II 109th CONGRESS 2d Session S. 2633 IN THE SENATE OF THE UNITED STATES April 24, 2006 Mr. Burns introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources A BILL To grant rights-of-way to owners of dams located in the Bitterroot National Forest in the State of Montana, and for other purposes.

1.

Short title

This Act may be cited as the Bitterroot National Forest Dam and Reservoir Maintenance Act.

2.

Findings and purposes

(a)

Findings

Congress finds that— (1)the wilderness dams in the Bitterroot National Forest in the State of Montana provide numerous benefits to the people living in the Bitterroot Valley; and (2)those benefits include— (A)groundwater recharge; (B)maintenance of open space by permitting sustainable family ranches and farms, rather than subdividing ranches and farms; (C)increased late summer streamflows that support riparian and fishery habitat needs; and (D)flood control. (b)

Purposes

The purposes of this Act are— (1)to grant rights-of-way to owners of dams located in the Bitterroot National Forest in the State of Montana; and (2)to continue to provide the benefits described in subsection (a).

3.

Definitions

In this Act: (1)

Dam

The term dam means a dam, including any reservoirs and appurtenances to the dam, that is located in the Forest as of the date of enactment of this Act. (2)

Forest

The term Forest means the Bitterroot National Forest in the State. (3)

Owner

The term owner means— (A)the owner of a dam; (B)the owner of a water storage right for a dam; or (C)the owner of rights-of-way under this Act or other Federal law. (4)

Secretaries

The term Secretaries means the Secretary of Agriculture and the Secretary of Interior. (5)

State

The term State means the State of Montana. (6)

Trail

The term trail means a trail, access route, or primitive road in the Forest in existence on the date of enactment of this Act.

4.

Rights-of-way

(a)

In general

Notwithstanding the Wilderness Act (16 U.S.C. 1131 et seq.), the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), or any other provision of law, the Secretaries shall, on the date of enactment of this Act, grant to the owners, for no consideration, rights-of-way— (1)to the trails, for purposes of providing access to any dams owned by the owner; and (2)to areas of the Forest adjacent to any dams owned by the owner, for purposes of the construction, reconstruction, maintenance, repair, and operation of the dam. (b)

Boundaries

(1)

In general

As soon as practicable after the date of enactment this Act, the owners shall, subject to paragraphs (2) and (3), prepare a map establishing the boundaries of the rights-of-way granted under subsection (a). (2)

Trails

A right-of-way granted under subsection (a)(1) shall extend at least 8 feet but not more than 60 feet in width from the center of the trail. (3)

Adjacent areas

A right-of-way granted under subsection (a)(2)— (A)shall be to areas of the Forest that are located not less than 50 feet nor more than 500 feet and further than 500 feet from the highwater mark and downstream dam toe to include additional area determined as necessary by the owner; and (B)shall include the least amount of land that is necessary, as determined by the State and owner, for the owner to construct, reconstruct, maintain, repair, and operate the dam, including borrow material, camp sites, pasture for pack and work animals, and tool and equipment storage sites. (c)

Construction, maintenance, and repair

An owner granted a right-of-way under subsection (a)(1) may construct, maintain, and repair the right-of-way. (d)

Authorized uses

(1)

Motor vehicles

Notwithstanding section 4(c) of the Wilderness Act (16 U.S.C. 1113), an owner may use motor vehicles, motorized and mechanized equipment, and other forms of mechanized transport— (A)on the rights-of-way granted under subsection (a); and (B)at the owner’s dam. (2)

Aircraft

An owner may operate aircraft in the airspace over the Forest to access the dam and may land the aircraft on the rights-of-way. (e)

Applicable law

Any activities that are carried out by an owner in a right-of-way granted under subsection (a) or for the purposes referred to in subsection (a)(2)— (1)shall be regulated by the State, in accordance with State law; and (2)shall not be subject to— (A)the Wilderness Act (16 U.S.C. 1131 et seq.); (B)the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); (C)the National Dam Safety Program Act (33 U.S.C. 467 et seq.); (D)any other Federal law establishing engineering and construction standards for dams; or (E)any other provision of Federal law to protect fish and wildlife or maintain water quality standards. (f)

Limitation on liability

An owner of a dam shall not be liable for any claim or damage that may arise from the conduct of activities to construct, maintain, repair, and operate the dam, except any claim or damage that arises from the negligence of the owner. (g)

Subsequent conveyance

The rights-of-way granted under subsection (a) may be subsequently conveyed by the owner without the consent of the Secretaries. (h)

Termination

A right-of-way granted to an owner under subsection (a) shall terminate if the State determines, after notice to the owner and a hearing, that the owner has not accessed or conducted activities at the dam for 10 consecutive years. (i)

Effect

(1)

Water rights

Nothing in this Act affects or in any way interferes with laws of the State relating to the control, appropriation, use, or distribution of water used in irrigation or other beneficial purposes, or any vested right acquired under State law, and the Secretaries shall proceed in conformity with such laws in all land and water management activities under all authorities. (2)

Existing rights-of-way

The rights-of-way granted under this Act shall be in addition to any rights-of-way granted to an owner under section 18 of the Act of March 3, 1891 (43 U.S.C. 946), sections 2339 and 2340 of the Revised Statutes (43 U.S.C. 661), or any other provision of law. (3)

Compensable claims

Any land and water management activities taken by the Secretaries which interfere with the access to or exercise of water rights or rights-of-way of the owner shall create in the owner a valid and compensable takings claim.