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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 
pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Lower Yellowstone Reclamation Projects 
Conveyance Act''.

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'' 
        means--
                  (A) the Intake Irrigation District;
                  (B) the Lower Yellowstone Irrigation District No. 1;
                  (C) the Lower Yellowstone Irrigation District No. 2; 
                and
                  (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 
        Dakota.
          (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. 
        388).
          (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 
        Program.
          (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.

  (a) Conveyances.--
          (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.
          (2) Lands.--
                  (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 
        Irrigation Districts.
          (4) Costs.--
                  (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 
        entirety.
          (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 
adjustment.

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 
protection devices.
  (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 
section 6.

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 
these projects.

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 
        Savage Unit

    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 
operations.

                            COMMITTEE ACTION

    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 
apply.
    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 
Budget Office.

                    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 
tribal law.

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes in existing 
law.