[Senate Report 114-381]
[From the U.S. Government Publishing Office]
Calendar No. 685
114th Congress } { Report
SENATE
2d Session } { 114-381
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A BILL TO IMPROVE THE IMPLEMENTATION OF THE SETTLEMENT AGREEMENT
REACHED BETWEEN THE PUEBLO DE COCHITI OF NEW MEXICO AND THE CORPS OF
ENGINEERS, AND FOR OTHER PURPOSES
_______
November 17, 2016.--Ordered to be printed
_______
Mr. Barrasso, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 2643]
The Committee on Indian Affairs, to which was referred the
bill (S. 2643) to improve the implementation of the settlement
agreement reached between the Pueblo de Cochiti of New Mexico
and the Corps of Engineers, and for other purposes, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill, as amended, do pass.
Purpose
The purpose of S. 2643 is to amend Public Law No. 102-358,
which authorized a Settlement Agreement between the Pueblo de
Cochiti, the United States Department of the Interior, and the
United States Army Corps of Engineers. The bill would, among
other purposes, authorize the transfer of responsibility for
the Cochiti Dam drainage system to the Pueblo de Cochiti and
release the United States from liability associated with that
drainage system.
Need for Legislation
This legislation is needed to amend the negotiated
settlement entered into between the Pueblo and the United
States for damages to the Pueblo's agricultural lands caused by
seepage from the construction of the Cochiti Dam. The
settlement agreement, which resulted in the construction of a
drainage system by the United States on behalf of the Pueblo,
is being amended to transfer responsibility for the operation
and maintenance of the Cochiti Dam Drainage System to the
Pueblo and to release the United States from liability
associated with the drainage system. Other provisions of S.
2643 authorize the use of accumulated reserve funds for the
acquisition of ancestral lands (the Caada de Cochiti).
Background
Congress authorized the construction of the Cochiti Dam in
the Flood Control Act of 1960. This Act authorized the
construction of the Cochiti Lake and dam by the United States.
The dam was completed in 1970. Seepage caused by the
construction of the dam resulted in damage to the agricultural
lands for members of the Pueblo. The Pueblo brought suit
against the federal government to remedy the seepage problems.
The U.S. Army Corps of Engineers, Department of Interior
(DOI), and the Department of Justice settled that lawsuit in
the early 1990s by agreeing to install a drainage system in the
dam to divert seepage away from Cochiti agricultural areas.
Congress ratified the settlement terms in Pub. L. No. 102-358.
The Operation and Maintenance Fund (O&M Fund) was
established within the DOI in 1993 for the operation and
maintenance of this drainage system. In April, 1994,
approximately $4.5 million was transferred to the Bureau of
Indian Affairs (BIA) to administer the drainage system O&M
Fund. The Pueblo has administered, operated and maintained the
Cochiti Dam drainage system for three decades pursuant to
agreements under the Indian Self-Determination and Education
Assistance Act of 1975, Pub. L. No. 93-638.
When interest rates were high, the O&M Fund generated more
interest each year than was expended on O&M activities. The O&M
Fund agreement was amended by the parties in 2001 to authorize
the use of some O&M fund reserves for an agricultural
restoration program. That amendment was ratified by Congress in
2004 by Pub. L. No. 108-204. Currently, the O&M Fund balance is
still approximately $7 million.
The Pueblo's ancestral villages and numerous sacred sites
are located in the Canada de Cochiti, a parcel of ancestral
lands adjacent to its current reservation. For 75 years, the
Pueblo has sought to restore these historically and culturally
significant lands to its reservation.
In October 2015, the Pueblo, U.S. Army Corp of Engineers,
and the DOI executed an amendment to the settlement. As part of
this amendment the parties agreed to grant the Pueblo access to
withdraw funds from the O&M Fund to purchase the Canada de
Cochiti parcel.
Legislative History
On March 7, 2016, Senator Udall introduced S. 2643 with
Senator Heinrich as a cosponsor. The bill was referred to the
Committee on Indian Affairs. On April 13, 2016, the Committee
held a legislative hearing on the bill in which Nicholas
Garcia, Governor of the Pueblo de Cochiti, testified in favor
of the bill. The administration provided testimony in support
of the bill. One amendment was offered by Senator Udall to
prohibit gaming on any land acquired through the use of the O&M
Fund. On February 4, 2015, the Committee met at a duly called
business meeting to consider the bill and amendment. The
Committee approved the amendment and the bill, as amended. The
Committee then ordered the bill, as amended, to be reported
favorably to the Senate by voice vote.
Section-by-Section Analysis of Bill as Ordered Reported
Section 1--Short title
Section 1 sets forth the short title of this Act as the
Pueblo de Cochiti Self-Governance Act.
Section 2--Amendments
Section 2 of the Act authorizes amendments to the
implementation of the Pueblo de Cochiti Wetlands Settlement
ratified in Pub. L. No. 102-358.
The amendments modifying the settlement would transfer
responsibility for the operation and maintenance of the Cochiti
Dam Drainage System to the Pueblo, release the United States
government from liability for the drainage system, and
authorize the use of Accumulated Reserve Funds for the
acquisition of the Canada de Cochiti ancestral lands.
The section would also prohibit the Pueblo from conducting
gaming on any lands acquired in the future through the use of
these settlement funds.
Cost and Budgetary Considerations
The following cost estimate, as provided by the
Congressional Budget Office, dated October 27, 2016, was
prepared for S. 2643:
October 27, 2016.
Hon. John Barrasso,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2643, the Pueblo de
Cochiti Self-Governance Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Robert Reese.
Sincerely,
Keith Hall.
Enclosure.
S. 2643--Pueblo de Cochiti Self-Governance Act
Summary: S. 2643 would ratify a settlement agreement
between the Pueblo de Cochiti of New Mexico (the pueblo) and
the Army Corps of Engineers (Corps). The agreement would
transfer responsibility for managing the Cochiti Dam drainage
system from the Corps to the pueblo and would transfer all
funds in the system's operation and maintenance fund to a
tribal fund held in trust for the pueblo. The bill would
prohibit certain types of gaming on any lands acquired by the
pueblo using those funds.
CBO estimates that enacting S. 2643 would increase direct
spending by $5 million over the 2017-2026 period. Pay-as-you-go
procedures apply because enacting S. 2643 would increase direct
spending. Enacting the bill would not affect revenues.
CBO estimates that enacting the legislation would not
increase net direct spending or on-budget deficits in any of
the four consecutive 10-year periods beginning in 2027.
S. 2643 contains no intergovernmental or private sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would benefit the pueblo. Any costs to the tribal
government would be incurred voluntarily as a result of
entering into the settlement agreement as ratified in the bill.
Estimated cost to the Federal Government: The estimated
budgetary effect of S. 2643 is shown in the following table.
The costs of this legislation fall within budget function 450
(community and regional development).
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By fiscal year, in millions of dollars--
-----------------------------------------------------------------------------------------------------
2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2017-2021 2017-2026
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INCREASES OR DECREASES (-) IN DIRECT SPENDING
Estimated Budget Authority........................ 0 0 0 0 0 0 0 0 0 0 0 0
Estimated Outlays................................. 7 * * * * * * * * * 6 5
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Note: * = about -$200,000.
Basis of estimate: For this estimate, CBO assumes that S.
2643 will be enacted near the start 2017. The legislation would
implement a settlement agreement between the Pueblo de Cochiti
of New Mexico and the Corps and would transfer approximately $7
million in federal funds to a tribal trust fund. The fund would
be held in trust for the pueblo by the Office of the Special
Trustee for American Indians.
Payments to certain tribal trust funds that are held and
managed in a fiduciary capacity by the federal government on
behalf of Indian tribes are treated as payments to a nonfederal
entity. As a result, CBO expects that the entire amount
transferred to this trust fund would be recorded as an outlay
at the time of the transfer. The Secretary of the Interior
would be required to invest the funds in government securities
until those funds are expended by the tribe. (Any interest
credited to this fund would be considered a means of financing
and thus would not be recorded as an outlay on the budget.)
S. 2643 also would transfer responsibility for the
operation, maintenance, repair, and replacement of the Cochiti
dam drainage system from the Corps to the pueblo. According to
the Department of the Interior, approximately $200,000 is spent
for operating and maintaining the system annually; those
expenditures are not subject to annual appropriation. Because
the operation and maintenance fund is currently considered a
federal fund and is not the property of the tribe, expenditures
from the fund are recorded as federal outlays. Therefore, CBO
estimates that transferring operation and maintenance
responsibilities to the pueblo would reduce direct spending by
about $2 million over the 2017-2026 period.)
Pay-As-You-Go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending or
revenues. The net changes in outlays that are subject to those
pay-as-you-go procedures are shown in the following table.
CBO ESTIMATE OF PAY-AS-YOU-GO EFFECTS FOR S. 2643, AS ORDERED REPORTED BY THE SENATE COMMITTEE ON INDIAN AFFAIRS ON APRIL 27, 2016
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By fiscal year, in millions of dollars--
-----------------------------------------------------------------------------------------------------
2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2017-2021 2017-2026
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NET INCREASE OR DECREASE (-) IN THE DEFICIT
Statutory Pay-As-You-Go........................... 7 0 0 0 0 0 0 0 0 0 6 5
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Note: Components do not sum to totals because of rounding.
Increase in long term direct spending and deficits: CBO
estimates that enacting the legislation would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2027.
Intergovernmental and private sector impact: S. 2643
contains no intergovernmental or private sector mandates as
defined in UMRA and would benefit the Pueblo de Cochiti of New
Mexico. Any costs to the tribal government would be incurred
voluntarily as a result of entering into the settlement
agreement as ratified in the bill.
Estimate prepared by: Federal Costs: Robert Reese; Impact
on State, Local, and Tribal Governments: Rachel Austin; Impact
on the Private Sector: Amy Petz.
Estimate approved by: H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
Regulatory and Paperwork Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 2643 will
have a minimal impact on regulatory or paperwork requirements.
Executive Communications
The Committee has received no communications from the
Executive Branch regarding S.2643.
Changes in Existing Law (Cordon Rule)
In accordance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 2643, as ordered reported, are shown as follows (existing
law proposed to be omitted is enclosed in black brackets, new
matter is printed in italic):
ACT of August 26, 1992 (To authorize funds for the implementation of
the settlement agreement reached between the Pueblo de Cochiti and the
United States Army Corps of Engineers under the authority of Public Law
100-202, 25 USC 461 note. (Native American Technical Corrections Act of
2004)
SECTION 1. GENERAL AUTHORIZATION.
[The Secretary](a) In General._The Secretary of the
Interior and the Secretary of the Army are authorized and
directed to implement the settlement. [implement--
[(1) the settlement agreement, and
[(2) the modifications regarding the use of the
settlement funds as described in the agreement known as
the `First Amendment to Operation and Maintenance
Agreement for Implementation of Cochiti Wetlands
Solution', executed--
[(A) on October 22, 2001, by the Army Corps
of Engineers;
[(B) on October 25, 2001, by the Pueblo de
Cochiti of New Mexico; and
[(C) on November 8, 2001, by the Secretary of
the Interior.]
(b) Ratification.--Congress ratifies and approves the
modifications regarding the use of the settlement funds and
transfer of responsibility for the drainage system, as
described in the agreement known as `Amendment to the
Settlement Agreement for Implementation of Cochiti Wetfields
Solution', executed on--
(1) October 15, 2015, by the Department of the
Interior;
(2) October 21, 2015, by the Corps of Engineers; and
(3) October 27, 2015, by the Pueblo de Cochiti of New
Mexico.
[SEC. 2. DUTIES OF THE SECRETARY OF THE INTERIOR.
[In accordance with the settlement agreement and pursuant
to the trust relationship between the United States Government
and the Pueblo de Cochiti of New Mexico, upon completion of
construction of the drainage system, the Secretary of the
Interior, acting through the Bureau of Indian Affairs, shall be
responsible for its maintenance, repair, and replacement, as
provided in the settlement agreement.]
SEC. 2. DUTIES OF THE SECRETARY OF THE INTERIOR.
(a) In General.--In accordance with the settlement
agreement and pursuant to the government-to-government
relationship between the United States and the Pueblo de
Cochiti of New Mexico and the modifications to the settlement
agreement under section 1(b), the Pueblo de Cochiti of New
Mexico, as an exercise of self-determination, assumes any and
all legal and financial responsibility for the operation,
maintenance, repair, and replacement of the drainage system.
(b) No Responsibility for Drainage System.--The United
States shall have no further legal or financial responsibility
for the operation, maintenance, repair, or replacement of the
drainage system.
(c) Release From Liability.--Effective beginning on the
date on which the Pueblo de Cochiti of New Mexico assumes all
legal and financial responsibility for the operation,
maintenance, repair, and replacement of the drainage system
under subsection (a), the Pueblo de Cochiti of New Mexico, on
behalf of the Pueblo de Cochiti of New Mexico and the members
of the Pueblo de Cochiti of New Mexico, waives and releases the
United States from all past, present, and future liability for
any claim relating to the operation, maintenance, repair, or
replacement of the drainage system.
(d) Prohibition on Gaming.--Notwithstanding any other
provision of law, no class I gaming, class II gaming, or class
III gaming (as those terms are defined in section 4 of the
Indian Gaming Regulatory Act (25 U.S.C. 2703)) may be carried
out on any land acquired through the use of the settlement
funds, as described in the agreement entitled `Amendment to the
Settlement Agreement for Implementation of Cochiti Wetfields
Solution'.
[all]