[Senate Report 106-480]
[From the U.S. Government Publishing Office]
Calendar No. 929
106th Congress Report
SENATE
2d Session 106-480
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NAMPA AND MERIDIAN CONVEYANCE ACT
_______
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:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Nampa and Meridian Conveyance Act''.
SEC. 2. CONVEYANCE OF FACILITIES.
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.
SEC. 3. LIABILITY.
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
property.
SEC. 4. EXISTING RIGHTS NOT AFFECTED.
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
Driskill.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
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
privacy.
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.
background
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
conveyance.
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
modifications.
(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
2(d)(1):
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
questions.
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.