[Senate Report 107-314]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 645
107th Congress                                         Report 
2d Session                    SENATE                   107-314
======================================================================
 
                     FREMONT-MADISON CONVEYANCE ACT

                                _______
                                

                October 15, 2002.--Ordered to be printed

                                _______
                                

   Mr. Bingaman, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 2556]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 2556) to authorize the Secretary of the 
Interior to convey certain facilities to the Fremont-Madison 
Irrigation District in the State of Idaho, having considered 
the same, reports favorably thereon with an amendment and 
recommends that the bill, as amended, do pass.
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fremont-Madison Conveyance Act''.

SEC. 2. DEFINITIONS.

    In this Act:
          (1) District.--The term ``District'' means the Fremont-
        Madison Irrigation District, an irrigation district organized 
        under the law of the State of Idaho.
          (2) Secretary.--The term ``Secretary'' means the Secretary of 
        the Interior.

SEC. 3. CONVEYANCE OF FACILITIES.

    (a) Conveyance Requirement.--The Secretary of the Interior shall 
convey to the Fremont-Madison Irrigation District, Idaho, pursuant to 
the terms of the memorandum of agreement (MOA) between the District and 
the Secretary (Contract No. 1425-0901-09MA-0910-093310), all right, 
title, and interest of the United States in and to the canals, 
laterals, drains, and other components of the water distribution and 
drainage system that is operated or maintained by the District for 
delivery of water to and drainage of water from lands within the 
boundaries of the District as they exist upon the date of enactment of 
this Act, consistent with section 8.
    (b) Report.--If the Secretary has not completed any conveyance 
required under this Act by September 13, 2003, the Secretary shall, by 
no later than that date, submit a report to the Congress explaining the 
reasons that conveyance has not been completed and stating the date by 
which the conveyance will be completed.

SEC. 4. COSTS.

    (a) In General.--The Secretary shall require, as a condition of the 
conveyance under section 3, that the District pay the administrative 
costs of the conveyance and related activities, including the costs of 
any review required under the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as described in Contract No. 1425-0901-09MA-
0910-093310.
    (b) Value of Facilities To Be Transferred.--In addition to 
subsection (a) the Secretary shall also require, as condition of the 
conveyance under section 2, that the District pay to the United States 
the lesser of the net present value of the remaining obligations owned 
by the District to the United States with respect to the facilities 
conveyed, or $280,000. Amounts received by the United States under this 
subsection shall be deposited into the Reclamation Fund.

SEC. 5. TETON EXCHANGE WELLS.

    (a) Contracts and Permit.--In conveying the Teton Exchange Wells 
referenced in section 3, the Secretary shall also convey to the 
District--
          (1) Idaho Department of Water Resources permit number 22-
        097022, including drilled wells under the permit, as described 
        in Contract No. 1425-0901-09MA-0910-093310; and
          (2) all equipment appurtenant to such wells.
    (b) Extension of Water Service Contract.--The water service 
contract between the Secretary and the District (Contract No. 7-0907-
0910-09W0179, dated September 16, 1977) is hereby extended and shall 
continue in full force and effect until all conditions described in 
this Act are fulfilled.

SEC. 6. ENVIRONMENTAL REVIEW.

    Prior to conveyance the Secretary shall complete all environmental 
reviews and analyses as set forth in the MOA.

SEC. 7. LIABILITY.

    Effective on the date of the conveyance the United States shall not 
be liable for damages of any kind arising out of any act, omission, or 
occurrence relating to the conveyed facilities, except for damages 
caused by acts of negligence committed by the United States or by its 
employees, agents, or contractors prior to the date of conveyance. 
Nothing in this section may increase the liability of the United States 
beyond that currently provided in chapter 171 of title 28, United 
States Code.

SEC. 8. WATER SUPPLY TO DISTRICT LANDS.

    The acreage within the District eligible to receive water from the 
Minidoka Project and the Teton Basin Projects is increased to reflect 
the number of acres within the District as of the date of enactment of 
this Act, including lands annexed into the District prior to enactment 
of this Act as contemplated by the Teton Basin project. The increase in 
acreage does not alter deliveries authorized under their existing water 
storage contracts and as allowed by State water law.

SEC. 9. DROUGHT MANAGEMENT PLANNING.

    Within 60 days of enactment of this Act, in collaboration with 
stakeholders in the Henry's Fork watershed, the Secretary shall 
initiate a drought management planning process to address all water 
uses, including irrigation and the wild trout fishery, in the Henry's 
Fork watershed. Within 18 months of enactment of this Act, the 
Secretary shall report to Congress with a final drought management 
plan.

SEC. 10. EFFECT.

    (a) In General.--Except as provided in this Act, nothing in this 
Act affects--
          (1) the rights of any person; or
          (2) any right in existence on the date of enactment of this 
        Act of the Shoshone-Bannock Tribes of the Fort Hall Reservation 
        to water based on a treaty, compact, executive order, 
        agreement, the decision in Winters v. United States, 207 U.S. 
        564 (1908) (commonly known as the ``Winters Doctrine''), or 
        law.
    (b) Conveyances.--Any conveyance under this Act shall not affect or 
abrogate any provisions of any contract executed by the United States 
or State law regarding any irrigation district's right to use water 
developed in the facilities conveyed.

                         PURPOSE OF THE MEASURE

    The purpose of S. 2556, as ordered reported, is to 
authorize the Secretary of the Interior to convey certain water 
distribution and drainage facilities to the Fremont-Madison 
Irrigation District in the State of Idaho.

                          BACKGROUND AND NEED

    S. 2556 provides for the transfer to the Fremont-Madison 
Irrigation District (District) of certain facilities that are 
associated with the Upper Snake River Division, Minidoka 
Project and the Lower Teton Division, Teton Basin Project. 
These facilities are located near Rexburg in eastern Idaho. The 
facilities are used exclusively for irrigation and are 
currently operated and maintained by the District. Two of the 
facilities, the Cross Cut Diversion Dam and Canal have been 
paid-out by the District. The Teton Exchange Wells, which are 
proposed to be transferred are valued at approximately $278,000 
according to the Bureau of Reclamation.
    The title transfer provided for in S. 2556 has been the 
subject of significant attention in eastern Idaho. The District 
and other entities that make up the Henry's Fork Watershed 
Council, worked with the Bureau of Reclamation to address 
issues associated with the transfer. That collaborative process 
resulted in a Memorandum of Agreement between the Secretary and 
the District identified as Contract No. 1425-01-MA-10-3310, 
dated September 13, 2001 (MOA). The MOA lists the facilities to 
be transferred and specifies the respective responsibilities 
for completing activities that are a prerequisite to the 
transfer. The MOA is set forth as Appendix A.

                          LEGISLATIVE HISTORY

    S. 2556 was introduced by Senators Crapo and Craig on May 
23, 2002. The Subcommittee on Water and Power held a hearing on 
S. 2556 on July 31, 2002. At the business meeting on October 3, 
2002, the Committee on Energy and Natural Resources adopted an 
amendment in the nature of a substitute and ordered S. 2556, as 
amended, favorably reported.

                        COMMITTEE RECOMMENDATION

    The Committee on Energy and Natural Resources, in open 
business session on October 3, 2002, by a voice vote of a 
quorum present, recommends that the Senate pass S. 2556, if 
amended as described herein.

                          COMMITTEE AMENDMENTS

    During the consideration of S. 2556, the Committee adopted 
an amendment in the nature of a substitute. The substitute 
amendment addresses concerns raised during the Subcommittee 
hearing and in written submissions.
    The first change deletes a provision in the bill requiring 
the transfer take place by September 13, 2003. The Secretary 
must report to Congress with an explanation of why the transfer 
has not occurred and the anticipated transfer date if the 
conveyance has not been completed by September 13, 2003. The 
amendment deletes a ceiling on administration costs assessed to 
the District as part of the transfer. The allocation of costs 
between Reclamation and the District is addressed in the MOA.
    The amendment also adds a new section 6 that addresses 
environmental review. Section 6 directs the Secretary to 
conduct an analysis of the transfer as set forth in the MOA. 
The MOA specifically requires the parties to undertake actions 
to comply with, among other statutes, the National 
Environmental Policy Act and the Endangered Species Act. The 
amendment requires those analyses to be undertaken as provided 
in the MOA.
    Finally, two provisions are added to S. 2556 to address 
concerns of stakeholders in the Henry's Fork and Snake River 
watersheds. Section 9 is added to ensure that the Secretary 
initiates a drought management planning process to address all 
water uses, including irrigation and the wild trout fishery, in 
the Henry's Fork watershed. Also, a new section 10(a)(2) 
provides a disclaimer on any effect to the water rights of the 
Shoshone-Bannock Tribes of the Fort Hall Reservation.
    Other changes in the substitute amendment are explained in 
the section by section analysis.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 provides the short title, the ``Fremont-Madison 
Conveyance Act.''
    Section 2 defines terms used in the Act.
    Section 3, subsection (a) directs the Secretary of the 
Interior to convey to the District pursuant to the terms of the 
MOA, all right, title, and interest of the United States in and 
to the identified facilities.
    Subsection (b) specifies that if the Secretary has not 
completed the title transfer by September 13, 2003, the 
Secretary is required to submit a report to Congress explaining 
the reasons that conveyance has not been completed and the 
anticipated date for completion.
    Section 4, subsection (a) provides that the Secretary shall 
require the District, as described in the MOA to pay the 
administrative costs of the conveyance.
    Subsection (b) directs that in addition to the 
administrative costs, the Secretary shall require that the 
District pay the United States the lesser of the net present 
value of the remaining obligations owed by the District to the 
United States with respect to facilities conveyed, or $280,000. 
The money received will be deposited into the Reclamation Fund.
    Section 5, subsection (a) directs the Secretary to include 
in its conveyance of the Teton Exchange Wells, Idaho Department 
of Water Resources permit number 22-097022, including drilled 
wells under the permit as described in the MOA, and all 
equipment appurtenant to such wells.
    Subsection (b), extends the water service contract between 
the Secretary and the District until the conditions described 
in this Act are fulfilled.
    Section 6 directs the Secretary, prior to conveyance, to 
complete all environmental reviews and analyses as set forth in 
the MOA.
    Section 7 limits the liability of the United States upon 
conveyance of the facilities and is self-explanatory.
    Section 8, increases the acreage within the District 
eligible to receive water from the Minidoka and Teton Basin 
Projects to reflect the number of acres within the District as 
of the date of enactment of this Act. The increase in acreage 
does not alter the delivery of water authorized under current 
water storage contracts and State water law.
    Section 9, directs the Secretary, in collaboration with the 
stakeholders in the Henry's Fork watershed, to initiate a 
drought management planning process to address all water uses, 
including irrigation and the wild trout fishery, in the Henry's 
Fork watershed. It also directs the Secretary to report to 
Congress with a final drought manaagement plan within 18 months 
of enactment.
    Section 10, subsection (a) disclaims any effect on existing 
rights and is self-explanatory.
    Subsection (b) disclaims any effect on any irrigation 
district's righ to use water and is self-explanatory.

                   COST AND BUDGETARY CONSIDERATIONS

    The following estimate of the cost of this measure has been 
provided by the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, October 7, 2002.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2556, the Fremont-
Madison Conveyance Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Julie 
Middleton.
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

S. 2556--Fremont-Madison Conveyance Act

    S. 2556 would direct the Secretary of the Interior through 
the Bureau of Reclamation to convey certain components of a 
water distribution and drainage system to the Fremont-Madison 
Irrigation District in Idaho by September 2003. These 
components include a dam, a canal, and several wells, which are 
currently operated and maintained by the district and used for 
irrigation. The transfer would occur after the district meets 
its outstanding obligations under an existing repayment 
contract with the federal government. In addition, S. 2556 
would require the federal government to pay half of the costs 
associated with the conveyance, including a review under the 
National Environment Policy Act. This bill also would authorize 
the Bureau to develop a drought management plan for the Henry's 
Fork watershed.
    CBO estimates that enacting S. 2556 would result in an 
insignificant increase in offsetting receipts to the 
government. Since 1977, the district has repaid $225,000 of the 
cost of constructing several water wells. As a condition of 
conveyance, CBO estimates that the federal government would 
receive about $135,000 from the district in 2003 as the final 
payment under the existing repayment contract for those wells. 
This amount represents the net present value of the remaining 
obligations owed by the district. This near-term cash savings 
would be offset by the loss of future offsetting receipts of 
about $10,000 a year over the 2003-2030 period. CBO also 
estimates that the Bureau of Reclamation would spend about 
$80,000 for its share of the administrative costs associated 
with this conveyance, assuming the availability of appropriated 
funds.
    S. 2556 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. 
This conveyance would be voluntary on the part of the district 
as would any costs it would incur to comply with the conditions 
set by the bill.
    On August 12, 2002, CBO prepared a cost estimate for H.R. 
4708, the Fremont-Madison Conveyance Act, as ordered reported 
by the House Committee on Resources on July 24, 2002. The two 
versions of the legislation are very similar, and our cost 
estimates are the same. S. 2556 would authorize the bureau to 
develop a drought management plan for the Henry's Fork 
watershed, a provision that is not included in H.R. 4708. CBO 
estimates that this provision would not have a significant 
impact on the federal budget.
    The CBO staff contact for this estimate is Julie Middleton. 
This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                      REGULATORY IMPACT EVALUATION

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 2556. The bill is not a regulatory measure in 
the sense of imposing Government-established standards or 
significant economic responsibilities on private individuals 
and businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 2556.

                        EXECUTIVE COMMUNICATIONS

    The pertinent legislative report received by the Committee 
on Energy and Natural Resources from the Department of the 
Interior setting forth Executive agency recommendation relating 
to S. 2556 is set forth below:

                        Department of the Interior,
                                   Office of the Secretary,
                                    Washington, DC, August 9, 2002.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: This letter responds to your request for 
the views of the Department of the Interior on S. 2556, the 
Fremont Madison Conveyance Act, which directs the Secretary of 
the Interior to transfer title of certain Federal owned 
facilities, lands and permits to the Fremont-Madison Irrigation 
District (District). This confirms my testimony before the 
Water and Power Subcommittee on July 31.
    The facilities under consideration for transfer in S. 2556, 
the Cross Cut Diversion Dam and Canal, the Teton Exchange Wells 
and the Idaho Department of Water Resources permit number 22-
7022, are associated with the Upper Snake River Division, 
Minidoka Project and the Lower Teton Division, Teton Basin 
Project, respectively, and are located near Rexburg in eastern 
Idaho. The facilities under consideration for transfer are used 
exclusively for irrigation purposes and have always been 
operated and maintained by the District. While the Cross Cut 
Division Dam and Canal are paid-out by the District, the 
legislation provides for a payment for the Teton Exchange 
Wells, which are currently valued at $277,961, based upon the 
outstanding balance to be repaid by the District.
    Over the last few years, we have been working very closely 
with the District and numerous other local organizations 
including the Henry's Fork Foundation, a local conservation and 
sportsmen's organization, to work through the issues on the 
title transfer for the features, lands and water rights 
associated with this project. Over the last year, we have made 
great progress in narrowing the scope of the transfer to meet 
the District's needs, protect the interests of the other stake-
holders, and ensure that the transfer does not negatively 
impact downstream contractors of the integrated Snake River 
system. While we are very close to agreement on this 
legislation, S. 2556, as drafted, creates some problems and 
concerns. However, with the technical modifications outlined 
below, the Department could support S. 2556.

Background

    Individuals, organizations, Federal, States and local 
agencies interested in the Henry's Fork of the Snake River have 
a very impressive history of collaboration and cooperation 
through the Henrys Fork Watershed Council (Council)--a 
grassroots community forum.
    Subsequently, the District and the Henry's Fork Foundation, 
along with the Land and Water Fund of the Rockies engaged in a 
series of negotiations to develop a mutually acceptable 
proposal. While that process did not result in a concrete 
proposal, it did lead to some consensus on the facilities to be 
transferred that are included in this legislation. It also led 
to the removal of the Grassy Lake and Island Park dams from the 
transfer proposal about which many local organizations had 
serious concerns.
    Accordingly, in September, 2001, Reclamation and the 
District signed a memorandum of agreement (Contract No. 1425-
01-10-3310) (MOA) which expires on September 13, 2003, and is 
referenced in S. 2556. This agreement lists the facilities to 
be transferred, delineates the respective responsibilities to 
complete activities necessary for the title transfer such as 
arrangements for the sharing of costs, valuation of the 
facilities to be transferred, and responsibilities associated 
with compliance with Federal and State laws.
    We have, however, identified some concerns and technical 
issues which we would like to raise for the Committee's 
consideration:

Cost Share Requirements

    First, Section 3(a) of S. 2556 requires the District to pay 
the administrative costs of the conveyance and related 
activities, including the costs of any review required under 
NEPA, but limits their contributions to no more than $40,000. 
This language is both unclear as to what is or is not included 
as ``costs,'' nor is it in accordance with the MOA that FMID 
should pay the 50% of costs associated with applicable 
procedural requirements of the NEPA, ESA, and other applicable 
state and federal laws required.
    We agree that it is appropriate to share the costs of 
compliance with Federal laws, as was agreed upon in the MOA. We 
also believe that the recipients of title transfer should cover 
those costs that are associated with the real estate 
transaction resulting from the title transfer. In this vein, 
the MOA states that the District would pay for applicable 
activities such as surveys, title searches, facility 
inspections, and development of a quit claim deed or other 
legal documents necessary for completing the transfer. 
Unfortunately, S. 2556, as drafted, is unclear on this point.
    To address these ambiguities, we suggest that S. 2556 
referenced the MOA's treatment of costs or reiterate the manner 
in which the distribution of costs were addressed in the MOA. 
Given the amount of work that went into developing the MOA, its 
applicability under S. 2556 for implementation of the transfer, 
and the fact that it has been agreed upon and signed by 
representatives of both Reclamation and the District, 
referencing the MOA on these issues would provide an equitable, 
clear and consistent resolution to our concern.

Conveyance Deadline and Report

    Section 2(a) of S. 2556 requires that the title transfer be 
completed no later than the termination date of the MOA 
(September 13, 2003). However, Section 2 states that the 
transfer be completed ``as soon as practicable after the date 
of enactment and in accordance with all applicable law.'' These 
provisions appear inconsistent as Section 2(a) designates a 
required date certain for completion, while Section 2(d)(1) 
states that it be completed ``as soon as practicable.'' 
Further, Section 2(d)(2) requires that the Secretary submit a 
report to Congress within one year of the date of enactment if 
the transfer has not been completed in that time frame. This 
provision seems somewhat arbitrary and could potentially delay 
the transfer from the September 13, target date while the 
report is being prepared.
    To address our concerns with inconsistent deadlines and 
reporting requirements, we suggest that the legislation be 
modified to require that the transfer be completed ``as soon as 
practicable after the date of enactment'' and the reporting 
requirement in S. 2556 be modified to require a report to 
Congress be completed only if the title has not been 
transferred by September 13, 2003--the expiration date of MOA 
referenced in the legislation. In this manner, the requirements 
are made clear and consistent, and no report to Congress would 
be necessary if the facilities are transferred by the MOA's 
expiration date.

Conclusion

    In conclusion, we have worked closely with the District and 
a great deal of progress has been made. With the technical 
modifications mentioned above, the Department could support 
passage of this legislation.
    The Office of Management and Budget advises that there is 
no objection to the presentation of this report from the 
standpoint of the Administration's program.
            Sincerely,
                                          John W. Keys III,
                               Commissioner, Bureau of Reclamation.

                        CHANGES IN EXISTING LAW

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that no 
changes in existing law are made by the bill S. 2556, as 
ordered reported.
                           A P P E N D I X  A

                              ----------                              


Memorandum of Agreement Between United States of America, Department of 
          the Interior and Fremont-Madison Irrigation District

    This Memorandum of Agreement (MOA) is made pursuant to the 
Reclamation Act of June 17, 1902 (32 Star. 388), and acts 
amendatory thereof or supplementary thereto, between the UNITED 
STATES OF AMERICA, acting through the Bureau of Reclamation, 
Department of the Interior, hereinafter referred to as 
Reclamation, and the FREMONT-MADISON IRRIGATION DISTRICT, a 
public corporation organized under the laws of the State of 
Idaho, with its principal place of business in St. Anthony, 
Idaho, hereinafter referred to as FMID, and;
    WHEREAS, FMID has stated its intent to seek Congressional 
authority to transfer title of the United States' ownership 
interests in Cross Cut Diversion Dam and Cross Cut Canal, and 
the Teton wells including all well permits and water right 
permits (identified under permit number 22-7022 by the Idaho 
Department of water Resources), both drilled and undrilled, 
together with all of the Reclamation's water right interests 
associated with such well permits, and any other associated 
facilities and real property pertaining to Cross Cut Diversion 
Dam and Cross Cut Canal, and the Teton wells held by the United 
States for the benefit of FMID, and;
    WHEREAS, in addition to the existing Teton wells, FMID has 
stated its intent to develop such additional wells (using said 
permit number 22-7022) as may be required to provide a 
supplemental water supply to the lands of its spaceholders in 
years when there is an inadequate supply of water, and;
    WHEREAS, it is also FMID's intent to give the undeveloped 
portion of permit number 22-7022, not needed to provide a 
supplemental water supply to its spaceholders, to the Idaho 
Water Resources Board for the Water Board's future use, and;
    WHEREAS, FMID has also stated its intent to demonstrate its 
capacity for owning and operating these facilities, and;
    WHEREAS, Reclamation has a responsibility to protect the 
interests of the United States and its public's interests in 
the resources, which are supported by Reclamation's ownership 
of the facilities and real property proposed to be transferred, 
and;
    WHEREAS, Reclamation has the ultimate responsibility to 
approve environmental analyses, prepared by FMID or its 
contractors, associated with such a transfer and has adopted 
guidelines designed to assist FMID in implementing a successful 
transfer, and;
    WHEREAS, FMID and Reclamation agree to cooperate in a joint 
effort to evaluate the environmental impacts, and other 
elements associated with such a transfer and to prepare 
associated analyses required for the transfer, and;
    WHEREAS, Reclamation has no authorization or funds 
appropriated for paying costs associated with this title 
transfer and Reclamation will not be able to reimburse FMID for 
any of its expenditures without Congressional authorization, 
and;
    WHEREAS, FMID and Reclamation agree to proceed, as 
applicable, with title transfer under the August 1995 Framework 
for the transfer of Title process, although FMID does not 
necessarily agree to the exact sequence of events as set forth 
in said Framework;
    NOW THEREFORE, the parties agree as follows:
    1. Reclamation will be responsible for the following 
actions that may be undertaken in cooperation with FMID:
    (a) Assist FMID in the planning and completion of required 
environmental compliance activities to implement the proposed 
Federal action, including drafting a scoping document. 
Reclamation will also assist FMID with any planned scoping 
meetings and will attend the scoping meetings set up by FMID.
    (b) Following scoping and in consultation with FMID develop 
the alternatives for evaluation and analysis in Reclamation's 
National Environmental Policy Act (NEPA) documents and 
Endangered species Act (ESA) compliance actions.
    (c) Review the work of FMID and/or any consultants engaged 
by FMID to assure that the applicable procedural requirements 
of NEPA, ESA and other applicable State and Federal laws are 
met as required. Reclamation reserves the right to approve any 
consultant retained by FMID in connection with the NEPA 
process.
    (d) Review NEPA documentation prepared by FMID to determine 
the appropriate level of NEPA compliance required for this 
action. As lead agency for NEPA compliance, final approval of 
NEPA documentation will be provided when determined to be 
satisfactory.
    (e) Request and pursue consultation with the National 
Marine Fisheries Service and the U.S. Fish and Wildlife Service 
pursuant to Section 7 of the Endangered Species Act.
    (f) Identify and/or inventory and consult with Tribes on 
Indian Trust Assets and Traditional Cultural Properties and 
ensure the Secretary's Native American Trust Responsibilities 
are met.
    (g) Conduct an asset valuation to determine the value of 
the features to be transferred and any revenue streams thereof. 
Said asset valuation has previously been performed and value 
determined by Reclamation.
    (h) Provide for an independent financial review of the 
adjusted asset value, if required.
    (i) Complete hazardous waste surveys on all Reclamation 
lands intended for title transfer.
    (j) Provide copies, if so requested, of drawings and non-
privileged legal documents currently in Reclamation's 
possession, to FMID that are associated with the lands, third 
party agreements, Reclamation's water rights, rights-of-way, 
and facilities to be included in the title transfer.
    (k) Perform other technical or administrative tasks 
associated with the title transfer process.
    (l) Review draft Federal authorization language and other 
transfer documents prepared by FMID.
    (m) Provide FMID with projections and/or summaries of 
expenses incurred in connection with the title transfer process 
upon the request of FMID. Further, Reclamation will notify FMID 
when Reclamation's total obligations in connection with the 
title transfer (including their 50 percent share of the costs 
associated with NEPA) exceed $80,000 and provide a summary of 
obligations, expenditures and estimated cost to complete.
    (n) Ensure that all contracts or obligations entered into 
relating to this MOA be revocable, wherein the contracts or 
obligations may be terminated at any time upon the request of 
FMID, and FMID will only be responsible for costs and 
expenditures incurred to the date of the termination and any 
contract termination cost.
    (o) Provide copies, if so requested, to FMID of all 
contracts, documents, invoices and other writings which 
evidence obligations pursuant to this MOA.
    2. The FMID will be responsible, subject to Reclamation's 
review and approval as appropriate, for the following:
    (a) Ensure completion of all activities required to comply 
with NEPA. ESA and other applicable State and Federal laws as 
required, including the draft biological assessment.
    (b) Arrange all public involvement, as deemed necessary and 
appropriate by both parties, including meeting places, mailings 
to all key participants, and notices to the public as required 
by Federal regulations.
    (c) Complete any required cultural resource surveys, 
prepare a draft cultural resource report, assist in developing 
any cultural resource agreement with the State, and submit 
these documents to Reclamation for review and approval.
    (d) Draft Federal authorization language for the proposed 
title transfer to facilities as determined appropriate by and 
through this transfer process.
    (e) Any land surveys needed for the transfer of the project 
or related facilities shall be at the expense of FMID.
    (f) Prepare drafts of the necessary legal documents 
including any associated agreements involving Federal, State, 
local and Tribal issues. FMID is responsible for officially 
contacting all interested local, State, Tribal and Federal 
agencies to determine if they have concerns or jurisdictional 
obligations which need to be met. FMID will provide Reclamation 
a report of these contacts and the agency responses.
    3. Areas of mutual responsibility:
    (a) Reclamation and FMID will appoint representatives to 
coordinate the transfer analysis and documentation process. All 
FMID requests to Reclamation relating to the transfer will go 
through Stuart Stanger, Deputy Area Manager, Reclamation, 
Burley, ID. All Reclamation requests to FMID relating to the 
transfer will go through Dale Swensen, Manager, FMID, St. 
Anthony, ID.
    (b) Reclamation and FMID will cooperate to conduct the 
process in a manner that ensures appropriate public and 
spaceholder participation.
    (c) Reclamation and FMID agrees to use, if appropriate, a 
quit claim deed to transfer title of facilities, water right 
interests held by the United States' Secretary of the Interior 
for Reclamation purposes, real property, and other interests 
from Reclamation to FMID, if title is transferred.
    (d) Reclamation and FMID agree to work cooperatively to 
determine final value of the features to be transferred based 
upon previous Reclamation asset valuation and any revenue 
streams thereof.
    (e) Reclamation and FMID agree that any of the 
responsibilities for either party may become the responsibility 
of the other party if agreed to by both parties in writing, 
unless prohibited by law or regulation.
    4. Costs
    (a) Subjects to the terms of this MOA, FMID agrees to cost 
share up to 50 percent of all transfer costs associated with 
applicable procedural requirements of the NEPA, ESA, other 
Federal cultural resource laws, and other applicable State and 
Federal laws as required. FMID agrees that it shall be 
responsible for paying, in advance, all costs incurred by it 
and/or Reclamation associated with the tasks described herein 
for title transfer, expect for those costs for which 
Reclamation agrees to by subsequent written agreement with the 
FMID. Any subsequent agreement will be documented as an 
amendment to this agreement. FMID intends to seek a cap of its 
share of the administrative costs in the legislation.
    (b) Reclamation may contract with another person or entity 
for any of the obligations described herein. Reclamation will 
ensure that the costs billed to FMID shall be actual costs, 
including Reclamation's actual costs for administering the 
contracts, if Reclamation contracts with another person or 
entity for any of the obligations herein.
    (c) FMID will pay in advance for Reclamation's reasonable 
costs for coordination, review, public meetings, oversight, and 
other reasonable costs related to the title transfer process.
    (d) FMID will pay in advance Reclamation's reasonable costs 
associated with cultural resource compliance actions, NEPA 
compliance, inspection of facilities, hazardous waste surveys, 
assistance by Reclamation in all documents related to real 
property transfer, and other reasonable Reclamation costs as 
described herein.
    (e) Reclamation and FMID agree that payment in advance for 
Reclamation costs or completion of any or all aspects of this 
agreement does not guarantee that title will be transferred for 
any or all of the facilities named in this agreement or that 
transfer of title will be approved by Reclamation and/or the 
Congress of the United States Notwithstanding the above 
Reclamation will do everything it can to facilitate a transfer.
    (f) Those costs for which the FMID will be fully 
responsible for in the proposed title transfer will include, 
but not limited to, to the following (for each of which FMID 
intends to seek the right of reimbursement through the 
legislative process):
          (i) Inspection of facilities designated herein to be 
        transferred, if required, and review of property and 
        lands, asset valuation, identification of Indian Trust 
        Assets, hazardous material surveys, and other 
        activities that are associated with or possibly 
        impacted by the proposed transfer of Federal 
        Reclamation facilities and associate lands.
          (ii) Reclamation's salary and overhead costs accrued 
        for activities associated with this MOA.
          (iii) Travel by Reclamation staff, including per diem 
        and transportation costs, as required for the above 
        actions or activities and/or the development and 
        negotiation of the terms for the proposed title 
        transfer.
          (iv) Photocopying and mailing by Reclamation of 
        documents related to the proposed title transfer (e.g., 
        the proposed draft agreement for public review, 
        comment, and public notification).
          (v) Title transfer recording costs.
     (g) Reclamation agrees to allocate authorized and 
appropriated funds as may become available for the performance 
of certain tasks which are described herein:
          (i) Reclamation and FMID agree to work in a prudent 
        manner to minimize costs for activities associated with 
        this agreement.
    5. Pavement
    (a) Reclamation will establish a unique costs account to 
track and account for the cost and services provided under the 
terms of this MOA.
    (b) FMID submitted an advance payment to Reclamation in the 
amount of $25,000 on November 20, 1998 (March 31, 2001 credit 
balance of $21,148.60) which will be held by Reclamation in 
account number AIR1751 and will be applied toward Reclamation's 
costs, upon FMID's signature of this MOA (Contributed Funds Act 
42USC345). Payment has been made payable to Bureau of 
Reclamation, to the attention of Reclamation Grants Management 
Specialist, PN-6317, Bureau of Reclamation, 1150 North Curtis 
Road, Suite 100, Boise, Idaho 83706.
    (c) FMID will maintain a balance of at least $5,000 in this 
account to be used to reimburse Reclamation's costs; and
    (d) Reclamation will contact FMID prior to the first of 
each month to discuss (consult) and itemize anticipated 
Reclamation actions and expenses for the upcoming month, and 
upon Reclamation's submittal of the itemized anticipated 
actions and costs to FMID. FMID shall promptly pay Reclamation 
for the anticipated reimbursable costs.
    (e) Following completion of title transfer or cessation 
(for whatever reason) of the title transfer process, 
Reclamation will refund within 60 days to FMID any unexpended 
advanced funds identifiable as excess of the total estimated 
costs.
     6. General Provisions:
    (a) All responsibilities of either or both parties required 
above shall be performed only after mutual agreement and 
reasonable notification to the other party.
    (b) FMID and Reclamation will work in a cooperative manner 
throughout the legislative process.
    (c) The parties pledge their individual good faith to seek 
a prompt and fair agreement on all issues relating to a 
proposed transfer described in this Agreement. FMID agrees that 
in order to facilitate a facility transfer, FMID must address 
all substantive issues in the context of Congressional 
hearings. In the event that an agreement on a particular matter 
cannot be promptly resolved, the parties pledge to continue to 
work cooperatively on those matters relating to a title 
transfer for which there is no disagreement.
    (d) This MOA shall become effective on the date of the last 
signature hereto. This MOA may be modified, amended or 
terminated upon mutual agreement of the parties hereto, but in 
any event will terminate two (2) years from the date of the MOA 
is signed unless renegotiated and or renewed at that time 
through mutual consent of both parties. Either party may 
terminate its obligations and duties under this MOA at any time 
upon 30 days written notice to the other party. All duties and 
obligations of both parties under this MOA will cease at that 
time except as the MOA provisions relate to accounting, 
termination of contracts and reimbursing the parties' expenses.
    (e) Nothing herein shall be construed to obligate the 
Bureau of Reclamation to expend or involve the United States of 
America in any contract or other obligation for the future 
payment of money in excess of appropriations authorized by law 
and administratively allocated for the purposes and projects 
contemplated hereunder.
    (f) No Member or delegate to Congress, or resident 
Commissioner, shall be admitted to any share or to be part of 
this MOA or to receive any benefit that may arise out of it 
other than as a water user or landowner in the same manner as 
other water user or landowner.
    IN WITNESS WHEREOF, the parties hereto have executed this 
MOA as of the last date and signature below.

UNITED STATES OF AMERICA
Date: September 13, 2001.
Jarrold D. Gregg,
Area Manager,
Snake River Area Office.