39–010 

Calendar No. 777 

108TH CONGRESS REPORT " ! SENATE 2d Session 108–389 

A BILL TO DIRECT THE SECRETARY OF THE INTERIOR AND THE HEADS 

OF OTHER FEDERAL AGENCIES TO CARRY OUT AN AGREEMENT RESOLVING MAJOR ISSUES RELATING TO THE ADJUDICATION OF WATER 

RIGHTS IN THE SNAKE RIVER BASIN, IDAHO, AND FOR OTHER PURPOSES 

OCTOBER 7, 2004.—Ordered to be printed 

Mr. CAMPBELL, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 2605] 

The Committee on Indian Affairs, to which was referred the bill 

(S. 2605) to direct the Secretary of the Interior and the heads of 

other Federal agencies to carry out an agreement resolving major 

issues relating to the adjudication of water rights in the Snake 

River Basin, Idaho, 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. 

PURPOSE

The purpose of S. 2605 is to approve the terms of a settlement 

agreement addressing the water rights of the Nez Perce Tribe of 

Indians (the Tribe) and its allottees in the Snake River within the 

State of Idaho, the Tribe’s rights of access to and use of water in 

springs or fountains on Federal lands within a Tribal cession area, 

monetary and other compensation to the Tribe, as well as several 

other issues relating to the Snake River Basin such as minimum 

instream flows and riparian habitat protection and improvement 

measures for certain streams, all as set forth in a certain ‘‘Mediator’s Term Sheet’’ described in greater detail below. S. 2605 also 

authorizes the appropriation of funds to fulfill the obligations of the 

United States under the settlement agreement, and directs the Secretary of Interior and the heads of other Federal agencies with obligations under the agreement to take all actions, consistent with the 

Act, that are necessary to carry out the terms of the agreement. 

2 

1 A general stream adjudication for the Nambe-Pojoaque River System in New Mexico was 

filed in 1966 by the State of New Mexico and is still an active case pending in the U.S. District 

Court for the State of New Mexico. See, State of New Mexico ex rel. State Engineer v. Aamodt, 

Case No. 66–cv–6639 EM. The general stream adjudication for the Gila River System in the 

State of Arizona was filed in 1974 is also still an active case. See, In re the General Adjudication 

of All Rights to Use Water in the Gila River System and Source, Superior Court for the State 

of Arizona in and for the County of Maricopa. Another active stream adjudication in Arizona, 

involving the Little Colorado River System, was filed in 1978. See, In re the General AdjudicaBACKGROUND

S. 2605 is intended to resolve the reserved water rights claims 

of the Tribe and its allottees in the Snake River Basin in the State 

of Idaho, and to address certain other issues relating to the allocation and use of water, the establishment of minimum instream 

flows, and the protection and improvement of riparian habitats 

within that basin. 

Under the reserved Indian water rights doctrine established by 

the U.S. Supreme Court in Winters v. United States, 207 U.S. 564 

(1907), the setting aside of a reservation for an Indian tribe creates 

an implied reservation of rights to water in an amount sufficient 

to fulfill the purposes of the reservation. These Winters rights have 

a basis in Federal law that is separate and distinct from water 

rights created under the water rights legal system of ‘‘prior appropriation’’ that controls the use and allocation of water, including 

the priorities of use in times of shortage, under the laws of most 

western states. Generally speaking, in states that have adopted 

systems based on prior appropriation, the ownership and priority 

of water rights in a particular stream originate with the act of diverting water for beneficial use. Tribal reserved water rights (including the water rights of those who hold allotted trust lands located within Indian reservations) and their dates of priority, on the 

other hand, arise from the creation of the reservation, and are not 

dependent on diversion for beneficial use. Because in many areas 

the establishment of Indian reservations preceded the initiation of 

most non-Indian water uses, Indian reserved water rights often 

have priority over the rights of other water users whose rights are 

based in state law. Accordingly, if Indian tribes were to exercise 

long-dormant but senior Winters rights at times when there are insufficient flows available to satisfy the needs of all users, Indian 

and non-Indian alike, existing non-Indian water users with rights 

based on the state-law systems of prior appropriation would often 

face the subordination of their rights to divert and use water. 

In the past, the quantification of water rights, whether based on 

the Winters or otherwise, was often accomplished through the 

mechanism of a ‘‘general stream adjudication,’’ in which a court or 

administrative agency would undertake to quantify all of the water 

rights in a particular watershed. The McCarran Amendment, 43 

U.S.C. 666, waives the sovereign immunity of the United States so 

as to allow state courts and agencies to adjudicate Federal water 

rights in proceedings that qualify as general stream adjudications, 

and this waiver of immunity from suit has been interpreted by the 

courts to include claims against the United States as trustee of reserved water rights of Indian tribes and individual Indian allottees. 

However, the general stream adjudication process has proven 

itself to be an unwieldy, expensive and, above all, slow method for 

resolving the competing water rights claims in a stream or watershed.1 A significant additional shortcoming from the tribal perspecVerDate May 21 2004 06:16 Oct 22, 2004 Jkt 000000 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 D:\DOCS\SR389.108 SR389
3 

tion of All Rights to Use Water in the Little Colorado River System and Source, Case No. 6417, 

Superior Court for the State of Arizona in and for the County of Apache. 2 In re SRBA, Case No. 39576, District Court of the Fifth Judicial District of the State of 

Idaho, in and for the County of Twin Falls. 3The court in the SRBA case issued an order accepting the Mediator’s Term Sheet and its 

three appendices for filing in Consolidated Subcase Nos. 03–10022 and 67–13701 on April 20, 

2004. A copy of the term sheet with appendices is included with this Report as ‘‘Attachment 

A.’’ 

tive is that although a decree in a general stream adjudication 

might recognize an Indian tribe’s rights to substantial quantities of 

water with an early priority date, this may do little, if anything, 

to deliver real (or ‘‘wet’’) water to dry Indian lands. 

The shortcomings of the general stream adjudication process as 

a device for water rights dispute resolution have led to an increasing number of agreed-to water rights settlements on streams in the 

western States-where the parties, including Indian tribes, negotiate 

and compromise among themselves as to quantity, priority dates 

and other issues, and where the Federal government contributes 

money to the settlement in order to achieve various goals that 

could not otherwise be achieved within the confines of a general 

stream adjudication, such as monetary and other compensation to 

the Indian tribe, including construction of water delivery systems 

that bring ‘‘wet’’ water to the Indian lands as well as other tangible 

benefits to the tribe or its members. 

The Snake River Basin Adjudication (‘‘SRBA’’) is a state court 

general stream adjudication addressing claims to water rights 

within the Snake River Basin in the State of Idaho.2 The SRBA involves some 150,000 claims arising in 38 of Idaho’s 44 counties, 

among them the claims of the Tribe which are based in part on 

treaties executed in 1855 and 1863 between the Tribe and the 

United States. 

Pursuant to an order of the SRBA court, the State of Idaho, municipalities, irrigation districts and other water users in the State 

of Idaho, the United States as trustee for the Tribe and holders of 

allotted trust lands within the Tribe’s reservation (the ‘‘allottees’’), 

and the Nez Perce Tribe itself, engaged in process of mediation in 

an effort to resolve the Tribe’s claims to water in the Snake River 

Basin at issue in the SRBA. Those parties have reached an agreement, which is set out in a ‘‘Mediator’s Term Sheet’’ (the ‘‘Agreement’’), that would, inter alia, settle disputes over the Tribe’s 

Snake River water rights.3 The intent of the present legislation is 

to ‘‘authorize, ratify, and confirm’’ the Agreement, to direct the Secretary of the Interior and other heads of Federal agencies to execute and perform actions necessary to carry out the Agreement, 

and to authorize appropriations so that all parties can obtain the 

benefits of the Agreement. S. 2605 and the Agreement provide for 

the quantification of the water rights of the Tribe and the allottees 

in the Snake River Basin and the augmentation of stream flows 

important to protected fish species, while at the same time protecting the interests of existing non-Indian water users by providing substantial finality and certainty to all parties. 

Overview of the agreement 

The terms of the Agreement with respect to the Tribe’s water 

rights, the conduct of habitat and instream flow protections and 

improvements and various other measures are all set forth in the 

4 

4The Agreement states that the Tribe and the Department of Interior will enter into agreements for the management and joint management, respectively, of the Kooskia National Hatchery and Dworshak National Hatchery. The Committee assumes that this aspect of the Agreement is based in part on an assumption that there will be continued Federal funding for those 

facilities, and that adequate funding will be maintained for both facilities to the extent practicable. The management and co-management agreements should include contingency provisions 

to protect the Tribe in the event that adequate funding for the facilities is not maintained. 5The parties arrived at this amount by calculating the net present value of the cost of rental 

payments for that storage space over the course of a 30-year period. 6Section 6 of the Endangered Species Act, 16 U.S.C. § 1535(c). 

27-page Mediator’s Term Sheet and its three attached appendices. 

The Term Sheet is broken out into four principal sections: I. Nez 

Perce Tribal Component, II. Salmon/Clearwater Component, III. 

Snake River Flow Component, and IV. General Conditions applicable to the entire agreement. 

In the Nez Perce Tribal Component, the Agreement specifies that 

the Tribe’s on-reservation consumptive use reserved water right 

will be quantified at 50,000 acre-feet per year, with a priority date 

of 1855, for irrigation, domestic, commercial, municipal, industrial, 

hatchery and cultural uses. The Agreement also recognizes the 

Tribe’s right of access to and use of water from springs and fountains on Federal lands within the 1863 Nez Perce Treaty ceded 

area, while similar rights claimed on non-Federal lands are to be 

waived. Among other terms, the Tribal Component also includes 

provisions to the effect that— 

—The Tribe may select from a list of available Bureau of Land 

Management (BLM) lands within the Nez Perce Indian Reservation 

up to a total value of $7 million, and these selected lands will be 

transferred to the Nez Perce Tribe. 

—The United States and the Tribe will enter into agreements for 

Tribal management of the Kooskia National Fish Hatchery, comanagement of the Dworshak National Fish Hatchery, and use of 

water in the Dworshak Reservoir for flow augmentation for fish.4

—The United States will establish a $50 million water and fisheries trust fund for use by the Tribe in acquiring lands and water 

rights, restoring and improving fish habitat, fish production, agriculture, cultural preservation and water resource development. —The United States will provide $23 million for the design and 

construction of sewer and water system projects for local Nez Perce 

Tribal communities. 

—In lieu of contracting 45,000 acre feet of uncontracted storage 

space in the Payette River system to the Tribe, the United States 

will pay to the Tribe $10.1 million.5

The Salmon/Clearwater Component of the Agreement sets forth 

several provisions designed to protect or improve instream flows 

and fish habitat and passage. The terms in this Component of the 

Agreement include provisions for establishing instream flow water 

rights for designated ‘‘tribal priority’’ streams within the Salmon 

and Clearwater River Basins as part of the settlement of the 

Tribe’s claims; the implementation by the State of Idaho of a Salmon and Clearwater habitat management and restoration initiative 

for conservation and restoration of habitat within those basins, 

which would include an instream flow program for certain streams 

as well as a voluntary Idaho forestry program to be conducted 

under a ‘‘Section 6’’ 6 cooperative agreement between the State of 

Idaho on the one hand and the U.S. Fish and Wildlife Service and 

National Marine Fisheries Service (‘‘NOAA Fisheries’’) on the 

5 

7These biological opinions would be separate from any biological opinion addressing the Federal Columbia River Power System. The Agreement provides that the flows provided under the 

Agreement set forth the flow contribution from the upper Snake River above Hells Canyon Complex for the benefit of listed species covered by the agreement as they travel through the Columbia River system, including the Federal Columbia River Power System, and that the NOAA 

Fisheries biological opinion ‘‘will address and evaluate the expected effects of BOR’s [Bureau of 

Reclamation’s] proposed operations in the Upper Snake, including any beneficial effects on anadromous fish from the flow augmentation program established in this [the Snake River] component’’ of the Agreement. 8Section IV.L. sets forth a list of 6 events or actions that must take place before the Agreement becomes effective: execution of component agreements, Congressional approval of the 

Agreement and authorization of Federal expenditures, State legislature approval of the AgreeContinued 

other; a program for management of new road construction measures and road reconstruction and upgrading; provisions for administration of the Section 6 forestry program; the establishment of a 

habitat trust fund for habitat protection and restoration to which 

the United States would contribute $38 million; and other measures relating to habitat protection and restoration in the Salmon 

and Clearwater River Basins. 

The Snake River Flow Component of the Agreement anticipates 

biological opinions for the 30-year term of the Agreement to be 

issued by NOAA Fisheries and the U.S. Fish and Wildlife Service 

under the Endangered Species Act.7 Generally, these biological 

opinions would address issues relating to flows from the Snake 

River above Brownlee Reservoir and the use of water for flow augmentation. This component includes measures for minimum flows, 

a flow augmentation program, federal mitigation of local impacts 

resulting from the flow augmentation program, a 30-year term for 

the component with an opportunity to renew by agreement, and a 

provision that states that in the event that the Fish and Wildlife 

Service and NOAA Fisheries fail to issue ‘‘no jeopardy’’ biological 

opinions and provide incidental take coverages for this Component 

of the Agreement or require terms and conditions that are inconsistent with the Agreement, the Snake River Component shall be 

terminated upon written notice by the State or private parties to 

that Component. 

The last section of the Agreement sets forth the general conditions applicable to the Agreement as a whole. Among these are provisions for the following— 

—Issuance of biological opinions by NOAA Fisheries and 

U.S. Fish and Wildlife Service on each Component of the 

Agreement for its 30-year term; 

—The right of any State or private party to a component of 

the Agreement to terminate that Component by giving written 

notice in the event that NOAA Fisheries or Fish and Wildlife 

Service fail to issue no jeopardy biological opinions or impose 

terms or conditions that are inconsistent with the Agreement; 

—Waivers and releases of specified claims and injuries by 

the United States on behalf of the Tribe and by the Tribe itself 

applicable to claims for, and injuries to, water rights in the 

Snake River Basin (except as otherwise provided in the Agreement), and waivers and releases by the Tribe of specified categories of claims against the United States, provided that the 

waivers and releases by the Federal government and the Tribe 

‘‘shall take effect and be permanent’’ once the Agreement becomes effective and enforceable under Section IV.L. of the 

Agreement; 8

6 

ment and enactment of required state legislation, the Nez Perce Tribe’s approval of the Agreement, the SRBA court entering a judgment and decree incorporating the Agreement, and 

issuance of the biological opinions anticipated by the ‘‘upper Snake component’’ of the Agreement. 

—Reservations of certain claims by the Tribe; and 

—A provision stating that a breach of one component of the 

Agreement does not constitute a breach of any other component of the Agreement. 

Need for legislation 

As noted above, the Agreement by its terms contemplates that 

Congress approve the Agreement as one of the conditions to its becoming effective. Additionally, many provisions of the Agreement, 

imposing various obligations on the United States, including the 

contribution of appropriated funds, could not otherwise be accomplished without the enactment of Federal legislation. 

Summary of provisions of substitute amendment 

The Committee held a hearing on S. 2605 on July 20, 2004, and 

received testimony from representatives of the Department of Interior, the Nez Perce Tribe, the State of Idaho and private water 

users. The bill was considered for report to the Senate at a business meeting held on September 22, 2004, at which time the Committee approved an amendment in the nature of a substitute. The 

approved substitute amendment represented the efforts of Majority 

and Minority Committee staff, after working with the various parties and interests, to resolve issues raised during the July 20 hearing. 

The substitute amendment would make both technical and substantive changes to S. 2605 as introduced, including clarification 

and protection of allottee rights in section 7, the scheduling of annual appropriations in section 8(h), the tolling of certain limitation 

periods and time-based equitable defenses to certain tribal claims 

in section 10, and a revision in section 11(b)(1) clarifying that the 

Act is not intended to amend, supersede or preempt any Federal, 

state or tribal laws or interstate compacts that pertain to the 

Snake River Basin, ‘‘[s]ubject to section 9(b)(3),’’ which would exempt the use of the Salmon and Clearwater River Basin Habitat 

Fund established in section 9(a) from section 6(d)(1) of the Endangered Species Act. 

Section 1 of the substitute amendment sets forth the short title 

of the Act. 

Section 2 of the substitute amendment states the purposes of the 

Act, including resolution of longstanding issues in the Snake River 

Basin Adjudication; a fair, equitable, and final settlement of all 

claims of the Tribe, its members and allottees and the United 

States on their behalf to the water of the Snake River Basin within 

Idaho; the authorization, ratification and confirmation of the 

Agreement; and the authorization of actions and appropriations 

necessary for the United States to meet its obligations under the 

Agreement and the Act. 

Section 3 of the substitute amendment sets forth the defined 

terms used throughout the Act. 

Section 4(a) of the substitute amendment states that ‘‘Except to 

the extent that the Agreement conflicts with the provisions of this 

7 

9 However, the Committee notes that section 9(b)(3) of the substitute amendment sets forth 

an express exemption of the Salmon and Clearwater River Basins Habitat Fund from section 

6(d)(1) of the Endangered Species Act, and that this exemption must be given effect. 10 Additionally, although the Agreement by its terms would create certain binding obligations 

on the part of United States and other parties once all conditions precedent thereto have been 

met, the Committee does not intend that the language in section 4(a) cause the Agreement 

itself, or any provision in the Agreement, to become Federal statutory law. 

Act, the Agreement is approved, ratified, and confirmed.’’ This language should not be interpreted to mean that the Agreement has 

been ‘‘deemed’’ by Congress to be in compliance with the requirements of the Endangered Species Act (ESA), the Clean Water Act 

(CWA) or any other Federal environmental law, or to somehow restrict the rights of any person or organization to pursue remedies 

otherwise available under Federal environmental laws such as the 

CWA and the ESA-including remedies under the ESA to challenge 

any of the biological opinions by NOAA Fisheries or U.S. Fish and 

Wildlife Service that are contemplated under the terms of the 

Agreement. In other words, the Committee does not intend this 

language to support an inference that Congress has made a determination that the Agreement meets the requirements of the Endangered Species Act or other Federal environmental laws.9

Similarly, the Committee does not intend the language of section 

4(a) of the substitute amendment to create a valid or enforceable 

obligation on the part of the United States to enact Federal legislation, or on the part of any agency or official thereof to seek the enactment of such legislation, with regard to the provision in section 

III.A. of the Agreement stating that ‘‘the parties will use their best 

efforts to seek enactment of state and federal legislation consistent 

with the terms of the general conditions to provide necessary ESA 

and CWA protection for this component of the agreement and to 

provide statutory authority necessary to implement the agreement’’ 

or with regard to the similar provision in section IV.A. of the 

Agreement.10

Section 5(a) of the substitute amendment directs the Secretary of 

Interior to take such actions consistent with the Agreement, the 

Act and water law of the State of Idaho as are necessary to carry 

out the Snake River Flow Component of the Agreement. Subsection 

(b) authorizes an appropriation of $2,000,000 for a 1-time payment 

to local governments to mitigate impacts resulting from the change 

of use of water acquired by the Bureau of Reclamation pursuant to 

the Agreement, and directs how those funds are to be distributed. 

Section 6 of the substitute amendment addresses the transfers of 

the BLM lands selected by the Tribe pursuant to the Agreement. 

Subsection (a)(1) provides that any such land shall be transferred 

to the Bureau of Indian Affairs in trust for the Tribe; (a)(2) states 

that the lands must be selected from a certain specified list of 

available lands; and (a)(3) limits the total appraised value of the 

lands to $7,000,000. Subsection (b) states that any use of the transferred land under a lease or permit with the BLM will remain in 

effect until its expiration unless the holder of the lease or permit 

requests an earlier termination, and that amounts accruing under 

such leases or permits from sales, bonuses, royalties and rentals 

shall be made available to the Tribe. 

8 

11The consumptive use reserved water right is defined in section 3(3) as ‘‘the Federal reserved 

water right of 50,000 acre-feet per year, as described in the Agreement, to be decreed to the 

United States in trust for the Tribe and the allottees, with a priority date of 1855.’’ 12Subsection (h) authorizes a schedule of appropriations totaling $60,100,000, over the course 

of fiscal years 2007 through 2013, to be used to reimburse the Tribe for the cost of certain measures undertaken to benefit protected fish species in the Salmon and Clearwater River Basins, 

Section 7 of the substitute amendment states that the consumptive use reserved water right 11 shall be held in trust by the United 

States for the benefit of the Tribe and allottees as set forth in that 

section and shall be subject to 25 U.S.C. 381, and that the springs 

and fountains water right of the Tribe shall be held in trust by the 

United States for the benefit of the Tribe. This section of the 

amendment includes a number of provisions that are intended to 

protect the rights of allottees to a portion of the consumptive use 

reserved water right and clarify the nature of their rights: the 

allottees are ‘‘entitled to a just and equitable allocation of the consumptive use water right for irrigation purposes.’’ This subsection 

also states that the Tribal water code that must be enacted to manage, regulate and control the consumptive use reserved water right 

must include a due process system for considering and determining 

any allottee’s request for an allocation of such water for irrigation 

purposes on allotted land. Any provision of the water code (or 

amendments to the code) that affect the rights of allottees must be 

approved by the Secretary before they become valid. 

Subsections (c) and (d) of section 7 of the substitute amendment 

set forth the requirements for a claimant seeking to challenge an 

allocation of water under the Tribal water code, by petitioning the 

Secretary after exhausting remedies available under that water 

code and other Tribal law. Subsection (e) states that the water 

rights and other benefits granted or confirmed under the Agreement are in full satisfaction of all claims for water rights and injuries to water rights of allottees, that any entitlement of an allottee 

to water under Federal law shall be satisfied out of the consumptive use reserved water right, and that the water rights, resources 

and other benefits provided under the Act are a complete substitution for any rights and claims that might have been held or asserted by allottees within the exterior boundaries of the Nez Perce 

Indian Reservation before the enactment of the Act. Subsection (g) 

authorizes the Tribe to lease its consumptive use water right 

through the state water bank without approval of the Secretary, 

and states that the United States will have no trust or other obligation to monitor, administer, or account for any funds received by 

the Tribe under any such lease. 

Section 8 of the substitute amendment establishes the Nez Perce 

Tribe Water and Fisheries Fund and the Nez Perce Domestic 

Water Supply Fund, provides for the management and investment 

of the two funds by the Secretary, and sets out the requirements 

that must be met in order for the Tribe to withdraw amounts in 

the funds, including the adoption of a tribal management plan and 

its approval by the Secretary pursuant to the American Indian 

Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et 

seq.), or of an expenditure plan approved by the Secretary for 

amounts not withdrawn from the funds. Subsection (g) prohibits 

per capita payments to Tribal members out of the funds, and subsection (h) sets forth schedules of annual authorizations for appropriations to the two funds.12 The amounts in the funds may not be 

9 

and totaling $23,000,000, over the course of fiscal years 2007 through 2011, to defray the costs 

of constructing water and sewer facilities on the reservation. 13The two accounts described in section 9 are both part of the same fund, and by authorizing 

appropriations to the accounts in the same subsection, it is the Committee’s intent that they 

be appropriated proportionately, with no disparate funding levels or disparate rates of appropriation to the accounts. 14The Committee is aware of the Tribe’s concern, expressed in testimony at the hearing on 

S.2605, that the Act should not be interpreted as a waiver of its claims for destruction of treaty 

hunting, gathering and fishing areas inundated as a result of the construction of the Dworshak 

Dam and Reservoir on the Nez Perce Indian Reservation. Although the Committee takes no position here on the merits of those claims, the Committee does expect the Department of Interior 

and the Department of Justice to attempt to work with the Tribe to devise a mechanism or process for addressing the Tribe’s claims relating to the Dworshak Dam and Reservoir that are not 

specifically waived under the provisions of S.2605. 

withdrawn or expended until the waivers and releases under section 10(a) take effect. 

Section 9 of the substitute amendment establishes the Salmon 

and Clearwater River Basins Habitat Fund and, within that Fund, 

two separate accounts, one administered by the Secretary for use 

by the Tribe and the other administered by the Secretary and provided to the State in accordance with the Agreement. Section 9 also 

sets forth the authorized uses of the Fund and directs the Secretary to release funds in the account administered for the State 

in accordance with section 6(d)(2) of the Endangered Species Act, 

but exempts uses of amounts in the Salmon and Clearwater River 

Basin Fund from section 6(d)(1) of the that Act.13

Section 10 of the substitute amendment provides for waivers and 

releases by the United States on behalf of the Tribe and the 

allottees and by the Tribe itself with respect to specified claims to 

water rights within the Snake River Basin, injuries to those rights 

and claims for specified injuries to treaty rights of the Tribe, all as 

described in section 10(a). Subsection (a)(5) states that the waivers 

and releases take effect on the date that the Secretary publishes 

a findings in the Federal Register that the actions set forth in section IV.L of the Agreement have been completed (including 

issuance of a judgment and decree by the SRBA court from which 

no further appeal may be taken) and have been determined by the 

United States on behalf of the Tribe and allottees, the Tribe, and 

the State to be consistent in all material respects with the Agreement. Subsection (b) sets forth the terms and requirements of a 

waiver and release that the Tribe must execute in favor of the 

United States in consideration of the performance by the United 

States of all actions required under the Agreement and the Act, as 

well as a provision that tolls all periods of limitation and timebased equitable defenses until the earlier of the date on which 

amounts authorized under sections 8(h) and 9(d)(1) are appropriated, or October 1, 2017. Subsection (c) states that the Tribe retains all rights not specifically waived or released in the Agreement 

or the Act, that the Agreement and Act do not constitute a waiver 

by the Tribe of any claim against the United States arising from 

the construction and operation of the Dworshak Project, other than 

those specified in subparagraphs (A) and (B) of subsection (b)(1),14

and that the Agreement and Act do not preclude the Tribe or 

allottees, or the United States as trustee of the Tribe or allottees, 

from purchasing or otherwise acquiring water rights in the future 

to the same extent as any other entity in the State. 

Section 11 of the substitute amendment sets forth several miscellaneous provisions, including reservations of rights not expressly 

10 

granted, recognized or relinquished by the Agreement or the Act. 

Other disclaimers are found in subsection (b)(1), providing that, 

subject to section 9(b)(3), nothing in the Act amends, supersedes, 

or preempts any State law, Federal law, Tribal law, or interstate 

compact that pertains to the Snake River Basin; subsection (b)(2), 

clarifying that the Act is not intended to establish any standard for 

quantifying Federal reserved water rights or any other Indian 

water claims in any other judicial or administrative proceeding; 

subsection (b)(3), stating that nothing in the Act or Agreement affects the water rights or claims or other treaty rights of other Indian tribes; subsection (c), stating that nothing in the Agreement 

or Act impairs treaty rights of the Tribe except to the extent expressly provided in the Agreement or Act; and subsection (d), stating that nothing in the Agreement or Act quantifies or affects the 

water rights, claims, entitlements to water or any other treaty 

right of any Indian tribe other than the Tribe. Subsection (e) relates to flow augmentation with water stored in the Dworshak Reservoir, and subsection (f) states that nothing in the Agreement or 

Act restricts, enlarges or otherwise determines the subject matter 

jurisdiction of any Federal, State or Tribal court; that the United 

States consents to jurisdiction in a proper forum for purposes of enforcing the provisions of the Agreement; but that nothing in subsection (f) confers jurisdiction on any State court to enforce Federal 

environmental laws regarding duties of the United States or conduct judicial review of Federal agency action. Nothing in subsection 

(f) should be read or construed as altering existing law regarding 

pre-enforcement review of Federal agency action. 

LEGISLATIVE HISTORY

S. 2605 was introduced by Senator Craig on June 24, 2004, with 

Senator Crapo as a cosponsor, and referred to the Committee on 

Indian Affairs. On July 20, 2004, the Committee held a hearing on 

the bill, and at a business meeting held on September 22, 2004, the 

Committee ordered that the bill, with an amendment in the nature 

of a substitute, be reported favorably to the Senate with a recommendation that the bill, as amended, do pass. 

COMMITTEE RECOMMENDATION

The Committee on Indian Affairs, in an open business session on 

September 22, 2004, approved the amendment in the nature of a 

substitute to S. 2605 and ordered S. 2605, as amended, to be reported to the Senate with a favorable recommendation that it be 

passed. 

COST AND BUDGETARY CONCERNS

The costs estimate for S. 2605, as provided by the Congressional 

Budget Office, is set forth below. 

11 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, October 7, 2004. 

Hon. BEN NIGHTHORSE CAMPBELL, 

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. 2605, the Snake River 

Water Rights Act of 2004. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Mike Waters. 

Sincerely, 

ELIZABETH ROBINSON

(For Douglas Holtz-Eakin, Director). 

Enclosure. 

S. 2605—Snake River Water Rights Act of 2004 

Summary: S. 2605 would ratify an agreement between the Nez 

Perce Tribe of Idaho, the United States, and Idaho to resolve water 

rights claims in the Snake River Basin made by the tribe. The bill 

would increase the amount of water used for the benefit of wildlife, 

transfer certain federal lands to the tribe, authorize appropriations 

to trust funds designed to help the tribe manage aquatic resources, 

build a domestic water supply system, and protect and restore 

aquatic habitats. CEO estimates that implementing S. 2605 would 

cost $58 million over the 2005–2009 period, assuming appropriation of the necessary amounts. CBO estimates that the bill would 

authorize the appropriation of $61 million after 2009 (all of that 

amount except for estimated interest earnings on a trust fund is 

specified by the bill). 

Enacting S. 2605 could affect direct spending by reducing potential offsetting receipts for leases of federal land that would be 

transferred to the tribe. CEO estimates that any such effects would 

be insignificant. 

S. 2605 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) 

and would impose no costs on state, local, or tribal governments. 

Any costs or duties imposed by this bill on state, local, or tribal 

governments would be those assumed by them voluntarily as parties to the agreement. 

Estimated cost to the Federal Government: The estimated budgetary impact of S. 2605 is shown in the table below. The costs of 

this legislation fall within budget functions 300 (natural resources 

and environment) and 450 (community and regional development). 

By fiscal year, in millions of dollars— 

2005 2006 2007 2008 2009 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Mitigation Payment: 

Specified Authorization Level ............................................................... 2 0 0 0 0 

Estimated Outlays ................................................................................ 2 0 0 0 0 

Payments to Trust Funds: 

Estimated Authorization Level ............................................................. 0 0 21 21 21 

Estimated Outlays ................................................................................ 0 0 17 19 20 

12 

By fiscal year, in millions of dollars— 

2005 2006 2007 2008 2009 

Total Changes: 

Estimated Authorization Level ............................................................. 2 0 21 21 21 

Estimated Outlays ................................................................................ 2 0 17 19 20 

Basis of estimate: For this estimate CBO assumes the bill will 

be enacted early in fiscal year 2005 and that the amounts authorized to be appropriated will be provided for each year. 

Mitigation payment 

The bill would authorize the appropriation of $2 million to certain local governments in Idaho to mitigate the effect of decreased 

water-flows resulting from the use of over 400,000 acre-feet of 

water a year in the Snake River Basin to benefit wildlife. 

Payments to trust funds 

This bill would create three Indian trust funds for the Nez Perce 

Tribe related to activities in the Snake River Basin. The Nez Perce 

Tribe Water and Fisheries Fund would be authorized to be appropriated about $20 million over the 2005–2009 period, and it could 

be used by the tribe to acquire lands and water rights and to restore and improve fish and agricultural resources. Under the bill 

the tribe would use the Nez Perce Tribe Domestic Water Supply 

Fund, to develop and to build a domestic water and sewer system. 

The bill would authorize the appropriation of $19 million to that 

fund over the 2005–2009 period. The third fund under the bill 

would be the Salmon and Clearwater River Basins Habitat Fund. 

The Habitat Fund would consist of two separate accounts, one for 

the benefit of the tribe, and the other for the benefit of Idaho. The 

bill would authorize the appropriation of $24 million over the 

2005–2009 period for this fund. 

Payments to certain 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. Based on information from the Department of the Interior (DOI), CBO expects 

that the Fisheries and Water Supply Funds would be treated in 

this manner. In addition, a specified part of the third trust fund 

would also receive that budgetary treatment. As a result, CBO expects that the entire amount appropriated to these funds for the 

benefit of the tribe would be recorded as budget authority and outlays in the year it is appropriated. Because these accounts would 

be nonbudgetary, the subsequent use of such accounts by the tribe 

would not affect federal outlays. 

Because part of the Salmon and Clearwater River Basins Habitat 

Fund would not be held in trust for a tribe, it would be treated as 

a federal fund. Thus, the initial deposits into this account therefore 

would not affect the budget, however any subsequent use of the 

funds by Idaho would have a budgetary impact. 

Additional provisions 

The bill would allow the Nez Perce tribe to choose certain land 

to be held in trust for the tribe from among 11,000 federal acres 

on or near the reservation. Based on information from the DOI, 

CBO estimates the land likely to be chosen has insignificant minVerDate May 21 2004 06:16 Oct 22, 2004 Jkt 000000 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 D:\DOCS\SR389.108 SR389
13 

eral value and timber value of about $6 million. CBO expects the 

loss of potential federal receipts from transferring this land to the 

tribe would be insignificant because there are no current or 

planned timber leases for any of the land. There are currently 43 

grazing leases on the affected lands, and the offsetting receipts (a 

credit against direct spending) from these leases are less than 

$1,000. 

Intergovernmental and private-sector impact: S. 2605 contains no 

intergovernmental or private-sector mandates as defined in UMRA 

and would impose no costs on state, local, or tribal governments. 

Any costs or duties imposed by this bill on state, local, or tribal 

governments would be those assumed by them voluntarily as parties to the agreement. 

Estimate prepared by: Federal Costs: Mike Waters; Impact on 

State, Local, and Tribal Governments: Marjorie Miller; and Impact 

on the Private Sector: Selena Caldera. 

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

EXECUTIVE COMMUNICATIONS

The Committee has received no executive communications relating to S. 2605. 

REGULATORY AND PAPERWORK IMPACT STATEMENT

Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires that each report accompanying a bill evaluate the regulatory and paperwork impact that would be incurred in carrying 

out the bill. The Committee believes that the regulatory and paperwork impacts of S. 2605 will be minimal. 

CHANGES IN EXISTING LAW

In compliance with subsection 12 of rule XXVI of the Standing 

Rules of the Senate, the Committee finds that the enactment of S. 

2605 will not effect any changes in existing law. 

14 


Insert graphic folio 22 SR389.001
15 


Insert graphic folio 23 SR389.002
16 


Insert graphic folio 24 SR389.003
17 


Insert graphic folio 25 SR389.004
18 


Insert graphic folio 26 SR389.005
19 


Insert graphic folio 27 SR389.006
20 


Insert graphic folio 28 SR389.007
21 


Insert graphic folio 29 SR389.008
22 


Insert graphic folio 30 SR389.009
23 


Insert graphic folio 31 SR389.010
24 


Insert graphic folio 32 SR389.011
25 


Insert graphic folio 33 SR389.012
26 


Insert graphic folio 34 SR389.013
27 


Insert graphic folio 35 SR389.014
28 


Insert graphic folio 36 SR389.015
29 


Insert graphic folio 37 SR389.016
30 


Insert graphic folio 38 SR389.017
31 


Insert graphic folio 39 SR389.018
32 


Insert graphic folio 40 SR389.019
33 


Insert graphic folio 41 SR389.020
34 


Insert graphic folio 42 SR389.021
35 


Insert graphic folio 43 SR389.022
36 


Insert graphic folio 44 SR389.023
37 


Insert graphic folio 45 SR389.024
38 


Insert graphic folio 46 SR389.025
39 


Insert graphic folio 47 SR389.026
40 


Insert graphic folio 48 SR389.027
41 


Insert graphic folio 49 SR389.028
42 


Insert graphic folio 50 SR389.029
43 


Insert graphic folio 51 SR389.030
44 


Insert graphic folio 52 SR389.031
45 


Insert graphic folio 53 SR389.032
46 


Insert graphic folio 54 SR389.033
47 


Insert graphic folio 55 SR389.034
48 


Insert graphic folio 56 SR389.035
49 


Insert graphic folio 57 SR389.036
50 


Insert graphic folio 58 SR389.037
51 


Insert graphic folio 59 SR389.038
52 


Insert graphic folio 60 SR389.039
53 


Insert graphic folio 61 SR389.040
54 


Insert graphic folio 62 SR389.041
55 


Insert graphic folio 63 SR389.042
56 


Insert graphic folio 64 SR389.043
57 


Insert graphic folio 65 SR389.044
58 


Insert graphic folio 66 SR389.045
59 


Insert graphic folio 67 SR389.046
60 


Insert graphic folio 68 SR389.047
61 


Insert graphic folio 69 SR389.048
62 


Insert graphic folio 70 SR389.049