[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.

                                  
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