[Senate Report 108-311]
[From the U.S. Government Publishing Office]
Calendar No. 654
108th Congress Report
SENATE
2d Session 108-311
======================================================================
TO ENHANCE AND PROVIDE TO THE OGLALA SIOUX TRIBE AND ANGOSTURA
IRRIGATION PROJECT CERTAIN BENEFITS OF THE PICK-SLOAN MISSOURI RIVER
BASIN PROGRAM
_______
July 20, 2004.--Ordered to be printed
_______
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 1996]
The Committee on Indian Affairs, to which was referred the
bill (S. 1996) to enhance and provide to the Oglala Sioux Tribe
and Angostura Irrigation Project certain benefits of the Pick-
Sloan Missouri River basin program, 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. 1996, the Oglala Sioux Tribe Angostura
Irrigation Project Modernization and Development Act, is to
provide funds for the modernization and development of the
Angostura Unit of the Pick-Sloan Missouri River basin program
in the State of South Dakota and to establish a trust fund
benefitting the Oglala Sioux Tribe of the Pine Ridge Indian
Reservation.
BACKGROUND
The Angostura Unit is an irrigation project operated by the
Bureau of Reclamation, U.S. Department of the Interior, and is
located on the Cheyenne River in southwestern South Dakota.
Part of the Pick-Sloan Missouri River Basin Project authorized
under the Flood Control Act of 1944, 33 U.S.C. Sec. Sec. 701-1
et seq., the Unit includes the 193-foot Angostura Dam, which
impounds up to 130,000 acre-feet of water in the Angostura
Reservoir, and associated irrigation works. This reservoir,
with a surface area of 4,612 acres, provides water for
irrigation of up to 12,218 acres of farmland in the Angostura
Irrigation District through a 30-mile main canal, 39 miles of
lateral canals, and 21 miles of drains serving individual
farms. Up to 48,000 acre-feet of water are diverted annually
for irrigation purposes. Alfalfa and corn are the principal
crops, along with wheat, barley, oats, pasture, and forage.
Construction of the Angostura Dam began in 1946 and was
completed in 1949. The first delivery of irrigation water was
made in 1953. The Bureau of Reclamation estimates that its
operation provides $7.1 million of national economic
development benefits annually in recreation on the reservoir
and an additional $3.41 million in agriculture.
The Angostura Unit is located about twenty miles upstream
of the Pine Ridge Indian Reservation, home of the Oglala Sioux
Tribe. Notwithstanding the economic benefits provided by the
Angostura Unit to the people of southwestern South Dakota, the
operation of the Unit provides no economic development benefit
to the Oglala Sioux Tribe, which experiences extremely high
rates of unemployment and poverty. Additionally, the operation
of the Angostura Unit has an adverse impact on water quality
and on fish and wildlife resources within the Oglala Sioux
Tribe's Reservation.
A 40-year water service contract between the U.S. Bureau of
Reclamation and the Angostura Irrigation District expired in
1996. The Final Environmental Impact Statement, Angostura Unit
Contract Negotiation and Water Management (August 2002)
(``Final EIS'') prepared by the Bureau of Reclamation in
connection with the proposed renewal of that water service
contract identified four alternatives: (1) the No Action
Alternative, continuing essentially unchanged the expiring
water service contract and the management regime of water in
the reservoir; (2) the Reestablishment of Natural Flows Below
the Dam Alternative, reestablishing natural flows in the
Cheyenne River downstream of the dam to the extent possible;
(3) the Improved Efficiencies Alternative, instituting measures
to save irrigation water and a public process to determine the
use of the saved water, and (4) the Reservoir Recreation and
Fisheries Alternative, giving priority to recreational use and
fisheries at the reservoir. The Final EIS identified the
Improved Efficiencies Alternative as the Preferred Alternative.
The Improved Efficiencies Alternative would increase both
efficiency of the Angostura Irrigation District's water
delivery system and on-farm efficiencies. The measures proposed
in the Improved Efficiencies Alternative would include the
lining of canals and laterals, putting laterals into pipes,
improving water measuring systems, leveling fields, irrigating
by gated pipe or sprinkler, installing automated turnouts,
providing education on irrigation practices, and instituting
Best Management Practices. The water saved by these proposed
increases in efficiency could be used for recreation,
fisheries, downstream flows, or other uses. The Improved
Efficiencies Alternative would save an estimated 1,870-3,200 AF
of water by improving delivery system efficiencies by
approximately 5% and another 4,320-6,160 AF by increasing on-
farm efficiencies by approximately 10%.
Title I of S. 1996 authorizes the appropriation of
$4,660,000 to carry out the modernization and improvement of
the Angostura Unit and associated facilities as set forth in
the Improved Efficiencies Alternative in the Final EIS, with
the funding to remain available until expended and activities
to be carried out on a non-reimbursable basis. It directs the
Secretary of the Interior to provide for the delivery of the
water saved as a result of the proposed increased efficiencies
to be used for fish and wildlife purposes and environmental
restoration on the Pine Ridge Indian Reservation.
Title II of S. 1996 establishes the Oglala Sioux Tribal
Development Trust Fund in the Treasury of the United States and
provides that income from the Fund shall be transferred to the
Oglala Sioux Tribe and expended pursuant to a Development Plan
to be developed by the Tribe in consultation with the Secretary
of the Interior and the Secretary of Health and Human Services
for the purposes of economic development, infrastructure
development, the educational, health, recreational, and social
welfare objectives of the Tribe and its members, or any
combination of these activities. S. 1996 provides that, on the
first day of the 11th fiscal year that begins after the date of
its enactment, the Secretary of the Treasury shall deposit the
sum of $92,500,000 from the General Fund of the Treasury into
the Fund, together with the interest that would have accrued on
that sum if it had been invested in interest-bearing
obligations of the United States on the first day of the fiscal
year beginning after the date of enactment of S. 1996, with the
interest being compounded annually thereafter. Nothing in S.
1996 shall be interpreted or construed to affect any rights,
privileges, or claims, including water rights or claims
thereto, of the Oglala Sioux Tribe, whether located within or
without the external boundaries of the Pine Ridge Indian
Reservation, and whether based on treaty, Executive Order,
agreement, Act of Congress, aboriginal title, the Winters
Doctrine, or other authority.
LEGISLATIVE HISTORY
S. 1996 was introduced by Senator Daschle on December 9,
2003, and was referred to the Committee on Indian Affairs.
Senator Johnson became a cosponsor on February 12, 2004, and
Senator Inouye became a cosponsor on June 16, 2004. The
Committee held a legislative hearing on S. 1996 on June 16,
2004.
COMMITTEE RECOMMENDATION AND TABULATION OF VOTE
The Committee on Indian Affairs, in an open business
session on June 23, 2004, approved an amendment in the form of
a substitute to S. 1996 by voice vote and ordered the bill
reported favorably to the Senate.
SECTION-BY-SECTION ANALYSIS
Section 1--Short title
Section 1 states that this Act may be cited as the ``Oglala
Sioux Tribe Angostura Irrigation Project Modernization and
Development Act.''
Section 2--Findings
Section 2 states the findings of Congress that: (1)
Congress approved the Pick-Sloan Missouri River Basin Program
with the December 22, 1944, enactment of the Flood Control Act
of 1944, codified at 33 U.S.C. Sec. Sec. 701-1 et seq., to
promote the economic development of the United States, to
provide for irrigation in regions north of Sioux City, Iowa, to
protect urban and rural areas from floods of the Missouri
River, and for other purposes; (2) the Angostura Unit is a
component of the Pick-Sloan Program and provides for irrigation
of 12,218 acres of productive farm land in South Dakota, as
well as substantial recreation and fish and wildlife benefits;
(3) the Commissioner of the Bureau of Reclamation has
determined that the national economic development benefits of
irrigation at the Angostura Unit total approximately $3,410,000
annually and the national economic development benefits of
recreation at Angostura Reservoir total approximately
$7,100,000 annually; (4) the Angostura Unit impounds the
Cheyenne River twenty miles upstream of the Pine Ridge Indian
Reservation in South Dakota; (5) the Reservation experiences
extremely high rates of unemployment and poverty and is in need
of economic development; (6) the national economic development
benefits of the Angostura Unit do not extend to the
Reservation; (7) the Angostura Unit may negatively affect water
quality and ripparian vegetation along the Cheyenne River on
the Reservation; (8) modernization of the irrigation facilities
at the Angostura Unit would enhance the national economic
development benefits of the Angostura Unit and would achieve
improved water efficiency and environmental restoration
benefits on the Reservation; and (9) the establishment of a
trust fund for the Oglala Sioux Tribe would produce economic
development benefits for the Reservation comparable to the
benefits produced at the Angostura Unit and would provide
resources necessary for the restoration of the Cheyenne River
corridor on the Reservation.
Section 3--Definitions
Section 3 provides definitions for the terms ``Angostura
Unit,'' ``Fund,'' ``Pick-Sloan Program,'' ``Plan,''
``Reservation,'' ``Secretary,'' ``Tribe,'' and ``Tribal
Council.''
TITLE I--MODERNIZATION
Section 101--Modernization of facilities at Angostura Unit
Section 101 directs the Secretary to conduct the
modernization and improvement of the facilities of the
Angostura Unit as described in the report entitled ``Final
Environmental Impact Statement, Angostura Unit Contract
Negotiation and Water Management (August 2002).'' The cost of
this modernization and improvement is to be carried out on a
nonreimbursable basis.
Section 102--Delivery of water to Pine Ridge Indian Reservation
Section 102 states that the Secretary shall provide for the
delivery of the water saved through the modernization and
improvement of the facilities of the Angostura Unit to be used
for fish and wildlife purposes and environmental restoration on
the Reservation.
Section 103--Authorization of appropriations
Section 103 authorizes the appropriation of $4,660,000 to
carry out the modernization and improvement of facilities as
provided for in section 101, and provides that these funds are
to remain available until expended.
TITLE II--DEVELOPMENT
Section 201--Oglala Sioux Tribal Development Trust Fund
Subsection 201(a) provides for the establishment in the
United States Treasury of a fund to be known as the ``Oglala
Sioux Tribal Development Trust Fund'' that shall consist of any
amounts deposited into the Fund pursuant to this Title.
Subsection 201(b) provides that, on the first day of the
11th fiscal year that begins after the date of enactment of
this Act, the Secretary of the Treasury shall, from the General
Fund of the Treasury, deposit into the Fund established under
subsection (a) the sum of $92,500,000 plus an amount equal to
the amount of interest that would have accrued on $92,500,000
if that amount had been invested in interest-bearing
obligations of the United States on the first day of the fiscal
year that begins after the date of enactment of this Act and
compounded annually thereafter.
Subsection 201(c) requires the Secretary of the Treasury to
invest that portion of the Fund that in his judgment is not
required to meet current withdrawals, and provides that the
investments are to be made only in interest-bearing obligations
of the United States. The section further directs the Secretary
of the Treasury shall deposit interest resulting from the
investments into the Fund.
Subsection 201(d) provides that, beginning on the first day
of the 11th fiscal year after the date of enactment of this
Act, and on the first day of each fiscal year thereafter, the
Secretary of the Treasury shall withdraw the aggregate amount
of interest deposited into the Fund for that fiscal year and
shall transfer that amount to the Secretary of the Interior for
use, without fiscal year limitation, in accordance with
paragraph (d)(3). The section provides that the Secretary of
the Interior is to use the amounts transferred under subsection
(d)(1) only for the purpose of making payments to the Oglala
Sioux Tribe as such payments are requested by the Tribe by
trial resolution, but only after the Tribe has adopted a tribal
development plan (``Plan'') under subsection (f). The section
provides that the funds so transferred may be expended only to
carry out projects and programs under that Plan.
Subsection 201(e) bars the Secretary of the Treasury from
transferring or withdrawing any amount deposited under
subsection (b) of this section except as provided in
subsections (c) and (d)(1) of this section.
Subsection 201(f) sets forth the requirements for the
tribal development plan and provides that, not later than 18
months after the date of enactment of this Act, the governing
body of the Tribe shall prepare a Plan for the use of the
payments made to the Tribe under this section. The Plan shall
provide for the manner in which the Tribe shall expend payments
made to it under this section to promote economic development,
infrastructure development, and the educational, health,
recreational, and social welfare objectives of the Tribe and
its members, or any combination of these activities. The Tribal
Council shall make copies of the proposed Plan available to
tribal members for review and comment before the Plan becomes
final, in accordance with procedures established by the Tribal
Council, and may, on an annual basis, revise and update the
Plan. In revising the Plan, the Tribal Council shall provide
the members of the Tribe opportunity to review and comment on
any proposed revision. The Tribal Council shall consult with
the Secretary of the Interior and the Secretary of Health and
Human Services in preparing the Plan and any revisions to
update the Plan. The activities of the Tribe in carrying out
the Plan shall be audited as part of the annual single-agency
audit that the Tribe is required to prepare pursuant to the
Office of Management and Budget circular numbered A-133. The
auditors that conduct this audit shall determine whether funds
received by the Tribe for the period covered by the audit were
expended to carry out the Plan in a manner consistent with this
section, and shall include this determination in the written
findings of the audit. A copy of the written findings of the
audit shall be inserted in the published minutes of the Tribal
Council's proceedings for the session at which the audit is
presented to the Tribal Council.
Subsection 201(g) prohibits any portion of any payment made
under this Act from being distributed to any member of the
Tribe on a per capita basis.
Section 202--Eligibility of Tribe for certain programs and services
Section 202 provides that no payment made to the Tribe
pursuant to this Act shall result in the reduction or denial of
any service or program to which, pursuant to Federal law, the
Tribe is otherwise entitled because of its status as a
Federally recognized Indian tribe, or to which any individual
tribal member is otherwise entitled because of that
individual's status as a tribal member.
Section 203--Authorization of appropriations
Section 203 authorizes the appropriation of such sums as
are necessary to pay the administrative expenses of the Fund.
Section 204--Water rights
Section 204 states that nothing in this Act shall be
interpreted or construed to affect any rights, privileges, or
claims, including water rights or claims thereto, of the Oglala
Sioux Tribe, whether located within or without the external
boundaries of the Pine Ridge Indian Reservation, and whether
based on treaty, Executive Order, agreement, Act of Congress,
aboriginal title, the Winters Doctrine, or other authority, or
to validate or invalidate any assertion of the existence,
nonexistence, or extinguishment of any water rights, or claims
thereto, held by the Oglala Sioux Tribe, or any other Indian
tribe or individual Indian under Federal or State law, or any
other water rights in existence on the date of enactment of
this Act held by any person or entity.
COST AND BUDGETARY CONSIDERATIONS
The cost estimate for S. 1996, as provided by the
Congressional Budget Office, is set forth below.
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 8, 2004.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1996, the Oglala
Sioux Tribe Angostura Irrigation Project Modernization and
Development Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lanette J.
Walker.
Sincerely,
Elizabeth M. Robinson
(For Douglas Holtz-Eakin, Director).
Enclosure.
S. 1996--Oglala Sioux Tribe Angostura Irrigation Project Rehabilitation
and Development Act
Summary: S. 1996 would authorize the appropriation of $4.66
million for the Bureau of Reclamation to modernize the
irrigation facilities of the Angostura Unit, which is a part of
the Pick-Sloan Missouri River Basin Program. In addition, the
bill would allow the Oglala Sioux Tribe to use any water saved
through the modernization effort for environmental restoration
on the tribe's reservation. CBO estimates that modernizing the
irrigation facilities would cost about $5 million over the
2005-2007 period, assuming appropriation of the authorized
funds.
S. 1996 also would compensate the Oglala Sioux Tribe for
the damage caused by the Angostura Dam operated by the Bureau
of Reclamation on the Cheyenne River. CBO estimates that
enacting this provision would have no significant impact on the
federal budget over the 2004-2014 period; however, it would
increase direct spending by an estimated $158 million in 2015.
Enacting the bill would not affect revenues.
S. 1996 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments. The funds authorized by this bill would benefit
the Oglala Sioux Tribe, and any costs to fulfill the
requirements associated with those funds would be incurred
voluntarily.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 1996 is shown in the following table.
The costs of this legislation fall within budget functions 450
(community and regional development) and 300 (natural resources
and environment).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2005 2006 2007 2008 2009
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION\1\
Authorization level................................................ 5 0 0 0 0
Estimated outlays.................................................. 3 1 1 0 0
----------------------------------------------------------------------------------------------------------------
\1\ Enactment of S. 1996 also would increase direct spending by $158 million in 2015.
Basis of estimate: For this estimate, CBO assumes that S.
1996 will be enacted near the end of fiscal year 2004 and that
the authorized amount will be appropriated in fiscal year 2005.
Spending subject to appropriation
This bill would authorize the appropriation of $4.66
million to modernize the irrigation facilities of the Angostura
Unit. Based on historical spending of similar projects, CBO
estimates that implementing the modernization project
authorized by S. 1996 would cost about $5 million over the
2005-2007 period, assuming appropriation of the authorized
funds.
Direct spending
S. 1996 would provide compensation to the Oglala Sioux
Tribe for the damage caused by the Angostura Dam on the
Cheyenne River 20 miles upstream from the tribe's reservation.
The bill would establish the Oglala Sioux Tribe Development
Trust Fund and would direct the Secretary of the Treasury to
deposit a total of $92.5 million into interest-bearing accounts
to benefit the tribes on the first day of the 11th fiscal year
that begins after the date of enactment. An additional deposit
equal to the amount of interest that the fund would have earned
if the fund had been capitalized and invested in 2005 would be
made at the same time. CBO estimates that this additional
payment would be $65 million, for a total deposit of $158
million in 2015. Starting in 2015, the bill would allow the
tribes to spend earnings on amounts in the fund pursuant to a
tribal spending plan.
Payments to certain trust funds that are held and managed
in a fiduciary capacity by the federal government on behalf of
Indian tribes are treated as payments to a nonfederal entity.
As a result, CBO expects that the entire amount deposited to
the fund in 2015 would be recorded as budget authority and
outlays in that year. Because the trust funds would be
nonbudgetary, the subsequent use of such funds by the tribe
would not affect federal outlays.
Intergovernmental and private-sector impact: S. 1996
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments. The funds authorized by this bill would
benefit the Oglala Sioux Tribe, and any costs to fulfill the
requirements associated with those funds would be incurred
voluntarily.
Estimate prepared by: Federal Costs: Lanette J. Walker and
Julie Middleton. Impact on State, Local, and Tribal
Governments: Marjorie Miller. Impact on the Private Sector:
Selena Caldera.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
EXECUTIVE COMMUNICATIONS
The views of the Administration on S. 1996 as introduced
are set forth in the Statement of David Anderson, Assistant
Secretary of the Interior--Indian Affairs, United States
Department of the Interior, dated July 8, 2004, and are set
forth below:
Department of the Interior,
Office of the Secretary,
Washington, DC, July 8, 2004.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The following sets forth the views of
the Department of the Interior on S. 1996, the ``Oglala Sioux
Tribe Angostura Irrigation Project Modernization and
Development Act.'' S. 1996 would enhance and provide certain
project benefits for the Oglala Sioux Tribe in connection with
water conservation improvements on the Angostura Irrigation
Project. The Department cannot support the bill.
Title I of S. 1996 would authorize the Secretary to
rehabilitate and improve the facilities of the Angostura
Project, a component of the multi-state Pick-Sloan Missouri
Basin Program. Furthermore, Title I would provide that the
Secretary shall, to the maximum extent practicable, deliver
water saved through the rehabilitation and improvement of the
facilities of the Angostura Project to the Pine Ridge Indian
Reservation, and provide that the use of that water be used for
environmental restoration.
Title II of the bill would create a Tribal Development
Trust Fund to promote economic development, infrastructure
development, and the education, health, recreational, and
social welfare objectives of the Tribe and members of the
Tribe.
While the Department recognizes the economic challenges
that many Tribes in Indian Country face, the establishment of a
Trust Fund to address these issues does not seem warranted at
this time. The bill infers there ``may'' be impacts caused by
the development of the Angostura Unit of the Pick-Sloan
Project, yet we are not aware of what those specific impacts
are. Unlike other legislative propositions regarding
compensation for land impacted by the Pick-Sloan Project, no
specific impacts have been cited here nor any evaluation of
appropriate compensation completed. The Department shares the
concern of the Tribes about the need to improve economic,
educational, and health systems on the reservation and will
continue to work with the Tribe to seek solutions to promote
these reforms.
In addition, Title II establishes a Trust Fund consisting
of $92.5 million to be deposited in the Fund in the 11th year
following enactment of S. 1996 and requires a retroactive
annual interest payment on this amount. If a stream of payments
to the Tribe is found to be warranted, such benefits should be
provided by authorizing appropriations for this purpose.
The Department is also concerned that the proposal would
exclude all the stakeholders, other than the Oglala Sioux
Tribe, from the ongoing public process collaboratively
developed during the Environmental Impact Statement (EIS)
process to recommend the most beneficial use of saved water.
In August 2002, the Bureau of Reclamation (Reclamation), in
collaboration with a host of stakeholders, completed and
published the Final Environmental Impact Statement (FEIS) for
Contract Negotiation and Water Management of the Angostura
Unit. The EIS was prepared in cooperation with the:
Angostura Irrigation District;
Oglala Sioux Tribe;
Cheyenne River Sioux Tribe;
Lower Brule Sioux Tribe;
South Dakota Department of Game, Fish, and
Parks;
US. Geological Survey;
U.S. Natural Resources Conservation Service;
U.S. Bureau of Indian Affairs; and
The South Dakota Department of Environment
and Natural Resources.
In January 2003, the Record of Decision (ROD) was signed
for renewal of a long-term water service contract for the
Angostura Unit, Cheyenne River Basin, South Dakota. Reclamation
is concerned that provisions of Title I are inconsistent with
understandings spelled out in the ROD that involved input from
many key stakeholders. These provisions include the requirement
that the Secretary deliver saved water for the purposes of
environmental restoration on the Pine Ridge Indian Reservation,
and the finding that the Angostura Unit may be associated with
negative effects on water quality and riparian vegetation in
the Cheyenne River on the Reservation.
With regard to the authority in Section 101 to carry out
rehabilitation and improvement at the Angostura Project,
Reclamation already has authority to undertake such work.
While the Department cannot support S. 1996, we share the
sponsor's goal of finding innovative solutions for economic,
education, health, recreational, and social welfare
improvements on the Reservation. Indeed, the Department has
already committed significant resources to the ongoing
construction of the Mni Wiconi rural water project, which
addresses many of the needs identified in this legislation. The
Department stands ready to work with the Tribe, the Committee,
and the South Dakota delegation on these activities including
examining if there are quantifiable impacts caused by the Pick-
Sloan project.
The Office of Management and Budget has advised that there
is no objection to the presentation of this report from the
standpoint of the Administration's program.
Sincerely,
David Anderson,
Assistant Secretary--Indian Affairs.
REGULATORY AND PAPERWORK IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill evaluate
the regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that the
regulatory and paperwork impact of S. 1996 will be minimal.
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. 1996 will not effect any changes in existing
law.