II

106TH CONGRESS

1ST SESSION S. 1612

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

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,

3 SECTION 1. SHORT TITLE.

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

5 Middle Loup Division Facilities Conveyance Act’’.

6 SEC. 2. DEFINITIONS.

7 In this Act:

8 (1) COMMISSIONER.—The term ‘‘Commis9 sioner’’ means the Commissioner of Reclamation.
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1 (2) DISTRICT.—The term ‘‘District’’ means—

2 (A) the Farwell Irrigation District, a polit3 ical subdivision of the State of Nebraska;

4 (B) the Sargent Irrigation District, a polit5 ical subdivision of the State of Nebraska; and

6 (C) the Loup Basin Reclamation District,

7 a political subdivision of the State of Nebraska.

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

9 Trust’’ means the Nebraska-Middle Loup River

10 Community Environmental Trust established under

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

12 (4) GAME AND PARKS COMMISSION TRUST.—

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

14 means the Nebraska-Middle Loup River Game and

15 Parks Commission Trust established under section

16 5(a)(2)(B)(vi).

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

18 Sherman Reservoir, Milburn Diversion Dam, Arca19 dia Diversion Dam, related canals and other related

20 lands, water rights, acquired land, distribution and

21 diversion facilities, contracts, personal property, and

22 other associated interests owned by the United

23 States and authorized under the Act of June 17,

24 1902 (32 Stat. 388, chapter 1093), the Act of De25 cember 22, 1944 (commonly known as the ‘‘Flood
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1 Control Act of 1944’’) (58 Stat. 887, chapter 665),

2 and the Act of August 3, 1956 (70 Stat. 975, chap3 ter 917).

4 (6) REPAYMENT AND WATER SERVICE CON5 TRACTS.—The term ‘‘Repayment and Water Service

6 Contracts’’ means all repayment and water service

7 contracts between the Commissioner and the District

8 relating to the Project.

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

10 the Secretary of the Interior.

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

12 (A) the District Trust; and

13 (B) the Game and Parks Commission

14 Trust.

15 SEC. 3. CONVEYANCE OF THE PROJECT.

16 (a) CONVEYANCE.—

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

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

19 patent, the interest of the United States in the

20 Project, in consideration of payment to the

21 Secretary—

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

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

24 with the Bureau of Reclamation document enti25 tled ‘‘Framework for Title Transfer’’ and the
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1 memorandum of agreement between the Com2 missioner and the Districts under section 5;

3 and

4 (B) by the Western Area Power Adminis5 tration, of $2,000,000.

6 (2) TIMING.—The conveyance under paragraph

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

8 the payment under paragraph (1)(A), but the pay9 ment under paragraph (1)(B) shall be made from

10 capacity and energy charges at Pick-Sloan Missouri

11 Basin Program firm power rates received in fiscal

12 year 1999 or any 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 Administra16 tion by at least $2,000,000, to the extent of the ex17 cess.

18 (3) SATISFACTION OF OBLIGATIONS AGAINST

19 THE PROJECT.—The payment under paragraph

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

21 of all obligations against the Project, the Districts,

22 and the Western Area Power Administration existing

23 before the date of the conveyance or thereafter relat24 ing to the Project, including—
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1 (A) future obligations for additional drain2 age under section 5(a)(2)(iv);

3 (B) obligations under any contracts en4 tered into between the United States, the Dis5 tricts, and the Western Area Power Administra6 tion or its predecessors; and

7 (C) any obligation that may have been re8 quired by the Act of December 22, 1944 (58

9 Stat. 887, chapter 665) or other related Fed10 eral law.

11 (4) SATISFACTION OF OBLIGATIONS FOR IRRI12 GATION BENEFITS.—The conveyance of the Project

13 and the payment of the consideration under para14 graph (1) shall constitute full satisfaction of any and

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

16 Missouri Basin Program firm power users or the

17 Western Area Power Administration for irrigation

18 benefits of the Project or for any other benefits con19 veyed to the Districts.

20 (b) CONTAMINATED PROPERTY.—

21 (1) REMEDIAL ACTION.—The Secretary shall

22 convey the Project without regard to whether all

23 necessary remedial action required under section

24 120(h)(3) of the Comprehensive Environmental Re25 sponse, Compensation, and Liability Act of 1980 (42
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1 U.S.C. 9620(h)(3)) on any part of the Project has

2 been completed.

3 (2) CONTINUING OBLIGATION TO COMPLETE

4 REMEDIAL ACTION.—Notwithstanding any law to the

5 contrary, the United States shall remain during and

6 subsequent to the conveyance obligated, at the ex7 pense of the United States, to complete any required

8 remedial action.

9 (c) EXTINGUISHMENT OF OBLIGATIONS BETWEEN

10 THE COMMISSIONER AND THE DISTRICTS.—Effective on

11 the date of the conveyance, all obligations between the

12 Commissioner and the Districts relating to the Project

13 and the Repayment and Water Service Contracts are ex14 tinguished.

15 (d) PAYMENT OF NEPA STUDY COSTS.—The Com16 missioner and the Districts shall each pay 50 percent of

17 the costs associated with compliance with the National

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

19 (e) CREDITING OF CERTAIN ITEMS TOWARD PAY20 MENT UNDER SUBSECTION (a)(1)(A).—There shall be

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

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

23 Districts before the date of the conveyance for com24 pliance with the National Environmental Policy Act
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1 (42 U.S.C. 4321 et seq.) in excess of 50 percent of

2 the cost of compliance;

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

4 Districts under contracts with the Commissioner be5 tween January 1, 1999, and the date of the convey6 ance;

7 (3) the present value of future operation and

8 maintenance costs required for historic preservation

9 on Project land at Sherman Reservoir; and

10 (4) any other amount specified in the memo11 randum of agreement between the Commissioner

12 and the Districts under section 5.

13 (f) ADDITIONAL DRAINAGE.—

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

15 the Western Area Power Administration under sub16 section (a), $500,000—

17 (A) shall be deposited in the fund referred

18 to in section 5(a)(3); and

19 (B) shall be available for additional drain20 age projects.

21 (2) NONREIMBURSABILITY.—The amount de22 posited under paragraph (1) shall be nonreimburs23 able and nonreturnable.
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1 (3) AUTHORIZATION OF APPROPRIATIONS.—

2 There is authorized to be appropriated not more

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

4 SEC. 4. LIABILITY.

5 Effective on the date of conveyance of the Project,

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

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

8 omission, or occurrence related to the Project except for

9 such claims, costs, or damages arising from acts of neg10 ligence committed by the United States or by employees,

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

12 of conveyance for which the United States is liable under

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

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

15 SEC. 5. COMPLETION OF CONVEYANCE.

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

17 conveyance under section 3 until the following events have

18 been completed:

19 (1) Compliance with the National Environ20 mental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

21 (2) Execution of—

22 (A) memoranda of agreement between the

23 Commissioner and the Districts describing the

24 purchase price and other terms and conditions

25 of the conveyance consistent with this Act; and
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1 (B) an agreement by the Districts to man2 age the Project in a manner substantially simi3 lar to the manner in which the Project was

4 managed before the conveyance and in accord5 ance with applicable Federal and State laws,

6 including—

7 (i) preserving on a permanent basis

8 the right of the State of Nebraska Games

9 and Parks Commission to develop, provide,

10 and protect the public interest in Project

11 fish, wildlife, and recreation facilities re12 lated to the Projects;

13 (ii) providing for protection of cultural

14 resources at the Project after the convey15 ance consistent with applicable law that

16 authorizes the Districts or others with re17 sponsibility to protect significant historic

18 features in situ or otherwise;

19 (iii) providing that the Districts shall

20 annually make payments to local govern21 ments in the amounts in which the Com22 missioner made payment to the local gov23 ernments under chapter 69 of title 31,

24 United states Code (commonly known as
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1 ‘‘payments in lieu of taxes’’) for fiscal year

2 1999;

3 (iv) providing for—

4 (I) a plan for additional drainage

5 work in the Middle Loup Valley as

6 specified in the memoranda of agree7 ment under paragraph (1); and

8 (II) the funding of the additional

9 drainage work;

10 (v) providing for the establishment by

11 the Districts of an organization to be

12 known as the ‘‘Nebraska-Middle Loup

13 River Community Environmental Trust’’

14 and to be organized under State law to

15 preserve, protect, enhance, and manage the

16 Project by—

17 (I) stabilizing surface and ground

18 water supplies;

19 (II) conserving water and land

20 resources;

21 (III) carrying out essential drain22 age projects using funds deposited

23 under section 3(f); and

24 (IV) expanding knowledge of

25 water and land resources for enhanc-
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1 ing Project operations and improving

2 the service of Project purposes; and

3 (vi) providing for the establishment by

4 the Nebraska Game and Parks Commis5 sion of an organization to be known as the

6 ‘‘Nebraska-Middle Loup River Game and

7 Parks Trust’’ and to be organized under

8 State law to—

9 (I) improve and enhance fisheries

10 and recreational opportunities; and

11 (II) expand knowledge of water

12 and land resources for enhancing

13 Project operations and improving the

14 service of Project purposes.

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

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

17 Secretary shall deposit in the District trust—

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

19 under section 3(a)(1); and

20 (B) the entire amount received under sec21 tion 3(a)(2).

22 (4) NO TAX; NO EFFECT ON RATES.—No pay23 ment under this Act—

24 (A) shall be subject to Federal or State in25 come tax; or
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1 (B) shall affect Pick-Sloan Missouri Basin

2 Program firm power rates in any way.

3 (5) USE OF FUNDS.—

4 (A) FUNDS DEPOSITED UNDER SECTION

5 3(F).—The Trusts shall by their charters pro6 hibit the use of any funds deposited under sec7 tion 3(f) for routine operation and maintenance

8 work by the Districts, the Game and Parks

9 Commission, or any of the participating agen10 cies of the Trusts.

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

12 Trust from a District or any other source may

13 be used for any purpose.

14 (6) ASSISTANCE FOR DRAINAGE WORK.—The

15 Game and Parks Commission Trust shall provide for

16 direct priority assistance to the Districts for drain17 age work in the Middle Loup River Valley under

18 conditions requiring greater trust fund investments

19 than are available from the Trust.

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

21 not substantially completed on or before December 31,

22 2000, the Secretary and the Districts shall promptly sub23 mit to the Committee on Resources of the House of Rep24 resentatives and the Committee on Energy and Natural

25 Resources of the Senate a report on the status of the con-
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1 veyance describing the matters remaining to be resolved

2 before completion of the conveyance and stating the antici3 pated date for the completion of the conveyance.

4 (c) FUTURE BENEFITS.—

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

6 conveyance under section 3, the Districts shall not

7 be entitled to receive any further benefits under rec8 lamation law not otherwise available attributable to

9 its status as a reclamation project under the Act of

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

11 Acts supplemental to and amendatory of that Act

12 (43 U.S.C. 371 et seq.).

13 (2) NO FLOOD CONTROL COMPONENT.—After

14 the date of the conveyance under subsection 3, the

15 Project shall no longer have a flood control compo16 nent.

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