Sec. 406. DESIGN AND CONSTRUCTION OF MR&I SYSTEM

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## SEC. 406 DESIGN AND CONSTRUCTION OF MR&I SYSTEM ###

(a)In general The Secretary, acting through the Commissioner of Reclamation, shall plan, design, and construct the water diversion and delivery features of the MR&I System, in accordance with 1 or more agreements between the Secretary and the Tribe. ###

(b)Lead Agency The Bureau of Reclamation shall serve as the lead agency with respect to any activity to design and construct the water diversion and delivery features of the MR&I System. ###

(c)Scope ####

(1)In general The scope of the design and construction under this section shall be as generally described in the document entitled “Crow Indian Reservation Municipal, Rural and Industrial Water System Engineering Report” prepared by DOWL HKM, and dated July 2008 and updated in a status report dated December 2009 by DOWL HKM, on the condition that prior to beginning construction activities, the Secretary shall review the design of the proposed MR&I System and perform value engineering analyses. ####

(2)Negotiation with tribe On the basis of the review described in paragraph (1), the Secretary shall negotiate with the Tribe appropriate changes to the final design so that the final design meets applicable industry standards, as well as changes, if any, that would improve the cost-effectiveness of the delivery of MR&I System water and take into consideration the equitable distribution of water to allottees. ###

(d)Nonreimbursability of Costs All costs incurred by the Secretary in carrying out this section shall be nonreimbursable. ###

(e)Funding The total amount of obligations incurred by the Secretary in carrying out this section shall not exceed $246,381,000, except that the total amount of $246,381,000 shall be increased or decreased, as appropriate, based on ordinary fluctuations from May 1, 2008, in construction cost indices applicable to the types of construction involved in the design and construction of the MR&I System. ###

(f)Tribal Implementation Agreement ####

(1)In general At the request of the Tribe, in accordance with applicable Federal law, the Secretary shall enter into 1 or more agreements with the Tribe to implement the provisions of this section by which the Tribe shall plan, design, and construct any or all of the rehabilitation and improvement required by this section. ####

(2)Oversight costs The Bureau of Reclamation and the Tribe shall negotiate the cost of any oversight activities carried out by the Bureau of Reclamation for each agreement under this section, provided that the total cost for that oversight shall not exceed 4 percent of the total project costs. ###

(g)Acquisition of Land ####

(1)Tribal easements and rights-of-way #####

(A)In general Upon request, and in partial consideration for the funding provided under section 414(b), the Tribe shall consent to the grant of such easements and rights-of-way over tribal land as may be necessary for the construction of the MR&I System authorized by this section at no cost to the United States. #####

(B)Jurisdiction The Tribe shall retain criminal and civil jurisdiction over any lands that were subject to tribal jurisdiction prior to the granting of an easement or right-of-way in connection with the construction of the MR&I System. ####

(2)Land acquired by the united states Land acquired by the United States in connection with the construction of the MR&I System authorized by this section shall be held in trust by the United States on behalf of the Tribe as part of the Reservation of the Tribe. ###

(h)Conveyance of Title to MR&I System Facilities ####

(1)In general The Secretary shall convey title to each MR&I System facility or section of a MR&I System facility authorized under subsection

(a)to the Tribe after completion of construction of a MR&I System facility or a section of a MR&I System facility that is operating and delivering water. ####

(2)Liability #####

(A)In general Effective on the date of the conveyance authorized by this subsection, the United States shall not be held liable by any court for damages of any kind arising out of any act, omission, or occurrence relating to the land, buildings, or facilities conveyed under this subsection, other than damages caused by acts of negligence committed by the United States, or by employees or agents of the United States, prior to the date of conveyance. #####

(B)Tort claims Nothing in this section increases the liability of the United States beyond the liability provided in chapter 171 of title 28, United States Code (commonly known as the “Federal Tort Claims Act”). ####

(3)Notice of proposed conveyance Not later than 45 days before the date of a proposed conveyance of title to any MR&I System facility, the Secretary shall submit to the Committee on Natural Resources of the House of Representatives and to the Committee on Energy and Natural Resources of the Senate notice of the conveyance of each such MR&I System facility or section of a MR&I System facility. ####

(4)MR&I system om&r obligation of the federal government after conveyance The Federal Government shall have no obligation to pay for the operation, maintenance, or replacement costs of the MR&I System beginning on the date on which— #####

(A)title to any MR&I System facility or section of a MR&I System facility under this subsection is conveyed to the Tribe; and #####

(B)the amounts required to be deposited in the MR&I System OM&R Account pursuant to section 411 have been deposited in that account. ###

(i)Authority of Tribe Upon transfer of title to the MR&I System or any section of a MR&I System facility to the Tribe in accordance with subsection (h), the Tribe is authorized to collect water use charges from customers of the MR&I System to cover— ####

(1)MR&I System OM&R costs; and ####

(2)any other costs relating to the construction and operation of the MR&I System. ###

(j)Alienation and Taxation Conveyance of title to the Tribe pursuant to subsection

(h)does not waive or alter any applicable Federal law prohibiting alienation or taxation of the MR&I System or the underlying Reservation land. ###

(k)Technical Assistance The Secretary shall provide technical assistance to prepare the Tribe for operation of the MR&I System, including operation and management training. ###

(l)Project Management Committee The Secretary shall facilitate the formation of a project management committee composed of representatives from the Bureau of Reclamation, the Bureau of Indian Affairs, and the Tribe— ####

(1)to review cost factors and budgets for construction, operation and maintenance activities for the MR&I System; ####

(2)to improve management of inherently governmental activities through enhanced communication; and ####

(3)to seek additional ways to reduce overall costs for the MR&I System. ###

(m)Non-Federal Contribution ####

(1)In general Prior to completion of the final design of the MR&I System required by subsection (c), the Secretary shall consult with the Tribe, the State of Montana, and other affected non-Federal parties to discuss the possibility of receiving non-Federal contributions to the cost of the MR&I System. ####

(2)Negotiations If, based on the extent to which non-Federal parties are expected to use the MR&I System, a non-Federal contribution to the MR&I System is determined by the parties described in paragraph

(1)to be appropriate, the Secretary shall initiate negotiations for an agreement on the means by which such contributions may be provided.