II

106TH CONGRESS

2D SESSION S. 2363

To subject the United States to imposition of fees and costs in proceedings

relating to State water rights adjudications.

IN THE SENATE OF THE UNITED STATES

APRIL 5, 2000

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

to the Committee on Energy and Natural Resources

A BILL

To subject the United States to imposition of fees and costs

in proceedings relating to State water rights adjudications.

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 ‘‘Water Adjudication

5 Fee Fairness Act of 2000’’.

6 SEC. 2. FINDINGS.

7 The Congress finds the following:

8 (1) Generally, water allocation in the western

9 United States is based upon the doctrine of prior ap10 propriation, under which water users’ rights are
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1 quantified under State law. Appropriative rights

2 carry designated priority dates that establish the rel3 ative right of priority to use water from a source.

4 Most States in the West have developed judicial and

5 administrative proceedings, often called general ad6 judications, to quantify and document these relative

7 rights, including the rights to water claimed by the

8 United States Government under either State or

9 Federal law.

10 (2) State general adjudications are typically

11 complicated, expensive civil court and administrative

12 actions that can involve hundreds or even thousands

13 of claimants. Such adjudications give certainty to

14 water rights, provide direction for water administra15 tion, and reduce conflict over water allocation and

16 water usage. Those claiming and establishing rights

17 to water are the primary beneficiaries of State gen18 eral adjudication proceedings.

19 (3) The Congress has recognized the benefits of

20 the State general adjudication system, and by enact21 ment of section 208 of the Department of Justice

22 Appropriation Act, 1953 (43 U.S.C. 666; popularly

23 known as the ‘‘McCarran Amendment’’), required

24 the United States to submit to State court jurisdic-
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1 tion and to file claims in State general adjudication

2 proceedings.

3 (4) Water rights claims by Federal agencies

4 under either State or Federal law are often the larg5 est or most complex claims in State general adju6 dications. However, the United States Supreme

7 Court, in the case United States v. Idaho, 508 U.S.

8 1 (1992), determined that the McCarran Amend9 ment does not require the United States to pay some

10 filing fees simply because they were misconstrued or

11 perceived to be the same as costs taxed against all

12 parties.

13 (5) Since Federal agency water rights claims

14 are among the most difficult to adjudicate, and since

15 the United States is not required to pay some fees

16 and costs paid by non-Federal claimants, the burden

17 of funding adjudication proceedings unfairly shifts

18 to private water users and State taxpayers.

19 (6) The lack of Federal Government funding to

20 support State water rights adjudications in relation

21 to the complexity of the claims involved has pro22 duced significant delays in completion of many State

23 general adjudications. These delays inhibit the abil24 ity of both the States and Federal agencies to pro25 tect private and public property interests. Also, fail-
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1 ure to complete the final adjudication of claims to

2 water restricts the ability of resource managers to

3 determine how much unappropriated water is avail4 able to satisfy environmental and economic develop5 ment demands.

6 SEC. 3. LIABILITY OF UNITED STATES FOR FEES AND

7 COSTS IN WATER USE RIGHTS PROCEEDINGS.

8 (a) IN GENERAL.—In any State administrative or ju9 dicial proceeding for the adjudication or administration of

10 rights to the use of water in which the United States is

11 a party, the United States shall be subject to the imposi12 tion of fees and costs on its claims to water rights under

13 either State or Federal law to the same extent as a private

14 party to the proceeding.

15 (b) APPLICATION.—Subsection (a) shall apply to pro16 ceedings pending on or initiated after the date of enact17 ment of this Act, including with respect to fees and costs

18 imposed in such a proceeding before the date of the enact19 ment of this Act.

20 (c) REPORT TO CONGRESS.—The head of any Fed21 eral agency that files or has pending any water rights

22 claim shall prepare and submit to the Congress, within

23 90 days after the end of each fiscal year, a report that

24 identifies—
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1 (1) each such claim filed by the agency that has

2 not yet been decreed;

3 (2) all fees and costs imposed on the United

4 States for each claim identified under paragraph (1);

5 (3) any portion of such fees and costs that has

6 not been paid; and

7 (4) the source of funds used to pay such fees

8 and costs.

9 (d) FEES AND COSTS DEFINED.—In this section, the

10 term ‘‘fees and costs’’ means any administrative fee, ad11 ministrative cost, claim fee, judicial fee, or judicial cost

12 imposed by a State on a party claiming a right to the

13 use of water under either State or Federal law in a State

14 proceeding referred to in subsection (a).

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