19–010

Calendar No. 645

107TH CONGRESS REPORT

2d Session " ! SENATE 107–314

FREMONT-MADISON CONVEYANCE ACT

OCTOBER 15, 2002.—Ordered to be printed

Mr. BINGAMAN, from the Committee on Energy and Natural

Resources, submitted the following

R E P O R T

[To accompany S. 2556]

The Committee on Energy and Natural Resources, to which was

referred the bill (S. 2556) to authorize the Secretary of the Interior

to convey certain facilities to the Fremont-Madison Irrigation District in the State of Idaho, 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 ‘‘Fremont-Madison Conveyance Act’’.

SEC. 2. DEFINITIONS.

In this Act:

(1) DISTRICT.—The term ‘‘District’’ means the Fremont-Madison Irrigation

District, an irrigation district organized under the law of the State of Idaho.

(2) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of the Interior.

SEC. 3. CONVEYANCE OF FACILITIES.

(a) CONVEYANCE REQUIREMENT.—The Secretary of the Interior shall convey to the

Fremont-Madison Irrigation District, Idaho, pursuant to the terms of the memorandum of agreement (MOA) between the District and the Secretary (Contract No.

1425–0901–09MA–0910–093310), all right, title, and interest of the United States

in and to the canals, laterals, drains, and other components 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

as they exist upon the date of enactment of this Act, consistent with section 8.

(b) REPORT.—If the Secretary has not completed any conveyance required under

this Act by September 13, 2003, the Secretary shall, by no later than that date, submit a report to the Congress explaining the reasons that conveyance has not been

completed and stating the date by which the conveyance will be completed.
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SEC. 4. COSTS.

(a) IN GENERAL.—The Secretary shall require, as a condition of the conveyance

under section 3, that the District pay the administrative costs of the conveyance and

related activities, including the costs of any review required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), as described in Contract

No. 1425–0901–09MA–0910–093310.

(b) VALUE OF FACILITIES TO BE TRANSFERRED.—In addition to subsection (a) the

Secretary shall also require, as condition of the conveyance under section 2, that the

District pay to the United States the lesser of the net present value of the remaining obligations owned by the District to the United States with respect to the facilities conveyed, or $280,000. Amounts received by the United States under this subsection shall be deposited into the Reclamation Fund.

SEC. 5. TETON EXCHANGE WELLS.

(a) CONTRACTS AND PERMIT.—In conveying the Teton Exchange Wells referenced

in section 3, the Secretary shall also convey to the District—

(1) Idaho Department of Water Resources permit number 22–097022, including drilled wells under the permit, as described in Contract No. 1425–0901–

09MA–0910–093310; and

(2) all equipment appurtenant to such wells.

(b) EXTENSION OF WATER SERVICE CONTRACT.—The water service contract between the Secretary and the District (Contract No. 7–0907–0910–09W0179, dated

September 16, 1977) is hereby extended and shall continue in full force and effect

until all conditions described in this Act are fulfilled.

SEC. 6. ENVIRONMENTAL REVIEW.

Prior to conveyance the Secretary shall complete all environmental reviews and

analyses as set forth in the MOA.

SEC. 7. LIABILITY.

Effective on the date of the conveyance the United States shall not be liable for

damages of any kind arising out of any act, omission, or occurrence relating to the

conveyed facilities, except for damages caused by acts of negligence committed by

the United States or by its employees, agents, or contractors prior to the date of

conveyance. Nothing in this section may increase the liability of the United States

beyond that currently provided in chapter 171 of title 28, United States Code.

SEC. 8. WATER SUPPLY TO DISTRICT LANDS.

The acreage within the District eligible to receive water from the Minidoka

Project and the Teton Basin Projects is increased to reflect the number of acres

within the District as of the date of enactment of this Act, including lands annexed

into the District prior to enactment of this Act as contemplated by the Teton Basin

project. The increase in acreage does not alter deliveries authorized under their existing water storage contracts and as allowed by State water law.

SEC. 9. DROUGHT MANAGEMENT PLANNING.

Within 60 days of enactment of this Act, in collaboration with stakeholders in the

Henry’s Fork watershed, the Secretary shall initiate a drought management planning process to address all water uses, including irrigation and the wild trout fishery, in the Henry’s Fork watershed. Within 18 months of enactment of this Act, the

Secretary shall report to Congress with a final drought management plan.

SEC. 10. EFFECT.

(a) IN GENERAL.—Except as provided in this Act, nothing in this Act affects—

(1) the rights of any person; or

(2) any right in existence on the date of enactment of this Act of the Shoshone-Bannock Tribes of the Fort Hall Reservation to water based on a treaty,

compact, executive order, agreement, the decision in Winters v. United States,

207 U.S. 564 (1908) (commonly known as the ‘‘Winters Doctrine’’), or law.

(b) CONVEYANCES.—Any conveyance under this Act shall not affect or abrogate

any provisions 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. 2556, as ordered reported, is to authorize the

Secretary of the Interior to convey certain water distribution and

drainage facilities to the Fremont-Madison Irrigation District in

the State of Idaho.
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BACKGROUND AND NEED

S. 2556 provides for the transfer to the Fremont-Madison Irrigation District (District) of certain facilities that are associated with

the Upper Snake River Division, Minidoka Project and the Lower

Teton Division, Teton Basin Project. These facilities are located

near Rexburg in eastern Idaho. The facilities are used exclusively

for irrigation and are currently operated and maintained by the

District. Two of the facilities, the Cross Cut Diversion Dam and

Canal have been paid-out by the District. The Teton Exchange

Wells, which are proposed to be transferred are valued at approximately $278,000 according to the Bureau of Reclamation.

The title transfer provided for in S. 2556 has been the subject of

significant attention in eastern Idaho. The District and other entities that make up the Henry’s Fork Watershed Council, worked

with the Bureau of Reclamation to address issues associated with

the transfer. That collaborative process resulted in a Memorandum

of Agreement between the Secretary and the District identified as

Contract No. 1425–01–MA–10–3310, dated September 13, 2001

(MOA). The MOA lists the facilities to be transferred and specifies

the respective responsibilities for completing activities that are a

prerequisite to the transfer. The MOA is set forth as Appendix A.

LEGISLATIVE HISTORY

S. 2556 was introduced by Senators Crapo and Craig on May 23,

2002. The Subcommittee on Water and Power held a hearing on S.

2556 on July 31, 2002. At the business meeting on October 3, 2002,

the Committee on Energy and Natural Resources adopted an

amendment in the nature of a substitute and ordered S. 2556, as

amended, favorably reported.

COMMITTEE RECOMMENDATION

The Committee on Energy and Natural Resources, in open business session on October 3, 2002, by a voice vote of a quorum

present, recommends that the Senate pass S. 2556, if amended as

described herein.

COMMITTEE AMENDMENTS

During the consideration of S. 2556, the Committee adopted an

amendment in the nature of a substitute. The substitute amendment addresses concerns raised during the Subcommittee hearing

and in written submissions.

The first change deletes a provision in the bill requiring the

transfer take place by September 13, 2003. The Secretary must report to Congress with an explanation of why the transfer has not

occurred and the anticipated transfer date if the conveyance has

not been completed by September 13, 2003. The amendment deletes a ceiling on administration costs assessed to the District as

part of the transfer. The allocation of costs between Reclamation

and the District is addressed in the MOA.

The amendment also adds a new section 6 that addresses environmental review. Section 6 directs the Secretary to conduct an

analysis of the transfer as set forth in the MOA. The MOA specifically requires the parties to undertake actions to comply with,

among other statutes, the National Environmental Policy Act and
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the Endangered Species Act. The amendment requires those analyses to be undertaken as provided in the MOA.

Finally, two provisions are added to S. 2556 to address concerns

of stakeholders in the Henry’s Fork and Snake River watersheds.

Section 9 is added to ensure that the Secretary initiates a drought

management planning process to address all water uses, including

irrigation and the wild trout fishery, in the Henry’s Fork watershed. Also, a new section 10(a)(2) provides a disclaimer on any effect to the water rights of the Shoshone-Bannock Tribes of the Fort

Hall Reservation.

Other changes in the substitute amendment are explained in the

section by section analysis.

SECTION-BY-SECTION ANALYSIS

Section 1 provides the short title, the ‘‘Fremont-Madison Conveyance Act.’’ Section 2 defines terms used in the Act.

Section 3, subsection (a) directs the Secretary of the Interior to

convey to the District pursuant to the terms of the MOA, all right,

title, and interest of the United States in and to the identified facilities.

Subsection (b) specifies that if the Secretary has not completed

the title transfer by September 13, 2003, the Secretary is required

to submit a report to Congress explaining the reasons that conveyance has not been completed and the anticipated date for completion.

Section 4, subsection (a) provides that the Secretary shall require

the District, as described in the MOA to pay the administrative

costs of the conveyance.

Subsection (b) directs that in addition to the administrative

costs, the Secretary shall require that the District pay the United

States the lesser of the net present value of the remaining obligations owed by the District to the United States with respect to facilities conveyed, or $280,000. The money received will be deposited

into the Reclamation Fund.

Section 5, subsection (a) directs the Secretary to include in its

conveyance of the Teton Exchange Wells, Idaho Department of

Water Resources permit number 22–097022, including drilled wells

under the permit as described in the MOA, and all equipment appurtenant to such wells.

Subsection (b), extends the water service contract between the

Secretary and the District until the conditions described in this Act

are fulfilled.

Section 6 directs the Secretary, prior to conveyance, to complete

all environmental reviews and analyses as set forth in the MOA.

Section 7 limits the liability of the United States upon conveyance of the facilities and is self-explanatory.

Section 8, increases the acreage within the District eligible to receive water from the Minidoka and Teton Basin Projects to reflect

the number of acres within the District as of the date of enactment

of this Act. The increase in acreage does not alter the delivery of

water authorized under current water storage contracts and State

water law.

Section 9, directs the Secretary, in collaboration with the stakeholders in the Henry’s Fork watershed, to initiate a drought man-
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agement planning process to address all water uses, including irrigation and the wild trout fishery, in the Henry’s Fork watershed.

It also directs the Secretary to report to Congress with a final

drought manaagement plan within 18 months of enactment.

Section 10, subsection (a) disclaims any effect on existing rights

and is self-explanatory.

Subsection (b) disclaims any effect on any irrigation district’s

righ to use water and is self-explanatory.

COST AND BUDGETARY CONSIDERATIONS

The following estimate of the cost of this measure has been provided by the Congressional Budget Office:

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, October 7, 2002.

Hon. JEFF BINGAMAN,

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. 2556, the Fremont-Madison

Conveyance Act.

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

to provide them. The CBO staff contact is Julie Middleton.

Sincerely,

BARRY B. ANDERSON

(For Dan L. Crippen, Director).

Enclosure.

S. 2556—Fremont-Madison Conveyance Act

S. 2556 would direct the Secretary of the Interior through the

Bureau of Reclamation to convey certain components of a water

distribution and drainage system to the Fremont-Madison Irrigation District in Idaho by September 2003. These components include a dam, a canal, and several wells, which are currently operated and maintained by the district and used for irrigation. The

transfer would occur after the district meets its outstanding obligations under an existing repayment contract with the federal government. In addition, S. 2556 would require the federal government to pay half of the costs associated with the conveyance, including a review under the National Environment Policy Act. This

bill also would authorize the Bureau to develop a drought management plan for the Henry’s Fork watershed.

CBO estimates that enacting S. 2556 would result in an insignificant increase in offsetting receipts to the government. Since 1977,

the district has repaid $225,000 of the cost of constructing several

water wells. As a condition of conveyance, CBO estimates that the

federal government would receive about $135,000 from the district

in 2003 as the final payment under the existing repayment contract for those wells. This amount represents the net present value

of the remaining obligations owed by the district. This near-term

cash savings would be offset by the loss of future offsetting receipts

of about $10,000 a year over the 2003–2030 period. CBO also estimates that the Bureau of Reclamation would spend about $80,000
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for its share of the administrative costs associated with this conveyance, assuming the availability of appropriated funds.

S. 2556 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would

impose no costs on state, local, or tribal governments. This conveyance would be voluntary on the part of the district as would any

costs it would incur to comply with the conditions set by the bill.

On August 12, 2002, CBO prepared a cost estimate for H.R.

4708, the Fremont-Madison Conveyance Act, as ordered reported

by the House Committee on Resources on July 24, 2002. The two

versions of the legislation are very similar, and our cost estimates

are the same. S. 2556 would authorize the bureau to develop a

drought management plan for the Henry’s Fork watershed, a provision that is not included in H.R. 4708. CBO estimates that this

provision would not have a significant impact on the federal budget.

The CBO staff contact for this estimate is Julie Middleton. 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. 2556. 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. 2556.

EXECUTIVE COMMUNICATIONS

The pertinent legislative report received by the Committee on

Energy and Natural Resources from the Department of the Interior

setting forth Executive agency recommendation relating to S. 2556

is set forth below:

DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SECRETARY,

Washington, DC, August 9, 2002.

Hon. JEFF BINGAMAN,

Chairman, Committee on Energy and Natural Resources,

U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: This letter responds to your request for the

views of the Department of the Interior on S. 2556, the Fremont

Madison Conveyance Act, which directs the Secretary of the Interior to transfer title of certain Federal owned facilities, lands and

permits to the Fremont-Madison Irrigation District (District). This

confirms my testimony before the Water and Power Subcommittee

on July 31.

The facilities under consideration for transfer in S. 2556, the

Cross Cut Diversion Dam and Canal, the Teton Exchange Wells

and the Idaho Department of Water Resources permit number 22–

7022, are associated with the Upper Snake River Division,
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Minidoka Project and the Lower Teton Division, Teton Basin

Project, respectively, and are located near Rexburg in eastern

Idaho. The facilities under consideration for transfer are used exclusively for irrigation purposes and have always been operated

and maintained by the District. While the Cross Cut Division Dam

and Canal are paid-out by the District, the legislation provides for

a payment for the Teton Exchange Wells, which are currently valued at $277,961, based upon the outstanding balance to be repaid

by the District.

Over the last few years, we have been working very closely with

the District and numerous other local organizations including the

Henry’s Fork Foundation, a local conservation and sportsmen’s organization, to work through the issues on the title transfer for the

features, lands and water rights associated with this project. Over

the last year, we have made great progress in narrowing the scope

of the transfer to meet the District’s needs, protect the interests of

the other stake-holders, and ensure that the transfer does not negatively impact downstream contractors of the integrated Snake

River system. While we are very close to agreement on this legislation, S. 2556, as drafted, creates some problems and concerns.

However, with the technical modifications outlined below, the Department could support S. 2556.

Background

Individuals, organizations, Federal, States and local agencies interested in the Henry’s Fork of the Snake River have a very impressive history of collaboration and cooperation through the

Henrys Fork Watershed Council (Council)—a grassroots community

forum.

Subsequently, the District and the Henry’s Fork Foundation,

along with the Land and Water Fund of the Rockies engaged in a

series of negotiations to develop a mutually acceptable proposal.

While that process did not result in a concrete proposal, it did lead

to some consensus on the facilities to be transferred that are included in this legislation. It also led to the removal of the Grassy

Lake and Island Park dams from the transfer proposal about which

many local organizations had serious concerns.

Accordingly, in September, 2001, Reclamation and the District

signed a memorandum of agreement (Contract No. 1425–01–10–

3310) (MOA) which expires on September 13, 2003, and is referenced in S. 2556. This agreement lists the facilities to be transferred, delineates the respective responsibilities to complete activities necessary for the title transfer such as arrangements for the

sharing of costs, valuation of the facilities to be transferred, and responsibilities associated with compliance with Federal and State

laws.

We have, however, identified some concerns and technical issues

which we would like to raise for the Committee’s consideration:

Cost Share Requirements

First, Section 3(a) of S. 2556 requires the District to pay the administrative costs of the conveyance and related activities, including the costs of any review required under NEPA, but limits their

contributions to no more than $40,000. This language is both unclear as to what is or is not included as ‘‘costs,’’ nor is it in accord-
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ance with the MOA that FMID should pay the 50% of costs associated with applicable procedural requirements of the NEPA, ESA,

and other applicable state and federal laws required.

We agree that it is appropriate to share the costs of compliance

with Federal laws, as was agreed upon in the MOA. We also believe that the recipients of title transfer should cover those costs

that are associated with the real estate transaction resulting from

the title transfer. In this vein, the MOA states that the District

would pay for applicable activities such as surveys, title searches,

facility inspections, and development of a quit claim deed or other

legal documents necessary for completing the transfer. Unfortunately, S. 2556, as drafted, is unclear on this point.

To address these ambiguities, we suggest that S. 2556 referenced

the MOA’s treatment of costs or reiterate the manner in which the

distribution of costs were addressed in the MOA. Given the amount

of work that went into developing the MOA, its applicability under

S. 2556 for implementation of the transfer, and the fact that it has

been agreed upon and signed by representatives of both Reclamation and the District, referencing the MOA on these issues would

provide an equitable, clear and consistent resolution to our concern.

Conveyance Deadline and Report

Section 2(a) of S. 2556 requires that the title transfer be completed no later than the termination date of the MOA (September

13, 2003). However, Section 2 states that the transfer be completed

‘‘as soon as practicable after the date of enactment and in accordance with all applicable law.’’ These provisions appear inconsistent

as Section 2(a) designates a required date certain for completion,

while Section 2(d)(1) states that it be completed ‘‘as soon as practicable.’’ Further, Section 2(d)(2) requires that the Secretary submit

a report to Congress within one year of the date of enactment if

the transfer has not been completed in that time frame. This provision seems somewhat arbitrary and could potentially delay the

transfer from the September 13, target date while the report is

being prepared.

To address our concerns with inconsistent deadlines and reporting requirements, we suggest that the legislation be modified to require that the transfer be completed ‘‘as soon as practicable after

the date of enactment’’ and the reporting requirement in S. 2556

be modified to require a report to Congress be completed only if the

title has not been transferred by September 13, 2003—the expiration date of MOA referenced in the legislation. In this manner, the

requirements are made clear and consistent, and no report to Congress would be necessary if the facilities are transferred by the

MOA’s expiration date.

Conclusion

In conclusion, we have worked closely with the District and a

great deal of progress has been made. With the technical modifications mentioned above, the Department could support passage of

this legislation.
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The Office of Management and Budget advises that there is no

objection to the presentation of this report from the standpoint of

the Administration’s program.

Sincerely,

JOHN W. KEYS III,

Commissioner, Bureau of Reclamation.

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. 2556, as ordered reported.

(11)

A P P E N D I X A

MEMORANDUM OF AGREEMENT BETWEEN UNITED STATES OF AMERICA, DEPARTMENT OF THE INTERIOR AND FREMONT-MADISON IRRIGATION DISTRICT

This Memorandum of Agreement (MOA) is made pursuant to the

Reclamation Act of June 17, 1902 (32 Star. 388), and acts amendatory thereof or supplementary thereto, between the UNITED

STATES OF AMERICA, acting through the Bureau of Reclamation,

Department of the Interior, hereinafter referred to as Reclamation,

and the FREMONT-MADISON IRRIGATION DISTRICT, a public

corporation organized under the laws of the State of Idaho, with its

principal place of business in St. Anthony, Idaho, hereinafter referred to as FMID, and;

WHEREAS, FMID has stated its intent to seek Congressional

authority to transfer title of the United States’ ownership interests

in Cross Cut Diversion Dam and Cross Cut Canal, and the Teton

wells including all well permits and water right permits (identified

under permit number 22–7022 by the Idaho Department of water

Resources), both drilled and undrilled, together with all of the Reclamation’s water right interests associated with such well permits,

and any other associated facilities and real property pertaining to

Cross Cut Diversion Dam and Cross Cut Canal, and the Teton

wells held by the United States for the benefit of FMID, and;

WHEREAS, in addition to the existing Teton wells, FMID has

stated its intent to develop such additional wells (using said permit

number 22–7022) as may be required to provide a supplemental

water supply to the lands of its spaceholders in years when there

is an inadequate supply of water, and;

WHEREAS, it is also FMID’s intent to give the undeveloped portion of permit number 22–7022, not needed to provide a supplemental water supply to its spaceholders, to the Idaho Water Resources Board for the Water Board’s future use, and;

WHEREAS, FMID has also stated its intent to demonstrate its

capacity for owning and operating these facilities, and;

WHEREAS, Reclamation has a responsibility to protect the interests of the United States and its public’s interests in the resources,

which are supported by Reclamation’s ownership of the facilities

and real property proposed to be transferred, and;

WHEREAS, Reclamation has the ultimate responsibility to approve environmental analyses, prepared by FMID or its contractors, associated with such a transfer and has adopted guidelines

designed to assist FMID in implementing a successful transfer,

and;
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WHEREAS, FMID and Reclamation agree to cooperate in a joint

effort to evaluate the environmental impacts, and other elements

associated with such a transfer and to prepare associated analyses

required for the transfer, and;

WHEREAS, Reclamation has no authorization or funds appropriated for paying costs associated with this title transfer and Reclamation will not be able to reimburse FMID for any of its expenditures without Congressional authorization, and;

WHEREAS, FMID and Reclamation agree to proceed, as applicable, with title transfer under the August 1995 Framework for the

transfer of Title process, although FMID does not necessarily agree

to the exact sequence of events as set forth in said Framework;

NOW THEREFORE, the parties agree as follows:

1. Reclamation will be responsible for the following actions that

may be undertaken in cooperation with FMID:

(a) Assist FMID in the planning and completion of required environmental compliance activities to implement the proposed Federal

action, including drafting a scoping document. Reclamation will

also assist FMID with any planned scoping meetings and will attend the scoping meetings set up by FMID.

(b) Following scoping and in consultation with FMID develop the

alternatives for evaluation and analysis in Reclamation’s National

Environmental Policy Act (NEPA) documents and Endangered species Act (ESA) compliance actions.

(c) Review the work of FMID and/or any consultants engaged by

FMID to assure that the applicable procedural requirements of

NEPA, ESA and other applicable State and Federal laws are met

as required. Reclamation reserves the right to approve any consultant retained by FMID in connection with the NEPA process.

(d) Review NEPA documentation prepared by FMID to determine

the appropriate level of NEPA compliance required for this action.

As lead agency for NEPA compliance, final approval of NEPA documentation will be provided when determined to be satisfactory.

(e) Request and pursue consultation with the National Marine

Fisheries Service and the U.S. Fish and Wildlife Service pursuant

to Section 7 of the Endangered Species Act.

(f) Identify and/or inventory and consult with Tribes on Indian

Trust Assets and Traditional Cultural Properties and ensure the

Secretary’s Native American Trust Responsibilities are met.

(g) Conduct an asset valuation to determine the value of the features to be transferred and any revenue streams thereof. Said asset

valuation has previously been performed and value determined by

Reclamation.

(h) Provide for an independent financial review of the adjusted

asset value, if required.

(i) Complete hazardous waste surveys on all Reclamation lands

intended for title transfer.

(j) Provide copies, if so requested, of drawings and non-privileged

legal documents currently in Reclamation’s possession, to FMID

that are associated with the lands, third party agreements, Reclamation’s water rights, rights-of-way, and facilities to be included

in the title transfer.

(k) Perform other technical or administrative tasks associated

with the title transfer process.
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(l) Review draft Federal authorization language and other transfer documents prepared by FMID.

(m) Provide FMID with projections and/or summaries of expenses

incurred in connection with the title transfer process upon the request of FMID. Further, Reclamation will notify FMID when Reclamation’s total obligations in connection with the title transfer (including their 50 percent share of the costs associated with NEPA)

exceed $80,000 and provide a summary of obligations, expenditures

and estimated cost to complete.

(n) Ensure that all contracts or obligations entered into relating

to this MOA be revocable, wherein the contracts or obligations may

be terminated at any time upon the request of FMID, and FMID

will only be responsible for costs and expenditures incurred to the

date of the termination and any contract termination cost.

(o) Provide copies, if so requested, to FMID of all contracts, documents, invoices and other writings which evidence obligations pursuant to this MOA.

2. The FMID will be responsible, subject to Reclamation’s review

and approval as appropriate, for the following:

(a) Ensure completion of all activities required to comply with

NEPA. ESA and other applicable State and Federal laws as required, including the draft biological assessment.

(b) Arrange all public involvement, as deemed necessary and appropriate by both parties, including meeting places, mailings to all

key participants, and notices to the public as required by Federal

regulations.

(c) Complete any required cultural resource surveys, prepare a

draft cultural resource report, assist in developing any cultural resource agreement with the State, and submit these documents to

Reclamation for review and approval.

(d) Draft Federal authorization language for the proposed title

transfer to facilities as determined appropriate by and through this

transfer process.

(e) Any land surveys needed for the transfer of the project or related facilities shall be at the expense of FMID.

(f) Prepare drafts of the necessary legal documents including any

associated agreements involving Federal, State, local and Tribal

issues. FMID is responsible for officially contacting all interested

local, State, Tribal and Federal agencies to determine if they have

concerns or jurisdictional obligations which need to be met. FMID

will provide Reclamation a report of these contacts and the agency

responses.

3. Areas of mutual responsibility:

(a) Reclamation and FMID will appoint representatives to coordinate the transfer analysis and documentation process. All FMID requests to Reclamation relating to the transfer will go through Stuart Stanger, Deputy Area Manager, Reclamation, Burley, ID. All

Reclamation requests to FMID relating to the transfer will go

through Dale Swensen, Manager, FMID, St. Anthony, ID.

(b) Reclamation and FMID will cooperate to conduct the process

in a manner that ensures appropriate public and spaceholder participation.

(c) Reclamation and FMID agrees to use, if appropriate, a quit

claim deed to transfer title of facilities, water right interests held
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by the United States’ Secretary of the Interior for Reclamation purposes, real property, and other interests from Reclamation to

FMID, if title is transferred.

(d) Reclamation and FMID agree to work cooperatively to determine final value of the features to be transferred based upon previous Reclamation asset valuation and any revenue streams thereof.

(e) Reclamation and FMID agree that any of the responsibilities

for either party may become the responsibility of the other party

if agreed to by both parties in writing, unless prohibited by law or

regulation.

4. Costs

(a) Subjects to the terms of this MOA, FMID agrees to cost share

up to 50 percent of all transfer costs associated with applicable procedural requirements of the NEPA, ESA, other Federal cultural resource laws, and other applicable State and Federal laws as required. FMID agrees that it shall be responsible for paying, in advance, all costs incurred by it and/or Reclamation associated with

the tasks described herein for title transfer, expect for those costs

for which Reclamation agrees to by subsequent written agreement

with the FMID. Any subsequent agreement will be documented as

an amendment to this agreement. FMID intends to seek a cap of

its share of the administrative costs in the legislation.

(b) Reclamation may contract with another person or entity for

any of the obligations described herein. Reclamation will ensure

that the costs billed to FMID shall be actual costs, including Reclamation’s actual costs for administering the contracts, if Reclamation contracts with another person or entity for any of the obligations herein.

(c) FMID will pay in advance for Reclamation’s reasonable costs

for coordination, review, public meetings, oversight, and other reasonable costs related to the title transfer process.

(d) FMID will pay in advance Reclamation’s reasonable costs associated with cultural resource compliance actions, NEPA compliance, inspection of facilities, hazardous waste surveys, assistance

by Reclamation in all documents related to real property transfer,

and other reasonable Reclamation costs as described herein.

(e) Reclamation and FMID agree that payment in advance for

Reclamation costs or completion of any or all aspects of this agreement does not guarantee that title will be transferred for any or

all of the facilities named in this agreement or that transfer of title

will be approved by Reclamation and/or the Congress of the United

States Notwithstanding the above Reclamation will do everything

it can to facilitate a transfer.

(f) Those costs for which the FMID will be fully responsible for

in the proposed title transfer will include, but not limited to, to the

following (for each of which FMID intends to seek the right of reimbursement through the legislative process):

(i) Inspection of facilities designated herein to be transferred,

if required, and review of property and lands, asset valuation,

identification of Indian Trust Assets, hazardous material surveys, and other activities that are associated with or possibly

impacted by the proposed transfer of Federal Reclamation facilities and associate lands.
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(ii) Reclamation’s salary and overhead costs accrued for activities associated with this MOA.

(iii) Travel by Reclamation staff, including per diem and

transportation costs, as required for the above actions or activities and/or the development and negotiation of the terms for

the proposed title transfer.

(iv) Photocopying and mailing by Reclamation of documents

related to the proposed title transfer (e.g., the proposed draft

agreement for public review, comment, and public notification).

(v) Title transfer recording costs.

(g) Reclamation agrees to allocate authorized and appropriated

funds as may become available for the performance of certain tasks

which are described herein:

(i) Reclamation and FMID agree to work in a prudent manner to minimize costs for activities associated with this agreement.

5. Pavement

(a) Reclamation will establish a unique costs account to track

and account for the cost and services provided under the terms of

this MOA.

(b) FMID submitted an advance payment to Reclamation in the

amount of $25,000 on November 20, 1998 (March 31, 2001 credit

balance of $21,148.60) which will be held by Reclamation in account number AIR1751 and will be applied toward Reclamation’s

costs, upon FMID’s signature of this MOA (Contributed Funds Act

42USC345). Payment has been made payable to Bureau of Reclamation, to the attention of Reclamation Grants Management Specialist, PN–6317, Bureau of Reclamation, 1150 North Curtis Road,

Suite 100, Boise, Idaho 83706.

(c) FMID will maintain a balance of at least $5,000 in this account to be used to reimburse Reclamation’s costs; and

(d) Reclamation will contact FMID prior to the first of each

month to discuss (consult) and itemize anticipated Reclamation actions and expenses for the upcoming month, and upon Reclamation’s submittal of the itemized anticipated actions and costs to

FMID. FMID shall promptly pay Reclamation for the anticipated

reimbursable costs.

(e) Following completion of title transfer or cessation (for whatever reason) of the title transfer process, Reclamation will refund

within 60 days to FMID any unexpended advanced funds identifiable as excess of the total estimated costs.

6. General Provisions:

(a) All responsibilities of either or both parties required above

shall be performed only after mutual agreement and reasonable notification to the other party.

(b) FMID and Reclamation will work in a cooperative manner

throughout the legislative process.

(c) The parties pledge their individual good faith to seek a

prompt and fair agreement on all issues relating to a proposed

transfer described in this Agreement. FMID agrees that in order to

facilitate a facility transfer, FMID must address all substantive

issues in the context of Congressional hearings. In the event that

an agreement on a particular matter cannot be promptly resolved,
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the parties pledge to continue to work cooperatively on those matters relating to a title transfer for which there is no disagreement.

(d) This MOA shall become effective on the date of the last signature hereto. This MOA may be modified, amended or terminated

upon mutual agreement of the parties hereto, but in any event will

terminate two (2) years from the date of the MOA is signed unless

renegotiated and or renewed at that time through mutual consent

of both parties. Either party may terminate its obligations and duties under this MOA at any time upon 30 days written notice to

the other party. All duties and obligations of both parties under

this MOA will cease at that time except as the MOA provisions relate to accounting, termination of contracts and reimbursing the

parties’ expenses.

(e) Nothing herein shall be construed to obligate the Bureau of

Reclamation to expend or involve the United States of America in

any contract or other obligation for the future payment of money

in excess of appropriations authorized by law and administratively

allocated for the purposes and projects contemplated hereunder.

(f) No Member or delegate to Congress, or resident Commissioner, shall be admitted to any share or to be part of this MOA

or to receive any benefit that may arise out of it other than as a

water user or landowner in the same manner as other water user

or landowner.

IN WITNESS WHEREOF, the parties hereto have executed this

MOA as of the last date and signature below.

UNITED STATES OF AMERICA

Date: September 13, 2001.

Jarrold D. Gregg,

Area Manager,

Snake River Area Office.
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