[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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