[Congressional Record Volume 147, Number 26 (Thursday, March 1, 2001)]
[Senate]
[Pages S1786-S1787]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CRAPO (for himself, Mr. Craig and Mr. Helms):
  S. 447. A bill to subject the United States to imposition of fees and 
costs in proceedings relating to State water rights adjudications; to 
the Committee on Energy and Natural Resources.
  Mr. CRAPO. Mr. President, I rise to introduce the Water Adjudication 
Fee Fairness Act of 2001. This bill would require the federal 
government to pay the same filing fees and costs associated with state 
water rights' adjudications as is currently required of states and 
private parties.
  To establish relative rights to water--water that is the lifeblood of 
many states, particularly in the west--states must conduct lengthy, 
complicated, and expensive proceedings in water rights' adjudications. 
In 1952, Congress recognized the necessity and benefit of requiring 
federal claims to be adjudicated in these state proceedings by adopting 
the McCarran amendment. The McCarran amendment waives the sovereign 
immunity of the United States and requires the federal government to 
submit to state court jurisdiction and to file water rights' claims in 
state general adjudication proceedings.
  These federal claims are typically among the most complicated and 
largest of claims in state adjudications, and federal agencies are 
often the primary beneficiary of adjudication proceedings where states 
officially quantify and record their water rights. However, in 1992, 
the United States Supreme Court held that, under existing law, the U.S. 
need not pay fees for processing federal claims.
  When the United States does not pay a proportionate share of the 
costs associated with adjudications, the burden of funding the 
proceedings unfairly shifts to other water users and often delays 
completion of the adjudications by diminishing the resources necessary 
to complete them. Delays in completing adjudications result in the 
inability to protect private and public property interests or determine 
how much unappropriated water may remain to satisfy important 
environmental and economic development priorities.
  Additionally, because they are not subject to fees and costs like 
other water users in the adjudication, federal agencies can file 
questionable claims without facing court costs, inflating the number of 
their claims for future negotiation purposes. This creates an unlevel 
playing field favoring the federal agencies and places a further 
financial and resources burden on the system.
  For example, in the Snake River Basin adjudication, which is in Idaho 
and is probably the largest water adjudication proceeding in the 
country, the United States Forest Service filed more than 3,700 federal 
claims. The Idaho Department of Water Resources expended thousands of 
dollars giving notice to all other claimants, additionally the State of 
Idaho and private claimants spent over $800,000 preparing objections to 
the Federal Service's claims. On the eve of the objection deadline, the 
US withdrew all but 71 of the claims--the Department of Justice's 
explanation: litigation strategy.
  This example is not an isolated incident. At best, the taxpayers and 
states should not be forced to incur these costs simply because the 
agency does not take the time to seriously evaluate its claims. At 
worst, the taxpayers should not bear the brunt of the federal 
government's Machiavellian tactics.
  I recognize that the federal government has a legitimate right to 
some reserved water rights; however, the federal government should play 
by the same rules as the states and other private users. The Water 
Adjudication Fee Fairness Act is legislation that remedies this 
situation by subjecting the United States, when party to a general 
adjudication, to the same fees and costs as state and private users in 
water rights adjudications.
  This measure has the full support of the Western States Water Council 
and the Western Governor's Association. I ask my colleagues to join me 
in supporting water users, taxpayers, the states, and welcome their co-
sponsorship.
  I ask unanimous consent that a copy of this legislation be printed in 
the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 447

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Water Adjudication Fee 
     Fairness Act of 2001''.

      SEC. 2. FINDINGS.

       The Congress finds the following:
       (1) Generally, water allocation in the western United 
     States is based upon the doctrine of prior appropriation, 
     under which water users' rights are quantified under State 
     law. Appropriative rights carry designated priority dates 
     that establish the relative right of priority to use water 
     from a source. Most States in the West have developed 
     judicial and administrative proceedings, often called general 
     adjudications, to quantify and document these relative 
     rights, including the rights to water claimed by the United 
     States Government under either State or Federal law.
       (2) State general adjudications are typically complicated, 
     expensive civil court and administrative actions that can 
     involve hundreds or even thousands of claimants. Such 
     adjudications give certainty to water rights, provide 
     direction for water administration, and reduce conflict over 
     water allocation and water usage. Those claiming and 
     establishing rights to water are the primary beneficiaries of 
     State general adjudication proceedings.
       (3) The Congress has recognized the benefits of the State 
     general adjudication system, and by enactment of section 208 
     of the Department of Justice Appropriation Act, 1953 (43 
     U.S.C. 666; popularly known as the ``McCarran Amendment''), 
     required the United States to submit to State court 
     jurisdiction and to file claims in State general adjudication 
     proceedings.
       (4) Water rights claims by Federal agencies under either 
     State or Federal law are often the largest or most complex 
     claims in State general adjudications. However, the United 
     States Supreme Court, in the case United States v. Idaho, 508 
     U.S. 1 (1992), determined that the McCarran Amendment does 
     not require the United States to pay some filing fees simply 
     because they were misconstrued or perceived to be the same as 
     costs taxed against all parties.
       (5) Since Federal agency water rights claims are among the 
     most difficult to adjudicate, and since the United States is 
     not required to pay some fees and costs paid by non-Federal 
     claimants, the burden of funding adjudication proceedings 
     unfairly shifts to private water users and State taxpayers.
       (6) The lack of Federal Government funding to support State 
     water rights adjudications in relation to the complexity of 
     the claims involved has produced significant delays in 
     completion of many State general adjudications. These delays 
     inhibit the ability of both the States and Federal agencies 
     to protect private and public property interests. Also, 
     failure to complete the final adjudication of claims to water 
     restricts the ability of resource managers to determine how 
     much unappropriated water is available to satisfy 
     environmental and economic development demands.

     SEC. 3. LIABILITY OF UNITED STATES FOR FEES AND COSTS IN 
                   WATER USE RIGHTS PROCEEDINGS.

       (a) In General.--In any State administrative or judicial 
     proceeding for the adjudication or administration of rights 
     to the use of water in which the United States is a party, 
     the United States shall be subject to the imposition of fees 
     and costs on its claims to water rights under either State or 
     Federal law to the same extent as a private party to the 
     proceeding.
       (b) Application.--Subsection (a) shall apply to proceedings 
     pending on or initiated after the date of enactment of this 
     Act, including with respect to fees and costs imposed in such 
     a proceeding before the date of the enactment of this Act.
       (c) Report to Congress.--The head of any Federal agency 
     that files or has pending any

[[Page S1787]]

     water rights claim shall prepare and submit to the Congress, 
     within 90 days after the end of each fiscal year, a report 
     that identifies--
       (1) each such claim filed by the agency that has not yet 
     been decreed;
       (2) all fees and costs imposed on the United States for 
     each claim identified under paragraph (1);
       (3) any portion of such fees and costs that has not been 
     paid; and
       (4) the source of funds used to pay such fees and costs.
       (d) Fees and Costs Defined.--In this section, the term 
     ``fees and costs'' means any administrative fee, 
     administrative cost, claim fee, judicial fee, or judicial 
     cost imposed by a State on a party claiming a right to the 
     use of water under either State or Federal law in a State 
     proceeding referred to in subsection (a).
                                 ______