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                                                       Calendar No. 929
106th Congress                                                   Report
 2d Session                                                     106-480




October 3 (legislative day, September 22), 2000.--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. 3022]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 3022) to direct the Secretary of the 
Interior to convey certain irrigation facilities to the Nampa 
and Meridian Irrigation District, having considered the same, 
reports favorably thereon with an amendment and recommends that 
the bill, as amended, do pass.
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:


    This Act may be cited as the ``Nampa and Meridian Conveyance Act''.


    The Secretary of the Interior (in this Act referred to as the 
``Secretary'') shall, as soon as practicable after the date of 
enactment of this Act, convey facilities to the Nampa and Meridian 
Irrigation District (in this Act referred to as the ``District'') in 
accordance with all applicable laws and pursuant to the terms of the 
Memorandum of Agreement (contract No. 1425-99MA102500, dated 7 July 
1999) between the Secretary and the District. The conveyance of 
facilities shall include all right, title, and interest of the United 
States in and to any portion of the canals, laterals, drains, and any 
other portion of the water distribution and drainage system that is 
operated or maintained by the District for delivery of water to and 
drainage of water from lands within the boundaries of the District.


    Except as otherwise provided by law, effective on the date of 
conveyance of facilities under this Act, the United States shall not be 
liable for damages of any kind arising out of any act, omission, or 
occurrence based on its prior ownership or operation of the conveyed 


    Nothing in this Act affects the rights of any person except as 
provided in this Act. No water rights shall be transferred modified, or 
otherwise affected by the conveyance of facilities and interests to the 
Nampa and Meridian Irrigation District under this Act. Such conveyance 
shall not affect or abrogate any provision of any contract executed by 
the United States or State law regarding any irrigation district's 
right to use water developed in the facilities conveyed.

                         purpose of the measure

    The purpose of S. 3022 is to direct the Secretary of the 
Interior to convey certain irrigation facilities to the Nampa 
and Meridian Irrigation District in Idaho. The transfer shall 
be done pursuant to a Memorandum of Agreement dated July 7, 
1999. Existing rights are not affected by the Act, nor are any 
water rights transferred or modified by the conveyance.

                          background and need

    The Nampa and Meridian Irrigation District (NMID) is 
located in the Boise Valley and serves the area in and around 
the cities of Nampa and Meridian, Idaho. NMID diverts water 
from the Boise River into a system of canals and laterals known 
as the Ridenbaugh Canal system for delivery to lands in the 
district, and provides drainage for district lands through a 
system of drain ditches. NMID performs these water delivery and 
drainage functions pursuant to title 43 of the Idaho Code. 
Since 1878, when the Canal was first constructed, NMID and its 
private predecessors have been responsible for operating and 
maintaining NMID's delivery and drainage systems.
    The proposed transfer of title of certain project 
components to NMID meets the objectives of the Bureau of 
Reclamation's title transfer initiative and the criteria of 
Reclamation's Framework for Title Transfer. NMID has 
effectively operated and maintained the segments since they 
were constructed and has satisfied its construction repayment 
obligations. NMID will continue to care for, operate and 
maintain these segments as integral parts of its irrigation and 
drainage systems in a manner that is consistent with its legal 
and fiduciary responsibilities. Under State law and Reclamation 
contracts, NMID is the only candidate for title transfer 
because the facilities were constructed for irrigation and 
drainage purposes, lie solely within NMID's boundaries and, 
under Idaho Statutes, NMID is the only entity that has the 
authority, right and responsibility to operate and maintain the 
delivery and drainage systems to deliver NMID water rights and 
drain water for the benefit of NMID landowners. The segments 
proposed to be transferred are integral parts of the overall 
delivery and drainage system and cannot be separated.
    The proposed transfer will eliminate redundant 
administrative review of projects affecting portions of NMID's 
irrigation and drainage systems and make the approval process 
more time and cost efficient for NMID and the public. The 
transfer will also enable Reclamation to use its resources more 
effectively in other areas within its jurisdiction. NMID's 
continued use, operation, and maintenance of the portions of 
its irrigation and drainage systems involved in the transfer 
will ensure that they will be properly managed and maintained 
for the delivery and drainage of water within NMID.
    Recognizing that title transfer would be cost effective and 
efficient for both NMID and Reclamation, the Board of Directors 
of NMID adopted a resolution on September 19, 1995 authorizing 
the process of title transfer. For approximately five years the 
Irrigation District has been engaged with Reclamation in the 
process of title transfer. Until early 1998, little progress 
was made. Later that year, the Bureau sent a scoping letter to 
stakeholders and determined the primary issue of interest was 
access to NMID right-of-ways for recreational pathways. Access 
has been successfully addressed. On July 7, 1999, the Bureau of 
NMID concluded a memorandum of agreement for the purpose of 
title transfer. Subsequent to that agreement, NMID, in 
cooperation with the Bureau, drafted title transfer legislation 
which was introduced in this Congress.

                          legislative history

    S. 3022 was introduced by Senator Craig on September 8, 
2000 and a Subcommittee hearing was held on September 19, 2000. 
At the business meeting on September 20, 2000, the Committee on 
Energy and Natural Resources ordered S. 3022, as amended, 
favorably reported.

            committee recommendation and tabulation of votes

    The Committee on Energy and Natural Resources, in open 
business session on September 20, 2000 by a unanimous voice 
vote with a quorum present, recommends that the Senate pass S. 
3022, if amended as described herein.

                          committee amendment

    During the consideration of S. 3022, the Committee adopted 
an amendment in the nature of a substitute. The amendment 
addresses concerns raised by the Administration at the 
Subcommittee hearing. The amendment clarifies that the transfer 
of the United States' interest in certain easements, whether 
acquired or reserved, will not affect the rights of the 
underlying fee landowner. Second, liability language was 
changed to clarify that the District assumes liability for 
facilities to be transferred.

                   cost and budgetary considerations

    The following estimate of costs of this measure has been 
provided by the Congressional Budget Office.

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, October 2, 2000.
Hon. Frank H. Murkowski,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 3022, the Nampa and 
Meridian Conveyance Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Lisa Cash 
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).

               congressional budget office cost estimate

S. 3022--Nampa and Meridian Conveyance Act

    S. 3022 would authorize the Secretary of the Interior to 
convey the water distribution and drainage system within the 
Nampa and Meridian Irrigation District in Idaho to the 
district. Based on information from the Bureau of Reclamation, 
CBO estimates that this bill would not have a significant 
effect on the federal budget. The district paid the last of its 
repayment obligations to the government in 1987, and the 
district pays the full cost of operating and maintaining these 
systems. Because S. 3022 would not affect direct spending or 
receipts, pay-as-you-go procedures would not apply.
    S. 3022 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would have no significant impact on the budgets of state, 
local, or tribal governments.
    On September 19, 2000, CBO transmitted a cost estimate for 
H.R. 3067, the Nampa and Meridian Conveyance Act, as ordered 
reported by the House Committee on Resources on September 12, 
2000. The two bills are identical, as are our cost estimates.
    The CBO staff contact for this estimate is Lisa Cash 
Driskill. This estimate was approved by Peter H. Fontaine, 
Deputy Assistant Director for Budget Analysis.

                      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. 3022. 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 
    Little, if any, additional paperwork would result from the 
enactment of S. 3022, as ordered reported.

                        executive communications

    On September 14, 2000, 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. 3022. These 
reports had not been received at the time the report on S. 3022 
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 Acting 
Chief of Staff of the Bureau of Reclamation at the Subcommittee 
hearing follows:

    Statement of Robert J. Quint, Acting Chief of Staff, Bureau of 
                Reclamation, Department of the Interior

    My name is Robert Quint. I am Acting Chief of Staff of the 
U.S. Bureau of Reclamation (Reclamation). I am pleased to 
provide the Department's views on S. 3022, to direct the 
Secretary of the Interior to convey canals, laterals and 
distribution, conveyance and drainage facilities associated 
with the Boise Project to the Nampa and Meridian Irrigation 
District (District) near Boise in Southwestern Idaho. This 
transfer would be completed in compliance with all applicable 
laws as well as with the Memorandum of Agreement between 
Reclamation and the District that is in place. We believe these 
facilities to be good candidates for title transfer and with 
two technical modifications, the Administration could support 
S. 3022.


    Mr. Chairman, the facilities under consideration for 
transfer, which are technically part of the Boise Project, 
involve only a relatively small portion--less than five 
percent--of the lateral and drain system used by the District. 
Title to a large portion of the existing ``Ridenbaugh'' system 
is already held by the District. The facilities under 
consideration for transfer are used exclusively for irrigation 
purposes and have always been operated and maintained by the 
District. The District completed its repayment obligation in 
1987. The water rights, which are Boise River Flow Water Rights 
and Boise Project Storage Rights, are not proposed for 
    In 1995, the District's Board of Directors passed a 
resolution to formally request the Bureau of Reclamation to 
initiate the process to transfer title of all Federal interest 
in the distribution, conveyance and drainage system within the 
District boundaries.
    In December 1998, a scoping letter was released as an 
initial step in the process required under the National 
Environmental Policy Act (NEPA). The scoping letter is intended 
to identify issues, as well as comments and concerns from 
Federal, state and local agencies and individuals, or 
stakeholders, who may have an interest in these facilities.
    In July 1999, The District and Reclamation entered into the 
Memorandum of Agreement referenced in the bill, which 
delineates the process and responsibilities for completing the 
title transfer including activities to comply with Federal laws 
including NEPA, the National Historic Preservation Act, and the 
Endangered Species Act, as well as to identify and deal with 
Native American Trust assets, and other issues that may arise.
    Subsequently, the District contracted with Ogden 
Environmental and Energy Services to prepare and draft the 
environmental analysis documents which are part of the NEPA 
process. In August, 2000, Reclamation, in cooperation with the 
District and their contractor, released the Draft Environmental 
Assessment (EA), which is currently available for public review 
and comment. The comment period for this EA is scheduled to 
close on September 28, 2000.
    As you can see, a significant amount of work is well 
underway and we are very encouraged by the progress.
    Mr. Chairman, when we testified on a similar bill in the 
House Resources Committee in October 1999, the process under 
NEPA was just beginning. At that time, the major issue that was 
raised was related to the use of certain portions of the 
distribution, conveyance and drainage system's right-of-way for 
recreation bike/jogging/walking paths by local citizens. Since 
that time, the District has worked very hard to deal with these 
issues--holding numerous meeting with the cities of Nampa, 
Meridian, Boise and Caldwell, Ada County, the Ada County 
Planning Association, and the Foundation for Ada County Trail 
System. It appears that the District has made great progress--
agreeing to enter into agreements with various groups and 
jurisdictions to accommodate the development of recreational 
pathways and for recreational use. They have also had numerous 
meetings with Reclamation and the State Historic Preservation 
Office to resolve issues associated with protection of the 
historic value of the irrigation system--including both those 
segments included in the transfer, and the rest of the system 
that is already owned by NMID. I am pleased to hear that this 
progress has been made and that the NEPA process provided a 
mechanism for that facilitated those activities.

                     issues addressed with s. 3022

    Mr. Chairman, when we testified on similar legislation in 
the House, concerns were raised about some aspects of the 
legislation. While there are two technical issues which still 
need to be addressed, I am pleased to report that S. 3022 has 
resolved previous concerns. We appreciate the cooperation of 
the District and the Idaho delegation in working with us on 
these issues.
    (1) Deadline: In the House version of this legislation, as 
introduced, there was a provision setting a one year deadline 
for completing the transfer. The Administration strongly 
opposed this provision and I appreciate the willingness of the 
District and the delegation to remove it. One of the reasons 
for our opposition was that it was an unnecessary constraint on 
the NEPA process. As we have seen from our recent experience 
with the implementation of P.L. 105-351 to transfer facilities 
to the Burley Irrigation District in Idaho, the process of 
completing a title transfer, even where we have to do NEPA 
compliance, does not have to take a long time if there is good 
cooperation between all of the parties and the controversies 
have been resolved. In the case of the Burley transfer, we were 
able to complete the NEPA process and develop an agreement on 
the transfer and management of water rights as required by the 
statute, several months ahead of the schedule set out in the 
law and within the budget that we had originally estimated.
    (2) Third Party Impacts: In testimony before the House, 
concerns of other Boise Project contractors were identified. 
These contractors were concerned about the possible impact on 
non-District facilities and water rights that are within the 
District boundaries but which are held by the United States, 
and/or operated and maintained by other Boise Project 
contractors such as the Black Canyon Irrigation District or the 
Boise Project Board of Control. It appears that the addition of 
Section 2(d)(1) and 2(d)(2) addresses these concerns.

             outstanding technical modifications to s. 3022

    While the majority of the concerns we raised have been 
addressed, there are two issues which require technical 
    (1) Land Ownership: As stated in testimony in the House 
Resources Committee, concerns have been raised that the 
transfer of the United States' interest in certain easements, 
whether acquired or reserved, that was proposed should not 
effect the rights of the underlying fee landowner. To address 
this issue, we suggest the following addition to subsection 

          Nothing in this Act shall affect the rights of any 
        person or entity except as provided herein.

    (1) Liability: Section 2(c) proposes that the District 
assume liability for the facilities to be transferred. We 
support the intent of this provision, but would like to make 
this provision consistent with language that we have worked out 
with other entities interested in title transfer. As such, we 
propose the following:

          Effective on the date of conveyance of the 
        transferred works, the United States shall not be held 
        liable by any court for damages of any kind arising out 
        of any act, omission or occurrence relating to the 
        transferred works, except for damages caused by acts of 
        negligence committed by the United Sates or by its 
        employees or agents prior to the date of conveyance. 
        Nothing in this section shall be deemed to increase the 
        liability of the United States beyond that currently 
        provided in the Federal Tort Claims Act (28 U.S.C. 
        Sec. 2671 et seq.)

    Again, Mr. Chairman, let me reiterate that we have worked 
very closely with the District and a great deal of progress has 
been made. I would also like to take this opportunity to 
compliment the District for their diligence in working with us 
and with the interested entities in Idaho, on the issues of 
concern. I would also like to thank Senator Craig and Senator 
Crapo as well as Representative Chenoweth-Hage and their staffs 
for working with us. With the technical modifications mentioned 
above, we look forward to supporting passage of this 
legislation and moving this title transfer forward.
    That concludes my statement, I would be happy to answer any 

                        changes in existing law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that no 
changes in existing law are made by the bill S. 3022, as 
ordered reported.