II

Calendar No. 751

106TH CONGRESS

2D SESSION S. 1612

[Report No. 106–373]

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

property to certain irrigation and reclamation districts in the State

of Nebraska.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 22, 1999

Mr. KERREY (for himself and Mr. HAGEL) introduced the following bill; which

was read twice and referred to the Committee on Energy and Natural

Resources

AUGUST 25, 2000

Reported under authority of the order of the Senate of July 26, 2000, by Mr.

MURKOWSKI, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

A BILL

To direct the Secretary of the Interior to convey certain

irrigation project property to certain irrigation and reclamation 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,
2

S 1612 RS

1 SECTION 1. SHORT TITLE.

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

3 Middle Loup Division Facilities Conveyance Act’’.

4 SEC. 2. DEFINITIONS.

5 In this Act:

6 (1) COMMISSIONER.—The term ‘‘Commis7 sioner’’ means the Commissioner of Reclamation.

8 (2) DISTRICT.—The term ‘‘District’’ means—

9 (A) the Farwell Irrigation District, a polit10 ical subdivision of the State of Nebraska;

11 (B) the Sargent Irrigation District, a polit12 ical subdivision of the State of Nebraska; and

13 (C) the Loup Basin Reclamation District,

14 a political subdivision of the State of Nebraska.

15 (3) DISTRICT TRUST.—The term ‘‘District

16 Trust’’ means the Nebraska-Middle Loup River

17 Community Environmental Trust established under

18 section 5(a)(2)(B)(v).

19 (4) GAME AND PARKS COMMISSION TRUST.—

20 The term ‘‘Game and Parks Commission Trust’’

21 means the Nebraska-Middle Loup River Game and

22 Parks Commission Trust established under section

23 5(a)(2)(B)(vi).

24 (5) PROJECT.—The term ‘‘Project’’ means

25 Sherman Reservoir, Milburn Diversion Dam, Arca26 dia Diversion Dam, related canals and other related
3

S 1612 RS

1 lands, water rights, acquired land, distribution and

2 diversion facilities, contracts, personal property, and

3 other associated interests owned by the United

4 States and authorized under the Act of June 17,

5 1902 (32 Stat. 388, chapter 1093), the Act of De6 cember 22, 1944 (commonly known as the ‘‘Flood

7 Control Act of 1944’’) (58 Stat. 887, chapter 665),

8 and the Act of August 3, 1956 (70 Stat. 975, chap9 ter 917).

10 (6) REPAYMENT AND WATER SERVICE CON11 TRACTS.—The term ‘‘Repayment and Water Service

12 Contracts’’ means all repayment and water service

13 contracts between the Commissioner and the District

14 relating to the Project.

15 (7) SECRETARY.—The term ‘‘Secretary’’ means

16 the Secretary of the Interior.

17 (8) TRUST.—The term ‘‘Trust’’ means—

18 (A) the District Trust; and

19 (B) the Game and Parks Commission

20 Trust.

21 SEC. 3. CONVEYANCE OF THE PROJECT.

22 (a) CONVEYANCE.—

23 (1) IN GENERAL.—The Secretary shall convey

24 to the Districts, by quitclaim deed, assignment, or

25 patent, the interest of the United States in the
4

S 1612 RS

1 Project, in consideration of payment to the

2 Secretary—

3 (A) by the Districts, of an amount not to

4 exceed $3,000,000, determined in accordance

5 with the Bureau of Reclamation document enti6 tled ‘‘Framework for Title Transfer’’ and the

7 memorandum of agreement between the Com8 missioner and the Districts under section 5;

9 and

10 (B) by the Western Area Power Adminis11 tration, of $2,000,000.

12 (2) TIMING.—The conveyance under paragraph

13 (1) shall be made concurrently with the making of

14 the payment under paragraph (1)(A), but the pay15 ment under paragraph (1)(B) shall be made from

16 capacity and energy charges at Pick-Sloan Missouri

17 Basin Program firm power rates received in fiscal

18 year 1999 or any subsequent fiscal year in which the

19 amount of power sale revenue received exceeds the

20 amount of interest and operation and maintenance

21 obligations of the Western Area Power Administra22 tion by at least $2,000,000, to the extent of the ex23 cess.

24 (3) SATISFACTION OF OBLIGATIONS AGAINST

25 THE PROJECT.—The payment under paragraph
5

S 1612 RS

1 (1)(A) shall constitute full and complete satisfaction

2 of all obligations against the Project, the Districts,

3 and the Western Area Power Administration existing

4 before the date of the conveyance or thereafter relat5 ing to the Project, including—

6 (A) future obligations for additional drain7 age under section 5(a)(2)(iv);

8 (B) obligations under any contracts en9 tered into between the United States, the Dis10 tricts, and the Western Area Power Administra11 tion or its predecessors; and

12 (C) any obligation that may have been re13 quired by the Act of December 22, 1944 (58

14 Stat. 887, chapter 665) or other related Fed15 eral law.

16 (4) SATISFACTION OF OBLIGATIONS FOR IRRI17 GATION BENEFITS.—The conveyance of the Project

18 and the payment of the consideration under para19 graph (1) shall constitute full satisfaction of any and

20 all obligations of the Districts or of the Pick-Sloan

21 Missouri Basin Program firm power users or the

22 Western Area Power Administration for irrigation

23 benefits of the Project or for any other benefits con24 veyed to the Districts.

25 (b) CONTAMINATED PROPERTY.—
6

S 1612 RS

1 (1) REMEDIAL ACTION.—The Secretary shall

2 convey the Project without regard to whether all

3 necessary remedial action required under section

4 120(h)(3) of the Comprehensive Environmental Re5 sponse, Compensation, and Liability Act of 1980 (42

6 U.S.C. 9620(h)(3)) on any part of the Project has

7 been completed.

8 (2) CONTINUING OBLIGATION TO COMPLETE

9 REMEDIAL ACTION.—Notwithstanding any law to the

10 contrary, the United States shall remain during and

11 subsequent to the conveyance obligated, at the ex12 pense of the United States, to complete any required

13 remedial action.

14 (c) EXTINGUISHMENT OF OBLIGATIONS BETWEEN

15 THE COMMISSIONER AND THE DISTRICTS.—Effective on

16 the date of the conveyance, all obligations between the

17 Commissioner and the Districts relating to the Project

18 and the Repayment and Water Service Contracts are ex19 tinguished.

20 (d) PAYMENT OF NEPA STUDY COSTS.—The Com21 missioner and the Districts shall each pay 50 percent of

22 the costs associated with compliance with the National

23 Environmental Policy Act (42 U.S.C. 4321 et seq.).
7

S 1612 RS

1 (e) CREDITING OF CERTAIN ITEMS TOWARD PAY2 MENT UNDER SUBSECTION (a)(1)(A).—There shall be

3 credited toward the payment under subsection (a)(1)(A)—

4 (1) the amount of any payment made by the

5 Districts before the date of the conveyance for com6 pliance with the National Environmental Policy Act

7 (42 U.S.C. 4321 et seq.) in excess of 50 percent of

8 the cost of compliance;

9 (2) the amount of any payments made by the

10 Districts under contracts with the Commissioner be11 tween January 1, 1999, and the date of the convey12 ance;

13 (3) the present value of future operation and

14 maintenance costs required for historic preservation

15 on Project land at Sherman Reservoir; and

16 (4) any other amount specified in the memo17 randum of agreement between the Commissioner

18 and the Districts under section 5.

19 (f) ADDITIONAL DRAINAGE.—

20 (1) IN GENERAL.—Of the $2,000,000 paid by

21 the Western Area Power Administration under sub22 section (a), $500,000—

23 (A) shall be deposited in the fund referred

24 to in section 5(a)(3); and
8

S 1612 RS

1 (B) shall be available for additional drain2 age projects.

3 (2) NONREIMBURSABILITY.—The amount de4 posited under paragraph (1) shall be nonreimburs5 able and nonreturnable.

6 (3) AUTHORIZATION OF APPROPRIATIONS.—

7 There is authorized to be appropriated not more

8 than $500,000 for the additional drainage projects.

9 SEC. 4. LIABILITY.

10 Effective on the date of conveyance of the Project,

11 the United States shall not be liable for claims, costs,

12 damages, or judgments of any kind arising out of any act,

13 omission, or occurrence related to the Project except for

14 such claims, costs, or damages arising from acts of neg15 ligence committed by the United States or by employees,

16 agents, or contractors of the United States before the date

17 of conveyance for which the United States is liable under

18 chapter 171 of title 28, United States Code (commonly

19 known as the ‘‘Federal Tort Claims Act’’).

20 SEC. 5. COMPLETION OF CONVEYANCE.

21 (a) IN GENERAL.—The Secretary shall not make the

22 conveyance under section 3 until the following events have

23 been completed:

24 (1) Compliance with the National Environ25 mental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
9

S 1612 RS

1 (2) Execution of—

2 (A) memoranda of agreement between the

3 Commissioner and the Districts describing the

4 purchase price and other terms and conditions

5 of the conveyance consistent with this Act; and

6 (B) an agreement by the Districts to man7 age the Project in a manner substantially simi8 lar to the manner in which the Project was

9 managed before the conveyance and in accord10 ance with applicable Federal and State laws,

11 including—

12 (i) preserving on a permanent basis

13 the right of the State of Nebraska Games

14 and Parks Commission to develop, provide,

15 and protect the public interest in Project

16 fish, wildlife, and recreation facilities re17 lated to the Projects;

18 (ii) providing for protection of cultural

19 resources at the Project after the convey20 ance consistent with applicable law that

21 authorizes the Districts or others with re22 sponsibility to protect significant historic

23 features in situ or otherwise;

24 (iii) providing that the Districts shall

25 annually make payments to local govern-
10

S 1612 RS

1 ments in the amounts in which the Com2 missioner made payment to the local gov3 ernments under chapter 69 of title 31,

4 United states Code (commonly known as

5 ‘‘payments in lieu of taxes’’) for fiscal year

6 1999;

7 (iv) providing for—

8 (I) a plan for additional drainage

9 work in the Middle Loup Valley as

10 specified in the memoranda of agree11 ment under paragraph (1); and

12 (II) the funding of the additional

13 drainage work;

14 (v) providing for the establishment by

15 the Districts of an organization to be

16 known as the ‘‘Nebraska-Middle Loup

17 River Community Environmental Trust’’

18 and to be organized under State law to

19 preserve, protect, enhance, and manage the

20 Project by—

21 (I) stabilizing surface and ground

22 water supplies;

23 (II) conserving water and land

24 resources;
11

S 1612 RS

1 (III) carrying out essential drain2 age projects using funds deposited

3 under section 3(f); and

4 (IV) expanding knowledge of

5 water and land resources for enhanc6 ing Project operations and improving

7 the service of Project purposes; and

8 (vi) providing for the establishment by

9 the Nebraska Game and Parks Commis10 sion of an organization to be known as the

11 ‘‘Nebraska-Middle Loup River Game and

12 Parks Trust’’ and to be organized under

13 State law to—

14 (I) improve and enhance fisheries

15 and recreational opportunities; and

16 (II) expand knowledge of water

17 and land resources for enhancing

18 Project operations and improving the

19 service of Project purposes.

20 (3) DEPOSITS IN THE DISTRICT TRUST.—On

21 receipt of the payments under section 3(a)(1), the

22 Secretary shall deposit in the District trust—

23 (A) $2,000,000 of the amount received

24 under section 3(a)(1); and
12

S 1612 RS

1 (B) the entire amount received under sec2 tion 3(a)(2).

3 (4) NO TAX; NO EFFECT ON RATES.—No pay4 ment under this Act—

5 (A) shall be subject to Federal or State in6 come tax; or

7 (B) shall affect Pick-Sloan Missouri Basin

8 Program firm power rates in any way.

9 (5) USE OF FUNDS.—

10 (A) FUNDS DEPOSITED UNDER SECTION

11 3(F).—The Trusts shall by their charters pro12 hibit the use of any funds deposited under sec13 tion 3(f) for routine operation and maintenance

14 work by the Districts, the Game and Parks

15 Commission, or any of the participating agen16 cies of the Trusts.

17 (B) OTHER FUNDS.—Funds received by a

18 Trust from a District or any other source may

19 be used for any purpose.

20 (6) ASSISTANCE FOR DRAINAGE WORK.—The

21 Game and Parks Commission Trust shall provide for

22 direct priority assistance to the Districts for drain23 age work in the Middle Loup River Valley under

24 conditions requiring greater trust fund investments

25 than are available from the Trust.
13

S 1612 RS

1 (b) REPORT.—If the conveyance under section 3 is

2 not substantially completed on or before December 31,

3 2000, the Secretary and the Districts shall promptly sub4 mit to the Committee on Resources of the House of Rep5 resentatives and the Committee on Energy and Natural

6 Resources of the Senate a report on the status of the con7 veyance describing the matters remaining to be resolved

8 before completion of the conveyance and stating the antici9 pated date for the completion of the conveyance.

10 (c) FUTURE BENEFITS.—

11 (1) IN GENERAL.—Effective on the date of the

12 conveyance under section 3, the Districts shall not

13 be entitled to receive any further benefits under rec14 lamation law not otherwise available attributable to

15 its status as a reclamation project under the Act of

16 June 17, 1902 (32 Stat. 388, chapter 1093), and

17 Acts supplemental to and amendatory of that Act

18 (43 U.S.C. 371 et seq.).

19 (2) NO FLOOD CONTROL COMPONENT.—After

20 the date of the conveyance under subsection 3, the

21 Project shall no longer have a flood control compo22 nent.

23 SECTION 1. SHORT TITLE.

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

25 Middle Loup Division Facilities Conveyance Act’’.
14

S 1612 RS

1 SEC. 2. DEFINITIONS.

2 In this Act:

3 (1) COMMISSIONER.—The term ‘‘Commissioner’’

4 means the Commissioner of Reclamation.

5 (2) DISTRICT.—The term ‘‘District’’ means—

6 (A) the Farwell Irrigation District, a polit7 ical subdivision of the State of Nebraska;

8 (B) the Sargent Irrigation District, a polit9 ical subdivision of the State of Nebraska; and

10 (C) the Loup Basin Reclamation District, a

11 political subdivision of the State of Nebraska.

12 (3) PROJECT.—The term ‘‘Project’’ means Sher13 man Reservoir, Milburn Diversion Dam, Arcadia Di14 version Dam, related canals and other related lands,

15 water rights, acquired land, distribution and diver16 sion facilities, contracts, personal property, and other

17 associated interests owned by the United States and

18 authorized under the Act of June 17, 1902 (32 Stat.

19 388, chapter 1093), the Act of December 22, 1944

20 (commonly known as the ‘‘Flood Control Act of

21 1944’’) (58 Stat. 887, chapter 665), and the Act of

22 August 3, 1956 (70 Stat. 975, chapter 917).

23 (4) REPAYMENT AND WATER SERVICE CON24 TRACTS.—The term ‘‘Repayment and Water Service

25 Contracts’’ means all repayment and water service
15

S 1612 RS

1 contracts between the Commissioner and the District

2 relating to the Project.

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

4 the Secretary of the Interior.

5 SEC. 3. CONVEYANCE OF THE PROJECT.

6 (a) CONVEYANCE.—

7 (1) IN GENERAL.—As soon as practicable after

8 the date of enactment of this Act and in accordance

9 with all applicable laws, the Secretary shall convey to

10 the Districts, by quitclaim deed, assignment, or pat11 ent, the interest of the United States in the Project,

12 in consideration of payment to the Secretary—

13 (A) by the Districts of $2,847,360, which—

14 (i) has been determined in accordance

15 with the Bureau of Reclamation document

16 entitled ‘‘Framework for Title Transfer’’

17 and the memorandum of understanding be18 tween the Commissioner and the Districts

19 under section 5; and

20 (ii) includes all credits and adjust21 ments provided for in that document and

22 memorandum of understanding; and

23 (B) by the Western Area Power Administra24 tion, of $2,600,000.
16

S 1612 RS

1 (2) CANCELLATION OF OBLIGATION.—The obliga2 tion to make payments due and owing from the Dis3 tricts to the United States under the repayment and

4 water service contracts are canceled for the year 2000

5 and thereafter.

6 (3) TIMING.—The conveyance under paragraph

7 (1) shall be made concurrently with the making of the

8 payment under paragraph (1)(A), but the payment

9 under paragraph (1)(B) shall be made from capacity

10 and energy charges at Pick-Sloan Missouri Basin

11 Program firm power rates received in fiscal year

12 2000 or the first subsequent fiscal year in which the

13 amount of power sale revenue received exceeds the

14 amount of interest and operation and maintenance

15 obligations of the Western Area Power Administration

16 by at least $2,600,000, to the extent of the excess.

17 (4) SATISFACTION OF OBLIGATIONS AGAINST THE

18 PROJECT.—The payment under paragraph (1)(A)

19 shall constitute full and complete satisfaction of all

20 obligations of the Western Area Power Administration

21 against the Project, the United States, and the Dis22 tricts existing before the date of the conveyance or

23 thereafter relating to the Project, including—

24 (A) future obligations for additional drain25 age required in the project;
17

S 1612 RS

1 (B) obligations under any contracts entered

2 into between the United States, the Districts, and

3 the Western Area Power Administration or its

4 predecessors; and

5 (C) any obligation that may have been re6 quired by the Act of December 22, 1944 (58 Stat.

7 887, chapter 665) or other related Federal law.

8 (5) SATISFACTION OF OBLIGATIONS FOR IRRIGA9 TION BENEFITS.—The conveyance of the Project and

10 the payment of the consideration under paragraph (1)

11 shall constitute full satisfaction of any and all obliga12 tions of the Districts or of the Pick-Sloan Missouri

13 Basin Program firm power users of the Western Area

14 Power Administration for irrigation benefits of the

15 Project or for any other benefits conveyed to the Dis16 tricts.

17 (b) CONTAMINATED PROPERTY.—The Secretary shall

18 convey the Project without regard to whether all necessary

19 remedial action required under section 120(h)(3) of the

20 Comprehensive Environmental Response, Compensation,

21 and Liability Act of 1980 (42 U.S.C. 9620(h)(3)) on any

22 part of the Project has been completed.

23 (c) EXTINGUISHMENT OF OBLIGATIONS BETWEEN THE

24 COMMISSIONER AND THE DISTRICTS.—Effective on the date

25 of the conveyance, all obligations not canceled under the
18

S 1612 RS

1 subsection (a)(2) between the Secretary and the Districts

2 relating to the Project and the Repayment and Water Serv3 ice Contracts are extinguished.

4 SEC. 4. LIABILITY.

5 Effective on the date of conveyance of the Project, the

6 United States shall not be liable for claims, costs, damages,

7 or judgments of any kind arising out of any act, omission,

8 or occurrence related to the Project except for such claims,

9 costs, or damages arising from acts of negligence committed

10 by the United States or by employees or agents of the United

11 States before the date of conveyance for which the United

12 States is liable under chapter 171 of title 28, United States

13 Code (commonly known as the ‘‘Federal Tort Claims Act’’).

14 SEC. 5. COMPLETION OF CONVEYANCE.

15 (a) IN GENERAL.—The Secretary shall not make the

16 conveyance under section 3 until the following events have

17 been completed:

18 (1) Compliance with the National Environ19 mental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

20 (2) Execution of a memorandum of under21 standing between the Commissioner and the Districts

22 describing the purchase price and other terms and

23 conditions of the conveyance consistent with this Act.

24 (b) DISTRICTION MANAGEMENT OF PROJECT.—The

25 Districts shall manage the Project in a manner substan-
19

S 1612 RS

1 tially similar to the manner in which the Project was man2 aged before the conveyance and in accordance with applica3 ble Federal and State laws, including—

4 (1) entering into an agreement with Nebraska

5 Games and Parks Commission that preserves on a

6 permanent basis the right of the Commission to de7 velop, provide, and protect the public interest in

8 Project fish, wildlife, and recreation facilities related

9 to the Projects; and

10 (2) entering into an agreement with the Univer11 sity of Nebraska Lincoln-State Museum that provides

12 for protection of cultural resources at the Project after

13 the conveyance consistent with applicable law that

14 authorizes the Districts or others with responsibility

15 to protect significant historic features in situ or oth16 erwise; and

17 (3) providing that the Districts shall annually

18 make payments to local governments in the amounts

19 in which the Commissioner made payment to the

20 local governments under chapter 69 of title 31, United

21 states Code (commonly known as ‘‘payments in lieu

22 of taxes’’) for fiscal year 1999;

23 (c) CREDITING TO RECLAMATION FUND.—All funds

24 paid to the Secretary under this Act shall be credited to

25 the Reclamation Fund in the Treasury of the United States
20

S 1612 RS

1 toward repayment of capital costs of the project in an

2 amount equal to the associated undiscounted obligation.

3 (d) NO EFFECT ON RATES.—No payment under this

4 Act shall affect Pick-Sloan Missouri Basin Program firm

5 power rates in any way.

6 (e) REPORT.—If the conveyance under section 3 is not

7 substantially completed on or before December 31, 2000, the

8 Secretary and the Districts shall promptly submit to the

9 Committee on Resources of the House of Representatives

10 and the Committee on Energy and Natural Resources of

11 the Senate a report on the status of the conveyance describ12 ing the matters remaining to be resolved before completion

13 of the conveyance and stating the anticipated date for the

14 completion of the conveyance.

15 (f) FUTURE BENEFITS.—

16 (1) IN GENERAL.—Effective on the date of the

17 conveyance under section 3, the Middle Loup Division

18 of the Missouri River Basin Project—

19 (A) shall not be treated as a Federal rec20 lamation project; and

21 (B) shall not be subject to the reclamation

22 laws or entitled to receive any reclamation bene23 fits under those laws.
21

S 1612 RS

1 (2) NO FLOOD CONTROL COMPONENT.—After the

2 date of the conveyance under subsection 3, the Project

3 shall no longer have a flood control component.
Calendar No. 751

106TH CONGRESS

2D SESSION S. 1612

[Report No. 106–373]

A BILL

To direct the Secretary of the Interior to convey

certain irrigation project property to certain irrigation and reclamation districts in the State ofNebraska.

AUGUST 25, 2000

Reported with an amendment