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###### Department of the Interior

###### Bureau of Indian Affairs 

# AGENCY:

Bureau of Indian Affairs, Interior. 

# ACTION:

Notice. 

# SUMMARY:

The Bureau of Indian Affairs (BIA) will implement revised procedures for preparing and prioritizing funding requests in order to improve the management of two water programs with non-recurring annual appropriations. The two programs are the Water Rights Negotiation/Litigation Program (Water Rights Program) and the Water Resources Management, Planning and Pre-development Program (Water Resources Program). These water programs support the long-term goals of assisting Indian tribes in confirming and defining water rights, resolving claims through negotiation or litigation, and promoting the prudent conservation, management and use of natural resources. 

All of the BIA's water program managers and many water rights and water resources program managers employed by Indian tribes request these appropriations to support numerous Indian water rights litigation and negotiation efforts, to conduct water resources management, and to develop associated plans for tribal water resources. Typically, the BIA's Office of Trust Services receives more than 400 funding requests annually for water rights and water resources management-related activities. Funding requests are submitted by all 12 of the BIA's Regional Offices and approximately 150 to 175 Indian tribes each year. 

The current system for preparing and prioritizing water program funding requests needs improvement in order to provide BIA decision makers with more clear demarcations of priority. These revised procedures will allow for more effective prioritization and thus enable BIA decision makers to distribute more efficiently the available water program funds. 

# DATES:

The revised procedures for preparing and prioritizing water program funding requests will be used to distribute funding in Fiscal Year 2006. 

# ADDRESSES:

Jeffery Loman, Chief, Natural Resources, Office of Trust Services, Bureau of Indian Affairs, Mail Stop 4655-MIB, Code 210, 1849 C Street, NW., Washington, DC 20240, Telephone (202) 208-7373. 

# FOR FURTHER INFORMATION CONTACT:

Jeffery Loman, (202) 208-7373. 

# SUPPLEMENTARY INFORMATION:

## Water Rights Program 

                    The BIA manages the Water Rights Program for the purpose of confirming and defining Indian water rights through litigation and court decree or through negotiated settlement. The first priority for program funds is to provide all documentation and other materials deemed necessary to further the United States' water rights claims on behalf of Indian tribes or individuals. These materials may include preparing hydrographic survey reports; determining surface and ground water                           ( print page 60847)                        supplies; identifying arable lands; completing a practicably irrigable acreage (PIA) assessment; determining point(s) and means of diversion, purpose(s) and place(s) of use, and amount of water diverted or depleted; and conducting studies to determine the water needs of fish, wildlife, or other resources for which Indian tribes have reserved rights. These funds may also be used to provide similar materials as necessary to facilitate active Indian water rights negotiations undertaken by the Secretary of the Interior.                 

## Water Resources Program 

The BIA manages the Water Resources Program for the purpose of managing, conserving and utilizing reservation water resources. The first priority for these program funds is to provide necessary technical research, studies, and other information for Indian tribes to serve as informed and prudent managers of their water resources. These efforts may occur through partnerships or through coordination and cooperation with other governmental entities to obtain information describing surface and ground water assessments, inventories, monitoring, modeling and gauging. Additionally, these funds are used for the preparation of comprehensive reservation water management and development plans, use surveys, interagency drought management planning, and necessary assessments to define and characterize tribal water resources. 

## Activities Not Eligible for Funding 

Examples of activities typically not eligible for funding from either water program include: 
    - Projects that duplicate work that the BIA has identified as necessary for its efforts, has undertaken, or has completed through its employees or contractors or through arrangements with other Federal agencies, including the U.S. Department of Justice;
    - Projects to design, construct, repair or improve water facilities, including domestic water supply, waste water, and irrigation or dam infrastructure, except to the extent that PIA analyses under the Water Rights Program require such design projects;
    - Development of recommendations or conditions in hydropower licensing procedures and water quality studies to initiate actions needed to address pollution problems;
    - Attorney fees and related expenses for legal services; and
    - Administrative overhead costs.

## Preparing Funding Requests 

Funding requests should not be lengthy (2 to 3 pages maximum) and should not include endorsements or other extraneous information such as contractor proposals or contracts. The following information must be provided in funding requests: 

(1) Name and contact information (mailing address, e-mail, telephone and fax number) of person preparing the request. 

(2) Date of request. 

(3) Type of request (Congressional/Court Mandate, Water Rights Litigation Support, Active Water Rights Adjudication/Negotiation Support, Water Management, Water Planning/Pre-Development). 

# Note:

Congressional/Court Mandate-based requests must include a copy of the mandate, and Water Rights Litigation requests must include case citation. Also, the requests must state clearly the ultimate goal of the project in one sentence. 

(4) Copy of current tribal resolution or cover letter signed by tribal leader supporting request. (For all non-BIA generated requests.) 

(5) Project manager name and contact information (mailing address, e-mail, telephone and fax number). 

(6) DOI and DOJ Attorney name(s) and contact information for all water rights requests, including tribal requests. All water rights litigation/adjudication requests must be prepared in consultation with the Federal attorney(s), and consensus must be reached on the amount of funds requested for litigation support. Where consensus cannot be reached, an explanation should be included describing the position of the BIA Project Manager and the federal attorney(s). 

(7) Name and contact information of Federal Indian Water Rights Negotiation Team Chair for all water rights negotiation requests. 

(8) Project purpose and description, including: Summary of past accomplishments, if applicable; list of all outstanding activities yet to be completed or finalized; status of litigation, if applicable; and, status of negotiations, if applicable, including a list of primary participating parties. 

(9) Scope of Work, including project deliverables, method, and timeline to accomplish work. 

(10) Amount requested and budget justification, including a breakdown of labor/equipment costs per project task, a clear articulation of individual task priorities (as funding may not be available to support all requested activities), and total amount requested. 

# Note:

The request should be limited to the amount necessary to accomplish the proposed work in accordance with industry standards and to meet critical project objectives during the fiscal year for which funds are being requested. 

(11) History of funding received during the past 3 years from the Water Rights or Water Resources Programs, including a description of past accomplishments and an explanation of any amount(s) unexpended. 

Funding requests do not need to identify the specific water program from which funds are being requested. The BIA will determine the appropriate program(s) based on the information provided in the requests. 

## Prioritizing Water Program Funding Requests 

The Deputy Director, Office of Trust Services, will make final decisions for the distribution of funding from the Water Rights and Water Resources Programs. In order to receive funding from these programs, all funding requests must be in strict accordance with the directions provided above. All funding requests, including those from Indian tribes, must be submitted by the Regional Water Programs Coordinator to the Office of Trust Services, Division of Natural Resources, Water Programs Branch, on or before September 15 of each year. Therefore, the Regional Water Programs Coordinators must set the deadline by which the Indian tribes in their respective regions must submit their requests to the Regional Office, and the Coordinators must communicate this information to the Indian tribes they service annually. Any additional requests or requests for changes or additions to previously submitted requests forwarded after September 15 of each year must be accompanied by a memorandum from the respective Regional Director providing justification for any post-deadline submissions. 

The BIA will complete the funding allocation decision process for these programs by October 31 of each year, unless Congress has not yet completed the appropriations process for the Interior Department and related agencies. The BIA also cannot distribute funds until Congress completes the appropriations process for the BIA. 

## Water Programs Coordinator 

                    Each Regional Director will identify a Water Programs Coordinator(s). The Coordinator(s) will be responsible for forwarding the instructions set forth in this notice to all Indian tribes and appropriate Bureau field offices serviced by each respective Regional Office. The                           ( print page 60848)                        Coordinator(s) will also be responsible for collecting the requests, reviewing each request to determine that funding is being requested for eligible activities, and determining whether the amount of funds being requested is in accordance with industry standards or is otherwise reasonable. After reviewing each request, the Coordinator(s) and other BIA staff may make suggestions for improvement or corrections as necessary. Once the reviews are completed, the Water Programs Coordinators will prepare a summary of all funding requests for their respective regions, listing the projects in order of priority, and send a copy of the requests and summary to the Office of Trust Services, Water Programs Branch, Mail Stop 4600-MIB, 1849 C Street, NW., Washington, DC 20240, on or before September 15 of each year.                 

## Water Funding Prioritization Team 

The Office of Trust Services' Water Programs Branch staff will assemble all BIA funding requests, including Central Office requests, and prepare a master summary with the original Regional Office delineation of priorities intact. A Water Funding Prioritization Team shall be established, with BIA members being appointed by the Deputy Director, Office of Trust Services, and shall consist of one representative from the Office of Trust Services, three representatives from any of the BIA's Regional Offices, one representative from the Secretary of the Interior's Indian Water Rights Office, and one representative from the Office of the Solicitor, Division of Indian Affairs. The Regional Office Team members will be selected at random and rotated each year so that every Regional Office participates on an equal basis. The Team will be provided a copy of each request and the master summary. The Team will prioritize each request in accordance with the following criteria: 

### Water Rights Program (34420) 

(1) Congressional and Court Mandates: 

Assign 100 points to each request for activities essential for supporting compliance with a Congressional or Court mandate that the BIA must fulfill. No further ranking is necessary. 

(2) Indian Water Rights Litigation/Adjudication with Time Sensitivity: 

Assign 60 to 70 points to each request for activities essential for supporting active Indian water rights litigation/adjudication with court-mandated deadline(s) for which work must commence or continue to meet those deadline(s). 

(3) Indian Water Rights Litigation/Adjudication without Time Sensitivity: 

Assign 50 to 60 points to each request for activities essential for supporting an active Indian water rights litigation/adjudication for which no specific court-mandated deadline is evident. 

(4) Indian Water Rights Negotiations with Time Sensitivity: 

Assign 50 to 60 points to each request for activities essential for supporting active Indian water rights negotiations or settlement implementation for which the activities are required to meet a specific schedule recognized by the Secretary of the Interior's Indian Water Rights Office. 

(5) Indian Water Rights Negotiations without Time Sensitivity: 

Assign 30 to 40 points to each request for activities essential for supporting active Indian water rights negotiations or settlement implementation for which no specific time requirement has been indicated. As with the previous category, these situations typically involve a Secretarial priority and/or have a Federal negotiation team assigned. 

(6) Indian Water Rights Litigation/Adjudication/Negotiation Feasibility: 

Assign 20 to 30 points to each request for activities essential for supporting the development of Indian water rights claims for the purpose of establishing the feasibility of future negotiations, adjudication or litigation but for which no current negotiation or litigation is taking place. 

### Water Resources Program (34020) 

(1) Water Management—Indian Water and Associated Reserved Resources: 

Assign 50 to 60 points to each request for activities essential for supporting water management activities necessary for the use of tribal water resources or to protect against the encroachment on or management of tribal water and associated reserved resources. 

(2) Water Management—Coordination/Cooperation/Consultation/Conservation: 

Assign 30 to 40 points to each request for activities essential for supporting water management activities necessary for intergovernmental cooperation, consultation, and coordination designed to conserve water and associated reserved resources. 

(3) Water Management—Other: 

Assign 20 to 30 points to each request for activities essential for supporting other water management activities not previously listed. 

(4) Water Planning and Pre-Development—Indian Water: 

Assign 30 to 40 points to each request for activities essential for the planning or pre-development of tribal water rights. 

(5) Water Planning and Pre-Development—Other: 

Assign 20 to 30 points to each request for activities essential for the planning or development of multi-jurisdictional waters. 

(6) All Water Program Funding—Cost Effectiveness: 

Assign an additional 1 to 10 points to each request based on the degree of overall cost effectiveness, where the estimated cost of each activity is appropriate for the objectives to be accomplished and the amount requested comports with industry standards and is otherwise reasonable. Examples of cost effectiveness include requests that demonstrate benefits to be gained through leveraging funding from multiple agencies and those that will complete projects more efficiently within the current funding cycle. 

(7) All Water Program/Project Funding—Compliance with Requesting Guidelines: 

Assign an additional 1 to 10 points to each request based on the degree of adherence to the instructions set forth in this notice. 

(8) All Water Program/Project Funding—Efficiency and Accomplishment: 

Assign an additional 1 to 10 points to each request based on the degree of accomplishment in utilizing funds previously provided or anticipated efficiency in utilizing funds in the future. 

## Instructions for Water Funding Prioritization Team 

In assigning points to each funding request, Water Funding Prioritization Team members will consider the degree to which requested funds will support the establishment of title to Indian water. Team members will also take into account any urgency with respect to the need to complete activities or how the activities will promote and support coordination, cooperation, consultation and conservation in water management and planning. A request involving multiple categories of activities should be carefully evaluated. Team members must also take into account the need to support the trust responsibility of the United States. 

                    The Team will compile the scores of each member on a master list and obtain an average score by dividing the total of each member's score for each request by the number of team members. The Team will enter the average score for each request on the master summary and provide the master summary to the Deputy Director, Office of Trust                           ( print page 60849)                        Services, on or before October 15 of each year. Although a single ranking is conducted, the BIA will utilize the scores to make funding decisions for projects supporting both the Water Rights Program and the Water Resources Program. Funding for all requests will be provided from the appropriate program consistent with the intent of Congress.                 

## Distribution Decision Making and Reserved Funds 

                    When the total amount of appropriations for each program is insufficient to fund all requests, the Deputy Director, Office of Trust Services, will determine the appropriate cut-off for funding the requests received and will reserve 3 percent to 5 percent of the total amount from each program to fulfill unforeseen high priority contingencies (                    *e.g.*, court-ordered activities or other emergencies). This determination may include a decision not to fund lower-ranking requests and/or to conduct across the board funding reductions, beginning first, and in magnitude, with water planning and pre-development activities, followed by water management, water rights negotiation, water rights adjudication and finally, and only when absolutely necessary and while maintaining efficiency and effective prosecution of each legal requirement, active water rights litigation support.                 

Authority:This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Principal Deputy Assistant Secretary—Indian Affairs by part 209 of the Departmental Manual. 

Dated: October 3, 2005. 

Michael D. Olsen, 

Acting Principal Deputy Assistant Secretary—Indian Affairs. 

[FR Doc. 05-20919 Filed 10-18-05; 8:45 am] 

BILLING CODE 4310-W7-P