89–010 

Calendar No. 259 

111TH CONGRESS REPORT " ! SENATE 2d Session 111–118 

AUTHORIZING THE CROW TRIBE OF INDIANS WATER 

RIGHTS SETTLEMENT, AND FOR OTHER PURPOSES 

January 21, 2010.—Ordered to be printed 

Mr. DORGAN, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 375] 

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

S. 375, to authorize the Crow Tribe of Indians water rights settlement, and for other purposes, having considered the same, reports 

favorably thereon with an amendment in the nature of a substitute 

and recommends that the bill as amended do pass. 

PURPOSE

The purpose of S. 375 is to achieve a fair, equitable and final settlement of claims to water rights in the State of Montana by the 

Crow Tribe and the United States for the benefit of the Tribe and 

tribal allottees. The bill would ratify the Crow Tribe-Montana 

Water Rights Compact entered into by the Tribe and the State of 

Montana on June 22, 1999, direct the Secretary of the Interior to 

execute the Crow Tribe-Montana Water Rights Compact, and authorize the appropriation of funds necessary for the implementation of the Compact and this bill. 

BACKGROUND

The Crow Reservation 

The Crow Tribe’s Reservation is located in southern Montana 

along the Montana-Wyoming border. The Reservation is the largest 

of the seven Indian reservations located in Montana and one of the 

largest in the United States. The Reservation encompasses approximately 2.3 million acres. The Reservation includes three mountain 

ranges, rolling upland plains and fertile valleys. Rainfall averages 

12 inches per year. Reservation agriculture production consists 


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1 Hearing on S. 3355, the Crow Tribe Water Rights Settlement Act of 2008: Senate Committee 

on Indian Affairs, 110th Congress (Sept. 11, 2008) (testimony of Cedric Black Eagle, Vice-Chairman of the Crow Tribe); See also, e.g., Robert H. Lowie, The Crow Indians, at 89 (1956); Edward 

Curtis, The North American Indian, Vol. VI, Johnson Reprint Co., Ltd., at 8, 54–55, 71 (1970); 

Edward Curtis, The North American Indian, Vol. IV, Johnson Reprint Co., Ltd., at 54–56 (1970). 

mostly of small grains and hay for livestock. Expansive grasslands 

support herds of cattle, horses and buffalo as well as abundant elk, 

deer and other wildlife. 

The Tribe has two treaties with the United States dealing with 

the Tribe’s lands. The September 17, 1851 Treaty of Fort Laramie 

recognized and acknowledged a land area of about 38 million acres 

as the territory of the Crow Tribe, which included within it many 

valuable water resources including the Bighorn and Yellowstone 

Rivers. The May 7, 1868 Fort Laramie Treaty reduced the Tribe’s 

territory to a reservation of about 8 million acres, with part of the 

northern boundary being the mid-channel of the Yellowstone River. 

Land cessions in the late 19th and early 20th Centuries further 

reduced the Reservation acreage, including removal of all lands 

along the Yellowstone River. The 1904 cession removed approximately the northern third of the existing Reservation. This land is 

known as the ‘‘Ceded Strip.’’ The size of the Ceded Strip is approximately 1.1 million acres. On the Ceded Strip, the Huntley Irrigation Project was developed. The Tribe was never paid for the sale 

of the lands for the Huntley Irrigation Project, nor was the Tribe 

able to get back unsold lands, as promised. In 1958 Congress 

passed another law restoring tribal ownership over a portion of the 

Ceded Strip. This law restored 15,553 acres of surface ownership 

and 80,423 acres of subsurface mineral ownership to the Tribe. 

The tribal land base within the exterior boundary of the Reservation was also divided by various allotment acts. By 1935, there 

were 5,507 allotments on the reservation, consisting of 2,054,055 

acres. Many allotments passed into fee land status and were alienated from the Tribe or individual Indians to non-Indians. This resulted in non-Indian land ownership and claims of Montana water 

rights throughout the Reservation. Today, Reservation land is held 

approximately half in trust and half in fee status. 

The primary sources of water on the Reservation are the Bighorn 

River, the Little Bighorn River, Pryor Creek and several smaller 

streams. The Bighorn and Little Bighorn Rivers originate in Wyoming and flow north into the Reservation. After flowing through 

the Reservation, the Little Bighorn enters the Bighorn River just 

outside the Reservation boundary near the town of Hardin, Montana. The Bighorn River then continues north to become a tributary of the Yellowstone River. 

The Reservation is home to approximately 8,000 of the 11,900 enrolled Tribal members. Close to 40 percent of the enrolled Tribal 

members are below the age of 18. The Reservation has high levels 

of unemployment and poverty, severe shortages of housing, and serious needs for health care and other basic services. The lack of 

water infrastructure and opportunities to develop water projects on 

the Reservation directly contributes to these problems. 

In the 110th Congress, at a Committee hearing on the bill, the 

Tribe’s Chairman testified to the importance of water to the Crow 

people.1 He stated that water is vital to the Tribe’s health and a 

central part of the Tribe’s culture and traditions. The Chairman 


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2Lands submerged by the reservoir and its surrounding area on the Wyoming side of the state 

line were condemned as well. 3Opening of the Crow (Montana) Indian Reservation: Hearing Before the S. Comm. on Indian 

Affairs, Part III, 64th Cong. 22 (1916) (letter from Crow Tribe Council to S. Comm. on Indian 

Affairs). 4 Approximately 41% of Crow tribal members living on Reservation live below the poverty line. 

See, LAO Environmental, Crow Indian Reservation: Natural, Socio-Economic, And Cultural ReContinued 

cited the importance of water in the Tribe’s creation story, where 

the land is brought up from the water. He testified that for the 

Crow people all things of tangible substance, all things that we can 

touch, feel, smell, see and hear come from water. As an example, 

he noted that in the Tobacco Dance Crow people repeat the central 

truth that all things come from water and with water they go. He 

also testified that tribal ceremonies, such as the sweat lodge, depend upon particular uses of water that are sacred to the Crow 

people. 

Yellowtail Dam 

The Yellowtail Dam, located on the Bighorn River, was authorized by Congress in 1944, and construction began in 1961. 

Yellowtail Dam reservoir, known as the Bighorn Lake, has a total 

storage capacity of 1,328,360 acre-feet and extends south from the 

dam, across the Montana-Wyoming state line, and about 20 miles 

into the State of Wyoming. The dam and reservoir are operated by 

the United States Bureau of Reclamation. Authorization to construct the dam also included authority to condemn tribal lands necessary for construction of the dam.2 Prior to this federal action, the 

Tribe had sought to maintain the right to develop its own power 

and water projects for at least fifty years.3

Section 12 of S. 375 provides the Tribe shall have the exclusive 

right to develop and market power generation as a water development project on the Yellowtail Afterbay Dam. The Bureau of Reclamation (BOR) generally has the ability, pursuant to a federal 

project’s authorizing legislation, to enter into a lease of power privilege agreement with third parties to develop power on any or all 

features of a federal project. In entering into these agreements, 

BOR normally designates that the lessee is responsible for an appropriate portion of the operation and maintenance costs associated 

with its facilities. While the authorization set forth in S. 375 is not 

technically a lease of power privilege, the Tribe intends to work 

with BOR to appropriately allocate the development, operation and 

maintenance costs associated with a Tribal power project on the 

Yellowtail Afterbay Dam developed pursuant to S. 375. 

Municipal, rural, and industrial water system 

The Bureau of Indian Affairs currently operates and maintains 

an on-reservation water system that is inadequate to meet the 

needs of the Reservation. As a result, tribal members must haul 

their water from other sources or buy bottled water. The use of 

large plastic containers by tribal members to store drinking water 

is common on the Reservation. Tribal members often make trips to 

haul their water from springs in the mountains during the summer 

and buy bottled water in the winter. Meeting this basic domestic 

water need can have a significant impact on an impoverished Reservation population.4


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sources Assessment and Conditions Report 31 (2002) included in U.S. Dep’t of the Interior, Bureau of Land Mgmt., Final Statewide Oil and Gas Envtl. Impact Statement and Proposed 

Amendment of the Powder River and Billings Resource Mgmt. Plans (2003). 5Office of Science and Tech. & Office of Water, U.S. Envtl. Prot. Agency, EPA–822–R–01–009, 

Cryptosporidium: Drinking Water Health Advisory (2001). 6 71 Fed. Reg. 654, 660 (Jan. 5, 2006). 

7 71 Fed. Reg. 654 (Jan. 5, 2006). 

8 71 Fed. Reg. 654, 657 (Jan. 5, 2006). 

9Letter from Barbara Burkland, U.S. Evntl. Prot. Agency, Region 8 at 2 (Sept. 17, 2009). 

10 71 Fed. Reg. 654, 664–65 (Jan. 5, 2006). 11Letter from Barbara Burkland, U.S. Evntl. Prot. Agency, Region 8 at 2 (Sept. 17, 2009). 12 Id. 13 Id. See also, LAO Environmental, Crow Indian Reservation: Natural, Socio-Economic, And 

Cultural Resources Assessment and Conditions Report 102 (2002) included in U.S. Dep’t of the 

Interior, Bureau of Land Mgmt., Final Statewide Oil and Gas Envtl. Impact Statement and Proposed Amendment of the Powder River and Billings Resource Mgmt. Plans (2003)(noting that 

‘‘The quality of water on the Crow Indian Reservation is concern. The water and wastewater 

systems at Crow Agency are severely overworked and in need of maintenance.’’). 14Letter from Barbara Burkland, U.S. Evntl. Prot. Agency, Region 8 at 2 (Sept. 17, 2009). 

Moreover, the limited supply of water that is available is often 

not fit for human use. Boiled water orders are a part of the way 

of life on the Reservation. There is also high likelihood that treated 

water from the Crow Agency water treatment plant contains a 

parasite known as cryptosporidium, which the Environmental Protection Agency (EPA) classifies as a risk to human health,5 and can 

cause mild to severe diarrhea, dehydration, stomach cramps, and 

fevers.6

In 2006, EPA promulgated a final Federal rule requiring public 

water systems to test for the presence of E. coli in untreated water 

from the lake or river that supplies the system’s drinking water.7

EPA issued the final rule because an annual average of 50 colonies 

of E. coli per 100 milliliters of untreated water is a strong indicator 

that a parasite known as cryptosporidium is also in the untreated 

water.8 EPA decided to require E. coli testing because these tests 

are 10% of the cost of testing for cryptosporidium.9

Under the Federal rule, a public water system like the Crow 

Agency water treatment plant must either test the untreated water 

twice a month for one year, or once a month for two years.10 The 

BIA began testing for E. coli in January of 2008 and, in consultation with EPA, decided by July of 2008 to stop testing the untreated water because, with only half of the data collected, officials 

knew the annual average of E. coli colonies in the water would 

never be below 50 colonies per 100 milliliters.11 The sample with 

the highest level of E. coli contained 7,179 colonies of E. coli in 100 

milliliters of water.12

While the Crow Agency water treatment facility can treat water 

infused with the E. coli bacteria, the facility is not equipped to 

eliminate cryptosporidium and is in need of maintenance and repair.13 Thus, the Crow Agency water treatment plant must either 

institute the next phase under EPA’s rules, which is to test for 

cryptosporidium, on a monthly basis for at least a year, or must 

upgrade their water system to treat cryptosporidium.14 In the 

meantime, tribal members living on the Crow Reservation consume 

and bathe in water that is likely contaminated with 

cryptosporidium. 

Some tribal members living on the Reservation use wells on their 

property as a source of running water for their homes, but these 

tribal members do not drink the rancid water. Initial results from 


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15This study is funded by the U.S. Evntl. Prot. Agency to Margaret Eggers, a graduate student at Montana State University, and in conjunction with the Little Big Horn College. See 

http://cfpub2.epa.gov/ncerlabstracts/index.cfm/fuseaction/display.abstractDetail/abstract/8260 

(last visited Sept. 18, 2009), see also http://bricc.lbhc.edu/?page=research/water-quality (last visited Sept. 18, 2009). 16The presence of coliform in the water is an indicator that an organism of fecal origin may 

also be in the water. See http://www.epa.gov/safewater/contaminants/ecoli.html (last visited Sept. 

17, 2009). 

an ongoing study conducted15 by Little Big Horn College of well 

water within the Reservation found that seventy to eighty percent 

of the wells tested were contaminated with coliform bacteria16 at 

levels that made the water a health hazard. Of the remaining wells 

not contaminated with coliform bacteria, sixty percent contained 

dissolved solids that made the water undrinkable. 

Section 6 of the bill provides authorization for the construction 

of a new municipal, residential, and industrial system (‘‘MR&I System’’) to meet this basic need that most take for granted. Section 

6(f) provides that at the request of the Tribe, the Secretary will 

enter into an agreement for the design and construction of the 

MR&I System. The Committee has been informed informally that 

the Tribe and the Secretary of Interior intend to work cooperatively 

in the negotiation of this agreement for construction of the MR&I 

System to ensure that the System is constructed in a cost-effective 

manner. The Committee has also been informally informed that, as 

the lead agency, the BOR will provide oversight over the agreement 

to ensure cost efficiency as the MR&I System is constructed. Finally, pursuant to section 6(g) the components of this system will 

pass from the United States to the Tribe upon the completion of 

each of the components. 

Crow Irrigation Project 

The first general authorization for the construction of the Crow 

Irrigation Project on the Reservation was in an agreement between 

the Tribe and the United States entered into on December 8, 1890, 

and ratified by Section 31 of the Indian Appropriation Act of March 

3, 1891, 26 Stat. 989. Subsequent acts provided for continued construction and development to date. Nearly all of the irrigation facilities were completed before 1940. Operation and maintenance of 

the Crow Irrigation Project are currently performed by the Bureau 

of Indian Affairs Office located in Crow Agency, Montana. 

The Project has nine diversion dams, one storage dam with a capacity of about 23,000 acre-feet, nine canal systems including 

roughly 320 miles of canals, five drainage systems running over 45 

miles, and more than 2,300 irrigation structures. The primary 

source of water for the Project originates on tribal lands in the Bighorn Mountains which border the west side of the Reservation. Essentially all irrigation is supplied by surface water sources. In 

2006, the Project served approximately 1,118 water users. The primary irrigated crops are hay and alfalfa, irrigated pasture, sugar 

beets and grains. 

Engineering studies completed for the rehabilitation of the Crow 

Irrigation Project show that the Project’s irrigated area currently 

consists of 63,365 acres. The Project lands are located along the Big 

Horn and the Little Big Horn Rivers, Pryor Creek, and Lodge 

Grass Creek, all tributaries to the Yellowstone River. There are 

eleven Project-Operated Units in the Crow Irrigation Project scatVerDate Nov 24 2008 04:34 Jan 22, 2010 Jkt 089010 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\SR118.XXX SR118

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17Opening of the Crow (Montana) Indian Reservation: Hearing Before the S. Comm. on Indian 

Affairs, Part IV, 64th Cong. 22 (1916) (testimony of Edgar B. Merritt, Commissioner on Indian 

Affairs). 18See, U.S. v. Big Horn Low Line Canal Company, et al., No. CIV–75–34–BLG (filed April 

17, 1975). 19Mont. Code Ann. § 85–2–702 20See, Northern Cheyenne Tribe v. Adsit, 721 F.2d 1187, 1189 (9th Cir. 1983). 

tered over an area 50 miles long and 60 miles wide, all within the 

Reservation. In 1999, approximately 61 percent of Crow Irrigation 

Project irrigated lands were held in trust by the United States for 

the benefit of individual Indian landowners and for the Crow Tribe. 

The Crow Irrigation Project serves Indian and non-Indian land 

owners. Non-Indian landowners in the three irrigation districts and 

private ditch companies in the Crow Irrigation Project are organized under Montana statutes and are legal entities. The Irrigation 

District Boards, chartered under state law, represent only owners 

of fee lands. 

In a 2006 report on Indian Irrigation Projects, the Government 

Accountability Office found that Crow Irrigation Project fees were 

insufficient to cover the project’s operations as well as maintenance 

costs. The Bureau of Indian Affairs reported to GAO that deferred 

construction and maintenance costs were more than $54 million. 

Project financing problems have been long known. In 1916, Edgar 

Merritt, Assistant Commissioner of Indian Affairs, testified before 

the United States Senate Committee on Indian Affairs that the economics of the Crow Irrigation Project had been a ‘‘hopeless failure.’’17 In addition to the project falling into disrepair, upgrades 

are needed. There is a lack of adequate water measurement, and 

there is a need for automated gate controls at key diversion points, 

as well as installation of motorized gate controls. 

Section 5 of S. 375 authorizes the rehabilitation and betterment 

of the Crow Irrigation Project so that all Project lands can be efficiently utilized for farming and irrigation projects in order to maximize the Tribe’s economic development opportunities. Section 5 

provides that BOR shall be the lead agency for the rehabilitation 

and betterment of the Crow Irrigation Project. The Committee was 

informally informed that the BOR, in its lead agency capacity intends to assess the Crow Irrigation Project Betterment Evaluation 

prepared by HKM Engineering, dated July 31, 2008, to review the 

benefits it provides to allottees. 

Crow Tribe water rights 

In 1975, the United States, on behalf of the Crow Tribe, brought 

suit in U.S. District Court for the District of Montana to obtain a 

final determination of the Tribe’s water rights.18 In 1979, the State 

of Montana initiated a general stream adjudication and created the 

Montana Reserved Water Rights Compact Commission to negotiate, on behalf of the Governor, settlements with Indian Tribes 

and federal agencies claiming federal reserved water rights in the 

state of Montana. The Compact Commission was established as an 

alternative to litigation as part of the state-wide water adjudication 

and is charged with concluding compacts ‘‘for the equitable division 

and apportionment of waters between the state and its people and 

the several Indian tribes’’ and the federal government.19 Pending 

the outcome of Compact Commission proceedings, the litigation in 

the U.S. District Court was stayed in 1983.20


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21Mont. Code Ann. § 85–20–901. 22See, Article III of the Compact for specifics of the priority dates. 23 In the 110th Congress the bill was numbered S. 3355. 

The Crow Tribe and the Compact Commission successfully negotiated a settlement of the Tribe’s water rights claims. The Crow 

Tribe-Montana Compact was approved by the Montana legislature 

in 1999.21 Once approved by S. 375, and ratified by the Tribe’s 

membership, the Compact is the full and final settlement of the 

Tribe’s water rights within the State of Montana and the Tribe 

waives any claims to Montana water rights not contained in the 

Compact. 

Generally speaking, S. 375 and the Compact provide for a May 

7, 1868 priority date for the tribal water rights, not including the 

Bighorn Lake storage allocation portion of the tribal water rights 

which is given a priority date of the water right held by the BOR.22

Existing state uses are protected from the assertion of seniority by 

the Tribe, and new development of the tribal water rights will be 

junior in priority to existing uses. In every basin except the Bighorn River Basin, the Tribe may also purchase state water rights. 

The State of Montana will issue no new water rights within the basins of the Compact. 

The Committee was informally informed that one of the documents being developed for purposes of implementation of the tribal 

water rights under Compact is a list of the tribal water uses developed as of the date the Compact was ratified by the Montana legislature, June 22, 1999. It was explained to the Committee that this 

list is significant for a number of reasons relating to administration 

of the tribal water rights. For example, tribal water uses developed 

as of June 22, 1999, include water uses developed by allottees 

using the tribal water rights as of that date. The Committee was 

informally informed that the United States has an interest in reviewing this list to confirm that the list includes all such allottee 

water uses. The Committee was also informally informed that the 

Tribe also acknowledges and agrees that tribal water uses developed as of June 22, 1999, includes water uses developed by 

allottees, and that the United States shall review the list as developed to confirm that the list includes all such allottee water uses. 

Congressional approval of S. 375 and the Compact is needed to 

resolve the claims of the Tribe against the United States and releases the United States from liability. Without legislation, the 

Tribe, the United States, and other parties would be forced to engage in lengthy and costly water rights litigation to settle the 

rights of water users. 

LEGISLATIVE HISTORY

In the 110th Congress, Senator Tester introduced a bill to settle 

the Crow Tribe’s water rights with Senator Baucus as an original 

co-sponsor.23 The bill was referred to the Committee on Indian Affairs. On September 11, 2008, the Committee held a hearing on 

this bill. At an open business meeting on September 25, 2008, the 

Committee approved the bill by a voice vote, but the bill was not 

reported to the full Senate pending resolution of Senator Barrasso’s 

concerns. The 110th Congress expired without the bill being considered on the Senate floor. 


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In the 111th Congress, Senator Tester introduced S. 375, the 

Crow Tribe Water Rights Settlement Act of 2009, on February 4, 

2009, and the bill was referred to the Committee. Senator Baucus 

is an original cosponsor. S. 375 is substantially similar to the bill 

introduced in the 110th Congress. At an open business meeting on 

September 10, 2009, the Committee approved S. 375, with an 

amendment in the nature of a substitute. 

SUMMARY OF THE AMENDMENT IN THE NATURE OF A SUBSTITUTE

Amendments addressing Wyoming concerns 

On September 10, 2009, the Committee held a business meeting 

on the bill and at that meeting approved a substitute amendment 

that addressed a number of issues, including specific issues raised 

by stakeholders in the State of Wyoming who were concerned that 

the bill, as introduced, might be interpreted to affect their rights 

or the interests of the State of Wyoming. 

The Committee begins with the observations that the Compact 

was negotiated by representatives of the Crow Tribe, the State of 

Montana and the United States in the late 1990s and that the parties to the Compact, once it has been approved by Congress, will 

consist of the Crow Tribe, the State of Montana, and the United 

States—not the State of Wyoming or water users within the State 

of Wyoming. Further, under the terms of the Compact itself, within 

180 days after the Compact has been ratified by the last of the 

three parties, the State of Montana, the Tribe, and the United 

States must file a joint motion to approve a proposed decree in a 

general stream adjudication case that is pending in the Water 

Court of the State of Montana. In that adjudication case, the water 

court is only adjudicating water rights located in the State of Montana, and the State of Wyoming and users of Wyoming water rights 

are not parties to the case. 

Water users in Wyoming raised concerns about the Compact because (i) the Bighorn River runs northward out of Wyoming across 

the Wyoming-Montana state line and flows directly into the Crow 

Indian Reservation in south central Montana, (ii) the Bighorn 

River is a significant interstate tributary of another interstate 

stream, the Yellowstone River, which is the subject of the Yellowstone River Compact approved by the States of Montana, North 

Dakota and Wyoming on December 8, 1950, pursuant to the Act of 

June 2, 1949 (P.L. 81–83), and (iii) the tribal-state Compact is 

being ratified through legislation of the United States Congress. 

The substitute amendment adopted at the Committee’s business 

meeting on September 10, 2009, addresses these concerns. 

Amendments to Section 10 

Section 10(c)(3) of the bill sets forth a provision whereby the 

Tribe reserves certain claims for damages or injuries to water 

rights arising outside of the State of Montana. The substitute 

amendment strikes this paragraph. The Committee notes that the 

waivers and releases authorized in the bill are all limited to the 

Tribe’s ‘‘water rights within the State of Montana’’ or to events that 

have occurred in the State of Montana. Accordingly, a reservation 

of rights for damages or injuries arising outside of the State of 

Montana is unnecessary. 


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Amendments to Section 12 

The substitute makes an amendment to Section 12(a) of the bill 

(by adding a new paragraph to the end of that subsection) to clarify 

the meaning and intent of certain provisions of the ‘‘Streamflow 

and Lake Level Management Plan,’’ an instrument that was negotiated separately among the Tribe, the State of Montana, and the 

Bureau of Reclamation (the ‘‘Plan’’). Section 1 of the Plan defines 

the term ‘‘Instream Flow’’ for the purposes of the Plan as ‘‘the 

water flowing in the Bighorn River Released from the Yellowtail 

Afterbay Dam and maintained throughout the reach’’ from that 

dam to a certain point downstream ‘‘to maintain the fisheries resource.’’ Section 2 of the Plan includes several provisions that require the Tribe to ‘‘dedicate’’ a specified quantity of the tribal water 

rights to ‘‘Instream Flow’’ in the Bighorn River. 

The Committee notes that the Streamflow and Lake Level Management Plan is a plan that was entered into among the Tribe, the 

State of Montana, and the Department of the Interior to achieve 

a variety of water management objectives. The plan is not an instrument transferring or creating water rights; rather, as the 

amendment to Section 12(a) states— 

[A]ny requirement in that plan that the Crow Tribe 

dedicate a specified percentage, portion, or number of acre 

feet of water per year of the tribal water rights to instream 

flow means, and is limited in its meaning and effect to, an 

obligation on the part of the Crow Tribe to withhold from 

development or otherwise refrain from diverting or removing from the Bighorn River the specified quantity of water 

for the duration, at the locations, and under the conditions 

set forth in the applicable requirement. 

Water users in the State of Wyoming raised concerns that, because the plan is expressly referred to in Section 12 of the bill and 

in the Compact, the provisions in the Plan requiring the Tribe to 

‘‘dedicate’’ a portion or quantity of the tribal water rights to 

instream flow between two points of the Bighorn River might be interpreted as creating, confirming or ratifying a water ‘‘use’’ which 

might be interpreted to create a new or additional water delivery 

obligation that the State of Wyoming and/or water users in Wyoming would be obligated to fulfill. The amendment to Section 12(a) 

addresses this concern, by clarifying that the Tribe’s ‘‘dedication’’ of 

a quantity of its tribal water rights to instream flow under the 

Plan is not a use or commitment of water that creates any new or 

additional upstream or interstate obligations. 

This clarification in the amendment to Section 12(a) is consistent 

with existing provisions in that subsection of the bill, in particular 

paragraph (1) of subsection (a). Section 12(a)(1) of the bill states 

that ‘‘[n]othing in the Compact or [the Plan] . . . limits the discretion of the Secretary under section 4F of that [P]lan’’—which sets 

forth a list of 6 factors or criteria for making decisions relating to 

instream flow in the Bighorn River and desired lake levels in the 

Bighorn Lake—or ‘‘requires the Secretary to give priority to any 

factor described in section 4F of the plan over any other factor described in that section.’’ 

The purpose of Section 12(a) is to make it clear that, notwithstanding the Compact or Plan, the Bureau retains its discretion in 


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24Some minor or technical amendments were made to Section 13 for clarification purposes 

only. The substantive amendments to Section 13 relate to the Compact provisions set forth in 

footnote 24. 25See Article III (A)(6)(a)(1) and (2), (B)(6)(a)(1) and (2), (E)(6)(a)(1) and (2), and (F)(6)(a)(1) 

and (2) of the Compact. 

balancing the interests of the various stakeholders—including Montana, Wyoming, and Federal interests—in managing the lake levels 

in Bighorn Lake. The bill, the Compact and the Plan do not alter 

or limit the Secretary’s authority or discretion in balancing these 

interests in its management decisions for Bighorn Lake. 

Amendments to Section 13 

The substitute also includes amendments to Section 13 that address, for the most part,24 concerns that arise from provisions in 

the Compact 25 that state that, with certain exceptions, water 

rights recognized under Montana state law in the Bighorn River 

Basin within Montana that have a priority date before the Compact 

was ratified by the Montana legislature in June of 1999 ‘‘are protected from an assertion of senior priority in the exercise of current 

uses of the Tribal Water Right developed as of the date’’ of such 

ratification as well as from ‘‘new development of the Tribal Water 

Right after the date’’ of such ratification. Because these protections 

are part of a compact that is being ratified by an act of Congress, 

water interests in the State of Wyoming have expressed concern 

that the protections from the Tribe’s senior water right afforded 

under the Compact to junior Montana water rights might be interpreted to cause harm or somehow increase the risk to upstream 

water users in the State of Wyoming. 

Accordingly, to preclude any such interpretation of the Act or the 

Compact, the amendment approved by the Committee would add a 

new paragraph to Section 13(f) that states that the Compact provisions that afford these protections to certain water rights recognized under the laws of Montana ‘‘do not limit or otherwise affect 

existing or future water rights (including the exercise of any such 

rights) outside of that State.’’ 

This particular amendment, added as a new paragraph to the 

end of subsection (f), is consistent with other provisions in subsection (f) of Section 13 which generally relate to the 1950 Yellowstone River Compact between Wyoming, Montana, and North Dakota. Subsection (f) of Section 13 makes it clear that the bill, the 

Compact and the Plan have no effect on the meaning, interpretation, implementation, application or effect of the 1950 interstate 

water compact, or on any of the rights, requirements, obligations, 

allocations of water, or any present or future claim, defense or 

other position asserted in a legal, administrative or other proceeding relating to that interstate water compact. 

Subsection (f) of Section 13 also makes it clear that the bill, the 

Compact and the Plan do not: (i) make an allocation or apportionment of water between states, (ii) address or imply whether, how, 

or to what extent, if any, the tribal water rights or any portion of 

the tribal water rights should be accounted for as part of or otherwise charged against any allocation of water made to a State under 

the provisions of the Yellowstone River Compact; or (iii) whether, 

how, or to what extent, if any, the Yellowstone River Compact includes or does not include the tribal water rights or the water right 


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of any Indian tribe as part of any allocation or other disposition of 

water under that compact. 

In short, subsection (f) of Section 13, as amended, was included 

in the bill to clarify that the bill and the Compact that it approves 

are not intended to tip the balance, directly or indirectly, that was 

struck between the signatory states to the 1950 Yellowstone River 

Compact or to make an allocation or apportionment of water between any of those states independent of the 1950 Yellowstone 

River Compact. 

Other amendments 

Amendment to Section 6 

The amendment added a new subsection (g) to Section 6, which 

conveys title of MR&I System (as defined in S. 375) facilities to the 

Tribe after completion of the facility or section. This amendment 

was included to address the Administration’s concern. In exchange 

for taking over title to the MR&I system and facilities, Section 14(f) 

was also amended to include the establishment of the MR&I 

OM&R Account. The MR&I OM&R Account will be used to fund a 

portion of the Federal trust responsibility for OM&R for this 

project in the future, with the balance of such costs to be borne by 

the Tribe. The immediate transfer of title from the Federal government to the Tribe eliminates any future liability for the United 

States for this system, and constitutes a form of consideration for 

the MR&I OMR Account authorization. 

Amendment to Section 11 

To address the Administration’s concern about the ‘‘early availability of funds,’’ Section 11(e) in S. 375 was amended to provide 

that, with the exception of very limited funds necessary to effectively begin to implement the settlement ($4,776,000 for the Tribal 

Compact Administration Account), none of the funds deposited into 

the Crow Settlement Fund shall be available to the Tribe until the 

enforceability date of the settlement occurs, the conditions for 

which are set forth in Section 10(e) of the bill. 

Amendments to Section 14 

Sections 14(l) & (m) authorizing of imputed interest on funds 

placed into the Crow Settlement Fund prior to the enforceability 

date of the settlement were deleted. These changes were in response to Administration concerns that these provisions created 

some difficulties for budgeting on a fiscal year basis. Rather than 

authorize appropriations for imputed interest that accrued from enactment through the enforceability date on funds in the Crow Settlement Fund, the interest was estimated and added to the six 

Crow Settlement Fund accounts (Section 14(c)–(h)) as part of the 

bill. 

SECTION-BY-SECTION ANALYSIS OF S. 375, AS AMENDED

Section 1. Short title 

Section 1 provides the short title of S. 375 as the ‘‘Crow Tribe 

Water Rights Settlement Act of 2009.’’ 


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Section 2. Purposes 

This section states that S. 375 achieves a fair, equitable, and 

final settlement of claims to water rights in the State of Montana 

for the Crow Tribe and the United States for the benefit of the 

Tribe and allottees. The section also states that S. 375 authorizes 

and ratifies the Crow Tribe-Montana Water Rights Compact entered into by the Tribe and the State on June 22, 1999. The section 

further states that S. 375 will require the Secretary of the Interior 

to execute the Compact, to perform all actions necessary to carry 

out the Compact, and to appropriate funds necessary for the implementation of the Compact and this bill. 

Section 3. Definitions 

This section defines important terms used in S. 375. 

Section 4. Ratification of Compact 

This section ratifies the entire Compact, except as modified by S. 

375, and also ratifies any executed amendments to the Compact 

that are consistent with S. 375. To the extent that the Compact 

does not conflict with S. 375, this section also directs the Secretary 

of the Interior to promptly execute the Compact, including all exhibits to or parts of the Compact requiring the signature of the Secretary, and to carry out all Federal compliance necessary to implement the Compact, including compliance with all applicable environmental acts and regulations. 

Section 5. Rehabilitation and improvement of the Crow Irrigation 

Project 

This section requires the Secretary, acting through the Commissioner of Reclamation, to carry out all activities necessary to improve the water diversion and delivery features of the Crow Irrigation Project, in accordance with an agreement to be negotiated between the Secretary and the Tribe. This section provides that the 

scope of the Project’s improvement will be as described in the ‘‘Engineering Evaluation of Existing Conditions, Crow Agency Rehabilitation Study’’ prepared by HKM Engineering, Inc. and dated 

July 2008. This section also states that the federal government will 

not seek reimbursement for costs incurred in support of the Project 

from users of the tribal water right. 

This section provides that the Secretary’s obligation will not ex- ceed $160,653,000, except that the total amount of $160,653,000 

will be increased or decreased, as appropriate, based on ordinary 

fluctuations from May 1, 2008, in construction cost indices applicable to the types of construction involved in the rehabilitation and 

improvement. 

This section also states that at the Tribe’s request, the Secretary 

will enter into an agreement with the Tribe to implement the provisions of this section by which the Tribe will plan, design, and construct any or all of the rehabilitation and improvement required by 

this section. 

Section 6. Design and construction of MR&I System 

This section requires the Secretary, acting through the Commissioner of Reclamation, to carry out such activities as are necessary 

to design and construct the water diversion and delivery features 


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of the MR&I System (as defined in S. 375), in accordance with an 

agreement to be negotiated between the Secretary and the Tribe. 

The design and construction the MR&I System will be as described 

in the ‘‘Crow Indian Reservation Municipal, Rural and Industrial 

Water System Engineering Report’’ prepared by HKM Engineering, 

Inc. and dated July 2008. This section also states that the federal 

government will not seek reimbursement for costs incurred in support of the MR&I System for costs allocated to the Tribe. 

This section provides that the Secretary’s obligation will not ex- ceed $200,840,000, except that the total amount of $200,840,000 

will be increased or decreased, as appropriate, based on ordinary 

fluctuations from May 1, 2008, in construction cost indices applicable to the types of construction involved in the design and construction. 

This section also states that at the Tribe’s request, the Secretary 

will enter into an agreement with the Tribe to implement the provisions of this section by which the Tribe will plan, design, and construct any or all of the design and construction required by this 

section. 

This section provides that the Secretary shall transfer title of 

each MR&I System facility or section to the Tribe upon completion 

of the construction each facility or section of the MR&I System that 

is operating and delivering water. 

This section provides that after title to the MR&I System is 

transferred to the Tribe the United States may not be held liable 

for any act, omission, or occurrence related to the land, buildings, 

or facilities conveyed other than damages caused by acts of negligence committed by the United States, or employees or agents of 

the United States. 

After title to the MR&I System is transferred to the Tribe and 

amounts are deposited in the MR&I System OM&R account (as defined in S. 375), this section states that the federal government is 

not obligated to pay for the operation, maintenance and replacement costs of the MR&I System. 

Section 7. Tribal water rights 

Section 7(a) provides that it is the intent of Congress to provide 

each allottee with benefits that are equivalent to or exceed the benefits allottees currently possess, taking into account certain considerations. Section 7(b) states that the tribal water rights are ratified, confirmed, and declared to be valid, with use of the tribal 

water rights subject to the Compact’s terms and conditions. Section 

7(c) requires that the tribal water rights will be held in trust by 

the United States for the use and benefit of the Tribe and the 

allottees. 

Section 7(d) provides that any entitlement to water of an allottee 

will be satisfied from the tribal water rights and that allottees are 

entitled to a just and equitable allocation of water for irrigation 

purposes. Section 7(d) further states that the water rights and 

other benefits granted by this bill will be considered full satisfaction of any claim of an allottee waived pursuant to section 10(a)(2). 

Section 7(d) also provides that once remedies under the tribal 

water code or other applicable tribal law have been exhausted, an 

allottee may seek relief under section 7 of the Act of February 8, 

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retary has the authority to protect allottees’ rights as provided in 

this section. 

Section 7(e) states that, once the Secretary has approved the 

tribal water code pursuant to Section 7(f)(3)(B), and except as provided in paragraph (2), the Tribe maintains the sole authority to 

allocate, distribute, and lease the tribal water rights in accordance 

with the Compact. Section 7(e) also provides that, subject to the 

tribal water code and applicable tribal and Federal law, an allottee 

may, pursuant to the tribal water code, lease any interest in land 

held by the allottee, together with any water right determined to 

be appurtenant to the interest in land. 

Section 7(f) provides that within three years after the Crow tribal 

members ratify the Compact, the Tribe will enact a tribal water 

code that provides for the management, regulation and governance 

of all uses of the tribal water rights in accordance with the Compact. The Tribe’s water code must be approved by the Secretary 

and must recognize allottee interests in water. 

Section 8. Storage allocation from Bighorn Lake 

This section directs the Secretary to allocate to the Tribe 300,000 

acre-feet per year of water stored in Bighorn Lake and specifies its 

usage. As a condition of receiving an allocation under this section, 

this section directs the Tribe to enter into an allocation agreement 

with the Secretary to establish the terms and conditions of the allocation. This section also permits the Tribe to enter into a service 

contract, lease, exchange, or other agreement providing for the 

temporary delivery, use or transfer of not more than 50,000 acrefeet per year of water for use off the Reservation. 

Section 9. Satisfaction of claims 

This section states that the benefits to the Tribe and the 

allottees under the Compact and the Act shall be considered to 

completely satisfy all claims of the Tribe and the allottees. 

Section 10. Waivers and releases of claims 

Section 10(a)(1) waives claims for water rights by the Tribe on 

behalf of itself and its members (but not its members in their capacity as allottees) and by the United States on behalf of the Tribe 

and its members (but not members in their capacities as allottees). 

Section 10(a)(2) describes the waiver of claims for water rights by 

the United States on behalf of the allottees. 

Section 10(a)(3) describes the Tribe’s waiver and release of claims 

against the United States. 

Section 10(b) states that the waivers and releases of claims become effective on the enforceability date, which is also described in 

this section. 

Section 10(c) describes the rights retained by the Tribe and the 

United States. 

Subsection 10(d) provides that the Compact and the Act have no 

effect on certain federal laws, or on the authority of the United 

States to carry out activity as a trustee for any Indian tribe other 

than the Tribe, or confers state jurisdiction to interpret certain federal laws. 

Section 10(e)(1) describes the enforceability date. Section 

10(e)(1)(B) provides that all of the authorized funds for the Crow 


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Settlement Fund shall be deposited before the enforceability date 

occurs. 

Subsection 10(f) describes the process for tolling claims. 

Section 11. Crow Settlement Fund 

Section 11 establishes the Crow Settlement Fund that will have 

the following accounts: the Tribal Compact Administration account; 

the Economic Development account; the Water Development 

Projects account; the MR&I System OM&R account; the Yellowtail 

Dam OM&R account; and the Crow Irrigation Project OM&R account. This section describes how deposits are made to the Settlement Fund, and how the Secretary is to manage, invest, and distribute the monies in the accounts. This section also describes how 

the Tribe will withdraw amounts and when funds are available to 

be withdrawn. 

Section 12. Yellowtail Dam, Montana 

Section 12 describes provisions of S. 375 related to Yellowtail 

Dam. Section 12(a) discusses the Streamflow and Lake Level Management Plan referred to in the Tribal-State Compact. It describes 

the relationship between the Streamflow and Lake Level Management Plan, the Tribal-State Compact, and S. 375. 

Section 12(b) states that the Tribe shall have the exclusive right 

to develop and market power generation as a water development 

project on the Yellowtail Afterbay Dam. 

Section 12(c) requires the Bureau of Reclamation to consult with 

the Tribe on at least a quarterly basis on issues related to the Bureau’s management of Yellowtail Dam. 

Section 13. Miscellaneous provisions 

This section includes provisions on the limits of claims and rights 

not waived in the Compact, S. 375, or other ongoing matters specified in S. 375. The section also confirms the status quo of tribal, 

state, and federal subject matter jurisdiction and regulatory authority. The section waives the United States’ immunity from suit 

to enforce the agreement. 

Section 14. Authorization of appropriations 

This section authorizes $160,653,000 for the Rehabilitation and 

Improvement of the Crow Irrigation Project; $200,840,000 for the 

Design and Construction of the MR&I System; $4,776,000 for Tribal Compact Administration; $47,762,000 for Economic Development 

Projects; $44,889,000 for Water Development Projects; $72,256,000 

for MR&I System OM&R; $12,987,000 for Yellowtail Dam OM&R 

and $15,207,000 for Crow Irrigation Project OM&R. This section 

also authorizes funds for environmental compliance and the Bureau of Reclamation costs for the Crow Irrigation Project and 

MR&I systems. Each amount appropriated is to be adjusted to reflect changes in appropriate cost indices during the period beginning on May 1, 2008, and ending on the date of appropriation. 

Section 15. Repeal on failure to meet effective date 

This section states that if the Secretary does not publish a statement of findings by March 31, 2016, the Act is repealed effective 


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January 1, 2016, with amounts having been appropriated and 

made available reverted to the general fund of the Treasury. 

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

In an open business meeting on September 10, 2009, the Committee on Indian Affairs, by voice vote, adopted S. 375 with an 

amendment in the nature of a substitute and ordered the bill reported to the Senate, with the recommendation that the Senate 

pass S. 375, as amended by the substitute. 

COST AND BUDGETARY CONSIDERATIONS

S. 375—Crow Tribe Water Rights Settlement Act of 2009 

Summary: S. 375 would approve a compact between the Crow 

Tribe and the state of Montana to settle tribal claims to water 

rights in the state. The bill also would authorize the construction 

and rehabilitation of systems that deliver water to tribal lands and 

would establish a trust fund for the tribe to operate and maintain 

those systems. Finally, the bill would authorize appropriations for 

the Department of the Interior (DOI) to develop the water systems. 

Based on information from DOI and assuming appropriation of 

the necessary amounts, CBO estimates that implementing S. 375 

would increase discretionary spending by $193 million over the 

2010–2014 period and $510 million after 2014. Enacting the legislation would not affect direct spending or revenues over the 2010– 

2019 period. Enacting the bill would increase direct spending by 

$29 million after 2019. 

S. 375 contains an intergovernmental mandate as defined in the 

Unfunded Mandates Reform Act (UMRA) because it would require 

the tribe to enact a tribal water code. CBO estimates that the cost 

of complying with the mandate would be small and well below the 

threshold established in UMRA ($69 million in 2009, adjusted annually for inflation). 

This bill contains no private-sector mandates as defined in 

UMRA. 

Estimated cost to the Federal Government: The estimated budgetary impact of S. 375 is shown in the following table. The costs 

of this legislation fall within budget functions 300 (natural resources and environment) and 450 (community and regional development). 

By fiscal year, in millions of dollars— 

2010 2011 2012 2013 2014 2010– 

2014 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

MR&I Water System: 

Estimated Authorization Level ................................. 10 15 20 25 25 95 

Estimated Outlays ................................................... 6 12 17 22 24 81 

Crow Irrigation Project: 

Estimated Authorization Level ................................. 10 15 15 20 20 80 

Estimated Outlays ................................................... 6 12 14 18 19 69 

Crow Settlement Fund: 

Estimated Authorization Level ................................. 5 0 0 0 0 5 

Estimated Outlays ................................................... 5 0 0 0 0 5 

Administrative Costs for Bureau or Reclamation: 

Estimated Authorization Level ................................. 8 8 7 7 8 38 

Estimated Outlays ................................................... 6 8 8 8 8 38 


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By fiscal year, in millions of dollars— 

2010 2011 2012 2013 2014 2010– 

2014 

Total Spending Under S. 375 

Estimated Authorization Level ........................ 33 38 42 52 53 218 

Estimated Outlays .......................................... 25 32 38 47 51 193 

Note: MR&I = Municipal, Rural, and Industrial Water System. 

Basis of estimate: For this estimate, CBO assumes that S. 375 

will be enacted in fiscal year 2010 and that the necessary amounts 

will be appropriated in the fiscal years in which those funds would 

be spent. Enforcement of the settlement depends on the completion 

of several actions by federal, state, local, and tribal entities. For 

this estimate, CBO expects that those actions will be completed in 

fiscal year 2016. Cost estimates for the authorized water projects 

are based on information from DOI and on historical spending patterns for similar activities. 

Spending subject to appropriation 

S. 375 would authorize appropriations for a variety of activities 

to benefit the Crow Tribe. The Secretary of the Interior would be 

authorized to construct and rehabilitate water infrastructure on 

tribal lands, operate and maintain that infrastructure, and sponsor 

development projects for the tribe. CBO estimates that implementing the settlement would increase discretionary spending by 

$193 million over the 2010–2014 period and $510 million after 

2014. 

Municipal, Rural, and Industrial (MR&I) Water System. Section 6 would authorize the appropriation of $201 million, plus adjustments for increases in construction costs, to build an MR&I water 

system that would deliver water to communities and businesses on 

tribal lands. Based on information from DOI, CBO expects that 

construction of the MR&I water system would begin in 2010 and 

take about 10 years to complete. CBO estimates that implementing 

this provision would cost $81 million over the 2010–2014 period 

and $143 million after 2014, assuming appropriation of the necessary amounts (including adjustments for inflation). 

Crow Irrigation Project. Section 5 would authorize the appropriation of $161 million, plus adjustments for increases in construction 

costs, to rehabilitate and improve the Crow Irrigation Project, 

which delivers water to farmland on tribal lands. Based on information from DOI, CBO expects that improvements to the Crow Irrigation Project would begin in 2010 and take about 10 years to 

complete. CBO estimates that implementing this provision would 

cost $69 million over the 2010–2014 period and $110 million after 

2014, assuming appropriation of the necessary amounts (including 

adjustments for inflation). 

Crow Settlement Fund. Section 11 would authorize the appropriation of about $198 million (including $5 million to administer 

the tribal compact), plus adjustments for increases in construction 

costs, to be deposited into the Crow Settlement Fund. Amounts in 

the fund would be used for economic and water development 

projects and for operation and maintenance of the Crow Irrigation 

Project, the MR&I system, and the Yellowtail Dam, in Montana. 

Except for amounts appropriated to administer the tribal compact, which could be spent by the tribe after it ratifies the compact, 


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amounts in the fund could not be spent by the tribe until certain 

conditions are met. Among others, the Secretary of the Interior 

would have to publish a statement of findings in the Federal Register indicating that all parties have executed the compact; the 

Montana water court and U.S. district court would have to issue 

a judgment and final decree concerning the compact; $198 million 

would have to be appropriated to the Crow Settlement Fund; and 

Montana would have to appropriate amounts due to the tribe under 

the compact. Should the Secretary not publish the required statement of findings by March 31, 2016, verifying that all conditions 

necessary to execute the agreement have been met, the agreement 

would not take effect, and no federal funds could be spent after 

that date. 

CBO expects that the tribe would ratify the compact in 2010 

based on information from the tribe. At that time, the tribe could 

spend amounts appropriated to the Crow Settlement Fund to administer the compact, and the budget would record an expenditure 

of $5 million. Based on information from DOI, CBO expects that all 

other conditions necessary to execute the agreement would be met 

in 2016. At that time, all other amounts in the fund could be spent 

by the tribe, and the budget would record an expenditure of $212 

million (including adjustments for inflation). The Secretary of the 

Interior would then be required to invest those amounts in U.S. 

Treasury obligations. 

Payments to certain tribal trust funds that are held and managed in a fiduciary capacity by the federal government on behalf 

of Indian tribes are treated as payments to a nonfederal entity. As 

a result, CBO expects that the entire amount deposited into the 

settlement fund (excluding the amount for tribal compact administration) would be recorded as an outlay in 2016 when the funds 

could be spent by the tribe. Subsequently, any use of such funds 

would have no effect on the federal budget. Because S. 375 would 

direct the Secretary to invest amounts in the fund only after those 

amounts are available to the tribe, CBO expects that no interest 

would accrue on the amounts in the fund until 2016. CBO estimates that, in total, implementing section 11 would cost $5 million 

in 2010 and $212 million in 2016. 

DOI Administrative Costs. S. 375 would authorize the appropriation of such sums as may be necessary for DOI to conduct certain 

administrative activities related to the compact. Based on information from DOI, CBO estimates that DOI would need about $8 million a year to carry out its responsibilities under the bill, including 

$1 million a year over the 2010–2011 period for environmental 

compliance activities related to the compact. In total, CBO estimates that those administrative activities would cost $38 million 

over the 2010–2014 period and $45 million after 2014, assuming 

appropriation of the necessary amounts. 

Direct spending 

Section 8 would allocate a portion of the water supply in Bighorn 

Lake that was created by the construction of the Yellowtail Dam 

to the Crow Tribe. The legislation would require that any capital 

costs of the Yellowtail Dam that would be allocated to the tribe as 

a result of enacting S. 375 would be nonreimbursable by the tribe. 

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ment to construct a project that are not recovered from project 

beneficiaries.) 

Under current law, about one-third of the capital costs of the 

Yellowtail Dam will eventually be repaid to the federal government 

by private entities that contract for water supplies from Bighorn 

Lake. (The remaining two-thirds of those costs will be repaid by 

ratepayers who receive electricity from the dam.) Under the bill, 

about 90 percent of those capital costs would become nonreimbursable because most of the water in Bighorn Lake would be allocated 

to the tribe. Currently, the tribe does not purchase water from the 

lake and, hence, does not pay for any portion of the capital costs 

of the dam. Further, the tribe is not expected to enter into a contract for water from the dam in the next 10 years. CBO expects 

that, at some point after 2019, one or more entities will purchase 

water from Bighorn Lake. Those entities would repay a portion of 

the capital costs of the dam ($29 million) over several years. Such 

collections are classified as offsetting receipts (a credit against direct spending), are deposited into the Reclamation Fund, and cannot be spent without further appropriation. 

By making a portion of the capital costs of the Yellowtail Dam 

nonreimbursable, enacting this legislation would result in the loss 

of offsetting receipts totaling about $29 million sometime after 

2019. 

Intergovernmental and private-sector impact: S. 375 would require the Crow tribe to enact policies that would govern tribal 

water rights as detailed in the agreement. That requirement would 

be an intergovernmental mandate as defined in UMRA because it 

would place a statutory requirement on the tribe that is separate 

from provisions of the agreement. CBO estimates that the cost of 

the mandate would be small and well below the threshold established in UMRA ($69 million in 2009, adjusted annually for inflation). Furthermore, amounts authorized for the Crow Settlement 

Fund could be used to pay for any such costs. 

This bill contains no private-sector mandates as defined in 

UMRA. 

Estimate prepared by: Federal costs: Jeff LaFave; Impact on 

state, local, and tribal governments: Melissa Merrell; Impact on the 

private sector: Marin Randall. 

Estimate approved by: Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 


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REGULATORY AND PAPERWORK IMPACT STATEMENT

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

out the bill. The Committee believes that the regulatory and paperwork impact of S. 375 will be minimal. 

CHANGES IN EXISTING LAW

In compliance with subsection 12 of rule XXVI of the Standing 

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

375 will not effect any changes in existing law. 

Æ 


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