[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



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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: [email protected]

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.]

                                 
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