[Senate Report 108-389]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 777
108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-389
======================================================================
 
 A BILL TO DIRECT THE SECRETARY OF THE INTERIOR AND THE HEADS OF OTHER 
   FEDERAL AGENCIES TO CARRY OUT AN AGREEMENT RESOLVING MAJOR ISSUES 
RELATING TO THE ADJUDICATION OF WATER RIGHTS IN THE SNAKE RIVER BASIN, 
                     IDAHO, AND FOR OTHER PURPOSES

                                _______
                                

                October 7, 2004.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 2605]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 2605) to direct the Secretary of the Interior and the 
heads of other Federal agencies to carry out an agreement 
resolving major issues relating to the adjudication of water 
rights in the Snake River Basin, Idaho, and for other purposes 
having considered the same, reports favorably thereon with an 
amendment in the nature of a substitute and recommends that the 
bill as amended do pass.

                                PURPOSE

    The purpose of S. 2605 is to approve the terms of a 
settlement agreement addressing the water rights of the Nez 
Perce Tribe of Indians (the Tribe) and its allottees in the 
Snake River within the State of Idaho, the Tribe's rights of 
access to and use of water in springs or fountains on Federal 
lands within a Tribal cession area, monetary and other 
compensation to the Tribe, as well as several other issues 
relating to the Snake River Basin such as minimum instream 
flows and riparian habitat protection and improvement measures 
for certain streams, all as set forth in a certain ``Mediator's 
Term Sheet'' described in greater detail below. S. 2605 also 
authorizes the appropriation of funds to fulfill the 
obligations of the United States under the settlement 
agreement, and directs the Secretary of Interior and the heads 
of other Federal agencies with obligations under the agreement 
to take all actions, consistent with the Act, that are 
necessary to carry out the terms of the agreement.

                               BACKGROUND

    S. 2605 is intended to resolve the reserved water rights 
claims of the Tribe and its allottees in the Snake River Basin 
in the State of Idaho, and to address certain other issues 
relating to the allocation and use of water, the establishment 
of minimum instream flows, and the protection and improvement 
of riparian habitats within that basin.
    Under the reserved Indian water rights doctrine established 
by the U.S. Supreme Court in Winters v. United States, 207 U.S. 
564 (1907), the setting aside of a reservation for an Indian 
tribe creates an implied reservation of rights to water in an 
amount sufficient to fulfill the purposes of the reservation. 
These Winters rights have a basis in Federal law that is 
separate and distinct from water rights created under the water 
rights legal system of ``prior appropriation'' that controls 
the use and allocation of water, including the priorities of 
use in times of shortage, under the laws of most western 
states. Generally speaking, in states that have adopted systems 
based on prior appropriation, the ownership and priority of 
water rights in a particular stream originate with the act of 
diverting water for beneficial use. Tribal reserved water 
rights (including the water rights of those who hold allotted 
trust lands located within Indian reservations) and their dates 
of priority, on the other hand, arise from the creation of the 
reservation, and are not dependent on diversion for beneficial 
use. Because in many areas the establishment of Indian 
reservations preceded the initiation of most non-Indian water 
uses, Indian reserved water rights often have priority over the 
rights of other water users whose rights are based in state 
law. Accordingly, if Indian tribes were to exercise long-
dormant but senior Winters rights at times when there are 
insufficient flows available to satisfy the needs of all users, 
Indian and non-Indian alike, existing non-Indian water users 
with rights based on the state-law systems of prior 
appropriation would often face the subordination of their 
rights to divert and use water.
    In the past, the quantification of water rights, whether 
based on the Winters or otherwise, was often accomplished 
through the mechanism of a ``general stream adjudication,'' in 
which a court or administrative agency would undertake to 
quantify all of the water rights in a particular watershed. The 
McCarran Amendment, 43 U.S.C. 666, waives the sovereign 
immunity of the United States so as to allow state courts and 
agencies to adjudicate Federal water rights in proceedings that 
qualify as general stream adjudications, and this waiver of 
immunity from suit has been interpreted by the courts to 
include claims against the United States as trustee of reserved 
water rights of Indian tribes and individual Indian allottees.
    However, the general stream adjudication process has proven 
itself to be an unwieldy, expensive and, above all, slow method 
for resolving the competing water rights claims in a stream or 
watershed.\1\ A significant additional shortcoming from the 
tribal perspective is that although a decree in a general 
stream adjudication might recognize an Indian tribe's rights to 
substantial quantities of water with an early priority date, 
this may do little, if anything, to deliver real (or ``wet'') 
water to dry Indian lands.
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    \1\ A general stream adjudication for the Nambe-Pojoaque River 
System in New Mexico was filed in 1966 by the State of New Mexico and 
is still an active case pending in the U.S. District Court for the 
State of New Mexico. See, State of New Mexico ex rel. State Engineer v. 
Aamodt, Case No. 66-cv-6639 EM. The general stream adjudication for the 
Gila River System in the State of Arizona was filed in 1974 is also 
still an active case. See, In re the General Adjudication of All Rights 
to Use Water in the Gila River System and Source, Superior Court for 
the State of Arizona in and for the County of Maricopa. Another active 
stream adjudication in Arizona, involving the Little Colorado River 
System, was filed in 1978. See, In re the General Adjudication of All 
Rights to Use Water in the Little Colorado River System and Source, 
Case No. 6417, Superior Court for the State of Arizona in and for the 
County of Apache.
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    The shortcomings of the general stream adjudication process 
as a device for water rights dispute resolution have led to an 
increasing number of agreed-to water rights settlements on 
streams in the western States-where the parties, including 
Indian tribes, negotiate and compromise among themselves as to 
quantity, priority dates and other issues, and where the 
Federal government contributes money to the settlement in order 
to achieve various goals that could not otherwise be achieved 
within the confines of a general stream adjudication, such as 
monetary and other compensation to the Indian tribe, including 
construction of water delivery systems that bring ``wet'' water 
to the Indian lands as well as other tangible benefits to the 
tribe or its members.
    The Snake River Basin Adjudication (``SRBA'') is a state 
court general stream adjudication addressing claims to water 
rights within the Snake River Basin in the State of Idaho.\2\ 
The SRBA involves some 150,000 claims arising in 38 of Idaho's 
44 counties, among them the claims of the Tribe which are based 
in part on treaties executed in 1855 and 1863 between the Tribe 
and the United States.
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    \2\ In re SRBA, Case No. 39576, District Court of the Fifth 
Judicial District of the State of Idaho, in and for the County of Twin 
Falls.
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    Pursuant to an order of the SRBA court, the State of Idaho, 
municipalities, irrigation districts and other water users in 
the State of Idaho, the United States as trustee for the Tribe 
and holders of allotted trust lands within the Tribe's 
reservation (the ``allottees''), and the Nez Perce Tribe 
itself, engaged in process of mediation in an effort to resolve 
the Tribe's claims to water in the Snake River Basin at issue 
in the SRBA. Those parties have reached an agreement, which is 
set out in a ``Mediator's Term Sheet'' (the ``Agreement''), 
that would, inter alia, settle disputes over the Tribe's Snake 
River water rights.\3\ The intent of the present legislation is 
to ``authorize, ratify, and confirm'' the Agreement, to direct 
the Secretary of the Interior and other heads of Federal 
agencies to execute and perform actions necessary to carry out 
the Agreement, and to authorize appropriations so that all 
parties can obtain the benefits of the Agreement. S. 2605 and 
the Agreement provide for the quantification of the water 
rights of the Tribe and the allottees in the Snake River Basin 
and the augmentation of stream flows important to protected 
fish species, while at the same time protecting the interests 
of existing non-Indian water users by providing substantial 
finality and certainty to all parties.
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    \3\ The court in the SRBA case issued an order accepting the 
Mediator's Term Sheet and its three appendices for filing in 
Consolidated Subcase Nos. 03-10022 and 67-13701 on April 20, 2004. A 
copy of the term sheet with appendices is included with this Report as 
``Attachment A.''
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Overview of the agreement

    The terms of the Agreement with respect to the Tribe's 
water rights, the conduct of habitat and instream flow 
protections and improvements and various other measures are all 
set forth in the 27-page Mediator's Term Sheet and its three 
attached appendices. The Term Sheet is broken out into four 
principal sections: I. Nez Perce Tribal Component, II. Salmon/
Clearwater Component, III. Snake River Flow Component, and IV. 
General Conditions applicable to the entire agreement.
    In the Nez Perce Tribal Component, the Agreement specifies 
that the Tribe's on-reservation consumptive use reserved water 
right will be quantified at 50,000 acre-feet per year, with a 
priority date of 1855, for irrigation, domestic, commercial, 
municipal, industrial, hatchery and cultural uses. The 
Agreement also recognizes the Tribe's right of access to and 
use of water from springs and fountains on Federal lands within 
the 1863 Nez Perce Treaty ceded area, while similar rights 
claimed on non-Federal lands are to be waived. Among other 
terms, the Tribal Component also includes provisions to the 
effect that--
    --The Tribe may select from a list of available Bureau of 
Land Management (BLM) lands within the Nez Perce Indian 
Reservation up to a total value of $7 million, and these 
selected lands will be transferred to the Nez Perce Tribe.
    --The United States and the Tribe will enter into 
agreements for Tribal management of the Kooskia National Fish 
Hatchery, co-management of the Dworshak National Fish Hatchery, 
and use of water in the Dworshak Reservoir for flow 
augmentation for fish.\4\
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    \4\ The Agreement states that the Tribe and the Department of 
Interior will enter into agreements for the management and joint 
management, respectively, of the Kooskia National Hatchery and Dworshak 
National Hatchery. The Committee assumes that this aspect of the 
Agreement is based in part on an assumption that there will be 
continued Federal funding for those facilities, and that adequate 
funding will be maintained for both facilities to the extent 
practicable. The management and co-management agreements should include 
contingency provisions to protect the Tribe in the event that adequate 
funding for the facilities is not maintained.
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    --The United States will establish a $50 million water and 
fisheries trust fund for use by the Tribe in acquiring lands 
and water rights, restoring and improving fish habitat, fish 
production, agriculture, cultural preservation and water 
resource development.
    --The United States will provide $23 million for the design 
and construction of sewer and water system projects for local 
Nez Perce Tribal communities.
    --In lieu of contracting 45,000 acre feet of uncontracted 
storage space in the Payette River system to the Tribe, the 
United States will pay to the Tribe $10.1 million.\5\
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    \5\ The parties arrived at this amount by calculating the net 
present value of the cost of rental payments for that storage space 
over the course of a 30-year period.
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    The Salmon/Clearwater Component of the Agreement sets forth 
several provisions designed to protect or improve instream 
flows and fish habitat and passage. The terms in this Component 
of the Agreement include provisions for establishing instream 
flow water rights for designated ``tribal priority'' streams 
within the Salmon and Clearwater River Basins as part of the 
settlement of the Tribe's claims; the implementation by the 
State of Idaho of a Salmon and Clearwater habitat management 
and restoration initiative for conservation and restoration of 
habitat within those basins, which would include an instream 
flow program for certain streams aswell as a voluntary Idaho 
forestry program to be conducted under a ``Section 6'' \6\ cooperative 
agreement between the State of Idaho on the one hand and the U.S. Fish 
and Wildlife Service and National Marine Fisheries Service (``NOAA 
Fisheries'') on the other; a program for management of new road 
construction measures and road reconstruction and upgrading; provisions 
for administration of the Section 6 forestry program; the establishment 
of a habitat trust fund for habitat protection and restoration to which 
the United States would contribute $38 million; and other measures 
relating to habitat protection and restoration in the Salmon and 
Clearwater River Basins.
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    \6\ Section 6 of the Endangered Species Act, 16 U.S.C. 
Sec. 1535(c).
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    The Snake River Flow Component of the Agreement anticipates 
biological opinions for the 30-year term of the Agreement to be 
issued by NOAA Fisheries and the U.S. Fish and Wildlife Service 
under the Endangered Species Act.\7\ Generally, these 
biological opinions would address issues relating to flows from 
the Snake River above Brownlee Reservoir and the use of water 
for flow augmentation. This component includes measures for 
minimum flows, a flow augmentation program, federal mitigation 
of local impacts resulting from the flow augmentation program, 
a 30-year term for the component with an opportunity to renew 
by agreement, and a provision that states that in the event 
that the Fish and Wildlife Service and NOAA Fisheries fail to 
issue ``no jeopardy'' biological opinions and provide 
incidental take coverages for this Component of the Agreement 
or require terms and conditions that are inconsistent with the 
Agreement, the Snake River Component shall be terminated upon 
written notice by the State or private parties to that 
Component.
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    \7\ These biological opinions would be separate from any biological 
opinion addressing the Federal Columbia River Power System. The 
Agreement provides that the flows provided under the Agreement set 
forth the flow contribution from the upper Snake River above Hells 
Canyon Complex for the benefit of listed species covered by the 
agreement as they travel through the Columbia River system, including 
the Federal Columbia River Power System, and that the NOAA Fisheries 
biological opinion ``will address and evaluate the expected effects of 
BOR's [Bureau of Reclamation's] proposed operations in the Upper Snake, 
including any beneficial effects on anadromous fish from the flow 
augmentation program established in this [the Snake River] component'' 
of the Agreement.
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    The last section of the Agreement sets forth the general 
conditions applicable to the Agreement as a whole. Among these 
are provisions for the following--
          --Issuance of biological opinions by NOAA Fisheries 
        and U.S. Fish and Wildlife Service on each Component of 
        the Agreement for its 30-year term;
          --The right of any State or private party to a 
        component of the Agreement to terminate that Component 
        by giving written notice in the event that NOAA 
        Fisheries or Fish and Wildlife Service fail to issue no 
        jeopardy biological opinions or impose terms or 
        conditions that are inconsistent with the Agreement;
          --Waivers and releases of specified claims and 
        injuries by the United States on behalf of the Tribe 
        and by the Tribe itself applicable to claims for, and 
        injuries to, water rights in the Snake River Basin 
        (except as otherwise provided in the Agreement), and 
        waivers and releases by the Tribe of specified 
        categories of claims against the United States, 
        provided that the waivers and releases by the Federal 
        government and the Tribe ``shall take effect and be 
        permanent'' once the Agreement becomes effective and 
        enforceable under Section IV.L. of the Agreement; \8\
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    \8\ Section IV.L. sets forth a list of 6 events or actions that 
must take place before the Agreement becomes effective: execution of 
component agreements, Congressional approval of the Agreement and 
authorization of Federal expenditures, State legislature approval of 
the Agreement and enactment of required state legislation, the Nez 
Perce Tribe's approval of the Agreement, the SRBA court entering a 
judgment and decree incorporating the Agreement, and issuance of the 
biological opinions anticipated by the ``upper Snake component'' of the 
Agreement.
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          --Reservations of certain claims by the Tribe; and
          --A provision stating that a breach of one component 
        of the Agreement does not constitute a breach of any 
        other component of the Agreement.

Need for legislation

    As noted above, the Agreement by its terms contemplates 
that Congress approve the Agreement as one of the conditions to 
its becoming effective. Additionally, many provisions of the 
Agreement, imposing various obligations on the United States, 
including the contribution of appropriated funds, could not 
otherwise be accomplished without the enactment of Federal 
legislation.

Summary of provisions of substitute amendment

    The Committee held a hearing on S. 2605 on July 20, 2004, 
and received testimony from representatives of the Department 
of Interior, the Nez Perce Tribe, the State of Idaho and 
private water users. The bill was considered for report to the 
Senate at a business meeting held on September 22, 2004, at 
which time the Committee approved an amendment in the nature of 
a substitute. The approved substitute amendment represented the 
efforts of Majority and Minority Committee staff, after working 
with the various parties and interests, to resolve issues 
raised during the July 20 hearing.
    The substitute amendment would make both technical and 
substantive changes to S. 2605 as introduced, including 
clarification and protection of allottee rights in section 7, 
the scheduling of annual appropriations in section 8(h), the 
tolling of certain limitation periods and time-based equitable 
defenses to certain tribal claims in section 10, and a revision 
in section 11(b)(1) clarifying that the Act is not intended to 
amend, supersede or preempt any Federal, state or tribal laws 
or interstate compacts that pertain to the Snake River Basin, 
``[s]ubject to section 9(b)(3),'' which would exempt the use of 
the Salmon and Clearwater River Basin Habitat Fund established 
in section 9(a) from section 6(d)(1) of the Endangered Species 
Act.
    Section 1 of the substitute amendment sets forth the short 
title of the Act.
    Section 2 of the substitute amendment states the purposes 
of the Act, including resolution of longstanding issues in the 
Snake River Basin Adjudication; a fair, equitable, and final 
settlement of all claims of the Tribe, its members and 
allottees and the United States on their behalf to the water of 
the Snake River Basin within Idaho; the authorization, 
ratification and confirmation of the Agreement; and the 
authorization of actions and appropriations necessary for the 
United States to meet its obligations under the Agreement and 
the Act.
    Section 3 of the substitute amendment sets forth the 
defined terms used throughout the Act.
    Section 4(a) of the substitute amendment states that 
``Except to the extent that the Agreement conflicts with the 
provisions of this Act, the Agreement is approved, ratified, 
and confirmed.'' This language should not be interpreted to 
mean that the Agreement has been ``deemed'' by Congress to be 
in compliance with the requirements of the Endangered Species 
Act (ESA), the Clean Water Act (CWA) or any other Federal 
environmental law, or to somehow restrict the rights of any 
person or organization to pursue remedies otherwise available 
under Federal environmental laws such as the CWA and the ESA-
including remedies under the ESA to challenge any of the 
biological opinions by NOAA Fisheries or U.S. Fish and Wildlife 
Service that are contemplated under the terms of the Agreement. 
In other words, the Committee does not intend this language to 
support an inference that Congress has made a determination 
that the Agreement meets the requirements of the Endangered 
Species Act or other Federal environmental laws.\9\
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    \9\ However, the Committee notes that section 9(b)(3) of the 
substitute amendment sets forth an express exemption of the Salmon and 
Clearwater River Basins Habitat Fund from section 6(d)(1) of the 
Endangered Species Act, and that this exemption must be given effect.
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    Similarly, the Committee does not intend the language of 
section 4(a) of the substitute amendment to create a valid or 
enforceable obligation on the part of the United States to 
enact Federal legislation, or on the part of any agency or 
official thereof to seek the enactment of such legislation, 
with regard to the provision in section III.A. of the Agreement 
stating that ``the parties will use their best efforts to seek 
enactment of state and federal legislation consistent with the 
terms of the general conditions to provide necessary ESA and 
CWA protection for this component of the agreement and to 
provide statutory authority necessary to implement the 
agreement'' or with regard to the similar provision in section 
IV.A. of the Agreement.\10\
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    \10\ Additionally, although the Agreement by its terms would create 
certain binding obligations on the part of United States and other 
parties once all conditions precedent thereto have been met, the 
Committee does not intend that the language in section 4(a) cause the 
Agreement itself, or any provision in the Agreement, to become Federal 
statutory law.
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    Section 5(a) of the substitute amendment directs the 
Secretary of Interior to take such actions consistent with the 
Agreement, the Act and water law of the State of Idaho as are 
necessary to carry out the Snake River Flow Component of the 
Agreement. Subsection (b) authorizes an appropriation of 
$2,000,000 for a 1-time payment to local governments to 
mitigate impacts resulting from the change of use of water 
acquired by the Bureau of Reclamation pursuant to the 
Agreement, and directs how those funds are to be distributed.
    Section 6 of the substitute amendment addresses the 
transfers of the BLM lands selected by the Tribe pursuant to 
the Agreement. Subsection (a)(1) provides that any such land 
shall be transferred to the Bureau of Indian Affairs in trust 
for the Tribe; (a)(2) states that the lands must be selected 
from a certain specified list of available lands; and (a)(3) 
limits the total appraised value of the lands to $7,000,000. 
Subsection (b) states that any use of the transferred land 
under a lease or permit with the BLM will remain in effect 
until its expiration unless the holder of the lease or permit 
requests an earlier termination, and that amounts accruing 
under such leases or permits from sales, bonuses, royalties and 
rentals shall be made available to the Tribe.
    Section 7 of the substitute amendment states that the 
consumptive use reserved water right \11\ shall be held in 
trust by the United States for the benefit of the Tribe and 
allottees as set forth in that section and shall be subject to 
25 U.S.C. 381, and that the springs and fountains water right 
of the Tribe shall be held in trust by the United States for 
the benefit of the Tribe. This section of the amendment 
includes a number of provisions that are intended to protect 
the rights of allottees to a portion of the consumptive use 
reserved water right and clarify the nature of their rights: 
the allottees are ``entitled to a just and equitable allocation 
of the consumptive use water right for irrigation purposes.'' 
This subsection also states that the Tribal water code that 
must be enacted to manage, regulate and control the consumptive 
use reserved water right must include a due process system for 
considering and determining any allottee's request for an 
allocation of such water for irrigation purposes on allotted 
land. Any provision of the water code (or amendments to the 
code) that affect the rights of allottees must be approved by 
the Secretary before they become valid.
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    \11\ The consumptive use reserved water right is defined in section 
3(3) as ``the Federal reserved water right of 50,000 acre-feet per 
year, as described in the Agreement, to be decreed to the United States 
in trust for the Tribe and the allottees, with a priority date of 
1855.''
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    Subsections (c) and (d) of section 7 of the substitute 
amendment set forth the requirements for a claimant seeking to 
challenge an allocation of water under the Tribal water code, 
by petitioning the Secretary after exhausting remedies 
available under that water code and other Tribal law. 
Subsection (e) states that the water rights and other benefits 
granted or confirmed under the Agreement are in full 
satisfaction of all claims for water rights and injuries to 
water rights of allottees, that any entitlement of an allottee 
to water under Federal law shall be satisfied out of the 
consumptive use reserved water right, and that the water 
rights, resources and other benefits provided under the Act are 
a complete substitution for any rights and claims that might 
have been held or asserted by allottees within the exterior 
boundaries of the Nez Perce Indian Reservation before the 
enactment of the Act. Subsection (g) authorizes the Tribe to 
lease its consumptive use water right through the state water 
bank without approval of the Secretary, and states that the 
United States will have no trust or other obligation to 
monitor, administer, or account for any funds received by the 
Tribe under any such lease.
    Section 8 of the substitute amendment establishes the Nez 
Perce Tribe Water and Fisheries Fund and the Nez Perce Domestic 
Water Supply Fund, provides for the management and investment 
of the two funds by the Secretary, and sets out the 
requirements that must be met in order for the Tribe to 
withdraw amounts in the funds, including the adoption of a 
tribal management plan and its approval by the Secretary 
pursuant to the American Indian Trust Fund Management Reform 
Act of 1994 (25 U.S.C. 4001 et seq.), or of an expenditure plan 
approved by the Secretary for amounts not withdrawn from the 
funds. Subsection (g) prohibits per capita payments to Tribal 
members out of the funds, and subsection (h) sets forth 
schedules of annual authorizations for appropriations to the 
two funds.\12\ The amounts in the funds may not be withdrawn or 
expended until the waivers and releases under section 10(a) 
take effect.
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    \12\ Subsection (h) authorizes a schedule of appropriations 
totaling $60,100,000, over the course of fiscal years 2007 through 
2013, to be used to reimburse the Tribe for the cost of certain 
measures undertaken to benefit protected fish species in the Salmon and 
Clearwater River Basins, and totaling $23,000,000, over the course of 
fiscal years 2007 through 2011, to defray the costs of constructing 
water and sewer facilities on the reservation.
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    Section 9 of the substitute amendment establishes the 
Salmon and Clearwater River Basins Habitat Fund and, within 
that Fund, two separate accounts, one administered by the 
Secretary for use by the Tribe and the other administered by 
the Secretary and provided to the State in accordance with the 
Agreement. Section 9 also sets forth the authorized uses of the 
Fund and directs the Secretary to release funds in the account 
administered for the State in accordance with section 6(d)(2) 
of the Endangered Species Act, but exempts uses of amounts in 
the Salmon and Clearwater River Basin Fund from section 6(d)(1) 
of the that Act.\13\
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    \13\ The two accounts described in section 9 are both part of the 
same fund, and by authorizing appropriations to the accounts in the 
same subsection, it is the Committee's intent that they be appropriated 
proportionately, with no disparate funding levels or disparate rates of 
appropriation to the accounts.
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    Section 10 of the substitute amendment provides for waivers 
and releases by the United States on behalf of the Tribe and 
the allottees and by the Tribe itself with respect to specified 
claims to water rights within the Snake River Basin, injuries 
to those rights and claims for specified injuries to treaty 
rights of the Tribe, all as described in section 10(a). 
Subsection (a)(5) states that the waivers and releases take 
effect on the date that the Secretary publishes a findings in 
the Federal Register that the actions set forth in section IV.L 
of the Agreement have been completed (including issuance of a 
judgment and decree by the SRBA court from which no further 
appeal may be taken) and have been determined by the United 
States on behalf of the Tribe and allottees, the Tribe, and the 
State to be consistent in all material respects with the 
Agreement. Subsection (b) sets forth the terms and requirements 
of a waiver and release that the Tribe must execute in favor of 
the United States in consideration of the performance by the 
United States of all actions required under the Agreement and 
the Act, as well as a provision that tolls all periods of 
limitation and time-based equitable defenses until the earlier 
of the date on which amounts authorized under sections 8(h) and 
9(d)(1) are appropriated, or October 1, 2017. Subsection (c) 
states that the Tribe retains all rights not specifically 
waived or released in the Agreement or the Act, that the 
Agreement and Act do not constitute a waiver by the Tribe of 
any claim against the United States arising from the 
construction and operation of the Dworshak Project, other than 
those specified in subparagraphs (A) and (B) of subsection 
(b)(1),\14\ and that the Agreement and Act do not preclude the 
Tribe or allottees, or the United States as trustee of the 
Tribe or allottees, from purchasing or otherwise acquiring 
water rights in the future to the same extent as any other 
entity in the State.
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    \14\ The Committee is aware of the Tribe's concern, expressed in 
testimony at the hearing on S.2605, that the Act should not be 
interpreted as a waiver of its claims for destruction of treaty 
hunting, gathering and fishing areas inundated as a result of the 
construction of the Dworshak Dam and Reservoir on the Nez Perce Indian 
Reservation. Although the Committee takes no position here on the 
merits of those claims, the Committee does expect the Department of 
Interior and the Department of Justice to attempt to work with the 
Tribe to devise a mechanism or process for addressing the Tribe's 
claims relating to the Dworshak Dam and Reservoir that are not 
specifically waived under the provisions of S.2605.
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    Section 11 of the substitute amendment sets forth several 
miscellaneous provisions, including reservations of rights not 
expressly granted, recognized or relinquished by the Agreement 
or the Act. Other disclaimers are found in subsection (b)(1), 
providing that, subject to section 9(b)(3), nothing in the Act 
amends, supersedes, or preempts any State law, Federal law, 
Tribal law, or interstate compact that pertains to the Snake 
River Basin; subsection (b)(2), clarifying that the Act is not 
intended to establish any standard for quantifying Federal 
reserved water rights or any other Indian water claims in any 
other judicial or administrative proceeding; subsection (b)(3), 
stating that nothing in the Act or Agreement affects the water 
rights or claims or other treaty rights of other Indian tribes; 
subsection (c), stating that nothing in the Agreement or Act 
impairs treaty rights of the Tribe except to the extent 
expressly provided in the Agreement or Act; and subsection (d), 
stating that nothing in the Agreement or Act quantifies or 
affects the water rights, claims, entitlements to water or any 
other treaty right of any Indian tribe other thanthe Tribe. 
Subsection (e) relates to flow augmentation with water stored in the 
Dworshak Reservoir, and subsection (f) states that nothing in the 
Agreement or Act restricts, enlarges or otherwise determines the 
subject matter jurisdiction of any Federal, State or Tribal court; that 
the United States consents to jurisdiction in a proper forum for 
purposes of enforcing the provisions of the Agreement; but that nothing 
in subsection (f) confers jurisdiction on any State court to enforce 
Federal environmental laws regarding duties of the United States or 
conduct judicial review of Federal agency action. Nothing in subsection 
(f) should be read or construed as altering existing law regarding pre-
enforcement review of Federal agency action.

                          LEGISLATIVE HISTORY

    S. 2605 was introduced by Senator Craig on June 24, 2004, 
with Senator Crapo as a cosponsor, and referred to the 
Committee on Indian Affairs. On July 20, 2004, the Committee 
held a hearing on the bill, and at a business meeting held on 
September 22, 2004, the Committee ordered that the bill, with 
an amendment in the nature of a substitute, be reported 
favorably to the Senate with a recommendation that the bill, as 
amended, do pass.

                        COMMITTEE RECOMMENDATION

    The Committee on Indian Affairs, in an open business 
session on September 22, 2004, approved the amendment in the 
nature of a substitute to S. 2605 and ordered S. 2605, as 
amended, to be reported to the Senate with a favorable 
recommendation that it be passed.

                      COST AND BUDGETARY CONCERNS

    The costs estimate for S. 2605, as provided by the 
Congressional Budget Office, is set forth below.

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, October 7, 2004.
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 S. 2605, the Snake 
River Water Rights Act of 2004.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mike Waters.
            Sincerely,
                                         Elizabeth Robinson
                               (For Douglas Holtz-Eakin, Director).
    Enclosure.

S. 2605--Snake River Water Rights Act of 2004

    Summary: S. 2605 would ratify an agreement between the Nez 
Perce Tribe of Idaho, the United States, and Idaho to resolve 
water rights claims in the Snake River Basin made by the tribe. 
The bill would increase the amount of water used for the 
benefit of wildlife, transfer certain federal lands to the 
tribe, authorize appropriations to trust funds designed to help 
the tribe manage aquatic resources, build a domestic water 
supply system, and protect and restore aquatic habitats. CEO 
estimates that implementing S. 2605 would cost $58 million over 
the 2005-2009 period, assuming appropriation of the necessary 
amounts. CBO estimates that the bill would authorize the 
appropriation of $61 million after 2009 (all of that amount 
except for estimated interest earnings on a trust fund is 
specified by the bill).
    Enacting S. 2605 could affect direct spending by reducing 
potential offsetting receipts for leases of federal land that 
would be transferred to the tribe. CEO estimates that any such 
effects would be insignificant.
    S. 2605 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments. Any costs or duties imposed by this bill on state, 
local, or tribal governments would be those assumed by them 
voluntarily as parties to the agreement.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 2605 is shown in the table below. The 
costs of this legislation fall within budget functions 300 
(natural resources and environment) and 450 (community and 
regional development).

----------------------------------------------------------------------------------------------------------------
                                                                       By fiscal year, in millions of dollars--
                                                                    --------------------------------------------
                                                                       2005     2006     2007     2008     2009
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Mitigation Payment:
    Specified Authorization Level..................................        2        0        0        0        0
    Estimated Outlays..............................................        2        0        0        0        0
Payments to Trust Funds:
    Estimated Authorization Level..................................        0        0       21       21       21
    Estimated Outlays..............................................        0        0       17       19       20
                                                                    --------------------------------------------
Total Changes:
    Estimated Authorization Level..................................        2        0       21       21       21
    Estimated Outlays..............................................        2        0       17       19       20
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate CBO assumes the bill 
will be enacted early in fiscal year 2005 and that the amounts 
authorized to be appropriated will be provided for each year.

Mitigation payment

    The bill would authorize the appropriation of $2 million to 
certain local governments in Idaho to mitigate the effect of 
decreased water-flows resulting from the use of over 400,000 
acre-feet of water a year in the Snake River Basin to benefit 
wildlife.

Payments to trust funds

    This bill would create three Indian trust funds for the Nez 
Perce Tribe related to activities in the Snake River Basin. The 
Nez Perce Tribe Water and Fisheries Fund would be authorized to 
be appropriated about $20 million over the 2005-2009 period, 
and it could be used by the tribe to acquire lands and water 
rights and to restore and improve fish and agricultural 
resources. Under the bill the tribe would use the Nez Perce 
Tribe Domestic Water Supply Fund, to develop and to build a 
domestic water and sewer system. The bill would authorize the 
appropriation of $19 million to that fund over the 2005-2009 
period. The third fund under the bill would be the Salmon and 
Clearwater River Basins Habitat Fund. The Habitat Fund would 
consist of two separate accounts, one for the benefit of the 
tribe, and the other for thebenefit of Idaho. The bill would 
authorize the appropriation of $24 million over the 2005-2009 period 
for this fund.
    Payments to certain trust funds that are held and managed 
in a fiduciary capacity by the federal government on behalf of 
Indian tribes are treated as payments to a nonfederal entity. 
Based on information from the Department of the Interior (DOI), 
CBO expects that the Fisheries and Water Supply Funds would be 
treated in this manner. In addition, a specified part of the 
third trust fund would also receive that budgetary treatment. 
As a result, CBO expects that the entire amount appropriated to 
these funds for the benefit of the tribe would be recorded as 
budget authority and outlays in the year it is appropriated. 
Because these accounts would be nonbudgetary, the subsequent 
use of such accounts by the tribe would not affect federal 
outlays.
    Because part of the Salmon and Clearwater River Basins 
Habitat Fund would not be held in trust for a tribe, it would 
be treated as a federal fund. Thus, the initial deposits into 
this account therefore would not affect the budget, however any 
subsequent use of the funds by Idaho would have a budgetary 
impact.

Additional provisions

    The bill would allow the Nez Perce tribe to choose certain 
land to be held in trust for the tribe from among 11,000 
federal acres on or near the reservation. Based on information 
from the DOI, CBO estimates the land likely to be chosen has 
insignificant mineral value and timber value of about $6 
million. CBO expects the loss of potential federal receipts 
from transferring this land to the tribe would be insignificant 
because there are no current or planned timber leases for any 
of the land. There are currently 43 grazing leases on the 
affected lands, and the offsetting receipts (a credit against 
direct spending) from these leases are less than $1,000.
    Intergovernmental and private-sector impact: S. 2605 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments. Any costs or duties imposed by this bill on 
state, local, or tribal governments would be those assumed by 
them voluntarily as parties to the agreement.
    Estimate prepared by: Federal Costs: Mike Waters; Impact on 
State, Local, and Tribal Governments: Marjorie Miller; and 
Impact on the Private Sector: Selena Caldera.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no executive communications 
relating to S. 2605.

               REGULATORY AND PAPERWORK IMPACT STATEMENT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires that each report accompanying a bill evaluate 
the regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that the 
regulatory and paperwork impacts of S. 2605 will be minimal.

                        CHANGES IN EXISTING LAW

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee finds that the 
enactment of S. 2605 will not effect any changes in existing 
law.


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