H.R. 1065: White Mountain Apache Tribe Water Rights Quantification Act of 2009

H.R. 1065

White Mountain Apache Tribe Water Rights Quantification Act of 2009

Date
January 21, 2010 (111th Congress, 2nd Session)

Staff Contact
Communications

Floor Situation

The House is scheduled to consider H.R. 1065 (along with two similar bills) on Thursday, January 21, 2010, under a structured rule (H.Res. 1017) which provides for separate consideration of all three bills.  Each bill is debatable for one hour, and the Minority is provided one motion to recommit each bill under the rule.  The rule also provides for consideration of one Republican amendment to each bill and an amendment to H.R. 1065, which was self-executed under the rule.  A summary of the amendments made in order is available below.

The bill was introduced by Rep. Ann Kirkpatrick (D-AZ) on February 13, 2009, and referred to the Committee on Natural Resources, which reported the bill on September 30, 2009, by voice vote.

Bill Summary

H.R. 1065, the White Mountain Apache Tribe Water Rights Quantification Act of 2009, ratifies the Water Rights Quantification Agreement reached by the federal government, the State of Arizona, the White Mountain Apache Tribe, and other local parties regarding the Tribe's claim to water rights on and originating from the Fort Apache Indian Reservation.  Under the agreement, the Tribe would receive rights to divert up to 99,000 acre-feet of water from the Salt River annually.  The Tribe would be authorized to enter into water leasing agreements with local towns and water systems.

In addition, the bill would require the Bureau of Reclamation (BOR) to plan, design, construct, operate, maintain, replace, and rehabilitate a rural water system to provide water to the reservation.  The bill would authorize federal funding for a number of local water, environmental and economic development projects for the Tribe. 

Specific funding authorization levels include:

 

  • $126 million for the Bureau of Water Reclamation to plan, engineer, design and operate a rural water system to provide water to the Tribe.  The Tribe would be authorized to accept the title to the project after five years of operations.
  • $113.5 million for the "White Mountain Apache Tribe Settlement Fund."   The fund would be used, in part, for the rehabilitation of existing irrigation systems.
  • Up to $100 million in funds to be transferred from the Emergency Fund for Indian Safety and Health account to the White Mountain Apache Tribe Water Rights Settlement Subaccount.
  • $50 million for the "White Mountain Apache Tribe Maintenance Fund" for the operation, maintenance, and replacement costs associated with the delivery of water through the rural water system.  CBO estimates that this funding would not be spent until after the ten year budget window.
  • $25 million for White Mountain Apache Tribe rural water system cost overruns.
  • $2.5 million for the operation, maintenance, and replacement costs of the White Mountain Apache Tribe rural water system.

The bill also stipulates that all authorization levels in the bill may fluctuate to reflect changes in the cost of construction.

In addition, prior law provides for Indian water rights settlements approved by Congress to be eligible to receive funding from the Future Indian Water Settlement Program, which can be spent without further appropriation.  CBO originally estimated that this subaccount will be used to supplement funding for the construction of the rural water system and increase direct spending by $125 million through 2019 and $22 million thereafter.  To avoid a PAYGO violation, funds from this account cannot be accessed until after FY 2019.

Background

The White Mountain Apache Tribe consists of about 15,000 members residing on 1.7 million acres of land in the Fort Apache Indian Reservation in eastern Arizona.  The reservation was established in 1871 and contains the headwaters of the Salt River, which provides the primary source of water for the metropolitan Phoenix area.   In 1985, the U.S. filed a claim for the Tribe to have access to 180,000 acre-feet of water from the Salt River basin annually.  The claim, as well as other claims by the Tribe for water rights in the area, has been held up in court pending adjudication.  In January, 2009, an agreement was reached between the Tribe, the State, the federal government, and a number of other interested parties to settle the Tribes claim rather than continue with litigation.  Under the agreement, the Tribe would be given access to 99,000 acre-feet of water annually, and the federal government would fund the construction of a water distribution system for the Tribe.  The settlement also requires the federal government to establish trust funds for the tribe to restore lakes and forests, conduct economic development projects, and operate and the rural water system.

While the Department of Interior (DOI) generally prefers negotiated Indian water rights settlements rather than prolonged litigation, the DOI and the Bureau of Reclamation (BOR) have raised concerns about the settlement that would be ratified by H.R. 1065.  In testimony provided to the Subcommittee on Water and Power in July, 2009, the commissioner of BOR stated that the $126 million cost estimate for the water system that was prepared by the Tribe was insufficient to assure the project could be complete at the quoted cost.  In addition, BOR expressed concerns that projects were being overfunded.

In a follow-up letter to the Subcommittee in November, 2009, the Commissioner reiterated the Administration's concerns.  According to the letter, only $5 million of the $113.5 million authorized for the Settlement Fund was needed to implement the settlement.  The letter stated, "Given the benefits being obtained by the Tribe under this settlement, the Administration would consider the approximately $109 million of additional funding for a development fund authorized under this bill to be excessive."  The concerns raised by the Administration were not addressed in the underlying bill.

Subcommittee Ranking Member McClintock (R-CA) also raised concerns about the legislation in his additional views which accompanied House Report 111-391.  Specifically, the additional views questioned whether the cost to the federal government of ratifying the settlement would be lower than litigating the claim in court.  In addition, Rep. McClintock sent a letter to the Department of Justice (DOJ) asking their opinion as to the likelihood that the recipients of the water rights in the settlement would prevail in court if litigation were to continue.  Rep. McClintock states in the additional views, "I fundamentally believe that Congress needs this and other answers before moving forward with spending hundreds of millions of American taxpayer dollars."  However, the letter to the DOJ has yet to be answered.

Some Members may be concerned that, according to CBO, H.R. 1065 would increase discretionary spending by $200 million and increase direct spending by $147 million without addressing key concerns the Administration and Members of the Committee have brought forward.  Members may be concerned that, because the project has not been subject to a BOR approved cost assessment, the final cost of the water system to the taxpayer could be far more than expected.  In addition, Members may be concerned that the portions of money authorized for the White Mountain Apache Tribe Settlement Fund may be excessive and unnecessary to settle the claim, as the Administration has asserted.  While Members may support settling the Indian water rights claims, they may be concerned that there has been no certification that the cost of the settlement-as opposed to the cost of litigation-would result in a net benefit to taxpayers.

Cost

According to CBO, H.R. 1095 would increase discretionary spending by $134 million over the 2010 through 2019 period and by an additional $66 million after 2019.  In addition, CBO estimates that the bill would increase direct spending by $125 million over the 2010 through 2020 period and an additional $22 million thereafter.  In order to avoid a PAYGO violation, the rule providing for consideration of H.R. 1095 included a provision which prohibited mandatory funds for the construction of the water system until after FY 2019, when the spending falls outside of CBO's budget window.

 

Amendments

1) McClintock (R-CA):  Prohibits the bill from taking effect until the Attorney General submits a letter certifying that the settlement in this bill is a net benefit to the U.S., based on the costs and risks of litigation and the odds that the Tribe would prevail in litigation.