[Senate Report 115-314]
[From the U.S. Government Publishing Office]
Calendar No. 537
115th Congress } { Report
SENATE
2d Session } { 115-314
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TO ESTABLISH A PROCEDURE FOR THE CONVEYANCE OF CERTAIN FEDERAL PROPERTY
AROUND THE JAMESTOWN RESERVOIR
_______
August 1, 2018.--Ordered to be printed
_______
Ms. Murkowski, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 2074]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 2074) to establish a procedure for the
conveyance of certain Federal property around the Jamestown
Reservoir in the State of North Dakota, and for other purposes,
having considered the same, reports favorably thereon with an
amendment in the nature of a substitute and recommends that the
bill, as amended, do pass.
AMENDMENT
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. DEFINITIONS.
In this Act:
(1) Board.--The term ``Board'' means the Stutsman County Park
Board in Jamestown, North Dakota.
(2) Game and fish headquarters.--The term ``game and fish
headquarters'' means the land depicted as ``Game and Fish
Headquarters'' on the Map.
(3) Jamestown reservoir.--The term ``Jamestown Reservoir''
means the Jamestown Reservoir constructed as a unit of the
Missouri-Souris Division, Pick-Sloan Missouri Basin Program, as
authorized by section 9 of the Act of December 22, 1944
(commonly known as the ``Flood Control Act of 1944'') (58 Stat.
891, chapter 665).
(4) Management agreement.--The term ``Management Agreement''
means the management agreement entitled ``Management Agreement
between the United States of America and Stutsman County Park
Board for the Management, Development, Operation and
Maintenance of Recreation and Related Improvements and
Facilities at Jamestown Reservoir Stutsman County, North
Dakota'', numbered 15-LM-60-2255, and dated February 17, 2015.
(5) Map.--The term ``Map'' means the map prepared by the
Bureau of Reclamation, entitled ``Jamestown Reservoir'', and
dated May 2018.
(6) Permitted cabin land.--The term ``permitted cabin land''
means the land depicted as ``Permitted Cabin Lands'' on the
Map.
(7) Property.--The term ``property'' means any cabin site
located on permitted cabin land for which a permit is in effect
on the date of enactment of this Act.
(8) Recreation land.--The term ``recreation land'' means the
land depicted as ``Recreation and Public Purpose Lands'' on the
Map.
(9) Secretary.--The term ``Secretary'' means the Secretary of
the Interior, acting through the Commissioner of Reclamation.
(10) State.--The term ``State'' means the State of North
Dakota, acting through the North Dakota Game and Fish
Department.
SEC. 2. CONVEYANCES TO STUTSMAN COUNTY PARK BOARD.--
(a) Conveyances to Stutsman County Park Board.--
(1) In general.--Subject to the management requirements of
paragraph (3) and the easements and reservations under section
4, not later than 5 years after the date of enactment of this
Act, the Secretary shall convey to the Board all right, title,
and interest of the United States in and to--
(A) the recreation land; and
(B) the permitted cabin land.
(2) Costs.--
(A) In general.--Except as provided in subparagraph
(B), the Secretary shall convey the land described in
paragraph (1) at no cost.
(B) Title transfer; land surveys.--As a condition of
the conveyances under paragraph (1), the Board shall
agree to pay all survey and other administrative costs
necessary for the preparation and completion of any
patents for, and transfers of title to, the land
described in paragraph (1).
(3) Management.--
(A) Recreation land.--The Board shall manage the
recreation land conveyed under paragraph (1)--
(i) for recreation and public purposes
consistent with the Act of June 14, 1926
(commonly known as the ``Recreation and Public
Purposes Act'') (44 Stat. 741, chapter 578; 43
U.S.C. 869 et seq.);
(ii) for public access;
(iii) for fish and wildlife habitat; or
(iv) to preserve the natural character of the
recreation land.
(B) Permitted cabin land.--The Board shall manage the
permitted cabin land conveyed under paragraph (1)--
(i) for cabins or recreational residences in
existence as of the date of enactment of this
Act; or
(ii) for any of the recreation land
management purposes described in subparagraph
(A).
(4) Haying and grazing.--With respect to recreation land
conveyed under paragraph (1) that is used for haying or grazing
authorized by the Management Agreement as of the date of
enactment of this Act, the Board may continue to permit haying
and grazing in a manner that is permissible under the 1 or more
haying or grazing contracts in effect as of the date of
enactment of this Act.
(b) Reversion.--If a parcel of land conveyed under subparagraph (A)
or (B) of subsection (a)(1) is used in a manner that is inconsistent
with the requirements described in subparagraph (A) or (B),
respectively, of subsection (a)(3), the parcel of land shall, at the
discretion of the Secretary, revert to the United States.
(c) Sale of Permitted Cabin Land by Board.--
(1) In general.--If the Board sells any parcel of permitted
cabin land conveyed under subsection (a)(1)(B), the parcel
shall be sold at fair market value, as determined by a third-
party appraiser in accordance with the Uniform Standards of
Professional Appraisal Practice, subject to paragraph (2).
(2) Improvements.--For purposes of an appraisal conducted
under paragraph (1), any improvements on the permitted cabin
land made by a permit holder shall not be included in the
appraised value of the land.
(3) Proceeds from the sale of land by the board.--If the
Board sells a parcel of permitted cabin land conveyed under
subsection (a)(1)(B), the Board shall pay to the Secretary the
amount of any proceeds of the sale that exceed the costs of
preparing the sale by the Board.
(d) Availability of Funds to the Secretary.--Any amounts paid to
the Secretary for land conveyed by the Secretary under this Act shall
be made available to the Secretary, without further appropriation, for
activities relating to the operation of the Jamestown Dam and
Reservoir.
SEC. 3. CONVEYANCE OF GAME AND FISH HEADQUARTERS TO THE STATE.
(a) Conveyance of Game and Fish Headquarters.--Not later than 5
years after the date of enactment of this Act, the Secretary shall
convey to the State all right, title, and interest of the United States
in and to the game and fish headquarters, on the condition that the
game and fish headquarters continue to be used as a game and fish
headquarters or substantially similar purposes.
(b) Reversion.--If land conveyed under subsection (a) is used in a
manner that is inconsistent with the requirements described in that
subsection, the land shall, at the discretion of the Secretary, revert
to the United States.
SEC. 4. RESERVATIONS, EASEMENTS, AND OTHER OUTSTANDING RIGHTS.
(a) In General.--Each conveyance to the Board or the State pursuant
to this Act shall be made subject to--
(1) valid existing rights;
(2) operational requirements of the Pick-Sloan Missouri River
Basin Program, as authorized by section 9 of the Act of
December 22, 1944 (commonly known as the ``Flood Control Act of
1944'') (58 Stat. 891, chapter 665), including the Jamestown
Reservoir;
(3) any flowage easement reserved by the United States to
allow full operation of the Jamestown Reservoir for authorized
purposes;
(4) reservations described in the Management Agreement;
(5) oil, gas, and other mineral rights reserved of record, as
of the date of enactment of this Act, by, or in favor of, the
United States or a third party;
(6) any permit, license, lease, right-of-use, flowage
easement, or right-of-way of record in, on, over, or across the
applicable property or Federal land, whether owned by the
United States or a third party, as of the date of enactment of
this Act;
(7) a deed restriction that prohibits building any new
permanent structure on property below an elevation of 1,454
feet; and
(8) the granting of applicable easements for--
(A) vehicular access to the property; and
(B) access to, and use of, all docks, boathouses,
ramps, retaining walls, and other improvements for
which access is provided in the permit for use of the
property as of the date of enactment of this Act.
(b) Liability; Taking.--
(1) Liability.--The United States shall not be liable for
flood damage to a property subject to a permit, the Board, or
the State, or for damages arising out of any act, omission, or
occurrence relating to a permit holder, the Board, or the
State, other than for damages caused by an act or omission of
the United States or an employee, agent, or contractor of the
United States before the date of enactment of this Act.
(2) Taking.--Any temporary flooding or flood damage to the
property of a permit holder, the Board, or the State, shall not
be considered to be a taking by the United States.
SEC. 5. INTERIM REQUIREMENTS.
During the period beginning on the date of enactment of this Act
and ending on the date of conveyance of a property or parcel of land
under this Act, the provisions of the Management Agreement that are
applicable to the property or land, or to leases between the State and
the Secretary, and any applicable permits, shall remain in force and
effect.
PURPOSE
The purpose of S. 2074 is to establish a procedure for the
conveyance of certain Federal property around the Jamestown
Reservoir in the State of North Dakota.
BACKGROUND AND NEED
Jamestown Dam and Reservoir is a component of the Bureau of
Reclamation's (BOR) Garrison Diversion Unit in the State of
North Dakota and was authorized by the Flood Control Act of
1944 (58 Stat. 891) for the purposes of irrigation, municipal
and industrial water supply, flood control, and recreation.
Federal lands were acquired to construct the project.
Currently, the Dam and Reservoir services one water service
contract for irrigation above the reservoir and periodic annual
water service contracts.
BOR lands surrounding Jamestown Reservoir include
recreational lands, wildlife habitat, grazing and haying lands,
and 71 lots with permitted cabins. All of these Federal lands
are managed by the Stutsman County Park (Board) under an
agreement with the BOR and are not necessary to fulfill
authorized project purposes. In addition, the North Dakota Game
and Fish Department leases approximately six acres for use as a
District Headquarters directly from the BOR.
As part of its management of the BOR lands, the Board
issues permits for the 71 cabin lots. Some of the permitees now
use these cabins year-round as primary residences and have made
improvements to cabin lots at their own expense. In order to
have certainty about the management of these lands, to secure
the ability to obtain financing for home purchases and
improvements, and to address increasing permit fees, permittees
would like to purchase the lots they currently occupy.
Additionally, the North Dakota Fish and Game Department has
expressed interest in assuming ownership of the lands they
currently lease from BOR.
LEGISLATIVE HISTORY
S. 2074 was introduced by Senator Hoeven on November 2,
2017. The Subcommittee on Water and Power held a hearing on S.
2074 on February 28, 2018.
The Committee on Energy and Natural Resources met in open
business session on May 17, 2018, and ordered S. 2074 favorably
reported, as amended.
COMMITTEE RECOMMENDATION
The Senate Committee on Energy and Natural Resources, in
open business session on May 17, 2018, by a majority voice vote
of a quorum present recommends that the Senate pass S. 2074, if
amended as described herein.
COMMITTEE AMENDMENT
During its consideration of S. 2074, the Committee adopted
an amendment in the nature of a substitute. The amendment
authorizes the Secretary of the Interior (Secretary) to convey
recreation land and permitted land to the Board, instead of
providing the permittee of the property with the first option
to purchase. The amendment also adds restrictions on the future
uses of the property and makes numerous clarifications,
technical corrections, and conforming changes. The amendment is
further described in the section-by-section analysis.
SECTION-BY-SECTION ANALYSIS
Section 1. Definitions
Section 1 contains definitions applicable to the Act.
Section 2. Conveyances to Stutsman County Park Board
Subsection (a) directs the Secretary to convey recreation
and permitted cabin land surrounding the Jamestown Reservoir to
the Board within five years of the Act's enactment. The
conveyances by the Secretary are to be made at no cost, but the
Board is required to pay for survey and administrative-related
costs. The Board is directed to manage conveyed recreation land
for recreation and public purposes consistent with the
Recreation and Public Purposes Act (43 U.S.C. 869 et seq.);
public access; fish and wildlife habitat; or to preserve the
land's natural character. Additionally, if conveyed recreation
land is authorized for haying and grazing by the Management
Agreement as of the date of the Act's enactment, the Board may
continue to permit those activities. The Board is directed to
manage conveyed permitted cabin lands for any of the specified
recreation land management purposes or for cabins or
recreational residences in existence as of the date of the
Act's enactment.
Subsection (b) provides that the conveyed lands will revert
to the United States, at the discretion of the Secretary, if
they are used in a manner that is inconsistent with the Act's
authorized uses.
Subsection (c) requires the Board to charge fair market
value for the sale of any parcel of permitted cabin land, and
specifies improvements made by the permitee shall not be
included in the valuation. This subsection also requires the
Board to pay the Secretary the amount of any sale proceeds that
exceed the costs of preparing the sale.
Subsection (d) makes any amount paid to the Secretary for
conveyed land available to the Secretary, without further
appropriation, for operation of the Jamestown Dam and
Reservoir.
Section 3. Conveyance of game and fish headquarters to the State
Section 3 directs the Secretary to convey all right, title,
and interested in the game and fish headquarters currently
leased to the North Dakota Game and Fish Department to the
State of North Dakota for continued use as a headquarters or
substantially similar purposes, and provides the Secretary with
a reversionary interest in the event the land is used in an
inconsistent manner with these requirements.
Section 4. Reservations, easements, and other outstanding rights
Subsection (a) specifies that conveyances made pursuant to
this Act are subject to valid existing rights; operational
requirements of the Pick-Sloan Missouri River Basin Program,
including the Jamestown Reservoir; reserved flowage easements;
Management Agreement reservations; reserved oil, gas and other
mineral rights; any existing permit, license, lease, right-of-
use, flowage easement, or right-of-way; deed restrictions
prohibiting any permanent structures below the reservoir
elevation of 1,454 feet; and the granting of easements for
access to the property and associated facilities.
Subsection (b) shields the United States from liability for
property damage, other than damages caused by an act or
omission of the United States or an employee, agent, or
contractor of the United States prior to the Act's enactment.
This subsection further states that any temporary flooding or
flood damage to the property shall not be considered a taking
by the United States.
Section 5. Interim requirements
Section 5 applies the Management Agreement provisions as
interim requirements during the time period starting from the
date of the Act's enactment and ending on the date of the land
or property conveyance.
COST AND BUDGETARY CONSIDERATIONS
The following estimate of the costs of this measure has
been provided by the Congressional Budget Office:
S. 2074 would direct the Bureau of Reclamation (BOR) to
convey certain federal land and facilities located near the
Jamestown Reservoir in North Dakota to the Stutsman County Park
Board. After the property is conveyed, the board could sell the
property to existing cabin permit holders, and the net proceeds
of those transactions would be paid to the federal government.
Those proceeds would be classified as offsetting receipts,
which are treated as reductions in direct spending, and could
subsequently be spent by BOR without further appropriation.
Enacting S. 2074 would increase receipts and the associated
direct spending; therefore, pay-as-you-go procedures apply.
However, CBO estimates that the net effect on the budget would
be negligible. Enacting S. 2074 would not affect revenues.
Under S. 2074, BOR would convey specified federal property
to the Stutsman County Park Board within 5 years after
enactment. Using information from BOR, CBO estimates that 71
cabin permit holders would purchase lots from the board for an
estimated $100,000 per lot. CBO estimates that the board would
transfer the net proceeds of about $7 million to the federal
government, and those offsetting receipts would be spent for
annual operations costs and deferred maintenance projects at
the Jamestown Dam and Reservoir in North Dakota.
CBO estimates that enacting S. 2074 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
S. 2074 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Aurora Swanson.
The estimate was reviewed by Leo Lex, 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. 2074. 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. 2074, as ordered reported.
CONGRESSIONALLY DIRECTED SPENDING
S. 2074, as ordered reported, does not contain any
congressionally directed spending items, limited tax benefits,
or limited tariff benefits as defined in rule XLIV of the
Standing Rules of the Senate.
EXECUTIVE COMMUNICATIONS
The testimony provided by the Department of the Interior at
the February 28, 2018, hearing on S. 2074 follows:
Statement of Alan Mikkelsen, Senior Advisor to the Secretary for Water
and Western Resource Issues, U.S. Department of the Interior
Chairman Flake, Ranking Member King, and Members of the
Subcommittee, I am Alan Mikkelsen, Senior Advisor to the
Secretary of Interior for Water and Western Resource Issues,
and former Deputy Commissioner of the Bureau of Reclamation
(Reclamation). Thank you for the opportunity to provide the
views of the Department of the Interior (Department) on S.
2074, a bill to establish a procedure for the conveyance of
certain Federal property around the Jamestown Reservoir in the
State of North Dakota. The intent of the legislation is to
provide a path for current permitted cabin owners and the
Stutsman County Park Board to take ownership of certain Federal
lands, allowing flexible management of the lands to meet local
needs and alleviate the Department's administrative oversight
and management of the land.
Before I discuss the Department's views on S. 2074, I
wanted to reiterate that during the Secretary Zinke's
confirmation hearing, he stated to this Committee that he does
not support the wide-scale sale or transfer of Federal lands.
Reclamation has technical modifications to recommend to provide
additional clarity and protections. We look forward to working
with the sponsor and the Committee to ensure proposals of this
nature preserve access and recreation for future generations to
come. The Flood Control Act of 1944 authorized construction of
Jamestown Dam and Reservoir (Project) as part of the Garrison
Diversion Unit, Missouri-Souris Division, Pick-Sloan Missouri
Basin Program. Federal lands were acquired for Project purposes
which include municipal water supply, irrigation with flood
control, and recreation benefits. The Project provided
extensive flood control benefits for Jamestown and downstream
areas. There are currently two water service contracts
associated with the project, one with an individual and one
with an irrigation district downstream of the reservoir.
The current management agreement between Reclamation and
Stutsman County Park Board for operation and maintenance of the
majority of lands around the reservoir includes the area for 71
permitted exclusive use cabins--30 occupied year-round, and 41
occupied seasonally (approximately 73 acres), as well as
additional lands dedicated to recreation and wildlife
management (approximately 4,421 acres). In addition to lands
managed by Stutsman County Park Board, Reclamation leases a 6-
acre parcel to the North Dakota Game and Fish Department
(NDG&F) for their Regional Headquarters. In 2013, Reclamation's
Dakotas Area Office (DKAO) requested a fair market appraisal of
the rates for the exclusive use cabins be conducted pursuant to
the Code of Federal Regulations related to Use of Bureau of
Reclamation Land, Facilities, and Waterbodies (43 CFR 429). As
required by Department policy, the appraisals were conducted by
the Department of the Interior's Office of Valuation Services
for all reservoirs with exclusive use under the administration
of DKAO, resulting in the need to raise rates at all areas to
recover fair market value. The results of the appraisal were
presented to the respective managing partners in 2016.
Title transfer can be an important tool to ensure that
management of lands and other real property is carried out by
the entities that are best equipped to most effectively manage
such property. The Administration recently submitted a
legislative proposal which would address this issue more
comprehensively which would facilitate title transfer of
certain Reclamation facilities to non-Federal entities when
such transfers are beneficial.
Section 1(b)(2)(A) of S. 2074 provides for the fair market
value of a property to be determined by a local, third party
appraiser, valuing the property as unimproved residential
property, excluding all improvements. The Department believes
that the property should be valued as-is, inclusive of
improvements. The Department also recommends clarification of
this language to ensure the cost for the third-party appraisal
shall be the responsibility of the permittee(s). The permittees
should also be made aware that a third-party appraisal would
have to comply with federal appraisal standards and procedures
as determined by the Office of Valuation Services.
Section 1(c)(3) provides conveyance subject to reversion to
the United States of non-recreation lands managed by the Board
if no longer used for public access or recreation. As worded in
S. 2074, this language warrants clarification to ensure the
Department's interpretation is consistent with the author's
intent. We suggest simply revising this language to state that
the lands conveyed (other than those in the cabin permit area
and the North Dakota State Game and Fish Department
headquarters area) are to remain available for public use in
the future, and if it is determined that these areas are no
longer needed for public access or recreation, then the land is
subject to reversion to the United States. Given the
Secretary's commitment to protecting public lands, the
Department encourages what we believe is a shared intention for
Stutsman County Park Board to continue to manage the parcels
with recreational and public interests in mind.
Section 1(f) of S. 2074 provides that any revenues from a
sale of Federal land pursuant to this section shall be made
available to the Secretary, without further appropriation, for
the costs to the Secretary of carrying out this section, and to
conduct deferred maintenance activities relating to the dam in
the Jamestown Reservoir. The Department believes that any such
revenues should be remitted to the Reclamation fund. In
addition, because revenues would not be generated until the
properties are transferred to the permittee, as proposed in the
bill, Reclamation would need appropriations to complete the
surveys and appraisals and other pre-sale activities. In
previous legislation to transfer cabin properties, as well as
Reclamation's process for Use Authorization requests, it is the
responsibility of the permittees/requestor to pay for the
required pre-sale work, including all administrative costs to
convey Federal property to private individuals/beneficiaries
rather than placing this burden on the United States. As
written it appears the United States is responsible for the
administrative costs and therefore in ``net'' it receives less
than market value for the land. In accord with our prior
recommendation to clarify that permittees/requestor pay for
required pre-sale work, we recommend revising this section to
clarify that revenues shall be remitted to the Reclamation
fund.
Section 1(d)(1) provides liability protection for flood
damage to the property of a permittee, the Board, or the State
arising out of any act, omission, or occurrence relating to a
lot to which a permit applies. As worded, this language does
not cover the liability for all property, depending on whether
or not it is related to a lot. We suggest replacing the
language ``a lot to which a permit applies'' with ``the
property of a permittee, the Board, or the State'' in order to
more clearly cover the liability to the United States.
The Department would be happy to work with the sponsor and
the Committee to revise the language based on these
recommendations. In addition, we would urge enactment of the
Department's title transfer legislative proposal to address
Reclamation title transfer. Our title transfer legislative
proposal will streamline the title transfer process,
potentially allowing appropriate transfers to take place
without subsequent legislation. This concludes my written
statement. I am pleased to answer questions at the appropriate
time.
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 as ordered
reported.
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