[Senate Report 110-502]
[From the U.S. Government Publishing Office]
Calendar No. 1080
110th Congress Report
SENATE
2d Session 110-502
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TO DIRECT THE SECRETARY OF THE INTERIOR TO PROVIDE A LOAN TO THE WHITE
MOUNTAIN APACHE TRIBE FOR USE IN PLANNING, ENGINEERING, AND DESIGNING A
CERTAIN WATER SYSTEM PROJECT
_______
September 24 (legislative day, September 17, 2008.--Ordered to be
printed
_______
Mr. Dorgan, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 3128]
The Committee on Indian Affairs, to which was referred the
bill (S. 3128) to direct the Secretary of the Interior to
provide a loan to the White Mountain Apache Tribe for use in
planning, engineering, and designing a certain water system
project, having considered the same, reports favorably thereon
with an amendment in the nature of a substitute and recommends
that the bill, as amended, do pass.
PURPOSE
The purpose of S. 3128 is to authorize a Federal loan to
the White Mountain Apache Tribe for the planning, engineering,
and design of a dam, reservoir, and pipeline, which will be
used to provide drinking water to the Tribe.
BACKGROUND AND HISTORY
S. 3128 authorizes and directs the Secretary of the
Interior to provide a Federal loan to the White Mountain Apache
Tribe for the planning, engineering, and design of the Miner
Flat Project, which will be used to provide drinking water to
the Tribe. The Tribe, which is located on the Fort Apache
Indian Reservation in Arizona, has approximately 15,000
members. The majority of the Reservation's residential areas
are served by a relatively small well field, but production
from the wells has declined significantly over the last few
years. As a result, the Tribe has experienced drinking water
shortages during the summer months. In order to temporarily
alleviate this drinking water shortage, the Tribe has
constructed a small diversion project on the north fork of the
White River. This diversion project, however, is only a
temporary solution. The Miner Flat Project, consisting of a
small dam, reservoir and pipeline, has been determined to be
the best option to meet the Tribe's basic drinking water needs
and is estimated to cost approximately $128 million.
Although funding from the Arizona Water Settlements Act is
available to assist with the Tribe's planning efforts for the
Miner Flat Project, the funds are not available until the year
2013. Delaying planning, engineering, and design efforts until
2013 would not only delay the Project's completion, but would
also increase overall Project costs due to inflation. The
Federal loan authorized by S. 3128 will allow Project
construction to begin more quickly and keep inflationary costs
to a minimum, potentially saving millions of dollars. Funding
for the construction of the project will be an essential part
of the settlement of the Tribe's water claims in Arizona.
The United States, in its capacity as trustee for the White
Mountain Apache Tribe, filed claims to water in two Arizona
adjudication proceedings and asserted the right to water
associated with the headwaters of the Salt River. These claims
are pending and will ultimately be decided by the courts. The
Salt River, the headwaters of which originate on the Fort
Apache Reservation, serves as a water source for many of
Arizona's water users. Over the past several years, Salt River
Project, Roosevelt Water Conservation District, several other
irrigation districts, and many Arizona cities have engaged in
water rights settlement negotiations with the Tribe with the
goal of permanently quantifying the Tribe's water rights and
eliminating water supply uncertainty associated with the
pending adjudication proceedings. The settlement of the Tribe's
claims is nearly finalized.
On September 11, 2008, Senator Kyl introduced the White
Mountain Apache Tribe Water Rights Quantification Act (S. 3473)
to permanently quantify the Tribe's water rights. The
quantification legislation, among other things, confirms the
Tribe's settlement and authorizes federal funding for the
construction of the Miner Flat Project. S. 3128 facilitates
settlement of the Tribe's water rights by providing loan funds
of $9.8 million to allow the Tribe to further the Miner Flat
Project's planning, design, and engineering work.
LEGISLATIVE HISTORY
S. 3128 was introduced on June 12, 2008 by Senator Kyl and
was referred to the Committee on Indian Affairs. On September
23, 2008, the Committee ordered the bill favorably reported to
the Senate with the recommendation that the Senate do pass S.
3128 with an amendment in the nature of a substitute.
SUMMARY OF THE AMENDMENT
During an open business meeting on September 23, 2008, the
Committee considered and approved an amendment in the nature of
a substitute to S. 3128. In the underlying version of S. 3128,
the loan for the Miner Flat Project would be repaid from the
funds set aside in the Arizona Water Settlements Act for future
Indian water settlements (see P.L. 108-451, Sec. 107). The
proposed amendment in the nature of a substitute would make the
loan repayable over a term of 25 years and strike the repayment
provision relating to the funding in the Arizona Water
Settlements Act.
SECTION-BY-SECTION ANALYSIS
Sec. 1. Short title
Section 1 cites the short title of the bill as the White
Mountain Apache Tribe Rural Water System Loan Authorization
Act.
Sec. 2. Definitions
Section 2 provides three definitions for terms used in the
bill. These terms are: ``Miner Flat Project,'' ``Secretary,''
and ``Tribe.''
Sec. 3. Miner Flat Project loan
Section 3(a) authorizes and directs the Secretary to loan
to the White Mountain Apache Tribe $9,800,000, adjusted, as
appropriate, based on ordinary fluctuations in engineering cost
indices, to carry out the planning, engineering, and design of
the Miner Flat Project. The loan is subject to the availability
of appropriations.
Section 3(b) provides the terms and conditions of the
federal loan at a zero percent interest rate with a repayment
term of 25 years, beginning on January 1, 2013.
Section 3(c) directs the Secretary, subject to section 4,
to administer the planning, engineering, and design of the
Miner Flat Project.
Sec. 4. Planning, engineering, and design
Section 4(a) directs the Secretary to offer to enter into a
cooperative agreement with the Tribe no later than 90 days
after the Act's enactment. It provides that the cooperative
agreement shall address the parties' rights, responsibilities
and liabilities in relation to the planning, engineering, and
design of the Miner Flat Project and shall require compliance
with all federal environmental laws. Section 4(b) provides that
the Indian Self-Determination and Education Assistance Act's
requirements apply to the Miner Flat Project planning,
engineering, and design activities.
Sec. 5. Authorization of appropriations
Section 5 authorizes the appropriation of sums as are
necessary to carry out the Act.
COMMITTEE RECOMMENDATION
On September 23, 2008, the Committee on Indian Affairs
convened a business meeting to consider S. 3128, and other
measures. During the business meeting, the Committee voted, by
a voice vote, to report S. 3128 favorably, with an amendment,
to the full Senate with a recommendation that it do pass.
COST AND BUDGETARY CONSIDERATIONS
On September 24, 2008, the Committee transmitted this bill
to the Congressional Budget Office and requested it to conduct
an estimate of the costs incurred in carrying out its
provisions. The Committee will publish in the Congressional
Record information on 5-year projections for S. 3128 when such
information is available from the Congressional Budget Office.
REGULATORY IMPACT STATEMENT
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact that would be incurred in
carrying out S. 3128. The Committee believes that the
regulatory impact of S. 3128 will be minimal.
EXECUTIVE COMMUNICATIONS
There have been no executive communications received by the
Committee with regards to this legislation. However, on
Thursday, September 11, 2008, testimony was provided by Mr.
Kris Polly from the U.S. Department of the Interior to the
Senate Committee on Indian Affairs hearing on S. 3128. Mr.
Polly stated that until a final settlement of the Tribe's
claims has been reached and enacted by Congress, the Department
does not support the Federal government providing consideration
for, or a contribution to a possible future litigation
settlement. Mr. Polly stated that this would essentially
authorize loan forgiveness as no non-Federal contributions
would be repaid to the United States Treasury. The Department
believes that the need for reliable and safe drinking water on
the Reservation is not in question and the project proposed by
the Tribe may be the best way to address the need. However, the
Department stated that more analysis needed to be done to
determine the best course of action. As such, the
Administration testified that S. 3128 is premature. Ultimately,
the Administration did not support the bill but has stated that
it is committed to working with the Tribe and other settlement
parties to reach a final and fair settlement of the Tribe's
water rights claims.
Chairman Dorgan, at the request of Senator Kyl, offered an
amendment at the September 11, 2008 business meeting, which was
adopted by voice vote and intended to address the concerns of
the Department.
CHANGES IN EXISTING LAW
In compliance with subsection 12 of Rule XXVI of the
Standing Rules of the Senate, the Committee finds that the
enactment of S. 3128 will not result in any changes in existing
law.