[Senate Report 116-189]
[From the U.S. Government Publishing Office]
Calendar No. 397
116th Congress } { Report
SENATE
1st Session } { 116-189
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TO AMEND THE OMNIBUS PUBLIC LAND MANAGEMENT ACT OF 2009 TO MAKE THE
RECLAMATION WATER SETTLEMENTS FUND PERMANENT
_______
December 19, 2019.--Ordered to be printed
_______
Mr. Hoeven, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 886]
[Including cost estimate of the Congressional Budget]
The Committee on Indian Affairs, to which was referred the
bill (S. 886) to amend the Omnibus Public Land Management Act
of 2009 to make the Reclamation Water Settlements Fund
permanent, 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.
PURPOSE
The purpose of S. 886 is to extend the termination date of
the Reclamation Water Settlements Fund for an additional ten
years; clarify Reclamation Water Settlements Fund eligibility
for claims concerning Indian water resources; preserve existing
priorities for Reclamation Water Settlements Fund expenditures
for the initial Reclamation Water Settlements Fund
authorization period; provide sufficient funding and time to
implement the Aamodt Litigation Settlement Act; and authorize a
project study to advance the Tribal water rights settlement
agreed to by the Kickapoo Tribe and the State of Kansas.
BACKGROUND
The Omnibus Public Land Management Act of 2009 established
the Reclamation Water Settlements Fund in the Treasury of the
United States to provide financial assistance to plan, design,
and construct, or rehabilitate water infrastructure to
implement the settlement of claims concerning Indian water
rights resources approved by Congress. Starting in 2020, the
Omnibus Public Land Management Act of 2009 will direct
$120,000,000 in revenue that would otherwise be deposited in
the Reclamation Fund into the Reclamation Water Settlements
Fund. The Reclamation Fund is supported by proceeds from the
sale of public lands; onshore royalties from oil, gas, and
other mineral leases on Federal lands; and repayments from
Bureau of Reclamation projects. Balances in the Reclamation
Fund are not available for Bureau of Reclamation program
expenditures unless Congress appropriates funds in
appropriation bills. Over time, congressional appropriations
from the Reclamation Fund have exceeded receipts into the
Reclamation Fund, which has created a balance of $16.6 billion
as of the end of fiscal year 2018.
At the time of enactment of the Omnibus Public Land
Management Act of 2009, Congress recognized the growing risk
unresolved Indian water rights claims posed to both Indian and
non-Indian water users. Since the Supreme Court holding in
Winters v. United States,\1\ Indian Tribes may pursue claims to
federally reserved water rights. Indian Tribes and non-Tribal
communities often choose to settle these Tribal claims in order
to avoid the time, expense, hostility, and uncertainty of
litigation. Since 1990, it has been the policy of the
Department of the Interior that Indian water rights should be
resolved through negotiated settlements rather than litigation.
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\1\207 U.S. 54 (1908).
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NEED FOR LEGISLATION
Since 1978, 35 Indian water rights settlements have been
finalized with an estimated federal cost of $5.8 billion. In
the last 10 years alone, Congress has authorized seven new
settlements that call for federal expenditures totaling
approximately $2.5 billion. The Bureau of Reclamation's
principal operating account--the Water and Related Resources
Account--currently dedicates 14% of its budget to Indian water
rights settlements. This spending percentage has doubled in the
past 15 years.
Currently, the Department of the Interior has 20
negotiating teams working on new settlements projected to cost
between $2 and $3 billion in the following states: New Mexico,
Idaho, Montana, California, Arizona, Washington, Utah, Oregon,
and Nevada. In addition to current settlement negotiations,
other settlements will require negotiation in future years.
There are over 280 federally recognized tribes in the West
alone (excluding Alaska), and a reliable funding stream will be
needed to support enacted and future water settlements.
The Reclamation Water Settlements Fund will begin expending
funds in 2020 based on the statutorily mandated priority list.
The remaining balance to complete priority settlements, the
additional settlements pending before Congress, along with the
settlements involving current negotiation teams, will exceed
available expenditures from the Reclamation Water Settlements
Fund. With the growing demand, the Committee recognizes the
need to extend the Reclamation Water Settlements Fund by an
additional 10 years. In doing so, the Reclamation Water
Settlements Fund will provide a reliable funding source for
current and future Indian water rights settlements and ensure
the viability of the United States' preference for settling
claims for Indian water rights instead of litigation. The
extension of the Reclamation Water Settlements Fund will also
alleviate mounting pressure on the Bureau of Reclamation's
operating budget.
The Aamodt Litigation Settlement Act (Title VI of the
Claims Resolution Act) authorized the planning, design, and
construction of the Pojoaque Basin Regional Water System in
order to deliver sufficient water to the settlement parties to
implement the May 3, 2006, settlement agreement among the State
of New Mexico; the Pueblos of Nambe, Pojoaque, San Ildefonso,
and Tesuque; the United States; the County of Santa Fe; and the
City of Santa Fe. The settlement agreement, as authorized by
Congress through the Aamodt Litigation Settlement Act, resolved
litigation that began in 1966 regarding claims in the Pojoaque
Basin of New Mexico. The core of the settlement agreement
incorporates the Pueblos' commitment to abstain from making
water priority calls against non-Pueblo users, provided that
the non-Pueblo users agree to specific options outlined in the
settlement agreement.
At the time of enactment, Congress anticipated that the
cost of the Pojoaque Basin Regional Water System would exceed
the amounts authorized by Congress. The Aamodt Litigation
Settlement Act therefore included a provision requiring the
Secretary of the Interior to initiate negotiations with the
settlement parties to determine an appropriate cost share for
the additional contributions in order to ensure that the
Pojoaque Basin Regional Water System would be completed by the
substantial completion deadline. The bill would authorize the
agreement, increase the federal cost share ceiling by an
additional $137,000,000, and extend the substantial completion
deadline by an additional four years.
The Kickapoo Tribe of Kansas and the State of Kansas
executed an agreement on September 9, 2016, in order to achieve
a fair, equitable, and final settlement of claims to water
rights in the Delaware River Basin in Kansas. It is the view of
the Committee that Congress would benefit from a study
conducted by the Secretary of Agriculture, in consultation with
the Secretary of the Interior, of the multipurpose dam
described in the Upper Delaware and Tributaries Watershed Plan,
along with recommendations with respect to any material
alternations or changes to the Upper Delaware and Tributaries
Watershed Plan. The Committee intends to use the results of the
study to consider authorizing the water rights agreed to by the
Kickapoo Tribe and State of Kansas on September 9, 2016.
LEGISLATIVE HISTORY
S. 886 was introduced on March 27, 2019, by Senator Udall,
along with Senators Cortez Masto and Heinrich. The bill was
referred to the Committee on Energy and Natural Resources. On
May 23, 2019, the Committee on Energy and Natural Resources
discharged the bill by unanimous consent. The bill was then
referred to the Committee on Indian Affairs that same day.
On July 17, 2019, the Committee on Indian Affairs met to
consider the bill. The Committee did not hold a legislative
hearing on the bill.
Amendment. One amendment, in the nature of a substitute,
was offered by Senator Udall. The substitute amendment--
Limits the duration of the Reclamation Water
Settlements Fund to an additional 10 years;
Clarifies that the Reclamation Water
Settlements Fund is available only for Indian water
rights settlements;
Ensures settlements that receive
congressional authorization prior to litigation are
eligible for the Reclamation Water Settlements Fund;
Ensures the authorized priority list for
Reclamation Water Settlements Fund distribution ends
after the first 10 years of the Reclamation Water
Settlements Fund, and that all Indian water rights
settlements would be eligible for Reclamation Water
Settlements Fund disbursement during the 10-year
extension;
Extends the termination date for Reclamation
Water Settlements Fund disbursements to 2044;
Establishes a $90 million cap on the amount
of annual allocations any individual settlement can
receive during the additional 10 years;
Allows unused Reclamation Water Settlements
Funds reserved for water rights claims of the Navajo
Nation in the Lower Colorado River basin to be
repurposed toward the Lower Colorado River Basin
Development Fund, with 65% percent allocated to the
Future Water Settlement Subaccount of the Lower
Colorado River Basin Development Fund;
Extends the eligibility date for priority
settlements by two years, which will allow the Gros
Ventre and Assiniboine Tribes of the Fort Belknap
Indian Reservation in Montana and the Navajo Nation in
the Lower Colorado River basin in Arizona maintain
their respective priorities for the first ten years of
the Reclamation Water Settlements Fund, if Congress
enacts their settlements within the extended deadline;
Includes the Aamodt Litigation Settlement
Completion Act of 2019 (S. 1875), as revised to address
concerns raised by the Department of the Interior
during a House hearing on its companion measure (H.R.
3292);
Increases the federal cost ceiling of the
Pojoaque Basin Regional Water System by $137 million,
extends the substantial completion date by four years
(2028), consistent with the ``611(g) Agreement''
reached between the United States and the Aamodt
settlement parties, and makes additional conforming
amendments; and
Includes a provision directing U.S.
Department of Agriculture, in consultation with the
Department of the Interior, to conduct a study of the
Upper Delaware and Tributaries Watershed Plan no later
than two years after the date of enactment, and make
recommendations with respect to any material
alternations or changes to the Upper Delaware and
Tributaries Watershed Plan in order to facilitate
future congressional consideration of the Kickapoo
Tribe Water Rights Settlement Agreement.
The amendment was adopted by voice vote. The bill, as
amended, was then ordered favorably reported to the Senate by
voice vote.
On March 27, 2019, a companion bill was introduced, H.R.
1904, by Representative Grijalva, in the House of
Representatives. The bill was referred to the Committee on
Natural Resources of the House of Representatives. On April 4,
2019, the House Committee on Natural Resources held a
legislative hearing on the bill. No further action was taken.
In the 115th Congress, Senator Udall introduced S. 3168 on
June 28, 2018. The bill was referred to the Committee on Indian
Affairs. On July 18, 2018, the Committee held a legislative
hearing on the bill.
In the Department of the Interior's written testimony, the
July 18, 2018, Alan Mikkelsen stated:
[T]he Department supports Indian water rights
settlements grounded in the policy that negotiated
Indian water rights settlements are preferable to
protracted and divisive litigation as a means of
resolving water rights disputes. The Department looks
forward to working with the Committee and discussing
the best means of achieving future settlements.
SECTION-BY-SECTION ANALYSIS (AS AMENDED)
Section 1--Short title
This section states that the bill may be cited as the
``Indian Water Rights Settlement Extension Act''.
Section 2--Reclamation Water Settlements Fund
This section extends the period in which the Secretary of
the Treasury is required to deposit $120,000,000 in revenues
that would otherwise be deposited in the Reclamation Fund, into
the Reclamation Water Settlements Fund. Under the existing
authority, this period runs from fiscal years 2020 through
2029. This section extends the period in which deposits are
directed to the Fund by an additional ten years.
This section would also extend the period in which the
Secretary of the Interior is authorized to expend amounts from
the Fund by 10 years, extending the period through 2034. The
extension period would not be subject to the existing priority
list. No more than $90 million could be expended for a single
settlement, unless the Secretary of the Interior determines
that allocating greater than $90 million to a settlement would
not adversely affect the funding of other congressionally
approved settlements.
This section would clarify that the Reclamation Water
Settlements Fund is available for claims involving Indian water
resources and remove the requirement that settlement parties
must be in litigation in order to be eligible for the
Reclamation Water Settlements Fund. Section 2(2)(B) also
ensures that trust fund settlements are eligible for the
Reclamation Water Settlements Fund by removing the requirement
that the Bureau of Reclamation must be the agency providing
financial assistance for the planning, design, and construction
of water infrastructure, instead substituting the Secretary of
the Interior.
This section clarifies that the priorities for the use of
the Reclamation Water Settlements Fund are limited to the first
10 years of the Reclamation Water Settlements Fund. Section
2(C)(i)(I)(cc) amends the Arizona settlement priority to
require the Secretary of the Interior to repurpose amounts
otherwise reserved for the Indian water rights settlement
agreement entered into by the State of Arizona with the Navajo
Nation to resolve the water rights claims of the Nation in the
Lower Colorado River basin in Arizona, to the Lower Colorado
River Basin Development Fund, with 65 percent of that amount
deposited into the Future Indian Water Settlement Subaccount.
The repurposing would be available if the Indian water rights
settlement agreement entered into by the State of Arizona with
the Navajo Nation to resolve the water rights claims of the
Nation in the Lower Colorado River basin in Arizona was not
authorized by Congress by December 31, 2021.
Section 2(C)(iii) would extend the priority eligibility
deadline by an additional two years, to December 31, 2021. This
section provides the Secretary of the Interior with the
flexibility to fund settlements with pending enforceability or
substantial completion deadlines, irrespective of the
priorities.
Section 3--Amendments to Aamodt Litigation Settlement Act
This section increases the federal cost ceiling of the
Aamodt Litigation Settlement Act by an additional $137,000,000
and extends the substantial completion date by an additional
four years to June 30, 2028. This section authorizes, ratifies,
and confirms the 611(g) Agreement, an agreement reached between
the United States, the State of New Mexico, the Pueblos of
Nambe, Pojoaque, San Ildefonso, and Tesuque; and the City of
Santa Fe in order to provide sufficient funding to implement
the Aamodt Settlement Agreement and complete construction of
the Pojoaque Basin Regional Water System. This section requires
the Secretary of the Interior to execute the 611(g) Agreement.
Section 4--Kickapoo Tribe
This section requires U.S. Department of Agriculture's
Natural Resource Conservation Service to, in consultation with
the Secretary of the Interior, commence a study of the
multipurpose dam described in the Upper Delaware and
Tributaries Watershed Plan and make recommendations to Congress
on necessary material alternations to the Plan in order to
effectuate the water rights agreed to by the Kickapoo Tribe and
State of Kansas on September 9, 2016.
COST AND BUDGETARY CONSIDERATIONS
The following cost estimate, as provided by the
Congressional Budget Office, dated October 4, 2019, was
prepared for S. 886:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 4, 2019.
Hon. John Hoeven,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 886, the Indian
Water Rights Settlement Extension Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Aurora
Swanson.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The bill would:
Increase the amounts authorized to be
appropriated to implement the Aamodt Water Settlement
by $157 million (including adjustments to account for
inflation)
Appropriate $120 million to the Reclamation
Water Settlements fund each year from 2030 through 2039
Require the Department of Agriculture to
study the plan developed by Kickapoo Tribe to resolve
their water rights claims and to recommend changes to
that plan
Estimated budgetary effects would primarily stem from:
Expenditures from the Reclamation Water
Settlements fund to implement the Aamodt Water
Settlement
Bill summary: S. 886 would increase the maximum authorized
amount available to implement the Aamodt Water Settlement by
$137 million plus expected inflation. The bill also would
appropriate $1.2 billion after 2029 to the Reclamation Water
Settlements fund for future Indian water settlements.\2\
Finally, the bill would direct the Department of Agriculture to
study and recommend changes to the plan developed by the
Kickapoo Tribe to resolve their water rights claims.
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\2\ As of 2019, 36 Indian water settlements have been federally
approved, with total estimated costs--mostly for construction of new
distribution facilities--in excess of $5.8 billion. See Charles V.
Stern, Indian Water Rights Settlements, CRS Report R44148
(Congressional Research Service, April 16, 2019), https://go.usa.gov/
xVGuq.
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Estimated Federal cost: The estimated budgetary effect of
S. 886 is shown in Table 1. The costs of the legislation fall
within budget function 300 (natural resources and environment).
TABLE 1.--ESTIMATED DIRECT SPENDING UNDER S. 886
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By fiscal year, millions of dollars--
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2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2020-2024 2020-2029
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Estimated Budget Authority.................................. 0 0 0 0 0 0 0 0 0 0 0 0
Estimated Outlays........................................... 0 15 17 17 25 28 40 13 2 0 74 157
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The increase in direct spending shown in the table would result in an equivalent decrease after 2029 because the amounts that would be spent for the
Aamodt Water Settlement under the bill would otherwise have been spent after 2029.
S. 886 would also appropriate $120 million to the Reclamation Water Settlements fund each year from 2030 to 2039. The provision would increase direct
spending after 2029 by $1.2 billion plus any interest that would accrue on unspent balances in the fund that also would be available to spend.
Basis of estimate: For this estimate, CBO assumes that S.
886 will be enacted near the end of 2019. S. 886 would increase
the maximum amount that could be spent for the Aamodt Water
Settlement and would require the water distribution facilities
for that settlement to be substantially complete by 2028.
Because the bill does not specify how much would be needed in
each year to meet that schedule, CBO has estimated the
necessary amounts for each year using information from the
Bureau of Reclamation (BOR).
Direct spending: Enacting the bill would increase direct
spending by $157 million over the 2019-2029 period and would
decrease direct spending by an equivalent amount after 2029.
CBO does not estimate any increased budget authority over the
2020-2029 period because the money that would be spent has
already been provided.
In addition, the bill would appropriate $1.2 billion for
Indian water settlements over the 2030-2039 period.
Aamodt Water Settlement. S. 886 would increase the maximum
amount authorized to be spent by BOR to construct water
distribution facilities for the Aamodt Water Settlement by $157
million--$137 million specified in the bill plus an estimated
$20 million to account for inflation. By increasing the amounts
authorized for that project, CBO expects that the $157 million
needed for constructing those facilities would be spent from
the Reclamation Water Settlements Fund without further
appropriation over the next 10 years. That fund was established
to pay for authorized settlements. Under current law, the
Aamodt Water Settlement was identified as a priority project
that will receive amounts from the fund if annual
appropriations are insufficient to meet the requirements of the
settlement.
Under current law, CBO estimates that about $900 million
will be spent from the fund for settlements over the next 10
years and the remaining balance of about $500 million will be
spent after 2029. Under the bill, a portion of that $500
million balance would be needed sooner and would be expended
before 2029 to pay for the Aamodt Water Settlement. CBO
estimates that implementing those provisions would increase
direct spending by $157 million over the 2020-2029 period.
There would be an equivalent decrease in direct spending after
2029.
Reclamation water settlements fund. S. 886 would
appropriate an additional $120 million each year from 2030 to
2039 to fund future Indian water settlements. The bill also
would extend the fund's termination date from 2034 to 2044. CBO
estimates that enacting those provisions would increase direct
spending by at least $1.2 billion; that amount does not include
the interest that would accrue on unspent balances in the fund
that also would be available to spend after 2029 before the
fund is terminated in 2044.
Spending subject to appropriation: S. 886 would direct the
Department of Agriculture and other federal agencies to study
the Upper Delaware and Tributaries Watershed Plan developed by
the Kickapoo Tribe and other interested parties in the state of
Kansas. The agencies would be directed to study the
multipurpose dam described in that plan and recommend changes
as necessary to achieve an equitable water settlement for the
Kickapoo Tribe and other parties. CBO estimates that the cost
of preparing the study would be insignificant.
Pay-As-You-Go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending or
revenues. The net changes in outlays that are subject to those
pay-as-you-go procedures are shown in Table 1.
Increase in long-term deficits: CBO estimates that enacting
S. 886 would increase net direct spending by about $1 billion
over the 2030-2039 period. However, enacting the bill would not
increase on-budget deficits by more than $5 billion in any of
the four consecutive 10-year periods beginning in 2030.
Mandates: None.
Estimate prepared by: Federal Costs: Aurora Swanson;
Mandates: Rachel Austin.
Estimate reviewed by: Kim P. Cawley, Chief, Natural and
Physical Resources; H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
EXECUTIVE COMMUNICATIONS
The Committee has received no communication from the
Executive Branch regarding S. 886.
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. 886 will
have a minimal impact on regulatory or paperwork requirements.
CHANGES IN EXISTING LAW
On February 6, 2019, the Committee unanimously approved a
motion to waive subsection 12 of rule XXVI of the Standing
Rules of the Senate. In the opinion of the Committee, it is
necessary to dispense with subsection 12 of rule XXVI of the
Standing Rules of the Senate to expedite the business of the
Senate.