S. 886 Text - Reported to Senate - 116th Congress (2019-2020)

Calendar No. 397

116th CONGRESS
1st Session

S. 886

[Report No. 116–189]

To amend the Omnibus Public Land Management Act of 2009 to make the Reclamation Water Settlements Fund permanent.

IN THE SENATE OF THE UNITED STATES

March 27, 2019

Mr. Udall (for himself, Mr. Heinrich, and Ms. Cortez Masto) introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources

May 23 (legislative day, May 22), 2019

Committee discharged; referred to the Committee on Indian Affairs

December 19, 2019

Reported by Mr. Hoeven, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

A BILL

To amend the Omnibus Public Land Management Act of 2009 to make the Reclamation Water Settlements Fund permanent.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the “Indian Water Rights Settlement Extension Act”.

SEC. 2. Reclamation water settlements fund.

Section 10501 of the Omnibus Public Land Management Act of 2009 (43 U.S.C. 407) is amended—

(1) in subsection (b)(1), by striking “For each of fiscal years 2020 through 2029” and inserting “For fiscal year 2020 and each fiscal year thereafter”;

(2) in subsection (c)—

(A) in paragraph (1)(A), by striking “for each of fiscal years 2020 through 2034” and inserting “for fiscal year 2020 and each fiscal year thereafter”; and

(B) in paragraph (3)(C), by striking “for any authorized use” and all that follows through the period at the end and inserting “for any use authorized under paragraph (2).”; and

(3) by striking subsection (f).

SECTION 1. Short title.
This Act may be cited as the “Indian Water Rights Settlement Extension Act”.
SEC. 2. Reclamation water settlements fund.
Section 10501 of the Omnibus Public Land Management Act of 2009 (43 U.S.C. 407) is amended—

(1) in subsection (b)(1), by striking “fiscal years 2020 through 2029” and inserting “fiscal years 2020 through 2039”;

(2) in subsection (c)—

(A) in paragraph (1), by striking subparagraph (A) and inserting the following:

“(A) EXPENDITURES.—

“(i) IN GENERAL.—Subject to subparagraph (B)—

“(I) for each of fiscal years 2020 through 2029, the Secretary may expend from the Fund an amount not to exceed $120,000,000, plus the interest accrued from the Fund, for the fiscal year in which expenditures are made pursuant to paragraphs (2) and (3); and

“(II) subject to clause (ii), for each of fiscal years 2030 through 2044, the Secretary may expend from the Fund an amount not to exceed $120,000,000, plus the interest accrued in the Fund, for the fiscal year in which expenditures are made pursuant to paragraph (2).

“(ii) LIMITATION.—Of the amount described in clause (i)(II) for each of fiscal years 2030 through 2044, the Secretary may expend an amount not to exceed $90,000,000 for an individual Indian water rights settlement, unless the Secretary determines that an expenditure of more than $90,000,000 would not adversely affect the funding of the implementation of other congressionally approved settlement agreements.”;

(B) in paragraph (2), in the matter preceding subparagraph (A), by striking “litigation involving the United States, if the settlement agreement or implementing legislation requires the Bureau of Reclamation” and inserting “claims concerning Indian water resources, if the settlement agreement or implementing legislation authorizes the Secretary”; and

(C) in paragraph (3)—

(i) in subparagraph (A)—

(I) in clause (i)—

(aa) in subclause (I), by striking “the entire period in which the Fund is in existence” and inserting “the period of fiscal years 2020 through 2029”; and

(bb) in subclause (II), by inserting “during the period of fiscal years 2020 through 2029” after “into the Fund”; and

(II) in clause (ii), by inserting “or are deposited into the Fund after fiscal year 2029” after “subparagraph (B)”;

(ii) in subparagraph (B)—

(I) in clauses (i)(II)(bb), (iii)(II)(bb), and (iv)(II)(bb), by striking “the entire period in which the Fund is in existence” each place it appears and inserting “the period of fiscal years 2020 through 2029”; and

(II) in clause (iv)(I)—

(aa) by striking the period at the end and inserting “; and”;

(bb) by striking “through annual appropriations, the Secretary” shall and inserting the following: ““through annual appropriations—

“(aa) the Secretary”; and

(cc) by adding at the end the following:

“(bb) if the Indian water rights settlement agreement described in item (aa) has not been approved and authorized by an Act of Congress by December 31, 2021—
“(AA) the amount shall no longer be reserved for that settlement under subparagraph (A)(i)(II); and
“(BB) the Secretary shall deposit the amount that would have otherwise been reserved under subparagraph (A)(i)(II) for the Indian water rights settlement agreement into the Lower Colorado River Basin Development Fund established under section 403(a) of the Colorado River Basin Project Act (43 U.S.C. 1543(a)), with 65 percent of that amount in each fiscal year deposited into the Future Indian Water Settlement Subaccount of that Fund.”;

(iii) in subparagraph (C)—

(I) by striking “December 31, 2019” and inserting “December 31, 2021”; and

(II) by striking “for any authorized use” and inserting “for any use authorized under paragraph (2)”; and

(iv) by adding at the end the following:

“(D) SUFFICIENCY OF FUNDS.—The Secretary may use amounts in the Fund in a fiscal year for multiple settlements under subparagraph (B), without regard to the priorities described in clauses (ii) through (iv) of subparagraph (B), to ensure that sufficient funds are available to meet the enforceability date or substantial completion date of a settlement.”; and

(3) in subsection (f), by striking “September 30, 2034” and inserting “September 30, 2044”.
SEC. 3. Amendments to Aamodt Litigation Settlement Act.

(a) Definition of 611(g) Agreement.—Section 602 of the Aamodt Litigation Settlement Act (Public Law 111–291; 124 Stat. 3134) is amended—

(1) by redesignating paragraphs (1) through (23) as paragraphs (2) through (24), respectively; and

(2) by inserting before paragraph (2) (as so redesignated) the following:

“(1) 611(g) AGREEMENT.—The term ‘611(g) Agreement’ means the agreement dated July 2, 2019, to be executed by the United States, the State, the Pueblos, the County, and the City pursuant to section 611(g).”.

(b) Final project design.—Section 611(b) of the Aamodt Litigation Settlement Act (Public Law 111–291; 124 Stat. 3137) is amended, in the matter preceding paragraph (1), by striking “within 90 days of” and inserting “as soon as feasible after”.

(c) Construction Costs for Pueblo Water Facilities.—Section 611(f) of the Aamodt Litigation Settlement Act (Public Law 111–291; 124 Stat. 3138) is amended—

(1) in paragraph (1)—

(A) in subparagraph (A), by striking “$106,400,000” and inserting “$243,400,000”; and

(B) by striking subparagraph (B) and inserting the following:

“(B) EXCEPTION.—Of the amount described in subparagraph (A)—

“(i) the initial $106,400,000 shall be increased or decreased, as appropriate, based on ordinary fluctuations in construction costs since October 1, 2006, as determined using applicable engineering cost indices; and

“(ii) any amounts made available in excess of the amount described in clause (i) shall be increased or decreased, as appropriate, based on ordinary fluctuations in construction costs since October 1, 2018, as determined using applicable engineering cost indices.”; and

(2) in paragraph (3), by inserting “and the 611(g) Agreement” after “the Cost-Sharing and System Integration Agreement”.

(d) Funding for Regional Water System.—Section 617(a)(1)(B) of the Aamodt Litigation Settlement Act (Public Law 111–291; 124 Stat. 3147) is amended—

(1) by striking “$50,000,000” and inserting “$187,000,000”; and

(2) by striking “2024” and inserting “2028”.

(e) Adjustment.—Section 617(a)(4) of the Aamodt Litigation Settlement Act (Public Law 111–291; 124 Stat. 3147) is amended by striking “since October 1, 2006, as determined using applicable engineering cost indices” and inserting “pursuant to section 611(f)(1)(B)”.

(f) Execution of agreement under section 611(g).—Section 621 of the Aamodt Litigation Settlement Act (Public Law 111–291; 124 Stat. 3149) is amended by striking subsections (a) and (b) and inserting the following:

“(a) Approval.—To the extent the Settlement Agreement, the Cost-Sharing and System Integration Agreement, and the 611(g) Agreement do not conflict with this title, the Settlement Agreement, the Cost-Sharing and System Integration Agreement, and the 611(g) Agreement (including any amendments to the Settlement Agreement, the Cost-Sharing and System Integration Agreement, and the 611(g) Agreement that are executed to make the Settlement Agreement, the Cost-Sharing and System Integration Agreement, or the 611(g) Agreement consistent with this title) are authorized, ratified, and confirmed.

“(b) Execution.—To the extent the Settlement Agreement, the Cost-Sharing and System Integration Agreement, and the 611(g) Agreement do not conflict with this title, the Secretary shall execute the Settlement Agreement, the Cost-Sharing and System Integration Agreement, and the 611(g) Agreement (including any amendments that are necessary to make the Settlement Agreement, the Cost-Sharing and System Integration Agreement, or the 611(g) Agreement consistent with this title).”.

(g) Requirements for determination of substantial completion of the regional water system.—Section 623(e) of the Aamodt Litigation Settlement Act (Public Law 111–291; 124 Stat. 3151) is amended—

(1) by striking paragraph (1) and inserting the following:

“(1) CRITERIA FOR SUBSTANTIAL COMPLETION OF REGIONAL WATER SYSTEM.—Subject to the provisions of section 611(d) concerning the extent, size, and capacity of the County Distribution System, the Regional Water System shall be determined to be substantially completed if—

“(A) the infrastructure has been constructed capable of—

“(i) diverting, treating, transmitting, and distributing a supply of 2,500 acre-feet of water to the Pueblos consistent with the Engineering Report (as amended by the 611(g) Agreement and the Operating Agreement); and

“(ii) diverting, treating, and transmitting the quantity of water specified in the Engineering Report to the County Distribution System and consistent with the Engineering Report (as amended by the 611(g) Agreement and the Operating Agreement); or

“(B) the Secretary—

“(i) issues a notice to proceed authorizing the commencement of Phase I construction of the Regional Water System by December 31, 2019, and subsequently commences construction of the Regional Water System;

“(ii) diligently proceeds to construct the Regional Water System in accordance with the Engineering Report (as amended by the 611(g) Agreement), on a schedule for completion by June 30, 2028;

“(iii) expends all of the available funding provided to construct the Regional Water System under section 611(f)(1)(A), in the Cost-Sharing and System Integration Agreement, and in the 611(g) Agreement;

“(iv) complies with the terms of the 611(g) Agreement; and

“(v) despite diligent efforts cannot complete construction of the Regional Water System as described in the final Engineering Report (as amended by the 611(g) Agreement), due solely to the lack of additional authorized funding.”;

(2) in paragraph (2)—

(A) by striking “2021” and inserting “2025”; and

(B) by striking “2024” and inserting “2028”;

(3) in paragraph (3), in the matter preceding subparagraph (A), by striking “2021” and inserting “2025”;

(4) in paragraph (4)(B)(ii)(II), by striking “2023” and inserting “2027”; and

(5) in paragraph (5)(A), by striking “2024” and inserting “2028”.
SEC. 4. Kickapoo Tribe.

(a) Definition of Upper Delaware and Tributaries Watershed Plan.—In this section, the term “Upper Delaware and Tributaries Watershed Plan” means the plan described in the document entitled “Watershed Plan and Environmental Impact Statement Upper Delaware and Tributaries Watershed Atchison, Brown, Jackson, and Nemaha Counties, Kansas”, dated January 1994, and supplemented in June 1994—

(1) developed, pursuant to the Watershed Protection and Flood Prevention Act (16 U.S.C. 1001 et seq.)—

(A) by the Kickapoo Tribe, certain watershed and conservation districts in the State of Kansas, and the Department of Wildlife and Parks of the State of Kansas; and

(B) with the cooperation and technical assistance of the Natural Resources Conservation Service; and

(2) described in the report of the Committee on Environment and Public Works of the Senate (Senate Report 105–13; April 22, 1997).

(b) Study; recommendations.—To support the purposes of achieving a fair, equitable, and final settlement of claims to water rights for the Kickapoo Tribe in the State of Kansas, the Secretary of Agriculture (acting through the Chief of the Natural Resources Conservation Service), in consultation with the Secretary of the Interior (acting through the Director of the Secretary's Indian Water Rights Office), shall—

(1) commence a study of the multipurpose dam described in the Upper Delaware and Tributaries Watershed Plan; and

(2) not later than 2 years after the date of enactment of this Act, make recommendations to Congress with respect to the material alterations or changes to the Upper Delaware and Tributaries Watershed Plan that are necessary to effectuate, in part, the Tribal water rights agreed to by the Kickapoo Tribe and the State of Kansas on September 9, 2016, in the Kickapoo Tribe Water Rights Settlement Agreement, which otherwise remains subject to approval and authorization by Congress.

Calendar No. 397

116th CONGRESS
1st Session

S. 886

[Report No. 116–189]

A BILL

To amend the Omnibus Public Land Management Act of 2009 to make the Reclamation Water Settlements Fund permanent.

December 19, 2019

Reported with an amendment