[Senate Report 114-245]
[From the U.S. Government Publishing Office]
Calendar No. 443
114th Congress } { Report
SENATE
2d Session } { 114-245
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THE IRRIGATION REHABILITATION AND RENOVATION FOR INDIAN TRIBAL
GOVERNMENTS AND THEIR ECONOMIES ACT (THE IRRIGATE ACT)
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April 27, 2016.--Ordered to be printed
_______
Mr. Barrasso, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 438]
The Senate Committee on Indian Affairs, to which was
referred the bill (S. 438) to provide for the repair,
replacement, and maintenance of certain Indian irrigation
projects, having considered the same, reports favorably with an
amendment and recommends that the bill, as amended, do pass.
PURPOSE
The purpose of S. 438 would authorize funding to begin
addressing deferred maintenance costs of certain Indian
irrigation projects.
NEED FOR LEGISLATION
The bill intends to bring the Bureau of Indian Affairs
(BIA) irrigation systems into the 21st century by addressing
the deferred maintenance needs of these systems. Deferred
maintenance means any maintenance activity that was delayed to
a future date, in lieu of being carried out at the time at
which the activity was scheduled to be, or otherwise should
have been, carried out.
Many tribal economies depend on these water systems and the
BIA has an obligation to repair and maintain those irrigation
systems. This legislation would authorize $35 million a year
beginning in Fiscal Year 2016 to Fiscal Year 2037 for the
rehabilitative needs of the BIA irrigation systems.
BACKGROUND
The Department of the Interior (DOI) initiated several
Indian irrigation projects in the late 1800s and early 1900s
intended as a central component of tribal economies and a means
of implementing the Federal policy of transitioning Indians to
an agrarian lifestyle on reservations.\1\ The history of these
systems is somewhat complex and involved, governed by several
Acts of Congress and court decisions, with extensive
legislative histories.\2\
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\1\``The Federal Government has been involved with Indian
irrigation since the Colorado River Indian Irrigation Project was
authorized in 1867.'' Irrigation Projects in Indian Country: Before the
S. Comm. on Indian Affairs, 113th Cong. (2014) (Statement of Larry
Roberts, Principal Deputy Assistant Secretary for Indian Affairs,
Department of the Interior). The Act of March 2, 1867, 14 Stat. 514,
authorized an appropriation of $50,000 for that irrigation project. See
also http://www.crwua.org/colorado-river/ten-tribes. The Federal
involvement relative to funding may be have been reported as early as
1867, but the Federal policy to move Indians from a nomadic to an
agrarian lifestyle on a reservation began much earlier and led to this
subsequent ``involvement''. See also The Wind River Irrigation Project:
A Class I Overview of Irrigation on the Wind River Reservation, Fremont
County, Wyoming, Blain Fandrich, at 4 (2007).
\2\Irrigation Projects in Indian Country: Before the S. Comm. on
Indian Affairs, 113th Cong. (2014) (Statement of Larry Roberts,
Principal Deputy Assistant Secretary for Indian Affairs, Department of
the Interior). See e.g., The Pine River Irrigation Project was
authorized in 1937: http://www.gpo.gov/fdsys/pkg/BILLS-105s2142es/html/
BILLS-105s2142es.htm; September 22, 1934 Franklin D. Roosevelt:
Executive Order 6853--Withdrawal of Public Lands for Use in Connection
with Duck Valley Indian Irrigation Project http://
www.presidency.ucsb.edu/ws/index.php?pid=76419#ixzz2jq2ujsS9.
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However, these projects have a common thread. While the
Federal Government, through the Indian Irrigation Service, led
the construction and administration of these projects, in most
cases, the construction was not even completed. For some
projects, the work was ``poorly designed and failed to function
properly.''\3\
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\3\The Wind River Irrigation Project: A Class I Overview of
Irrigation on the Wind River Reservation, Fremont County, Wyoming,
Blain Fandrich, at 9 (2007). For example, ``by 1899, Chief Inspector of
Irrigation Walter Graves reported too much money had been expended on
useless ditches on the Wind River Reservation.'' Id. While a
comprehensive plan had been developed and ``new irrigation completion
studies are issued at least once per decade since 1950,'' ultimately,
``none of the proposed construction projects have been implemented.''
Id., at 16.
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A major shift in Federal policy led to an emphasis on
``water storage capacity rather than expanding the water
distribution system,''\4\ with remaining irrigation efforts
focused on maintenance and operation rather than
construction.\5\ According to the DOI, most Indian irrigation
construction activities ended in the 1940s. At that time,
operation and maintenance was then transferred to the BIA.
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\4\Id., at 14.
\5\Id.
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Indian Irrigation Systems. The BIA has 15 irrigation
projects that charge their water users an annual operations and
maintenance fee intended to cover the cost of operating and
maintaining the project.\6\ These Indian irrigation projects
are mostly located on Indian reservations across the West and
deliver water to over 25,000 customers and over 750,000 acres
of land in ten states. While some projects serve lands still
owned solely by Indian tribes or individual Indians, some of
these systems serve both Indian and non-Indians. Those projects
may serve lands that are ``checkerboarded'' meaning some lands
are Indian or tribal-owned while other lands within the same
reservation are owned by non-Indians.
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\6\Blackfeet, Colorado River, Crow, Duck Valley, Flathead, Fort
Belknap, Fort Hall, Fort Peck, Pine River, Pyramid Lake, San Carlos,
Uintah & Ouray, Walker River, Wapato, and Wind River irrigation
projects.
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According to the BIA, ``the asset inventory includes
approximately 6,200 miles of canal and drains and over 58,000
irrigation structures.''\7\ These projects also assist in the
production of over $300 million in gross crop revenues
annually.\8\
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\7\These figures also include the Navajo Indian Irrigation Project
in New Mexico and the Pyramid Lake Irrigation Project in Nevada, both
non-revenue generating irrigation projects. The operations and
maintenances costs for these two projects are ``paid through
appropriations or other means'' but not from user fees. Irrigation
Projects in Indian Country: Before the S. Comm. on Indian Affairs,
113th Cong. (2014) (Statement of Larry Roberts, Principal Deputy
Assistant Secretary for Indian Affairs, Department of the Interior).
\8\BIA Irrigation Accomplishments since the 2006 GAO Report, Bureau
of Indian Affairs, Department of the Interior, at 1 (2013).
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The BIA considers these irrigation systems ``revenue
generating'' because income from agriculture is supposed to be
generated by the BIA irrigation project fees. Most of these
revenue-generating projects receive little to no Federal funds
regardless of whether revenue is generated or not or the
collected fees from irrigators cover the operations and
maintenance costs.
Condition of Indian Irrigation Systems. In 2006, the
Government Accountability Office (GAO) issued a report titled,
``Indian Irrigation Projects: Numerous Issues Need to Be
Addressed to Improve Project Management and Financial
Stability,'' which highlighted the inefficiencies of the
operation, maintenance, and management by the BIA. The 16 BIA
irrigation projects studied in the report, according to the
GAO, are plagued by maintenance issues, structural
deficiencies, and insufficient funding for project
operations.\9\ These maintenance and operations concerns ranged
from basic maintenance items such as the need to clear weed and
tree overgrowth and repair cattle-crossings to more long-term
issues such as the increased demand for water.\10\
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\9\According to the BIA, the Shoshone-Paiute Tribes operate the
Duck Valley Indian Irrigation Project under a self-governance compact.
\10\U.S. Gov't Accountability Office. GAO-06-314, Indian Irrigation
Projects: Numerous Issues Need to Be Addressed to Improve Project
Management and Financial Stability (2006).
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A 2007 report found that, for at least one project, since
the 1930s, ``the irrigation units have remained essentially
unchanged, except for periodic maintenance in order to keep the
system operational, such as the replacement of decayed
structures with like structures at the same locations.''\11\
Remarkably, the GAO Report affirms that this type of finding is
not uncommon for other Indian irrigation projects.\12\
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\11\The Wind River Irrigation Project: A Class I Overview of
Irrigation on the Wind River Reservation, Fremont County, Wyoming,
Blain Fandrich, at 28 (2007).
\12\U.S. Gov't Accountability Office. GAO-06-314, Indian Irrigation
Projects: Numerous Issues Need to Be Addressed to Improve Project
Management and Financial Stability (2006).
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Since 2007, the BIA has been conducting a Condition
Assessment for all 16 irrigation projects, completing 12 by
2013, ``one ongoing through Fiscal Year 2014, with five
remaining to complete.''\13\ For some projects, a critical
deficiency ranking was given. This ranking is given if there is
``a threat to the health and/or safety of the user which may
occur within two years, an advanced deterioration which has
resulted (or will result) in the failure of the feature if not
corrected within two years, an accelerated deterioration of
adjacent or related materials as a result of the deficiency, or
a failure to meet a legislated requirement.''\14\
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\13\BIA Irrigation Accomplishments since the 2006 GAO Report,
Bureau of Indian Affairs, Department of the Interior, at 3 (2013).
These assessments also include the Navajo Irrigation Project because
``the facilities are owned by the BIA and are therefore included in the
BIA's asset management responsibility.'' Id., at 2.
\14\The Wind River Irrigation Project: A Class I Overview of
Irrigation on the Wind River Reservation, Fremont County, Wyoming,
Blain Fandrich, at 7 (2007).
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The Committee held a field hearing in Wyoming on April 20,
2011\15\ and an oversight hearing on Indian irrigation projects
on September 10, 2014.\16\ Testimony received at both hearings
indicated that, aside from the increases to the total amount of
deferred maintenance costs, nothing has changed since the
release of the GAO Report.
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\15\The Wind River Irrigation Project--Issues Arising From and
Contributing to Deferred Maintenance and Other Project Management
Problems: Before the S. Comm. on Indian Affairs, 112th Cong. 1 (2011).
\16\Irrigation Projects in Indian Country: Before the S. Comm. on
Indian Affairs, 113th Cong. 2 (2014).
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Deferred Maintenance Costs. Recent information from the BIA
clearly reflects an upward trend in the deferred maintenance
costs of these systems, growing from $549 million to in excess
of $567 million in only one quarter year alone in Fiscal Year
2014. By the end of Fiscal Year 2015, that amount was in excess
of $576 million.
While the BIA has indicated that the current backlog of
deferred maintenance is estimated to be in excess of $576
million, some Indian tribes estimate that this backlog estimate
may be even higher. Yet, in Fiscal Year 2014, the BIA only
allocated $998,000 to rehabilitate BIA irrigation systems. In
Fiscal Years 2015 and 2016, the BIA provided $2.6 million each
Fiscal Year for rehabilitation.\17\
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\17\The total budget for irrigation operations and maintenance
includes mandatory payments as required by other Federal laws or Court-
ordered payments as well as payments to the Bureau of Reclamation for
the ability to store water using the BOR reservoirs. See Budget
Justifications and Performance Information for Fiscal Year 2017. Bureau
of Indian Affairs, Department of the Interior (2016).
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The Need for the IRRIGATE Act. The Committee is concerned
that, without adequate structural updating, the BIA irrigation
systems will create further inefficiencies to agricultural
production on Indian reservations. The GAO Report highlighted
that the deferred maintenance undermines the projects' long-
term sustainability.\18\ The Assistant Secretary for Indian
Affairs, Kevin Washburn, testified that to effectively address
the deferred maintenance, the BIA ``would need some sort of
assured source of funding.''\19\
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\18\U.S. Gov't Accountability Office. GAO-06-314, Indian Irrigation
Projects: Numerous Issues Need to Be Addressed to Improve Project
Management and Financial Stability (2006).
\19\The IRRIGATE Act: Hearing on S. 438: Before the S. Comm. on
Indian Affairs, 114th Cong. 1 (2015) (statement of Kevin K. Washburn,
Asst. Sec'y for Indian Affairs, Department of the Interior). This
statement echoed Mr. Larry Roberts' testimony before the Committee
(``[W]ithout new funding deferred maintenance remains an enormous
challenge.'') Irrigation Projects in Indian Country: Before the S.
Comm. on Indian Affairs, 113th Cong. at 2 (2014).
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During the legislative hearing on S. 438, the GAO Director
of Natural Resources and Environment, Ms. Anne-Marie Fennell,
testified that, despite the serious backlog, the BIA ``did not
have a plan for how it would obtain funding to fix the deferred
maintenance items.''\20\ The tribal water engineer from the
Wind River Indian Reservation, Mitch Cottenoir, also expressed
concerns regarding the BIA's continued management of irrigation
projects.
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\20\The IRRIGATE Act: Hearing on S. 438: Before the S. Comm. on
Indian Affairs, 114th Cong. 1 at 9 (2015).
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Councilman Charles Headdress, Sr. from the Fort Peck
Assiniboine & Sioux Tribes of Fort Peck Reservation also
indicated that the IRRIGATE Act, S. 438, would increase
productivity of irrigable acres, which in turn, would help
their economy.\21\ Mr. Cottenoir also noted that ``[w]ith
increased funding and rehabilitation of the system, [the]
efficiency rates [of irrigation systems] could be raised.''\22\
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\21\The IRRIGATE Act: Hearing on S. 438: Before the S. Comm. on
Indian Affairs, 114th Cong. 1 at 20, 45-6. (2015) (Statement of Charles
S. Headdress, Sr., Council Member, Fort Peck Assiniboine & Sioux Tribes
of Fort Peck Reservation).
\22\Id. at 49.
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LEGISLATIVE HISTORY
On February 10, 2015, Senator Barrasso introduced S. 438,
along with Senators Tester, Daines, Hatch, and Enzi. Senator
Bennet was later added as a co-sponsor. The bill was referred
to the Committee on Indian Affairs of the Senate.
This bill is similar to the amendment Senator Barrasso
offered to and was included in S. 715, the Authorized Rural
Water Projects Completion Act, reported by the Energy and
Natural Resources Committee of the Senate during the 113th
Congress. No further action was taken on that bill last
Congress.
On March 4, 2015, the Committee on Indian Affairs of the
Senate held a legislative hearing on the bill. On March 18,
2015, the Committee held a duly called business meeting to
consider the bill, among other bills. The Committee then
ordered the bill to be reported favorably, as amended, to the
Senate by voice vote.
Amendments
At the March 18, 2015, Committee business meeting, Senator
Barrasso offered a substitute amendment to S. 438. That
amendment incorporated recommendations from the Administration,
made clarifying and technical changes to the bill, and required
the Secretary of the Interior report to the Committee on the
progress being made to improve the irrigation systems with the
IRRIGATE funds. The substitute amendment was adopted by voice
vote.
In addition, Senator Barrasso offered another amendment
that would extend the deadline for the Secretary to conduct
consultation with affected Indian tribes from 60 to 120 days.
This amendment was based on a late request by the
Administration. The Chairman and Vice Chairman agreed to waive
the 48 hour filing requirement under the Committee rules so
that the amendment could be offered and considered.
Senator Tester offered an amendment that would ensure the
IRRIGATE Act funds expended will not penalize landowners that
use the BIA irrigation systems. Both of these amendments were
considered en bloc and adopted by voice vote.
SECTION-BY-SECTION ANALYSIS OF BILL AS ORDERED REPORTED
Section 1--Short title; Table of contents
Section 1 states that the Act may be cited as the
`Irrigation Rehabilitation and Renovation for Indian Tribal
Governments and Their Economies Act,' or the IRRIGATE Act.
Section 2--Definitions
The bill defines the term ``fund'' to mean the Indian
Irrigation Fund established by the bill. The bill defines the
term ``Indian Tribe'' to have the same meaning as it does in
section 4 of the Indian Self-Determination and Education
Assistance Act. The bill defines the term ``Secretary'' to mean
the Secretary of the Interior.
TITLE I--INDIAN IRRIGATION FUND
Section 101--Establishment
This section establishes the Indian Irrigation Fund that
will consist of amounts deposited in the Fund pursuant to
Section 103 and interest earned to repair certain Indian
irrigation projects.
Section 102--Deposits to fund
This section establishes that $35,000,000 will be deposited
in the Indian Irrigation Fund (Fund) each year from Fiscal Year
2016 to 2037. The funds will come from the reclamation fund
(established by 32 Stat. 388, chapter 1093).
Section 103--Expenditures from fund
This section establishes that the Secretary of the Interior
may expend not more than the sum of $35 million and interest
accrued for each of Fiscal Years 2016 through 2037 to the
extent provided in advance of appropriations acts. The
Secretary may expend more than $35 million if additional funds
are available in the Fund as a result of a failure of the
Secretary to expend all the amounts available in 1 or more
prior years.
Section 104--Investments of amounts
The Secretary of the Treasury may invest excess amounts
from the Fund if there is enough money to meet current
withdrawals. Interest accrued and any sales from such
investments shall be credited to and become a part of the Fund.
Section 105--Transfers of amounts
Amounts to be transferred in the Indian Irrigation Fund
shall be transferred at least monthly from the general fund on
the basis of estimates by the Secretary of the Interior.
Section 106--Termination
At the end of Fiscal Year 2037, the Indian Irrigation Fund
shall terminate and unexpended funds returned to the
reclamation fund.
TITLE II--REPAIR, REPLACEMENT, AND MAINTENANCE OF CERTAIN INDIAN
IRRIGATION PROJECTS
Section 201--Repair, replacement and maintenance of certain Indian
irrigation projects
This section requires that the Secretary of the Interior
create a program to address the deferred maintenance needs of
Indian irrigation projects that pose risks to public or
employee safety or natural or cultural resources and impede
management and efficiency of the Indian irrigation projects.
Section 201 establishes that the Secretary of the Interior
shall transfer $35 million, plus any accrued interest, from the
Fund to the BIA every year from 2016 to 2037 to carry out the
program to address the deferred maintenance needs of Indian
irrigation projects described in Section 202. This section also
ensures that the IRRIGATE funds expended will not penalize
landowners that use the BIA irrigation systems, consistent with
the Federal Government's responsibility for these systems.
Section 202--Eligible projects
This section establishes that the projects eligible for
these funds are Indian irrigation projects in the western
United States and are owned by the Federal Government, managed
and operated by the BIA (or Indian tribes through Indian Self
Determination and Education Assistance Act contracts or
compacts), and have documented deferred maintenance.
Section 203--Requirements and conditions
This section requires that within 120 days after enactment
the Secretary in consultation with the Assistant Secretary for
Indian Affairs and representatives of affected Indian tribes
shall develop and submit to Congress (1) programmatic goals to
carry out the new Indian irrigation program and (2) funding
prioritization criteria to serve as a methodology for
distributing the funds.
Section 204--Study of Indian irrigation program and project management
This section establishes that within 2 years, the
Secretary, acting through the Assistant Secretary for Indian
Affairs, shall complete a study that evaluates options for
improving programmatic and project management of BIA-managed
Indian irrigation projects. The report, submitted to Congress,
will also include recommendations for improvement in each
qualifying project area. Prior to conducting the study, the
Secretary is required to consult with Indian tribes with
jurisdiction over the land on which an eligible project is
located and consider input of landowners served by the project.
This section also requires the Secretary of the Interior to
report every 2 years to Congress on the progress being made to
improve the irrigation systems with the IRRIGATE funds.
Section 205--Tribal consultation and user input
This section establishes that, within 120 days of enactment
and prior to spending any funds on a project, the Secretary
shall consult with impacted Indian tribes and consider the
input of landowners.
Section 206--Allocation among projects
This section establishes that, for every year funding is
available through 2037, each eligible project with critical
maintenance needs qualifies for at least some funding. This
section establishes additional considerations for prioritizing
funding for Indian irrigation projects.
This section limits the total allocation for any individual
project to no more than $15 million during any consecutive
three year period. Notwithstanding the cap, if the full amount
of $35 million cannot be allocated because the costs of the
remaining maintenance activities exceed the cap, the Secretary
may allocate funds in accordance with this title. This section
authorizes the Indian Self Determination and Education
Assistance Act to apply to activities under this section.
COST AND BUDGETARY CONSIDERATIONS
Summary: S. 438 would establish a new Indian Irrigation
Fund and transfer $35 million from the existing Reclamation
Fund into the proposed fund each year over the 2016-2037
period. Those annual deposits, and interest credited to the
unspent balances in the new fund, would be authorized to be
appropriated for maintaining Indian Irrigation projects
operated by the Bureau of Indian Affairs (BIA) in the western
United States.
Based on information from the BIA, CBO estimates that
implementing the legislation would cost $152 million over the
2016-2020 period and about $625 million after 2020. Pay-as-you-
go procedures do not apply to this legislation because it would
not affect direct spending or revenues.
S. 438 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
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By fiscal year, in millions of dollars--
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2016 2017 2018 2019 2020 2016-2020
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CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level..................................... 35 35 36 37 37 180
Estimated Outlays................................................. 18 26 34 37 37 152
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Estimated cost to the Federal Government: The estimated
budgetary effect of S. 438 is shown in the following table. The
costs of this legislation fall within budget functions 300
(natural resources and environment) and 450 (community and
regional development).
Basis of estimate: For this estimate, CBO assumes that S.
438 will be enacted before the end of 2015 and that the
authorized amounts will be appropriated for each fiscal year.
Estimated outlays are based on information from the BIA and on
historical spending patterns for similar projects.
S. 438 would authorize the annual appropriation of $35
million, and any interest credited to the proposed fund, for
maintenance of Indian Irrigation projects owned by the federal
government and operated by the BIA. According to the BIA, the
agency operates 18 Indian Irrigation projects that would be
eligible to receive appropriated funds under the bill. The
total cost to complete the deferred maintenance for all those
projects is currently estimated to be about $600 million. S.
438 funds also could be used for additional maintenance costs
until 2037.
CBO estimates that implementing S. 438 would cost $152
million over the 2016-2020 period and about $625 million
thereafter, assuming appropriation of the authorized amounts.
Pay-As-You-Go considerations: None.
Intergovernmental and private sector impact: S. 438
contains no intergovernmental or private-sector mandates as
defined in UMRA.
Estimate prepared by: Federal Costs: Aurora Swanson; Impact
on State, Local, and Tribal Governments: Melissa Merrell;
Impact on the Private Sector: Amy Petz.
Estimate approved by: Theresa Gullo, Assistant Director for
Budget Analysis.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding S. 438.
REGULATORY AND PAPERWORK IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 438 will
have a minimal impact on regulatory or paperwork requirements.
CHANGES IN EXISTING LAW
In accordance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, S. 438 makes no changes to
existing law.
[all]