[Senate Report 106-415]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 813
106th Congress                                                   Report
                                 SENATE
 2d Session                                                     106-415

======================================================================



 
AMENDING THE ACT ENTITLED ``AN ACT RELATING TO THE WATER RIGHTS OF THE 
  AK-CHIN INDIAN COMMUNITY'' TO CLARIFY CERTAIN PROVISIONS CONCERNING 
  THE LEASING OF SUCH WATER RIGHTS, AND FOR OTHER PURPOSES

                                _______
                                

               September 19, 2000.--Ordered to be printed

                                _______
                                

   Mr. Campbell, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 2647]

    The Committee on Indian Affairs to which was referred the 
bill (H.R. 2647) to amend the act entitled ``An Act relating to 
the water rights of the Ak-Chin Indian Community'' to clarify 
certain provisions concerning the leasing of such water rights, 
and for other purposes, having considered the same, reports 
favorably thereon without amendment and recommends that the 
bill do pass.

                                Purpose

    The purpose of H.R. 2647 is to amend An Act Relating to the 
Water Rights of the Ak-Chin Indian Community, P.L. 98-530, to 
clarify certain provisions concerning the leasing of such water 
rights, and for other purposes.

                               Background

    The Ak-Chin Indian Reservation was established by Executive 
Order in 1912 for Pima and Tohono O'odham Indians in the State 
of Arizona. The reservation consists of approximately 22,000 
acres located 30 miles south of Phoenix in central Arizona. 
Historically, the Ak-Chin Indian Community (Community) met its 
needs for domestic and agricultural water with ground water 
pumped from beneath the reservation. However, increasing 
agricultural development adjacent to the reservation, spurred 
by the Federal Government's need for cotton and other 
commodities to supply America's armed forces in World War II, 
also increased the demand for ground water and resulted in a 
dramatic decline in the water table under the reservation. The 
declining water table in turn resulted in greatly increased 
pumping costs that made farming on the reservation uneconomic 
and threatened the viability of the Ak-Chin Indian Community.
    In response to what became an emergency situation, in 1978 
the Congress enacted the Ak-Chin Water Rights Settlement (P.L. 
95-328), which authorized the Secretary of the Interior to 
construct a well field and pipeline system to deliver a 
temporary supply of water to the reservation until reliable, 
long-term sources of water could be secured for the Community. 
However, after the Secretary subsequently discovered that legal 
availability of the intended source of the temporary supply of 
water was questionable and that the cost of the planned well 
field was prohibitively high, the Secretary and the Community 
renegotiated the terms of the settlement. In 1984, the Congress 
enacted P.L. 98-530, which amended the 1978 settlement to 
provide for the Community to receive a permanent supply of 
Colorado River water delivered through the works of the Central 
Arizona Project (CAP). In 1992, the Congress enacted section 10 
of the P.L. 102-497, which amended the 1984 settlement to 
authorize the Community to lease portions of its CAP water 
within Maricopa, Pinal and Pima Counties, but limited the term 
of any lease to 100 years. However, the 1992 amendment did not 
authorize the Community to extend a lease beyond the initial 
100-year term.
    The Administration has expressed technical and generalized 
substantive concerns about H.R. 2647. In an April 14, 2000 
letter to the Community, Deputy Secretary David Hayes raised 
these concerns and indicated the Department's desire to 
forestall further action on the bill in light of ``broader 
regulatory and Indian leasing issues in Arizona.'' He also 
offered to continue work with the parties on this issue and 
included a proposed amendment to the bill. Like the Department, 
the Committee recognizes that such concerns need to be balanced 
against the Community's desire to take whatever actions are 
necessary to protect its own interests. The Committee 
recognizes that the Department's concerns are relevant, 
especially because other options areavailable for addressing 
this apparent conflict between Federal and State law. Amending a 
Federal statue, especially a statute memorializing an Indian water 
rights settlement, is not always the best means for resolving similar 
impasses. Obviously this should encourage parties to explore 
alternative approaches for resolving such disputes because the 
enactment of amendments is not a certainty.

                         Summary of Provisions


Section 1. Constitutional authority

    Section 1 of the bill references the language from Article 
I, section 8, of the U.S. Constitution which refers to 
Congressional authority to regulate commerce with Indian 
tribes.

Section 2. Technical amendment to Ak-Chin Water Use Act of 1984

    Subsection (a) provides a short title for this section.
    Subsection (b) amends Public Law 98-530, as amended, to all 
apply to leases, options to renew leases, renewals of options 
to lease, exchanges of water, and temporary disposal of water 
as long as three conditions are met. First, the initial lease 
term may not be for more than 100 years, with no permanent 
alienation of the tribal water right. Second, such agreements 
must be accepted and ratified by a resolution of the Community 
Council. Finally, the lease must be approved and executed by 
the Secretary.
    Subsection (c) approves a lease agreement between the 
Community, the United States, and Del Webb Corporation dated 
December 14, 1996, along with an amendment to that agreement 
dated January 7, 1999. The Secretary is authorized and directed 
to execute the amendment.

                          Legislative History

    On July 29, 1999, Representative Shadegg introduced H.R. 
2647, which was referred to the Subcommittee on Water and Power 
of the House Committee on Resources. A companion measure, S. 
1913, was introduced in the Senate on November 10, 1999 by 
Senator Lott, for himself and Senators McClain and Kyl. On 
February 10, 2000, a hearing was held on H.R. 2647 by the 
Subcommittee on Water and Power of the House Resources 
Committee. On March 9, 2000, H.R. 2647 was favorably reported 
by the Subcommittee. On April 5, 2000 the bill was favorably 
reported by the House Resources Committee. On May 5, 2000, the 
House of Representative voted to suspend the rules and pass 
H.R. 2647 as introduced. On May 10, 2000, H.R. 2647 was 
received in the Senate and referred to the Committee on Indian 
Affairs. On June 29, 2000, H.R. 2647 was considered by the 
Committee at an open business meeting.

            Committee Recommendation and Tabulation of Vote

    The Committee on Indian Affairs, in an open business 
session on July 17, 2000, by voice vote ordered the bill, H.R. 
2647, reported favorably to the Senate.

                      Section-by-Section Analysis

    Section 1. Describes the Constitutional basis for 
Congressional authority over Indian Affairs.
    Section 2. Provides an amendment to the Act of October 19, 
1984, P.L. 98-530, as follows:
    Subsection (a) provides a short title.
    Subsection (b) amends the 1994 Act by authorizing lease 
extension and options to lease, as long as they are approved by 
the Secretary of Interior. The December 14, 1996 option and 
lease between the Community, the United States, and Del Webb 
Corporation is approved. This subsection also authorizes and 
directs the Secretary to approve an amendment dated January 7, 
1999.

                   Cost and Budgetary Considerations

    The cost estimate for, H.R. 2647, as provided by the 
Congressional Budget Office, is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, August 2, 2000.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2647, the Ak-Chin 
Water Use Amendments Act of 2000.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Lanette 
Keith.
            Sincerely,
                                        Steven M. Lieberman
                                    (For Dan L. Crippen, Director).
    Enclosure.

H.R. 2647--Ak-Chin Water Use Amendments Act of 2000

    H.R. 2647 would allow the Ak-Chin Indian Community in 
Arizona to extend and renew leases of its settlement water for 
off-reservation use. Under current law, such leases may not 
exceed 100 years. In addition, the act would ratify and approve 
a lease agreement among the Ak-Chin Indian Community, the 
United States, and the Del Webb Corporation.
    Based on information from the Bureau of Indian Affairs, CBO 
expects that H.R. 2647 would have no significant effect on the 
agency's administrative costs. Therefore, we estimate that any 
impact on discretionary spending as a result of this 
legislation would be negligible. CBO estimates that 
implementing H.R. 2647 would have no effect on direct spending 
or receipts, because any income resulting from additional 
leases would be paid directly to the Ak-Chin Community. Hence, 
pay-as-you-go procedures would not apply to the act.
    H.R. 2647 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    On April 18, 2000, CBO transmitted a cost estimate for H.R. 
2647, the Ak-Chin Water Use Amendments Act of 1999, as ordered 
reported by the House Committee on Resources. The two versions 
of the legislation are very similar and our cost estimates are 
identical.
    The CBO staff contact is Lanette Keith. This estimate was 
approved by Peter H. Fontaine, Deputy Assistant Director for 
Budget Analysis.

                        Executive Communications

    The views of the Administration on are set forth in the 
following letter from Deputy Secretary of Interior David J. 
Hayes, to Delia M. Carlyle, Chairman of the Ak-Chin Indian 
Community dated on April 14, 2000:

                               The Deputy Secretary
                                           of the Interior,
                                    Washington, DC, April 14, 2000.
Re H.R. 2647, Ak Chin Indian community water use amendments

Delia M. Carlyle,
Chairman, Ak Chin Indian Community,
Maricopa, AZ.
    Dear Chairman Carlyle: This is to follow up on our March 
24, 2000, meeting regarding the Department of the Interior's 
concerns about H.R. 2647, the Ak Chin Indian Community Water 
Use Amendments. I appreciate the time you and your attorneys 
spent with us discussing this difficult matter. While we have 
differing views about the bill and its potential effects on the 
Community and other tribes in Arizona, I believe our dialogue 
was productive.
    While I am disappointed that the Community feels it must 
press forward with its bill before the Department is able to 
resolve broader regulatory and Indian leasing issues in 
Arizona, I certainly understand and appreciate the Community's 
need to take the action it feels necessary to protect its 
interests.
    I would like to continue working with the Community to see 
if there is any way that we can reach a compromise on H.R. 
2647. I do not believe that it is appropriate for the 
Department and the Community to continue to be at odds over 
this issue.
    In the interests of continued discussions, I am interested 
in your thoughts on possible changes to H.R. 2647 along the 
lines set forth in the enclosure to this letter. Such changes 
would have the benefit of allowing the Community and Del Webb 
to immediately proceed with proposed lease extensions, but 
would avoid, at least for the time being, the more 
controversial issue of the need for 100 year renewal periods in 
light of Arizona's recent interpretation of its Assured Water 
Supply regulations.
    Thank you again for your time and attention to this matter. 
I am hopeful that together we can find a way forward that 
protects the interests of the Ak Chin Community, but does not 
raise complications for other tribes that have not yet been 
able to achieve the benefits of a water rights settlement.
            Sincerely,
                                                    David J. Hayes.
    Enclosure.

                    proposed amendments to h.r. 2647

    1. Delete subsections 2(a) and 2(b). Amend subsection 2(c) 
as follows:
    Notwithstanding the provisions the Act of October 19, 1984 
(Public Law 98-530; 98 Stat. 2698), as amended by section 10 of 
the Act of October 24, 1992 (Public Law 102-497; 106 Stat. 
3258), the option and lease agreement among the Ak Chin Indian 
Community, the United States of America, and the Del Webb 
Corporation, dated as of December 14, 1996, and the Amendment 
Number One thereto among the Ak Chin Indian Community, the 
United States of America, and the Del Webb Corporation, dated 
as of January 7, 1999, are hereby ratified and approved. The 
Secretary of the Interior is hereby authorized [and directed] 
to execute Amendment Number One [not later than 60 days after 
the date of the enactment of this Act].

                      Regulatory Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompany a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill H.R. 2647. The Committee finds that the 
regulatory impact of H.R. 2647 will be negligible.

                        Changes in Existing Law

    In compliance with subsection 12 of the rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill are required to be set forth in the accompanying 
Committee report. The Committee states that enactment of H.R. 
2647 will result in the following changes in existing law.

                SECTION 2 OF THE ACT OF OCTOBER 19, 1984


  AN ACT Relating to the water rights of the Ak-Chin Indian Community

    Sec. 2. (a) * * *
    

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    [(j) The Ak-Chin Indian Community (thereafter in this Act 
referred to as the ``Community'') shall have the right to 
devote the permanent water supply provided for by this Act to 
any use, including agricultural, municipal, industrial, 
commercial, mining, recreational or other beneficial use, in 
the areas initially designated as the Pinal, Phoenix and Tucson 
Active Management Areas pursuant to the Arizona Groundwater 
Management Act of 1980, laws 1980, fourth special session, 
chapter 1. The community is authorized to lease or enter into 
an option to lease, extend leases, exchange or temporarily 
dispose of water to which it is entitled for beneficial use in 
the areas initially designated as the Pinal, Phoenix and Tucson 
Active Management Areas pursuant to the Arizona Groundwater 
Management Act of 1980, laws 1980, fourth special session, 
chapter 1: Provided, That the term of any such lease shall not 
exceed 100 years and the Community may not permanently alienate 
any water right. In the event the Community leases, extends 
leases, exchanges or temporarily disposes of water, such action 
shall be pursuant to a contract that has been accepted and 
ratified by a resolution of the Ak-Chin Indian Community 
Council and approved and executed by the Secretary.]
    (j)(1) The Ak-Chin Indian Community (hereafter in this Act 
referred to as the ``Community'') shall have the right to 
devote the permanent water supply provided for by this Act to 
any use, including agricultural, municipal, industrial, 
commercial, mining, recreational, or other beneficial use, in 
the areas initially designated as the Pinal, Phoenix, and 
Tucson Active Management Areas pursuant to the Arizona 
Groundwater Management Act of 1980, laws 1980, fourth special 
session, chapter 1. The Community is authorized to lease or 
enter into options to lease, to renew options to lease, to 
extend the initial terms of leases for the same or a lesser 
term as the initial term of the lease, to renew leases for the 
same or a lesser term as the initial term of the lease, to 
exchange or temporarily dispose of water to which it is 
entitled for the beneficial use in the areas initially 
designated as the Pinal, Phoenix, and Tucson Active Management 
Areas pursuant to the Arizona Groundwater Management Act of 
1980, laws 1980, fourth special session, chapter 1.
    (2) Notwithstanding paragraph (1), the initial term of any 
lease entered into under this subsection shall not exceed 100 
years and the Community may not permanently alienate any water 
right. In the event the Community leases, enters into an option 
to lease, renews an option to lease, extends a lease, renews a 
lease, or exchanges or temporarily disposes of water, such 
action shall only be valid pursuant to a contract that has been 
accepted and ratified by a resolution of the Ak-Chin Indian 
Community Council and approved and executed by the Secretary.

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