[Senate Report 110-506]
[From the U.S. Government Publishing Office]



                                                      Calendar No. 1090
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-506

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

 
 A BILL TO ENHANCE AND PROVIDE TO THE OGLALA SIOUX TRIBE AND ANGOSTURA 
 IRRIGATION PROJECT CERTAIN BENEFITS TO THE PICK-SLOAN MISSOURI RIVER 
                             BASIN PROGRAM

                                _______
                                

  September 25 (legislative day, September 17), 2008.--Ordered to be 
                                printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 2489]

    The Committee on Indian Affairs to which was referred the 
bill (S. 2489) to enhance and provide to the Oglala Sioux Tribe 
and Angostura Irrigation Project certain benefits to the Pick-
Sloan Missouri River basin program, having considered the same, 
reports favorably thereon without amendment and recommends that 
the bill do pass.

                                PURPOSE

    The purpose of S. 2489, the Oglala Sioux Tribe Angostura 
Irrigation Project Modernization and Development Act, is to 
provide funds for the modernization and development of the 
Angostura Unit of the Pick-Sloan Missouri River basin program 
in the State of South Dakota and to establish a trust fund 
benefitting the Oglala Sioux Tribe of the Pine Ridge Indian 
Reservation.

                               BACKGROUND

    The Angostura Unit is an irrigation project operated by the 
Department of the Interior's Bureau of Reclamation and is 
located on the Cheyenne River in southwestern South Dakota. 
Part of the Pick-Sloan Missouri River Basin Project authorized 
under the Flood Control Act of 1944, 33 U.S.C. Sec. 701-1 et 
seq., the Unit includes the 193-foot Angostura Dam, which 
impounds up to 130,000 acre-feet (AF) of water in the Angostura 
Reservoir, and associated irrigation works. This reservoir, 
with a surface area of 4,612 acres, provides water for 
irrigation of up to 12,218 acres of farmland in the Angostura 
Irrigation District through a 30-mile main canal, 39 miles of 
lateral canals, and 21 miles of drains serving individual 
farms. Up to 48,000 AF of water are diverted annually for 
irrigation purposes. Alfalfa and corn are the principal crops, 
along with wheat, barley, oats, pasture, and forage. 
Construction of the Angostura Dam began in 1946 and was 
completed in 1949. The first delivery of irrigation water was 
made in 1953. The Bureau of Reclamation estimates that its 
operation provides $7.1 million of national economic 
development benefits annually in recreation on the reservoir 
and an additional $3.41 million in agriculture.
    The Angostura Unit is located about twenty miles upstream 
of the Pine Ridge Indian Reservation, home of the Oglala Sioux 
Tribe. Notwithstanding the economic benefits provided by the 
Angostura Unit to the people of southwestern South Dakota, the 
operation of the Unit provides no economic development benefit 
to the Oglala Sioux Tribe, which experiencesextremely high 
rates of unemployment and poverty.\1\ Additionally, the operation of 
the Angostura Unit has an adverse impact on water quality and on fish 
and wildlife resources within the Oglala Sioux Tribe's Reservation.\2\
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    \1\Testimony of Oglala Sioux Tribal Councilwoman Valerie Janis, 
Senate Committee on Indian Affairs, June 16, 2004, p. 22.
    \2\Testimony of Oglala Sioux Tribal President John Yellowbird 
Steele, Senate Committee on Indian Affairs, June 16, 2004, p. 20.
---------------------------------------------------------------------------
    A 40-year water service contract between the Bureau of 
Reclamation and the Angostura Irrigation District expired in 
1996. The Final Environmental Impact Statement, Angostura Unit 
Contract Negotiation and Water Management (August 2002) (Final 
EIS) prepared by the Bureau of Reclamation in connection with 
the proposed renewal of that water service contract identified 
four alternatives: (1) The No Action Alternative, continuing 
essentially unchanged the expiring water service contract and 
the management regime of water in the reservoir; (2) the 
Reestablishment of Natural Flows Below the Dam Alternative, 
reestablishing natural flows in the Cheyenne River downstream 
of the dam to the extent possible; (3) the Improved 
Efficiencies Alternative, instituting measures to save 
irrigation water and a public process to determine the use of 
the saved water, and (4) the Reservoir Recreation and Fisheries 
Alternative, giving priority to recreational use and fisheries 
at the reservoir. The Final EIS identified the Improved 
Efficiencies Alternative as the Preferred Alternative.
    The Improved Efficiencies Alternative would increase both 
efficiency of the Angostura Irrigation District's water 
delivery system and on-farm efficiencies.\3\ The measures 
proposed in the Improved Efficiencies Alternative would include 
the lining of canals and laterals, putting laterals into pipes, 
improving water measuring systems, leveling fields, irrigating 
by gated pipe or sprinkler, installing automated turnouts, 
providing education on irrigation practices, and instituting 
Best Management Practices. The water saved by these proposed 
increases in efficiency could be used for recreation, 
fisheries, downstream flows, or other uses. The Improved 
Efficiencies Alternative would save an estimated 1,870-3,200 AF 
of water by improving delivery system efficiencies by 
approximately 5% and another 4,320-6,160 AF by increasing on-
farm efficiencies by approximately 10%.
---------------------------------------------------------------------------
    \3\Id. at p. 23.
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    Section 4 of S. 2489 authorizes the appropriation of 
$4,660,000 to carry out the modernization and improvement of 
the Angostura Unit and associated facilities as set forth in 
the Improved Efficiencies Alternative in the Final EIS, with 
the funding to remain available until expended. It also 
provides that these activities are to be carried out on a non-
reimbursable basis. Finally, section 4 directs the Secretary of 
the Interior to provide for the delivery of the water saved as 
a result of the proposed increased efficiencies to be used for 
fish and wildlife purposes and environmental restoration on the 
Pine Ridge Indian Reservation.
    Section 5 of S. 2489 establishes the Oglala Sioux Tribal 
Development Trust Fund in the Treasury of the United States and 
provides that income from the Fund shall be transferred to the 
Oglala Sioux Tribe and expended pursuant to a Development Plan 
to be developed by the Tribe in consultation with the Secretary 
of the Interior and the Secretary of Health and Human Services 
for the purposes of economic development, infrastructure 
development, the educational, health, recreational, and social 
welfare objectives of the Tribe and its members, or any 
combination of these activities. Section 5 provides that, not 
later than the first day of the 11th fiscal year that begins 
after the date of its enactment, the Secretary of the Treasury 
shall deposit the sum of $92,500,000 from the General Fund of 
the Treasury into the Fund. Section 5 also provides that 
nothing in S. 2489 shall be interpreted or construed to affect 
any right or claim of the Oglala Sioux Tribe, under the Treaty 
of Fort Laramie of September 17, 1851, the Treaty of Fort 
Laramie of April 29, 1868, or under the principles of the 
Winters Doctrine. Finally, section 5 provides that no funds 
distributed to the Tribe pursuant to this act may be 
distributed to any individual member of the tribe on a per 
capita basis.

                          LEGISLATIVE HISTORY

    S. 2489 was introduced by Senator Johnson on December 14, 
2007, with Senator Thune as an original cosponsor, and was 
referred to the Committee on Indian Affairs. The Committee 
heard testimony on the issues addressed by S. 2489 in an 
oversight hearing on November 1, 2007.

                      SECTION-BY-SECTION ANALYSIS

Sec. 1. Short title

    Section 1 states that this Act may be cited as the ``Oglala 
Sioux Tribe Angostura Irrigation Project Modernization and 
Development Act.''

Sec. 2. Findings

    Section 2 states the findings of Congress that: (1) 
Congress approved the Pick-Sloan Missouri River Basin Program 
with the December 22, 1944, enactment of the Flood Control Act 
of 1944, codified at 33 U.S.C. Sec. 701-1 et seq., to promote 
the economic development of the United States, to provide for 
irrigation in regions north of Sioux City, Iowa, to protect 
urban and rural areas from floods of the Missouri River, and 
for other purposes; (2) the Angostura Unit is a component of 
the Pick-Sloan Program and provides for irrigation of 12,218 
acres of productive farm land in South Dakota, as well as 
substantial recreation and fish and wildlife benefits; (3) the 
Commissioner of the Bureau of Reclamation has determined that 
the national economic development benefits of irrigation at the 
Angostura Unit total approximately $3,410,000 annually and the 
national economic development benefits of recreation at 
Angostura Reservoir total approximately $7,100,000 annually; 
(4) the Angostura Unit impounds the Cheyenne River twenty miles 
upstream of the Pine Ridge Indian Reservation in South Dakota; 
(5) the Reservation experiences extremely high rates of 
unemployment and poverty; (6) there is a need for economic 
development on the Reservation; (7) the national economic 
development benefits of the Angostura Unit do not extend to the 
Reservation; (8) the Angostura Unit may negatively affect water 
quality and riparian vegetation in the Cheyenne River on the 
Reservation; (9) modernization of the irrigation facilities at 
the Angostura Unit would enhance the national economic 
development benefits of the Angostura Unit and would result in 
improved water efficiency and environmental restoration 
benefits on the Reservation; and (10) the establishmentof a 
trust fund for the Oglala Sioux Tribe would produce economic 
development benefits for the Reservation comparable to the benefits 
produced at the Angostura Unit and would provide resources necessary 
for the restoration of the Cheyenne River corridor on the Reservation.

Sec. 3. Definitions

    Section 3 provides definitions for the terms ``Angostura 
Unit,'' ``Fund,'' ``Pick-Sloan Program,'' ``Plan,'' 
``Reservation,'' ``Secretary,'' ``Tribal Council,'' and 
``Tribe.''

Sec. 4. Modernizations

            Section 4(a)--Modernization of facilities at Angostura Unit
    Section 4(a) directs the Secretary to conduct modernization 
and improvement of the facilities of the Angostura Unit as 
described in the report entitled ``Final Environmental Impact 
Statement, Angostura Unit Contract Negotiation and Water 
Management (August 2002).'' The cost of this modernization and 
improvement is to be carried out on a non-reimbursable basis.
            Section 4(b)--Delivery of water to Pine Ridge Indian 
                    Reservation
    Section 4(b) states that the Secretary shall provide for 
the delivery of the water saved through the modernization and 
improvement of the facilities of the Angostura Unit as an 
instream flow of the Cheyenne River to be used for fish and 
wildlife purposes and environmental restoration on the 
Reservation.
            Section 4(c)--Authorization of appropriations
    Section 4(c) authorizes the appropriation of $4,660,000 to 
carry out the modernization and improvement of facilities as 
provided for in section 4(a), and provides that these funds are 
to remain available until expended.

Sec. 5. Development

            Section 5(a)--Oglala Sioux Tribal Development Trust Fund
    Subsection 5(a)(1) provides for the establishment in the 
United States Treasury of a fund to be known as the ``Oglala 
Sioux Tribal Development Trust Fund'' that shall consist of any 
amounts deposited into the Fund pursuant to this Title.
    Subsection 5(a)(2) provides that, on the first day of the 
11th fiscal year that begins after the date of enactment of 
this Act, the Secretary of the Treasury shall, from the General 
Fund of the Treasury, deposit into the Fund established under 
subsection (1) the sum of $92,500,000.
    Subsection 5(a)(3) requires the Secretary of the Treasury 
to invest that portion of the Fund that in his judgment is not 
required to meet current withdrawals, and provides that the 
investments are to be made only in interest-bearing obligations 
of the United States. The section further directs that the 
Secretary of the Treasury shall deposit interest resulting from 
the investments into the Fund.
    Subsection 5(a)(4) provides that, not later than the first 
day of the 11th fiscal year after the date of enactment of this 
Act, and on the first day of each fiscal year thereafter, the 
Secretary of the Treasury shall withdraw the aggregate amount 
of interest deposited into the Fund for that fiscal year and 
shall transfer that amount to the Secretary of the Interior for 
use, without fiscal year limitation, in accordance with 
paragraph (a)(4)(C). The section provides that the Secretary of 
the Interior is to use the amounts transferred under subsection 
(a)(4)(A) only for the purpose of making payments to the Oglala 
Sioux Tribe as such payments are requested by the Tribe by 
tribal resolution, but only after the Tribe has adopted a 
tribal development plan (``Plan'') under subsection (a)(6). The 
section provides that the funds so transferred may be expended 
only to carry out projects and programs under that Plan.
    Subsection 5(a)(5) bars the Secretary of the Treasury from 
transferring or withdrawing any amount deposited under 
subsection (a)(2) of this section except as provided in 
subsections (a)(3) and (a)(4)(1) of this section.
    Subsection 5(a)(6) sets forth the requirements for the 
tribal development plan and provides that, not later than 18 
months after the date of enactment of this Act, the governing 
body of the Tribe shall prepare a Plan for the use of the 
payments made to the Tribe under this section. The Plan shall 
provide for the manner in which the Tribe shall expend payments 
made to it under this section to promote economic development, 
infrastructure development, and the educational, health, 
recreational, and social welfare objectives of the Tribe and 
its members, or any combination of these activities. The Tribal 
Council shall make copies of the proposed Plan available to 
tribal members for review and comment before the Plan becomes 
final, in accordance with procedures established by the Tribal 
Council, and may, on an annual basis, revise the Plan. In 
revising the Plan, the Tribal Council shall provide the members 
of the Tribe opportunity to review and comment on any proposed 
revision. The Tribal Council shall consult with the Secretary 
of the Interior and the Secretary of Health and Human Services 
in preparing the Plan and on any revisions to update the Plan. 
The activities of the Tribe in carrying out the Plan shall be 
audited as part of the annual single-agency audit that the 
Tribe is required to prepare pursuant to the Office of 
Management and Budget circular numbered A-133. The auditors 
that conduct this audit shall determine whether funds received 
by the Tribe for the period covered by the audit were expended 
to carry out the Plan in a manner consistent with this section, 
and shall include this determination in the written findings of 
the audit. A copy of the written findings of the audit shall be 
inserted in the published minutes of the Tribal Council's 
proceedings for the session at which the audit is presented to 
the Tribal Council.
    Subsection 5(a)(7) prohibits any portion of any payment 
made under this Act from being distributed to any member of the 
Tribe on a per capita basis.
            Section 5(b)--Eligibility of Tribe for certain programs and 
                    services
    Section 5(b) provides that no payment made to the Tribe 
pursuant to this Act shall result in the reduction or denial of 
any service or program to which, pursuant to Federal law, the 
Tribeis otherwise entitled because of its status as a Federally 
recognized Indian tribe, or to which any individual tribal member is 
otherwise entitled because of that individual's status as a tribal 
member.
            Section 5(c)--Authorization of appropriations
    Section 5(c) authorizes the appropriation of such sums as 
are necessary to pay the administrative expenses of the Fund.
            Section 5(d)--Water rights
    Section 5(d) states that nothing in this Act shall be 
interpreted or construed to affect any rights or claim of the 
Oglala Sioux Tribe under the Treaty of Fort Laramie of 
September 17, 1851, the Treaty of Fort Laramie of April 29, 
1868, or under the principles of the Winters Doctrine.

            COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

    On June 19, 2008, the Committee on Indian Affairs convened 
a business meeting to consider S. 2489, and other measures. 
During the business meeting, the Committee voted, by a voice 
vote, to report S. 2489 favorably, with an amendment, to the 
full Senate with a recommendation that it do pass.

                   COST AND BUDGETARY CONSIDERATIONS

    The cost estimate for S. 2489, as provided by the 
Congressional Budget Office, is set forth below:

S. 2489--Oglala Sioux Tribe Angostura Irrigation Project Modernization 
        and Development Act

    Summary: S. 2489 would authorize the Secretary of the 
Interior, acting through the Bureau of Reclamation, to 
modernize the irrigation facilities of the Angostura Unit in 
South Dakota. In addition, the bill would allow the Oglala 
Sioux Tribe to use any water saved through the modernization 
effort for environmental restoration purposes on the tribe's 
reservation. CBO estimates that modernizing the irrigation 
facilities would cost about $5 million over the 2009-2011 
period, assuming appropriation of the authorized amounts.
    S. 2489 also would compensate the Oglala Sioux Tribe for 
the damage caused by the Angostura Dam operated by the Bureau 
of Reclamation on the Cheyenne River. CBO estimates that 
enacting this provision would have no impact on the federal 
budget over the 2009-2018 period; however, it would increase 
direct spending by $92.5 million in 2020. Enacting the bill 
would not affect revenues.
    S. 2489 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.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 2489 is shown in the following table. 
The costs of this legislation fall within budget functions 450 
(community and regional development) and 300 (natural resources 
and environment).

----------------------------------------------------------------------------------------------------------------
                                                                    By fiscal year in millions of dollars--
                                                              --------------------------------------------------
                                                                2009    2010    2011    2012    2013   2009-2013
----------------------------------------------------------------------------------------------------------------
                                 CHANGES IN SPENDING SUBJECT TO APPROPRIATION\1\

Authorization Level..........................................       5       0       0       0       0         5
Estimated Outlays............................................       1       2       2       0       0         5
----------------------------------------------------------------------------------------------------------------
\1\ Enactment of S. 2489 also would increase direct spending by $92.5 million in 2020.

    Basis of estimate: For this estimate, CBO assumes that S. 
2489 will be enacted at the beginning of 2009 and that the 
authorized amount will be appropriated near the beginning of 
2009.
    This bill would authorize the appropriation of $4.66 
million to modernize the irrigation facilities of the Angostura 
Unit in South Dakota. In addition, the bill would allow the 
Oglala Sioux Tribe to use any water saved through the 
modernization effort for environmental restoration on the 
tribe's reservation. Based on historical spending rates for 
similar projects, CBO estimates that implementing the 
modernization project would cost about $5 million over the 
2009-2011 period, assuming appropriation of the authorized 
funds.
    S. 2489 also would create the Oglala Sioux Tribe 
Development Trust Fund to provide compensation to the Oglala 
Sioux Tribe for the damage caused by the Angostura Dam on the 
Cheyenne River, 20 miles upstream from the tribe's reservation. 
The bill would direct the Secretary of the Treasury to deposit 
a total of $92.5 million into an interest-bearing account to 
benefit the tribes on the first day of the 11th fiscal year 
that begins after the date of enactment. Additional deposits 
equaling the interest earnings on the amounts in the fund would 
be made on October 1st of each year. Depending on when the bill 
is enacted, the initial amount of $92.5 million would not be 
deposited until 2019 or 2020, and deposits of interest would 
not begin until 2020 or 2021. The bill would allow the tribes 
to spend the interest earnings on amounts in the fund pursuant 
to a tribal spending plan.
    Trust funds that are held and managed in a fiduciary 
capacity by the federal government on behalf of Indian tribes 
are treated as nonfederal funds. CBO expects that the entire 
amount deposited to the fund in 2019 or 2020 would be recorded 
as budget authority and outlays in that year. Accordingly, CBO 
estimates that enacting S. 2489 would increase direct spending 
by $92.5 million in 2019 or 2020. Subsequently, the fund would 
be considered nonbudgetary, and any future interest earnings 
and payments would not be considered part of the federal 
budget.
    Intergovernmental and private-sector impact: S. 2489 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments. The Oglala Sioux tribe would benefit from 
access to additional water and from the trust fund authorized 
in this bill. Any costs to that tribe would be incurred 
voluntarily.
    Estimate prepared by: Federal Costs: Leigh Angres and Tyler 
Kruzich; Impact on State, Local, and Tribal Governments: 
Melissa Merrell; Impact on the Private Sector: Corey T. Ponder.
    Estimate approved by: Peter H. Fontaine, Assistant Director 
for Budget Analysis.

                        EXECUTIVE COMMUNICATIONS

    The views of the Administration on S. 2489 as introduced 
are set forth in the Statement of George Skibine, Deputy 
Assistant Secretary for Policy and Economic Development--Indian 
Affairs, United States Department of the Interior, dated June 
18, 2008, and are set forth below:


               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 impact of S. 2489 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. 2489 will not affect any changes in existing 
law.

                                  
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