[Senate Report 111-153]
[From the U.S. Government Publishing Office]
Calendar No. 303
111th Congress Report
SENATE
2d Session 111-153
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TULE RIVER TRIBE WATER DEVELOPMENT ACT
_______
March 2, 2010.--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 H.R. 1945]
The Committee on Energy and Natural Resources, to which was
referred the Act (H.R. 1945) to require the Secretary of the
Interior to conduct a study on the feasibility and suitability
of constructing a storage reservoir, outlet works, and a
delivery system for the Tule River Indian Tribe of the Tule
River Reservation in the State of California to provide a water
supply for domestic, municipal, industrial, and agricultural
purposes, and for other purposes, having considered the same,
reports favorably thereon without amendment and recommends that
the Act do pass.
PURPOSE
The purpose of H.R. 1945 is to require the Secretary of the
Interior to conduct a study on the feasibility and suitability
of constructing a storage reservoir, outlet works, and a
delivery system for the Tule River Indian Tribe of the Tule
River Reservation in the State of California to provide a water
supply for domestic, municipal, industrial, and agricultural
purposes.
BACKGROUND AND NEED
The Tule River Reservation is located in central California
and includes approximately 58,000 acres. The Tribal members
currently rely on springs and groundwater wells for water.
In 1999, the Tule River Indian Tribe, the Tule River
Association, and the South Tule Independent Ditch Company began
negotiations to resolve the Tribe's reserved water rights
claims. These negotiations started even though no litigation to
determine the Tribe's water rights had been initiated. In 2007,
all of the parties who had participated in the negotiations
except the United States entered into the Tule River Tribe
Reserved Water Rights Settlement Agreement. The settlement
agreement quantifies the Tribe's reserved water rights and
provides for the development of a water supply system that
would include a storage reservoir of not more than 5,000 acre-
feet of water, the associated outlet works and a water delivery
system. The system will serve tribal and non-Indian water
users. The parties to the settlement agreement indicate that
there is no local opposition to the settlement.
H.R. 1945 authorizes the Bureau of Reclamation to assess
the feasibility of constructing the water system described in
the settlement agreement. A similar attempt to obtain
legislation to authorize a feasibility study was initiated in
the 110th Congress and the parties have been waiting over two
years since they signed the settlement agreement for an
assessment from the United States regarding the feasibility of
the project. The settlement parties commissioned technical
studies of the proposed water storage project and although
those studies have been reviewed by the Bureau of Reclamation,
additional analysis and investigation would be required before
a feasibility determination could be made. H.R. 1945 does not
authorize any construction and does not settle the Tribe's
water rights. The settlement parties anticipate separate
legislation authorizing the Secretary of the Interior to
execute the settlement agreement and construct the project.
H.R. 1945 prohibits future projects constructed pursuant to the
feasibility study from supplying water for any current or
future casino, lodging, dining, entertainment, or other spaces
that support a gaming activity.
LEGISLATIVE HISTORY
H.R. 1945, sponsored by Representative Nunes, passed the
House of Representatives by a vote of 417-3 on July 8, 2009.
Companion legislation, S. 789, was introduced by Senator
Feinstein on April 2, 2009. The subcommittee on Water and Power
held a hearing on S. 789 on July 23, 2009 (S. Hrg. 111-91). At
its businessmeeting on December 16, 2009, the Committee on
Energy and Natural Resources ordered H.R. 1945 favorably reported.
COMMITTEE RECOMMENDATION
The Committee on Energy and Natural Resources, in open
business session on December 16, 2009, by voice vote of a
quorum present, recommends that the Senate pass H.R. 1945.
SECTION-BY-SECTION ANALYSIS
Section 1 identifies the short title of the act as the
``Tule River Tribe Water Development Act''.
Section 2(a) defines ``Secretary'' as the Secretary of the
Interior, acting through the Commissioner of Reclamation and
``Tribe'' as the Tule River Indian Tribe of the Tule River
Reservation in California.
Section 2(b) requires the Bureau of Reclamation, within two
years of receipt of funding, to complete a feasibility study to
evaluate alternatives, including those to store 5,000 acre-feet
of water, for the provision of domestic, commercial, municipal,
industrial and irrigation water supply for the Tribe and to
report to the Committee on Natural Resources of the House and
the Committees on Energy and Natural Resources and Indian
Affairs of the Senate on the results of the study. Three
million dollars is authorized for the study.
Section 2(c)(1) prohibits future projects constructed
pursuant to the feasibility study from supplying water for any
current or future casino, lodging, dining, entertainment, or
other spaces that support a gaming activity.
Section 2(c)(2) requires that a water supply provided by a
project constructed relating to the feasibility study must be
available to serve the domestic, municipal, and governmental
needs of the Tribe and its members and other commercial,
agricultural, and industrial needs not related to a gaming
activity.
COST AND BUDGETARY CONSIDERATIONS
The following estimate of costs of this measure has been
provided by the Congressional Budget Office:
H.R. 1945--Tule River Tribe Water Development Act
H.R. 1945 would require the Bureau of Reclamation to
conduct a feasibility study to evaluate alternatives for
providing a dedicated water supply for the Tule River Tribe of
California. Assuming appropriation of the authorized amount,
CBO estimates that implementing H.R. 1945 would cost $3 million
over the next two years. Enacting the legislation would not
affect direct spending or revenues.
H.R. 1945 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.
The CBO staff contact for this estimate is Aurora Swanson.
The estimate was approved by Theresa Gullo, 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 H.R. 1945.
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 H.R. 1945, as ordered reported.
CONGRESSIONALLY DIRECTED SPENDING
H.R. 1945, as ordered reported, does not contain any
congressionally directed spending items, limited tax benefits,
or limited tariff benefits as defined in rule XLIV of the
Standing Rules of the Senate.
EXECUTIVE COMMUNICATIONS
Because H.R. 1945 is identical to companion measure, S.
789, the Committee did not request Executive Agency Views. The
testimony provided by the Department of the Interior at the
subcommittee hearing on S. 789 on July 23, 2009 follows:
Statement of Michael L. Connor, Commissioner, Bureau of Reclamation,
Department of the Interior
Madam Chairwoman and Members of the Subcommittee, I am
Michael Connor, Commissioner of the Bureau of Reclamation
(Reclamation). I am pleased to provide the views of the
Department of the Interior (Department) on S. 789, the Tule
River Tribe Water Development Act. For reasons discussed below,
the Department does not support S. 789.
The proposed legislation would direct Interior ``to conduct
a study on the feasibility and suitability of constructing a
storage reservoir, outlet works, and a delivery system for the
Tule River Indian Tribe of California to provide a water supply
for domestic, municipal, industrial, and agricultural purposes,
and for other purposes.'' The Act would authorize $3 million
for Reclamation to conduct a feasibility study to be completed
within 2 years after funds are appropriated.
Reclamation delivered testimony on similar legislation
(H.R. 2535) during the 110th Congress on September 25, 2007.
While S. 789 contains some notable changes in Section 2, the
Department's concerns with this bill remain.
Reclamation has not reviewed and is not in a position to
verify the accuracy of the cost estimates upon which
appropriations are authorized in S. 789. Before being asked to
consider a request for authorization or funding of a
feasibility study, Reclamation typically has had an opportunity
to conduct appraisal-level analysis of a project. Without a
completed appraisal level study, the Department believes it is
premature to authorize this feasibility study. The
authorization of $3 million for this study would further
compete with the funding needs of other already authorized
projects. Reclamation generally requires completion of an
appraisal level study before considering whether the project
warrants continuing to a feasibility-level analysis.
Reclamation understands that the Tribe has conducted a
substantial amount of technical, planning, and environmental
work over the past decade; however, Reclamation has not
reviewed these documents nor determined how they may affect the
scope, cost, or schedule of a feasibility study.
In addition, the proposed legislation does not specify a
local non-Federal cost-share partner or a cost share
requirement for the feasibility study. Reclamation typically
shares feasibility study costs with the non-Federal partners
paying 50 percent of study costs. There is ample legislative
precedent which supports this approach. For several years
settlement agreement negotiations have been conducted between
the Tribe, downstream water users, and the Federal negotiation
team regarding the Tribe's federally reserved water rights.
However, not all of the issues between the Tribe and the
Federal negotiating team have been resolved. Moreover, the
Department has not analyzed the settlement needs of the Tribe
and other parties including the question of whether the
proposed storage reservoir, outlet works, and delivery system
are a cost effective approach to accomplishing the goals of the
settling parties. Nor have issues of cost and cost sharing with
other settlement parties been negotiated. Until the Department
has completed its analysis of the proposed settlement, it is
premature to take a position on the scope, schedule, and cost
of the feasibility study that is proposed in this legislation.
Typically, a feasibility study of this size and shape,
including National Environmental Policy Act compliance,
requires several years to complete with significant costs.
Actual costs for this study would be determined after study
authorization and appropriations are provided followed by a
Plan of Study and public scoping processes. The time and cost
to complete the feasibility study and environmental
documentation for the Tule River Tribe Water Development
Project could be shortened if the Tribe's technical and
environmental analyses and documentation are sufficient and
compatible with Federal requirements. The costs of a
feasibility study are significant and may exceed the $3 million
authorization in this bill.
This bill also includes a new subsection 2(c) that would
restrict the use of water from any project ``relating to the
feasibility study'' authorized in this legislation, prohibiting
the use of water supplies provided by this project for the
casino of the Tule River Tribe or any other tribal casino or
facility designed to support gaming activity. The Department
opposes conditioning support for tribal water development upon
restrictions on permissible activities. This bill, if enacted,
will place a restriction upon any project that may be
authorized as part of a comprehensive water rights settlement
even if the exact feasibility study authorized by the bill is
never carried out. We understand that the Tribe supports this
legislation, but we believe that it raises serious precedent
and fairness problems.
Although we do not support this bill, the Department
understands the importance of a reliable water supply and will
continue to work with the Tribe toward this goal in addressing
the issues described above.
That concludes my statement. I would be pleased to answer
any questions.
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 H.R. 1945, as
ordered reported.