[Senate Report 115-314]
[From the U.S. Government Publishing Office]


                                                     Calendar No. 537
115th Congress        }                     {                 Report
                                 SENATE
 2d Session           }                     {                 115-314

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



 
TO ESTABLISH A PROCEDURE FOR THE CONVEYANCE OF CERTAIN FEDERAL PROPERTY 
                     AROUND THE JAMESTOWN RESERVOIR

                                _______
                                

                 August 1, 2018.--Ordered to be printed

                                _______
                                

  Ms. Murkowski, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 2074]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 2074) to establish a procedure for the 
conveyance of certain Federal property around the Jamestown 
Reservoir in the State of North Dakota, 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.

                               AMENDMENT

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. DEFINITIONS.

    In this Act:
          (1) Board.--The term ``Board'' means the Stutsman County Park 
        Board in Jamestown, North Dakota.
          (2) Game and fish headquarters.--The term ``game and fish 
        headquarters'' means the land depicted as ``Game and Fish 
        Headquarters'' on the Map.
          (3) Jamestown reservoir.--The term ``Jamestown Reservoir'' 
        means the Jamestown Reservoir constructed as a unit of the 
        Missouri-Souris Division, Pick-Sloan Missouri Basin Program, as 
        authorized by section 9 of the Act of December 22, 1944 
        (commonly known as the ``Flood Control Act of 1944'') (58 Stat. 
        891, chapter 665).
          (4) Management agreement.--The term ``Management Agreement'' 
        means the management agreement entitled ``Management Agreement 
        between the United States of America and Stutsman County Park 
        Board for the Management, Development, Operation and 
        Maintenance of Recreation and Related Improvements and 
        Facilities at Jamestown Reservoir Stutsman County, North 
        Dakota'', numbered 15-LM-60-2255, and dated February 17, 2015.
          (5) Map.--The term ``Map'' means the map prepared by the 
        Bureau of Reclamation, entitled ``Jamestown Reservoir'', and 
        dated May 2018.
          (6) Permitted cabin land.--The term ``permitted cabin land'' 
        means the land depicted as ``Permitted Cabin Lands'' on the 
        Map.
          (7) Property.--The term ``property'' means any cabin site 
        located on permitted cabin land for which a permit is in effect 
        on the date of enactment of this Act.
          (8) Recreation land.--The term ``recreation land'' means the 
        land depicted as ``Recreation and Public Purpose Lands'' on the 
        Map.
          (9) Secretary.--The term ``Secretary'' means the Secretary of 
        the Interior, acting through the Commissioner of Reclamation.
          (10) State.--The term ``State'' means the State of North 
        Dakota, acting through the North Dakota Game and Fish 
        Department.

SEC. 2. CONVEYANCES TO STUTSMAN COUNTY PARK BOARD.--

    (a) Conveyances to Stutsman County Park Board.--
          (1) In general.--Subject to the management requirements of 
        paragraph (3) and the easements and reservations under section 
        4, not later than 5 years after the date of enactment of this 
        Act, the Secretary shall convey to the Board all right, title, 
        and interest of the United States in and to--
                  (A) the recreation land; and
                  (B) the permitted cabin land.
          (2) Costs.--
                  (A) In general.--Except as provided in subparagraph 
                (B), the Secretary shall convey the land described in 
                paragraph (1) at no cost.
                  (B) Title transfer; land surveys.--As a condition of 
                the conveyances under paragraph (1), the Board shall 
                agree to pay all survey and other administrative costs 
                necessary for the preparation and completion of any 
                patents for, and transfers of title to, the land 
                described in paragraph (1).
          (3) Management.--
                  (A) Recreation land.--The Board shall manage the 
                recreation land conveyed under paragraph (1)--
                          (i) for recreation and public purposes 
                        consistent with the Act of June 14, 1926 
                        (commonly known as the ``Recreation and Public 
                        Purposes Act'') (44 Stat. 741, chapter 578; 43 
                        U.S.C. 869 et seq.);
                          (ii) for public access;
                          (iii) for fish and wildlife habitat; or
                          (iv) to preserve the natural character of the 
                        recreation land.
                  (B) Permitted cabin land.--The Board shall manage the 
                permitted cabin land conveyed under paragraph (1)--
                          (i) for cabins or recreational residences in 
                        existence as of the date of enactment of this 
                        Act; or
                          (ii) for any of the recreation land 
                        management purposes described in subparagraph 
                        (A).
          (4) Haying and grazing.--With respect to recreation land 
        conveyed under paragraph (1) that is used for haying or grazing 
        authorized by the Management Agreement as of the date of 
        enactment of this Act, the Board may continue to permit haying 
        and grazing in a manner that is permissible under the 1 or more 
        haying or grazing contracts in effect as of the date of 
        enactment of this Act.
    (b) Reversion.--If a parcel of land conveyed under subparagraph (A) 
or (B) of subsection (a)(1) is used in a manner that is inconsistent 
with the requirements described in subparagraph (A) or (B), 
respectively, of subsection (a)(3), the parcel of land shall, at the 
discretion of the Secretary, revert to the United States.
    (c) Sale of Permitted Cabin Land by Board.--
          (1) In general.--If the Board sells any parcel of permitted 
        cabin land conveyed under subsection (a)(1)(B), the parcel 
        shall be sold at fair market value, as determined by a third-
        party appraiser in accordance with the Uniform Standards of 
        Professional Appraisal Practice, subject to paragraph (2).
          (2) Improvements.--For purposes of an appraisal conducted 
        under paragraph (1), any improvements on the permitted cabin 
        land made by a permit holder shall not be included in the 
        appraised value of the land.
          (3) Proceeds from the sale of land by the board.--If the 
        Board sells a parcel of permitted cabin land conveyed under 
        subsection (a)(1)(B), the Board shall pay to the Secretary the 
        amount of any proceeds of the sale that exceed the costs of 
        preparing the sale by the Board.
    (d) Availability of Funds to the Secretary.--Any amounts paid to 
the Secretary for land conveyed by the Secretary under this Act shall 
be made available to the Secretary, without further appropriation, for 
activities relating to the operation of the Jamestown Dam and 
Reservoir.

SEC. 3. CONVEYANCE OF GAME AND FISH HEADQUARTERS TO THE STATE.

    (a) Conveyance of Game and Fish Headquarters.--Not later than 5 
years after the date of enactment of this Act, the Secretary shall 
convey to the State all right, title, and interest of the United States 
in and to the game and fish headquarters, on the condition that the 
game and fish headquarters continue to be used as a game and fish 
headquarters or substantially similar purposes.
    (b) Reversion.--If land conveyed under subsection (a) is used in a 
manner that is inconsistent with the requirements described in that 
subsection, the land shall, at the discretion of the Secretary, revert 
to the United States.

SEC. 4. RESERVATIONS, EASEMENTS, AND OTHER OUTSTANDING RIGHTS.

    (a) In General.--Each conveyance to the Board or the State pursuant 
to this Act shall be made subject to--
          (1) valid existing rights;
          (2) operational requirements of the Pick-Sloan Missouri River 
        Basin Program, as authorized by section 9 of the Act of 
        December 22, 1944 (commonly known as the ``Flood Control Act of 
        1944'') (58 Stat. 891, chapter 665), including the Jamestown 
        Reservoir;
          (3) any flowage easement reserved by the United States to 
        allow full operation of the Jamestown Reservoir for authorized 
        purposes;
          (4) reservations described in the Management Agreement;
          (5) oil, gas, and other mineral rights reserved of record, as 
        of the date of enactment of this Act, by, or in favor of, the 
        United States or a third party;
          (6) any permit, license, lease, right-of-use, flowage 
        easement, or right-of-way of record in, on, over, or across the 
        applicable property or Federal land, whether owned by the 
        United States or a third party, as of the date of enactment of 
        this Act;
          (7) a deed restriction that prohibits building any new 
        permanent structure on property below an elevation of 1,454 
        feet; and
          (8) the granting of applicable easements for--
                  (A) vehicular access to the property; and
                  (B) access to, and use of, all docks, boathouses, 
                ramps, retaining walls, and other improvements for 
                which access is provided in the permit for use of the 
                property as of the date of enactment of this Act.
    (b) Liability; Taking.--
          (1) Liability.--The United States shall not be liable for 
        flood damage to a property subject to a permit, the Board, or 
        the State, or for damages arising out of any act, omission, or 
        occurrence relating to a permit holder, the Board, or the 
        State, other than for damages caused by an act or omission of 
        the United States or an employee, agent, or contractor of the 
        United States before the date of enactment of this Act.
          (2) Taking.--Any temporary flooding or flood damage to the 
        property of a permit holder, the Board, or the State, shall not 
        be considered to be a taking by the United States.

SEC. 5. INTERIM REQUIREMENTS.

    During the period beginning on the date of enactment of this Act 
and ending on the date of conveyance of a property or parcel of land 
under this Act, the provisions of the Management Agreement that are 
applicable to the property or land, or to leases between the State and 
the Secretary, and any applicable permits, shall remain in force and 
effect.

                                PURPOSE

    The purpose of S. 2074 is to establish a procedure for the 
conveyance of certain Federal property around the Jamestown 
Reservoir in the State of North Dakota.

                          BACKGROUND AND NEED

    Jamestown Dam and Reservoir is a component of the Bureau of 
Reclamation's (BOR) Garrison Diversion Unit in the State of 
North Dakota and was authorized by the Flood Control Act of 
1944 (58 Stat. 891) for the purposes of irrigation, municipal 
and industrial water supply, flood control, and recreation. 
Federal lands were acquired to construct the project. 
Currently, the Dam and Reservoir services one water service 
contract for irrigation above the reservoir and periodic annual 
water service contracts.
    BOR lands surrounding Jamestown Reservoir include 
recreational lands, wildlife habitat, grazing and haying lands, 
and 71 lots with permitted cabins. All of these Federal lands 
are managed by the Stutsman County Park (Board) under an 
agreement with the BOR and are not necessary to fulfill 
authorized project purposes. In addition, the North Dakota Game 
and Fish Department leases approximately six acres for use as a 
District Headquarters directly from the BOR.
    As part of its management of the BOR lands, the Board 
issues permits for the 71 cabin lots. Some of the permitees now 
use these cabins year-round as primary residences and have made 
improvements to cabin lots at their own expense. In order to 
have certainty about the management of these lands, to secure 
the ability to obtain financing for home purchases and 
improvements, and to address increasing permit fees, permittees 
would like to purchase the lots they currently occupy. 
Additionally, the North Dakota Fish and Game Department has 
expressed interest in assuming ownership of the lands they 
currently lease from BOR.

                          LEGISLATIVE HISTORY

    S. 2074 was introduced by Senator Hoeven on November 2, 
2017. The Subcommittee on Water and Power held a hearing on S. 
2074 on February 28, 2018.
    The Committee on Energy and Natural Resources met in open 
business session on May 17, 2018, and ordered S. 2074 favorably 
reported, as amended.

                        COMMITTEE RECOMMENDATION

    The Senate Committee on Energy and Natural Resources, in 
open business session on May 17, 2018, by a majority voice vote 
of a quorum present recommends that the Senate pass S. 2074, if 
amended as described herein.

                          COMMITTEE AMENDMENT

    During its consideration of S. 2074, the Committee adopted 
an amendment in the nature of a substitute. The amendment 
authorizes the Secretary of the Interior (Secretary) to convey 
recreation land and permitted land to the Board, instead of 
providing the permittee of the property with the first option 
to purchase. The amendment also adds restrictions on the future 
uses of the property and makes numerous clarifications, 
technical corrections, and conforming changes. The amendment is 
further described in the section-by-section analysis.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Definitions

    Section 1 contains definitions applicable to the Act.

Section 2. Conveyances to Stutsman County Park Board

    Subsection (a) directs the Secretary to convey recreation 
and permitted cabin land surrounding the Jamestown Reservoir to 
the Board within five years of the Act's enactment. The 
conveyances by the Secretary are to be made at no cost, but the 
Board is required to pay for survey and administrative-related 
costs. The Board is directed to manage conveyed recreation land 
for recreation and public purposes consistent with the 
Recreation and Public Purposes Act (43 U.S.C. 869 et seq.); 
public access; fish and wildlife habitat; or to preserve the 
land's natural character. Additionally, if conveyed recreation 
land is authorized for haying and grazing by the Management 
Agreement as of the date of the Act's enactment, the Board may 
continue to permit those activities. The Board is directed to 
manage conveyed permitted cabin lands for any of the specified 
recreation land management purposes or for cabins or 
recreational residences in existence as of the date of the 
Act's enactment.
    Subsection (b) provides that the conveyed lands will revert 
to the United States, at the discretion of the Secretary, if 
they are used in a manner that is inconsistent with the Act's 
authorized uses.
    Subsection (c) requires the Board to charge fair market 
value for the sale of any parcel of permitted cabin land, and 
specifies improvements made by the permitee shall not be 
included in the valuation. This subsection also requires the 
Board to pay the Secretary the amount of any sale proceeds that 
exceed the costs of preparing the sale.
    Subsection (d) makes any amount paid to the Secretary for 
conveyed land available to the Secretary, without further 
appropriation, for operation of the Jamestown Dam and 
Reservoir.

Section 3. Conveyance of game and fish headquarters to the State

    Section 3 directs the Secretary to convey all right, title, 
and interested in the game and fish headquarters currently 
leased to the North Dakota Game and Fish Department to the 
State of North Dakota for continued use as a headquarters or 
substantially similar purposes, and provides the Secretary with 
a reversionary interest in the event the land is used in an 
inconsistent manner with these requirements.

Section 4. Reservations, easements, and other outstanding rights

    Subsection (a) specifies that conveyances made pursuant to 
this Act are subject to valid existing rights; operational 
requirements of the Pick-Sloan Missouri River Basin Program, 
including the Jamestown Reservoir; reserved flowage easements; 
Management Agreement reservations; reserved oil, gas and other 
mineral rights; any existing permit, license, lease, right-of-
use, flowage easement, or right-of-way; deed restrictions 
prohibiting any permanent structures below the reservoir 
elevation of 1,454 feet; and the granting of easements for 
access to the property and associated facilities.
    Subsection (b) shields the United States from liability for 
property damage, other than damages caused by an act or 
omission of the United States or an employee, agent, or 
contractor of the United States prior to the Act's enactment. 
This subsection further states that any temporary flooding or 
flood damage to the property shall not be considered a taking 
by the United States.

Section 5. Interim requirements

    Section 5 applies the Management Agreement provisions as 
interim requirements during the time period starting from the 
date of the Act's enactment and ending on the date of the land 
or property conveyance.

                   COST AND BUDGETARY CONSIDERATIONS

    The following estimate of the costs of this measure has 
been provided by the Congressional Budget Office:
    S. 2074 would direct the Bureau of Reclamation (BOR) to 
convey certain federal land and facilities located near the 
Jamestown Reservoir in North Dakota to the Stutsman County Park 
Board. After the property is conveyed, the board could sell the 
property to existing cabin permit holders, and the net proceeds 
of those transactions would be paid to the federal government. 
Those proceeds would be classified as offsetting receipts, 
which are treated as reductions in direct spending, and could 
subsequently be spent by BOR without further appropriation.
    Enacting S. 2074 would increase receipts and the associated 
direct spending; therefore, pay-as-you-go procedures apply. 
However, CBO estimates that the net effect on the budget would 
be negligible. Enacting S. 2074 would not affect revenues.
    Under S. 2074, BOR would convey specified federal property 
to the Stutsman County Park Board within 5 years after 
enactment. Using information from BOR, CBO estimates that 71 
cabin permit holders would purchase lots from the board for an 
estimated $100,000 per lot. CBO estimates that the board would 
transfer the net proceeds of about $7 million to the federal 
government, and those offsetting receipts would be spent for 
annual operations costs and deferred maintenance projects at 
the Jamestown Dam and Reservoir in North Dakota.
    CBO estimates that enacting S. 2074 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    S. 2074 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Aurora Swanson. 
The estimate was reviewed by Leo Lex, 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 S. 2074. 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 S. 2074, as ordered reported.

                   CONGRESSIONALLY DIRECTED SPENDING

    S. 2074, 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

    The testimony provided by the Department of the Interior at 
the February 28, 2018, hearing on S. 2074 follows:

Statement of Alan Mikkelsen, Senior Advisor to the Secretary for Water 
      and Western Resource Issues, U.S. Department of the Interior

    Chairman Flake, Ranking Member King, and Members of the 
Subcommittee, I am Alan Mikkelsen, Senior Advisor to the 
Secretary of Interior for Water and Western Resource Issues, 
and former Deputy Commissioner of the Bureau of Reclamation 
(Reclamation). Thank you for the opportunity to provide the 
views of the Department of the Interior (Department) on S. 
2074, a bill to establish a procedure for the conveyance of 
certain Federal property around the Jamestown Reservoir in the 
State of North Dakota. The intent of the legislation is to 
provide a path for current permitted cabin owners and the 
Stutsman County Park Board to take ownership of certain Federal 
lands, allowing flexible management of the lands to meet local 
needs and alleviate the Department's administrative oversight 
and management of the land.
    Before I discuss the Department's views on S. 2074, I 
wanted to reiterate that during the Secretary Zinke's 
confirmation hearing, he stated to this Committee that he does 
not support the wide-scale sale or transfer of Federal lands. 
Reclamation has technical modifications to recommend to provide 
additional clarity and protections. We look forward to working 
with the sponsor and the Committee to ensure proposals of this 
nature preserve access and recreation for future generations to 
come. The Flood Control Act of 1944 authorized construction of 
Jamestown Dam and Reservoir (Project) as part of the Garrison 
Diversion Unit, Missouri-Souris Division, Pick-Sloan Missouri 
Basin Program. Federal lands were acquired for Project purposes 
which include municipal water supply, irrigation with flood 
control, and recreation benefits. The Project provided 
extensive flood control benefits for Jamestown and downstream 
areas. There are currently two water service contracts 
associated with the project, one with an individual and one 
with an irrigation district downstream of the reservoir.
    The current management agreement between Reclamation and 
Stutsman County Park Board for operation and maintenance of the 
majority of lands around the reservoir includes the area for 71 
permitted exclusive use cabins--30 occupied year-round, and 41 
occupied seasonally (approximately 73 acres), as well as 
additional lands dedicated to recreation and wildlife 
management (approximately 4,421 acres). In addition to lands 
managed by Stutsman County Park Board, Reclamation leases a 6-
acre parcel to the North Dakota Game and Fish Department 
(NDG&F) for their Regional Headquarters. In 2013, Reclamation's 
Dakotas Area Office (DKAO) requested a fair market appraisal of 
the rates for the exclusive use cabins be conducted pursuant to 
the Code of Federal Regulations related to Use of Bureau of 
Reclamation Land, Facilities, and Waterbodies (43 CFR 429). As 
required by Department policy, the appraisals were conducted by 
the Department of the Interior's Office of Valuation Services 
for all reservoirs with exclusive use under the administration 
of DKAO, resulting in the need to raise rates at all areas to 
recover fair market value. The results of the appraisal were 
presented to the respective managing partners in 2016.
    Title transfer can be an important tool to ensure that 
management of lands and other real property is carried out by 
the entities that are best equipped to most effectively manage 
such property. The Administration recently submitted a 
legislative proposal which would address this issue more 
comprehensively which would facilitate title transfer of 
certain Reclamation facilities to non-Federal entities when 
such transfers are beneficial.
    Section 1(b)(2)(A) of S. 2074 provides for the fair market 
value of a property to be determined by a local, third party 
appraiser, valuing the property as unimproved residential 
property, excluding all improvements. The Department believes 
that the property should be valued as-is, inclusive of 
improvements. The Department also recommends clarification of 
this language to ensure the cost for the third-party appraisal 
shall be the responsibility of the permittee(s). The permittees 
should also be made aware that a third-party appraisal would 
have to comply with federal appraisal standards and procedures 
as determined by the Office of Valuation Services.
    Section 1(c)(3) provides conveyance subject to reversion to 
the United States of non-recreation lands managed by the Board 
if no longer used for public access or recreation. As worded in 
S. 2074, this language warrants clarification to ensure the 
Department's interpretation is consistent with the author's 
intent. We suggest simply revising this language to state that 
the lands conveyed (other than those in the cabin permit area 
and the North Dakota State Game and Fish Department 
headquarters area) are to remain available for public use in 
the future, and if it is determined that these areas are no 
longer needed for public access or recreation, then the land is 
subject to reversion to the United States. Given the 
Secretary's commitment to protecting public lands, the 
Department encourages what we believe is a shared intention for 
Stutsman County Park Board to continue to manage the parcels 
with recreational and public interests in mind.
    Section 1(f) of S. 2074 provides that any revenues from a 
sale of Federal land pursuant to this section shall be made 
available to the Secretary, without further appropriation, for 
the costs to the Secretary of carrying out this section, and to 
conduct deferred maintenance activities relating to the dam in 
the Jamestown Reservoir. The Department believes that any such 
revenues should be remitted to the Reclamation fund. In 
addition, because revenues would not be generated until the 
properties are transferred to the permittee, as proposed in the 
bill, Reclamation would need appropriations to complete the 
surveys and appraisals and other pre-sale activities. In 
previous legislation to transfer cabin properties, as well as 
Reclamation's process for Use Authorization requests, it is the 
responsibility of the permittees/requestor to pay for the 
required pre-sale work, including all administrative costs to 
convey Federal property to private individuals/beneficiaries 
rather than placing this burden on the United States. As 
written it appears the United States is responsible for the 
administrative costs and therefore in ``net'' it receives less 
than market value for the land. In accord with our prior 
recommendation to clarify that permittees/requestor pay for 
required pre-sale work, we recommend revising this section to 
clarify that revenues shall be remitted to the Reclamation 
fund.
    Section 1(d)(1) provides liability protection for flood 
damage to the property of a permittee, the Board, or the State 
arising out of any act, omission, or occurrence relating to a 
lot to which a permit applies. As worded, this language does 
not cover the liability for all property, depending on whether 
or not it is related to a lot. We suggest replacing the 
language ``a lot to which a permit applies'' with ``the 
property of a permittee, the Board, or the State'' in order to 
more clearly cover the liability to the United States.
    The Department would be happy to work with the sponsor and 
the Committee to revise the language based on these 
recommendations. In addition, we would urge enactment of the 
Department's title transfer legislative proposal to address 
Reclamation title transfer. Our title transfer legislative 
proposal will streamline the title transfer process, 
potentially allowing appropriate transfers to take place 
without subsequent legislation. This concludes my written 
statement. I am pleased to answer questions at the appropriate 
time.

                        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 as ordered 
reported.

                                  [all]