[Senate Report 117-93]
[From the U.S. Government Publishing Office]
Calendar No. 306
117th Congress } { Report
SENATE
2d Session } { 117-93
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TECHNICAL CORRECTION TO THE SHOSHONE-PAIUTE TRIBES OF THE DUCK VALLEY
RESERVATION WATER RIGHTS SETTLEMENT ACT OF 2021
_______
March 15, 2022.--Ordered to be printed
_______
Mr. Schatz, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 648]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (S. 648), to amend the Omnibus Public Land Management Act
of 2009 to make a technical correction to the water rights
settlement for the Shoshone-Paiute Tribes of the Duck Valley
Reservation, and for other purposes, having considered the
same, reports favorably thereon, with an amendment, and
recommends that the bill (as amended) do pass.
PURPOSE
The purpose of S. 648 is to amend the Omnibus Public Land
Management Act of 2009 to authorize payment to the Shoshone-
Pauite Tribes of the Duck Valley Reservation (Tribes) in an
amount equivalent to the unpaid interest that would have
accrued if interest accrual were permitted on the Tribes' water
settlement trust funds deposited between October 1, 2009 and
January 25, 2016.
BACKGROUND AND NEED FOR LEGISLATION
The Duck Valley Reservation encompasses 290,000 acres of
land on the border between Nevada and Idaho, along the East
Fork of the Owyhee River, a tributary to the Snake River. The
Reservation was established by executive order in 1877 and
expanded by executive orders in 1886 and 1910.
The Tribes have consistently used the water sources on the
Reservation for agriculture, livestock, and domestic purposes.
The Reservation, however, lacks sufficient reliable
infrastructure to provide dependable water for irrigation and
drinking, and this lack of water infrastructure has been a
chronic problem since the Reservation was first established in
1877.
Inconsistent natural flows and non-Indian settlement north
and south of the Reservation in Nevada have led to chronic
water stress and conflict with other water users over
generations. Additionally, federal attempts to alleviate these
concerns--including the Bureau of Reclamation's nearby Owyhee
Project and the Bureau of Indian Affairs' Duck Valley Indian
Irrigation Project--further complicated water storage and
economic development on the Reservation.
For example, in the 1930s, the federal government
authorized and built the Bureau of Indian Affairs' Duck Valley
Indian Irrigation Project (Project) to provide water storage
along the East Fork of the Owyhee River for irrigation and
stock water purposes on the Reservation. The Project failed to
provide the Tribes complete relief because the Project's
primary water storage facility, the Wild Horse Reservoir, was
located approximately 15 miles from the Reservation, which
increased potential conflict with off-reservation water users
and reduced the number of acres available to the Tribes for
cultivation and other development opportuntities. Moreover, the
Project did not receive sufficient funding for the Tribes to
perform adequate operation and maintenance activities pursuant
to their self-governance compact. As a result, the Project
facilities fell into disrepair, which led to fallow lands and
sub-optimal production.
In 2009, Congress enacted the Shoshone-Paiute Tribes of the
Duck Valley Reservation Water Rights Settlement (``Settlement
Act'') as part of the Omnibus Lands Act of 2009.\1\ The
Settlement Act quantified the Tribes' disputed water rights,
including federal reserved water rights. The Settlement Act
also (1) resolved the Tribes' claims against the United States
for its failure to protect the Tribes' water rights and natural
resources; (2) assisted the Tribes in their efforts to
rehabilitate the Duck Valley Indian Irrigation Project; and (3)
provided municipal water supplies and other critical water
related projects.\2\
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\1\Pub. L. 111-11 Sec. Sec. 10801-10809 (2009).
\2\81 Fed. Reg. 4063-4064 (Jan. 25, 2016).
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Specifically, the Act authorized a total of $60 million to
two Trust Funds for the Tribes to rehabiliate the Project and
for other activities over a five-year period. Between Fiscal
Years 2010-2014, $45 million was deposited into a Development
Fund\3\ and $15 million was deposited into a Maintenance
Fund.\4\
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\3\Supra, note 1 at Sec. 10807(b)(3).
\4\Supra, note 1 at Sec. 10807(c)(3).
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Pursuant to the legislation, the settlement funds began to
be appropriated on October 1, 2009, and the Department
immediately began investing the funds, earning interest.
Six years later, on January 25, 2016, and pursuant to the
Settlement Act, the Secretary of the Interior published a
notice of findings in the Federal Register making the
settlement enforceable.\5\ In February of 2016, the Department
opined that this ``enforceability date'' was the earliest date
upon which the settlement funds could be invested per the terms
of the settlement.\6\
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\5\81 Fed. Reg. 4063-4064 (Jan. 25, 2016); Pub. L. No. 111-11
Sec. 10808(d).
\6\See Senate Committee on Indian Affairs Legislative Hearing,
October 6, 2021 (Statement of Brian Thomas, Chairman, Shoshone-Paiute
Tribes of the Duck Valley Reservation).
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Accordingly, the Department withdrew all the interest
accrued before the enforceability date and deposited it in the
Federal Treasury.
The Department agrees that prohibiting investment of a
Tribe's settlement funds prior to the enforceability date is
uncommon in Indian water settlements.\7\ In fact, only five
Tribes are subject to this unusual restriction, and the
Department supports reimbursement in all five of these
cases.\8\
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\7\See Senate Committee on Indian Affairs Legislative Hearing,
October 6, 2021 (Statement of Bryan Newland Assistant Secretary for
Indian Affairs, United States Department of the Interior) (stating
``[t]he provision in the Duck Valley Settlement Act prohibiting
investment until an enforceability date is reached is not common in
Indian water rights settlements. It appears in the Duck Valley
settlement and other settlements enacted in 2009-2010, including the
Crow Tribe Water Rights Settlement Act of 2010, Pub. L. No. 111-291;
the Taos Pueblo Indian Water Rights Settlement Act, Pub. L. No. 111-
291; the Aamodt Litigation Settlement Act, Pub. L. No. 111-291; and the
Navajo-Gallup Water Supply Project and Navajo Nation Water Rights, Pub.
L. No. 111-11.'').
\8\See, id. (stating ``[t]he Department supports S. 648 and, as a
matter of equity, would support similar legislation to resolve this
same issue in the four other Indian water rights settlements approved
by Congress in 2009 and 2010'').
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SUMMARY OF THE BILL
As amended, S. 648 authorizes the appropriation of
$5,124,902.12 for deposit into the Settlement Act's Development
Fund. This represents the amount of unpaid interest that would
have accrued if interest accrual were permitted on the Tribes'
water settlement trust funds deposited between October 1, 2009
(when the funds were initially appropriated) and January 25,
2016 (the enforceability date). Funds appropriated under S. 648
will be used to carry out the purposes of the settlement:
rehabilitating and expanding existing irrigation projects,
developing fish and wildlife, conducting water resources
planning, designing and constructing sewer systems, and
carrying out cultural preservation activities, among other
related activities.
SECTION-BY-SECTION ANALYSIS OF S. 648 AS ORDERED REPORTED
Section 1--Short title
This section sets forth the short title as the ``Technical
Correction to the Shoshone-Paiute Tribes of the Duck Valley
Reservation Water Rights Settlement Act of 2021.''
Section 2--Authorization of payment of interest on trust funds
established under settlement
Section 2(1) amends section 10807 of the Omnibus Public
Lands Management Act of 2009 to reorganize the existing text
and include a new subparagraph. The new subparagraph authorizes
$5,124,902.12 to be appropriated for deposit into the
Development Fund.
LEGISLATIVE HISTORY
Senators Cortez Masto, Crapo, Risch, and Rosen introduced
S. 648 on March 9, 2021. Both the Tribes and the Department of
the Interior testified in support of the bill during a
legislative hearing held by the Committee on October 6, 2021.
On November 17, 2021, the Committee met at a duly convened
business meeting to consider S. 648. Senator Cortez Masto
timely filed one amendment in the nature of a substitute, which
replaced the interest formula provision with the specific
unpaid interest amount calculated by the Department of the
Interior and agreed to by the Tribes. The Committee adopted the
amendment and ordered S. 648, as amended, reported favorably by
voice vote.
On March 12, 2021, Representative Amodei (R-NV) introduced
H.R. 1869, the House companion to S. 648. On May 15, 2021, H.R.
1869 was referred to the House Natural Resources Subcommittee
on Water, Oceans, and Wildlife. The Subcommittee held a hearing
on June 29, 2021. No further action has been taken on the bill
in the House to date.
116th Congress. Senators Cortez Masto, Crapo, Risch, and
Rosen introduced a similar bill in the 116th Congress, S. 3754,
on May 18, 2020. No action was taken on the bill. On July 13,
2020, Representative Amodei (R-NV) introduced H.R. 7576, the
House companion to S. 3754. H.R. 7576 was referred to the House
Natural Resources Subcommittee on Water, Oceans, and Wildlife
on August 6, 2020. No further action on the bill took place
prior to adjournment.
COST AND BUDGETARY CONSIDERATIONS
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 10, 2022.
Hon. Brian Schatz,
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. 648, the Technical
Correction to the Shoshone-Paiute Tribes of the Duck Valley
Reservation Water Rights Settlement Act of 2021.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jon Sperl.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
S. 648 would authorize the appropriation of $5.125 million
for the Department of the Interior (DOI) to deposit specified
interest payments into the Shoshone-Paiute Tribes Water Rights
Development Fund. The fund was established in 2009 under the
water rights settlement agreement for the Shoshone-Paiute
Tribes of the Duck Valley Reservation, located in Idaho and
Nevada.
Amounts in the fund are owned by the tribes and are held in
trust by the federal government. Assuming the appropriation of
the authorized amount in 2023, CBO estimates that implementing
the bill would cost $5 million and that the full amount would
be deposited in the fund in that year.
The CBO staff contact for this estimate is Jon Sperl. The
estimate was reviewed by H. Samuel Papenfuss, Deputy Director
of Budget Analysis.
On March 10, 2022, CBO replaced a version of this estimate
that was transmitted earlier the same day. The updated estimate
accounts for the fact that pay-as-you-go procedures do not
apply under the bill and that on-budget deficits would not
increase in the decades after 2032. CBO's estimate of federal
costs is unchanged.
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. 648 will
have minimal impact on regulatory or paperwork requirements.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding S. 648.
CHANGES IN EXISTING LAW
On February 11, 2021, 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.
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