II

105TH CONGRESS

2D SESSION S. 2219

To direct the Secretary of the Interior to convey certain irrigation project

property to certain irrigation districts in the State of Nebraska.

IN THE SENATE OF THE UNITED STATES

JUNE 25, 1998

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

to the Committee on Energy and Natural Resources

A BILL

To direct the Secretary of the Interior to convey certain

irrigation project property to certain irrigation districts

in the State of Nebraska.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Missouri River Basin,

5 Middle Loup Division Project Facilities Conveyance Act’’.

6 SEC. 2. DEFINITIONS.

7 In this Act:

8 (1) PROJECT.—The term ‘‘project’’ means each

9 of the irrigation projects constructed by the United

10 States under the Act of December 22, 1944 (com-
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1 monly known as the ‘‘Flood Control Act of 1944’’)

2 (58 Stat. 887, chapter 665), described as the ‘‘Mis3 souri River Basin, Middle Loup Division Project’’

4 and locally known as the ‘‘Farwell Irrigation

5 Project’’ and the ‘‘Sargent Irrigation Project’’.

6 (2) PROJECT BENEFICIARY.—The term

7 ‘‘project beneficiary’’ means—

8 (A) the Farwell Irrigation District, Sar9 gent Irrigation District, and Loup Basin Rec10 lamation District, each of which is organized as

11 a subdivision of government under the law of

12 the State of Nebraska;

13 (B) a combination of the irrigation dis14 tricts or reclamation district; and

15 (C) an organization established by 1 or

16 more of the irrigation districts or reclamation

17 district under the law of the State of Nebraska

18 as an interlocal cooperation agency.

19 (3) PROJECT PROPERTY.—The term ‘‘project

20 property’’ means—

21 (A) all contracts in effect on the date of

22 enactment of this Act between the United

23 States and a project beneficiary or other person

24 that relate to a project or project facility, in25 cluding any written or unwritten contract to
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1 provide power from a Federal power facility

2 under the Act of December 22, 1944 (58 Stat.

3 887, chapter 665);

4 (B) all project distribution and drainage

5 facilities, all reservoir and related diversion fa6 cilities, and all related land owned by the

7 United States as of the date of enactment of

8 this Act that the Secretary determines to be re9 lated to a project;

10 (C) all acquired land (including the surface

11 estate and the subsurface estate) within a

12 project;

13 (D) all water rights held by the United

14 States relating to the project facilities;

15 (E) all right, title, and interest in all out16 standing contracts, leases, licenses, outgrants,

17 or permits on or relating to land associated

18 with a project; and

19 (F) all personal property (including operat20 ing equipment, tools, materials, and other tan21 gible personal property) owned by the United

22 States that is used for the purpose of operating

23 the project or serving the project facility.

24 (4) PROJECT PURPOSE.—The term ‘‘project

25 purpose’’ means use of the project property and the
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1 water supply of the project (consistent with the re2 cent use and experience with the project and not

3 limited to the use envisioned when the project was

4 originally authorized, and consistent with section 8)

5 to—

6 (A) provide irrigation water for project

7 land to which the project water rights are as8 signed;

9 (B) enhance the agricultural economy of

10 the area served by the project;

11 (C) stabilize the water supply from surface

12 and ground water sources in the area served by

13 the project;

14 (D) develop and protect fish and wildlife

15 resources native to the area served by the

16 project; and

17 (E) develop and manage water- and land18 based recreation facilities in the area that are

19 related to the project property.

20 (5) SECRETARY.—The term ‘‘Secretary’’ means

21 the Secretary of the Interior.

22 SEC. 3. CONVEYANCE.

23 (a) CONVEYANCE.—

24 (1) IN GENERAL.—On January 1, 2000 (or on

25 any earlier date that is agreeable to the Secretary
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1 and the project beneficiaries), the Secretary may, on

2 terms in accordance with this Act, convey by quit3 claim deed, patent, or other appropriate instrument,

4 all right, title, and interest of the United States in

5 and to the project property to the project bene6 ficiaries, in the name or names of project bene7 ficiaries as the project beneficiaries may determine.

8 (2) CONTAMINATED PROPERTY.—

9 (A) REMEDIAL ACTION.—Notwithstanding

10 section 120(h)(3) of the Comprehensive Envi11 ronmental Response, Compensation, and Liabil12 ity Act of 1980 (42 U.S.C. 9620(h)(3)) or any

13 other law, the Secretary shall make the convey14 ance under paragraph (1) not later than Janu15 ary 1, 2000, without regard to whether all nec16 essary remedial action required under that Act

17 on any part of the project property has been

18 completed by that date.

19 (B) EFFECT.—Subparagraph (A) does

20 not—

21 (i) relieve the United States of the ob22 ligation to complete any required remedial

23 action expeditiously; or

24 (ii) place any obligation on the project

25 beneficiaries to conduct or contribute to
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1 payment of the costs of any remedial ac2 tion.

3 (3) COMPLETION OF NEPA STUDIES AND RE4 PORTS.—The Secretary shall cause all studies and

5 reports required on the project property under the

6 National Environmental Policy Act of 1964 (42

7 U.S.C. 4321 et seq.) relating to the conveyance

8 under paragraph (1) to be completed as far in ad9 vance of January 1, 2000, as practicable.

10 (b) CONSIDERATION.—The conveyance of the project

11 property under subsection (a) shall be for consideration

12 totaling $5,030,000, to be paid to the United States for

13 credit against the Reclamation Projects Funds for the

14 Missouri River Basin Project, as follows:

15 (1) PAYMENT BY PROJECT BENEFICIARIES.—

16 (A) IN GENERAL.—On the date of convey17 ance, the project beneficiaries shall pay the Sec18 retary $3,530,000.

19 (B) CREDITING OF CONTRACT PAY20 MENTS.—There shall be credited against the

21 amount specified in subparagraph (A) the

22 amount of any payments made by the project

23 beneficiaries between July 1, 1998, and Decem24 ber 31, 1999, under contracts between the

25 project beneficiaries and the United States.
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1 (2) PAYMENT BY POWER PRODUCERS.—

2 (A) IN GENERAL.—On the date of convey3 ance, the power producers under the Pick-Sloan

4 Missouri Basin Program shall pay the Sec5 retary $1,500,000.

6 (B) PAYMENT SOURCE.—As a source of

7 funds for the payment under subparagraph (A),

8 the power producers may use power sale reve9 nues received in fiscal year 1998 or any subse10 quent fiscal year in which the amount of power

11 sale revenues received exceeds the amount of in12 terest and operation and maintenance obliga13 tions.

14 (c) SATISFACTION OF OUTSTANDING OBLIGA15 TIONS.—

16 (1) IN GENERAL.—The payment of the sums

17 provided for in subsection (b) shall be in full and

18 complete satisfaction of all obligations against the

19 project property, the project beneficiaries, and Mis20 souri River Basin power producers existing before

21 the date of conveyance of the project property under

22 any contracts entered into between the United

23 States, the project beneficiaries, or the Missouri

24 River Basin power producers or under any obliga25 tions that may have been required by the Act of De-
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1 cember 22, 1944 (58 Stat. 887, chapter 665) or

2 other related Federal law.

3 (2) SATISFACTION OF OBLIGATIONS.—The com4 pletion of the conveyance of all project facilities

5 under this Act and the payment of the consideration

6 specified for the projects shall constitute full satis7 faction of any and all obligations for further pay8 ments or repayments by the respective project bene9 ficiaries or by the Missouri River Basin power pro10 ducers for irrigation benefits of the project property

11 and for any other benefits conveyed to the project

12 beneficiaries.

13 (d) CONVEYANCE DOCUMENTS.—

14 (1) IN GENERAL.—With the assistance of the

15 project beneficiaries, the Secretary—

16 (A) shall execute and deliver to the project

17 beneficiaries all necessary conveyance docu18 ments (including quitclaim land deeds, court

19 proceedings, decrees, bills of sale, certificates of

20 title, lease contract transfers, water rights cer21 tificates and amendment documents, and notice

22 filings) and make all such filings as may be re23 quired of the transferor; and
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1 (B) take all such actions as may be re2 quired to consummate the conveyance of project

3 property.

4 (2) FILING COSTS.—The cost of any required

5 filing of documents shall be paid by the project bene6 ficiaries.

7 (e) ASSUMPTIONS OF OBLIGATIONS.—On the date of

8 the conveyance under subsection (a), the project bene9 ficiaries shall—

10 (1) assume the rights and responsibilities under

11 the contracts, leases, licenses, outgrants, and per12 mits referred to in section 2(3)(E); and

13 (2) during the continued term of each contract,

14 lease, license, outgrant, and permit, carry out all re15 sponsibilities of the United States under the con16 tract, lease, license, outgrant, or permit unless re17 leased by the holder of the contract, lease, license,

18 outgrant, or permit.

19 (f) NO DIMINISHMENT OF ESTATE.—The Secretary

20 shall not transfer, modify, or restrict the interest of the

21 United States in any part of the project property after

22 the date of enactment of this Act and before the date of

23 the conveyance under subsection (a).

24 (g) EFFECT OF AGREEMENT BY PROJECT BENE25 FICIARIES.—
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1 (1) IN GENERAL.—By accepting the conveyance

2 under subsection (a), the project beneficiaries

3 agree—

4 (A) to operate, maintain, repair, replace,

5 and rehabilitate the project in a manner de6 signed to carry out the project purposes; and

7 (B) to cooperate with each person holding

8 a contract, lease, license, outgrant, or permit

9 referred to in section 2(3)(E) so as to ensure

10 that the rights of the person under the con11 tract, lease, license, outgrant, or permit are pre12 served after the conveyance.

13 (2) NOTIFICATIONS.—The project beneficiaries

14 shall be responsible for notifying all State, regional,

15 and local authorities (including authorities respon16 sible for dam safety, monitoring, and inspections,

17 water quality monitoring, and inspections and ad18 ministration of water rights) regarding the convey19 ance of project property and the assumption of own20 ership of the project.

21 (h) PAYMENT OF NEPA STUDY COSTS.—All costs

22 incurred by the United States in preparation of studies

23 and reports required under the National Environmental

24 Policy Act of 1969 (42 U.S.C. 4321 et seq.) relating to

25 the conveyance under subsection (a)—
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1 (1) up to the sum of $170,000, shall be paid

2 equally by the United States and the project bene3 ficiaries; and

4 (2) in excess of $170,000, shall be paid solely

5 by the United States.

6 SEC. 4. MIDDLE LOUP DRAINAGE FACILITIES AND LAND.

7 (a) RESPONSIBILITY FOR DRAINAGE WORK.—

8 (1) IN GENERAL.—Except for any drainage

9 work that is made necessary by acts or omissions of

10 project beneficiaries in connection with project oper11 ations, any repair or modification of drainage work

12 in existence on the date of enactment of this Act or

13 any development of new additional drainage work

14 that the project beneficiaries, in cooperation with

15 Loup City, Nebraska, and the landowners on whose

16 land drainage works exist at any time, determine is

17 necessary to satisfactorily limit or reduce ground

18 water encroachment on the land described in sub19 section (b), shall be the financial responsibility of

20 the United States to the extent provided in para21 graph (2).

22 (2) RACHETING DOWN OF FINANCIAL RESPON23 SIBILITY OF THE UNITED STATES.—For drainage

24 work performed in the following fiscal years, the

25 United States shall have financial responsibility for
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1 the following percentages of the cost of the drainage

2 work, and the project beneficiaries shall have finan3 cial responsibility for the remainder:

Fiscal year: Percentage:

2000 ......................................................................................... 100

2001 ......................................................................................... 95

2002 ......................................................................................... 90

2003 ......................................................................................... 85

2004 ......................................................................................... 80

2005 ......................................................................................... 75

2006 ......................................................................................... 70

2007 ......................................................................................... 65

2008 ......................................................................................... 60

2009 ......................................................................................... 55

2010 ......................................................................................... 50

2011 ......................................................................................... 45

2012 ......................................................................................... 40

2013 ......................................................................................... 35

2014 ......................................................................................... 30

2015 ......................................................................................... 25

2016 ......................................................................................... 20

2017 ......................................................................................... 15

2018 ......................................................................................... 10

2019 ......................................................................................... 5

2020 and thereafter ................................................................. 0.

4 (b) DESCRIPTION OF LAND.—The land described in

5 this subsection is all land—

6 (1) in which the United States has any interest

7 in the valley of the Middle Loup River in and

8 around Loup City, Nebraska;

9 (2) that was developed or acquired by the

10 United States for the purposes of collecting and

11 draining excess ground water; and

12 (3) that is entirely outside the political subdivi13 sion boundaries of the project beneficiaries.
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1 SEC. 5. LIABILITY.

2 Beginning on the date of the conveyance of the

3 project property under section 3(a), the United States

4 shall not be liable for damages arising out of any act,

5 omission, or occurrence relating to the project property or

6 a project except for damages caused by an act or omission

7 of the United States or an employee, agent, or contractor

8 of the United States before that date.

9 SEC. 6. MAINTENANCE OF PROJECT PURPOSES AND BENE10 FITS AND CREATION OF TRUST FUND.

11 (a) CONTINUATION OF PROJECT PURPOSES.—

12 (1) IN GENERAL.—All project property con13 veyed under section 3 shall, to the extent prac14 ticable, be operated and maintained to achieve the

15 project purposes.

16 (2) APPLICABILITY OF LAWS.—Operations of

17 all project property conveyed under section 3 shall

18 be subject to Federal and State laws under which

19 the irrigation districts and reclamation district were

20 established and the irrigation districts and reclama21 tion district conduct operations.

22 (3) OTHER USES OF PROJECT FACILITIES.—All

23 other uses of project facilities consistent with those

24 laws and the operation of irrigation facilities, includ25 ing fish, wildlife, and recreation uses, shall be pre-
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1 served, protected, and enhanced to the extent prac2 ticable by the project beneficiaries.

3 (b) NEBRASKA-MIDDLE LOUP RIVER COMMUNITY

4 ENVIRONMENTAL TRUST FUND.—

5 (1) ESTABLISHMENT.—As a condition to the

6 conveyance under section 3, the project beneficiaries

7 shall establish a fund, to be known as ‘‘Nebraska8 Middle Loup River Community Environmental Trust

9 Fund’’.

10 (2) ADMINISTRATION.—The fund shall be ad11 ministered by an interlocal cooperation agency, orga12 nized under State law by the project beneficiaries,

13 that includes at least—

14 (A) 1 member selected by the Loup Basin

15 Reclamation District;

16 (B) 1 member each selected by the Farwell

17 Irrigation District and the Sargent Irrigation

18 District;

19 (C) 1 member from the Nebraska Game

20 and Parks Commission, to be selected by the

21 Commission;

22 (D) 1 member from the Nebraska Natural

23 Resources Commission, to be selected by the

24 Commission;
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1 (E) 1 member of the Lower Loup Natural

2 Resources District, selected by the District; and

3 (F) 1 member from the Nebraska Depart4 ment of Water Resources, to be selected by the

5 Governor of the State of Nebraska.

6 (3) DEPOSIT.—On receipt of payment of con7 sideration under section 3(b), the Secretary shall de8 posit the payment in the fund.

9 (4) USE OF FUND.—

10 (A) IN GENERAL.—Amounts in the fund

11 shall be used to preserve, protect, enhance, and

12 manage project property in a manner that the

13 interlocal cooperation agency determines is nec14 essary to achieve the project purposes, including

15 actions to—

16 (i) stabilize water supplies;

17 (ii) conserve water and land resources;

18 (iii) improve and enhance fisheries

19 and recreational opportunities; and

20 (iv) expand knowledge of water and

21 land sources for enhancing project oper22 ations to improve the service of project

23 purposes.

24 (B) PROHIBITION.—Amounts in the fund

25 shall not be used for any routine operation and
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1 maintenance work by the project beneficiaries

2 or any cooperator, lessee, licensee, or permittee

3 of the project beneficiaries.

4 SEC. 7. ARCHAEOLOGICAL PRESERVATION RESPONSIBIL5 ITIES.

6 (a) IN GENERAL.—The Secretary shall complete all

7 investigation and preservation activities required under

8 the National Historic Preservation Act (16 U.S.C. 470 et

9 seq.) at archaeological sites on project property that, be10 fore the date of the conveyance under section 3(a), have

11 been identified as being subject to the requirements of

12 that Act.

13 (b) EASEMENT.—At the time of the conveyance of the

14 project property, the project beneficiaries shall convey to

15 the Secretary an easement to each archaeological site de16 scribed in subsection (a) for the purpose of retaining ac17 cess to and full use of the site for the purposes of conclud18 ing any required archaeological activity at the site.

19 (c) EFFECT ON PROJECT OPERATION.—The Sec20 retary shall—

21 (1) ensure that archaeological activity at an ar22 chaeological site described in subsection (a) does not

23 adversely affect the integrity of the operation any

24 project property; or
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1 (2) to the extent that it is not practicable for

2 the Secretary to avoid any adverse effect, provide

3 such alternative facilities as are necessary to main4 tain project integrity.

5 SEC. 8. MODIFICATION OF PROJECT PURPOSES.

6 The purposes of the project are modified to exclude

7 flood control.

Æ