Congressional Record, Volume 146 Issue 132 (Thursday, October 19, 2000)

[Congressional Record Volume 146, Number 132 (Thursday, October 19, 2000)]
[Senate]
[Pages S10776-S10785]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

COLORADO UTE SETTLEMENT ACT AMENDMENTS OF 2000

The PRESIDING OFFICER. The Senator from Colorado.
Mr. CAMPBELL. I ask unanimous consent that the Senate now proceed to
the consideration of Calendar No. 723, S. 2508, as under a previous
order. I further ask consent that any votes ordered with respect to
that legislation be stacked to occur at a time to be determined by the
majority leader with the concurrence of the minority leader.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report the bill by title.
The legislative clerk read as follows:

A bill (S. 2508) to amend the Colorado Ute Indian Water
Rights Settlement Act of 1988 to provide for a final
settlement of the claims of the Colorado Ute Indian Tribes,
and for other purposes.

There being no objection, the Senate proceeded to consider the bill.

Amendment No. 4303

Mr. CAMPBELL. Mr. President, I call up my amendment No. 4303.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Colorado [Mr. Campbell], for himself, Mr.
Allard, Mr. Bingaman, and Mr. Domenici, proposes an amendment
numbered 4303.

Mr. CAMPBELL. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The text of the amendment is printed in today's Record under
``Amendments Submitted.'')
Mr. CAMPBELL. I ask unanimous consent that 30 minutes of debate on
the bill be under my control, and that 30 minutes of debate on Senator
Feingold's amendment be divided, 20 minutes under Senator Feingold's
control and 10 minutes under my control.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CAMPBELL. Mr. President, I am pleased to be joined in offering
the proposed amendment by three of my distinguished colleagues: Senator
Allard, who is with me on the floor tonight; Senator Bingaman; and
Senator Domenici from New Mexico. This is a bipartisan effort. I thank
each of them for their support. All four of us representing the States
of Colorado and New Mexico have actively supported this project since
its inception. And, hopefully, S. 2508 will be the last time we need to
deal with this long overdue project.
In 1956 and 1968, decades ago--in fact, before I was ever elected to
any public office--the United States promised the residents of
southwestern Colorado they could count on the Government to assist them
in developing the region by ensuring an adequate and reliable water
supply for the benefit of the tribes and the non-Indian community. In
fact, in 1968, this project was authorized at the same time as the
central Arizona project and the central Utah project, both of which
have been completed.
Even before that, nearly 100 years before in 1868, the United States
made a treaty that guaranteed the southern Ute and Ute Mountain Indian
tribes of California a permanent homeland. No one could suggest this
did not include the right to an adequate water supply.
In 1987, as a freshman Member of the House of Representatives, I
introduced legislation to settle the Ute water rights claims. This
settlement act was signed by President Ronald Reagan in November of
1988. For the next two Congresses, I worked to obtain the funding
needed to implement this agreement, as did my colleagues from New
Mexico and Colorado. The 1988 settlement act is currently the law of
the land.
Unfortunately, that law has never been complied with. When I came to
the Senate, I worked to secure the funding for the massive
environmental studies needed on the proposed projects. I have also
worked to prevent misguided attempts to deauthorize or defund this
necessary project. The Federal Government's responsibility to build
this project is even more urgent because the Colorado Ute tribes have
claims to much of the water that is already being used and has been
used for generations by their non-Indian neighbors.
The urgency of this bill has increased too because under the 1988
Agreement the Tribes can go back to court to sue the Federal Government
if the project was not completed by the year 2000. That is obviously
not going to happen.
The four of us I have fought for the fulfillment of these promises
because I know what will happen if the Government is allowed to forget
its promise to this region and walk away from its commitment to provide
a firm water supply. Most important, the united States, the State of
Colorado, the two Ute Tribes, and the non-Indian residents will spend
the next few decades and millions of dollars in the Federal courts
fighting for the limited water supply that exists in this region. There
will only be losers in this fight because the non-Indians will lose the
legal right to use the water, and the indians may never have the
ability to put the water to use. The ironic part is that if

[[Page S10777]]

this issue ends up in the courts--it will pit one Federal agency
against another with your tax money paying for attorneys on both sides.
As the author of the Colorado Ute Indian Water Rights Settlement Act
of 1988 and now as the chairman of the Senate Indian Affairs Committee,
I have an additional responsibility to make the United States fulfill
its promise to this region.
The Ute Water Rights Settlement Act of 1988 is a commitment to the
Ute Tribes. This commitment is very similar to the 472 treaties
previously approved by the United States Senate. In those treaties,
each tribe agreed to give up a great deal in return for a guarantee
that the United States would recognize and protect the tribes' rights
to the reservation land guaranteed to them by the treaty. Also, as with
other treaties, the opponents did not even wait until the ink was dry
before they began trying to convince the United States to break its
terms. Even though the States of Colorado and New Mexico have spent
over $40 million to implement their part of the agreement. and Congress
has already appropriated over $50 million which went to pay the Tribes
to drop their lawsuits.
All of the 472 other treaties have been violated by the United
States. But in this case, if the government does not fulfill the treaty
terms, it is not only the Indians who will suffer, but all of the non-
Indians in the region.
As many of my colleagues are aware, the United States has two choices
when it comes to the Ute water rights: we can build the facilities
needed to store water for the tribes or we can reallocate the water
from those who are presently using it. Estimates are that between \1/4\
and \1/2\ of all non-Indian irrigators would lose their water rights if
we forcibly reallocate it.
Throughout a negotiation process sponsored by the state of Colorado,
the tribes and local water users tried to convince the project
opponents that reallocating the limited water supply is an unrealistic,
risky, and disruptive way to resolve the tribal water rights claims;
because it deprives hundreds of non-Indian water users of their rights
to life giving water.
Clearly, the ALP opponents will continue to oppose any project that
provides any water storage. Compromise--and this bill is the 4th one--
is not in their vocabulary. When the opponents tried to use
environmental laws to delay and frustrate the project, the coalition of
Indian tribes and local water users responded in two ways. First, they
agreed to reduce the size of the project, so it could be built in a
manner consistent with numerous existing environmental studies and
reports, and would cost \1/3\ of the cost of the original project. They
also insisted that any reduction in the project size should require the
government to make use of its existing studies when analyzing the
project's environmental impact; rather than restart the whole process
all over again.

It was difficult to convince me that we should follow this strategy
and agree to build only a small part of the ALP that was passed in
1988. When I introduced this proposal in the last Congress, I knew that
even a substantially reduced project would not satisfy the project's
opponents. They don't want a smaller project: they want a dead project.
I also knew that these opponents would work to mischaracterize any
attempt to make use of the existing environmental documents. We did not
have to wait very long for everyone to see that each of these concerns
was correct. During the 105th Congress, the last time we reached a
compromise and a bill was introduced, an administration official
appeared before my committee and opposed a bill that offered to
downsize the project in order to settle the tribal water rights claims.
But this left the administration with no feasible way to resolve the
tribal claims. In fact, as the Department of Interior began to produce
a new supplemental environmental impact statement, it compared the
smaller project with the idea of just buying water rights. Even the
present management of the Department of Interior could not deny that
the only realistic, feasible alternative available to the government is
to store some of the waters of the Animas River.
The Record of Decision signed by the Interior Secretary on September
25, 2000 explicitly and implicitly recognize all of these facts. It can
be found at http://indian.senate.gov.
In fact Mr. President, the lateness of having this Record of Decision
on file is the reason we could not move this bill sooner. For the first
time, this administration is strongly on record in favor of settling
tribal water claims by building an off-stream storage facility at
Ridges Basin. The Record of Decision also rejects the any alternative
to settling the tribal water claims, especially the unrealistic, risky,
and disruptive schemes that have been proposed by the opponents of the
ALP.

Although I have agreed to sponsor this amendment, which implements
the Record of Decision, I am still very concerned that the non-Indian
beneficiaries of the project have been asked to give up too much. I am
sure that there are those who will ask these people to give up even
more. But I think that they have given up more than enough.
Under my amendment, the Animas-La Plata Project will consist of the
facilities needed to divert and impound water in an off-stream
reservoir. This provision will only take effect if these features are
actually constructed. By taking this step, a number of potential
project beneficiaries agree to forgo a substantial number of benefits
that were promised to them by their own government in 1968.
In my view, the Federal Government is not fulfilling all of its
obligation to these people, but they seem to have no alternative. They
will receive substantially fewer benefits than they were promised. In
addition, they will bear an even greater share of the cost for the
benefits than those using Federal reclamation projects in other states,
especially in the States of Arizona, California, and Utah which were
originally authorized at the same time in 1968.
Many people now regret the subsidy of western water development, so
they are taking it out on the ALP. However, in this case, they cannot
do this without injuring the Ute Tribes. Some people will argue that
they are only opposed to the part of the project that provides water to
non-Indians. But the Ute Tribes refuse to allow the Federal Government
to break all of its promises to the non-Indian project beneficiaries.
Why? Because the Ute tribes know that they will be next. The tribes and
their non-Indian neighbors have held together in a unique and strong
coalition of Indians and their non-Indian neighbors that from my
perspective is quite rare.
This project has been an 18 year effort for myself, for Senator
Bingaman, Senator Allard and Senator Domenici. We worked together on
it. The tribes have worked in good faith with the non-Indian project
users to produce an agreement that allows the project to be built in a
manner consistent with every existing environmental study and standard.
We are consistent in the writing of this bill. As I understand the
Record of Decision, the Department of Interior has also concluded that
the time for studying the project has come to an end. And the time for
actually fulfilling the government's promises to Indians and non-
Indians is finally at hand.
For these reasons, I ask my colleagues to support S. 2508 as
presented in amendment No. 4303. This is the last best chance for the
United States to live up to the obligations freely embraced in 1956,
1968, and 1988, not to mention the 1868 treaty with the Ute Tribe.
Mr. President, I ask unanimous consent the following letters of
support of the bipartisan version of S. 2508 be printed in the Record,
opposed to the Feingold amendment: From the State of Colorado, the
Governor of Colorado, the Attorney General of Colorado, elected tribal
governments of Ute Mountain and Southern Ute Indian Tribe, and the
Native American Rights Fund.
There being no objection, the letters were ordered to be printed in
the Record, as follows:

State of Colorado,

Denver, CO, October 17, 2000.
Dear Representative: Before you decide whether to support
the scaled-down Animas La Plata Project as described in H.R.
3112 and S. 2508 (as now proposed by Senator Campbell), the
people of the State of Colorado urge you to consider the
following facts:
The Clinton Administration has completed NEPA review of the
scaled-down ALP as proposed by Secretary Babbitt in August of
1998.
The Department of Interior's Final EIS, and the
accompanying Record of Decision

[[Page S10778]]

signed by Secretary Babbitt, both determined that the scaled-
down project ``is the environmentally preferred alternative,
to implement the 1988 Settlement Act'' with the Colorado Ute
Tribes.
The proposed amendments by Senators Campbell and Allard
ensure repayment of all non-Indian water supply costs. There
are no ``caps'' on the non-Indian repayment obligation. In
fact, the bill calls for an up-front payment and a final cost
allocation after the project is completed. The Record of
Decision and the Campbell/Allard amendment both require
repayment to comply with federal law--it is the opponents who
want to change federal law with respect to project repayment.
The legislation allows for only the construction of the
scaled-down project--it prevents construction of any part of
the ALP that is not explicitly referenced in the bill. This
preserves the complex balance of interstate issues on the
Colorado River while preventing the construction of
components not referenced in the legislation.
The amendments proposed by Senators Campbell and Allard
remove any language from the bill that could remotely be
construed as ``sufficiency language'' that would preclude
future environmental review. Through the Record of Decision,
the Department of the Interior, the Environmental Protection
Agency and the Council on Environmental Quality call on
Congress to amend the 1988 Act to provide for the
construction of the scaled-back project.
In light of the federal government's trust obligation to
the Colorado Ute Indian Tribes, Congress has a responsibility
to know the facts about the project. Once you know the facts,
I'm sure you will join us in supporting legislation to
resolve this 100 year Indian water rights controversy. Thank
you.
Sincerely,
Bill Owens,
Governor.
____

Attorney General of Colorado,

Denver, CO, June 16, 2000.
Re: Animas-La Plata project

Wesley Warren,
Associate Director for Natural Resources, the Environment and
Science, Office of Management and Budget, Old Executive
Office Building, Washington, DC.
Dear Wesley: Thank you for meeting with me by telephone
yesterday. I think our discussion was very productive. I want
to follow up with a more detailed explanation of why it is
important to the State of Colorado that Ute Tribes settlement
legislation not deauthorize those features of the Animas-La
Plata Project that are not currently contemplated.
In 1956, Congress enacted the Colorado River Storage
Project Act to enable the states of the Upper Colorado River
Basin to use their compact allocations. CRSP is composed of
four initial storage units--Aspinall, Flaming Gorge, Navajo,
and Glen Canyon--and 25 additional authorized participating
projects in Colorado, New Mexico, Utah, and Wyoming--eight of
which (including Animas-La Plata) have not been built.
The CRSP Act authorized a separate fund in the United
States Treasury, the Upper Colorado River Basin Fund.
Revenues in the Basin Fund collected in connection with
operation of the initial units are used first to repay the
operating costs of the initial units and second to repay the
United States Treasury investment costs previously spent on
those units. Any excess revenues from the initial units are
then used to help repay the Treasury for participating
project irrigation costs within each upper basin state that
exceed the irrigators' ability to repay. These excess
revenues are apportioned among Colorado (46%), Utah (21.5%),
Wyoming (15.5%), and New Mexico (17%).
This allocation of Basin Fund revenues was the result of
hard bargaining among the upper basin states. Colorado
anticipated that a large part of its allocation would be used
to repay the irrigation costs of the Animas-La Plata Project,
and those costs are still included in the apportioned revenue
repayment schedule. Although H.R. 3112 and S. 2508 authorize
a much smaller project than originally contemplated and
completely eliminate irrigation uses, the authorized
participating project still serves as a ``placeholder'' for
Colorado's share of the Basin Fund. Colorado could in the
future seek legislation that would allow it to use those
revenues for other purposes, such as the endangered species
recovery programs on the Colorado River, San Juan River, and
Platte River.
Environmental and ``green scissors'' organizations have
raised the concern that, unless the remainder of Animas-La
Plata is deauthorized, the reduced project will be a foot in
the door for a larger project. H.R. 3112 and S. 2508 address
that concern by explicitly requiring express Congressional
authorization before any other facilities could be added.
Moreover, any additional facilities would be subject to all
the requirements of NEPA, the Clean Water Act, and the
Endangered Species Act. In short, any attempt to build
additional project facilities would encounter all the
obstacles that have blocked construction in the past.
Although I believe that the ``delinking'' language of H.R.
3112 and S. 2508 is adequate to ensure that the smaller
project is not the opening wedge for a larger project,
Colorado and its water users are willing to work with the
Administration to satisfy its concerns. We ask that you meet
us halfway, however, and to insist on language that could
deprive Colorado of the benefit of hard-fought negotiations
and a carefully crafted agreement with the other upper basin
states and the United States. This narrow Indian water rights
settlement legislation is not the place to try to resolve
broader ``law of the river'' issues.
Another issue that is important to Colorado and its water
users is the repayment provision. We agree that the non-
Indian project partners should pay their full share of
project costs. However, it is important that Colorado water
users have the option of paying their share as a lump sum
prior to construction. In agreeing to a smaller project, the
State of Colorado and its water users are giving up
substantial benefits negotiated as part of the original
settlement and Phase I of the project. In return, we should
receive reasonable certainty as to project costs. I also urge
the Administration to deal fairly with water users in
determining reimbursable costs. For instance, they should not
be held responsible for sunk costs associated with water that
will not be provided to them by the reduced project.
I appreciate the Administration's support for this
legislation. I am committed to working with the
Administration to achieve final settlement this session.
Please feel free to call me if I can be of any assistance.
Sincerely,
Ken Salazar.
____

Ute Mountain Ute Tribe,

Southern Ute Indian Tribe,

October 18, 2000.
Dear Senator: We are writing as the elected leaders of the
Southern Ute and Ute Mountain Ute Indian Tribes to ask that
you support the bipartisan version of S. 2508 introduced by
Senators Campbell, Bingaman, Domenici and Allard on October
6, 2000, and oppose the amendment offered by Senator Feingold
of Wisconsin.
The bipartisan version of S. 2508 is the product of years
of hard work by our Tribes, the States of Colorado and New
Mexico and local water users. Just like any other settlement,
S. 2508 is the result of many compromises that were required
to make it acceptable to all of the affected parties. Our
settlement has the full support of the Clinton
Administration.
Senator Feingold's proposed amendment upsets this delicate
balance. First, it singles out the non-Indian parties to our
settlement to pay the costs for recreation and fishery uses
which benefit the general public. Such costs have never
before been imposed on those who use water from federal
reclamation projects. Second, the amendment demands that
Colorado, alone among the Colorado River Basin States,
surrender significant revenues from the power generated on
the Colorado River in order to settle the pending tribal
claims to water. These belated and punitive changes impose an
unfair burden on our settlement partners.
Please help us to complete the settlement of our tribal
water rights by opposing Senator Feingold's amendment which
undermines the equitable agreement which the Tribes and our
non-Indian neighbors have negotiated.
Sincerely,
John Baker, Jr.,
Chairman, Southern Ute Indian Tribe.
Ernest Heuse, Sr.,
Chairman, Ute Mountain Ute Tribe.
____

New Mexico

Interestate Stream Commission,

Santa Fe, NM, October 19, 2000.
Senator Ben Nighthorse Campbell,
Chairman, Senate Indian Affairs Committee,
Washington, DC
Dear Senator Campbell: As chairman of the New Mexico
Interstate Stream Commission, I urge you to defeat Sen.
Russell Feinglold's proposed amendments to S. 2508 because
they are unfair and contrary to current law. Your substitute
bill, which is the product of compromise and sacrifice by New
Mexico, should be passed without amendment.
The substitute bill we have is fair to the parties, and it
should not be changed at this late date. The proposal to make
fish and wildlife mitigation expenses reimbursable is
patently unfair to the people of New Mexico. The recreation
facility is in Colorado, and making New Mexicans pay for the
mitigation is unreasonable. More importantly, the provision
is contrary to the 1956 Colorado River Storage Project Act,
Section 620g of the Act specifically says that fish and
wildlife mitigation activities will be non-reimbursable.
The irony is that if the project proponents had not reached
a compromise to settle the Indian water claims and built the
Animas-La Plata Project, the mitigation costs would not be
reimbursable. But this amendment punishes new Mexico and the
Colorado non-Indians for compromising by taking away that
protection and making the costs reimbursable. Likewise, the
amendment to remove the protection of the Colorado River
Storage Project Act on payment issues is unjust. It is an
issue of simple fairness. Additionally, this is not the
proper vehicle for changing Reclamation law. The amendments
should be defeated.
The amendment to change the deauthorization provision of
the bill also should be defeated. Under the current bill,
once the ALP is constructed, any further facilities would
require Congressional action. This in effect is
deauthorization. Under Feingold's amendment, the
deauthorization is included in the bill, but there is no
guarantee of construction of the project.

[[Page S10779]]

We've seen the federal government back out of building this
project many, many times, and we don't trust them. We want
the project to be built, then we'll accept the provision that
additional facilities must obtain separate Congressional
authorization. Reversing the order, as provided in the
amendment, is not acceptable.
Both versions have equivalent results in terms of making
sure additional facilities obtain new Congressional approval,
but Feingold's version does not give us the necessary
guarantee that the project will be built before the provision
takes effect. It should be defeated along with the rest of
his amendments.
Senator Campbell, I appreciate your hard work on this
important legislation, and I urge you to pass it without the
amendments offered at the 11th hour.
Sincerely,
Richard P. Cheney,
Chairman.
____

San Juan Water Commission,

Farmington, NM, October 19, 2000.
Senator Ben Nighthorse Campbell,
Chairman, Senate Indian Affairs Committee,
Washington, DC.
Dear Senator Campbell: As Executive Director of the San
Juan Water Commission, I urge you to defeat Sen. Russell
Feingold's proposed amendments to your S. 2508 as amended
because they are unfair and contrary to current law. Your
substitute bill, which is the product of hard compromise and
sacrifice by New Mexico, should be passed without further
amendment.
The substitute bill treats all parties fairly, and it
should not be changed now. The proposal to make fish and
wildlife mitigation expenses reimbursable is grossly unfair
to New Mexico. The recreation facility is in Colorado, and
making New Mexicans pay for the mitigation is unreasonable.
More importantly, the provision is contrary to the 1956
Colorado River Storage Project Act. Section 620 g of the Act
specifically says that fish and wildlife mitigation
activities will be non-reimbursable.
If the project proponents had not reached a compromise to
settle the Indian water claims and built the Animas-La Plata
Project, the mitigation costs would not be reimbursable. But
this amendment punishes New Mexico and the Colorado non-
Indians for compromising by taking away that protection and
making the costs reimbursable. Likewise, the amendment to
remove the protection of the Colorado River Storage Project
Act on payment issues is unjust. Additionally, this is not
the proper vehicle for changing Reclamation law. The
amendments should be defeated.
The amendment to change the deauthorization provision of
the bill also should be defeated. Both versions have
equivalent results in terms of making sure additional
facilities obtain new Congressional approval, but Feingold's
version does not give us the necessary guarantee that the
project will be built before the provision takes effect. It
should be defeated along with the rest of his amendments.
If the Feingold amendments are passed, the San Juan Water
Commission will be forced to reconsider its support for S.
2508 as you reported it in the Congressional Record. Senator
Campbell, we appreciate your hard work on this important
legislation, and I urge you to pass it without the
amendments.
Sincerely,
L. Randy Kirkpatrick.
____

Ute Mountain Ute Tribe

Southern Ute Indian Tribe,

September 13, 2000.

Take Note: It's Not Your Father's ALP

(H.R. 3112 and S. 2508)

No matter how things change, they remain the same.
Opponents of the Colorado Ute Indian Water Rights
Settlement Act and proposed amendments which would
drastically reduce the size and cost of the Animas-La Plata
Project continue to distort the truth about our Tribes, the
project's impacts and its costs.
The Southern Ute and Ute Mountain Ute Indian Tribes, and
our sister Tribes the Navajo Nation and the Jicarilla Apache
Tribe, strongly support legislation which would amend the
original Settlement Act of 1988 to provide for the
construction of a downsized reservoir.
Opponents still believe they know better than the Tribes
themselves how best to settle our water rights claims. In a
September 5 letter from the Green Scissors Campaign, they say
there is a less costly and less environmentally destructive
way to achieve that goal. They offer you no explanation of
what that alternative is. They also don't tell you that the
recently completed analysis under NEPA finds that the least
costly and least environmentally destructive solution to
resolving our water rights is to build the reduced-size
project. The nonstructural alternative favored by the
opponents of the Indian settlement will cost more than the
down-sized ALP and that its impact on wetlands in particular
is more destructive than ALP. And, they won't tell you that
our Tribes have emphatically rejected the nonstructural
alternative.
Still, the opponents of our Indian water rights settlement
say the project as proposed is a foot in the door for the
project authorized in 1968. Read carefully, H.R. 3112 and S.
2508 clearly cut the tie between this project and any other
facilities for purposes of our settlement, and the bills
explicitly state that any additional facilities separate from
this project would require new authorization from Congress.
The local rafting industry, devastated this year by drought
says the project will forever affect their livelihood and
dewater the river. In fact, the current NEPA analysis finds
that, on average, only six of 112 rafting days with flow of
300 cfs or higher would be lost.
Opponents of our settlement continue to claim that our non-
Indian neighbors will get subsidized water for development
and that they are the true beneficiaries of H.R. 3112 and S.
2508. The bills provide for small amounts of water for the
two non-Indian water districts for rural and domestic use
purposes, and storage of water already allocated to New
Mexico communities. Current law does not require that ``other
project costs'' be paid by water users as suggested by our
opponents, and the non-Indians will be required to pay an
amount determined by agreement with the Administration for
their portion of the water.
Finally, to suggest that ``a water project of this size
should not be constructed without full and fair environmental
review'' is ludicrous. The settlement was approved in 1988.
Repeated environmental and public review have taken place
before that and since then. An entirely new NEPA analysis has
just been completed and we are awaiting the issuance of a
Record of Decision. The pending NEPA document indicates this
proposal to be the best way, economically and
environmentally, to provide full settlement of our legitimate
claims. It also concludes it is the best alternative for the
other Tribes--Navajo and Jicarilla--in the basin.
Let's get to the bottom line. No project, regardless of its
size or the amount of water provided to our people, will ever
get the support of our opponents. Storage of our water is our
``foot in the door'' for a long-term, firm supply of water
for present and future generations of Utes.
When the House Resources Committee marked up H.R. 3112,
only one member voted no and one voted present. In the Senate
Indian Affairs Committee, no opposing votes were cast.
Clearly there is recognition of sacrifices made in the name
of fulfilling our settlement.
Those who have fought the Animas-Las Plata Project and our
settlement as a symbol of the past (Jurassic Park) should
declare victory and move on. Costs are cut by two-thirds, the
lion's share of the water goes to our Tribes and irrigation
facilities have been eliminated. Everyone has compromised
except the opponents.
We hope that you will look at today's Animas-La Plata
Project, and how much has been foregone by our non-Indian
neighbors in order to fulfill the promise of the 1988 Act and
the government's word of more than a century ago.
Thank you in advance for keeping faith and supporting
amendments to the Colorado Ute Indian Water Rights Settlement
Act.
Chairman John E. Baker, Jr.,
Southern Ute Indian Tribe.
Chairman Ernest House, Sr.,
Southern Ute Indian Tribe.
____

Native American Rights Fund,

Boulder, CO, October 18, 2000.
Dear Senator: I am distressed by continued opposition to
the Colorado Ute Indian Water Rights Settlement and
construction of a much-downsized Animas-La Plata Project to
implement the settlement passed in 1988. The Native American
Rights Fund also opposes the Feingold amendments to the
pending Senate bill S. 2508.
During the last 12 years, I have watched the Southern Ute
and Ute Mountain Ute Indian Tribes struggle to achieve their
goal of a firm water supply for present and future
generations, without taking water away from their neighbors.
In the course of that struggle, many sacrifices have been
made in an effort to address concerns opponents raised about
project cost, environmental impacts, even the allocation of
water between Indians and non-Indians.
Now, those who have sacrificed nothing--made no compromises
at all--continued to urge Congress to reject the amendments
which would downsize the project. It seems nothing will
satisfy project opponents except no project at all.
I urge you to support the Campbell amendment to the
Colorado Ute Indian Water Rights Settlement Act. Those
amendments implement the Record of Decision signed by the
Secretary of the Interior Bruce Babbitt on September 26 of
this year. NARF also urges a no vote on the proposed
amendments by Senator Feingold. Further delay in satisfying
the Utes' legitimate claims is further injustice to the Ute
people.
Sincerely,
John E. Echohawk.

Mr. CAMPBELL. Mr. President, before I yield the floor, I would like
to yield a few minutes to Senator Allard, my colleague, who has also
worked on this bill for so long.
Mr. ALLARD addressed the Chair.
The PRESIDING OFFICER. The Senator from Colorado.

[[Page S10780]]

Mr. ALLARD. Mr. President, I thank my colleague from Colorado for
yielding me some time here. This is an important piece of legislation
that my colleague has been working for. I rise in support of S. 2508,
called the Colorado Ute Settlement Act Amendments of 2000. It has been
worked on for some 18 years by my colleague, Senator Ben Nighthorse
Campbell. I wish to take a few moments to commend everyone who has
worked on behalf of this piece of legislation, and for their efforts to
resolve this issue.
In Colorado, earlier this year--maybe it was last year--there was a
group of us who did get together, Congressman McInnis, myself, we had
Senator Campbell, and Secretary of Interior Babbitt.
We got together what we called the great sand dunes conference. All
four of us walked up on those great majestic sand dunes. We talked
about the future of the great sand dunes, and we had a discussion about
the Animas project. At that point, we had our staffs standing off on
the far side. All of our supporters were wondering what the four of us
were talking about. We were talking about common ground and how we
could come to an agreement to get the Animas-La Plata project passed.
It was a great opportunity my colleague took at that time to talk to
the Secretary of Interior while he was breathing some of that fresh
mountain air of Colorado and clearing his thinking a little bit, and
that got things off to a good start.
This new legislation is a product of that meeting, and it reflects
significant compromises and challenges we all faced in getting to this
historical moment.
Growing up in rural Colorado and throughout my tenure as a public
servant, it seems the Animas-La Plata conflict has endured. Every time
water and water projects were discussed, the promises and unsettled
claims to the Colorado Ute Indian tribes always persisted.
Now the time has come for the Federal Government to fulfill its
obligations to the Ute Indian tribes and satisfy the water treaty.
The project was originally authorized in 1968 with the help of then-
Congressman Wayne Aspinall, a good friend of the Allard family and
former chairman of the House Interior Committee. I knew Mr. Aspinall.
He served Colorado honorably. Over the past 32 years, since
authorization, we have tried to get this project completed with
bipartisan efforts by former Congressmen Ray Kogovsek and Mike Strang.
Now, with the outstanding leadership of Senator Campbell, who for 14
years has championed this project, I believe the end is near. After 132
years, the time has come for the United States to finally do the right
thing and meet its treaty obligations.
I commend Senator Campbell for his tireless efforts, from his days in
the House of Representatives, to his current time in the Senate and
through three different Presidential administrations, to fulfill our
Nation's treaty obligations.
I yield the floor.
The PRESIDING OFFICER (Mr. Bennett). The Senator from Colorado.
Mr. CAMPBELL. Mr. President, I yield to my friend from New Mexico,
Senator Bingaman, who has worked long and hard on this issue.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. BINGAMAN. Mr. President, I thank my colleague from Colorado.
Senator Campbell has worked very hard on this. This has been a major
project of his. I do not know how many conversations he and I have had
on this subject in the last 2 years, but I can tell you it has been
many. There have been many of those conversations.
In 1988, Congress passed legislation endorsing a settlement of Indian
water rights for the southern Ute and Ute Mountain Indian Tribe which
had been agreed to by the Departments of Justice and Interior, the two
tribes, and the State of Colorado and the State of New Mexico. But that
1988 legislation envisioned an Animas-La Plata River Project that would
meet a number of regional water needs, including the water for the
Navajo Nation and the non-Indian communities.
The project envisioned by that legislation has proven infeasible to
implement in terms of the cost and also in terms of the environmental
consequences, but the need to settle these water rights and live up to
the national commitment to these two tribes remains. The two Ute tribes
and their neighbors within the San Juan basin have developed a revamped
water allocation for a downsized Animas project which the Ute tribes
will agree to as a settlement of their water rights. The allocation
also supplies a much needed water supply to the Shiprock community of
the Navajo Nation and continues the concept that tribes in non-Indian
communities must work together collaboratively on a regional basis to
solve their water needs.
The downsized project is in accordance with the final environmental
impact statement issued by the Department of the Interior. In the
judgment of the Secretary of Interior, it would comply with Federal
environmental laws. He has made that very clear. The Secretary has
determined that the project authorized in this legislation also will
meet the trust responsibilities of the United States with regard to the
settlement of the water rights of these two tribes.
This is a project and an issue that has been a concern of people in
the northwest part of New Mexico for many years. I have seen various
versions of this project discussed and considered over this period of
time. I am persuaded that this final so-called ``Animas Lite,'' which
is what is generally discussed, or the name that has come to be
attached to what is now being considered by the Senate, is a good
resolution of many conflicting and competing concerns.
I hope very much that we can pass this bill, that we can do so
without amendment, and that we can send it to the President for his
action.
Again, I commend Senator Campbell for his hard work in getting us to
this point. I hope very much we can follow his lead and send this
legislation to the President for his signature.
Mr. President, I yield the floor and yield back my time.
Mr. DOMENICI. Mr. President, I am very pleased today, Mr. President,
that Senator Campbell introduced this critical legislation, and am
proud to have supported and cosponsored his efforts from the beginning.
He and I have faced many a battle regarding this issue over the years.
I believe, however, that this legislation reflects the cooperative
efforts among the parties to secure needed water supplies in Colorado
and New Mexico, and I am pleased it may finally become law.
While we are running out of time in this Congress, the Secretary of
Interior signed a Record of Decision on September 25 supporting these
amendments, and his staff helped to negotiate them. The time is ripe
for action. After years of hard work by the proponents, everyone is
ready to move forward.
The Southern Utes and the Ute Mountain Utes have a 5-year window
before they have to sue to enforce their water rights. Passage of this
legislation will settle negotiated claims by the Colorado Ute Tribes on
the Animas and La Plata Rivers, while protecting other water users.
For years now, the San Juan Water Commission, together with non-
Indian water users in New Mexico, Colorado, and the Ute Mountain Ute
and Southern Ute tribes have been negotiating with the Department of
the Interior, the Environmental Protection Agency and other to resolve
the complex problems surrounding the Animas-La Plata project and water
usage in the four corners area. The bill has Administration support,
which has been long-fought and hard-won. Finally, the administration
has shown their interest in settling the Colorado Ute Indian water
rights claims by accepting the tribes' own suggestions and water needs
of the Four Corners non-Indian community.
In New Mexico, this legislation will provide needed water for the
Navajo Community of Shiprock and protect San Juan-Chama project water,
on which tribes, towns and cities along the Rio Grande rely. The New
Mexico portion of the project will be used by the San Juan Water
Commission to provide water to the residents of North Western New
Mexico and by the Navajos for their use in the Northern Navajo Nation.
This legislation is not intended to quantify or otherwise adversely
affect the water rights of the Navajos, and they support this
legislation.
In anticipation of development of the Animas-La Plata project, the
state of

[[Page S10781]]

New Mexico set aside 49,200 acre feet of water in 1956. Importantly,
this legislation allows the State Engineer from the State of New Mexico
to return all or any portion of the New Mexico water right permit to
the Interstate Stream Commission or the Animas-La Plata beneficiaries.
I am pleased the proponents of the Animas-La Plata project have
participated in the long process to search for compromise. I support
the direction of the participants in this process to reduce costs,
provide environmental benefits, and provide water for the Colorado Ute
tribes under the 1988 Settlement Act.
Mr. President, the administration has a duty to protect the federal
trust relationship with the Ute tribes, as well as a duty to the state
of New Mexico to make good on the promises of 40 years ago. S. 2508
represents a compromise for which all parties affected have labored
long and hard to achieve. It is the long-overdue vehicle for
implementing the United States' promise of water to New Mexico,
Colorado and the Colorado Ute tribes while still addressing the needs
of endangered species and the American taxpayer. Water scarcity
continues to be a critical issue in the arid West and no one would
benefit from litigation of water rights if we do not press forward.
According to recent scientific predictions, rationing may be required
within the next two years. Successful development of additional water
in the San Juan Basin, with its endangered fish, will give the rest of
New Mexico good arguments why other endangered fish, such as the
silvery minnow, can co-exist with additional water development.
Additionally, successful settlement of the two tribes' claims will
remove the threat of disrupting the water supply vital to the economic
and industrial base for Northwest New Mexico, which contributes to the
rest of New Mexico. The citizens of Northwest New Mexico have waited
more than 40 years for this water--that's long enough.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. CAMPBELL. Mr. President, I thank my friend and colleague from New
Mexico. We are neighbors. Certainly his northern New Mexico area and
the southwest Colorado area have histories which are very similar, our
present is similar, and our futures are literally tied together. I
thank him for the years of service and hard work he has done on this
issue.
Mr. President, I have no further comments. I ask unanimous consent,
as under the agreement, Senator Feingold be recognized to offer his
amendment.
The PRESIDING OFFICER. Without objection, it is so ordered. The
Senator from Wisconsin.

Amendment No. 4326 to Amendment No. 4303

Mr. FEINGOLD. Mr. President, I thank the Senator from Colorado.
Pursuant to the previous order, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Wisconsin [Mr. Feingold] proposes an
amendment numbered 4326 to amendment No. 4303.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 10 of the amendment, line 11, insert ``, to
restrict the availability or scope of judicial review, or to
in any way affect the outcome of judicial review of any
decision based on such analysis'' before the period.
On page 10 of the amendment, strike lines 12 through 23 and
insert the following:
``(C) Limitation.--No facilities of the Animas-La Plata
Project, as authorized under the Act of April 11, 1956 (43
U.S.C. 620)(commonly referred to as the `Colorado River
Storage Act'), other than those specifically authorized in
subparagraph (A), are authorized after the date of enactment
of this Act.
On page 11 of the amendment, beginning on line 21, strike
``Such repayment'' and all that follows through ``.).'' on
line 24.
On page 12 of the amendment, line 9, insert after the
period the following: ``Fish and wildlife mitigation costs
associated with the facilities described in paragraph
(1)(A)(i) shall be reimbursable joint costs of the Animas-La
Plata Project. Recreation costs shall be 100 percent
reimbursable by nontribal users.''.
On page 13 of the amendment, beginning on line 2, strike
``Additional'' and all that follows through line 6.

Mr. FEINGOLD. Mr. President, I rise to offer an amendment to the
substitute offered by my colleague from Colorado, Mr. Campbell. I do so
fully acknowledging that the Animas-La Plata project, as outlined by
the Senator from Colorado's substitute amendment, has undergone a
significant modification from its original configuration. What was a
more than $750 million dam, reservoir, pumping plant, and associated
pipelines and irrigation components, is now proposed to be a much
smaller and less costly reservoir project to satisfy the Ute and Navajo
claims and provide water delivery to the Navajo Reservation. The
scaled-down project is now a $278 million project to build a reservoir
and pipeline according to the administration's Record of Decision
released on September 25, 2000.
The Senator from Colorado and I have shared an interest in settling
the Utes' claims for many years. We agree that those claims must be
settled and that construction of a reservoir is an acceptable way to
achieve that goal. Moreover, he has worked to accomplish that
objective. In passing his substitute, Congress will be seeking to
downsize the project to effectuate a settlement that satisfies the
tribes water needs at 100 percent Federal cost, which is appropriate.
However, and I want to make this clear to colleagues, the sized-down
project also provides a significant new water supply for non-tribal
municipal and industrial use. The Senator from Colorado's substitute
amendment guarantees that about 35 percent of the water held in the
reservoir would be stored for use by non-tribal interests: 10,400 acre
feet for the San Juan Water Commission; 2,600 acre feet for the Animas-
La Plata Conservancy District; 5,230 acre feet for the State of
Colorado; and 780 acre feet to the La Plata Conservancy District of New
Mexico.
So this legislation is not solely an Indian water rights settlement.
The Senator from Colorado and I differ in our opinions as to how the
nontribal entities should be treated in this legislation, and that is
why I am offering my amendment today. I want to make sure that the
outcome Congress is ``seeking'' to implement through this legislation
is one that it actually finds. I have three reasons for offering this
amendment, which I will describe in a little bit of detail.
First, I remain concerned that the substitute only does half the job
with respect to making sure that the taxpayers are off the hook for the
original full-scale project. Those who support the construction of the
Animas-La Plata project now want to proceed with an alternative which
they believe to be a cheaper and scaled-down version of the original
project. They want to do so, however, without expressly deauthorizing
the original project. It appear to me that proponents won't give up the
authorization for the original project because it provides them with
the ultimate insurance. Should this alternative be infeasible,
retaining the original authorization would allow a fallback position
for proceeding with the old project. My amendment makes it absolutely
clear that Congress is granting its approval only for the scaled-back
year 2000 version of the project and not the original 1956 version of
the project.
By deauthorizing all additional features of the old project, Congress
would ensure that no such project features or components could be built
without a demonstration by the project proponents that such features
meet specific economic and engineering standards designed to protect
the Federal Treasury, public safety and welfare. The Reclamation
Project Act of 1939 requires engineering feasibility reports, cost
estimates and economic analyses for a ``new project, new division of a
project, or new supplemental works on a project * * *'' A project which
is not authorized would be considered a ``new project, new division of
a project, or new supplemental works on a project'' and be subject to
the planning and reporting requirements. The substitute of the Senator
from Colorado allows a future Congress to give its approval for a
project or part of a project which has previously been authorized as
part of the Animas-La Plata project as described in the Colorado River
Storage Project Act of 1956.

[[Page S10782]]

So, what it comes down to without my amendment, it is not clear that
the additional construction would be subject to any feasibility
requirements. I think taxpayers have a right to know that information.
Moreover, newly authorized projects are also subject to the Economic
and Environmental Principles and Guidelines for Water and Land
Resources Implementation Studies--known as ``Principles and
Guidelines''--promulgated pursuant to the Water Resources Planning Act
of 1965. The Principles and Guidelines are the seminal policy statement
requiring Bureau projects to integrate full economic cost recovery,
financial and economic feasibility principles, and protection of the
environment into planning for water resource projects. The Principles
and Guidelines are the bridge between the old era of costly and
economically ruinous Bureau projects and a new era of careful, resource
protective planning. Many Members of this body fought hard to ensure
these reforms would move forward. The old full-size Animas-La Plata
project has not been analyzed under the Principles and Guidelines. One
of the key criticisms of the old project has been the Bureau of
Reclamation's failure to utilize the current discount rate, the cost of
any electric power revenues produced by the project, and other economic
variables in its studies. So if my amendment becomes law, any future
features would be subject to the planning requirements of the
Principles and Guidelines.

The second point of my amendment is that it requires that nontribal
water users actually pay recreation and fish and wildlife costs. The
nontribal project proponents have argued that because section 8 of the
Colorado River Storage Project Act of 1956 makes recreational and fish
and wildlife costs nonreimbursable for the projects it authorized, they
should not have to repay such costs. ALP in its original, 1956, design,
with no Indian water rights purposes or beneficiaries, was authorized
by CRSP. I believe that the nontribal water users should pay these
costs for a couple of reasons.
First, the administration's Final Supplemental Environmental Impact
Statement for ALP takes the position that the version of the ALP
project now being proposed for construction is so significantly
different in size, features and purposes that the limitation in section
8 of CRSP does not apply. Page 5, Section 1.8 of that appendix states:

A contemporary determination of reimbursable and non-
reimbursable project costs is justifiable based on the
significant re-defining of the current project's purpose and
limitation of water use as well as current Administration
policies.

Second, as the just-quoted language implies, the policy of the
current administration, as well as the policy of preceding
administrations throughout the 1980s and 1990s, has been to seek
reimbursement of recreation and fish and wildlife mitigation costs of
Federal water projects. There are numerous examples, such as the
Garrison project, Central Utah Project, and the Central Valley Project
Improvement Act. Many Members of this body worked hard to enact these
reforms. In fact, obtaining reimbursement for recreation and fish and
wildlife mitigation costs has been an element of Federal policy dating
back to the Fish and Wildlife Coordination Act of 1946, Federal Water
Project Recreation Acts of 1965 and 1974, and various Water Resource
Development Acts, most notably WRDA 1986.
Obtaining reimbursement for fish and wildlife and recreation costs is
far from unprecedented, and, in fact, is consistent both with
contemporary policy and with the actual practice of recent years. We
are authorizing a smaller project today, and that smaller project
should be held to year 2000 reimbursement standards.
In addition to making clear the intent of Congress to require the
repayment of fish and wildlife costs, my amendment further clarifies
the amount of construction costs that the nontribal water users have to
repay to the Federal Government. The substitute of the Senator from
Colorado gives the nontribal water users the right to prepay for
construction. At the end of the construction they are given the choice
of electing whether to make a second payment to settle their account
with the Federal Government. If they choose to enter into a new
contract, under the terms of the substitute, they are required to only
repay construction costs that are ``reasonable and unforeseen.'' I
think that allowing a second bite at the apple by giving water users
the option of not making the second payment is a big enough gift from
the taxpayers. I have repeatedly opposed prepayment because I believe
and feel that the taxpayers often get stuck for contract delays and
cost overruns. I am concerned that the substitute opens the door to
allowing the definition of ``reasonable and unforseen'' to be argued in
court. My amendment makes it clear that, when the final tally is
levied, even though that is a practice I find questionable, it should
include all of the costs--all the costs--the Federal Government has
incurred.

Third, and finally, I remain concerned that the findings in section
1(b) of the substitute may have the unintended effect of influencing a
court's review of the sufficiency of agency compliance with Federal
environmental laws applicable to the Animas-La Plata project. My
amendment adds language to the bill to make sure that tampering with
court review does not occur.
Colleagues may say, well, these are only findings in the bill. What
effect could they possibly have on a court? I would ask my colleagues
to first ask themselves what other purpose these findings could
possible have in this bill that is not to have influence on a court.
Second, these finds are a compromise from the prior version of S.
2508, which included explicit determinations by Congress entitled
``compliance with the National Environmental Policy Act'' and
``compliance with the Endangered Species Act of 1973'' and which relied
in part upon the findings. These sections have been deleted from the
substitute, but the findings remain as determinations by Congress that
could be used to attempt to influence judicial review of compliance
with environmental laws.
For example, the finding in section 1(b)(5) states in effect that the
passage of S. 2508 is ``in order to meet the requirements of the
Endangered Species Act.'' The finding that Congress has reviewed all of
the environmental studies--section 1(b)(8)--in combination with the
finding that Congress has decided to enact S. 2508 to implement the
Record of Decision that resulted from those environmental studies--
section 1(b)(10)--would have the effect, I am afraid, of influencing a
court's review of a challenge to the adequacy of the studies or the
soundness of the decision contained in the Record of Decision.
Indications of Congress's substantive views about a proposed project,
as expressed in the legislation authorizing the project, have been used
by the federal courts in evaluating whether the project complies with
applicable federal environmental laws. Because the findings in S. 2508
appear to be designed to influence judicial review, as explained above,
and because the precise intent of the findings is open to
interpretation, a reviewing court could ascribe little weight, extreme
weight, or no weight at all to these findings during the course of
ruling upon a citizen suit.
To neutralize this potential impact upon a reviewing court in a
subsequent citizen challenge to environmental compliance, I propose to
add language, so that section 2(a)(1)(B) will read:

Nothing in this Act shall be construed to predetermine or
otherwise affect the outcome of any analysis conducted by the
Secretary or any other federal official under applicable
laws, to restrict the availability or scope of judicial
review, or to in any way affect the outcome of judicial
review of any decision based on such analysis.

I believe overall that this amendment in all its parts will make this
bill better. It commits the Federal Government solely to the
construction of a reservoir and protects the taxpayer. It preserves the
right of courts to review the project's environmental compliance and it
ensures that the nontribal water recipients pay their fair share. So,
Mr. President, I urge my colleagues to support this amendment.
Mr. President, I ask for the yeas and nays on my amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be.
The yeas and nays were ordered.
Mr. FEINGOLD. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. There are 8\1/2\ minutes.

[[Page S10783]]

Mr. FEINGOLD. I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. CAMPBELL. Pursuant to the unanimous consent agreement, I will, at
the end of my statement, move to table Senator Feingold's amendment.
Also pursuant to that agreement, I request 10 minutes of the 30 that
has been agreed to under the unanimous consent.
Each of the changes proposed by Senator Feingold is either
unnecessary or would have the opposite effect to what he intends. I
will tell the Senator, who I consider a good friend, that I was in his
State just last week with his very fine Governor, Tommy Thompson,
traveling across the State doing several things. It was raining the
whole time I was there. I rather marveled about how green and nice it
was and how much water it had. I was somewhat envious coming from a
State that has to store roughly 85 percent of its water needs a year.
And as I looked around, I saw many roads and bridges and more than one
or two lakes that I think had been paid for with the taxpayers' money
in one form or another.
I would tell him that if he lived in a State such as mine or any of
the Western States, as the Presiding Officer lives, he would understand
how desperately we need water and how in a fast growing State it puts
more and more strains and stresses on existing water.
I will talk about the Senator's amendment a little bit. Senator
Feingold's amendment proposes that we make existing Federal reclamation
law inapplicable to non-Indian project beneficiaries. The Senator asks
the Senate to amend S. 2508 to eliminate all references to the Colorado
River Storage Project Act of 1956. I don't know the age of the Senator,
but I have a hunch it was about the time he was born. I assume Senator
Feingold believes that his amendment will make the repayment
obligations more fair. In fact, it would be completely unfair to
require these individuals to bear a greater repayment burden than all
the other projects constructed under the authority of the 1956 and 1968
act. It would, in fact, in my view, be somewhat discriminatory against
non-Indians.
If the Senate makes any of the changes proposed by Senator Feingold,
we will be saying that existing Federal law should not control the
repayment obligation of the non-Indian water users of the project.
Other water users up and down the Colorado River--and there are many in
our States, as the Presiding Officer knows--will have their repayment
obligation set by existing Federal law, but those getting water from
this part of the Colorado River system and at this late hour will be
told that a new law controls their repayment obligation.
I have to ask my colleagues, why should these project users be
singled out in this manner? The most unfair part of this amendment is
that it would be part of an Indian water rights settlement act. These
non-Indian people are only being treated differently because they
agreed to accept the smaller project as part of their agreement with
the Ute Indian tribes. As the chairman of the Indian Affairs Committee,
I can't think of a worse precedent or message to send. In my view, we
ought to be rewarding the non-Indian neighbors who have worked
cooperatively with their Indian neighbors, not making them pay more
money for their cooperation.
If any of the repayment provisions proposed by Senator Feingold were
to pass, I would have to advise my non-Indian constituents that it is
actually in their best interest to break their agreement with the
tribes, because the price they must pay for fulfilling their commitment
to the tribes is to give up all the rights they already have under
existing law. I am sure that isn't what the Senator intends, but that
will be the result of the proposed amendment.

Senator Feingold's proposed change concerning project deauthorization
has the same effect. Under my bill, the only parts of the project that
are to be constructed are the components that are explicitly included
in S. 2508. Every other part of the project cannot be built unless and
until they are authorized by Congress. That is the compromise on
deauthorizing the project. The administration agrees with this
compromise. It was even accepted in the House Resources Committee on a
bipartisan vote.
This compromise is fair because it only becomes effective if the
small part of the project is actually constructed. The Senator from
Wisconsin asks the non-Indian project beneficiaries, including the
State of Colorado, to accept project deauthorization now and accept the
Government's promise that a smaller project will be built someday. I
can tell you, with the history of promises made by the Federal
Government to Indians, in fact to many people in the West, I am
somewhat skeptical. I know the Republican Governor of the State of
Colorado and the Democratic Attorney General also reject this idea. I
ask the Senate to reject it as well. It is simply not fair.
Senator Feingold also proposes a provision concerning judicial
review. I assume this is intended to preserve judicial review. At best,
however, this will have no effect because there is nothing in the bill
that constricts judicial review. There is nothing to preserve. Since
the provision has no obvious application, we should be concerned that a
court will be encouraged to make some kind of a provision that doesn't
exist now. Maybe a court will decide to interpret the provision as an
invitation to ignore all the work Congress and the administration have
done to analyze the project and its alternative. There is simply no
reason to take that risk.
The administration has had its say in its record of decision.
Congress will have its say by enacting S. 2508. There is nothing in the
bill that prevents the court from doing what courts do or what they are
supposed to do. They can have their say on whether the other two
branches have followed the law. There is no reason to supplement or
enhance the authority of the Federal courts with respect to this bill
or the project.
The most unfair change suggested by the Senator is his desire to
require nontribal recreation costs be made nonreimbursable. First, this
is directly contrary to existing law. Ever since Congress enacted the
Colorado River Storage Project Act in 1956, all recreation and fish and
wildlife enhancement costs are nonreimbursable. Senator Feingold
proposes we do away with that part of the law. This would require water
users in New Mexico to pay for recreation facilities or benefits in
Colorado. Again, this provision would be included in an Indian water
rights settlement. I think it is completely unfair to have New Mexico
bear additional unwarranted expenses solely because they agreed to be
part of this historic agreement.
I am sure the Senator from Wisconsin means well, but meaning well is
not a test of whether we should amend S. 2508. Upon inspection, none of
the proposed changes is necessary and most will be harmful. Each of
them would wreck years of good faith negotiations among the parties.
Also, they would mean breaking explicit promises made decades ago by
the Federal Government.
For those reasons, I urge my colleagues to vote to table the proposed
amendment, and I move to table the amendment and ask for the yeas and
nays as outlined under the unanimous consent agreement.
The PRESIDING OFFICER. The motion to table is not in order until all
time has been used or yielded back.
Mr. CAMPBELL. I will withhold.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. I thank the Chair. As I understand, I have 8 minutes
remaining.
The PRESIDING OFFICER. That is correct.
Mr. FEINGOLD. Mr. President, let me briefly respond to my colleague's
remarks. Let me, first, indicate not only am I not insensitive to the
needs of Colorado, my mother is a native of Colorado, who did not come
to Wisconsin until she came to college. I have great affection for the
State and certainly respect the water needs that are so central to the
State and to Western States.
Let me respond to the specific points because I think we have worked
together well to try to narrow our differences and to come up with this
agreement in a way to try to have these matters discussed on the Senate
floor in an expeditious way and to have

[[Page S10784]]

a vote and to have the matter go forward as appropriate.
The first point the Senator seemed to put his greatest emphasis on
was whether or not the non-Native American users of the water should
somehow be put in the same position of others who were the
beneficiaries of the previous projects that were based in 1956. He
suggested that somehow it would be discriminatory for these individuals
and families to have to pay certain costs that the others did not have
to pay in the past. I suppose that is one way to look at it, but I
really look at it a different way.
I don't see the people who have benefited from some of these water
projects in the past as really the relevant group. The relevant people
now are those of us here today, both those who need the help of the
water, the Native Americans and others, but also the taxpayers today.
To not alter the repayment system for this is to ignore the reforms
that have occurred since 1956.
There has been an effort and success in legislating a different way
to handle this, to make sure that some of these expenses are
reimbursed. I understand there may be those in this situation who may
believe it is unfair that they are not put in the same position as
those in the past, but I don't really understand how that is as
important or relevant as making sure the taxpayers of today are not
unfairly being discriminated against by having to pay more than they
should for this project.
The Senator from Colorado even alluded in his initial remarks to the
fact that he could at least understand the criticism of some of the
past water projects. I think that same argument holds for some of the
failure to reimburse on some of the past water projects.
This is not just my idea. I want to assure you that the OMB in this
matter in their report on the Animas La-Plata project indicated this
kind of reimbursement is entirely appropriate.
I will ask to have printed in the Record a statement of
administration policy in support of my amendment. It reads in part:

The administration understands that Senator Feingold is
proposing to offer a floor amendment to S. 2508. The
amendment would provide additional safeguards concerning
existing environmental laws, a more explicit deauthorization
of unplanned project features, additional safeguarding of
proposed taxpayer investment in this project, and would
update the project's cost-sharing--

I emphasize ``cost sharing''--

to reflect current Administration policy for fish and
wildlife mitigation and recreation costs.

I ask unanimous consent that it be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Statement of Administration Policy

s. 2508--to amend the colorado ute indian water rights settlement act
of 1988

The Administration supports S. 2508 as proposed to be
modified by the manager's amendment. The bill, as amended,
would accomplish the important goal of providing for a final
settlement of the water rights claims of the Colorado Ute
Indian Tribes that complies with our environmental laws by
authorizing a scaled-down Animas-La Plata project in
conjunction with a water acquisition fund.
The Administration had noted concerns with S. 2508, as
introduced, because it: (1) contained objectionable language
relating to compliance with the nation's environmental laws,
(2) did not adequately eliminate the extensive number of
Animas project features previously authorized but not
currently contemplated, and (3) shifted the risk of
unforeseen construction cost increases to federal taxpayers.
The latest version of the bill as modified by the manager's
amendment satisfactorily addresses these concerns.
In addition, the Administration understands that Senator
Feingold is proposing to offer a floor amendment to S. 2508.
The amendment would provide additional safeguards concerning
existing environmental laws, a more explicit deauthorization
of unplanned project features, additional safeguarding of the
proposed taxpayer investment in this project, and would
update the project's cost-sharing to reflect current
Administration policy for fish and wildlife mitigation and
recreation costs.
The Administration would support the Feingold amendment,
which is consistent with the Administration's Animas proposal
as outlined in the Interior Department's July 2000 Final
Supplemental Environmental Impact Statement and subsequent
Record of Decision. However, if the Feingold amendment does
not pass, the Administration supports S. 2508 as modified by
the manager's amendment.

Mr. FEINGOLD. Mr. President, I am not talking about something that is
actually discriminatory. It is simply inconsistent with the law and the
policy with regard to how these projects should be handled today to
protect taxpayers--not in 1956.
Second, the Senator from Colorado talked about the fact that, yes,
our bill does try to make sure that this project, since it has been
scaled down--and I give the Senator credit for that--in fact, that is
what we authorized. We don't leave the door open for sort of behind-
the-scenes reauthorization of this.
He does point out clearly that in certain contexts it would be
necessary to actually formally reauthorize the project for additional
aspects of the project.
But my understanding is--and the reason we offered this is--if this
current scaled-down project is not built, there would not be a
requirement of a new authorization; that the situation would revert
back without the need for more authorization for the much larger
project. I believe it was something like $750 million.
It is not that the Senator is wrong about the fact that there are
some situations where there might be the requirement for an
authorization in the future. But if it isn't built--the Senator has
alluded to the possibility it wouldn't happen--if, in fact, his central
complaint is that it hasn't happened, and if it doesn't happen, we
don't go back to an open process to figure out what this ought to be.
It automatically gets reauthorized.
That is what troubles me. That is what I want to nail down. I want to
make sure this project actually fits the size it needs to be and the
people who need the help will get the help they deserve.
Finally, the Senator spoke about the third part of our amendment. In
fact, in our amendment we want to make sure there is the opportunity
for the full judicial review that is appropriate in situations such as
this.
The Senator says the bill does nothing to undo the possibility of
additional review. But I have raised the concern about some of the
findings that are placed in the bill and why those findings would be
there if they were not in some way to influence the court.
I accept his statement. That is not his intent.
All we are trying to do is have some language, which I read into the
Record. It is very simple. It states clearly that the information and
findings should not be used in a way that would preclude the court from
using the current laws that apply to this situation.
That is all. It certainly does no harm to the Senator's position--
unless, in fact, there is something in the bill that is intended to
prevent the courts from having the full opportunity to review that they
now are required to do under current law.
Mr. President, I reserve the remainder of my time.
Mr. CAMPBELL. Mr. President, I guess we could talk about everything,
put it on spreadsheets, and talk about the dollars spent. But the
Senator from Wisconsin mentioned something that I think is very
important. He talked about the relevancy.
It seems to me that relevancy is part of the big picture and whether
we ought to keep our promises. After 474 broken treaties by this Nation
towards Indians, isn't it time we kept one?
We made a promise in 1935 to senior citizens called Social Security.
If we can break our promise to one class of people in America, why
can't we break it to another? Why can't we break our promise made to
senior citizens? I will tell you why. We can't and won't because it is
called stepping on a third rail called the AARP. Some thirty-million
seniors belong to it--or more, for all I know--and they would
absolutely come down the throat of everybody that is a Member of this
body. So we don't fool around with them. We don't break our promises to
people with high-powered lobbyists and full-time lawyers and lots of
members that can write letters and oust us out of office.
Indians can't do that. There are not many of them. They don't have
much money. They lost almost everything. So they have very little voice
here. It is easy to take away the promise that we made to them. I think
it is wrong. We talk about relevancy. This Nation ought to be greater
than that, and keep our promises.
The statement of administration policy in the last paragraph
basically says

[[Page S10785]]

they would support this bill with or without the Feingold amendment.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I will be very brief. I respect the
Senator's time, and I want to keep my promise.
I want to be absolutely clear in the Record. There is absolutely
nothing in the amendment I am proposing that in any way breaks the
promise to the Utes and others who will certainly benefit from this
project. We are very careful about that.
But it talks about the size of the project. It is a project that the
Senator from Colorado has agreed to as a scaled-down project. But
surely he is not suggesting that he is breaking a promise to anybody
with that proposal; therefore, neither am I by suggesting it be that
size.
I just want to be sure that somehow we do not end up with a wholly
larger project later on, which the Senator from Colorado has agreed to
leave aside, and certainly make sure that various reimbursements
become, under law, a standard practice in these kinds of situations.
Certainly, that is not a breach of a promise.
This is the law of the land and the way we do these things at this
point to protect our taxpayers. Surely, it is not a breach of a promise
to suggest that there ought to be a chance for the kind of judicial
review that should occur in situations such as this.
In fact, I would suggest to the Senator--because I think we work
together well on this--that I promised months ago that my goal here was
not to put a hold on the bill so it could never come up. All I said was
I would like an opportunity to offer some amendment. We worked
together. I agreed to a time limit, which is exactly what is happening
here. The promise was kept in that regard as well.
I am trying to be constructive and improve this bill. And the
administration agrees. Even though they agreed fundamentally with the
legislation, they also agree that my amendment is not harmful, but is,
in fact, beneficial in making the bill better in the context of keeping
our promises.
I yield the remainder of my time.
Mr. CAMPBELL. Mr. President, I yield any remaining time. I move to
table the Feingold amendment, and I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The Senator from Alabama.

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