[Senate Report 118-80]
[From the U.S. Government Publishing Office]
Calendar No. 175
118th Congress } { Report
SENATE
1st Session } { 118-80
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TECHNICAL CORRECTION TO THE SHOSHONE-PAIUTE TRIBES OF THE DUCK VALLEY
RESERVATION WATER RIGHTS SETTLEMENT ACT OF 2023
_______
July 26, 2023.--Ordered to be printed
_______
Mr. Schatz, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 950]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (S. 950) 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. 950 is to amend the Omnibus Public Land
Management Act of 2009 to authorize payment to the Shoshone-
Paiute 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
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 opportunities. 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 Settlement Act authorized a total of $60
million to two Trust Funds for the Tribes to rehabilitate 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\ Pursuant to the Settlement Act, the
settlement funds began to be appropriated on October 1, 2009,
and the Department immediately began investing the funds,
earning interest.
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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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NEED FOR LEGISLATION
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 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\
Accordingly, the Department withdrew all the interest accrued
before the enforceability date and deposited it in the Federal
Treasury.
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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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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. 950 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. 950
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. 950 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 2023.''
Section 2--Authorization of payment of interest on Trust Funds
established under settlement
This section amends section 10807(b)(3) of the Omnibus
Public Lands Management Act of 2009 (P.L. 111-11) to add a new
subparagraph that authorizes an appropriation of $5,124,902.12
for deposit into the Development Fund.
LEGISLATIVE HISTORY
Senators Cortez-Masto (D-NV), Crapo (R-ID), Risch (R-ID),
and Rosen (D-NV), introduced S. 950 on March 22, 2023. The
Senate Committee on Indian Affairs met at a duly convened
business meeting to consider S. 950. Senator Cortez Masto
untimely filed one amendment, which struck language in Section
2 of the bill providing for cost-indexing of the amount to be
deposited in the Development Fund to reflect changes since
January 25, 2016. With the concurrence of the Vice Chair, the
Chairman waived Committee Rule 5(c) and the Committee
considered the amendment, which was adopted. S. 950, as
amended, was ordered reported favorably by voice vote.
117th Congress. Senators Cortez Masto (D-NV), Crapo (R-ID),
Risch (R-ID), and Rosen (D-NV) 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 15, 2022, S. 648 was placed on the Senate Legislative
Calendar. No further action on the bill took place prior to
adjournment.
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 on the bill took place
prior to adjournment.
116th Congress. Senators Cortez Masto (D-NV), Crapo (R-ID),
Risch (R-ID), and Rosen (D-NV) 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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
S. 950 would authorize the appropriation of $5.125 million
for the Department of the Interior to deposit specified
interest payments into the Shoshone-Paiute Tribes Water Rights
Development Fund. The fund was established pursuant to the
Shoshone-Paiute Tribes of the Duck Valley Reservation Water
Rights Settlement Act of 2009 to rehabilitate water
infrastructure projects located on the reservation in Idaho and
Nevada.
The settlement agreement was effective in 2016 and
ownership of the fund was transferred to the tribes and is held
in trust by the federal government. Assuming the appropriation
of authorized amount, CBO estimates that enacting the
legislation would cost $5 million and that the full amount
would be deposited into the fund in 2024.
The CBO staff contact for this estimate is Aurora Swanson.
The estimate was reviewed by Ann E. Futrell, Senior Adviser for
Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
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. 950 will
have minimal impact on regulatory or paperwork requirements.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding S. 950.
CHANGES IN EXISTING LAW
On February 9, 2023, 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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