[Senate Report 117-93]
[From the U.S. Government Publishing Office]


                                                     Calendar No. 306
117th Congress     }                           {            Report
                                 SENATE
 2d Session        }                           {            117-93

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



 
 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\
---------------------------------------------------------------------------
    \3\Supra, note 1 at Sec. 10807(b)(3).
    \4\Supra, note 1 at Sec. 10807(c)(3).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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'').
---------------------------------------------------------------------------

                          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.

                                  [all]