[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
H.R. 3561 and H.R. 4638
=======================================================================
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
__________
May 22, 2002
__________
Serial No. 107-119
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
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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 Anibal Acevedo-Vila, Puerto Rico
Greg Walden, Oregon Hilda L. Solis, California
Michael K. Simpson, Idaho Brad Carson, Oklahoma
Thomas G. Tancredo, Colorado Betty McCollum, Minnesota
J.D. Hayworth, Arizona
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 Hilda L. Solis, California
J.D. Hayworth, Arizona Brad Carson, Oklahoma
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
C O N T E N T S
----------
Page
Hearing held on May 22, 2002..................................... 1
Statement of Members:
Calvert, Hon. Ken, a Representative in Congress from the
State of California........................................ 1
Prepared statement on H.R. 3561 and H.R. 4638............ 2
Linder, Hon. John, a Representative in Congress from the
State of Georgia........................................... 3
Prepared statement on H.R. 3561.......................... 5
Thune, Hon. John R., a Representative in Congress from the
State of South Dakota...................................... 8
Prepared statement on H.R. 4638.......................... 8
Statement of Witnesses:
Cody, Betsy A., Section Head, Natural Resources and Earth
Sciences, and Specialist in Natural Resources Policy,
Congressional Research Service, Library of Congress........ 21
Prepared statement on H.R. 3561.......................... 23
Donnelly, Thomas F., Executive Vice President, National Water
Resources Association...................................... 34
Prepared statement on H.R. 3561.......................... 35
Keys, John W., Commissioner, Bureau of Reclamation, U.S.
Department of the Interior................................. 11
Prepared statement on H.R. 3561.......................... 12
Prepared statement on H.R. 4638.......................... 13
Kurle, Mike, Manager, West River/Lyman-Jones Rural Water
Systems, Inc., South Dakota, Oral statement on H.R. 4638... 48
Lynch, Robert S., Appointed Member, Water Rights Task Force,
Phoenix, Arizona........................................... 38
Prepared statement on H.R. 3561.......................... 40
Means, Frank, Chairman, Economic and Business Development
Committee, Tribal Council of the Oglala Sioux Tribe, Oral
statement on H.R. 4638..................................... 49
Vaux, Henry J., Jr., Associate Vice President, University of
California, Division of Agriculture and Natural Resources.. 17
Prepared statement on H.R. 3561.......................... 19
Additional materials supplied:
Brophy, Michael J., Chairman, Western States Water Council,
Statement submitted for the record on H.R. 3561............ 51
Steele, John, President, Oglala Sioux Tribe, Pine Ridge
Indian Reservation, Statement submitted for the record on
H.R. 4638.................................................. 60
LEGISLATIVE HEARING ON H.R. 3561, TO ESTABLISH THE TWENTY-FIRST CENTURY
WATER POLICY COMMISSION; AND H.R. 4638, TO REAUTHORIZE THE MNI WICONI
RURAL WATER SUPPLY PROJECT.
----------
Wednesday, May 22, 2002
U.S. House of Representatives
Subcommittee on Water and Power
Committee on Resources
Washington, DC
----------
The Subcommittee met, pursuant to call, at 2 p.m., in room
1334, Longworth House Office Building, Hon. Ken Calvert
[Chairman of the Subcommittee] presiding.
STATEMENT OF HON. KEN CALVERT, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. Calvert. Hearing will come to order. The Subcommittee
on Water and Power will come to order. The Committee is meeting
today to hear testimony on two bills, H.R. 3561, to establish
the Twenty-First Century Water Policy Commission; and H.R.
4638, to reauthorize the Mni Wiconi Rural Water Supply Project.
Mr. Calvert. Under rule 4(b) of the Committee rules, any
oral opening statements at hearings are limited to the Chairman
and the Ranking Minority Member. Since he is not here, I will
just take that for the record.
Mr. Calvert. If other members have statements, they can be
included in the hearing record under unanimous consent.
Mr. Calvert. Today we conduct the hearing on two seemingly
unrelated issues. They are different in scale and focus, but
are similar because they both look at the way we manage our
limited water resources to ensure an adequate supply of safe
drinking water. The first bill we look at authorizes a
commission to broadly examine our water resources in order to
establish a national water resources policy for our future.
There are many Federal, State and local agencies that have
responsibility for managing water resources. While there is
some overlap of agency responsibility, some argue that there is
little coordination among them. At the same time, competing
demands for water among various agriculture, urban,
recreational and environmental interests have led to many
challenges over the last few decades. H.R. 3561 attempts to
reduce those challenges by establishing the Twenty-First
Century Water Policy Commission in order to study all aspects
of water management on the Federal, State, local and private
levels. The Commission would also develop recommendations for a
comprehensive water policy to ensure an adequate water supply
of fresh water for U.S. Citizens over the next 50 years.
The second bill looks to complete a water project to serve
a vast area of the Midwest that currently lacks drinkable
water. While most of us take running water in our homes for
granted, there are many areas in the rural portions of the
United States who do not even have access to indoor plumbing or
water supplies that meet safe drinking water standards. H.R.
4638 reauthorizes the Mni Wiconi Rural Water Supply Project by
extending the date for the completion of the project to 2008
and increasing the authorization ceiling by $58.8 million. This
proposed legislation would provide authority for the completion
of this project, and I look forward to hearing from our
witnesses.
And before I get into that, I know that Mr. Linder has
shown great interest in this country about the inadequate water
supply that we do have and the coming crisis that we have in
many areas of the country. Not just California and the West
suffers from water difficulties. We were just in Texas a few
weeks ago on the Rio Grande where we have an ongoing dispute
right now, which hopefully is getting positively resolved. We
have a meeting this afternoon on the Rio Grande in south Texas,
and certainly issues in Mr. Linder's part of the country, in
Florida, Georgia and other parts of the country, where again
water adequacy is being challenged.
So I compliment the gentleman for his hard work in this,
and I think we move into this, and obviously there are some
concerns about--before we get to your opening statement about
the so-called Federalization of water rights. And I know that
is not your intent, and you may want to talk about that. We
certainly recognize State water rights, and we want to protect
them, but at the same time have a better coordination of water
and planning throughout this country.
I think it would be great, by the way, since no one here is
to speak--hi, how are you--is that we should name this the
Linder Commission. I haven't asked John about this, but I think
that would be appropriate since you have shown such great
interest in this.
[The prepared statement of Mr. Calvert follows:]
Statement of The Honorable Ken Calvert, Chairman, Subcommittee on Water
and Power
Today we will conduct a hearing on two seemingly unrelated issues
that are different in scale and focus, but are similar because they
both look at the way we manage our limited water resources to ensure an
adequate supply of safe drinking water. The first bill we will look at
authorizes a Commission to broadly examine our water resources in order
to establish a national water resources policy for our future.
There are many Federal, state and local agencies that have
responsibilities for managing water resources. While there is some
overlap of agency responsibilities, some argue that there is little
coordination among them. At the same time competing demands for water
among various agricultural, urban, recreational and environmental
interests have led to many challenges over the last few decades.
H.R. 3561, attempts to reduce those challenges by establishing the
``21st Century Water Policy Commission'' in order to study all aspects
of water management on the Federal, state, local, and private levels.
The Commission would also develop recommendations for a comprehensive
water policy to ensure an adequate supply of fresh water for U.S.
citizens over the next 50 years.
The second bill looks to complete a water project to serve a vast
area in the Midwest that currently lacks drinkable water. While most of
us take running water in our homes for granted, there are many areas in
rural portions of the United States that do not even have access to
indoor plumbing or water supplies that meet safe drinking water
standards.
H.R. 4638, reauthorizes the Mni Wiconi Rural Water Supply Project
by extending the date for the completion of the project to 2008, and
increasing the Authorization ceiling by $58.8 million. This proposed
legislation will provide the authority for the completion of this
project.
I look forward to hearing from the witnesses.
______
Mr. Calvert. With that I would be more than happy to
recognize the gentleman for his statement.
STATEMENT OF HON. JOHN LINDER, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF GEORGIA
Mr. Linder. Thank you, Mr. Chairman. I want to thank you
and the members of this Subcommittee on Water and Power for
holding this hearing on H.R. 3561, the Twenty-First Century
Water Policy Commission Establishment Act. I appreciate your
giving me the opportunity to present my ideas and objectives
for this bill as well as giving me the opportunity to receive
constructive feedback on this important legislation.
During the past few months, I have read story after story
in our Nation's papers about fresh water crises. Nearly half of
the United States is currently experiencing drought conditions.
Rivers and wells are drying up, aquifers are challenged by
saltwater intrusion, and fish, wildlife and crops are
threatened. These droughts are temporary problems, but their
impacts signal the state of things to come as population growth
and development challenge our Nation's fresh water resources in
the 21st century. Our water resources will be utilized to their
fullest capacity in the coming decades, and current water
supplies will prove inadequate. It is important that we develop
a strategy to meet future water demand now before the full-
blown water shortage hits.
Over the past couple of decades I have given much thought
to the impending shortage of fresh water in the Nation. As we
enter the 21st century, I am convinced we must act now to
prepare for the coming water crisis. I have introduced H.R.
3561 to take the first small step toward meeting 21st century
water challenges. I realize that getting fully prepared for
future water challenges will take years and possibly decades.
We need to begin this process today by taking the small step of
gathering together water experts and policymakers to initiate a
dialog on how to address this problem.
My Twenty-First Century Water Policy Commission bill would
create a commission to evaluate future water demand and supply,
to consider innovative water research and technologies, and to
recommend possible solutions to future water shortages. The
last commission to consider water resources with such a
comprehensive approach completed its work in 1973. That
commission contributed much to our Nation's water policies. The
United States and its resources, however, have changed
dramatically over the past three decades. It is certainly time
to reassess America's water.
H.R. 3561 is designed to bring our Nation's premier water
experts and managers together to the discussion table to share
their ideas for the future. According to Harvard Professor
Peter Rogers, in the early 1990's there were 90,000 Federal
employees working to solve water problems, with three times as
many individuals working on water at the State and local level.
Add to that the 50,000 private sector employees also working on
water issues, and you can begin to develop a sense for how
unwieldy this issue has become. Unfortunately these hundreds of
thousands of water experts rarely communicate among themselves
or coordinate their efforts. As we work to plan and prepare for
future demands placed on our fresh water resources, it will be
critical that we share information, coordinate efforts and
reduce duplication and conflict among those agencies.
I believe that the first step toward meeting these goals is
getting everyone together at the discussion table. I understand
that we could spend years arguing over the appropriate size and
shape of the table even before we begin the debate of who
deserves a seat at the table, but remember that the clock is
ticking. The longer it takes us to begin to make preparations
for the future, the less prepared we will be when it comes. And
it is coming.
In John Steinbeck's novel East of Eden, the narrator
observes, ``And it never failed that during the dry years
people forget about the rich years, and during the wet years
they lost all memory of the dry years. It was always that
way.'' I have been told over and over again that the United
States only reevaluates its water policies when a crisis hits.
I know that my efforts to begin preparations for the future
will be met with resistance by many who fear change, but
resistance to planning for future water shortages is a recipe
for disaster. One day you may turn your tap and discover that
no water emerges. We must begin now to advance the science and
knowledge that will be necessary to deal with 21st century
water challenges.
I in no way believe the Federal Government's authority over
water should be increased at the States' expense. I believe
water is a local issue. I respect the States' traditional
primacy over water management and allocation. However, the
Federal Government does have an obligation to serve as a
resource for the States by supporting research and providing a
forum through which research may be shared by helping to
finance necessary infrastructure construction and improvement,
and by reducing red tape and better coordinating Federal water
agencies and programs.
H.R. 3561 was drafted to serve as a basic model, which I
hope to improve upon with your suggestions. Mr. Chairman,
members of the Subcommittee, I come before you today to ask for
your input on how can we best shape this commission. This is
the first step toward solving our Nation's impending water
problems. I hope you will support my objective of ensuring an
adequate and dependable supply of fresh water for all Americans
throughout the 21st century, and I hope you will share your
insights on the best approach to this challenge so we may avoid
the pitfalls of past commissions.
We simply cannot afford to maintain the status quo with
regard to our Nation's fresh water resources. If we fail to
prepare for impending water shortages, we may be faced with a
crisis of astronomical proportions in the coming decades.
Providing all Americans with fresh water is a matter of life
and death for the future of the United States. The time is now.
Thank you, Mr. Chairman.
Mr. Calvert. I thank the gentleman.
[The prepared statement of Mr. Linder follows:]
Statement of The Honorable John Linder, a Representative in Congress
from the State of Georgia
I wish to thank Chairman Calvert, Ranking Member Smith, and the
other members of the Subcommittee on Water and Power for holding
today's hearing on H.R. 3561, the 21st Century Water Policy Commission
Establishment Act.'' I appreciate your giving me the opportunity to
present my ideas and objectives for this bill, as well as giving me the
opportunity to receive constructive feedback on this important
legislation.
During the past few months, I have read story after story in our
nation's newspapers about fresh water crises. Nearly half of the United
States is currently experiencing drought conditions. Rivers and wells
are drying up, aquifers are challenged by saltwater intrusion, and
fish, wildlife, and crops are threatened. While these droughts are
temporary problems, their impacts signal the state of things to come as
population growth and development challenge our nation's fresh water
resources in the 21st century. Our water resources will be utilized to
their fullest capacity in the coming decades, and current water
supplies will prove inadequate. It is important that we develop a
strategy to meet future water demand now, before the full-blown water
shortage hits.
Over the past two decades, I have given much thought to the
impending shortage of fresh water in our nation. As we enter the 21st
century, I am convinced that we must act now to prepare for the coming
water crisis. I have introduced H.R. 3561 to take the first small step
toward meeting 21st century water challenges. I realize that getting
fully prepared for future water challenges will take years, possibly
decades. We need to begin this process today by taking the small step
of gathering together water experts and policy makers to initiate a
dialogue on how to address this problem.
My 21st Century Water Policy Commission bill would create a
commission to evaluate future water demand and supply, to consider
innovative water research and technologies, and to recommend possible
solutions to future water shortages. The last commission to consider
water resources with such a comprehensive approach completed its work
in 1973. That commission contributed much to our nation's water
policies. The United States and its resources, however, have changed
dramatically over the past three decades. It is certainly time to
reassess America's water.
H.R. 3561 is designed to bring our nation's premier water experts
and managers together to the discussion table to share their ideas for
the future. According to Harvard Professor Peter Rogers, in the early
1990s there were 90,000 Federal employees working to solve water
problems, with three times as many individuals working on water at the
state and local level. Add to that the 50,000 private-sector employees
also working on water issues, and you can begin to develop a sense for
how unwieldy this issue has become. Unfortunately, these hundreds of
thousands of water experts rarely communicate among themselves or
coordinate their efforts. As we work to plan and prepare for future
demands placed on our fresh water resources, it will be critical that
we share information, coordinate efforts, and reduce duplication and
conflict among those agencies. I believe the first step toward meeting
these goals is getting everyone together at the discussion table.
I understand that we could spend years arguing over the appropriate
size and shape of the table, even before we begin the debate of who
deserves a seat at that table. But remember that the clock is ticking.
The longer it takes us to begin to make preparations for the future,
the less prepared we will be when crisis comes--and it is coming.
In John Steinbeck's novel, East of Eden, the narrator observes,
``And it never failed that during the dry years the people forgot about
the rich years, and during the wet years they lost all memory of the
dry years. It was always that way.'' I have been told over and over
again that the United States only reevaluates its water policies when a
crisis hits. I know that my efforts to begin preparations for the
future will be met with resistance by many who fear change. But
resistance to planning for future water shortages is a recipe for
disaster. One day, you may turn your tap and discover that no water
emerges.
We must begin now to advance the science and knowledge that will be
necessary to deal with 21st century water challenges. I in no way
believe the Federal Government's authority over water should be
increased at the states' expense. I respect the states' traditional
primacy over water management and allocation. However, the Federal
Government does have an obligation to serve as a resource for the
states, by supporting research and providing a forum through which
research may be shared, by helping to finance necessary infrastructure
construction and improvement, and by reducing red tape and better
coordinating Federal water agencies and programs.
H.R. 3561 was drafted to serve as a basic model, which I hope to
improve upon with your suggestions. Mr. Chairman, members of the
Subcommittee, I come before you today to ask for your input on how we
can best shape this commission--this first step toward solving our
nation's impending water problems. I hope that you will support my
objective of ensuring an adequate and dependable supply of fresh water
for all Americans throughout the 21st century, and I hope you will
share your insights on the best approach to this challenge so we may
avoid the pitfalls of past commissions.
We simply cannot afford to maintain the status quo with regard to
our nation's fresh water resources. If we fail to prepare for impending
water shortages, we may be faced with a crisis of astronomical
proportions in the coming decades. Providing all Americans with fresh
water is a matter of life and death for the future of the United
States. The time for action is now.
______
Meeting America's Fresh Water Needs
representative john linder
Many states across the nation currently face water crises. Some of
the most severe droughts in recorded history have struck the East Coast
and some western states, leaving water levels intolerably low in lakes
and drying up rivers. Furthermore, overzealous groundwater pumping from
fresh water aquifers across the nation is leaving aquifers dry or
threatened by saltwater intrusion. Meanwhile, projected population
growth for the United States indicates that water demand will continue
to increase in coming years. It is critical that states across the
nation find ways to ``create'' more fresh water to meet growing needs.
I have introduced a bill in the U.S. House of Representatives to
help all states to prepare for 21st century demands on our nation's
finite water resources. My bill, H.R. 3561, would create a commission
charged with researching and recommending to Congress a comprehensive
water policy to meet 21st century water needs. The ``21st Century Water
Policy Commission'' would include representatives of Federal, state,
and local water management agencies, as well as private sector and
environmental organizations that deal with water problems. This group
would be responsible for recommending measures to ensure an adequate
supply of fresh water for all Americans over the next 50 years.
I believe the Federal Government can help states to prepare for
pending water crises by funding research into new technologies, such as
aquifer recharge, desalination, efficient irrigation techniques,
wastewater reuse, and wetlands creation. Further, the Federal
Government can provide a forum through which water research can be
transmitted from one state to another. As such, the 21st Century Water
Policy Commission would be charged with evaluating all available
technologies for increasing water supplies efficiently, while
safeguarding the environment, in order to promote research into new
technologies.
In addition, if promising projects or technologies are presented,
the Federal Government can provide the initial funding needed for
communities to construct necessary facilities. Another goal of the 21st
Century Water Policy Commission would be to evaluate financing options,
such as user-fees, for such public works projects.
Finally, the Federal Government can help communities to expand
their water resources by reducing red tape and better coordinating
Federal water agencies and programs. Currently, local officials
desiring to create new water programs face Federal bureaucratic
challenges, Federal regulatory boundaries, and red tape at every turn.
The 21st Century Water Policy Commission would be charged with
developing recommendations for eliminating duplication and conflict
among governmental agencies.
Through all of these responsibilities, H.R. 3561 takes the first
step toward helping all Americans to face future water emergencies
proactively. States across the nation will meet with water crises in
the coming years, and they will all have to find ways to use water more
efficiently, capture more water, and reuse water multiple times before
it flows out to sea. My 21st Century Water Policy Commission bill
offers a ray of hope for all states challenged by their finite water
resources.
______
Mr. Calvert. Little bit of business to put away, and I
would like to ask the gentleman from Georgia a couple of
questions. First, Mr. Thune will have an opening statement
shortly, and after that statement I would like to ask unanimous
consent that Congressman Linder and Congressman Thune be
permitted to sit on the dais following their statements for as
long as they wish to participate with the witnesses that we
will be bringing forward.
Hearing none, so ordered.
One quick question, and if anyone else would like to ask a
question.
Mr. Linder, first I would like to compliment you on your
opening statement. Vision is an important thing, though we tend
to forget about it around here. Sometimes we get involved in
the short-term crises that we have in our districts and in our
States, and certainly momentary problems we have in this
country. But water is something that we are seeing less of and
more problems arising because of that limited commodity. And I
certainly think that--recognizing, as you have in your
statement--that State rights are extremely important, and we
have no intention of violating that, and working with agencies
both on the Federal side and the State side and local agencies
to come up with a comprehensive policy on how we are going to
meet the demands of the 21st century and beyond.
So I guess you could reiterate for the record that, again,
you have no intention of violating State water rights.
Mr. Linder. This is uniquely a State and local issue, but
the Federal Government can provide some resources and then,
frankly, some money down the road if there are large regional
projects that need to be funded and paid for, just like we did
the Eisenhower highway system with user fees collected through
the Federal excise taxes on gasoline. And I would pull this
bill off the table tomorrow if it were somehow drawn into a
Federal controllable water system.
I tell people that inter-basin transfers are the kinds of
things over which wars are fought. We want to find more water
for every basin and leave the control of that basin to the
local community, but we need more storage; above-ground storage
perhaps, below-ground storage perhaps, aquifers perhaps.
Georgia's most valuable natural resource is an aquifer that had
salt water creeping into it from the Gulf. We need to recharge
those aquifers. All kinds of communities are trying different
kinds of things, and we need to bring that technology and
science together at the same table so we can compare what works
and what doesn't work. We may need to provide some
infrastructure support for the large urban areas that are
losing upwards of 20 to 25 percent of their water through leaks
in the current old infrastructure.
I don't know what the answer is going to be. I have a lot
of questions and very few answers. So my hope is we can get
people around the same discussion table and start talking about
the possibilities of using the knowledge that some people have
developed in other parts of the country.
Mr. Calvert. I compliment the gentleman and look forward to
making sure that we put together the Linder Commission in the
way that people will be looking forward to the way that it is
fashioned.
Mr. Thune, you may begin your statement.
STATEMENT OF HON. JOHN R. THUNE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF SOUTH DAKOTA
Mr. Thune. Thank you, Mr. Chairman, and I want to--and
members of the Committee. I want to thank you for holding this
hearing to review H.R. 4638, which is a bill that will extend
the authorization of the Mni Wiconi Rural Water Supply Project.
I introduced this bill on May 1 of this year because it is
critical to finishing the project, which is over 50 percent
complete. H.R. 4638 will increase the authorization ceiling of
the project by $58.8 million and extend the sunset date of the
project from 2003 to 2008. This project will bring healthy,
safe drinking water and the potential for greater prosperity to
over 50,000 South Dakotans, most of whom live in some of the
most economically depressed communities in America.
The Mni Wiconi Rural Water Supply Project is made up of
four separate rural water supply systems: Oglala, Rosebud,
Lower Brule and West River/Lyman-Jones. Each of the four
project sponsors are represented in the audience and at the
witness table today. Their attendance today illustrates the
unified support this project has from the Native American and
nontribal communities throughout the Mni Wiconi project area.
The three tribal sponsors have chosen Frank Means to
testify on their behalf. Frank is a councilman for the Oglala
Sioux Tribe and chairs the tribe's economic and business
development committee. Mike Kurle will be testifying on behalf
of the nontribal sponsor. Mike is manager of the West River/
Lyman-Jones rural water system. I would also like to recognize
Jim McCauley, director of the Lower Brule Rural Water Supply
System; Cyatt Hut, director of the Rosebud's Sioux Rural Water
System; Paul Little, Oglala Sioux Tribe; and Mike Watson the
lead project engineer. Blaine Brewer, who is acting director of
the Oglala Sioux Rural Water Supply System was unable to make
it today due to a family emergency.
Mr. Chairman and members of the Committee, Mni Wiconi
translates into ``water is life.'' the poor quality of the
drinking water in many communities throughout the project area
has been the cause of waterborne illnesses for some time. The
need for this project is simple, healthy, safe water.
Mr. Chairman, I appreciate your willingness to consider
H.R. 4638 and the opportunity today to introduce to you this
critically important project in South Dakota and the people
that keep it moving forward every day. Thank you.
Mr. Calvert. I thank the gentleman.
[The prepared statement of Mr. Thune follows:]
Statement of The Honorable John R. Thune, a Representative in Congress
from the State of South Dakota
Mr. Chairman, I want to thank you for holding this hearing to
review H.R. 4638, a bill that will extend authorization of the Mni
Wiconi Rural Water Supply Project.
I introduced this bill on May 1, 2002, because it is critical to
finishing the project, which is over 50 percent complete. H.R. 4638
will increase the authorization ceiling of the project by $58.8 million
and extend the sunset date of the project from 2003 to 2008.
This project will bring healthy, safe drinking water and the
potential for greater prosperity to over 50,000 South Dakotans, many of
whom live in some of the most economically depressed communities in
America.
The Mni Wiconi Rural Water Supply Project is made up of four
separate rural water supply systems: Oglala, Rosebud, Lower Brule, and
West River/Lyman-Jones.
Each of the four project sponsors are represented in the audience
and at the witness table today. Their attendance today illustrates the
unified support this project has from the Native American and non-
tribal communities throughout the Mni Wiconi project area.
The three tribal sponsors have chosen Frank Means to testify on
their behalf. Frank is a Councilman for the Oglala Sioux Tribe and
chairs the tribe's Economic and Business Development Committee.
Mike Kurle will be testifying on behalf of the non-tribal sponsor.
Mike is manager of the West River/Lyman-Jones Rural Water System.
I would also like to recognize Jim McCauley, Director of the Lower
Brule Rural Water Supply System; Syed Huq, Director of the Rosebud
Sioux Rural Water System; Paul Little, Oglala Sioux Tribe; and Mike
Watson, the lead project engineer.
Duane Brewer, Acting Director of the Oglala Sioux Rural Water
Supply System, was unable to make it today due to a family emergency.
Mr. Chairman, Mni Wiconi translates into ``Water is Life.'' The
poor quality of the drinking water in many communities throughout the
project area has been the cause of water borne illnesses for some time.
The need for this project is simple--healthy, safe water.
Mr. Chairman, I appreciate your willingness to consider H.R. 4638
and the opportunity to introduce you to this critically important
project in South Dakota and the people that keep it moving forward
every day.
______
Mr. Calvert. We ask you both to join us here on the dais,
and ask the Members here if they have any questions.
Ms. Solis. Thank you, Mr. Chairman. Thank you for having
this hearing and also the timeliness of the presentation by
Congressman Linder.
Thank you for coming and expressing your concerns on
providing a better management of our water supply. I am very
concerned about this issue as well as and been working with our
chairman on the CALFED project in California, and because of
the drought and other issues, storage, that we are faced with,
obviously growing populations, that is somewhat my perspective
from southern California.
I am concerned about the Commission, though, in terms of
some of the items that I look at in terms of how user fees
would be applied to low-income communities. It would be a
hardship, I think, in some areas, and not just in southern
California, but in other parts of the country where you have
low-income populations or rural areas that can't come up with
the fees to pay for the construction of these projects. So that
would be one of my concerns that perhaps the Commission could
take up to make sure that that is represented in their goals
and in the structure there.
And the other would be the differences between private and
public providers in terms of conservation and how that is
conducted. And if, in fact, public entities are not making a
profit because they are conserving water and private providers
make a profit because they sell water, then how do we make that
nexus come together so we are working on the same goals so that
we do have a fair and equitable process in place? Those would
be my concerns.
Mr. Linder. First of all, we pay user fees for water now,
in every jurisdiction I am familiar with. I get a water bill in
my home in Georgia on a monthly or bimonthly basis. The idea
behind the user fee language is that if the Federal Government
helps a region with a large infrastructure project, storage
project or fixing pipes, it would bond that money, I assume,
over a period of time and then pay it back with the fees for
the people who are using water.
But I am perfectly willing for this Commission to work
through those issues you raised. As I said, I want to start the
first small step on the way to get everyone at the same
discussion table. We looked over the last several years how the
interstate highway system was built and how that huge
engineering project was pulled off, and it is a great, great
asset to this country today. We discovered that the Eisenhower
Interstate Highway System was actually started in 1938 by FDR
with a commission to bring together some experts to consider
how to move people around this growing country. And it was
added to by Truman, and Eisenhower got the credit because he
decided that the way to fund it was to pass an excise tax on
gasoline so that people who used most of the roads would pay
for most of the costs. That is the whole idea behind the user
fee.
But I am perfectly willing to let this Committee shape this
Commission or help shape this Commission in a way that you
think would be more responsive and let the Commission deal with
these questions. I envision a commission that may take longer
than a year. We need to talk about that. But I envision a
commission that ultimately comes up with some recommendations
and then moves on to a bigger committee, and bringing all the
engineering and hydrological skills in before we start any
project.
The very first step we can take is toward conservation. It
is a very inexpensive way to do it, and we can let the
governments and the private sectors be treated alike on this.
But I think the Commission should take all the questions that
you raised to their table and deal with them.
Ms. Solis. Just one other comment. I understand that there
was a water policy commission that was set up in the past in
1998, but few of those recommendations were ever followed up
on. How would this be different from that?
Mr. Linder. That is our job. If they make recommendations,
and we refuse to follow those recommendations, we have fallen
down. A lot of recommendations were made by the Committee that
was started in 1965 and ended in 1982. Many of those
recommendations were not followed, but some were, and they made
great improvements in water policy at the time. It is their job
to get the answers and our job to consider and implement those
answers.
Ms. Solis. Look forward to seeing the results of that.
Mr. Calvert. Gentleman from Nebraska?
Mr. Osborne. No questions.
Mr. Calvert. Our second panel will now be introduced: John
W. Keys, the Commissioner, Bureau of Reclamation, U.S.
Department of Interior. Good afternoon, Commissioner Keys. You
may begin your testimony whenever you like.
STATEMENT OF JOHN W. KEYS, COMMISSIONER, BUREAU OF RECLAMATION,
U.S. DEPARTMENT OF THE INTERIOR
Mr. Keys. Mr. Chairman, thank you very much. I am John
Keys, Commissioner of the Bureau of Reclamation, and I am
certainly pleased to be here to present the Department of the
Interior's views on H.R. 3561, legislation that would establish
the Twenty-First Century Water Policy Commission. I would ask
that my full written statement be included in the record.
Mr. Calvert. Without objection, so ordered.
Mr. Keys. Mr. Chairman, the Department supports efforts as
in H.R. 3561 to plan for our Nation's future water needs. With
the continued drought that we are experiencing all over the
country this year, we see that there is little doubt in the
challenge for the 21st century in us delivering good water to
all of our people. Reclamation and other Interior agencies
bring both experience and expertise to support such an effort.
Mr. Chairman, for the past century, Reclamation has played
an integral role in the development of Federal water management
policy. Congress authorized early Reclamation water projects to
help settle the arid West. Over the course of this 100 years of
service, Reclamation has become the largest water resources
management agency in the West, delivering 30 million acrefeet
of water annually from 348 reservoirs. Our projects supply
water to more than 31 million people and about one-third of the
irrigated agriculture in 17 Western States. The Bureau's 58
power plants produce more than 42 billion kilowatt hours of
electricity every year, making it the second largest hydropower
utility in the United States. We have a presence in every major
river basin in the West, and we work with State water rights,
interstate compacts, judicial decrees, international treaties,
interstate and interbasin projects, and the water service that
we provide complies with all Federal water rules and
regulations, the National Environmental Policy Act, the Clean
Water Act, Endangered Species Act and others that are there.
Mr. Chairman, we welcome the opportunity to work with the
Twenty-First Century Water Policy Commission. Secretary Norton
and I pledge our support to help make it successful. Mr.
Chairman, one suggestion for the Commission. Interior and the
Bureau of Reclamation work in an environment of cooperation
with State, tribal and local governments. H.R. 3561, with
respect to water in the 17 Western States, should formally
recognize the primacy of State law in the allocation of water.
Also, given that primacy of the States in western water law and
management, we feel that membership of any commission under
H.R. 3651 should include several additional representatives
from the States.
Mr. Chairman, that concludes my statement on 3651. If you
would like, I can go right into the next one, or would you like
me to answer questions now?
Mr. Calvert. Go ahead to the next bill.
Mr. Keys. Mr. Chairman, the next part of the testimony
deals with H.R. 4638, reauthorization of the Mni Wiconi Rural
Water Supply Project. Again, I would ask that the full text of
my written statement be included in the record.
Mr. Calvert. Without objection.
Mr. Keys. This project serves the Pine Ridge/Rosebud and
Lower Brule Indian reservations and seven counties in
southwestern South Dakota. H.R. 4638 would increase the
authorization ceiling for the project and extend by 5 years the
time period for which appropriations are authorized. Since the
project cannot be completed without these changes, the
Department of the Interior supports enactment of H.R. 4638.
The Mni Wiconi Rural Water Project was authorized in 1988
and included the Oglala Sioux Rural Water System, the Oglala
Sioux core system, the West River supply system and the Lyman-
Jones Rural Water System. The Mni Wiconi Project was expanded
in 1994 to include the Rosebud Sioux and Lower Brule Sioux
Rural Water Systems. The authorizations intended construction
to be completed within 10 years, and appropriations were
authorized through Fiscal Year 2003; however, annual
appropriations have been insufficient to complete construction
within the timeframe originally laid out in the final
engineering report.
H.R. 4638 extends to the year 2008 the authorization for
appropriations to complete the project. The bill also increases
the authorized ceiling by $58.8 million, from $345,997,000 to
$404,797,000, to provide the necessary appropriations.
Mr. Chairman, the administration is firmly committed to
completing the Mni Wiconi Rural Water Supply Project. We
strongly support H.R. 4638.
That concludes my oral statement on that one, and I would
certainly stand to questions on either one of the bills.
Mr. Calvert. Thank you, Commissioner.
[The prepared statement of Mr. Keys on H.R. 3561 follows:]
Statement of John W. Keys, III, Commissioner, Bureau of Reclamation,
U.S. Department of the Interior, on H.R. 3561
My name is John Keys and I am Commissioner of the U.S. Bureau of
Reclamation (Reclamation). I am pleased to provide the views of the
Department of the Interior on H.R. 3561. This bill would establish the
Twenty-First Century Water Policy Commission to study water management
throughout the nation and develop recommendations for a comprehensive
water policy. The Department supports efforts, as in H.R. 3561, to plan
for our nation's future water needs. The American people would benefit
from efforts to bring together qualified people to look at what
information we have, analyze trends, and find out what's on the cutting
edge of water use, reuse, and all aspects of water management.
Reclamation and other Interior agencies bring both experience and
expertise to support such an effort.
A tremendous amount of research on water needs and management
already has been done. In addition, numerous Federal, state, tribal,
local and private organizations are trying to determine how best to
meet their future water needs. At the Department of the Interior,
Secretary Norton is currently in the process of analyzing how to meet
water needs in the western states over the next 25 years.
What we need most is to have qualified people--including
representatives of academia; science and technology; legal,
environmental, and community organizations; state, tribal, Federal, and
local governments--compile and analyze existing water use management
data, examine population trends, identify existing technologies as well
as research & development on advances in water-related technologies.
As the Subcommittee considers H.R. 3561, we encourage you to keep
in mind the responsibilities that Congress (and the judiciary, in some
cases) has placed on the Department of the Interior. The Secretary of
the Interior, for example, is the Water Master for the Colorado River.
For the past century, Reclamation has played an integral role in the
development of Federal water management policy.
Congress authorized early Reclamation water projects to help settle
the arid lands of the American west, by providing water for irrigation.
Over the course of this century of service, Reclamation has become the
largest water resources management agency in the west, delivering 30
million acre-feet annually from 348 reservoirs. Reclamation projects
supply water to more than 31 million people and one-third of irrigated
agriculture in the western states. The Bureau's 58 power plants produce
more than 42 billion kilowatt hours per year, making Reclamation the
2nd largest hydropower utility in the United States. Reclamation has a
presence in every major river basin in the west, and is responsible for
implementing, as delegated by the Secretary of the Interior, interstate
compacts and judicial decrees, international treaties, and interstate
and interbasin projects.
Reclamation takes great pride in providing these water-related
services to the public. The Bureau is constantly working, often in
partnership with states and other non-Federal entities, to improve
water management in order to meet ever-increasing demands for water
from Reclamation projects. Reclamation works in an environment of
cooperation with state, tribal, and local governments and other Federal
agencies. Given the deference to state law in the allocation of water,
membership on any commission should include several additional
representatives from the states. Also, tribal representation should be
assured.
As a long-time leader in water management and delivery in the West,
Reclamation works with its contractors and customers, state, local, and
tribal governments, as well as other Federal agencies, to assess and
meet future water needs; and with municipal and rural domestic water
consumers to deliver clean drinking water. We are partnering with
qualified entities on finding innovative and cost-effective ways to
recover otherwise non-potable water in water-short areas of our
country. Reclamation is committed to delivering water under our
contracts, meeting applicable environmental laws, and abiding by state
water laws in the process.
Thank you for this opportunity to comment. I will be glad to answer
any questions.
______
[The prepared statement of Mr. Keys on H.R. 4638 follows:]
Statement of John W. Keys, III, Commissioner, Bureau of Reclamation,
U.S. Department of the Interior, on H.R. 4638
I am John Keys, Commissioner of the Bureau of Reclamation
(Reclamation). I am pleased to present the views of the Department of
the Interior on H.R. 4638, concerning authorization of the Mni Wiconi
Rural Water Supply Project. This Project serves the Pine Ridge,
Rosebud, and Lower Brule Indian Reservations and seven counties in
southwestern South Dakota. H.R. 4638 would increase the authorization
ceiling for the Project and extend by five (5) years the time period
for which appropriations are authorized. Since the Project cannot be
completed unless these changes are made, the Department supports
enactment of H.R. 4638.
The Mni Wiconi Rural Water Supply Project was authorized in 1988
(P.L.100-516) and included the Oglala Sioux Rural Water System, the
Oglala Sioux Core System, the West River Rural Water System, and the
Lyman-Jones Rural Water System. The Mni Wiconi Project was expanded in
1994 (P.L.103-434, Title VIII) to include the Rosebud Sioux and Lower
Brule Sioux Rural Water Systems.
The authorizations intended construction to be completed within 10
years, and appropriations were authorized through 2003. However, annual
appropriations have been insufficient to complete construction on the
Project within the time-frame originally planned in the Final
Engineering Report.
H.R. 4638 extends to the year 2008 the authorization for
appropriations to complete the project. The bill also increases the
authorized ceiling by $58.8 million to cover expenses that were not
identified until after the sponsors (the Oglala, Rosebud and Lower
Brule Sioux Tribes and West River/Lyman-Jones Rural Water Systems)
released their Final Engineering Report, plus estimated administrative
costs related to the extension from 2003 to 2008.
Mr. Chairman, the Administration is firmly committed to completing
the Mni Wiconi Rural Water Supply Project. If H.R. 4638 is not enacted,
the authority for appropriations will expire in 2003; Project
construction would be shut down and the full benefits of the Project
would not be realized. Only a portion of the Project population would
be served water. If the expiration date is extended without a
corresponding increase in the cost ceiling, the project would have to
be redesigned to determine which features could be constructed within
the available ceiling. This unfortunate prospect may be averted if H.R.
4638 is enacted, and I reiterate the Department's support for the bill.
This concludes my statement, and I would be glad to answer any
questions.
______
Mr. Calvert. Since you have been on the job, you have had a
number of crises that were put on your plate, and I compliment
you on how you have dealt with them, but nevertheless, many of
these are because of the lack of water and other demands, one
of which has, of course, caused a lot of problems up in Klamath
in southern Oregon and northern California. And we have other
crises that could occur. As you know, Lake Mead is at a very
low level. I understand it is at the lowest level that it has
been since 1970; is that correct?
Mr. Keys. That is correct.
Mr. Calvert. If we don't get some late-season rain, it is
very likely we could have some severe drought problems in the
States that are serviced by that area; is that also true?
Mr. Keys. Mr. Chairman, it does not depend on whether we
get rain this summer. We are already in that drought situation
in most of the Western States. The last count we had, there
were five of the States that have already declared emergencies
there or disaster emergencies, and we are working closely with
them on their drought program.
Mr. Calvert. It can only get worse from this point forward
more likely?
Mr. Keys. That is right.
Mr. Calvert. And in all of the States that we deal with on
this Committee and certainly in your job, you are having to
work with Federal law all the time, Clean Water Act, Clean
Drinking Water Act, and certainly the Endangered Species Act,
which is causing difficulties on how we manage our water
resources. So do you believe a commission such as the one that
Congressman Linder is proposing--I am sure Mr. Linder would be
happy to work with you and other folks to fashion this
Commission where people in States are not threatened--feel
threatened that their water rights are being threatened or
their operations are being threatened. They are also
recognizing that they are having to deal now with Federal law
in how they are managing their resources, and this could be
helpful to them in those challenges ahead. Do you think that is
correct?
Mr. Keys. Mr. Chairman, I certainly do. If you look at the
history of Reclamation, section 8 of the 1902 Reclamation Act
says that when we build a project, we have to obtain a State
water right, and then after the project is in construction, to
operate that project within that State water right. Over the
100 years that Reclamation has been there, we have been very
successful at doing that. Since NEPA was passed in 1969, since
the Clean Water Act was passed in the 1970's and the Endangered
Species Act in the 1980's, we think we have been successful in
walking that line of accommodating those regulations, at the
same time meeting our contracts.
The situation at Klamath this last year is the first time
that we have not been able to meet those contracts because of
one of those laws. We have worked very diligently on that since
last year, and we are delivering water this year in full
compliance with the Endangered Species Act. We think we have an
expertise and experience that we could bring to this Commission
that would show how to do some of those things and, we think,
do them productively.
Mr. Calvert. I am sure--in fact, if this goes forward, and
the Linder Commission moves ahead--and I am sure that your
Department is going to be a very integral part of that. And
certainly we have issues, as I discussed in my opening
statement, on the Rio Grande with foreign countries. We have a
difficult problem right now, a matter of meeting with the
Governor of the Chihuahua a little later this afternoon, I
believe, in trying to resolve that issue. So these are
difficult problems we have to deal with.
Ms. Solis, do you have any questions?
Ms. Solis. Actually I would just like to request unanimous
consent, Mr. Chair, to submit for the record some materials, a
final report of the Western Water Policy Review Advisory
Commission and report of the Water Policy Conference sponsored
by the University of Colorado School of Law.
Mr. Calvert. Without objection, so ordered.
[NOTE: The two reports referenced above have been retained
in the Committee's official files.]
Mr. Calvert. Mr. Linder?
Mr. Linder. I would just like to make the comment that I
would welcome your suggestions for people you think should be
represented on the commission. I would also welcome your coming
up with some language that you are comfortable in your
Department to make sure we protect State rights. I have talked
to a couple of folks about that, and I know it is an important
issue. I want to do whatever we can statutorily to protect the
States' water rights.
Mr. Keys. Mr. Chairman, Mr. Linder, we will certainly
provide to you with that language and some suggestions for the
membership there.
Mr. Linder. Thank you.
Mr. Calvert. Mr. Osborne, any questions?
Mr. Osborne. Nice to see you again, Mr. Keys. Thank you for
being here. You and I are regular conversers, I guess, and you
probably know what I am go to go talk about.
The Klamath Basin issue has been raised previously, and
obviously this was a matter of great deal of concern to
farmers, some embarrassment maybe to Interior. And I guess my
perception is that had we had more accurate data--if the
National Academy of Sciences study had been done before last
summer, might have headed off some of the issues where we
diverted a lot of water down the Klamath River, which didn't
help the coho salmon.
And as I told you many times, we have what I think is an
analogous situation in the Platte River in Nebraska where,
because of the Endangered Species Act, we now have instream
flow requirements that require 140,000 acrefeet of water down
the Platte River, much of which is not used for irrigation, and
we really don't think it complies--that the Endangered Species
Act is being accurately applied here. We have talked to Fish
and Wildlife, and we have put in an application for a study,
and so often what seems to happen is that Fish and Wildlife is
going to back up Fish and Wildlife.
And so we think it is absolutely critical that we have
something done here because the ultimate plan is for Fish and
Wildlife to control 416,000 acrefeet of water in the Platte
River, which is equivalent to all of the water used in the
State of Nebraska in regard to irrigation of the Platte River;
shuts down the whole valley and would be a huge economic
consequence.
And so, again, I would like to reiterate my concern in the
fact that I think all of us can save a great deal of heartache
and concern and an accurate application of the law if we get a
study done. And as you know, I have been pushing for it. So I
guess my mode of operation at the present time is keep talking
about it until someone does it. So I wanted to bring that up
again.
And as I see the whole situation in the West right now, we
have, as you have mentioned, a situation of widespread drought,
and the Endangered Species Act, as I see it right now, has huge
implications for that whole area. And no one argues with saving
endangered species. We just feel it needs to be accurately
applied, and we can't afford mistakes. So I am wondering if you
had any further thoughts or anything you would like to offer in
that regard?
Mr. Keys. Mr. Chairman, Mr. Osborne, certainly on the
Platte River, I have a personal involvement there with the
governance committee. And I would tell you that before any of
the plans or projects are implemented there, we will certainly
do an adequate review. We are looking at the review that you
have mentioned, and we are actually doing some peer review as
we go along. And as I said, certainly before we implement any
of those, there will be a thorough review.
On the Endangered Species Act and the rest of the West
right now, I think the problem that Mr. Calvert mentioned
before about the Rio Grande River or the Rio Grande--I make
that mistake quite often because that is a double--whatever. If
you look at the water conditions in the Rio Grande, they are
indicative of some of the problems we are trying to deal with.
The inflow to Elephant Butte Reservoir has been projected at 2
percent of normal, and those are disastrously historic lows
that we are trying to deal with. We are trying to make use of
the water in the basin. And certainly within the court orders
that have been done there, we are walking a thin line in making
water available and taking it from those contractors. And we
have had excellent cooperation from the city of Albuquerque,
from the State of New Mexico, and right now we have a plan that
will keep the fish alive and keep the water supply available in
the middle of the Rio Grande area there.
I will tell you that is a challenge, and that is not the
only place we have a challenge this year. On the Milk River in
Montana, we are at again historic lows there. There is some
water in Canada that is helping us with the bull trout. That is
the endangered species there. And certainly I could go on with
other examples. But so far we have been able to find water
supplies and make them available, and the question is how much
does it cost? And I will tell you it is very expensive, but we
are able to do that and still meet our contract requirements.
Mr. Osborne. I might just mention one other thing, and it
is not just administering flows, because as you know, we now
have a no new depletions rule in Nebraska, which means a rather
arbitrary limit of 3 miles from the river you can't build a new
well. If you do, you have to have an offset. You have to shut
down one to drill one. Nobody quite knows for sure what the
limits of that alluvium are.
So, you know, we are talking about instream flows, but we
are also talking about irrigation in general, and there is no
question that there is an interaction between surface water and
groundwater, but I think we need to have more accurate data
before we impose a restriction like we have right now.
Again, I want to reiterate the need for an independent
study, and I am glad to hear that you are thinking about and
that you are working on it, and we will continue to stay in
touch with you.
Mr. Keys. Mr. Chairman, Mr. Osborne, the one thing I would
add to the end there, we are working very closely with the
State of Nebraska. And certainly as they see a balance there
between development and protection of existing water supplies
and water rights, we will work very closely with them in doing
that.
Mr. Osborne. Thank you. I yield back.
Mr. Calvert. I would be happy to work with the gentleman to
get some authorization language and potentially some
appropriations necessary to perform such a study and see if we
can't--
Mr. Osborne. Thank you, Mr. Chairman, that is the nicest
thing I heard today.
Mr. Calvert. As the staff is listening intently, I know,
see if we can get that together. We certainly thank you, as
always, for coming here, Commissioner Keys. And, again, thank
you for the good job you are doing at the Department, and say
hi to all our friends over there, and look forward to seeing
you again soon.
Our next panel is Betsy A. Cody, Section Head, Natural
Resources and Earth Sciences, specialist in natural resources
policy, Congressional Research Service; Thomas F. Donnelly,
executive vice president, National Water Resources Association;
Robert S. Lynch, attorney at law, Phoenix, Arizona; and Henry
J. Vaux, associate vice president, University of California,
Division of Agriculture and Natural Resources.
Mr. Vaux, I understand you have to catch a plane soon, so
we are going to let you go first. So you are recognized. We
have a 5-minute rule. You will see little lights up there,
green, yellow and red. Green means that it is fine. Yellow
means you have 1 minute; and red, hopefully you are wrapping it
up.
Mr. Vaux.
STATEMENT OF HENRY J. VAUX, JR., ASSOCIATE VICE PRESIDENT,
UNIVERSITY OF CALIFORNIA, DIVISION OF AGRICULTURE AND NATURAL
RESOURCES
Mr. Vaux. Thank you, and thank you for taking me out of
turn to deal with my tight flight schedule.
Mr. Chairman, my name is Henry Vaux, and I am professor of
resource economics at the University of California, Riverside,
and for the past 10 years I have also served as associate vice
president for agriculture and natural resources of the
University of California system. I am also the immediate past
Chair of the Water Science and Technology Board of the National
Academy of Sciences.
At the outset I want to thank you for the opportunity to
testify here today on H.R. 3561. I also wish to thank you for
your leadership efforts to solve the very considerable water
problems in California and for your unfailing support of the
University of California at Riverside. It is very much
appreciated.
This bill, H.R. 3561, is directly responsive to the very
serious water problems which the United States faces in the
early decades of the 21st century. Population growth, economic
growth and the widespread recognition of the need to maintain
and enhance aquatic ecosystems will create very significant
challenges for the Nation's water managers, and these pressures
increase at a time when there are important transitions under
way in the water management arena, transitions which may allow
us to avail ourselves of significant new technology and
significant innovations in water management.
In the last 20 years, Federal water policies, particularly
those related to the management and development of water
resources, have fallen into disarray. To a large extent, the
responsibility for water management and development has been
left de facto to the States. Even the responsibility for
Federally supported monitoring programs has been reduced in
recent years, despite the fact that water and water quality
data will be essential for characterizing our water problems
and devising enlightened strategies for solving them.
For several reasons the fashioning of water management and
development strategies needed to solve our water problems are
not likely to be particularly effective if left exclusively to
the States. I have laid out the arguments that have to do with
the capacity of States to finance infrastructure and other
programs within the body of my written testimony. I do want to
indicate that in no way do I challenge the importance or
propriety of State water rights and State primacy in the
management of local water resources.
A Twenty-First Century Water Policy Commission of the sort
envisioned by H.R. 3561 is an obvious first step in
reestablishing comprehensive Federal water policies to help
guide us in addressing current and future water problems. The
objectives spelled out in section 32 represent an appropriate
basis upon which to develop a stronger set of Federal water
policies. Strong research and strong monitoring are the
prerequisites, but a comprehensive array of policies covering
all manner of water and water-related problems are also needed.
It has been almost 30 years since the last comprehensive
treatment of national water policy. Some of the recommendations
issued by the National Water Commission in 1973 are as timely
today as they were in 1973, but others are now outdated. I
think you would agree that the circumstances of today are far
different from the circumstances of 1973, and the water
problems of today are even more challenging and far more
complex than they were in 1973.
I was a member of the staff of the National Water
Commission which issued its report in 1973, and so I think I
know of what I speak. It is time for another commission to make
a thorough examination of our current situation and make
recommendations based upon science for an integrated set of
national water policies. The Twenty-First Century Water Policy
Commission as proposed in H.R. 3561 would be an appropriate
body to do this.
I have several suggestions about the specifics of the bill.
I do believe that a commission composed of outside
representatives who are people representing industry and others
who use water would likely be more effective than what is
proposed in the current draft of the bill. With all due
respect, a commission comprised predominantly of Federal agency
heads with all due respect is likely to be consumed with turf
battles. And finally, I think you will need more than a year to
address all of the objectives that are listed in this bill.
Mr. Chairman, I appreciate the opportunity to appear here
this afternoon. Thank you.
Mr. Calvert. I thank the gentleman.
[The prepared statement of Mr. Vaux follows:]
Statement of Henry Vaux, Jr., Professor of Resource Economics,
University of California, Riverside
Mr. Chairman, my name is Henry Vaux, Jr. and I am Professor of
Resource Economics at the University of California, Riverside. For the
past ten years I have also served as Associate Vice President,
Agriculture and Natural Resources, of the University of California
System. I am also immediate past chair of the Water Science and
Technology Board of the National Research Council. I must emphasize
that I testify here on my own behalf and my views should not be
interpreted as those of the University of California.
At the outset I want to thank you for the opportunity to testify
here today in support of H.R. 3561. This bill is directly responsive to
the very serious water problems which the United States faces in the
early decades of the 21st century. Population growth, economic growth
and the widespread recognition of the need to maintain and enhance
aquatic ecosystems will create very significant challenges for the
nation's water resource managers. These pressures increase at a time
when there are important transitions underway in the water management
arena. Dams are proposed for decommission and removal. Scientific
research hints at potential changes in the hydrologic cycle and changes
in hydrologic variability. While the changes that characterize this
transition might seem to make the problems of addressing the new water
realities more difficult, they may in fact present many new
opportunities in the form of scientific and technological breakthroughs
The fragmented Federal policies that governed water resources
research and management throughout most of the twentieth century will
probably be inadequate to foster the development of needed water-based
technologies and the development of more comprehensive knowledge of the
aquatic environment. The traditional strategy of constructing dams and
canals to capture and store water so that it can be used at times and
places where it is needed is no longer as attractive as it once was.
The most desirable damsites have already been developed. Those that
remain are difficult and costly to develop and often quite remote from
places of use. The public financing of large civil works for water
supply is also far more difficult not only because of the higher costs
but because of the competition for public funds which is now far more
intense than it was in the heyday of dams and canals. In addition, we
now understand that dams can do significant harm to riverine
environments and the costs of such damages are themselves quite large.
In the future, new surface water storage and conveyance systems are
likely to be only a minor part of the mix of strategies needed to
address the challenge of intensifying water scarcity. The management of
water demand, whether through pricing, education and/or technology,
will have to be a significant component of the response to intensifying
water scarcity. Water recycling and reuse, already a major means of
augmenting supply in the very arid portions of the county, will have to
become more widespread both to meet growing demands for water supply
and to ensure that receiving water quality is maintained and enhanced..
(two periods) Modern pollution control policies will be needed and
those policies should reflect the fact that waste sinks--land, air and
water--are interrelated and cannot be managed in isolation. And, there
will be a need for development of new water supply technology,
including desalinization technology as well as new methods and
techniques for managing ground water.
The problems of devising new and innovative means of augmenting
water supplies and managing water demands will be made more difficult
by the need to manage water resources in ways that provide adequate
water for non-consumptive uses. Non-consumptive uses, which are
sometimes referred to as instream uses, include environmental and
recreational uses, navigation, the generation of hydroelectric power
and flood control. Thus, for example, much remains to be done by way of
restoring the integrity of aquatic ecosystems so as to preserve and
maintain ecosystem services and environmental stability. Flood control
and flood management are continuing challenges as evidenced by the high
flows on the middle Mississippi last week. Energy generation and
transportation are likely to remain is (an) important water management
objectives. This means that ways will need to be found to achieve
appropriate allocative balances between water for consumptive use and
water for instream or nonconsumptive uses.
There is evidence that existing science is inadequate to address
the water problems of the 21st century and better science is going to
be required if these problems are to be effectively addressed. Thus,
for example, experience with modified flow regimes on the mainstream of
the Colorado River, new interest in restoring the historical flows of
the Missouri River and a major national commitment to restore the
Everglades all reveal the need for substantially more science. In the
summer of 2001 diversions were halted in the upper portion of the
Klamath River basin of Oregon and California in an effort to protect
several endangered species. The decision to halt diversions resulted in
significant economic damage to a number of water users. Yet, scientific
peer reviews ultimately revealed the scientific information upon which
the decision to halt diversions was based to be inadequate. Clearly,
better science is needed on which to base the water policies which will
be needed to guide in solving these types of problems in the future.
Recently the Water Science and Technology Board of the National
Research Council published a water resources research agenda for the
twenty-first century. That publication delineates the major scientific
research effort that will be needed to develop the knowledge necessary
to formulate a set of science based water policies for the United
States, The report emphasizes three main themes:
LThe challenge of solving the nation's water problems will
require a renewed national research commitment.
LWater quality and water quantity need to be thought of in
an integrated fashion.
LRelatively more attention needs to be given to innovative
ways of organizing our water institutions.
LEnvironmental issues will remain a very important part of
the water resources management agenda.
These and other recommendations form of (a) blueprint of the kind
of research needed to underpin an effective national water policy.
Although the research agenda is ambitious and will require significant
Federal investment it must be addressed if future national water
policies are to be based on adequate science. Yet, this is not all that
must be done.
In the last twenty years, Federal water policies--particularly
those related to the management and development of water resources--
have fallen into disarray. To a very large extent, the responsibility
for water management and development has been left de facto to the
states. Even the Federally supported monitoring programs have been
reduced in recent years despite the fact that water and water quality
data are essential if water problems are to be accurately characterized
and enlightened strategies for solving them are to be formulated. For
several reasons, the fashioning of water management and development
strategies needed to solve the nation's water problems is not likely to
be particularly effective if left exclusively to the states. First,
states do not have the financial resources necessary to develop and
rehabilitate the needed water infrastructure. Second, state boundaries
almost never coincide with watershed boundaries thereby leading to
watershed management policies that are either partial or fractionated.
Third, frequently there are circumstances in which the states have an
incentive to compete with each other in an effort to make themselves
attractive to new industry. Often these same incentives lead to a
diminution of water quality or to over allocation of scarce water
resources. For all of these, reasons, the Federal Government needs to
reassert a strong role in the management and development of water
policy.
A Twenty-First Century Water Policy Commission of the sort
envisioned in H.R. 3561 is an obvious first step in reestablishing
strong and comprehensive Federal water policies to guide the nation in
addressing its water problems. The objectives spelled out in Section
III (2) represent an appropriate basis upon which to develop for a
stronger set of Federal water policies. Strong research and monitoring
programs are clearly prerequisite but a comprehensive array of policies
covering all manner of water and water related problems are also
needed. It has been almost thirty years since the last comprehensive
treatment of national water policy. Some of the recommendations issued
by the National Water Commission in 1973 are as timely today as they
were then. Many of the others are now outdated. The circumstances of
today are far different than they were in 1973. The water problems of
today are even more challenging and complex than they were in 1973. It
is time for another Commission to make a thorough examination of our
current situation and make recommendations for an integrated set of
national water policies. The Twenty-First Century Water Policy
Commission proposed in H.R. 3561 would be an appropriate body to do
this.
Mr. Chairman, I appreciate the opportunity to appear here and I
hope that your subcommittee will act favorably on H.R. 3561. Thank you.
______
Mr. Calvert. Betsy Cody, Section Head, Natural Resources
and Earth Sciences, is recognized.
STATEMENT OF BETSY A. CODY, SECTION HEAD, NATURAL RESOURCES AND
EARTH SCIENCES AND SPECIALIST IN NATURAL RESOURCES POLICY,
CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF CONGRESS
Ms. Cody. Good afternoon. I am a specialist in natural
resources policy for the Congressional Research Service,
Library of Congress. Mr. Chairman and members of the
Subcommittee, thank you for this opportunity to provide
background for the Subcommittee as it considers H.R. 3561. I
would ask that my full written testimony be included in the
record.
Mr. Calvert. Without objection, so ordered.
Ms. Cody. My purpose today is to provide an overview or
context for a discussion of the proposal to establish the
Twenty-First Century Water Policy Commission. My testimony
covers two areas: First, the evolution of the Federal role in
Federal water policy, and second, a summary of the major study
commissions established over the last 50 years. Please note
that the information I provide today is for background purposes
only. CRS takes no position on pending legislation.
The responsibility for development and management of water
resources is spread among many Federal, State, local, tribal
and private interests. Nearly two centuries of project
development as well as environmental and resource management
activities have created a very complex web of Federal and State
water laws, regulations, and even contractual obligations and
economies based on existing infrastructure. Complicating these
matters further is the dynamic and complex nature of the
resource itself.
The Federal role in water policy has evolved to include a
range of water resource and water quality activities, from
initial efforts to improve and maintain waterways for
navigation to the Federal role in expanding investments in
flood control and providing water for irrigation. Over the
years new rules were added. For example, water quality
regulations were developed as were assistance programs to
communities to meet new treatment objectives. These new and
sometimes competing rules have generated questions about the
efficiency and coordination of Federal water policy activities.
These questions then necessarily involve the attention of
numerous congressional Committees and Federal agencies.
Currently there are more than 12 standing Committees in the
House and the Senate that have some jurisdiction over--that
claim some jurisdiction over various components of Federal
water policy. Similarly several agencies also have
responsibilities for implementing the laws that these
Committees report.
In response to perceived inefficiencies, potentially
conflicting programs, and requirements of Federal water policy,
Congress, the executive branch and others have employed
commissions to identify ways to bring order to the Federal
role. Since 1950, at least six such commissions have examined
the Federal water policy, and there have been numerous others
throughout the latter part of the 20th century. Several were
established by Congress. Some were made up of non-Federal
members appointed by the President. One consisted solely of
Federal officials and was set in the White House. Another was
solely congressional, consisting of 17 Senators.
The reports of these commissions ranged from policy
recommendations and overviews to data-intensive assessments of
the Nation's water resources. Each report is summarized in my
written testimony beginning on page 11 in the table.
In 1950--the 1950 report of the President's Water Policy
Commission identified specific needs for river basin planning
and coordination. While the recommendations of this report were
widely discussed, tensions over specific project funding and
executive branch versus legislative branch priorities, not
unlike those of today, stalled implementation of those
recommendations. Others on this panel will talk about some of
the other commissions during this time.
The stalemate led by--this stalemate between the executive
branch and legislative branch led to the creation of a second
group, the Senate Select Committee on National Water Resources.
Many recommendations of the 1961 Senate select Committee report
were then enacted in the Water Resources Planning Act of 1965.
The 1965 act created the Water Resources Council. The Council
published two assessments on water resources supply and
availability, one in 1968 and one in 1978, as well as
principles and guidelines that are still used today for project
planning and evaluation.
In 1968, the National Water Commission was established to
review Federal water policies in the wake of numerous attempts
and proposals to develop the Colorado River Basin and even
import water supplies from the Columbia River. The Commission
issued its final report in 1973, and the report does appear to
have contributed to numerous policy changes implemented over
the following 15 years.
In 1987, the National Council on Public Works Improvement
reported on water supply and infrastructure needs. Finally, the
Western Water Policy Review Commission issued a report in 1998
which recommended 10 principles for water management for the
21st century.
In summary, Mr. Chairman, while many experts and some
States have called for better coordination of the complex web
of Federal water policy activities, no comprehensive change in
Federal water resources management has occurred since enactment
of the Water Resources Planning Act of 1965. Changes have
occurred incrementally, agency by agency, statute by statute.
More comprehensive changes were impeded both by the diversity
of needs and interests and by the complexities associated with
long-term commitments and the infrastructure already in place.
New demands on traditional multipurpose water resources
agencies like the Corps of Engineers and the Bureau of
Reclamation, combined with calls for an increased Federal
investment in water treatment and drinking water
infrastructure, are again raising the questions related to the
future role of water supply development and how such a goal
ought to be coordinated.
Thank you. This concludes my statement, and I would be
happy to answer any questions.
Mr. Calvert. Thank the gentlelady.
[The prepared statement of Ms. Cody follows:]
Statement of Betsy A. Cody, Section Head, Natural Resources and Earth
Sciences Section of the Resources, Science, and Industry Division, and
Specialist in Natural Resources Policy, Congressional Research Service,
Library of Congress
Good afternoon. My name is Betsy Cody. I am a specialist in Natural
Resources Policy for the Congressional Research Service, Library of
Congress and currently head the Natural Resources and Earth Sciences
Section of the Resources, Science, and Industry Division. Thank you for
this opportunity to respond to your request for background information
on the current and historic Federal roles in water supply development,
as well as for information on several national water commissions,
committees, and studies undertaken since 1950.
My purpose today is to provide an overview, or context, for a
discussion of an effort to study and coordinate all aspects of Federal
water policy. My testimony covers two areas: 1) the evolution of
Federal project and program authorities for water supply development,
touching briefly on Federally supported water and wastewater treatment
programs; and 2) major study commissions that have assessed water
availability, institutional issues, and to a degree, facilities' needs
over the past 50 years. 1 The information provided herein is
for background and analytical purposes only as the subcommittee
considers H.R. 3561, to establish the Twenty-First Century Water Policy
Commission. CRS takes no position on pending legislation and does not
make recommendations.
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\1\ More recent studies addressing drinking water and water and
wastewater treatment facilities needs are not included in this
analysis.
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Today, the Federal Government is involved in a full range of water
resources and water quality activities, ranging from water resources/
supply development, to water quality regulation and species
stewardship. However, the responsibility for development and management
of the Nation's water resources is spread among many Federal, state,
local, tribal, and private interests. Nearly two centuries of project
development as well as environmental and resource management activities
have created a complex web of Federal and state laws and regulations,
contractual obligations, and economies based on existing water
resources infrastructure.
Over time, numerous attempts have been made to review and/or
coordinate Federal water activities; a few of the more comprehensive
efforts are outlined below. 2 These efforts have included
creation of an Executive Branch agency to coordinate and plan for
Federal water activities, including activities of several river basin
commissions (Water Resources Planning Act of 1965 (P.L. 89-80; 79 Stat.
245)), recent direction to the U.S. Geological Survey to report on
efforts needed to undertake periodic assessments of water availability
and use (House report language accompanying H.R. 2217; H. Rpt. 107-103,
Department of the Interior and Related Agencies Appropriations Bill,
2002, June 19, 2001, p. 64) and now H.R. 3561, the subject of this
hearing, which would establish the Twenty-First Century Water Policy
Commission.
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\2\ One major commission not included in this analysis is the
National Commission on Water Quality, which was established by
315 of the Federal Water Pollution Control Act Amendments of
1972 (P.L. 92-500). The Commission was charged with making a full and
complete investigation of all aspects of achieving or not achieving the
effluent limitation goals established for 1983 and identifying any mid-
course corrections that may need to be undertaken. The Commission's
final report laid the groundwork for the Federal Water Pollution
Control Act Amendments of 1977.
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Evolution of Federal Project and Program Authorities 3
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\3\ For more information on these authorities, see CRS Report
RL30478, Federally Supported Water Supply and Wastewater Treatment
Programs, updated February 16, 2001.
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The current Federal role in water policy has evolved over nearly
two centuries to include significant Federal investment in water
resources infrastructure, creation of water quality standards and
regulations, and laws affecting both the use and stewardship of aquatic
resources. The first Federal involvement in water resources development
was for improving and maintaining waterways for navigational purposes.
Navigational needs soon gave way to demands for Federal investment in
controlling floods and for providing water for irrigation. Since the
turn of the 20th Century, the Federal Government has built thousands of
individual water resource projects, primarily dams, dikes, and
diversion projects whose principal purposes were for irrigation and
flood control. One subset of these Federal water resource activities is
water supply development.
While the Federal Government has played a significant role in
developing water resources through the construction of reservoirs for
flood control and irrigation, historically it played a relatively minor
role in funding construction of water supply and treatment facilities
for municipal and industrial (M&I) uses. Instead, several programs
exist to assist individually designated or eligible communities with
development of water supply and treatment projects and it appears
Congress is being asked more frequently to fund such programs.
Historically, municipal and industrial (M&I) uses were incidental to
the larger project purposes of flood control and water supply for
irrigation. Consequently, most of the Nation's public municipal water
systems have been built by local communities under prevailing state
water laws. Consideration of other purposes, such as recreation and
fish and wildlife, were later added statutorily to the purposes for
which Federal water resource projects were constructed, operated, and
managed (e.g., Fish and Wildlife Coordination Act (16 USC 460l-12)).
4
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\4\ More recently, Congress has authorized particular broadscale
ecosystem restoration projects in connection with major Federal water
resource projects that previously altered natural water flows (e.g.,
Everglades legislation in the 106th Congress (Title 6 of P.L. 106-541),
California Bay-Delta legislation in the 104th Congress (Division E of
P.L. 104-208); re-authorization of funding for the latter program is
being debated in the 107th Congress (see H.R. 3208 and S. 1768).
Efforts to deal with water quality and resource protection issues in
San Francisco Bay date back to the 1960s. Similarly, efforts to improve
resource management of the Chesapeake Bay date back several decades.
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Water Resource Projects of the Bureau of Reclamation and U.S. Army
Corps of Engineers
In pursuit of developing water resources to provide water for
irrigation and to control flooding, Congress authorized Federal
construction of numerous water resource projects throughout the middle
to late 1900s. The largest Federal water projects were undertaken by
the Department of the Interior's Bureau of Reclamation (Bureau) and the
Department of Defense's civil works agency, the U.S. Army Corps of
Engineers (Corps). The Reclamation Act of 1902, as amended, and
numerous project-specific acts authorized the construction of storage
and irrigation works in the West. Even though Congress subsequently
authorized other uses of project water, including M&I use, the
historical emphasis of the Bureau's operations was to provide water for
irrigation in the arid and semi-arid areas of the western states.
Similarly, the Corps constructed large reservoirs primarily for flood
control under numerous flood control acts throughout the last century,
but was authorized in 1958 to allocate water for M&I purposes if
reimbursed by local sponsors (Water Supply Act of 1958, 72 Stat. 320;
43 USC 390b). In this Act, Congress emphasized the primacy of
non-Federal interests in water supply development. 5 Other,
smaller flood control and water supply projects, e.g., those built
under the Small Watershed Program (P.L. 83-566, as amended; 16 USC
1001-1006), have been undertaken by the Department of Agriculture's
Natural Resources Conservation Service (formerly Soil Conservation
Service).
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\5\ ``It is declared to be the policy of the Congress to recognize
the primary responsibilities of the States and local interests in
developing water supplies for domestic, municipal, industrial, and
other purposes and that the Federal Government should participate and
cooperate with States and local interests in developing such water
supplies in connection with ... Federal navigation, flood control,
irrigation, or multiple purpose projects.'' (43 USC 390(b))
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Over the past 20 years, the Bureau has been authorized to assist or
construct several rural municipal water supply projects (often in lieu
of previously authorized irrigation projects that were not built), as
well as numerous small water recycling and reuse projects (Reclamation
Projects Authorization and Adjustment Act of 1992 (Title 16 of P.L.
101-575), as amended; 43 USC 390h et. seq.). 6 Since 1992,
the Corps has been authorized to assist with various ``environmental
infrastructure'' projects ranging from wastewater treatment, combined
sewer overflow, water supply, storage, treatment, and related
facilities as part of successive Water Resources Development Acts in
1992 (219 and 313), 1996, 1999, and 2000. While there
have been appropriations for the Bureau's water re-use (Title 16)
projects and certain Corps' environmental infrastructure projects,
funding has not kept pace with project authorizations. Some have argued
that the future implementation of the rural water supply, environmental
infrastructure (219, etc.), and water re-use (Title 16 )
projects has the potential to create an altogether new (and perhaps
competing) mission for the Corps and the Bureau in contrast to their
traditional multi-purpose water resources projects. Further, there is
concern that these more recent authorizations may duplicate efforts
under programs administered by other Federal agencies such as the
Environmental Protection Agency (EPA). Additionally, recent efforts to
address ecosystem restoration needs and water quality issues in both
Florida and California have included proposals for significant water
supply features. These multi-billion dollar efforts have raised
concerns about the proper Federal role in providing water and water
resource infrastructure to communities, about different Federal/local
cost-share policies, and about equity among the many water resource
problems facing the country, especially in times of drought and
competition for budgetary resources. 7
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\6\ A similar pilot program for ``alternative water source''
projects in non-reclamation states was authorized in 2000 (Title VI of
P.L. 106-457; 114 Stat. 1975). Under this act, the Administrator of the
Environmental Protection Agency is authorized to establish a pilot
program to make grants for water conservation, reclamation, and re-use
projects to meet critical water supply needs.
\7\ Comments of Senators Frank Murkowski, Jon Kyl, and others
during mark-up of S. 1768, Senate Energy and Natural Resources
Committee, May 16, 2002.
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General Water Supply Development and Wastewater Treatment
To date, M&I water supply development and wastewater treatment have
principally been the domain of local interests and entities, with the
Federal Government providing significant financial and technical
assistance through various Federal programs, including grants and
loans. Except for the water resource projects noted above, these
programs are found within the Department of Agriculture (Rural
Utilities Service, Water and Waste Disposal Program 8), the
Department of Commerce (Economic Development Administration, Public
Works and Development Facilities Program 9), Department of
Housing and Urban Development (Community Development Block Grants
10), and the Environmental Protection Agency (Clean Water
State Revolving Loan Fund (SRF) Program 11 and Drinking
Water SRF Program 12). (See attached CRS Report RL30478,
Federally Supported Water Supply and Wastewater Treatment Programs,
updated February 1, 2002.)
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\8\ 7 USC 1926, with regulations at 7 CFR 1780.
\9\ 42 USC 3131,3132, 3135, 3137; 42 USC 3211, with regulations at
13 CFR 302, 305, 316, and 317.
\10\ 42 USC 5301et seq., with regulations at 24 CFR 570.
\11\ 33 USC 1381-1387, with regulations at 40 CFR 35.3100.
\12\ 42 USC 300j-12, with regulations at 40 CFR 35.3500.
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The practical difference between the individual project
authorizations of the Bureau and the Corps, and the programs of these
other agencies is that individual project authorizations offer no
predictable assistance, or guarantee of funding after a project is
authorized, because funding must be approved via the congressional
appropriations process. The programs, on the other hand, have set
program criteria, are authorized for multiple years, are generally
funded from year to year, and provide a process under which project
sponsors compete for funding. Whether recent authorizations for rural
water supply and re-use projects, water supply/ecosystem restoration
projects, and environmental infrastructure projects signal a shift in
congressional policy to a more direct or larger Federal involvement in
water supply development is not yet clear.
Looking Ahead
Decisions about the future of U.S. water resources policy are
inextricably linked to the past. Nearly two centuries of water
resources project development has created a complex web of Federal and
state laws and regulations, contractual obligations, and economies
based on existing water resources infrastructure. Complicating matters
further is the complex and dynamic nature of the resource itself. The
basic hydrologic cycle, floods, droughts, groundwater, and the chemical
and biophysical nature of water are in a constant state of flux. Added
to the resource complexities are the dimensions of human use. Water is
abundant in some areas and not others. Making water available through
irrigation was a key part of national policies to settle the West. In
many areas, essentially all water has been allocated--perhaps over-
allocated in dry years.
While the implications of water use are most critically apparent at
the local level, water flows across political boundaries. In the West,
especially, many headwaters rise on Federal lands, and numerous Indian
Tribes hold treaty rights to many to waters and related resources. With
this complexity in the nature of water resources, over time, myriad
laws have been enacted to allocate and regulate water use, protect its
quality, develop its energy potential, contain its destructive powers,
and maintain or enhance its biological integrity.
The many aspects of water resources supply and development and of
the programs and processes involved engage the attention of numerous
congressional committees and Federal agencies. For Congress, this has
resulted in a complex set of diverse and sometimes overlapping
committee jurisdictions dealing with various aspects of water policy.
For example, the issues discussed in this overview have largely been
handled by four authorizing committees: the House Resources Committee,
House Transportation and Infrastructure Committee, the Senate Energy
and Natural Resources Committee, and the Senate Environment and Public
Works Committee; however, some resource management issues (fisheries,
wildlife, wetlands, and watershed management in particular) involve
other, committees and subcommittees. Currently, at least 12 standing
committees in the House and Senate have some jurisdiction over various
components of Federal water policy. Of the House Resources Committee
alone, four of the five subcommittees have specific references to some
aspect of water resources management in their jurisdictional
descriptions. 13
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\13\ Rules for the Committee on Resources. U.S. House of
Representatives, 107th Congress. Rule 6. Establishment of
Subcommittees; Full Committee Jurisdiction; Bill Referrals. Adopted
February 14, 2001. The full text of the Resources Committee's rules for
the 107th Congress can be found at Congressional Record (daily
edition), v. 147, February 26, 2001, pp. H402-H405.
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Further, several different executive branch departments and
agencies are responsible for implementing various laws under the
jurisdiction of these committees. These arrangements can complicate
management of river systems and resources comprising large watershed
areas such as the Missouri and Mississippi River Basins, Columbia and
Colorado River Basins, and the California Bay-Delta, and even smaller
systems, especially where anadromous fisheries are involved. Similarly,
multi-jurisdictional management of water and resources found in the
Great Lakes basin, the Florida Everglades, and the Chesapeake Bay, are
challenging existing institutional structures to deal with various
aspects of water policy. Not only do various departments and agencies
have different and sometimes competing responsibilities, they also face
the difficult task of coordinating their actions and decisions.
While many experts and some states have called for better
coordination of Federal water policy activities, Congress has not
enacted any comprehensive change in Federal water resources management
since the Water Resources Planning Act in 1965 (P.L. 89-80; 42 USC 1962
et seq.)--and this predates the substantial role of the Environmental
Protection Agency in water quality protection since the early 1970s, as
well as passage of the National Environmental Policy Act (NEPA) in 1969
and the Federal Endangered Species Act (ESA) in 1973. Instead, Congress
has enacted numerous incremental changes, agency by agency, statute by
statute. Where coordination of Federal activity has occurred, it has
been driven largely by pending crises, such as potential threatened or
endangered species listings, droughts or floods, and by local or
regional initiatives. Consequently, criticism of the fractured nature
of water policy at the Federal level has been a recurrent theme for
decades. Yet, any attempt to untangle the complexities of current
national water policy involves many constituencies with many differing
interests. For example, states historically have been wary of Federal
involvement in intrastate water management and allocation issues and
thus, even in cases where the Federal Government is directly involved
in building water supply facilities, Congress has recognized that
states generally have primacy in intrastate water allocation.
14
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\14\ This is not generally a question of what powers the Federal
Government has and could exercise under the Constitution. Congress has
often required that the United States defer to or comply with state law
in the construction and operation of Federal facilities pertaining to
allocation, control, or distribution of water (e.g., Sec. 8 of the
Reclamation Act of 1902, 32 Stat. 390; 43 USC 372, 383). Other laws
recognizing state primacy and their effects have been the subject of
much judicial interpretation.
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As one can see, the Federal role in water policy at the national
level is both complex and dynamic. Efforts to pull together the many
divergent problems and issues associated with water management have on
several occasions included the use of commissions to identify ways to
bring order or cohesion to the many and varied aspects of Federal water
policy. Several such efforts occurring in the latter part of the 20th
Century are discussed below.
Major Water Resources Studies and Commissions
Several major water resources studies and reports were issued by
various commissions, committees, and councils in the last half of the
20th Century. (See summary information in the Appendix to this
statement.) Efforts to understand and address the growing Federal
involvement in water resources development largely began in the mid-
1930s with the Mississippi Valley Committee (1934) and the Water
Resources Committee of President Franklin Roosevelt's Natural Resources
Commission (1935-1937). Creation of the Tennessee Valley Authority and
attempts to create other regional authorities for river basins
throughout the country were debated and studied for decades. These
efforts culminated with several major policy and assessment studies in
the later part of the century. 15
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\15\ Early efforts at coordinating Federal activities in water
policy included the Federal Interagency River Basin Committee (also
known as ``firebrick'') and recommendations of the first Hoover
Commission (1947 and 1948). In 1968, in its first assessment of the
Nation's water supply, the Water Resources Council noted that ``during
the past 60 years, over 20 commissions or committees have looked into
national water policies and problems.'' (The Nation's Water Resources:
The First National Assessment of the Water Resources Council.
(Washington, DC: U.S. Govt. Printing Office, 1968), p. 2-2.)
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In December 1950, President Truman issued A Water Policy for the
American People, which concluded that municipal supply development
should ``continue to be primarily a local responsibility,'' but
advocated river basin planning and coordination to streamline
development and financing needs, 16 including the tightening
of economic standards for evaluating proposed projects and increased
cost-sharing by local sponsors. In part because many recommendations
for planning and coordination in Truman's 1950 report had not been
implemented, because of growing tensions between the executive and
legislative branches on water policy, 17 and because of the
diversity of jurisdictions over water issues in Congress, the U.S.
Senate convened a Senate Select Committee on National Water Resources
in 1959.
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\16\ The recommendations for comprehensive planning had long been
studied. As early as 1908, the Inland Waterways Commission and the
National Conservation Committee of President Theodore Roosevelt
recommended study of comprehensive national water resources planning
and development. (U.S. Senate. Committee on Interior and Insular
Affairs, History of the Implementation of the Recommendations of the
Senate Select Committee on National Water Resources. 90th Congress, 2d
Session. Senate Committee Print prepared at the request of Henry M.
Jackson, Chairman. (Washington, DC: U.S. Govt. Printing Office, 1969),
p. 15.)
\17\ Tensions between the executive branch and the legislative
branch over fiscal constraints in water resources projects and
planning, and state roles vis-a-vis Federal agencies roles were
apparent throughout the 1950s, and beyond. Omnibus Rivers and Harbors
bills (a precursor to today's Water Resources Development Act (WRDA)
bills) were vetoed by President Eisenhower in 1956 and in 1958, as were
the Public Works Appropriations Act for Fiscal Year 1960 and proposed
amendments to the Federal Water Pollution Control Act in 1960. As noted
in the 1969 History of the Implementation of the Recommendations of the
Senate Select Committee on National Water Resources, ``[n]ot the least
of the significant reasons for the existence of a hiatus in the field
of water resources policy was the division of political power between
the Republican Party which controlled the executive branch from 1953 to
1961, and the Democratic Party which controlled both Houses of Congress
from January 1955 on.'' (See Infra note 14, p. 7.)
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Senate Select Committee on National Water Resources
Members of the final Senate Select Committee on National Water
Resources were appointed by the chairmen of the four Senate standing
committees from which the membership was drawn. Four additional members
were to be appointed by the Vice President (two Senators each from the
minority and majority parties), for a final total of 17 Senators.
18 The final report of the committee was issued in January
1961, along with 32 studies and records from 23 hearings. The results
of the report were debated in several successive Congresses, including
many hearings before the predecessor to this Committee, the House
Interior and Insular Affairs Committee. Noted in the Committee activity
report for the 86th Congress was the fact that the water subcommittee
had spent far more time on legislation not enacted than that which had
become law that Congress. Many of the select committee's report
recommendations became the foundation of the Water Resources Planning
Act of 1965.
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\18\ Senators Robert S. Kerr, Oklahoma (Chairman); Thomas H.
Kuchel, California; Dennis Chavez, New Mexico; Allen J. Ellender,
Louisiana; Warren G. Magnuson, Washington; Clinton P. Anderson, New
Mexico; Henry M. Jackson, Washington; Claire Engle, California; Philip
A. Hart, Michigan; Gale W. McGee, Wyoming; Frank E. Moss, Utah; James
E. Murray, Montana; Milton R. Young, North Dakota; Andrew F. Schoeppel,
Kansas; Francis Case, South Dakota; Thomas E. Martin, Iowa; and Hugh
Scott, Pennsylvania. Infra note 14, p. 8.
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Water Resources Council
The Water Resources Planning Act of 1965 (P.L. 89-80; 79 Stat. 244
(42 USC 1962, et seq.)) established the Water Resources Council (WRC),
a Federal-level water resources coordinating and planning body situated
in the Executive Office of the President. Members of the Council
included the Secretaries of the Interior; Agriculture; Army; and
Health, Education and Welfare; and the chairman of the Federal Power
Commission (later the Secretary of Energy). Secretary of the Interior
Stewart Udall chaired the first Council. In 1975 (in P.L. 94-112),
Congress expanded the WRC to include the Secretaries of Commerce,
Housing and Urban Development, Transportation, 19 and the
Administrator of the Environmental Protection Agency (EPA). Reportedly,
these secretaries acted as associate members, with the Director of the
Bureau of Budget (now Office of Management and Budget) and the Attorney
General participating as observers. 20 The 1965 Act also
created numerous River Basin Commissions which were charged with
planning for water resources development on a watershed scale. The
Council was specifically tasked with: 1) maintaining and preparing a
biennial assessment of water supply and demand; 2) devising new
principles, standards, and procedures for project evaluation; 3)
establishing and maintaining liaison with River Basin Commissions
established under the Act; 4) administering planning grants to states;
and 5) effectuating interagency policy coordination in part by
encouraging and reviewing river basin plans (102(b)). The
authorization for the WRC still exists (42 USC 1962a); however, the
institution has not been funded since 1983.
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\19\ One source (see Infra 20, p. 399) notes the Secretary of
Transportation became a statutory member of the Council in 1967 for
``matters pertaining to navigation features of water resource
projects;'' however, U.S. Code notes state the Secretary of
Transportation was added in 1975 (42 USC 1962a, amendments of P.L. 94-
112).
\20\ National Water Commission. Water Policies for the Future.
Final report to the President and to the Congress of the United States.
(Washington DC, U.S. Govt. Printing Office: 1973), p. 399.
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The first WRC national water assessment was transmitted to Congress
by President Lyndon B. Johnson on November 12, 1968. Its major emphasis
was to provide ``initial assessments of the adequacy of the Nation's
water supply based on readily available data and limited analyses.
21 The report used the base year of 1965 for a 50-year time
horizon for analyzing emerging problems in water resources development.
Its findings necessarily reflected the data available at the time. The
second WRC national water assessment was issued December 1978.
22 Its major findings reflected the first nationally
consistent water use and supply projections for geographical regions,
with the data indicating a need for better management to balance water
quantity and quality. While the national assessments primarily
addressed water availability, use, and trends and were rather data
intensive, an intervening effort by the National Water Commission
focused on water policy and resulted in 62 additional water policy and
technical studies. 23 Perhaps the most lasting effect of the
WRC activities was the publication and subsequent revision of
principles and standards, or principles and guidelines (P&Gs) for the
evaluation of water resource projects, which are still used by Federal
water resource agencies for project planning and evaluation.
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\21\ Water Resources Council. The Nation's Water Resources, The
First National Assessment of the Water Resources Council. (Washington
DC, U.S. Govt. Printing Office: 1968), p. 2-1. (Emphasis added.)
\22\ Water Resources Council. The Nation's Water Resources, 1975-
2000, The Second National Water Assessment by the U.S. Water Resources
Council. (Washington, DC, U.S. Govt. Printing Office: 1978.)
\23\ Supra note 20, p. 579.
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National Water Commission
The National Water Commission (NWC) was established by P.L. 90-515
(82 Stat. 868) on September 26, 1968 (S. 20, 90th Congress). The NWC
was a seven-man commission appointed by the President; its membership
excluded officers or employees of the United States Government. The
genesis of the NWC lay in deliberations over the passage of the Central
Arizona Project and competing proposals for extensive development of
the Colorado River Basin, including potential importation of water from
the Columbia River Basin. 24 The rationale for the NWC was
to give a national perspective to the many serious long-range water
problems brewing in many parts of the country. The 1973 report of the
NWC included numerous conclusions and recommendations ranging from
tightening Federal (both executive and legislative branch) evaluation
and cost-share procedures and policies for water resource projects
(including navigation) to substantial revision of the Nation's water
pollution control policy. With respect to future water projects, the
report noted that water use is inherently ``responsive to many
variables in policy and technology as well as to rates of growth in the
population and the economy which cannot be forecast with an assurance.
25 Regarding M&I supplies, the NWC recommended that a
national policy be developed and enacted into law to clearly delineate
the Federal Government's role in the provision of water for M&I uses
and that such responsibility should remain with non-Federal public and
private entities. While the report was issued during the end of the
Nixon Administration and appeared lost among other national priorities
of the time, it appears that many of the reports' recommendations were
eventually adopted via changes in Federal water pollution laws and
regulations and laid the foundation for on-going changes in water
resource project evaluation criteria, cost-share formulas, and pricing
policies implemented during the 1980s.
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\24\ Ibid., p. ix. See also, Helen Ingram, Water Politics,
Continuity and Change. (Albuquerque, University of New Mexico Press:
1990), p. 60.
\25\ Ibid. p. 17.
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National Council on Public Works Improvement
In 1988, the National Council on Public Works Improvement issued a
report on America's public works. 26 The Council was
established to assess the state of the country's infrastructure. The
report was preceded by several sector-specific reports including
reports on water supply, wastewater, and water resource issues, all
published in May of 1987. The reports noted the growing state and local
responsibility for a variety of water resource and water supply
infrastructure and concluded in part that there was not an
``infrastructure gap'' requiring a Federal subsidy. However, the
reports did identify an increased need for technical assistance and
education, especially for small water systems and rural areas. While
infrastructure-funding gaps have been identified, 27 it has
generally remained the Federal policy that supplying water to
individual communities is largely a local responsibility, supported by
Federal funding via grants and loans. These funds have largely been
provided to assist in meeting treatment needs, consistent with national
public health and environmental standards, not for meeting supply or
resource needs.
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\26\ National Council on Public Works Improvement. Fragile
Foundations: A Report on America's Public Works. Final Report to the
President and the Congress. (Washington DC, U.S. Govt. Printing Office:
1988). 226 p.
\27\ The national debate about Federal policy in these areas has
been augmented for some time by several reports and recommendations of
numerous private sector advocates and organizations seeking changes in
policy, in the roles of government and others in implementing Federal
policy, and in Federal investment in water infrastructure.
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Western Water Policy Advisory Review Commission
Congressional debate over western water policy during drought years
of the early 1990s led to creation of the Western Water Policy Review
Advisory Commission. Authorized in 1992 by title 30 of P.L. 102-575,
the Commission completed its review of western water policy issues in
1998. The report recommended a new governance structure for watersheds
and river basins as well as several other reforms of existing Federal
water policies and statutes. It specifically listed 10 ``Principles of
Water Management for the 21st Century.'' These ranged from promoting
``sustainable use'' of water to promoting social equity and employing
participatory decision-making. The report's conclusions and
recommendations were very controversial and criticized by several ex-
officio (congressional) members of the Commission, including the then-
chairmen of the Senate Appropriations and Senate Energy and Natural
Resources Committees, and the then-chairman of the House Resources
Committee.
Other Efforts
Many other studies, white papers, reports, and books have been
written identifying problems and policy inconsistencies at the Federal
level; however, there has been no systematic review of nation-wide
Federal water policy since the 1973 NWC report. Similarly, there has
been no formal water assessment of the Nation's water resources since
the 1978 WRC national water assessment, although the United States
Geological Survey (USGS) is preparing a report describing the scope and
magnitude of efforts needed to provide periodic assessments of the
status and trends in the availability and use of freshwater resources.
In this same vein, Title IV of S. 1961, the Water Investment Act of
2002, would direct the Secretary of the Interior, acting through the
USGS, to periodically assess the state of water resources in the United
States. In contrast, H.R. 3561 would establish a Twenty-First Century
Water Policy Commission to study all aspects of water management and
develop recommendations for a comprehensive national water policy.
Conclusion
Two centuries of project development and environmental and resource
management activities have created a complex web of Federal and state
laws and regulations, contractual obligations, and economies based on
existing water resources infrastructure. While many experts and some
states have called for better coordination of Federal water policy
activities, no comprehensive change in Federal water resources
management has occurred since enactment of the Water Resources Planning
Act in 1965 (P.L. 89-80, 42 USC 1962 et seq.) Instead, changes have
occurred incrementally, agency by agency, statute by statute. Where
coordination of Federal activity has occurred, it has been driven
largely by pending crises, such as potential threatened or endangered
species listings, droughts and floods, and by local or regional
initiatives. New water supply, treatment, and re-use activities of
traditional multi-purpose water resource agencies such as the Bureau
and the Corps, combined with calls for an increased Federal investment
in wastewater treatment and drinking water infrastructure, and
widespread drought in many areas of the country, are again raising
questions related to the future Federal role in water supply
development and management and how such a role ought to be coordinated.
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Mr. Calvert. Next, Thomas Donnelly, executive vice
president, National Water Resources Association. You are
recognized.
STATEMENT OF THOMAS F. DONNELLY, EXECUTIVE VICE PRESIDENT,
NATIONAL WATER RESOURCES ASSOCIATION
Mr. Donnelly. Thank you, Mr. Chairman.
Mr. Chairman and members of the Committee, my name is Tom
Donnelly, and I am the executive vice president of the National
Water Resources Association. On behalf of the membership of the
association, it is my privilege to present testimony on H.R.
3561.
My first reaction and, I suspect, the vast majority of our
members' first reaction upon learning of the introduction of
H.R. 3561 was, please, not another water commission. We have
been down this road many times before. In fact, since 1900,
over 20 national commissions or similar groups have been
authorized by Congress or the President to study water
resources. I briefly described the findings of a handful of the
more recent efforts in my written testimony.
Characteristics of both the National Water Commission of
1950, the Second Hoover Commission's Task Force on Water
Resources and Power, and the National Water Commission included
membership composed of nationally recognized water resource
professionals; and, two, conclusions calling for greater local
authority and financial participation, less Federal
involvement, and projects and programs which are based on sound
cost-benefit analysis.
All of the aforementioned reports and studies advanced the
public debate on water resources management and development and
presented valuable recommendations. Unfortunately, very few
have ever been read and over the years serve only to gather
more dust. That brings me to the most recent such report, which
is atypical of the previously mentioned commission studies that
neither advanced the public debate nor presented valuable
recommendations. In fact, it failed to comply with its
congressional mandate.
I fear that in this era of controversial and contentious
issues related to water allocation and future development, the
Western Water Policy Review Advisory Commission would only
serve as a prototype for the commission proposed in H.R. 3561.
Rather than follow its congressional directive, the Western
Water Policy Review Advisory Commission apparently developed
its own agenda. This agenda focused not upon successful water
resources development, but rather ecosystem protection; not
upon a critique of the effectiveness of existing Federal
agencies and programs, but rather the creation of yet a new
bureaucratic government structure with a basin commission at
its head; not upon means to meet ever-increasing consumptive
water demands at the local level, but rather social and
economic decisionmaking which may leave demands unfulfilled. In
short, the Commission failed to produce a useful work product.
The search for a national water resources policy is akin to
searching for the mythical El Dorado. Hydrologically we are not
a homogenous Nation; therefore, it is unlikely that
comprehensive national policy is possible or desirable. The
Clean Water Act is arguably the most successful environmental
statute ever enacted, yet some of its one-size-fits-all water
quality regulations promulgated under the act are nonsensical
when applied to ephemeral streams and rivers in the western
United States. There are other examples too numerous to detail
here of the Federal Government's cookie-cutter approach to
water policy.
The membership of the National Water Resources Association
cannot support H.R. 3561 as written, and it is unlikely that we
would support the idea of yet another water commission in any
form. We see little likelihood that the ultimate
recommendations would add anything new to the body of knowledge
on water resources management and development or national
policy. Having said that, let me say that having heard Mr.
Linder today and the flexibility that he has expressed in
formulating the Commission, we would take another look at that
if the Commission was well-focused, was made up of water
experts--recognized water experts nationally, that I envision
we could support such a Commission.
Mr. Calvert. I thank the gentleman.
[The prepared statement of Mr. Donnelly follows:]
Statement of Thomas F. Donnelly, Executive Vice President, National
Water Resources Association
Mr. Chairman, members of the Committee, my name is Thomas F.
Donnelly and I am the Executive Vice President of the National Water
Resources Association. On behalf of the membership of the Association,
it is my privilege to present testimony on H.R. 3561, a bill to
establish the Twenty-First Century Water Policy Commission.
The National Water Resources Association (NWRA) is a nonprofit
federation of associations and individuals dedicated to the
conservation, enhancement, and efficient management of our Nation's
most precious natural resource, WATER. The NWRA is the oldest and most
active national association concerned with water resources policy and
development. Its strength is a reflection of the tremendous
``grassroots'' participation it has generated on virtually every
national issue affecting western water conservation, management, and
development.
My first reaction, and I suspect a majority of the members of the
NWRA, upon learning of the introduction of H.R. 3561, was; please, not
another water policy commission. We have been down this road before
with mixed results.
Since 1900, over 20 national commissions or similar groups have
been authorized by Congress or the President to study water resources.
A few of the more recent studies worth mentioning are:
National Water Policy Commission--1950
In the late 1940's, the Engineers Joint Council, made up of members
of the American Society of Civil Engineers, the American Society of
Mining and Metallurgical Engineering, the American Society of
Mechanical Engineers, the American Institute of Electrical Engineers
and the American Institute of Chemical Engineers, took steps to
institute the creation of a National Water Policy Commission charged
with the investigation and reporting upon the several elements
affecting the orderly and economical development of the water resources
of the country. The Council expressed their ideas to the Administration
and on January 3, 1950, President Truman established the President's
Temporary Water Resources Policy Commission by executive order. In July
1951, the Commission presented its report to the President. The
Commission was made up of seven members; however, over eighty (80)
water professionals participated on nine policy panels on: domestic and
industrial water supply and pollution; flood control; navigation and
inland water transportation; irrigation; hydroelectric power;
recreation, fish and wildlife; water resources information; land
drainage; and policies and general applicability. The Commission found
four significant general principles should govern any discussion of
national water policy. These principles are: ``(1) Local, State and
private responsibility should be preeminent and be consciously and
effectively nurtured and extended in water project programming,
execution and financing; (2) Bookkeeping should be clear and forthright
and should be based upon full inclusion of all costs and
reimbursements; (3) Costs should be collected from those benefited
either directly or in a subsidiary way. General intangible benefits
should preferably be regarded as a margin of advantage in project
selection; and (4) Legislative authorizations and policies should be
uniform for all Federal agencies responsible for water resources
development.''
The Commission also found, ``Consideration and control of the
waters of the United States are in the national interest, but not
necessarily a function of the Federal Government. On the contrary, that
which can be done by the individuals should be done by him, and that
which requires collective action should be done at the lowest
governmental level practicable.'' The Commission was a little more
circumspect in their criticism. They essentially blamed politics and
Congress for the ``haphazard development'' of our nation's water
resources.
The Commission's report, ``Principles of a Sound National Water
Policy'' is a difficult read, but does contain some pearls of wisdom,
which are valid today.
The Second Hoover Commission (Task Force on Water Resources and
Power)--1953
The Second Hoover Commission was authorized by Congress and signed
into law on July 10, 1953. The Second Commission was authorized to
enter the field of policy--that is, to determine not only whether an
existing function is being performed efficiently, but also whether
government should perform it at all. One of the subdivisions of the
Commission was the Task Force on Water Resources and Power. The Task
Force summarized its ten principal findings as follows:
(1) LImperative need exists for a clear definition of the role and
policies of the Federal Government in the framework of a consistent
national water policy, which will progressively promote conservation,
and development of this vital natural resource for the Nation as a
whole, as well as for States and local communities.
(2) LThe Federal Government has assumed an ever-increasing share
of responsibility for water resource and power development until it has
become a dominant factor in enterprises, which should be outside its
domain, as that domain is defined by the Constitution.
(3) LThe Federal Government has not given sufficient consideration
to non-Federal interest, opinion, and participation in planning water
resources and power projects.
(4) LThe Federal Government has used water resources and power
development projects, which should be undertaken exclusively for
economic purposes, to accomplish indirect social and political ends.
(5) LThe Federal Government has paid too much of the costs of
water resource and power development and has required too little of the
beneficiaries.
(6) LThe Federal Government has planned, constructed, and paid for
water resources and power development projects, which are economically
unsound and hence waste the national wealth.
(7) LFrom the standpoint of financial return to the Federal
Government, Federal water resource and power projects which produce, or
could produce, revenues are not operated according to sound business
principles, and do not produce a return fairly related to their value;
nor does the Federal Government uniformly require adequate
contributions, either for the use of its money for capital outlay or
for operation and maintenance costs.
(8) LThe Federal Government's organization for carrying out its
policies on water resources and power development lacks coordination,
fosters competition among its agencies, causes controversy, confusion,
duplication, and waste, and encourages, rather that curbs, bureaucratic
ambitions.
(9) LThe executive branch of the Federal Government has no
effective means or procedures for accomplishing and independent and
objective review of water resource and power projects proposed by its
agencies.
(10) LThe Federal Government has not provided adequately for the
collection and analysis of basic data, which should determine the
physical feasibility of water resource and power projects, and has
undertaken projects based on inadequate data.
The Task Force concluded that the first objective of any ``National
Policy'' should be a consistent Federal policy for water resources
development that lessens the centralization of authority in the Federal
Government and strengthens local authority and participation. The
second objective should be the consistent application of sound
principles and criteria to determining which projects would increase
the national wealth and whether or not State and local interests are
willing to shoulder financial and administrative responsibility
commensurate with the benefits they receive.
Characteristics of both the National Water Commission of 1950, the
Second Hoover Commission's Task Force on Water Resources and Power and
the National Water Commission (outlined below) included: (1) membership
composed of nationally recognized water resources professionals, and
(2) conclusions calling for greater local authority and financial
participation, less Federal involvement, and projects and programs
which are based on sound cost-benefit analysis.
The National Water Resources Council--1965
The Water Resources Planning Act of 1965 established a cabinet-
level Water Resources Council to study, coordinate and review water and
related land resources requirements, policies and plans, and authorized
funding for states to plan and implement related programs.
The Act established the Water Resources Council, composed of the
Secretaries of the Interior, Agriculture, Army, Commerce, Housing and
Urban Development, Transportation, and Energy, and the Administrator of
the Environmental Protection Agency. The Council was required to study
continually and assess biennially the adequacy of water supplies in
each water resource region in the U.S. and the national interest in
these; study continually the relation of regional or river basin plans
to the requirements of larger regions, and the adequacy of
administrative and statutory means for coordinating Federal water and
related land resources policies and programs. The Council was also
charged with assessing the adequacy of existing and proposed policies
and programs to meet water requirements and make recommendations to the
President.
In addition, the Act required the Council to establish principles,
standards and procedures for Federal participants in preparing
comprehensive regional or river basin plans and for formulating and
evaluating Federal water and related land resources projects.
In theory it was a meritorious concept, in practice an abject
failure. It was a bureaucratic nightmare, which imposed a overbearing
Federal presence and meddling in local and regional water resources
planning and decision-making. Mercifully, President Ronald Reagan put
the Council out of its misery upon taking office in 1981
National Water Commission--1968
Public Law 90-515 signed on September 26, 1968 established the
National Water Commission. The Commission was tasked with providing the
President and Congress with water policy recommendations ``for the
efficient, equitable and environmentally responsible management of its
water resources.'' The final report, Water Policies for the Future, was
presented on June 14, 1973, almost five years after its establishment.
The Commission consisted of seven members and from 19 to 44 staff
members. The Commission approved a program of background studies
covering 22 fields of interest related to water policy. The final
report included seventeen chapters focusing on various aspects of water
resources policy and develop and presented almost a hundred conclusions
and recommendations.
For the most part it was a scholarly thought-provoking report.
Where it attempted to address controversial aspects of water resources
policy, such as; acreage limitation, cost sharing and water rights it
was soundly criticized and discredited by many policy makers in
Washington and elsewhere.
All of the aforementioned reports and studies advanced the public
debate on water resources management and development and presented
valuable recommendations. Unfortunately, few were ever read and over
the years have served only to gather more dust.
That brings me to the most recent such report which is atypical of
the previously mentioned commission studies in that it neither advanced
the public debate nor presented valuable recommendations. In fact, it
failed to comply with its Congressional mandate.
Western Water Policy Review Advisory Commission--1992
Pursuant to Title XXX of P.L. 102-575, Congress directed the
President to undertake a comprehensive review of Federal activities in
the nineteen Western States affecting the allocation and use of water
resources, and to submit a report of findings to the President and
Congress. From the very beginning it was an agenda-driven political
beast. On his last day in office President George W. Bush appointed the
Commission's members. Subsequent to its organizational meeting,
President Clinton revoked the appointments of the Commission members
and not until September 15, 1995 were the twenty-two members appointed
and the Commission chartered by the Secretary of the Interior. It was
then necessary for Congress to extend the Commission's final report due
date to October 2, 1997.
In December 1997, the National Water Resources Association provided
comments on the draft final report to the Commission. In the
Association's opinion, the most significant single flaw in the draft
report was its failure to follow the Congressional charge to the
Commission. The Commission was directed to ``[a] review problems
affecting water resources development in the West; [b] assess current
Federal programs with an eye towards reorganization or consolidation;
[c] consider the water-related problems of rural communities; [d]
review the need for additional storage or other supply enhancement
alternatives; [e] review the effectiveness of existing institutional
arrangements in addressing water issues; [f] examine the existing legal
regime, including those laws governing Federal/state relations; and [g]
review the activities, authorities and responsibilities of the various
Federal agencies.''
Rather than follow this Congressional directive, the Commission
apparently developed its own agenda. This agenda focused not upon
successful water resources development, but rather ecosystem
protection; not upon a critique of the effectiveness of existing
Federal agencies and programs, but rather the creation of yet a new
bureaucratic ``governance structure'' with a basin commission at its
head; not upon means to meet ever increasing consumptive water demands
at the local level, but rather social and economic decision-making
which may leave demands unfulfilled. In short, the Commission failed to
produce a useful work product.
As far as recent water policy commissions are concerned, this is a
brief summary of the good, the bad, and the ugly.
The search for a national water policy is akin to searching for the
mythical El Dorado. Hydrologically we are not a homogeneous nation;
therefore, it is unlikely that a comprehensive national policy is
possible or desirable.
The Clean Water Act is arguably the most successful environmental
statute ever enacted; yet, some of the ``one size fits all'' water
quality regulations promulgated under the Act are nonsensical when
applied to ephemeral streams and rivers in the arid West. In Alaska,
the tiny town of Skagway is required to provide tertiary treatment of
its sewerage even though the small volume is discharged into an 800
foot deep receiving body with an average 30-foot diurnal tidal
fluctuation in the north Pacific Ocean. There are other examples too
numerous to detail here.
H.R. 3561--a bill to establish the Twenty-First Century Water Policy
Commission
The membership of the National Water Resources Association cannot
support H.R. 3561 as written and it is unlikely that we would support
the idea of yet another water policy commission in any form. We see
little likelihood that the ultimate recommendations would add anything
new to the body of knowledge on water resources management and
development or national policy.
In the West, water infrastructure is every bit as important as
transportation infrastructure. It is essential to the continued
economic growth and development of the region. Water infrastructure
needs continue to exist, particularly, rural water supply. However, on
the whole, they are quite different from those of the past. No one
envisions a future infrastructure development program and financing
arrangements like the Reclamation program, which facilitated the
development and unprecedented economic growth of the West during much
of this century. Future projects are more likely to include non-
structural features, environmental enhancement, proven best management
practices, innovative approaches to water quality/quantity concerns and
greater levels of non-Federal financing.
A better use of the money that would be dedicated to the Commission
called for in H.R. 3561 would be to conduct a comprehensive national
water resources needs assessment.
An essential element, which is currently missing from the Federal
planning equation, is a basin-by-basin infrastructure and programmatic
needs assessment. Such an assessment cannot be developed without the
active involvement and, perhaps, leadership of the nation's governors,
water resources professionals, and state and local officials.
In addition, several Federal agency projects have been authorized
by the Congress but remain unfunded. These projects should be reviewed
to determine if they still meet the needs they were authorized to
address. These projects should be prioritized on a state and regional
(watershed) basis and Congress should determine what project benefits
are in the Federal interest for funding purposes.
I thank the Chairman and the Committee for this opportunity to
present NWRA's thoughts and concerns regarding this legislation and we
wish to continue to work with the Committee as they review and develop
water policy for the nation.
______
Mr. Calvert. And Mr. Lynch?
STATEMENT OF ROBERT S. LYNCH, ATTORNEY AT LAW, PHOENIX, ARIZONA
Mr. Lynch. Thank you, Mr. Chairman and members of the
Subcommittee. My name is Bob Lynch. I am an attorney in
Phoenix, Arizona, and I have practiced law for about 38 years
now, 3 years in the Marine Corps, 5 at the Justice Department
doing litigation on these issues, and 30 years in private
practice. And I have some prepared remarks which I would ask be
made part of the record.
Mr. Calvert. Without objection. It will be put in the
record.
Mr. Lynch. I hope in my testimony to provide you some
observations from my service on the Water Rights Task Force.
Remember that Assistant Secretary Bennett Raley chaired that
effort. Speaking of efforts that got ignored, the Forest
Service was the focus--was the initial focus of that inquiry,
and to the best of my knowledge to this day still doesn't
recognize the suggestions that we made in that report 5 years
ago.
I am pleased that Mr. Linder recognizes the need to declare
the primacy of the States in this legislation. I hope Mr. Keys
gets his legal advice from Mr. Raley about how to express that
and how to acknowledge the sanctity of our interstate compacts,
especially on the Colorado River, and the sanctity of our State
laws as we try not only to allocate, but administer our water
laws.
This bill focuses, unlike the drought bills that I cited in
my testimony, on the supply side of the water issue, and I
think that is a good thing because there has been very little
attention given to supply side strategies and a great deal of
attention on how to manage demand in times of shortage, in
times of drought. But I believe that the thing that is going to
be most important if this Commission goes forward is that it
study barriers.
We spent decades building up our water supply both before
and after World War II, and then beginning about the time I
joined the Justice Department, Congress began legislating
barriers. I was there when President Nixon signed the National
Environmental Policy Act. I handled the first case. It happened
to be a water case involving the Corps of Engineers in my own
State. That project was never built, and the flood control
benefits of that project were never achieved. We have those
barriers today, and we had a big fight a couple of years ago
over Lake Mead when it was drawn down in a prior drought, and
some nonnative vegetation managed to creep into the lake, and
some endangered birds were in it, and we had ourselves a nice
fight in Federal Court. Because 20 million people drink that
water, there have to be limits on what we do, and we found some
other ways to take care of this endangered bird.
We have that fight today in Phoenix. Lake Roosevelt, the
largest water supply in central Arizona for 3-1/2 million
people, has the exact same problem facing it now as Lake Mead
did a couple of years ago. We have that problem on the Colorado
River, as the Chairman is well aware. And in order to find
strategies for endangered species, we have to find water. Well,
that water is all being used, and so we have a problem.
And I would hope that you would consider some changes to
the makeup of this Commission. Frankly, as an attorney in
private practice, I am always nervous when government is coming
to help us. It is sort of like getting reports from the
generals in the middle of the war rather than from the war
correspondents, and I would much more trust a group of outside
observers looking at what government can and cannot do in
examining how to address these barriers than having a top down,
we are coming to get you--excuse me, we are coming to help you
approach.
And last I would note that the drought study that you
received in the year 2000, I believe that is the genesis of the
two bills that were introduced last week, very plainly says
there is no way to set national policy. Our water is local, our
water politics is local, and all water rights are local. And if
you go forward with this, I hope that those of us who are local
can find a place to contribute.
[The prepared statement of Mr. Lynch follows:]
Statement of Robert S. Lynch, Appointed Member of the Water Rights Task
Force
Mr. Chairman and Members of the Subcommittee, my name is Bob Lynch.
I am an attorney in Phoenix, Arizona. I have worked in the areas of
water supply, water rights and water policy at the Justice Department
and in private practice for nearly 35 years. I had the pleasure of
serving on the Federal Water Rights Task Force, a Federal advisory
committee established by the Federal Agriculture Improvement and Reform
Act, P.L. 104-127. I was appointed in June 1996 to this seven-member
committee by then Speaker of the House Newt Gingrich. The committee was
chaired by Bennett Raley, now Assistant Secretary of the Interior for
Water and Science. While your kind invitation does not specifically
address the issue, I presume that I have been invited to testify at
this hearing on H.R. 3561 because of my experience of having served on
the most recent national water study that Congress directed. It is my
pleasure to do so.
I would like to divide my testimony into three parts. First, I
would like to briefly discuss with you the current drought situation
that faces my state and my basin, the Colorado River Basin. I have read
in the papers even as late as the end of last week about drought in the
East and other parts of the country, so I believe sharing with you some
of the developments in Arizona may be relevant to the purposes of this
legislation. Second, I would like to talk to you about the mechanisms
that H.R. 3561 proposes to use to address the mission of the body to be
created by this legislation. Third, I would like to address the mission
itself.
THE DROUGHT
A colleague of mine is fond of saying ``drought, it's not just for
the West anymore.'' If I can believe what I read in the papers, that is
certainly true, in spite of recent rainstorms. The problem with drought
is that, when it goes away, people forget it happened. But droughts
will return. We know. We are in one again. Flagstaff, Arizona, near the
Grand Canyon, has started water rationing. The drought has allowed
wildfires to start months before our regular fire season. Homes burned
down near Prescott, Arizona last week. Wildfires started so early this
year that the agencies didn't have contracts completed for the slurry
planes or the fire crews.
Last Friday, Secretary of Agriculture Ann Veneman was in Phoenix to
meet with Arizona Governor Hull. The Secretary announced, at a press
conference, drought relief from the Agriculture Department in
recognition of the dry conditions and the significant impacts they are
already causing even before our summer really begins. A copy of her
letter is attached to this testimony.
Our entire basin is suffering. Snowpack as of May 1 in the Upper
Colorado River Basin, where most of the snow collects, is an abysmal
30% of average. Indeed, a fish ladder for endangered fish on the
Gunnison River in Colorado, a tributary to the Colorado River, had to
be taken out of operation because of the lack of water in the river.
And the Geological Survey is saying that this might be the front end of
a 20-30 year cycle, at least in our basin. By contrast, there
apparently is significant flooding in some Midwestern states from
recent storms. Nevertheless, from what I have read, the recent rains in
the Northeast still leave that area of the country short of water.
We need to remember that drought and floods are the opposite sides
of the same coin and the coin is engraved ``we are not yet in control
of our water supply.'' There are a number of reasons why, and I will
discuss some of them in the third part of my testimony, but suffice it
to say that we have a serious problem.
ALTER THE STRUCTURE OF THE STUDY
H.R. 3561 would create a study committee of 17 members appointed by
the President who will be handed a large mission to be accomplished in
12 months. This just will not work. I have attached a matrix to my
testimony showing the makeup of various water studies over the last 40
years and the timeframes they were allotted. Speaking from personal
experience, I can tell you that the mechanisms proposed in this
legislation will seriously inhibit its chance of success.
First, there are too many people. We were a 7-member Federal
advisory committee which met a dozen times in a year and took public
testimony at most of those meetings, including a hearing in the United
States Senate. Coordinating the schedules and demands of 7 people in
order to get a report to Congress somewhere close to the allotted time
was a nightmare. If you decide to study this subject, use a smaller
group.
Whatever size group you use, don't have the study dominated or even
populated by agencies. Regardless of whether you're talking about a
Federal, state or local government entity, the natural tendency of
public officials is to guard turf, expand turf where possible, and
otherwise compete with sister agencies for attention. This same
construct works at the state and local government level as well. If you
want an honest read about the problem in a reasonable period of time, I
would recommend using the 5 non-Federal representatives called for in
H.R. 3561 but pick them from outside government. And don't pick people
on the basis of their affiliation with a specific organization. Pick
people on the basis of what they know and whether they have a
reputation for good judgment.
Whether the President appoints a study group, if you decide to move
forward with this legislation, or someone else does or several do, as
with the advisory committee on which I served, do not require
appointments in 30 days. That was supposed to happen with us and it
didn't happen. There is just too much to do and too many other things
to occupy attention. I would suggest that an appointment timeframe be
somewhere between 60 and 90 days.
The larger the assignment you hand a group like this, the more time
you must give them to address it. A one-year timeframe for the subjects
covered in H.R. 3561 is just too short. You have to choose between
narrowing the mission or lengthening the time or do some of each in
order to come up with a construct that can produce something
worthwhile.
Designate the support mechanism for any study group that you
create. What agency is going to staff this effort? Where is the money
going to come from?
As I read the provisions of the bill, they seem to conflict with
the Federal Advisory Committee Act. If the study is to go forward, that
problem must be remedied.
If the timeframe turns out to be more than one year, ask for annual
interim reports and designate specifically the information you expect
to receive. Hold their feet to the fire.
Require a minimum number of hearings for the period of time
allotted and require that at least a certain number of them be held in
different regions of the country. All water problems are local,
virtually all state water laws are different in at least some respects
and water politics are varied and often situational.
Direct Federal agencies to respond promptly, i.e., within 30 days,
to any information request from the study group. Condition submission
of testimony, data and materials from non-Federal interests on
cooperation with the study group in terms of information requests.
In short, use action-forcing mechanisms like these I've suggested
to ensure that the group has a chance of succeeding.
NARROW THE MISSION
H.R. 3561 outlines an impressive mission. A study group could take
10 years and not be able to get its arms around all aspects of water
management.
More importantly, in my view, do not demand that the group
recommend a comprehensive (national) water policy. I have been
personally involved in reports that have been produced on this subject
since the late 1960's and I firmly believe there is no way to have a
comprehensive national water policy. Indeed, there is really no need to
attempt to homogenize the subject of water supply, water quantity or
water rights.
The bill does define the critical point, however. The problem is
not the lack of a comprehensive national water policy. The problem is
the barriers to problem-solving that Congress has raised from time to
time.
Most, but not all, of these barriers are created by environmental
laws. Some are merely created by lack of Congressional attention.
Environmental laws such as the Endangered Species Act and the Clean
Water Act not only raise barriers to existing water uses; they provide
barriers to expanded conservation of water resources.
EPA has a construct known as a ``zero discharge limitation''. That
means that water that is contaminated is required to be evaporated.
Thus, this environmental regulation fights water conservation.
When Bill Ruckleshaus became Administrator of EPA, he was fond of
saying that ``dilution is not the solution to pollution''. How times
have changed. Now EPA is proposing a water quality trading policy that
would, as a practical matter, allow dilution to be the solution to
pollution. Water Quality Trading Policy, Proposed Policy, 67 Fed.Reg.
34709-10 (May 15, 2002). It may work. It will also require more water.
The EPA white paper is suggesting that problems in the Gulf of Mexico
and other places could be solved by throwing more water at the problem.
How that will work in a drought is anybody's guess.
The materials circulated with H.R. 3561 mention a number of new
technologies that could be employed. Some of them, like aquifer
recharge, are already happening in places like Arizona and southern
California. As you may know, Arizona has the most stringent groundwater
law in the nation, and as a result, our cities, towns and farmers have
gotten pretty good at conservation. But conservation of this nature
doesn't create new water, it just saves water you already had. Finding
``new'' water will require dusting off some old strategies such as
cloud seeding and vegetation management as well as promoting existing
strategies in order to truly be effective.
One of the other things that could be studied is mandating that the
Federal regulatory agencies that enforce our environmental laws come up
with broader solutions. Whether it is EPA under the Clean Water Act or
the Fish and Wildlife Service under the Endangered Species Act,
agencies largely focus on compliance with their programs, not problem
solving. Forcing the agencies to help find solutions while they are
creating sidebars to water supply efforts should also be considered.
CONCLUSIONS AND RECOMMENDATIONS
I will not presume to tell you whether Congress should order a
study of the present or future water supply problems we face. And
perhaps the drought issue will receive adequate attention in the bills
just introduced by Senator Domenici (S. 2528) and Congressman Hastings
(H.R. 4754), and co-sponsored by members of the Arizona delegation. I
will say that I believe that any study, if it is to be conducted, needs
to be run by a small group consisting of people outside government who
are intended to act as a filter for information from government at all
levels, as well as from non-Federal organizations and individuals from
the private sector. Give the person or persons who appoint the members
of the study group adequate time to do so, mandate adequate staff
support and financing, and give the study a chance to work by giving it
enough time to do its job. Narrow the mission to something that can be
achieved in the time allotted and direct the group conducting the study
to devise specific recommendations, the level at which they would be
implemented, the need for Federal legislation and the need for Federal
incentives to motivate state and local governments and private
organizations. If it were up to me, I would ask the group to focus on a
study of barriers to better water supply management but that is your
call. H.R. 3561 focuses attention on a significant issue. I fear,
however, that, as introduced, the bill's study committee and its
mission are unrealistically large. If you decide that such a study is
desirable, I hope you will consider the recommendations I have made in
this testimony about how to structure the group and the task.
Thank you for the opportunity to testify on this extraordinarily
important subject.
______
[Attachments to Mr. Lynch's statement follow:]
[GRAPHIC] [TIFF OMITTED] 79751.012
[GRAPHIC] [TIFF OMITTED] 79751.013
Mr. Calvert. I thank the gentleman for his testimony, and
all the witnesses. I think in Mr. Linder's opening statement--
and I am certain that Mr. Linder will speak for himself--but he
said that he would be very flexible in working with the
Commission and with groups that obviously represent water
interests locally and various States, and that is extremely
important. And I am sure we will work together to make sure
that we don't have any unintended consequences of any
commission that may be set up again to look at water issues in
this country. But I think it may be appropriate, because, as
Mr. Lynch pointed out, on the supply side of this problem, we
have other challenges because of the Endangered Species Act and
because of other Federal laws that we need to look at. So I
look forward to working with Mr. Linder.
Mr. Flake, did you--you wanted to ask anything before you
left?
With that, I will recognize Mr. Linder.
Mr. Linder. I just want to say I brought to this table a
lot of questions and no firm answers, and I am very flexible
because I don't know who should be on this Commission. We took
the shape of another commission and used it as an example, but
I have gotten some very constructive help from Dr. Vaux. And I
want you to know that I considered all of your testimony to be
very constructive, and it is very helpful to hear, and I would
welcome your input. If you would like to send me a letter
making some specific recommendations for the bill, I would be
happy to have that.
Mr. Osborne. Yes. I can understand some discomfort with
government intervention and oversight. And in the absence of
government oversight in terms of water policy, what agencies or
what alternatives would you suggest? And I guess I particularly
address that to Mr. Donnelly and Mr. Lynch.
Mr. Lynch. Mr. Chairman, Mr. Osborne, to the extent the
Federal Government has identified in a future inquiry a series
of roles to play--and obviously Congress is going to have to
facilitate those roles, whatever they may be--I guess the
point--the central point of my concern is that it is very hard
for an agency head to be objective about the successes and
failures of the programs assigned to that agency head, whether
it is--I mean, Mr. Keys is, in my view, one of the best things
that has happened in this administration. He is a very capable
person, but he is also a human being, and he has a program and
an agency to run, and frankly you could tell from his testimony
he is pretty proud of it, and he has a right to be. But that is
not the kind of outside look at this issue that I think retains
objectivity.
Now, you can put all these agencies together, and, in my
view, they will fight turf wars to see who can be the best at
coming up with the best solution, or you can have an outside
view. As I said, it is like having the war correspondents
report about the war, because as you know, whiskey is for
drinking, and water is for fighting, and we will fight over
this. And if there is a way to set up a group of people whose
job it is to inform you and who don't have axes to grind, I
would suggest that the end product will be more useful and will
be a more objective analysis of just what the Federal
Government can and cannot do in addressing these problems.
Mr. Osborne. Your point is well taken, but if something
needs to be done, where do we go--either one of you--because
essentially it is easy to point out the problem, but what is
the solution? Where do we go for an outside independent arbiter
in this case?
Mr. Donnelly. Independent arbiter. Let me back up just a
little bit, because I think that there is a role for the
Federal Government in water. There is a role for the State and
local governments in water resources management and
development. We in the West--our colleagues in the East, I
should say, seem to be a little more comfortable with the
Federal role than we are in the Western States. And water along
the western United States has developed with the State as the
key entity as far as allocation and supply. Independent arbiter
of most disputes has been the court system. You may not agree
with that, but--
Mr. Lynch. I don't know if Mr. Donnelly is suggesting we
turn this over to judges, but I would strongly disagree. Your
point is very well taken, Mr. Osborne. There is no one who
deals with water law who knows anything who is totally
independent. If they are, they are asleep. You do the best job
you can. I mean, basically on the Water Rights Task Force, the
Senators that were the prime movers in establishing that just
went out and ID'd people they thought would take the time, knew
something, and would give the Congress back an honest read on
what the problem was and what should be done about it. I don't
know if we succeeded or not, but we tried.
Now, I guess what I am trying to say is that there are
people in the private sector who care about this issue and who
can devote time to it and can help address the questions about
what agencies can do certain things and what they can't, and
where the limitations are, where the conflicts are, where the
barriers are, and where the duplication is. But I don't see the
agencies being able to do that. It is kind of intuitive to
their own purpose for existence.
Mr. Osborne. My time has expired.
Mr. Donnelly. A lot of the commissions that have preceded
this, the Second Hoover Commission's Water Policy Task Force,
the Presidential commission that President Truman authorized by
Executive Order, and the National Water Commission in 1968--was
authorized in 1968 and completed its work in 1973, did some
excellent work. What we need to is rather than reinvent the
wheel, let us go back and take a look at what they recommended
and what works today and what doesn't work today.
Clearly our country has changed dramatically in the last 30
years. Our population has grown tremendously. Yet the number of
water supply structures that have been built, particularly in
the western United States, are few and far between, and you
can't expect the demands that are being put on our water supply
to continue to be met by the systems that were in place in the
1950's and 1960's. At some point in time we are going to have
to look at developing additional water supplies. That may be
through desalinization, which is starting to get to the point
where it is economically feasible. There are other
possibilities out there. That is the place to start.
Mr. Osborne. I yield back my time.
Mr. Calvert. Thank the gentleman.
Mr. Hayworth.
Mr. Hayworth. Chairman Calvert, thank you very much. For
purposes of full disclosure, to listen to my friend from
Nebraska and use the term ``independent arbiter,'' at least an
independent advisor for years since I have been involved in
public life, has been my good friend Bob Lynch, attorney at
law, in Phoenix.
Bob, we welcome you here today.
I apologize to all panelists for being late, and I thank my
friend from Georgia for his efforts in this regard. The gist of
what I am hearing here today in terms of long-term water
policy, a lot of work has been done, and a lot of work has been
ignored. And, Mr. Lynch, I am--given the fact that all these
matters are interrelated, it may seem a bit tangential to ask
this question, but I need to. Is your impression that the work
you did in the most recent effort that was delivered to the
Forest Service, was there hostility toward the product, or was
there just apathy? Did it just become part of a process and go
into a gaping hole of information or a repository that was
never consulted?
Mr. Lynch. Mr. Hayworth and Mr. Chairman, well, nobody shot
at me, but I would say to characterize it merely as apathy
would be incorrect. The Federal liaison to the Federal advisory
committee blurted out during one of our final sessions, well,
if we can't take the cattlemen's rights away from them, we will
not get the cattle out of the forest. And too often agencies
have agendas, and some of them may lay dormant for years or
even decades before they surface again.
I don't know what the current attitude of the senior
management of the Forest Service is now, but I have to tell
you, I was here a year ago today in front of this
Subcommittee--joint hearing with the forest Subcommittee, and
my testimony then was we have been ignored. To the best of my
knowledge, we are still being ignored, and ignored by the
Justice Department in their positions in Federal litigation
that is going on as we speak in the State of Wyoming and the
State of Washington.
I don't know. Hostility to me--I am sorry from my Marine
Corps background--it means someone is shooting at you. So
nobody is shooting at me that I know of.
Mr. Hayworth. Well, to use another infamous phrase from
previous government service, I guess, uttered by former Senator
Moynihan in a different role in the Nixon administration, it is
not benign neglect either. I mean, what you are telling me is
the essence of your testimony was that in the previous
administration you may not call it hostility, but there was a
different philosophy that permeated the mindset of many
involved that was not interested in information for the common
good, but to arrive at a foregone conclusion.
Mr. Lynch. Mr. Chairman, Mr. Hayworth, that is correct. It
wasn't only the Forest Service, it was also the Department of
Justice and the positions they were taking in ongoing
litigation, which I monitored, from Idaho, Colorado, Wyoming,
Washington, pushing limits of Federal law to assert new
theories about why Federal Government should control water
resources in our western basins. And in addition to
environmental laws, those barriers have existed and may still
exist.
Mr. Hayworth. And may be just the challenge of what, I
guess, political scientists have come to call bureaucratic
inertia and some of the challenges and personnel involved and
the outlook there as well.
Desalinization, Mr. Donnelly. It looks like what was once
an idea, we are back to the future, and that was an idea that
had great prevalence years ago, especially in our situation in
Arizona, and it appears again. You just mentioned it. Is that
illustrative, or do you think we can head in that direction?
Mr. Donnelly. I think it was an economic issue more than
anything. When I first started working in water resources, I
think the cost for an acrefoot of desal water was about $2,000
per acrefoot. That is cost-prohibitive almost anywhere. Now I
am told that the cost is approaching $600 an acrefoot. That is
starting to get competitive, particularly in southern
California and areas like that.
Mr. Hayworth. I thank you, sir, and thank all the panelists
and my good friend Bob Lynch.
And, Mr. Chairman, I thank you for your indulgence.
Mr. Calvert. One last comment. Mr. Linder had to go to
another appointment. I think you heard from him again about the
flexibility in working with all of you to fashion this
Commission. There is no other purpose other than trying to
improve the water supply in the country and trying to mitigate
for some of the crises that we have throughout the United
States today, not just in the West. But I found out since I
have been Chairman of this Committee we have water problems all
over the place, so it is a challenge.
So with that, I thank all of you for your testimony and
answering our questions and look forward to working with you in
the future.
And we are going to now recognize our last panel: Mike
Kurle, Manager of the West River/Lyman-Jones Rural Water
System, South Dakota; Frank Means, Councilman of the Oglala
Sioux Tribe, Chairman, Oglala Sioux Tribe Economic and Business
Development Committee.
STATEMENT OF MIKE KURLE, MANAGER, WEST RIVER/LYMAN-JONES RURAL
WATER SYSTEMS, INC., SOUTH DAKOTA
Mr. Kurle. Mr. Chairman, members of the Committee, my name
is Mike Kurle. I am the manager of West River/Lyman-Jones Rural
Water Systems, and I want to take this opportunity to thank you
for the opportunity to appear before you.
We did bring a prop with us to show you the area that the
Mni Wiconi project covers in South Dakota and give you some
idea of the immensity of this project. Shown on the map is
approximately 12,500 square miles that this project covers. It
takes up a major portion of western South Dakota. I am proud to
join you and my good friend Mr. Frank Means of the Oglala Sioux
Tribe in representing the Mni Wiconi sponsors.
Like the other sponsors, West River/Lyman-Jones is highly
supportive of H.R. 4638. It will provide the necessary funding
to complete the project and extend the completion date to 2008.
Before I turn my remarks to the discussion of the
infrastructure that H.R. 4638 will provide, I would like to
underscore the role that this project has played in changing
the history of western South Dakota and its social fabric. On
Saturday last we attended the grand opening of the water
treatment plant. Members of the Oglala, Rosebud and Lower Brule
Sioux Tribes joined members of West River/Lyman-Jones to
celebrate the start of the delivery of clean water from the
Missouri River. One of the Oglala speakers spoke eloquently of
the time in the late 1980's when Senator Malcolm Wallop held a
field hearing in the early stages of this project attended
primarily by non-Indian farmers and ranchers.
When the Oglalas heard about the project in the hearing,
the initial reaction was to oppose the project as a violation
of their 1868 treaty rights. The Oglala in-house counsel at
that time, Mr. Gonzalez, suggested to the tribal council that
the Oglalas also had deplorable drinking water situations in
common with the off-reservation farmers and ranchers, and that
this project was one in which we could all work together. This
was a historic event in the area of our diverse cultures.
Working together had previously been unheard of.
The relationship has become a model for South Dakota and
the other Western States. We work extremely well together and
are bringing a major improvement in the quality of life to this
region. One aspect of the improvement is drinking water. The
other aspect is the fact that we have developed a mutual
understanding and a mutual respect for each other's problems.
We now appreciate our respective capabilities skills and
cultural differences, and we are working together rather than
against each other.
Let me now turn to what it means to have good water in our
region. This area of South Dakota has water that even cattle
will not drink. Most of the rural members of West River/Lyman-
Jones rely on the cattle industry as their No. 1 economic
business. The project will not only permit them to use water in
their ranch headquarters, they will also permit as much as a
30-pound additional weight on the calves due to the quality of
the water. This would translate to 30 or $40 per calf at
weaning time, and it is a major economic improvement to South
Dakota, which supports about 180,000 head of cattle.
The communities of West River/Lyman-Jones also benefit from
improved water. The community of Philip, South Dakota, has the
worst water in the State of South Dakota and was under EPA
orders to take corrective action. With project funds we have
been able to construct a distribution system between the
communities of Wall and Philip, a distance of 35 miles. We will
deliver water from Wall until we have a completed Oglala core
line from the Missouri River. At that time, the pipeline we
have just constructed will deliver Missouri water to both
Philip and Wall.
Our communities along Interstate 90 rely on tourism. In the
past, motorists have taken rest stops for coffee and water east
of our service area or west because of our reputation for bad
water. This project is changing that. This fall the communities
of Reliance, Presho, Vivian, Draper and Murdo, all along
Interstate 90, will receive either the Oglala or Lower Brule
water from the Missouri River, and our reputation for good
water will begin to grow. Tourists will stop, our economy will
grow, and our children will have employment opportunities in
their hometown. The amendment to add 58 million to the project
ceiling is needed to complete valuable components to this
system that will serve West River/Lyman-Jones and the other
sponsors.
In closing, the support of the Committee for H.R. 4638 will
be greatly appreciated by all of us. Thank you, Mr. Chairman.
Mr. Calvert. Thank the gentleman.
Mr. Calvert. Mr. Means, you are recognized.
STATEMENT OF FRANK MEANS, COUNCILMAN, OGLALA SIOUX TRIBE,
CHAIRMAN, OGLALA SIOUX TRIBE ECONOMIC AND BUSINESS DEVELOPMENT
COMMITTEE
Mr. Means. Anpefu Wasbe Hau Kolapi. Good day. Hello,
friends. My name is Frank Means. I am the chairman of the
Economic and Business Development Committee of the Tribal
Council of the Oglala Sioux Tribe. I am representing John
Steele and the membership of my tribe. President Steele has
filed a formal written statement for the record that was
developed in cooperation with all sponsors. I am joining with
Mr. Mike Kurle, manager of West River/Lyman-Jones, to represent
the Mni Wiconi project sponsors. Those sponsors are the Oglala
Sioux Tribe, West River/Lyman-Jones, Rosebud Sioux Tribe, and
Lower Brule Sioux Tribe. The latter two sponsors have
contributed to the written testimony filed with the
Subcommittee and have joined us in the audience for this
hearing.
I thank the Chairman and the Subcommittee for giving this
matter attention and providing the opportunity for this
hearing.
H.R. 4638 is an extremely important bill for the Mni Wiconi
project. It adds $58.8 million to the project construction
ceiling, bringing the Federal share to 391 million. It also
extends the project completion date from 2003 to 2008.
I would like to bring to the Subcommittee's attention some
of the important points in the written testimony. First you
should know that this project has brought the Lakota people
together in western South Dakota together with non-Indian
farmers and ranchers in an endeavor for the common good of our
respective people. This is the most significant step toward a
better understanding amongst us since 1889. This was when the
Great Sioux Reservation created by the Treaty of 1868 was
divided into smaller reservations to make room for non-Indian
settlers. The Lakota leaders and membership have gained respect
for the people served by the West River/Lyman-Jones, and we
feel they have gained respect for our capabilities and desire
to improve the quality of life in this part of South Dakota. I
thank Mr. Kurle for his efforts in this respect.
The Subcommittee should also know that improvement in the
quality of life on Pine Ridge and other reservations of the
project is a necessity. On my reservation the per capita income
is the lowest in the Nation, less than $4,000 annually. A large
majority of the population falls below poverty level. This
poverty is reflected in the quality of our infrastructure and
opportunity for future economic development. Opportunities are
limited or nonexistent. This project is one of several building
blocks that must be placed before people can progress. It is an
essential building block.
In this building, in this city and across the Nation, most
can take for granted the availability of good water. This was
not the case on Pine Ridge until this project began and will
not be the case on Pine Ridge until this project is completed.
I can show you that most housing on Pine Ridge is well below
standard. I can also show you plastic containers of all types
around and inside those homes that are used to haul and store
water for drinking and cooking and bathing. This project is
changing that circumstance. Many people can now use the
plumbing in their homes to deliver safe and clean water.
The consequences of poverty and the historic absence of
safe water on Pine Ridge are deep. Water-related diseases have
been a significant problem, but impetigo, shigellosis,
hepatitis, gastroenteritis and others are not as prevalent as
our population is beginning to receive water from the project.
And there has not been a hepatitis outbreak since the project
was initiated on the reservation.
I am deeply concerned about other diseases associated with
poverty. Our staff has examined mortality rates for heart
disease, cancer and diabetes. These findings are deplorable. I
am informed that the discounted future health care costs for
these three prominent diseases will be .8 to 1.6 billion above
the cost typical of the population with normal incidence of
these diseases over the next 50 years. These are extra costs,
not total costs.
I relate these findings to inform the Subcommittee that
while the Mni Wiconi project cannot provide a full answer to
these diseases and the excessive Federal costs for health care
associated with these diseases, the Mni Wiconi project is a
step in the right direction. It will provide an essential
foundation for improved earnings and employment, which in turn
will lower the rate of incidence and mortality associated with
these diseases.
In closing, the support of the Subcommittee for H.R. 3468
will be greatly appreciated by all sponsors in this invaluable
project. Pilamaya. Thank you.
Mr. Calvert. Thank the gentleman.
Mr. Calvert. I think this is a good piece of legislation. I
read through the bill, and I think there is a considerable
amount of support for it, so I look forward to working with Mr.
Thune to mark this bill up as soon as possible and report it
out to the floor.
And with that, I recognize Mr. Thune.
Mr. Thune. I appreciate that very much, Mr. Chairman.
As the gentlemen have noted, this is a critically important
piece of legislation for South Dakota. The sponsors of this
project have worked extremely hard over a long period of time.
It is over 50 percent complete, and I can bear witness to the
fact, having grown up and lived a good part of my life in
western South Dakota, the water needs out there for healthy and
safe and reliable supply of drinking water is critically
important, and I appreciate your willingness to work with us,
the conversations that we have had about this previously, and
your recognition of the importance of this project. And I want
to thank the gentlemen for being here today and testifying to
it and giving us an update of where things stand, and to let
them know that we will work very, very hard to see that the
authorization makes its way through the Congress so we can
continue to do the important work that is necessary to get this
project across the finish line.
So thank you again for being here, and you, Mr. Chairman,
for giving us the opportunity to be present to hear this
testimony this afternoon.
Mr. Calvert. Again, I want to thank you, Mr. Thune, for
your leadership in this, and I have a schedule here from my
staff. I hope we will mark this bill on June 5. We will have it
hopefully reported to the floor as soon as possible thereafter
and get this bill completed and made into law, because it is a
good project. And I want to thank the witnesses for coming out
long distance from South Dakota, and we wish you well, and we
are adjourned.
[Whereupon, at 3:30 p.m., the Subcommittee was adjourned.]
[Information submitted for the record on H.R. 3561 by
Michael J. Brophy, Chairman, Western States Water Council
follows:]
Statement of Michael J. Brophy, Chairman, Western States Water Council
My name is Michael Brophy. I am Chairman of the Western States
Water Council (the Council). The Council is comprised of
representatives appointed by the governors of eighteen western states.
The Council has been charged with fostering interstate cooperation in
water resources and protecting vital state prerogatives with regard to
the management of water resources in the West. While necessarily
expressing personal views in my testimony, I will rely heavily on
positions of the Western States Water Council consistent with the
request by the Subcommittee. To this written testimony, I will also
append for the record positions of the Council for your reference.
The Subcommittee has invited testimony and statements regarding
H.R. 3561, the 21st Century Water Policy Commission Establishment
Act.'' I need to state in preface that the Council has no position
regarding this bill. However, this statement is provided to convey
matters pertinent to Congressional consideration of this bill. I
believe providing such a statement is particularly appropriate, because
states play the pivotal role in both water quantity allocation and
water quality protection in the West. Further, a recent response to a
similar commission as that proposed in H.R. 3561, the Western Water
Policy Review Advisory Commission, provides a context for my remarks.
I wish to commend the sponsors for their interest in water
resources and the purpose of the bill to help assure adequate supplies
for the future. This priority is underscored by the current extent of
drought in many areas of the Nation. Stream flows in much of the West
are expected to be well below normal. The bill's aim to better
coordinate the programs of various Federal agencies regarding water is
also laudable.
The Federal Government has claims to substantial amounts of water
in the West on its own behalf, given the extent of Federal land
ownership. These claims are most often presented within the context of
state general stream adjudications, where the water rights of all
claimants in a given stream system can be ascertained.
While virtually every western state needs additional supplies to
meet growing consumptive use demands, western states also recognize the
need for existing water infrastructure rehabilitation. Further, they
also recognize as a significant challenge, the need to sustain in
stream values generally, and specifically for maintaining and enhancing
water quality, and for protecting endangered species. The West is often
subject to wide swings in water supply. Thus, states identify drought
planning and response as a priority problem, and similarly flag flood
planning and response. Overlaying many of the above challenges are
legal and institutional conflicts facing western states, involving
Federal/state relationships, conflicts between states, and disputes
among water users, among others.
The Western Water Policy Review Advisory Commission was established
in 1996 to make recommendations to address these and a broad array of
related challenges affecting the West. Specifically, the Commission was
charged by the Congress to prepare a report to the President on
``Federal activities in the nineteen western states which directly and
indirectly affect the allocation and use of water resources.'' Given
this broad mandate and the potential import of the Commission's
undertaking, the Council spent considerable time in reviewing its work
products, including its final report.
The Council found the report's recommendations flawed in several
respects. I have attached a copy of the official position statement of
the Council in this regard for the Subcommittee members' reference. The
``governance recommendations,'' contemplating what we perceived as a
top down approach to water management, and its recommendations
pertaining to state water law and institutions, which advocated a
fundamental change in Federal deference to state water law, are
specifically addressed in the attached position.
In the process of working with the Commission, the Council was
asked by the Commission to provide its perspectives on directives given
to the Commission; namely, to (1) review present and anticipated water
resource problems affecting the nineteen western states; (2) review the
problems of rural communities relating to water supply, potable water
treatment, and wastewater treatment; (3) review the need and
opportunities for additional storage or other arrangements to augment
existing water supplies, including water conservation; (4) examine
institutional arrangements to address problems of water allocation,
water quality, planning, flood control, and other aspects of water
development and use; and (5) review the respective roles of both the
Federal Government and the states and examine Federal-state relations
regarding various aspects of water allocation and use.
I have enclosed a copy of the Executive Summary from the Council's
report. In summary, the report found that to meet the increasing
demands for water, several states are considering additional surface
reservoirs, which, for the most part, will be smaller in scale than the
large projects of the past, more innovative, environmentally sensitive,
and financed primarily from state and local resources. The reallocation
of water from existing uses to other uses will likely accelerate,
chiefly from agricultural uses to other uses, primarily municipal.
While states will often facilitate such transfers to meet specific
water supply and environmental challenges, in some cases they may
restrain market transfers, not only to protect third parties, but also
the public interest in general.
While recognizing the limits of water conservation in providing
``new'' water and additional caveats relating to the site-specific
impacts of water conservation measures, states are carefully
considering opportunities to ``stretch'' existing supplies of water
through more efficient use, reuse, and reservoir reoperation (prior to
the development of new storage facilities). States are further
exploring opportunities to cost-effectively manage ground water
recharge, recognizing it as a potentially significant storage
alternative, and some states are further pursuing the potential of
desalinization and weather modification to augment existing supplies.
As the emphasis on the importance of water conservation increases,
states are developing and adopting a number of programs to encourage
such measures as low water-use landscaping, and water rates that
encourage conservation in urban areas, and development of conservation
plans and incentives and leak detection programs in rural/agricultural
settings. The reuse of wastewater effluent is also increasing. Many
communities are currently reusing effluent for landscape and
agricultural irrigation. To facilitate a reallocation of existing uses
to augment supplies in areas of relative scarcity, some states have
established water banks, while others have adopted measures to
streamline the transfer process.
Western states have made innovations in their laws and institutions
in order to augment and protect instream flows and to incorporate
consideration of the public interest in their water right application
and transfer processes. States are also endeavoring to incorporate
innovations in their water quality programs, particularly regarding
non-point source pollution. States have adopted various measures to
deal with the problem of ground water depletion. States have also
strengthened their capacity to deal with floods and drought.
Innovations to improve information on water availability and use are
common.
States in the West have recognized and moved to enhance the
potential value of local watershed coordination initiatives. As
conflicts over water use intensify in an era of both increasing and
changing demands, states are also addressing the need to deal more
effectively with these disputes. For a variety of reasons, states are
also increasing their emphasis on maintaining and enhancing the
environment. These reasons include, but are not limited to, Federal
mandates such as the Endangered Species Act and the Clean Water Act.
This report thus underscores that states are taking initiatives to
address the water challenges that we face in this country. In a very
real way, these state efforts collectively represent a ``national''
water strategy. Nevertheless, the Federal Government's role is vital.
Given the diminishing Federal resources available to carry out the
requirements of these and other Federal acts, and the concurrent
increase in the state burden for environmental protection, states urge
that increased flexibility be given regarding their implementation, so
that states and others can tailor programs and prioritize resources to
meet real needs. Streamlining Federal permit processes is also
important. The Federal Government should encourage innovations, which
frequently involve market incentives and non-regulatory tools, as they
have often been found to work more effectively than top-down
regulation. The Council has, for example, urged flexibility in
implementing the Total Maximum Daily Load program under the Clean Water
Act. Further, the Federal Government continues to have an important
role with regard to disaster response and other mitigation associated
with droughts and floods. In this regard, there is now a bill before
the Congress to help the nation more effectively prepare for drought.
``The National Drought Preparedness Act of 2002'' was introduced on
May 16, 2002, by Rep. Hastings (D-FL) and Rehberg (R-MT). The bill
would establish a comprehensive national policy that statutorily
authorizes a lead Federal agency for drought, and delineates the roles
and responsibilities for coordinating and integrating Federal
assistance for droughts. The bill is intended to move the country away
from the costly, ad-hoc, response-oriented approach that characterizes
current Federal drought programs, and moves us instead toward a
proactive, preparedness approach. This is accomplished through the
authorization of the drought fund which would be available for the
development and implementation of drought preparedness plans at all
levels including the watershed, local, state, tribal and national. The
drought plans will not be mandated in a top-down manner, but rather
encouraged through incentives. The bill recognizes the importance of
allowing flexibility so that plans are developed to address local needs
and in a manner that is acceptable to the people affected by the plan.
There is another bill before the Congress which is also important
to western states. The Congress should address the inequity that now
results from exempting the Federal Government from paying any filing
fees or costs associated with state general adjudications. As
previously mentioned these adjudications establish the relative rights
of all parties within a water basin, including the considerable number
of claims by the Federal Government. The Federal Government should not
be exempt from paying its fair share of fees that provide necessary
funding to accomplish a purpose which is directly in their interest. I
have attached the Council's position which explains our support for a
remedy, now before the Congress in the form of S. 447.
There is also a significant need for the Federal Government to
maintain and rehabilitate its existing water storage infrastructure,
and to work with states and others in providing reliable water data. In
particular, as Congress considers the budget, we urge it to recognize
the serious need for adequate and consistent Federal funding to
maintain, restore, modernize, and provide for targeted expansion of
NWCC's SNOTEL System and Soil and Climate Analysis Network (SCAN), and
USGS's Cooperative Stream Gaging Program and National Stream
Information Program, with a primary focus on coordinated data
collection and dissemination. I have appended a position recently
adopted by the Council, together with a letter that was recently sent
explaining the western states' position in support of these programs.
Finally, I wish to reiterate the importance of the long-held
Congressional policy of deference to states regarding water management.
States are moving to address the challenges they face in water
resources. Federal preemption of state authority is not the way to
address the complex challenges associated with water management in the
West. Rather, what is necessary is encouraging partnerships between the
state and Federal agencies in the development and implementation of key
policies, supporting the pivotal role states must play in addressing
these challenges, and affording flexibility for ongoing innovation at
the state level in order to effectively carry out this role.
Thank you.
______
Statement of the Western States Water Council
Introduction
The Western States Water Council is an organization representing
eighteen states. Members are appointed by their respective governors to
address a broad range of water policy issues affecting the West. In
this context, the Council responded to the recommendations of the
Western Water Policy Review Advisory Commission (WWPRAC) in a letter
dated November 14, 1997. The Commission had been charged by the
Congress to prepare a report to the President on ``Federal activities
in the nineteen western states which directly and indirectly affect the
allocation and use of water resources....'' The Council understood the
difficulty of the task undertaken by the Commission and spent
considerable time itself in reviewing draft reports and
recommendations, as well as the Commission's final report. While
commending the Commission for the time spent and commitment made by the
Commission and its staff, the Council in its November 1997 letter
expressed concerns with several of the Commission's recommendations. At
the beginning of a new Congress and Federal Administration, the Council
wishes to reiterate the concerns expressed in its earlier letter in the
form of this position statement.
Governance
The Council takes issue with the Commission's primary
recommendations related to ``fundamental changes in institutional
structure and government process....'' incorporating top-down
approaches to water management by Federal river basin commissions,
which have been tried and failed in the past. Such an approach is the
antithesis of the local bottom-up watershed approaches to identifying
and solving water-related problems, which have gained favor and
momentum westwide. The report's overall reliance on Federal action and
authority contrasts with existing interstate compacts and the growing
recognition of the pivotal role states must play if we are to
successfully deal with the complex challenges we face in water
resources. In order to effectively carry out this role, flexibility and
innovation at the state level is necessary. This emerging model for
water governance moves away from Federal mandates and institutional
structures.
The final report states an intention to support such local
initiatives. However, the suggested use of Federal basinwide governance
pilot projects ignores the success of many innovative state and local
efforts undertaken without the need for Federal direction or Federal
leadership, and threatens further successes by the imposition of the
proposed governance structure.
Importantly, the final report fails to define the problem or
problems that require a Federal solution in the form of a Federal river
basin plan to be developed by a Federal river basin commission. Local
watershed councils or groups should be allowed to define and resolve
problems without forced Federal solutions as a condition of priority
Federal financial assistance and expedited regulatory action. While
enhanced Federal policy and budget coordination, as well as expedited
regulatory reviews and decisions, are commendable objectives, the
prospect for their attainment is dim. The proposal for Federally
created and operated top-down river basin commissions is unworkable and
unacceptable.
Conflicts with State Water Law and Institutions
The Council has serious concerns with other recommendations in the
report which either directly conflict with existing state water law and
policy, or fail to provide for adequate partnerships between the state
and Federal agencies on key policy issues. For example, while the
report states an intention to ``respect'' state water law, the report
also recommends changes in state management of ground water and
allocation of conserved water which are contrary to current state laws.
Recommendations relative to the review of authority and operations
of existing dams and hydroelectric facilities, would promote Federal
objectives without adequately addressing concomitant state interests.
Other recommendations would condition distribution of Federal funds
based solely on Federal policy considerations without adequate state
and stakeholder input. Such undertakings will require effective
partnerships between state and Federal agencies, as well as affected
stakeholders.
Summary
The Federal Government's preemption of state authority is not the
way to address the complex issues associated with western water
management. The report, if implemented, would move us in the wrong
direction, adversely affecting states' abilities to efficiently address
our water resource problems. The suggested Federal role would create
more problems than it would resolve. The recommendations regarding
state authority are placed in the context of the report's conclusions
that would undermine the long-established congressional policy of
deference to state water allocation law. The Western States Water
Council strongly opposes this and similar recommendations in the
report. More detailed comments on the report were provided by many of
our member states.
The Council invites reference to a published report prepared by it
for the Commission entitled, ``Water in the West Today: A States'
Perspective.'' This report was prepared by Council members and staff in
response to a request from the Commission. The report relates to
directives given to the Commission to: (1) review present and
anticipated water resource problems affecting the nineteen western
states; (2) review the problems of rural communities relating to water
supply, potable water treatment, and wastewater treatment; (3) review
the need and opportunities for additional storage or other arrangements
to augment existing water supplies, including water conservation; (4)
examine institutional arrangements to address problems of water
allocation, water quality, planning, flood control, and other aspects
of water development and use; and (5) review the respective roles of
both the Federal Government and the states and examine Federal-state
relations regarding various aspects of water allocation and use.
The Council's report (published by the Commission) is based on
responses elicited through a written request for information from the
Council's member states, as well as several subsequent telephone
conversations. Appendix I of the report contains the individual state
responses, which exemplify both the commonality and diversity of
challenges associated with the management of water resources in the
West. Appendix II contains relevant policy positions of the Council, as
well as the Western Governors' Association, with which the Council is
formally affiliated.
______
Water in the West Today
EXECUTIVE SUMMARY
PREFACE
The following represents an attempt to summarize some basic points
drawn from the report. These observations and conclusions do not
necessarily represent positions of the Western States Water Council, or
any of its member states. Rather, they consist of the author's view of
salient points drawn from state responses in order to provide a sense
of westwide perspectives. They are listed in relation to questions
posed to western states by the Western Water Policy Review Advisory
Commission, through the auspices of the Council. 1
---------------------------------------------------------------------------
\1\ The original questions posed to the states are abbreviated in
this report so as to clarify the state responses summarized herein and
to consolidate those portions of the responses relating to the Federal
role under section III.E.
---------------------------------------------------------------------------
SUMMARY OF STATE RESPONSES
1. Please identify and briefly describe significant present and
anticipated water problems in your state.
In the arid West, providing adequate water supplies to meet future
demands continues to be a priority. Despite the fact that the West
represents the most urbanized region in the country, western states are
especially cognizant of water needs of rural communities. Western
states also remain concerned about the claims being exerted by Indian
tribes to water resources and the potential of such claims to disrupt
existing rights in non-Indian communities, underscoring the
desirability of cooperative efforts with the tribes and their Federal
trustee in addressing tribal needs.
While virtually every western state identifies as an area of
concern the need for additional supplies to meet growing consumptive
use demands, they also recognize the need for existing water
infrastructure rehabilitation. Further, many of them also recognize as
a significant challenge the need to meet expanding environmental
demands to sustain instream values generally, for maintaining and
enhancing water quality, and for endangered species specifically.
The West is often subject to wide swings in water supply. Thus,
virtually an identical number of states identify drought planning and
response as a priority problem, as do those who similarly flag flood
planning and response. Overlaying many of the above challenges are
legal and institutional conflicts facing western states, involving
Federal/state relationships, conflicts between states, and disputes
among water users, among others.
2. Identify and briefly discuss problems of rural communities in your
state relating to water supply, potable water treatment, and
wastewater treatment. Please briefly describe any programs in
your state to provide assistance to rural communities relating
to water supply, potable water treatment, and/or wastewater
treatment.
Inadequate supplies of water for rural communities represent a
primary concern in the West, particularly in times of drought. The need
to augment water supplies for rural communities is magnified by the
requirements of the Federal Clean Water and Safe Drinking Water Acts.
There is an increased need for funding to achieve compliance with the
requirements of these laws and to address other problems of aging
public water systems. Several states are also concerned about the
adequacy of training for operators of water and wastewater treatment
facilities.
Just as the problems confronting western states regarding rural
communities are similar, western states have much in common regarding
programs to address those problems. They continue to provide financial
assistance for small water supply systems in the form of various loan
and grant programs. Western states also have programs to provide
assistance to rural communities facing environmental compliance
problems. In every state, direct financial assistance with the
development of drinking water and wastewater treatment systems comes
through state-administered programs under the Federal Safe Drinking
Water Act and the Clean Water Act. 2 Other state-
administered programs augment these resources. Programs to provide
technical assistance to rural communities relating to the operation and
management of water and wastewater treatment facilities are also
common. Notwithstanding these programs, there is a need for Federal
support to relieve the financial stress imposed on these communities by
Federal laws and regulations.
---------------------------------------------------------------------------
\2\ See related discussion on pp. 38 - 41.
---------------------------------------------------------------------------
3. Describe the need and opportunities for additional storage or other
arrangements to augment existing supplies including, but not
limited to, conservation.
To meet increasing demands, several states are considering
additional surface reservoirs, which, for the most part, will be
smaller in scale than the large projects of the past, more innovative,
environmentally sensitive, and financed primarily from state and local
resources. Reallocation from existing uses to other uses will likely
accelerate, chiefly from agricultural uses to other uses, primarily
municipal. While states will often facilitate such transfers to meet
specific water supply and environmental challenges, in some cases they
may restrain market transfers, not only to protect third parties, but
also the public interest in general.
While recognizing the limits of water conservation in providing
``new'' water and additional caveats relating to the site-specific
impacts of water conservation measures, states will carefully consider
opportunities to ``stretch'' existing supplies of water through water
conservation, reuse, and reservoir reoperation, prior to the
development of new storage facilities. States will further explore
opportunities to cost-effectively manage groundwater recharge,
recognizing it as a potentially significant storage alternative, and
some states will further pursue the potential of desalinization and
weather modification to augment existing supplies.
4. Please provide illustrations of significant innovations in water
management, water use, water law, or other areas related to
water in your state at the state, regional, or local level.
As the emphasis on the importance of water conservation increases,
states are developing and adopting a number of programs to encourage
such measures as low water-use landscaping, and water rates that
encourage conservation in urban areas, and development of conservation
plans and incentives and leak detection programs in rural/agricultural
settings. The reuse of wastewater effluent is also increasing. Many
communities are currently reusing effluent for landscape and
agricultural irrigation.
Desalting research, including construction of pilot facilities, is
exploring the potential for cost effective treatment. Weather
modification research is also progressing in various states. To
facilitate a reallocation of existing uses to augment supplies in areas
of relative scarcity, some states have established water banks, while
others have adopted measures to streamline the transfer process.
Several western states have made innovations in their laws and
institutions in order to augment and protect instream flows and to
incorporate consideration of the public interest in their water right
application and transfer processes. States are also endeavoring to
incorporate innovations in their water quality programs, particularly
regarding non-point source pollution.
States have adopted various measures to deal with the problem of
ground water depletion. States have also strengthened their capacity to
deal with floods and drought. Innovations to improve information on
water availability and use are common.
Several western states have recognized and moved to enhance the
potential value of local watershed coordination initiatives. As
conflicts over water use intensify in an era of both increasing and
changing demands, states are also addressing the need to deal more
effectively with these disputes.
5. Please discuss the manner in which Federal water-related programs
and activities affect your state and water uses within your
state, either positively or negatively. Provide examples where
possible. Also describe state laws and programs that are
effectively facilitating the accomplishment of Federal
statutory purposes.
For a variety of reasons, states are increasing their emphasis on
maintaining and enhancing the environment. These reasons include, but
are not limited to, Federal mandates such as the Endangered Species Act
and the Clean Water Act. Given the diminishing Federal resources
available to carry out the requirements of these and other acts, and
the concurrent increase in the state burden for environmental
protection, states urge that increased flexibility be given regarding
their implementation, so that states and others can tailor programs and
prioritize resources to meet real needs. Streamlining Federal permit
processes is also important. The Federal Government should encourage
innovations, such as those described in the state responses, which
frequently involve market incentives and non-regulatory tools, as they
have often been found to work more effectively than top-down
regulation.
Locally-driven watershed efforts have the potential to solve
complex water resource issues. The Federal Government has recognized
and acted on this potential, but must deal with the emerging
possibility for conflicting and counterproductive efforts among
agencies involved in such initiatives.
There is a significant need for the Federal Government to maintain
and rehabilitate its existing water storage infrastructure, and to work
with states and others in providing reliable water data. Further, the
Federal Government continues to have an important role with regard to
disaster response and other mitigation associated with droughts and
floods.
______
Resolution of the Western States Water Council
WHEREAS, water is the lifeblood of each of the arid Western States, the
allocation of which determines the future of each Western
State's economic, environmental, social and cultural fortunes;
and
WHEREAS, each Western State has developed comprehensive systems for the
appropriation, use and distribution of water tailored to its
unique physiographic, hydrologic and climatic conditions found
within that state;
WHEREAS, the United States does not have a water management system that
is equivalent to those of the Western States for the
appropriation, use or distribution of water; and
WHEREAS, Congress has consistently recognized the primacy of state
water law because of the need for comprehensive water
management systems tailored to the unique needs and
characteristics of the individual states; and
WHEREAS, Congress enacted the McCarran Amendment, 43 U.S.C. Sec. 666,
to allow the joinder of the United States in state general
stream adjudications, and Congress intended the United States
to be subject to the same procedures as all other water right
claimants joined in state general stream adjudications; and
WHEREAS, many of the Western States are conducting general stream
adjudications for the purpose of quantifying all water right
claims in accordance with the McCarran Amendment; and
WHEREAS, the United States is often the largest claimant of water
rights in these general stream adjudications, and the
adjudication of Federal water right claims requires a large
commitment of time, effort and resources by the state courts
and by state agencies; and
WHEREAS, the adjudication of water rights claims is absolutely
essential for the orderly allocation of water in all the
Western States where state law is based on the prior
appropriation doctrine; and
WHEREAS, many of the Western States' general stream adjudication
procedures require claimants to pay a fee to offset the states'
expenses arising from state general stream adjudications; and
WHEREAS, citing to United States v. Idaho the United states claims
immunity from the payment of adjudication filing fees required
of all other claimants to offset the state's judicial and
administrative expenses in conducting general stream
adjudications; and
WHEREAS, for the United States to be immune from sharing in the
expenses of these proceedings constitutes an unfunded Federal
mandate to the states; and
WHEREAS, the United States contends that it cannot be joined in state
administrative or judicial proceedings with respect to water
rights it has acquired under state law other than pursuant to
the McCarran Amendment, 43 U.S.C. Sec. 666; and
WHEREAS, it is inefficient and wasteful to require that a separate
lawsuit be commenced for the sole purpose of regulating water
rights acquired by the United States under state law; and
WHEREAS, the United States claims it is also immune from paying fees to
states that are required of all other water users for the
appropriation, use or distribution of water; and
WHEREAS, equity and fairness dictate that Federal agencies who
voluntarily seek to appropriate water pursuant to state law, or
who acquire water rights based on state law, should be required
to comply with state law, including the payment of fees, to the
same extent as all other persons.
NOW, THEREFORE, BE IT RESOLVED that the Western States Water Council
supports passage of legislation that at a minimum provides for
the following:
1. LRequires the Federal Government to participate in all state
administrative and judicial proceedings with respect to water rights it
acquires to the same extent as all other persons.
2. LRequires the Federal Government to pay filing fees (not Native
American tribes) as well as comply with all other state substantive and
procedural water right adjudication laws to the same extent as all
other persons.
3. LRequires the Federal Government to pay applicable fees as well
as comply with all other state substantive and procedural laws for the
appropriation, use and distribution of water rights to the same extent
as all other persons.
4. LProvides for state administration of all water rights.
BE IT FURTHER RESOLVED that the Western States Water Council also urges
Congress to appropriate moneys for payment of unpaid fees to
states that have incurred expenses as a result of processing
Federal claims or Federal objections to private claims in state
general stream adjudications.
BE IT FURTHER RESOLVED that the Western States Water Council shall send
a copy of this resolution to the congressional delegations
representing the states and territories who are members of the
Western States Water Council, to President George W. Bush, and
to the President Pro-Tem of the United States Senate and the
Speaker of the United States House of Representatives.
______
Position of the Western States Water Council
WHEREAS, the Western States Water Council is a policy advisory body
representing eighteen states, and has long been involved in
western water conservation, development, protection and
management issues, and our member states and political
subdivisions have long been partners in cooperative Federal
water and climate data collection and analysis program; and
WHEREAS, in the West, water is a critical, vital resource (much of
which originates from mountain snows) and sound decision making
demands accurate and timely data on precipitation, temperature,
soil moisture, snow depth, snow water content, streamflow, and
similar information; and
WHEREAS, the demands for water and related climate data continue to
increase along with our population and this information is used
by Federal, state, tribal and local government agencies and
private entities and individuals to forecast flooding and
drought, and project future water supplies for agricultural and
municipal and industrial uses, hydropower production,
recreation, and environmental purposes, such as fish and
wildlife management, including water for endangered species
needs; and
WHEREAS, without timely and accurate information, human life, health,
welfare, property and environmental and natural resources are
at considerably greater risk of loss; and
WHEREAS, critical, vital information is gathered and disseminated
through the Snow Survey and Water Supply Forecasting Program,
administered by the National Water and Climate Center (NWCC) in
Portland, Oregon and funded through USDA's Natural Resources
Conservation Service (NRCS), while equally essential data on
streamflows is gathered and disseminated through the U.S.
Geological Survey's Cooperative Streamgaging Program and
National Streamflow Information Program, which is funded
through the Department of Interior; and
WHEREAS, over a number of years, Federal appropriations have not kept
up with increasing program costs and/or matching non-Federal
contributions, and this erosion in funding has led or will lead
to the discontinuance, disrepair and obsolescence of a
significant number of manual snow courses, automated SNOTEL
(SNOwTELemetry) sites, and streamgages; and
WHEREAS, state-of-art technology has been developed to provide real or
near real-time data with the potential to vastly improve the
water-related information available to decision makers in
natural resources and emergency management, and thus better
protect the public safety, welfare and the environment; and
WHEREAS, there is a serious need for adequate and consistent Federal
funding to maintain, restore, modernize, and provide for
targeted expansion of NWCC's SNOTEL System and Soil and Climate
Analysis Network (SCAN), and USGS's Cooperative Streamgaging
Program and National Streamflow Information Program, with a
primary focus on coordinated data collection and dissemination.
NOW THEREFORE BE IT RESOLVED, that the Western States Water Council
urge the Administration and the Congress to give a high
priority to the allocation and appropriation of sufficient
funds for these critical, vital programs which benefit so many,
yet have been or are being allowed to erode to the point that
it threatens the quantity and quality of basic data provided to
a myriad, growing and diffuse number of decision makers and
stakeholders, with significantly adverse consequences.
______
Western States Water Council
April 2, 2002
The Honorable Joe Skeen, Chairman
Subcommittee on Interior and Related Agencies
Washington, DC 20515
Dear Mr. Chairman:
On behalf of the Western States Water Council, representing the
governors of eighteen states, I am writing to request your support for
placing a high priority on funding for U.S. Geological Survey (USGS)
streamgaging programs. The Administration's reduced request for the
National Streamgaging Information Program (NSIP) would eliminate
Federal funding for some 130 streamgages and likely result in the loss
of important data during a drought year. We would urge the Committee to
appropriate $14.3 million for NSIP, the same as in Fiscal Year 2002.
Under the Cooperative Water Program, a longstanding state/Federal
streamgaging partnership, our member states have worked closely with
the USGS. The Administration has asked for $64,339,000 for this
program, a $21,000 increase, but it is not enough to cover inflation
and other cost increases. Moreover, this was originally a 50%-50% fund-
matching program, but cooperator contributions (primarily state and
local government spending) have increased faster than available USGS
monies. In 2001, cooperators contributed $123.2 million or two-thirds
of the $185.9 million program cost. We would ask the Committee to add
$2 million to the President's request, for a total of $66.34 million,
to help better balance program funding.
Given the dire budget conditions in many states and the slow
erosion in the Cooperative Program spending, without these increases,
states may be forced to drop partnered gages, adding to the loss of the
NSIP streamgages. The result would be a significant loss of
increasingly vital basic water data that is critical to myriad
government agencies at all levels and other private entities that must
base decisions related to drought, water supply, flood warning, water
quality, energy production, recreation, fish and wildlife habitat
management and environmental protection on the best science available.
We believe that data collection and dissemination is the most important
element of the USGS water resources program. The highest priority
should be placed on maintaining and strengthening the existing USGS
streamgaging network, particularly the cooperative partnership with the
states.
Sincerely,
Michael J. Brophy, Chairman
Western States Water Council
______
[A statement submitted for the record on H.R. 4638 by John
Steele, President, Oglala Sioux Tribe, Pine Ridge Indian
Reservation, follows:]
Statement of John Steele, President, Oglala Sioux Tribe, Pine Ridge
Indian Reservation, South Dakota, on H.R. 4638
This testimony has been developed conjunctively and is offered on
behalf of the Oglala Sioux Tribe, West River/Lyman-Jones, Inc., the
Rosebud Sioux Tribe and the Lower Brule Sioux Tribe, the four
beneficiaries and sponsors of the Mni Wiconi Rural Water Supply System
in southwestern South Dakota. H.R. 4638, a re-authorization of the Mni
Wiconi Project, will increase project funding by $58.8 million (October
1997 dollars) and extend the completion of the project to 2008. The
sponsors, individually and collectively, support H.R. 4638 and seek
support from the Subcommittee.
Background
The Mni Wiconi Project Act of 1988 (Public Law 100-516) authorized
and directed the Secretary of the Interior to construct the Mni Wiconi
Rural Water Supply Project to provide a safe and adequate municipal,
rural, and industrial water supply to both Indian and non-Indian
residents of South Dakota. Initially, the Project included the Oglala
Sioux Rural Water Supply System (OSRWSS), the West River Rural Water
System, and the Lyman-Jones Rural Water System. In 1994, the West River
and the Lyman-Jones Systems were merged into one system, known as the
West River/Lyman-Jones Rural Water System. The Mni Wiconi Act
Amendments of 1994 (Public Law 103-434, Title 8) added the Rosebud
Sioux and the Lower Brule Sioux Rural Water Systems to serve the
respective reservations, thereby increasing the number of Project
``sponsors'' to four. The amendments also raised the authorized
appropriation ceiling for the Project from $87.5 to $263.2 million,
subject to cost indexing, and provided that the systems would generally
be constructed in accordance with the Project's Final Engineering
Report, dated May 1993.
The overall Project includes a water treatment plant, 4,500 miles
of pipeline, 60 booster pump stations, and 35 water storage reservoirs.
The Project will ultimately serve more than 52,000 people, including
more than 40,000 on the three Indian reservations.
Current Status of Construction and Funding
The following is the average Federal funding need to complete the
project in Fiscal Year 2008. Figure 1 shows the location of the project
and the current status of construction.
[GRAPHIC] [TIFF OMITTED] 79751.001
[GRAPHIC] [TIFF OMITTED] 79751.002
The Project has a total estimated cost (October 2000 dollars) of
$411 million according to the most recent master plan. Federal funding
requirements for the project are $391 million, including the $58.8
million proposed by H.R. 4638. The total amount spent from Federal
funds is $213.4 million, 54.56% of the total Federal requirement. Most
non-Federal funds for the project have already been expended. The
amount remaining in Federal funds to complete the project is $177.7
million, which will require an average annual appropriation through
Fiscal Year 2008 of $29.6 million (October 2001 dollars). If cost
indexing at 3% is taken into account between Fiscal Year 2002 and
Fiscal Year 2008, the average indexed funding requirement is $34.9
million annually.
The sponsors are extremely pleased to report to the Subcommittee
that the OSRWSS water treatment plant on the Missouri River near Fort
Pierre, South Dakota, is fully operational and will deliver treated
water on a sustained and dependable basis during Fiscal Year 2002 and
thereafter. By the end of the 2002 calendar year, large diameter OSRWSS
core pipelines (24 inch) will have been constructed from the water
treatment plant to Vivian and Murdo, a distance of over 100 miles. The
completion of these critical segments of the core pipeline will permits
the Lower
Brule Sioux Tribe to interconnect at Vivian and allow the immediate
delivery of water to large areas of West River/Lyman-Jones. Over a
period of several years, Lower Brule will complete its core system into
the Reservation. The Rosebud Sioux Tribe and other parts of West River/
Lyman-Jones will interconnect at Murdo, allowing over 50% of the design
population have access to Missouri River water from the OSRWSS core
pipelines at the 2002 level of completion.
The project now has the most significant project components
completed and can conclude the project in a timely manner given the
amendment of the project ceiling as proposed by H.R. 4638 and adequate
appropriations in fiscal years 2003 through 2008. The degree of poverty
and need to improve the drinking water in the sponsors' areas are set
forth in greater detail in the next section of this statement. The
statistics underscore the importance of this project and the necessity
for a timely completion.
Attention is directed to the fact that the Pine Ridge Indian
Reservation and the western portion of the West River/Lyman-Jones
service areas are the furthest from the water treatment plant on the
Missouri River. These areas will be served last, and it is crucial that
the project is funded adequately and timely over the next six years to
serve the remaining 50% of the project design population (Figure 1).
Unique Needs of This Project
This project covers much of the area of western South Dakota that
was formerly the Great Sioux Reservation established by the Treaty of
1868. Since the separation of the Reservation in 1889 into smaller,
more isolated reservations, including Pine Ridge, Rosebud and Lower
Brule, tensions between the Indian population and the non-Indian
settlers on former Great Sioux lands has been high with little easing
by successive generations. The Mni Wiconi Project is perhaps the most
significant opportunity in more than a century to bring the sharply
diverse cultures of the two societies together for a common good. Much
progress has been made due to the good faith and genuine efforts of
both the Indian and non-Indian sponsors. The project is an historic
basis for renewed hope, dignity and improvement in quality of life
among the Indian people. It has been a basis for substantive
improvement in relationships.
The project beneficiaries, particularly the three Indian
Reservations, have the lowest income levels in the Nation. The health
risks to the Indian people from drinking unsafe water are compounded by
reductions in health programs. It is respectfully submitted that the
project is unique and that no other project in the Nation has greater
human needs. Poverty in the Indian service areas is consistently deeper
than elsewhere in the Nation. Health effects of water borne diseases
are consistently more prevalent than elsewhere in the Nation, due in
part to (1) lack of adequate water in the home and (2) poor water
quality where water is available. Higher incidences of impetigo,
gastroenteritis, shigellosis, scabies and hepatitis-A are well
documented on the Indian reservations of the Mni Wiconi Project area
although improvements have been noted since the initial delivery of
good water beginning in 1994. At the beginning of the third millennium
one cannot find a region in our Nation in which social and economic
conditions are as deplorable. These circumstances are summarized in
Table 1. Mni Wiconi builds the dignity of many, not only through
improvement of drinking water, but also through direct employment and
increased earnings during planning, construction, operation and
maintenance and from economic enterprises supplied with project water.
The Subcommittee is urged to consider the need for creating jobs and
improving the quality of life on the Pine Ridge, Lower Brule and
Rosebud Indian Reservations of the project area.
[GRAPHIC] [TIFF OMITTED] 79751.003
Employment and earnings among the Indian people of the project area
are expected to positively impact the high costs of health-care borne
by the United States and the Tribes. OSRWSS data suggest clear
relationships between income levels and Federal costs for heart
disease, cancer and diabetes.
It is believed that the Subcommittee will share the shock of the
sponsors with respect to future health care costs associated with
poverty and the extremely high mortality rates of Indian people in the
Great Plains. OSRWSS has found that an extra $0.8 to $1.6 billion
(present value of 50 years of future health-care) will be required for
each 24,000 members of the Indian population in the Mni Wiconi Project
(relative to the non-Indian population). This is not total costs of
health care, it is the extra cost of health care. A task force to
thoroughly study this matter with the objective of taking corrective
action is needed.
The Oglala Sioux Rural Water Supply System is a part of the
solution to lower incidence of these diseases. It brings much needed
employment, which, in turn, engages part of our unemployed and brings
about some measurable improvement in the health of the Lakota Nation.
It will help reduce Federal health-care costs and, most of all, the
tragedy in the families affected. Support for the additional funds
needed for completion of the project and acceleration of the Project in
the Administration's budget will be invaluable.
Financial support for the Indian membership has already been
subjected to drastic cuts in funding programs through the Bureau of
Indian Affairs. This project is a source of strong hope that helps
offset the loss of employment and income in other programs and provide
for an improvement in health and welfare. Welfare Reform legislation
and other budget cuts nation-wide have created a crisis for tribal
government by forcing tribal members back to the reservations simply to
survive. Recent Census Bureau data indicate that the population of
Shannon County (Pine Ridge Indian Reservation) increased over 24%
between 1990 and 2000. The populations of the Rosebud and Lower Brule
Indian Reservations have also continued to grow. Economic conditions
have clearly resulted in accelerated population growth on the
reservations. The Mni Wiconi Project Act declares that the United
States will work with us under the circumstances:
...the United States has a trust responsibility to ensure that
adequate and safe water supplies are available to meet the
economic, environmental, water supply and public health needs
of the Pine Ridge, Rosebud and Lower Brule Indian
Reservations...
Indian support for this project has not come easily because the
historical experience of broken commitments to the Indian people by the
Federal Government is difficult to overcome. The argument was that
there is no reason to trust and that the Sioux Tribes are being used to
build the non-Indian segments of the project: that the Indian segments
will linger uncompleted. This argument has been overcome by better
planning, an amended authorization and solid agreements and
relationships among the parties. The Subcommittee is respectfully
requested to take cognizance of the need to complete the project to
maintain the faith of the Indian people.
The Mni Wiconi sponsors have worked especially hard to implement
cost controls and to minimize the increase in the authorization
required to finish this valuable project. There has been every effort
to comply with cost reduction measures, and the sponsors trust that
others will find that actions and decisions have been genuine,
comprehensive and effective.
Components of Additional Cost
Before fully reviewing the components of the increase of $58.8
million in the project ceiling, the sponsors are in complete agreement
that the Bureau of Reclamation has worked with us in a thoroughly
cooperative and effective manner throughout the project. In preparation
of the cost estimates for H.R. 4638, the Bureau of Reclamation worked
closely with the sponsors. Agreement was reached on the causes of the
cost increases, the steps to be taken to control and limit future
costs, and on reconfiguration of the OSRWSS core system. Table 2
summarizes the factors requiring amendment of the project ceiling and
the amounts of additional costs.
[GRAPHIC] [TIFF OMITTED] 79751.004
Factors contributing to increases in cost include items not
originally contemplated in the Final Engineering Report (FER) upon
which the project costs were based. These include extension of the
project completion date from 2003 to 2008 and the associated costs of
administration. Operation and maintenance buildings were required that
were not originally included in the project costs. Moreover, facilities
were approved and constructed that were not part of the original plan
formulation, but were subsequently determined necessary due to change
in circumstances.
Bid prices, particularly on the OSRWSS core and distribution system
on the Pine Ridge Indian Reservation, were received at higher prices
than contemplated in the FER. The Reservation is the most remote area
in the project, the number of bids received was generally low (whether
for the OSRWSS core or distribution system) and bid prices by
contractors reflected a higher level of risk. Moreover, criteria used
in common by all sponsors for estimating minor construction items, did
not adequately reflect the requirements for the OSRWSS core (Table 2).
OSRWSS and the other sponsors agreed to a reconfiguration of the
OSRWSS core that resulted in an estimated savings of $5.5 million.
Federal procurement processes were improved but have less impact on
savings than the reconfiguration of the OSRWSS core. The total costs of
$57.8 million in Table 2 were later adjusted to the $58.8 million in
H.R. 4638.
It is important to review of the project design criteria based on
the 1990 Census of Population in the FER and the subsequent population
count by the Bureau of Census for 2000. A factor in the cost of
additional construction on the Pine Ridge Indian Reservation was an
accelerated growth rate. Population on Pine Ridge has grown at an
estimated annual rate of 2.18% as contrasted with the design rate of
growth of 1.65%, an increase of 32% in the growth rate. By year 2020,
little more than a decade after project completion, the design
population on Pine Ridge will have reached 24,560 persons, 17% greater
than the 21,000 persons projected in the FER by the same date. Stated
differently, if current growth rates are sustained, the design
capacities for Pine Ridge will be exceeded in years 2011 and 2012,
respectively, 3 to 4 years after the scheduled completion of
construction. The population of other service areas is growing but more
in accord with original projections. The increase in population on Pine
Ridge is believed to stem in large part from the availability of a new
source of safe and adequate water as well as new opportunities for
earnings and employment associated with the project.
On each of the Indian Reservations in the project: Pine Ridge,
Rosebud and Lower Brule, population estimates prepared by the Bureau of
Indian Affairs argue for higher population than estimated by the Bureau
of Census. Therefore, numbers of persons residing on the reservations
may significantly exceed the numbers presented here, and the ability of
the project to serve a future population may be more important than
currently found.
Reconfiguration, as agreed-upon by the sponsors and the Bureau of
Reclamation, provides for a northern and southern pipeline in the
OSRWSS core with pipe sizes meeting FER design requirements but with
some excess capacity for the following reasons: (1) along the northern
route, a pipe size between 10'' and 12'' is required between the water
treatment plant and Philip Junction, and 12 inches would be provided;
and (2) along the southern route, a pipeline between 20'' and 24''
would be required from the water treatment plant to Murdo, and 24''
would be provided. The Oglala Sioux Tribe needs a core transmission
system with capability to deliver water through the southern and
northern OSRWSS core as defined in the FER. Reconfiguration supports
the projections of project population based on the 2000 Census.
Sicangu Mni Wiconi (Rosebud Indian Reservation)
The Sicangu Mni Wiconi- Rosebud Sioux Rural Water System was not
included in the original Mni Wiconi Act. Nine years ago an amendment
was introduced to add Rosebud and Lower Brule to the Project and make
other modifications to the legislation. That amendment, enacted as part
of P.L. 103-434, and the amendment introduced this year illustrates the
commitment of the project sponsors, the Congress and Administration to
improving the quality of life for thousands of South Dakotans on three
Indian Reservations and beyond.
While much of the population of the project area still endures with
some of the poorest water quality and lowest income levels in the
Nation, Mni Wiconi has made a big difference to the lives of many. In
1997 and 1998 the Rosebud Sioux Tribe worked with West River/Lyman-
Jones to bring high quality water to Horse Creek, Swift Bear and White
River. Indians and non-Indians alike now have a reliable source of high
quality water and schools in White River no longer have to close
because of a lack of water. Other success stories abound in the area
served by the Mni Wiconi.
For Rosebud the present amendment is needed primarily to extend the
sunset date and address facilities not contemplated in the FER. For
other project sponsors the amendment is more critical. The amendment is
needed to construct the reservation distribution system for Lower Brule
and the north loop of OSRWSS. These facilities are needed to meet
critical needs at Lower Brule and in the WR/LJ service areas. On behalf
of the thousands of people who have yet to benefit from Mni Wiconi and
who will not benefit without passage of this amendment, the Rosebud
Sioux Tribe seeks your support. It is also urged that the Subcommittee
bear in mind that legislation is seldom complete and perfect and one
cannot rule out additional modifications that may be needed to meet our
objective of providing equal benefits to all of the Sicangu Oyate in
our Primary and Secondary Service Areas.
Lower Brule
The Lower Brule Rural Water System has demonstrated its ability to
manage and maintain their portion of the project with the tremendous
amount of progress accomplished over the last few years. A state-of-
the-art microfiltration water treatment plant was constructed and
placed into operation in December 1999. The completion of this plant
has not only benefited the users of the LBRWS but also allowed the
provision of high quality water to a significant number of users of the
West River/Lyman Jones (WR/LJ) Rural Water System from Oacoma to
Draper.
The provision of water to WR/LJ RWS and its users has been a very
rewarding experience. The cooperation and communication between the two
systems, especially the operation and maintenance personnel, has been
exceptional and has thus led to the successful delivery of high quality
water to users on both systems. As a result, much of the apprehension
that was felt prior to this supply of water has turned to praise.
LBRWS has committed current funding for the construction of the
last segment of LBRWS core pipeline between Kennebec and Reliance
during the 2002 construction season. This will result in the core
pipeline from Vivian to Reliance serving WR/LJ service areas along the
pipeline and the cities of Vivian, Presho and Kennebec.
The inclusion of Lower Brule in the Mni Wiconi Project occurred
late in the process. Consequently, facilities and associated cost in
the Final Engineering Report for Lower Brule were not nor could not be
based on a thorough evaluation of the required facilities for Lower
Brule's portion of the project. Upon initiation of the project, LBRWS
quickly realized that the original estimated cost was severely
underestimated. This need for additional funds was also confirmed in
the Bureau of Reclamation's Cost Containment Report and the OIG Audit.
The major items affecting the cost increase for Lower Brule are the
pipe sizes and unit costs for the core pipeline; pipe sizes, quantities
(The current total footage includes 510,200 feet for pasture taps. Much
of this quantity may not have been in the FER cost estimate) and unit
costs for the distribution system; there is a decrease in the estimated
cost of pump stations; costs for reservoirs are substantially higher;
and the costs the water treatment plant and administration building
were not included in the FER.
Another factor affecting Lower Brule's cost was the initial
distribution of the appropriated funds. During the first years the
project received funds, the funds were distributed based on a
percentage of the sponsors' overall portion of the project. As such,
the amount of money received by Lower Brule on a yearly basis
($500,000-$700,000) was not sufficient to fund a worthwhile segment of
the project. The funds needed to be accumulated over a period of years.
This not only affected construction costs but also significantly
increased the cost of administration as a percentage of the
construction costs.
Primarily, as a result of the underestimated cost in the FER, the
LBRWS has received the extent of the funding designated for its portion
of the project with the receipt of the 2001 funds. The LBRWS with the
support of the other sponsors is proceeding with the optimism that the
amendment will be approved in a time frame that will not impact the
progress currently being made. To that extent, LBRWS has received
$1,450,000 in Fiscal Year 2002 funds for the Kennebec to Reliance
segment of core pipeline and is requesting $3,091,000 in Fiscal Year
2003 funds for the Fort Hale, Medicine Butte North and Kennebec North -
Medicine Creek distribution systems. This will be the initiation of the
on-Reservation distribution system and thereby provide service to on-
Reservation users.
If the amendment is not passed, the continued support of the other
sponsors to designate funds for Lower Brule's portion cannot be
expected. Therefore, it is crucial to the continued success of Lower
Brule and the Mni Wiconi Project as a whole that the proposed amendment
is passed.
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