[Senate Report 106-415]
[From the U.S. Government Publishing Office]
Calendar No. 813
106th Congress Report
SENATE
2d Session 106-415
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AMENDING THE ACT ENTITLED ``AN ACT RELATING TO THE WATER RIGHTS OF THE
AK-CHIN INDIAN COMMUNITY'' TO CLARIFY CERTAIN PROVISIONS CONCERNING
THE LEASING OF SUCH WATER RIGHTS, AND FOR OTHER PURPOSES
_______
September 19, 2000.--Ordered to be printed
_______
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany H.R. 2647]
The Committee on Indian Affairs to which was referred the
bill (H.R. 2647) to amend the act entitled ``An Act relating to
the water rights of the Ak-Chin Indian Community'' to clarify
certain provisions concerning the leasing of such water rights,
and for other purposes, having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
Purpose
The purpose of H.R. 2647 is to amend An Act Relating to the
Water Rights of the Ak-Chin Indian Community, P.L. 98-530, to
clarify certain provisions concerning the leasing of such water
rights, and for other purposes.
Background
The Ak-Chin Indian Reservation was established by Executive
Order in 1912 for Pima and Tohono O'odham Indians in the State
of Arizona. The reservation consists of approximately 22,000
acres located 30 miles south of Phoenix in central Arizona.
Historically, the Ak-Chin Indian Community (Community) met its
needs for domestic and agricultural water with ground water
pumped from beneath the reservation. However, increasing
agricultural development adjacent to the reservation, spurred
by the Federal Government's need for cotton and other
commodities to supply America's armed forces in World War II,
also increased the demand for ground water and resulted in a
dramatic decline in the water table under the reservation. The
declining water table in turn resulted in greatly increased
pumping costs that made farming on the reservation uneconomic
and threatened the viability of the Ak-Chin Indian Community.
In response to what became an emergency situation, in 1978
the Congress enacted the Ak-Chin Water Rights Settlement (P.L.
95-328), which authorized the Secretary of the Interior to
construct a well field and pipeline system to deliver a
temporary supply of water to the reservation until reliable,
long-term sources of water could be secured for the Community.
However, after the Secretary subsequently discovered that legal
availability of the intended source of the temporary supply of
water was questionable and that the cost of the planned well
field was prohibitively high, the Secretary and the Community
renegotiated the terms of the settlement. In 1984, the Congress
enacted P.L. 98-530, which amended the 1978 settlement to
provide for the Community to receive a permanent supply of
Colorado River water delivered through the works of the Central
Arizona Project (CAP). In 1992, the Congress enacted section 10
of the P.L. 102-497, which amended the 1984 settlement to
authorize the Community to lease portions of its CAP water
within Maricopa, Pinal and Pima Counties, but limited the term
of any lease to 100 years. However, the 1992 amendment did not
authorize the Community to extend a lease beyond the initial
100-year term.
The Administration has expressed technical and generalized
substantive concerns about H.R. 2647. In an April 14, 2000
letter to the Community, Deputy Secretary David Hayes raised
these concerns and indicated the Department's desire to
forestall further action on the bill in light of ``broader
regulatory and Indian leasing issues in Arizona.'' He also
offered to continue work with the parties on this issue and
included a proposed amendment to the bill. Like the Department,
the Committee recognizes that such concerns need to be balanced
against the Community's desire to take whatever actions are
necessary to protect its own interests. The Committee
recognizes that the Department's concerns are relevant,
especially because other options areavailable for addressing
this apparent conflict between Federal and State law. Amending a
Federal statue, especially a statute memorializing an Indian water
rights settlement, is not always the best means for resolving similar
impasses. Obviously this should encourage parties to explore
alternative approaches for resolving such disputes because the
enactment of amendments is not a certainty.
Summary of Provisions
Section 1. Constitutional authority
Section 1 of the bill references the language from Article
I, section 8, of the U.S. Constitution which refers to
Congressional authority to regulate commerce with Indian
tribes.
Section 2. Technical amendment to Ak-Chin Water Use Act of 1984
Subsection (a) provides a short title for this section.
Subsection (b) amends Public Law 98-530, as amended, to all
apply to leases, options to renew leases, renewals of options
to lease, exchanges of water, and temporary disposal of water
as long as three conditions are met. First, the initial lease
term may not be for more than 100 years, with no permanent
alienation of the tribal water right. Second, such agreements
must be accepted and ratified by a resolution of the Community
Council. Finally, the lease must be approved and executed by
the Secretary.
Subsection (c) approves a lease agreement between the
Community, the United States, and Del Webb Corporation dated
December 14, 1996, along with an amendment to that agreement
dated January 7, 1999. The Secretary is authorized and directed
to execute the amendment.
Legislative History
On July 29, 1999, Representative Shadegg introduced H.R.
2647, which was referred to the Subcommittee on Water and Power
of the House Committee on Resources. A companion measure, S.
1913, was introduced in the Senate on November 10, 1999 by
Senator Lott, for himself and Senators McClain and Kyl. On
February 10, 2000, a hearing was held on H.R. 2647 by the
Subcommittee on Water and Power of the House Resources
Committee. On March 9, 2000, H.R. 2647 was favorably reported
by the Subcommittee. On April 5, 2000 the bill was favorably
reported by the House Resources Committee. On May 5, 2000, the
House of Representative voted to suspend the rules and pass
H.R. 2647 as introduced. On May 10, 2000, H.R. 2647 was
received in the Senate and referred to the Committee on Indian
Affairs. On June 29, 2000, H.R. 2647 was considered by the
Committee at an open business meeting.
Committee Recommendation and Tabulation of Vote
The Committee on Indian Affairs, in an open business
session on July 17, 2000, by voice vote ordered the bill, H.R.
2647, reported favorably to the Senate.
Section-by-Section Analysis
Section 1. Describes the Constitutional basis for
Congressional authority over Indian Affairs.
Section 2. Provides an amendment to the Act of October 19,
1984, P.L. 98-530, as follows:
Subsection (a) provides a short title.
Subsection (b) amends the 1994 Act by authorizing lease
extension and options to lease, as long as they are approved by
the Secretary of Interior. The December 14, 1996 option and
lease between the Community, the United States, and Del Webb
Corporation is approved. This subsection also authorizes and
directs the Secretary to approve an amendment dated January 7,
1999.
Cost and Budgetary Considerations
The cost estimate for, H.R. 2647, as provided by the
Congressional Budget Office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 2, 2000.
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 H.R. 2647, the Ak-Chin
Water Use Amendments Act of 2000.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lanette
Keith.
Sincerely,
Steven M. Lieberman
(For Dan L. Crippen, Director).
Enclosure.
H.R. 2647--Ak-Chin Water Use Amendments Act of 2000
H.R. 2647 would allow the Ak-Chin Indian Community in
Arizona to extend and renew leases of its settlement water for
off-reservation use. Under current law, such leases may not
exceed 100 years. In addition, the act would ratify and approve
a lease agreement among the Ak-Chin Indian Community, the
United States, and the Del Webb Corporation.
Based on information from the Bureau of Indian Affairs, CBO
expects that H.R. 2647 would have no significant effect on the
agency's administrative costs. Therefore, we estimate that any
impact on discretionary spending as a result of this
legislation would be negligible. CBO estimates that
implementing H.R. 2647 would have no effect on direct spending
or receipts, because any income resulting from additional
leases would be paid directly to the Ak-Chin Community. Hence,
pay-as-you-go procedures would not apply to the act.
H.R. 2647 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
On April 18, 2000, CBO transmitted a cost estimate for H.R.
2647, the Ak-Chin Water Use Amendments Act of 1999, as ordered
reported by the House Committee on Resources. The two versions
of the legislation are very similar and our cost estimates are
identical.
The CBO staff contact is Lanette Keith. This estimate was
approved by Peter H. Fontaine, Deputy Assistant Director for
Budget Analysis.
Executive Communications
The views of the Administration on are set forth in the
following letter from Deputy Secretary of Interior David J.
Hayes, to Delia M. Carlyle, Chairman of the Ak-Chin Indian
Community dated on April 14, 2000:
The Deputy Secretary
of the Interior,
Washington, DC, April 14, 2000.
Re H.R. 2647, Ak Chin Indian community water use amendments
Delia M. Carlyle,
Chairman, Ak Chin Indian Community,
Maricopa, AZ.
Dear Chairman Carlyle: This is to follow up on our March
24, 2000, meeting regarding the Department of the Interior's
concerns about H.R. 2647, the Ak Chin Indian Community Water
Use Amendments. I appreciate the time you and your attorneys
spent with us discussing this difficult matter. While we have
differing views about the bill and its potential effects on the
Community and other tribes in Arizona, I believe our dialogue
was productive.
While I am disappointed that the Community feels it must
press forward with its bill before the Department is able to
resolve broader regulatory and Indian leasing issues in
Arizona, I certainly understand and appreciate the Community's
need to take the action it feels necessary to protect its
interests.
I would like to continue working with the Community to see
if there is any way that we can reach a compromise on H.R.
2647. I do not believe that it is appropriate for the
Department and the Community to continue to be at odds over
this issue.
In the interests of continued discussions, I am interested
in your thoughts on possible changes to H.R. 2647 along the
lines set forth in the enclosure to this letter. Such changes
would have the benefit of allowing the Community and Del Webb
to immediately proceed with proposed lease extensions, but
would avoid, at least for the time being, the more
controversial issue of the need for 100 year renewal periods in
light of Arizona's recent interpretation of its Assured Water
Supply regulations.
Thank you again for your time and attention to this matter.
I am hopeful that together we can find a way forward that
protects the interests of the Ak Chin Community, but does not
raise complications for other tribes that have not yet been
able to achieve the benefits of a water rights settlement.
Sincerely,
David J. Hayes.
Enclosure.
proposed amendments to h.r. 2647
1. Delete subsections 2(a) and 2(b). Amend subsection 2(c)
as follows:
Notwithstanding the provisions the Act of October 19, 1984
(Public Law 98-530; 98 Stat. 2698), as amended by section 10 of
the Act of October 24, 1992 (Public Law 102-497; 106 Stat.
3258), the option and lease agreement among the Ak Chin Indian
Community, the United States of America, and the Del Webb
Corporation, dated as of December 14, 1996, and the Amendment
Number One thereto among the Ak Chin Indian Community, the
United States of America, and the Del Webb Corporation, dated
as of January 7, 1999, are hereby ratified and approved. The
Secretary of the Interior is hereby authorized [and directed]
to execute Amendment Number One [not later than 60 days after
the date of the enactment of this Act].
Regulatory Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompany a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill H.R. 2647. The Committee finds that the
regulatory impact of H.R. 2647 will be negligible.
Changes in Existing Law
In compliance with subsection 12 of the rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill are required to be set forth in the accompanying
Committee report. The Committee states that enactment of H.R.
2647 will result in the following changes in existing law.
SECTION 2 OF THE ACT OF OCTOBER 19, 1984
AN ACT Relating to the water rights of the Ak-Chin Indian Community
Sec. 2. (a) * * *
* * * * * * *
[(j) The Ak-Chin Indian Community (thereafter in this Act
referred to as the ``Community'') shall have the right to
devote the permanent water supply provided for by this Act to
any use, including agricultural, municipal, industrial,
commercial, mining, recreational or other beneficial use, in
the areas initially designated as the Pinal, Phoenix and Tucson
Active Management Areas pursuant to the Arizona Groundwater
Management Act of 1980, laws 1980, fourth special session,
chapter 1. The community is authorized to lease or enter into
an option to lease, extend leases, exchange or temporarily
dispose of water to which it is entitled for beneficial use in
the areas initially designated as the Pinal, Phoenix and Tucson
Active Management Areas pursuant to the Arizona Groundwater
Management Act of 1980, laws 1980, fourth special session,
chapter 1: Provided, That the term of any such lease shall not
exceed 100 years and the Community may not permanently alienate
any water right. In the event the Community leases, extends
leases, exchanges or temporarily disposes of water, such action
shall be pursuant to a contract that has been accepted and
ratified by a resolution of the Ak-Chin Indian Community
Council and approved and executed by the Secretary.]
(j)(1) The Ak-Chin Indian Community (hereafter in this Act
referred to as the ``Community'') shall have the right to
devote the permanent water supply provided for by this Act to
any use, including agricultural, municipal, industrial,
commercial, mining, recreational, or other beneficial use, in
the areas initially designated as the Pinal, Phoenix, and
Tucson Active Management Areas pursuant to the Arizona
Groundwater Management Act of 1980, laws 1980, fourth special
session, chapter 1. The Community is authorized to lease or
enter into options to lease, to renew options to lease, to
extend the initial terms of leases for the same or a lesser
term as the initial term of the lease, to renew leases for the
same or a lesser term as the initial term of the lease, to
exchange or temporarily dispose of water to which it is
entitled for the beneficial use in the areas initially
designated as the Pinal, Phoenix, and Tucson Active Management
Areas pursuant to the Arizona Groundwater Management Act of
1980, laws 1980, fourth special session, chapter 1.
(2) Notwithstanding paragraph (1), the initial term of any
lease entered into under this subsection shall not exceed 100
years and the Community may not permanently alienate any water
right. In the event the Community leases, enters into an option
to lease, renews an option to lease, extends a lease, renews a
lease, or exchanges or temporarily disposes of water, such
action shall only be valid pursuant to a contract that has been
accepted and ratified by a resolution of the Ak-Chin Indian
Community Council and approved and executed by the Secretary.
* * * * * * *