109th CONGRESS
2d Session
S. 2633
To grant rights-of-way to owners of dams located in the Bitterroot
National Forest in the State of Montana, and for other purposes.
IN THE SENATE OF THE UNITED STATES
April 24, 2006
Mr. BURNS introduced the following bill; which was read twice and referred
to the Committee on Energy and Natural Resources
A BILL
To grant rights-of-way to owners of dams located in the Bitterroot
National Forest in the State of Montana, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Bitterroot National Forest Dam and Reservoir
Maintenance Act'.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings- Congress finds that--
(1) the wilderness dams in the Bitterroot National Forest in the State
of Montana provide numerous benefits to the people living in the Bitterroot
Valley; and
(2) those benefits include--
(A) groundwater recharge;
(B) maintenance of open space by permitting sustainable family ranches
and farms, rather than subdividing ranches and farms;
(C) increased late summer streamflows that support riparian and fishery
habitat needs; and
(b) Purposes- The purposes of this Act are--
(1) to grant rights-of-way to owners of dams located in the Bitterroot
National Forest in the State of Montana; and
(2) to continue to provide the benefits described in subsection (a).
SEC. 3. DEFINITIONS.
(1) DAM- The term `dam' means a dam, including any reservoirs and appurtenances
to the dam, that is located in the Forest as of the date of enactment
of this Act.
(2) FOREST- The term `Forest' means the Bitterroot National Forest in
the State.
(3) OWNER- The term `owner' means--
(B) the owner of a water storage right for a dam; or
(C) the owner of rights-of-way under this Act or other Federal law.
(4) SECRETARIES- The term `Secretaries' means the Secretary of Agriculture
and the Secretary of Interior.
(5) STATE- The term `State' means the State of Montana.
(6) TRAIL- The term `trail' means a trail, access route, or primitive
road in the Forest in existence on the date of enactment of this Act.
SEC. 4. RIGHTS-OF-WAY.
(a) In General- Notwithstanding the Wilderness Act (16 U.S.C. 1131 et seq.),
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.),
or any other provision of law, the Secretaries shall, on the date of enactment
of this Act, grant to the owners, for no consideration, rights-of-way--
(1) to the trails, for purposes of providing access to any dams owned
by the owner; and
(2) to areas of the Forest adjacent to any dams owned by the owner, for
purposes of the construction, reconstruction, maintenance, repair, and
operation of the dam.
(1) IN GENERAL- As soon as practicable after the date of enactment this
Act, the owners shall, subject to paragraphs (2) and (3), prepare a map
establishing the boundaries of the rights-of-way granted under subsection
(a).
(2) TRAILS- A right-of-way granted under subsection (a)(1) shall extend
at least 8 feet but not more than 60 feet in width from the center of
the trail.
(3) ADJACENT AREAS- A right-of-way granted under subsection (a)(2)--
(A) shall be to areas of the Forest that are located not less than 50
feet nor more than 500 feet and further than 500 feet from the highwater
mark and downstream dam toe to include additional area determined as
necessary by the owner; and
(B) shall include the least amount of land that is necessary, as determined
by the State and owner, for the owner to construct, reconstruct, maintain,
repair, and operate the dam, including borrow material, camp sites,
pasture for pack and work animals, and tool and equipment storage sites.
(c) Construction, Maintenance, and Repair- An owner granted a right-of-way
under subsection (a)(1) may construct, maintain, and repair the right-of-way.
(1) MOTOR VEHICLES- Notwithstanding section 4(c) of the Wilderness Act
(16 U.S.C. 1113), an owner may use motor vehicles, motorized and mechanized
equipment, and other forms of mechanized transport--
(A) on the rights-of-way granted under subsection (a); and
(2) AIRCRAFT- An owner may operate aircraft in the airspace over the Forest
to access the dam and may land the aircraft on the rights-of-way.
(e) Applicable Law- Any activities that are carried out by an owner in a
right-of-way granted under subsection (a) or for the purposes referred to
in subsection (a)(2)--
(1) shall be regulated by the State, in accordance with State law; and
(2) shall not be subject to--
(A) the Wilderness Act (16 U.S.C. 1131 et seq.);
(B) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.);
(C) the National Dam Safety Program Act (33 U.S.C. 467 et seq.);
(D) any other Federal law establishing engineering and construction
standards for dams; or
(E) any other provision of Federal law to protect fish and wildlife
or maintain water quality standards.
(f) Limitation on Liability- An owner of a dam shall not be liable for any
claim or damage that may arise from the conduct of activities to construct,
maintain, repair, and operate the dam, except any claim or damage that arises
from the negligence of the owner.
(g) Subsequent Conveyance- The rights-of-way granted under subsection (a)
may be subsequently conveyed by the owner without the consent of the Secretaries.
(h) Termination- A right-of-way granted to an owner under subsection (a)
shall terminate if the State determines, after notice to the owner and a
hearing, that the owner has not accessed or conducted activities at the
dam for 10 consecutive years.
(1) WATER RIGHTS- Nothing in this Act affects or in any way interferes
with laws of the State relating to the control, appropriation, use, or
distribution of water used in irrigation or other beneficial purposes,
or any vested right acquired under State law, and the Secretaries shall
proceed in conformity with such laws in all land and water management
activities under all authorities.
(2) EXISTING RIGHTS-OF-WAY- The rights-of-way granted under this Act shall
be in addition to any rights-of-way granted to an owner under section
18 of the Act of March 3, 1891 (43 U.S.C. 946), sections 2339 and 2340
of the Revised Statutes (43 U.S.C. 661), or any other provision of law.
(3) COMPENSABLE CLAIMS- Any land and water management activities taken
by the Secretaries which interfere with the access to or exercise of water
rights or rights-of-way of the owner shall create in the owner a valid
and compensable takings claim.
END
