II 

109TH CONGRESS 

2D SESSION S. 2633 

To grant rights-of-way to owners of dams located in the Bitterroot National 

Forest in the State of Montana, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 24, 2006 

Mr. BURNS introduced the following bill; which was read twice and referred 

to the Committee on Energy and Natural Resources 

A BILL 

To grant rights-of-way to owners of dams located in the 

Bitterroot National Forest in the State of Montana, and 

for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Bitterroot National 

5 Forest Dam and Reservoir Maintenance Act’’. 

6 SEC. 2. FINDINGS AND PURPOSES. 

7 (a) FINDINGS.—Congress finds that— 

8 (1) the wilderness dams in the Bitterroot Na9 tional Forest in the State of Montana provide nuVerDate Aug 31 2005 22:43 Apr 25, 2006 Jkt 049196 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2633.IS S2633

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1 merous benefits to the people living in the Bitterroot 

2 Valley; and 

3 (2) those benefits include— 

4 (A) groundwater recharge; 

5 (B) maintenance of open space by permit6 ting sustainable family ranches and farms, 

7 rather than subdividing ranches and farms; 

8 (C) increased late summer streamflows 

9 that support riparian and fishery habitat needs; 

10 and 

11 (D) flood control. 

12 (b) PURPOSES.—The purposes of this Act are— 

13 (1) to grant rights-of-way to owners of dams lo14 cated in the Bitterroot National Forest in the State 

15 of Montana; and 

16 (2) to continue to provide the benefits described 

17 in subsection (a). 

18 SEC. 3. DEFINITIONS. 

19 In this Act: 

20 (1) DAM.—The term ‘‘dam’’ means a dam, in21 cluding any reservoirs and appurtenances to the 

22 dam, that is located in the Forest as of the date of 

23 enactment of this Act. 

24 (2) FOREST.—The term ‘‘Forest’’ means the 

25 Bitterroot National Forest in the State. 


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1 (3) OWNER.—The term ‘‘owner’’ means— 

2 (A) the owner of a dam; 

3 (B) the owner of a water storage right for 

4 a dam; or 

5 (C) the owner of rights-of-way under this 

6 Act or other Federal law. 

7 (4) SECRETARIES.—The term ‘‘Secretaries’’ 

8 means the Secretary of Agriculture and the Sec9 retary of Interior. 

10 (5) STATE.—The term ‘‘State’’ means the State 

11 of Montana. 

12 (6) TRAIL.—The term ‘‘trail’’ means a trail, ac13 cess route, or primitive road in the Forest in exist14 ence on the date of enactment of this Act. 

15 SEC. 4. RIGHTS-OF-WAY. 

16 (a) IN GENERAL.—Notwithstanding the Wilderness 

17 Act (16 U.S.C. 1131 et seq.), the National Environmental 

18 Policy Act of 1969 (42 U.S.C. 4321 et seq.), or any other 

19 provision of law, the Secretaries shall, on the date of en20 actment of this Act, grant to the owners, for no consider21 ation, rights-of-way— 

22 (1) to the trails, for purposes of providing ac23 cess to any dams owned by the owner; and 

24 (2) to areas of the Forest adjacent to any dams 

25 owned by the owner, for purposes of the construcVerDate Aug 31 2005 22:43 Apr 25, 2006 Jkt 049196 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2633.IS S2633

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1 tion, reconstruction, maintenance, repair, and oper2 ation of the dam. 

3 (b) BOUNDARIES.— 

4 (1) IN GENERAL.—As soon as practicable after 

5 the date of enactment this Act, the owners shall, 

6 subject to paragraphs (2) and (3), prepare a map 

7 establishing the boundaries of the rights-of-way 

8 granted under subsection (a). 

9 (2) TRAILS.—A right-of-way granted under 

10 subsection (a)(1) shall extend at least 8 feet but not 

11 more than 60 feet in width from the center of the 

12 trail. 

13 (3) ADJACENT AREAS.—A right-of-way granted 

14 under subsection (a)(2)— 

15 (A) shall be to areas of the Forest that are 

16 located not less than 50 feet nor more than 500 

17 feet and further than 500 feet from the 

18 highwater mark and downstream dam toe to in19 clude additional area determined as necessary 

20 by the owner; and 

21 (B) shall include the least amount of land 

22 that is necessary, as determined by the State 

23 and owner, for the owner to construct, recon24 struct, maintain, repair, and operate the dam, 

25 including borrow material, camp sites, pasture 


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1 for pack and work animals, and tool and equip2 ment storage sites. 

3 (c) CONSTRUCTION, MAINTENANCE, AND REPAIR.— 

4 An owner granted a right-of-way under subsection (a)(1) 

5 may construct, maintain, and repair the right-of-way. 

6 (d) AUTHORIZED USES.— 

7 (1) MOTOR VEHICLES.—Notwithstanding sec8 tion 4(c) of the Wilderness Act (16 U.S.C. 1113), an 

9 owner may use motor vehicles, motorized and 

10 mechanized equipment, and other forms of mecha11 nized transport— 

12 (A) on the rights-of-way granted under 

13 subsection (a); and 

14 (B) at the owner’s dam. 

15 (2) AIRCRAFT.—An owner may operate aircraft 

16 in the airspace over the Forest to access the dam 

17 and may land the aircraft on the rights-of-way. 

18 (e) APPLICABLE LAW.—Any activities that are car19 ried out by an owner in a right-of-way granted under sub20 section (a) or for the purposes referred to in subsection 

21 (a)(2)— 

22 (1) shall be regulated by the State, in accord23 ance with State law; and 

24 (2) shall not be subject to— 


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1 (A) the Wilderness Act (16 U.S.C. 1131 et 

2 seq.); 

3 (B) the National Environmental Policy Act 

4 of 1969 (42 U.S.C. 4321 et seq.); 

5 (C) the National Dam Safety Program Act 

6 (33 U.S.C. 467 et seq.); 

7 (D) any other Federal law establishing en8 gineering and construction standards for dams; 

9 or 

10 (E) any other provision of Federal law to 

11 protect fish and wildlife or maintain water qual12 ity standards. 

13 (f) LIMITATION ON LIABILITY.—An owner of a dam 

14 shall not be liable for any claim or damage that may arise 

15 from the conduct of activities to construct, maintain, re16 pair, and operate the dam, except any claim or damage 

17 that arises from the negligence of the owner. 

18 (g) SUBSEQUENT CONVEYANCE.—The rights-of-way 

19 granted under subsection (a) may be subsequently con20 veyed by the owner without the consent of the Secretaries. 

21 (h) TERMINATION.—A right-of-way granted to an 

22 owner under subsection (a) shall terminate if the State 

23 determines, after notice to the owner and a hearing, that 

24 the owner has not accessed or conducted activities at the 

25 dam for 10 consecutive years. 


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1 (i) EFFECT.— 

2 (1) WATER RIGHTS.—Nothing in this Act af3 fects or in any way interferes with laws of the State 

4 relating to the control, appropriation, use, or dis5 tribution of water used in irrigation or other bene6 ficial purposes, or any vested right acquired under 

7 State law, and the Secretaries shall proceed in con8 formity with such laws in all land and water man9 agement activities under all authorities. 

10 (2) EXISTING RIGHTS-OF-WAY.—The rights-of11 way granted under this Act shall be in addition to 

12 any rights-of-way granted to an owner under section 

13 18 of the Act of March 3, 1891 (43 U.S.C. 946), 

14 sections 2339 and 2340 of the Revised Statutes (43 

15 U.S.C. 661), or any other provision of law. 

16 (3) COMPENSABLE CLAIMS.—Any land and 

17 water management activities taken by the Secre18 taries which interfere with the access to or exercise 

19 of water rights or rights-of-way of the owner shall 

20 create in the owner a valid and compensable takings 

21 claim. 

Æ 


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