[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]



 
  H.R. 3881, TO AUTHORIZE THE SECRETARY OF THE INTERIOR TO ENGAGE IN 
STUDIES RELATING TO ENLARGING PUEBLO DAM AND RESERVOIR AND SUGAR LOAF 
     DAM AND TURQUOISE LAKE, FRYINGPAN-ARKANSAS PROJECT, COLORADO
=======================================================================

                          LEGISLATIVE HEARING

                               before the

                    SUBCOMMITTEE ON WATER AND POWER

                                 of the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             March 19, 2002

                               __________

                           Serial No. 107-97

                               __________

           Printed for the use of the Committee on Resources



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                         COMMITTEE ON RESOURCES

                    JAMES V. HANSEN, Utah, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska,                   George Miller, California
  Vice Chairman                       Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana     Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Peter A. DeFazio, Oregon
Elton Gallegly, California           Eni F.H. Faleomavaega, American 
John J. Duncan, Jr., Tennessee           Samoa
Joel Hefley, Colorado                Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado              Calvin M. Dooley, California
Richard W. Pombo, California         Robert A. Underwood, Guam
Barbara Cubin, Wyoming               Adam Smith, Washington
George Radanovich, California        Donna M. Christensen, Virgin 
Walter B. Jones, Jr., North              Islands
    Carolina                         Ron Kind, Wisconsin
Mac Thornberry, Texas                Jay Inslee, Washington
Chris Cannon, Utah                   Grace F. Napolitano, California
John E. Peterson, Pennsylvania       Tom Udall, New Mexico
Bob Schaffer, Colorado               Mark Udall, Colorado
Jim Gibbons, Nevada                  Rush D. Holt, New Jersey
Mark E. Souder, Indiana              James P. McGovern, Massachusetts
Greg Walden, Oregon                  Anibal Acevedo-Vila, Puerto Rico
Michael K. Simpson, Idaho            Hilda L. Solis, California
Thomas G. Tancredo, Colorado         Brad Carson, Oklahoma
J.D. Hayworth, Arizona               Betty McCollum, Minnesota
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana

                      Tim Stewart, Chief of Staff
           Lisa Pittman, Chief Counsel/Deputy Chief of Staff
                Steven T. Petersen, Deputy Chief Counsel
                    Michael S. Twinchek, Chief Clerk
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel
                                 ------                                

                    SUBCOMMITTEE ON WATER AND POWER

                   KEN CALVERT, California, Chairman
            ADAM SMITH, Washington, Ranking Democrat Member

 Richard W. Pombo, California        George Miller, California
George Radanovich, California        Peter A. DeFazio, Oregon
Greg Walden, Oregon,                 Calvin M. Dooley, California
  Vice Chairman                      Grace F. Napolitano, California
Michael K. Simpson, Idaho            James P. McGovern, Massachusetts
J.D. Hayworth, Arizona               Hilda L. Solis, California
C.L. ``Butch'' Otter, Idaho          Brad Carson, Oklahoma
Tom Osborne, Nebraska
Jeff Flake, Arizona


                                 ------                                


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on March 19, 2002...................................     1

Statement of Members:
    Calvert, Hon. Ken, a Representative in Congress from the 
      State of California........................................     1
        Prepared statement of....................................     2
    Hefley, Hon. Joel, a Representative in Congress from the 
      State of Colorado..........................................     2
        Prepared statement of....................................    10
    Moran, Hon. Jerry, a Representative in Congress from the 
      State of Kansas............................................    11
        Prepared statement of....................................    13

Statement of Witnesses:
    Arveschoug, Steve, General Manager, Southeastern Colorado 
      Water Conservancy District.................................    43
        Prepared statement of....................................    44
        Letter submitted for the record..........................    72
    Castle, Anne, Special Water Counsel, The City of Pueblo, 
      Colorado...................................................    57
        Prepared statement of....................................    59
    Kassen, Melinda, Director, Colorado Water Project, Trout 
      Unlimited..................................................    51
        Prepared statement of....................................    52
    Keys, John W., III, Commissioner, Bureau of Reclamation, U.S. 
      Department of the Interior.................................    21
        Prepared statement of....................................    23
    Null, James, Member, Colorado Springs City Council, State of 
      Colorado...................................................    30
        Prepared statement of....................................    33
    Pope, David L., Chief Engineer, Kansas Department of 
      Agriculture, Division of Water Resources...................    35
        Prepared statement of....................................    36
    Stovall, Hon. Carla J., Attorney General, State of Kansas....    27
        Prepared statement of....................................    29

Additional materials supplied:
    Adams, Hon. Jamie Clover, Kansas Secretary of Agriculture, 
      Statement submitted for the record.........................    75
    Associated Ditches of Kansas, Statement submitted for the 
      record.....................................................    15
    Barela, Hon. Kenneth, Mayor, City of Fountain, Colorado, 
      Letter submitted for the record............................    76
    Hamel, Bob, Chairman, Arkansas River Outfitters Association, 
      Letter submitted for the record............................     5
    Kuhn, R. Eric, General Manager, The Colorado River Water 
      Conservation District, Letter submitted for the record.....    77
    Ortegon, Vera, President, Board of Water Works of Pueblo, 
      Colorado, Letter submitted for the record..................     6
    Rall, Joseph F., Chairman, Board of Directors, Action 22, 
      Inc., Letter submitted for the record......................     4
    Scar, Dick, Director, Friends of the Arkansas, Letter 
      submitted for the record...................................    79
    Tauer, Paul E., Mayor, City of Aurora, Colorado, Letter 
      submitted for the record...................................    80


  H.R. 3881, TO AUTHORIZE THE SECRETARY OF THE INTERIOR TO ENGAGE IN 
 STUDIES RELATING TO ENLARGING PUEBLO DAM AND RESERVOIR AND SUGAR LOAF 
 DAM AND TURQUOISE LAKE, FRYINGPAN-ARKANSAS PROJECT, COLORADO, AND FOR 
                             OTHER PURPOSES

                              ----------                              


                        Tuesday, March 19, 2002

                     U.S. House of Representatives

                    Subcommittee on Water and Power

                         Committee on Resources

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to call, at 10:30 a.m., in 
room 1334, Longworth House Office Building, Hon. Ken Calvert 
[Chairman of the Subcommittee] presiding.

  STATEMENT OF THE HONORABLE KEN CALVERT, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Calvert. The Subcommittee on Water and Power will come 
to order.
    The Committee is meeting today to hear testimony on H.R. 
3881, to authorize the Secretary of Interior to engage in 
studies relating to enlarging Pueblo Dam and Reservoir and 
Sugar Loaf Dam and Turquoise Lake, Fryingpan-Arkansas Project, 
Colorado, and for other purposes.
    Mr. Calvert. Under rule 4B of the Committee rules, any oral 
opening statements at the hearing are limited to the Chairman 
and the ranking minority member. If other members have 
statements, they can be included in the hearing record by 
unanimous consent.
    Last year, we heard testimony that analyzed the preliminary 
Census 2000 data. This data shows clearly that 11 public land 
States of the American West head the list of America's fastest-
growing States and continue to attract people, both Americans 
looking for new opportunities and immigrants in large numbers. 
Testimony indicated that all of the top five fastest-growing 
States within the United States are in the West, including 
Colorado.
    Today, the legislation before us addresses the desire of 
local communities in Colorado to develop and manage water 
resources over the next several decades to meet this demand. 
The proposed legislation provides an opportunity to look at an 
existing Federal project, the Fryingpan-Arkansas Project, to 
see if managing the resources in a different way can provide 
the added water required to meet the demands of a growing 
population in southeastern Colorado. It is the hope of this 
Committee that the parties involved can use this opportunity to 
resolve the competing demands for limited water supply in this 
area.
    Today, we will hear from several witnesses to present the 
issues associated with this proposed legislation. We have two 
members testifying this morning that are co-sponsors of H.R. 
3881. I would like to introduce Congressman Hefley, who is the 
sponsor of the bill and a member of the Full Committee, and 
Congressman Moran at this time.
    I would like to also ask unanimous consent that Congressman 
Hefley and Congressman Moran be permitted to sit on the dais 
following their statements. Without objection, so ordered.
    Since the Minority is not present, there will be no opening 
statement but will be entered into the record at a later time.
    [The prepared statement of Mr. Calvert follows:]

Statement of The Honorable Ken Calvert, Chairman, Subcommittee on Water 
                               and Power

    Last year we heard testimony that analyzed the preliminary Census 
2000 data. This data shows clearly that the 11 public lands states of 
the American West head the list of America's fastest-growing states and 
continue to attract people--both Americans looking for new 
opportunities and immigrants--in large numbers. Testimony indicated 
that:
    All 5 of the top 5 fastest growing states are in the West: 
including Colorado.
    Today, the legislation before us addresses the desire of local 
communities in Colorado, to develop and manage water resources over the 
next several decades, to meet this demand. The proposed legislation 
provides an opportunity to look at an existing Federal Project (the 
Fryingpan-Arkansas Project) to see if managing the resources in a 
different way can provide the added water required to meet the needs of 
the growing population in southeastern Colorado. It is the hope of this 
committee that the parties involved can use this opportunity to resolve 
the competing demands for the limited water supply in this area. Today, 
we will hear from several witnesses to present the issues associated 
with this proposed legislation.
    I look forward to hearing from the witnesses.
                                 ______
                                 
    With that, I would recognize Mr. Hefley for his testimony.

STATEMENT OF THE HON. JOEL HEFLEY, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF COLORADO

    Mr. Hefley. Mr. Chairman, thank you very much and thank you 
for having a hearing on H.R. 3881, which would authorize 
studies relating to enlarging Pueblo Dam and Reservoir and 
Sugar Loaf Dam and Turquoise Lake and the Fryingpan-Arkansas 
Project in Colorado.
    The short title, however, of this bill is a little bit of a 
misnomer. Although the second part of the bill does authorize 
the study of enlarging two of these three reservoirs, the most 
important impact of the bill comes in the first part, the 
reoperations to allow the storage of 48,000 acre feet of 
water--an additional 48,000 acre feet of water in two existing 
reservoirs. Since most of you on this Committee are Westerners, 
you can imagine what an addition of 48,000 acre feet means in a 
dry environment.
    This bill is particularly needed in Colorado at this time. 
Over the past decade, Colorado has seen unprecedented growth. 
It grew enough over the last decade that we picked up an 
additional congressional seat in the redistricting that just 
occurred. My own district, the Fifth District of Columbia, had 
to lose 200,000 people in the redistricting because we have 
grown so fast.
    But growth brings with it infrastructure demands; and, of 
course, in the West the most important of those infrastructure 
demands is water. The bill before you is the result of 
discussions between members of the Southeast Colorado Water 
Conservation District aimed at providing for the State's water 
needs for the next 50 years. The storage study committee 
estimated Colorado needs an additional 175,000 acre feet of 
water storage to meet those needs.
    The committee also adopted a preferred storage operation 
plan to address those needs. This bill will put the first part 
of that plan in motion.
    Over the past 20 years we have seen a change in the way we 
manage water in the West. The old way of building new dams and 
reservoirs has become so difficult politically as to be almost 
impossible. Thirteen years ago the Environmental Protection 
Agency killed the Two Forks Dam and Reservoir Project which 
would have supplied the Denver area with water even though it 
would have been privately funded and built largely on private 
land, and every year we face a struggle on Animas LaPlata 
Project in the Four Corners. As a result, we have been forced 
to look for new ways to meet our water needs. This bill and the 
plan it embodies reflect these new methods.
    When we were debating Two Forks 13 years ago, one of its 
opponents said we didn't need Two Forks, that we could meet our 
water needs if we only used the capacity of our existing 
reservoirs better. Well, that is what this bill would allow. We 
need the water in Colorado, and this plan will allow us to do 
it in an intelligent and an environmentally sensitive way.
    I urge the support of H.R. 3881 and look forward to today's 
testimony and to working with you on passing this legislation.
    Mr. Chairman, if I might, I would like to submit for the 
record letters from Action 22, which is a southern Colorado 
Arkansas River action group which focuses on these kinds of 
subjects in Colorado, a letter in support of this bill, the 
Arkansas River Outfitters Association in support of this bill, 
and the Board of Water Works of Pueblo, Colorado, which is also 
in support of this bill. If we could put those in the record, I 
would appreciate it.
    Mr. Calvert. Without objection, so ordered.
    [The information referred to follows:]
    [GRAPHIC] [TIFF OMITTED] 78262.017
    
    [GRAPHIC] [TIFF OMITTED] 78262.005
    
    [GRAPHIC] [TIFF OMITTED] 78262.006
    
    [GRAPHIC] [TIFF OMITTED] 78262.007
    
    [GRAPHIC] [TIFF OMITTED] 78262.008
    
    [GRAPHIC] [TIFF OMITTED] 78262.009
    
    Mr. Hefley. With that, Mr. Chairman, I will end my 
testimony and respond to any questions you might have.
    Mr. Calvert. I thank the Gentleman.
    [The prepared statement of Mr. Hefley follows:]

 Statement of The Honorable Joel Hefley, a Representative in Congress 
                       from the State of Colorado

    Mr. Chairman, and members of the subcommittee, I appreciate the 
subcommittee's scheduling this hearing on my bill, H.R. 3881, which 
would authorize the Secretary of Interior to engage in studies relating 
to the enlarging Pueblo Dam and Reservoir, and Sugar Loaf Dam and 
Turquoise Lake of the Fryingpan-Arkansas Project in Colorado.
    Over the past 10 years, Colorado and particularly the Front Range 
of Colorado have seen unprecedented growth. Where once a motorist 
traveling down I-25 between Denver and Colorado Springs had his drive 
broken only by the town of Castle Rock, today the northern half of that 
drive is an almost unbroken stretch of development. The well-known 
landmarks of a decade ago are now lost behind new construction. Indeed, 
the growth has been such that Colorado will gain a congressional seat 
in the next election. My own district, the Fifth, had to lose almost 
400,000 constituents in the recent reapportionment.
    This growth has resulted in obvious demands on the area's 
infrastructure, the most important of which is water. Over the years, 
the state's water needs have been met by the tireless efforts of 
legislators, water engineers and attorneys who first pushed for the 
great water projects which supply the state, then developed the legal 
framework in which that water could be used.
    But over the past 10 years, or perhaps longer, attitudes toward 
water storage projects have changed. About 13 years ago, the 
Environmental Protection Agency effectively killed the Two Forks Dam 
project, which would have been a privately financed reservoir to serve 
the needs of the Denver area. And, for even longer, we have debated 
construction of the Animas-La Plata project in southwest Colorado. And 
still the population grew, as did the need.
    Recognizing this need, in 1998, members of the Southeastern 
Colorado Water Conservancy District, the operator of the Fryingpan-
Arkansas project, formed a Storage Study Committee to begin discussions 
on how to meet it. An initial study, conducted in late 1998, determined 
a need for an additional 173,100 acre-feet of storage over the next 40 
years. Follow-on studies by the Bureau of Reclamation and the Study 
Committee examined over 30 options to meet the projected demand, 
including expansion of the Pueblo Reservoir. These studies determined 
that the best option was utilize the existing reservoirs.
    By September 2000, the Storage Study Committee's findings congealed 
into a Preferred Storage Options Plan, or PSOP. This plan calls for re-
operations storage, or the use of excess capacity in existing 
reservoirs to store non-project water under long-term contracts with 
the Bureau of Reclamation. It also called for enlargement of the Pueblo 
and Turquoise reservoirs by 75,000 and 19,000 acre-feet respectively; 
for a variety of water quality monitoring and water banking programs; 
and preservation of a portion of the municipal outlet works capacity at 
Pueblo Dam for future domestic needs in the lower Arkansas River 
valley.
    The Water Conservancy District first approached me regarding this 
legislation in March 2000. At the beginning of this Congress, they 
asked me to be its sponsor and I was happy to do so. H.R. 3881 begins 
the implementation process for the Preferred Storage Option Plan.
    The first part of the bill--the re-operations segment--authorizes 
the Secretary of the Interior to enter into contracts with cities and 
towns comprising the Southeast Colorado Water Conservation District 
that need to store non-Project water to meet their current and future 
domestic needs.
    Second, the bill authorizes the Secretary to study the proposed 
enlargement of the Pueblo and Turquoise Reservoir. These studies would 
be funded by the District and by the communities that participate in 
the PSOP.
    Third, the bill authorizes the Secretary to enter temporary 
contracts to facilitate a water bank program in the basin. Such a pilot 
water bank program has already been approved by the Colorado State 
Legislature.
    The legislation also authorizes the Bureau of Reclamation to 
contract for the use of excess storage capacity by the city of Aurora 
and Pueblo West. And finally, the bill assures that the use of excess 
capacity in the existing storage facilities of the Fry-Ark project 
under the new Reclamation contracts will not be used to increase 
diversions out of the Colorado or Arkansas river basins without 
agreements or protections.
    H.R. 3881 is not the solution to Colorado's water problem but it is 
an important first step toward finding the 173,000 acre-feet the state 
will need in the next 40 years. Through intelligent use of existing 
resources, the process outlined in H.R. 3881 will provide for the 
storage of 48,000 acre-feet of non-Project water. That is water 
available under existing water rights held by cities and towns within 
the District's nine-country service area. Further, it will do this 
while continuing to honor the District's existing obligations under the 
1962 authorizing legislation and interstate compacts.
    As with any western water issue, this is something of a work in 
progress. Its present form came about, not only from the PSOP process, 
by as the result of lengthy negotiations this year between the District 
and the City of Aurora and the City of Pueblo. The debate continues. 
Today, we will hear other comments and concerns voiced by Pueblo, the 
Colorado River District, the state of Kansas and even the Bureau. Where 
water is scarce, everyone has an opinion on how it should be used.
    Thirteen years ago, when the great western water debate was over 
Two Forks, a member of one environmental group claimed the state could 
meet its needs through better utilization of existing smaller 
reservoirs. Thirteen years later, that is basically what H.R. 3881 will 
do. I look forward to working with the various affected groups to 
address their concerns and to working with this subcommittee on passing 
this bill.
    Thank you.
                                 ______
                                 
    Mr. Calvert. Mr. Moran, you may begin your testimony.

STATEMENT OF THE HON. JERRY MORAN, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF KANSAS

    Mr. Moran. Mr. Chairman, I appreciate the opportunity to be 
here today and to testify on H.R. 3881; and I appreciate the 
opportunity to sit here at this table with the distinguished 
Gentleman from Colorado.
    Communities, the environment, agricultural and other 
economic interests all utilize this limited resource, water; 
and I want to discuss today a particular body of water, the 
Arkansas River and how it highlights the value of this 
important resource.
    The Arkansas River enters Kansas in the western border of 
Colorado near the small town of Coolidge, population 88. The 
river works its way eastward across the State to Arkansas City, 
where it continues into Oklahoma. Along that route, it passes 
through the towns of Garden City, Dodge City, Larned, Great 
Bend, Hutchinson and many others. It provides the only source 
of surface water for most southwestern Kansas communities.
    Parts of the Arkansas are a dry riverbed now for as many as 
8 months out of the year. However, if you look at our State 
map, it is easy to see if that this river has been the 
lifeblood of many communities that grew up out of the otherwise 
dry prairie.
    Even today, the Arkansas River is celebrated in our State. 
The Wichita River Festival is an annual event organized in 
Wichita for the sole purpose of drawing Kansans together to 
recreate in and around this vital resource. In Kansas, the 
Arkansas River is more than an important source of water for 
municipalities. It is an important emotional and cultural asset 
for people who otherwise would not experience the joy of water.
    Because of its significance to economic development, water 
use along the Arkansas basin has long been controversial. The 
waters of the Arkansas River are the only renewable source of 
water, and scarce water flows provide water for development of 
our municipalities, both large and small. The river provides 
recreation opportunities and opportunities for tourism. 
Business and manufacturing depend upon the Arkansas River for 
the existence of commerce on the High Plains, and agriculture 
relies on this water to irrigate one of the highest-volume 
farming regions in the country. Rights to use the water from 
the Arkansas River are vested and are some of the oldest rights 
in our State.
    The first compact regulating the Arkansas River was 
negotiated between Colorado and Kansas; and, since 1950, we 
have had an agreement about who can use water and how much. The 
current compact has been interpreted by the courts with a 
series of lawsuits.
    Kansas sued Colorado in 1901, 1928, and 1985 over the use 
of the river's water. The latest subject of this dispute was 
the issue concerning the Colorado wells and the resulting low 
flow of water across the State line into our State. The last 
court case stemmed from Colorado pumping activity. Dated back 
to 1968, this case was ultimately decided by the United States 
Supreme Court.
    In a ruling last June, the Supreme Court declared that 
Colorado had overused its water under the compact and owed 
Kansas damages for loss of its water. A special master was 
appointed in 2001 to work with both States to find and avoid 
future disputes over the amount of water crossing the State 
lines. The dollar amount for the settlement has yet to be 
determined; and, in addition to the costs of damages, suits 
have created an enormous burden in litigation fees for each of 
our States to bear. Kansas alone has spent $17 million 
litigating with Colorado, and Colorado has paid an estimated 
$11 million in legal expenses.
    The legislation before the Committee today has significant 
concerns for Kansas as the primary downstream State user of 
Arkansas River water. This legislation has potential to damage 
areas of Kansas that depend solely on that river.
    If Colorado is allowed to increase their storage vessels by 
122,000 acre feet, it certainly means less water for Kansans. 
Water quality is another concern. EPA requires TMDLs to be set 
for the waters in this river. Water quality is worse in low 
flow conditions of the river, and the stream flow reductions to 
Kansas could cause tremendous difficulties in our State for 
meeting the TMDL requirements.
    The Arkansas River Compact Administration was formed back 
in 1949 to deal with issues between our States, and we should 
not bypass that compact administration when dealing with 
expansion of water storage that would normally flow downstream 
and eventually into our State.
    This legislation is particularly troubling coming on the 
heels of the latest court decision. After a decision last year, 
representatives of both States indicated they hoped to stay out 
of the courts in the future. At a time when we should be 
considering advanced measures of conserving water and 
maximizing its use for many interests as possible, we will be 
heading back to the courts. People in both Kansas and Colorado 
value water and recognize the limitations of a scarce commodity 
and believe that it is not in the best course of action for the 
citizens of either State to pursue this legislation.
    I would like to thank the Chairman and other members of the 
Committee for allowing me to testify. I live in a city that is 
struggling with access to water. We have low flow toilets and 
reduced flow shower heads and outside watering restrictions, so 
I know in my own community the difficulty that access to water 
presents. When members of the Colorado delegation meet with 
their community leaders, I understand the difficult situation 
that they are facing. I am willing to look for ways to work 
with Mr. Hefley and other members of the Colorado delegation, 
and I thank you again.
    This issue is of such importance, Mr. Chairman, that we 
have today testifying before your Committee Attorney General 
Carla Stovall and David Pope, our Chief Engineer of the State 
of Kansas, Division of Water Resources, representing the 
State's Governor.
    Again, I thank you for your time and will stand for any 
questions.
    Mr. Calvert. I thank the Gentleman.
    [The prepared statement of Mr. Moran follows:]

 Statement of The Honorable Jerry Moran, a Representative in Congress 
                        from the State of Kansas

    Mr. Chairman, Ranking Member Smith, and other members of the 
subcommittee, thank you for allowing me the opportunity today to 
testify on H.R. 3881. As members of the Water and Power subcommittee, 
you have to deal with one of the most difficult resource issues facing 
the Western United States: water.
    Water disputes have long divided regions, communities, states, and 
even countries. As members of this subcommittee you are faced with a 
constant barrage of requests from water users. Communities, the 
environment, agricultural, and other economic interests all utilize 
this limited resource. I want to discuss with you today how a 
particular body of water, the Arkansas River, characterizes the value 
of this important resource.
The Arkansas River in Kansas
    The Arkansas River enters Kansas at the western border with 
Colorado, near the small town of Coolidge, population 88. The River 
works its way eastward across the state to Arkansas City, where it 
continues into Oklahoma. Along the route, the Arkansas passes through 
the towns of Garden City, Dodge City, Larned, Great Bend, and 
Hutchinson, and provides the only source of periodic surface water for 
most southwestern Kansas communities.
    Parts of the Arkansas are a dry riverbed now for as many as eight 
months out of the year. However, looking at our state map, it is easy 
to see that in earlier times the River was the lifeblood for 
communities that grew out of the otherwise dry prairie. The towns and 
roads of southwest Kansas follow the path carved by the Arkansas.
    Even today, the Arkansas River is celebrated in our state. The 
Wichita River Festival is an annual event each May, organized solely 
for the purpose of drawing Kansans together to recreate on and around 
the only river in the area. In Kansas, the Arkansas River is more than 
an important source of water for municipalities; it's an important 
emotional benefit for people who otherwise would not see water except 
that coming from wells, pumped from the High Plains Aquifer deep 
underground.
History of Arkansas River Water Use
    Because of its significance to economic development, water use in 
the Arkansas basin has long been controversial. The waters of the 
Arkansas River are the only renewable source of waters and have 
tremendous significance to Southwest Kansas. The scarce river flows 
provide water for the development of municipalities, large and small. 
The river provides recreation opportunities for tourism. Business and 
manufacturing depend on Arkansas water for the existence of commerce on 
the High Plains. Agriculture relies on the water to irrigate one of the 
highest-volume farming regions of the country. Rights to use the water 
from the Arkansas River are vested and some of the oldest in the state 
of Kansas.
    The first compact regulating Arkansas River water was negotiated 
over 50 years ago. Since 1950, Kansas and Colorado have had agreements 
about who can use how much water. The current compact was reached after 
interpretation from the courts through a series of lawsuits. After 
spending more than a century fighting over these waters, Kansas and 
Colorado finally seem to have reached a court-imposed compromise.
State Disputes Involve Legal Action and Lead to Lengthy Court Debates
    Kansas sued Colorado in 1901, 1928, and 1985 over the use of the 
river's water. The latest subject of dispute regarding this river was 
the issue of Colorado wells and the resulting flow at the Kansas state 
line. The last court case stemmed from Colorado pumping activity dating 
back to 1968. This case was litigated for nearly ten years and 
ultimately was heard by the Supreme Court.
    In a ruling last June, the Supreme Court declared that Colorado 
owed Kansas millions of dollars for loss of water. Over 15 years after 
the case was initiated, the dispute finally entered into the remedy 
phase. A special master was appointed in September, 2001, to work with 
both states to find a way to avoid future disputes over the amount of 
water crossing the state line.
    A dollar amount for the settlement has yet to be determined, but 
the most conservative estimates indicate that Colorado will pay Kansas 
about $22 million for money the state and our farmers lost over the 
thirty-year period. In addition to these costs and the strain on human 
resources, suits create an enormous burden of litigation fees for 
states to bear. In the last court case alone, Kansas spent over $17 
million. Colorado paid an estimated $11 million in legal expenses.
Potential Consequences of Legislation Affecting the Water Compact
    The legislation before the committee today has caused great concern 
for Kansas as the primary downstream state. This legislation has the 
potential to damage Kansas areas that depend on Arkansas River water.
    Certainly if Colorado is allowed to increase their storage vessels 
by 122,000 acre feet, that would mean less water for Kansas. Water 
quality is another very big concern. EPA required Total Maxium Daily 
Loads (TMDL) be set for the waters of the Arkansas. Some TMDLs have 
been established and some are still to be set. Water quality is worse 
in ``low flow'' conditions of the river, and the reduction of 
streamflow to Kansas could cause tremendous difficulty in meeting new 
water quality regulations.
    There is no doubt that this legislation would cause damage to 
Kansas and to its citizens who depend on this water. In 1949 the 
Arkansas River Compact Administration was formed to deal with these 
types of technical issues. The Compact Administration should not be 
bypassed when considering expansion and storage of water that would 
normally flow down stream and eventually into Kansas.
    This legislation affecting compact violations is particularly 
troubling coming on the heels of the latest court decisions. After the 
latest decision last year, representatives of both states commented 
that they hoped to stay out of court in the future. I fear that the 
proposed legislation before the committee today would set us down the 
path of more litigation and unnecessary costs for both the state of 
Kansas and the state of Colorado. At a time when we should be 
considering advanced measures of conserving water and maximizing its 
use for as many interests as possible, we will be heading back to the 
courts. People in both states uniquely value water and recognize the 
limitations of such a scarce commodity, and is not the best course of 
action for the citizens of either states.
    I would again like to thank the chairman and other members of the 
committee for allowing me to testify, especially to those members of 
the Colorado delegation. I live in a city struggling to access enough 
water. When members of the Colorado delegation meet with their 
community leaders from Aurora, Pueblo or others, I do understand the 
difficulty of the situation.
    I look forward to working with members of the committee on this 
legislation. Thank you again.
                                 ______
                                 
    Mr. Calvert. I certainly understand water problems, being 
from California, some of our friends from the Upper Basin 
States and other places. But rather than ask questions, I would 
ask if the two of you would like to come up to the dais, and we 
will ask for testimony, and then we will be able to ask 
questions of the panel.
    Mr. Moran. Thank you, Mr. Chairman.
    I would ask unanimous consent to place in the record 
testimony from the Associated Ditches of Kansas.
    Mr. Calvert. Without objection, so ordered.
    [The information referred to follows:]

Statement of the Associated Ditches of Kansas with Respect to H.R. 3881

    The Associated Ditches of Kansas is a group of six non-profit ditch 
companies which hold vested rights to the use of a total of 140,000 
acre feet of the waters of the Arkansas River. Water diverted from that 
river in the exercise of those rights is used to irrigate thousands of 
acres of farm land from the Colorado-Kansas state line to Garden City, 
Kansas.
    The river flow is regulated by John Martin Reservoir, located 
upstream from the state line. It is operated by the Chief of the United 
States Corps of Engineers in accordance with the Arkansas River 
Compact, an interstate compact between the states of Kansas and 
Colorado and approved by the United States Congress which apportions 
the waters of the Arkansas River between those two states.
    The Associated Ditches have become extremely sensitized to the 
possible impacts of any development in the State of Colorado which may 
influence the amount of water available for them to divert from the 
Arkansas River. That sensitivity is the result of the protracted and 
very expensive interstate litigation between the states of Colorado and 
Kansas in the United States Supreme Court over the depletion in the 
state line flow of the river caused by the extensive well development 
in the State of Colorado. That Court has found that the unaugmented 
pumping of the Colorado wells violated the Arkansas River Compact and 
we are waiting for its determination of what kind of reimbursement of 
damages it will assess against the State of Colorado for that 
violation.
    Because of that sensitivity, we are especially concerned about the 
prospect of any new depletions in the flow of the waters of the 
Arkansas River into John Martin Reservoir, and ultimately across the 
state line. We have been told by the proponents of Colorado's storage 
project that the enlarged upstream storage capacity and the re-
operation of the Fryingpan Arkansas project will have no impact on the 
state line flows. We heard similar assurances about the post-compact 
wells, so we are understandably skeptical about such assurances now. As 
a result, we have asked our technical advisors to analyze, as best they 
could in the short time available, all of the various impacts of the 
proposal, including environmental, as well as hydrologic.
    Those advisors have not had a chance to fully analyze the technical 
work that has been done in the Colorado studies to promote a storage 
project. What they have been able to do, tells them that the hydrologic 
work stopped short of looking for answers to the critical questions 
that trouble us about the proposal. For example, state line impacts 
have not been specifically addressed, and water quality and 
environmental impacts caused by increased upstream water use have not 
been considered. Their concerns are discussed in the attached Technical 
Appendix.
    It was clear to them that those studies, performed to support the 
Preferred Storage Option Plan, were designed to optimize the upstream 
storage capacity for the purpose of maximizing yields from the waters 
of the Arkansas River, not to find out whether the operation of that 
optimized storage capacity and the population growth it supports would 
have an impact on the amount and quality of the waters of the Arkansas 
River available for storage in John Martin Reservoir that would be 
usable by the Associated Ditches.
    It is inconceivable to us that the addition of 122,000 acre feet of 
new storage capacity upstream from Pueblo can be justified merely to 
reregulate transmountain return flows alone. Indeed, the project's 
proponents readily admit that this large storage capacity will also be 
used to store peak flows of the waters of the Arkansas River which 
would, in the absence of such capacity, flow downstream for storage in 
John Martin Reservoir and be available for use by the Associated 
Ditches.
    This Subcommittee on Water and Power should be equally concerned 
about such impacts; it should require that the project not diminish the 
quantity nor impair the quality of water delivered at the Colorado-
Kansas state line. If H.R. 3881 studies find a detrimental impact, the 
project must be reformulated to avoid such a result. If such a 
reformulation cannot protect state line flows, the project should not 
go forward. It would be totally inappropriate for the Congress to 
authorize project modifications that would result in another violation 
by the State of Colorado of the Arkansas River Compact.
    Clearly, we are not anxious to endure another long drawn out and 
expensive course of litigation in the United States Supreme Court over 
this issue. Yet, until we have seen credible proof that the adverse 
impacts we fear will not occur, we can see no real difference between 
the State of Colorado violating the compact through unaugmented well 
pumping and violating it by skimming the peak flows of the river with 
upstream storage so as to prevent their being available for storage in 
John Martin Reservoir.

[GRAPHIC] [TIFF OMITTED] 78262.010

                           TECHNICAL APPENDIX
 ATTACHMENT TO THE STATEMENT OF THE ASSOCIATED DITCHES OF KANSAS WITH 
                          RESPECT TO H.R. 3881
    This attachment includes additional material in support of the 
statement of the Associated Ditches of Kansas regarding H.R. 3881. It 
is intended to offer a more detailed basis for the position that an 
inadequate technical analysis has been performed by proponents of the 
proposal to enlarge Pueblo Dam and Reservoir and Sugar Loaf Dam and 
Turquoise Lake, Fryingpan-Arkansas Project, Colorado. The authors of 
the Colorado reports state that their conclusions are in many cases 
based on old data (e.g., use of aerial photographs from the 1970s to 
assess wetland impacts) and should be considered essentially 
qualitative. They note that the purpose of their analysis was to aid in 
the selection of alternative scenarios and that approval of the project 
must be based on more thorough studies. The Associated Ditches of 
Kansas (hereafter referred to as ``Kansas) requests that all further 
studies that might be authorized by passage of H.R. 3881 include a 
careful consideration of the issues and concerns expressed in our 
statement and in this technical appendix.
BASIS OF REVIEW
    The questions and concerns listed below are based upon our 
preliminary review of the following documents:
     LPreferred Storage Options Plan. Prepared by GEI 
Consultants, Inc, September 21, 2001.
     LFinal PSOP Implementation Committee Report: Addendum to 
Preferred Storage Options Plan Report, April 19, 2001
     LPreferred Storage Options Plan Proposed Federal 
Legislation. Prepared by Southeastern Colorado Water Conservancy 
District, September 2001.
     LHydrologic analysis: Technical and Environmental Analysis 
of Storage Alternatives. Prepared by Montgomery Watson, March 2000.
     LWater Quality Issues: Technical and Environmental 
Analysis of Storage Alternatives. Prepared by Montgomery Watson, June 
2000.
     LEnvironmental Issues: Technical and Environmental 
Analysis of Storage Alternatives. Prepared by ERO Resources 
Corporation, March 2000.
QUESTIONS AND CONCERNS ASSOCIATED WITH THE PROPOSED WATER STORAGE 
        ENLARGEMENT PROJECTS AND THE TECHNICAL ANALYSES OF THEIR 
        HYDROLOGICAL, ENVIRONMENTAL AND WATER QUALITY IMPACTS
    1. The lack of attention devoted to potential adverse water 
quantity/quality impacts to Kansas in the documents listed above is 
surprising. Kansas was hard-pressed to find any specific evaluation of 
state line impacts. In sections where these documents address key 
project considerations, constraints, and potential fatal flaws, there 
are no concerns expressed regarding potential adverse impacts to 
Kansas. Such an omission raises questions of technical credibility for 
it is difficult to envision how the creation of over 122,000 acre-feet 
(AF) of additional storage in Colorado would not impact state line 
interests. This additional storage amounts to 75 percent of the 
historic average annual flow of the Arkansas River at the Colorado/
Kansas border, as shown in Figure 1. It is unacceptable to disregard 
this important point and, further, to neglect the accompanying 
fundamental shifts in the day-to-day operations of the Fryingpan-
Arkansas system.
    2. In the few places where there is any reference to state line 
impacts, the documents state that such impacts will not be significant 
or adverse. Kansas does not believe that the data presented supports 
this conclusion. It defies logic that the proposals would not adversely 
impact state line flows. If Colorado were not intending to store water 
which would otherwise have come into Kansas, why did the Southeast 
Colorado Water Conservancy District file new water rights applications 
in 2000 to capture high flows in the new reservoir storage space?
    3. The documents that we reviewed do not clearly answer this key 
question:
        What additional water will be stored that is not currently 
        being stored, and where does it originate?
    The availability for storage of an additional 122,000 AF indicates 
by simple water ``mass balance'' principles that the water has been 
diverted from other destinations.
    4. We hope that the Subcommittee members recognize how much 
sophisticated computer modeling underlies the proposals for system re-
operation and additional storage. These sophisticated models rely on 
numerous assumptions that must be based on reliable data. As Kansas 
stakeholders know from the most recent round of litigation before the 
United States Supreme Court concerning the Arkansas River Compact, 
modeling assumptions are not always consistent with reality and can 
lead to incorrect conclusions. The Associated Ditches are particularly 
interested in having engineering and economic consultants review the 
relevant models, beginning with the models that Colorado interests are 
using to generate water demands, water conservation and water reuse 
activities as of 2040. A similar review of the water rights models 
developed by GEI and Montgomery Watson/Black & Veatch using the 
Colorado State University (CSU) model, MODSIM is appropriate. Kansas' 
experience indicates that small changes in modeling assumptions often 
produce opposing outcomes. Until interested parties in Kansas have had 
the opportunity to thoroughly review the relevant models, they should 
be considered interim and subject to change.
    5. Kansas would like to learn more about the water conservation and 
water reuse proposals that are envisioned by the project proponents. 
Kansas' interest centers on the fact that effective water conservation 
and reuse reduces the need for additional storage. Furthermore, since a 
large portion of the additional storage is expected to be used to 
satisfy population growth demands, one can infer that the flows 
reaching the state line will include a significant volume of municipal 
return flow which has inherently inferior water quality.
    6. Colorado's assurances that Kansas will not be negatively 
impacted by the proposed re-operation/additional storage are not 
adequately supported. Colorado is suggesting that on an average annual 
basis, there will be little change in stream flow at the state line. 
Kansas is not comfortable with this finding. Even if it were true, 
Kansas interests could still be negatively impacted because they are 
affected by flows, not only on an average annual basis, but also on a 
much smaller ``time step'' basis. Obviously, the Associated Ditches are 
concerned with river flows during irrigation months, particularly 
during dry periods. Kansas is also keenly interested in the distinction 
between dry year and average year flows.
    There are additional examples of the importance of the timed 
distribution of water flows. Water quality regulation in the Arkansas 
River in Kansas is based on extremely low flow conditions. Various 
total maximum daily loads (TMDLs) have been and are being applied to 
the Arkansas River in Kansas, and all of these are flow dependent. Our 
state has recently established a long-term management plan for the 
Ogallala Aquifer, which includes the objective of using ``excess flow'' 
in the Arkansas River to recharge the Ogallala Aquifer. Unfortunately, 
the documents listed above are not sufficiently detailed to predict how 
the high flow regime will be affected at the state line and whether 
Kansas can utilize flows in times of historic surplus for aquifer 
recharge.
    7. In addition to the requirement for more specific and detailed 
information regarding flow regime changes, better information is needed 
regarding anticipated water quality changes. At the present time, water 
users in Kansas are the recipients of extremely poor water quality from 
Colorado. In fact, the Colorado Water Quality Control Division (CWQCD) 
has acknowledged that the Arkansas River at the state line is one of 
the most saline rivers in the United States. Many aspects of the 
proposed re-operation/additional storage program have the potential to 
impair water quality further. A number of quality impacts are addressed 
in the technical reports, such as increased evaporation from the 
enlarged storage facilities, which will increase constituent 
concentrations. However, most non-hydrological impacts have been 
ignored. For example, there will be substantially more municipal and 
industrial effluent in the river, a topic that was not addressed by the 
documents reviewed. Representatives of the Kansas Department of Health 
and Environment (KDHE) and the CWQCD have been exploring potential ways 
for the states to work collaboratively and cooperatively on water 
quality issues for almost two years. These representatives should be 
interviewed by proponents of HR-3881 to explore the compatibility 
between system re-operation/increased storage and enhanced water 
quality at the state line.
    8. Spring snowmelt ``flushing'' flows into Kansas are important for 
many reasons. Aquifer recharge, mentioned above, is one such reason. 
Another reason is that one of the five major objectives of the Upper 
Arkansas Sub-basin Management Plan, developed over the past four years 
by the Kansas Department of Water Resources (DWR) and water users in 
the Upper Arkansas Sub-basin, is to restore historic river channel 
characteristics (in other words, to transform the river geomorphology 
into a more natural condition). This work is being done in cooperation 
with the U.S. Army Corps of Engineers (USACE). In the absence of 
periodic flushing flows, the ability to accomplish this will be 
impaired. As another example, extensive modeling work by the Kansas 
Geological Survey has demonstrated that decreased flows in the Upper 
Arkansas River have enhanced migration of saline river flows into the 
Ogallala Aquifer, thereby increasing aquifer salinity concentrations 
over a large area along the Arkansas River corridor. There is concern 
that this phenomenon will be aggravated by the proposed system re-
operation/additional storage.
    9. Although many regulatory and permitting issues related to 
compliance with the National Environmental Policy Act (NEPA), 
recreation classifications, wildlife habitat, threatened and endangered 
species, Section 404 permits, etc. have been addressed in the technical 
reports, the analyses admittedly are frequently based on old data and 
may no longer be relevant. These reports note that their analyses are 
intended to help rank alternative scenarios and that approval of the 
project must be based on more thorough environmental studies and 
appropriate impact statements.
    10. Members of the Associated Ditches are struck by the potential 
for inconsistent federal action in Kansas, in association with HR-3881. 
For example, the United States Environmental Protection Agency (USEPA) 
is requiring Kansas (under a consent decree) to prepare TMDL's for 
every major watershed in Kansas within eight years, including the Upper 
Arkansas River. At the same time, under HR-3881, the Federal Government 
could be advocating a project, which might seriously impact the ability 
of Kansas Water Users to comply with the Upper Arkansas TMDL. 
Similarly, the USACE and USEPA are concerned about potential adverse 
impacts to jurisdictional wetlands, waters of the US, and riparian 
corridors in association with water delivery/storage systems, and this 
could be at odds with the proposed storage plan. In conclusion, Kansas 
requests that United States Congress be highly cognizant of the 
potential for federal agencies (and federal programs) to be at cross-
purposes via H.R. 3881.
                                 ______
                                 

    Statement of the Associated Ditches of Kansas, Harold D. Knoll, 
                               President

    The validity of the major questions we raised in the March 19, 2002 
testimony with respect to H.R. 3881 was confirmed by our engineering 
consultant's further review of Environmental Issues (ERO Resources 
Corporation, March 2000) and Water Quality Issues (Montgomery Watson, 
June 2000) reports. These reports were prepared during the development 
of the Preferred Storage Options Plan (PSOP) by the Southeastern 
Colorado Water Conservancy District (SECWCD) and Colorado Springs 
Utilities (CSU). Water quality and environmental impacts on water users 
in Kansas which would likely result from the proposed projects were not 
addressed quantitatively or to Kansas' satisfaction in those initial 
studies.
    Such a result was inevitable, given the failure of those 
investigations to adopt a watershed or integrated approach. Our review 
of those studies supports our earlier statements that increases in 
water storage in Colorado will have detrimental effects on water users 
in Kansas. The methods and limited scope of those studies precluded any 
consideration of those detrimental impacts to Kansas. The authors state 
that the purpose of the environmental and water quality analyses was 
only to assist in ranking proposed storage alternatives. Such an 
objective inherently omits consideration of downstream (specifically 
state-line) impacts, and avoids asking the question:
    How does water chemistry change at the Colorado-Kansas border?
    Review of data sources and methods used in the reports demonstrate 
the inadequacy of the studies in addressing this important question.
Data Sources
    Many site specific environmental impacts were apparently discussed 
in meetings and/or other personal communication with representatives 
from the U.S. Forest Service (USFS), U.S. Fish and Wildlife (FWS), 
Environmental Protection Agency (EPA), Bureau of Reclamation 
(Reclamation), Bureau of Land Management (BLM), Colorado Division of 
Wildlife (CDOW), Colorado State Parks, and the U.S. Army Corps of 
Engineers (Corps). While these agencies are certainly appropriate 
sources of information, the type of data described suggests only 
qualitative and cursory analysis.
    Examination of the potential for site specific wetland impacts was 
based primarily on 1970's National Wetlands Inventory (NWI) aerial 
photography. Delineations were not field-verified for current 
conditions. Again, no attempt was made to study possible wetland 
impacts in Kansas.
    Often qualitative assessments were used to make quantitative 
judgments. For example, increased toxicity in the Upper Arkansas River 
Basin is possible according to the analysis, but then the authors 
state, ``Additional study would be required to determine whether the 
potential change in toxicity due to increased West Slope imports is 
significant'' (Water Quality Issues, p.9-22). The omission of this 
potential effect in the list of ``fatal flaws'' is significant.
Lack of Watershed Approach
    Only site specific impacts from the proposed action(s)which might 
be required to satisfy storage demands were examined. That approach 
considered only questions such as: What happens to the Turquoise 
Reservoir if it is enlarged? The lack of a watershed approach prevents 
assessment of impacts at downstream locations, therefore the approach 
incorrectly characterized the full scope of effects. Specific 
objections to the study's conclusions arising from the lack of an 
integrated watershed approach to assess impacts include:
    1. The Water Quality Issues report specifically states that 
increased inflows to the Turquoise and Twin Lakes Reservoirs ``would 
aggravate existing channel erosion problems'' (p. 9-13). But the 
increase in sediment loads combined with predicted decreased retention 
time in these reservoirs has a significant potential for impacting 
downstream water quality, yet that issue was not considered. 
Furthermore, transport of pollutants commonly associated with sediment 
loads, such as some heavy metals and nutrients, was not a factor in the 
analysis.
    2. In the reports, impacts to water quality that would be a direct 
result of project operation were never combined with the impacts of 
water quality changes that may occur as a result of increased water 
use. It is critically necessary to address all impacts related to the 
increased water use demand made possible by the various storage 
alternatives in order to identify potential ``fatal flaws'' in the 
different scenarios. For example, the Water Quality Issues document 
admits that ``Increased base flows in Fountain Creek would contribute 
additional sediment load to the lower Arkansas River'' (p.9-22). The 
increased flows (attributed to increased municipal return flows with 
inherently degraded water quality) were not considered as impacts 
resulting from operation of the various storage alternatives, and hence 
are not included as decision variables in the different scenarios. But 
the full potential impact of the storage plan must consider the 
cumulative sediment loads from changes in the Twin Lakes and Turquoise 
Reservoirs operations together with the loads from Fountain Creek to 
appropriately assess downstream impacts.
    3. The interaction of possible changes with current conditions was 
not considered. For example, the report states that changes to water 
depth and water quality are not anticipated in association with the 
enlargement of the Pueblo Reservoir. The report then states that the 
combination of increased residence time (which may result from 
enlargement) and the expected future increases in nutrient loading 
(regardless of enlargement) may degrade water quality (p.9-8--9-11). 
The report should not thus blithely dismiss the impact of enhancement 
of nutrient loading caused by increased residence time simply because 
the project is not the sole source of water quality degradation.
    4. The simple mass-balance model used to simulate salinity, which 
is based solely on concentrations in West Slope diversion water and 
municipal return flows, together with the effects of lake evaporation, 
is inadequate. Failure to include salinity associated with anticipated 
urban landscaping return flows and future wastewater return flows in 
the Pueblo region cannot help but underestimate the magnitude of actual 
future effects, and hence the impact to Kansas. Furthermore, 
simulations of salinity in the Lower Arkansas River indicated little 
change in average annual concentrations; however changes in average 
monthly levels may be significant, namely a 10-15% increase in the 
spring months. Increased salinity of the river flow directly impacts 
the ability of the Associated Ditches to provide suitable water for 
crop irrigation.
    5. The Water Quality Issues report acknowledges potential future 
problems associated with changes in the flow regime for Colorado as the 
US Environmental Protection Agency and the Colorado Department of 
Public Health and Environment begin to implement TMDLs, but does not 
consider changes in flow regime to be important to the TMDLs already 
being developed and/or implemented in Kansas. But those analyses must 
recognize the requirement for TMDL development within Colorado, and its 
regulatory impacts on the proposed projects' operation. Responsible 
planning and management mandate that new water projects be in 
compliance with all regulatory requirements.
    6. Impacts to riparian habitat or wetlands along the Arkansas 
River, Williams Creek, Fountain Creek or other effected streams were 
not considered.
    7. Nonpoint source loads from agricultural runoff, such as 
nutrients and bacteria were not considered.
    8. The authors clearly state that environmental modeling was not 
used for any part of the assessment. Such an admission acknowledges the 
shallowness of the study.
    9. Construction-related impacts were not considered. While such 
impacts can be mitigated to a certain extent, practical experience 
proves that these loads can still be significant. They should be 
addressed.
    The methods used to rank storage alternatives failed to address 
water quality and environmental issues to Kansas's satisfaction. Use of 
outdated and qualitative data, and lack of a watershed approach do not 
validate conclusions presented in these studies. The cursory fashion in 
which the PSOP was formulated with regard to consideration of 
downstream impacts is wholly inadequate to support Congressional 
authorization of, and the expenditure of federal money for further 
study of the proposed options.
    Even without such further study, and based on review of the 
Environmental Issues and Water Quality Issues reports, it is clear that 
increasing storage in the Arkansas River Basin within Colorado would be 
detrimental to agricultural and municipal water users in Kansas. The 
reports acknowledge increased loadings without expressing concern for 
downstream impacts. Kansas already receives water of poor quality from 
Colorado, and the proposed changes in the water regime will further 
limit the beneficial uses of the Arkansas River in Kansas.
                                 ______
                                 
    Mr. Calvert. The first witness is John W. Keys, III, 
Commissioner of the Bureau of Reclamation, United States 
Department of Interior.
    John, why don't you take a seat there. You are recognized 
for what time you may consume.

    STATEMENT OF JOHN W. KEYS, III, COMMISSIONER, BUREAU OF 
          RECLAMATION, U.S. DEPARTMENT OF THE INTERIOR

    Mr. Keys. It is a pleasure to be here today and provide 
testimony on proposed House bill 3881, which would authorize 
the Bureau of Reclamation to engage in studies to use excess 
capacity from and enlarge Pueblo Dam and Reservoir and Sugar 
Loaf Dam and Turquoise Lake of the Fryingpan-Arkansas Project 
in Colorado.
    I would ask that my full written statement be included in 
the record.
    Mr. Calvert. Without objection, so ordered.
    Mr. Keys. Mr. Chairman, Reclamation has two main objectives 
in working with the Southeastern Colorado Water Conservancy 
District. The first is to protect the facilities and authorized 
purposes of the existing Fryingpan-Arkansas Project and, 
second, to work with the district to do the proper studies of 
enlargement of Pueblo and Sugar Loaf Dams. These project 
purposes that we will protect are domestic and municipal water 
supplies, supplemental irrigation water, hydropower generation, 
flood control, recreation and conservation of fish and wildlife 
resources.
    Under the 1962 Act, the use of water and facilities of the 
project are subject to three interstate compacts: the Colorado 
Kansas Compact, the Upper Colorado River Basin Compact and the 
Colorado River Compact. House bill 3881 would authorize 
Reclamation to conduct studies for the enlargement of Pueblo 
Dam and Reservoir, Sugar Loaf Dam and Turquoise Lake. It would 
also authorize the Secretary to enter into contracts for the 
use of excess storage and conveyance capacity in each of those 
facilities in Colorado.
    Reclamation supports the concept in H.R. 3881 of using the 
excess capacity in reclamation facilities but within legal and 
policy parameters to optimize the benefits provided by the 
projects. Use of excess capacity may offer lower costs and more 
environmentally friendly solutions to water users than building 
new facilities. However, our concerns with H.R. 3881 are 
numerous.
    As stated before, the Fryingpan-Arkansas Project is a 
multi-purpose project. Any feasibility study must assess the 
overall impacts of the proposed reoperation of existing 
facilities and project purposes and impact of planned 
enlargements on those same facilities and project purposes as 
well as the new ones, and the study must assess any impact that 
the enlargements of redelegations of water and new operations 
might have on the interstate compacts.
    H.R. 3881 refers to the Preferred Storage Options Plan 
Report, PSOP, and the final PSOP Implementation Committee 
Report as describing the proposed enlargements and the use of 
excess capacities to deliver additional water supply. H.R. 3881 
limits the scope of studies it would authorize to only those 
provisions described in the PSOP reports. These reports 
represent only the district's interests and not necessarily 
those of the Federal Government.
    The scope of any feasibility study for enlarging Pueblo Dam 
and Reservoir and Sugar Loaf Dam and Turquoise Lake of the 
Project must be significantly broader than that proposed in 
H.R. 3881. It must address the other purposes and 
responsibilities of the project.
    Rather than authorize a district to fund the study, as 
proposed in proposed H.R. 3881, Reclamation recommends that any 
legislation authorize up to 50 percent of the total cost of 
feasibility studies. Such language would ensure that the 
studies would be done to Reclamation standards. The PSOP 
reports could be used to represent the district's interest, and 
interests of the public and stakeholders would be protected. We 
estimate the Federal share of the study to be about $2 million.
    Section 2 of H.R. 3881 appears to suggest that 
congressional authorization of a feasibility study might be 
sufficient to authorize construction at the dam without need 
for Congress to consider construction after the study is done. 
Although the 1939 Act is still on the books, Reclamation has 
not done business in this matter for over 30 years. We 
encourage you only to authorize an appropriate feasibility 
study at this time. Should construction be warranted and agreed 
upon, we will return to ask for specific construction authority 
after the study is done.
    The sections of H.R. 3881 that deal with contracts are very 
complicated and prescriptive and in some cases would have 
adverse impacts upon the project and other water users. We have 
begun a full legal and policy analysis of these contract 
provisions, and we will share that review with the Committee 
when it is completed.
    Finally, the application of revenues collected under the 
legislation is not consistent with current Reclamation law.
    Mr. Chairman, Reclamation commends the district for its 
efforts to address its future water needs. We believe we can 
work with them to complete a feasibility study for enlarging 
Pueblo Dam and Reservoir and Sugar Loaf Dam and Turquoise Lake 
that will help them reach their water supply goals, protect the 
original project purposes and honor all of the applicable 
compacts. We would be happy to work with the sponsor and the 
Committee to develop legislative language that will achieve the 
sponsor's goals while addressing our concerns with H.R. 3881 as 
introduced.
    That completes my statement, and I would certainly try to 
answer any questions that you have.
    Mr. Calvert. I thank the Gentleman for his testimony.
    [The prepared statement of Mr. Keys follows:]

 Statement of John W. Keys, III, Commissioner, Bureau of Reclamation, 
                    U.S. Department of the Interior

    My name is John Keys, and I am Commissioner of the U.S. Bureau of 
Reclamation (Reclamation). I am pleased to provide the Administration's 
views on H.R. 3881, which would authorize the Secretary of the Interior 
to engage in studies relating to enlarging Pueblo Dam and Reservoir and 
Sugar Loaf Dam and Turquoise Lake of the Fryingpan-Arkansas Project in 
Colorado. While the Administration supports the efforts of the 
Southeastern Colorado Water Conservancy District to plan for future 
water needs, we cannot support H.R. 3881 as written.
    Congress authorized the Fryingpan Arkansas Project (Project) in 
1962 as a multi-purpose, transmountain, trans-basin water diversion and 
delivery project in Colorado. It makes possible an average annual 
diversion of 69,200 acre-feet of surplus water from the Fryingpan River 
and other Colorado River tributaries on the western slope of the Rocky 
Mountains to the Arkansas River basin on the eastern slope. Water 
diverted from the western slope, together with available water supplies 
in the Arkansas River Basin, provides an average annual water supply of 
80,400 acre-feet for both municipal/domestic use and supplemental 
irrigation in the Arkansas Valley. The Project includes a hydroelectric 
power plant with a generating capacity of 200 megawatts. Additional 
authorized Project purposes include flood control, recreation, 
conservation of scenery, natural, historic and archeologic objects on 
Project lands, and conservation and development of fish and wildlife 
resources. Further, under the 1962 Act, the use of Project water is 
subject to numerous inter-state compacts. This includes the Colorado-
Kansas compact. The Project has been operated and maintained by 
Reclamation since its completion.
    The Southeastern Colorado Water Conservancy District (District) 
represents the irrigation and municipal and industrial water users 
served by the Project water supply. The District is responsible for 
repaying the United States for the cost of Project works associated 
with the irrigation and municipal and industrial functions of the 
Project, plus applicable interest. The District also pays a 
proportionate share of annual operation and maintenance (O&M) of the 
Project.
    H.R. 3881 authorizes the Secretary of the Interior (Secretary), 
through the Bureau of Reclamation, to conduct studies for the 
enlargement of Pueblo Dam and Reservoir, Sugar Loaf Dam and Turquoise 
Lake. The legislation also authorizes the Secretary to enter into 
contracts for the use of excess storage and conveyance capacity in east 
slope facilities of the Fryingpan-Arkansas Project, Colorado.
    Reclamation supports the concept expressed in H.R. 3881 of using 
the excess capacity in Reclamation facilities, within legal and policy 
parameters, to optimize the benefits provided by the projects. Use of 
excess capacity may offer lower costs and more environmentally friendly 
solutions to water users than building completely new facilities.
    However, our concerns with H.R. 3881 are numerous. My testimony 
today highlights a few of these concerns.
Feasibility Studies
    The Fryingpan-Arkansas Project is a multipurpose project whose 
authorizing legislation imposes, in addition to authorized Project 
purposes, legal obligations on Reclamation including compliance with 
the interstate compact on the Arkansas River between Colorado and 
Kansas. Therefore, any feasibility study must assess the overall 
impacts of the proposed re-operation of existing facilities, on 
contracts, and the impact that the use and operation of planned 
enlargements of Project facilities might have on other users of Project 
water and on the interstate compact.
    H.R. 3881 refers to the Preferred Storage Options Plan (PSOP) 
Report of September 21, 2000, and the Final PSOP Implementation 
Committee Report of April 19, 2001, as documents describing the various 
aspects of proposed enlargements at two reservoirs and the use of 
excess capacity of existing facilities in delivering these additional 
water supplies. H.R. 3881 limits the scope of studies it would 
authorize to only the provisions described in the PSOP reports 
themselves. These reports, products of considerable effort and forward 
thinking by the District, were prepared by consultants to the 
Southeastern Colorado Water Conservancy District and Enterprise Board, 
and, as such, represent only the District's interests, and not 
necessarily those of the Federal government.
    Because Fryingpan-Arkansas is a Federal multi-purpose Project which 
Reclamation must operate in compliance with inter-state compact 
obligations, Reclamation's role is different from and broader than that 
of the District and, therefore, the scope of any feasibility studies 
relating to enlarging Pueblo Dam and Reservoir and Sugar Loaf Dam and 
Turquoise Lake of the Fryingpan-Arkansas Project must be significantly 
broader than that proposed in H.R. 3881. While the PSOP studies are 
very useful tools in presenting the District's interests, Reclamation's 
role is to analyze the impacts of the proposed action at Pueblo Dam on 
all the beneficiaries of Project water, as well as on the multiple 
Project purposes including upland recreational improvements around 
Turquoise Lake, and on the inter-state compacts. Under Congressional 
directives and long-standing Reclamation policy, a feasibility study 
performed by Reclamation must study a range of alternatives to 
determine the best approach to meeting identified needs.
    Rather than authorize a District to fund the total cost of the 
studies, either partly or wholly in the form of services, as proposed 
in H.R. 3881, the Department recommends that any legislation authorize 
up to 50% of the total cost of feasibility studies. This would ensure 
that feasibility studies appropriate for the nature and complexities of 
the Project are designed, written, and completed to Reclamation's 
standards, using the PSOP reports as a foundation expressing the 
District's interests, and with a shared ownership of the end product. 
In this manner, the Secretary, through Reclamation, can ensure that the 
interests of the public and stakeholders have been considered, to the 
extent possible, through the public process required by Reclamation 
law, while sharing the costs with the District consistent with current 
Reclamation policy. We estimate the cost of the federal share of such 
studies to be about $2 million.
Congressional Authorization of Construction
    Section 2 of H.R. 3881 appears to suggest that congressional 
authorization of a feasibility study may be sufficient to authorize 
initiation of construction at the Dam, without the need to go back to 
Congress for additional specific construction authorization. Although 
this law (the Act of August 4, 1939) is still on the books, it 
conflicts with how Reclamation has done business for over 30 years. 
Reclamation encourages the Committee to authorize only an appropriate 
feasibility study relating to enlarging Pueblo Dam and Reservoir and 
Sugar Loaf Dam and Turquoise Lake of the Fryingpan-Arkansas Project in 
Colorado. Reclamation will request that Congress provide for 
construction authorization if results of the feasibility study justify 
that work.
Legal Precedents
    The sections of H.R. 3881 dealing with contracts are very 
complicated and, if enacted, could set many precedents Reclamation-
wide. The current language of H.R. 3881 is very prescriptive and could 
cause unintended and adverse precedents for Reclamation contracts with 
other entities for excess storage capacity and the delivery of non-
project water through project facilities. Reclamation has begun a full 
legal and policy analysis of the precedent-setting actions set forth in 
H.R. 3881. When it is completed, we will send a copy to the Committee.
    Reclamation also has concerns about the implications for potential 
water delivery contractors arising from the various restrictions 
imposed by H.R. 3881 on the Secretary's contracting authority. For 
example, H.R. 3881 states that Reclamation can contract with any entity 
delivering water for municipal or other purposes, but the entity must 
first have signed an agreement with the District under certain terms 
listed in the legislation. These terms include a provision for payment 
of any surcharges set by the District. This requirement alone could 
provide significant leverage to the District to impose substantial 
surcharges as a prerequisite to an agency's entering into a contract 
with the Secretary.
    Finally, the application of revenues collected under the 
legislation, not related to the surcharges of the District, is not 
consistent with current Reclamation law.
Conclusion
    Reclamation appreciates the District's forward thinking and 
collaborative planning efforts in developing its PSOP reports. While we 
applaud their efforts to plan for the future, we must recognize the 
many complexities of the Project. Unlike many Reclamation projects, the 
Fryingpan-Arkansas Project was developed for multiple uses from the 
beginning, so our role is different and broader than the District's. 
Reclamation is committed to build upon the good work done by the 
District. As such, the Department proposes that Congress authorize 
Reclamation to conduct a feasibility study consistent with the 
AReclamation Manual Directives and Standards for feasibility studies@, 
with a shared ownership of the end product; and to produce contracting 
authorities consistent with and complementary to Reclamation law.
    Reclamation commends the Southeastern Colorado Water Conservancy 
District and Enterprise Board for its efforts to address its future 
water needs. Reclamation would be happy to work with the sponsor and 
the Committee to develop legislative language that would achieve the 
sponsor's goals while addressing our concerns with H.R. 3881 as 
introduced. This concludes my statement and I would be pleased to 
answer any questions.
                                 ______
                                 
    Mr. Calvert. Maybe we can expand on this a little bit.
    Section 2a of the Act begins by stating, the Secretary of 
Interior is hereby authorized to engage in storage space 
studies up to and including the feasibility study pursuant to 
section 8 of the Federal Water Project Recreation Act and 
section 9a of the Act on August 4 of 1939. As may be 
appropriate relating to the enlarging of Pueblo Dam and 
Reservoir and Sugar Loaf Dam and Turquoise Lake, explain what 
the implication of these sections are.
    Mr. Keys. Well, sir, if you look at the 1939 Act, the 
language in there actually takes it all the way to 
construction; and what we are saying is we would like to do the 
feasibility study and then come back for specific authorization 
to do construction, rather than this one authorization carry it 
all the way through the process.
    Mr. Calvert. Has there been precedent for that already? I 
mean, as far as going ahead and doing the feasibility and 
moving directly to construction?
    Mr. Keys. Yes, sir. In the 1940's and 1950's, it was done 
that way on a regular basis. But, like I said, for the last 30 
years we have not done it that way. We think we need to do a 
feasibility study and come back and let the Congress know what 
the results of that feasibility study are before specific 
construction is authorized.
    Mr. Calvert. How long would that feasibility study take?
    Mr. Keys. We think we can do it in a couple of years, sir.
    Mr. Calvert. Thank you.
    Mr. Hefley.
    Mr. Hefley. Well, we certainly want to work with you on 
your concerns, and the Bureau is concerned. Where were you when 
we were trying to develop this bill? Because we thought we 
worked with everybody to work out whatever we could on this.
    Mr. Keys. Mr. Chairman, Mr. Hefley, we worked with the 
people from southeast Colorado, but we were not part of the 
decisionmaking process in doing the designs and actually doing 
the drafting of the bill.
    Mr. Hefley. Mr. Chairman, I guess that is all I have at 
this point.
    We do want to work with you and try to work it out. I am 
not sure I agree with all of your concerns, but we don't want 
this bill to be a bill which hurts anybody--the downstream 
compacts, isn't it true that the law determines how much water 
under the compacts we send downstream to Kansas?
    Mr. Keys. Mr. Chairman, Mr. Hefley, the State law 
determines that. All of our projects are built within State 
water rights. Then we operate those projects within those water 
rights, and all of our water rights are subject to the compacts 
that are negotiated between those States. So we are subject to 
those. The existing project is subject to them, and any 
resulting project should be subject to those State water rights 
and the compacts.
    Mr. Hefley. Mr. Chairman, you are aware of this better than 
anybody because you are a recipient of the Colorado River 
drainage system, but everything starts in Colorado when we talk 
about water. I think there is one little stream that comes out 
of Wyoming up on the border and into Colorado, but all the 
other rivers run out of Colorado. So the Poudre goes into 
Nebraska, and we have to deal with a compact on the Poudre. The 
Arkansas River goes into Kansas, and we deal with the compacts 
for the Arkansas River, and they are entitled to their share of 
the water. And the Rio Grande goes into New Mexico and Texas 
and Colorado, goes to California--through a number of States.
    So it is a tough situation when we start dealing with 
water; and everybody gets very, very nervous when we start 
dealing with water because you don't want your communities 
dried up. The thing that limits Colorado's future growth is 
water. That is the one thing that limits it, and the need to 
store water. We don't get much rain. We get snow in the 
wintertime, and we need to be able to store that snow in the 
wintertime for beneficial use later on in the year, whether it 
be going downstream to the compacts or be for use within the 
State of Colorado.
    The Bureau of Reclamation has worked very well with us, and 
we hope that you will work with us as we try to develop this 
bill to make it work for everybody. We have no intention of 
damaging anybody with this piece of legislation, but we do 
think that it has a two-prong importance. The first is that 
some of the municipalities can store their water in Pueblo 
Reservoir; and that is--as I indicated in my testimony, maybe 
the most important part of this whole thing is the ability to 
store their water, it is their water, to be able to store it 
there. And, second, to look at the idea of expanding these 
reservoirs for future storage.
    After Two Forks, which was approved all the way up and down 
the line until the EPA Director, who happened to be in the 
first Bush administration and didn't know Two Forks from 
anything, arbitrarily, after it passed all the permitting and 
had gone on for years, he arbitrarily canceled it, I said, 
there will never be another major water project built in the 
West after this kind of example ever again. So you have to do 
something to be able to capture and store more of this water.
    Of course, that is the business you are in, Mr. Keys; and I 
hope that you will work with us on this.
    Mr. Keys. We would pledge to work with both the sponsor and 
the Committee to work on the bill to make it acceptable and 
then to do the necessary studies so that our project 
facilities, their purposes and so forth are protected and to 
help southeast Colorado come up with what they need to do.
    Mr. Calvert. Thank you, and I would be happy to work with 
everybody to try to accommodate that.
    Mr. Moran.
    Mr. Moran. Mr. Chairman, thank you for allowing me to be in 
a Committee that is so cooperative. It is pleasing to be here 
and hear the testimony. I thank Mr. Keys for his comments.
    I would only ask that the feasibility study include the 
role compliance with the compact. Is that something that is 
considered in your feasibility study? Is it one of the three 
compacts that you described?
    Mr. Keys. Mr. Chairman, it is part and parcel of meeting 
the water rights that we would have to obtain from the State 
before we could build the project. The study would determine 
how much water is available, how we would meet the compact and 
provide the waters that folks are looking for.
    Mr. Moran. So a project that is determined feasible by the 
Bureau of Reclamation would be in compliance with the compacts?
    Mr. Keys. Mr. Chairman, that is correct. It has several 
levels of feasibility. One is economic feasibility and the 
other is whether it will work or not. And certainly State water 
rights are part of the decision of whether it will work.
    Mr. Moran. Thank you, Mr. Chairman.
    Mr. Calvert. Thank you. Any further questions for this 
witness?
    Mr. Hefley. If I might ask one more question, why would it 
take 2 years to do this feasibility study? Don't you have most 
of the data and so forth at hand?
    Mr. Keys. Mr. Chairman and Mr. Hefley, we have the data on 
what southeast Colorado wants to do, but we need to go back and 
look at the other purposes of the project to be sure that they 
are protected, to see if there are other purposes that should 
be expanded at the same time. While we are raising the dam, it 
would be a shame to raise it to a certain level and another 
half of foot might provide so many other benefits or maybe the 
last half of foot that you are looking for has done some damage 
that you can get away from. So we would take a look at all the 
other purposes of the project at the same time, using that 
information from southeast Colorado and what they need.
    Mr. Hefley. You still think it would take about 2 years?
    Mr. Keys. Yes, sir.
    Mr. Calvert. I thank the Gentleman for his testimony.
    Our second panel is the Honorable Carla Stovall, the 
Attorney General for the State of Kansas; the Honorable Jim 
Null, Councilman, City of Colorado Springs, State of Colorado; 
and David Pope, Chief Engineer, State of Kansas Department of 
Agriculture, Division of Water Resources.
    Mr. Calvert. Ms. Stovall, you may begin your testimony.

  STATEMENT OF THE HONORABLE CARLA STOVALL, ATTORNEY GENERAL, 
                        STATE OF KANSAS

    Ms. Stovall. Mr. Chairman, thank you very much for the 
privilege of being here. Congressman Moran, thank you for the 
invitation to come as well.
    I do appear in opposition to this particular piece of 
legislation, and my testimony will build on what Congressman 
Moran talked about to help the Committee members understand 
what the litigious nature of these water resources are for both 
of these States. It is litigation between Kansas and Colorado, 
litigation that has spanned a century, litigation with the 
dubious distinction of being one of the foremost water cases in 
this United States. I offer the testimony to show why passage 
and implementation of this law would cause deep concerns to us 
and we believe potentially cause additional litigation.
    As Congressman Moran said, we have spent, as Kansans, $17 
million already on this litigation which has lasted 17 years. 
Anything that gets in the way of resolving this litigation we 
think would be detrimental to the interests of the citizens of 
Colorado as well as Kansas.
    While it is my intent to talk about the litigation, David 
Pope, our Chief Engineer, will be able to provide information 
to the Committee about the technical nature of the impact of 
this potential legislation.
    Throughout the last century, Kansas and our citizens have 
battled with Colorado in the courts in a continuous battle to 
obtain our equitable share of the Arkansas River. Kansas first 
sued Colorado in the U.S. Supreme Court in 1901, alleging that 
they were depleting our water. It was the first time the United 
States Supreme Court said it would authorize original 
jurisdiction between two States suing one another over 
interstate water issues. In 1907, unfortunately for Kansas, the 
United States Supreme Court found that we hadn't adequately 
proved a depletion, but nonetheless had indicated that we are 
right to have exercised our right.
    In the early part of the 20th century, the dispute waged 
on. Kansas water users actually sued the water users of 
Colorado to stop their increasing use. Colorado then sued 
Kansas in the U.S. Supreme Court in 1927 seeking an injunction 
against our water users suing their water users. We countered 
with a second request to the Supreme Court to enjoin again the 
continuing increases in water use by Colorado.
    In 1943, the United States Supreme Court made a decision 
that really encouraged, if not directed, both States to enter a 
compact so that we weren't all the time in litigation but that 
we had a compact that would govern the use of this water. This 
Congress approved that compact in 1949; and it was, of course, 
signed by the President of the United States at that time.
    But, nonetheless, in 1985 Kansas was again forced to go to 
court, again to the United States Supreme Court, because of 
violations of the compact. The case was assigned by the U.S. 
Supreme Court to a Special Master who conducted 177 days of 
trial and made a report to the United States Supreme Court. In 
a unanimous decision written by the Chief Justice, William 
Rehnquist, in 1995, the United States Supreme Court agreed with 
the Special Master and found that Colorado had indeed violated 
the compact in direct violation of the rights of Kansas.
    One of the things the Chief Justice found in that decision 
was not only do we disagree about implementation of the compact 
but we don't even agree on how to pronounce the river. It is 
the Arkansas River that we are dealing with once it comes into 
the State of Kansas.
    But after that decision in 1995 we went back to trial 
again. Two more reports by the Special Master, a second 
argument before the State--the Nation's highest court resulted 
in the decision of 2001 that Congressman Moran mentioned. There 
the Court found that we have been shorted 428,005 acre feet of 
water since 1950. That is real water to real Kansans that we 
were deprived of.
    In keeping with the precedent-setting character of the 
ongoing dispute with us in court, the latest decision, the one 
issued in June of last year, represents the largest monetary 
award one State has ever been--had handed them down against 
them over the objection of the other State. It was also the 
first interstate water compact case in which prejudgment 
interest was awarded for a compact violation. It is also the 
most definitive statement by the United States Supreme Court 
that water compact damage claims are not barred by the Eleventh 
Amendment to the Constitution.
    This litigation has been precedent setting in many, many 
respects but has taken us a long to time to get to where we 
are. Kansas has virtually won at every stage of the proceeding 
thus far. Notwithstanding those victories, we still have 
substantial issues to resolve, and that has to do with future 
compliance of the compact. How does Colorado get to Kansas the 
water that we are entitled to? That is the next phase. We 
engaged in about 4 months of negotiation this fall to try to 
resolve that ourselves without going back to the Court. We fell 
far short of being able to resolve that.
    I would submit to you members of this Committee that 
anything that interferes, that has an impact in the Arkansas 
River is going to have substantial depletions to us and put off 
farther an ultimate decision by the Supreme Court and/or any 
successful negotiations we could possibly have. David Pope, our 
Chief Engineer, will talk about the specifics of why we believe 
technically this proposed legislation causes us problems.
    But I would suggest to you anything that increases the 
amount of water capacity to be stored in Colorado necessarily 
affects us. We believe we are still 11,000 acre feet short 
every year of water under the compact that we are entitled to. 
Storing any additional water means that we are not getting the 
water that we are entitled to. So we would very strongly oppose 
even approving this as the feasibility study which the Bureau 
of Reclamation supported, and we would simply ask you not to 
let this go any farther because of the significant depletions 
and damage that would result.
    Thank you very much for the privilege of testifying before 
you.
    Mr. Calvert. Thank you. Happy to know what we do in this 
Committee for attorneys throughout the country.
    [The prepared statement of Ms. Stovall follows:]

Statement of The Honorable Carla J. Stovall, Attorney General, State of 
                                 Kansas

    Distinguished members of the Subcommittee, my name is Carla J. 
Stovall, Attorney General for the State of Kansas. I wish to thank you 
for allowing me to appear today to testify in opposition to H. R. 3881.
    This testimony will provide some background information on the 
litigation between the States of Kansas and Colorado over the waters of 
the Arkansas River; litigation spanning a century; litigation with the 
dubious distinction of being one of the foremost disputes in the 
country for generating United States Supreme Court precedent in 
interstate water law. I offer this testimony to show why passage and 
implementation of H.R. 3881 would cause deep concern to Kansas and 
potentially cause additional litigation in the event passage results in 
increased violations of the Arkansas River Compact by Colorado, a 
result all too likely in Kansas' view.
    Throughout the entire last century, Kansas and its citizens engaged 
in court battles with Colorado in a perpetual legal attempt to obtain 
Kansas' equitable share of the Arkansas River. Kansas first sued 
Colorado in the U.S. Supreme Court in 1901, alleging Colorado was 
unfairly depleting streamflows to Kansas' detriment. When the Supreme 
Court, in 1902, refused Colorado's request that the case be dismissed, 
it affirmed for the first time that it would exercise its original 
jurisdiction to determine the equitable apportionment of interstate 
waters. In 1907, however, the high court decided that Kansas had not 
proven enough depletions to warrant an injunction against Colorado to 
halt its expanding use of the Arkansas River waters.
    In the early part of the 20th Century, the contentious dispute 
raged on between Kansas and Colorado over how to share the waters of 
the Arkansas River. Kansas water users began suing Colorado water users 
to stop Colorado's increasing use. Colorado then sued Kansas in the 
U.S. Supreme Court in 1927 seeking an injunction against the Kansas 
water-user suits, and Kansas countered with a second request to the 
Court to enjoin continuing increases in use by Colorado. The Supreme 
Court's 1943 decision in that case led to, and in fact explicitly 
encouraged, the negotiation of the Arkansas River Compact (Compact), an 
agreement between Kansas and Colorado that was ratified by Congress in 
1949 after three years of negotiations between the states.
    In 1985, Kansas filed in the U.S. Supreme Court its latest suit 
against Colorado. This case was assigned to a Special Master who 
conducted 143 days of trial and then reported to the U.S. Supreme Court 
with a recommendation that it find Colorado had violated the 1949 
Compact through groundwater pumping which materially depleted usable 
flows. The Supreme Court, in a unanimous 1995 decision authored by 
Chief Justice Rehnquist, agreed with the Special Master's assessment 
and had no difficulty in concluding that Colorado had caused material 
depletions of the usable flows of the Arkansas River, in violation of 
the Compact.
    After some 63 more days of trial, two more reports by the Special 
Master to the Supreme Court, and a second argument before the Court, 
the most recent decision was issued in June 2001. The Supreme Court's 
ruling determined that Colorado violated the Arkansas River Compact by 
depriving Kansas of 428,005 acre-feet of water from 1950 through 1996 
(one acre-foot is 325,851 gallons). As a result of the Court's 
decision, Colorado will have to pay money damages to Kansas to 
compensate for the its injury.
    In keeping with the precedent-setting character of the ongoing 
dispute between Kansas and Colorado, the latest Supreme Court decision 
represents the largest monetary award ever made in an interstate water 
compact case and the first and only such award imposed over the 
objection of the defendant state. This was also the first interstate 
water compact case in which prejudgment interest was awarded for a 
compact violation. The case also represents the most definitive 
statement ever by the Court that interstate water compact damage claims 
based on losses of individual water users are not barred by the 
Eleventh Amendment to the U.S. Constitution.
    Notwithstanding Kansas' substantial victories fought and won in the 
Supreme Court, victories achieved despite bitter and aggressive 
opposition by the State of Colorado, the most important aspect of the 
case remains to be concluded. The final phase of our 17 year battle 
with Colorado is scheduled to begin in June of this year. The Special 
Master will determine perhaps the most important question in the case: 
What must Colorado do in order to come into compliance with the 1949 
Compact?
    H.R. 3881 threatens to cause new depletions of the usable flows of 
the Arkansas River in violation of the 1949 Compact. Kansas' experts 
confirm the common sense notion that capturing and using additional 
water in Colorado, or intensifying current uses, will deplete the flows 
that now support uses downstream in Kansas. The legislation would 
authorize operation of a water bank allowing storage of existing non-
Fryingpan-Arkansas project water in the reservoir. This storage may 
result in expanded and more consumptive uses of pre-compact water 
rights, thus depleting streamflows to KS. Storage of new water in any 
enlarged reservoir space has the certain potential to intercept water 
that would otherwise flow downstream for use in Kansas.
    The Congress should not, in my view, step into the middle of the 
pending interstate litigation on the Arkansas River by enacting the 
proposed legislation. To do so would exacerbate and rekindle the 
current suit. Colorado has not sought Kansas' input, but rather has 
rebuffed Kansas' attempts to provide such input on the enlargement and 
intensified operation of Pueblo Reservoir.
    In sum, it is inconsistent with the equal footing of the States to 
consider such potentially detrimental legislation over the objections 
of the affected downstream state. I therefore recommend against passage 
of H.R. 3881.
                                 ______
                                 
    Mr. Calvert. Our next witness is the honorable Jim Null, 
Councilman, City of Colorado Springs.

   STATEMENT OF THE HONORABLE JIM NULL, COUNCILMAN, CITY OF 
              COLORADO SPRINGS, STATE OF COLORADO

    Mr. Null. Good morning, Mr. Chairman and members of the 
Subcommittee. I am Jim Null, a member of the Colorado Springs 
City Council. I appreciate the opportunity to testify here 
today on H.R. 3881 sponsored by Congressmen Hefley, McInnis, 
Schaffer and Tancredo. This bill which is of great importance 
to the City of Colorado Springs--great importance, and I 
appreciate the leadership of our congressional delegation for 
introducing this legislation.
    Colorado Springs is the second largest metropolitan area in 
the State of Colorado and the home to a number of military 
installations, including the Air Force Academy, Fort Carson, 
NORAD and Peterson Air Force Base. We sit at the base of Pikes 
Peak and find ourselves in a beautiful place to work, recreate 
and raise a family. We have experienced rapid growth in the 
past 5 years, an 18 percent increase overall. In fact, the 
population has nearly tripled in the last 30 years. Our 
community continues to draw new industry and residents.
    We have a history of providing reliable, cost-effective 
utility services to our customers, including domestic, 
commercial and industrial water supplies, despite our location 
in a very arid part of the country. H.R. 3881 will allow us to 
continue to meet that responsibility in a manner which 
maximizes the efficiency of both existing infrastructure and 
existing water supplies, thereby minimizing the need for new 
storage and the acquisition of additional water rights within 
and outside the basin. With this legislation, we can avoid new 
reservoir construction and water transfers from other basins or 
from agricultural to municipal use.
    In 1990, we began a water planning process to determine our 
needs through the year 2040, based upon realistic growth 
projections. We found that though our existing water supply 
decrees may be adequate, there was a need for additional 
storage and delivery infrastructure. 1996, the city adopted a 
plan of action which identified a number of approaches for 
meeting our future water demands, including water conservation, 
existing system improvements and a new southern delivery system 
from Pueblo Reservoir.
    As part of this plan, Colorado Springs Utilities approached 
the Southeastern Colorado Water Conservancy District and 
indicated our need for additional storage. The district then 
conducted a water and storage needs assessment on behalf of all 
district members, including Colorado Springs. Colorado Springs 
Utilities fully supported this district-wide effort. That study 
confirmed the need for additional storage capacity in order to 
provide firm yield to municipal entities and analyzed a wide 
range of alternatives to meet that demand, including project 
reoperations which would allow the storage of nonproject water 
in the Fry-Ark Project space and reservoir enlargements.
    Both reoperations and enlargement of these reservoirs 
ranked very favorably in terms of cost, operational 
effectiveness and environmental/socio-economic factors. Thus, 
it was decided by the district members to proceed with these 
options. Colorado Springs has committed to pay for and receive 
approximately 50 percent of the additional storage capacity 
available through reoperations and enlargements, totaling 
58,000 acre feet of storage, a critical component in meeting 
our future water requirements.
    Colorado Springs and the Southeast District were not alone 
in undertaking these planning efforts. Over 40 entities 
participated in the storage study process, including such 
entities as the Arkansas River Outfitters Association, the 
Colorado Division of Wildlife and the Pueblo Board of Water 
Works, the body responsible for providing water service to the 
City of Pueblo, our neighbor to the immediate south. 
Reoperation implementation costs were estimated at $2.5 
million, with enlargement implementation for the first 4 years, 
that is, preconstruction, amounting to another $2 million. 
Actual enlargement costs have been estimated at $110 million. 
Substantial investments have already been made to date.
    The advocates of H.R. 3881 have also been very careful to 
consider and attempt to accommodate the needs of a variety 
interests. Of course, in our western water rights system, 
decrees issued by our water courts will contain provisions to 
assure the water rights of others are not in any way injured. 
However, we have also attempted to accommodate the concerns of 
parties who don't even hold water rights. For example, the 
project proponents have voluntarily committed to not exercise 
their lawful water exchange rights at such times as the flow in 
the Arkansas River below the Pueblo Dam is below 100 cubic feet 
per second. In order to achieve this goal, Colorado Springs and 
other supporters of this legislation have agreed to curtail 
their ability to exchange water and store it in Pueblo 
Reservoir. This commitment is a good-faith effort to reach a 
compromise which recognizes that such minimum flows will serve 
recreation, fish and environmental values.
    We have also inserted a provision in the bill designed to 
constrain additional future transbasin diversions absent 
consent from the basin of origin. The language of this action 
remains the subject of ongoing discussions, but I believe it is 
fair to say that all parties agree upon the objective of the 
legislation, that is, the efficient utilization of decrees and 
resources.
    I am also aware of some concerns expressed by the City of 
Pueblo, as compared to the Board of Water Works, but can assure 
you that the project proponents are actively engaged in talks 
with the city. This includes an exchange of written proposals 
designed to alleviate their concerns through a mutually 
beneficial approach to water management. I believe such a 
solution is certainly possible without requiring any amendments 
to H.R. 3881. We have encouraged the City of Pueblo to join the 
rest of us in supporting this legislation and to participate in 
this project so they can acquire the ability to store water and 
release it for their legitimate downstream needs.
    H.R. 3881 is project-specific legislation and hence holds 
no implications for other Bureau projects. However, it should 
not go without saying that there is ample precedent for such a 
practical and useful approach to meeting water supply demands 
in the West, including H.R. 1235 by Representative George 
Miller of California and S. 2594 by Senator Wayne Allard of 
Colorado, each of which were adopted during the 106th Congress.
    As you can see, H.R. 3881, which confirms that nonproject 
water can be stored in excess Fry-Ark Project space and 
authorizes the study which is the precursor to project 
enlargements, is a very worthwhile and necessary piece of 
legislation which will go a long way toward meeting our future 
water demands in the entire Arkansas Valley and certainly in 
our city. Further, and you probably don't hear this very often, 
it has no fiscal note for the Federal taxpayer. We are funding 
this undertaking ourselves and not requesting any Federal 
appropriation. It is a bill I hope you will look upon 
favorably.
    I thank you for this opportunity to testify and am 
available to answer any questions you might have.
    Mr. Calvert. I thank the Gentleman for his testimony.
    [The prepared statement of Mr. Null follows:]

         Statement of James Null, Colorado Springs City Council

    Good morning Mr. Chairman and Members of the Subcommittee. I am Jim 
Null, a member of the Colorado Springs City Council. I appreciate the 
opportunity to testify here today on H.R. 3881, by Congressmen Hefley, 
McInnis, Schaffer and Tancredo. This bill which is of great importance 
to the City of Colorado Springs and I appreciate the leadership of our 
Congressional delegation for introducing this legislation.
    Colorado Springs is the second largest metropolitan area in the 
state of Colorado and the home to a number of our military 
installations, including the Air Force Academy, Fort Carson, NORAD, and 
Peterson Air Force Base. It is located within the Southeastern Colorado 
Water Conservancy District and is, in fact, the largest ``customer'' of 
that District in terms of population served. We sit at the base of 
Pikes Peak and find ourselves in a beautiful place to work, recreate 
and raise a family. That is undoubtedly part of the reason why we have 
experienced rapid growth in the past five years, an 18% increase 
overall. In fact, the population has nearly tripled in the last 30 
years. Our community continues to attract new industry and residents.
    We have a history of providing reliable, cost-effective utility 
services to our customers, including domestic, commercial and 
industrial water supplies, despite our location in a very arid part of 
the country. H.R. 3881 will allow us to continue to meet that 
responsibility in a manner which maximizes the efficiency of both 
existing infrastructure and existing water supplies, thereby minimizing 
the need for new storage and the acquisition of additional water rights 
within and outside the basin. With this legislation, we can avoid new 
reservoir construction and water transfers from other basins or from 
agricultural to municipal use.
    Colorado Springs possesses a very diverse water supply and delivery 
system, with over 75% of its water coming from the Colorado River Basin 
through transbasin diversion projects. The remainder is obtained from 
the Pikes Peak watershed or from the Arkansas River itself via the 
Fountain Valley Pipeline. The latter delivers our Fryingpan-Arkansas 
Project water.
    In 1990, we began a water planning process to determine our needs 
through the year 2040 based upon realistic growth projections. We found 
that though our existing water supply decrees may be adequate, there 
was a need for additional storage and delivery infrastructure. In 1996, 
the City adopted a plan of action which identified a number of 
approaches for meeting our future water demands, including water 
conservation, existing system improvements, and a new southern delivery 
system from Pueblo Reservoir.
    As part of this action plan, Colorado Springs Utilities approached 
the Southeastern Colorado Water Conservancy District and indicated our 
need for additional storage. The Southeastern Colorado Water 
Conservancy District then conducted a water and storage needs 
assessment on behalf of all District members, including Colorado 
Springs. Colorado Springs Utilities fully supported this district-wide 
effort. That study confirmed the need for additional storage capacity 
in order to provide firm yield to municipal entities and it analyzed a 
wide range of alternatives to meet that demand, including project re-
operations and reservoir enlargements. Project re-operations, which 
better utilizes existing storage facilities, would allow for the use of 
excess capacity in existing Fry-Ark Reservoirs. In particular, it would 
allow for the storage of ``non-project'' water in the Fryingpan-
Arkansas project space.
    In addition to authorizing re-operations, this legislation calls 
for a study of the feasibility of enlarging Pueblo Reservoir and 
Turquoise Reservoir. These enlargement studies are a critical first 
step in future water planning and development in the Arkansas River 
Valley. Both re-operations and enlargement of these reservoirs ranked 
very favorably in terms of cost, operational effectiveness and 
environmental/socio-economic factors. Thus, it was decided by the 
District members to proceed with these options. Colorado Springs has 
committed to pay for and receive approximately 50% of the additional 
storage capacity available through re-operations and enlargements, 
totaling approximately 58,000 acre-feet of storage, a critical 
component in meeting our future water supply requirements.
    Colorado Springs and the Southeast District were not alone in 
undertaking these planning efforts. Over 40 entities participated in 
the storage study process, including the Upper Arkansas Water 
Conservancy District, the City of Canon City, Arkansas River Outfitters 
Association, Colorado Division of Wildlife, City of Florence and the 
Pueblo Board of Water Works, the body responsible for providing water 
service to the City of Pueblo, our neighbor to the immediate south. Re-
operation implementation costs were estimated at over $2.5 million, 
with enlargement implementation for the first four years, i.e., 
preconstruction, amounting to another $2 million. Actual enlargement 
costs have been estimated at $110 million. Substantial investments have 
already been made to date.
    The advocates of H.R. 3881 have also been very careful to consider 
and attempt to accommodate the needs of a variety of interests. Of 
course, in our western water rights system, decrees issued by our water 
courts will contain provisions to assure that water rights of others 
are not in any way injured. However, we have also attempted to 
accommodate the concerns of parties who don't even hold water rights. 
For example, the project proponents have voluntarily committed to not 
exercise their lawful water exchange rights at such times as the flow 
in the Arkansas River below the Pueblo Dam is below 100 cubic feet per 
second. In order to achieve this goal, Colorado Springs and other 
supporters of this legislation have agreed to curtail their ability to 
exchange water and store it in Pueblo Reservoir. This commitment is a 
good-faith attempt to reach a compromise, which recognizes that such 
minimum flows will serve recreation, fish and environmental values.
    We have also inserted a provision in the bill designed to constrain 
additional future transbasin diversions absent consent from the basin 
of origin. The language of this section remains the subject of ongoing 
discussions, but I believe it is fair to say that all parties agree 
upon the objective of the legislation, i.e., the efficient utilization 
of existing decrees and resources.
    I am also aware of some concerns being expressed by the City of 
Pueblo (as compared to the Board of Water Works), but can assure you 
that the project proponents are actively engaged in talks with the 
City. This includes an exchange of written proposals designed to 
alleviate their concerns through a mutually beneficial approach to 
water management. I believe that such a solution is certainly possible 
without requiring any amendments to H.R. 3881. Colorado law, as 
developed over the last century, recognizes the seniority of the 
project participant's existing decrees and pending water right 
applications which will be utilized in project operations. That same 
set of statutes also dictates that the state Water Conservation Board 
is the ``only'' entity entitled to hold ``instream flow decrees,'' with 
such decrees being found throughout the basin. Finally, state law also 
identifies, consistent with the federal Clean Water Act, a set of 
regulatory provisions which ensure that ``dilution is not the solution 
to pollution,'' and that water quality requirements, though of 
paramount importance, cannot impair the right to divert water and place 
it to beneficial use. Investments made to date by others without 
consideration of these pre-existing legal and factual premises may have 
been unwise, but they are investments which nonetheless should be 
accommodated to the extent practicable. We have encouraged the City of 
Pueblo to join the rest of us in supporting this legislation, and to 
participate in this project so as to acquire the ability to store water 
in available space and release it for their legitimate downstream 
needs.
    H.R. 3881 is project-specific legislation, and hence holds no 
implications for other Bureau projects. However, it should not go 
without saying that there is ample precedent for such a practical and 
useful approach to meeting water supply demands in the West, including 
H.R. 1235 by Representative George Miller of California and S. 2594 by 
Senator Wayne Allard of Colorado, each of which were adopted during the 
106th Congress.
    As you can see, H.R. 3881, which confirms that non-project water 
can be stored in excess Fry-Ark Project space and authorizes the study 
which is a precursor to project enlargements, is a very worthwhile and 
necessary piece of legislation which will go a long way towards meeting 
future water demands in the entire Arkansas Valley and certainly in my 
City. Further, and you probably do not hear this very often, it has no 
fiscal note for the federal taxpayer--we are funding this undertaking 
ourselves and not requesting any federal appropriation. It is a bill 
that I hope you will look upon favorably.
    I thank you for this opportunity to testify and am available to 
answer any questions.
                                 ______
                                 
    Mr. Calvert. Next, David Pope, Chief Engineer, State of 
Kansas Department of Agriculture.

   STATEMENT OF DAVID POPE, CHIEF ENGINEER, STATE OF KANSAS 
     DEPARTMENT OF AGRICULTURE, DIVISION OF WATER RESOURCES

    Mr. Pope. Thank you, Mr. Chairman and distinguished Members 
of Congress. My name is David Pope, Chief Engineer of the 
Kansas Department of Agriculture's Division of Water Resources. 
I am here representing Governor Bill Graves to testify in 
opposition to H.R. 3881.
    We believe passage of H.R. 3881 would have a long-term 
detrimental effect on the interests of the State of Kansas, 
including a reduction in the quantity and quality of water on 
which it relies.
    I am a member of the Arkansas River Compact Administration. 
That compact, which was negotiated between the States and 
approved by Congress in 1949, was designed to settle disputes 
and divide and apportion the waters of the Arkansas River and 
its benefits arising from the construction of John Martin 
Reservoir and basically to maintain conditions as they were at 
the time of ratification.
    The Arkansas River is essentially the only renewable water 
supply in southwest Kansas and provides critical water supplies 
through direct diversion from the river to agriculture and 
significant recharge to area aquifers. Kansas uses 100 percent 
of the water reaching the State line almost all of the time. 
The bill places these limited supplies in jeopardy.
    As you heard, the legislation would, No. 1, authorize the 
feasibility study to enlarge Pueblo Reservoir and Turquoise 
Lake and, second, modify the current authorization by allowing 
reoperation of the Fryingpan-Arkansas Project. So this is 
simply not a bill authorizing a study. It would allow 
significant changes to occur.
    The district expects to increase storage and supplies to 
Colorado water users with no additional imports from the 
Colorado River Basin. This means native water in the Arkansas 
River Basin which currently comes to Kansas would be the only 
source. Kansas believes the goal is not feasible without 
increasing the consumptive use of water in Colorado, which then 
takes water from Kansas.
    As you heard from the Attorney General, the Supreme Court 
is currently considering remedies for Colorado's violations of 
the Arkansas River Compact, and the State of Kansas has serious 
concerns about whether the proposed changes in operations and 
additional storage can be accomplished without additional 
violations of the compact.
    I would note that, while the compact does not prevent 
future beneficial development of the river in either State, an 
important proviso is that the waters of the Arkansas River 
shall not be materially depleted in usable quantity or 
availability for use to the water users in Colorado and Kansas 
under the compact by such future developments or construction.
    The proposed legislation contains no meaningful safeguards 
to ensure compact compliance. Kansas has not been consulted in 
drafting provisions, and we have no other forum except here 
before Congress.
    Additional storage in Pueblo Reservoir will be derived 
either from native Arkansas River Basin supplies or from 
imports of the Colorado River Basin water. The legislation 
appears to address potential for expanded use of Colorado River 
Basin supplies, but no such protection again is provided for 
the Arkansas River Basin to and Kansas.
    Water quality is a very serious concern to Kansas. The 
Arkansas River is of high quality but degrades as water flows 
from the Rocky Mountains to the State line. The use and reuse 
of water in Colorado increases the concentration of natural 
constituents and degrades the quality of water. The proposed 
legislation could further degrade water quality of the river at 
the State line.
    Dr. Donald Whittemore of the Kansas Geological Survey 
recently conducted an extensive study of water quality in the 
Arkansas River Basin in southwest Kansas. His studies show the 
water quality Kansas receives from Colorado has deteriorated 
over time. The concentrations of sulfate is extremely high at 
the State line and averages about 2,000 parts per million of 
sulfate alone.
    Currently, the Arkansas River flows at the State line are 
classified as high to very high for salinity hazard to field 
crops. Any additional increase in salinity will only decrease 
the usability of water that Kansas receives. The river and 
adjacent alluvium are already too bad to use for municipal 
supply and take extraordinary treatment. The high flows that 
are occasionally available are waters that are needed to 
provide flushing flows to the river system into Kansas, and 
those are very important to us as well.
    In summary, Kansas and Colorado have been in dispute 
concerning the water supply available in the river for almost 
as long as we have been States. Colorado is the upstream State, 
which means that Kansas must be ever vigilant and ensure 
protection from any enterprise in Colorado that may affect its 
water supply. There is no additional water available for the 
proposed uses in this legislation. Its purposes cannot be 
achieved without negative effects on the quality and the 
quantity of water on which Kansas relies.
    Mr. Calvert. I thank the Gentleman.
    [The prepared statement of Mr. Pope follows:]

   Statement of David L. Pope, Chief Engineer, Kansas Department of 
                Agriculture Division of Water Resources

    Distinguished members of the Subcommittee, my name is David L. 
Pope, Chief Engineer of the Kansas Department of Agriculture's Division 
of Water Resources. I am here representing Kansas Governor Bill Graves. 
I am testifying in opposition to H. R. 3881.
    We believe passage of H.R. 3881 would have a long-term detrimental 
effect on the interests of the state of Kansas, including a reduction 
in the quantity and quality of water on which it relies.
Arkansas River Compact
    I am a Kansas member of the Arkansas River Compact Administration 
(ARCA) of the Arkansas River Compact. Negotiated between Kansas and 
Colorado, and approved by Congress in 1949, the compact was designed to 
settle existing disputes and remove cause for future controversy, as 
well as to divide and apportion the waters of the Arkansas River and 
the benefits arising from the construction of John Martin Reservoir. 
The compact was intended to maintain conditions as they were at the 
time of ratification.
    ARCA is composed of three members each from Kansas and Colorado, 
with each state allowed one vote. Business must be conducted with 
unanimous agreement. ARCA is chaired by a federal representative 
appointed by the President. This individual is a non-voting member.
History
    The Arkansas River flowing east out of Colorado into Kansas has 
played a crucial role in the development of the history and economy of 
the state of Kansas. Between Kansas statehood in 1861 and Colorado 
statehood in 1876, the river was largely unregulated. Sometimes flowing 
across Kansas nearly a half mile wide, it offered great opportunities 
for development.
    The first use of the Arkansas River for irrigation in Kansas was 
just downstream from the state line in 1880. Development in Colorado, 
and subsequent shortages of surface water supplies to Kansas irrigation 
ditches, has resulted in extensive litigation between the states before 
the U.S. Supreme Court.
    Our disputes are presently pending again before the Court. Colorado 
has continued to develop wells and major reservoirs in the Arkansas 
River Basin upstream of Kansas since 1950, which resulted in the filing 
of the present litigation, Kansas vs. Colorado, in 1985. In 1995, the 
U.S. Supreme Court found Colorado in violation of the compact due to 
post-compact well development.
    Although this case is in the remedy phase and remains unresolved, 
Colorado now is proposing additional development as set forth in the 
Preferred Storage Options Plan (PSOP) of the Southeastern Colorado 
Water Conservancy District. H.R. 3881 would provide protections for 
other Colorado water users and other Colorado River Basin states. 
However, it does not mention the Arkansas River Compact, the pending 
litigation, or the state of Kansas. Neither does it provide protection 
to Kansas rights under the compact.
    The area in Kansas affected by this proposed legislation is on the 
High Plains, a semi-arid area where irrigated agriculture is critical 
to the regional economy. Kansas relies on the benefits of the 
conservation storage in John Martin Reservoir, some 60 miles upstream 
of the state line in Colorado, as provided for in the compact.
    The Arkansas River is essentially the only renewable water supply 
in Southwest Kansas, providing critical water supplies through direct 
diversion from the river to agriculture. It also provides significant 
recharge to area aquifers. The aquifers supply wells that are pumped 
for irrigation, industry, municipalities and other uses. Kansas uses 
100 percent of the flow at the state line, basically all the time. The 
proposed bill places these limited water supplies in jeopardy.
Basis of Opposition
    The proposed legislation would: (1) authorize a feasibility study 
of enlarging Pueblo Reservoir and Turquoise Lake, and, (2) modify the 
current authorization for the Fryingpan-Arkansas Project.
    Kansas opposes this legislation for a number of reasons. Passage 
has the long-term potential for adverse effects on the quantity and 
quality of the water Kansas receives across the state line. It would 
likely lead to the shifting of current uses of water from Kansas to 
Colorado. It provides the mechanisms for Kansas water supplies to be 
consumed in Colorado. As a result, new compact violations by Colorado 
can be expected to occur if the ultimate purposes of H.R. 3881 are 
achieved.
    H.R. 3881 would authorize new contracts, including temporary 
contracts for water banking, which make project storage space available 
for non-project water. These project modifications are referred to as 
``reoperation.'' We believe the reoperation of the project will 
materially deplete the flow and degrade the quality of the water 
flowing to Kansas. Before authorizing legislation is considered, 
proponents should obtain Kansas' agreement that the proposals will not 
materially deplete the flow or degrade the quality of water at the 
state line. Kansas is the downstream state. Its water supply would be 
jeopardized by the proposed legislation.
    Proponents of H.R. 3881 want to do whatever is feasible to maintain 
or improve the use of water by agriculture within the district, at the 
same time increasing present supplies to municipal and other users. 
Although the legislation does not specify the amount of storage 
immediately available for contract, our review of the PSOP indicates an 
additional 49,500 acre feet of available storage space. The historical 
average yield to Kansas from the Arkansas River is approximately 
150,000 acre feet, although it may vary greatly. Just this portion of 
the PSOP increase for storage is equivalent to one third of Kansas' 
average water supply.
    The district expects to accomplish this with no additional imports 
from the Colorado River Basin. This means native water in the Arkansas 
River Basin which currently comes to Kansas would be the only source. 
Adopting the legislation would enable Colorado to reduce flows into 
Kansas. Kansas believes the goal is not feasible without increasing the 
consumptive use of water in Colorado, which takes water from Kansas.
Proposed sources of storage
    The bill's effect would be to increase storage and intensify the 
use of water in the basin in Colorado to the detriment of existing 
water uses in Kansas. This would be contrary to the compact and the 
interests of Kansas generally.
    The existing project authorization allows for limited storage of 
native water during the winter and at times when John Martin Reservoir 
is spilling. In addition, imported water from the Colorado River Basin 
or ``trans-mountain'' project water is stored, and certain municipal 
trans-mountain return flows are stored by exchange. This bill would 
expand the storage in the project, resulting in:
     LStorage of Arkansas River water rights presently used for 
irrigation, facilitated by a new Colorado water banking statute and 
proposed rules. The water bank proposal has the potential for expanded 
use of pre-compact water rights by allowing increased diversion and 
reducing the return flow from these rights.
     LStorage, by exchange, of water identified as trans-
mountain irrigation return flows into Pueblo Reservoir. These exchanges 
would facilitate the storage of Arkansas River flows that are a part of 
Kansas' current water supply.
    Both of these potential storage sources would hold water higher in 
the river system, reducing flows to the state line. The proposed 
legislation would facilitate these changes in operation immediately 
within existing storage capacity. If Pueblo Reservoir were ultimately 
enlarged, this practice would be expanded.
    Colorado has relied on the existence of trans-mountain water in the 
system to partially offset the impacts of post-compact well pumping. 
However, the quantities of trans-mountain return flows were never 
sufficient to fully offset the well effects. Compact violations have 
been continuous. These compact violations are the subject of the 
current litigation, and the U.S. Supreme Court has found that 
violations have occurred. Storage of additional water in Pueblo 
Reservoir by exchange would worsen the current situation.
    The Supreme Court currently is considering the remedies for 
Colorado's violations of the Arkansas River Compact in the reach from 
Pueblo Dam to the Kansas state line. The state of Kansas has serious 
concerns about whether the proposed changes in operations and 
additional storage can be accomplished without additional violations of 
the Arkansas River Compact. The compact says:
        ``This Compact is not intended to impede or prevent future 
        beneficial development of the Arkansas River basin in Colorado 
        and Kansas...which may involve construction of dams, reservoirs 
        and other works for the purposes of water utilization or 
        control, as well as the improved or prolonged functioning of 
        existing works; Provided, That the waters of the Arkansas 
        River...shall not be materially depleted in usable quantity or 
        availability for use to the water users in Colorado and Kansas 
        under this Compact by such future developments or 
        construction.''
    The Special Master appointed by the court concluded that the 
compact apportioned the waters of the Arkansas River, as well as the 
conservation benefits associated with John Martin Reservoir: ``The 
Compact was intended to and does apply to all waters originating in the 
natural drainage basin of the Arkansas River and its tributaries 
upstream of the state line. This includes return flows from the use of 
such water, and to tributary groundwater.'' The Special Master 
concluded, ``The Compact is intended to protect such usable flows from 
material depletion caused by any increased consumptive use...''
    The proposed legislation contains no meaningful safeguards to 
ensure compact compliance. Kansas has not been consulted in drafting 
the provisions, and we have no other forum but Congress.
    Additional storage in Pueblo Reservoir will be derived either from 
the native Arkansas River Basin supplies or from imports of Colorado 
River Basin water. In either case, enlarged use and consumption of 
water will occur unless limitations are put in place to prevent 
expanded use from either source. The legislation appears to address 
potential for expanded use of Colorado River Basin supplies, but no 
such protection is provided for Kansas' Arkansas River Basin supplies.
Water Quality
    Water quality is a serious concern to Kansas. The Arkansas River is 
of high quality near its headwaters but degrades as the water flows 
from the Rocky Mountains to the state line. The use and reuse of water 
in Colorado increases the concentration of natural constituents and 
degrades the quality of the water. Water quality from the river and 
adjacent alluvium in Kansas is so poor that municipalities along the 
river must use special treatment methods to make it fit for public 
water supply. The proposed legislation could further degrade water 
quality of the Arkansas River at the state line.
    Recent studies show the water quality Kansas receives from Colorado 
has deteriorated over time. Increases in sulfate have adverse effects 
on irrigation and other water uses. Dr. Donald Whittemore of the Kansas 
Geological Survey recently conducted an extensive study of water 
quality in the Arkansas River basin in Southwest Kansas. He found the 
concentration of sulfate in the low flow regime doubled between 1906 
and 1973. This study also looked at the concentration of sulfate data 
available for 1964 through 1970 and compared it to the 1987 through 
1999 period. Sulfate concentrations continued to increase over the 
range of flows from the earlier period to the later period. One reason 
for this is the increased water consumption in Colorado.
    The Kansas Department of Health and Environment has reviewed the 
sulfate concentrations over different flow regimes as well. Sulfate 
concentrations are higher at low river flows. Sulfate concentrations 
vary during higher river flows, but are on average less than low flow 
concentrations. Reduced flows of the Arkansas River at the state line 
would mean increased sulfate concentration in the river water.
    Currently, Arkansas River flows at the state line are classified as 
high to very high for salinity hazards to field crops. Any additional 
increases in salinity will only decrease the usability of the water 
supplies Kansas receives. Water users in Kansas routinely assess the 
quality of the water available at their headgate when deciding whether 
to divert water to the fields.
    Water quality in the Arkansas River system is invariably linked to 
the quantity of water available, and reduction in the state line flow 
may cause a further deterioration of water quality. The build-up of 
contaminants is partially flushed when flows increase, but these high-
flushing flows are some of the very flows that are proposed to be 
stored under the PSOP. Colorado has failed to provide data or analyses 
that show the proposed changes will not materially reduce the quality 
of the water at the state line.
Summary
    Kansas and Colorado have been in dispute concerning the water 
supply available in the Arkansas River Basin for almost as long as they 
have been states. Colorado has the benefit of being the upstream state, 
which means that Kansas must be ever vigilant and ensure protection 
from any enterprise in Colorado that may affect its water supply. 
Colorado has continued development efforts without regard to Kansas' 
expressed concerns, as evidenced by lack of reference to Kansas in this 
legislation. The proposed legislation would allow further development 
upstream of Kansas without regard for present uses in Kansas. There is 
no additional water available for the uses proposed in this 
legislation. Its purposes can not be achieved without negative effects 
on the quality and quantity of the water on which Kansas relies.
                                 ______
                                 
    Mr. Calvert. Ms. Stovall, I understand your concerns from 
your testimony on the proposed legislation, but also in your 
testimony you bring up that you are even opposed to a 
feasibility study. Now as I understand it from the Department 
of Reclamation and from our prior witness, that during a 
feasibility study that the State water rights certainly must be 
protected in order to move that feasibility report forward. 
Certainly operation of the project would be done by the 
Department of Reclamation.
    It has been my experience that if a project is built 
properly that it certainly can protect your water rights and, 
in fact, have potentially beneficial use for downstream users 
as well as the State of Colorado if it is done properly. Are 
you opposed to any kind of feasibility report being done, or is 
it just--.
    Ms. Stovall. It was simply based on our experts, that we 
can predict what an accurate feasibility study would result in 
and that is to say it is not feasible because there will be a 
depletion to Kansas water rights. So my suggestion, why bother 
and why take 2 years of Bureau of Reclamation time? We have, as 
well, not always agreed with everything that the Federal 
agencies have indicated is appropriate in this river basin and 
are somewhat concerned as well.
    We are 11,000 acre feet short every year. There simply is 
no way for Colorado to store additional water because there is 
no additional water. We are this much short all the time now. 
So it is best to leave this on the shelf and don't even get 
started with it because of the risk of depletions to us.
    Mr. Calvert. Are you saying that flood flow water--you use 
100 percent even during a flood flow event every single year?
    Ms. Stovall. The flood flow events are so rare they are not 
really worthy of authorizing the study. In addition, as David 
said, when on the rare occasions there is surplus water that 
comes down, it has that flushing effect that helps us with the 
quality that is so very important and now is so bad that it is 
putting the crops at risk.
    Mr. Calvert. Can't you operate a dam and have flushing 
events? We do that on the Colorado, obviously. I mean, we 
released water under the prior Secretary of Interior to have 
those so-called budding events for other purposes. I imagine 
that is for endangered species or protection of habitat areas 
or something like that.
    Ms. Stovall. David, our Chief Engineer, may be able to talk 
about the technical aspects. What my understanding is, after 
these 17 years of litigation, any flushing that happens with 
water that comes from the reservoir is water we are entitled to 
anyway, so there is no surplus there.
    Mr. Calvert. I was just curious. Was Art Littleworth, the 
water master, involved in the dispute between Kansas and 
Colorado?
    Ms. Stovall. Arthur Littleworth. He is still the Special 
Master and most eager to see this case be resolved.
    Mr. Calvert. He is a resident of my district in California. 
We are experts on water dispute in my part of the country.
    Ms. Stovall. He has done a fabulous job and--I would note, 
and he has voted for Kansas at every step of the litigation.
    Mr. Calvert. Mr. Pope, you are the engineer, so I will ask 
you for the technical questions.
    In an operation of a dam, couldn't you not protect 
beneficial use of downstream users and the rights of those who 
have water--utilization of water downstream and at the same 
time operate the dam? Theoretically, Reclamation would operate 
it properly to make sure that the type of problems that may 
come up are taken care of in the operation of the project 
itself?
    Mr. Pope. Mr. Chairman, certainly in theory.
    Mr. Calvert. We do a feasibility report. If you are an 
equal participant in that feasibility report, theoretically--
and certainly State water rights, as the Gentleman has 
indicated, would be recognized. What would be the problem with 
moving forward with a feasibility report?
    Mr. Pope. Well, basically again, we are not convinced that 
there is excess water to work with.
    Mr. Calvert. Wouldn't it come up in a feasibility report? I 
mean, if in fact that is what a feasibility report is going to 
have to do, we are going to have to determine that you have 
water that we can use downstream and that your rights are 
protected.
    Mr. Pope. I understand. Mr. Chairman, of course, I would 
remind you, the commissioner's statement that the legislation, 
as it is drafted, is very directive to the Bureau of 
Reclamation in regard to what they can even look at in a 
feasibility study. So there are some restrictions, as I 
understand it, in this legislation.
    Mr. Calvert. Maybe we can help in that regard.
    Mr. Pope. I think that would certainly be very critical if 
it is going to move forward at all.
    Second, I think the reoperation activities that are quite 
prescriptive in the bill are another area of concern, even 
leaving aside potential enlargement of the reservoirs. So it is 
another area of concern.
    Mr. Calvert. Thank you.
    Mr. Hefley.
    Mr. Hefley. Thank you, Mr. Chairman. You have done an 
excellent job of questioning, so I don't have much left, but I 
guess I would ask Mrs. Stovall the same question. If we can't--
if we can't meet your needs--I mean, you have gone through the 
court, and they have determined what you are entitled to, and 
if we can't meet that in the feasibility study, we can't do it. 
But you still are absolutely opposed to even a feasibility 
study because you are just assuming that that can't be done, is 
that true?
    Ms. Stovall. Seems to me that we ought to have some level--
and clearly, it is your decision. It seems to me, to engage in 
a 2-year study, necessarily costing money, that there ought to 
be some basic threshold that Colorado could show to us 
initially to say there is probable cause or it is more likely 
than not that there is adequate water or some minimum threshold 
to suggest that it is worth engaging in a 2-year feasibility 
study.
    If we have a choice between the bill as it is and a 
feasibility study and that is all, we would want only the 
feasibility study. I am suggesting we can probably save 2 years 
of time and effort by Federal staff to even begin. There is no 
water there.
    Mr. Hefley. You would be basically opposed to any 
additional storage in Colorado on any river that flows into 
Kansas; is that correct?
    Ms. Stovall. The Arkansas River is the river that flows in.
    Mr. Hefley. There are no other streams that flow in?
    Ms. Stovall. It is the one that we have the compact with.
    Mr. Hefley. It is interesting to me that Nebraska did the 
same thing with the Two Forks Project. At that time we were 
sending five times as much water downstream as the compacts 
demanded. And although--from the court case, Kansas was not 
getting it out of the Arkansas, but some of the others were, 
and Nebraska fought the Two Forks Project as well because, of 
course, the downstream States want all of the water that they 
can possibly get.
    Jim, we appreciate you being here. Let me go back to you, 
Ms. Stovall. You would not have any objection to the first part 
of the bill, I suppose, the municipalities storing additional 
water in the existing facilities that weren't part of the 
project. But you wouldn't have any objection to that, I 
suppose.
    Ms. Stovall. I don't. But I defer to David for the 
understanding of what the technical aspects of that might be. 
He clearly has a better understanding of the technical pieces 
than I do.
    Mr. Hefley. Mr. Pope, do you have any objection to that?
    Mr. Pope. Yes, Representative Hefley. I think that there 
are concerns there. The current authorization for the Fryingpan 
Arkansas Project really allows, of course, West Slope water to 
be stored, as I understand it, and also winter water storage. 
But it is pretty restrictive beyond that. And we do have--the 
complexity of this system is such that it has been very 
difficult to track all of the exchanges and all of the other 
things that occur. And we just candidly ended up on the short 
end of the stick. So I would be very cautious before I can 
answer that question yes. It is hard for me to understand all 
of the details of that at this point.
    Mr. Hefley. Jim, again, thanks for you being here. You are 
talking--on that first part of the bill, you are talking about 
your water, aren't you? Water that belongs to the City of 
Colorado Springs?
    Mr. Null. That is correct. All decreed water rights in 
existence now, in fact, out to 2040.
    Mr. Hefley. As far as you are concerned, that has nothing 
to do with Kansas whatsoever?
    Mr. Null. That is correct. And we do have faith for the 
other part of the bill and the Bureau that their feasibility 
will show it one way or the other.
    Mr. Hefley. Thank you very much. Thank you, Mr. Chairman. 
Thank you.
    Mr. Calvert. Mr. Moran.
    Mr. Moran. Mr. Chairman, I have no questions. I thank you 
for the courtesies extended to me and the witnesses from Kansas 
today.
    Mr. Calvert. I just have one quick question. I am not 
totally familiar with the hydraulics between Colorado and 
Kansas. But I was curious from --I always think that more 
storage is better than less. That is my particular experience 
in California. But it is possible to divert water--we are in an 
agreement with Colorado in the upper and lower basin states 
right now to limit California's use to its allocated amount of 
4.4 million acrefeet a year. Obviously Colorado will pick up 
water from that. Is it possible to do--transfer water storage 
into those facilities to add additional storage of water? Just 
curious. Mr. Null, would you be aware of that?
    Mr. Null. I don't know.
    Mr. Calvert. I probably would have to ask the Gentleman 
from Reclamation. Because I was curious. I was looking at that. 
If you have additional storage, you have additional 
flexibility. But that would be something that would come up in 
a feasibility study, I would assume.
    Mr. Null. That is right. What we would use is decreed water 
rights water. Existing. We would not be looking at transferring 
any water out of any other basin that isn't already decreed and 
on line.
    Mr. Calvert. Thank the Gentleman.
    Mr. Hefley. Mr. Chairman, one other last comment to these 
wonderful witnesses from Kansas. You have an outstanding 
Congressman here sitting next to me who represents your 
interests very well. I was going to correct him on his 
pronunciation in private so that it wouldn't embarrass him, but 
it seems that the whole State has trouble reading Arkansas 
River. But we will work on that with you.
    Mr. Moran. Mr. Chairman, I would only say that perhaps we 
would not have these problems today had Kansas not voluntarily 
given up that portion of Colorado formally known as the Kansas 
Territory.
    Mr. Calvert. Well, I want to thank the witnesses for their 
testimony and answering our questions, and we will now 
introduce the next panel. Let me see if I can pronounce this 
name properly. Steve Arveschoug, General Manager, Southeastern 
Colorado Water Conservancy District; Melinda Kassen, Director 
of the Colorado Water Project, Trout Unlimited; and Anne 
Castle, the Special Counsel, the City of Pueblo for Water 
Matters, State of Colorado.
    I will be a little informal here and say Steve, you can 
start your testimony when you are ready.

 STATEMENT OF STEVE ARVESCHOUG, GENERAL MANAGER, SOUTHEASTERN 
              COLORADO WATER CONSERVANCY DISTRICT

    Mr. Arveschoug. Mr. Chairman, thank you. You did a very 
good job in pronouncing that name.
    Mr. Hefley, thank you for the opportunity, Congressman, to 
testify on your bill. Appreciate your initiative and effort in 
this. It is very important, as you know, to Southeastern 
Colorado.
    To give the Committee just a quick background, I am General 
Manager of the Southeastern Colorado Water Conservancy 
District. The District covers nine counties in Southeastern 
Colorado. We are the local sponsor for the Fryingpan Arkansas 
Project. We hold the water rights for the project, allocate 
water to cities and farms in our committees each year, and help 
meet the repayment costs for the project through a local tax.
    The Fry-Ark Project is very much and was intended to be a 
regional project covering all of Southeastern Colorado, both 
urban communities such as Colorado Springs and Pueblo, as well 
as rural communities in Southeastern Colorado.
    Mr. Chairman and members, I am here today to ask you to 
support, not withstanding previous testimony, H.R. 3881, 
because it provides very important solutions to problems in 
Southeastern Colorado. We call the elements of H.R. 3881 our 
preferred storage options plan.
    Mr. Chairman, we didn't just dream up this plan one night 
in a dark room. We have spent years working on this effort. It 
has involved literally hundreds of people and local entities 
working together collaboratively in coming up with this storage 
plan. We started this effort in 1996, developing what we call 
our storage study committee. They did a water and storage needs 
assessment report that told us that if we didn't develop 
additional storage, we would be short in meeting our water 
supply needs in the future.
    We then went on to analyze alternatives. We looked at 
everything including main stem reservoirs, new facilities, as 
we did our analysis.
    What we concluded in that years of study that we did is we 
were best served by looking at better utilizing the existing 
facilities of the Fry-Ark Project to meet our demands. Our goal 
was to help our constituents in our nine-county service area 
meet their water demands into the year 2040.
    That effort was locally funded. And we are here today 
through H.R. 3881 to continue that local funding approach to 
meeting our concerns. We have a problem, but we are willing to 
help provide the solution for that problem.
    We also spent a lot of time analyzing the surrounding 
issues. We realize that in our basin you cannot just develop 
water resources absent consideration of environmental and 
recreation issues. Mr. Chairman, the big pile I threw on the 
corner of your table here is representative of the studies that 
we have done on a local level looking at not only our needs, 
but other needs in the basin as we move forward with our 
planning process.
    So our preferred storage options plan in this legislation 
represents about a 5-year effort, because frankly we need 
additional water. As Congressman Hefley put it, we are an arid 
state. This year, as we sit here today, our snow pack is well 
below average, about 60 percent. The river is running also well 
below average. If we don't have additional storage to meet 
those types of dry cycles, we fall short, we can't meet the 
obligations we have set out for our constituents.
    And, obviously Southeastern Colorado is growing. In 
addition to being dry, we have growth. We have more people. Our 
current population in Southeast Colorado is about 680,000 
people, projected to be as much as 1.5 million people by the 
year 2040. And we need to be prepared for that type of growth.
    Cities, as well as farming communities, as well as ditch 
companies, need additional storage, Mr. Chairman, Mr. Hefley, 
to manage their existing supplies. We need additional storage 
to help with the development of a water bank concept that we 
have been working with the State legislature on. We need 
additional storage to allow our farmers to make full use of 
their winter-stored water rights. This is very much a regional 
project designed to meet regional needs, including the 
communities of Pueblo and Colorado Springs, as well as rural 
parts of our district.
    I feel a little bit outnumbered from the testimony that 
came before us and the panel that is joining me up here. But I 
can tell you I am very much not alone. I am here today 
representing 30 local, regional and State entities that support 
our initiative because we have taken a thoughtful approach to 
trying to provide a solution to our problems.
    I also represent 20 communities who have signed commitments 
with the district that they want to participate directly in the 
preferred storage options plan. These are the same communities, 
Mr. Chairman, that participated in the development of the 
Fryingpan Arkansas Project, that project designed to meet year 
2000 demands. We are trying to do the same thing our 
forefathers did in preparing for the year 2040.
    With that, Mr. Chairman, I would ask for this 
Subcommittee's support of H.R. 3881.
    [The prepared statement of Mr. Arveschoug follows:]

 Statement of Steve Arveschoug, General Manager, Southeastern Colorado 
              Water Conservancy District, Pueblo, Colorado

    Chairman Calvert, Congressman Hefley, and members of the 
Subcommittee, thank you for the opportunity to testify today in support 
of H.R. 3881. I'm Steve Arveschoug, General Manager of the Southeastern 
Colorado Water Conservancy District (the District). I've worked with 
the constituents of the District on the development of this legislation 
for nearly five years, and I'm excited and pleased that the Committee 
will now consider supporting this local initiative to prepare for the 
future water resource needs in southeastern Colorado along the Arkansas 
River.
    H.R. 3881 represents just the starting point in the implementation 
of the District's Preferred Storage Options Plan (the PSOP), a plan 
that is designed to help provide additional water storage capacity to 
serve the future domestic and irrigation water needs of the 680,000 
constituents of the District's nine-county service area, while 
protecting water quality, and assuring that recreation and fishery 
values are represented and enhanced.
    Before I discuss the Preferred Storage Options Plan further, and 
address the specifics of the legislation, allow me to offer some 
important background information.
    Background--The Southeastern Colorado Water Conservancy District is 
the local sponsor of the Fryingpan-Arkansas Project (the Fry-Ark 
Project), a multipurpose project constructed by the Bureau of 
Reclamation (Reclamation) that stores and delivers water for municipal 
and agricultural use within the nine-county service area of the 
District, Arkansas River basin, Colorado. The Fry-Ark Project was 
authorized by Congress in 1962 and provides a supplemental supply of 
water, and storage for native agricultural and municipal water 
supplies, to serve a population of 680,000 and to irrigate 
approximately 200,000 acres within the District.
    As this Committee understands too well, building consensus among 
the diverse set of interests in water resources is challenging. Many 
efforts to wisely plan for the effective use of water bog down for 
decades, just give up, or are never even started because of the 
commitment it takes to work through the issues and solve problems. I 
can tell you there have been days in this process that I would have 
found it a much easier trek to just give up. But, there is a great deal 
at stake in this effort.
    Like other regions in the western United States, southeastern 
Colorado is growing. The District's population is expected to grow to 
over 1.5 million by the year 2040. Most of that growth will occur 
within Colorado Springs and Pueblo, but several of the rural 
communities within the District will grow as well.
    In addition to the population growth pressures, the District's 
smaller communities, especially those east of Pueblo who rely on 
groundwater for their main water supply, need to develop a higher 
quality drinking water supply for their residents. Additional water 
storage will help them do that. And, additional storage will help 
communities better manage the water they have already developed. The 
state of Colorado is also developing a water-banking program for the 
Arkansas River basin. Long-term, the success of the water bank will 
depend on additional storage.
    Support for the PSOP and H.R. 3881--The District's Preferred 
Storage Options Plan was crafted to meet these diverse, regional needs. 
And, it has local, regional, and statewide support. The supporters of 
the PSOP include:
        Pueblo County
            Board of Water Works of Pueblo
            Pueblo County Board of Commissioners
            Pueblo West Metro District
            St. Charles Mesa Water District
        Arkansas Valley
            City of Lamar
            Otero County Board of Commissioners
            City of La Junta
            Crowley County Board of Commissioners
        Upper Arkansas
            Penrose Water and Sanitation District
            City of Florence
            City of Canon City
            Town of Poncha Springs
            City of Salida
            Upper Arkansas Water Conservancy District
        El Paso County
            Colorado Springs Utilities, City of Colorado Springs
            City of Fountain
            Widefield Water District
            Security Water and Sanitation District
            Fountain Valley Authority
        Regional and Statewide Entities
            Action 22 (an organization of 22 counties in southern 
            Colorado)
            Colorado Counties Inc.
            Colorado Water Conservation Board
            Colorado Department of Natural Resources
            Southeastern Colorado Water Conservancy District
        Recreation and Environmental Organizations
            Arkansas River Outfitters Association
            Colorado Board of Parks and Outdoor Recreation
            Friends of the Arkansas
    The support from the local communities that represent the nine-
county service area of the District comes as a result of a nearly five-
year effort to study District-wide water and storage needs, assess 
storage and resource management alternatives, address water quality and 
recreation needs, and provide assurances that existing uses and 
entitlements in the Fry-Ark Project would be protected. It involved 
thousands of hours of work by the local Storage Study Committee (the 
SSC), which included municipal, agricultural, recreation, 
environmental, and state and federal resource management agencies (a 
membership list of the Storage Study Committee is attached as Exhibit 
No. One).
    This Storage Study Committee first developed a ``Water and Storage 
Needs Assessment Report'' (December 1998) to determine District-wide 
demands for water and storage to meet domestic and agricultural needs 
into the year 2040. That report indicated a need for an additional 
173,100 acre-feet of storage to provide for growth and to sustain 
agricultural water supplies. The SSC, through the District, then asked 
the Bureau of Reclamation to do an investigation of the technical 
feasibility of enlarging Pueblo Reservoir (August 1999). In addition to 
Reclamation's study of Pueblo Reservoir, the SSC working with hired and 
staff engineers, evaluated over 30 different alternatives to meet the 
projected demand. That evaluation lead to the conclusion that we were 
best served by focusing our efforts on the existing Fry-Ark Project 
reservoirs as a means to help meet future demands. The SSC then began 
to evaluate how the existing reservoirs could be better used, and that 
effort, after many hours of study and consideration, and public 
meetings, lead to the development of the Preferred Storage Options Plan 
and the PSOP Implementation Committee Report, which provides the 
operational details for the PSOP.
    Elements of the Preferred Storage Options Plan--The Southeastern 
Colorado Water Conservancy District's Preferred Storage Options Plan, 
as adopted by the District Board in September 2000, (PSOP) includes the 
following elements:
    1. Re-operations Storage--use of excess capacity in existing Fry-
Ark Project Reservoirs to store non-Project water under long-term 
contracts with Reclamation
    2. Enlargement of Pueblo Reservoir and Turquoise Reservoir--up to 
75,000 acre-feet of conservation storage added to Pueblo Reservoir 
(needed by the year 2013), and up to 19,000 acre-feet of conservation 
storage added to Turquoise Reservoir (needed by the year 2025)
    3. Enterprise Water Management Storage'to provide storage for 
irrigation purposes and for a water bank
    4. Long-term Water Quality Monitoring Program'to establish a water-
quality baseline so that any potential changes in water quality can be 
determined and responded to accordingly
    5. Pueblo Flow Management Program'' a 100 cfs target minimum flow 
(proposed to be a threshold to reduce or curtail PSOP participant 
operations) in support of the City of Pueblo's Legacy Project
    6. Preserve Capacity for Future Arkansas Valley Conduit--a 
commitment from all PSOP participants to continue to reserve a portion 
of the municipal outlet works capacity at Pueblo Dam for the future 
development of the Arkansas Valley Conduit to serve the domestic water 
needs of communities in the lower Arkansas River valley in Colorado.
    7. Protection of the Winter Water Storage Program'the establishment 
of a Winter Water Spill Credit Program designed to offset the impacts 
of any spill of winter-stored water in Pueblo Reservoir.
    8. Implementation Committee Report'the Storage Study Committee and 
the proposed partners in the development of the PSOP developed an 
Implementation Committee Report to address the details of how the re-
operations storage and the enlarged storage would be operated so as to 
protect the current interests in the Fry-Ark Project
    Supporting Studies--The development of the PSOP was truly a local 
effort to plan for the future water resource needs of southeastern 
Colorado. In addition to the PSOP itself, the Storage Study Committee 
studied the many issues surrounding the development of additional water 
storage. Those studies included:
        Hydrologic Analysis Report (March 2000)
        Environmental Issues Report (March 2000)
        Water Quality Issues Report (June 2000)
        Socioeconomic Issues Report (March 2000)
        Cultural Resources Issues Report (March 2000)
        Permitting and Regulatory Issues Report (March 2000)
        Engineering and Cost Issues Report (June 2000)
    These supporting studies were not intended to be conclusive. They 
were designed to identify the many issues that would need to be 
addressed as the PSOP is implemented. And, H.R. 3881 starts the 
implementation process for the Preferred Storage Options Plan.
    The Need for Federal Legislation--First, it's important to note 
that H.R. 3881 doesn't authorize the enlargement of Pueblo Reservoir or 
Turquoise Reservoir. As I'll explain, the legislation only directs 
Reclamation do feasibility studies of the proposed enlargements. And 
H.R. 3881 does not ask for a federal appropriation. Local communities 
will fund the study effort that is being requested.
    H. R. 3881 has two main purposes.
    The first objective of H.R. 3881 is to better utilize existing 
capacity in the Fry-Ark Project reservoirs to help meet growing demand 
for storage. Section 3 of the legislation would authorize the Secretary 
of Interior to enter into contracts with cities and towns within the 
District that need to store non-Project water to supply their current 
and future domestic supply needs. This is Phase I of the District's 
PSOP referred to as re-operations storage, the goal being to make full 
use of existing capacity in the Project without interfering with the 
current entitlements to Project water and storage. These new storage 
contracts help communities meet their water needs through the year 
2013. At that point new storage capacity will need to be developed and 
that's why we're asking for the enlargement studies.
    There is a very important element to this new contract authority 
established in Section 3. Under subsection (d) of Section 3, entities 
wanting a re-operations contract from Reclamation must have first 
agreed to the protections established in the PSOP. Before a contract is 
executed the contractor must have an agreement in place with the 
District that commits them to participate in the Long-term Water 
Quality Monitoring Program, the Pueblo Flow Management Program, the 
Winter Water Spill Credit Program, and to share in the costs of 
developing the re-operations contract authority.
    I understand that Reclamation may view this approach as a 
limitation on their discretion to contract with whomever they want, but 
it's probably the most important piece of this legislation. It protects 
the other interests in the Fry-Ark Project that are not direct 
participants in the re-operations contracting. This requirement does 
not set aside Reclamation's National Environmental Policy Act (NEPA) 
review process that will be done before executing these storage 
contracts. Indeed, that process may identify other environmental or 
recreation issues that will need to be addressed before a contract is 
executed. The commitments we're asking for are not a requirement on 
Reclamation. The water users will need to make the commitment to these 
programs to help protect water quality, fish and wildlife, and 
recreation interests. To date, the District has executed a memorandum 
of agreement with eight communities seeking storage contracts from 
Reclamation totaling 38,300 acre-feet. The commitments to these 
programs are already in place.
    There is precedent in looking to the water districts involved in 
the Fry-Ark Project before contracts are executed. The Operating 
Principles of the Project require that Reclamation seek the approval of 
the Colorado River Water Conservation District before Colorado River 
water in Ruedi Reservoir (a west slope feature of the Fry-Ark Project) 
can be contracted to an entity out of the basin. That's an important 
protection for the Colorado River basin. H.R. 3881 doesn't create the 
same sort of approval process, but it would require that protections be 
in place for the Arkansas River basin, as described in the PSOP, before 
Reclamation executes a ``re-operations'' contract.
    Secondly, Section 2 of the legislation would authorize the 
Secretary of Interior to study the proposed enlargement of Pueblo 
Reservoir and Turquoise Reservoir. Both reservoirs are Fry-Ark Project 
facilities on the east slope. The studies would be done in cooperation 
with the District and would be funded by the District and the 
communities that are participants in the PSOP. It's important that 
these federal-level studies take a closer look at the many issues 
identified in the District's study process. While the outcome of these 
studies should not be predetermined, it is essential that the studies 
consider the District's Preferred Storage Options Plan and the many 
commitments to water quality, flow protection, and support of 
agricultural and municipal water supplies that are established in the 
PSOP. Without these elements--the Long-term Water Quality Monitoring 
Program, Pueblo Flow Management Program, Winter Water Spill Credit, and 
preservation of infrastructure for the Arkansas Valley Conduit--the 
development of additional storage capacity in the basin, through the 
enlargement of Fry-Ark Project facilities, will not meet the diverse 
needs of the District's constituents.
    In addition to the main goals of maximizing the use of existing 
storage capacity and planning for future enlargements, H.R. 3881 also 
provides authority to the Secretary of Interior to execute temporary 
contracts to facilitate a water bank program in the basin. The Colorado 
legislature approved the development of a pilot water bank program in 
the Arkansas basin. Section 9 of the legislation would make it clear 
that the Fry-Ark Project facilities could be used to support the 
operation of the water bank.
    The legislation also authorizes Reclamation to contract for the use 
of excess storage capacity by the City of Aurora and Pueblo West. The 
City of Aurora is not in the Project service area, so their use of the 
Project storage will at all times be subordinate to the needs of in-
District water users. Pueblo West entered the District later than other 
communities so they are not eligible for a storage contract as 
described in Section 3, but will be given the option to execute a long-
term If and When contract.
    Lastly, Section 12 of H.R. 3881 provides protections to the 
Colorado River basin and the Arkansas River basin. This section of the 
legislation was negotiated with the Colorado River Water Conservation 
District and parties in the Arkansas River basin for nearly a year. It 
assures that the use of excess capacity in the existing storage 
facilities of the Fry-Ark Project under the new Reclamation contracts 
will not be used to increase diversions out of the Colorado River basin 
or the Arkansas River basin without agreements and protections. It 
allows existing trans-basin diversions to continue so long as new 
infrastructure is not needed for the diversion. This section of the 
legislation continues to be discussed among the parties.
    Local Commitment to the PSOP and H.R. 3881--At the present time, 
the District has secured the participation of twenty (20) communities 
and water providers within the District, representing the 680,000 
constituents of the District, for the implementation of the PSOP. These 
entities have signed agreements with the District requesting 38,300 
acre-feet of re-operations contract storage and 69,775 acre-feet of 
enlargement storage. H.R. 3881 represents the first step in meeting 
these expectations. In order to meet their growing demands these 
communities need the ability to contract with Reclamation for the use 
of excess capacity by the year 2003. And, they need an enlargement of 
Pueblo Reservoir by the year 2013, and the enlargement of Turquoise 
Reservoir by the year 2025. This is definitely a long-range plan to 
provide for the future water needs of rural and urban communities 
within the Southeastern District.
    Building Consensus for the PSOP and Addressing the Issues--
Throughout the development of the PSOP and this federal legislation we 
have identified issues of concern that must be addressed as the PSOP is 
implemented. Many of those issues relate to recreation at the Fry-Ark 
Project's reservoirs or on the Arkansas River above and below the 
reservoirs. Pueblo Reservoir, the Fry-Ark Project's main storage 
facility (350,000 acre-feet covering 6,000 surface acres), averages 
over one million visitors each year to the Colorado State Park 
campgrounds and boating facilities. Most years Pueblo Reservoir is the 
most- visited state park in Colorado. In addition, the Fry-Ark Project 
is used to help manage flows in the upper Arkansas River to support 
fishing and rafting opportunities in the communities of Buena Vista and 
Salida, Colorado. This flow management effort is called the Upper 
Arkansas Flow Management Program, and for over ten years it has been a 
cooperative effort of the Colorado Department of Natural Resources, 
including State Parks and the Division of Wildlife, the Bureau of 
Reclamation, the Arkansas River Outfitters Association, local 
communities in the upper Arkansas, the Southeastern District, and 
water- right owners from throughout the basin.
    Under Reclamation's leadership the Fry-Ark Project has made a 
tangible commitment to the fish and wildlife and recreation interests 
within the Arkansas River basin. And, that commitment will continue and 
be enhanced under the District's preferred Storage Options Plan.
    In working with the county commissioners in Lake County we 
identified the need to consider land-use and recreation issues 
associated with the Project's Turquoise Reservoir and Twin Lakes 
Reservoir. At the present time we are drafting an agreement and scope 
of work with Lake County to cooperatively study alternatives to enhance 
recreation opportunities in and around the Fry-Ark Project reservoirs 
that are in their county. We are also hopeful that the feasibility 
study of the enlargement of Turquoise that's being asked for in H.R. 
3881 will address the county's questions regarding the potential 
impacts to recreation at Turquoise Reservoir when the reservoir is 
enlarged (not planned for until the year 2025).
    The City of Pueblo Issue--Before the PSOP was completed in 
September of 2000, the District's Storage Study Committee and District 
staff worked with staff from the City of Pueblo's Planning Department 
in an effort to consider flow issues below Pueblo Dam through the City 
of Pueblo. While we were working on our storage plan the City was 
working on the Arkansas River Legacy Project with the assistance of the 
Corps of Engineers. We realized that our future plans for additional 
storage had to work with the City's plan to provide greater recreation 
opportunities on the river below Pueblo Dam.
    The participants in the development of the PSOP agreed to develop a 
``Pueblo Flow Management Program'' that would target a 100 cfs minimum 
flow below Pueblo Dam and would operate similar to the successful Upper 
Arkansas Flow Management Program. The commitment to this Pueblo Flow 
Management Program is included in the District's Preferred Storage 
Options Plan Report (September 2000), the PSOP Implementation Committee 
Report (April 2001) and now in H.R. 3881.
    As currently written, H.R. 3881, Section 3 (Section 8, d) would 
require all water users contracting with Reclamation for use of excess 
capacity in the Fry-Ark Project to sign an agreement with the District 
committing to ``cooperate in a flow management program designed to 
maintain target minimum flows of 100 cfs on the Arkansas River just 
below Pueblo Dam.'' The PSOP participants have been working with 
attorneys representing the City of Pueblo over the last several months 
in an attempt to add details to the flow program and, in response to 
the City's concerns, have agreed to establish the 100 cfs target flow 
as set threshold whereby they would reduce or curtail storage 
operations at times when flows in the river below Pueblo Dam are at or 
below 100 cfs.
    The City has recently filed for a ``recreation in-channel 
diversion'' (RICD) water right for 100 cfs during the winter storage 
period (November 15 to March 14) and 500 cfs during the remainder of 
the year. That water right is for a city-planned boating course. That 
RICD water right has the potential to stop any future water development 
in the lower Arkansas, including making it nearly impossible for 
communities in the Arkansas Valley to execute future water exchanges of 
their own water rights through the planned for Arkansas Valley Conduit, 
a project that is vital to the future of towns like La Junta and Rocky 
Ford. It would also make it nearly impossible for cities like Fountain 
to exchange their water into Pueblo Reservoir, which is a must if they 
are to provide water for their constituents.
    The City's recent RICD filing certainly adds a new twist to the 
discussions on the Pueblo Flow Management Program, but the PSOP 
participants are committed to seeking a win/win resolution of this 
issue. That commitment is represented in H.R. 3881 and by our record of 
performance with the Upper Arkansas Flow Management Program.
    I would refer the Subcommittee to the written testimony of the 
Arkansas River Outfitters Association with whom we've worked very 
closely for ten years. Cooperation is the key to the success of this 
program and that same approach has great potential for the Pueblo Flow 
Management Program.
    It's important for the City of Pueblo to understand that the Fry-
Ark Project is a regional water supply project that meets the needs of 
communities throughout the Southeastern District, including Pueblo and 
at least 20 other cities and towns, as well as farmers in the Arkansas 
Valley. Through the Board of Water Works of Pueblo the citizens of 
Pueblo benefit today from the storage and exchange of water into Pueblo 
Reservoir. The citizens of Pueblo also benefit from the recreation 
opportunities at Pueblo Reservoir. Those opportunities will be enhanced 
with the additional storage capacity.
    The Board of Water Works of Pueblo currently has a long-term 
storage contract to use excess capacity in Pueblo Reservoir to store 
non-project water for the benefits of the citizens of Pueblo. Other 
communities in the District, whose citizens also pay taxes to repay the 
Fry-Ark Project construction and O&M costs, want that same opportunity, 
and that opportunity would be granted to them through H.R. 3881.
    The PSOP was designed to be a regional project just like the 
original Fry-Ark Project. It will benefit communities District-wide, 
including Pueblo. The Board of Water Works of Pueblo has signed an 
agreement with the District securing their participation in the future 
enlargement of Pueblo Reservoir. Based upon that agreement the proposed 
enlargement would provide Pueblo an additional 5,000 acre-feet of 
storage to help meet their future demand for water. Again, other 
communities in the District are working toward the same goal of 
providing water resources to their citizens.
    All the participants in the PSOP process understand that the 
development of water resources to meet population growth and irrigation 
needs must work with environmental and recreation needs. And, that is 
the goal of the PSOP. To the extent we have not fully addressed the 
concerns of the City of Pueblo regarding recreation below Pueblo Dam or 
their compliance with their wastewater discharge permit requirements, 
we will continue to work toward a positive resolution. In fact, the 
PSOP participants met on March 13 and are prepared to offer another 
proposal to the City of Pueblo to address their concerns.
    The Arkansas River Compact--Throughout the process of developing 
the PSOP we involved local citizens and organizations through the 
Storage Study Committee decision-making process. In addition to this 
committee process, all of our Storage Study Committee meetings were 
open to the public, and we maintained a mailing list of individuals and 
entities that had an interest in the outcome of the PSOP. The state of 
Kansas was included on that mailing list. They had the opportunity to 
review and comment on our Preferred Storage Options Plan Report, both a 
draft report and final report. We have also kept the Arkansas River 
Compact Commission fully informed of our plans.
    The PSOP Report considered impacts on flows to the Kansas-Colorado 
state line as part of the analysis. A computer simulation model of the 
Fryingpan-Arkansas (Fry-Ark) Project and the proposed storage 
alternatives was developed to analyze each of the storage alternatives 
with the projected storage requests. The model includes Fry-Ark Project 
water and storage facilities, the storage enlargements being proposed, 
and the existing water rights involved in the storage proposals. 
Reservoir and streamflow impacts were investigated from the headwaters 
downstream to the Avondale gage and Lake Meredith, including Fountain 
Creek. Impacts at the Avondale gage show little variation from 
historical streamflows. The average annual streamflow is expected to 
increase zero to two percent over historical streamflows, depending 
upon the storage scenario. This small change is because streamflow at 
the Avondale gage is primarily demand driven, and demands downstream of 
the Avondale gage are not shown to change for future conditions. Based 
on the modeling results, the hydrologic analysis concluded that there 
would be no negative hydrologic impacts on state line flows.
    In addition, the state of Kansas has previously raised concerns 
regarding how the PSOP may impact on the Arkansas River Compact. Our 
understanding of the Arkansas River Compact is that it did not 
apportion the unusable flows of the Arkansas River Basin. As Article 
IV. D of the Arkansas River Compact states ``the waters of the Arkansas 
River . . . shall not be materially depleted in usable quantity or 
availability for use to the water users in Colorado and Kansas under 
this compact by such future developments or construction.'' (Emphasis 
added.) Instead of apportioning unusable flows, the Compact provided 
that it was not intended to impede or prevent future beneficial 
development of additional water that was unusable when the Compact was 
signed and, in fact, Article IV. D expressly approves such development. 
While the opportunity to develop additional, heretofore unusable waters 
of the Arkansas River above John Martin Reservoir is very limited, it 
is not impeded by the Compact. We are not aware of any provision in the 
Compact that entitles Kansas to a share of the benefits if additional 
storage in Colorado develops previously unusable flows. While 
implementation of the PSOP may allow for some development of infrequent 
storage opportunities for additional water that was unusable when the 
Compact was signed, the primary benefit of implementation of the PSOP 
will be better management of existing supplies.
    Most of the water captured by re-operations and enlarged space will 
be transmountain water and legally reusable consumptive use credits. 
With that said, it is our intent that any development of additional 
storage capacity through the PSOP is done in complete compliance with 
the Arkansas River Compact. And, throughout the federal-level studies 
requested in H.R. 3881, we expect that Reclamation will continue to 
involve the state of Kansas and the Arkansas River Compact Commission.
    Conclusion: I consider H.R. 3881 to be the most significant water 
resources legislation for Southeastern Colorado since the authorization 
of the Fryingpan-Arkansas in 1962. The Fry-Ark Project was designed and 
built to meet the year 2000 water demands in the Arkansas River basin 
in Colorado. Community leaders from throughout the basin worked 
together to create the vision for the Fry-Ark Project. Their vision has 
certainly paid off, but it wouldn't have been accomplished without a 
lot of cooperation and compromise that followed the 1962 Act of 
Congress.
    The communities in southeastern Colorado have again come together 
to plan for their future water resource needs. This time the target is 
the year 2040. Again we need the expertise and cooperation of the 
Bureau of Reclamation, and we're again asking Congress to get us 
started by passing legislation, H.R. 3881. Like before there will be a 
need for cooperation and compromise as our plans move forward. But, we 
can't continue the process without the blessing of Congress.
    Today, I'm asking that the members of the House Resources Water and 
Power Subcommittee support H.R. 3881. It will help southeastern 
Colorado continue the local initiative to prepare for our future. Thank 
you.
                                 ______
                                 
    Mr. Calvert. I thank the Gentleman for his testimony.
    Melinda Kassen, Director of the Colorado Water Project, 
Trout Unlimited. You are recognized.

STATEMENT OF MELINDA KASSEN, DIRECTOR, COLORADO WATER PROJECT, 
                        TROUT UNLIMITED

    Ms. Kassen. Thank you, Mr. Chairman. As a preliminary 
matter, I would ask that my testimony and our report which was 
submitted, Dry Legacy, be included in the record.
    Mr. Calvert. Without objection, so ordered.
    Ms. Kassen. Thank you. Trout Unlimited is--I am here today 
for Trout Unlimited because my job for Trout Unlimited is to 
try to keep water in the rivers for the fish. And while we 
certainly appreciate the efforts of Southeastern to look at a 
variety of options in terms of storage to meet municipal 
demand, our concerns with H.R. 3881 is that it doesn't go far 
enough to deal with some of the other issues in addition to 
providing storage for municipal demands. And this bill has the 
potential to create significant adverse impacts on the Arkansas 
River, particularly in a 10-mile stretch between Pueblo 
Reservoir and the City of Pueblo.
    This stretch is the subject of a 6-year Army Corps of 
Engineers project called the Arkansas River Legacy Project, 
which is a river restoration project. It is a six-and-a-half 
million dollar project, roughly, and the Corps is 4 years into 
that project.
    One of the goals of this project is to create a wild, self-
sustaining fishery. And because of the way 3881 is currently 
drafted, it would not protect the value associated with that 
Corps project. The Arkansas River Legacy Project was not just 
funded by the Corps. The City of Pueblo has put in money. The 
State of Colorado, through Great Outdoors Colorado, has put in 
money. Trout Unlimited has raised money in addition to 400 
hours of sweat equity working on restoration. We think that it 
is critical that the value of this project not be lost, as 
Southeastern addresses the storage issues of its water users.
    H.R. 3881, by taking the PSOP and using that as the 
foundation for the feasibility study, puts a minimum hundred 
cfs flow target, a voluntary target, into a river that 
currently runs at 2,000 to 2,500 cfs in the summer. We believe 
that the bill as drafted sets a course which doesn't allow for 
the environmental reviews which will be a requirement down the 
road to really look at and develop the science of what is 
necessary to satisfy other project purposes of the Fryingpan 
Arkansas Project, particularly fish and wildlife conservation.
    We hope that this bill can be amended to ensure that the 
science developed would allow for the goal of the Corps project 
to be achieved. 3881 deals virtually exclusively with storage. 
In addition to the fish and wildlife issues, there are 
socioeconomic issues. I think Ms. Castle for the City of Pueblo 
will talk about how Pueblo feels, that it may be something of a 
loser in the construct of this bill. You heard already from 
Kansas in terms of their feelings that they are a loser under 
this bill.
    I would urge the Committee on behalf of Trout Unlimited to 
take a step back, broaden the scope, and deal with all of the 
issues that are involved here, not just storage but protection 
of the Federal investment to the Arkansas River Legacy Project, 
as well as consideration of protection for the basin of origin, 
the Colorado River, because there is also a recreational 
economy on that side of the Rocky Mountains.
    We made a number of recommendations in our testimony. I do 
believe that it is possible, given what we know about the 
project now, to work those issues out and, as Mr. Hefley said, 
to satisfy everybody. I am hopeful that we can do this. But we 
believe that it is imperative not to lose the value that the 
Corps project has contributed to this area and to protect a 
fishery that is widely used by Pueblo citizens. There are a lot 
of lower economic status citizens in the City of Pueblo who use 
this fishery. TU has contributed to it's viability. It is our 
hope that it will be protected as Southeastern grows. Thank 
you.
    [The prepared statement of Ms. Kassen follows:]

 Statement of Melinda Kassen, Director, Colorado Water Project, Trout 
                               Unlimited

    Good morning Mr. Chairman and members of the subcommittee. I am 
honored today to be here to discuss Trout Unlimited's interests in, and 
opposition to H.R. 3881, a bill to authorize the re-operation of, and a 
study to enlarge, Pueblo Reservoir and other Bureau of Reclamation 
(Bureau) Fryingpan-Arkansas Project (Fry-Ark) facilities. I am the 
director of the Colorado Water Project for Trout Unlimited; my resume 
and disclosure form are attached to this testimony.
                              Introduction
    Trout Unlimited (TU) is a national non-profit organization with 
125,000 members nationally and over 8,200 in Colorado. TU's Southern 
Colorado Greenback chapter, based in Pueblo, CO, has approximately 230 
members. TU's mission is to conserve, protect and restore coldwater 
fisheries and their habitats. The goal of the Colorado Water Project is 
to restore and maintain stream flows for healthy coldwater fisheries 
and to increase meaningful public participation in decisions regarding 
water allocation.
    Both TU's Colorado state council and its local chapter have shown a 
longstanding and active interest in restoring the coldwater portion of 
the Arkansas River. For example, TU has been involved in projects to 
protect the Upper Arkansas River from high flows associated with 
increased transmountain diversions made possible by the Fry-Ark 
Project. TU was party to the Federal Energy Regulatory Commission's 
relicensing process for the Salida Hydro plant on the South Arkansas 
River. Another area TU chapter has worked with the Bureau of Land 
Management (BLM) and the Colorado Division of State Parks in their 
partnership for the Arkansas Headwaters Recreation Area via the 
Citizens Task Force, to bridge the gap between different groups of 
recreational users. In partnership with the BLM, TU volunteers have 
established angler access points along the river. TU has been involved 
in numerous projects to restore greenback cutthroat trout within the 
Arkansas River basin. Local TU volunteers have contributed more than 
4000 hours a year in conservation and education programs for the 
Arkansas River Basin. National TU's Colorado Water Project also 
recently released a report, Dry Legacy (copies attached and available 
at Dry Legacy or www.cotrout.org) that highlighted low flow problems on 
the South Fork Arkansas River and Fooses Creek (one of its 
tributaries), as well as recommendations for solving the problem.
    In my testimony today, I would like to make three main points:
    First, as drafted, H.R. 3881 creates a project that would have 
significant negative impacts on the City of Pueblo, the Arkansas River, 
and the Colorado River basin. Those impacts include both further 
degradation of already seriously degraded aquatic ecosystems in two 
major river basins in Colorado and a significant reduction of the 
benefits of an environmental restoration and recreation project, the 
Arkansas River Legacy Project, now underway.
    Second, because H.R. 3881 is drafted to foreordain some critical 
components of the project, the bill effectively blocks meaningful 
evaluation of the alternatives for the project in the feasibility study 
and environmental review. As an example, the bill calls for a target 
minimum flow below Pueblo dam of 100 cubic feet per second (cfs). This 
flow has already been demonstrated to be grossly inadequate for a 
healthy fishery, but because that number is in the bill, the Bureau's 
ability to determine and require an adequate flow would be highly 
circumscribed. As a result, designing the project to minimize impacts 
and crafting appropriate mitigation will not occur.
    Third, Colorado's water management system is complicated, with 
complex and difficult problems. Simple solutions, such as the storage 
capacity increase proposed in H.R. 3881, may address one interest's 
issues, but do not necessarily lead to a better situation for all 
affected interests. As this committee is wrestling with in the case of 
California's CALFED legislation, increasing storage may be part of the 
solution, but it must be integrated into a more comprehensive approach 
to solving the regional problems. H.R. 3881 does not even begin to take 
that more comprehensive approach, and therefore fails to advance an 
overall resolution.
                   The Arkansas River Legacy Project
    In many places, the Arkansas River is a highly managed system, as 
much a tangle of plumbing as a river. Little remains of its natural 
ecosystem through much of its more than 325 miles in Colorado. 
Substantial quantities of the water flowing through the basin come from 
west of the continental divide, as a result of several transmountain 
diversion projects, including the Fry-Ark that is the focus of H.R. 
3881. Pueblo Reservoir, which is part of the Fry-Ark Project, closed 
its gates in 1975. Prior to then, the reach of river from the dam site 
down to the Arkansas River's confluence with Fountain Creek was a warm 
water environment. With the reservoir in place, this reach of the river 
became a coldwater environment. However, the river was also highly 
channelized below Pueblo Reservoir, as a result of older flood control 
measures and served initially as a conduit for high volume summer flows 
destined to satisfy the water rights of Lower Arkansas River basin 
farms, and deliveries under interstate compact to the State of Kansas.
    The native coldwater fish species from the Arkansas (greenback 
cutthroat trout) was listed as an endangered species in 1973 
(downgraded to threatened in 1978). These fish are in trouble due both 
to the introduction of non-native species and to the basin's severe 
water management regime that has destroyed the natural flow patterns in 
many places. Given this listing, persons interested in healthy 
coldwater fisheries saw the tailwater reach below Pueblo Reservoir as a 
place to recover coldwater fishery habitat. However, Pueblo Reservoir 
only releases a meager 100-200 (cfs) to the stream for the five-month 
winter period, when there is little irrigation demand downstream and 
water users instead store water in the reservoir for summer use. These 
winter flows are insufficient to allow trout to survive through the 
winter and establish a breeding population. Thus, the Colorado Division 
of Wildlife has managed the reach of the Arkansas River from Pueblo 
Reservoir downstream to the City of Pueblo in the last several decades 
as a ``put-and-take'' trout fishery, stocked with catchable-size trout. 
None-the-less, the fishing in this reach of the river is a significant 
recreational amenity even now, particularly for Pueblo's large, low-
income population.
    Recognizing the recreational and habitat potential for this reach 
of river, in 1998, the US Army Corps of Engineers began a major effort 
to restore a 9.5 mile reach of the Arkansas, from below Pueblo 
Reservoir downstream to the confluence with Fountain Creek. Teaming 
with the Colorado Division of Wildlife, the City of Pueblo, two local 
school districts, the University of Southern Colorado, and several 
local environmental and recreational groups, the Corps embarked on the 
Arkansas River Corridor Legacy Project (Legacy Project). Funds for the 
project come from the Corps, Great Outdoors Colorado (the recipient of 
Colorado lottery proceeds), the City of Pueblo and other team members. 
The Corps is expecting the total project to cost $6.6 million, with a 
35% share being paid by non-federal partners. (The Corps' share is 
capped at $5 million.) Completion is expected in 2004. There are 
several additional components of the Legacy Project in which the Corps 
is not directly involved (including enhancements of Pueblo's nature 
center--located adjacent to the river--nature trails and zoo exhibits) 
which bring total project costs to $8.75 million
    The local TU chapter is one of the partners in the Legacy Project. 
Within the past four years, the chapter secured a $2,500 grant through 
TU's Embrace-a-Stream program to buy and place boulders in the river 
several miles downstream of Pueblo Reservoir for habitat restoration 
purposes. In addition, the chapter has contributed over 400 hours of 
volunteer time planting trees and reclaiming the riparian corridor of 
this reach.
    One aspect of the Legacy Project, scheduled to enter construction 
as early as November 2002, will be to construct a winter low flow 
channel within the current river corridor. This will allow the 
concentration of wintertime low flows to maintain sufficient habitat so 
that fish could over-winter successfully. With the additional 
restoration efforts, the Legacy Project partners hope to nurture a wild 
fishery for this reach upon completion. But the Legacy Project will not 
just yield recreational amenities; it will also give the Pueblo area a 
fully functioning ecosystem, with all the positive values that entails.
    Because of the work that TU and others have put into improving the 
value of the Arkansas River resource through Pueblo, TU believes that 
it is imperative to protect flows in this reach of the river.
 Impacts of the Pueblo Reservoir Re-operation and Potential Enlargement
    Passage of H.R. 3881 would authorize an immediate re-operation of 
Pueblo Reservoir to enable storage and transport of additional water 
and would fund studies to look at enlarging Pueblo Reservoir. The 
Arkansas River is a highly over-appropriated river in a semi-arid 
region. Because Colorado adheres to the prior appropriation system of 
water allocation, the state administers water rights in the order of 
their seniority. The municipalities that support H.R. 3881, including 
the Cities of Colorado Springs and Aurora, do so because the re-
operation and enlargement of Pueblo Reservoir will increase their 
ability to make ``exchanges'' of water upstream into Pueblo Reservoir 
that will supply their burgeoning populations' needs. (In an 
``exchange,'' a water user diverts water from a different location that 
was originally decreed and then supplies water from a different source 
to those diverters whom the change would otherwise adversely affect.) 
The current operating regime and storage capacity of the Reservoir 
limit the quantity of water that these cities can now exchange within--
and outside--the basin. (Aurora sits in the Platte River Basin adjacent 
to, but north of, the Arkansas River Basin; Colorado Springs straddles 
Fountain Creek, a major tributary of the Arkansas.) As a result, they 
are not able to exercise some of their decreed water rights. The re-
operation of Pueblo Reservoir allowed by H.R. 3881 would enable 
additional exchanges to occur now; the proposed enlargement would 
further expand the beneficiaries' ability to make new exchanges.
    There are two significant practical effects that would result from 
passage of H.R. 3881, as introduced, on aquatic ecosystems. The first 
is a substantial decrease in flows in the Arkansas River below Pueblo 
Reservoir through the City of Pueblo. Historic summer flows in this 
reach of the river are typically in excess of 2000 cfs, with a minimum 
of close to 500 cfs. With the enlargement and re-operation that H.R. 
3881 would set in motion, the Southeastern Colorado Water Conservancy 
District and the entities who intend to store additional water in 
Pueblo Reservoir commit only to a voluntary ``flow management program'' 
that will ``target'' a flow of 100 cfs in this reach--a few percent of 
typical summer flows and potentially an 80% decrease from the historic 
summer low flow condition, with no guarantee of even that amount. 
Despite that existing winter flows are insufficient to support a wild 
fishery now, H.R. 3881's increased storage and target minimum would 
reduce them to the low end of their range (100 cfs).
    The second major category of adverse impacts is to the Colorado 
River basin through increased transmountain diversions. The course that 
H.R. 3881 sets appears to allow for increases in transmountain 
diversions, using the existing infrastructure of the Fry-Ark project as 
well as the proposed expansion. The Fryingpan River is a lively 
tributary to the Roaring Fork River, which is itself a tributary to the 
mighty Colorado River. 69,200 acre feet of water, a large portion of 
the native flows of the Fryingpan River, cross the continental divide 
for the Fry-Ark project now, along with additional water from non-
federal projects, such as the Homestake Project that Colorado Springs 
and Aurora jointly own and operate. When Congress authorized the 
original project, Congress provided mitigation for the loss of native 
flows on the Colorado River side of the divide by constructing Ruedi 
Reservoir, which provides 100,000 acre feet of use to west slope water 
users for a variety of purposes. The expansion and re-operation 
proposed in H.R. 3881 has the potential to increase Colorado River 
depletions beyond the quantity that could be diverted for non-project 
purposes without the infrastructure of the Fry-Ark Project and beyond 
the quantity for which Congress originally provided mitigation. The 
result is likely to be an expanded transmountain diversion, without any 
provision for additional mitigation for the basin of origin, and 
certainly no mitigation for the adverse impact to the basin of origin's 
aquatic resources.
    The complexity of accounting for water transfers within the 
Arkansas River Basin, as well as within the Fry-Ark project itself, 
makes it difficult to determine at this time what the actual effects of 
expansion and re-operation may be. Doing so should be a major focus of 
the analysis of this proposed project during its environmental review. 
However, additional transmountain diversions out of the Colorado River 
Basin, a basin that has its own interstate compact delivery 
requirements, its own phenomenal growth, its own burgeoning 
recreational economy that relies on healthy river flows, and its own 
endangered species, is an outcome that Congress should avoid.
    These two major categories of impacts--de-watering in the Legacy 
Project reach of the Arkansas River, as well as unmitigated impacts in 
the Colorado River Basin resulting from additional transmountain 
diversions--need to be thoroughly examined in the feasibility study and 
associated environmental review. However, H.R. 3881 defines the project 
and some key features, such as the target minimum flow, in a way that 
will prevent carefully designing the project, its operations, and 
environmental components to address these adverse effects and create 
the greatest benefit for all Coloradans.
                         The Bureau's Challenge
    As members of this subcommittee well know, the Intermountain West 
is one of the fastest growing regions in the county, with Colorado as 
no exception. Colorado is projected to add one million residents in the 
next generation to the four million who already call the state home. In 
a state that gets, on average, 15 inches of rain annually, this growth 
will strain the state's water resources. Colorado is typical of the 
West in that irrigated agriculture uses the vast majority of the 
state's limited water resources, exceeding 80% of all consumptive water 
use. Unlike the population, however, the water supply will remain 
essentially constant over the next generation, given the limits of 
hydrology and the delivery requirements under the Arkansas River 
compact with Kansas. In the quest to develop the water supplies 
necessary to meet the demands of growing cities, there are hard choices 
to make and balances to strike between fueling that growth and 
preserving rural communities dependent on an agricultural economy that 
is already highly subsidized. However, in this balancing act, it is 
also important not to sacrifice the aquatic environments on which much 
of the ``New West'' recreational and tourism economy depends. And, as 
Members of this Committee know well, our laws require that federal 
actions occur without endangering native species on the verge of 
extinction.
    Most western states use some form of the prior appropriation system 
to allocate water resources. Colorado employs a particularly pure form 
of this system. Thus, as the state's water courts consider requests for 
new or changed water rights, they cannot consider impacts on the 
environment in making decisions. Nor can a water court consider whether 
the exercise of a water right may adversely affect a local economy.
    In this case, the municipalities supporting the re-operation and 
enlargement already hold water rights that, if exercised all together, 
would virtually dry up the Arkansas River in the stretch between Pueblo 
Reservoir and Fountain Creek through the City of Pueblo if they had the 
additional storage that H.R. 3881 would provide. Yet, Colorado law does 
not provide any legal venue in which to consider directly the adverse 
effects on the environment or the recreational amenity that would 
result from the cities exercising their water rights. It is simply not 
illegal in Colorado to dry up streams.
    As a practical matter, this system causes many of Colorado's rivers 
and streams to run dry at some time of the year. The Colorado Division 
of Wildlife maintains a database that has identified at least 571 
rivers where low flows are a limiting factor on the health of aquatic 
communities. It was not until 1973--a century after issuance of decrees 
for the state's most senior water rights--that the state recognized the 
need to protect rivers by keeping some water in the stream. Since the 
creation of the state's instream flow protection program, a single 
state agency has been allowed to appropriate water for environmental 
protection purposes, but the state program has been limited in many 
respects. Almost all of the rights it holds are quite junior (in a 
system based on seniority) and the quantities are only for minimum 
amounts, thus limiting the habitat protection they afford. Today the 
program protects fewer than 20 percent of the coldwater streams in 
Colorado (and only a handful of others). Of the 25,000 miles of streams 
in the Arkansas River Basin (a figure that includes both perennial and 
ephemeral streams), the state's program covers just over 600 miles of 
streams (none of which are on the mainstem of the Arkansas River).
    Colorado's political leaders now recognize that this approach to 
water may have suited 19th century miners and ranchers, but is 
inappropriate for Colorado's current and future residents and economy. 
Recognizing that fish and people need water flowing in the state's 
rivers, Colorado's legislature is now considering improving the program 
for protecting flowing rivers.
    By contrast, when considering its actions, the federal government 
not only may, but also is required to, consider the needs of fish, 
wildlife, endangered species, recreation, local economies and a host of 
other interests affected by water projects. However, the tools federal 
agencies have available for protecting rivers in the West have been 
little used in areas affected by this project. First, the federal 
agencies with lands reserved from the public domain can obtain federal 
reserved rights dating to when their lands were withdrawn; however, 
there are no federal reserved rights in the Arkansas River Basin, and 
none pending that would help protect the Arkansas River between Pueblo 
Reservoir and Fountain Creek. Similarly, some federal agencies, in the 
context of exercising their administrative authorities, can impose 
bypass flow requirements, for example, through permits; however, there 
are few operating in the Arkansas River Basin.
    As part of the changes H.R. 3881 seeks, the legislation should 
ensure that the Bureau considers how best to ensure protection of the 
flow levels that will restore the Arkansas River consistent with the 
Corps' Legacy Project. TU urges an amendment to H.R. 3881 to direct the 
Bureau not to enter into contracts unless they allow release of flow 
levels to the affected reach of the Arkansas sufficient to establish 
and maintain a wild fishery.
    The Bureau's role throughout the West was initially to reclaim the 
arid lands. While early Bureau projects focused on irrigation, and to a 
lesser extent municipal use, over time the purposes of Bureau projects 
have expanded. More recent projects, including the Fry-Ark, include 
power generation, as well as recreation and fish and wildlife 
protection or enhancement. As described in the testimony from the City 
of Pueblo, the Fry-Ark project enabled better use of the fertile lands 
in the lower Arkansas River Basin, as well as provided these other 
benefits.
    The irony, of course, is that, even with the Fry-Ark project, the 
future of irrigated agriculture remains hazy. Today, the farm economy 
depends on substantial federal subsidies. In addition, Colorado has 
obligations under the Arkansas River Compact to deliver certain 
quantities of water downstream to the State of Kansas. Making those 
compact deliveries has meant some curtailment of agricultural rights on 
the Colorado side of the border. In addition, as municipal growth takes 
increasing amounts of water to sustain, agricultural water users are 
hard pressed to hang on to their valuable water rights.
    Nowhere is there a better example of this phenomenon than in Otero 
County, Colorado, located in the Lower Arkansas River Basin. There, the 
City of Aurora, one of the same municipalities that would benefit 
greatly from the re-operations and enlargement that H.R. 3881 
contemplates, bought out most of the water users along the Rocky Ford 
Ditch. Acquiring agricultural water rights is often the cheapest way 
for thirsty cities to enlarge their water supplies. The effects of this 
purchase and the transfer of the water rights out of the county and 
Arkansas River Basin on the local economy and community have been 
significant.
    One of the many conditions imposed on Aurora's transfer of these 
water rights was that the City would have to demonstrate conservation 
of water within its service area. Certainly, given the huge burden that 
a basin of origin shoulders when a remote water user diverts water out 
of the basin, this type of condition is not only reasonable but also 
imperative. Yet, H.R. 3881 is silent on the need for those who would 
benefit from the transfer of water out of the Arkansas or Colorado 
Rivers to conserve the water removed. The bill should direct those in 
the basins of use to ensure that the water transferred is conserved to 
the maximum extent possible. A particularly galling example is 
diverting water out-of-basin, drying up recreational and environmental 
treasures, for delivery to subdivisions with covenants that favor--or 
even require--blue grass lawns (that demand profligate watering). 
Precious out-of-basin water should be used most efficiently, and not 
for watering city sidewalks or landscape unsuitable for an arid 
climate.
    Finally, the Bureau must determine how to meet the fish and 
wildlife purposes of the Fry-Ark Project on both sides of the 
Continental Divide. We suggest that the Project not be used to de-water 
the Arkansas River between Pueblo Reservoir and Fountain Creek, and not 
allow any expansion or re-operation of project facilities to harm the 
Colorado River Basin tributaries that contribute their flows to the 
Arkansas and South Platte River Basins. While Section 12 of the bill 
appears to limit the additional draw on the Colorado River, it does 
allow new depletions if accompanied by compensatory storage for west 
slope water users. Given the realities of the west slope economy, and 
given the fish and wildlife purposes of the initial project, TU urges 
Congress to ensure that the Bureau not only considers compensatory 
storage, but also ensures protection of the remaining aquatic and 
recreational values of the Fryingpan River valley.
    In this complex situation, it is important for the Bureau to take 
the lead to helping the Arkansas River Basin respond to the growth 
pressures it faces. That means fine-tuning the water management that 
the Bureau's Fry-Ark Project makes possible. But, particularly given 
the Corps' and its partners' investment in the Legacy Project, it is 
important for the Bureau to act as well to protect the fish and 
wildlife benefits that are also within the purposes of the original 
Fry-Ark Project.
   Balancing Arkansas River Protection and Supplying Water for Growth
    TU is not opposed to growth; we recognize that the Rocky Mountain 
West generally, and southeastern Colorado in this instance, is going to 
grow. That said, TU believes that the only way to grow responsibly is 
to do so while protecting important environmental and recreational 
resources. In a state like Colorado, these protections are necessary to 
preserve the quality of life. This is especially the case where such 
resources have been the centerpiece of cooperative federal/state/local 
restoration efforts. In considering this bill, the subcommittee needs 
to determine how best to protect the federal investment, through the 
Corps, in the Arkansas River Legacy Project, including sustaining flows 
in the reach subject to restoration. H.R. 3881 should not start a 
process that will lead to the Bureau taking action that will undermine 
this Corps initiative, done in concert with local and state government, 
as well as local citizen groups and individuals' support.
    Therefore, we believe that Congress must direct the Bureau to 
impose reasonable requirements in the contracts and project features 
authorized by H.R. 3881 to protect both the aquatic environment within 
the Corps' Legacy Project area and that of the Colorado River Basin. 
H.R. 3881 should not function to create winners and losers. Rather, the 
bill should ensure balance in its outcome. TU believes that amendments 
to the bill can accomplish a more even-handed outcome. Such amendments 
would require:
     LRe-operation to be done in a way that protects flows in 
the Corps' Legacy project reach to accomplish that project's goals. In 
this regard, while TU supports Pueblo's proposal to limit re-operation 
and use of enlarged capacity when flows through the City of Pueblo are 
less than 500 cfs in the summer and 100 cfs in the winter, we also 
stress that the legislation direct that ultimate minimum and target 
flows be set to support a healthy wild fishery based on a thorough 
scientific evaluation done during the environmental review process;
     LRe-operation to be done both to protect the aquatic 
resources as well in the basin-of-origin tributaries out of which 
additional transmountain diversions may be made, and to provide 
appropriate mitigation for west slope water users;
     LThat the water for municipal use made available as a 
result of reservoir re-operations (or reservoir enlargement after the 
study H.R. 3881 authorizes is completed), and in particular as a result 
of increased transmountain diversions, be the subject of conservation 
requirements within the area of use;
     LIntegration of any re-operation or expansion with the 
needs of the affected local communities, including the City of Pueblo 
and the recreation and tourism based communities on the West Slope; and
     LAuthorization of funds, if necessary, to buy water rights 
to accomplish the above.
    Thank you for your attention and consideration. I would be happy to 
answer any questions.
                                 ______
                                 
    Mr. Calvert. Thank the Gentlelady.
    Ms. Castle, you may begin your testimony.

 STATEMENT OF ANNE CASTLE, SPECIAL COUNSEL, THE CITY OF PUEBLO 
                WATER MATTERS, STATE OF COLORADO

    Ms. Castle. Thank you, Mr. Chairman. I am Anne Castle, and 
I am special legal counsel to the City of Pueblo for Water 
Matters. With me here is today is Mike Occhiato, the President 
of the Pueblo City Council, Lee Evett, the city manager, Dave 
Galli, the assistant city manager, and Tom Florzak, the city 
attorney. Their presence today indicates how serious a concern 
this legislation is for the City of Pueblo.
    Pueblo is a city of about a hundred thousand people located 
about a hundred miles south of Denver on the front range of the 
Rockies. It is bisected by the Arkansas River. Why is Pueblo 
concerned? Quite simply, Pueblo is concerned because this 
legislation is going to substantially decrease the flows in the 
Arkansas River in the segment that flows through the city.
    As Councilman Null said, Colorado Springs, for example, 
intends to store private water rights, water rights that belong 
to Colorado Springs, in the space that is created by the 
reoperation of the Fryingpan Arkansas facility that would be 
allowed by H.R. 3881. Those are water rights that used to be 
taken to irrigate fields downstream of the City of Pueblo. 
Instead, the reoperation of this project would allow those 
water rights to be stored upstream, and so the water wouldn't 
be flowing through the city any more. It is going to be stopped 
at Pueblo Dam, from there taken in a pipeline to Colorado 
Springs or, as this legislation allows, to Aurora, a city over 
a hundred miles away and located in an entirely different river 
basin and not even within the Southeastern District.
    So the legislation has the potential to substantially 
decrease flows in the part of the river that flows through the 
city. Why is that a problem? Three reasons. Ms. Kassen has 
talked about the Army Corps of Engineers Arkansas River 
restoration project. That is a $6-1/2 million project that the 
City of Pueblo is cost-sharing in and will pay 35 percent of 
the cost of that project. That project is based on the 
assumption that existing conditions will continue, that Pueblo 
Dam will continue to operate the same way and be the same size, 
and that the river flows that exist currently will continue.
    Well, if that is not the case, if the reoperations goes 
forward, if the reservoirs are enlarged and the flows are 
reduced, then the restoration project is jeopardized.
    Second reason. The city has added on to the Corps 
restoration project with its own Arkansas River Legacy Project, 
which is more work to revitalize the river area within Pueblo, 
to rehabilitate a nature center, expand a river trail system, 
and to construct a boating course in a small segment of the 
river right in the middle of the city to provide some 
recreation opportunities for this low income area. Pueblo has a 
population that is over 19 percent poverty level, as opposed to 
the much reduced or much lesser poverty levels in the cities 
that will benefit from this project.
    Third reason. The city's wastewater treatment plant 
discharges at a location on the downstream edge of the city 
limits. And it is--quite simply, its discharge permits are 
based on the amount of historical flow in the river at that 
point. If the flows go down, if the flows get lower, then the 
discharge permit has to change. The requirements have to be 
tightened up, and that is a very expensive proposition for the 
city.
    It has been estimated that cost of upgrade to the city's 
wastewater treatment plant that would be required is about $10 
million. So, as Mr. Hefley said, this is a project that will 
benefit municipalities and allow municipalities to store 
private water rights in what is now a Federal project. Those 
municipalities are going to get great benefits, no question 
about that.
    And the City of Pueblo doesn't oppose this legislation in 
concept. But the benefits to the municipalities have to be 
balanced by a sharing of the burden that is borne by the City 
of Pueblo in the form of reduced flows.
    This legislation is going to create significant changes in 
the river, and they are changes for the worse for Pueblo. That 
reach of the river is going to be reduced substantially. The 
lion's share of the benefits are going to cities far away. Some 
of this water is going to be removed from the Arkansas Valley 
entirely and used by the City of Aurora.
    We are not asking that the project be stopped. We are not 
suggesting that there shouldn't be any reduction in flows. What 
Pueblo is asking for is that a floor be established, a bare 
minimum level of water flow that will continue to exist after 
this project is reoperated and after those reservoirs are 
enlarged, so that the City of Pueblo will continue to have a 
live, healthy stream flowing through it, not a dry ditch, for 
the benefit of its citizens. Thank you, Mr. Chairman.
    [The prepared statement of Ms. Castle follows:]

 Statement of Anne J. Castle, Esq., Holland & Hart LLP, Special Water 
          Counsel, on Behalf of the City of Pueblo, Colorado,

    H.R. 3881 would authorize the Secretary of Interior to enter into 
contracts that would effectively increase the capacity of Pueblo 
Reservoir available for the storage of non-federal water rights by a 
substantial amount, and also authorize feasibility and other studies 
relating to the proposed physical enlargement of Pueblo Dam and 
Reservoir. As discussed in more detail below, the City of Pueblo, 
Colorado opposes H.R. 3881, as currently proposed, because the 
legislation would result in substantial, additional depletion of the 
already severely impacted Arkansas River as it flows through Pueblo.
   I.TESTIMONY OF MICHAEL A. OCCHIATO, PRESIDENT, PUEBLO CITY COUNCIL
    Pueblo is a community of approximately 105,000 people located on 
the semi-arid plain in southeastern Colorado, and serves as the 
medical, financial, retail and cultural center for 350,000 people from 
the Continental Divide east to Kansas, and from the City of Fountain 
south to the New Mexico border. Located at the confluence of the 
Arkansas River and Fountain Creek (see the location map attached at Tab 
B), Pueblo has been an important trading and population center for over 
300 years. Spanish and French explorers visited in the sixteenth 
century and Zebulon Pike explored the area in 1806 when it became part 
of the United States. The present day city of Pueblo was incorporated 
in 1886 as a consolidation of three previously existing towns. From the 
1870s until after completion of the Moffat Tunnel in 1928, which 
allowed the diversion of rail traffic across the continental divide at 
a more northern location, Pueblo was a thriving industrial and railroad 
city, second in population only to Denver. The Arkansas River has 
always been an important part of the City, due both to its prominent 
role in commerce and industry and as a source of water for the 
community. The River may have divided the City geographically, but it 
has also united the people of our community both as a devastating force 
of nature such as occurred in the 1921 flood, and as the peaceful 
riparian habitat enhancing the urban core of the City adjacent to our 
City parks, river trails and nature center.
    We have very serious, continuing concerns regarding the impact that 
passage of H.R. 3881 will have upon our community. Before addressing 
the flaws in this bill, a brief history of the original Fryingpan-
Arkansas Project, of which Pueblo Reservoir is an integral part, may be 
helpful.
    During the early 1930s, Pueblo and the Arkansas Valley experienced 
a severe drought, which created near dustbowl conditions. This 
continued for many years, preventing otherwise fertile soil from being 
productive throughout the normal growing season. In the mid-1950s, 
President Dwight D. Eisenhower visited Pueblo and the Arkansas Valley. 
He took this opportunity to experience firsthand the blighted 
conditions of the soil and the plight of the region's farming 
communities. In good, wet years, nature stored heavy-packed snow in the 
high Rocky Mountains. Farmers had water for the initial part of the 
growing season, but not all of the growing season, as run-off in the 
early part of the season prevented water from being available later in 
the year. This flow regime made it difficult for the farming community 
to harvest good crops and utilize the fertile soil to its full 
potential. After many years of local citizens selling cast iron frying 
pans to generate funds for lobbying Congress, President John F. Kennedy 
visited Pueblo and signed legislation authorizing the Bureau of 
Reclamation to begin building the Fryingpan-Arkansas Project, part of 
which is Pueblo Reservoir located less than 10 miles upstream from 
Pueblo. This project brings surplus water from the western slope of 
Colorado to southeastern Colorado for use by the people of southeastern 
Colorado. Once completed in 1975, Pueblo Reservoir provided relief to 
the farm communities downstream as a more reliable source of precious 
water for both agriculture and domestic use.
    Now, nearly thirty years later, there are those that see the 
project's usefulness not in terms of preserving the River and the life 
which it brings to southeastern Colorado, but as a vehicle to transfer 
and store additional water for use elsewhere. Both the economic 
difficulties of farming and the value of water to thirsty metropolitan 
cities--such as Aurora which lies more than 100 miles north of Pueblo--
are exerting pressure to remold the project into a vehicle to transfer 
more water away from Pueblo and the region generally, by making 
possible additional upstream exchanges of water, that previously flowed 
through the City to downstream users. As explained below by Ms. Castle 
in her testimony, H.R. 3881 as presently drafted, will allow further 
exchanges and transfers, and conceivably could at times dry up the 
Arkansas River through Pueblo.
    As presently written, Pueblo must oppose H.R. 3881. First, we do 
this because the bill authorizes reoperation of the project and 
contemplates enlargement of water storage space in a manner that will 
benefit other entities far from the Arkansas River while burdening 
Pueblo. These burdens are the additional depletion of the Arkansas 
River as it flows through Pueblo, thereby diminishing the value of the 
River as an important and irreplaceable amenity for the City and its 
residents. Second, the project may thwart the City's efforts to restore 
the riparian habitat and enhance recreation through Pueblo under the 
Arkansas River Corridor Legacy Project (the ``Legacy Project'') being 
undertaken by the United States Army Corps of Engineers in partnership 
with Pueblo. The Legacy Project, which involves improvements to 
approximately ten miles of the River as it runs through the core of the 
City, has been long in planning, and enjoys the support and cooperation 
of numerous entities, including the Pueblo Natural Resources and 
Environmental Education Council, funding from Great Outdoors Colorado 
and the provision of lands and easements from the Pueblo Conservancy 
District. Third, the River may be depleted to such a degree that costly 
improvement to the City's wastewater treatment facilities will be 
required, even though the improvements will not result in corresponding 
environmental or health benefits. A reasonable quantity of water must 
be present in the River to allow fish and other aquatic life to thrive, 
before an advanced level of wastewater treatment becomes the limiting 
factor.
    Pueblo would be able to support this legislation if it provided 
enforceable mechanisms to protect minimum flows of 100 cubic feet per 
second (``cfs'') through Pueblo during the winter months (November 15 
through March 15), and 500 cfs in the summer release months (March 16 
through November 14). Without this protection, depletions to the River 
through the City can only increase with the reoperation and enlargement 
of Pueblo Reservoir, and the ``voluntary'' minimum flow level that is 
currently specified in the bill as a desirable ``target'' flow is 
unenforceable and insufficient.
    We acknowledge that an enlarged Pueblo Reservoir would also 
somewhat enhance the existing reservoir as a recreational amenity. 
Notwithstanding this, we believe that the harm which would come from 
the present bill far outweighs its benefits to Pueblo. We also feel it 
is important to ensure that sufficient quality water is available to 
our neighboring communities downstream.
    Pueblo remains committed to pursuing an appropriate, cooperative 
resolution of the issues that will allow for increased water storage 
opportunities in Pueblo Reservoir to improve water supply reliability, 
while protecting the interest of Pueblo and its residents in preserving 
appropriate minimum flow levels in the Arkansas River through Pueblo. 
We sincerely ask for this Subcommittee's cooperation in either amending 
the bill to resolve our concerns or to delay the measure for a 
reasonable time to allow the affected state interests to develop an 
appropriate solution.
                     II.Testimony of Anne J. Castle
    The reoperation and physical enlargement of the storage capacity in 
Pueblo Reservoir that is the subject of H.R. 3881, has been proposed 
and developed by the Southeastern Colorado Water Conservancy District 
(the ``Southeastern District''), and a group of some of its 
constituents dominated by municipal water providers, including the 
cities of Colorado Springs and Aurora (respectively located more than 
40 and 100 miles from Pueblo Reservoir and the Arkansas River). These 
entities will reap the greatest benefits of the increased water storage 
capacity, while the lion's share of the negative impacts of the project 
will be borne by Pueblo. Pueblo's concerns and fears that H.R. 3881 and 
the proposed reservoir reoperation and enlargement project will 
materially harm Arkansas River flows and Pueblo's interests are 
confirmed by the studies and reports prepared for the Southeastern 
District and referenced in the bill. See, e.g., ``Preferred Storage 
Options Plan Report,'' Sept. 21, 2000 (the ``PSOP Report''), p. 31 
(stating ``[r]e-operation storage will facilitate additional river 
exchanges that could impact stream flows below Pueblo Dam,'' and 
confirming that flows from a reoperated Pueblo Reservoir as low as 49 
cfs will occur).
    Pueblo has been engaged for many months in discussions with the 
Southeastern District and the municipal water providers supporting the 
project, in an attempt to reach a mutually acceptable resolution of 
Pueblo's concerns. Pueblo has advocated, unsuccessfully thus far, for 
the development of enforceable limitations on uses of the increased 
storage capacity in Pueblo Reservoir that could further diminish 
outflows from the Reservoir below minimum acceptable levels. It is 
unreasonable and inequitable for the entities that will be able to 
significantly increase the value and yield of their water rights 
through the proposed reoperation and enlargement, to insist that they 
be allowed to do so to the maximum extent possible, without some 
reasonable level of mitigation to the impacted Arkansas River 
environment through Pueblo.
    Pueblo has also been actively participating in the Water Court 
processes initiated by the Southeastern District, Aurora, and others 
relating to water rights issues associated with the reoperation and 
enlargement of Pueblo Reservoir. Pueblo, too, is pursuing its own claim 
for a junior water right for recreational flows in the Arkansas River. 
Colorado's Water Courts, however, do not provide a ready forum or 
adequate remedy for the injuries that will be caused by the significant 
additional depletion of flows that will occur as a direct result of 
H.R. 3881 and the proposed project.
    A. Arkansas River Flows through Pueblo Already Diminished. Since 
construction of Pueblo Reservoir, the flow regime of the Arkansas River 
as it runs into and through Pueblo has been increasingly the subject of 
management and manipulation to satisfy the needs of the agricultural 
and municipal interests that rely on water from the River. One 
significant impact is a very substantial reduction in flows in the 
River from mid-November to mid-March each year. During this period, the 
Southeastern District operates its ``winter storage program,'' and the 
outlet on Pueblo Reservoir is virtually shut down. Attached at Tab C 
are two recent photographs depicting the Arkansas River with winter 
flows (measured at approximately 70 cfs on the day of the photos) 
through downtown Pueblo. Flows in the River increase during the spring 
and summer months when releases of water called for by downstream 
irrigators are made.
    The existence of Pueblo Reservoir just upstream of the City 
diminishes flows in the Arkansas River through Pueblo by allowing for 
the upstream ``exchange'' of water into the Reservoir of water that has 
traditionally flowed through the City to satisfy downstream water 
rights. Under these exchanges, which are the subject of Water Court 
decrees, water is stored in Pueblo Reservoir, rather than being taken 
out of the River at original points of diversion downstream, thereby 
reducing the flow of the River through Pueblo. Such decreed exchanges 
are currently being operated by the Cities of Colorado Springs and 
Aurora, among others.
    B. H.R. 3881 Will Further Reduce Flows. The authorization of H.R. 
3881 for reoperation of the east slope facilities of the Fryingpan-
Arkansas Project (Sec. 3 of the proposed bill) will take effect 
immediately to facilitate additional exchanges of downstream water 
rights to storage and conveyance facilities upstream of Pueblo. This 
reoperation is sought because the authority of the Bureau of 
Reclamation to enter into contracts for the storage of ``non-project'' 
water in Fryingpan-Arkansas Project facilities has been challenged. In 
addition, the PSOP Report, specifically incorporated in the proposed 
bill, expands the definition of ``excess water storage capacity,'' 
thereby effectively creating a larger federally subsidized storage 
reservoir for private use.
    As acknowledged in the PSOP Report, the proposal to expand the 
storage capacity of Pueblo Reservoir has the potential to result in 
further dewatering of the river as it flows through Pueblo, by 
providing additional storage capacity into which water can be exchanged 
upstream. The current ability of several municipalities to operate 
their decreed exchanges is limited by the availability of upstream 
storage, and an enlarged Pueblo Reservoir will allow more water to be 
exchanged. A new water supply pipeline for the delivery of additional 
water from Pueblo Reservoir north to Colorado Springs and neighboring 
communities is currently in the planning stages.
    The bottom line is that upstream exchanges of Arkansas River water 
rights that cannot be operated currently due to the limited 
availability of storage in Pueblo Reservoir, would be able to operate 
if the Pueblo Reservoir reoperation and enlargement sought in H.R. 3881 
proceeds. The result will be further reduction in Arkansas River flows 
through Pueblo, as the exchanged water is transferred out of, rather 
than flowing from Pueblo Reservoir.
    C. Negative Impacts to the Legacy Project, Including Fish, 
Wildlife, and Recreation. The Legacy Project being undertaken at an 
estimated cost of $6.6 million, as a partnership between the Corps of 
Engineers and Pueblo, is intended to rehabilitate fish and wildlife 
habitat and improve public recreational opportunities in a 10-mile 
reach of the Arkansas River, stretching from Pueblo Dam downstream 
through the City. The anticipated benefits to Pueblo and the riverine 
environment that will result from the Legacy Project, which is 
scheduled to be completed in 2004, will evaporate if Arkansas River 
flows substantially diminish below current levels. Pueblo believes that 
a wintertime flow of 100 cfs through the City is the minimum level that 
would be sufficiently protective of the improved wildlife habitat, re-
established fish populations, and recreational aspects of the Legacy 
Project. The ``voluntary,'' ``target'' flow of 100 cfs at the outfall 
of the Dam, provided for in H.R. 3881 and supporting documents is not 
an adequate guarantee or protection of the investment in the Legacy 
Project.
    The significant negative impacts to fish and wildlife, and 
recreational opportunities on the Arkansas River through Pueblo that 
could result from H.R. 3881 would also be contrary to the original 
purposes of the Fryingpan-Arkansas Project, which include ``supplying 
water for irrigation, municipal, . . . and for other useful and 
beneficial purposes incidental thereto, including recreation and the 
conservation and development of fish and wildlife . . ..'' Pub. L. No. 
87-590, 76 Stat. 389 (1962) (emphasis added.) The interests of the 
municipal water providers that are supporting the Pueblo Reservoir 
reoperation and enlargement should not be advanced, to the exclusion 
and at the expense of the other intended purposes of the original 
project.
    D. The Proposed Project Will Diminish Water Quality. Passage of 
H.R. 3881 will exacerbate the poor water quality conditions that exist 
at certain times in the Arkansas River. The reoperation and proposed 
enlargement will not only result in decreased quantity of water through 
Pueblo, but also will allow distant municipalities to take high quality 
upstream water out of the system, and substitute treated sewage 
effluent or lower quality downstream water by exchange. The relatively 
high levels of selenium carried into the Arkansas River by Fountain 
Creek is a widely-recognized water quality issue of increasing concern 
to the regulatory community. Further flow reductions in the Arkansas 
River obviously will reduce the dilutive capacity of the River, making 
the impacts of the poor quality from Fountain Creek even more acute.
    Additionally, further flow reductions in the Arkansas River will 
pose potentially significant compliance problems for Pueblo's municipal 
wastewater treatment plant (the ``Treatment Plant''), by reducing the 
amount of dilution flow that is available to mix with treated effluent 
discharged from the plant. If this occurs, Pueblo may be required to 
implement costly additional treatment processes in order to comply with 
future discharge permitting requirements of the United States 
Environmental Protection Agency and the Colorado Department of Public 
Health and Environment. These issues are compounded by the fact that 
the discharge point for Pueblo's Treatment Plant is located immediately 
downstream from the confluence of the Arkansas River and the already 
poor quality flows from Fountain Creek.
    E. Conclusion/Proposed Solution. Pueblo is not conceptually opposed 
to reoperation or enlargement of the Fryingpan-Arkansas facilities, 
including Pueblo Reservoir. However, these changes that benefit 
entities far away from the facilities must be balanced with a 
recognition of the great potential for detrimental impact on the City 
located in the midst of those facilities. Pueblo's proposed amendments 
to H.R. 3881 would simply protect a minimum flow of water through the 
City and prevent new exchanges from drying up the River entirely. The 
minimum flows sought to be protected (100 cfs during the winter, and 
500 cfs during the remainder of the year) are less than the average 
flows that exist currently in this section of the River (see the graph 
attached at Tab D.)
    Pueblo remains hopeful that an appropriate, cooperative resolution 
of the issues can be achieved that will allow for increased water 
storage opportunities in Pueblo Reservoir to improve water supply 
reliability for the municipal water providers, while protecting the 
interests of Pueblo and its residents in preserving appropriate minimum 
flow levels in the Arkansas River through Pueblo. Again, Pueblo 
recognizes that as with all similar projects, a balancing of the 
potential water supply benefits of the proposed reoperation and 
enlargement project, against the resulting negative impacts must occur; 
however, the balance proposed by the Southeastern District and others 
as proposed in H.R. 3881 is vastly unfair to Pueblo and its residents.

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    Mr. Calvert. Thank you for your testimony.
    I think I will ask a question, and all three witnesses can 
address this.
    If, in fact, a feasibility report was to move forward, 
isn't it true that not just the economic issues have to be 
addressed, not just the water rights, State water right issues 
must be addressed, but community issues must be addressed and 
environmental issues must be addressed. Isn't that correct?
    Mr. Arveschoug. Mr. Chairman, I guess I will start. I would 
answer yes to your question. The work that we have done is not 
intended to be conclusive. We look specifically at our storage 
needs. We looked at other issues as well. But we fully expect 
the Bureau of Reclamation to look at all issues, including 
recreation and environmental issues, not just the work that we 
have done, Mr. Chairman, but all issues presented.
    And, just for the record, we are not asking Congress to 
authorize the enlargements. The reference to the 1939 Act is to 
provide legal authority for the feasibility studies themselves. 
I am not an attorney, and so I can't give you the details of 
that.
    Mr. Calvert. You are the only one that isn't, I suspect.
    Mr. Arveschoug. We are not asking for you to authorize the 
enlargements. We want to be very thoughtful about this process. 
We realize it will take time. Our constituents need the 
additional storage in a reasonable amount of time. But we know 
Reclamation needs to do a thorough job in the studying the 
issues surrounding enlargement.
    Mr. Calvert. Thank you. Ms. Kassen.
    Ms. Kassen. The short answer is yes, that a feasibility 
study should address environmental impacts. Our concern with 
the way the bill is drafted is that it seems to sort of 
preordain the outcome of the feasibility study. And I would 
second what Commissioner Keys said earlier, that the bill be 
amended to allow the Bureau the flexibility to look at all of 
those issues and all of the options that they ordinarily 
consider, and not be limited in any way. And I don't believe 
that what Mr. Arveschoug said is contrary to that, at least 
right here.
    Ms. Castle. In addition to that, Mr. Chairman, I would 
point out that the feasibility study portion of the legislation 
applies only to the proposed enlargement of the reservoirs and 
not the proposed reoperations, meaning the authorization to 
enter into contracts with entities for the storage of 
nonproject water.
    Reoperations would create a 48,000 acrefoot bucket within 
this Federal project, within the existing space. That causes 
the City of Pueblo the same concerns as I just expressed. That 
is not the subject of a feasibility study.
    Mr. Calvert. Well, I think hopefully we can work out 
something that would address those issues if we move forward 
here on a feasibility study. The City of Pueblo, through your 
testimony--and I can understand you have made a significant 
investment in this water park and certainly other things that 
have been going on down that river.
    What rights to the water do you have ultimately outside of 
obviously what is going on in the community, and the water is 
passing through there? But do you actually have a water right 
to that?
    Ms. Castle001. A couple of answers to that. The water 
rights that are used within the city's municipal water system 
are operated by our Board of Water Works, which would, no 
question about it, benefit from the authorization of this 
legislation.
    However, the Board of Water Works doesn't have the 
responsibilities that the city council has to protect all of 
the interests of its citizens.
    Second, the City of Pueblo has filed just recently for a 
water right to protect its proposed boating course in the reach 
of the river through the city. But I will tell you, Mr. 
Chairman, Mr. Hefley, that this is not a water rights matter. 
Colorado water law does not deal with the protection of minimum 
flows in this type of context. That is just not what it was set 
up to do. Colorado water rights law protects water rights from 
injury and doesn't deal well with the situation that we are 
describing where we are trying to protect a minimum level of 
flow in the river that has always flowed through the city, but 
that this legislation jeopardizes.
    Mr. Calvert. Well, let me ask one final question. Because I 
am looking at a photograph that has average and maximum daily 
flow rates that was brought up in your testimony, and your 
proposal would obviously want to increase that amount of water 
even--that is above the average flow rate sometimes during the 
year; isn't that correct?
    Ms. Castlese 004. No. Let me be very clear about that, Mr. 
Chairman. We are not proposing to try to increase the amount of 
natural flow. What we are trying to do is protect what is there 
at a minimum level. So if the flow in the river, the natural 
flow that would be in the part of the river that flows through 
the city, is less than the 500 cfs protection that we are 
asking for during the irrigation season, then we are not trying 
to bump that up to 500, we are just trying to protect what is 
there.
    As you can see from that chart that was attached as Tab D 
to our written testimony, most of the time the average flows in 
the river considerably exceed the minimum levels that we are 
asking to be protected. What we are suggesting, that the flows 
just not drop below that level if they would have been above it 
naturally. If they are already naturally below it, then there 
is nothing more to do. We just don't want it to get lower than 
that.
    Mr. Calvert. Thank you. Mr. Hefley.
    Mr. Hefley. Thank you, Mr. Chairman. It is good to see 
Steve Arveschoug here today. I would like to tell you, Mr. 
Chairman, that Steve was an outstanding State representative 
for years in Colorado. But he had a campaign technique, which 
was to walk between the two major cities in his district, 
Canyon City and Pueblo, about 50 miles every campaign year, and 
I would go down and walk a portion of that with him. I am so 
glad he is in this job now and not in the State legislature, so 
I don't have to go down there and walk that distance any more. 
Steve, good to see you here.
    Mr. Arveschoug. Thank you, Mr. Hefley.
    Mr. Hefley. It is obvious that we have got competing values 
here. That is what hearings are for, to weigh those competing 
values. And I find myself frankly agreeing with all of the 
values that have been expressed here today, except for the one 
I guess where Kansas doesn't even want a feasibility studio. I 
don't agree with that. And we may have to do some discussion on 
how we accomplish the competing values.
    But, for instance, for Trout Unlimited, I was--in the 
redistricting, I have--I will now again--I did when I first 
started in Congress, and I will now again represent the upper 
reaches of the Arkansas River to the headwaters up at 
Leadville. I remember when I represented it before there was a 
big debate about the Elephant Rock Dam. And I happened to side 
with Trout Unlimited and Chaffee County against the City of 
Colorado Springs. I was on the other side because I thought 
that you were right in that. That was a value that we should 
support.
    And I think Pueblo is a wonderful community, who has done a 
wonderful job of spiffying up its image that--this river walk 
and all of that kind of thing. The representatives of Pueblo 
should be commended on what they have done in this. And I don't 
want to do anything to give you a dry ditch. I think the Legacy 
Project is an excellent project. I want that to continue.
    Two weeks ago I was down in Chaffee County and 
reintroducing myself to folks down there and came back along 
the Arkansas, which is one of the prettiest drives that you can 
have in the State of Colorado through that Arkansas River 
Canyon, and stopped repeatedly to watch fishermen fish in the 
stream there. You know, we want these values. And now how do we 
get to them? And I think the feasibility study is the way to do 
that.
    But let me ask you, Ms. Castle, the Pueblo Board of Water 
Works and the Southwest District say that the reoperation and 
the reservoir enlargement will benefit the citizens in the 
vicinity of Pueblo. Is that not correct?
    Ms. Castle. As I said, Mr. Hefley, the Board of Water Works 
will benefit from the reoperation and proposed enlargement of 
the reservoir because they have water rights to store there. 
They are like the cities of Colorado Springs and Aurora in that 
the project can benefit them, and we certainly don't deny that. 
But the Board of Water Works has a very narrow scope. It is not 
their job, as it is the Pueblo City Council's, to protect all 
of the interests of the folks in Pueblo, including the 
recreational interests and the fish and wildlife interests that 
are part of the original purposes of the Fryingpan Arkansas 
Project.
    Mr. Hefley. Well, I would assume that when they say benefit 
the citizens of Pueblo, they weren't just talking about the--
them storing their water rights so they can have drinking 
water. I thought they probably meant some of the other values 
as well. But maybe I am wrong about that.
    Ms. Castle. Well, I think that city council has made a 
determination that the burdens of this legislation on the city 
and the folks within it and the folks in the Pueblo area that 
enjoy the benefits of the river as it flows through the City of 
Pueblo, that those outweigh the benefits to the water board.
    Mr. Hefley. OK. Steve, this bill would require entities 
receiving a contract from Reclamation using excess capacity in 
Pueblo Reservoir to participate in a flow management program to 
help maintain flows below Pueblo Dam through the City of 
Pueblo. How did this requirement come about? And do you believe 
that it address the issues raised by the City of Pueblo? I 
would assume you, too, don't want a dry ditch down there.
    Mr. Arveschoug. No, Mr. Hefley, I don't. I am a citizen of 
Pueblo, represented Pueblo in the legislature, and I don't want 
to see the Arkansas River through Pueblo dry up.
    Let me tell you why we have that requirement in the bill. 
When we were in the middle of our study on enlarging Pueblo 
Reservoir, looking at this concept of reoperations which, Mr. 
Chairman, if we have time I would like to explain that concept 
a little further because I think it would answer some of 
Kansas's questions and some of the other questions that are 
here.
    But when we were doing our study, Pueblo was also in the 
midst of their Legacy Project looking and doing a study with 
the Corps of Engineers. We knew that, obviously, and we shared 
information with city staff. They shared information with us.
    We knew that in the work that we were doing, if communities 
who needed space in Pueblo were going to operate an exchange, 
that that would have an impact on that reach of the river below 
Pueblo Dam, not a significant impact if you look at the 
modeling, but it will have an impact. That is recognized in our 
study. And that is why we say we need to develop a flow 
management program.
    Mr. Chairman, Mr. Hefley, you know this. There is precedent 
for what we were proposing. In the Upper Arkansas reach of the 
river we participate with the Bureau of Reclamation in an Upper 
Arkansas Flow Management Program. The Department of Natural 
Resources provides flow recommendations to the Bureau of 
Reclamation. Then the project is operated to enhance fishery 
and recreation in the upper reach of the river.
    Frankly, we thought that model would work pretty good for 
flows below Pueblo Dam. That is why we included it in the 
legislation as kind of a prerequisite for entities having a 
storage contract. They had to commit to participating in a flow 
management program.
    Mr. Hefley. Well, Steve, without the preferred storage 
options plan, would there be any protection under existing law 
to maintaining the flows through the City of Pueblo?
    Mr. Arveschoug. I think Anne spoke to that a little bit. 
Most of the water rights we are talking about are senior water 
rights. The exchanges on the river are senior. They are senior 
to anything the City of Pueblo is filing for now and would have 
the right, as long as the water is there, to divert that water. 
There is no legal protections for flows below the reservoir.
    We consider the preferred storage options plan as a good 
mechanism or foundation to develop the necessary flow 
protection because Colorado law does not accommodate that at 
the present time.
    Mr. Hefley. Well, you have heard the testimony from the 
State of Kansas, and they have raised, I think, important 
questions regarding compliance with the Arkansas River Compact. 
How will compact issues be dealt with as the preferred storage 
option plan moves forward?
    Mr. Arveschoug. Well, we also heard from Commissioner Keys. 
We would echo his comments that the studies on the enlargement 
will take a very close look at compact compliance. It is our 
sense and our intent that we do not want to develop water 
resources in Colorado out of compliance with the compact, so we 
would expect that the study that would be done by Reclamation 
would take a close look at those issues.
    One key point here. The feasibility study that looks at 
enlargement would also look at the district having a junior 
flood storage right at Pueblo Reservoir. That right comes into 
priority only when John Martin Reservoir is spilling, only when 
other senior water rights in the basin are met, and when flows 
at the State line are in excess of usable flows to Kansas.
    It is very much a junior water right that we would be 
storing under the enlargement. Under the reoperations concept, 
we are going to be storing existing senior water rights in 
Colorado, and return flows from trans-mountain water. We have 
requests for about 38,000 acrefeet of reoperations storage 
space to use existing capacity. That is all existing water, not 
new water. It is us better managing water rights that we 
already have and has no impact to State line flows.
    Mr. Hefley. Thank you very much, Steve. Thank all of the 
witnesses. And, Mr. Chairman, thank you so much for this 
hearing this morning. And I hope the Committee will look 
favorably on this legislation. I am happy to work with you, 
your staff, and with the others that are interested to try to 
make this bill workable for all of these values that we talked 
about. Thank you.
    Mr. Calvert. I will be happy to work with you and our 
friend from Kansas and all of the others to hopefully work out 
a solution to this problem. With that--Steve, you have--.
    Mr. Arveschoug. I am sorry. Someone handed me a card and I 
said I boo-booed here. I need to ask that the record reflect my 
testimony today. And I would submit my reports for the record 
as well.
    Mr. Calvert. Without objection. All of that will be entered 
into the record.
    Ms. Castle. May I just do the same, Mr. Chairman? May I 
submit my remarks?
    Mr. Calvert. Without objection, so ordered. We will leave 
the record open for additional questions to be submitted and 
for those answers to be delivered to the Committee.
    [The letter submitted for the record by Mr. Arveschoug 
follows:]
[GRAPHIC] [TIFF OMITTED] 78262.014

[GRAPHIC] [TIFF OMITTED] 78262.015

[GRAPHIC] [TIFF OMITTED] 78262.016

    Mr.  Calvert. With that, we thank you and we are adjourned.
    [Whereupon, at 12:05 p.m., the Subcommittee was adjourned.]

    The following information was submitted for the record:
     LAdams, Hon. Jamie Clover, Kansas Secretary of 
Agriculture, Statement submitted for the record
     LBarela, Hon. Kenneth, Mayor, City of Fountain, 
Colorado, Letter submitted for the record
     LKuhn, R. Eric, General Manager, The Colorado 
River Water Conservation District, Letter submitted for the 
record
     LScar, Dick, Director, Friends of the Arkansas, 
Letter submitted for the record
     LTauer, Paul E., Mayor, City of Aurora, Colorado, 
Letter submitted for the record

    [The statement submitted for the record by Mr. Adams 
follows:]

  Statement of The Honorable Jamie Clover Adams, Kansas Secretary of 
                              Agriculture

    This written testimony is to alert the Subcommittee to potential 
endangered species implications posed by the projects outlined in H.R. 
3881. The bill raises serious concerns for the Kansas Department of 
Agriculture, and those concerns revolve around issues of flood flows in 
the Arkansas River, including their capture, and endangered fish 
species.
    As I understand H.R. 3881, the bill would authorize a feasibility 
study for enlarging the Pueblo Reservoir and Turquoise Lake to capture 
and store flood flows, or unusable water, from the Arkansas River. 
There are endangered species issues related to flow regimes and quality 
of waters in downstream segments of the Arkansas River.
    Several prairie fishes that were once widespread and abundant in 
prairie stream ecosystems downstream from the Rocky Mountains have 
declined markedly in their distribution and abundance. One such species 
is the Arkansas River Shiner. In 1998, the Arkansas River Shiner was 
federally designated by the U.S. Fish and Wildlife Service as an 
endangered species. In Kansas, portions of the Cimarron and Arkansas 
rivers were ultimately designated as critical habitat for this species. 
Specifically, the Kansas portion of the Arkansas River, which stretches 
east from Highway 27 in Hamilton County in far western Kansas to the 
Kansas-Oklahoma state line, was designated as critical habitat. 
Excluded from that designation was a 12-mile stretch of the river where 
it passes through the city of Wichita. The U.S. Fish and Wildlife 
Service has noted that Colorado actions can, if proper care is not 
taken, adversely modify critical habitat in Kansas.
    The Arkansas River Shiner is a mainstream channel fish species that 
likes a wide, sandy-bottomed environment. The shiner spawns downstream 
of sandbars during May, June and July. Spawning occurs coincident with 
peak river flows. The eggs are non-adhesive and buoyant, so they drift 
in the current and hatch after two to four days. Although minimum or 
optimal flow requirements are not known, it is clear that the species 
is strongly influenced by river flows and it appears dependent on 
periodic intensive river flows during the spring and summer.
    The shiner is native to the Arkansas River Basin and, before 1985, 
it was widespread. However, populations disappeared rapidly during the 
mid-1980s, which prompted the federal endangered species listing. 
Although all causes of the decline in shiner numbers are not known, 
extensive demands on water in the river, reservoir construction and 
alteration of flow regimes appear to be the factors having the greatest 
impact on populations of the Arkansas River Shiner and several other 
prairie fish species.
    In recent years, much of the discussion between Kansas and Colorado 
has focused on water quantity issues. However, endangered species 
issues ranging from the black-tailed prairie dog to salmon to prairie 
fish populations are receiving increasing national attention. I 
appreciate the opportunity to provide you information for your 
deliberations on H.R. 3881.
                                 ______
                                 
    [The letter submitted for the record by Mr. Barela 
follows:]
                            City of Fountain

                             april 2, 2002

The Honorable Ken Calvert, Chairman
Subcommittee on Water and Power Resources
Committee on Resources
United States House of Representatives
1522 Longworth HOB
Washington, D.C. 20515

RE: House Resolution 3881 (Pueblo Reservoir Reoperation/ Enlargement)

Dear Chairman Calvert:

    The City of Fountain, Colorado, submits this letter in order to 
supplement the record of the hearing held before the Subcommittee on 
Water and Power Resources on March 19, 2002, on H.R. 3881, regarding 
reoperation and enlargement of Pueblo Reservoir. Fountain supports this 
legislation, which is designed to more efficiently use Colorado s 
limited water resources, in part by allowing more complete use of water 
imported to the Arkansas River basin from the Colorado River.
    Fountain is a small city located on Fountain Creek, upstream of its 
confluence with the Arkansas River, in the Arkansas River basin. During 
the last decade, Fountain experienced enormous growth which brought its 
population to 15,197 in 2000. It is one of the fastest-growing cities 
on the Colorado front range. Population projections for the year 2020 
range from 30,000 to 37,000. Accommodating this growth has been a major 
challenge to the city, whose residents are working people with low to 
moderate incomes.
    During this period of great growth, the city has had to 
significantly expand its water resources and infrastructure just to 
keep up with its ongoing needs. Fountain now obtains its water supply 
from the Fryingpan-Arkansas (Fry-Ark) project and from several wells 
located within the city. Fountain s allocation of Fry-Ark water is 
approximately 2,000 acre-feet per year, and is delivered via the 
Fountain Valley Conduit. Because the Fry-Ark water is insufficient to 
meet all of Fountain s water needs, the city supplements the Fry-Ark 
supply with water from its wells, although the wells supply water of 
inferior quality. Although the Fry-Ark water is reusable, Fountain can 
fully reuse its share only if the Pueblo Reservoir reoperation and 
enlargement projects are approved.
    The Pueblo Reservoir reoperation and enlargement projects will 
enable Fountain to obtain maximum use of all of its water supplies by 
providing a storage vessel for the city s reusable Fry-Ark return flows 
and certain other water rights. The city is not in a position to 
acquire a sufficient supply of expensive senior water rights on 
Fountain Creek and to construct storage and other water system 
infrastructure on its own. Therefore, the Pueblo Reservoir reoperation 
and enlargement projects are the city s only realistic options.
    We urge the subcommittee to support H.R. 3881, in order to allow 
the necessary resolutions and feasibility studies required to further 
evaluate the Pueblo Reservoir reoperation and enlargement projects. Our 
city s future depends upon this.

Sincerely yours,

Kenneth Barela,
Mayor

cfc/m

cc:  LColorado Congressional delegation
    LCity Council, City of Fountain
    LSteve Arveschoug, General Manager, Southeastern Colorado Water 
  Conservancy District
                                 ______
                                 
    [The following letter was submitted for the record by R. 
Eric Kuhn, General Manager, The Colorado River Water 
Conservation District:]

             THE COLORADO RIVER WATER CONSERVATION DISTRICT

                             march 15, 2002
The Honorable Ken Calvert, Chairman
Subcommittee on Water and Power
U.S. House of Representatives
Committee on Resources
1522 Longworth HOB
Washington, D.C. 20515

RE: H.R. 3881

Dear Chairman Calvert and Members of the Committee:

    Thank you for this opportunity to share the views and concerns of 
the Colorado River Water Conservation District (River District) 
regarding H.R. 3881. The River District is a political subdivision of 
the State of Colorado that is responsible for the conservation, use, 
and development of the water resources of the Colorado River basin to 
which the State of Colorado is entitled under the 1922 and 1948 
Colorado River compacts. The River District includes all or part of 15 
counties in west-central and northwest Colorado, comprising 28 percent 
of the state.
    Roughly 80% of Colorado s population resides east of the 
Continental Divide, while approximately 80% of the moisture in the 
state falls, principally as snow, west of the Divide. Colorado has 
developed an extensive network of surface and underground water 
conveyance structures, which divert water transmountain from Colorado s 
western slope to its population and agricultural centers on the eastern 
slope. Among the largest of these systems are U.S. Bureau of 
Reclamation projects: the Colorado-Big Thompson Project and the 
Fryingpan-Arkansas Project. The latter being the subject of H.R. 3881.
    The River District supports the general purposes of H.R. 3881, 
namely more efficient use of Colorado s limited water resources 
especially the more complete use of water imported to the Arkansas 
River basin from the Colorado River basin.
    The River District has provided input to relevant sections of H.R. 
3881, specifically Section 12, which assures mitigation for increased 
diversions of water from the headwaters of the Colorado River basin 
into the Arkansas River basin. However, we have an unresolved concern 
with the language in Section 12, Paragraph (1) regarding precisely what 
constitutes an increased diversion that would be subject to the 
mitigation requirements of this section.
    The total amount of both project and non-project water which would 
be transmountain diverted as a result of the Fryingpan-Arkansas Project 
was an issue when Congress debated and enacted the authorizing 
legislation for the Project. The following brief excerpt from a House 
Resources Committee hearing on the Fryingpan-Arkansas Project s 
authorizing legislation from 1960 highlights our concerns today:
    Chairman Aspinall. What is the total amount that will be subject to 
diversion from western Colorado to eastern Colorado if this legislation 
is approved?
    Mr. Ogilvie (U.S. Bureau of Reclamation, Assistant Regional 
Director, Denver): It will be the 40,000 presently coming from Twin 
Lakes plus an additional 15,000 for Twin Lakes plus the 69,100 through 
the Fryingpan-Arkansas tunnel. That adds up to approximately 124,000 
acre-feet.
    Chairman Aspinall. Thank you.
    It was on the assurance of such limitations that Chairman Aspinall 
and western Colorado agreed to support the authorizing legislation for 
the Fryingpan-Arkansas Project in 1960. It is similar commitments that 
we seek today. Adequate provisions for mitigation of activities 
authorized under H.R. 3881 must be included in this legislation for any 
water which is conveyed through or stored in project facilities in 
excess of that contemplated at the time of, and included under, the 
Fryingpan-Arkansas Project s authorization.
    The Bureau constructed Ruedi Reservoir as a project feature as 
mitigation for western Colorado s loss of water resulting from 
Fryingpan-Arkansas Project diversions from the Colorado River basin to 
the Arkansas River basin. However, there is no compensatory mitigation 
for additional non-project water which may be transmountain diverted as 
a result of the activities authorized under H.R. 3881. Accordingly, the 
language in Section 12 was drafted to address those additional 
diversions to ensure protection to present and future western Colorado 
water users.
    We are working with the proponents of H.R. 3881 to resolve the 
question of which existing non-federal, transmountain diversion 
projects should be grand fathered under the provisions of Section 12, 
Paragraph (1) and which projects represent increased diversions and 
therefore would be subject to the mitigation provisions of Paragraphs 
(2) through (4). However, to date, we have not reached agreement on 
mutually acceptable language to assure that the language of this 
paragraph will not be the subject of future dispute. Only with 
resolution of this final issue can the River District and western 
Colorado support passage of H.R. 3881.
    Thank you for your time and consideration of our views and concern.

Sincerely,

R. Eric Kuhn,
General Manager

cc:  LColorado Congressional delegation
     LBoard of Directors
     LSteve Arveschoug
                                 ______
                                 

    [The letter submitted for the record by Mr. Scar follows:]
    [GRAPHIC] [TIFF OMITTED] 78262.013
    
    [The letter submitted for the record by Mr. Tauer follows:]
    [GRAPHIC] [TIFF OMITTED] 78262.011
    
    [GRAPHIC] [TIFF OMITTED] 78262.012
    
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