The Library of Congress  >  THOMAS Home  >  Committee Reports  >  Search Results

69-006

110TH CONGRESS

Report

HOUSE OF REPRESENTATIVES

2d Session

110-815

--SHOSHONE-PAIUTE TRIBES OF THE DUCK VALLEY RESERVATION WATER RIGHTS SETTLEMENT ACT

JULY 31, 2008- Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

Mr. RAHALL, from the Committee on Natural Resources, submitted the following

R E P O R T

[To accompany H.R. 5293]

[Including cost estimate of the Congressional Budget Office]

SECTION 1. SHORT TITLE.

SEC. 2. FINDINGS.

SEC. 3. PURPOSES.

SEC. 4. DEFINITIONS.

SEC. 5. APPROVAL, RATIFICATION, AND CONFIRMATION OF AGREEMENT; AUTHORIZATION.

SEC. 6. TRIBAL WATER RIGHTS.

SEC. 7. DUCK VALLEY INDIAN IRRIGATION PROJECT.

SEC. 8. DEVELOPMENT AND MAINTENANCE FUNDS.

SEC. 9. TRIBAL WAIVER AND RELEASE OF CLAIMS.

SEC. 10. MISCELLANEOUS.

PURPOSE OF THE BILL

The purpose of H.R. 5293 is to approve the settlement of the water rights claims of the Shoshone-Paiute Tribes of the Duck Valley Reservation in Nevada, to require the Secretary of the Interior to carry out the settlement, and for other purposes.

BACKGROUND AND NEED FOR LEGISLATION

The Duck Valley Reservation is the homeland of the Shoshone-Paiute Tribes (Tribes). The Reservation straddles the Idaho-Nevada border along the East Fork of the Owyhee River, a tributary to the Snake River. The Reservation was established by Executive Order on April 16th, 1877, and expanded by Executive Orders dated May 4, 1886 and July 1, 1910. The Reservation encompasses approximately 290,000 acres within the States of Nevada and Idaho.

The Owyhee Project on the main stem of the Owyhee River is a Bureau of Reclamation Project that irrigates more than 100,000 acres of land in eastern Oregon and western Idaho.

The Tribes' primary source of income is agriculture made possible by the Duck Valley Indian Irrigation Project, owned by the Bureau of Indian Affairs (BIA) and operated by the Tribes under a self-governance compact. The Project's primary water storage facility, the Wild Horse Reservoir, was originally built in 1930 and rebuilt in 1960. Despite the rebuilding, inadequate maintenance has led to an unstable infrastructure, resulting in an increased federal liability.

The Tribes have asserted claims to their federal reserved water rights in both Nevada and Idaho state courts. The State of Idaho sought to resolve these claims by initiating the Snake River Basin Adjudication (SRBA) in 1987. The United States filed claims in Idaho's SRBA, and the Tribe's water rights were resolved by a consent decree entered in the Snake River Basin Adjudication on December 12, 2006 (the resolution of the Tribes' Idaho claims does not require Congressional ratification). The Nevada agreement was reached during a stay of that state's adjudicative process and requires Congressional action. H.R. 5293 would ratify the Nevada agreement.

The State of Nevada, and water users in Nevada will provide the Tribes with 111,476 acre-feet of surface water from the Owyhee River, storage water in the Wild Horse Reservoir, all water flows originating from springs and creeks on the Reservation, and 2,606 acre-feet of ground water, plus perennial yield. At the same time, the agreement protects the use of water by irrigators upstream (south) of the Reservation.

COMMITTEE ACTION

H.R. 5293 was introduced on February 7, 2008 by Rep. Dean Heller (R-NV). The bill was referred to the Committee on Natural Resources, and within the Committee to the Subcommittee on Water and Power. On March 13, 2008 the Subcommittee held a hearing on the bill.

On July 15, 2008, the Subcommittee met to mark up the bill. Ranking Member Cathy McMorris Rodgers (R-WA) offered an amendment in the nature of a substitute that clarified the water rights of upstream users. The amendment was adopted by unanimous consent and the bill, as amended, was then forwarded to the Full Committee. On July 16, 2008, the Full Natural Resources Committee met to consider the bill. H.R. 5293, as amended, was favorably reported to the House of Representatives by unanimous consent.

SECTION-BY-SECTION ANALYSIS

Section 1. Short title

Section 1 provides that this Act may be cited as the `Shoshone-Paiute Tribes of the Duck Valley Reservation Water Rights Settlement Act.'

Section 2. Findings

Section 2 describes the findings for Congressional action and recognizes that this bill would seek to resolve tribal water-related, monetary claims for damages against the United States.

Section 3. Purposes

Section 3 states the purposes of this Act. Specifically, the Act will resolve outstanding water rights issues with respect to the East Fork of the Owyhee River and pending water-related, tribal claims for damages against the United States. The bill will also require the Secretary of the Interior perform all obligations under the Agreement and Act.

Section 4. Definitions

Section 4 provides definitions for the terms used in the bill.

Section 5. Approval, ratification, and confirmation of agreement

Section 5 ratifies the agreement referred to in the legislation and known as the `Agreement to Establish the Relative Water Rights of the Shoshone-Paiute Tribes of the Duck Valley Reservation and the Upstream Water Users, East Fork Owyhee River'. This section also authorizes and directs the Secretary to execute the Agreement as approved by Congress, including any and all environmental compliance required by federal law.

Section 6. Tribal water rights

Section 6 states that tribal water rights will be held in trust by the United States, through the Secretary of the Interior, for the benefit of the Tribes. The Act requires the Tribes to enact a tribal water code to administer tribal water rights, no later than three years after enactment of this bill. The Secretary will regulate the tribal water rights until the Tribes enact their water code. The bill provides that the Tribes' water rights cannot be lost by abandonment, forfeiture, or nonuse.

Section 7. Duck Valley Indian Irrigation Project

Section 7 states that nothing in this Act will affect the Federal Duck Valley Indian Irrigation Project. This section also states that the federal government shall not seek reimbursement for capital costs incurred in support of the Project.

Section 8. Development and Maintenance Funds

Subsection (a) authorizes and outlines the creation of the Shoshone-Paiute Tribes Water Rights Development Fund and the Shoshone-Paiute Tribes Operation and Maintenance Fund.

Subsection (b) states that the Shoshone-Paiute Tribes' Water Rights Development Fund will be established within the Treasury of the United States and administered by the Secretary of the Interior. The bill authorizes the appropriation of $9 million annually in the Development Fund for five fiscal years for a total of $45 million. The Tribes must use funds from the 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.

Subsection (c) provides that the Shoshone-Paiutes' Operation and Maintenance Fund will be established within the Treasury of the United States and administered by the Secretary of the Interior. The bill authorizes the appropriation of $3 million annually, for five fiscal years, for a total of $15 million to this Fund. The tribes must use the Maintenance Fund to operate and maintain the Duck Valley Indian Irrigation Project and water-related projects authorized under the Act. Funds can also be spent to operate, maintain and replace the water supply and sewer systems for tribal communities. The bill, as ordered reported by the Committee, does not specifically allocate any funds to the rehabilitation of the Duck Valley Irrigation Project and it is unclear if the United States will be responsible for any future rehabilitation claims. The Committee expects this to be resolved prior to floor consideration.

Subsections (d-g) provide that under the Act, 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. The Tribes may withdraw all or part of the funds but must submit a tribal management plan that must be approved by the Secretary of the Interior. Neither the Secretary of the Interior nor the Secretary of the Treasury are liable for how monies withdrawn from the fund are spent or invested. In addition, the Tribes must submit an expenditure plan that must be approved by the Secretary for any payment or reimbursement of costs. The Tribes are required to submit an annual report to the Secretary that describes all costs. No part of the funds shall be distributed on a per capita basis to tribal members.

The Committee notes that the Administration and the Tribes have not come into agreement on the cost of the Settlement. In testimony on the Senate companion bill, the Administration asserted that the federal contribution to the settlement should be $9.3 million, in contrast to the $60 million proposed in the legislation. In House testimony on the bill, Majel Russell, Principal Deputy Assistant Secretary of Indian Affairs for the Department of the Interior, said that the Tribes were offered almost $40 million from the federal negotiation team as an unofficial offer. The Administration argues that their internal guidance requires settlements to contain non-federal cost sharing `proportionate to the benefits received by the non-federal parties,' and must `specify that the total cost of a settlement to all parties should not exceed the value of the existing claims as calculated by the federal government.'

The Tribes assert that the change in cost was due to a change in the interpretation and implementation of the Criteria and Procedures for the Participation of the Federal Government in Negotiations for the Settlement of Indian Water Rights Claims (`Criteria'). The Tribes also contend that the Administration's proposed federal contribution of $9.3 million only reflects the federal liability, but does not include the cost of settlement implementation. H.R. 2535 supports the Tribe's contention that the $60 million reflects both the federal liability and the cost of implementing the settlement.

Section 9. Tribal waiver of claims

Section 9 outlines the waivers 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 other water-related claims for damages. The waiver of claims against the United States related to water rights in section 9 is understood to encompass claims for damages to tribal resources due to loss of water or water rights, including damages, losses, or injuries to hunting, gathering, or cultural rights as well as the fishing rights that are explicitly waived.

Subsection (a) states that the Tribes and the 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 accrued before the effective date specified in subsection (d).

Subsection (c) provides for the retention of certain rights and claims notwithstanding the waivers set forth in Subsections 9(a) and 9(b).

Subsections (d-f) provide that 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 Act shall not take effect and any appropriated funds shall be returned to the Treasury. These subsections also describe the rights retained by the Tribes and the United States and the process for tolling claims.

Section 10. Miscellaneous

Section 10 includes provisions on the limits of claims and rights not waived in the agreement, the Act, or other ongoing matters specified in the Act. 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 Act.

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII of the Rules of the House of Representatives, the Committee on Natural Resources' oversight findings and recommendations are reflected in the body of this report.

CONSTITUTIONAL AUTHORITY STATEMENT

Article I, section 8 of the Constitution of the United States grants Congress the authority to enact this bill.

COMPLIANCE WITH HOUSE RULE XIII

1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out this bill. However, clause 3(d)(3)(B) of that rule provides that this requirement does not apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974.

2. Congressional Budget Act. As required by clause 3(c)(2) of rule XIII of the Rules of the House of Representatives and section 308(a) of the Congressional Budget Act of 1974, this bill does not contain any new budget authority, spending authority, credit authority, or an increase or decrease in revenues or tax expenditures.

3. General Performance Goals and Objectives. As required by clause 3(c)(4) of rule XIII, the general performance goal or objective of this bill is to approve the settlement of the water rights claims of the Shoshone-Paiute Tribes of the Duck Valley Reservation in Nevada, to require the Secretary of the Interior to carry out the settlement, and for other purposes.

4. Congressional Budget Office Cost Estimate. Under clause 3(c)(3) of rule XIII of the Rules of the House of Representatives and section 403 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for this bill from the Director of the Congressional Budget Office:

H.R. 5293--Shoshone-Paiute Tribes of the Duck Valley Reservation Water Rights Settlement Act

Summary: H.R. 5293 would ratify a water rights agreement among the Shoshone-Paiute Tribes of the Duck Valley Reservation, individual water users, and Nevada concerning the East Fork of the Owyhee River. The bill also would create two trust funds to settle the tribes' claims against the United States for compromising tribal water rights and failing to maintain the Duck Valley Irrigation Project. Under the bill, amounts in the funds could not be spent until certain requirements have been met.

Assuming appropriation of the authorized amounts to the funds, CBO estimates that implementing H.R. 5293 could cost $48 million in 2012. Enacting H.R. 5293 also would increase direct spending by $6 million in 2012 for interest payments to the tribe. Enacting the bill would not affect 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 ($68 million in 2008, adjusted annually for inflation). Furthermore, appropriations resulting from authorizations contained in the bill could be used to pay for any such costs.

H.R. 5293 contains no private-sector mandates as defined in UMRA.

Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 5293 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--                               


                                                                                 2009 2010 2011 2012 2013 2009-2013 


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


CHANGES IN SPENDING SUBJECT TO APPROPRIATION                                                                        


Authorization Level                                                                12   12   12   12    0        48 


Estimated Outlays                                                                   0    0    0   48    0        48 


CHANGES IN DIRECT SPENDING                                                                                          


Estimated Budget Authority                                                          *    1    2    2    0         6 


Estimated Outlays                                                                   0    0    0    6    0         6 


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


Basis of estimate: For this estimate, CBO assumes that H.R. 5293 will be enacted near the beginning of fiscal year 2009 and that the entire amounts authorized will be appropriated for each fiscal year. In the fall of 2006, the Shoshone-Paiute Tribes of the Duck Valley Indian Reservation, the state of Nevada, and several individual water users signed an agreement to settle a water rights dispute concerning the East Fork of the Owyhee River. Currently, the United States is not a party to this agreement. However, enactment of H.R. 5293 would approve and ratify the agreement and authorize the Secretary of the Interior to execute the settlement and other responsibilities under the bill. CBO assumes that, by fiscal year 2012, all parties will have executed the components of the agreement as specified under the bill.

Changes in spending subject to appropriation

H.R. 5293 would authorize the appropriation of $12 million a year over the 2009-2012 period, for two trust funds for the Shoshone-Paiute Tribes as part of the water rights settlement. Of that amount, $9 million a year would be authorized to be appropriated for the Shoshone Paiute

Tribes Water Rights Development Fund 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. Another $3 million a year over the same time period would be authorized to be appropriated for the Shoshone-Paiute Tribes Water Rights Operation and Maintenance Fund for similar activities.

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 2009 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 three years would be considered intragovernmental and would have no net effect on the federal budget.

When the conditions for final settlement have been met in 2012, control over the use of the trust funds would be transferred to the tribe and the budget would record an expenditure of $48 million in that year. Subsequent use of the funds would have no effect on the federal budget. Should the Secretary not publish a statement of findings by December 31, 2015, the agreement would not take effect and any funds appropriated would be returned to the general fund of the Treasury.

Changes in direct spending

The Secretary of the Interior would be required to invest the amounts appropriated to the trust funds until those funds are expended. CBO estimates that interest earnings over the 2009-2012 period would total $6 million and would be recorded as a federal outlay in 2012. Such outlays would be direct spending. Subsequently, the funds would be considered nonbudgetary, and any future interest payments would not be considered part of the federal budget. Should the Secretary not publish a statement of findings by December 31, 2015, the agreement would not take effect, and any interest payments would not be made.

Estimated impact on state, local, and tribal governments: H.R. 5293 would require the tribes to adopt water policies that would govern tribal water rights as detailed in the agreement. That requirement would be an intergovermental mandate as defined in UMRA because it would place a statutary requirement on the tribe 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 ($68 million in 2008, 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: H.R. 5293 contains no private-sector mandates as defined in UMRA.

Previous CBO estimate: On August 8, 2007, CBO trasmitted a cost estimate for S. 462, the Shoshone-Paiute Tribes of the Duck Valley Reservation Water Rights Settlement Act, as ordered reported by the Senate Committee on Indian Affairs on July 19, 2007. Although the bills are very similar, our estimates of costs are different. Our estimate of discretionary spending under H.R. 5293 is lower because we now assume a later enactment date for the legislation. Also, CBO now considers that tribal interest payments under both pieces of legislation would increase direct spending rather than discretionary spending (as we estimated under S. 462). Those interest payments under H.R. 5293 would increase direct spending by $6 million. That estimate applies to S. 462 as well.

Estimate prepared by: Federal costs: Leigh Angres; Impact on State, Local, and Tribal Governments: Melissa Merrell; and Impact on the Private Sector: Amy Petz.

Estimate approved by: Theresa Gullo, Deputy Assistant Director for Budget Analysis.

COMPLIANCE WITH PUBLIC LAW 104-4


This bill contains no unfunded mandates.

EARMARK STATEMENT


H.R. 5293 does not contain any congressional earmarks, limited tax benefits, or limited tariff benefits as defined in clause 9(d), 9(e) or 9(f) of rule XXI.

PREEMPTION OF STATE, LOCAL OR TRIBAL LAW


This bill is not intended to preempt any State, local or tribal law.

CHANGES IN EXISTING LAW


If enacted, this bill would make no changes in existing law.