[Senate Report 110-415]
[From the U.S. Government Publishing Office]
Calendar No. 872
110th Congress Report
SENATE
2d Session 110-415
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A BILL TO APPROVE THE SETTLEMENT OF THE WATER RIGHTS CLAIMS OF THE
SHOSHONE-PAIUTE TRIBES OF THE DUCK VALLEY INDIAN RESERVATION IN NEVADA,
TO REQUIRE THE SECRETARY OF THE INTERIOR TO CARRY OUT THE SETTLEMENT,
AND FOR OTHER PURPOSES
_______
July 10 (legislative day, July 9), 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. 462]
The Committee on Indian Affairs, to which was referred the
bill (S. 462) to approve the settlement of the water rights
claims of the Shoshone-Paiute Tribes of the Duck Valley Indian
Reservation in Nevada, to require the Secretary of the Interior
to carry out the settlement, and for other purposes, 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. 462, as amended, is to approve the
settlement of the water rights claims of the Shoshone-Paiute
Tribes of the Duck Valley Reservation.
BACKGROUND
Between 1877 and 1910, three presidents established
reservation lands in Idaho and Nevada for the Western Shoshone
and Paiute peoples.\1\ The Executive Orders form a reservation
that encompasses approximately 290,000 acres located nearly
equally within both states. With the exception of one small
parcel, the United States holds the entire reservation in trust
for the Shoshone-Paiute Tribes. There are no allotments.
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\1\April 16, 1877, Executive Order, Pres. Hayes (securing lands for
the Western Shoshone peoples); May 4, 1886, Executive Order, Pres.
Cleveland (securing lands for the Paddy Cap Band of Paiutes); July 1,
1910, Executive Order, Pres. Taft (securing lands for water needs by
Shoshone and Paiutes living on the Duck Valley Reservation).
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There are three primary sources of water on the
reservation:
(1) The East Fork of the Owyhee River, which flows
primarily through the State of Nevada;
(2) Blue Creek, a tributary to the Owyhee River that
flows through the reservation until it meets the Owyhee
on the Idaho side of the reservation; and
(3) Mary's Creek, located in the northeastern part of
the reservation, flowing northeasterly through the
Reservation into Idaho.
The Tribes have used these waters for agriculture,
livestock, fishing and domestic purposes. Since 1862, regular
reports from Indian Affairs Commissioners and later agents of
the Bureau of Indian Affairs record the agricultural and
livestock activities of Shoshone and Paiute Indians living in
the Duck Valley area of the Owyhee River and on the
reservation. According to a ``Survey of Conditions of the
Indians in the United States,'' a 1932 field hearing of the
U.S. Senate Committee on Indian Affairs focused on the
agriculture and grazing activities and water needs on the Duck
Valley Reservation.\2\ While irrigation ditches and modest dams
had been used with some success in taming the Owyhee River's
spring flows, the need for water storage was cited as early as
1889.\3\ The hearing record provides a detailed accounting of
the Tribe's historic use of water and demand for in-stream,
ground, and storage rights along the East Fork of the Owyhee
River; the Tribes' and the Department of the Interior's efforts
to secure water rights for the Tribe and develop the Duck
Valley Indian Irrigation Project; and the Bureau of
Reclamation's interests in protecting water to support the
Owyhee Project in Oregon.\4\
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\2\Survey of Conditions of the Indians in the United States Before
a Subcommittee of the Committee on Indian Affairs, 72nd Cong., 1st
Sess., Part 28, Nevada 14807-15189 (1934).
\3\Survey, p. 14933.
\4\Survey, pp. 14895-15035. Pursued for decades and first
authorized in 1924, the Bureau of Reclamation's Owyhee Project is a
comprehensive dam, canal, and pumping system in the Owyhee and Snake
River Basins to irrigate lands in eastern Idaho and western Oregon. See
Eric Stene, The Owyhee Project, Bureau of Reclamation History Program,
Denver, CO (1996), http://www.usbr.gov/dataweb/projects/oregon/Owyhee/
history.html.
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Until recently, none of the Tribes' water rights from the
three primary water sources were quantified, despite the
Tribes' consistent water use. The Shoshones and Paiutes
residing on the reservation have been irrigators since the
1860s. Since the 1880s, Interior officials conducted a survey
of water storage needs, secured additional lands for a storage
reservoir, and conducted studies on the impacts of an Indian
irrigation project on the downriver Owyhee Project. In the
1930s, the federal government authorized and implemented the
Duck Valley Indian Irrigation Project to provide water storage
along the East Fork of the Owyhee River for irrigation and
stock water purposes on the Duck Valley Reservation. The Wild
Horse Reservoir, located south and upstream of the reservation,
is the storage reservoir of the Duck Valley Indian Irrigation
Project. Originally built in 1937, the reservoir was
reconstructed in 1970.
Although the Shoshone-Paiute Tribes' water rights had not
been quantified, individuals along the Owyhee River, Blue
Creek, and Mary's Creek secured surface and ground water rights
under the prior appropriation doctrine or through state
permits.\5\ As early as 1924, the Department of the Interior's
Office of Indian Affairs and Bureau of Reclamation and the
Department of Justice conducted inter-agency deliberations on
whether to pursue a water rights adjudication on behalf of the
Tribes based on the United States Supreme Court's decision in
Winters v. United States.\6\ According to the Office of Indian
Affairs, upstream users and other individuals were interfering
with the Tribes' traditional agricultural and stock uses.\7\ In
1931, the Department of Justice prepared a draft bill of
complaint at the insistence of the Office of Indian Affairs,
but the Bureau of Reclamation requested that the adjudication
be withheld for further study of the impacts an Indian project
would have on the downstream Owyhee Project.\8\ The complaint
was not filed, and the Owyhee and the Duck Valley Indian
Irrigation Projects were completed in the 1930s without the
Tribes' or individual water rights being adjudicated.
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\5\Both the States of Nevada and Idaho recognized water rights
under the doctrine of prior appropriation, commonly understood as the
``first in time'' to appropriate water for beneficial use established
the ``first right'' to protect that use against other appropriators.
See James Davenport, Nevada Water Law (Colorado River Commission of
Nevada, 2003). As early as 1905 in Nevada and 1903 in Idaho, the states
began regulating water rights by issuing permits.
\6\207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908).
\7\Survey, pp. 14938-14940.
\8\Ibid.
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Efforts were reinitiated in the late 1980s to quantify the
water rights of various users of the three sources of water on
the Reservation through actions before the Idaho state court
and the Nevada Division of Water Resources.
Multi-State adjudications to quantify tribal water rights and other
claims
In 1998, the United States, as trustee for the Tribes,
filed a claim in an Idaho state court, as part of the Snake
River Basin Adjudication, for a water right in the Blue Creek
and St. Mary's Creek.\9\ The Tribes, on their own behalf, later
intervened in the claim. In 2006, the State of Idaho's Fifth
District Court entered a final decree that approved a consent
decree and partial final decrees agreed to by the United
States, the Tribes, the State of Idaho, and two individual
water rights holders.\10\ The decrees quantified the parties'
disputed water rights, including federal reserved water rights
for the Tribes. No further federal action was necessary with
respect to this adjudication.
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\9\The Snake River Basin Adjudication is a ``statutorily-created
lawsuit to inventory all surface and ground water rights in the Snake
River system,'' with its records and background available at http://
www.srba.state.id.us.
\10\In re Snake River Basin Adjudication, Case No. 39576, Subcases
51-02002, et al.; 51-12756, et al.; and 51-12604, et al. (Fifth Dist.
Idaho 2006).
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The Snake River Basin Adjudication did not address the
Tribes' claims against the United States for monetary damages.
In 1989, the Nevada State Engineer reinitiated proceedings
to determine all water rights to the use of surface and ground
water along the East Fork of the Owyhee River.\11\ The water
rights holders, with rights upstream from the Duck Valley
reservation, claimed rights under Nevada's law of prior
appropriation or state-issued permits to instream water rights
to the Owyhee River. The Tribes claimed surface rights to the
River, having an 1877 priority date, and water storage rights
in Nevada.
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\11\East Owyhee River Adjudication, Nevada Division of Water
Resources, State Engineer (1924, pending).
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In the late 1990s, the parties, including the United States
as trustee for the Tribes, initiated negotiations to settle the
adjudication by agreement, and the State Engineer and Nevada
court stayed the adjudication for purposes of settlement rather
than continue withadministrative and judicial proceedings. For
more than ten years, the parties and the United States worked towards a
settlement agreement. After years of participation and leadership in
negotiating an agreement and after making significant progress in
drafting a settlement agreement, the United States withdrew from the
settlement negotiations.
In 2005, the Tribes, the State, and the upstream users
reached and executed an agreement. The United States did not
sign the agreement. According to testimony provided to the
Committee by W. Patrick Ragsdale, Director of the Bureau of
Indian Affairs at the Department of the Interior, the
Department disagrees with some provisions of the agreement.
According to Mr. Ragsdale, neither the final settlement amount
nor the State of Nevada's cost-share are sufficient to meet the
Department's Criteria and Procedures for the Participation of
the Federal Government in Negotiations for the Settlement of
Indian Water Rights Claims.\12\ The Committee notes, however,
that the Department has supported a water rights settlement
where, after applying the Criteria and Procedures, no state
contribution was required.\13\
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\12\Criteria and Procedures for the Participation of the Federal
Government in Negotiations for the Settlement of Indian Water Rights
Claim, 55 Fed. Reg. 9223-01, 1990 WL 325541 (1990).
\13\For example, the Department's Criteria and Procedures were
applied during the water rights negotiation and settlement between the
United States, State of Idaho, and the Nez Perce Tribe. The final
agreement and law did not include a federal, cost-share. Pub. L. 108-
447, 118 Stat. 2809, 3431.
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The settlement agreement addresses the claims pending in
the adjudication. The agreement quantifies the Tribes' surface
and groundwater rights, and provides that the Tribe will
administer these rights under a tribal water code. The
agreement provides that the Nevada State Engineer will quantify
the upstream water users' rights, which will include domestic
and stock water uses, and administer these rights. The parties
agreed to an implementation plan to coordinate the
administration of water rights, particularly during a time of
water shortage. Under the agreement, the State is required to
provide gauging, a recording station, and a water commissioner
to implement and administer the settlement, at an estimated
cost of nearly $1 million.\14\
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\14\The Department failed to acknowledge the State of Nevada's
nearly $1 million combined monetary and non-monetary contribution
towards implementing the settlement agreement. The Committee
acknowledges the State's contribution to quantify the upstream water
rights' holders and administer aspects of the agreement. The State's
contribution is appropriate compared to the significant federal
obligation to the Tribes and the few upstream rights holders who
benefit from the Duck Valley Indian Irrigation Project.
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Tribal claims against the United States
While the Snake River Basin Adjudication did not address
the Tribes' claims against the federal government, the Tribes
sought to resolve their claims against the United States in the
Nevada adjudication and through federal legislation.
The Tribes' claimed the United States had compromised the
Tribes' water rights, failed to maintain and complete the Duck
Valley Indian Irrigation Project, and destroyed tribal
resources, including the Tribes' historic salmon runs.
According to the appointed Federal Negotiation Team, the United
States bore some responsibility for the Tribes' loss of on-
reservation fishing and reduced the reservation's irrigable
acreage by locating the Wild Horse Reservoir 15 miles upstream
from the reservation and for failing to maintain and complete
the Duck Valley Indian Irrigation Project.
During the settlement negotiations with the State and
upstream water users, the Tribes and the United States
discussed the amount of the federal liability to the Tribes for
failing to observe its trust responsibilities and obligations.
According to testimony offered at the Committee's April 2007
hearing, the parties had made progress towards a settlement
amount to compensate the Tribes for their estimated historic
losses and anticipated programmatic expenses, such as
developing the tribal water code. The Tribes initially
calculated the federal liability at more than $100 million.
During the settlement negotiations, the federal water
negotiating team suggested the claims could be settled for more
than $40 million. Mr. Ragsdale, however, testified that the
United States Office of Management and Budget calculated the
final federal burden at less than $10 million--$30 million less
than the United States had indicated before the negotiating
team withdrew from the settlement talks. The parties were
unable to continue settlement negotiations given the United
States' final determination of its liability.
As represented by U.S. Senator Harry Reid in his testimony
before this Committee, U.S. Senators Ensign, Craig and Crapo
joined him in drafting a bill to authorize a $60 million
settlement amount. This amount represents less than the Tribes'
historic losses and estimated future expenditures and yet is
greater than the federal government's final estimated
obligations and potential liability. The bill would ratify the
settlement agreement signed by the parties, make the United
States a party to the agreement, and resolve the Tribes' breach
of trust and other claims for monetary damages against the
United States.
SUMMARY OF THE AMENDMENT IN THE NATURE OF A SUBSTITUTE
At its July 19, 2007 business meeting, the Committee
adopted an amendment in the nature of a substitute to S. 462.
Like the original bill, the amendment in the nature of a
substitute federally approves, ratifies, and confirms a
settlement agreement reached by parties to the East Fork of the
Owyhee River adjudication pending before the Nevada Division of
Water Resources and resolves the Tribes' claims for money
damages against the United States.
At the Committee's April 26, 2007 hearing, the Department
of the Interior expressed concerns with S. 462 as introduced.
In response, the bill's sponsors, the Tribes, the States of
Nevada and Idaho, the upstream water users, and the Department
addressed these concerns by adding Section 7, describing the
Duck Valley Indian Irrigation Project, and making significant
changes to renumbered Section 8, the Development and
Maintenance Funds, and Section 9, the Waivers and Release of
Claims. The amendment also includes a number of minor and
technical changes to clarify the Act and the intentions of its
sponsors. While the substitute amendment addresses many of the
Department's concerns, the Department continues to oppose the
bill as amended.
LEGISLATIVE BACKGROUND
S. 462 was introduced on January 31, 2007, by Senator Harry
Reid, for himself and Senator John Ensign, and was referred to
the Committee on Indian Affairs. On April 26, 2007, the
Committee held a hearing on S. 462. At an open business meeting
on July 17, 2007, the Committee approved S. 462, with an
amendment in the nature of a substitute. Senators Craig and
Crapo became co-sponsors of the bill on July 19, 2007.
COMMITTEE RECOMMENDATION AND TABULATION OF VOTE
At an open business meeting held July 19, 2007, the
Committee on Indian Affairs, by a voice vote, adopted S. 462,
with an amendment in the nature of a substitute and ordered the
bill favorably reported to the Senate, with the recommendation
that the Senate do pass S. 462 as reported.
SECTION-BY-SECTION ANALYSIS OF S. 462, AS AMENDED
Section 1. Title
This section provides the title of the Act, which is the
Shoshone-Paiute Tribes of the Duck Valley Reservation Water
Rights Settlement Act.
Section 2. Findings
Section 2 describes the basis for Congressional action. The
Tribes, the State of Nevada, and the upstream individual water
users have agreed to end more than a decade of state-law
adjudication of water rights of all interested parties along
the East Fork of the Owyhee River, Nevada. This bill supports
federal policy to settle Indian water rights claims without
lengthy and costly litigation and bring certainty to the water
rights of tribes. This bill would also seek to settle tribal
water-related claims for monetary damages against the United
States.
Section 3. Purposes
This section states that the bill will resolve outstanding
issues related to the East Fork of the Owyhee River and will
ratify the agreement reached by all parties to the East Fork
Owyhee River adjudication and the United States. The Act will
also resolve pending water-related Tribal claims for damages
against the United States, and require that the Secretary of
the Interior perform all obligations of the Secretary under the
Agreement and this Act.
Section 4. Definitions
This section defines important terms used in the Act.
Section 5. Approval, ratification, and confirmation of agreement
This section ratifies the entire agreement, with an
exception, and authorizes the Secretary of the Interior to
perform the obligations ordered in the Act; these obligations
include environmental compliance required by federal law.
While the Tribes may store water at Wild Horse Reservoir
and use tribal water rights on tribal land off the reservation,
the section states that the bill does not approve, ratify or
confirm provisions in the Settlement Agreement that would
appear to allow the Tribes to otherwise market tribal water
rights off the Reservation.
Section 6. Tribal water rights
This section states that the Secretary of the Interior
shall hold the Tribes' water rights in trust and that water
rights cannot be lost by abandonment, forfeiture, or nonuse.
The bill, like the Settlement Agreement, requires the Tribes to
enact a tribal water code to administer tribal water rights.
This action constitutes an intergovernmental mandate under the
Unfunded Mandates Reform Act (UMRA), though the cost to
implement the provision is well below the UMRA's threshold.
Section 7. Duck Valley Indian Irrigation Project
This section affirms the current status of the federal Duck
Valley Indian Irrigation Project and states that the federal
government shall not seek reimbursement for capital costs
incurred in support of the Project.
Section 8. Development and maintenance funds
This section authorizes the creation of two funds: a
Development Fund and a Maintenance Fund. The funds shall be
held by the Treasury Department and administered by the
Secretary of the Interior.
This section also authorizes Congress to appropriate $9
million annually, for five fiscal years, for the Development
Fund. The Tribes must use funds from the $45 million
Development Fund for water resource planning and development;
for projects related to rehabilitating or expanding the Duck
Valley Irrigation Project, such as for water resource
development and agricultural development; for cultural
preservation; for restoring or improving fish or wildlife
habitat; and for designing and constructing water supply and
sewer systems for tribal communities.
Section 8 authorizes Congress to appropriate $3 million
annually, for five fiscal years, for the Maintenance Fund. The
Tribes must use funds from the $15 million Maintenance Fund to
operate and maintain the Duck Valley Indian Irrigation Project
and water-related projects authorized under the bill or to
operate, maintain and replace the water supply and sewer
systems for tribal communities.
The Secretary of the Interior is required to manage and
invest both funds according to the American Indian Trust Fund
Management Reform Act of 1994. Upon reaching theeffective date
for the bill, the Secretary must make the funds available to the
Tribes. Under the bill, the Tribes can access the funds in two ways: By
submitting a tribal management plan or an expenditure plan. The bill
states the criteria for spending, reporting, and enforcement of both
plans. Further, if requested by the Tribes, the Secretary is required
to include funds in any funding agreements of the Tribes pursuant to
the Indian Self-Determination Act for approved fund uses. Neither the
Secretaries of Interior or Treasury retain liability for the
expenditure or investment of amounts distributed to the Tribes.
The bill prohibits the payment of per capita payments to
individual Indians from either fund.
Section 9. Tribal waiver of claims
This section includes a waiver and release of claims by the
Tribes and the United States, acting as trustee, against
parties to the settlement agreement, and a waiver and release
of claims by the Tribes against the United States as stated in
the settlement agreement and as described during the extensive
federal water negotiations.
Subsection (a) states that the Tribes and United States, as
trustee, waive all claims to water rights in and damages,
losses or injuries to water in the East Fork of the Owyhee
River that were or could be asserted in court proceedings.
Subsection (b) describes the Tribes' waiver and release of
claims against the United States. The Tribes' waiver would
release any claims against the United States for a water right
or injury to a water right in the East Fork of the Owyhee
River, for multiple breach of trust claims, and for fishing
rights that resulted from reduced quantity of water in the East
Fork and claims accrued before the effective date of the
section.
The waivers and release of claims become effective when the
Secretary of the Interior publishes a statement of findings in
the Federal Register. Should the Secretary fail to publish a
statement of findings by December 31, 2015, the settlement
agreement and the bill shall not take effect and any
appropriated funds shall be returned to the Treasury.
This section also describes the rights retained by the
Tribes and the United States and the process for tolling
claims.
Section 10. Miscellaneous
This section includes provisions on the limits of claims
and rights not waived in the agreement, the bill, or other
ongoing matters specified in the bill. The section also
confirms the status quo of tribal, state, and federal subject
matter jurisdiction and regulatory authority. The section
waives the United States' immunity from suit to enforce the
agreement and limits State review of federal actions authorized
under the bill.
COST AND BUDGETARY CONSIDERATIONS
The cost estimate for S. 462, as prepared by the
Congressional Budget Office, is set forth below.
The legislation authorizes two settlement funds to be
funded at a total of $12 million annually, for 5 consecutive
years. Because the annually appropriated funds will be held in
an account with the Secretary of the Interior, the
Congressional Budget Office interprets the bill as authorizing
Congress, in the final appropriations year, to appropriate
interest-earned on the appropriated amounts held by the
Secretary. The CBO estimates that Congress is authorized to
appropriate an estimated $9 million in interest that the funds
would have earned over five years.
S. 462--Shoshone-Paiute Tribes of the Duck Valley Reservation Water
Rights Settlement Act
Summary: S. 462 would create two trust funds as part of a
potential settlement to a water rights dispute between the
Shoshone-Paiute Tribes of the Duck Valley Indian Reservation,
the state of Nevada, and the federal government. Assuming
appropriation of the necessary amounts, CBO estimates that
implementing S. 462 could cost $69 million over the 2008-2012
period if the United States agrees to the settlement. However,
the United States is not currently a party to the settlement
agreement reached by other parties involved in the dispute
regarding Nevada's East Fork of the Owyhee River. If the
federal government does not agree to the settlement, S. 462
would have no effect on the federal budget. Enacting S. 462
would not affect direct spending or revenues.
The bill would require the Shoshone-Paiute Tribes of the
Duck Valley Indian Reservation to adopt policies governing
tribal water rights. That requirement would be an
intergovernmental mandate as defined in the Unfunded Mandates
Reform Act (UMRA). CBO estimates that the cost of the mandate
would be small and well below the threshold established in UMRA
($66 million in 2007, adjusted annually for inflation).
Furthermore, appropriations resulting from authorizations
contained in the bill could be used to pay for any such costs.
S. 462 contains no private-sector mandates as defined in
UMRA.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 462 is shown in the following table. The
costs of this legislation fall within budget function 450
(community and regional development).
------------------------------------------------------------------------
By fiscal year, in millions of
dollars--
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2008 2009 2010 2011 2012
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CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Appropriations for Deposits to
Trust Funds:
Estimated Authorization 13 13 14 14 15
Level......................
Estimated Outlays........... 13 13 14 14 15
Receipts and Spending of Trust
Funds:
Estimated Authorization -13 -13 -14 -14 54
Level......................
Estimated Outlays........... -13 -13 -14 -14 54
Total Changes:
Estimated Authorization 0 0 0 0 69
Level......................
Estimated Outlays........... 0 0 0 0 69
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Basis of estimate: For this estimate, CBO assumes that S.
462 will be enacted near the end of fiscal year 2007 and that
the entire amounts estimated to be necessary will be
appropriated for each fiscal year. Potential costs, however,
hinge upon the agreement reached in the fall of 2006 by the
Shoshone-Paiute Tribes of the Duck Valley Indian Reservation,
the state of Nevada, and several individual water users over a
water rights dispute relating to the Duck Valley Irrigation
Project. Currently, the United States is not a party to this
agreement. For this estimate, CBO assumes that the United
States will agree to the settlement and that S. 462 would
codify this potential agreement. Accordingly, CBO assumes that,
by fiscal year 2012, all parties will have executed the
components of the agreement as specified under the bill.
Shoshone-Paiute Tribes Water Rights Development and Maintenance Funds
S. 462 would create two trust funds for the Shoshone-Paiute
Tribes as part of the water rights settlement. The bill would
authorize the appropriation of $9 million a year, plus interest
earnings on the unspent balance of the fund, over the 2008-2012
period for the Shoshone-Paiute Tribes Water Rights Development
Fund to pay for costs to rehabilitate the Duck Valley
Irrigation Project; acquire land and water rights; restore fish
and wildlife habitat; develop water laws; and build sewer
systems and other water-related projects. Over the same period,
the bill also would authorize the appropriation of $3 million a
year, plus interestearned on unexpended balances, for the
Shoshone-Paiute Tribes Water Rights Operation and Maintenance Fund for
similar activities.
In total, CBO estimates that S. 462 would authorize the
appropriation of $69 million to the new funds. Several
conditions would have to be met to transfer control of the new
trust funds to the tribes. The Secretary of the Interior would
have to publish a statement of findings in the Federal Register
indicating that all parties have executed the agreement, the
Fourth Judicial District in Nevada would have to issue a
judgment and final decree concerning the settlement, and the
amounts authorized under the bill for fiscal years 2008 through
2012 would have to be appropriated. Because those conditions
would not be met until the appropriations are made for 2012,
deposits in the funds during the first four years would be
considered intragovernmental and would have no net effect on
the federal budget. When the conditions for final settlement
have been met, control over the use of the trust funds would be
transferred to the tribe and the budget would record an
expenditure of an estimated $69 million in 2012. However, if
the United States does not become a party to the agreement,
control over the use of the trust funds would not be
transferred and the bill would have no cost in 2012 (even if
the authorized amounts were appropriated each year).
Beginning in 2012, the tribes would be able to withdraw all
or part of the amounts in the funds upon the approval by the
Secretary of the Interior. For any portion of amounts that are
not withdrawn, the tribes would be required to submit to the
Secretary an expenditure plan and subsequently would file an
annual report describing their spending activities.
Estimated impact on state, local, and tribal governments:
S. 462 would require the tribes to adopt water policies that
would govern tribal water rights as detailed in the agreement.
That requirement would be an intergovernmental mandate as
defined in UMRA because it would place a statutory requirement
on the tribes that is separate from provisions of the
agreement. CBO estimates that the cost of the mandate would be
small and well below the threshold established in UMRA ($66
million in 2007, adjusted annually for inflation). Furthermore,
appropriations resulting from authorizations for the
development fund could be used to pay for any such costs.
Estimated impact on the private sector: S. 462 contains no
private-sector mandates as defined in UMRA.
Estimate prepared by: Federal Costs: Leigh Angres; Impact
on State, Local, and Tribal Governments: Leo Lex; Impact on the
Private Sector: Amy Petz.
Estimate approved by: Jeffrey Holland, Chief, Projections
Unit, Budget Analysis Division.
PREEMPTION STATEMENT
Section 5(c) of the amendment in the nature of a substitute
to S. 462 preempts Nevada law with respect to water marketing.
The State of Nevada, State of Idaho, the Tribes and the other
affected water rights holders in the Nevada adjudication
support this provision.
REGULATORY 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 paperwork impact that would be incurred in
implementing this legislation. The Committee has concluded that
enactment of S. 462 will create only de minimis regulatory or
paperwork burdens.
EXECUTIVE COMMUNICATIONS
The Committee has not received an official communication
from the Administration on the provisions of the bill as
amended. The Department of the Interior provided testimony to
the Committee, which is in the hearing record.\15\
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\15\Hearing on S. 462, Shoshone-Paiute Tribes of Duck Valley Water
Rights Settlement Act Before the Senate Comm. on Indian Affairs, 110th
Cong. (2007), S. Hrg. 110-105 (testimony of W. Patrick Ragsdale,
Director, Bureau of Indian Affairs).
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CHANGES IN EXISTING LAW
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee states that the
enactment of S. 462 will result in no changes in existing law.