[Senate Hearing 114-399]
[From the U.S. Government Publishing Office]
S. Hrg. 114-399
PENDING WATER AND POWER LEGISLATION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
WATER AND POWER
of the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
ON
S. 593 S. 1365
S. 982 S. 1533
S. 1291 S. 1552
S. 1305
__________
JUNE 18, 2015
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
LISA MURKOWSKI, Alaska, Chairman
JOHN BARRASSO, Wyoming MARIA CANTWELL, Washington
JAMES E. RISCH, Idaho RON WYDEN, Oregon
MIKE LEE, Utah BERNARD SANDERS, Vermont
JEFF FLAKE, Arizona DEBBIE STABENOW, Michigan
STEVE DAINES, Montana AL FRANKEN, Minnesota
BILL CASSIDY, Louisiana JOE MANCHIN III, West Virginia
CORY GARDNER, Colorado MARTIN HEINRICH, New Mexico
ROB PORTMAN, Ohio MAZIE K. HIRONO, Hawaii
JOHN HOEVEN, North Dakota ANGUS S. KING, JR., Maine
LAMAR ALEXANDER, Tennessee ELIZABETH WARREN, Massachusetts
SHELLEY MOORE CAPITO, West Virginia
Subcommittee on Water and Power
MIKE LEE, Chairman
JEFF FLAKE MAZIE K. HIRONO
JOHN BARRASSO RON WYDEN
JAMES E. RISCH BERNARD SANDERS
STEVE DAINES AL FRANKEN
CORY GARDNER JOE MANCHIN III
ROB PORTMAN ANGUS S. KING, JR.
Karen K. Billups, Staff Director
Patrick J. McCormick III, Chief Counsel
Christopher Kearney, Budget Analyst and Senior Professional Staff
Member
Angela Becker-Dippmann, Democratic Staff Director
Sam E. Fowler, Democratic Chief Counsel
Melanie Stansbury, Democratic Professional Staff Member
C O N T E N T S
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OPENING STATEMENTS
Page
Barrasso, Hon. John, a U.S. Senator from Wyoming................. 1
Hirono, Hon. Mazie K., Subcommittee Ranking Member, and a U.S.
Senator from Hawaii............................................ 82
Daines, Hon. Steve, a U.S. Senator from Montana.................. 90
WITNESSES
Thompson, Dionne, Deputy Commissioner for External and
Intergovernmental Affairs, Bureau of Reclamation, U.S.
Department of the Interior..................................... 3
Meissner, Jerry, Chairman, Dry-Redwater Regional Water Authority. 33
Schempp, Adam, Senior Attorney and Director of the Western Water
Program, Environmental Law Institute........................... 43
Stern, Charles, Specialist in Natural Resources Policy,
Congressional Research Service................................. 49
Willardson, Anthony, Executive Director, Western States Water
Council........................................................ 58
Yates, Ryan, Director of Congressional Relations, American Farm
Bureau Federation.............................................. 73
ALPHABETICAL LISTING AND APPENDIX MATERIAL SUBMITTED
American Rivers:
Letter for the Record........................................ 126
Ankney, Hon. Duane:
Letter for the Record........................................ 128
Assiniboine and Sioux Tribes and Dry Prairie Rural Water
Authority:
Statement for the Record..................................... 129
Barrasso, Hon. John:
Opening Statement............................................ 1
Daines, Hon. Steve:
Opening Statement............................................ 90
Photograph................................................... 91
Eastern New Mexico Water Utility Authority:
Statement for the Record..................................... 133
Hirono, Hon. Mazie K.:
Opening Statement............................................ 82
Meissner, Jerry:
Opening Statement............................................ 33
Written Testimony............................................ 35
Montana Department of Natural Resources and Conservation:
Letter for the Record........................................ 139
Schempp, Adam:
Opening Statement............................................ 43
Written Testimony............................................ 45
Stern, Charles:
Opening Statement............................................ 49
Written Testimony............................................ 51
Thompson, Dionne:
Opening Statement............................................ 3
Written Testimony............................................ 5
Responses to Questions for the Record........................ 104
U.S. Department of Agriculture, Forest Service:
Statement for the Record regarding S. 982.................... 85
Statement for the Record regarding S. 1533................... 89
Willardson, Anthony:
Opening Statement............................................ 58
Written Testimony............................................ 60
Responses to Questions for the Record........................ 112
Yates, Ryan:
Opening Statement............................................ 73
Written Testimony............................................ 75
----------
The text for each of the bills which were addressed in this hearing can
be found on the committee's website at: http://www.energy.senate.gov/
public/index.cfm/hearings-and-business-meetings?ID=545782e0-2ade-47b3-
98f9-726dfefd4d59
PENDING WATER AND POWER LEGISLATION
----------
Thursday, June 18, 2015
U.S. Senate Subcommittee on Water and Power,
Committee on Energy and Natural Resources,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:05 p.m. in
Room SD-366, Dirksen Senate Office Building, Hon. John
Barrasso, presiding.
OPENING STATEMENT OF HON. JOHN BARRASSO, U.S. SENATOR FROM
WYOMING
Senator Barrasso. [presiding] I want to thank all of the
witnesses for being here today. I call the meeting to order.
We are in the middle of votes and members may come and go
based on that.
Today we are having a hearing on a series of water bills
that address protecting water rights and promoting water
development in the West. Four of the bills are ones I am
sponsoring. They are S. 593, the Bureau of Reclamation
Transparency Act; S. 1305, a bill to amend the Colorado River
Storage Project Act to authorize the use of the active capacity
of the Fontenelle Reservoir in my home State of Wyoming; S.
982, the Water Rights Protection Act; and S. 1533, the Water
Supply Permitting Coordination Act.
I would also like to note that I am pleased to be sitting
in for Subcommittee Ranking Member, Mike Lee. He and I share a
commitment to ensuring that we protect water rights and examine
ways to promote more water for rural and Western communities.
I will briefly explain the four bills I am sponsoring and
then if other members arrive, they will have an opportunity to
give opening statements. After that I will recognize any other
sponsors of the bills being discussed today for their
statements.
S. 593, the Bureau of Reclamation Transparency Act, is a
bill to require the Secretary of the Interior to submit to
Congress a report on the maintenance backlog of the Bureau of
Reclamation. S. 593 seeks to expand on the information provided
by Bureau of Reclamation Asset Management Plan by providing a
detailed assessment of major repair and rehabilitation needs at
the project level at Bureau of Reclamation owned and managed
sites known as reserved works. The legislation also asks the
Bureau to develop a similar assessment for sites owned by the
Bureau but managed by other entities. They are known as
transferred works. I believe it is important for Congress to
know the maintenance backlog of these sites so that we can
begin to address it. I will note that this bill unanimously
passed the Senate in the last Congress.
S. 1305 is a bill which would amend the Colorado River
Storage Project Act to authorize the use of the active capacity
of the Fontenelle Reservoir in my home State of Wyoming. The
purpose of S. 1305 is to have the Bureau of Reclamation enter
into an agreement with the State of Wyoming to complete the
area around the Fontenelle Reservoir to increase the storage
capacity of the facility. Fontenelle Reservoir is one of the
projects authorized by the Colorado River Storage Project Act
of 1956. This bill directs that the State of Wyoming pay for
the entire project. This includes paying for the study, the
design, the planning and construction of the project. This
common sense bill would provide much needed water storage for
Southwestern Wyoming.
S. 982, the Water Rights Protection Act, is a bill to
prohibit Federal agencies from withholding approving permits
unless the permitee gives up that privately held water right to
the Federal Government. This bill also prevents the
implementation of the Forest Service Groundwater Directive
which would essentially allow the Forest Service to comment on
and require permits for anything the agency claims would impact
Forest Service groundwater. This includes activities that would
occur in any watershed where there is Forest Service land. This
legislation would prohibit the Secretary of the Interior and
the Secretary of Agriculture from asserting jurisdiction over
groundwater that has been historically controlled by the
states. The bill also recognizes the state's long standing
authority related to protecting, evaluating and allocating
groundwater resources.
The purpose of S. 1533, the Water Supply Permitting
Coordination Act, is to streamline the current multiple agency
permitting process that delays the construction of new or
expanded surface water storage by creating a one stop shop
permitting process through the Bureau of Reclamation.
Currently, Federal agencies are not required to coordinate
their permits and approvals with one another which can lead to
significant delays in the development of new water storage.
This legislation would put the Bureau of Reclamation in the
lead role as a coordinating agency to expedite the process. I
believe this important bill will help expedite the construction
of new water storage projects throughout the West.
As other members appear I will call on them. I would like
to recognize our witnesses today. Ms. Dionne Thompson, Deputy
Commissioner of External and Intergovernmental Affairs at the
Bureau of Reclamation (BOR); Mr. Jerry Meissner, Chairman of
the Dry Red-water Regional Water Authority; Mr. Adam Schempp,
the Director of Western Water Program, Environmental Law
Institute; Mr. Charles Stern, Specialist in Natural Resource
Policy, Congressional Research Service; Mr. Tony Willardson,
Executive Director, Western States Water Council; and Mr. Ryan
Yates, Director of Congressional Relations, American Farm
Bureau.
With that let me please call on Ms. Thompson.
STATEMENT OF DIONNE THOMPSON, DEPUTY COMMISSIONER FOR EXTERNAL
AND INTERGOVERNMENTAL AFFAIRS, BUREAU OF RECLAMATION, U.S.
DEPARTMENT OF THE INTERIOR
Ms. Thompson. Chairman Barrasso, I am Dionne Thompson,
Deputy Commissioner for External and Intergovernmental Affairs
at the Bureau of Reclamation. Thank you for the opportunity
today to testify on the seven bills before the Subcommittee
today.
In the interest of time I will summarize the Department's
views briefly and submit my full testimony on each bill for the
record.
I will do my best to answer any questions proposed today;
however, as you know, these bills deal with very specific
ongoing issues in some of your home states, so I may need to
defer with detailed answers on some questions and reply in
writing for the record.
S. 593, the Reclamation Transparency Act. To begin, S. 593
directs Reclamation to improve and expand upon the information
developed on the state of its infrastructure. The bill reflects
extensive edits made by the sponsors during the prior Congress
and is consistent with the draft infrastructure investment
strategy Reclamation is initiating concurrently. For these
reasons we are pleased to support the bill.
S. 982, the Water Rights Protection Act. My written
statement on S. 982 explains the Department's views that this
bill compromises the Federal Government's long standing
authority to manage Federal lands and associated water
resources, uphold proprietary rights for the benefit of Indian
Tribes and insure proper management of the public lands and
resources for the benefit of all citizens. This legislation is
overly broad and could have numerous unintended consequences
that would have adverse effects on existing law and voluntary
agreements. The Department opposes S. 982.
S. 1291, the Northport Irrigation Bill. S. 1291 deals with
early repayment by the Northport Irrigation District. The
Department supports this legislation and supported it in prior
Congresses, and we are pleased to support it today.
S. 1305, the Fontenelle Reservoir bill. S. 1305 amends the
Colorado River Storage Project Act to authorize Reclamation to
modify Fontenelle Dam on the Green River in Wyoming and as a
result increase the amount of water developed by Fontenelle.
With positive statements detailed in my written statement, the
Department does not oppose S. 1305.
S. 1365, Rural Water Project Completion Act. S. 1365
creates a fund in the Treasury which would provide Reclamation
with a dedicated funding stream to pay for construction of
authorized rural water projects and to implement Indian water
rights settlements. The Department appreciates the sponsor's
desire to assist Reclamation with its important budget
obligations, and we support the goals of this bill. We have
some specific concerns, however, described in my written
statement.
S. 1533, the Water Supply Permitting Coordination Act. S.
1533 directs the Secretary of the Interior to coordinate
Federal and State permitting processes related to the
construction of new surface storage projects on lands managed
by Interior or the Department of Agriculture. The Department
does not find the provisions of S. 1533 to be necessary and
consequently does not support the bill.
S. 1552, the Clean Water for Rural Communities Act. Lastly,
as S. 1552 would authorize destruction, construction rather, of
the Dry-Redwater Regional Water Authority System and the
Musselshell-Judith Rural Water System in the States of Montana
and North Dakota. These projects would create several hundred
million dollars of new budget obligation on Reclamation's Rural
Water Program. For that reason and the reasons described in my
written statement, the Department does not support S. 1552.
Clean, safe, reliable water is essential to the well being
of our citizens and the continuing progress of America's
economic endeavors, a concept at the very heart of the Bureau's
mission. We appreciate the efforts of the Subcommittee to
address the water-related needs of the communities we serve.
The Bureau, as well, recognizes the growing water challenges
confronting families, farmers, tribes, businesses and rural
economies, particularly in the face of a changing climate.
We believe and we have always believed that such challenges
can only be met through tenacious collaboration on the ground
and here in our nation's capital. With that in mind and noting
the constraints of--budgetary resources, Federal budgetary
resources, we extend our continuing commitment to work with the
Subcommittee to strengthen Federal programs and projects and
that deliver water and power to the people we all serve.
Thank you for the opportunity to present these views. I
would be pleased to answer any questions at the appropriate
time and glad to respond in more detail in writing on any
questions requiring input from on the ground experts.
[The prepared statement of Ms. Thompson follows:]
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Senator Barrasso. Thank you so much for your testimony.
Mr. Meissner?
STATEMENT OF JERRY MEISSNER, CHAIRMAN, DRY-REDWATER REGIONAL
WATER AUTHORITY
Mr. Meissner. Good afternoon, Senator Barrasso, Senator
Daines in attendance and members of the Subcommittee. I am
Jerry Meissner, Chairman of the Dry-Redwater Regional Water
Authority from Circle, Montana. I appreciate the opportunity to
discuss our support of both S. 1552, the Clean Water for Rural
Communities Act, and S. 1365, the Authorized Rural Water
Projects Completion Act.
The Dry-Redwater Regional Water Authority System, also
called DRWA, is a rural water project in Eastern Montana with a
current service area about 11,000 square miles covering the
Montana counties of McCone, Richland, Dawson, Prairie, and
Garfield. In addition, Dry-Redwater includes McKenzie County,
North Dakota which sets atop the Bakken shale play and is North
Dakota's leading oil producing county. This bakken boom has
brought a population increase to our Eastern Montana
communities increasing the stress on our drinking water
situation.
Historically this part of Eastern Montana does not have
good quality, water quality. Simply stated, the water is unsafe
to drink. The majority of the rural residents obtain their
water from private wells. Many haul all of their drinking and
cooking water. The treatment of water in a private well is very
costly and often complicated.
The majority of the proposed communities to be served by
Dry-Redwater are currently operating their own municipal water
systems and are unable to meet the requirements of the Safe
Drinking Water Act without expensive, energy intensive
treatments.
All of the communities are using wells as a source of
water, and these wells are not providing the quality or
quantity of water needed. Many of the existing systems treat
their water with chlorine which, in turn, has caused problems
with elevated levels of disinfection byproducts. In addition,
there are problems with bacterial contamination. Total
dissolved solids, organic levels, iron, manganese, lead, copper
sulfate, sodium, and fluoride that render the water
undrinkable.
These small rural towns cannot afford to operate, maintain
and replace their own water treatment facilities; therefore, in
2002 a steering committee of volunteers was formed and the Dry-
Redwater Regional Water Authority became a legal entity. In
2005, the Regional Water System will allow the small
communities to come together and provide citizens with access
to a reliable, safe, high quality water supply.
From a regulatory aspect, a regional water system has
significant benefits. At a present time when a rule changes all
area systems must react to the change individually. That means
that the Montana Department of Environmental Quality is
perennially facing problems with compliance issues as these
smaller systems have a reduced capacity to maintain and
operate. The regional water system would provide one point of
regulation for all the member systems. If a rule were changed
it would only affect one treatment plant and a regional system
can be upgraded and operated at a higher level of oversight
than an individual municipal water system.
Dry-Redwater has been working with the Bureau of
Reclamation in Billings to install this water project as
stipulated in the Rural Water Supply Act of 2006 and has
expressed in the interim final rules; however, various
interpretations of the interim final rules has significantly
strung out Dry-Redwater's approval with over $4 million spent
thus far and over ten years of commitment, we respectfully
request the Committee to favorably report this bill and
Congress to pass it into law so that the Dry-Redwater will be
Federally authorized. As it stands now our system planning has
reached a point beyond which we can easily move forward without
the ability to work formally with Federal agencies.
In summary, Dry-Redwater will provide a dependable regional
water supply for public systems and rural water users. We have
spent ten years working to provide a clean drinking water to
this service area of approximately 15,000 people. We sincerely
hope for our legislation to be passed into law so we may go
forward with our plans to provide something that is often taken
for granted in most areas in the United States, safe and clean
drinking water.
I would also like to add to my testimony that the Dry-
Redwater fully supports S. 1365, the Authorized Rural Water
Projects Completion Act, which was introduced by Senators
Tester and Daines. This bill provides funding for authorized
water projects and provides a way to pay for our water system.
Dry-Redwater is grateful for this inclusion in this funding
bill written by our Montana Senators and respectfully urges the
Subcommittee and Congress to pass this bill into law so that
the rural water projects can receive funds from the Reclamation
Fund to finance Western Water Development.
The BOR, in previous testimony before this Committee, has
stated current projected funding levels may not be sufficient
to complete the Federal funding portion of the authorized rural
water systems. S. 1365 will assist the BOR in providing a level
of funding to support the construction of authorized rural
water projects. The Reclamation Fund was established in 1902 by
Congress to be used as a funding source to construct water
projects in the West.
So we fully support this legislation. It paves a pathway to
actual construction of these authorized rural water systems.
Thank you for your time.
[The prepared statement of Mr. Meissner follows:]
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Senator Barrasso. Thank you so very much, Mr. Meissner, for
your testimony.
Now, Mr. Schempp.
STATEMENT OF ADAM SCHEMPP, SENIOR ATTORNEY AND DIRECTOR OF THE
WESTERN WATER PROGRAM, ENVIRONMENTAL LAW INSTITUTE
Mr. Schempp. Senator Barrasso, thank you for the
opportunity to be here today to provide my views on Senate bill
982, otherwise known as the Water Rights Protection Act.
I am Adam Schempp, a senior attorney and Director of the
Western Water Program at the Environmental Law Institute (ELI).
Founded in 1969 ELI is an internationally recognized,
nonpartisan NGO with a mission of providing the highest quality
research, publications, educational materials and training in
environment energy and natural resources law and management.
While my testimony is intended in part to advance ELI's
educational mission, the views presented here are my own and
they do not necessarily reflect the views of ELI's Board of
Directors or its members.
Senate bill 982 appears to address some of the concerns
that prompted it including the effect of private rights to
water from the Forest Service's 2011 interim directive which
sought to require ski areas operating on public land to
transfer their water rights to the Federal Government, but the
bill would introduce into Federal law some broad and ambiguous
language which, along with some internal inconsistencies could
make its potential impacts sweeping. At the very least the bill
could prove challenging for Federal agencies to implement and
for courts to interpret.
For example, Subsection 5-1, the savings clause concerning
the bill's effect on existing authority, reads in part:
``Nothing in this act limits or expands any existing legally
recognized authority of the Secretary of the Interior or the
Secretary of Agriculture to issue, grant or condition, any
permit approval, license lease, allotment, easement, right of
way or other land use or occupancy agreement.''
If the Secretaries do not have the authority to condition
permits, leases and the like in the way prohibited in Section 3
of this bill, then the bill is unnecessary. If the Secretaries
do have that authority then those prohibitions are trumped by
the savings clause. The only way to square the savings clause
with Subsection 3-1 is to place great emphasis on the phrase,
``legally recognized,'' which itself is unclear. What if the
Secretaries have this authority as a critical aspect of this
issue and handling it in such a vague manner likely hampers
rather than helps regulatory clarity?
Other vagueness in the savings clauses arises in Subsection
5-D which reads: ``Nothing in this act limits or expands any
existing or claimed reserved water rights of the Federal
Government on land administered by the Secretary of Interior or
the Secretary of Agriculture.'' The term ``existing'' clearly
refers to reserved water rights that are already established at
the time of the bill's passage, but the term ``claimed'' is
unclear as to its temporal meaning. If it is interpreted to
mean reserved water rights already claimed at the time of the
bill's passage then there are no protections in this bill for
future assertions of reserved water rights.
Turning to Section 3 of the bill, the prohibitions
identified here lack specificity in their restrictions. A
limitation of a water right is not a term of art and could be
interpreted very broadly leading to disputes between applicants
and the Federal land management agencies which might provoke
delay in permit issuance and even litigation over whether a
proposed permit or license condition is actually a limitation.
Also, these prohibitions may have the unintended
consequence of fewer land use occupancy agreements or would
circumscribe the ability of the Secretaries to protect against
adverse water impacts from land use or occupancy agreements.
The multiple uses for which Secretaries of the Interior and
Agriculture manage lands and the environmental laws that apply
still remain. Thus, if a proposed surface use activity might be
acceptable but it would produce incompatible impacts on other
Federal resources if water is used in a certain way, the
Federal agency might be inclined not to enter the agreement at
all.
Senate bill 982 also includes a prohibition against
withholding, in whole or in part, land use or occupancy
agreements. If withhold is interpreted to mean not issuing the
land use or occupancy agreement, the Secretaries could deny any
permit or could not deny any permit or application solely
because of the potential impact of the resulting use of a water
right. They could neither condition the use of water nor deny
the use of land to ensure compliance with their other federally
mandated obligations.
Senate bill 982, by using ambiguous terms and by coupling
that with sweeping savings clauses in Section 5, may in fact
reduce regulatory certainty rather than improve it resulting in
delay, confusion and litigation.
I thank you, and I will be pleased to answer any questions
at the appropriate time.
[The prepared statement of Mr. Schempp follows:]
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Senator Barrasso. Thank you very much, Mr. Schempp.
Mr. Stern?
STATEMENT OF CHARLES STERN, SPECIALIST IN NATURAL RESOURCES
POLICY, CONGRESSIONAL RESEARCH SERVICE
Mr. Stern. Senator Barrasso, my name is Charles Stern. I'm
a specialist in Natural Resources Policy at the congressional
Research Service. Thank you for inviting CRS to testify on S.
593, S. 1365 and S. 982. CRS takes no position on these bills
but has been asked to provide background and analysis of their
potential effects. S. 593, the Bureau of Reclamation
Transparency Act, would require that the Bureau of
Reclamation's asset management reporting be expanded to include
several new components. The mixed management structure of
Reclamation water resource facilities complicates reporting on
needed upgrades. Reclamation has undertaken efforts to improve
this reporting including annual asset management plans. These
reports summarize Reclamation's infrastructure management
efforts but have not included lists of facility specific repair
needs.
S. 593 would make several changes to Reclamation's
reporting process. Notably Section 4-B would require that the
Bureau's asset management plan include an itemized list of
repair needs that reserve works. This would include a cost
estimate for repair needs and a categorical rating for each
item. Section 5 requires Reclamation to work with local project
sponsors to develop similar requirements for transferred works.
S. 593 does not address the management of projects rather
it focuses on what information is made available to Congress
and the general public about these facilities. Some may
question how much of the information required by the
legislation is already available. While some of this data
appears to be tracked internally by Reclamation, it is not
available in a consolidated public report. A more in depth
review of some facilities, especially transferred works, could
also be required by the bill.
S. 1365, the Authorized Rural Water Settlement Project
Completion Act, would establish dedicated funding for ongoing
and newly authorized rural water projects and certain
settlement agreements with Indian tribes. Since 1980, Congress
has authorized Reclamation to undertake 12 rural water supply
projects, six of which are ongoing. According to Reclamation
total cost to complete these projects would be about $2.4
billion. In the current budget levels they may not be complete
for 50 years or more.
Indian water right settlements are also expected to be
significant in terms of future year costs relative to
Reclamation's budget. Overall, 29 Indian water right
settlements have been approved by Congress since 1978. To date,
Congress has appropriated more than $2 billion in discretionary
funds to these settlements and more funding will be needed.
According to the Department of the Interior, 20 other
settlements between the Federal Government and Federally
recognized tribes are under negotiation or have negotiation
teams appointed.
S. 1365 would establish a new fund in the Treasury and
transfer to it $115 million annually from 2015 to 2029 without
further appropriation. These funds would be made available from
future balances accruing to the Reclamation Fund. The mandatory
appropriation would be divided between two accounts with an
account designated for authorized rural water projects
designated to receive $80 million annually and an account for
Indian water rights and other related settlement agreements to
receive $35 million annually.
Mandatory funding for rural water projects would be a
contrast to the discretionary appropriations which typically
fund these and other Reclamation projects and programs.
Supporters argue that this funding is crucial to securing water
supplies for these communities. Some may question elevating the
priority of these projects by removing them from Reclamation's
regular appropriations process. Others may ask whether rural
communities are eligible for other Federal funding.
Several agencies are authorized to provide assistance of
this type; however, the authorities for each agency's programs
are unique and the eligibility and competitiveness of
individual communities may vary. In contrast, Congress has in
some cases provided mandatory funding for Indian water right
settlements. Thus, the bill's proposed funding approach for
these projects is not without precedent.
S. 982 would establish prohibitions related to the
conditioning of certain Federal actions on the transfer of
water rights. The Subcommittee asked CRS to limit its testimony
to abbreviated background on Federal Reserve water rights as
they relate to this legislation.
Federal Reserve water rights often arise in questions of
water allocation and uses related to Federal lands. These
rights co-exist with water rights administered under state law.
Federal Reserve water rights were recognized by the Supreme
Court in Winters v. United States in 1908.
Under the Winters Doctrine when Congress reserves land from
the public domain for a Federal purpose it also, by
implication, reserves water resources sufficient to fulfill the
specific purposes of the reservation. Although the Winters
Doctrine was originally interpreted as applying to Indian
reservations, it has since been applied to other Federal land
reservation including water uses in national parks, national
wildlife Refuges, and other Federal areas. As a result Federal
agencies have, in some cases, asserted or negotiated reserve
water rights in accordance with Federally authorized purposes.
There is ongoing debate as to the limits of these rights.
This concludes my statement. I would be happy to answer any
questions you may have at the appropriate time.
[The prepared statement of Mr. Stern follows:]
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Senator Daines. [presiding] Thank you, Mr. Stern.
Mr. Willardson?
STATEMENT OF ANTHONY WILLARDSON, EXECUTIVE DIRECTOR, WESTERN
STATES WATER COUNCIL
Mr. Willardson. Senator Daines, Senator Hirono, I
appreciate the opportunity to testify on behalf of the Western
States Water Council.
This is our 50th anniversary since our creation as a policy
advisory body to the Western Governors. Our members are
appointed and serve at the pleasure of their Governors. We
believe that the Authorized Rural Water Project Completion Act
provides an appropriate and timely Federal investment of modest
amounts that will minimize long term, Federal expenditures,
create jobs and fulfill long standing promises and trust
responsibilities in rural and tribal communities, some of which
date back decades.
We strongly support the policy of encouraging negotiated
settlement of any water rights claims is the best solution to
this critical problem. We also support the proposed Rural Water
Construction and Settlement Implementation Fund for financing
these needs as identified in S. 1365.
The Council believes that receipts accruing to the
Reclamation Fund, subsequent to the 1902 Reclamation Act and
other acts, should be fully appropriated for their intended and
authorized purposes.
We also would suggest that Congress consider converting the
Reclamation Fund from a special account to a true revolving
trust fund.
Some rural and tribal communities face serious water
shortages now due to drought and declining stream flows and
groundwater levels and inadequate infrastructure with some
communities hauling water. Many rural and tribal communities
are also suffering from high unemployment and lack the
financial capability and expertise to meet their drinking water
needs. The Reclamation Rural Water Project Supply Program was
created in 2006 to provide an assessment of these rural water
needs which were found to range from $5 to $8 billion as well
as $1.2 billion for specific Indian water supply projects.
In 2012, Reclamation estimated that to complete eight of
those projects would cost $2.6 billion and that they would
likely, at current funding levels, not be completed until 2063.
The constant resolving outstanding Indian water rights claims
is also growing and the Administration's request for this
Fiscal Year of $18.6 million for construction of authorized
rural water projects and $18 million for tribal features of
specific projects is not sufficient to complete them in a
timely manner as would be provided by the S. 1365.
This is a relatively modest Federal investment compared to
the increasing costs which will likely occur if construction is
further delayed, and we recognize the Federal budget
constraints but still remains this obligation to fulfill
Federal trust responsibilities and other promises to states and
tribes who lost land from Federal flood control projects.
I would mention the Garrison Diversion project in North
Dakota which flooded 300,000 acres of private farmland as part
of the Pick-Sloan Missouri Basin program as well as inundating
550 square miles of Native American lands and displacing some
900 Native American families.
Similarly the North Central Rocky Boy's rural water project
in the State of Montana would implement that tribe's settlement
with the United States. According to the U.S. Conference of
Mayors, $1 invested in water and sewer infrastructure increases
gross domestic product by $6.35.
Similarly in the HDR study of economic impacts of the Lewis
and Clark rural water system found a total economic impact of
$14.4 million in direct and indirect job creation of some 7,441
jobs. Improving the infrastructure in these rural tribal
communities will improve their ability to attract business and
develop their economies as well as provide a higher quality of
life and safe drinking water and the associated health
benefits.
And despite the benefits, many of these smaller rural
communities and tribal communities do not have the capacity to
finance, design and construct these projects on their own. For
this purpose of funding authorized Reclamation projects, the
Reclamation Fund was created; however, current expenditures
from that fund are far below current receipts and at the end of
2016 the Administration estimates that the unobligated balance
in the Reclamation Fund will be $15 billion. So S. 1365 would
set aside just a small amount of this money to complete and
fulfill these obligations to these communities and further
postponing these expenditures will only perpetuate the
hardships that currently exist.
We very much appreciate the opportunity to testify here on
the Subcommittee to approve S. 1365 and work with the states
toward its effective implementation.
Thank you again.
[The prepared statement of Mr. Willardson follows:]
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Senator Daines. Thank you, Mr. Willardson.
Mr. Yates?
STATEMENT OF RYAN YATES, DIRECTOR OF CONGRESSIONAL RELATIONS,
AMERICAN FARM BUREAU FEDERATION
Mr. Yates. Senator Daines, Ranking Member Hirono, Senator
Franken, other members of the Subcommittee, thank you for
calling this important hearing on S. 982, the Water Rights
Protection Act, and inviting me to testify on behalf of the
American Farm Bureau Federation and the nation's farmers and
ranchers.
On behalf of the nearly six million Farm Bureau member
families across the United States I commend you for your
leadership in advancing legislation to prevent attempts by
Federal land management agencies to circumvent long standing
state water law. The Farm Bureau has a strong interest in
ensuring that the relationship between Federal land management
agencies and public land ranchers is maintained.
Federal land management agencies have begun to pressure
private land owned businesses to surrender long held water
rights which they have paid for and developed as a condition of
receiving renewals in their special use permits that allow them
to operate on public land. Specifically the Forest Service has
applied a water clause to special use permits which requires an
applicant to transfer his or her lawfully acquired water right
into a joint ownership agreement with the United States
Government as a condition of granting a renewal of the permit.
What's more troubling is that the clause also grants the
United States Government sole ownership of the water right in
the event of revocation of the permit. Use of the D30 water
clause was struck down by a Federal judge in 2012 in a lawsuit
brought by the National Ski Areas Association. These kinds of
actions by the Federal Government violate Federal and State law
and will ultimately upset water allocation systems and private
property rights on which western economies have been built.
It is no secret that the Forest Service has long sought to
expand Federal ownership of water rights in the Western United
States. In an August 15th 2008 Intermountain Region briefing
paper addressing applications, permits or certificates filed by
the United States for stock water, the Forest Service claimed,
``It is the policy of the Intermountain Region that livestock
water rights used on National Forest grazing allotments should
be held in the name of the United States.''
During a House Natural Resources hearing held on March
12th, 2012 the Forest Service testified the Forest Service
believes water sources used to water permitted livestock on
Federal land are integral to the land where the livestock
grazing occurs, therefore the United States should hold the
water rights for current and future grazing.
Lastly, the recently withdrawn Forest Service Groundwater
Directive would have formally codified the Forest Service
efforts to require the transfer of privately held water rights
to the Federal Government as a condition of a permit's renewal.
The Forest Service has even argued that the Clean Water Act
provides the agency the statutory authority to implement their
policies concerning the transfer or takings of water rights.
Thus, while the EPA's final Waters of the U.S. rule raises many
policy questions and concerns, one additional cause for alarm
is the impact that it may have on lawfully held water rights
held by farmers and ranchers.
During a recent hearing of the House Natural Resources
Committee this year Forest Service Deputy Chief Leslie Weldon
acknowledged that the Chief of the Forest Service stated that
the proposed directive has been put on hold. While we applaud
the agency's withdrawal of the flawed proposal we remain
concerned that this withdrawal is only temporary. After
acknowledging the withdrawal, Deputy Chief Weldon testified
that the Forest Service, ``will publish a new draft for a new
round of public comment before any direction is finalized.''
In addition to land perhaps the most valuable resource for
every farmer and rancher in America is water. In order to
provide the food, feed, fuel and fiber for the nation and the
world farmers and ranchers simply need to have access to water.
This is especially crucial in the West.
Moreover we believe they have the right to expect that
their lawfully acquired water rights should be respected by the
Federal Government. Passage of S. 982 represents an important
and necessary step in protecting private property rights and
upholding long established water law by prohibiting Federal
agencies from expropriating water rights through the use of
permits or leases.
Further, this legislation recognizes the ability of states
to confer water rights, acknowledges that the Federal
Government will respect those lawfully acquired rights and
assures valid holders of water rights under state law cannot
have those rights diminished or otherwise jeopardized by
assertions of rights by Federal agencies.
It is important to note that S. 982 does not confer any new
rights or diminish any existing rights. Passage of S. 982 will
not provide landowners with more than they currently have nor
will it diminish any existing authority from the Federal
Government. The Water Rights Protection Act simply assures that
Federal agencies will respect long standing State and Federal
water law and uphold the Federal Government's long standing
deference to the states on matters of water rights.
The American Farm Bureau Federation appreciates the
Committee's willingness to listen to the concerns of our
members. The need for permanent legislation to protect private
property rights from the ongoing threats of Federal takings
cannot be overstated. Farmers, ranchers, and small businesses
rely on regulatory certainty and the constitutional protection
of private property rights to make sound business decisions.
We look forward to working with the Committee on securing
enactment of this critically important legislation.
Thank you.
[The prepared statement of Mr. Yates follows:]
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Senator Daines. Thank you, Mr. Yates.
The Chair will now yield to the Ranking Member of the
Subcommittee, Senator Hirono, for her opening remarks.
STATEMENT OF HON. MAZIE K. HIRONO, U.S. SENATOR FROM HAWAII
Senator Hirono. Thank you, Senator Daines, and I would like
to thank Chairman Barrasso for holding this hearing.
Good afternoon to all of you, and I thank all the panelists
for being here.
This is the first hearing of the Subcommittee on Water and
Power of the 114th Congress. The Subcommittee's work is
critical to communities across the nation as water is
fundamental to all aspects of life.
In the native Hawaiian culture, you can guess I represent
Hawaii, water or wai, is considered a sacred source of life.
Water was the most sought after resource by native Hawaiians
and streams often provided the boundaries for land subdivisions
or Ahupua'a. It was water that shaped communities as native
Hawaiians understood that a constant supply of fresh water was
critical to sustain their lives. It is because of this
understanding that the protection and sharing of water is so
fundamental to Hawaiian culture.
Fast forward to today and water remains an essential
concern. Hawaii has to be especially creative when it comes to
maximizing benefits of our limited water resources. We do not
have other states to lean on, and water can be a limited factor
as we search for ways to be more food as well as energy
sustainable.
Hawaii just recently committed to being 100 percent reliant
on renewable energy sources by 2045, a bold and ambitious move.
Yet we often have to make such bold and ambitious commitments
far in advance of other states. Just recently the Hawaii State
Legislature passed a bill to expand the development of hydro
electric projects on agricultural lands, which would contribute
to making Hawaii more energy and food sustainable.
Of course water is fundamental to every state. The
stewardship of this precious resource includes developing smart
policies that protect, conserve and manage water at the
watershed scale, balancing the many water needs of our
communities, supporting sustainable development of our
economies and protecting the ecosystem and special places that
depend on those waters. These responsibilities are at the heart
of our work here on the Subcommittee, and I look forward to
working with all of you and my colleagues to advance water
legislation.
Regarding the legislation that is before us today, one
bill, in particular, stands out as good public policy to
support sustainable water supplies. Senators Tester and
Daines's Rural Water Project Act, S. 1365, would provide
dedicated funding for rural water projects and Indian water
rights settlements. I know that when I came in at least one of
you testified to that point.
It is hard to imagine that in the 21st century there are
still communities in the United States that do not have
adequate drinking water supplies. We have a responsibility to
ensure that all communities have access to clean, potable
water. Providing dedicated funding to complete rural water
projects is critical to doing so and will save taxpayers money
over the long run.
This bill is also important because it supports the United
States in meeting its responsibilities to Native American
tribes. Since the 1970's the U.S. has enacted more than 29
Indian water rights settlements. However, the claims of
hundreds of tribes remain unresolved and funding remains a
major barrier.
In the coming decades, nearly two dozen settlements,
costing billions of dollars, are likely to be enacted. S. 1365
would provide modest, dedicated funding for these settlements
which would enable the Federal Government to better plan for
settlement costs and save money over time. It would enable more
timely resolution of the tribal claims, support economic
development in Indian Country and bring greater certainty to
water in the West, which is especially important as competition
for water and drought intensify.
Among the other bills before us today, I am particularly
interested in hearing the thoughts of our witnesses on S. 982,
the Water Rights Protection Act. The Administration and others
have raised concerns about the potential impacts of this bill
on the Federal Government's authority to manage public lands
and waters, protect tribal and Federal rights and ensure water
is available for environmental uses. It is important that we
fully understand what this bill does and its potential
implications.
In developing new policies, we should be looking at how to
improve the way the Federal Government does business. S. 593,
the Bureau of Reclamation Transparency Act, and S. 1533, the
Water Supply Permitting Act, are aimed at improving Reclamation
practices in managing our nation's water infrastructure and
permitting processes. We can always improve government business
practices so long as they do not adversely impact the public
good or the environment.
I look forward to hearing more from the experts. We will
have some questions for you today about your thoughts on these
legislative proposals.
Finally, the remaining bills on the agenda today involve
specific infrastructure projects including a reservoir project
in Wyoming, two rural water projects in Montana and an
irrigation project in Nebraska. These bills are relatively
straight forward.
We face significant challenges in the stewardship of our
nation's water supplies, particularly in a time of
unprecedented drought and climate changes.
I just read yesterday that NASA published a report
indicating that 21 of our world's 37 largest aquifers are being
depleted at unsustainable rates. Of those 21 troubled aquifers,
two are located within the United States. There is no denying
that water supply issues will continue to be a critical piece
of our national conversation.
As we grapple with these issues in this Subcommittee,
developing solutions will require that we work together and
think creatively about water management and use, infrastructure
and financing--all critical to the long term resilience of our
communities and the environment.
Again, I look forward to working with all of you and the
members of this Committee. Thank you very much.
I would like to ask for unanimous consent that the two
statements that were submitted by the Forest Service be
included in the record.
Senator Daines. So ordered.
Senator Hirono. Thank you.
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STATEMENT OF STEVE DAINES, U.S. SENATOR FROM MONTANA
Senator Daines. Thank you, Ranking Member Hirono.
Let me start off by first thanking Chairman Barrasso for
holding this hearing on this very important topic ensuring that
all Americans have access to clean drinking water and water
infrastructure.
I would also like to recognize Mr. Meissner for appearing
today before the Committee. It is always good to have another
Montanan back here in D.C. Welcome, Mr. Meissner.
Mr. Meissner. Thank you.
Senator Daines. You know, some of the earliest water
projects built by the Bureau of Reclamation were built in
Montana. These projects provide a critical infrastructure for
Montana homesteaders and were a vital importance to the long
term growth of our state.
Water is a precious resource in Montana, and there are
still rural communities that face barriers to access and are in
dire need of clean drinking water. Water is a basic need of
life.
In Montana we depend on a steady supply to irrigate our
crops, to water our livestock and to provide energy through
hydropower. In fact, if you look at this chart behind me, this
picture, that is not in some Third World country.
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That is Roundup, Montana, and the quality of water that we
see in a community that has about 2,000 people there in
Roundup.
So the struggle for water continues to create health
problems in Indian country and nearby communities in addition
to making economic development that much more difficult. For
far too long perpetual delays and maintenance backlogs have
caused inefficient water delivery and damaged infrastructure on
Montana's reservations. Every year we wait to delay funding of
these essential projects.
The more expensive the construction becomes, operation
maintenance costs become more expensive, and year after year
these projects continue to fall by the wayside without any
action to address and prioritize our limited resources for
critical infrastructure like rural water project. These short-
term fixes must stop. It is time that the Federal Government
fulfills its obligations and promises to Montana's rural
communities and provides needed funding to ensure our rural
water projects are completed.
I would also like to bring the Committee's attention to two
bills on the agenda today that I introduced with my colleague
from Montana, Senator Jon Tester, S. 1365, the Authorized Rural
Water Project Completion Act, and S. 1552, the Clean Water for
Rural Communities Act.
The first bill, S. 1365, would enable the completion of
construction of congressionally authorized rural water projects
as expeditiously as possible. It would ensure adequate funding
is directed to projects in rural communities in North Dakota,
South Dakota, Montana, New Mexico, Minnesota and Iowa. It would
also provide much needed access to water supplies.
The second bill, Senate bill 1552, authorizes two Bureau of
Reclamation rural water projects critical to Montana, the Dry-
Redwater Rural Water System and the Musselshell-Judith Rural
Water System. This bill would collectively facilitate water
treatment and deliver to 22,500 Montanans and North Dakotans.
Senator Tester is also a co-sponsor.
It is important that our rural communities have access to
clean and drinkable water, and I urge my colleagues to join me
in supporting these critical measures.
I would like to start by asking a question. Mr. Meissner,
in your testimony you discuss the challenges you face in
working toward approval of the Dry-Redwater Authority water
project which the BOR still has not granted, and I think
everyone here can agree that you have had to go through much
more trouble than you should have. Could you elaborate a bit
further on the benefits to having this project approved as soon
as possible?
Mr. Meissner. Benefits? Are you talking about if we started
construction today?
Senator Daines. Yes, what are the benefits of the project
by having this approved as soon as possible?
Mr. Meissner. We have a long range goal to bring water out
of Fort Peck into those counties that I suggested. Without the
ability of having BOR as a Federal agency working side by side
in partnership with us we are at odds. There's things that they
can do. There's things we can't do.
Up to this time, it seems like bureaucracy is the issue.
They have things that they have to have in order to move, and
we have continually tried to meet those goals. It's like an
ongoing target. We meet feasibility, and the target is changed.
We've been at this like ten years, and the BOR has done
everything, bureaucratically, to assist us, but the target
keeps moving.
But without the ability of you to have the bills and have
money in hand we can't go forward with our construction. They
can't go forward with their planning.
I think financially we've proven in Sidney with the
construction that we have done with assistance from Richland
County and the city of Sidney, we can do this. But we need
Federal assistance to complete the planning, and we need
dollars.
Senator Daines. Thank you, Mr. Meissner.
Ms. Thompson, do you believe that spending several years of
staff time and resources into developing these feasibility
studies for the Dry-Redwater Rural Water System and the
Musselshell-Judith Rural Water System is a worthwhile use of
time?
Ms. Thompson. Senator Daines, thank you for the question.
We, at Reclamation, believe that in order to move forward
on rural water projects we need to meet our feasibility study
requirements, and we have worked in concert with the Dry-
Redwater, Musselshell folks to get to the point where they have
a feasibility study that can be approved so we can move
forward. We do believe that that sometimes takes time, but we
are committed to working with them.
Senator Daines. So considering all the time and the money
that has already been invested by BOR staff on these projects,
isn't it about time Congress authorized them?
Ms. Thompson. Senator, if Congress authorizes the program
and provides appropriations we are happy to assist with that,
but until we have a feasibility study and appropriations we
cannot move forward.
Senator Daines. Can I get your commitment to work with us
and our Committee on creative ways we can expedite construction
on these important projects?
Ms. Thompson. We would be happy to work with you and
project sponsors on this if we have an authorization in place
and the funding to go forward or to explore options for
creative funding. We're happy to look into that.
Senator Daines. Thanks so much.
Mr. Chairman?
Senator Barrasso. [presiding] Thank you very much, Senator
Daines.
Senator Hirono?
Senator Hirono. Thank you, Mr. Chairman.
This is a question for Mr. Schempp. S. 982, the Water
Rights Protection Act, contains several broad provisions which
prohibit the Secretary of the Interior and Secretary of
Agriculture from taking any action to limit or adversely affect
a water right in a land use agreement. At the same time the
bill includes several provisions stating that the bill does not
affect a number of existing laws. It seems to me that these
savings provisions are in conflict with the other parts of the
bill.
You touched on these issues in your testimony noting that
the bill would create ambiguity that could result in delays,
confusion and litigation in its implementation. Can you help us
better understand the potential legal uncertainties and
challenges that this bill presents?
Mr. Schempp. Ranking Member Hirono, I will do my best to do
so.
I would particularly identify subsection 5-1 and subsection
3-1 as being potentially in conflict, particularly with regard
to the effects of existing authority and the savings clauses. I
think there is a significant question as to what legally
recognized will consist of. And if this bill is passed that
there will be a great deal of discussion, potentially
litigation, over whether or not what has basically, whether the
savings clause winds up trumping Subsection 3-1 or to what
extent Subsection 3-1 is avoided via the savings clause.
Senator Hirono. Thank you.
For Ms. Thompson, your testimony on S. 982 states that the
Department opposes this bill. I understand that the
Administration issued a formal SAP opposing the House version
of this bill last year and that about 60 outside groups oppose
the bill. In your testimony you state that the bill would
potentially negatively impact the Department's ability to
manage water, protect public lands and the environment and
Federal land and tribal water rights. Can you please expand on
these potential impacts and be concise? Thank you.
Ms. Thompson. Sure.
Senator Hirono, the impacts we expect could occur as a
result of this legislative language would involve impacting our
ability to carry out mandates for natural resource protection
as mandated by Congress. I believe in the testimony we
referenced potential impacts to the Bureau of Land Management,
to the National Park Service with respect to water rights where
they have obligations pursuant to legislation and statute.
We can provide more detail for the record, but at this
point some of these impacts are--haven't been explored all the
way simply because this is very complicated legislation.
Senator Hirono. Thank you.
I can see that just in reading the bill I think that it
does create, a lot of areas of uncertainty that would need to
be clarified if we are going to go forward.
For you, again, Ms. Thompson. As you probably know many
members of the Hawaii delegation, both past and present, have
initiated efforts to make Hawaii eligible for resources
provided by the Bureau of Reclamation. While we, as well as
Alaska, are located in the Western region of the U.S. and face
many similar water challenges as our friends in the 17 Western
states that you cover, we have not been afforded the same
opportunities to participate in these programs. As water
resources become constrained and climate patterns shift, states
will, no doubt, become more proactive in addressing water
needs. So as it stands Hawaii is not eligible to take advantage
of funding for drought resiliency projects under the SECURE
Water Act and many other water projects and conservation
programs.
Wouldn't it be a better use of Federal dollars to support
drought resiliency projects in our states proactively instead
of waiting for emergency assistance? Basically I really think
that Hawaii and Alaska need to be part of what the Bureau
covers.
Ms. Thompson. Sure, Senator, recently the Bureau of
Reclamation has revisited its drought response program and we
issued funding opportunity announcements for a new drought
program that would allow the State of Hawaii or Alaska to apply
for contingency planning assistance. That funding opportunity
announcement closes on June 25th and we will welcome the state
to apply for that, to benefit from the assistance that they
could provide.
Senator Hirono. Does that include other programs that your
Bureau has where Hawaii and Alaska would not apply right now?
So are you saying that administratively you can affect this
change so that our two states can participate?
Ms. Thompson. Actually this authority is through the
Drought Relief Act of 1992, and Hawaii has been eligible
through that statute for drought contingency planning
assistance. But as you said, we are not able to afford the
resiliency assistance that you have spoken of.
Senator Hirono. Thank you for that clarification. So we
would require statutory change which I hope we can get your
support on.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you very much.
Senator Flake?
Senator Flake. Thank you, Mr. Chairman.
I am glad, once again, to co-sponsor the Water Rights
Protection Act. I wish this bill was not necessary, but two
recent proposals by the Forest Service have created the need
for the bill and to stand up for private property.
It may be lost on some not familiar with the West, but
water rights, like land and vehicles and other assets used in
business are private property and they are extremely valuable.
Requiring a business to turn over their water rights to the
Federal Government as a condition of getting a permit is about
like asking the oil man to sign over his drilling rig to the
BLM or making a rancher sign over the title to his truck just
to use Forest Service land. It is asking a bit much.
What this bill does say is that the Federal agencies can
issue permits, they can condition these permits and they can
enforce environmental laws. They just cannot take people's
private land or private property, I should say, as they do
this. So I think this is an important piece of legislation, and
I am glad to support it.
I have just a couple of questions on some of the bills
before us.
Ms. Thompson, there are two projects that would be
authorized as part of S. 1552. Can you tell whether these
projects have completed all the necessary reviews that are
required of the Rural Water Supply Act of 2006?
Ms. Thompson. Senator Flake, those two projects are the
Dry-Redwater and Musselshell-Judith projects, and neither has a
complete feasibility study before the Bureau of Reclamation
although it's my understanding that the Musselshell-Judith has
completed work in the region and that particular feasibility
study is with our Denver Office who completes the programmatic
review.
Senator Flake. Okay. So Reclamation has not developed a
recommendation on these projects that have not completed the
review?
Ms. Thompson. We have been in consultation with the parties
who are putting forward the feasibility studies.
Senator Flake. But would going forward with them, kind of,
circumvent some of the process that we have compared to those
who have gone through all the reviews?
Ms. Thompson. I'm sorry. Could you repeat the question?
Senator Flake. Putting a program like this or authorizing
funding for it when Reclamation hasn't yet issued a
recommendation is, kind of, circumventing the process as we
have it or not?
Ms. Thompson. Indeed. Indeed.
We have six projects already in construction in the West
for which there is a deficit of, I'm sorry, of backlog of about
$1.4 billion, so adding two more authorizations to that, of
course, we would have to find additional funding for those.
Senator Flake. Good.
Mr. Meissner, in a June hearing on drought Deputy Secretary
Connor discussed a number of water projects and provided a back
of an envelope number on the cost per acre foot. What is the
approximate cost per acre foot that the water for these two
projects that would be authorized under S. 1552?
Ms. Thompson. Senator, I'm afraid I'm not able to provide
information along those lines at this time. I'm not certain
that we have calculated that expense, especially since those
feasibility studies haven't been completed.
Senator Flake. Mr. Meissner, have you? Do you have any back
of the envelope, kind of, cost per acre foot on these projects?
Mr. Meissner. Are you asking?
Senator Flake. Yes.
Mr. Meissner. No, I can't answer that as well. However, the
question you asked about the feasibility. We entered into a
memorandum of understanding with BOR so that we could come into
an agreement with them to proceed to this point. Without the
bills and funding BOR cannot do any more administrative
planning for us. I don't know if that answers your question,
but no, we have not yet.
Senator Flake. Okay.
Mr. Yates, ranching has long been an important part of
Arizona's economy. I grew up on a cattle ranch myself. Can you
briefly talk about the amount of grazing on public lands and
the importance of water rights for these grazing operations to
continue?
Mr. Yates. Well certainly, and ranching is an important
part of the American West and certainly provides jobs and
management of Federal Western range lands and certainly
including the State of Arizona.
What has been troubling when you talk about the long
standing practice of Federal land permitting and ranching
across the American West is that, you know, public land
ranchers have fought Federal land management agencies and
environmental pressures through litigation on decreases in
opportunities for continued Federal land grazing.
In 1949, the BLM and the Forest Service managed 5.4 million
AUMs across all western rangelands. From 1949 to 2012 the
government has reduced livestock grazing by just over three
million AUMs or a total reduction in excess of 70 percent.
So again, as we look to continue to provide a tool to
Federal land management agencies these kinds of pressures that
continued efforts to reduce the ability for Federal land
ranchers to maintain western rangelands and landscapes is
certainly troubling.
When we look at the use and the application of the water
clause as been used by the Forest Service the potential impacts
on, not only private property rights, but the ability for a
rancher to continue operating and certainly operating with a
degree of certainty that he'll be able to come back not only to
have his grazing permit renewed but to be able to manage that
resource is certainly concerning.
So again, we appreciate your support of S. 982 and
certainly hope for its passage.
Senator Flake. Thank you, Mr. Chairman.
Senator Barrasso. Thank you very much, Senator Flake.
Senator Franken?
Senator Franken. Thank you, Mr. Chairman for holding this
hearing on rural water bills.
I am proud to co-sponsor the Authorized Rural Water
Projects Completion Act, S. 1365, introduced by Senators Tester
and Daines. I support this bill because rural communities in
Southwestern Minnesota have critical water needs.
In 2000, Congress authorized the Lewis and Clark Regional
Water System. The State of Minnesota and the local communities
involved have prepaid their full share, $154 million, to bring
this project to completion, but the funding at the Federal
level has been woefully inadequate. And so far just until last
month no water at all to Minnesota, finally we got Rock County
Rural Water District got connected. But there are other
communities there that have paid their full share plus, $17
million on top of that. These are small towns, and so far no
water at all, not one drop.
The Authorized Rural Water Projects Completion Act would
provide dedicated annual funding for Lewis and Clark and
projects like it. Today's hearing is a step forward for getting
that bill passed, I hope.
As I said, lack of Federal funding has delayed this project
and these delays have been costing these communities money.
Meanwhile the cost of construction increases, as Mr. Willardson
noted in his testimony, due to inflation and rising costs of
material and labor. And that is just the immediate costs, but
there are also costs of the economics of these communities.
You refer to Lewis and Clark in your testimony, Mr.
Willardson. Can you talk more about these costs for local
communities when projects like Lewis and Clark are delayed?
Mr. Willardson. Thank you for the question, Senator
Franken.
While I do not have specific economic information,
obviously water is critical. It's part of the infrastructure of
any of the economy of a rural community. So business, in fact,
more and more businesses are considering or including in their
bond evaluations the access to water and the security of that
water. So anytime that you're restricting a community's water
supply you're going to also limit economic growth.
Senator Franken. Thank you.
Ms. Thompson, I want to clarify a few things about the
Reclamation Fund. This year the Bureau of Reclamation requested
about $856 million in total appropriations but left some $37
million of that for rural water projects. About how much does
the Reclamation fund collect each year from receipts on public
lands?
Ms. Thompson. Senator, I am not familiar with the exact
number, but I'd be happy to get back to you for the record on
that.
[The information referred to was not provided as of the
time of printing.]
Senator Franken. Mr. Stern, do you have an answer to that?
Mr. Stern. Senator Franken, are you asking receipts from
natural resource royalties on public lands?
Senator Franken. Yes.
Mr. Stern. I believe the total last year was around $1.7
billion.
Senator Franken. Okay, there is a billion, about, each year
that goes into the Reclamation Fund but it is not appropriated
to the Bureau of Reclamation, my math, maybe $900 million. How
much of an unobligated balance does that leave in the
Reclamation Fund? I will go to you, Mr. Stern.
Mr. Stern. Senator Franken, I have the number here, if you
give me one second.
Senator Franken. Sure.
Mr. Willardson. Senator, if you would like I can tell you.
Mr. Stern. Sorry.
Senator Franken. Sure.
Mr. Stern. As far as the unobligated balance goes it would
be around, I think, there was a balance of $13.2 billion in the
Reclamation Fund as of the end of FY2014.
Senator Franken. Is that about right to you, Mr.
Willardson?
Mr. Willardson. Yes, and the Administration's estimated
balance at the end of this fiscal year will be over $15
billion.
Senator Franken. Okay. So here is what is troubling to me.
The Bureau of Reclamation requested less than $3 million for
Lewis and Clark this year, less than $3 million. That is less
than these individual communities have been paying after they
fully prepaid what they were supposed to, what their share was,
after the state had done it. That is just not fair to these
communities.
The Minnesota State legislature, we finally got this last
piece connected because the Minnesota State legislature
approved a $22 million, Federal funding advance for or it
allocated $22 million. Does this seem fair to you, Mr.
Willardson?
Mr. Willardson. Well, many of these communities have been
waiting a long time to see these commitments fulfilled. As
you're aware some of these were in compensation for the
Missouri Pick-Sloan program, so some have been waiting 70 years
to see those promises fulfilled.
And no, it is a little hard to explain that with an excess
of $1 billion a year coming in that's not being spent from the
Reclamation Fund that we can't fund completion of these
projects.
Senator Franken. My thoughts exactly. I am sorry to have
gone over time, but I believe Mr. Stern took four minutes to
find that data. [Laughter.]
Senator Barrasso. But you did a great job pronouncing his
name today compared to the hearing yesterday we had on Indian
Affairs. So this was----
Senator Franken. Well, that was Mr. Desiderio.
Senator Barrasso. Beautifully spoken.
Senator Franken. Desiderio. [Laughter.]
Senator Franken. Thanks a lot for bringing that up, by the
way. [Laughter.]
Senator Franken. Stern is easy.
Senator Barrasso. It is. It is good.
Senator Franken. Love my background too, pronounced.
Senator Barrasso. Thank you, Senator Franken.
Ms. Thompson, in your written testimony you talk about the
Doctrine of Federal Reserve Water Rights. You said,
``Originally expressed as the power to reserve water associated
with an Indian reservation.'' You also said, ``Over time
Supreme Court and other courts have revisited and built on the
Doctrine and holding that reserved rights applied to all
Federal lands.'' So my question is does all Federal land come
with reserved Federal water rights and do these rights trump
state water rights including privately held water?
Mr. Thompson. Senator, Reclamation follows the Reclamation
Act and Section 8 of the 1902 Act says that state waters have
primacy. State rights have primacy over water rights. So we
adhere to that particular statutory mandate.
Senator Barrasso. And how about the state control of
groundwater? Same?
Ms. Thompson. For the most part, I believe that's correct.
Senator Barrasso. Folks in my state and across the West are
obviously in serious need of more water, ranchers, farmers and
rural communities trying to make a living. They depend on water
to grow crops like to grow alfalfa or raise cattle. Many have
junior water rights and worry about getting the water they need
to keep their livelihoods. They worry about drought. They are
also worried about losing their water rights to Federal
agencies as a condition of renewing their grazing permits.
So they are worried about the EPA and the Army Corps
expanding Federal jurisdiction over state waters, the waters of
the U.S. and the WOTUS rule that is out there. All these things
are happening at once and feels to be threatening of Western
and rural economies. We, on this Committee, are offering some
solutions, some bills before us today to address these
problems. We do not want to interfere with the Bureau of
Reclamation operations, but we do have constituents that need
to be protected.
So my question is will you work with us to improve and to
move these bills to protect water rights, to expand water
storage and to provide more water to rural and Western
communities?
Ms. Thompson. Senator, we'd be happy to work with you on
these matters.
Senator Barrasso. Thank you.
Mr. Yates, in your written testimony you state that with
regard to the Forest Service requesting water rights in
exchange for renewing permits, you write that these kinds of
actions by the Federal Government violate Federal and State law
and will ultimately upset the water allocation systems and
private property rights on which Western economies have been
built. Can you explain how the water allocation system and the
farmers and ranchers who hold private property water rights
have been negatively impacted by these actions?
Mr. Yates. Thank you, Senator, for the question.
Certainly it's been noted that not only agriculture, but
ski areas have had a vested interest in this issue. But frankly
all industries and public land users who require a special use
permit should be equally concerned about these types of water
grabs.
Obviously for any farmer or rancher good soil, good
sunlight and most certainly water is a very valuable resource
and asset to continue their day to day operations to continue
to provide food, feed and fiber for the country.
But I think it's important to know as we look at this
larger issue we have great concerns over the takings issues
that the Forest Service and other land management agencies have
begun to pursue. Again, obviously, the concerns over Fifth
Amendment protections are critically important.
I think it's also important to go back a little bit, and
when you look historically through statute and case law
Congress has granted management and authority of waters to the
states going back to the Ditch Act in 1866 through the McCarran
amendment in 1952. The Federal Government has acquiesced to the
states on all state water matters. Certainly this legislation,
your legislation, would not change the status quo, but it would
ensure that any future actions by these Federal agencies to go
around this long standing relationship between the Federal
Government and the State Government would be maintained.
Senator Barrasso. And the final question, Mr. Yates. As you
stated in your written testimony the Forest Service has
temporarily withdrawn their groundwater directive. You go on to
say the Forest Service Deputy Chief Weldon testified that the
Service will publish a new draft after public comment. You go
further to state that the Forest Service, ``Does not currently
own or manage groundwater nor does it have the authority to
approve or disapprove uses of water that are granted under
state law.''
Since the Forest Service does not even have the authority
to regulate ground water, is it possible for the agency to
craft an acceptable directive or should it just be permanently
withdrawn?
Mr. Yates. Well, certainly I appreciate the question. We
were certainly thrilled following our criticism of the
Groundwater Rule that the agency did decide to take a time out
and withdraw the rule. You know, specifically from the proposed
water clause to the expansion of authority through the
establishment of an interconnectivity clause. And those of you
that have followed the issue of the WOTUS rule know that
there's similarities in definitions when we're talking about
that interconnectivity clause to the frankly, their disregard
for the historic Federal deference to states and water
authorities.
I see no reason for the agency, frankly, to pursue a second
or a third groundwater directive. I'd just assume have them
leave it alone. They got caught with their hand in the cookie
jar and they should probably stop there.
Senator Barrasso. Thank you, Mr. Yates.
I thank everyone who has come to testify today in this
important hearing. Senator Hirono has a second round of
questions which she will do, and then she will adjourn the
meeting. Thank you for being here today.
The record will stay open and there may be some written
questions as well from both members on each side.
Thank you.
Senator Barrasso. Thank you, Senator Hirono.
Senator Hirono. [presiding] Thank you.
I would like to just do a very short second round. I have a
question involving the Indian Water Rights Settlements issue,
and that is addressed in S. 1365.
Mr. Willardson, thank you for being here with us today. In
your testimony you state that the Western States Water Council
supports the policies advanced by S. 1365, and I am
particularly interested in the Western States' support for
advancing Indian water right settlements.
I think you have probably noted that Ms. Thompson's
testimony states that the current, basically piecemeal,
approach to funding settlements which competes with other
tribal and water priorities is the appropriate approach, but
clearly your organization, your position is that you support
this more permanent approach. Could you expand on that and help
us understand why the Council supports settlements and a strong
fiscal commitment to them?
Mr. Willardson. Yes, thank you, Senator.
We have worked for 30 years with the Native American Rights
Fund to resolve negotiated settlements of these claims. These
claims continue to be a cloud over other private property
rights, and until they can be settled and settled permanently
it is a challenge to economic development on those both Indian
and non-Indian lands that are adjacent.
Finding a permanent funding source has been a challenge as
well as finding offsets for some of the direct funding in
recent settlements that have passed Congress. We have been
supportive of legislation that set aside money for the
Reclamation Fund in 2009 for a settlement fund which has yet to
be funded but will in the future.
This is another opportunity to provide a small amount of
money which will go a long ways to help with those settlement
negotiations and implementation of those to the extent that it
involves projects that are built by the Bureau of Reclamation,
and that's an important point.
Now this is money just for funding the infrastructure as
part of those settlements and is something that we continue to
strongly support and look for these permanent sources of
funding given as you noted that there are many outstanding
claims yet to be resolved.
Thank you.
Senator Hirono. Thank you very much.
I recognize that there is a very strong economic argument
to be made for something, a much more permanent approach, not
to mention that we certainly have a Federal responsibility to
the American Indian tribes to live up to our obligations to
them.
I would like to echo the Chairman's thanks to all of you
for participating today and being witnesses.
Some members of the Committee may submit additional
questions in writing and if so, we will ask you to submit
answers for the record, so I hope that that will be alright
with you all.
We will keep the hearing record open for two weeks to
receive any additional comments.
This Subcommittee hearing is adjourned.
[Whereupon, at 3:20 p.m., the hearing was adjourned.]
APPENDIX MATERIAL SUBMITTED
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