29–010 

Calendar No. 110 

113TH CONGRESS REPORT " ! SENATE 1st Session 113–56 

FORT SUMNER PROJECT TITLE CONVEYANCE 

JUNE 27, 2013.—Ordered to be printed 

Mr. WYDEN, from the Committee on Energy and Natural 

Resources, submitted the following 

R E P O R T 

[To accompany S. 284] 

The Committee on Energy and Natural Resources, to which was 

referred the bill (S. 284) to transfer certain facilities, easements, 

and rights-of-way to Fort Sumner Irrigation District, New Mexico, 

having considered the same, reports favorably thereon without 

amendment and recommends that the bill do pass. 

PURPOSE

The purpose of S. 284 is to transfer certain facilities, easements, 

and rights-of-way to Fort Sumner Irrigation District, New Mexico. 

BACKGROUND AND NEED

The Fort Sumner Project area was developed by private interests 

in the mid-1800s. The project includes approximately 6,500 acres 

and is located within the Pecos River basin in Eastern New Mexico. 

Some of the first irrigators were the Apache and Navajo Indians, 

held in captivity by United States troops under the command of Kit 

Carson. The Fort Sumner Irrigation District (District) acquired the 

property in 1919. In 1949, Congress authorized the Bureau of Reclamation (Reclamation) to rehabilitate the project and Reclamation 

and the District entered into a repayment contract to allow the 

U.S. to recover the costs of the rehabilitation work. 

In 2009, the District entered into a forbearance agreement with 

Reclamation whereby the District has agreed not to take all of the 

irrigation water it is entitled to take each year and receives a payment for that water from Reclamation. Reclamation stores the 

water and uses it to keep the Pecos River wet in times of drought 

in order to comply with Endangered Species Act flow requirements 


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for the Pecos bluntnose shiner. The payment the District receives 

for water offsets the amount the District owes the U.S. under its 

repayment agreement. The 2009 forbearance agreement includes 

provisions that the U.S. will support title transfer to the District. 

A Memorandum of Agreement between Reclamation and the District will govern the title transfer process. Upon transfer of title, 

the repayment contract will terminate, but the forbearance agreement will continue for at least ten years. S. 284 is needed to facilitate the transfer. 

LEGISLATIVE HISTORY

S. 284 was introduced by Senator Udall of New Mexico and Senator Heinrich on February 12, 2013. The Subcommittee on Water 

and Power held a hearing on S. 284 on April 16, 2013. At its business meeting on May 16, 2013, the Committee ordered S. 284 favorably reported by voice vote. 

In the 112th Congress, Senators Bingaman and Udall of New 

Mexico introduced similar legislation, S. 1225. The Subcommittee 

on Water and Power held a hearing on June 23, 2011 (S. Hrg. 112– 

129). 

COMMITTEE RECOMMENDATION

The Senate Committee on Energy and Natural Resources, in 

open business session on May 16, 2013, by a voice vote of a quorum 

present, recommends that the Senate pass S. 284. 

SECTION-BY-SECTION ANALYSIS

Section 1 provides for the short title, the ‘‘Fort Sumner Project 

Title Conveyance Act’’. 

Section 2 defines key terms in the bill. 

Section 3(a) and (b) authorizes the Secretary of the Interior (Secretary) to convey United States right and title to all works, lands, 

and facilities of the Fort Sumner reclamation project to the Fort 

Sumner Irrigation District (District) in accordance with the terms 

and conditions of the Transfer Agreement, subject to all valid existing rights. 

Subsection (c) stipulates that the costs of conveyance including 

environmental compliance may be shared between the United 

States and District in accordance with the Memorandum of Agreement between the United States and the Fort Sumner Irrigation 

District Concerning Principles and Elements of Proposed Transfer 

of Title to Fort Sumner Irrigation District Facilities,’’ numbered 

11–WC–40–406. 

Subsections (d) and (e) direct the Secretary to assure compliance 

with environmental laws before conveyance. The Secretary is further directed to report to Congress if conveyance is not completed 

within 2 years of completion of the requirements stipulated above. 

Section 4 requires that after the date of conveyance, the U.S. 

shall have no further interest in or responsibility for operating and 

maintaining the project and shall not be liable for damages to the 

conveyed property, other than for damages committed by the U.S 

or its agents. 

Section 5 stipulates that effective beginning on the date of conveyance, the repayment contract between the U.S. and the District 


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(numbered Ilr—1524 and dated November 5, 1948, including supplements and amendments) shall terminate and the U.S. and the 

District shall have no further obligations under the contract. 

Section 6 orders that the terms and conditions of the forbearance 

agreement between the U.S. and the District (numbered 08–WC– 

40–292, dated August 21, 2009) for the forbearance of exercising 

priority water rights shall remain in full force and effect on termination of the Repayment Contract for not less than 10 years after 

the enactment of this Act and that the U.S. shall have no payment 

obligation under the agreement. 

Section 7 states that after conveyance, the property shall not be 

considered a Federal reclamation project and shall not be eligible 

to receive benefits, except for those that would be available to a 

similarly situated entity with respect to property that is not part 

of a Federal reclamation project. 

COST AND BUDGETARY CONSIDERATIONS

The following estimate of costs of S. 284 has been provided by 

the Congressional Budget Office: 

S. 284—Fort Sumner Project Title Conveyance Act 

S. 284 would direct the Secretary of the Interior to convey the 

title of the Fort Sumner Project, including the diversion dam and 

all associated features, to the Fort Sumner Irrigation District. 

Based on information from the Bureau of Reclamation, enacting 

the legislation also would end the repayments the District makes 

to the U.S. Treasury for certain costs of the project. CBO estimates 

that those repayments will total about $550,000 under current law 

over the 2014–2023 period. Because enacting the legislation would 

decrease offsetting receipts, which are treated as reductions in direct spending, pay-as-you-go procedures apply. The legislation 

would not affect revenues. 

The Statutory Pay-As-You-Go Act of 2010 establishes budget-reporting and enforcement procedures for legislation affecting direct 

spending or revenues. S. 284 would decrease offsetting receipts 

(thus, increasing direct spending) beginning in 2014, for a total cost 

of $550,000 through 2023. 

CBO ESTIMATE OF THE STATUTORY PAY-AS-YOU-GO EFFECTS FOR S. 284 AS ORDERED REPORTED 

BY THE SENATE COMMITTEE ON ENERGY AND NATURAL RESOURCES ON MAY 16, 2013 

By fiscal year, in millions of dollars— 

2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2013– 

2018 

2013– 

2023 

NET INCREASE OR DECREASE (¥) IN THE DEFICIT 

Statutory Pay-As-YouGo Impact ............. 0 0 0 0 0 0 0 0 0 0 0 0 1 

S. 284 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. 

The CBO staff contact for this estimate is Aurora Swanson. The 

estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis. 


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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. 284. 

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. 284, as ordered reported. 

CONGRESSIONALLY DIRECTED SPENDING

S. 284, as reported, does not contain any congressionally directed 

spending items, limited tax benefits, or limited tariff benefits as defined in rule XLIV of the Standing Rules of the Senate. 

EXECUTIVE COMMUNICATIONS

The testimony provided by the U.S. Department of the Interior 

at the April 16, 2013, Subcommittee on Water and Power hearing 

on S. 284 follows: 

STATEMENT OF ROBERT QUINT, SENIOR ADVISOR BUREAU

OF RECLAMATION U.S. DEPARTMENT OF INTERIOR

Chairman Schatz and members of the Subcommittee, I 

am Robert Quint, Senior Advisor at the Bureau of Reclamation (Reclamation). I am pleased to provide the views 

of the Department of the Interior (Department) regarding 

S. 284, which would authorize the Secretary of the Interior 

to convey title to all of the works of the Fort Sumner 

Project (including the diversion dam, easements, ditches, 

laterals, canals, drains, and other rights) to the Fort Sumner Irrigation District (FSID). The Department supports S. 

284. 

In 2011, S. 1225 was introduced in the 112th Congress, 

which would have authorized the United States to convey 

title to all of the works of the Fort Sumner Project to the 

FSID. At the time of the hearing on June 23, 2011 before 

this Committee on that bill, it was the view of the Administration that a number of issues had yet to be resolved between the United States and FSID, including a net financial loss to the Treasury of approximately $250,000, the 

need for an open and transparent process for the public to 

provide input prior to conveyance of title, and the need for 

Reclamation and FSID to work through a collaborative 

process to ensure that operational, fiscal, environmental, 

and other issues are identified and addressed. However, 

since that time, Reclamation and FSID have worked together and a number of those issues are addressed in S. 

284. Specifically, in 2012, the ‘‘Memorandum of Agreement 

between the United States and the Fort Sumner Irrigation 

District Concerning Principles and Elements of Proposed 

Transfer of Title to Fort Sumner Irrigation District’’ 


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(MOA) was executed, which addresses the issues we had 

with the previous legislation as described below. 

BACKGROUND

There are two Reclamation projects on the Pecos River 

located in southeastern New Mexico: the Carlsbad and 

Fort Sumner Projects. The Fort Sumner Project was developed by private interests at the turn of the last century. 

In the 1950s, this project was reconstructed and rehabilitated by Reclamation. In 1948, in order to make this happen, Reclamation and the FSID executed a contract to provide for the repayment of construction costs to rehabilitate 

the project. As part of the process, Reclamation law required that Reclamation take title to the Project. Currently, the FSID has an annual repayment obligation of 

about $54,500 with an outstanding balance of approximately $597,697.00 

The FSID holds a senior water right for not more than 

100 cubic feet per second from the natural flow of the 

Pecos River. Reclamation must bypass the FSID’s water 

through Sumner Reservoir prior to storing water for the 

Carlsbad Project. Over the past ten years, Reclamation has 

consulted with the U.S. Fish and Wildlife Service (Service) 

to ensure that Federal actions are not jeopardizing the existence of the Pecos bluntnose shiner or adversely modifying its critical habitat located below FSID’s diversion 

dam. In these consultations, Reclamation has committed to 

the Service to maintain the shiner population level by 

minimizing river drying. A significant cause of drying on 

the Pecos is due to the FSID diverting its senior water 

right. The only way Reclamation has been able to keep the 

Pecos River flowing is by purchasing water from willing 

sellers and by paying the FSID not to divert water through 

a forbearance agreement. 

In August 2009, Reclamation and FSID entered into a 

mutually beneficial agreement whereby FSID would forbear the diversion of up to 2,500 acre-feet of water annually for ten years when they would otherwise be in priority. Instead, this water goes into Sumner Lake reservoir 

where it is stored and delivered for Reclamation to prevent 

intermittency of flows on the Pecos River in compliance 

with the 2006 biological opinion. Reclamation pays FSID 

$60,000 annually plus $20 per acre-foot for the water. In 

addition to the forbearance of this water, FSID agreed to 

pursue ESA Section 10 consultation with the Service and 

Reclamation agreed to assist them in this process. Also in 

this agreement, FSID indicated its desire to take title to 

the facilities and Reclamation agreed to work with them 

on that process. The forbearance agreement further provides that the annual payments of $60,000 from Reclamation to FSID will cease upon both the passage of title 

transfer legislation and the conveyance of title. To date, 

this has been a mutually beneficial agreement. The forbearance water has afforded Reclamation with an addiVerDate Mar 15 2010 02:20 Jun 30, 2013 Jkt 029010 PO 00000 Frm 00005 Fmt 6659 Sfmt 6969 E:\HR\OC\SR056.XXX SR056

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tional tool to meet the biological opinion to ensure that the 

Pecos River does not run dry in a cost effective manner. 

As drafted, S. 284 protects the financial interests of the 

taxpayers of the United States. Under the terms of the 

Forbearance Agreement that is currently in place, Reclamation pays FSID $60,000 annually plus $20 per acrefoot for water. Under the terms of S. 284, after title transfer, the $60,000 annual payments from the United States 

to FSID would cease. At the same time, FSID’s repayment 

obligation of $597,697 to the United States would also 

cease. These two revenue streams—one to FSID and one 

to the United States would offset. Further, the United 

States would continue to receive, in perpetuity rather than 

just for the ten years, the below-market-cost of $20 per 

acre-foot for up to 2,500 acre feet of water annually that 

they need in order to meet the 2006 biological opinion— 

thereby saving the taxpayers in costs associated with this 

important water acquisition effort. 

MEMORANDUM OF AGREEMENT

On June 22, 2012, the United States and FSID executed 

MOA, numbered 11–WC–40–406. This agreement was the 

culmination of a collaborative process between Reclamation and the FSID which articulated the principles elements for any legislation to authorize conveyance of title 

to the works of the Fort Sumner Project, as well as the 

steps required to complete the title transfer process, the 

responsible parties for each activity and spelled out the 

prerequisites to the actual conveyance of title to FSID. 

The MOA takes an important step in resolving our concern regarding compliance with Federal and state laws— 

more specifically—with the terms of agreement to be developed between FSID and the U.S. Fish and Wildlife 

Service required under Section 10 of the Endangered Species Act. While it would be our preference to complete all 

of the activities required under the National Environmental Policy Act, the National Historic Preservation Act 

and the Endangered Species Act prior to acting upon legislation to transfer title, as a compromise, S. 284 requires 

that all the activities associated with these laws, including 

whatever mitigation may be necessary be completed prior 

to the transfer of title to these facilities. As part of that, 

before the conveyance of title, Reclamation must concur 

with the ESA Section 10 agreement thus ensuring that the 

United States’ interests are not compromised. 

Because S. 284 requires National Environmental Policy 

Act compliance and completion of ESA Section 7 and Section 10 consultations as prerequisites to conveyance of 

title, Reclamation and FSID will have the opportunity to 

complete a public process to determine whether other interested citizens of New Mexico have concerns and any 

issues that arise during that public process can be collaboratively be addressed in the title transfer agreement that 

must be prepared to articulate the terms and conditions of 

the title transfer as defined in Section 2(7) of the Act. 


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S. 284 also authorizes Reclamation to cost-share with 

FSID for both environmental compliance as well as the 

cost of conveyance of title. 

Lastly, Reclamation believes that S. 284 would assure 

the continuation of the partnership Reclamation has developed with FSID in meeting the 2006 Biological Opinion requirements. With the challenges of persistent drought in 

the Pecos River basin and the need for Reclamation to consult, in partnership with FSID and the Carlsbad Irrigation 

District, with the Service in obtaining a new biological 

opinion by 2016, this title transfer legislation will enable 

us to meet this critical objective. 

As a result of the efforts, hard work and compromises by 

both Reclamation and FSID, we believe that we have 

reached an agreement that protects the interests of FSID, 

the citizens of the States of New Mexico and the interests 

of the United States. 

That concludes my written statement. I am pleased to 

answer questions at the appropriate time. 

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, the Committee notes that no changes in existing law are made by S. 284, as ordered reported. 

Æ 


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