[Senate Report 110-506]
[From the U.S. Government Publishing Office]
Calendar No. 1090
110th Congress Report
SENATE
2d Session 110-506
======================================================================
A BILL TO ENHANCE AND PROVIDE TO THE OGLALA SIOUX TRIBE AND ANGOSTURA
IRRIGATION PROJECT CERTAIN BENEFITS TO THE PICK-SLOAN MISSOURI RIVER
BASIN PROGRAM
_______
September 25 (legislative day, September 17), 2008.--Ordered to be
printed
_______
Mr. Dorgan, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 2489]
The Committee on Indian Affairs to which was referred the
bill (S. 2489) to enhance and provide to the Oglala Sioux Tribe
and Angostura Irrigation Project certain benefits to the Pick-
Sloan Missouri River basin program, having considered the same,
reports favorably thereon without amendment and recommends that
the bill do pass.
PURPOSE
The purpose of S. 2489, the Oglala Sioux Tribe Angostura
Irrigation Project Modernization and Development Act, is to
provide funds for the modernization and development of the
Angostura Unit of the Pick-Sloan Missouri River basin program
in the State of South Dakota and to establish a trust fund
benefitting the Oglala Sioux Tribe of the Pine Ridge Indian
Reservation.
BACKGROUND
The Angostura Unit is an irrigation project operated by the
Department of the Interior's Bureau of Reclamation and is
located on the Cheyenne River in southwestern South Dakota.
Part of the Pick-Sloan Missouri River Basin Project authorized
under the Flood Control Act of 1944, 33 U.S.C. Sec. 701-1 et
seq., the Unit includes the 193-foot Angostura Dam, which
impounds up to 130,000 acre-feet (AF) of water in the Angostura
Reservoir, and associated irrigation works. This reservoir,
with a surface area of 4,612 acres, provides water for
irrigation of up to 12,218 acres of farmland in the Angostura
Irrigation District through a 30-mile main canal, 39 miles of
lateral canals, and 21 miles of drains serving individual
farms. Up to 48,000 AF of water are diverted annually for
irrigation purposes. Alfalfa and corn are the principal crops,
along with wheat, barley, oats, pasture, and forage.
Construction of the Angostura Dam began in 1946 and was
completed in 1949. The first delivery of irrigation water was
made in 1953. The Bureau of Reclamation estimates that its
operation provides $7.1 million of national economic
development benefits annually in recreation on the reservoir
and an additional $3.41 million in agriculture.
The Angostura Unit is located about twenty miles upstream
of the Pine Ridge Indian Reservation, home of the Oglala Sioux
Tribe. Notwithstanding the economic benefits provided by the
Angostura Unit to the people of southwestern South Dakota, the
operation of the Unit provides no economic development benefit
to the Oglala Sioux Tribe, which experiencesextremely high
rates of unemployment and poverty.\1\ Additionally, the operation of
the Angostura Unit has an adverse impact on water quality and on fish
and wildlife resources within the Oglala Sioux Tribe's Reservation.\2\
---------------------------------------------------------------------------
\1\Testimony of Oglala Sioux Tribal Councilwoman Valerie Janis,
Senate Committee on Indian Affairs, June 16, 2004, p. 22.
\2\Testimony of Oglala Sioux Tribal President John Yellowbird
Steele, Senate Committee on Indian Affairs, June 16, 2004, p. 20.
---------------------------------------------------------------------------
A 40-year water service contract between the Bureau of
Reclamation and the Angostura Irrigation District expired in
1996. The Final Environmental Impact Statement, Angostura Unit
Contract Negotiation and Water Management (August 2002) (Final
EIS) prepared by the Bureau of Reclamation in connection with
the proposed renewal of that water service contract identified
four alternatives: (1) The No Action Alternative, continuing
essentially unchanged the expiring water service contract and
the management regime of water in the reservoir; (2) the
Reestablishment of Natural Flows Below the Dam Alternative,
reestablishing natural flows in the Cheyenne River downstream
of the dam to the extent possible; (3) the Improved
Efficiencies Alternative, instituting measures to save
irrigation water and a public process to determine the use of
the saved water, and (4) the Reservoir Recreation and Fisheries
Alternative, giving priority to recreational use and fisheries
at the reservoir. The Final EIS identified the Improved
Efficiencies Alternative as the Preferred Alternative.
The Improved Efficiencies Alternative would increase both
efficiency of the Angostura Irrigation District's water
delivery system and on-farm efficiencies.\3\ The measures
proposed in the Improved Efficiencies Alternative would include
the lining of canals and laterals, putting laterals into pipes,
improving water measuring systems, leveling fields, irrigating
by gated pipe or sprinkler, installing automated turnouts,
providing education on irrigation practices, and instituting
Best Management Practices. The water saved by these proposed
increases in efficiency could be used for recreation,
fisheries, downstream flows, or other uses. The Improved
Efficiencies Alternative would save an estimated 1,870-3,200 AF
of water by improving delivery system efficiencies by
approximately 5% and another 4,320-6,160 AF by increasing on-
farm efficiencies by approximately 10%.
---------------------------------------------------------------------------
\3\Id. at p. 23.
---------------------------------------------------------------------------
Section 4 of S. 2489 authorizes the appropriation of
$4,660,000 to carry out the modernization and improvement of
the Angostura Unit and associated facilities as set forth in
the Improved Efficiencies Alternative in the Final EIS, with
the funding to remain available until expended. It also
provides that these activities are to be carried out on a non-
reimbursable basis. Finally, section 4 directs the Secretary of
the Interior to provide for the delivery of the water saved as
a result of the proposed increased efficiencies to be used for
fish and wildlife purposes and environmental restoration on the
Pine Ridge Indian Reservation.
Section 5 of S. 2489 establishes the Oglala Sioux Tribal
Development Trust Fund in the Treasury of the United States and
provides that income from the Fund shall be transferred to the
Oglala Sioux Tribe and expended pursuant to a Development Plan
to be developed by the Tribe in consultation with the Secretary
of the Interior and the Secretary of Health and Human Services
for the purposes of economic development, infrastructure
development, the educational, health, recreational, and social
welfare objectives of the Tribe and its members, or any
combination of these activities. Section 5 provides that, not
later than the first day of the 11th fiscal year that begins
after the date of its enactment, the Secretary of the Treasury
shall deposit the sum of $92,500,000 from the General Fund of
the Treasury into the Fund. Section 5 also provides that
nothing in S. 2489 shall be interpreted or construed to affect
any right or claim of the Oglala Sioux Tribe, under the Treaty
of Fort Laramie of September 17, 1851, the Treaty of Fort
Laramie of April 29, 1868, or under the principles of the
Winters Doctrine. Finally, section 5 provides that no funds
distributed to the Tribe pursuant to this act may be
distributed to any individual member of the tribe on a per
capita basis.
LEGISLATIVE HISTORY
S. 2489 was introduced by Senator Johnson on December 14,
2007, with Senator Thune as an original cosponsor, and was
referred to the Committee on Indian Affairs. The Committee
heard testimony on the issues addressed by S. 2489 in an
oversight hearing on November 1, 2007.
SECTION-BY-SECTION ANALYSIS
Sec. 1. Short title
Section 1 states that this Act may be cited as the ``Oglala
Sioux Tribe Angostura Irrigation Project Modernization and
Development Act.''
Sec. 2. Findings
Section 2 states the findings of Congress that: (1)
Congress approved the Pick-Sloan Missouri River Basin Program
with the December 22, 1944, enactment of the Flood Control Act
of 1944, codified at 33 U.S.C. Sec. 701-1 et seq., to promote
the economic development of the United States, to provide for
irrigation in regions north of Sioux City, Iowa, to protect
urban and rural areas from floods of the Missouri River, and
for other purposes; (2) the Angostura Unit is a component of
the Pick-Sloan Program and provides for irrigation of 12,218
acres of productive farm land in South Dakota, as well as
substantial recreation and fish and wildlife benefits; (3) the
Commissioner of the Bureau of Reclamation has determined that
the national economic development benefits of irrigation at the
Angostura Unit total approximately $3,410,000 annually and the
national economic development benefits of recreation at
Angostura Reservoir total approximately $7,100,000 annually;
(4) the Angostura Unit impounds the Cheyenne River twenty miles
upstream of the Pine Ridge Indian Reservation in South Dakota;
(5) the Reservation experiences extremely high rates of
unemployment and poverty; (6) there is a need for economic
development on the Reservation; (7) the national economic
development benefits of the Angostura Unit do not extend to the
Reservation; (8) the Angostura Unit may negatively affect water
quality and riparian vegetation in the Cheyenne River on the
Reservation; (9) modernization of the irrigation facilities at
the Angostura Unit would enhance the national economic
development benefits of the Angostura Unit and would result in
improved water efficiency and environmental restoration
benefits on the Reservation; and (10) the establishmentof a
trust fund for the Oglala Sioux Tribe would produce economic
development benefits for the Reservation comparable to the benefits
produced at the Angostura Unit and would provide resources necessary
for the restoration of the Cheyenne River corridor on the Reservation.
Sec. 3. Definitions
Section 3 provides definitions for the terms ``Angostura
Unit,'' ``Fund,'' ``Pick-Sloan Program,'' ``Plan,''
``Reservation,'' ``Secretary,'' ``Tribal Council,'' and
``Tribe.''
Sec. 4. Modernizations
Section 4(a)--Modernization of facilities at Angostura Unit
Section 4(a) directs the Secretary to conduct modernization
and improvement of the facilities of the Angostura Unit as
described in the report entitled ``Final Environmental Impact
Statement, Angostura Unit Contract Negotiation and Water
Management (August 2002).'' The cost of this modernization and
improvement is to be carried out on a non-reimbursable basis.
Section 4(b)--Delivery of water to Pine Ridge Indian
Reservation
Section 4(b) states that the Secretary shall provide for
the delivery of the water saved through the modernization and
improvement of the facilities of the Angostura Unit as an
instream flow of the Cheyenne River to be used for fish and
wildlife purposes and environmental restoration on the
Reservation.
Section 4(c)--Authorization of appropriations
Section 4(c) authorizes the appropriation of $4,660,000 to
carry out the modernization and improvement of facilities as
provided for in section 4(a), and provides that these funds are
to remain available until expended.
Sec. 5. Development
Section 5(a)--Oglala Sioux Tribal Development Trust Fund
Subsection 5(a)(1) provides for the establishment in the
United States Treasury of a fund to be known as the ``Oglala
Sioux Tribal Development Trust Fund'' that shall consist of any
amounts deposited into the Fund pursuant to this Title.
Subsection 5(a)(2) provides that, on the first day of the
11th fiscal year that begins after the date of enactment of
this Act, the Secretary of the Treasury shall, from the General
Fund of the Treasury, deposit into the Fund established under
subsection (1) the sum of $92,500,000.
Subsection 5(a)(3) requires the Secretary of the Treasury
to invest that portion of the Fund that in his judgment is not
required to meet current withdrawals, and provides that the
investments are to be made only in interest-bearing obligations
of the United States. The section further directs that the
Secretary of the Treasury shall deposit interest resulting from
the investments into the Fund.
Subsection 5(a)(4) provides that, not later than the first
day of the 11th fiscal year after the date of enactment of this
Act, and on the first day of each fiscal year thereafter, the
Secretary of the Treasury shall withdraw the aggregate amount
of interest deposited into the Fund for that fiscal year and
shall transfer that amount to the Secretary of the Interior for
use, without fiscal year limitation, in accordance with
paragraph (a)(4)(C). The section provides that the Secretary of
the Interior is to use the amounts transferred under subsection
(a)(4)(A) only for the purpose of making payments to the Oglala
Sioux Tribe as such payments are requested by the Tribe by
tribal resolution, but only after the Tribe has adopted a
tribal development plan (``Plan'') under subsection (a)(6). The
section provides that the funds so transferred may be expended
only to carry out projects and programs under that Plan.
Subsection 5(a)(5) bars the Secretary of the Treasury from
transferring or withdrawing any amount deposited under
subsection (a)(2) of this section except as provided in
subsections (a)(3) and (a)(4)(1) of this section.
Subsection 5(a)(6) sets forth the requirements for the
tribal development plan and provides that, not later than 18
months after the date of enactment of this Act, the governing
body of the Tribe shall prepare a Plan for the use of the
payments made to the Tribe under this section. The Plan shall
provide for the manner in which the Tribe shall expend payments
made to it under this section to promote economic development,
infrastructure development, and the educational, health,
recreational, and social welfare objectives of the Tribe and
its members, or any combination of these activities. The Tribal
Council shall make copies of the proposed Plan available to
tribal members for review and comment before the Plan becomes
final, in accordance with procedures established by the Tribal
Council, and may, on an annual basis, revise the Plan. In
revising the Plan, the Tribal Council shall provide the members
of the Tribe opportunity to review and comment on any proposed
revision. The Tribal Council shall consult with the Secretary
of the Interior and the Secretary of Health and Human Services
in preparing the Plan and on any revisions to update the Plan.
The activities of the Tribe in carrying out the Plan shall be
audited as part of the annual single-agency audit that the
Tribe is required to prepare pursuant to the Office of
Management and Budget circular numbered A-133. The auditors
that conduct this audit shall determine whether funds received
by the Tribe for the period covered by the audit were expended
to carry out the Plan in a manner consistent with this section,
and shall include this determination in the written findings of
the audit. A copy of the written findings of the audit shall be
inserted in the published minutes of the Tribal Council's
proceedings for the session at which the audit is presented to
the Tribal Council.
Subsection 5(a)(7) prohibits any portion of any payment
made under this Act from being distributed to any member of the
Tribe on a per capita basis.
Section 5(b)--Eligibility of Tribe for certain programs and
services
Section 5(b) provides that no payment made to the Tribe
pursuant to this Act shall result in the reduction or denial of
any service or program to which, pursuant to Federal law, the
Tribeis otherwise entitled because of its status as a Federally
recognized Indian tribe, or to which any individual tribal member is
otherwise entitled because of that individual's status as a tribal
member.
Section 5(c)--Authorization of appropriations
Section 5(c) authorizes the appropriation of such sums as
are necessary to pay the administrative expenses of the Fund.
Section 5(d)--Water rights
Section 5(d) states that nothing in this Act shall be
interpreted or construed to affect any rights or claim of the
Oglala Sioux Tribe under the Treaty of Fort Laramie of
September 17, 1851, the Treaty of Fort Laramie of April 29,
1868, or under the principles of the Winters Doctrine.
COMMITTEE RECOMMENDATION AND TABULATION OF VOTE
On June 19, 2008, the Committee on Indian Affairs convened
a business meeting to consider S. 2489, and other measures.
During the business meeting, the Committee voted, by a voice
vote, to report S. 2489 favorably, with an amendment, to the
full Senate with a recommendation that it do pass.
COST AND BUDGETARY CONSIDERATIONS
The cost estimate for S. 2489, as provided by the
Congressional Budget Office, is set forth below:
S. 2489--Oglala Sioux Tribe Angostura Irrigation Project Modernization
and Development Act
Summary: S. 2489 would authorize the Secretary of the
Interior, acting through the Bureau of Reclamation, to
modernize the irrigation facilities of the Angostura Unit in
South Dakota. In addition, the bill would allow the Oglala
Sioux Tribe to use any water saved through the modernization
effort for environmental restoration purposes on the tribe's
reservation. CBO estimates that modernizing the irrigation
facilities would cost about $5 million over the 2009-2011
period, assuming appropriation of the authorized amounts.
S. 2489 also would compensate the Oglala Sioux Tribe for
the damage caused by the Angostura Dam operated by the Bureau
of Reclamation on the Cheyenne River. CBO estimates that
enacting this provision would have no impact on the federal
budget over the 2009-2018 period; however, it would increase
direct spending by $92.5 million in 2020. Enacting the bill
would not affect revenues.
S. 2489 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 2489 is shown in the following table.
The costs of this legislation fall within budget functions 450
(community and regional development) and 300 (natural resources
and environment).
----------------------------------------------------------------------------------------------------------------
By fiscal year in millions of dollars--
--------------------------------------------------
2009 2010 2011 2012 2013 2009-2013
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION\1\
Authorization Level.......................................... 5 0 0 0 0 5
Estimated Outlays............................................ 1 2 2 0 0 5
----------------------------------------------------------------------------------------------------------------
\1\ Enactment of S. 2489 also would increase direct spending by $92.5 million in 2020.
Basis of estimate: For this estimate, CBO assumes that S.
2489 will be enacted at the beginning of 2009 and that the
authorized amount will be appropriated near the beginning of
2009.
This bill would authorize the appropriation of $4.66
million to modernize the irrigation facilities of the Angostura
Unit in South Dakota. In addition, the bill would allow the
Oglala Sioux Tribe to use any water saved through the
modernization effort for environmental restoration on the
tribe's reservation. Based on historical spending rates for
similar projects, CBO estimates that implementing the
modernization project would cost about $5 million over the
2009-2011 period, assuming appropriation of the authorized
funds.
S. 2489 also would create the Oglala Sioux Tribe
Development Trust Fund to provide compensation to the Oglala
Sioux Tribe for the damage caused by the Angostura Dam on the
Cheyenne River, 20 miles upstream from the tribe's reservation.
The bill would direct the Secretary of the Treasury to deposit
a total of $92.5 million into an interest-bearing account to
benefit the tribes on the first day of the 11th fiscal year
that begins after the date of enactment. Additional deposits
equaling the interest earnings on the amounts in the fund would
be made on October 1st of each year. Depending on when the bill
is enacted, the initial amount of $92.5 million would not be
deposited until 2019 or 2020, and deposits of interest would
not begin until 2020 or 2021. The bill would allow the tribes
to spend the interest earnings on amounts in the fund pursuant
to a tribal spending plan.
Trust funds that are held and managed in a fiduciary
capacity by the federal government on behalf of Indian tribes
are treated as nonfederal funds. CBO expects that the entire
amount deposited to the fund in 2019 or 2020 would be recorded
as budget authority and outlays in that year. Accordingly, CBO
estimates that enacting S. 2489 would increase direct spending
by $92.5 million in 2019 or 2020. Subsequently, the fund would
be considered nonbudgetary, and any future interest earnings
and payments would not be considered part of the federal
budget.
Intergovernmental and private-sector impact: S. 2489
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments. The Oglala Sioux tribe would benefit from
access to additional water and from the trust fund authorized
in this bill. Any costs to that tribe would be incurred
voluntarily.
Estimate prepared by: Federal Costs: Leigh Angres and Tyler
Kruzich; Impact on State, Local, and Tribal Governments:
Melissa Merrell; Impact on the Private Sector: Corey T. Ponder.
Estimate approved by: Peter H. Fontaine, Assistant Director
for Budget Analysis.
EXECUTIVE COMMUNICATIONS
The views of the Administration on S. 2489 as introduced
are set forth in the Statement of George Skibine, Deputy
Assistant Secretary for Policy and Economic Development--Indian
Affairs, United States Department of the Interior, dated June
18, 2008, and are set forth below:
REGULATORY AND PAPERWORK IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill evaluate
the regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that the
regulatory and paperwork impact of S. 2489 will be minimal.
CHANGES IN EXISTING LAW
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds that the
enactment of S. 2489 will not affect any changes in existing
law.