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                                                       Calendar No. 355
109th Congress                                                   Report
                                 SENATE
 2d Session                                                     109-213

======================================================================

 
  A BILL TO AUTHORIZE CERTAIN TRIBES IN THE STATE OF MONTANA TO ENTER 
INTO A LEASE OR OTHER TEMPORARY CONVEYANCE OF WATER RIGHTS TO MEET THE 
      WATER NEEDS OF THE DRY PRAIRIE RURAL WATER ASSOCIATION, INC.

                                _______
                                

                January 24, 2006.--Ordered to be printed

 Filed, under authority of the order of the Senate of January 18, 2006

                                _______
                                

    Mr. McCain, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 1219]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 1219) to authorize certain tribes in the State of 
Montana to enter into a lease or other temporary conveyance of 
water rights to meet the water needs of the Dry Prairie Rural 
Water Association, Inc., having considered the same reports 
favorably thereon without amendment and recommends that the 
bill do pass.

                                 PURPOSE

    The purpose of S. 1219 is to authorize the Assiniboine and 
Sioux Tribes of the Fort Peck Indian Reservation, Montana, with 
the approval of the Secretary of the Interior, to enter into a 
lease or other temporary conveyance of water rights recognized 
under the Fort Peck-Montana Compact with the Dry Prairie Rural 
Water Association, Incorporated (or any successor non-federal 
entity) for the purpose of meeting the Association's water 
needs.

                               BACKGROUND

    The Fort Peck Reservation Rural Water System Act of 2000 
(Public Law 106-382) was enacted in October 2000. The two 
components of the water system project include the Fort Peck 
Reservation Water System and the Dry Prairie Rural Water 
Authority, an off-Reservation water system, which are located 
in northeastern Montana. The Reservation has a population of 
approximately 10,700 people, of which approximately 5,800 are 
members of the Assiniboine and Sioux Tribes. The Fort Peck 
water system will serve Reservation populations and the Dry 
Prairie Rural Water Association will serve off-Reservation 
populations. The project is authorized to provide municipal, 
rural, and industrial water to the Reservation and surrounding 
areas.
    The Fort Peck Indian Tribes Agreement with Dry Prairie 
Rural Water Association, Inc. would provide authority for the 
Tribes of the Fort Peck Indian Reservation, Montana to enter 
into a lease or otherwise make a temporary conveyance to Dry 
Prairie, without monetary compensation to the Tribes, of a 
portion of the Tribes' current right to use water under a 
compact with the State of Montana to meet off-Reservation water 
supply needs. The Dry Prairie allocation would be approximately 
2,300 acre feet of water. The bill further provides that the 
life of the lease or conveyance shall not exceed 100 years, and 
that the Secretary is not liable for any claim relating to any 
lease or transfer terms.

                          LEGISLATIVE HISTORY

    S. 1219 was introduced June 9, 2005, by Senator Burns and 
was referred to the Committee on Energy and Natural Resources 
and to the Committee on Indian Affairs. On September 28, 2005, 
the Committee on Energy and Natural Resources convened a 
business meeting to consider S. 1219 and other measures that 
had been referred to it, and on that date the Committee 
favorably reported the bill. At a business meeting held on 
October 27, 2005, the Committee on Indian Affairs considered S. 
1219 and on that date favorably reported the bill without 
amendment.

            COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

    On October 27, 2005, the Committee on Indian Affairs, in an 
open session, adopted S. 1219 by voice vote and ordered the 
bill reported favorably to the Senate.

                 SECTION-BY-SECTION ANALYSIS OF S. 1219

Section 1. Temporary conveyance of water rights to Dry Prairie Rural 
        Water Association, Inc.

    Section 1 provides the short title of the Act as the 
Temporary Conveyance of Water Rights to Dry Prairie Rural Water 
Association, Inc.

Subsection (a) In general

    Subsection (a) authorizes the Assiniboine and Sioux Tribes 
of the Fort Peck Indian Reservation, Montana, with the approval 
of the Secretary, to enter into a lease or other temporary 
conveyance of water rights with the Dry Prairie Rural Water 
Association, Incorporated, in accordance with section 5 of the 
Fort Peck Reservation Rural Water System Act of 2000 (Public 
Law 106-382). The Fort Peck water rights were recognized under 
the Fort Peck-Montana Compact (Montana Code Annotated 85-20-
201) agreed to by the State and the Tribes, approved by the 
Secretary of Interior, ratified by the State of Montana on May 
15, 1985.

Subsection (b) Conditions of lease

    With respect to lease of water rights subsection (b) states 
that (1) the lease or conveyance shall not exceed 100 years; 
(2) the lease or conveyance may be approved by the Secretary 
without monetary compensation to the Tribes; and (3) the 
Secretary shall not be subject to liability for any claim 
relating to the compensation or consideration received by the 
Tribes under this lease or conveyance.

Subsection (c) No permanent alienation of water

    Subsection (c) states that nothing in this section 
authorizes a permanent alienation of any water rights by the 
Tribes.

                   COST AND BUDGETARY CONSIDERATIONS

    No cost estimate for S. 1219 as has been prepared by the 
Congressional Budget office.

               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 to 
evaluate the regulatory and paperwork impact that would be 
incurred in carrying out the bill. The Committee has concluded 
that S. 1219 will reduce regulatory or paperwork requirements 
and impacts.

                        EXECUTIVE COMMUNICATION

    The Committee has received an official communication from 
the Administration on the provisions of S. 1219.

                        Department of the Interior,
                                   Office of the Secretary,
                                   Washington, DC, January 9, 2006.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: This letter provides the 
Administration's views on S. 1219, legislation to authorize 
certain tribes in the State of Montana to enter into a lease or 
other temporary conveyance of water rights to meet the needs of 
the Dry Prairie Rural Water Association, Inc.
    The Fort Peck Reservation Rural Water System Act of 2000 
(Public Law 106-382; 114 Stat. 1454) was enacted in October, 
2000. The project includes the Fort Peck Reservation and Dry 
Prairie Rural Water Authority, which are located in 
northeastern Montana. The Reservation has a total population of 
approximately 10,700 people, of which approximately 5,800 are 
members of the Assiniboine and Sioux Tribes. The water system 
will serve Reservation populations in or around the towns of 
Wolf Point, Poplar, Brockton, Fort Kipp, Oswego, and Frazer. 
Towns not on the Reservation include Glasgow, Scobey, 
Plentywood, and Culbertson which will be served by the Dry 
Prairie Rural Water Association. The project is authorized to 
provide municipal, rural, and industrial water to the 
Reservation and surrounding areas.
    This legislation would provide authority for the Tribes of 
the Fort Peck Indian Reservation, Montana to enter into a lease 
or otherwise make a temporary conveyance of a portion of the 
Tribes' current right to use water to Dry Prairie to meet the 
off Reservation water supply needs of the Fort Peck Reservation 
Rural Water System without monetary compensation to the Tribes. 
The bill further provides that the life of such lease or 
conveyance shall not exceed 100 years, and that the Secretary 
is not liable for any claim relating to any lease or transfer 
terms.
    Nothing in this bill authorizes a permanent alienation or 
separation of any waters by the Tribes to Dry Prairie Rural 
Water Association, Inc. or any other non-Federal entity meeting 
the water needs of the Association. The ability of the Tribes 
to lease or convey rights to other entities is recognized under 
the Fort Peck-Montana Compact (Montana Code Annotated 85-20-
201). Additionally, the Final Engineering Report required by 
P.L. 106-382 calls for the Tribes to lease water to the Dry 
Prairie Rural Water Association at no cost.
    The Administration supports this bill, but recommends a few 
changes. First, given that this bill explicitly contemplates 
the possibility of a lease at zero cost to Dry Prairie, 
werecommend stronger language to establish that the Secretary will not 
be held liable for any losses to the Tribes arising from these lease 
terms. We propose that section 1(b) of the bill be amended to provide 
that the Secretary of the Interior shall not be ``liable to any party 
(including any Indian tribe) for any term of, or any loss or other 
detriment resulting from, a lease or conveyance entered into pursuant 
to paragraph (a).'' Second, we recommend removing the requirement for 
Secretarial approval of the lease. The Tribes are in the best position 
to determine what lease terms are in their interests, and Secretarial 
review would not serve its intended purpose in these circumstances. 
Third, we recommend that section 1(b) of the bill be amended to provide 
for a lease or conveyance term of up to 50 years, rather than up to 100 
years, consistent with the discussion of such leases in the Fort Peck-
Montana Compact (Montana Code Annotated 85-20-201, Article XIIB). We 
would be happy to work with the committee to address these concerns.
    Because the legislation would assure a reliable, long term 
water supply to Dry Prairie while protecting the water rights 
of the Tribes, the Administration is pleased to support it with 
the above-mentioned changes.
            Sincerely,
                                             Mark Limbaugh,
                         Assistant Secretary for Water and Science.

                        CHANGES IN EXISTING LAW

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee states that the 
enactment of S. 1219 will not result in changes in existing 
law.