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107th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 107-760
LOWER YELLOWSTONE RECLAMATION PROJECTS CONVEYANCE ACT
October 16, 2002.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. Hansen, from the Committee on Resources, submitted the following
R E P O R T
[To accompany H.R. 2202]
The Committee on Resources, to whom was referred the bill
(H.R. 2202) to convey the Lower Yellowstone Irrigation Project,
the Savage Unit of the Pick-Sloan Missouri Basin Program, and
the Intake Irrigation Project to the pertinent irrigation
districts, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
The amendment is as follows:
Strike all after the enacting clause and insert the
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Lower Yellowstone Reclamation Projects
SEC. 2. DEFINITIONS.
In this Act:
(1) Intake irrigation district.--The term ``Intake Irrigation
District'' means the Irrigation District by that name that is
organized under the laws of the State of Montana and operates
the Intake Project.
(2) Intake project.--The term ``Intake Project'' means the
Federal irrigation development operated by the Intake
Irrigation District and authorized under the terms of the Act
of August 11, 1939 (chapter 717; 53 Stat. 1418).
(3) Irrigation districts.--The term ``Irrigation Districts''
(A) the Intake Irrigation District;
(B) the Lower Yellowstone Irrigation District No. 1;
(C) the Lower Yellowstone Irrigation District No. 2;
(D) the Savage Irrigation District.
(4) Lower yellowstone irrigation district no. 1.--The term
``Lower Yellowstone Irrigation District No. 1'' means the
irrigation district by that name that is organized under the
laws of the State of Montana and operates the part of the Lower
Yellowstone Irrigation Project located in the State of Montana.
(5) Lower yellowstone irrigation district no. 2.--The term
``Lower Yellowstone Irrigation District No. 2'' means the
irrigation district by that name organized under the laws of
the State of North Dakota and operates the part of the Lower
Yellowstone Irrigation Project located in the State of North
(6) Lower yellowstone irrigation project.--The term ``Lower
Yellowstone Irrigation Project'' means the Federal irrigation
development operated by Lower Yellowstone Irrigation District
No. 1 and Lower Yellowstone Irrigation District No. 2 and
authorized by the Act of June 17, 1902 (chapter 1093; 32 Stat.
(7) Memorandum of understanding.--The term ``Memorandum of
Understanding'' means the memorandum of understanding dated
November 16, 1999, and any subsequent replacements or
amendments between the Districts and the Montana Area Office,
Great Plains Region, Bureau of Reclamation, for the purpose of
defining certain principles by which the title to the projects
will be transferred from the United States to the districts.
(8) Pick-sloan missouri basin program.--The term ``Pick-Sloan
Missouri Basin Program'' means the comprehensive Federal
program for multipurpose benefits within the Missouri River
Basin including irrigation authorized by section 9 of the Act
of December 22, 1944, commonly known as the ``Flood Control Act
of 1944'' (chapter 665; 58 Stat. 891).
(9) Pick-sloan missouri basin program project use power.--The
term ``Pick-Sloan Missouri Basin Program Project Use Power''
means power available for establishing and maintaining the
irrigation developments of the Pick-Sloan Missouri Basin
(10) Projects.--The term ``Projects'' means--
(A) the Lower Yellowstone Irrigation Project;
(B) the Intake Project; and
(C) the Savage Unit.
(11) Savage irrigation district.--The term ``Savage
Irrigation District'' means the irrigation district by that
name that is organized under the laws of the State of Montana
and operates the Savage Unit.
(12) Savage unit.--The term ``Savage Unit'' means the Savage
Unit of the Pick-Sloan Missouri Basin Program, a Federal
irrigation development authorized by the Act of December 22,
1944, commonly known as the ``Flood Control Act of 1944''
(chapter 665; 58 Stat. 891).
(13) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
SEC. 3. CONVEYANCE OF PROJECTS.
(1) General.--The Secretary shall convey works, facilities,
and lands of the Projects to the Irrigation Districts in
accordance with all applicable laws and pursuant to the terms
of the Memorandum of Understanding.
(A) General.--All lands, easements, and rights-of-way
the United States possesses that are to be conveyed by
the Secretary to the respective irrigation districts
shall be conveyed by quitclaim deed. Conveyance of such
lands, easements, and rights-of-way is subject to
permits, licenses, leases, rights-of-use, or right-of-
way of record outstanding in third parties on, over, or
across such lands, easements, and rights-of-way.
(B) Mineral rights.--Conveyance of all lands herein
described shall be subject to a reservation by the
United States reserving all minerals of a nature
whatsoever, excluding sand and gravel, and subject to
oil, gas, and other mineral rights heretofore reserved
of record by or in favor of third parties.
(3) Water rights.--The Secretary shall transfer to the
respective Irrigation Districts in accordance with and subject
to the law of the State of Montana, all natural flow,
wastewater, seepage, return flow, domestic water, stock water,
and groundwater rights held in part or wholly in the name of
the United States that are used to serve the lands within the
(A) Reclamation withdrawn lands.--The Irrigation
Districts shall purchase Reclamation withdrawn lands as
identified in the Memorandum of Understanding for their
value in providing operation and maintenance benefits
to the Irrigation Districts.
(B) Savage unit repayment obligations.--
(i) Savage irrigation district.--As a
condition of transfer, the Secretary shall
receive an amount from the Savage Irrigation
District equal to the present value of the
remaining water supply repayment obligation of
$60,480 that shall be treated as full payment
under Contract Number I1r-1525, as amended and
as extended by Contract No. 9-07-60-W0770.
(ii) Pick-sloan missouri basin program
construction obligation.--As a condition of
transfer, the Secretary shall accept $94,727 as
payment from the Pick-Sloan Missouri Basin
Program (Eastern Division) power customers
under the terms specified in this section, as
consideration for the conveyance under this
subsection. This payment shall be out of the
receipts from the sale of power from the Pick-
Sloan Missouri Basin Program (Eastern Division)
collected by the Western Area Power
Administration and deposited into the
Reclamation fund of the Treasury in fiscal year
2003. This payment shall be treated as full and
complete payment by the power customers of the
construction aid-to-irrigation associated with
the facilities of the Savage Unit.
(b) Revocation of reclamation withdrawals and orders.--
(1) The Reclamation withdrawal established by Public Land
Order 4711 dated October 6, 1969, for the Lower Yellowstone
Irrigation Project in lots 1 and 2, section 3, T.23N., R. 59
E., is hereby revoked in its entirety.
(2) The Secretarial Order of March 22, 1906, which was issued
for irrigation works on lots 3 and 4 section 2, T. 23N., R.
59E., and Secretarial Order of August 8, 1905, which was issued
for irrigation works in section 2, T. 17 N., R. 56 E. and
section 6, T. 17 N., R. 57 E., are hereby revoked in their
(3) The Secretarial Order of August 24, 1903, and July 27,
1908, which were issued in connection with the Lower
Yellowstone Irrigation Project, are revoked insofar as they
affect the following lands:
(A) Lot 9 of Sec. 2 and lot 2 of Sec. 30, T.18N.,
R.57E.; lot 3 of Sec. 4, T.19N., R.58E.; lots 2 and 3
and 6 and 7 of Sec. 12, T.21N., R.58E.; SW\1/4\NW\1/4\
of Sec. 26, T.22N., R.58E; lots 1 and 4 and 7 and NW\1/
4\SW\1/4\ of Sec. 20, T.22N., R.59E.; SE\1/4\NE\1/4\ of
Sec. 13, T.23N., R.59E.; and lot 2 of Sec. 18, T.24N.,
R.60E.; all in the Principal Meridian, Montana.-
(B) Lot 8 of Sec. 2 and lot 1 and lot 2 and lot 3 and
NE\1/4\NE\1/4\ of Sec. 10 and lot 2 of Sec. 11 and lot
6 of Sec. 18 and lot 3 of Sec. 35, T.151N., R.104W.;
and lot 7 of Sec. 28, T.152N., R.104W.; all in the
Fifth Principal Meridian, North Dakota.
SEC. 4. REPORT.
If the conveyance under this Act has not occurred within 2 years
after the date of the enactment of this Act, the Secretary shall submit
to the Congress a status report.
SEC. 5. RECREATION MANAGEMENT.
As a condition of the conveyance of lands under section 3, the
Secretary shall require that Lower Yellowstone Irrigation District No.
1 and Lower Yellowstone Irrigation District No. 2 convey a perpetual
conservation easement to the State of Montana, at no cost to the State,
for the purposes of protecting, preserving, and enhancing the
conservation values and permitting recreation on Federal lands in part
to be conveyed under this Act. Lower Yellowstone Irrigation District
No. 1, Lower Yellowstone Irrigation District No. 2, and the State of
Montana have mutually agreed upon such conservation easement.
SEC. 6. PROJECT PUMPING POWER.
The Secretary shall sustain the irrigation developments established
by the Lower Yellowstone and Intake Projects and the Savage Unit as
components of the irrigation plan under the Pick-Sloan Missouri River
Basin Program and shall continue to provide the Irrigation Districts
with Pick-Sloan Missouri River Basin Project Use power at the
Irrigation Districts' pumping plants, except that the rate shall be at
the preference power rate and there shall be no ability-to-pay
SEC. 7. YELLOWSTONE RIVER FISHERIES PROTECTION.
(a) General.--As a condition of transfer, the Secretary, prior to the
conveyances under section 3 and in cooperation with the Irrigation
Districts, shall provide fish protection devices to prevent juvenile
and adult fish from entering the Main Canal of the Lower Yellowstone
Irrigation Project and allow bottom dwelling fish species to migrate
above the Project's Intake Diversion Dam.
(b) Participation.--The Secretary and the Irrigation District shall
work cooperatively in planning, engineering, and constructing the fish
(c) Monitoring.--The Secretary, acting through the Commissioner of
the Bureau of Reclamation and the Director of the United States Fish
and Wildlife Service, shall establish and conduct a monitoring plan to
measure the effectiveness of the devices for a minimum of 2 years after
construction is completed. The Commissioner of the Bureau of
Reclamation shall be responsible to modify the devices as necessary to
ensure proper functioning.
(d) Yellowstone River Fisheries Protection Devices Costs.--The cost
incurred in planning, engineering, constructing, monitoring, and
modifying all fish protection devices shall be deemed non-reimbursable.
(e) Operation, Maintenance and Replacements.--Following completion of
the construction period and the two-year monitoring period, the
Districts shall operate, maintain, and replace the fisheries protection
devices in a manner to ensure proper functioning.
(f) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary to implement this section.
SEC. 8. RELATIONSHIP WITH OTHER LAWS AND FUTURE BENEFITS.
Upon conveyance of the projects under this Act, the Irrigation
Districts shall not be subject to the Reclamation laws or entitled to
receive any Reclamation benefits under those laws except as provided in
SEC. 9. LIABILITY.
Effective on the date of conveyance of a project under this Act, the
United States shall not be liable under any State or Federal law for
damages of any kind arising out of any act, omission, or occurrence
relating to the projects, except for damages caused by acts of
negligence committed by the United States or by its employees, agents,
or contractors prior to the date of this conveyance. Nothing in this
section shall be considered to increase the liability of the United
States beyond that currently provided in chapter 171 of title 28,
United States Code, popularly known as the Federal Tort Act.
SEC. 10. COMPLIANCE WITH LAWS.
As a condition of the conveyances under section 3, the Secretary
shall by no later than the date on which the conveyances occur complete
appropriate analyses of the transfer in compliance with the
requirements of the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.), the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.), and other applicable laws.
PURPOSE OF THE BILL
The purpose of H.R. 2202 is to convey the Lower Yellowstone
Irrigation Project, the Savage Unit of the Pick-Sloan Missouri
Basin Program, and the Intake Irrigation Project to the
pertinent irrigation districts.
BACKGROUND AND NEED FOR LEGISLATION
This legislation directs the Bureau of Reclamation to
convey the Lower Yellowstone Irrigation Districts Numbers 1 and
2 (including all easements, right of ways, physical features,
and water rights) to Dawson and Richland Counties in the State
of Montana. This legislation will also convey the Savage Unit
of the Pick-Sloan Missouri Basin Program, and the Intake
Irrigation Project to their respective irrigation districts
after payment of the districts' share of construction costs for
Overview of transfers
Since the Bureau of Reclamation construction program began
in the early 1900s there has been an expectation that many of
the Bureau of Reclamation constructed facilities would
ultimately be transferred to the local entities they were built
to serve. Taking facilities off the federal books represents
real budget savings for the future. Transfers help shrink the
size and budget of the federal government, and help us manage
our water resources in a more efficient way.
Lower Yellowstone Irrigation Project, Intake Irrigation Project, and
The Bureau of Reclamation began work on the Lower
Yellowstone Project in 1905, just three years after the agency
was created. The goal of the project was to furnish a
dependable supply of irrigation water for about 54,000 acres of
farmland along the Yellowstone River. The project includes the
Lower Yellowstone Diversion Dam, a pumping plant, a canal, and
other associated structures.
The Intake Irrigation Project was completed by the Bureau
in the 1940s; it includes a pumping plant and an irrigation
distribution system serving 823 acres adjacent to the Lower
Yellowstone Project in Dawson County, Montana. The power used
to run the pumping operations for the Intake Project is
supplied by the Pick-Sloan Missouri Basin Program.
The Savage Unit of the Pick-Sloan Missouri Basin Program on
the far eastern edge of Montana is comprised of a feeder canal,
pumping plant, and main canal. Water is delivered to the
pumping plant by means of a feeder canal about 100 feet long
extending from the Lower Yellowstone Project Main Canal. There
are 2,200 acres of farmland in the Savage Unit. Although
ownership of the project will change under this legislation,
the bill would still require the Secretary of the Interior to
continue providing power at a subsidized cost for the pumping
H.R. 2202 was introduced on June 14, 2001, by Congressman
Dennis Rehberg (R-MT). The bill was referred to the Committee
on Resources, and within the Committee to the Subcommittee on
Water and Power. On June 5, 2002, the Subcommittee held a
hearing on the bill. On October 8, 2002, the Full Resources
Committee met to consider the bill. The Subcommittee on Water
and Power was discharged from further consideration of the bill
by unanimous consent. Mr. Rehberg offered an amendment in the
nature of a substitute. It was adopted by voice vote. The bill,
as amended, was then ordered favorably reported to the House of
Representatives by voice vote.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
CONSTITUTIONAL AUTHORITY STATEMENT
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. The Committee believes that
in the short term, enactment of this bill will provide revenue
to the United States, and in the long term, provide small
savings to the federal budget.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in tax
expenditures. Enactment of the bill will result in short-term
revenue to the federal government, although longer term
payments will be foregone.
3. General Performance Goals and Objectives. This bill does
not authorize funding and therefore, clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives does not
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has requested but not received a cost
estimate for this bill from the Director of the Congressional
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing