[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 723 Introduced in House (IH)]
104th CONGRESS
1st Session
H. R. 723
To provide for the protection of the geothermal resources of
Yellowstone National Park.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
January 27, 1995
Mr. Williams introduced the following bill; which was referred to the
Committee on Resources
_______________________________________________________________________
A BILL
To provide for the protection of the geothermal resources of
Yellowstone National Park.
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 ``Old Faithful Protection Act of
1995''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--The Congress finds that--
(1) Yellowstone National Park is a unique and irreplaceable
national and international treasure and part of one of the few
remaining undisturbed hydrothermal systems in the world;
(2) there is a risk that unrestricted groundwater use or
hydrothermal or geothermal resource development adjacent to
Yellowstone National Park in the States of Montana, Wyoming,
and Idaho will interfere or adversely affect the hydrothermal
and geothermal features of such Park or the management of
relevant mineral resources;
(3) further research is needed to understand the
characteristics of the protected systems and features and the
effects of development on such system, and features on lands
outside of Yellowstone National Park but within the Yellowstone
Protection Area, as such area is defined in this Act;
(4) preservation and protection, free from injury or
impairment, of the hydrothermal system associated with and the
features within Yellowstone National Park is a benefit to the
people of the United States and the world;
(5) cooperation between the United States and the States of
Montana, Idaho, and Wyoming to protect and preserve Yellowstone
National Park is desirable; and
(6) as a settlement of litigation concerning water rights,
including the reserved water rights of the United States
associated with units of the National Park System in Montana,
the Department of the Interior and the Department of Justice,
on behalf of the United States, and a Compact Commission, on
behalf of the State of Montana, have developed a Compact that,
when ratified by the State and signed by the Secretary of the
Interior and the Attorney General of the United States, will
constitute such a settlement of litigation concerning matters
within its scope and which, in Article IV, also establishes a
program for regulation of development and use of groundwater in
areas adjacent to Yellowstone National Park.
(b) Purposes.--The purposes of this Act are--
(1) to require the Secretary to take the necessary actions
to preserve and protect the hydrothermal system associated
with, and the hydrothermal and geothermal features within,
Yellowstone National Park from injury or impairment by
protecting the Federal reserved water rights of Yellowstone
National Park;
(2) to provide a framework for management by the States of
Montana, Wyoming, and Idaho of regulated resources outside of
but significantly related to Yellowstone National Park to the
extent such States implement appropriate approved programs for
such management that are adequate to preserve and protect, free
from injury or impairment, the protected systems and features;
(3) to authorize, as provided in section 8, approval of
Article IV of the Compact as such an appropriate State program;
and
(4) to require relevant research.
SEC. 3. DEFINITIONS.
For purposes of this Act:
(1) The term ``Secretary'' means the Secretary of the
Interior.
(2) The term ``Yellowstone Protection Area'' means the area
in Montana, Idaho, and Wyoming identified on the map entitled
``Yellowstone Protection Area'', numbered 20036, and dated May
1993, and any modifications thereof as may be made under
section 7.
(3) The term ``protected systems and features'' means the
hydrothermal and geothermal systems and hydrothermal and
geothermal features associated with Yellowstone National Park.
(4) The term ``regulated resources'' means--
(A) geothermal steam and associated geothermal
resources, as defined in section 2(c) of the Geothermal
Steam Act of 1970 (30 U.S.C. 1001(e)); and
(B) hydrothermal resources.
(5) The term ``geothermal well'' means a well or facility
producing or intended to produce regulated resources.
(6) The term ``hydrothermal system'' means a groundwater
system, including cold water recharge and transmission and warm
and hot water discharge.
(7) The term ``hydrothermal resources'' means groundwater
with a temperature in excess of 59 degrees Fahrenheit and any
other groundwater that, on the basis of research pursuant to
section 6, and, in a State with an approved State program,
pursuant to the procedures in such approved State program, is
determined to have characteristics that indicate it may be
directly related to the protected systems and features.
(8) The term ``approved State program'' means a program of
Montana, Idaho, or Wyoming that has been submitted to the
Secretary and has been approved pursuant to this Act.
(9) The term ``Compact'' means the water rights compact
ratified in 1993 by the State of Montana through enactment of
H.R. 692.
(10) Except as otherwise provided in this Act, terms used
in this Act shall have the same meaning as in the Geothermal
Steam Act of 1970.
SEC. 4. RESTRICTION ON FEDERAL LANDS.
The Geothermal Steam Act of 1970 (30 U.S.C. 1001 and following) is
amended by adding at the end thereof the following new section:
``Sec. 30. (a) The Congress hereby declares that--
``(1) Yellowstone National Park possesses numerous
hydrothermal and geothermal features, including Old Faithful
geyser and approximately 10,000 other geysers and hot springs,
and warrants designation as a significant thermal feature unto
itself;
``(2) the establishment of the Park in 1872 reserved to the
United States a water right which includes a right with respect
to groundwater (including the water in the hydrothermal system
supporting such features) necessary to preserve and protect
such features for the benefit of future generations; and
``(3) Federal legislation is desirable to protect these
Federal water rights from possible injury or damage.
``(b) The Congress hereby declares that any use of, or production
from, any existing geothermal well, as such term is defined in section
3(5) of the Old Faithful Protection Act of 1993, or any exploration
for, or development of, any new geothermal well or any facility related
to the use of geothermal steam and associated geothermal resources
within the boundary of the Yellowstone Protection Area, as defined in
section 3(2) of the Old Faithful Protection Act of 1993, risks adverse
effects on the hydrothermal and geothermal features of Yellowstone
National Park.
``(c) The Secretary shall not issue a lease under this Act for
lands within the boundary of the Yellowstone Protection Area, as
defined in section 3(2) of the Old Faithful Protection Act of 1993.
Nothing in this section shall be construed to either affect the ban on
leasing referenced under section 28(f) or to apply to any lands not
owned by the United States.''.
SEC. 5. MORATORIUM ON OTHER LANDS.
(a) Prohibition.--(1) Except as provided by sections 7 and 8 of
this Act, there shall be no use (except for monitoring by the Secretary
or monitoring under an approved State program) of, or production from,
any existing geothermal well and no exploration for, or development of,
any new geothermal well or any other new facility related to the use of
regulated resources within the Yellowstone Protection Area.
(2) Nothing in this subsection shall be construed to affect
existing facilities other than geothermal wells.
(b) Management.--The Secretary shall review National Park Service
management of Yellowstone National Park and shall take such steps as
may be necessary to protect the protected systems and features and the
hydrothermal, geothermal, and groundwater resources of such National
Park free from injury or impairment.
(c) Rule of Construction.--Nothing in this section shall be
construed to affect the ban or prohibitions referenced under sections
28(f) and 30(c) of the Geothermal Steam Act of 1970.
SEC. 6. RESEARCH.
(a) In General.--The National Park Service, in consultation with
the Forest Service, the United States Geological Survey, and each State
agency implementing an approved State program, shall research the
characteristics of the protected systems and features, inventory and
research the existing and potential effects (including cumulative
effects) of hydrothermal, geothermal, mineral, or other resources
development (including development of groundwater other than regulated
resources) on such systems and features, and periodically inform
Congress concerning the results of such inventory and research.
(b) Under State Program.--If an approved State program provides for
research described in subsection (a), the Secretary, in cooperation
with the relevant State, may conduct such research in areas within and
adjoining Yellowstone National Park.
(c) Nonintrusive Methodologies.--Except for research within a
National Park System unit approved by the Secretary or elsewhere under
a permit issued by a State agency implementing an approved State
program, research pursuant to this section shall exclusively use
nonintrusive methodologies.
(d) Limitation.--Nothing in this Act shall be construed as
authorizing any activities within any unit of the National Park System
inconsistent with laws or policies applicable to the relevant unit.
SEC. 7. STATE MANAGEMENT PROGRAMS.
(a) Development.--The States of Montana, Wyoming, and Idaho are
encouraged to develop State programs for the management of regulated
resources outside of Yellowstone National Park to preserve and protect,
free from injury or impairment, the protected systems and features.
(b) Permit.--As of the date of enactment of this Act, no person
shall engage in any use (including research), production, exploration,
or development of any regulated resources on any land located within
the Yellowstone Protection Area except to the extent authorized by a
permit issued by a State agency implementing an approved State program.
(c) State Authority.--(1) In the implementation of an approved
State program, a State may exercise the authority to grant permits
under subsection (b) for the use (including research), production,
exploration, or development of any regulated resources within the
Yellowstone Protection Area.
(2) Notwithstanding any other provision of law, no permit issued
prior to the date of enactment of this Act shall be deemed to have been
issued in the implementation of an approved State program, but in the
event that after the date of enactment of this Act the Secretary, on
the basis of research pursuant to section 6, determines that
groundwater with a temperature of 59 degrees Fahrenheit or less has
characteristics that indicate it may be directly related to the
protected systems and features, a permit issued prior to such
determination with respect to such groundwater shall not be invalidated
unless, pursuant to the procedures in an approved State program it is
determined that continued utilization of the groundwater covered by
such permit would be inconsistent with the purposes of this Act.
(3)(A) The Secretary shall monitor the implementation of an
approved State program (including the State's enforcement thereof) to
assure consistency with the requirements of this Act.
(B) The Secretary may suspend implementation of an approved State
program if such implementation (including the State's enforcement
thereof) is not being exercised in a manner consistent with this Act.
During any such suspension, no permit granted under such program shall
be effective except to the extent the Secretary determines that the
permitted activities would be consistent with the purposes of this Act.
(C) If an approved State program includes procedures for the
exercise of the Secretary's authority to suspend such a program's
implementation, the Secretary shall follow such procedures.
(d) Approval by the Secretary.--(1) The Secretary may approve a
program submitted by a State if the Secretary determines that such
program, when implemented, will fulfill the purposes of this Act
regarding the protection of the protected systems and features.
(2) The Secretary shall not approve any State program submitted
under this section until the Secretary has--
(A) solicited, publicly disclosed, and considered the views
of the heads of other State and Federal agencies the Secretary
determines are concerned with the proposed State program;
(B) solicited, publicly disclosed, and considered the views
of the public; and
(C) found that the State has the necessary legal authority
and qualified personnel for the regulation and management of
regulated resources outside Yellowstone National Park
consistent with the requirements of this Act.
(3)(A) The Secretary may approve or disapprove a program in whole
or in part.
(B) If the Secretary disapproves any proposed State program, in
whole or in part, the Secretary shall notify the State in writing of
the decision and set forth in detail the reasons therefor. The State
may submit a revised State program or portion thereof.
(4) The Secretary shall not approve any State program that does
not, at a minimum--
(A) include ongoing scientific review of restrictions,
boundaries, and permits applicable to the development of a
regulated resource;
(B) require that, in conducting the scientific review
referred to in subparagraph (A) and in implementing the State
program, any doubt shall be resolved in favor of protection of
the protected systems and features;
(C) allow the State agency authorized to administer the
program to reject recommendations based on the scientific
review referred to in subparagraph (A), to the extent such
rejection is necessary to guarantee no adverse effect on the
hydrothermal system within Yellowstone National Park; and
(D) enable citizens of such State to obtain judicial review
of actions taken by the State agency implementing the program
to the extent necessary to assure that such actions are
consistent with all applicable law, including this Act.
(e) Scope.--Except to the extent an approved State program is being
implemented by a State, section 5(a) of this Act shall apply to the
Yellowstone Protection Area.
(f) Modification of Yellowstone Protection Area.--(1) The
boundaries of the Yellowstone Protection Area in a State may be
modified pursuant to an approved State program to the extent such
modification is approved by the Secretary.
(2) The Secretary shall not approve any such modification that the
Secretary finds would not be consistent with the purposes of this Act.
(3) The Secretary shall revise the map of the Yellowstone
Protection Area to reflect any approved boundary modifications.
(4) If an approved State program includes procedures for the
exercise of the Secretary's authority to approve modifications of the
boundaries of the Yellowstone Protection Area, the Secretary shall
follow such procedures.
(g) Cooperative Agreements.--The Secretary is authorized to enter
into cooperative agreements with the States of Montana, Idaho, and
Wyoming and with the Secretary of Agriculture to fulfill the purposes
of this Act.
(h) Federal Financial Assistance.--(1) Subject to appropriation,
the Secretary may provide financial assistance to the implementation of
an approved State program. In providing such assistance, the Secretary
may enter into appropriate funding agreements, including grants and
cooperative agreements, with a State agency or agencies, upon such
terms and conditions as the Secretary deems appropriate.
(2) A recipient State may invest funds provided under this
subsection so long as such funds, together with interest and any other
earnings thereon, shall be available for use by the State only under
the terms and conditions of the approved State program and an agreement
entered into with the Secretary under this subsection and shall not be
used by the State for any other purpose.
SEC. 8. MONTANA PROGRAM.
(a) Approval.--(1) The Congress finds that Article IV of the
Compact, when implemented, will fulfill the purposes of this Act
regarding the protection of the protected systems and features.
(2) All provisions of section 7 are applicable to this section,
except for purposes of section 7(d)(1) the Compact shall be deemed to
have been submitted to the Secretary, and, notwithstanding sections
7(d)(2), 7(d)(3), and 7(d)(4), once signed by the Secretary and the
Attorney General of the United States, Article IV thereof shall be
considered an approved State program for regulation of groundwater
resources, including the hydrothermal resources within the Montana
portion of the Yellowstone Protection Area. Article IV of the Compact
shall not be considered an approved State program for the management of
regulated resources within the Montana portion of the Yellowstone
protection area other than groundwater resources.
(b) Scope.--Nothing in this Act shall be construed as amending the
Compact or as altering its status in relationship to any litigation
with regard to water rights.
(c) Review Procedures.--For purposes of sections 7(e)(3)(B),
7(e)(3)(C), 7(f)(1), and 7(f)(2), the provisions of the Compact with
respect to--
(1) review of administrative decisions under Article IV of
the Compact;
(2) enforcement of the Compact;
(3) the discretion of any party to the Compact to withdraw
therefrom; and
(4) modification of boundaries and restrictions within the
Controlled Groundwater Area,
shall be deemed to be procedures for the exercise of the Secretary's
authority to approve modifications of the boundaries of the Yellowstone
Protection Area or to suspend the implementation of an approved State
program.
SEC. 9. IDAHO PROGRAM.
For purposes of section 7(d)(1), the provisions of Section 42 of
the Idaho Code related to geothermal resources shall be deemed to have
been submitted to the Secretary for approval as an approved State
program.
SEC. 10. IDAHO AND WYOMING PROGRAMS.
(a) Section 7 shall not be effective with respect to the
Yellowstone Protection Area within the State of Idaho and the State of
Wyoming for two years after the date of enactment of this title if the
Governor of the State notifies the Secretary that the State will
prohibit any permit action or other approval action involving regulated
resources within the Yellowstone Protection Area during such two-year
period.
(b)(1) The State of Wyoming or the State of Idaho may, within the
two-year period provided for in subsection (a) submit a State program
to the Secretary for approval.
(2) Upon receipt of a State program within the two-year period
provided for in subsection (a), the Secretary shall review such program
pursuant to section 7.
(c) Section 4, subsections 5(a), 7(b), and paragraph 7(a)(2) shall
become effective with respect to the Yellowstone Protection Area within
the State of Idaho or the State of Wyoming--
(1) upon the approval or disapproval of the respective
State program;
(2) at the end of the two-year period provided for in
subsection (a); or
(3) if the State takes any permit action or other approval
action contrary to the notification provided to the Secretary
pursuant to subsection (a).
SEC. 11. CITIZEN SUITS.
(a) In General.--(1) Any person may commence a civil suit on the
person's own behalf to enjoin any party, including the United States,
except for a State or agency or political subdivision thereof, that the
plaintiff alleges--
(A) is in violation of any provision of this Act; or
(B) is using a regulated resource in the absence of, or
beyond the scope of the terms or conditions of, a permit issued
pursuant to an approved State program, or in violation of
regulations issued under the authority of an approved State
program.
(2) The Federal district courts shall have jurisdiction, without
regard to the amount in controversy or the citizenship of the parties--
(A) to require the Secretary or another party to take any
steps required or permitted by this Act, if those steps are
necessary to fulfill the purposes of this Act; or
(B) to enforce the provisions, prohibitions, permits, or
regulations of an approved State program.
(b) Venue and Intervention.--(1) Any suit under this section may be
brought in any appropriate judicial district.
(2) In any such suit under this section in which the United States
is not a party, the Attorney General of the United States, at the
request of the Secretary, may intervene on behalf of the United States
as a matter of right.
(c) Costs.--The court, in issuing any final order in any suit
brought under this section, may award costs of litigation (including
reasonable attorney and expert witness fees) to any party, whenever the
court determines such award is appropriate.
(d) Nonexclusive Relief.--The injunctive relief provided by this
subsection shall not restrict any right which any person (or class of
persons) may have under any statute or common law to seek judicial
review of actions taken by the State agency implementing an approved
State program or to seek enforcement of any standard or limitation or
to seek any other relief including relief against the Secretary.
(e) Notice.--Before seeking the injunctive relief authorized under
this section, notice of intent to sue shall be given to the Secretary,
the State agency implementing any relevant approved State program
described in section 7, and each intended defendant. Such notice shall
allow the minimum period of time necessary for an intended defendant to
take those measures that (1) will cure any alleged violations of this
Act, or (2) will end any alleged improper use of regulated resources,
as described in subsection (a)(1)(B).
SEC. 12. JUDICIAL REVIEW.
(a) Administrative Procedures.--Except as provided in this section,
any Federal agency action or failure to act to implement or enforce
this Act shall be subject to judicial review in accordance with and to
the extent provided by chapter 7 of title 5, United States Code.
(b) Remedy.--The sole remedy available to any person claiming
deprivation of a vested property right by enactment of this Act or
Federal action pursuant to this Act shall be an action for monetary
damages, filed pursuant to sections 1491 or 1505 of title 28, United
States Code, in the Court of Federal Claims. Any just compensation
awards determined by the Court of Federal Claims to be due to a
claimant shall be paid consistent with section 2517 of such title.
SEC. 13. REGULATIONS.
No later than two years after the date of enactment of this Act,
the Secretary shall promulgate such rules and regulations as are
necessary to implement this Act.
SEC. 14. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this Act.
SEC. 15. SCOPE OF ACT.
Nothing in this Act shall be construed as increasing or diminishing
any rights of the United States with respect to water, or as affecting
any previous adjudication of or any agreement concerning any such
rights.
SEC. 16. LAND EXCHANGE.
(a) General.--Notwithstanding any other provision of law and
subject to the provisions of this title, the Secretary of Agriculture
shall acquire by exchange certain lands and interests in lands owned by
the Church Universal and Triumphant, its successors and assigns,
(referred to in this title as ``the Church''), located in the
Yellowstone Controlled Groundwater Area and Corwin Springs Known
Geothermal Resource Area of the Gallatin National Forest.
(b) Offer and Acceptance of Land and Interest in Land.--
(1) Non-federal lands and interests.--If the Church
offers--
(i) title that is acceptable to the United States
to all rights, title, and interests to approximately 26
acres of land owned by the Church as depicted on the
maps entitled ``Church/Forest Service Land Exchange
Proposal'', dated July 1994;
(ii) all right, title and interest to the
subsurface regulated resource estate on all Church
properties within the Yellowstone Controlled
Groundwater Area;
(iii) a perpetual public access road and utility
easement of 60 feet in width, plus allowance for cuts
and fills, over Church property to the Gallatin
National Forest lands in the Cutler Homestead/Sentinel
Butte area, as depicted on the maps referenced in
paragraph (b)(1)(i); and
(iv) other rights and covenants in accordance with
the terms of the ``Church/Forest Service Land Exchange
Specifications'' document prepared pursuant to
paragraph (b)(1); the Secretary of Agriculture shall
accept a warranty deed to the land specified in
paragraph (b)(1)(i), a special warranty deed to the
geothermal and hydrothermal resources specified in
paragraph (b)(1)(ii), State water rights transfer
documents, and any other such instruments as may be
necessary to transfer the above referenced property
interests.
(2) Federal land and interests.--
(A) General.--Upon acceptance by the Secretary of
Agriculture of title to the lands, interests, and
rights and covenants offered by the Church pursuant to
paragraph (b)(1)--
(i) the Secretary, upon request by the
Secretary of Agriculture, shall convey by
patent to the Church, subject to all valid
existing rights, and a reservation to the
United States of all regulated resources, title
to approximately 11 acres within the Gallatin
National Forest, as depicted on the map
referenced in paragraph (b)(3);
(ii) the Secretary of Agriculture shall
convey an easement to the Church granting the
right to collect and transport across Federal
lands the natural surface flow at LaDuke Hot
Springs from its source to the east bank of the
Yellowstone River as depicted on the maps
referenced in paragraph (b)(1), and the United
States shall withdraw all of its water rights
claims and objections filed with regard to
LaDuke Hot Springs in pending water rights
adjudications under Federal and State law;
(iii) the Secretary shall grant to the
Church standard Forest Service rights-of-way
authorizations for existing roads across
National Forest System land as generally
depicted on the maps referenced in paragraph
(b)(1) and further defined by the document
referenced in paragraph (b)(3); and
(iv) the Secretary shall grant to the
Church other rights and covenants in accordance
with the terms of the ``Church/Forest Service
Land Exchange Specifications'' document
pursuant to paragraph (b)(3).
(B) Surveys.--Surveys prepared to standards approved
by the Secretary shall be furnished by the Church for
the affected Federal and non-Federal lands and surface
interests prior to conveyance of the Federal lands and
interests in this exchange.
(3) Agreement.--The document entitled ``Church/Forest Service
Land Exchange Specifications,'' jointly developed and agreed to
by both parties, shall define the non-Federal and Federal lands
and interests involved in this exchange, including legal
descriptions of lands and interests, and other terms,
conditions, and covenants, but shall not include any minimum
surface flow requirements to the Yellowstone River from LaDuke
Hot Springs. Such document, upon completion, shall be
transmitted to the Committee on Energy and Natural Resources of
the United States Senate and the Committee on Natural Resources
of the United States House of Representatives and shall not
take effect until 60 days after receipt by both committees.
(c) Title.--
(1) Review of title.--Within ninety days of receipt of the
approved surveys and title documents from the Church, the
Secretary shall review the title for the non-Federal lands
described in paragraph (b) and determine whether--
(A) the applicable title standards for Federal land
acquisition have been satisfied subject to any
variances expressly contained in this title; and
(B) all draft conveyances and closing documents have
been received and approved.
(2) Conveyance of title.--In the event the quality of title
does not meet Federal standards or is otherwise unacceptable to
the Secretary, the Secretary shall advise the Church regarding
corrective actions necessary to cure title defects. The
conveyance of lands to the Church described in paragraph
(b)(2)(A) shall be completed not later than ninety days after
the Secretary has approved title.
SEC. 17. GENERAL PROVISIONS.
(a) Maps and Documents.--The maps referred to in section 16 are
subject to corrections for any technical errors in describing the
properties. The maps and documents described in section 16(b) (1) and
(3) shall be on file and available for public inspection in the Office
of the Chief of the Forest Service, in Washington, D.C.
(b) National Forest System Lands.--All lands and interests in lands
conveyed to the United States under this title shall be administered in
accordance with the laws and regulations pertaining to the National
Forest System.
(c) Valuation.--The value of the lands and interests in lands to be
exchanged under this title and described in section 16(b) are deemed to
be equal, and therefore, no appraisals shall be required.
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HR 723 IH----2