Hopi·Tribe, shall retain any right to:
.3 .1.1 Assert claims for injuries to, and seek enforcement of, their rights under the Agreement or the Act in any State or Federal .court of competent jurisdiction;

3.1.2 Assert claims for injury t() and seek enforcement of their rights under the LCR Decree, the form of which is attached to the Agreement as Exhibit 3.1.76;

..

3.1.3 Assert past, present and future claims to Surface Water that axe subject to the LCR Adjudication or other applicable law, and that not inconsistent with the Agreement or the Act; . . 3.1.4 Assert past, and f ...rture claims to Underground Water that are subject to the LCR Adjudication or other applicable law, and: that are not inconsistent with the Agreement or the Act; and 3.1.5 Nothing in Paragraph 2.0 hereof shall preclude the State from taking any action, including environmental actions, under any laws (including regulations and the common law) relating to human health, safety or the environment. 3.2 Nothing in Paragraph 2.0 hereof shall bind the State as to a waiver and release of claims, if any, relating to lands received by the State from the United States pursuant to the provisions of: 3.2.2 The Act of September 9, 1850, 9 Stat. 446 (creating the Territory ofNew Mexico); .",. 3.2.3 The December 30, 1853 Treaty with Mexico, 10 Stat. 1031 (the Gadsden Purchase); 3.2.4 The Act of February 24, 1863, 12 Stat. 664 (creating the Territory of Arizona); 3.2.5 The Act of February 18, 1881, 21 Stat. 326 (University of Arizona 1881 Grant); 3.2.6 The Arizona-New Mexico Enabling Act ofJune 20, 1910, 36 Stat. 557; and 3.2.7 The Act of February 20, 1929, c. 280, § 2,45 Stat. 1252 (land for miners' hospitals for disabled miners within said State). 4.0 WAIVER EFFECTIVE UPON LCR ENFORCEABILITY DATE This Waiver and Release of Claims shall become effective upon the LCR Enforceability Date. COllNTERPARTS AND DUPLICATE ORIGINALS This Waiver and Release of Claims may be executed in one or more counterparts, each of which shall constitute an original, and all of which, when taken together, shall constitute one and the same instrument. This

5.0

Waiver and-Release of Claims may also be executed in duplicate originals, each of which shall constitute arfbriginal Agreement. -" IN WITNESS WHEREOF, the Parties, other thai} the United States the Navajchave executed thlS Waiver ann. Release of Claims dated Nation and the Hopi as of the day and year first written above.

EXliIDIT 14.5.3 WAIVER AND RELEASE. OF- CLAIMS AGAINST THE UNITED STATES ACTING IN ITS CAPACITY AS TRUSTEE FOR THE ALLOTTEES This Waiver and Re1eiise of Claims dated as of , is entered into by the Parties, except the United States, the Navajo Nation and the Hopi Tribe, in consideration of the benefits realized under the Northeastern Arizona , and in Indian Water Rights Settlement Agreement dated as of accordance with the commitments under Subparagraph 14.5.3 of said Agreement. 1.0 DEFINITIONS.
1.1

"Act" shall mean the Northeastern Arizona Indian Water Rights Settlement Act. "Agreement" shall mean the Northeastern Arizona Indian Water Rights Settlement Agreement and the Exhibits thereto. "Allottee" or "Allottees" shall mean a person or persons holding a beneficial real property interest in an Allotment. "Allotment" or "Allotments" shall mean an allotment or allotments: (1) originally allotted to an individual identified in the patent as a Navajo or Hopi Indian; (2) located within the exterior boundaries of the Navajo Reservation, within the exterior boundaries of the Hopi Reservation, or on Off-Reservation lands within Apache, Coconino or Navajo Counties, Arizona; and (3) held in trust by the United States for the benefit of an Allottee. "Central Arizona Project" or "CAP" shall mean the reclamation project authorized and constructed by the United States in accordance with Title III of the Colorado River Basin Project Act, 43 U.S.C. § 1521, et seq. "CAP Water" shall mean 'Project Water' as that term is defined in the CAP Repayment Stipulation. "Colorado River Compact" shall mean the Colorado River Compact of 1922, as ratified and reprinted at Title 45, Chapter 7, Article 2 of the Arizona Revised Statutes. "Diversion" shall mean the act of Diverting.

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1.9

"Divert," "Diverting," and "Diverted" shall mean to receive, withdraw or develop and produce or capture Groundwater, Surface of a Water, CAP Water,·Colorado River water or Effluent by ditch] canal,····flume, ·bypass, pipeline, pit, collection or intiltration gallery, conduit, Weli,_pump, turnout, or other mechanical device or any. other human act, including the initial impoundment of water. "Effluent" shall me{ln water that has been used for domestic, municipal or industrial purposes and that is available fer use for any purpose, but water shall not become Effluent solely as a result· of having been used for hydropower generation. "Exhibit" shall mean an exhibit to the Agreement as enumerated in subparagraph 3.2 thereof. "Groundwater" shall mean all water beneath the surface of the Earth within the State of Arizona that is not: (1) Surface Water; (2) Underground Water within the Upper Basin; (3) Lower Colorado River water; or (4) Effluent. "Hopi Reservation" shall mean, for purposes of this Agreement, District 6, and all lands withdrawn by the Executive Order of Dec. 16, 1882 and partitioned to the Hopi Tribe in accordance with the Act of Dec. 22, 1974, Pub. L. 93-531, § 4, 88 Stat. 1713 (codified as amended at 25 U.S.C. § 640d-3), by Judgment of Partition, Feb. 10, 1977, Sekaquaptewa v. MacDonald, Case No. CIV.,.579-PCT-JAW (D.Ariz.), . affirmed 626 F.2d 113 (9th Cir. 1980); all lands recognized as part of the Hopi Reservation in the 1934 Act Case; and individual allotments made to members of the Hopi Tribe within those lands, all as more particularly set forth on the map attached to the Agreement as Exhibit 3.1.61. "Hopi Tribe" shall mean the Hopi Tribe, a Tribe of Hopi Indians organized under Section 16 of the Indian Reorganization Act of June recognized by the 18, 1934, 48 Stat. 987 (25 U.S.C. § 476), Secretary. "Injury to Water Quality" shall mean any diminution or degradation of the quality of Water due to a change in. the salinity or concentration of naturally occurring chemical constituents of Water and any effect of such a change .where the changes in salinity or concentration and the effects of such changes are due to the withdrawal, Diversion or use of Water.

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"Injury to Water Rights" shall mean an interference with, dimll1ution 0[, or deprivation of, Water Rights lli"lder Federal, State or other law. "LCR" shall mean the Little Colorado RiveJ.. "LCR Adjudication" shall mean that action pending in the Superior Court of the State of Arizona in and for the County of Apache styled In re: the General Adjudication of All Rights to Use Water in the Little Colorado River System and Source, CIV No. 6417. "LCR Decree" shall mean and include any final judgment or decree entered by the LCR Adjudication Court, including the judgment entered in substantially the same form as the form of judgment·· attached to the Agreement as Exhibit 3.1.78. "LCR Enforceability Date" shall mean the date on which the Secretary publishes in the Federal Register the statement of findings of the Act. described in Section "Lower Colorado River" shall mean the Colorado River downstream from Lee Ferry within the United States, including the reservoirs thereon. For purposes of this Waiver and Release of Claims, the term "Lower Colorado River" shall also include: (1) all tributaries to the Lower Colorado River at or below Lee Ferry other than tributaries located within the State; (2) all Underground Water that is hydrologically connected to the Lower Colorado River; and (3) all Underground Water that is hydrologically connected to tributaries to the Lower Colorado River other than tributaries located within the states of Arizona and New Mexico. "Navajo Nation" shall mean the Navajo Nation, a body politic and federally-recognized Indian nation, 60 Fed. Reg. 9249, 9252 (Feb. 16, 1995), also known variously as the "Navajo Tribe," the "Navajo Tribe of Arizona, New Mexico & Utah" and the "Navajo Tribe of Indians" and other similar names, and includes all bands of Navajo Indians and chapters of the Navajo Nation. "Navajo Reservation," for purposes of this Waiver and Release of Claims, shall mean those lands in Arizona within the boundaries of the "Navajo Indian Reservation" defined by the Act of June 14, 1934, ch. 521, 48 Stat. 960; all lands withdrawn by the Executive Order of Dec. 16, 1882 and partitioned to the Navajo Nation in accordance with the Act of Dec. 22, 1974, Pub. L. 93-531, § 4, 88 Stat. 1713 (codified as amended at 25 U.S.C. § 640d-3), by

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Judgment of Partition, Feb. 10, 1977, Sekaquaptewa v. MacDonald, Case No. CIV-579-PCT-JAW (D.Ariz.), affirmeu- 626 F.2d 113 (9th Cir. 1980);· all lands taken into trust as a part of the_Navajo Reservation pursuant to sectiun 11 of the Act of Dec. 22, 1974 all (codified as amended at 25 U.S.C. § 640d-10); lands within the Hopi Reservation, all as more particularly set forth on the map attached to the Agreement as Exhibit 3.1.104. In .the case of a conflict between this definition and Exhibit 3.1.104 to the Agreement, Exhibit 3.1.104 to the Agreement shall control.
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"Navajo Trust Land" shall mean land outside the exterior boundaries of the Navajo Reservation in Arizona that, as of the LCR Enforceability Date, is held in trust by the United States for the benefit of the Navajo Nation. "Off-Reservation" shall mean lands located in Arizona outside the exterior boundaries of both the Navajo and Hopi Reservations. "Paragraph" shall mean a numbered paragraph of this Waiver and Release of Claims, including all Subparagraphs in such Paragraph. "Party" is the. singular form of "Parties," which shall mean a Person identified as a signatory in paragraph 2.0 of the Agreement. "State" shall mean the State of Arizona. "Subparagraph" shall mean a numbered subparagraph of this Waiver and Release of Claims. "Surface Water" shall mean all water that is appropriable under Arizona law, other than appropriable water that is located within the Upper Basin of the Colorado River. "Underground Water" shall mean any water beneath the surface of the Earth, other than Effluent, regardless of its legal characterization as appropriable or non-appropriable under State, Federal or other law. States" or "United States of America" in any given reference herein shall mean the United States acting in the capacity as set forth in said reference. When the term 'United States' or 'United States 'of America' is used in reference to a particular agreement or contract, the term shall mean' the United States acting in the capacity as set forth in such agreement or contract.

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"Upper Basin" shall mean 'Upper Basin' as defined in Article lI(f) of the Colorado .River Compact. . "Waiver and Release of Claims" shall mean this \Vaiver and release of claims by the parties, other than the United States, the Navajo .,.Nation and the Hopi Tribe, a copy of which Is attached as Exhibit 14.5.3 to the Agreement. "Water" when use.} without a modifying adjective shall mean Underground \Vater, Groundwater, Surface Water, or Effluent. "Water Right" shall mean any right in or to Underground Water, Groundwater, Surface Water or Effluent under Federal, State or other law.

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2.0

WAIVER AND RELEASE OF CLAIMS. 2.1 Except as provided in Paragraph 3.0 hereof, the Parties, except the United States, the Navajo Nation and the Hopi Tribe, as part of their obligatiQns under the Agreement, hereby waive and release any claims that such Parties may have against the United States acting in its capacity as trustee for the Allottees, under Federal, State or other law for: 2.1.1 Past and present claims for Injury to Water Rights and Injury to Water Quality resulting from the Diversion or use of Water on or for Allotments arising from time immemorial through the LCR Enforceability Date; Claims for Injury to Water Rights and Injury to Water Quality arising after the LCR Enforceability Date resulting from the Diversion or use of Water on or for Allotments in a manner not in violation of this Agreement or applicable law; and Past, present, and future claims arising out of or relating in any manner to the negotiation, execution, or adoption of this Agreement, an applicable settlement judgment or decree, or the Act.

2.1.2

2.1.3

3.0

RESERVATION OF RIGHTS AND RETENTION OF CLAIMS

3.1

Notwithstanding the waivers of claims and releases provided for in Subparagraph 14.20.1, the Pl'lrties, other than the Navajo Nation, the .Hopi Tribe and the United States, shallretain any right to: 3.1.1 Assert claims for injuries to, and seek enforcement of,their rights under the Agreement or the Act in any State or Federal court of competent jurisdictIon; 3.1.2 Assert claims. for injury to and seek enforcement of their rights under the LCR Decree, the form of which is attached as Exhibit 3.1.76; 3.1.3 Assert past, present and future claims to Surface Water that are subject to the LCR Adjudication or other applicable law, and that are not inconsistent with the Agreement or the Act; 3.1.4 Assert past, present and future claims to Underground Water that are subject to the LCR Adjudication or other applicable law, and that are not inconsistent with the Agreement or the Act; and 3.1.5 Nothing in Paragraph 2.0 hereof shall preclude the State from taking any action, including environmental actions, under any laws (including regulations and the common law) relating to human health, safety or the environment.

3.2

Nothing in Paragraph 2.0 hereof shall bind the State as to a waiver. and release of claims, if any, for lands received by the State from the United States pursuant to the provisions of: 3.2.1 The Act of September 9, 1850, 9 Stat. 446 (creating the Territory of New Mexico); 3.2.2 The December 30, 1853 Treaty with Mexico, 10 Stat. 1031 (the Gadsden Purchase); 3.2.3 The Act of February 24, 1863, 12 Stat. 664 (creating the Territory of Arizona); 3.2.4 The Act of February 18, 1881, 21 Stat. 326 (University of Arizona 1881 Grant); 3.2.5 The Arizona-New Mexico Enabling Act of June 20, 1910, 36 Stat. 557; and

3.2.6 The Act of February 20, 1929, c. 280, § 2, 45 Stat. 1252 (land for miners' hospitals for disabled miners within said State).
-<

4.0

WAIVER EFFECTIVE UPON LCR ENFORCEABILITY DATE This Waiver and Release of Claims shall become effective upon the &1 COUNTERPARTS AND DUPLICATE ORIGll\fALS This Waiver and Release of Claims may be executed in one or more counterparts, each of which shall constitute an original, and all of which, when taken together, shall constitute one and the same instrument. This Waiver and Release of Claims may also be executed in duplicate originals, each of which shall constitute an original Agreement.

5.0

IN WITNESS WHEREOF, the Parties, other than the United States the Navajo Nation and the Hopi Tribe have executed this Waiver and Release of Claims dated as of the day and year first written above.

EXHIBIT 15.12Party Contact Information for Future Notices United States of America Secretary of the Interior Department of the Interior Washington, D.C. 20240
Regional Director Bureau of Indian Affairs Western Regional Office P.O. Box 10 Phoenix, Arizona 8501 Regional Director Bureau of Reclamation Lower Colorado Region P.O. Box 427 Boulder City, Nevada 89005

State of Arizona Office of the Governor 1700 West Vlashington Street Phoenix, Arizona 85007
<'

Arizona. Department of Water Resources 3550 N. Central Avenue Phoenix, Arizona 85012

Navajo Nation Director Department of Water Resources P.O. Box 678 Ft. Defiance, Navajo Nation (AZ) 86
Office of the Attorney General P.O. Drawer 2010 Window Rock, Navajo Nation (AZ) 86515

Hopi Tribe

Central Arizona Water Conservation District For notice by mail: General Manager Central Arizona Water Conservation District P.O. Box 43020 Phoenix, AZ 85080-3020
For notice by personal service or handdelivery: General Manager Central Arizona Water Conservation District 23636 N. i h Street Phoenix, AZ 85024

Salt River Project Agricultural Improvement and Power District For notice by mail: General Manager Salt River Project Agricultural Improvement and Power District P.O. Box 52025 Phoenix, Arizona 85072-2025

11431382.1

Salt River VaHey Water D s e r s ' C i t y of Flagstaff Association For notice by mail: CJeneral11anager Salt River Valley Water Users' Association. P.O, Box 52025 Phoenix, Arizona 85072-2025 City of Winslow Town of Taylor City of Show Low Town of Springerville Arizona Public Service Co, Crater Ranch, L.L.c. Aztec Land and Cattle Inc. Arizona Game and Fish Commission Lyman Irrigation company Show Low,.Pinetop-Woodland Irrigation Company Lakeside Irrigation Company Pinetop-Lakeside Sanitary District Navapache Hospital District .City of Hoib.'ook Town of Snowflake Town,of E'agar Catalyst (Snowflake) Inc,

Bar T Bar Ranch Inc. Flying M Ranch Inc. Arizona.State Land Department Arizona of Transportation

Pioneer Irrigation Company· Silver Creek Irrigation District . Forest Lakes Water Improvement ··District Euell Lyle Barnes

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NAVAJO NATION DEPARTMENT OF JUSTICE OFFICE OF THE A TTORNEY GENERAL'
LOUIS DENETSOSIE ATTORNEY GENERAL HARRISON TSOSIE DEPUTY ATTORNEY GENERAL

PRIVILEGED & CON!!IDENTIAL ATTORNEY-CLIENT COMMUNICATION
TO: Honorable George Arthur, Chainnan Resources NaVrion Coun "

FROM: Stanley M. po·r ack, Assistant Attorney General Water Rights Unit, Department of Justice DATE: SUBJECT: July 13,2010 Proposed Arizona Lower Colorado River / Little Colorado River Water Rights Settlement

Thank you for agreeing to sponsor legislation for the Navajo Nation Council to approve the settlement oft4e Navajo Nation's water rights claims in the Lower Colorado River and Little Colorado River ("LCR") basins in Arizona ("the Settlement"). The Navajo Nation Water Rights Commission ("the Commission") endorsed the Settlement in resolution NNWRC-02-10, approved April 29, 2010, attached here. By its resolution, the Commission recommends that the Navajo Nation Council approve the attached Northeastern Arizona Indian Water Rights Settlement Agreement ("NAIWRSA" or "Settlement Agreement"). The main purpose of the Settlement Agreement is to: (1) set forth the water rights of the Navajo Nation and Hopi Tribe in the LCR basin and the Lower Colorado River basin, (2) describe the municipal drinking water projects that Congress must authorize and fund in order for the Settlement to be effective, and (3) detail the procedures to implement the Settlement. The Settlement Agreement also quantifies the Navajo Nation's water rights for those portions of the Big Boquillas Ranch located in the Gila River basin. Attorneys representing the settling parties executed a document entitled "Approval of Settlement Agreement" on March 12,2010. (The settling parties consist of the major water rights claimants in the LCR Adjudication - approximately thirty entities, including the Navajo Nation, the Hopi Tribe, Arizona governmental agencies, the Salt River Project, Arizona Public Service Company, various the cities, ranches, and irrigation companies). By the execution of that document, the

P.O. Drawer 2010 • Window Rock, Navajo Nation (AZ) 86515. (928) 871-6192. Fax (928) 871-6200

.a:!" •••

PRIVILEGED &: CONFIDENTIAL MEMORANDUM To: Honorable George Arthur, Chairman, Resources Committee, NNC Re: Proposed Arizona Lower Colorado River / Little Colorado River Water Rights Settlement July 13,2010 Page 2

attorneys pledged to recommend to their respective clients the approval of the NAIWRSA. The United States cannot be a signatory to the Settlement Agreement unless authorized by Currently, there is a "stay" in the state court litigation concerning the LCR and in the federal court litigation concerning the Colorado River. Both courts have been advised of the agreement reached by the attorneys for the settling parties, and the settling parties have until October 13, 2010 to execute the Settlement Agreement. Procedurally, because this is a settlement of the water rights of the Navajo Nation and Hopi Tribe, the parties agreed that the Settlement Agreement would be presented to the tribal councils first with a tentative timeframe for approval of mid-August. If the two tribes approve the Settlement, then the settling parties will have approximately sixty (60) days to approve the Settlement Agreement before the expiration of the stays in the litigation. The Settlement Agreement includes numerous exhibits, many of which are not final at this time, and some of which will not be prepared until the Settlement Agreement is executed. It is also possible that the Settlement Agreement may be modified slightly as the exhibits are finalized. For example, one of the exhibits is proposed legislation for the Arizona Legislature to adopt that would restrict water uses by non-Navajo entities in the LCR basin. The draft legislation has not been finalized and it may be necessary to modify the Settlement Agreement to conform to the final draft of the legislation. In addition, we anticipate changes will need to be made to the Settlement Agreement to conform to federal legislation approving the Settlement. Even though the Settlement Agreement and many of the attached exhibits are not final, the water rights of the Navajo Nation are fixed by the Settlement Agreement. In fact, the basic attributes of the tribal rights were established in the Agreement in Principle executed by the parties on March 28, 2008, and have not changed. The attached Settlement Agreement incorporates these rights, and the rights of the Navajo Nation are not subject to modification by the settling parties. The Commission and the Department of Justice respectfully recommend that the legislation approving the Settlement include language similar to that used for the New Mexico settlement: The Navajo Nation Council hereby approves the proposed [Northeastern Arizona Indian Water Rights Settlement Agreement] in the form of or substantially similar to the form of Exhibit "A". Please do not hesitate to contact me if you have questions concerning this matter. Thank you for your assistance in presenting this important legislation to the Navajo Nation Council.

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NNWRC-02-10

RESOLUTION OF -raE NAVAJO NATION \VA'fER RIGHTS COMMISSION
-. Enrlorsing th€ iProposed Northeastern Arizona Indian Water Rights Settlefnent Agreement to Nation and Hopi Tribe for Water from the Little Resolve the Water Rights Ciaims River System and from the Lower Basin of the Colorado River in Arizona and Recommending to the Navajo Nation Council the Approval ofthe Settlement Agreement

WHEREAS

1. The Navajo Nation Council, pursuant to Resolution CAP'-39-02, established the Navajo Nation Water Rights Commission (the "Commission").
2. Pursuant to Article 2 of its Plan of Operation, the Commission is to ensure that the water rights of the Navajo Nation are vigorously pursued, effectively coordinated, and to enhance the communication between all entities engaged in water rights efforts on behalf of the Navajo Nation. 3. The Navajo Nation has aggressively pursued a strategy of quantifying its water rights in the Lower Colorado River Basin ("Lower Basin"), which includes the Little Colorado River Basin in Arizona, through litigation and settlement. 4. The Little Colorado River General Stream Adjudication (the "LCR Adjudication") was commenced in 1978 for the purpose of determining the water rights of all users ofthe Little Colorado River system and source, including the Navajo Nation and Hopi Tribe. 5. After many years oflitigation, the only water user in the Little Colorado River system to have a fully adjudicated water right is the Pueblo of Zuni, which settled the water rights for its Arizona reservation pursuant to the Zuni Indian Tribe Water Rights Settlement Agreement in the Little ,Colorado River Basin ratified by Congress pursuant to P.L. 108-34; 117 Stat. 788 (2003). . 6. Notwithstanding the ongoing LCR Adjudication, the major water users have engaged in settlement discussions since 1993. 7. There is no general stream adjudication of the Lower Basin in which the Navajo Nation could assert claims to the mainstream of the Colorado River. 8. In the Arizona v. California litigation before the United States Supreme Court concerning the Lower Basin, the United States did not assert a claim on behalf of the Navajo Nation to the mainstream of the Colorado River, and asserted only small claims to the Little Colorado River on behalf of the Navajo Nation based on practicably irrigable acreage.

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9. In 2001, the Arizona Supreme Court held the Indian tribes in Arizona have reserved rights to the water necessary to create a permallent homeland, and that claims for water need not be based solely uil practicably acreage. In Re: The General Adjudica!!on ofAll
Rights to Watetin the Gila Rrver System and Source, 3S P.3d 68, 76 (Ariz. 2001).

10. .In 2003, the Navajo Nation filed a lawsuit in federal court asserting, among other the Navajo Nation by fsiling to things, that "the United States breached its trust . interests in the Lower Basin. Navajo Nation v. United States Department ofthe Interior, CIV 03 0507 PCT POR, U.S. Dist. Ct., AZ). The States of Arizona, California, and Nevada, together with the major Colorado River water users in these states in this litigation. 11. The Navajo Nation and the other parties agreed to explore a settlement of the " federal litigation that would include the resolution of all of the Navajo Nation's water rights claims to water in the Lower Basin, including water to the mainstream and all rights within the Little Colorado River system of both the Navajo Nation and the Hopi Tribe, and the Navajo Nation's water rights associated with the Big Boquillas Ranch in the Gila River system. 12. On March 28, 2008, the attorneys for the parties executed an Agreement in Principle that outlined the components of a comprehensive settlement. Those components include: a. Water development projects:

i. Western Navajo Pipeline (to convey 11,000 afy of Colorado River water for the Navajo Nation and 4,000 afy for the Hopi Tribe); ii. Leupp-Dilkon Project (4,800 afy from the C-aquifer); and iii. Ganado Project (5,600 afy from C-aquifer). b. Colorado River water: i. 29,000 afy of CAP non-Indian agricultural water reserved for Indian Water rights settlements pursuant to the Arizona Water Rights Settlement - Act; and ii. 2,000 afy of other Colorado River 4th priority water reserved for Indian Water rights settlements pursuant to the Arizona Water Rights Settlement Act; and 11,000 afy of the 31,000 afy of Colorado River water would be firmed for 100 years to a CAP M&I priority. c. Little Colorado River water: i. The "unappropriated" flows in LCR are reserved for use by the Navajo Nation with prohibitions against new non-Navajo irrigation from surface· water and no new reservoirs without the consent of the Navajo Nation. ii. Pumping from the C-aquifer in the Leupp is limited to 50,000 afy for non-Navajo use and 60,000 afy for Navajo use; the State of Arizona will enact legislation creating C-aquifer protection zones for the benefit of the Navajo Nation.

2

111. N-aquifer management plan with the Hopi Tribe for the development and preservation ofthe N-aquifer. iv. Wash agreement with the Hopi Tribe to potect existin£. agricultural uses.

Gila River water. The rights of the Navajo Nation for the Big BoquiIIas . d. Ranch are based on state law and in various abstracts to be approved by . the Gila Adjudication Court. 13. On March 12, 2010, attorneys for the negotiating parties executed the Approval of Settlement Agreement evincing the completion of Northeastern Arizona Indian Water Rights Settlement Agreement that incorporated all of the concepts of the Agreement in Principle, and the attorneys committed to recommend to their respective clients approval of the, proposed . Settlement Agreement, attached here as Exhibit A. (The form ofthe Settlement Agreement may change to reflect editorial, but not substantive, revisions.) 14. The Commission has participated in the settlement discussions and has received numerous briefings from the Department of Water Resources and Department of Justice concerning the proposed settlement. 15. The Commission has determined that that approval of the Northeastern Arizona Indian Water Rights Settlement Agreement by the Navajo Nation Council is in best interest of the Navajo Nation. NOW THEREFORE BE IT RESOLYED THAT The Navajo Nation Water Rights Commission hereby endorses the Northeastern Arizona Indian Water Rights Settlement Agreement, attached here as Exhibit A, as it may be amended, that the Navajo Nation Council approve the Settlement Agreement. and CERTIFICATION I hereby certify that the foregoing resolution, Endorsing the Proposed Northeastern Arizona Indian Water Rights Settlement Agreement to Resolve the Water Rights Claims of the Navajo Nation and Hopi Tribe for Water from the Little Colorado River System and from the Lower Basin of the Colorado River in Arizona and Recommending to the Navajo Nation Council the Approval of the Settlement Agreement, was duly considered by the Navajo Nation Water Rights Commission at a duly called meeting in Window Rock, Navajo Nation (Arizona) at which a quorum was present and consensus was reached this 29th day of April, 2010.

erson __ .s Commission Motion: Commissioner Gil Arviso Second: Commissioner Leo Manheimer

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OFFICE OF THE PRESIDENT The Navajo Nation Window Roc.k, Arizona 86515

NNWRC-O1-10

Fi'om: Benjamen Cowboy, Chaim:an Navajo Nation Water Rights Commission

extension 7574

FE: PROPOSED Northeastern Arizona Indian Water Rights Settlement Agreement

Executive Branch Review
Resources Committee Chainnan George Arthur plans to introduce legislation for the Navajo Nation Council to approve the attached Northeastern Arizona Indian Water Rights Settlement Agreement which includes settlement of the Navajo Nation'S water rights claims in the Lower Colorado River, the Little Colorado River, and Gila River basins in Arizona. In accordance with Navajo Nation Executive Order No. 01-2004, the proposed settlement is submitted for Executive Branch review. The Navajo Nation Water Rights Commission ("the Commission") endorsed the Settlement in resolution NNWRC-02-l0, approved April 29, 2010, attached here. The Navajo Nation Water Rights Commission consists of five at-large members representing each Navajo Agency, the Attorney General and the Director of the Department of Water Resources. Please note that there are numerous exhibits to the Settlement Agreement. Some of the exhibits are still in draft form, others will not be completed until after the Settlement Agreement is executed. The water rights of the Navajo Nation are set forth in the Settlement Agreement and are not subject to modification in the exhibits or ifthere are additional minor edits to the Settlement Agreement following execution by the Navajo Nation. THIS SETTLEMENT DOES NOT INVOLVB THE EXPENDITURE OF FUNDS BY THE NAVAJO NATION, so it has not been submitted for review by the Division of Finance. Questions concerning the settlement should be directed to Stanley Pollack, NNDOJ-WRU, at extension 6192.

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2. 3.
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.Date:

Date: Date:

7/I'S /, 0

Office of PresidentlVice President:

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IAWRENCE T. MORGAN
8peaker of .l,e Navajo Nation Council

July 19, 2010

MEMORANDUM
TO . Hon. George Arthur. LoairperJ01Z Resources Committee Hon. iV1emberJ Intergovernmental Relations Committee Hon. Francis Redhouse, Chaifper.rqn Ethics & Rules Committee Hon. i'viembm Navajo Nation Council

FROM H n. Lawrence T. Morg, n, J Navajo Nation Council SUBJECT

ASSIGNMENT OF LEGISLATION

Pursuant to 2 N.N.C. § 164 (A)(4), this memorandum selves to inform and advise you that I assign the following legislation to the Resources Committee, Intergovernmental Relations Committee, Ethics & Rules Committee and the Navajo Nation Council: Legislation No. 0422-10 An Action Relating to Resources and Intergovernmental Relations; Approving the Proposed Northeastern Arizona Indian Water Rights Settlement Agreement to Resolve the Water Rights Claims of the Navajo Nation and Hopi Tribe for Water from the Little Colorado River System and from the Lower Basin of the Colorado River in Arizona in the Form of or SubstantiallY Similar to the Form as Set Forth in Exhibit "A". As the Committee assigned to consider the legislation, Legislation No. 0422-10 must be placed on the Resources Committee, Intergovernmental Relations COlmnittee and Ethics & Rules COlTIlnittee's agendas for consideration. Once considered by the Ethics & Rules Committee it will be reviewed by the Navajo Nation Council for final consideration.

ATTACHMENT:

Legislation No. 0422-10

OFFICE OF THE SPEAKER / NAVAJO NATION TELEPHONE

BRANCH / POST OFFICE Box 3390/ WINDOW ROCK, ARIZONA 86515 (928) 871-7160 FAX (928) 871-7255

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Hon. Joe Shirley, Jr., President The Navajo Nation Louis Denetsusie, Attorney General Mark Grant, Controller Hon. George Arthur, Council Delegate (Prime Sponsor) File