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Calendar No. 359
106th Congress Report
SENATE
1st Session 106-203
======================================================================
DAKOTA WATER RESOURCES ACT OF 1999
_______
November 1, 1999.--Ordered to be printed
_______
Mr. Murkowski, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 623]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 623) to amend Public Law 89-108 to
increase authorization levels for State and Indian tribal,
municipal, rural, and industrial water supplies, to meet
current and future water quantity and quality needs of the Red
River Valley, to deauthorize certain project features and
irrigation service areas, to enhance natural resources and fish
and wildlife habitat, and for other purposes, having considered
the same, reports favorably thereon with amendments and
recommends that the bill, as amended, do pass.
The amendments are as follows:
1. On page 4, lines 7 through 11, strike paragraph (3) in
its entirety and insert in lieu thereof the following:
(3) Operation and maintenance costs.--Except as
otherwise provided in this Act or Reclamation Law--
(A) The Secretary shall be responsible for
the costs of operation and maintenance of the
proportionate share of unit facilities in
existence on the date of enactment of the
Dakota Water Resources Act of 1999 attributable
to the capacity of the facilities (including
mitigation facilities) that remain unused;
(B) The State of North Dakota shall be
responsible for costs of operation and
maintenance of the proportionate share of
existing unit facilities that are used and
shall be responsible for the full costs of
operation and maintenance of any facility
constructed after the date of enactment of the
Dakota Water Resources Act of 1999;
(C) The State of North Dakota shall be
responsible for the costs of providing energy
to authorized unit facilities.
2. On page 4, line 19 through page 5, line 6, strike
paragraph (h)(1) in its entirety and insert in lieu thereof the
following:
(1) Delivery of water into the hudson bay basin.--
Prior to construction of any water systems authorized
under this Act to deliver Missouri River water into the
Hudson Bay basin, the Secretary, in consultation with
the Secretary of State and the Administrator of the
Environmental Protection Agency, must determine that
adequate treatment can be provided to meet the
requirements of the Treaty between the United States
and Great Britain relating to Boundary Waters Between
the United States and Canada, signed at Washington,
January 11, 1909 (26 Stat. 2448; TS 548) (commonly
known as the Boundary Waters Treaty of 1909).
3. On page 11, lines 7 through 12, strike paragraph (5) in
its entirety and insert in lieu thereof the following:
(5) Principal supply works.--The Secretary shall
maintain the Snake Creek Pumping Plant, New Rockford
Canal, and McClusky Canal features of the principal
supply works. As appropriate, the Secretary shall
rehabilitate or complete such features consistent with
the purposes of this Act. Subject to the provisions of
sections (8)(c) and (8)(d)(1) of this Act, the
Secretary shall select a preferred alternative to
implement the Dakota Water Resources Act of 1999. In
making this selection one of the alternatives the
Secretary shall consider is whether to connect the
principal supply works in existence on the date of
enactment.
4. On page 12, line 9, insert ``economic,'' before
``financial''.
5. On page 14, line 16, insert after the period the
following: ``Proceeds from loan repayments and any interest
thereon shall be treated as Federal funds.''
6. On page 22, line 11, strike ``4739)--'' and insert in
lieu thereof ``4739) is amended--''.
7. On page 24, line 11, strike ``$300,000,000'' and insert
in lieu thereof, ``$200,000,000''.
8. On page 27, line 19, strike ``$300,000,000'' and insert
in lieu thereof, ``$200,000,000''.
9. On page 28, lines 3 through 7, strike subsection (f) in
its entirety.
10. On page 29, lines 14 through 21, strike paragraph (C)
in its entirety.
Purpose
As ordered reported, S. 623 amends Public Law 89-109,
relating to the Garrison Diversion Project in North Dakota, to
increase authorized funding levels for State and Indian tribal,
municipal, rural, and industrial water supplies; to meet
current and future water quantity and quality needs of the Red
River Valley; to deauthorize certain project features and
irrigation service areas; to enhance natural resources and fish
and wildlife habitat; and to assist the United States in
meeting its obligations under the Boundary Waters Treaty of
1909.
S. 623 authorizes a multipurpose Federally assisted water
project to meet the water needs of North Dakota and to
compensate the State and tribes for the loss of 550,000 acres
under the Garrison and Oahe Reservoirs, but changes the focus
of water development from large-scale irrigation to the
delivery of municipal, rural, and industrial water to
communities and the four Indian reservations located in North
Dakota. S. 623 will allow for the completion of the Garrison
Diversion Project, while enhancing wildlife habitat and water
conservation in North Dakota.
Background and Need
The Pick-Sloan Missouri River Flood Control Act of 1944
authorized the construction of six mainstem dams and reservoirs
and numerous reclamation projects along the Missouri River and
its tributaries. In North Dakota, the plan included the
Garrison Dam and Reservoir. While providing flood control and
water storage benefits for downstream states, the Dams
inundated approximately 550,000 acres of farm and tribal lands
in North Dakota under Lake Sakakawea (the reservoir behind
Garrison Dam) and Lake Oahe. As part of the Pick-Sloan
compromise, the Bureau of Reclamation would provide irrigation
for over 1.2 million acres of land in central and western North
Dakota, originally from the Fort Peck reservoir, and later from
Lake Sakakawea as compensation to the State and the tribes for
the losses incurred.
For various reasons, however, Congressional authorization
for construction of the Garrison Diversion Project did not
occur until 1965, when Congress enacted the 250,000 acre
Garrison Diversion Unit as the initial stage of a project
encompassing over a million acres. Construction on the project
began in 1968. Although major sections of the main water
storage and delivery facilities were built shortly after the
1965 authorization, the project became embroiled in controversy
over environmental and cost issues, and much of the Garrison
project was never completed.
During the 1970's, additional concerns were raised from
opponents of irrigated agriculture, environmentalists, and the
Canadian government about water flowing from the Missouri Basin
into the Hudson Bay basin. Progress slowed during the Carter
Administration as part of its general opposition to the
Reclamation program. In 1984, the Reagan Administration halted
construction and directed the Secretary of the Interior to
establish a review commission to reformulate the project.
In addition to the concerns noted above, it became apparent
that the large-scale irrigation purpose for which the project
was originally intended no longer addressed the contemporary
water needs of North Dakota, as water use priorities within the
State had changed over time from irrigation to primarily
municipal and industrial uses.
In 1984 Congress established a special commission to
examine the water needs of North Dakota. Its charge was to
recommend how to reformulate the existing project in order to
meet the contemporary water needs of the State. In 1986
Congress enacted the Garrison Diversion Unit Reformulation Act
(Public Law 99-294) to amend the 1965 authorization and to
implement the commission's recommendations, unless otherwise
specified.
The amended Act reduced the irrigation component to 130,940
acres and gave greater emphasis to municipal, rural, and
industrial (MR&I) water needs. The reformulated project
provided a comprehensive MR&I program for 130 towns and cities,
rural areas, and three Indian reservations. The amended Act
also minimized environmental impacts associated with
construction and operation of the reformulated project and
assisted the United States in meeting its responsibilities
under the Boundary Waters Treaty of 1909 by authorizing a water
treatment facility to treat Missouri River Water transferred to
the Hudson Bay drainage via the Sheyenne River and the Red
River to Fargo and Grand Forks. Moreover, the amended Act
provided for more timely repayment of project costs, the
preservation of existing rights of the State of North Dakota to
use water from the Missouri River, and the offset of inundated
lands resulting from the construction of the Garrison Dam with
a multi-purpose water development project.
As a result of the passage of the 1986 Reformulation Act, a
Wetlands Trust was established to provide funding for the
protection of the wetland resources in the State of North
Dakota. Funding for the Trust was to be a combination of State
and Federal funds. The authorized Federal funding has been
fully appropriated, and the State funding is in accordance with
agreements reached between the Secretary and the State. The
Lonetree Wildlife Management Area was established subject to
the possible reauthorization of the area as a reservoir site.
An additional enhancement area, known as the Kraft Slough
project, has been funded but not all the land acquisition has
been completed as yet; however, nearly 90 percent of the actual
wetlands associated with the project have been acquired.
Development of this enhancement to the wildlife resources of
the State has been fully funded. Non-refuge mitigation has been
fully funded under revised criteria and now stands at 140
percent of actual need. Refuge mitigation is well underway and
is expected to be finished within the next few years.
Passage of the 1986 Reformulation Act did not lead to
completion of the project. In 1990, a task force created by
then-Secretary of Interior Manuel Lujan recommended that all
irrigation and M&I facilities for Indian tribes be completed,
but there be no further funding for non-tribal project features
and related supply works. This policy has continued under the
Clinton Administration.
President Bush did not request any funds for the project in
his 1991 budget because of concerns with the economic viability
of the irrigation component of the project. Funding has been
appropriated annually for the MR&I program, for environmental
mitigation purposes, for the Wetlands Trust, and for operation
and maintenance and other costs of the unit. However, many of
the features authorized by the 1986 Reformulation Act,
including the Sykeston Canal and James River Feeder Canal, were
not constructed. Additionally, except for the 5,000-acre Oakes
Test Area, none of the authorized irrigation development has
been constructed because of concerns about the ability of
project beneficiaries to meet even the costs of operating and
maintaining the facilities.
A 1990 Task Group, appointed by the Secretary of the
Interior, recommended that funding continue to be provided only
to those features in the reformulated project that were
consistent with the contemporary water needs of the state, with
national priorities, and the history of the project--
essentially irrigation and MR&I facilities for Indian tribes.
The present Administration has continued the policy recommended
by the 1990 Task Group report, with respect to project funding.
In 1993, the Bureau of Reclamation participated in a
``collaborative process'' with the State of North Dakota to
again define a new direction for the project. That process
identified certain areas for which studies were initiated,
focusing on MR&I water development needs as outlined by North
Dakota as the priority for the State.
Transboundary issues
In 1975 the Canadian government, particularly the Province
of Manitoba, raised several concerns about the potential
environmental impact of the project that was authorized in the
1965 legislation. The Canadian government alleged a potential
violation of the 1909 Boundary Waters Treaty between the United
States and Great Britain. The two countries agreed to refer the
issues to the International Joint Commission (IJC), which was
established by the Boundary Waters Treaty. The IJC issued its
findings and recommendations in a report dated August 12, 1977,
``Transboundary Implications of the Garrison Diversion Unit.''
Incorporating the recommendations of the IJC, the 1986
Reformulation Act included authorization for a water treatment
plant to treat any water transferred into the Hudson Bay
drainage. It provided protective language providing that the
Secretary of the Interior must determine compliance before
water is delivered to the Hudson Bay drainage. It also barred
any return flows from irrigation into the Hudson Bay drainage.
Canada praised the plan in a Diplomatic Note and declared that
the project ``does not pose threats to Canadian waters* * *''
The two countries continued to review the plans for the project
through a Joint Technical Committee established for that
purpose by the two countries. As a result of those
deliberations several design changes occurred and tests were
run to assure the parties that all reasonable steps were taken
to avoid harm and to comply with the Boundary Waters Treaty.
In addition, the Bureau of Reclamation, the State of North
Dakota and the Garrison Diversion Conservancy District provided
funding for additional research and examination into the
potential injury to Canadian waters if Missouri River water was
transferred for use in the North Dakota portion of the Hudson
Bay drainage. The research was administered by the North Dakota
Water Research Institute and involved researchers and
scientists from both countries. A compendium of the study
results will soon be published.
S. 623 goes one step further and permanently deauthorizes
the Lonetree Reservoir, a primary feature of the project, which
has been a major concern of the Canadian government and
conservation interests in the United States, and converts it
into a wildlife enhancement feature.
As ordered reported, S. 623 will allow for the completion
of a much-reduced irrigation component, while addressing many
of the concerns that were raised about previous project
authorizations, including project costs, environmental issues,
and project feasibility requirements. The bill reflects lengthy
negotiations in North Dakota among the State, water users,
Indian tribes, and local environmentalists and as amended,
incorporates an agreement between the State, the North Dakota
Congressional delegation, and the Administration.
Legislative History
S. 623 was introduced by Senators Conrad and Dorgan on
March 16, 1999. A hearing was held in the Water and Power
Subcommittee on May 27, 1999.
At the business meeting on September 22, 1999, the
Committee on Energy and Natural Resources ordered S. 623
favorably reported, as amended.
Committee Recommendations and Tabulation of Votes
The Committee on Energy and Natural Resources, in open
business session of September 22, 1999, by a majority voice
vote of a quorum present, recommends that the Senate pass S.
623, if amended as described herein. Senator Bunning asked to
be recorded in opposition to the measure.
Committee Amendments
During the consideration of S. 623, the Committee adopted a
series of amendments. Explanations of those amendments follow:
The first amendment provides for clearer and more detailed
cost-sharing of operation and maintenance costs between the
State of North Dakota and the Bureau of Reclamation. The State
costs represent the proportionate share of use for existing
facilities and for all new facilities. The State is also
responsible for the costs of providing energy to authorized
facilities.
The second amendment regarding the Hudson Bay Basin retains
the requirement in S. 623 and current law that any inter-basin
transfers of water from the Missouri River Basin to the Hudson
Bay Basin comply with the Boundary Waters Treaty of 1909. The
amendment further requires that the Secretary of the Interior (
in consultation with the Secretary of State and the
Administrator of EPA) determine such compliance before
construction of any inter-basin conveyance. The underlying bill
requires such action before the operation of the system. The
effect is to provide earlier assurances to Canada of U.S.
compliance with the Treaty.
The third amendment regarding the principal supply works
details what facilities the Secretary shall maintain and
clarifies that any rehabilitation or new construction of
facilities be carried out consistent with other provisions of
the bill. Those provisions describe the process of selecting
water supply features for the Red River Valley. The amendment
also sets out that one alternative feature to be considered is
whether to connect the supply works in existence on the date of
enactment.
The fourth amendment adds ``economic'' to the feasibility
tests for irrigation projects for which a report by the
Secretary of the Interior is required under section 5(e). The
requirements inthe underlying bill are for ``financial and
engineering'' feasibility.
The fifth amendment clarifies how loan proceeds shall be
treated. The underlying bill authorizes the State to use MR&I
funds to set up a revolving loan program. The amendment
specifically ensures that proceeds from MR&I loan repayments
and related interest earnings will be treated as federal funds.
In other words, when loans are repaid, the requirements of law
pertaining to the use of federal funds will continue to apply
to any new loans.
The sixth amendment is a technical correction.
The seventh amendment reduces the $300 million
authorization in S. 623 to $200 million for the State's MR&I
program in the Dakota Water Resources Act.
The eighth amendment is a conforming amendment and applies
the customary indexing of accounts to the reduced State MR&I
authority of $200 million rather than the $300 million in the
underlying bill.
The ninth amendment strikes the authorization of $40
million for construction of a bridge to replace the existing
structure across the Missouri River on the Fort Berthold
Reservation.
The tenth amendment removes the link between construction
of the selected Red River Supply System and the funding for the
Resources Trust Fund. The authorization for the Trust is no
longer contingent upon construction of unrelated features.
Section-by-Section Analysis
sec. 1. short title
Section 1 contains the short title of the bill, the
``Dakota Water Resources Act of 1999''.
sec. 2. purposes and authorization
Section 2 amends section 1 of Public Law 89-108, the
authorizing legislation for the Garrison Diversion Project in
North Dakota. As amended, this section sets forth the purposes
of the Act, which are to meet the water needs of North Dakota
and the four Indian reservations located within the State by
development of a multi-purpose water project. The project would
develop MR&I water systems; authorize reduced irrigation
development; enhance fish and wildlife habitat; promote ground
water recharge and augmented stream flows; enhance recreation;
assure appropriate repayment of Federal funds; and assure
compliance with environmental laws and the Boundary Water
Treaty of 1909.
This section makes fish and wildlife enhancement a specific
project purpose. It also strikes language from the 1986
Garrison Diversion Unit Reformulation Act directing the
Secretary of the Interior (the ``Secretary'') to construct all
supply works to the capacity identified in the 1984 Commission
Report. This section also authorizes the Secretary to enter
into the necessary agreements with the State to carry out the
Act.
This section requires the State of North Dakota to repay
the Federal government for the proportionate share of the cost
of features constructed prior to the Dakota Water Resources Act
(DWRA) that are used. This section also specifies how operation
and maintenance costs will be divided between the State and
Federal government. For existing features, the Secretary shall
be responsible for the proportionate share of O&M costs
attributable to unused capacity of project features. The State
shall be responsible for the proportionate share of O&M costs
of existing features that are used, for O&M on all features
constructed after the date of enactment of the DWRA, and for
the full costs of providing energy to unit facilities.
Finally, this section specifies that the Secretary of
Interior, after consulting with the Secretary of State and
Administrator of the Environmental Protection Agency, must
determine that the Boundary Waters Treaty with Canada will not
be violated prior to construction of project features to
deliver water from the Missouri River into the Hudson Bay
drainage basin. The costs of constructing water treatment and
related facilities to meeting the requirements of the Boundary
Waters Treaty continue to be nonreimbursable.
sec. 3. fish and wildlife
Section 3 amends section 2 of Public Law 89-108 to require
all fish and wildlife enhancement costs for waterfowl refuges,
waterfowl production areas, and wildlife conservation areas
continue to be a federal responsibility. Further, the bill
requires the Secretary to consult with the State of North
Dakota before approving recreation areas, and adds ``services
in kind'' as an acceptable form of repayment for recreation
areas.
This section also moves existing language, that
deauthorizes the Taayer Reservoir and authorized the Kraft and
Pickell Slough as a component of the National Wildlife Refuge
System, from section 8 of current law to this section. This
section also clarifies that the Bureau of Reclamation is
authorized to acquire land in the Kraft and Pickell Slough
areas through donation or exchange of land.
Finally, this section deauthorizes the Lonetree Dam and
Reservoir, and designates the lands as a wildlife conservation
area to provide additional wildlife habitat. The intent of the
term ``wildlife conservation area'' is that the area not become
part of the National Wildlife Refuge System, but that the State
of North Dakota would continue to manage it as a State Wildlife
Management Area, the costs of which would be paid by the
Secretary. If the feature selected under section 8 to meet the
water needs of the Red River Valley includes a buried pipeline
between the McClusky Canal and New Rockford Canal, the bill
authorizes the use of the wildlife conservation area and
Sheyenne Lake National Wildlife Refuge for a route for the
pipeline.
sec. 4. interest calculation
Section 4 amends section 4 of Public Law 89-108 to provide
that interest on repayable capital costs shall only be
calculated until such time as the feature is substantially
complete.
sec. 5. irrigation facilities
Section 5 amends section 5 of Public Law 89-108. The bill
retains authorization for the existing 5,000-acre Oakes Test
area. In addition, the bill authorizes the Secretary to develop
irrigation on 13,700 acres at Turtle Lake, 10,000 acres at
McClusky Canal, and 1,200 acres of canal-side irrigation along
the New Rockford Canal provided the full investment costs are
repaid by the users at New Rockford (without ``aid-to-
irrigation''). Also, the bill authorizes development of
irrigation on 28,000 undesignated acres in the Missouri River
basin. No other irrigation is authorized. This section also
authorizes irrigation units under this bill to receive project
pumping power.
Prior to development of any projects in the undesignated
28,000 acres, the Secretary must report to Congress on the
costs and benefits of the proposed irrigation and the economic,
financial and engineering feasibility of the proposed unit. The
Committee intends that the Secretary's investigation and report
should be conducted expeditiously and without unnecessarily
formal or costly reviews. Compliance with the National
Environmental Policy Act is also required before developing any
projects. This section specifically prohibits any irrigation
development authorized under the bill in the Hudson Bay/Devils
Lake drainage basin.
This section retains irrigation authorization on the Fort
Berthold Indian Reservation (7,700 acres at Lucky Mound and
7,500 acres at Upper Six Mile Creek, but allows for other areas
of equal acreage if approved by the Tribe and Secretary) and on
the Standing Rock Sioux Reservation (2,380 acres).
Finally, this section directs the Secretary to maintain the
Snake Creek Pumping Plant, New Rockford Canal, and McClusky
Canal, and to rehabilitate or complete those features as
appropriate. In selecting the preferred alternative under
section 8, the Secretary is directed to consider connecting the
existing supply works as an alternative to meet the
comprehensive water quality and quantity needs of the Red River
Valley.
sec. 6. power
Section 6 amends section 6 of Public Law 89-108 to
harmonize the repayment required by power users of power from
the Garrison Dam with how other power users repay capital costs
for other power generating facilities. Additionally, this
section specifically prohibits any increase in power rates for
Pick-Sloan Program customers that would result from any
provisions in the Dakota Water Resources Act.
sec. 7. municipal, rural, and industrial water service
Section 7 amends section 7 of Public Law 89-108. This
section maintains the 25 percent non-Federal cost-share for
MR&I projects developed under this section, and allows the
State to credit amounts that exceed the 25 percent minimum
toward future cost-shares for MR&I development projects. This
section also permits the State to make loans and to grants, and
requires that proceeds from repaid loans be recycled back only
into the MR&I grant or loan program. It also includes a
provision clarifying that any loans repaid to the state under
the revolving loan program will continue to be treated as
Federal funds for purposes of compliance with applicable
Federal laws. The Southwest Pipeline Project, Northwest Area
Water Supply Project, Red River Valley Water Supply Project,
and other MR&I systems in the State are eligible.
Section 7 also authorizes the State to develop a water
conservation program, and calls on the Secretary and State to
establish water conservation goals. If the State meets the
goals of the program, the 25 percent on-federal cost share for
MR&I systems is reduced to 24.5 percent. The section also makes
the cost of features previously constructed on the Missouri
River by the Army Corps of Engineers nonreimbursable. Finally,
it maintains the authority for the Secretary to develop MR&I
systems on the four Indian reservations located in North
Dakota, and adds adjacent areas to that authorization to permit
water systems to serve tribal members living outside the
reservation boundaries.
sec. 8. specific features
Section 8 amends section 8 of Public Law 89-108 by deleting
the existing authority in section 8 to construct the Sykeston
Canal, which was to be a connecting link between the existing
McClusky and New Rockford Canals to deliver water from the
Missouri River to the Red River Valley. Instead, the DWRA
authorizes a Red river Valley Water Supply project and
establishes a formal process of evaluating the water quantity
and quality needs of the Red river Valley and the options for
meeting those needs, and makes the Secretary responsible for
the decision on which feature (or features) to construct to
meet those needs. The Secretary and the State are to be
partners in developing these studies.
The Secretary and the State of North Dakota are required to
complete a draft environmental impact statement within one year
of the date of enactment of the DWRA (or, if unable to meet
that deadline, to report to Congress on the status of the
DEIS). The Secretary and the State are required to submit a
final EIS within one year of filing the DEIS (or, if unable to
meet that deadline, to report to Congress on the status of the
FEIS). The Secretary, in consultation with the State of North
Dakota, is then authorized to select a feature (or features) to
meet the comprehensive water development needs of the Red River
Valley, after reviewing the water needs report, the report on
options for meeting those needs, and the EIS, and after
consulting with the State (which will coordinate with affected
local communities). Within 180 days of the Secretary signing
the Record of Decision, the Secretary is required to enter an
agreement with the State to construct the feature (or features)
selected. If the feature selected includes delivering Missouri
River water to the Red river Valley, the Sheyenne River water
supply and release feature remains authorized to deliver 10 cfs
of water (or another amount determined by the reports in this
section) to the cities of Fargo and Grand forks.
sec. 9. oakes test area title transfer
Section 9 amends section 9 of Public Law 89-108. This
section deletes existing language relating to ``surplus crop
production charges'' because changes to the Farm Program
contained in the 1996 Farm Bill made the existing language
obsolete. The new language authorizes the Secretary totransfer
the Oakes Test Area (OTA) to the State not later than 2 years after
signing the Record of Decision required under Section 8 (relating to
meeting the needs of the Red River Valley), under terms that the
Secretary believes would protect the public interest. If the Secretary
and the State do not reach an agreement for a transfer by the time
limit, the Secretary is directed to dispose of the OTA in accordance
with the Federal Property and Administrative Services Act of 1949.
SEC. 10. AUTHORIZATION OF APPROPRIATIONS
Section 10 amends section 10 of Public Law 89-108 to reduce
the authorization ceiling for irrigation and related facilities
from $270,395,000 to $164,000,000. It also authorizes $200
million for the Red River Valley Water supply project, to be
used for the project feature (or features) selected by the
Secretary pursuant to section 8. This project is reimbursable.
Section 10 authorizes an additional $200 million for
statewide MR&I systems authorized under section 7, and an
additional $200 million for MR&I systems on the four Indian
reservations located within North Dakota (allocated as follows:
$30 million for Fort Totten Reservation, $70 million for Fort
Berthold, $80 million for Standing Rock, and $20 million for
Turtle Mountain).
This section authorizes an additional $6.5 million for
recreation projects, and permits up to $1.5 million of the
amount to develop a Wetlands Interpretive Center in North
Dakota. The bill also authorizes an additional $25 million for
the Natural Resources Trust (authorized in section 11). It also
authorizes creation of a separate account (after the features
selected under section 8 are operational) within the Trust for
operation and maintenance costs of mitigation and enhancement
lands, but does not authorize appropriations for that account.
Finally, section 10 includes a provision to index certain
construction costs for inflation from the date of enactment of
the DWRA, to reflect normal fluctuations in construction costs
consistent with current Bureau of Reclamation practices. The
section also includes a provision which prohibits counting
funds spent since 1986 on operations and maintenance against
the construction authorization ceilings in this section.
SEC. 11. NATURAL RESOURCES TRUST
Section 11 amends section 11 of Public Law 89-108. The name
of the current Wetlands Trust is changed to the Natural
Resources Trust. In addition, the section establishes that the
Trust is to be operated to preserve, enhance, restore, and
manage wetlands and associated wildlife habitat, grassland
conservation and riparian areas in the State of North Dakota.
This section authorizes the Trust, in addition to its existing
authorities, to fund incentives for conservation practices by
landowners.
Section 11 also establishes a schedule for annual
appropriations for the Trust determined by a formula at 5
percent of the annual funds appropriated for the Statewide MR&I
program and the Red River Valley Water Supply project.
Cost and Budgetary Considerations
The Congressional Budget Office cost estimate report had
not been received at the time the report was filed. When the
report becomes available, the Chairman will request that it be
printed in the Congressional Record for the advice of the
Senate.
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. 623. 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. 623, as ordered reported.
Executive Communications
On April 21, 1999, the Committee on Energy and Natural
Resources requested legislative reports from the Department of
the Interior and the Office of Management and Budget setting
forth Executive agency recommendations on S. 623. These reports
had not been received at the time the report on S. 623 was
filed. When the reports become available, the Chairman will
request that they be printed in the Congressional Record for
the advice of the Senate. The testimony provided by the
Department of the Interior at the Subcommittee hearing follows:
Statement of Patricia J. Beneke, Assistant Secretary for Water and
Science, Department of the Interior
My name is Patricia Beneke. I am Assistant Secretary for
Water and Science within the U.S. Department of the Interior.
The Bureau of Reclamation is one of the bureaus that I oversee.
I am pleased to provide the Administration's testimony on S.
623, the Dakota Water Resources Act of 1999.
Mr. Chairman, S. 623 would alter the Garrison Diversion
Unit of the Pick Sloan Missouri Basin Program as currently
authorized to increase the funding authorization levels for
State and Indian tribal, municipal, rural, and industrial water
supplies, to meet current and future water quantity and quality
needs of the Red River Valley, to reauthorize certain project
features and irrigation service areas, to enhance natural
resources and fish and wildlife habitat, and for other
purposes.
First, I would like to express my appreciation to the North
Dakota delegation for their continued willingness to work with
the Bureau of Reclamation and the Administration on these
important matters. In the past several years, a great deal of
progress has been made on a number of longstanding and
extremely difficult issues. The delegation, as well as the
North Dakota Governor's office, State legislative leaders, the
State Engineer, the Conservancy District and others have worked
hard along with the Administration, Reclamation and other
stakeholders to find solutions. The Administration supports
many elements of the bill as introduced.
Since the bill was introduced, the Administration has had
many hours of discussions with the North Dakota delegation
working to address the significant issues that are associated
with this legislation.
We believe we have reached agreement on nearly all of these
issues. If the bill is amended to address these issues as set
out below, the Administration would be able to support this
legislation.
Background
Mr. Chairman, the Garrison Diversion Unit (GDU) has had a
long history. I will not go into great detail, but there are
several things that are important to note in order to provide
context for consideration of this legislation and for the
issues associated with it.
The Garrison Diversion Unit in North Dakota, is part of the
Pick Sloan Missouri Basin Program (PSMBP) which was originally
authorized as part of the Flood Control Act of 1944. Originally
known as the Missouri-Souris project, the authorization
envisioned irrigation development of 1,275,000 acres in the
state of North Dakota.
In 1957, the Bureau of Reclamation completed the
feasibility report on the Garrison Unit of the PSMBP. In that
report, submitted to Congress, Reclamation recommended the
development of 1,007,000 acres of irrigation and in 1965, P.L.
98-108 authorized construction of 250,000 acres as the initial
stage of the project.
Over the next several years, it became increasingly evident
that the level of development envisioned in the 1965 Act raised
environmental and economic concerns. Concerns were also raised
that the Act might result in violations of the International
Boundary Water Treaty of 1990 with Canada. Consequently, in
1984, P.L. 98-360 directed the Secretary of the Interior to
appoint a commission to examine the water supply needs in North
Dakota and to make recommendations on how to reformulate the
project.
In December 1984, the Commission issued its final report
which included the following major recommendations: (1) Reduce
irrigation development to 130,940 acres of which none would be
located in the Hudsons Bay Drainage and 17,580 of which would
be developed on two Indian Reservations that were most impacted
by the initial development; (2) Develop Municipal, Rural and
Industrial (MR&I) water service for as many as 130 towns and
rural areas, and three Reservations in the State; (3) Develop a
water treatment facility to provide MR&I water to Fargo and
Grand Forks; (4) Mitigate impacts to fish and wildlife, and (5)
Develop recreational sites.
In 1986, Congress passed the Garrison Diversion Unit
Reformulation Act of 1986 (P.L. 99-294) which generally
authorized the recommendations of the GDU Commission's final
report.
In 1990, The Department of the Interior's Office of the
Inspector General completed a review (OIG Report 90-49) of the
financial issues associated with the project. The report stated
that the ``operating costs assigned to irrigators will exceed
their ability to pay because the project as reformulated does
not appear to be financially feasible.'' In other words, it
concluded that the farmers would be unable to pay their
estimated operations, maintenance and replacement (OM&R) costs
as is required under Reclamation law. This fact led to the
Inspector General's conclusion that the irrigation component of
the Garrison Diversion Unit was economically infeasible.
In response to the OIG Report, Secretary Lujan appointed a
GDU Task Group to evaluate and make recommendations on how to
proceed with this project, given the findings of the OIG
report. In October 1990, the GDU Task Group Report recommended
termination of Federal funding for the development and
construction of non-Indian irrigation facilities and for the
principle supply works, but recommended continuation of the
MR&I program. Since that time, the recommendations of this Task
Group have been the basis for the policies of both the Bush and
Clinton Administrations with respect to this Project, and has
guided subsequent budget requests.
In 1993, in an attempt to develop a consensus solution to
meeting the contemporary water needs of the State, the North
Dakota Water Management Collaborative Process was initiated
whereby all interested stakeholders were convened.
In 1995, after the initiation of several studies, and a
great deal of hard work by the parties, the Collaborative
Process was terminated without reaching a consensus on how GDU
should be completed to best meet the contemporary water
resource needs of the State. However, Reclamation continued to
work towards completion of the studies it had agreed to
undertake.
In 1998, the delegation introduced a revised and
reformulated Dakota Water Resources Act that altered the
Garrison Diversion Unit of the Pick Sloan Missouri Basin
Program as authorized in 1986 to increase the funding
authorization levels for State and Indian tribal, municipal,
rural, and industrial water supplies, to meet current and
future water quantity and quality needs of the Red River
Valley, to deauthorize certain project features and irrigation
service areas, to enhance natural resources and fish and
wildlife habitat, and for other purposes.
In summary, Mr. Chairman, the Pick Sloan Missouri Basin
Program when conceived foresaw a comprehensive system of flood
control, navigation improvement, irrigation, municipal and
industrial (M&I) water supplies, and hydroelectric power
generation for ten states. That plan envisioned 213 multi-
purpose projects providing over 1.1 million kilowatts of power
and irrigation of more than 5 million acres.
Since that time, changes in both the national economy and
priorities, combined with the development of refined analytical
tools and criteria have resulted in a significantly different
project than was originally planned. Six dams have been
constructed on the mainstem of the Missouri River, and numerous
multi-purpose projects on the tributaries have been completed.
Flood control and navigation benefits are greater than
anticipated with navigation benefits estimated to be about
$17.7 million per year. Power development has exceeded
expectations with an installed plant capacity of 220 percent of
original estimates and hydropower sales averaging $200 million
annually. Benefits from recreational development have also
exceeded the original plan. Irrigation development, on the
other hand, has fallen well short of original goals with less
than 600,000 (11%) of the planned 5.3 million acres having been
developed.
Amendments to S. 623
Since S. 623 was introduced, the Administration and the
delegation have met several times and have made significant
progress in resolving the Administration's serious concerns
about the proposal. The following describes amendments to S.
623 that would resolve outstanding issues mentioned in past
Administration testimony on the Dakota Water Resources Act:
MR&I Facility Funding.--The Administration recognizes that
there is additional need for good quality water for domestic
and other purposes in a large portion of the State. Since the
Administration last provided testimony on the Dakota Water
Resources Act in September 1998, we have been working closely
with the North Dakota delegation, the State Engineer and the
Governor's office to find ways to address this problem in a way
that also recognizes Federal budget constraints. The
Administration supports the bill's proposed $200 million
authorization of MR&I funding for Indian communities, and the
proposed $200 million authorization subject to repayment at the
project's original authorization interest rate for construction
of facilities in the Red River Valley. In addition, the
Administration would support extending the current grant
authorization to address other State-wide MR&I needs by an
additional $200 million, with a 25 percent local cost-sharing.
This combination of authorizations provides a total of $600
million in new Federal funding authority to address priority
needs within the State for quality water in a way that
addresses continuing Federal budget constraints. We also
believe it is important that this package of programs includes
repayment of funding provided for Red River Valley facilities.
This repayment reflects the Administration's long-standing
policy that in the case of non-Indian rural water supply system
development, non-Federal interests should repay 100 percent of
allocated project construction costs with interest.
We believe we have reached agreement with the North Dakota
delegation on amendments to address several other key issues:
Status of MR&I Funds.--All MR&I funds would continue to be
managed as ``Federal'' funds for the purpose of the compliance
with Federal laws such as the National Environmental Policy Act
(NEPA) and the National Historic Preservation Act (NHPA).
Operation and Maintenance.--Consistent with long-standing
cost-allocation procedures, the State would pay: (1) a pro-rata
share of OM&R on existing principle supply works, including
associated mitigation, based on a percentage of capacity used;
(2) 100 percent of OM&R on all new facilities with the
exception of facilities required to meet treaty obligations or
comply with Reclamation law; and (3) all energy costs with the
same exceptions.
Irrigation Development.--The development of 28,000 acres of
undesignated irrigation ``not located in the Hudson's Bay,
Devils Lake or James River drainage basins'' would be required
to meet an economic feasibility test with respect national
economic development (NED) benefits--thereby holding this
project to the same standard as other Federal projects.
International Treaty Compliance.--Before any construction
is undertaken on any part of the system capable of moving water
into the Hudson Bay basin, the Secretary of the Interior, in
consultation with the Secretary of State and the Administrator
of the Environmental Protection Agency, must determine that
adequate treatment has been provided to meet requirements of
the U.S.-Canada Boundary Waters Treaty. We welcome this
recognition of the United States' obligation under the Treaty
not to pollute water flowing into Canada. We also believe it is
important in this case to ensure that transboundary pollution
and the United States' obligations under the Boundary Waters
Treaty are considered as the NEPA process is carried out.
Four Bears Bridge.--Reconstruction of Four Bears Bridge
would not be accomplished through the Department of the
Interior.
Red River Valley Water Needs Assessment Studies.--
Completion of a report by the Secretary of the Interior and the
State of North Dakota on the comprehensive water quality and
quantity needs of the Red River Valley and options for meeting
those needs, including delivery of Missouri River water to the
Red River Valley, would include consultations with the
Environmental Protection Agency, the U.S. Department of State,
and the U.S. Army Corps of Engineers. The Administration will
continue to work with the North Dakota delegation concerning
consultation with other interested and affected entities,
including the states of South Dakota, Iowa, Missouri,
Minnesota, and the appropriate Federally recognized Indian
tribes.
Status of MR&I Grant Funds.--All MR&I grant funds,
including accrued interest, would be managed as ``Federal'' for
the purpose of the compliance with Federal laws such as the
NEPA and NHPA.
Completion of the Principal Supply Works.--Completing and
maintaining the principal supply works identified in the 1984
Garrison Diversion Unit Commission Final Report would not be a
requirement of law, but would be one of the alternatives to be
reviewed to meet the comprehensive water quality and quantity
needs of the Red River Valley.
We have not yet resolved, despite considerable time and
attention from the North Dakota delegation and the
Administration, concerns with the Natural Resources Trust.
While we support expanding the Wetlands Trust, which was
originally authorized in 1986, to include other natural
resources as well as wetlands, the Administration is concerned
about several other changes to this Section of the Act. First,
the substitute amendment increases the Federal contributions to
the Trust by $25 million, but proposes to eliminate the state
and local contribution that was required in the 1986
reformulation, thereby giving the State no financial stake in
the Fund. Second, the substitute amendment restricts annual
Federal appropriations to the Trust Fund to no more than 5
percent of appropriations made for the Red River Valley Water
Supply Project. Third, it also prohibits both the appropriation
of $15 million of the total amount authorized for the Trust
Fund and the establishment of an OM&R account for the
mitigation and enhancement lands associated with the Project
until the Red River Valley Supply Project is operational.
The Administration does not support, or agree with, this
linkage and believes that each activity should be weighed on
its own merits during the budget and appropriations process. We
continue to be optimistic that these issues can be
satisfactorily resolved.
We note that S. 623, as current drafted, may affect
revenues and therefore, may have PAYGO implications. We also
have additional technical changes that we would like to work
with the Committee to address.
Mr. Chairman, I would like to reiterate my appreciation to
the North Dakota delegation and others for working with the
Administration to address the significant issues that are
associated with this legislation. A great deal of hard work has
taken place and significant progress has been made. I would
like to continue that effort to work with the project sponsors
and supporters as well as the opponents to try to find an
appropriate solution to what has become a long standing and
difficult issue.
That concludes my statement, I would be happy to answer any
questions.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill S. 623, as ordered reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman):
The Act of August 5, 1965 (Public Law 89-108, 79 Stat. 443) as Amended
by Sec. Sec. 1-9 of the Garrison Diversion Reformulation Act of 1986
(Public Law 99-294, 100 Stat. 418) and as Further Amended by
Sec. Sec. 3510 and 1701 of the Reclamation Projects Authorization and
Adjustment Act of 1992 (Public Law 102-575, 106 Stat. 4600)
SECTION 1.
(a) The Congress declares that the purposes of this Act are
to:
(1) implement the recommendations of the Garrison
Diversion Unit Commission Final Report (dated December
20, 1984) in the manner specified by this Act;
(2) meet the water needs [of] within the State of
North Dakota, including municipal, rural and industrial
water needs, as identified in the Garrison Diversion
Unit Commission Final Report,
(3) minimize the environmental impacts associated
with the construction and operation of the Garrison
Diversion Unit;
(4) assist the United States in meeting its
responsibilities under the Boundary Waters Treaty of
1909;
(5) assure [more timely] appropriate repayment of
Federal funds expended for the Garrison Diversion Unit;
(6) preserve any existing rights of the State of
North Dakota to use water from the Missouri River; and
(7) offset the loss of farmland within the State of
North Dakota resulting from the construction of major
features of the Pick-Sloan Missouri Basin Program, by
means of a [federally-assisted water resource
development project providing irrigation for 130,940
acres of land] multipurpose federally assisted water
resource project providing irrigation, municipal,
rural, and industrial water systems, fish, wildlife and
other natural resource conservation and development,
recreation, flood control, ground water recharge, and
augmented stream flows.
(b) The Secretary of the Interior (hereafter referred to as
``the Secretary'') is authorized to plan and construct, jointly
with the State of North Dakota, a multi-purpose water resource
development project within the State of North Dakota providing
for [the irrigation of 130,940 acres] irrigation, municipal,
rural, and industrial water, [fish and wildlife conservation]
fish, wildlife, and other natural resource conservation and
development, recreation, flood control augmented stream flows,
ground water recharge, and other project purposes in accordance
with Federal reclamation laws (Act of June 17, 1902, 32 Stat.
388, and Acts amendatory thereof and supplementary thereto) and
substantially in accordance with the plans set out in the
Garrison Diversion Unit Commission Final Report dated December
20, 1984 (as modified by the Dakota Water Resources Act of
1999).
(c) Nothing in this Act is intended, nor shall be
construed, to preclude the State of North Dakota from seeking
Congressional authorization to plan, design, and construct
additional Federally-assisted water resource development
projects in the future.
(d) Nothing in this Act shall be deemed to diminish the
quantity of water from the Missouri River which the State of
North Dakota may beneficially use, pursuant to any right or
rights it may have under Federal law existing immediately
before the date of enactment of this Act and consistent with
the treaty obligations of the United States.
(e) The authorization for all features of the Missouri-
Souris Unit of the Pick-Sloan Missouri Basin Program located in
the State of North Dakota, heretofore authorized in section 9
of the Flood Control Act of December 22, 1944 (58 Stat. 891),
for which no funds have been appropriated for construction, and
which are not authorized for construction by this Act, is
hereby [terminated, and sections 1 and 6 of the Act of August
5, 1965 (Public Law 89-108, 79 Stat. 433) are hereby repealed]
terminated.
[(f) In implementing the provisions of this Act, the
Secretary is directed to construct all supply works to the
capacity identified in the Garrison Diversion Unit Commission
Final Report, except that the Secretary is directed to
construct the JamesRiver Feeder Canal to a capacity of no more
than 450 cubic feet per second, and the Sykeston Canal to the capacity
specified in section 8(a)(1) of this Act.
[(g) Where features constructed by the Secretary are no
longer used to full capacity pursuant to the recommendations of
the Garrison Diversion Unit Commission Final Report, that
portion of the Secretary's investment attributable to the
construction of such unused capacity shall be nonreimbursable.]
(f) Costs.--
(1) Estimate.--The Secretary shall estimate--
(A) the actual construction costs of the
facilities (including mitigation facilities) in
existence as of the date of enactment of the
Dakota Water Resources Act of 1999; and
(B) the annual operation, maintenance, and
replacement costs associated with the used and
unused capacity of the features in existence as
of that date.
(2) Repayment contract.--An appropriate repayment
contract shall be negotiated that provides for the
making of a payment for each payment period in an
amount that is commensurate with the percentage of the
total capacity of the project that is in actual use
during the payment period.
(3) Operation and maintenance costs.--Except as
otherwise provided in this Act or in Reclamation law--
(A) The Secretary shall be responsible for
the costs of operation and maintenance of the
proportionate share of unit facilities in
existence on the date of enactment of the
Dakota Water Resources Act of 1999 attributable
to the capacity of the facilities (including
mitigation facilities) that remain unused;
(B) The State of North Dakota shall be
responsible for costs of operation and
maintenance of the proportionate share of
existing unit facilities that are used and
shall be responsible for the full costs of
operation and maintenance of any facility
constructed after the date of enactment of the
Dakota Water Resources Act of 1999;
(C) The State of North Dakota shall be
responsible for the costs of providing energy
to authorized unit facilities.
(g) Agreement Between the Secretary and the State.--The
Secretary shall enter into 1 or more agreements with the State
of North Dakota to carry out this Act, including operation and
maintenance of completed unit facilities and the design and
construction of authorized new unit facilities by the State.
(h) Boundary Waters Treaty of 1909.--
(1) Delivery of water into the hudson bay basin.--
Prior to construction of any water systems authorized
under this Act to deliver Missouri River water into the
Hudson Bay basin, the Secretary, in consultation with
the Secretary of State and the Administrator of the
Environmental Protection Agency, must determine that
adequate treatment can be provided to meet the
requirements of the Treaty between the United States
and Great Britain relating to Boundary Waters Between
the United States and Canada, signed at Washington
January 11, 1909 (26 Stat. 2448; TS 548) (commonly
known as the `Boundary Waters Treaty of 1909').
(2) Costs.--All costs of construction, operation,
maintenance, and replacement of water treatment and
related facilities authorized by this Act and
attributable to meeting the requirements of the treaty
referred to in paragraph (1) shall be nonreimbursable.
SEC. 2.
(a) Subject to the provision of subsections (b), (c), (d),
and (e) of this section, the Secretary is authorized in
connection with the Garrison diversion unit (i) to construct,
operate, and maintain or provide for the construction,
operation, and maintenance of public outdoor recreation and
fish and wildlife enhancement facilities, (ii) to acquire or
otherwise to include within the unit area such adjacent lands
or interest in land as are necessary for present or future
public recreation or fish and wildlife use, (iii) to allocate
water and reservoir capacity to recreation and fish and
wildlife enhancement, and (iv) to provide for the public use
and enjoyment of unit lands, facilities, and water areas in a
manner coordinated with other unit purposes. The Secretary is
further authorized to enter into agreements with Federal
agencies or State or local public bodies for the operation,
maintenance, and replacement of unit facilities, and to
transfer unit lands orfacililties to Federal agencies or State
or local public bodies by lease or exchange, upon such terms and
conditions as will best promote the development and operation of such
lands or facilities in the public interest for recreation and fish and
wildlife enhancement purposes.
[(b) All costs allocated to fish and wildlife enhancement
and incurred in connection with waterfowl refuges and waterfowl
production areas proposed for Federal administration shall be
nonreimbursable.
[(c)(1) If, before commencement of construction of the
unit, non-Federal public bodies agree to administer for
recreation or fish and wildlife enhancement or for both of
these purposes pursuant to the plan for the development of the
unit approved by the Secretary land and water areas which are
not included within Federal waterfowl refuges and waterfowl
production areas and to bear not less than one-half the
separable costs of the unit allocated to either or both of said
purposes, as the case may be, and attributable to such areas
and all the costs of operation, maintenance, and replacement
incurred in connection therewith, the remainder of the
separable capital costs so allocated and attributed shall be
nonreimbursable.
[(2) In the absence of such a preconstruction agreement
recreation and fish and wildlife enhancement facilities (other
than minimum facilities for the public health and safety at
reservoir access points and facilities related to Federal
waterfowl refuges and waterfowl production areas) shall not be
provided, and the allocation of unit costs shall reflect only
the number of visitor days and the value per visitor day
estimated to result from such diminished recreation development
without reference to lands which may be provided pursuant to
subsection (e) of this section.
[(d) The non-Federal share of the separable capital costs
of unit allocated to recreation and fish and wildlife
enhancement shall be borne by non-Federal interests, under
either or both of the following methods as may be determined
appropriate by the Secretary: (i) payment, or provision of
lands, interests therein, or facilities for the unit; or (ii)
repayment, with interest, within fifty years of first use of
unit recreation or fish and wildlife enhancement facilities:
Provided, That the source of repayment may be limited to
entrance and user fees for charges collected at the unit by
non-Federal interests if the fee schedule and the portion of
fees dedicated to repayment are established on a basis
calculated to achieve repayment as aforesaid and are made
subject to review and renegotiation at intervals of not more
than five years.]
(b) Fish and Wildlife Costs.--All fish and wildlife
enhancement costs incurred in connection with waterfowl
refuges, waterfowl production areas, and wildlife conservation
areas proposed for Federal or State administration shall be
nonreimbursable.
(c) Recreation Areas.--
(1) Costs.--If non-Federal public bodies continue to
agree to administer land and water areas approved for
recreation and agree to bear not less than 50 percent
of the separable costs of the unit allocated to
recreation and attributable to those areas and all the
costs of operation, maintenance, and replacement
incurred in connection therewith, the remainder of the
separable capital costs so allocated and attributed
shall be nonreimbursable.
(2) Approval.--The recreation areas shall be approved
by the Secretary in consultation and coordination with
the State of North Dakota.
(d) Non-Federal Share.--The non-Federal share of the
separable capital costs of the unit allocated to recreation
shall be borne by non-Federal interests, using the following
methods, as the Secretary may determine to be appropriate:
(1) Services in kind.
(2) Payment, or provision of lands, interests
therein, or facilities for the unit.
(3) Repayment, with interest, within 50 years of
first use of the unit recreation facilities.
(e)(1) Notwithstanding the absence of preconstruction
agreements as specified in subsection (c) of this section lands
may be acquired in connection with construction of the unit to
preserve the recreation and fish and wildlife enhancement
potential of the unit.
[(1)](2) If non-Federal public bodies agree [within ten
years after the initial unit operation to administer for
recreation and fish and wildlife enhancement] to administer for
recreation pursuant to the plan for development of the unit
approved by the Secretary land and water areas [which are not
included within Federal waterfowl refuges and waterfowl
production areas] and to bear not less than one-half the costs
of lands acquired therefor pursuant to this subsection and
facilities and project modifications provided for those
purposes and all costs of operation, maintenance, and
replacement incurred therefor, the remainder of the costs of
such lands, facilities, and project modifications shall be
nonreimbursable. Such agreement and subsequent development
shall not be the basis for any allocation of joint costs of the
unit to recreation [or fish and wildlife enhancement].
[(2)](3) [ within ten years after initial operation of the
unit,] there is not an executed agreement as specified in
[paragraph (1) of this subsection] paragraph (2), the Secretary
may utilize the lands for any lawful purpose within the
jurisdiction of the Department of the Interior, or may transfer
custody of the land to another Federal agency for use for any
lawful purpose within the jurisdiction of that agency, or may
lease the lands to a non-Federal public body, or may transfer
the lands to the Administrator of General Services for
disposition in accordance with the surplus property laws of the
United States. In no case shall the lands used or made
available for use for any purpose in conflict with the purposes
for which the project was constructed, and in every case
preference shall be given to uses which will preserve and
promote the recreation and fish and wildlife enhancement
potential of the project or, in the absence thereof, will not
detract from that potential.
(f) Subject to the limitations hereinbefore stated, joint
capital costs allocated to recreation [and fish and wildlife
enhancement] shall be nonreimbursable.
(g) Costs of means and measures to prevent loss of and
damage to fish and wildlife shall be treated as unit costs and
allocated among all unit purposes.
(h) As used in this Act, the term ``nonreimbursable'' shall
not be construed to prohibit the imposition of entrance,
admission, and other recreation user fees or charges.
(i) Notwithstanding any other provisions of this section,
the mitigation for fish and wildlife losses incurred as a
result of construction of the project shall be on an acre-for-
acre basis, based on ecological equivalency, concurrent with
project construction.
(j) The Secretary is directed to implement the provisions
of the Garrison Diversion Unit Commission Final Report with
respect to fish and wildlife conservation, including habitat
impacts, mitigation procedures, and enhancement, except for the
following:
(1) The Secretary shall take no action to alter the
status of Sheyenne Lake National Wildlife Refuge [prior
to the completion of construction of Lonetree Dam and
Reservoir].
(2) Development and implementation of the mitigation
and enhancement plan for fish and wildlife resources
impacted by construction and operation of the Garrison
Diversion Unit shall not be limited by the cost
constraints based on estimates contained in the
Garrison Diversion Unit Commission Final Report.
(3) Credit toward mitigation recommended by the
Garrison Diversion Unit Commission Final Report for
reservoir sites is not authorized.
(4) Taayer reservoir.--Taayer Reservoir is
deauthorized as a project feature. The Secretary acting
through the Commissioner of Reclamation shall acquire
(including acquisition through donation or exchange) up
to 5,000 acres in the Kraft and Pickell Slough areas
and to manage the area as a component of the National
Wildlife Refuge System giving consideration to the
unique wildlife values of the area. In acquiring the
lands which comprise the Kraft and Pickell Slough
complex, the Secretary shall acquire wetlands in the
immediate vicinity which may be hydrologically related
and nearby uplands as may be necessary to provide for
proper management of the complex. The Secretary is also
authorized to provide for appropriate visitor access
and control at the refuge.
(5) Deauthorization of lonetree dam and reservoir.--
The Lonetree Dam and Reservoir is deauthorized, and the
Secretary shall designate the lands acquired for the
former reservoir site a wildlife conservation area. The
Secretary shall enter into an agreement with the State
of North Dakota providing for the operation and
maintenance of the wildlife conservation area as an
enhancement feature, the costs of which shall be paid
by the Secretary. If the features selected under
section 8 include a buried pipeline and appurtenances
between the McClusky Canal and New Rockford Canal, the
use of the wildlife conservation area and Sheyenne Lake
National Wildlife Refuge for such route is hereby
authorized.
SEC. 3.
The Garrison diversion unit shall be integrated physically
and financially with the other Federal works constructed or
authorized to be constructed under the comprehensive plan
approved by Section 9 of the Act of December 22, 1944, as
amended and supplemented. The Secretary shall give
consideration to returning to the Missouri River to the fullest
extent practicable such of the return flows as are not required
for beneficial purposes. (79 Stat. 434)
SEC. 4.
(a) The interest rate used for computing interest during
construction and interest on the unpaid balance of the capital
costs allocated to interest-bearing features of the Garrison
diversion unit as authorized in this Act shall be determined by
the Secretary of the Treasury as of the beginning of the fiscal
year in which construction is initiated, on the basis of the
computed average interest rate payable by the Treasury upon its
outstanding marketable public obligations, which are neither
due nor callable for redemption for fifteen years from date of
issue. Interest during construction shall be calculated only
until such date as the Secretary declares any particular
feature to be substantially complete, regardless of whether the
feature is placed into service.
(b) From and after July 1, 1965, the interest rate on the
unamortized balance of the investment allocated to commercial
power in facilities construction or under construction on June
30, 1965, by the Department of the Army in the Missouri River
Basin, the commercial power from which is marketed by the
Department of the Interior, and in the transmission and
marketing facilities associated therewith, shall be 2\1/2\ per
centum per annum. (79 Stat. 435)
[SEC. 5.
[(a)(1) Subject to the provisions of subsection (a)(2) of
this section, the Secretary is authorized to develop irrigation
in the following project service areas: Turtle Lake (13,700
acres), McClusky Canal (4,000 acres), Lincoln Valley (6,515
acres), Harvey Pumping (2,000 acres), New Rockford (20,935
acres), New Rockford Canal (1,200 acres), LaMoure (13,350
acres), West Oakes Extension (4,000 acres), and West Oakes
(19,660 acres). The Secretary is prohibited from developing
irrigation in these areas in excess of the acreage specified
herein, except that the Secretary is authorized and directed to
develop up to 28,000 acres of irrigation in other areas of
North Dakota, not located in the Hudson Bay, Devils Lake, or
James River drainage basins.
[(2) The Secretary is prohibited from obligating any funds
for construction of irrigation service facilities in the areas
listed in subsection (a)(1) of this section prior to September
30, 1990. After that date, the Secretary may obligate funds
only after completing and submitting to the Congress, the
report required by section 5(c) of this Act.
[(b)(1) The Secretary may not commence construction of the
Sykeston Canal, the James River Feeder Canal, and James River
channel improvements until 60 days after the report required by
section 5(c) of this Act has been completed and submitted to
the Congress.
[(2) The Secretary is directed to proceed immediately with
the construction of--
[(A) the New Rockford Canal;
[(B) the Oakes Test Area; and
[(C) project features authorized in section 7 of this
Act.
[(c)(1) The Secretary is directed to submit a comprehensive
report to the Congress as soon as practicable, but not later
than the end of fiscal year 1988 on the effects on the James
River in North Dakota and South Dakota of water resource
development proposals recommended by the Garrison Diversion
Unit Commission and authorized in this Act. The report shall
include the findings of the Secretary with regard to:
[(A) the feasibility of using the Oakes Aquifer as a
water and recharge facility, and an evaluation of the
need for offstream regulatory storage in the lower
James River basin;
[(B) the capability of the river to handle irrigation
return flows, project water supplies, and natural
runoff without causing flooding, property damage, or
damage to wildlife areas, and mechanisms or procedures
for compensation or reimbursement of affected
landowners for damages from project operation;
[(C) the impacts of Garrison Diversion Unit
irrigation return flows on the river and on adjacent
riverine wetland areas and components of the National
Wildlife Refuge System, with regard to water quality,
and fish and wildlife values;
[(D) the need to channelization of the James River
under the irrigation and municipal, rural, and
industrial water development programs authorized by
this Act;
[(E) the cost and efficiency of measures required to
guarantee that irrigation return flows from the New
Rockford (Robinson Coulee) irrigation service areas
will not enter the Hudson Bay drainage and the impact
these return flows will have on the James River;
[(F) the feasibility of conveying project flows into
the lower James River via Pipestem Creek; and
[(G) alternative management plans for operation of
Jamestown and Pipestem Reservoirs to minimize impacts
on the lower James River.
[(2) The costs of the study authorized by this subsection
shall be nonreimbursable.
[(3) The study authorized by this subsection shall be
carried out in accordance with the requirements of the National
Environmental Policy Act.]
SEC. 5. IRRIGATION FACILITIES.
(a) In General.--
(1) Authorized development.--In addition to the
5,000-acre Oakes Test Area in existence on the date of
the enactment of the Dakota Water Resources Act of
1999, the Secretary may develop irrigation in--
(A) the Turtle Lake service area (13,700
acres);
(B) the McClusky Canal service area (10,000
acres); and
(C) if the investment costs are fully
reimbursed without aid to irrigation from the
Pick-Sloan Missouri Basin Program, the New
Rockford Canal service area (1,200 acres).
(2) Development not authorized.--None of the
irrigation authorized by this section may be developed
in the Hudson Bay/Devils Lake Basin.
(3) No Excess Development.--The Secretary shall not
develop irrigation in the service areas described in
paragraph (1) in excess of the acreage specified in
that paragraph, except that the Secretary shall develop
up to 28.000 acres of irrigation in other areas of
North Dakota (such as the Elk/Charbonneau, Mon-Dak,
Nesson Valley, Horsehead Flats, and Olvier-Mercer
areas) that are not located in the Hudson Bay/Devils
Lake drainage basin or James River drainage basin.
(4) Pumping power.--Irrigation development authorized
by this section shall be considered authorized units of
the Pick-Sloan Missouri Basin Program and eligible to
receive project pumping power.
(5) Principal supply works.--The Secretary shall
maintain the Snake Creek Pumping Plant, New Rockford
Canal, and McClusky Canal features of the principal
supply works. As appropriate, the Secretary shall
rehabilitate or complete such features consistent with
the purposes of this Act. Subject to the provisions of
Section 8 (c) and (d)(1) of this Act, the Secretary
shall select a preferred alternative to implement the
Dakota Water Resources Act of 1999. In making this
selection, one of the alternatives the Secretary shall
consider is whether to connect the principal supply
works in existence on the date of enactment.
[(d)] (b) The Secretary is prohibited from obligating fund
to construct irrigation facilities in the service areas listed
in subsection [(a)(1)] (a) until a contract or contracts, in a
form approved by the Secretary, providing for the appropriate
payment of the costs allocated to irrigation have been properly
executed by a district or districts organized under State law.
Such contract or contracts shall be consistent with the
requirements of the Reclamation Reform Act of 1982 (title II,
Public Law 97-293, 96 Stat. 1263).
[(e)] (c) The Secretary is authorized to develop irrigation
in the following project service areas within the boundaries of
the Fort Berthold and Standing Rock Indian Reservations: [Lucky
Mound (7,700 acres), Upper Six Mile Creek (7.500 acres)] Lucky
Mound (7,700 acres) and Upper Six Mile Creek (7,500 acres), or
such other lands at Fort Berthold of equal acreage as may be
selected by the tribe and approved by the Secretary. and one or
more locations within the Standing Rock Indian Reservation
(2,380 acres), except that, no funds are authorized to be
appropriated for construction of these projects until the
Secretary has made a finding of irrigability of the lands to
receive water as required by the Act of July 31, 1953 (67 Stat.
266; 43 U.S.C. 390a). Repayment for the units authorized under
this subsection shall be made pursuant to the Leavitt act (25
U.S.C. 386a).
[(f)] (d) The Secretary shall not permit the use of project
facilities for non-project drainage not included in project
design or required for project operations.
(e) Irrigation Report to Congress.--
(1) In general.--The Secretary shall investigate and
prepare a detailed report on the undesignated 28,000
aces in subsection (a)(3) as to the costs and benefits
for any irrigation units to be developed under
Reclamation law.
(2) Finding.--The report shall include a finding on
the economic, financial and engineering feasibility of
the proposed irrigation unit, but shall be limited to
the undesignated 28,000 acres.
(3) Authorization.--If the Secretary finds that the
proposed construction is feasible, such irrigation
units are authorized without further Act of Congress.
(4) Documentation.--No expenditure for the
construction of facilities authorized under this
section shall be made until after the Secretary, in
cooperation with the State of North Dakota, has
prepared the appropriate documentation in accordance
with section 1 and pursuant to the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.) analyzing the direct and indirect impacts of
implementing the report.
SEC. 6.
(a) Municipal, rural, and industrial water systems
constructed with funds authorized by section 7 of this Act
shall utilize power from the Pick-Sloan Missouri Basin Program,
as established by section 9 of the Flood Control Act of 1944
(Act of December 22, 1944), for the operation of such systems.
(b) [Notwithstanding the provisions of] Pursuant to the
provisions of section 302(a)(3) of the Department of Energy
Organization Act (42 U.S.C. 7152(a)(3)), any portion of the
costs properly chargeable to irrigation for the Garrison
Diversion Unit which are beyond the ability of water users to
repay as authorized by Reclamation law may be repaid from power
[revenues, except repayment of investment in irrigation for the
Garrison Diversion Unit made after the date of enactment of
this Act may not exceed forty years from the year in which
irrigation water is first delivered for use by the contracting
party and shall be made in equal annual installments.]
revenues.
[(c) Pursuant to the provisions of the last sentence of
section 302(a)(3) of the Department of Energy Organization Act
of 1978 (42 U.S.C. 7152(a)(3)), any reallocation of costs to
project purposes other than irrigation as a result of section
1(e) of this Act shall not result in increased rates to Pick-
Sloan Missouri Basin Program customers unless: (1) full use has
been made of the current development method of ratesetting in
analyzing the repayment status and cost allocations for the
Garrison Diversion Unit and (2) the resulting rate increase, if
any, is made in equal amounts over the ten year period
beginning on the date of any such reallocation pursuant to this
Act. Costs reallocated to project purposes other than
irrigation as a result of section 1(e) of this Act shall be
repaid, if reimbursable, with interest at the rate specified in
section 4(b) of this Act beginning on the date of any such
reallocation without retroactive interest. Nothing in this Act
shall alter or affect in any way the current repayment
methodology for other features of the Pick-Sloan Missouri Basin
Program.]
(c) No Increase in Rates or Affect on Repayment
Methodology.--In accordance with the last sentence of section
302(a)(3) of the Department of Energy Organization Act (42
U.S.C. 7152(a)(3), section 1(e) shall not result in any
reallocation of project costs and shall not result in increased
rates to Pick-Sloan Missouri Basin Program customers. Nothing
in the Dakota Water Resources Act of 1999 alters or affects in
any way the repayment methodology in effect as of the date of
enactment of that Act for other features of the Pick-Sloan
Missouri Basin Program.
SEC. 7.
(a)(1) The Secretary of the Interior is authorized to
construct municipal, rural, and industrial water systems to
serve areas throughout the State of North Dakota.
(2) All planning, design, construction and operation of the
municipal, rural, and industrial water systems authorized by
this section shall be undertaken in accordance with a
cooperative agreement between the Secretary and the State of
North Dakota. Such cooperative agreement shall set forth in a
manner acceptable to the Secretary the responsibilities of the
State for:
(A) needs assessment;
(B) feasibility studies;
(C) engineering and design;
(D) construction;
(E) operation and maintenance; and
(F) the administration of contracts pertaining to any
of the foregoing.
(3) Upon execution of the cooperative agreement required
under this subsection, the Secretary is authorized to convey to
the State of North Dakota, on a nonreimbursable basis, the
funds authorized in section 10(b)(1) of this Act. [The non-
Federal share] Unless otherwise provided in this Act, the non-
Federal share of the total cost of construction of [each water
system] water systems for which the State of North Dakota
receives funding pursuant to this section shall be 25 percent,
committed prior to the initiation of construction. The State
may use the Federal and non-Federal funds to provide grants or
loans for municipal, rural, and industrial water systems. The
State shall use the proceeds of repaid loans for municipal,
rural, and industrial water systems. Proceeds from loan
repayments and any interest thereon shall be treated as federal
funds. The non-Federal share of the cost of operation,
maintenance, and replacement of each municipal, rural, and
industrial water system funded by this section shall be
100percent. [The Southwest Pipeline Project shall be deemed to be
eligible for funding under the terms of this section.] The Southwest
Pipeline Project, the Northwest Area Water Supply Project, the Red
River Valley Water Supply Project, and other municipal, industrial, and
rural water systems in the State of North Dakota shall be eligible for
funding under this section. Funding provided under this section for the
Red River Valley Water Supply Project shall be in addition to funding
for that project under section 10(a)(1)(B). The amount of non-Federal
contributions after May 12, 1986 that exceeds the 25 percent
requirement shall be credited to the State for future use in municipal,
rural, and industrial projects under this section.
[(b) The Secretary is authorized and directed to construct,
operate, and maintain a Sheyenne River water supply and release
feature (including a water treatment plant) capable of
delivering 100 cubic feet per second of water for the cities of
Fargo and Grand Forks and surrounding communities. The costs of
the construction, operation, maintenance, and replacement of
this feature, exclusive of conveyance shall be nonreimbursable
and deemed attributable to meeting the requirements of the
Boundary Waters Treaty of 1909.
[(c) The Secretary is authorized and directed to construct,
operate, and maintain such municipal, rural, and industrial
water systems as he deems necessary to meet the economic,
public health and environmental needs of the Fort Berthold,
Standing Rock, and Fort Totten Indian Reservations and Fort
Totten Indian Reservations.
[(d) Municipal, rural, and industrial water systems
constructed with funds authorized under this Act may deliver
Missouri River water into the Hudson Bay drainage only after
the Secretary of the Interior, in consultation with the
Secretary of State and the Administrator of the Environmental
Protection Agency, has determined that adequate treatment has
been provided to meet the requirements of the Boundary Waters
Treaty of 1909.]
(b) Water Conservation Program.--The State of North Dakota
may use funds provided under subsection (a) and (b)(1)(A) of
section 10 to develop and implement a water conservation
program. The Secretary and the State shall jointly establish
water conservation goals to meet the purposes of the State
program and to improve the availability of water supplies to
meet the purposes of this Act. If the states achieves the
established water conservation goals, the non-Federal cost
share for future projects under subsection (a)(3) shall be
reduced to 24.5 percent.
(c) Nonreimbursability of Costs.--With respect to the
Southwest Pipeline Project, the Northwest Area Water Supply
Project, the Red River Valley Water Supply Project, and other
municipal, industrial, and rural water systems in North Dakota,
the costs of the features constructed on the Missouri River by
the Secretary of the Army before the date of enactment of the
Dakota Water Resources Act of 1999 shall be nonreimbursable.
(d) Indian Municipal, Rural, and Industrial Water Supply.--
The Secretary shall construct, operate, and maintain such
municipal, rural, and industrial water systems as the Secretary
determines to be necessary to meet the economic, public health
and environmental needs of the Fort Berthold, Standing Rock,
Turtle Mountain (including the Trenton Indian Service Area) and
Fort Totten Indian Reservations, and adjacent areas.
[SEC. 8.
[(a) In accordance with the recommendations of the Garrison
Diversion Unit Commission Final Report and section 1 of this
Act, the Sykeston Canal shall be constructed as a functional
replacement for the Lonetree Dam and Reservoir. The Sykeston
Canal shall be designed and constructed to meet only the water
delivery requirements of the irrigation areas and municipal,
rural, and industrial water supply needs authorized in this
Act. The Sykeston Canal shall be located, constructed, and
operated so that, in the opinion of the Secretaries of the
Interior and State, no violation of the Boundary Waters Treaty
of 1909 would result. The Secretary may not commence
construction on the Sykeston Canal until a master repayment
contract consistent with the provisions of this Act between the
Secretary and the appropriate non-Federal entity has been
executed.
[(2) The Lonetree Dam and Reservoir shall remain an
authorized feature of the Garrison Diversion Unit; however,
construction funds may be requested by the Secretary for
Lonetree Dam and Reservoir only after:
[(A) the Secretary has determined that there is a
need for the dam and reservoir based on a contemporary
appraisal using procedures such as those employed in
the preparation of feasibility studies for water
resources development projects submitted to Congress;
[(B) consultations with the Government of Canada have
reached a conclusion satisfactory to the Secretary of
State, after consultation with the Administrator of the
Environmental Protection Agency, that no violation of
the Boundary Waters Treaty of 1909 would result from
the construction and operation of the dam and
reservoir; and
[(C) the Secretaries of the Interior and State have
submitted the determinations required by subparagraphs
(A) and (B) above to the Congress and 90 calendar days
have elapsed.
[(b) Taayer Reservoir is deauthorized as a project
feature. The Secretary is directed to acquire up to
5,000 acres in the Kraft and Pickell Slough areas and
to manage the area as a component of the National
Wildlife Refuge System giving consideration to the
unique wildlife values of the area. In acquiring the
lands which comprise the Kraft and Pickell Slough
complex, the Secretary is authorized to acquire
wetlands in the immediate vicinity which may be
hydrologically related and nearby uplands as may be
necessary to provide for proper management of the
complex. The Secretary is also authorized to provide
for appropriate visitor access and control at the
refuge.]
SEC. 8. SPECIFIC FEATURES.
(a) Red River Valley Water Supply Project.--
(1) In general.--The Secretary shall construct a
feature or features to deliver Missouri River water to
the Sheyenne River water supply and release facility or
such other feature or features as are selected under
subsection (d).
(2) Design and construction.--The feature shall be
designed and constructed to meet only the water
delivery requirements of the irrigation areas,
municipal, rural, and industrial water supply needs,
ground water recharge, and streamflow augmentation (as
described in subsection (b)(2)) authorized in this Act.
(3) Commencement of construction.--The Secretary may
not commence construction on the feature until a master
repayment contract or water service agreement
consistent with this Act between the Secretary and the
appropriate non-Federal entity has been executed.
(b) Report on Red River Valley Water Needs and Delivery
Options.--
(1) In general.--Pursuant to section 1(g), not later
than 90 days after the effective date of the Dakota
Water Resources Act of 1999, the Secretary and the
State of North Dakota shall jointly submit to Congress
a report on the comprehensive water quality and
quantity needs of the Red River Valley and the options
for meeting those needs, including the delivery of
Missouri River water to the Red River Valley.
(2) Needs.--The needs addressed in the report shall
include such needs as--
(A) augmenting streamflows;
(B) groundwater recharge; and
(C) enhancing--
(i) municipal, rural, and industrial
water supplies;
(ii) water quality;
(iii) aquatic environment; and
(iv) recreation.
(3) Studies.--Existing and ongoing studies by the
Bureau of Reclamation on Red River Water Supply needs
and options shall be deemed to meet the requirements of
this section.
(c) Environmental Impact Statement.--
(1) Draft.--
(A) Deadline.--Pursuant to an agreement
between the Secretary and State of North Dakota
as authorized under section 1(g), not later
than 1 year after the date of enactment of the
Dakota Water Resources Act of 1999, the
Secretary and the State of North Dakota shall
jointly prepare and complete a draft environmental
impact statement concerning all feasible options
to meet the comprehensive water quality and quantity
needs of the Red River Valley and the options for
meeting those needs, including the delivery of Missouri
River water to the Red River Valley.
(B) Report on status.--If the Secretary and
State of North Dakota cannot prepare and
complete the draft environmental impact
statement within 1 year after the date of
enactment of the Dakota Water Resources Act of
1999, the Secretary, in consultation and
coordination with the State of North Dakota,
shall report to Congress on the status of this
activity, including an estimate of the date of
completion.
(2) Final.--
(A) Deadline.--Not later than 1 year after
filing the draft environmental impact
statement, a final environmental impact
statement shall be prepared and published.
(B) Report on status.--If the Secretary and
State of North Dakota cannot prepare and
complete a final environmental impact statement
within 1 year of the completion of the draft
environmental impact statement, the Secretary,
in consultation and coordination with the State
of North Dakota, shall report to Congress on
the status of this activity, including an
estimate of the date of completion.
(d) Process for Selection.--
(1) In general.--After reviewing the final report
required by subsection (b)(1) and complying with
subsection (c), the Secretary, in consultation and
coordination with the State of North Dakota in
coordination with affected local communities, shall
select 1 or more project features described in
subsection (a) that will meet the comprehensive water
quality and quantity needs of the Red River Valley.
(2) Agreements.--Not later than 180 days after the
record of decision has been executed, the Secretary
shall enter into a cooperative agreement with the State
of North Dakota to construct the feature or features
selected.
(e) Sheyenne River Water Supply and Release or Alternate
Features.--The Secretary shall construct, operate, and maintain
a Sheyenne River water supply and release feature (including a
water treatment plant) capable of delivering 100 cubic feet per
second of water or any other amount determined in the reports
under this section, for the cities of Fargo and Grand Forks and
surrounding communities, or such other feature or features as
may be selected under subsection (d).
[SEC. 9.
[Until the construction costs of the facilities authorized
in section 5 are repaid, the Secretary is directed to charge a
``surplus crop production charge'' equal to 10 percent of full
cost, as defined in section 202(3)(A)-(C) of the Reclamation
Reform Act of 1982 (Public Law 97-293, 96 Stat. 1263), for the
delivery of project water used in the production of any basic
agricultural commodity if the total supply of such commodity
for the marketing years in which the bulk of the crop would
normally be marketed is in excess of the normal supply as
determined by the Secretary of Agriculture. The Secretary of
the Interior shall announce the amount of the surplus crop
production charge for the succeeding year on or before July 1
of each year. The surplus crop production charge shall not
apply to crops produced in the 5,000 acre Oakes Test Area for
research purposes under the direction of the Secretaries of the
Interior or Agriculture.]
SEC. 9. OAKES TEST AREA TITLE TRANSFER.
(a) In General.--Not later than 2 years after the execution
of a record of decision under section 8(d) on whether to use
the New Rockford Canal as a means of delivering water to the
Red River Basin as described in section 8, the Secretary shall
enter into an agreement with the State of North Dakota, or its
designee, to convey title and all or any rights, interests, and
obligations of the United States in and to the Oakes Test Area
as constructed and operated under Public Law 99-294 (100 Stat.
418) under such terms and conditions as the Secretary believes
would fully protect the public interest.
(b) Terms and Conditions.--The agreement shall define the
terms and conditions of the transfer of the facilities, lands,
mineral estate, easements, rights-of-way and water rights
including the avoidance costs that the Federal Government
wouldotherwise incur in the case of a failure to agree under provisions
described in subsection (d).
(c) Compliance.--The action of the Secretary under this
section shall comply with all applicable requirements of
Federal, State, and local law.
(d) Failure To Agree.--If an agreement is not reached
within the time limit specified in subsection (a), the
Secretary shall dispose of the Oakes Test Area facilities under
the Federal Property and Administrative Services Act of 1949
(40 U.S.C. 471 et seq.).
SEC. 10.
[(a)(1) There are authorized to be appropriated
$270,395,000 for carrying out the provisions of section 5(a)
through section 5(c) and section 8(a)(1) of this Act]
(a) Water Distribution Features.--
(1) In general.--
(A) Main stem supply works.--There is
authorized to be appropriated $164,000,000 to
carry out section 5(a).
(B) Red river valley water supply project.--
There is authorized to be appropriated to carry
out section 8(a)(1) $200,000,000.
(C) Availability._Such sums [Such sums] shall
remain available until expended.
(2) Indian irrigation._
(A) In general._There is [There is]
authorized to be appropriated $12,570,000 [for
carrying out the provisions of section 5(e)] to
carry out section 5(c) of this Act
(B) Availability._Such sums [Such sums] shall
remain available until expended.
(b) Municipal, Rural, and Industrial Water Supply._
(1) Statewide._
(A) Initial amount._There is [(b)(1) There
is] authorized to be appropriated $200,000,000
to carry out the provisions of section 7(a) of
this Act.
(B) Additional amount._In addition to the
amount under subparagraph (A), there is
authorized to be appropriated to carry out
section 7(a) $200,000,000.
(C) Availability._Such sums [Such sums] shall
remain available until expended.
[(2) There are authorized to be appropriated
$61,000,000 to carry out the provisions of section 7(b)
through section 7(d) of this Act.]
(2) Indian municipal, rural, and industrial water and
other delivery features.--
(A) Initial amount.--There is authorized to
be appropriated--
(i) to carry out section 8(a)(1),
$40,500,000; and
(ii) to carry out section 7(d),
$20,500,000.
(B) Additional amount.--
(I) In general.--In addition to the
amount under subparagraph (A), there is
authorized to be appropriated to carry
out section 7(d) $200,000,000.
(ii) Allocation.--The amount under
clause (i) shall be allocated as
follows:
(I) $30,000,000 to the Fort
Totten Indian Reservation.
(II) $70,000,000 to the Fort
Berthold Indian Reservation.
(III) $80,000,000 to the
Standing Rock Indian
Reservation.
(IV) $20,000,000 to the
Turtle Mountain Indian
Reservation.
(C) Availability._Such sums [Such sums] shall
remain available until expended.
(c) Resources Trust and Other Provisions._
(1) Initial amount._There is [There is] authorized to
be appropriated for carrying out the remaining
provisions of this Act $80,535,000. [No funds are
authorized for the construction of the Lonetree Dam and
Reservoir. There are also authorized to be appropriated
such additional funds as may be necessary for operation
and maintenance of the unit.]
(2) Additional amount.--In addition to the amount
under paragraph (1), there are authorized to be
appropriated--
(A) $6,500,000 to carry out recreational
projects; and
(B) an additional $25,000,000 to carry out
section 11; to remain available until expended.
(3) Recreational projects.--Of the funds authorized
under paragraph (2) for recreational projects, up to
$1,500,000 may be used to fund a wetland interpretive
center in the State of North Dakota.
(4) Operation and maintenance.--
(A) In general.--There are authorized to be
appropriated such sums as are necessary for
operation and maintenance of the unit
(including the mitigation and enhancement
features).
(B) Authorization limits.--Expenditures for
operation and maintenance of features
substantially completed and features
constructed before the date of enactment of the
Dakota Water Resources Act of 1999, including
funds expended for such purposes since the date
of enactment of Public Law 99-294, shall not be
counted against the authorization limits in
this section.
(5) Mitigation and enhancement land.--On or about the
date on which the features authorized by section 8(a)
are operational, a separate account in the Natural
Resources Trust authorized by section 11 shall be
established for operation and maintenance of the
mitigation and enhancement land associated with the
unit.
(d) Any funds previously appropriated for the Garrison
Diversion Unit may be expended to carry out any of the
provisions of this Act.
[(e) The portion of the $61,000,000 authorized for Indian
municipal, rural, and industrial water features shall be
indexed as necessary to allow for ordinary fluctuations of
construction costs incurred after October 1, 1986, as indicated
by engineering costs indices applicable for the type of
construction involved. All other authorized cost ceilings shall
remain unchanged.]
(e) Inexing.--The $200,000,000 amount under subsection
(b)(1)(B), the $200,000,000 amount under subsection (a)(1)(B),
and the funds authorized under subsection (b)(2) shall be
indexed as necessary to allow for ordinary fluctuations of
construction costs incurred after the date of enactment of the
Dakota Water Resources Act of 1999 as indicated by engineering
cost indices applicable for the type of construction involved.
All other authorized cost ceilings shall remain unchanged.
SEC. 11.
[(a) Federal Contributions.--From the sums appropriated
under section 10 of this Act for the Garrison Diversion Unit,
the Secretary of the Interior shall make an annual Federal
contribution to a Wetlands Trust established by non-Federal
interests in accordance with subsection (b), and operated in
accordance with subsection (c), of this section. The amount of
each such annual contribution shall be as follows:
[(1) For fiscal year 1986: $2,000,000.
[(2) For each of the fiscal years 1987 through 1990:
3 percent of the total amount appropriated under
section 10 of this Act, but not to exceed $500,000 for
each such fiscal year.
[(3) For each fiscal year after 1990: 5 percent of
the total amount appropriated under section 10 of this
Act, but only if a contribution to the Trust equal to
10 percent of all Federal contributions is provided or
contracted for by the State of North Dakota from non-
Federal funds. The contributions of the State of North
Dakota may be paid to the Trust in such amounts and in
such manner as may be agreed upon by the Governor and
the Secretary.
[(4) The total Federal contributions pursuant to the
Act shall not exceed $12,000,000.]
(a) Contribution.--
(1) Initial authoriation.--
(A) In general.--From the sums appropriated
under section 10 for the Garrison Diversion
Unit, the Secretary shall make an annual
Federal contribution to a Natural Resources
Trust established by non-Federal interests in
accordance with subsection (b) and operated in
accordance with subsection (c).
(B) Amount.--The total amount of Federal
contribution under subparagraph (A) shall not
exceed $12,000,000.
(2) Additional authorization.--
(A) In general.--In addition to the amounts
authorized in paragraph 1, the Secretary shall
make annual Federal contributions to the
Natural Resources Trust until the amount
authorized by section 10(c)(2)(B) is reached,
in the manner stated in subparagraph (B).
(B) Annual amount.--The amount of the
contribution under subparagraph (A) for each
fiscal year shall be the amount that is equal
to 5 percent of the total amount that is
appropriated for the fiscal year under
subsections (a)(1)(B) and (b)(1)(B) of section
10.
(b) Structure of the Trust.--A [Wetlands Trust] Natural
Resources Trust shall be eligible to receive Federal
contributions pursuant to subsection (a) if it complies with
each of the following requirements:
(1) The Trust is established by non-Federal interests
as a non-profit corporation under the laws of North
Dakota with its principal office in North Dakota.
(2) The Trust is under the direction of a Board of
Directors which has the power to manage all affairs of
the corporation, including administration, data
collection, and implementation of the purposes of the
Trust.
(3) The Board of Directors of the Trust is comprised
of 6 persons appointed as follows, each for a term of 2
years:
(A) 3 persons appointed by the Governor of
North Dakota.
(B) 1 person appointed by the National
Audubon Society.
(C) 1 person appointed by the National
Wildlife Federation.
(D) 1 person appointed by the North Dakota
Chapter of the Wildlife Society.
Vacancies on the board are filled in the manner in
which the original appointments were made. Any member
of the Board of Directors is eligible for reappointment
for successive terms. Any member appointed to fill a
vacancy occurring before the expiration of the term for
which his or her predecessor was appointed is appointed
only for the remainder of such term. A member may serve
after the expiration of his or her term until his or
her successor has taken office.
(4) Members of the Board of Directors serve without
compensation.
(5) The corporate purposes of the Trust are to
preserve, enhance, restore, and manage wetland and
associated wildlife habitat in the State of North
Dakota.
(c) Operations of the Trust.--A [Wetland Trust] Natural
Resources Trust established by non-Federal interests as
provided in subsection (b) shall be deemed to be operating in
accordance with this subsection if, in the opinion of the
Secretary, each of the following requirements [are met] is met:
(1) The Trust is operated to preserve, enhance,
restore, and manage wetlands and associated wildlife
habitat, grassland conservation and riparian areas in
the State of North Dakota in accordance with its
corporate purpose as provided in subsection (b)(5).
(2) Pursuant to its corporate charter, the Trust has
the authority to exercise each of the following powers:
(A) The power to acquire lands and interests
in land and power to acquire water rights.
Lands or interests in lands may be acquired by
the Trust only with the consent of the owner
thereof and with the approval of the Governor
of North Dakota.
(B) The power to finance wetland
preservation, enhancement, restoration, and
management of wetland habitat programs.
(C) The power to fund incentives for
conservation practices by landowners.
(3) All funds received by the Trust under subsection
(a) are invested in accordance with the requirements of
subsection (d). No part of the principal amount of such
funds may be expended for any purpose. The income
received by the Trust from the investment of such funds
shall be used by the Trust exclusively for its purposes
and operations in accordance with this subsection or,
to the extent not required for current operations,
reinvested in accordance with subsection (d).
(4) The Trust agrees to provide such reports as may
be required by the Secretary or the Governor of North
Dakota and makes its records available for audit by
Federal and State agencies.
(d) Investment of Trust Funds.--The Secretary of the
Interior, in consultation with the Secretary of the Treasury
and the Governor of North Dakota, shall establish requirements
for the investment of all amounts received by the Trust under
subsection (a) or reinvested under subsection (c)(3). Such
requirements shall ensure that such amounts are invested in
accordance with sound investment principles and shall ensure
that persons managing such investments will exercise their
fiduciary responsibilities in appropriate manner.
