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[House Report 107-629]
[From the U.S. Government Publishing Office]

107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     107-629

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          JICARILLA APACHE RESERVATION RURAL WATER SYSTEM ACT

                                _______
                                

 September 4, 2002.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

  Mr. Hansen, from the Committee on Resources, submitted the following

                              R E P O R T

                        [To accompany H.R. 3223]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Resources, to whom was referred the bill 
(H.R. 3223) to authorize the Secretary of the Interior, through 
the Bureau of Reclamation, to construct the Jicarilla Apache 
Nation Municipal Water Delivery and Wastewater Collection 
Systems in the State of New Mexico, and for other purposes, 
having considered the same, report favorably thereon with an 
amendment and recommend that the bill as amended do pass.
    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Jicarilla Apache Reservation Rural 
Water System Act''.

SEC. 2. PURPOSES.

    The purposes of this Act are as follows:
          (1) To ensure a safe and adequate rural, municipal, and water 
        supply and wastewater systems for the residents of the 
        Jicarilla Apache Reservation in the State of New Mexico in 
        accordance with Public Law 106-243.
          (2) To authorize the Secretary of the Interior, through the 
        Bureau of Reclamation, in consultation and collaboration with 
        the Jicarilla Apache Nation--
                  (A) to plan, design, and construct the water supply, 
                delivery, and wastewater collection systems on the 
                Jicarilla Apache Reservation in the State of New 
                Mexico; and
                  (B) to include service connections to facilities 
                within the town of Dulce and the surrounding area, and 
                to individuals as part of the construction.
          (3) To require the Secretary, at the request of the Jicarilla 
        Apache Nation, to enter into a self-determination contract with 
        the Jicarilla Apache Nation under title I of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 450f et 
        seq.) under which--
                  (A) the Jicarilla Apache Nation shall plan, design, 
                and construct the water supply, delivery, and 
                wastewater collection systems, including service 
                connections to communities and individuals; and
                  (B) the Bureau of Reclamation shall provide technical 
                assistance and oversight responsibility for said 
                project.
          (4) To establish a process in which the Jicarilla Apache 
        Nation shall assume title and responsibility for the ownership, 
        operation, maintenance, and replacement of the system.

SEC. 3. DEFINITIONS.

  As used in this Act:
          (1) Act.--The term ``Act'' means the Jicarilla Apache 
        Reservation Rural Water System Act.
          (2) BIA.--The term ``BIA'' means the Bureau of Indian 
        Affairs, an agency within the Department of the Interior.
          (3) Irrigation.--The term ``irrigation'' means the commercial 
        application of water to land for the purpose of establishing or 
        maintaining commercial agriculture in order to produce field 
        crops and vegetables for sale.
          (4) Reclamation.--The term ``Reclamation'' means the Bureau 
        of Reclamation, an agency within the Department of the 
        Interior.
          (5) Report.--The term ``Report'' means the report entitled 
        ``Planning Report/Environmental Assessment, Water and 
        Wastewater Improvements, Jicarilla Apache Nation, Dulce, New 
        Mexico'', dated September 2001, which was completed pursuant to 
        Public Law 106-243.
          (6) Reservation.--The term ``Reservation'' means the 
        Jicarilla Apache Reservation in the State of New Mexico, 
        including all lands and interests in land that are held in 
        trust by the United States for the Tribe.
          (7) Rural water supply project.--The term ``Rural Water 
        Supply Project'' means a municipal, domestic, rural, and 
        industrial water supply and wastewater facility area and 
        project identified to serve a group of towns, communities, 
        cities, tribal reservations, or dispersed farmsteads with 
        access to clean, safe domestic and industrial water, to include 
        the use of livestock.
          (8) State.--The term ``State'' means the State of New Mexico.
          (9) Secretary.--The term ``Secretary'' means the Secretary of 
        the Interior, acting through the Bureau of Reclamation.
          (10) Tribe.--The term ``Tribe'' means the Jicarilla Apache 
        Nation.

SEC. 4. JICARILLA APACHE RESERVATION RURAL WATER SYSTEM.

  (a) Construction.--The Secretary, in consultation and collaboration 
with the Tribe, shall plan, design, and construct the Rural Water 
Supply Project to improve the water supply, delivery, and wastewater 
facilities to the town of Dulce, New Mexico, and surrounding 
communities for the purpose of providing the benefits of clean, safe, 
and reliable water supply, delivery, and wastewater facilities.
  (b) Scope of Project.--The Rural Water Supply Project shall consist 
of the following:
          (1) Facilities to provide water supply, delivery, and 
        wastewater services for the community of Dulce, the Mundo Ranch 
        Development, and surrounding areas on the Reservation.
          (2) Pumping and treatment facilities located on the 
        Reservation.
          (3) Distribution, collection, and treatment facilities to 
        serve the needs of the Reservation, including, but not limited 
        to, construction, replacement, improvement, and repair of 
        existing water and wastewater systems, including systems owned 
        by individual tribal members and other residents on the 
        Reservation.
          (4) Appurtenant buildings and access roads.
          (5) Necessary property and property rights.
          (6) Such other electrical power transmission and distribution 
        facilities, pipelines, pumping plants, and facilities as the 
        Secretary deems necessary or appropriate to meet the water 
        supply, economic, public health, and environmental needs of the 
        Reservation, including, but not limited to, water storage 
        tanks, water lines, maintenance equipment, and other facilities 
        for the Tribe on the Reservation.
  (c) Cost Sharing.--
          (1) Tribal share.--Subject to paragraph (3) and subsection 
        (d), the tribal share of the cost of the Rural Water Supply 
        Project is comprised of the costs to design and initiate 
        construction of the wastewater treatment plant, to replace the 
        diversion structure on the Navajo River, and to construct raw 
        water settling ponds, a water treatment plant, water storage 
        plants, a water transmission pipeline, and distribution 
        pipelines, and has been satisfied.
          (2) Federal share.--Subject to paragraph (3) and subsection 
        (d), the Federal share of the cost of the Rural Water Supply 
        Project shall be all remaining costs of the project identified 
        in the Report.
          (3) Operation and maintenance.--The Federal share of the cost 
        of operation and maintenance of the Rural Water Supply Project 
        shall continue to be available for operation and maintenance in 
        accordance with the Indian Self-Determination Act, as set forth 
        in this Act.
  (d) Operation, Maintenance, and Replacement After Completion.--Upon 
determination by the Secretary that the Rural Water Supply Project is 
substantially complete, the Tribe shall assume responsibility for and 
liability related to the annual operation, maintenance, and replacement 
cost of the project in accordance with this Act and the Operation, 
Maintenance, and Replacement Plan under chapter IV of the Report.

SEC. 5. GENERAL AUTHORITY.

  The Secretary is authorized to enter into contracts, grants, 
cooperative agreements, and other such agreements and to promulgate 
such regulations as may be necessary to carry out the purposes and 
provisions of this Act and the Indian Self-Determination Act (Public 
Law 93-638; 25 U.S.C. 450 et seq.).

SEC. 6. PROJECT REQUIREMENTS.

  (a) Plans.--
          (1) Project plan.--Not later than 60 days after funds are 
        made available for this purpose, the Secretary shall prepare a 
        recommended project plan, which shall include a general map 
        showing the location of the proposed physical facilities, 
        conceptual engineering drawings of structures, and general 
        standards for design for the Rural Water Supply Project.
          (2) OM&R plan.--The Tribe shall develop an operation, 
        maintenance, and replacement plan, which shall provide the 
        necessary framework to assist the Tribe in establishing rates 
        and fees for customers of the Rural Water Supply Project.
  (b) Construction Manager.--The Secretary, through Reclamation and in 
consultation with the Tribe, shall select a project construction 
manager to work with the Tribe in the planning, design, and 
construction of the Rural Water Supply Project.
  (c) Memorandum of Agreement.--The Secretary shall enter into a 
memorandum of agreement with the Tribe that commits Reclamation and BIA 
to a transition plan that addresses operations and maintenance of the 
Rural Water Supply Project while the facilities are under construction 
and after completion of construction.
  (d) Oversight.--The Secretary shall have oversight responsibility 
with the Tribe and its constructing entity and shall incorporate value 
engineering analysis as appropriate to the Rural Water Supply Project.
  (e) Technical Assistance.--The Secretary shall provide such technical 
assistance as may be necessary to the Tribe to plan, develop, and 
construct the Rural Water Supply Project, including, but not limited 
to, operation and management training.
  (f) Service Area.--The service area of the Rural Water Supply Project 
shall be within the boundaries of the Reservation.
  (g) Other Law.--The planning, design, construction, operation, and 
maintenance of the Rural Water Supply Project shall be subject to the 
provisions of the Indian Self-Determination Act (25 U.S.C. 450 et 
seq.).
  (h) Report.--During the year that construction of the Rural Water 
Supply Project begins and annually until such construction is 
completed, the Secretary, through Reclamation and in consultation with 
the Tribe, shall report to Congress on the status of the planning, 
design, and construction of the Rural Water Supply Project.
  (i) Title.--Title to the Rural Water Supply Project shall be held in 
trust for the Tribe by the United States and shall not be transferred 
or encumbered without a subsequent Act of Congress.

SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

  (a) In General.--There is authorized to be appropriated to carry out 
this Act $45,000,000 (January 2002 dollars) plus or minus such amounts, 
if any, as may be justified by reason of changes in construction costs 
as indicated by engineering cost indexes applicable to the types of 
construction involved for the planning, design, and construction of the 
Rural Water Supply Project as generally described in the Report dated 
September 2001.
  (b) Conditions.--Funds may not be appropriated for the construction 
of any project authorized under this Act until after--
          (1) an appraisal investigation and a feasibility study have 
        been completed by the Secretary and the Tribe; and
          (2) the Secretary has determined that the plan required by 
        section 6(a)(2) is completed.
  (c) NEPA.--The Secretary shall not obligate funds for construction 
until after the requirements of the National Environmental Policy Act 
of 1969 (42 U.S.C. 4321 et seq.) are met with respect to Rural Water 
Supply Project.

SEC. 8. PROHIBITION ON USE OF FUNDS FOR IRRIGATION PURPOSES.

  None of the funds made available to the Secretary for planning or 
construction of the Rural Water Supply Project may be used to plan or 
construct facilities used to supply water for the purposes of 
irrigation.

SEC. 9. WATER RIGHTS.

  The water rights of the Tribe are part of and included in the 
Jicarilla Apache Tribe Water Rights Settlement Act (Public Law 102-
441). These rights are adjudicated under New Mexico State law as a 
partial final judgment and decree entered in the Eleventh Judicial 
District Court of New Mexico. That Act and decree provide for 
sufficient water rights under ``historic and existing uses'' to supply 
water for the municipal water system. These water rights are recognized 
depletions within the San Juan River basin and no new depletions are 
associated with the Rural Water Supply Project. In consultation with 
the Fish and Wildlife Service, Reclamation has determined that there 
shall be no significant impact to endangered species as a result of 
water depletions associated with this project. No other water rights of 
the Tribe shall be impacted by the Rural Water Supply Project.

                          PURPOSE OF THE BILL

    The purpose of H.R. 3223 is to authorize the Secretary of 
the Interior, through the Bureau of Reclamation, to construct 
the Jicarilla Apache Nation Municipal Water Delivery and 
Wastewater Collection Systems in the State of New Mexico, and 
for other purposes.

                  BACKGROUND AND NEED FOR LEGISLATION

    Beginning in 1972 the Jicarilla Tribal Council initiated 
efforts to address its future water right needs. Public Law 
102-441, enacted in 1992, entitled the Jicarilla Apache Nation 
to perpetual water rights to help secure a more permanent water 
supply. Since 1972, as economic conditions have changed, the 
village of Dulce, located on the Jicarilla Apache Reservation 
in New Mexico, has become the urban center of the area due to a 
population shift from farm and ranch land to the town. While 
this change has taken place there has been no concerted effort 
to develop a comprehensive community land use and 
infrastructure development plan.
    The current water system for Dulce is owned by the Bureau 
of Indian Affairs, and consists of a piecemeal municipal water 
delivery and wastewater collection system on the Jicarilla 
Apache Reservation. This system has deteriorated over the years 
due to lack of capital improvements and maintenance by the 
Bureau of Indian Affairs. Because of this deterioration, the 
wastewater system and sewage lagoons operate at over 100 
percent capacity during the summer months and over 500 percent 
capacity during the winter months. Proponents of the 
legislation argue that a lack of reliable potable water impedes 
economic development and has detrimental effects on the quality 
of life, including public health, and economic self-sufficiency 
of the Jicarilla Apache Nation.
    Public Law 106-243 directed the Secretary of the Interior, 
through the Bureau of Reclamation, to conduct a feasibility 
study to determine the most feasible methods of developing a 
safe and adequate water supply for the Jicarilla Apache Nation. 
H.R. 3223 would authorize construction of the rural water 
supply project recommended in the planning report and 
environmental assessment entitled Municipal Water and 
Wastewater Systems Improvement Jicarilla Apache Nation Dulce, 
New Mexico, prepared as a result of Public Law 106-243.
    This legislation will allow the Jicarilla Apache Nation to 
work with the Bureau of Reclamation to plan, design, and 
construct the water supply, delivery, and wastewater collection 
system which would bring the water quality up to federal water 
quality standards, and allow for continued development in the 
area by expanding the quantity of potable water available. The 
Bureau of Reclamation will be responsible for the construction 
costs of this project, while the Jicarilla Apache Nation will 
assume the annual operation, maintenance, and replacement costs 
of the project.

                            COMMITTEE ACTION

    H.R. 3223 was introduced on November 1, 2001, by 
Congressman Tom Udall (D-NM). The bill was referred to the 
Committee on Resources, and within the Committee to the 
Subcommittee on Water and Power. The Subcommittee held a 
legislative hearing on the bill on June 5, 2002. On June 26, 
2002, the Full Resources Committee met to consider the bill. 
The Subcommittee on Water and Power was discharged from further 
consideration of the bill by unanimous consent. Mr. Tom Udall 
offered an amendment adopted by unanimous consent to clarify 
that the costs the tribe has expended to date for planning and 
to initiate construction constitutes its cost sharing 
obligation. The amendment also clarifies that the tribe will 
pay for operation and maintenance expenses once the Secretary 
determines that the project is substantially complete. The 
amendment was adopted by unanimous consent. No further 
amendments were offered and the bill as amended was ordered 
favorably reported to the House of Representatives by unanimous 
consent.

            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Resources' oversight findings and recommendations 
are reflected in the body of this report.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    COMPLIANCE WITH HOUSE RULE XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to authorize the Secretary of the 
Interior, through the Bureau of Reclamation, to construct the 
Jicarilla Apache Nation Municipal Water Delivery and Wastewater 
Collection Systems in the State of New Mexico, and for other 
purposes.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, August 6, 2002.
Hon. James V. Hansen,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3223, the 
Jicarilla Apache Reservation Rural Water System 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.

H.R. 3223--Jicarilla Apache Reservation Rural Water System Act

    Summary: H.R. 3223 would require the Secretary of the 
Interior through the Bureau of Reclamation to plan, design, and 
construct water supply, delivery, and wastewater collection 
systems on the Jicarilla Apache Reservation in New Mexico. In 
addition, the bill would require the Secretary to turn over 
title to the system to the tribe, who would assume 
responsibility for operating, maintaining and replacing it.
    Assuming appropriation of the necessary funds, CBO 
estimates that implementing H.R. 3223 would cost $38 million 
over the 2002-2007 period. H.R. 3223 would not affect direct 
spending or receipts; therefore, pay-as-you-go procedures would 
not apply.
    H.R. 3223 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. The project authorized by this legislation would 
benefit the Jicarilla Apache Nation. Any costs incurred by the 
tribe as a result of its participation in the project would be 
voluntary.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 3223 is shown in the following table. 
The costs of this legislation fall within budget function 300 
(natural resources and environment).

----------------------------------------------------------------------------------------------------------------
                                                                     By fiscal year, in millions of dollars--
                                                                 -----------------------------------------------
                                                                   2002    2003    2004    2005    2006    2007
----------------------------------------------------------------------------------------------------------------
                                        SPENDING SUBJECT TO APPROPRIATION

Spending Under Current Law:
    Budget Authority............................................       3       0       0       0       0       0
    Estimated Outlays...........................................       1       2       0       0       0       0
Proposed Changes:
    Estimated Authorization Level...............................       0       9       9      10      10      10
    Estimated Outlays...........................................       0       3       6       9      10      10
Spending Under H.R. 3223:
    Estimated Authorization Level...............................       3       9       9      10      10      10
    Estimated Outlays...........................................       1       5       6       9      10      10
----------------------------------------------------------------------------------------------------------------
\1\ The 2002 level is the amount appropriated for the Jicarilla Municipal Water System.

    Basis of estimate: CBO estimates that the bill would 
authorize the appropriation of about $48 million (including 
adjustments for anticipated inflation) to complete the 
Jicarilla project. For this estimate, CBO assumes that H.R. 
3223 will be enacted by the start of fiscal year 2003 and that 
the necessary funds will be appropriated for each year. CBO 
estimates that completion of the project would cost $38 million 
over the 2003-2007 period and $10 million after 2007. Based on 
information from the Bureau of Reclamation, CBO expects that 
funds would be appropriated in roughly equal installments over 
the next five years.
    Pay-as-you-go considerations: None.
    Estimated intergovernmental and private-sector impact: H.R. 
3223 contains no intergovernmental or private-sector mandates 
as defined in UMRA and would impose no costs on state, local, 
or tribal governments. The project authorized by this 
legislation would benefit the Jicarilla Apache Nation. Any 
costs incurred by the tribe as a result of its participation in 
the project would be voluntary.
    Estimate prepared by: Federal Costs: Julie Middleton; 
Impact on State, Local, and Tribal Governments: Marjorie 
Miller; and Impact on the Private Sector: Cecil McPherson.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    This bill is not intended to preempt any State, local or 
tribal law.

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes in existing 
law.

                                
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