    [House Hearing, 110 Congress]
    [From the U.S. Government Publishing Office]

       H.R. 1462, THE PLATTE RIVER RECOVERY IMPLEMENTATION PROGRAM AND
                   PATHFINDER MODIFICATION AUTHORIZATION ACT

    =======================================================================

                              LEGISLATIVE HEARING

                                   before the

                        SUBCOMMITTEE ON WATER AND POWER

                                     of the

                         COMMITTEE ON NATURAL RESOURCES
                         U.S. HOUSE OF REPRESENTATIVES

                           ONE HUNDRED TENTH CONGRESS

                                 FIRST SESSION

                                   __________

                            Thursday, April 26, 2007

                                   __________

                               Serial No. 110-20

                                   __________

           Printed for the use of the Committee on Natural Resources

      Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                                   index.html
                                       or
             Committee address: http://resourcescommittee.house.gov

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                         COMMITTEE ON NATURAL RESOURCES

                   NICK J. RAHALL II, West Virginia, Chairman
                  DON YOUNG, Alaska, Ranking Republican Member

    Dale E. Kildee, Michigan             Jim Saxton, New Jersey
    Eni F.H. Faleomavaega, American      Elton Gallegly, California
        Samoa                            John J. Duncan, Jr., Tennessee
    Neil Abercrombie, Hawaii             Wayne T. Gilchrest, Maryland
    Solomon P. Ortiz, Texas              Ken Calvert, California
    Frank Pallone, Jr., New Jersey       Chris Cannon, Utah
    Donna M. Christensen, Virgin         Thomas G. Tancredo, Colorado
        Islands                          Jeff Flake, Arizona
    Grace F. Napolitano, California      Stevan Pearce, New Mexico
    Rush D. Holt, New Jersey             Henry E. Brown, Jr., South
    Raul M. Grijalva, Arizona                Carolina
    Madeleine Z. Bordallo, Guam          Luis G. Fortuno, Puerto Rico
    Jim Costa, California                Cathy McMorris Rodgers, Washington
    Dan Boren, Oklahoma                  Bobby Jindal, Louisiana
    John P. Sarbanes, Maryland           Louie Gohmert, Texas
    George Miller, California            Tom Cole, Oklahoma
    Edward J. Markey, Massachusetts      Rob Bishop, Utah
    Peter A. DeFazio, Oregon             Bill Shuster, Pennsylvania
    Maurice D. Hinchey, New York         Dean Heller, Nevada
    Patrick J. Kennedy, Rhode Island     Bill Sali, Idaho
    Ron Kind, Wisconsin                  Doug Lamborn, Colorado
    Lois Capps, California               Vacancy
    Jay Inslee, Washington
    Mark Udall, Colorado
    Joe Baca, California
    Hilda L. Solis, California
    Stephanie Herseth Sandlin, South
        Dakota
    Heath Shuler, North Carolina

                         James H. Zoia, Chief of Staff
                       Jeffrey P. Petrich, Chief Counsel
                     Lloyd Jones, Republican Staff Director
                     Lisa Pittman, Republican Chief Counsel
                                     ------

                        SUBCOMMITTEE ON WATER AND POWER

                  GRACE F. NAPOLITANO, California, Chairwoman
         CATHY McMORRIS RODGERS, Washington, Ranking Republican Member

    Jim Costa, California                Ken Calvert, California
    George Miller, California            Dean Heller, Nevada
    Mark Udall, Colorado                 Doug Lamborn, Colorado
    Joe Baca, California                 Don Young, Alaska, ex officio
    Vacancy
    Nick J. Rahall II, West Virginia,
        ex officio
                                     ------
                                    CONTENTS

                                  ----------
                                                                       Page

    Hearing held on Thursday, April 26, 2007.........................     1

    Statement of Members:
        Napolitano, Hon. Grace F., a Representative in Congress from
          the State of California....................................     1
            Prepared statement of....................................     2
        Rodgers, Hon. Cathy McMorris, a Representative in Congress
          from the State of Washington...............................     2
            Prepared statement of....................................     3
        Smith, Hon. Adrian, a Representative in Congress from the
          State of Nebraska..........................................     4
        Udall, Hon. Mark, a Representative in Congress from the State
          of Colorado................................................     5
            Prepared statement of....................................     6

    Statement of Witnesses:
        Berryman, Alan, Assistant General Manager, Northern Colorado
          Water Conservancy District, Berthoud, Colorado.............    18
            Prepared statement of....................................    19
            Response to questions submitted for the record...........    21
        Bleed, Ann, Director, Nebraska Department of Natural
          Resources, Lincoln, Nebraska...............................    22
            Prepared statement of....................................    23
            Response to questions submitted for the record...........    24
        Kowalski, Ted, Program Manager, Colorado Water Conservation
          Board, Denver, Colorado....................................    27
            Prepared statement of....................................    29
            Response to questions submitted for the record...........    30
        Luecke, Daniel, Platte River Issues Consultant to the
          National Wildlife Federation, Boulder, Colorado............    31
            Prepared statement of....................................    32
            Response to questions submitted for the record...........    33
        Peltier, Jason, Deputy Assistant Secretary for Water and
          Science, Bureau of Reclamation, Washington, D.C............     7
            Prepared statement of....................................     8
            Response to questions submitted for the record...........     9
        Purcell, Mike, Director, Wyoming Water Development
          Commission, and Chairman of the Governance Committee,
          Platte River Recovery Implementation Program, Cheyenne,
          Wyoming....................................................    35
            Prepared statement of....................................    37
            Response to questions submitted for the record...........    40

    Additional materials supplied:
        List of documents submitted for the record and retained in
          the Committee's official files.............................     4

         LEGISLATIVE HEARING ON ``H.R. 1462, THE PLATTE RIVER RECOVERY
     IMPLEMENTATION PROGRAM AND PATHFINDER MODIFICATION AUTHORIZATION ACT''

                                  ----------

                            Thursday, April 26, 2007

                         U.S. House of Representatives

                        Subcommittee on Water and Power

                         Committee on Natural Resources

                                Washington, D.C.

                                  ----------

        The Subcommittee met, pursuant to call, at 2:00 p.m. in
    Room 1324, Longworth House Office Building, Hon. Grace F.
    Napolitano [Chairwoman of the Subcommittee] presiding.
        Present: Representatives Napolitano, McMorris Rodgers,
    Udall, Baca and Lamborn.
        Mrs. Napolitano. This meeting of the Subcommittee on Water
    and Power will come to order. My Ranking Member is on her way,
    so she will join us momentarily.
        The purpose of this meeting of the Subcommittee is to hold
    a legislative hearing on H.R. 1462, the Platte River Recovery
    Implementation Program and Pathfinder Modification
    Authorization Act introduced by my friend and member of the
    Subcommittee, Representative Mark Udall of Colorado's 2nd
    District.
        I am also pleased to welcome my Members as they walk in and
    take their seats, our colleagues on the Subcommittee, and ask
    unanimous consent that Congressman Adrian Smith be allowed to
    sit with the Subcommittee this afternoon and to participate in
    the Subcommittee proceedings.
        Mrs. Napolitano. Without objection, so ordered.
        I will begin the hearing with my brief statement, after
    which I will recognize my Ranking Member of the Subcommittee
    for any statement she may have. Any additional material may be
    submitted for the record, which will remain open for 10 days.

           STATEMENT OF THE HONORABLE GRACE F. NAPOLITANO, A
        REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

        Mrs. Napolitano. The legislation before us today represents
    a decade of work reaching a cooperative agreement to restore
    habitat for a number of threatened and endangered species.
    Congratulations to all the parties for your hard work and for
    your determination that it could work for all involved.
        The endangered species issues on the Central Platte River
    are in large part the result and due to almost a century of
    operation by the Bureau of Reclamation's Platte River Project
    in Wyoming, Colorado and Nebraska.
        H.R. 1462 implements a proactive and sensible solution for
    three states, for the Federal government, for the water users
    and for the environmental groups, all of whom have worked
    together diligently to restore flows and habitat for these
    species. This legislation lends further credibility to the idea
    that irrigation and restoration can occur together.
        I trust we have identified a solution that will allow
    continued agricultural production while enhancing and bringing
    new economic benefits arising from tourism to your restored
    river. This program has the potential to add new economic
    benefits to the local communities as a direct result of
    restoration.
        A warm welcome to our witnesses. I look forward to your
    testimony.
        And now I yield to my friend from Spokane, the Ranking
    Minority Member of the Subcommittee, Congresswoman Cathy
    McMorris Rodgers, for her statement.
        [The prepared statement of Mrs. Napolitano follows:]

       Statement of The Honorable Grace Napolitano, a Representative in
                     Congress from the State of California

        The legislation before us today represents a decade of work,
    reaching a cooperative agreement to restore habitat for a number of
    threatened and endangered species. I would like to congratulate the
    parties involved for their hard work on this.
        The endangered species issues on the central Platte River are in
    large part the result of almost a century of operation by the Bureau of
    Reclamation's Platte River Project in Wyoming, Colorado, and Nebraska.
    H.R. 1462 will implement a proactive and sensible solution from three
    states, the Federal government, water users and environmental groups,
    all of whom have worked hard to restore flows and habitat for these
    species.
        This legislation lends credibility to the idea that irrigation and
    restoration can occur together. I hope that we have found a solution
    that will allow continued agricultural production while enhancing and
    bringing new economic benefits arising from tourism to a restored
    river. This program has the potential to add countless tourism dollars
    to local economies as a direct result of restoration.
        I welcome our witnesses this afternoon, and I look forward to the
    testimony.
                                     ______

         STATEMENT OF THE HONORABLE CATHY MCMORRIS RODGERS, A
        REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON

        Mrs. McMorris Rodgers. Thank you, Madam Chairman. I thank
    you for having the hearing. It is great to be here today as we
    discuss a familiar topic in this Subcommittee, the Endangered
    Species Act, and how it impacts western water and power
    supplies.
        As many of you know, my home region of the Pacific
    Northwest is full of ESA conflicts that create massive
    uncertainty for our farmers and ranchers, our communities and
    even the future of our fish populations.
        As we have witnessed time and again in the west, the ESA
    has become the source of much litigation rather than actual
    species recovery. Because the ESA was so broadly drafted, the
    details have been filled in by the courts so often. I don't
    think that that was anyone's intent in 1973, and that is why,
    in my opinion, the ESA needs to be improved.
        Uncertainty is why we are here today. Communities in the
    Platte River Valley have experienced many jeopardy opinions,
    much legal wrangling and a 15-year dam relicensing nightmare,
    all of which has left a legacy of an uncertain future for a
    growing region. Meanwhile, actions to protect four endangered
    species have been piecemeal. Wyoming's Governor put it best.
    There are no good choices in this area.
        To the credit of those involved, they recognize they
    couldn't let the perfect be the enemy of the good. They came
    together, and we have a product before us today. It is by no
    means the perfect solution, nor is it the worst, but it is a
    meaningful step based upon decades of negotiation.
        This bill is an example of people talking and listening in
    good faith. Not every region has the ability to come together
    and work in a collaborative fashion like this, and the ESA
    often doesn't help. This law fosters conflict and stalemates
    instead of resolution and action, which is why I think it needs
    to be changed, but I commend everyone here today for working
    together to benefit your region in the face of a flawed law.
        There are still many unanswered questions about the bill,
    and that is why we are having the hearing. I welcome everyone
    to the hearing and welcome the witnesses. Thank you for being
    here. I look forward to working with you on this bill.
        [The prepared statement of Mrs. McMorris Rodgers follows:]

              Statement of The Honorable Cathy McMorris Rodgers,
                Ranking Member, Subcommittee on Water and Power

        Today, we will discuss a familiar topic in this Subcommittee: the
    Endangered Species Act and how it impacts western water and power
    supplies. As many of you know, my home region of the Pacific Northwest
    is full of ESA conflicts that create massive uncertainty for our
    farmers and ranchers, our communities and even the future of our fish
    populations. Nothing or nobody wins, but the lawyers.
        As we have witnessed time and again in the West, the ESA has become
    the source of much litigation rather than actual species recovery.
    Because the ESA was so broadly drafted, the details have been filled in
    by the courts and the bureaucrats. I don't think that was anyone's
    intent in 1973 and that's why the overall ESA needs to be improved.
        Uncertainty is why we are here today. Communities in the Platte
    River Valley have experienced many jeopardy opinions, much legal
    wrangling and a 15-year dam relicensing nightmare--all of which has
    left the legacy of an uncertain future for a growing region. Meanwhile,
    actions to protect four endangered species have been piecemeal.
    Wyoming's Governor put it best when he said ``there are no good choices
    in this area.''
        To the credit of those involved, different factions came together
    and we have the product before us today. It is by no means the perfect
    solution nor is it the worst, but it's a meaningful step based upon
    decades of negotiation. This bill is an example of people talking and
    listening in good faith.
        Not every region has the ability to come together and work in a
    collaborative fashion like this and the ESA doesn't help. This law
    fosters conflict and stalemates instead of bringing about resolution
    and action. That's why I want to change the underlying law--but I
    commend everyone here today for working together to benefit your region
    in the face of a flawed law.
        There are still many unanswered questions about this bill and
    that's why we're having this hearing. I welcome Members of the
    Subcommittee and the witnesses for being here and look forward to
    working with you on this bill.
                                     ______

        Mrs. Napolitano. Thank you, ma'am.
        For the record, to be introduced into the record rather,
    there will be letters from the Central Nebraska Public Power
    and Irrigation District, the City of Aurora, Colorado,
    Centennial Water and Sanitation District, from Denver Water,
    from the City of Lakewood, Colorado, from the City of Loveland,
    Colorado, and from the Nebraska Public Power District.
        Without objection, so ordered.
        NOTE: The information listed below has been retained in the
    Committee's official files:
          Centennial Water and Sanitation District,
    Centennial, Colorado, Letter submitted for the record
          Loveland Department of Water and Power, Loveland,
    Colorado, Letter submitted for the record
          Denver Water, Denver, Colorado, Letter submitted
    for the record
          City of Aurora, Colorado, Letter submitted for
    the record
          City of Lakewood, Colorado, Letter submitted for
    the record
          Kraus, Don, The Central Nebraska Public Power and
    Irrigation District, Statement submitted for the record
          Kowalski, Ted, Program Manager, Colorado Water
    Conservation Board, Denver, Colorado, Resolution submitted for
    the record
          Nebraska Public Power District, Letter submitted
    for the record
                                    ------

        Mrs. Napolitano. Thank you. At this point I will start
    recognizing the Members as they have arrived, those who wish to
    make a statement may do so.
        All Members who desire to be heard will be given an
    opportunity to be heard, and you have already been given the
    authority to do so. You are reminded that additional material
    may be submitted for the record.
        We do have a full complement of witnesses, so we will ask
    Members to keep their remarks brief, and the five minute rule
    with our timer will be enforced. I don't think we are going to
    have that much of a problem today on that.
        I would like to recognize Congressman Smith for any
    statement if you have one.

     STATEMENT OF THE HONORABLE ADRIAN SMITH, A REPRESENTATIVE IN
                  CONGRESS FROM THE STATE OF NEBRASKA

        Mr. Smith. Thank you, Madam Chairwoman, for holding this
    hearing today and for allowing me to participate in the hearing
    on H.R. 1462, the Platte River Recovery Implementation Program
    and Pathfinder Modification Authorization Act. This hearing
    will give us the opportunity to listen to those on the ground
    in Nebraska, Wyoming and Colorado regarding their collaborative
    effort.
        It is encouraging to see this longstanding issue finally
    reach a settlement after years of study and review by the
    states, Federal government, water users, landowners and other
    interested parties. The time has come to resolve this matter
    once and for all.
        I cosponsored this legislation as part of the consensus to
    recognize the reality of the challenges before us with
    collective decision making and cooperation. However, this
    agreement does impact our farmers and ranchers, and we must
    continue to be cognizant of the impact of the Endangered
    Species Act.
        As we move forward with the implementation of the program,
    positive and negative economic impacts must be assessed and
    considered in order to minimize adverse effects of the recovery
    efforts. This legislation is the first step of many to protect
    and recover species and provide long-term water use for our
    communities.
        I especially want to thank Ann Bleed, Director of the
    Nebraska Department of Natural Resources, for coming here today
    to provide testimony regarding this bill. Director Bleed is
    respected for her very straightforward approach to the
    discussion of our water challenges. She has been a moderating
    voice on many policies impacting Nebraska agriculture and
    landowners, and I look forward to hearing from her.
        I appreciate the Subcommittee for holding this hearing and
    examining this important legislation. Madam Chairwoman, I look
    forward to continuing to work with you, and I thank you for
    your time.
        I yield back.
        Mrs. Napolitano. Thank you very much. Thank you. Since I
    have no other, do you wish to make a statement, Mr. Lamborn?
        Mr. Lamborn. No, but thank you, Madam Chairman.
        Mrs. Napolitano. You are very welcome.
        We have the author of the bill. Would you like to make your
    statement, sir?

      STATEMENT OF THE HONORABLE MARK UDALL, A REPRESENTATIVE IN
                  CONGRESS FROM THE STATE OF COLORADO

        Mr. Udall. Thank you, Madam Chairwoman. It has been one of
    those days here on the Hill, so thank you for your forbearance.
        I want to thank the Chairwoman for holding this hearing on
    H.R. 1462, which is my bill dealing with management and use of
    water in the basin of the Platte River. The bill will authorize
    the Interior Department to carry out its responsibilities under
    an agreement between the Federal government and the States of
    Colorado, Wyoming and Nebraska.
        The purpose of that agreement is to assist in the
    conservation and recovery of several endangered or threatened
    species--the whooping crane and two other birds, as well as the
    pallid sturgeon--in a way that will allow existing water-
    related activities to continue and some additional water-
    related activities to occur.
        It is the result of 14 years of negotiations that
    culminated last year when the Governor of Colorado and the
    Governors of our two neighboring states of Wyoming and Nebraska
    joined Secretary Kempthorne in signing the agreement.
        Since then, initial implementing steps have begun, and the
    President's budget for fiscal 2008 has requested the initial
    funding for the program. We will be hearing from witnesses who
    have the expertise to describe the program in great detail, and
    the expert staff of the Subcommittee has prepared an excellent
    background memo that is before each of us.
        So I will not take the time of the Subcommittee by
    attempting to outline all the elements of the program. Instead,
    I want to note first that the program is modeled after a
    somewhat similar program for the recovery of several endangered
    species of fish in the upper basin of the Colorado River.
        I have strongly supported that program because it has
    enabled us in Colorado and other participating states to meet
    the requirements of the Endangered Species Act while allowing
    continued development and use of water for other purposes as
    well.
        Now, while such arrangements are not easy to work out, I
    think doing so is far better than alternative approaches that
    are more likely to be marked by conflicts or, of course,
    litigation.
        So let me congratulate all concerned in the negotiation of
    this important agreement. I consider myself fortunate to have
    the honor of introducing the bill and to have as its cosponsors
    two of my Colorado colleagues, Representatives DeGette and
    Perlmutter, as well as the entire House delegations from
    Wyoming and Nebraska.
        Thank you again, Madam Chairwoman, and I look forward to
    hearing from our witnesses.
        [The prepared statement of Mr. Udall follows:]

      Statement of The Honorable Mark Udall, a Representative in Congress
                           from the State of Colorado

        Thank you, Madam Chairwoman, and thank you for holding this hearing
    on H.R. 1462, my bill dealing with management and use of water in the
    basin of the Platte River.
        The bill will authorize the Interior Department to carry out its
    responsibilities under an agreement between the federal government and
    the States of Colorado, Wyoming, and Nebraska.
        The purpose of that agreement is to assist in the conservation and
    recovery of several endangered or threatened species--the whooping
    crane and two other birds as well as the pallid sturgeon ``in a way
    that will allow existing water-related activities to continue and some
    additional water-related activities to occur.
        It is the result of 14 years of negotiations that culminated last
    year when the Governor of Colorado and the Governors of our two
    neighboring States of Wyoming and Nebraska joined Secretary Kempthorne
    in signing the agreement.
        Since then, initial implementing steps have begun and the
    President's budget for fiscal 2008 has requested the initial funding
    for the program.
        We will be hearing from witnesses who have the expertise to
    describe the program in great detail, and the expert staff of the
    Subcommittee has prepared an excellent background memo that is before
    each of us.
        So, I will not take the time of the Subcommittee by attempting to
    outline all the elements of the program.
        Instead, I want to just note that the program is modeled after a
    somewhat similar program for the recovery of several endangered species
    of fish in the upper basin of the Colorado River. I have strongly
    supported that program because it has enabled us in Colorado and other
    participating States to meet the requirements of the Endangered Species
    Act while allowing continued development and use of water for other
    purposes as well.
        While such arrangements are not easy to work out, I think doing so
    is far better than alternative approaches that are more likely to be
    marked by conflicts or litigation.
        So, I congratulate all concerned in the negotiation of this
    important agreement and consider myself fortunate to have the honor of
    introducing the bill and to have as its cosponsors two of my Colorado
    colleagues--Representatives DeGette and Perlmutter--as well as the
    entire House delegations from Wyoming and Nebraska.
        Thank you again, Madam Chairwoman, and I look forward to hearing
    from our witnesses.
                                     ______

        Mrs. Napolitano. Thank you, sir.
        We will proceed to hear from our witnesses who will be
    testifying on H.R. 1462. Our first and only witness in Panel I
    will be Mr. Jason Peltier, Deputy Assistant Secretary for Water
    and Science at the Bureau of Reclamation.
        I would also like to recognize that he is being accompanied
    by Mr. Mike Ryan, the Great Plains Regional Director for the
    Bureau, and a representative from the Fish and Wildlife
    Service. Welcome.
        Gentlemen, your statements will be entered into the record.
    Witnesses are asked to summarize the high points of your
    testimony and limit your total remarks to five minutes.
        I will allow Mr. Peltier to present his full testimony
    prior to asking questions, and then once questioning is
    complete Members will proceed to direct questions at you.
        Without further ado, Mr. Peltier, please.

      STATEMENT OF JASON PELTIER, DEPUTY ASSISTANT SECRETARY FOR
     WATER AND SCIENCE, BUREAU OF RECLAMATION, U.S. DEPARTMENT OF
      THE INTERIOR; ACCOMPANIED BY MARK BUTLER, FISH AND WILDLIFE
    SERVICE; AND MIKE RYAN, GREAT PLAINS REGIONAL DIRECTOR, BUREAU
                             OF RECLAMATION

        Mr. Peltier. Thank you. Thank you very much, Madam
    Chairwoman, members of the Subcommittee. I appreciate the
    opportunity to be here to testify on behalf of the Department
    of the Interior on H.R. 1462. The Department supports passage
    of the bill, and we are very encouraged by many of the comments
    we heard up from the dais this afternoon.
        I will be brief because Panel II is really where the rubber
    hits the road folks, the folks who have invested so much time
    and effort into bringing this project or this process along and
    bringing us to this point.
        The Platte River originates in the mountains of Wyoming and
    Colorado and, as it flows through Nebraska, provides important
    habitat for the whooping crane, piping plover, interior least
    tern and pallid sturgeon that are listed as threatened or
    endangered under the Endangered Species Act.
        In 1997, the States of Colorado, Nebraska and Wyoming,
    along with the Department of the Interior, signed a cooperative
    agreement to develop a basin-wide program that would provide
    measures to assist in the recovery of these four species in the
    Platte River inside of Nebraska.
        Last year the Platte River Recovery Implementation Program
    agreement was signed by the Governors of the three states and
    the Secretary allowing for program implementation to begin
    January 1 of this year. The program assists in the recovery of
    species and implements aspects of the recovery plans, thereby
    providing compliance under the Endangered Species Act for
    water-related activities and some new water-related activities.
        Title I of H.R. 1462 provides authorization for the
    Secretary of the Interior, through the Bureau of Reclamation,
    to fully implement the program. It also provides Reclamation
    with authority to appropriate nonreimbursable funds for the
    program. Reclamation, in cooperation with the Governance
    Committee, will implement the program in incremental stages
    with the first increment being a period of 13 years.
        Pursuant to the program agreement, the Federal cost share
    for the first increment is $157 million. That is an indexed
    amount. The state cost share is the same amount, to be provided
    by the three state parties to the program agreement.
        Pre-implementation activities such as forming the new
    Governance Committee and various administrative functions have
    already begun. Federal activities up to this point have been
    authorized under existing law encouraging the Department to
    work with the states to promote habitat protection.
        Under the ESA, the program can initiate monitoring and
    research activities. However, actual water and land
    acquisitions cannot be initiated using Federal funds prior to
    the enactment of this legislation. It is critical that
    acquisitions begin early in the program to allow sufficient
    time to evaluate the biological response and effectiveness of
    the program's recovery measures.
        Title II, as you have mentioned, authorizes Reclamation to
    modify Pathfinder Dam, together with the State of Wyoming. No
    Federal funds are required for this activity.
        The Platte River Recovery Implementation Program is an
    example of a partnership combining Federal and nonFederal
    funding to recover endangered species while also meeting the
    water needs of local communities, irrigators and power
    generation. It is for these reasons that the Administration
    supports H.R. 1462.
        Madam Chairwoman, that completes my statement, and I am
    happy to answer any questions you might have.
        [The prepared statement of Mr. Peltier follows:]

       Statement of Jason Peltier, Principal Deputy Assistant Secretary,
                        U.S. Department of the Interior

        Madam Chairwoman and members of the subcommittee, I am Jason
    Peltier, Principal Deputy Assistant Secretary for Water and Science at
    the Department of the Interior. I appreciate the opportunity to appear
    before you today to discuss H.R. 1462, the Platte River Recovery
    Implementation Program and the Pathfinder Modification Authorization
    Act. The Department supports passage of H.R. 1462.
        The Platte River originates in the mountains of Wyoming and
    Colorado and, as it flows through Nebraska, provides important habitat
    for the whooping crane, piping plover, interior least tern, and pallid
    sturgeon (target species) that are listed as threatened or endangered
    under the Endangered Species Act (ESA). In 1997, the States of
    Colorado, Nebraska, and Wyoming and the Department of the Interior
    signed a Cooperative Agreement to develop a basin-wide program that
    would provide measures to assist in the recovery of these four target
    species in the Platte River in Nebraska. In late 2006, the Platte River
    Recovery Implementation Program (Program) Agreement was signed by the
    Governors of the three States and the Secretary of the Interior,
    allowing for Program implementation to begin January 1, 2007. The
    Program assists in the conservation and recovery of the target species
    in the Platte River basin and implements aspects of the recovery plans
    for these species, thereby providing compliance under the Endangered
    Species Act (ESA) for existing water related activities and certain new
    water-related activities in the Platte River Basin in Colorado,
    Wyoming, and Nebraska.
        Title I of H.R. 1462 provides authorization for the Secretary of
    the Interior, through the Bureau of Reclamation, to fully implement the
    Program. It also provides Reclamation with authority to appropriate
    non-reimbursable funds for the Program. Reclamation, in cooperation
    with the Governance Committee, will implement the Program in
    incremental stages with the first increment being a period of 13 years.
    Pursuant to the Program Agreement, the Federal cost share for the first
    increment is $157 million (2005 dollars), plus indexing. The State
    cost-share is the same amount, to be provided from the three State
    Parties to the Program Agreement.
        Pre-implementation activities, such as forming the new Governance
    Committee, initiating the selection of the Executive Director, and
    various administrative functions have already begun. Federal activities
    up to this point have been authorized under existing law encouraging
    the Department of the Interior to work with States to promote habitat
    protection and the protection of species. Under the ESA, the Program
    can initiate monitoring and research activities; however, actual water
    and land acquisitions cannot be initiated using Federal funds prior to
    enactment of this legislation. Upon enactment of this authorizing
    legislation, Program land and water acquisitions will begin. It is
    critical that acquisitions begin early in the Program to allow
    sufficient time to evaluate the biological response and effectiveness
    of the Program's recovery measures.
        Title II authorizes the Secretary, through the Bureau of
    Reclamation, to modify Pathfinder Dam and Reservoir and enter into
    agreements with the State of Wyoming to implement this modification. No
    Federal funds are required for this activity.
        In accordance with our commitment to cooperative conservation, the
    Department of the Interior seeks to encourage the efforts of States and
    local communities to play active roles in managing the resources they
    depend on for their livelihoods. The Platte River Recovery
    Implementation Program that would be authorized under this Act is an
    example of a partnership combining Federal and Non-Federal funding in
    an ongoing effort to recover endangered species while also meeting the
    water needs of local communities, irrigators, power generation, and the
    environment. Enactment of this legislation provides an opportunity not
    only to meet ESA requirements using a basin-wide, cooperative, and
    scientific approach, but to do so in a manner that protects existing
    water uses and allows for future water uses in the Platte River Basin.
    For these reasons, the Administration supports H.R. 1462.
        Madam Chairwoman, this completes my statement. I am happy to answer
    any questions the Subcommittee may have.
                                     ______

        Response to questions submitted for the record by Jason Peltier

    Additional questions from Chairwoman Napolitano:
    1.  Exactly how does this bill resolve ESA issues? How does the record
            of decision make the ESA process easier or more efficient? Will
            implementation satisfy/fully comply with ESA in your opinion?
            What if that doesn't work?
      Exactly how does this bill resolve ESA issues?
        Answer: The Platte River Recovery Implementation Program (the
    Program) resolves ESA issues by providing regulatory certainty to water
    users during the first increment of 13 years, in a manner that is
    consistent with state water laws, compacts, and decrees. ESA compliance
    measures for many existing water-related activities subject to section
    7 of the ESA are provided by the Program's actions to improve habitat
    and flow conditions. ESA compliance measures for new water related
    activities are provided by the three State's and Federal depletion
    plans.
      How does the record of decision make the ESA process easier or more
            efficient?
        Answer: The existence of the Program does not alter the legal
    requirement for federal agencies to consult with the Service if listed
    species may be affected by their actions, and to offset impacts to
    listed species and critical habitat occurring from such federal
    actions. The Program's actions are intended to provide ESA compliance
    measures that may be relied upon by federal nexus projects choosing to
    participate in the Program and using the Program's actions or
    Depletions Plans to offset impacts to target species and target species
    critical habitat occurring from federal actions.
        With a Program in place, ESA section 7 consultations for federal-
    nexus projects and their effects to listed species will proceed in a
    streamlined manner, and tier off the programmatic EIS and programmatic
    biological opinion in subsequent NEPA analysis and biological opinions
    for the specific federal action. The streamlined process includes: a) a
    federal action agency determination that a project may affect listed
    species and the initiation of an ESA consultation with the Service, b)
    the effects to listed species in the Central and Lower Platte River
    have been analyzed in the programmatic biological opinion, and c) the
    Program's actions or Depletion Plans can be used as ESA compliance
    measures for that project's effects to the target species in the Platte
    River basin.
      Will implementation satisfy/fully comply with ESA in your opinion?
        Answer: Yes, implementation will fully comply with ESA requirements
    for the first increment of 13 years. Although the National Research
    Council of the National Academy of Sciences did not specifically review
    the proposed Program, they did review and strongly support the
    Service's habitat and flow recommendations and the Department's
    conclusions on the interrelationships of sediment, flow, vegetation,
    and channel morphology (Endangered and Threatened Species of the Platte
    River, National Research Council 2005). The Program's habitat and flow
    objectives during the first increment incorporate the Service's habitat
    and flow recommendations.
      What if that doesn't work?
        Answer: The Program provides a Governance Committee of 10 members
    representing the three States, water users, environmental groups,
    Bureau of Reclamation, and the Service. If Program Milestones are not
    being met, and the Service makes a preliminary determination that the
    Program is not providing ESA compliance, the Service will notify the
    Governance Committee in writing and request assistance in resolving the
    situation. If the Governance Committee is unable to restore the ability
    of the Program to provide ESA compliance, the Governance Committee
    shall refer the matter to an Oversight Committee comprised of the
    Secretary of the Interior and the three Governors to resolve the
    situation. We anticipate that most issues will be resolved at the
    Governance Committee level, before elevation to the Oversight
    Committee.
    2.  Have studies been done on how climate change might affect runoff in
            the basin and thus the success of the program? What effect
            might climate change have on ESA compliance?
        Answer: Due to the unavailability of basin-specific data on climate
    change, this has not been studied specifically. However, Interior has
    undertaken a large scale effort to examine scientific, operational and
    legal (such as ESA implementation) issues in relation to climate
    change. As this work matures, and as more focused data is gathered, we
    expect the adaptive management nature of this program will be an
    effective tool to deal with possible future scenarios.
    3.  How confident are you that you can curtail speculation during land
            acquisition for this program? This has become a problem with
            the Everglades restoration, is it possible it could happen with
            the Platte program as well?
        Answer: The price of land acquisition was addressed in Chapter 5 of
    the Environmental Impact Statement. Page 5-303 states: Given the
    general upward trend in prices, and given the Program must budget for
    land leasing or purchases several years in advance (in order to obtain
    funds through each state and Federal legislature), it seems unlikely
    that the Program will ``lead'' land prices.
    4.  Sec. 105(a)(1) of the bill refers to Reclamation law and repayment
            of project costs--can you explain what this means? What is
            intended by this?
        Answer: The language provides assurance that the Districts will not
    be relieved of any existing repayment obligations, nor will they incur
    any new obligations through the Program.
    5.  How many species of birds currently utilize this portion of the
            Central Flyway?
        Answer: The central Platte River provides critical migration
    habitat for the endangered whooping crane, spring staging habitat for
    80 percent of the world's sandhill crane population, breeding habitat
    for the threatened piping plover and endangered least tern, and
    migrational and wintering habitat for millions of waterfowl. Over 300
    species of migratory birds have been observed along the Platte River,
    and over 140 species are known to nest there. The Rainwater basin
    immediately to the south, in combination with the Platte River,
    provides for one of the world's greatest waterfowl migration
    spectacles. Approximately 7-9 million ducks, 2-3 million geese, and
    500,000 sandhill cranes annually stop in the area.
    6.  What is being done, aside from the Platte River Restoration, to
            ensure the survival of these listed species along the Central
            Flyway?
        Answer: Currently, States and energy producers are involved in the
    conservation of over 3000 acres along the Platte River to comply with
    prior consultations or for mitigation required as part of FERC re-
    licensing.
        In addition to these conservation efforts, the Service and other
    Federal agencies including the Army Corps of Engineers are engaged in
    many activities to support the recovery of the listed species utilizing
    the Central Flyway. Below is a summary of select activities.
    Whooping Crane
        The Service is working with a variety of partners and Canada to
    protect and enhance breeding, migration, and wintering habitat for the
    Aransas-Wood Buffalo population (AWBP) to allow the wild flock to grow
    and reach ecological and genetic stability. The AWBP migrates annually
    between the Aransas National Wildlife Refuge along the gulf coast of
    Texas and Wood Buffalo National Park in the Northern Territories,
    Canada.
        Activities throughout the Central Flyway include:
        1.  Monitoring of population numbers, including annual recruitment
    and mortality.
        2.  Monitoring of spring and fall migrations through the
    Cooperative Whooping Crane Tracking Project.
        3.  Efforts to reduce mortality, including collisions with
    powerlines and fences.
        4.  Education programs to increase competency of the public (e.g.,
    hunters) for identifying whooping cranes and understanding their
    protected status.
        5.  When necessary, discouraging whooping crane use of areas where
    waterfowl disease outbreaks are underway or have recently occurred. A
    Contingency Plan for Cooperative Protection of Whooping Cranes is
    directed by the Canadian Cooperative Wildlife Health Centre in Canada
    and the National Wildlife Health Center in the United States.
        6.  The Whooping Crane Health Advisory Team continues to provide
    advice and recommendations to the Recovery Team on all health issues.
        7.  Studies of migratory habitat availability are being conducted
    in several areas to maximize efficient habitat protection and monitor
    habitat changes.
        8.  The Service's Partners for Fish and Wildlife Program works via
    easements and management agreements with private landowners in the
    Central Flyway to restore wetland habitats beneficial to migrating
    cranes.
        Efforts continue to reintroduce and establish two other self-
    sustaining wild populations which are geographically separate from the
    AWBP to ensure resilience of the species in case of catastrophic
    events. These include a non-migratory population in Florida and a
    migratory Wisconsin-Florida population. A captive breeding flock is
    also maintained to protect against extinction and aid reintroduction
    efforts.
    Piping Plover and Interior Least Tern
        Activities in support of survival and recovery include:
        1.  The Army Corps of Engineers' (Corps) operation of the Missouri
    River and Kansas River reservoir systems is a significant effort to
    manage, create and restore suitable riverine nesting habitat for piping
    plovers and interior least terns in the Missouri River in North Dakota,
    South Dakota and Nebraska.
        2.  Research studies of habitat requirements, species reproduction
    and survival, and foraging ecology are being conducted by the USGS and
    Virginia Polytechnic Institute. Information from these studies is being
    used in the creation and management of emergent sandbar nesting habitat
    in various reaches of the Missouri River.
        3.  The Corps has funded or conducted a monitoring program of least
    tern and piping plover populations, reproduction and causes of nest
    failure on various portions of the Missouri River since the late
    1980's, and on the Kansas River for the last decade. This information
    continues to be valuable in the identification of appropriate
    management strategies.
        4.  The Tern and Plover Conservation Partnership (TPCP) (University
    of Nebraska, Nebraska Game and Parks Commission, the Nebraska
    Environmental Trust and the Service) cooperates with the sand and
    gravel mining industry to protect least terns and piping plovers that
    use nesting substrate on sand pits. TCPC conducts population surveys,
    monitors reproduction, erects predator fencing and works with the
    mining operators to maximize tern and plover reproduction and avoid
    conflicts with mining operations.
        5.  A coordinated, multi-agency, range-wide population survey for
    the northern Great Plains population of the piping plover has occurred
    every five years since 1991. The first range-wide, coordinated survey
    of the interior least tern population was conducted in 2005.
        6.  The Corps, Service, and various state, federal, and private
    partners have established an Interior Least Tern Working Group to serve
    as a clearing house for information and research on the interior least
    tern, as well as develop a range-wide monitoring program to more
    systematically track the status of the species.
        7.  State, federal and provincial wildlife agencies, and
    environmental organizations such as The Nature Conservancy are involved
    with recovery efforts for piping plovers using alkali lake breeding
    habitat in the northern Great Plains. Management efforts include
    population surveys, nest caging, predator removal and predator fencing,
    and habitat management. Management efforts significantly improve fledge
    rates on areas managed using these techniques.
        8.  The Service's Partners for Fish and Wildlife Program works with
    private landowners to manage and protect nesting habitat for both
    species.
    7.  The Bureau's NEPA Handbook is not on the website. Why is the
            handbook missing from the website, how long has it been
            missing, and why are there no previous versions there to
            provide some kind of guidance for the public?
        Answer: The guiding regulations for NEPA are the CEQ regulations
    found at 40 CFR 1500 thru 1508. In addition, the NEPA process
    requirements for DOI agencies are found at Part 516 of the Departmental
    Manual, available at http://elips.doi.gov/app--dm/
    index.cfm?fuseaction=home. 516 DM 14 applies specifically to the Bureau
    of Reclamation.
        The last Reclamation NEPA handbook is dated 1990. There was an
    effort in 2000 to update the handbook and the draft was posted on
    Reclamation's website in 2000 to seek comment. The 2000 draft is still
    being finalized.
        We plan to post the revised NEPA Handbook once finalized.
    8.  The Record of Decision states that the program will provide a means
            to ensure that certain ``new water uses'' do not undermine ESA
            compliance, and the program's habitat and species benefits.
            What ``new water uses'' are contemplated? How will the program
            adapt to these new water uses?
        Answer: The Water Plan of the Implementation Program anticipates
    the states may need to develop new water supplies to meet future
    demands. ``New depletion plans'' are included by each state in the
    program documents to outline plans for future storage. In addition, the
    States are responsible for mitigating water supply effects created by
    new storage projects.
    9.  Although there are guaranteed water quantities, how will water be
            prioritized during a period of drought?
        Answer: The water quantities identified in the Program (130,000--
    150,000 AF for target species flows) are based on the annual average
    flows. Annual operations are determined by the Environmental Account
    manager with input by an Advisory Group and are dependent on water
    availability and the conditions present that year.
    Additional questions from Ranking Member McMorris Rodgers:
    10.  Can an outside group not party to the Platte River Program
            (Program) referenced in the bill still file NEPA, ESA-related
            or other litigation on existing federal projects that are
            covered under the Program?
        Answer: Implementation of the Program satisfies the federal
    projects Endangered Species Act requirements. Third party rights to
    file litigation are not impacted and they may file lawsuits.
    11.  A main element under this Program is to dedicate up to 150,000
            acre feet to endangered species. Much of this water will be
            taken from farmers and communities. Please provide specific
            mitigation plans for these water losses?
        Answer: During the first increment, as agreed to by all parties,
    the Program will provide 130,000--150,000 AF of flows to meet the needs
    of the target species. There are three projects that are contributed by
    the States that will provide 80,000 AF of the flows and any effects
    have been addressed by the States. The remaining 50,000--70,000 AF of
    flows are to be developed by the Program. The Program will evaluate the
    projects individually and effects identified will be addressed by the
    Program.
    12.  The first phase of this Program and this bill's authority will
            last 13 years. What quantifiable and numerical ESA recovery
            goals are in the Program?
        Answer: To achieve the Program's primary goal of improving and
    maintaining migrational habitat for whooping cranes and reproductive
    habitat for terns and plovers in the central Platte River area, a
    combination of land and water actions will be implemented during the
    first increment. These individual management actions will be designed
    and implemented to gain the greatest understanding of the response of
    the target species and their habitats to the actions through monitoring
    and research. Analysis of information provided by the Adaptive
    Management Plan may be used to change the initial characteristics of
    habitat and/or guidelines contained in the Land and Water Plans that
    were developed prior to Program implementation.
        The ESA recovery goals are incorporated within ten Milestones that
    provide for flow improvement and habitat restoration using a
    scientific, adaptive management approach. The Milestones are also the
    measure of ESA compliance during the first increment. The ten
    Milestones are:
         1.  The Pathfinder Modification Project will be operational and
    physically and legally capable of providing water to the Program by no
    later than the end of year 4 of the first increment.
         2.  Colorado will complete construction of the Tamarack Phase I
    Project and commence full Phase I operations by the end of year 4 of
    the first increment.
         3.  Central Nebraska Public Power and Irrigation District and
    Nebraska Public Power District will implement an Environmental Account
    for Storage Reservoirs on the Platte System in Nebraska as provided in
    the licenses for FERC Project Nos. 1417 and 1835.
         4.  The Reconnaissance-Level Water Action Plan, as may be amended
    by the Governance Committee, will be implemented and capable of
    providing at least an average of 50,000 acre-feet per year of shortage
    reduction to target flows, or other Program purposes, by not later than
    the end of the first increment.
         5.  The Land Action Plan, as may be amended by the Governance
    Committee, will be implemented to protect and, where appropriate,
    restore 10,000 acres of habitat by no later than the end of the first
    increment.
         6.  The Integrated Monitoring and Research Plan, as may be amended
    by the Governance Committee, will be implemented beginning year 1 of
    the Program.
         7.  The Wyoming Future Depletions Plan, as may be amended by the
    Governance Committee, will be operated during the first increment of
    the Program.
         8.  The Colorado Future Depletions Plan, as may be amended by the
    Governance Committee, will be operated during the first increment of
    the Program.
         9.  The Nebraska Future Depletions Plan, as may be amended by the
    Governance Committee, will be operated during the first increment of
    the Program.
        10.  The Federal Future Depletions Plan, as may be amended by the
    Governance Committee, will be operated during the first increment of
    the Program.
        Additionally, the Service prepared a ``Species Recovery Objectives
    Report'' that identifies recovery objectives and by which progress
    towards recovery of the species can be measured (Species Recovery
    Objectives for Four Target Species in the Central and Lower Platte
    River, June 2002).
    13.  How will the stakeholders define success or failure? How will
            specific successes or failures be reported to the Natural
            Resources Committee since the Program will need to be
            reauthorized at some point?
        Answer: The Program defines success during the first increment
    using the Milestones discussed previously. At least annually, the
    Program's management activities, and the criteria that guide those
    Program activities, such as land and water acquisition and management
    criteria, as described in the Program Document and its attachments
    (e.g., Milestones Document, Land Plan, and Water Plan) will be
    evaluated by the Governance Committee. Opinions of the Independent
    Scientific Advisory Committee, and peer reviewers, if any, will be
    compiled and summarized as part of the evaluation process. Evaluations
    will:
        1.  Assess whether the Program activities and criteria being
    examined are working as originally envisioned;
        2.  Make modifications based on new information;
        3.  Determine whether there are other or better uses for the
    resources committed to the activity and criteria;
        4.  Consider available information, including any reviews from
    advisory groups, to assess whether success or failure could be
    determined by monitoring over the time period evaluated; and,
        5.  Develop alternative activities and criteria in accordance with
    adaptive management principles.
        Additionally, the Program Document (pages 19-20) describes the
    evaluation of the first increment and development of any subsequent
    increment:
        At least three years before the end of the first increment, the
    Governance Committee will develop a process and timeframe for
    evaluating the first increment. The evaluation process will take into
    account the need for FWS to carry out independent ESA assessments, NEPA
    compliance, and other statutory obligations for a second Program
    increment. These evaluations will include, but are not limited to the
    following: (1) consideration of information gained through the
    Integrated Monitoring and Research Plan and experience; (2) the
    judgment of habitat managers, field biologists, and independent
    experts; and (3) the results of peer review. The purpose of these
    evaluations is to weigh whether Program goals, objectives, activities,
    and criteria should be modified or should continue unchanged.
        Before expiration of the first increment, the Governance Committee
    will identify goals, objectives, activities and criteria, and
    milestones or other measures for ESA compliance for a second Program
    increment. Any decision to enter into a second increment will be made
    by the signatories prior to expiration of the first increment.
    14.  Another Program element calls for 10,000 acres to be used for
            recovering the species. Have these lands been identified? How
            many are private? Is there a preliminary breakdown or plan of
            lands that will be acquired by outright purchase, easement or
            other means? What entity will own the lands that are purchased?
        Answer: The Program has identified a 90 mile stretch along the
    Central Platte for potential habitat development, and these lands are
    primarily in private ownership. The specific parcels of land to be
    acquired and the ratio of outright purchase to lease/easement
    arrangements have not yet been determined.
        The Program Document lays out a very detailed procedure for the
    acquisition of lands needed for habitat development using a willing
    seller/lessor approach. The Program Executive Director, working with
    the Land Committee and private landowner representatives, will be
    responsible for carrying out the acquisition of lands as described in
    the Program document. Once lands are acquired, the program will assume
    responsibility of operations and maintenance. Estimated costs
    associated with O&M on acquired lands were considered during project
    development and are part of the cost in the legislation.
        The Program and the Governance Committee are not authorized,
    however, to enter into contracts for the purchase, lease or receipt of
    easements, or to acquire a land interest such as owning, leasing, or
    receipt of easements for real estate, nor can they act as third-party
    beneficiary of a trust, and it will be necessary to appoint a ``Land
    Interest Holding Entity'' for such purposes in order to implement the
    Land Component of the First Increment of the Program. A non-profit
    ``Land Interest Holding Entity'' will hold title in trust for the
    benefit of Nebraska, Wyoming, Colorado, and the Department of the
    Interior.
    15.  What assurances can you give that nearby rural communities won't
            experience negative impacts associated with federal land
            acquisition, land being taken out of production or increased
            land rents and values for young farmers?
        Answer: The Program policy requires that all land and water
    obtained for the project will be from willing sellers or willing
    lessors. No land condemnation will be used in the first increment of
    the program (see Final EIS 5-277). In addition, the ``Good Neighbor
    Policy'' included in the plan provides that impacts on other land
    owners are addressed in the acquisition process.
    16.  Could ESA water needs under this Program trump the Modified North
            Platte Decree and State Water law?
        Answer: The Program is structured such that providing water to meet
    ESA needs is done in a manner that complies with the Modified Decree
    and State Water law.
                                     ______

        Mrs. Napolitano. Thank you, sir.
        Members, do you have questions? Yes, Mr. Smith?
        Mr. Smith. Thank you.
        A main element under this program is to dedicate up to
    150,000 acre feet to endangered species, and much of this water
    will be taken from farmers. What plans does the Department have
    to mitigate for these water losses?
        Mr. Peltier. You know, I could provide the information that
    is written in front of me, but the guys with the genetic
    understanding of it are sitting right next to me, and maybe it
    would be best if I turn to the Bureau and the Fish and Wildlife
    Service to discuss that.
        Mrs. Napolitano. Would you kindly identify yourself?
        Mr. Ryan. Yes. Madam Chairwoman and members of the
    Subcommittee, my name is Mike Ryan. I am the Regional Director
    for the Great Plains Region of the Bureau of Reclamation.
        The program envisions water acquisition activities from
    willing sellers, a willing buyer/willing seller concept. Some
    of the water projects will be taken in the various states.
    Reclamation's most direct involvement in that will be under
    Title II and modification along with the State of Wyoming of
    Pathfinder Dam.
        Mr. Smith. I mean, certainly conservation and land
    retirements are part of the solution. Any plans for new
    projects or looking at new storage opportunities?
        Mr. Ryan. Congressman, there are several activities that
    have been identified that would be in some sense of the word a
    new water project; for instance, a modification of existing
    facilities or the development of groundwater programs.
        Those are laid out in detail in our programmatic documents
    that accompanied the environmental documentation for the
    program.
        Mr. Smith. Groundwater projects or programs you said? Did I
    hear you correctly?
        Mr. Ryan. Yes, sir.
        Mr. Smith. OK. Thank you. Thank you.
        Mrs. Napolitano. Yes, Mr. Udall?
        Mr. Udall. Madam Chair, just briefly I want to thank Mr.
    Peltier for his testimony and for his focus on this important
    concern.
        I also want to add an additional comment to the record. I
    neglected to mention that Congressman Salazar was an original
    cosponsor, and, interestingly enough, his district contains the
    headwaters of the North Platte. You wouldn't think that to be
    the case initially when you looked at the map, but because of
    the circuitous route the Platte follows his district includes
    those headwaters. He joined me from the very beginning.
        I did want to thank my colleague from western Nebraska, Mr.
    Smith, for joining us at the beginning of this important
    initiative. He has been a marvelous colleague just in the few
    months he has been here, and he has a very difficult set of
    shoes to fill because Congressman Tom Osborne was his
    predecessor.
        It will be a delight when I talk to Tom, as I do
    periodically, to tell him we are moving ahead on this because
    Tom was a real stalwart advocate of getting this completed as
    well. Thank you, Congressman Smith.
        I yield back.
        Mrs. Napolitano. Thank you, sir.
        Mr. Baca?
        Mr. Baca. Thank you very much. We are breaking in Mr. Smith
    on the basketball court. Madam Chair, thank you very much for
    having this hearing.
        I have a question for Jason. To what extent will you be
    monitoring the actual release, as well as success of recovering
    species?
        Mr. Peltier. Let me take an initial shot, and then my
    colleagues can fill in.
        Like many of the other large-scale ecosystem restoration
    programs across the west that we are in the process of
    constructing or implementing, the reality is there is
    uncertainty that we must deal with, and central to dealing with
    that uncertainty is extensive monitoring, learning and
    responding and modifying our behavior based on what we learn,
    if needed.
        It will be extensive, and a lot of time and energy has gone
    into recognizing the need for an effective monitoring program.
        Mr. Baca. OK. The next question is will the expansion of
    the Pathfinder Dam back the full pull of the reservoir up north
    to the Platte River, which is question number one, and then,
    two, what will be the consequences of that, and does the Bureau
    already own the land that would be inundated?
        Mr. Peltier. Yes, the Bureau does either have title to or
    has flowage easements for all the ground that would be
    potentially inundated.
        Mr. Baca. Thank you very much, Madam Chair. I yield back
    the balance of my time.
        Mrs. Napolitano. Thank you.
        Mr. Peltier, how does the program define success, and how
    do you know whether the program is really working?
        Mr. Peltier. The first increment of success is peace I
    would say. We have achieved that, and we hope that will hold
    and that as the planning efforts and the implementation efforts
    go forward that it is in full partnership with everybody that
    is engaged.
        That is a valuable, in and of itself, accomplishment
    because it is so much more constructive, productive. There is
    such a greater return on your effort when you are operating in
    that kind of an environment with partners rather than a
    regulatory process or litigation.
        Of course, the ultimate measure of success will be years
    down the road when we have implemented. As we modify and
    continue to learn and improve habitat for species, the
    indicators are quite simple in my mind. It is health of the
    species and health of the economy, economies that are
    associated with and affected by the program.
        Mrs. Napolitano. And do you have any reasonable expectation
    that is going to happen within 5, 10, 15 years?
        Mr. Peltier. I think why doesn't somebody that is----
        Mr. Butler. Madam Chairwoman, my name is Mark Butler. I am
    a staff level employee with the Fish and Wildlife Service and
    have been involved in this effort since its inception and
    primarily function as the lead contact with the Platte River
    Governance Committee.
        As far as success, the program has identified 10 milestones
    or 10 major action areas that will define success not only in
    terms of the species' recovery, but in terms of Endangered
    Species Act compliance.
        Of those 10 milestones, the first three address what we
    term the three initial program projects, the Pathfinder
    Modification Project being one of those, the other in Colorado,
    one in Nebraska at Lake McConaughy.
        And then the provision through willing seller arrangements,
    willing lessor arrangements, to obtain additional water
    supplies for the program. That is the fourth milestone. The
    fifth milestone is working on the program's land action plan to
    obtain 10,000 acres of suitable habitat.
        The sixth milestone Mr. Peltier mentioned in terms of the
    integrated monitoring and research plan and the adapted
    management plan, which is the vehicle where we monitor the
    reaction or the response of the species to these management
    actions and use that increased understanding to adjust and
    guide our further management actions.
        The last four milestones have to do with the three states
    and the Federal government's efforts to address the effects of
    new water-related activities on the species and so those 10
    milestones are pretty much the 10 fundamental portions of the
    program that provide Endangered Species Act compliance and also
    focus directly on the species.
        In addition, this same question was asked of the Fish and
    Wildlife Service early on during the negotiations as to how
    will we know when is enough? How do we know when we have gotten
    there?
        There are recovery plans that the Service has prepared for
    each species, and we specifically stepped those down or
    identified, based upon our understanding at this time, the
    desired distribution and number of species targeted for the
    Central Platte Region.
        Mrs. Napolitano. Thank you.
        Section 102 of H.R. 1462 appears to make this program
    discretionary by stating that the Secretary may participate and
    carry out the program. What happens if the bill isn't
    implemented fully because the Secretary chooses not to
    implement it?
        Mr. Peltier. Well, I don't want to get into a semantical
    discussion, but in very practical terms the Secretary of the
    Department and the Administration have committed to the program
    and have signed the paper and made the pledge of going forward.
        If the legislation is passed, the legislation will be
    followed and the program will be implemented. Who can predict
    the future though. Everybody has a way out one way or another
    in these things.
        Mrs. Napolitano. Well, the reason I ask that question is
    because I know one program that is in law and has been ignored.
    I am talking about water recycling. That kind of leads me to
    making sure that we are in line to make sure that it is going
    to happen, that we are fully participating.
        Thank you. Any other questions?
        [No response.]
        Mrs. Napolitano. If no other questions, I would like to
    ask, Mr. Peltier, if you would mind hanging around a little
    bit. There may be questions from the panel.
        Mr. Peltier. Yes. I intend to sit through the entire
    hearing.
        Mrs. Napolitano. Thank you very much.
        We will proceed with the questioning of the second panel.
    Again, we will hear from them, including Alan Berryman of the
    Northern Colorado Water Conservancy District; Ann Bleed of the
    Nebraska Department of Natural Resources; Ted Kowalski of the
    Colorado Conservation Board; Dan Luecke, Platte River Issues
    Consultant to the National Wildlife Federation; and, finally,
    last but not least, Mike Purcell of the Wyoming Water
    Development Commission.
        As soon as you are settled, gentlemen, Mr. Berryman, you
    may begin.

        STATEMENT OF ALAN BERRYMAN, ASSISTANT GENERAL MANAGER,
       ENGINEERING DIVISION, NORTHERN COLORADO WATER CONSERVANCY
                                DISTRICT

        Mr. Berryman. Thank you, Madam Chair and members of the
    Subcommittee. My name is Alan Berryman. I am the Assistant
    General Manager for the North Colorado Water Conservancy
    District in Berthoud, Colorado. Thank you for inviting me today
    to testify in front of the committee on House Bill 1462.
        The Platte River Recovery Implementation Program is a
    cooperative, basin-wide solution created to resolve escalating
    conflicts between water use and endangered species protection.
    These conflicts arise during Federal permitting of both
    existing and planned irrigation and municipal water supply
    projects in the Platte River basin.
        Such endangered species issues in the Central Platte River
    are of particular concern to Northern Water and other Colorado
    water users in the South Platte River basin. Resolution of
    these conflicts is of state interest and is important to all
    who live and work in Colorado's rapidly growing Front Range.
        Northern Water is requesting your support of House Bill
    1462 to authorize the Secretary of the Interior to participate
    in and provide funding toward the Platte River Recovery
    Implementation Program for threatened and endangered species in
    the Central and Lower Platte in Nebraska and to modify the
    Pathfinder Dam and Reservoir in Wyoming.
        Northern Water is the contract beneficiary of water yielded
    from the Colorado-Big Thompson Project, which is the largest
    transmountain water diversion projection in Colorado. The C-BT
    Project annually delivers about 213,000 acre feet of water to
    northeastern Colorado as a supplemental water supply to 32
    cities and towns and approximately 700,000 acres of irrigated
    farmland in northeastern Colorado.
        To continue to meet the growing water demands along
    Colorado's Front Range, Northern Water is also involved in new
    regional water planning activities and projects, including the
    Northern Integrated Supply Project, sometimes called NISP, that
    is currently working through the Federal permitting process.
    That project is designed to develop 40,000 acre feet of water
    for 16 water providers located within Northern's boundaries.
        Whether it is a reliable, time-proven water supply project
    like the C-BT Project or an anticipated new project like NISP,
    both must comply with Endangered Species Act requirements to
    continue to provide historically relied upon water supplies or
    to obtain the necessary Federal permits that allow the
    development of new water supply for Colorado's rapidly growing
    population.
        Recent studies completed by the Colorado Water Conservation
    Board to assess future urban water supply needs in the state
    show that the population within Colorado's South Platte River
    basin is anticipated to grow by 65 percent from the year 2000
    to the year 2030.
        To meet the demands from that growth, water providers in
    the region will have to develop more than 400,000 acre feet of
    water in a basin that is already over appropriated. This will
    require significant additions to water infrastructure such as
    pipelines and reservoirs, which in turn will require compliance
    with ESA to permit their construction.
        Northern Water sincerely believes that the Platte River
    Recovery Implementation Program is the best available solution
    to address the species' needs under the ESA and also allow the
    continued use and development of water in the three states that
    share the Platte River basin.
        Northern Water has been involved in the program since
    negotiations began in 1994 on behalf of itself and other
    Colorado water users. During the 12-year negotiation period,
    Northern Water was a member of the Platte River Project, which
    was a group of more than 25 water user and water supply
    organizations in the South Platte basin in Colorado that worked
    collaboratively with the State of Colorado to help craft the
    program.
        Currently, Northern Water is a member of the board of
    directors of the South Platte Water Related Activities Program,
    sometimes called SPWRAP, a Colorado nonprofit corporation
    recently formed to replace the Platte River Program group and
    represent the interests of Colorado water users who will be
    participating in the program.
        SPWRAP has signed a memorandum of understanding with the
    State of Colorado which commits SPWRAP to work with the State
    of Colorado in meeting Colorado's obligations under the
    program. SPWRAP membership is currently growing daily, and we
    expect the majority of municipalities and many ag entities will
    become members of SPWRAP.
        Northern Water has also allowed me to serve as the Colorado
    water user representative on the program's Governance Committee
    as a commitment to continue to move the program forward for the
    benefit of the species and the water users.
        Northern Water has been and remains committed to developing
    and implementing a cooperative, basin-wide solution that
    resolves conflicting water use and ESA issues. This program
    will provide the regulatory compliance under the ESA for both
    existing and prospective new water uses within the Platte River
    basin and will help protect and ensure the future for water
    users and the endangered species.
        However, the program can only be successful if it is
    adequately funded. We respectfully request the support and the
    assistance of this Subcommittee to authorize and fund this
    vitally important program.
        Again, thank you for allowing me to testify in front of the
    Subcommittee.
        [The prepared statement of Mr. Berryman follows:]

           Statement of Alan D. Berryman, Assistant General Manager,
                  Northern Colorado Water Conservancy District

        Madam Chair and Members of the Subcommittee:
        My name is Alan Berryman. I am Assistant General Manager for the
    Northern Colorado Water Conservancy District (``Northern Water'') in
    Berthoud, Colorado. Thank you for inviting me to testify before you in
    support of the Platte River Recovery Implementation Program and
    Pathfinder Modification Authorization Act. The Platte River Recovery
    Implementation Program (``Program'') is a cooperative, basin-wide
    solution created to resolve escalating conflicts between water use and
    endangered species protection. These conflicts arise during federal
    permitting of both existing and planned irrigation and municipal water
    supply projects in the Platte River basin. Such endangered species
    issues in the central Platte River are of particular concern to
    Northern Water and other Colorado water users in the South Platte River
    basin. Resolution of these conflicts is of state interest and is
    important to all who live and work along Colorado's rapidly growing
    Front Range. Northern Water is requesting your support for H.R. 07-1462
    to authorize the Secretary of the Interior to participate in and
    contribute funding toward the Platte River Recovery Implementation
    Program for Threatened and Endangered Species in the Central and Lower
    Platte River basin in Nebraska, and to modify the Pathfinder Dam and
    Reservoir in Wyoming.
        Northern Water is the contract beneficiary of water yielded from
    the Colorado-Big Thompson (``C-BT'') Project, which is the largest
    transmountain water diversion project in Colorado. The C-BT Project
    annually delivers about 213,000 acre-feet of water to northeastern
    Colorado as a supplemental water supply to 32 cities and towns and
    approximately 700,000 acres of irrigated farmland in northeastern
    Colorado. To continue to meet the growing water demands along
    Colorado's Front Range, Northern Water is also involved in new regional
    water planning activities and projects, including the Northern
    Integrated Supply Project (``NISP'') that is currently working through
    the federal permitting process. That proposed project is designed to
    develop 40,000 acre-feet of water for 16 water providers located within
    Northern Water's boundaries.
        Whether it is a reliable, time-proven water supply project like the
    C-BT Project or an anticipated new project like NISP, both must comply
    with the Endangered Species Act (``ESA'') requirements to continue to
    provide historically relied-upon water supplies, or to obtain the
    necessary federal permits that allow the development of a new water
    supply for Colorado's rapidly growing population. Recent studies
    completed by the Colorado Water Conservation Board to assess future
    urban water supply needs in the state show that the population within
    Colorado's South Platte River basin is anticipated to grow by 65
    percent from the year 2000 to the year 2030. To meet the demands from
    that growth, water providers in the region will have to develop more
    than 400,000 acre-feet of water in a basin that is already over-
    appropriated. This will require significant additions to water
    infrastructure such as pipelines and reservoirs which, in turn, will
    require compliance with ESA to permit their construction. Northern
    Water sincerely believes that the Platte River Recovery Implementation
    Program is the best available solution to address the species' needs
    under the ESA and also allow the continued use and development of water
    in the three states that share the Platte River basin.
        Northern Water has been involved in Program negotiations since 1994
    on behalf of itself and other Colorado water users. During the 12-year
    negotiation period, Northern Water was a member of the Platte River
    Project (``PRP''), a group of more than 25 water user and water supply
    organizations in the South Platte River basin in Colorado that worked
    collaboratively with the State of Colorado to help craft the Program.
    Currently, Northern Water is a member of the Board of Directors of the
    South Platte Water Related Activities Program, Inc. (``SPWRAP''), a
    Colorado non-profit corporation recently formed to replace the PRP
    group and represent the interests of Colorado water users who will be
    participating in the Program. SPWRAP has signed a Memorandum of
    Understanding with the State of Colorado which commits SPWRAP to work
    with the State of Colorado in meeting Colorado's obligations under the
    Program. SPWRAP membership is currently growing daily, and we expect
    that the majority of municipalities and many agricultural entities will
    become members in SPWRAP. Northern Water has also allowed me to serve
    as the Colorado water user representative on the Program's Governance
    Committee as a commitment to continue to move the Program forward for
    the benefit of the species and the water users.
        Northern Water has been, and remains, committed to developing and
    implementing a cooperative, basin-wide solution that resolves
    conflicting water use and ESA issues. This Program will provide the
    regulatory compliance under the ESA for both existing and prospective
    new water uses within the Platte River basin and will help protect and
    ensure the future for water users and the endangered species. However,
    the Program can only be successful if it is adequately funded. We
    respectfully request the support and assistance of this Subcommittee to
    authorize and fund this vitally important program. Again, thank you for
    allowing me to testify before this Subcommittee today.
                                     ______

        Response to questions submitted for the record by Alan Berryman

    Additional questions from Ranking Member McMorris Rodgers:
     Can an outside group not party to the Platte River Program (Program)
            referenced in the bill still file NEPA, ESA-related or other
            litigation on existing federal projects that are covered under
            the Program?
        Yes, outside groups that are not party to the Program could file a
    NEPA or ESA lawsuit, or file other litigation regarding existing
    federal projects that are covered under the Program.
     A main element under this Program is to dedicate up to 150,000 acre
            feet to endangered species. Much of this water will be taken
            from farmers and communities. Please provide specific
            mitigation plans for these water losses?
        The Program's overall Water Plan includes the original three state
    projects (the environmental account in Nebraska's Lake McConaughy,
    Pathfinder Reservoir in Wyoming, and the Tamarack Plan in Colorado) and
    additional individual water projects identified for possible future
    development under the Water Action Plan. Individual water projects
    developed under the Water Action Plan would provide water that would be
    leased by the Program or otherwise compensated for as in the case of
    power interference and would not take water from existing water users.
        Colorado's state-sponsored water contribution under the Program
    (the Tamarack Plan) focuses upon retiming water legally available to
    Colorado that would otherwise exit the state unused by Colorado water
    users and at times of no shortage to species' target flows. This water
    would be diverted under the circumstances listed in the preceding
    sentence and, through artificial recharge operations, would return to
    the river at times when the target species are experiencing shortages
    to the FWS' target flows. (See Program Attachment 5, Section 3--
    Colorado's Initial Water Project). Most diversions would occur in the
    non-irrigation season and at locations below existing Colorado
    reservoirs that divert during that season.
        Depending upon their needs, Colorado may also elect to lease
    additional water from farmers on a ``willing lessor/lessee'' basis.
    Leased water would meet the same criteria listed above, would provide
    farmers with a potential source of income, and no mitigation would be
    necessary.
     The first phase of this Program and this bill's authority will last 13
            years. What quantifiable and numerical ESA recovery goals are
            in the Program?
        The Program does not have numerical recovery goals for species
    populations. The Program goals include: (1) improving and maintaining
    migrational habitat for whooping cranes and reproductive habitat for
    least terns and piping plovers; (2) reducing the likelihood of future
    listings of other species found in the area; and (3) testing the
    assumption that managing flow in the central Platte River also improves
    the pallid sturgeon's lower Platte River habitat. The specific habitat
    objective that is listed in the Program's milestones is to protect and,
    where appropriate, restore 10,000 acres of habitat by the end of the
    first increment of 13 years.
        The Program provides for an adaptive management plan (AMP) to
    monitor habitat responses to the management of Program resources.
    Because there is disagreement on relationships between resource
    management and the expected outcomes, the AMP is designed to test
    specific hypotheses associated with these relationships to reduce the
    level of disagreement and to improve management of Program resources.
    The AMP includes the appropriate tests during the first increment to
    evaluate the results associated with goals 1 and 3 above.
     How will the stakeholders define success or failure? How will specific
            successes or failures be reported to the Natural Resources
            Committee since the Program will need to be reauthorized at
            some point?
        Interim successes and failures associated with the Program will be
    identified through implementation of the AMP as hypotheses are tested,
    through achievement of the Program milestones, and through continued
    regulatory certainty for water users during the first increment of the
    Program.
     Another Program element calls for 10,000 acres to be used for
            recovering the species. Have these lands been identified? How
            many are private? Is there a preliminary breakdown or plan of
            lands that will be acquired by outright purchase, easement or
            other means? What entity will own the lands that are purchased?
        Specific lands to be included in the Program are not identified.
    The vast majority of acres potentially useful to the Program are most
    likely privately owned. The method to secure the habitat lands requires
    that lands must be acquired on a willing lessor/seller/grantor basis
    and that those interests may take the form of fee purchase, easement or
    long term leases, depending upon the available opportunities. The
    optimum Program scenario would be for the 10,000 acres to be included
    in 3 habitat complexes of about 3000 contiguous acres each and some
    other lands not within the 3 habitat complexes. That scenario will be
    extremely difficult to make happen given the available monetary
    resources and constraints on acquiring lands. A land interest holding
    entity is being created under the Program to hold the land interests of
    the Program.
     What assurances can you give that nearby rural communities won't
            experience negative impacts associated with federal land
            acquisition, land being taken out of production or increased
            land rents and values for young farmers?
        The interests in land for the Program will be held by the land
    interest holding entity, not by the federal government. Land interests
    will be acquired on a voluntary basis and the Program has committed to
    a ``good neighbor policy'' regarding Program lands, including payments
    in lieu of taxes.
     Could ESA water needs under this Program trump the Modified North
            Platte Decree and State Water law?
        The Program is designed to facilitate water uses consistent with
    entitlements under State Water Law, interstate compacts, the Modified
    North Platte Decree, and endangered species needs. The bigger question
    is, without the Program, could ESA implementation trump interstate
    compacts and decrees and the exercise of water rights decreed under
    state law. This question is difficult to answer and, ultimately, may
    only be answered by a specific lawsuit. There are some that believe
    that the ESA could require individual actions by water users to
    mitigate species' needs that may be perceived as ``trumping'' state
    water law or a water compact. It is an issue that water users in
    Colorado are concerned about. During negotiations, the Colorado
    contingency designed their water plan to avoid raising that question.
                                     ______

        Mrs. Napolitano. Thank you, Mr. Berryman.
        We will move on to Ms. Bleed.

              STATEMENT OF ANN BLEED, EXECUTIVE DIRECTOR,
                NEBRASKA DEPARTMENT OF NATURAL RESOURCES

        Ms. Bleed. I want to thank the committee for inviting me to
    testify today. My name is Ann Bleed. I was appointed by
    Governor Heineman as the Director of the Department of Natural
    Resources in Nebraska.
        I have submitted written testimony, but I would like to
    emphasize a few highlights of why this program is important to
    Nebraska.
        We see this program as a way to provide habitat for
    endangered species, as well as a large number of other species
    that rely on the Platte River, including migratory waterfowl
    and sandhill cranes, and at the same time comply with the
    Endangered Species Act and provide regulatory certainty for all
    our water users in Nebraska, and finally, and importantly, to
    avoid costly litigation over endangered species issues.
        The program establishes an organizational structure that
    will I believe ensure appropriate state, Federal and
    stakeholder involvement in the implementation of the program.
    The program uses an incremental approach to implementing the
    program that will rely on sound science developed through an
    adaptive management program.
        An adaptive management program will test the hypotheses and
    the management activities that we are using and help ensure
    that the commitment of resources being made by everybody in the
    Federal government, as well as the states and the stakeholders
    in the states, will in fact achieve the outcomes that we want
    out of the program.
        The states and other interests in each of the states have
    committed substantial amounts of time, money, land and water
    resources to the program. They have done a lot to date, and the
    program will call for more commitments. In addition, the states
    have agreed to cut back existing uses to the 1997 level of
    consumptive use. This also will be a costly endeavor on our
    water users.
        In sum, the negotiations to develop the program were long
    and arduous. The time, land, water and financial commitments by
    the states, the water and power districts in the states,
    environmental interests and the people of each basin were very
    substantial. There are lots of future challenges that the
    program must overcome.
        However, when the Governors of each state signed onto the
    program they attested to the premise that this cooperative and
    collaborative program will provide a much higher likelihood of
    achieving protection for the habitat, as well as for providing
    regulatory certainty for our users than any other alternative.
        For this reason, I urge you to enable the Federal
    government to be a partner in this collaborative effort. Thank
    you.
        [The prepared statement of Ms. Bleed follows:]

                    Statement of Ann Bleed, Director of the
                    Nebraska Department of Natural Resources

        My name is Ann Bleed. I am the Director of the Nebraska Department
    of Natural Resources and am Nebraska Governor David Heineman's
    representative on the Governance Committee of the Platte River Recovery
    Program.
        Thank you for this opportunity to provide testimony in support of
    Senate Bill 752 (House Resolution 1462) and its authorization of the
    Platte River Recovery Implementation Program.
        The Platte River system arises in the mountains of Colorado and
    Wyoming, crosses the State of Nebraska, and empties into the Missouri
    River on Nebraska's eastern border. The Platte River and its
    tributaries irrigate millions of acres of farmland, provide water to
    cities such as Denver, Colorado, Casper, Wyoming, Lincoln and Omaha
    Nebraska, as well as numerous smaller cities and towns, and provide
    water for power plants that provide power throughout the western United
    States.
        The Platte River in Nebraska also provides critical habitat to the
    endangered or threatened whooping crane, least tern, piping plover and
    pallid sturgeon, as well as habitat for numerous other species, and is
    a major staging area for migrating sandhill cranes. In the1990's the
    State of Nebraska granted instream flow permits to protect fish and
    wildlife habitat along the Platte and put a moratorium on the issuance
    of new surface water permits on the western two-thirds of the Platte
    River and its tributaries.
        Nevertheless, the importance of this river for so many competing
    interests led to conflicts not only among these interests, but also
    among the three states through which it flows. Exacerbating these
    conflicts was the need to comply with the federal Endangered Species
    Act. In an attempt to avoid costly litigation in 1994 the three states
    and their constituents and the U.S. Department of Interior signed a
    Memorandum of Understanding that after thirteen years of intense
    negotiations developed and approved the Platte River Recovery
    Implementation Program.
        The goal of the Program is to use a basin-wide cooperative approach
    to assist in the conservation and recovery of habitat for the Platte's
    endangered and threatened species and help prevent the need to list
    more basin associated species pursuant to the Endangered Species Act,
    while at the same time provide regulatory certainty to the people and
    industries that also rely on the flows of the river.
        The Program has established an organizational structure that will
    ensure appropriate state and federal government and stakeholder
    involvement in the implementation of the Program. The Program will
    utilize an incremental approach to land and water management that
    places an appropriate and heavy reliance on the development of sound
    science through an adaptive management program. This adaptive
    management program has developed extensive protocols for testing
    hypotheses and management techniques to insure that the efforts of
    program participants will produce the desired results.
        The States and other interests in the basin have committed
    substantial resources to the success of this effort including $30 M,
    major land contributions and an average of 80,000 acre-feet of water.
    In addition each state has committed to reduce their consumptive use of
    water to 1997 levels and implement administrative procedures to hold
    water use at this limit.
        Before closing I would like to address an amendment to Senate Bill
    752 and House Resolution 1462 that has been proposed on behalf of the
    Upper North Platte Water Users in Wyoming relating to the Pathfinder
    Modification Project, which is part of the Platte River Recovery
    Implementation Program. The Bureau of Reclamation has a Wyoming water
    right to store 1,070,000 acre feet of water in Pathfinder Reservoir for
    the benefit of the North Platte Project, which includes irrigated land
    in Eastern Wyoming and Western Nebraska. Over the years, 53,493 acre
    feet of the storage capacity of the reservoir have been lost to
    sediment. The Pathfinder Modification Project would recapture this
    storage space.
        The administration of the water rights for using this recaptured
    space was the subject of much negotiation among the United States and
    the States of Colorado, Nebraska, and Wyoming, all of whom were parties
    to the settlement of the Nebraska v. Wyoming law suit, which was
    approved by the U.S. Supreme Court in November, 2001. The results of
    these negotiations were codified in Appendix F to the Final Settlement
    Stipulation This appendix, which establishes the terms and conditions
    under which the Pathfinder Modification Project will be operated states
    in part:
            The recaptured storage space would store water under the
            existing 1904 storage right for Pathfinder Reservoir and would
            enjoy the same entitlements as other uses in the reservoir with
            the exception that the recaptured storage space could not place
            regulatory calls on the existing water rights upstream of
            Pathfinder Reservoir other than the rights pertaining to
            Seminoe Reservoir.
        The proposed amendment suggests that the Bureau of Reclamation
    should be restricted from seeking water rights administration on behalf
    of Pathfinder Reservoir during the irrigation season. It is Nebraska's
    view that the restrictions on calls for regulation for Pathfinder
    Reservoir during the irrigation season in the proposed amendment would
    be in violation of the Modified North Platte River Decree.
        In summary, the negotiations to develop this program were long and
    arduous. The time, land, water and financial commitments by the States,
    water and power districts, environmental interests and the people in
    the basin are very substantial. There are a lot of future challenges
    that the Program must overcome. However, when the Governor's of all
    three States signed the Program agreement, the States attested to the
    premise that cooperation and collaboration will provide a much higher
    likelihood of protecting habitat and providing regulatory certainty for
    all involved than any other alternative. For this reason I urge you to
    enable the federal government to be a partner in this collaborative
    effort.
        Thank you again for this opportunity to provide testimony.
                                     ______

          Response to questions submitted for the record by Ann Bleed

    Additional questions from Chairwoman Napolitano:
    1.  What are the current Central Platte conditions? Are there any areas
            where the river is dry or almost dry? Where are those areas if
            they exist?
        The Platte River above Columbus, Nebraska, upstream of the
    confluence of the Platte River and the Loup River in the eastern
    portion of the State, is characterized by highly variable flows,
    variable from year to year and from one season of the year to another.
    Before the construction of major reservoirs on the Platte system, the
    river would have high flows in March and April, and May and June due to
    the melting of the snow, first in Nebraska and then in the Rocky
    Mountains. During the summer it would often go dry. With the
    construction of reservoirs and the diversions of water for irrigation,
    the extreme high spring flows were decreased but the summer flows
    increased. As a result, except for dry years, the river rarely was dry,
    even during the summer. However, during the last six years of drought,
    the river was often dry between Kearney, Nebraska and Columbus
    Nebraska, upstream of the confluence with the Loup River.
       Will there be flow surges that affect downstream users? Will the
            increase in flows increase the likelihood of flooding
            downstream?
        I am assuming this question pertains to the release of water from
    the environmental account in Lake McConaughy to maintain habitat for
    the endangered and threatened species. The Program is designed to avoid
    flood flows that would result from Program activities. The Final
    Program Document states on page 16 that:
            Any such use of Program water is subject to limitations
            described in the document ``An Environmental Account for
            Storage Reservoirs on the Platte River System in Nebraska'' (EA
            Document) in the Program Water Plan (Attachment 5, Section 5)
            to prevent such releases from causing or exacerbating floods.
        Page 47 of the Water Plan also states:
        The EA Manager may not request releases from the EA when the Platte
    or North Platte River at Keystone, North Platte, Brady, Cozad, Kearney
    or Grand Island is at or above flood stage as defined for those
    locations by the National Weather Service (``NWS''). If the EA Manager
    requests a release of EA water that the Districts believe would cause
    the Platte or North Platte River to rise above flood stage, the request
    for release may be denied. However, the EA Manager may appeal the
    denial by requesting the National Weather Service (NWS) to make a
    determination as to whether or not the requested release would cause
    either of the rivers to rise above flood stage at any of the previously
    listed sites. If the NWS determines the requested release would cause
    either of the rivers to rise above flood stage, the denial would stand.
    If the NWS determines the requested release would not cause either of
    the rivers to rise above flood stage, the requested releases will be
    made.
    Additional questions from Ranking Member McMorris Rodgers:
    1.  Can an outside group not party to the Platte River Program
            (Program) referenced in the bill still file NEPA, ESA-related
            or other litigation on existing federal projects that are
            covered by the Program.
        Any person could file a lawsuit at any time. The question is what
    would the courts do with do with a lawsuit regarding issues covered by
    the Program? The Program has been deemed a reasonable and prudent
    alternative for complying with Section 7 of the Endangered Species Act
    (ESA). Thus, I would think that the court would give deference to the
    Program, but there are no guarantees.
    2.  A main element under this Program is to dedicate up to 150,000 acre
            feet to endangered species. Much of this water will be taken
            from farmers and communities. Please provide specific
            mitigation plans for these water losses?
        The Program was developed to provide a reasonable and prudent
    alternative to protect endangered species and comply with Section 7 of
    the ESA while at the same time provide regulatory certainty for water
    users. According to the U.S. Fish and Wildlife Service, the shortage of
    water for maintaining habitat for the endangered species is over
    417,000 acre feet a year on average. Under the Program we were able to
    agree to providing only 130,000 to 150,000 acre feet in the first 13-
    year increment, pending further information gathered through the
    adaptive management program. This is the main plan to mitigate impacts
    on farmers and communities.
        Also, under the Program, the Nebraska public power districts are
    providing up to 200,000 acre feet of storage space and 10% of the
    storable inflows to the reservoir October through April for the
    environmental account in Lake McConaughy, Wyoming is providing 34,000
    acre feet of storage space and 3.18% of inflows through the Pathfinder
    Modification Project, and Colorado is providing for the reregulation of
    water through the Tamarack Project that will store water excess of the
    target flows for later release when flows are below the target flows
    for the endangered species. Although these projects do have impacts on
    water users, the impacts on farmers and communities would be worse
    without these projects.
        The State of Nebraska has also developed a Conservation and Reserve
    Program and an Environmental Quality Incentive Program with the federal
    government to, on a voluntary basis, lease water rights for 10 to 15
    years or permanently retire water rights to reduce the consumptive use
    of water and provide habitat.
        The State is also appropriating up to $ 80 million over 12 years
    for reducing consumptive use in overappropriated and fully appropriated
    basins with the Platte River Basin being one of the prime targets for
    the use of this money.
    3.  The first phase of this Program and this bill's authority will last
            13 years. What quantifiable and numerical ESA recovery goals
            are in the Program?
        The Program's progress will be monitored through an intensive
    adaptive management program. This adaptive management program is a
    collaborative initiative among many scientists involved in the Program.
    The purpose is to develop and test hypotheses regarding what habitat
    and management activities will in fact improve the continued survival
    of the endangered species.
        The Programs has also established 10 milestones to monitor progress
    toward Program objectives for ESA compliance through the first
    increment of the Program. The milestones, which are explained more
    fully in Attachment A are:
         1.  The Pathfinder Modification Project will be operational and
    physically and legally capable of providing water to the Program by no
    later than the end of Year 4 of the First Increment.
         2.  Colorado will complete construction of the Tamarack I and
    commence full operations by the end of Year 4 of the First Increment.
         3.  CNPPID and NPPD will implement an Environmental Account for
    Storage Reservoirs on the Platte System in Nebraska as provided in FERC
    licenses 1417 and 1835.
         4.  The Reconnaissance-Level Water Action Plan, as may be amended
    by the Governance Committee, will be implemented and capable of
    providing at least an average of 50,000 acre-feet per year of shortage
    reduction to target flows, or for other Program purposes, by no later
    than the end of the First Increment.
         5.  The Land Plan, as may be amended by the Governance Committee,
    will be implemented to protect and, where appropriate, restore 10,000
    acres of habitat by no later than the end of the First Increment.
         6.  The Integrated Monitoring and Research Plan, as may be amended
    by the Governance Committee, will be implemented beginning Year 1 of
    the Program.
         7.  The Wyoming Depletions Plan, as may be amended with the
    approval of the Governance Committee, will be operated during the First
    Increment of the Program.
         8.  The Colorado Depletions Plan, as may be amended with the
    approval of the Governance Committee, will be operated during the First
    Increment of the Program.
         9.  The Nebraska Depletions Plan, as may be amended with the
    approval of the Governance Committee, will be operated during the First
    Increment of the Program.
        10.  The Federal Depletions Plan, as may be amended with the
    approval of the Governance Committee, will be operated during the First
    Increment of the Program.
    4.  How will the stakeholders define success or failure? How will
            specific successes or failures be reported to the Natural
            Resources Committee since the Program will need to be
            reauthorized at some point?
        The stakeholders, who have representatives on the Program
    Governance Committee, will be monitoring the Program and its impacts on
    them throughout the implementation of the Program. Unlike a compact or
    court decree, each state and the Department of Interior has the option
    of withdrawing from the Program at any time. Therefore if the
    stakeholders in any state do not believe the Program is a better
    alternative than complying with the Endangered Species Act without the
    Program, they can convince their Governor to withdraw from the Program.
    5.  Another Program element calls for 10,000 acres to be used for
            recovering the species. Have these lands been identified? How
            many are private? Is there a preliminary breakdown or plan of
            lands that will be acquired by outright purchases, easement or
            other means? What entity will own the lands that are purchased?
        The Program has developed some basic criteria for lands that would
    be suitable for acquisition to meet Program goals, however, specific
    tracts of land have not yet been identified, nor has a preliminary
    breakdown of how these lands will be acquired been developed. Most of
    the land acquired will be private lands.
        The Program is planning to appoint a land holding entity to act as
    a trustee to hold title to real estate and to receive conservation
    easements for real estate, or any other form of interest in real estate
    deemed beneficial to the purposes of the Program by the Program
    Governance Committee. Property shall be accepted in the name of trustee
    and shall be held by the trustee subject to all existing encumbrances,
    easements, restrictions etc. The property shall be held in trust on
    behalf of Program until the property is conveyed, free of this Trust.
    6.  What assurances can you give that nearby rural communities won't
            experience negative impacts associated with federal land
            acquisition, land being taken out of production or increased
            land rents and values for young farmers?
        There are no assurances that there won't be impacts on communities
    or young farmers due to land being taken out of production or increased
    land rents and values. However, the State believes that without the
    Program, the impact of complying with Section 7 of the Endangered
    Species Act would have an even greater adverse impact on farmers and
    communities.
    7.  Could ESA water needs under this Program trump the Modified North
            Platte Decree and State Water law?
        In crafting the Program, the partners to the Program were very
    careful to do nothing that would violate the Modified North Platte
    Decree, the South Platte Compact or state water rights. However, there
    is a question of whether the ESA can trump an interstate decree or an
    interstate compact. I am not an attorney but as I understand the
    experience of others, Congress has enacted legislation that has ahd an
    impact on decisions of a federal district court or an appeals court.
    However, although the issue has been raised at least once regarding the
    Endangered Species Act and a Compact regarding the silvery minnow, the
    court chose not to address the issue. This question was raised
    discussed but not addressed during the Nebraska v. Wyoming litigation
    and settlement negotiations. To my knowledge, the question of whether
    the Endangered Species Act can trump an equitable apportionment case
    before the U.S. Supreme Court Decree remains unanswered.
                                     ______

        Mrs. Napolitano. Thank you.
        Next, Ted Kowalski.

              STATEMENT OF TED KOWALSKI, PROGRAM MANAGER,
                   COLORADO WATER CONSERVATION BOARD

        Mr. Kowalski. Good afternoon. Thank you, Madam Chairman and
    Members of the committee. I appreciate your focusing on this
    important issue here today.
        My name is Ted Kowalski. I work for the Colorado Water
    Conservation Board, and the State of Colorado firmly supports
    this legislation, H.R. 1462. We would like to thank
    Representative Udall for his leadership in this regard and the
    other cosponsors who have signed onto this important
    legislation.
        By way of background, and the North Platte and South Platte
    River basins both begin in Colorado, and I thought it was
    interesting as well that every single one of the Colorado's
    seven congressional districts touch in some portion the North
    or the South Platte basin. I think that just goes to show how
    important it is to the entire State of Colorado that we get
    this legislation to allow us to participate in this
    collaborative recovery effort.
        As has been noted in the testimony previously, this has
    been a very long process to get to this program where we have
    an agreement between the three basin states, the Federal
    government, but we also have water users and environmental
    interests, other stakeholders who are firmly committed to this
    program, and I think it just is a testament to the people
    involved and to the energy and the persistence of both the
    people and the entities involved to get to the finish line.
        We are not there yet. We need this legislation to authorize
    the Federal government to participate in the program. The
    program, as was noted before, is modeled after the very
    successful Upper Colorado and San Juan River Recovery Programs,
    two other programs that Colorado is also supportive of and has
    been involved in for years.
        I think we are starting to see some of the fruits of those
    efforts in the recovery of those species involved in each of
    those basins, and I think this is a similar worthwhile effort
    on the Platte River side.
        It is incremental. It is expected the first increment will
    be 13 years. We are looking at basically four primary aspects
    of the program. There is the land aspect, the 10,000 acres
    within the first 13 years that will be acquired and restored
    for habitat. There is the water piece, which will provide up to
    130,000 to 150,000 acre feet on average to target flows in the
    affected area.
        There are established depletion plans by the states and the
    Federal government, and there is an integrated monitoring and
    research plan that will be effectuated through the adaptive
    management process.
        I think really this process or this program is the first to
    go forward with an adaptive management plan this early in its
    inception, and we have really worked hard to understand what
    adaptive management means and make sure it is an integrated
    part of this program.
        I echo the comments of everyone who has spoken before me
    about the importance of pursuing this on a programmatic,
    collaborative process. This is a lot more effective. It is a
    lot more efficient use of our resources.
        I can't stress how important it is to the State of Colorado
    that we aren't having to seek ESA compliance on a project by
    project by project basis, but rather we will have a streamlined
    process whereby water users within the State of Colorado will
    be able to obtain ESA compliance in a very quick and
    inexpensive way compared to if they had to do this on a case by
    case by case basis.
        I indicated that Colorado is dedicated to this program, and
    we put our money where our mouth is. We have dedicated $7
    million already. Colorado has both water and cash obligations.
    $24 million is coming from the State of Colorado. To meet our
    water portion we have dedicated $2 million, and we are $5
    million toward the cash contribution.
        We also have pending legislation for an additional $3
    million this year, so we will be a third of the way in the
    first six months of the program to meeting our cash obligation,
    but we have also identified how we will meet the rest of those
    financial obligations.
        In addition, there is an MOU between the State of Colorado
    and the water users through the SPWRAP group where they will
    act as a backstop. Should the state be unable to fulfill is
    obligations, SPWRAP will step in and assist the state to the
    extent necessary.
        It is important to note that the Colorado Water
    Conservation Board, a statewide policy board, has passed a
    resolution in support of this program. That has been submitted
    for the record.
        Once again, I thank you for your consideration, and I hope
    that you will support this important legislation for Colorado.
        [The prepared statement of Mr. Kowalski follows:]

          Statement of Ted Kowalski, Colorado Water Conservation Board

        Chairwoman Napolitano and Members of the Subcommittee:
        My name is Ted Kowalski and I manage the Platte River Program for
    the State of Colorado. Thank you for inviting me to testify before you
    in support of the Platte River Recovery Implementation Program and
    Pathfinder Modification Authorization Act. The State of Colorado
    appreciates this subcommittee's attention to these issues, and we are
    grateful to Representative Udall for his leadership in pursuing this
    important legislation.
        By way of background, the North and South Platte Rivers start in
    Colorado. It is interesting to note that each of Colorado's seven
    congressional districts includes a portion of North or South Platte
    River basins within it. The South Platte River basin is Colorado's most
    populous basin, with more than 3 million residents. Like much of the
    western United States, the population in the South Platte basin is
    increasing dramatically. With the increases in population in Colorado
    comes additional water development.
        For many years, the States of Colorado, Nebraska, Wyoming, and the
    Department of the Interior have been working with our stakeholders to
    establish the framework for an Endangered Species Act Recovery Program
    (Program) to recover the endangered whooping crane, interior least
    tern, and pallid sturgeon, and the threatened piping plover. Each of
    these species has designated habitat the State of Nebraska along the
    Platte River. That critical habitat is impacted by actions upstream of
    it in Wyoming and Colorado. I am pleased to testify that this hard work
    has paid off, and that the three States and the federal government
    signed a Program agreement in the fall of 2006. The Program,
    established by that agreement, began on January 1, 2007.
        The Program is modeled after the very successful and longstanding
    Upper Colorado River Recovery and the San Juan River Recovery Programs.
    The State of Colorado has benefited from these programmatic approaches
    to recovering endangered species while allowing water development to
    continue within the States that participate in these types of recovery
    programs.
        The Platte Program is incremental, and the first increment is
    expected to last thirteen years. Within the first thirteen years, the
    participants will: 1) acquire and restore 10,000 acres of habitat; 2)
    provide 130,000 to 150,000 acre-feet of water to meet certain target
    flows; 3) operate within state and federal laws and the depletion plans
    established under the Program; and, 4) provide integrated monitoring
    and research through a comprehensive adaptive management plan.
        By pursuing recovery of these species on a programmatic basis, as
    opposed to pursuing recovery efforts on a case-by-case basis, we will
    use our resources more efficiently and effectively. Moreover, water
    users will benefit from streamlined consultations with the Fish and
    Wildlife Service as opposed to individualized consultations and
    negotiations.
        Colorado is dedicated to the success of the Platte River Recovery
    Program. The State has already appropriated and authorized the
    expenditure of up to $7 million dollars to meet Colorado's cash and
    water obligations. In addition, there is legislation pending that
    immediately authorizes an additional expenditure of $3 million dollars
    on July 1, 2007 and sets forth a plan to fund the majority of
    Colorado's remaining obligations over the next several years. Water
    providers, environmental organizations, and the agricultural community
    have all expressed support for the State legislation.
        Water providers, in particular, have been partners with the State
    since the beginning of the three states negotiations. Colorado water
    users have established an organization called the South Platte Water
    Related Activities Program (SPWRAP), which is a nonprofit organization.
    SPWRAP has the authority to assess annual assessments from its members,
    and to use that money to help the State of Colorado meet its
    obligations under the Program.
        It is important to note that the Colorado Water Conservation Board,
    Colorado's statewide water policy board, unanimously passed a
    resolution in support of this federal legislation. A copy of this
    resolution is attached to this statement.
        Once again, thank you for your consideration. We hope that you will
    support this legislation that is important to the Recovery of
    endangered species and the citizens of the United States and in
    particular the States of Colorado, Wyoming and Nebraska. I am available
    to answer any questions that you may have.
                                     ______

    STATE OF COLORADO
    Colorado Water Conservation Board
    Department of Natural Resources
    1313 Sherman Street, Room 721
    Denver, Colorado 80203
    Phone: (303) 866-3441
    FAX: (303) 866-4474
    www.cwcb.state.co.us

    May 8, 2007

    Chairwoman Grace Napolitano
    United States House of Representatives
    Committee on Natural Resources
    Subcommittee on Water and Power
    1522 Longworth HOB
    Washington, DC 20515

    By email to: Emily.Knight@mail.house.gov

    Dear Chairwoman Napolitano and Members of the Subcommittee,

        Thank you for inviting my testimony before you in support of HR-
    1462, the Platte River Implementation Program Pathfinder Modification
    Authorization Act. I appreciated the opportunity to advise the
    subcommittee about the Platte River Implementation Program and the
    importance of this legislation.
        This legislation is vital to the success of the Program. I am
    attaching your questions and answers (in bold following each question).
    I hope this is helpful to you and your subcommittee. Thank you for your
    attention to this important legislation.

    Sincerely,

    Ted Kowalski
    Program Manager
    Colorado Water Conservation Board
                                     ______

         Response to questions submitted for the record by Ted Kowalski

    Additional questions from Ranking Member McMorris Rodgers:
     Can an outside group not party to the Platte River Program (Program)
            referenced in the bill still file NEPA, ESA-related or other
            litigation on existing federal projects that are covered under
            the Program?
        Outside groups could file NEPA, ESA-related or other litigation on
    existing federal projects that are covered under the Program.
     A main element under this Program is to dedicate up to 150,000 acre
            feet to endangered species. Much of this water will be taken
            from farmers and communities. Please provide specific
            mitigation plans for these water losses?
        The water contributions to the Program include initial water
    projects that will dedicate up to 80,000 acre feet annually towards
    target flows, and an additional 50,000 to 70,000 acre-feet annually
    that will be met through the water action plan. Colorado's initial
    water project will not ``take'' water from farmers and communities, but
    rather will retime water (through the Tamarack Recharge Project and
    other similar projects) from times of excess to times of shortages.
    Should Colorado seek to purchase or lease additional recharge credits,
    this would be done on a ``willing seller'' basis. The water action plan
    is a reconnaissance-level plan and how the parties have not yet decided
    how we will meet these obligations. Any water that will be leased or
    purchased under this water action plan will also be on a ``willing
    seller'' basis and water rights holders will be justly compensated.
     The first phase of this Program and this bill's authority will last 13
            years. What quantifiable and numerical ESA recovery goals are
            in the Program?
        The Program does not include identifiable goals for recovery of the
    species; however, the Biological Opinion and the Environmental Impact
    Statement include explicit recovery goals. The Program does include
    milestones for the water plan, the land plan, the adaptive management
    plan, and the individual depletion plans. These milestones must be met
    in order to benefit from the regulatory certainty that the Program
    affords the participants.
     How will the stakeholders define success or failure? How will specific
            successes or failures be reported to the Natural Resources
            Committee since the Program will need to be reauthorized at
            some point?
        Successes and failures will be evaluated and re-evaluated through
    the Adaptive Management Plan. The Adaptive Management Plan was
    developed so that it can test competing hypotheses, and readjust
    management actions based on the results of actions taken and habitat
    responses.
     Another Program element calls for 10,000 acres to be used for
            recovering the species. Have these lands been identified? How
            many are private? Is there a preliminary breakdown or plan of
            lands that will be acquired by outright purchase, easement or
            other means? What entity will own the lands that are purchased?
        The specific lands that will be purchased have not been identified.
    The Program operates on a ``willing buyer/willing seller'' basis. The
    Program does have a list of attributes that will make lands more
    desirable. The type of property rights obtained will be determined on a
    case by case basis, in consultation with the Land Advisory Committee.
    The Program is in the process of establishing a Land Interest Holding
    Entity that will hold title to the land interests.
     What assurances can you give that nearby rural communities won't
            experience negative impacts associated with federal land
            acquisition, land being taken out of production or increased
            land rents and values for young farmers?
        The rural communities should not be negatively impacted by the
    Program. The Program has an articulated ``good neighbor'' policy and
    the Program will acquire land on a ``willing buyer/willing seller''
    policy.
     Could ESA water needs under this Program trump the Modified North
            Platte Decree and State Water law?
        No.
                                     ______

        Mrs. Napolitano. Thank you.
        Next, Dan Luecke, National Wildlife Federation.

    STATEMENT OF DAN LUECKE, PLATTE RIVER ISSUES CONSULTANT TO THE
                      NATIONAL WILDLIFE FEDERATION

        Mr. Luecke. Thank you, Madam Chair and Members of the
    committee. I am here representing not only the National
    Wildlife Federation, but also the Whooping Crane Maintenance
    Trust, American Rivers, the Nebraska Wildlife Federation and
    the Colorado Environmental Caucus.
        I should note as well, since it has been mentioned on more
    than one occasion as a model for the Platte program, that I
    represent the environmental community on the Upper Colorado
    Endangered Fish Recovery Program, a program that has been in
    existence since the late 1980s and has fostered both protection
    of species and continued use of water by those who hold
    entitlements.
        A few years ago the National Research Council of the
    National Academy of Sciences completed a report on the Central
    Platte and found the habitat unique and an essential component
    of the habitat needs of the endangered species, and at one
    point in the report it noted that restoration of that habitat
    must begin with water management.
        This program took seriously that advice and that
    admonition. It had water on its agenda already. It remained
    steadfast in negotiations among all the interested parties.
    Water and its management would be an essential component of the
    recovery program.
        The program has as its goal the reduction in shortages of
    flows in the Central Platte of 130,000 to 150,000 acre feet and
    land protection of 10,000 acres. The water component is based
    to a large extent on retiming water, though some water will be
    purchased and converted to in-stream flows as the program
    progresses.
        The recovery program is both flexible and comprehensive.
    Like the Upper Colorado program, it is a watershed scale
    program. It takes the entire basin as its management area, in
    my view the only way to accomplish the kind of recovery that we
    are hoping to achieve.
        It is flexible because it is based upon willing seller/
    willing buyer agreements for water and land. It is committed in
    the case where revenues are lost, for example, in association
    with land conversion that payments in lieu of taxes will be
    made. It is a program that recognizes not only the enormous
    economic value of the river, but its unique environmental value
    as well.
        The accomplishment of the objectives of the recovery
    program depend upon the passage of this legislation, both for
    the authorization of Federal involvement and for Federal
    funding and also for the modification of an important project,
    Pathfinder, in the State of Wyoming.
        I urge the committee to support this program through the
    passage of this bill. Thank you.
        [The prepared statement of Mr. Luecke follows:]

                   Statement of Daniel Luecke, Consultant to
                        The National Wildlife Federation

    INTRODUCTION
        The Platte River basin is one of the most important ecosystems and
    economic areas in the Rocky Mountain-High Plains region. With its
    watershed in Colorado, Wyoming, and Nebraska, the river has played an
    essential role in both defining the character of the region
    ecologically and in sustaining the economy. Unfortunately, the
    environmental value of the river has often been ignored in the pursuit
    of more narrowly defined economic goals. The challenge now, from both
    an environmental and economic perspective, is to begin the process of
    correcting the past imbalance in an equitable and efficient fashion.
    The river supports millions of ducks and geese and hundreds of
    thousands of sandhill cranes on their Central Flyway migration. But
    what makes the environmental challenge even more important and
    imperative is the role the river plays in supporting endangered
    species.
        The Platte River Recovery Implementation Program (recovery program)
    and its approval under the Platte River Recovery Implementation Program
    and Pathfinder Modification Authorization Act of 2007 will mark a
    significant step in correcting the disparity between the economic and
    environmental importance of the Platte. The recovery program identifies
    an initial set of flow and land protection measures that the U.S. Fish
    and Wildlife Service has determined to be a sound basis for the first
    stage in restoration of the structure and function of the Platte River
    ecosystem in central Nebraska. The ultimate goal is the reestablishment
    of a riverine/land habitat complex that can meet the needs of the
    endangered whooping crane, interior least tern, and piping plover and,
    farther east, the testing of actions and associated research activities
    that will provide a better understanding of the needs of the pallid
    sturgeon.
        The states of Colorado, Wyoming, and Nebraska, their water users,
    and the environmental community have accepted these resource management
    goals and the associated research agenda as the basis for starting the
    process of restoration. An important feature of the structure of the
    recovery program is its incorporation of flexible provisions that allow
    the states' water users to continue to divert water to which they are
    entitled and, at the same time, providing them a substantial measure of
    regulatory certainty under the Endangered Species Act. This concept of
    flexibility is also incorporated in a land conservation plan that is
    based on willing seller/willing buyer agreements and in a research and
    monitoring protocol that incorporates a carefully constructed adaptive
    management program.
    National Wildlife Federation's Support for the Recovery Program and
            H.R. 1462
        The Platte River Recovery Implementation Program Cooperative
    Agreement, signed at the end of 2006 by the Secretary of Interior and
    the governors of the three states, is the product of several years of
    negotiations among the states, the Department, water users, and
    environmentalists (including National Wildlife Federation). It sets in
    motion the process of putting in place the detailed land and water
    program elements designed to reverse the long-term process of habitat
    deterioration in the Platte River.
        In April 2004 the National Academy of Sciences (NAS) issued a
    report on the importance of the Platte River to the endangered species
    mentioned above (Endangered and Threatened Species of the Platte River)
    and the role of the recovery program in the Platte's restoration. The
    Academy committee that reviewed the Platte agreed unanimously that the
    habitat in central Nebraska is unique, that the U.S. Fish and Wildlife
    Service's proposal for habitat restoration measures that have been
    incorporated in the recovery program were sound, and that ultimately
    ``...[s]uccessful, sustainable solutions of species issues ``must begin
    with water management.''
        At the time the NAS report was released, the environmental
    community strongly supported its conclusions and we believe they remain
    applicable today. We believe that the report validates the data and
    science embodied in the recovery program, a set of sound water and land
    protection activities.
        With the passage of H.R. 1462, we will have taken a major step in
    the authorization for a Platte River Program that is based on the
    following actions:
          A water program that includes modifying Pathfinder Dam in
    Wyoming, Lake McConaughy environmental storage in Nebraska, groundwater
    recharge and management in Colorado (at Tamarack State Wildlife refuge
    and elsewhere), and other water actions that will reduce flow shortages
    in the central Platte by at least 130,000 to 150,000 acre-feet.
          Channel improvements in the North Platte River near the
    town of North Platte that will increase capacity to 3,000 cubic feet/
    second (cfs) or such improvements that will increase the flood stage to
    six feet allowing the U.S. Fish and Wildlife Service to use its
    McConaughy environmental water to produce a flow of at least 5,000 cfs
    at Lexington, Nebraska for three days in the spring.
          A 10,000-acre land plan based on habitat complexes that
    will establish channel areas and other important habitat by means of
    purchase, permanent conservation easements, and long-term leases.
          A sediment management plan that will clear islands
    upstream of the central Platte habitat and that will be sufficient to
    ensure no further river habitat degradation downstream.
          A research and monitoring plan that will be sufficient to
    track the impacts of all changes to the habitat and their relationship
    to species.
    CONCLUDING COMMENT
        We believe that there is a clear need for an endangered species
    recovery program in the Platte River that is basinwide, comprehensive,
    and cooperative. Because we recognize the importance of constructing a
    program that is politically feasible, we support the program's key
    principles of protecting water entitlements, of willing seller/willing
    buyer land conservation arrangements, an incremental approach to
    habitat improvement and protection, and adaptive management. The
    recovery program honors all these key principles. For these reasons and
    because the Platte is a unique and vital habitat, the National Wildlife
    Federation supports the recovery program and urges this committee and
    the House to authorize the program by passing H.R. 1462.
                                     ______

          Response to questions submitted for the record by Dan Luecke

    Additional Questions from Chairwoman Napolitano:
     How do you know that flows that benefit one species (for example,
            whooping cranes) will not have adverse effects on another
            species (for example, pallid sturgeon)? Could restoration
            activities have unintended consequences for these listed
            species?
        The flows that have been identified by the U.S. Fish and Wildlife
    Service (``species flows,'' ``pulse flows,'' and ``peaking flows'') are
    primarily for the bird species in the Big Bend reach of the Platte.
    Specific flows have yet to be identified for the pallid sturgeon, but
    there is an assumption that peak flows may be important.
     How will the Platte River habitat restoration benefit specific species
            of concern? Will a ``one size fits all'' habitat restoration
            benefit all the threatened and endangered species?
        The water and land components of the recovery plan have identified
    specific needs for each of the species.
     What entity will own the land acquired with the implementation of the
            recovery program?
        The land will be owned by a ``land holding entity'' whose only
    responsibility will be to retain deeds and leases. All management
    decisions regarding land (beginning with the decision to purchase or
    lease land) will be made by the governance committee based on
    recommendations that come from the land committee.
     Where will the money for the acquisition of land come from?
        The money from land acquisition will come from the state and
    federal contributions to the program budget.
     Do landowners along the proposed channel improvements have problems
            with the increased flows as a result of the Recovery Program?
        One of the fundamental commitments of the recovery program is a no
    flooding policy.
     Will improved recreation opportunities be compatible with habitat
            restoration?
        One of the responsibilities of the land committee will be to
    establish land use plans that will include opportunities for recreation
    that are compatible with the habitat complexes that are created.
    Additional questions from Ranking Member McMorris Rodgers:
     Can an outside group not party to the Platte River Program (Program)
            referenced in the bill still file NEPA, ESA-related or other
            litigation on existing federal projects that are covered under
            the Program?
        The recovery program is designed to meet the requirements of ESA
    and NEPA and, if program milestones and other obligations are met, to
    provide program participants with ESA protection, but there is nothing
    that would prevent groups outside the program from filing ESA or NEPA
    law suits.
     A main element under this Program is to dedicate up to 150,000 acre
            feet to endangered species. Much of this water will be taken
            from farmers and communities. Please provide specific
            mitigation plans for these water losses?
        The two main parts of the recovery program's water management plan
    designed to reduce target flows shortages in the Platte are the states'
    projects and the water action plan. The states' projects are the
    Environmental Account (EA) in Lake McConaughy (Nebraska's
    contribution), the storage reclamation project in Pathfinder Reservoir
    (Wyoming's contribution), and the Tamarack groundwater management and
    recharge Program (Colorado's contribution). These three projects are
    expected to reduce shortages by an average of about 80,000AF/yr by
    retiming water. They do not take water out of current uses. The water
    action plan consists of a number of smaller projects and actions (e.g.,
    expansion of Tamarack, groundwater management, offstream reservoir,
    water leasing, water management incentives, power interference, and so
    on), some of which retime water (e.g, Tamarack expansion, groundwater
    management, offstream storage) and some change water use (e.g., water
    leasing and possibly power interference). Leased water will be paid for
    and power interference will be compensated. All water action plan
    elements that involve a change of use will be compensated.
     The first phase of this Program and this bill's authority will last 13
            years. What quantifiable and numerical ESA recovery goals are
            in the Program?
        The recovery program contains specific milestones on actions that
    must be taken to put in place the states' projects, the water action
    plan, the creation of land habitat complexes, future depletion plans,
    and associated research and monitoring protocols in the context of an
    adaptive management plan (AMP). The AMP contains explicit hypotheses on
    the relationship between management actions and expected outcomes. The
    recovery program does not contain numeric goals or targets for species
    numbers or minimum viable population sizes.
     How will the stakeholders define success or failure? How will specific
            successes or failures be reported to the Natural Resources
            Committee since the Program will need to be reauthorized at
            some point?
        Success will be measured against meeting milestones for program
    actions associated with implementing the water and land plans and
    measurements of habitat improvement base on data gathered under the
    research and monitoring program. I would anticipate that the report on
    program successes and failures that will be made to the Natural
    Resources Committee will be based actions, milestones, and habitat
    response.
     Another Program element calls for 10,000 acres to be used for
            recovering the species. Have these lands been identified? How
            many are private? Is there a preliminary breakdown or plan of
            lands that will be acquired by outright purchase, easement or
            other means? What entity will own the lands that are purchased?
        The lands have not been identified, but criteria have been
    developed and concept of land habitat complexes articulated. The plan
    is to establish three complexes of slightly over 3,000 acres each and
    identify other lands that would not be part of the complexes, but would
    allow for the testing of competing hypotheses on species needs (e.g.,
    reclaimed sand pits as nesting areas). The lands that will be part of
    the complexes are very likely now private. There is not, at this
    moment, a specific mix of purchased, leased, and easement based land
    arrangements. A land holding entity is being created to hold the land
    interests (deeds, leases, etc.)
     What assurances can you give that nearby rural communities won't
            experience negative impacts associated with federal land
            acquisition, land being taken out of production or increased
            land rents and values for young farmers?
        The interests in land will not be held by a federal agency, but by
    the land holding entity. All land arrangements will be based on
    voluntary agreements, the recovery program is committed (in writing) to
    a good neighbor policy, and the program will make payments in lieu of
    taxes.
     Could ESA water needs under this Program trump the Modified North
            Platte Decree and State Water law?
        No.
                                     ______

        Mrs. Napolitano. Thank you very much.
        Mike Purcell, Wyoming Water Development?

    STATEMENT OF MIKE PURCELL, DIRECTOR, WYOMING WATER DEVELOPMENT
          COMMISSION AND CHAIRMAN OF THE GOVERNANCE COMMITTEE

        Mr. Purcell. Thank you, Madam Chair. I am Wyoming Governor
    Dave Freudenthal's representative on the Governance Committee
    of the Platte River Recovery Implementation Program, and
    presently I am serving as the chair of that committee.
        I sincerely thank you for providing me the opportunity to
    provide testimony in support of H.R. 1462. My colleagues have
    done a good job explaining the benefits of the program. I would
    only add a couple things and emphasize that this program
    affords the states the opportunity to address ESA issues
    through cooperation rather than conflict.
        Obviously you are aware we are seeking $157 million. I want
    to emphasize the fact that we, the three states, are working
    very hard to match your investment as well. To match the
    Federal funding, the three states are making $160 million in
    contributions. These contributions include $30 million in cash,
    approximately 3,000 acres of land and an average of 80,000 acre
    feet of water per year.
        Program cash will be dedicated to additional land
    purchases, providing an additional 50,000 to 70,000 acre feet
    of water, and of course the very important scientific adaptive
    management program. I am proud to report that Wyoming has
    appropriated its share of this $30 million and that we are
    ready to do business.
        While it does not show up as a contribution to the match,
    it should not be overlooked that the states have also agreed to
    curtail their water use to 1997 levels. We are each doing that
    through different ways, but I want to assure you. Achieving
    these thresholds will be costly and will affect future water
    use and management decisions in all three states.
        I would like to turn now to the Pathfinder Modification
    Project regarding the authorization for the Secretary of the
    Interior to modify Pathfinder Dam and Reservoir and to enter
    into agreements with the State of Wyoming for the
    implementation of the project.
        The State of Wyoming is willing and ready to complete the
    necessary agreements and provide the funding for the project.
    The Wyoming legislature has approved an appropriation of $8.5
    million to complete the project. There are no Federal funds
    involved.
        The Bureau of Reclamation has a Wyoming water right to
    store 1,070,000 acre feet of water in Pathfinder Reservoir for
    the benefit of the North Platte Project, which includes
    irrigation lands in eastern Wyoming and western Nebraska. Over
    the years, approximately 54,000 acre feet of the storage space
    has been lost to sediment.
        The project proposes to simply raise the height of the
    emergency spillway by 2.4 feet. That will allow us to recapture
    the full permitted capacity of 1,070,000 acre feet, thereby
    perfecting the Federal entitlement under Wyoming water law.
        The operations of the project were carefully crafted during
    a little skirmish we call the Nebraska v. Wyoming lawsuit. The
    parties to that lawsuit were the United States, Nebraska,
    Colorado and Wyoming, which we were having little skirmishes in
    court at the same time we were cooperating in the development
    of this program. Again, the operations of the project were
    crafted in that settlement, which was ultimately approved by
    the U.S. Supreme Court in November 2001.
        There are two accounts, two storage accounts in the
    Pathfinder Modification Project. The first, approximately
    34,000 acre feet of the recaptured space, has been designated
    as the environmental account, which is Wyoming's water
    contribution to the program on behalf of its water users,
    including the Federal government and its major storage
    facilities on the Platte River basin in Wyoming.
        The remaining 20,000 acre feet of storage space has been
    designated as the Wyoming account, which will be operated to
    provide a much needed supplemental municipal supply for
    communities along the North Platte River, as well as a water
    supply to meet certain specified obligations that Wyoming has
    taken on in the settlement of the Nebraska v. Wyoming lawsuit.
        In return for the Wyoming account, the State of Wyoming is
    giving up permits and entitlements to what we had called the
    Deer Creek Dam and Reservoir Project that would have been a
    substitute. The Wyoming account is going to serve as a
    substitute for that previously proposed project.
        In conclusion, Madam Chair, the Pathfinder Modification
    Project is essential for Wyoming in order to meet its
    obligations to the Platte River Recovery Implementation Program
    and the Nebraska v. Wyoming settlement.
        Again, thank you for the opportunity to meet with you
    today, and I would be happy to answer any questions you have.
        [The prepared statement of Mr. Purcell follows:]

                  Statement of Mike Purcell, State of Wyoming

        My name is Mike Purcell. I am Wyoming Governor Dave Freudenthal's
    representative on the Governance Committee of the Platte River Recovery
    Implementation Program. Presently, I am serving as Chairman of that
    Governance Committee. I would like to offer the following thoughts
    relating to the importance of H.R. 1462 to the Department of Interior,
    States of Colorado and Nebraska, and, in particular, the State of
    Wyoming.
        The Platte River Recovery Implementation Program and Pathfinder
    Modification Project enjoy the support of water users in the Platte
    River Basin in Wyoming, including the irrigators that contract for
    federal storage water, several municipalities, and others.
    I.  Platte River Recovery Implementation Program (Program)
        Issues related to the endangered birds and the critical habitat in
    the Central Platte River in Nebraska have affected water use and
    management in the States of Colorado, Nebraska, and Wyoming since the
    late 1970's. They have affected the relationships between the states
    and with the federal government. The Platte River Recovery
    Implementation Program affords the states the opportunity to address
    these issues through cooperation rather than conflict.
        After 14 years, the negotiations have been completed. The Wyoming
    Legislature has approved the state's Program financial contribution of
    $6M and Governor Freudenthal and the other signatories have executed
    the necessary agreements. The Program commenced on January 1, 2007.
        The Program will provide the states coverage under the Endangered
    Species Act (ESA) through simplified consultation processes for
    existing water related activities and certain specified new water
    related activities. The states and their water users will not be
    required to complete contentious ESA consultations on each water
    related activity requiring federal approvals. Without the Program,
    proponents of these activities would likely be required to provide
    funding and water to gain clearance under the ESA.
    A. Key Components of the Program
        1. A major Program objective is to provide 130,000-150,000 acre
    feet of water per year to reduce shortages to the Fish and Wildlife
    target flows in the Central Platte.
        2. Another Program objective is to provide and maintain 10,000
    acres of habitat in the Central Platte.
        3. The monetary budget is approximately $187M for the first
    increment of the Program. The federal government will provide
    approximately $157M. To match the federal funding, the three states are
    making $160M in contributions. These contributions include: $30M in
    cash, approximately 3,000 acres of land, and an average of 80,000 acre
    feet of water per year. Program cash will be dedicated to additional
    land purchases and restoration, additional water (50,000-70,000 acre
    feet of water per year), and an adaptive management program.
        4. While it does not show up as a contribution to match the federal
    funding, it should not be overlooked that the states have also agreed
    to curtail their water use to 1997 levels. Each state has developed a
    depletions plan which has been approved by the parties that outlines
    how that state will manage its water to meet this threshold.
    Implementing these depletions plans will be costly and will affect
    future water use and management decisions in all three states.
        5. The first increment of the Program will be 13 years. Provisions
    in the Program call for additional increments if needed and if approved
    by the states and the Department of Interior.
        6. An adaptive management scientific approach will be implemented
    to determine the water and habitat needs of the endangered birds
    (whooping crane, least tern, and piping plover) in the Central Platte
    River basin in Nebraska and the pallid sturgeon in the Lower Platte
    River basin in Nebraska. The states and their water users will have a
    seat at the table during the development of this information, which
    will become the best scientific information available for ESA purposes
    and will become the basis of future consultations.
        7. The Program will be implemented by a Governance Committee in
    which the states and their water users will both have individual
    members. The Committee will operate on a consensus basis, which will
    ensure that all views must be addressed.
        8. The Program will serve as the reasonable and prudent alternative
    under the Endangered Species Act for existing water related activities
    (depletions) that occurred prior to July 1, 1997, the date of the
    initiation of the Cooperative Agreement which led to the Program, and
    certain specified new water related activities.
    B. Why?
        Wyoming, Nebraska, and Colorado became interested in the Program
    when it became apparent that the ESA provided the U.S. Fish and
    Wildlife Service the authority to require the replacement of existing
    depletions until it achieved its water supply goal for the critical
    habitat in the Central Platte River in Nebraska. Therefore, the three
    states, the Department of Interior, affected water users, and
    environmental groups began seeking a cooperative solution in 1993.
        Why did the states stay the course during 14 years of negotiations
    relating to the Program? The state representatives had several meetings
    and discussions relating to future life without a Program and came to
    the following conclusions:
        1. The Fish and Wildlife Service would be obligated under ESA to
    undertake separate ESA consultations on the federal reservoirs and
    other major reservoirs in each state. The likely outcome would be that
    the operations of those reservoirs that are presently serving our water
    users would be reconfigured to provide 417,000 acre of feet water for
    the endangered species and their habitat. The loss of this water would
    ``ripple'' through each state's water right system impacting not only
    the users of the storage water but also all water users in our states.
        2. Without the Program, ESA consultations required for future
    federal actions (permits, including renewals; funding; contracts;
    easements; and others) would require our water users (irrigators,
    municipalities, industries and others) to replace existing and proposed
    new depletions.
        3. Prolonged and costly law suits would likely be initiated by each
    state, or by the states collectively, challenging the ESA and the Fish
    and Wildlife Service's interpretation of the ESA. Recent case history
    indicates that unless there is meaningful reform to ESA, investments in
    such litigation would likely be lost.
    II. Pathfinder Modification Project
    A. Description
        The Pathfinder Modification Project is authorized by Appendix F to
    the Final Settlement Stipulation relating to the Nebraska v. Wyoming
    law suit, as approved by the U.S. Supreme Court. A copy of the
    Stipulation is attached to this written testimony. The Bureau of
    Reclamation (USBR) has a Wyoming water right to store 1,070,000 acre
    feet of water in Pathfinder Reservoir for the benefit of the North
    Platte Project, which includes irrigated land in Eastern Wyoming and
    Western Nebraska. Over the years, 53,493 acre feet of the storage
    capacity of the reservoir have been lost to sediment. The project would
    recapture this storage space. The recaptured space would be
    administered through two accounts, the ``Environmental account'' and
    the ``Wyoming account.'' The operation of these accounts was carefully
    crafted during the negotiations that lead to the settlement of the
    Nebraska v. Wyoming law suit which has been approved by the U.S.
    Supreme Court in November, 2001. The United States and the States of
    Colorado, Nebraska, and Wyoming were parties to the negotiations.
        An ``Environmental account'' consisting of 33,493 acre feet of the
    proposed 53,493 acre foot enlargement will be established and will be
    operated for the benefit of the endangered species and their habitat in
    Central Nebraska. The Environmental account is Wyoming's water
    contribution to the Platte River Recovery Implementation Program
    (Program) on behalf of all of its water users in the Platte River
    basin, including the federal government and its major storage
    facilities in our state and irrigators in Nebraska that rely on storage
    water from the federal dams in Wyoming.
        The State of Wyoming has the exclusive right to contract with the
    USBR for the use of 20,000 acre feet of the enlargement capacity in a
    ``Wyoming account.'' The USBR, under contract with Wyoming, will
    operate the 20,000 acre feet of storage to insure an annual firm yield
    of 9,600 acre feet. This is the same yield that was anticipated from
    the proposed Deer Creek Dam and Reservoir. Upon completion of the
    Pathfinder Modification Project, Wyoming will cancel existing water
    rights and federal permits pertaining to the Deer Creek Project.
        The ``Wyoming account'' will serve as a much needed supplemental
    water supply for Wyoming's municipalities during times of water rights
    regulation. Many of the municipal water supplies along the North Platte
    River have junior water rights which may be shut off or severely
    curtailed during water rights regulation. The account will also provide
    water to meet some of Wyoming's obligations specified in the Nebraska
    v. Wyoming settlement agreement and documented in the Modified North
    Platte Decree.
        The modification would be accomplished by raising the elevation of
    the existing spillway by approximately 2.4 feet with the installation
    of an ogee crest. The recaptured storage space would store water under
    the existing 1904 storage right for Pathfinder Reservoir and would
    enjoy the same entitlements as other uses in the reservoir, with the
    exception that the recaptured storage space could not place regulatory
    calls on existing water rights upstream of Pathfinder Reservoir, other
    than the rights pertaining to Seminoe Reservoir.
        The Pathfinder Modification Project is essential to Wyoming in
    order for the state to meet its obligations under the Program and the
    Modified North Platte Decree.
    B. Status
        State authorization to contract with the USBR was approved by the
    2006 Wyoming Legislature. The Wyoming Legislature has approved an
    appropriation of $8.5M to implement the project.
        The next critical step is securing Congressional authorization for
    the Secretary of the Interior to modify the Pathfinder Dam and
    Reservoir and enter into agreements with the State of Wyoming for the
    implementation of the project. Upon receipt of this authorization, the
    following work can be completed:
        1. The USBR must obtain a partial change of use for its Wyoming
    water right for Pathfinder Reservoir from the Wyoming Board of Control
    for the 53,493 acre feet of Pathfinder storage water from irrigation
    use to the uses proposed by the Project. The funding approved by the
    Wyoming Legislature cannot be encumbered until the USBR obtains this
    partial change of use. This condition was placed on the funding to
    ensure that those with concerns about the project could express those
    concerns before a state tribunal before construction could begin.
        2. The State of Wyoming and USBR must negotiate a contract to
    formalize the partnership between the parties.
        3. While the final EIS for the Program will serve to address the
    regional effects of the project, a site-specific NEPA document will be
    required.
        4. Under the PRRIP, Wyoming is obligated to have the Project
    operational in 2011. However, the WWDC would like to have the project
    completed as soon as possible as the water is needed to meet the
    state's obligations under the Modified North Platte Decree.
    C. Proposed Amendment
        An amendment to Senate Bill 752 and House Resolution 1462 has been
    proposed on behalf of the Upper North Platte Water Users. The proposed
    amendment suggests that the Bureau of Reclamation should be restricted
    from seeking water rights administration (calls for regulation) on
    behalf of Pathfinder Reservoir during the irrigation season. I would
    like to offer the following clarifications:
        1. The Platte River Recovery Implementation Program (Program) and
    the Pathfinder Modification Project (Project) will not impact the issue
    of priority calls on water rights upstream of Pathfinder Reservoir
    during the irrigation season. This matter relates to interpretations of
    the Modified North Platte Decree and Wyoming water law.
        2. All calls for regulation must be deemed valid by the Wyoming
    State Engineer before any water rights administration can occur. The
    Wyoming State Engineer has advised that a very difficult standard must
    be overcome for such calls to be honored.
        3. The Wyoming Attorney General, upon review of the Modified North
    Platte Decree, concluded that such calls should not be honored
        4. The matter of the effects of the Project on Wyoming water users
    will be brought before the Wyoming Board of Control during its hearings
    on the Bureau of Reclamation's petitions for the partial change of use
    to the storage water right for Pathfinder Reservoir. The Upper North
    Platte Water Users will be afforded the opportunity to present their
    views and evidence to this state tribunal and state statutes ensure
    that the project cannot be constructed until the opportunities for any
    resulting appeals have been exhausted.
        5. Please refer to Section 1 of the attached copy of Appendix F to
    the Final Settlement Stipulation which states in part: ``The recaptured
    storage space would store water under the existing 1904 storage right
    for Pathfinder Reservoir and would enjoy the same entitlements as other
    uses in the reservoir with the exception that the recaptured storage
    space could not place regulatory calls on the existing water rights
    upstream of Pathfinder Reservoir other than the rights pertaining to
    Seminoe Reservoir.'' (Emphases added.) The Upper North Platte Water
    Users are located upstream of Pathfinder Reservoir.
    [GRAPHIC] [TIFF OMITTED] 34982.001

        .eps[NOTE: Appendix F has been retained in the Committee's official
    files.]
                                     ______

        Response to questions submitted for the record by Mike Purcell,
                                State of Wyoming

    Additional questions from Ranking Member McMorris Rodgers:
     Question: Can an outside group not party to the Platte River Program
            (Program) referenced in the bill still file NEPA, ESA-related
            or other litigation on existing federal projects that are
            covered under the Program?
        Response: Yes
     Question: A main element under this Program is to dedicate up to
            150,000 acre feet to endangered species. Much of this water
            will be taken from farmers and communities. Please provide
            specific mitigation plans for these water losses?
        Response: The State of Wyoming's water contribution to the Program
    consists of the Environmental Account in the Pathfinder Modification
    Project. The Pathfinder Modification Project is authorized by Appendix
    F to the Final Settlement Stipulation, which are crafted during the
    settlement of the Nebraska v. Wyoming law suit and approved by the U.S.
    Supreme Court. (A copy of Appendix F is attached to my written
    testimony.) The Bureau of Reclamation (USBR) has a Wyoming water right
    to store 1,070,000 acre feet of water in Pathfinder Reservoir for the
    benefit of the North Platte Project, which includes irrigated land in
    Eastern Wyoming and Western Nebraska. Over the years, 53,493 acre feet
    of the storage capacity of the reservoir have been lost to sediment.
    The project would recapture this storage space; thereby perfecting the
    USBR's Wyoming water right. The recaptured space would be administered
    through two accounts, the ``Environmental account'' and the ``Wyoming
    account.'' The ``Environmental account'' consists of 33,493 acre feet
    of the recaptured space. The Environmental account is Wyoming's water
    contribution to the Platte River Recovery Implementation Program
    (Program) on behalf of all of its water users in the Platte River
    basin, including the federal government and its major storage
    facilities in our state and irrigators in Nebraska that rely on storage
    water from the federal dams in Wyoming.
        The utilization of the 53,493 acre feet of storage space under the
    USBR's storage right for new purposes will affect other water users.
    However, the majority of the water users understand that the effects of
    the Platte River Recovery Implementation Program and the Pathfinder
    Modification Project are far less than the impacts of unbridled Section
    7 consultations throughout Wyoming. In particular, the contractors for
    federal storage under the Kendrick Project, the North Platte Project,
    and the Glendo Unit are affected.
        The above reference Appendix F, pages 115 and 116, describes
    mitigation plans in the form of funding for safety of dam issues for
    federal contractors and assistance with the resolution of selenium
    issues within the Kendrick Project (Seminoe Reservoir). In addition,
    there are provisions in Appendix F, page 110, that ensure the
    recaptured space could not place regulatory calls on existing water
    rights upstream of Pathfinder Reservoir other than the rights
    pertaining to Seminoe Reservoir.
     Question: The first phase of this Program and this bill's authority
            will last 13 years. What quantifiable and numerical ESA
            recovery goals are in the Program?
        Response: The Program does not include goals related to increased
    populations of the species, as the cranes, terns, plovers, and sturgeon
    have important habitat needs in other locations in the United States
    and Canada. The Program goal in the Central Platte relates to the
    restoration and maintenance of 10,000 acres of habitat in the Central
    Platte. In addition, the Program has milestones related to progress on
    water and land acquisition and the scientific aspects of the Program
    that must be met to maintain regulatory certainty under the ESA, which
    is very important to the states and water users.
     Question: How will the stakeholders define success or failure? How
            will specific successes or failures be reported to the Natural
            Resources Committee since the Program will need to be
            reauthorized at some point?
        Response: In addition to achieving the habitat and milestones
    discussed in the previous response, Program success can also be defined
    by the development of better science through the Adaptive Management
    Plan, which will better define the needs of the species and identify
    the most effective means to provide habitat.
     Question: Another Program element calls for 10,000 acres to be used
            for recovering the species. Have these lands been identified?
            How many are private? Is there a preliminary breakdown or plan
            of lands that will be acquired by outright purchase, easement
            or other means? What entity will own the lands that are
            purchased?
        Response: The lands have not been specifically identified, but a
    Land Action Plan has been developed which provides general descriptions
    of the lands the Program would like to acquire. It is likely that most,
    if not all, of the lands are presently held by private interests. There
    is no breakdown of lands that may be acquired by purchase, easements or
    other means. The Program is committed to acquiring interest in land
    through ``willing buyer/willing seller'' relationships. The
    negotiations with the land owners will establish the manner in which
    the Program acquires interests in land. A Land Interest Holding Entity
    will be retained that will hold the titles, leases, easements or other
    interests in land on behalf of the Department of Interior and the
    States of Colorado, Nebraska, and Wyoming.
     Question: What assurances can you give that nearby rural communities
            won't experience negative impacts associated with federal land
            acquisition, land being taken out of production or increased
            land rents and values for young farmers?
        Response: As previously noted, negotiations with land owners will
    be on the basis of ``willing buyer/willing seller.'' In addition, the
    Program has adopted a Good Neighbor Policy and will pay property taxes.
    However, the Program cannot guarantee that it will not affect property
    values in the area. Land is going to be acquired for habitat with or
    without a Program. Without a Program, lands would be purchased by water
    users seeking mitigation to comply with individual consultations under
    the ESA. The only assurances we can provide is the Program's approach
    will be more systematic and goal oriented.
     Question: Could ESA water needs under this Program trump the Modified
            North Platte Decree and State Water law?
        Response: With a Program, no. Without a Program, yes. This is a
    major reason that the states support the Program.
                                     ______

        Mrs. Napolitano. Thank you, Mr. Purcell.
        Thank you to all the witnesses. Now we will proceed with
    questions from our Members.
        I have a couple I will start off with to any of you. Do any
    of the states have the endangered species laws? Are they more
    stringent or less stringent than the Federal ESA?
        Ms. Bleed. Nebraska does have a state endangered species
    law. It parallels very closely to the Federal Endangered
    Species Act, and the law is administered by our Nebraska Game
    and Parks Commission.
        Mrs. Napolitano. Anybody else?
        Mr. Kowalski. Colorado does have a similar law that is
    administered by the Division of Wildlife, but it is a lot less
    restrictive and the penalties are a lot less onerous.
    Therefore, it is so much less effectual than the Federal ESA.
        Mr. Purcell. Madam Chair, Wyoming has no endangered species
    law. Thank you.
        Mrs. Napolitano. Thank you. No comment.
        How does the program define success? Again, I am going back
    to the success of what you are trying to do. How will you know
    whether the program is really working?
        The authority to make the changes. The program is broad in
    Section 104. How does the flexibility relate to the ESA
    compliance, and what oversight will you have over this?
        In your experience, which is more strenuous, the Federal
    ESA or the state ESA, and what constitutes consistency between
    the two?
        Mr. Kowalski. I could just comment specifically. You heard
    about the milestones earlier in the testimony from Mr. Butler
    of the Fish and Wildlife Service. Regulatory compliance is
    assured as long as we are meeting those milestones. Milestones
    equals compliance for water users at least mainly within
    Colorado.
        I already indicated that Colorado's Endangered Species Act
    law, if you will, is less stringent.
        Would you like to comment about Nebraska's?
        Ms. Bleed. I think the Nebraska law, which very closely
    monitors the Federal law, is probably roughly comparable to the
    Federal law.
        The fact of the matter is that the Federal law is usually
    the law that people are concerned about, and as long as we are
    meeting the Federal Endangered Species Act, the state
    Endangered Species Act is met so that the two complement each
    other.
        I would also just like to add to the how do we know when we
    succeed, again I think the adaptive management program, which
    sets out very detailed protocols and procedures of measuring
    success, will be very helpful in determining whether what we
    are doing is in fact succeeding.
        Mrs. Napolitano. OK. Mr. Purcell, in your testimony you
    stated the states have agreed to curtail their water use to
    1997 levels.
        What is the difference in water use in acre feet between
    now and 1997? How will that be implemented? Who will be most
    affected, and what is being done to sustain the people or
    environment affected?
        Mr. Purcell. Madam Chair, each state has developed what we
    call a depletions plan, and each state has their own way of
    maintaining this threshold. These depletion plans were
    submitted and reviewed by the entire negotiating teams and were
    adopted and approved as part of the program. We will annually
    report, in Wyoming's case in particular, our depletions for
    that year in measuring them against certain thresholds.
        The program itself doesn't mean we are going to be stable
    in our use. It will be stable in the levels of our use, but we
    will be transferring water from one purpose to another under
    those thresholds, so that is how they in fact operate.
        Again, there will be annual reports to the Governance
    Committee explaining what we have done in each particular year.
        Mrs. Napolitano. And if they are not able to meet that what
    will then happen?
        Mr. Purcell. Madam Chair, we will have to throw ourselves
    at the mercy of our peers and see what we can do to catch up or
    to maintain our promise that we are holding stable.
        The understanding is on one side providing water for the
    habitat and then on the other side using more and more water,
    digging the hole deeper, if you will, did not make sense, so we
    are all committed to stabilizing a baseline of water use so
    that the water we are providing is in fact a benefit.
        Mrs. Napolitano. Thank you very much.
        Mrs. McMorris Rodgers?
        Mrs. McMorris Rodgers. Thank you, Madam Chairman, and thank
    you, everyone, for your testimony. I have a question for
    whoever would like to answer.
        The main element of the program allows for certain new
    water uses, and given the growing population needs in this area
    I wanted to ask if you would explain what certain new water
    uses means.
        Mr. Kowalski. Thank you, Madam Chairwoman.
        In Colorado, which has seen a tremendous amount of growth
    over the last few years, more population doesn't necessarily
    mean less water in the river because you have things such as
    transbasin diversions from the Colorado River, so it is
    actually a net accretion potentially to the river or
    introduction of nontributary water. You potentially are going
    to see more water in the river.
        What happens as a result of this is there are periods of
    net accretion to the river and periods of net depletion to the
    river, so it is not that there is less water in the river. It
    is just coming at different times potentially.
        Colorado's depletion plan largely looks at retiming water
    to times of need for the habitat. That is both true with its
    10,000 acre foot water contribution, which we sometimes refer
    to as the Tamarack I obligation, and then Tamarack II is what
    we refer to as our new depletions obligation.
        Again, it is not necessarily building more reservoirs to
    put more water in the river, but it is just retiming that water
    to when it meets the affected habitat.
        Mrs. McMorris Rodgers. So do you see new water uses? What
    kind of new water uses do you see in this plan?
        Mr. Kowalski. Again, Madam Chairwoman, we are seeing
    development of additional domestic uses, but there are
    different ways to meet that supply. We are seeing some of it
    from transbasin diversion, some of it from new water uses or
    new water such as nontributary water. We also see it from ag to
    urban dry ups or interruptable supply agreements and the like.
        So you are seeing people or communities have a lot of
    different tools in their toolbox to meet their water demands,
    and what the program does is it assures that the water is
    retimed or reworked or reregulated so that it will meet the
    affected areas at the right time.
        Mrs. McMorris Rodgers. OK.
        Mr. Berryman. I might add to that just real quickly. I
    think Mr. Kowalski covered it fairly well.
        Colorado has really developed their unappropriated water
    sources pretty much all the way. There is maybe still a little
    bit of that left over. Everything else is redoing what we have
    already done.
        An example. In that study I mentioned that the Colorado
    Water Conservation Board did for the future, their estimate was
    that we may see a change of 130,000 to 200,000 acres of
    irrigated land to be retired to make water available for some
    of the growth.
        Those are the kind of issues that we deal with, and that is
    where the water comes from; either that or sources that are not
    native to the basin.
        Ms. Bleed. If I might add for Nebraska, in 1993 the State
    of Nebraska did provide permits for in-stream flows for fish
    and wildlife on the Platte River, and soon after we declared a
    moratorium on issuing new surface water permits saying that
    there was no longer any available water to appropriate to new
    permits, so we have already done a fair amount in terms of
    surface water in the Platte River in Nebraska.
        In addition, in 2004, the state passed a fairly
    encompassing interrelated water management bill that has
    essentially said that the Platte River in the western two-
    thirds of the state is fully appropriated. We have shut down
    the new uses of water, the expansion of irrigated land and so
    that cannot occur.
        However, you can have new uses of water by transferring
    water from an existing use to the new use, and right now the
    state is working with the natural resources districts in
    Nebraska to establish goals for how that transfer can occur,
    but we are committed to not allowing any new uses, as well as
    what we refer to as backing up the train on the Platte River to
    get back to the 1997 level of depletions.
        Mrs. McMorris Rodgers. OK. Thank you.
        Mrs. Napolitano. Yes, Mr. Udall?
        Mr. Udall. Thank you, Madam Chair.
        I want to thank the two representatives of the States of
    Wyoming and Nebraska for being here today. It is a particular
    pleasure for me to have three Coloradans here, Mr. Berryman,
    Mr. Kowalski and of course my long-time friend, Mr. Luecke.
    Thank you for being here.
        I don't want to suggest Mr. Luecke and I are getting long
    in the tooth, but I do remember when our children were toddlers
    and when we had different hair color.
        Thank you, Dan, for your great work over all these years
    and finding some creative, collaborative approaches on these
    two very important river systems that originate in Colorado and
    are also depended on by people across the southwest and the
    high prairie terrain. It is great to see you here. Thank you.
        I wanted to if I could, Mr. Kowalski, turn to you for a
    couple I think short questions that I am sure you would
    anticipate. Thanks for your testimony. You did an excellent job
    explaining the State of Colorado's role in developing the
    recovery program and the importance of this legislation for
    this state, but I know it would be helpful for the Subcommittee
    and the public if you could expand on your statement by
    responding to our questions.
        About a year ago the Colorado state engineer ordered more
    than 400 wells in the South Platte Valley to shut down. As you
    know, this triggered a crisis for many farmers in the affected
    area. My understanding is that this action was taken in order
    to implement a relatively new provision of Colorado water law.
    Is that correct?
        Mr. Kowalski. Yes, it is. The Empire Lodge decision in the
    Colorado Supreme Court ordered that the state engineer did not
    have that authority to approve temporary substitute supply
    plans, so a new law was instituted that would allow temporary
    substitute supply plans for a certain number of years.
        Last year was the last year where they could do that before
    they got court approval. They are currently pending as a
    temporary substitute supply plan before the water court that
    would allow uses to occur.
        Mr. Udall. So the answer is yes, it was to implement a
    relatively new----
        Mr. Kowalski. That is correct, yes.
        Mr. Udall. Let me turn to the Endangered Species Act and
    any other Federal laws. Did the ESA or any other Federal law
    play a role in this shutdown we are discussing?
        Mr. Kowalski. Absolutely not.
        Mr. Udall. This is the nub of what I am trying to get to.
    Implementing the recovery program as this bill would do would
    not affect the likelihood of further shutdowns in the future?
        Mr. Kowalski. No.
        Mr. Udall. Again, thank you for being concise and to the
    point. I again want to acknowledge the panel coming a long way
    here to Washington, D.C. to help edify us and help us move this
    legislation forward.
        Madam Chairwoman, thank you so much for holding this
    hearing. As you can tell, this is important to three states,
    and I would, without being presumptuous, suggest to the Ranking
    Member and the Chairwoman that our example maybe would hold
    with the great states of Washington, Oregon and California, who
    continue to work together in their own ways as well.
        Thank you.
        Mrs. Napolitano. We are doing that, sir.
        Mr. Udall. I just wanted to give the Chairwoman and the
    Ranking Member a chance to brag about all the great things they
    are doing.
        Mrs. Napolitano. We still have a lot of work to do. Thank
    you, Mr. Udall.
        I would like to submit my questions to you. We are running
    a little short of time and some people have to catch flights.
        Mrs. McMorris Rodgers? I am sorry. Mr. Smith? Yes.
        Mr. Smith. Thank you. Very briefly, I just want to
    acknowledge my appreciation to the panel for I think reflecting
    the collaboration that has been very evident over the last
    several years--finally it is all coming together--and realizing
    that we have made a lot of progress in conservation with record
    high yields in agriculture and record low amounts of irrigation
    in the process, so we have come a long way, but obviously we
    need to go a little further.
        It is not that a lot of folks are fans of the Endangered
    Species Act across rural Nebraska, but they understand what is
    before us, and I appreciate their understanding.
        That being said, Ann, I appreciate your participation here.
    Certainly you know that agriculture is at the center of
    Nebraska's economy, and retiring cropland from irrigation
    raises concerns in these rural communities economically
    primarily.
        Can you maybe just share briefly about the long-term
    interest that we have in this situation for the sustainability
    of agriculture?
        Ms. Bleed. I will try. We are very concerned about
    sustaining irrigated agriculture in the basin and in the state
    as a whole. It is the backbone of our economy.
        One of the reasons that we passed the integrated management
    law that I mentioned previously was to provide for the
    sustainability of irrigated agriculture, as well as all the
    other economies in the state that pertain or rely on having
    water available.
        It is for that reason that we are working to develop
    integrated management plans where the balance of supply and use
    can be maintained so that we know how much water we will have
    in the future to maintain irrigated agriculture, as well as a
    number of other uses, including uses for fish and wildlife.
        Mr. Smith. OK. Thank you. I do want to thank you for making
    this trip out here. I know that this isn't the only water issue
    Nebraska faces right now, as you can attest, so I appreciate
    your dedication to the issue.
        Ms. Bleed. I might just add, Congressman, that the Governor
    did sign a massive water bill today that will provide $2.7
    million to working on just projects such as you were talking
    about in terms of maintaining our water supplies.
        Mr. Smith. Thank you.
        Ms. Bleed. $2.7 million a year that is.
        Mr. Smith. Very good. And I might also share with my
    colleagues here that I guess we kind of feel your pain on this
    issue because we are upstream on another issue, just like
    Colorado and Wyoming are in this situation, so thank you for
    your involvement and collaboration.
        Thank you.
        Mrs. Napolitano. Thank you, Mr. Smith.
        I certainly couldn't agree with you more that if we don't
    work collaboratively not only at that end, but at this end, we
    cannot help resolve our country's water issues. It is going to
    be critical, and more so in the future, as we face global
    warming and depletion of our aquifers and loss of
    precipitation, all those things. Unless we begin to understand
    what we are facing and work collaboratively, I am sure we face
    even worse challenges.
        Thank you for your collaboration. Thank you, Mr. Peltier.
    Thank you for sticking around. There were no questions. Aren't
    you lucky, sir?
        I certainly echo the sentiments of my colleagues. Thank you
    for traveling to Washington and sitting patiently to come
    before this committee and give your testimony.
        Before we adjourn, I want to introduce my daughter for the
    day, Courtney Ashmon, who has been very patiently sitting in
    the back listening to things. She is a ninth grader. It is Take
    Your Daughter To Work Day, and my baby daughter is 46, so I
    don't think she would come. I adopted one for the day and just
    wanted to introduce her.
        I certainly want to thank my Ranking Member and both staff
    who worked so very hard to ensure that testimony is brought to
    us and that we understand the issues.
        With that, this meeting is adjourned. Wait a minute. Before
    that, under Committee Rule 4[h] additional material for the
    record should be submitted by Members or witnesses within 10
    days after this hearing.
        I greatly appreciate the cooperation of all of you in
    responding promptly to any questions that you may wish to
    submit in writing.
        With that, the hearing is adjourned. Thank you very much.
        [Whereupon, at 3:10 p.m. the Subcommittee was adjourned.]