[House Hearing, 119 Congress]
[From the U.S. Government Publishing Office]
H.R. 231, H.R. 261, H.R. 331, AND
H.R. ____, ``WATERSMART ACCESS
FOR TRIBES ACT''
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LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON WATER, WILDLIFE AND
FISHERIES
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
__________
Thursday, January 23, 2025
__________
Serial No. 119-2
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
58-472 PDF WASHINGTON : 2025
COMMITTEE ON NATURAL RESOURCES
BRUCE WESTERMAN, AR, Chairman
ROBERT J. WITTMAN, VA, Vice Chairman
JARED HUFFMAN, CA, Ranking Member
Robert J. Wittman, VA Raul M. Grijalva, AZ
Tom McClintock, CA Joe Neguse, CO
Paul Gosar, AZ Teresa Leger Fernandez, NM
Aumua Amata C. Radewagen, AS Melanie A. Stansbury, NM
Doug LaMalfa, CA Val T. Hoyle, OR
Daniel Webster, FL Seth Magaziner, RI
Russ Fulcher, ID Jared Golden, ME
Pete Stauber, MN Dave Min, CA
Tom Tiffany, WI Maxine Dexter, OR
Lauren Boebert, CO Pablo Jose Hernandez, PR
Cliff Bentz, OR Emily Randall, WA
Jen Kiggans, VA Yassamin Ansari, AZ
Wesley P. Hunt, TX Sarah Elfreth, MD
Mike Collins, GA Adam Gray, CA
Harriet M. Hageman, WY Luz Rivas, CA
Mark Amodei, NV Nydia M. Velazquez, NY
Tim Walberg, MI Debbie Dingell, MI
Mike Ezell, MS Darren Soto, FL
Celeste Maloy, UT Julia Brownley, CA
Addison McDowell, NC
Jeff Crank, CO
Nick Begich, AK
Jeff Hurd, CO
Mike Kennedy, UT
Vivian Moeglein, Staff Director
William David, Acting Chief Counsel
Ana Unruh Cohen, Democratic Staff Director
http://naturalresources.house.gov
------
SUBCOMMITTEE ON WATER, WILDLIFE AND FISHERIES
HARRIET M. HAGEMAN, WY, Chair
MIKE EZELL, MS, Vice Chair
VAL T. HOYLE, OR, Ranking Member
Robert J. Wittman, VA Seth Magaziner, RI
Tom McClintock, CA Debbie Dingell, MI
Aumua Amata C. Radewagen, AS Melanie A. Stansbury, NM
Doug LaMalfa, CA Jared Golden, ME
Daniel Webster, FL Dave Min, CA
Lauren Boebert, CO Sarah Elfreth, MD
Cliff Bentz, OR Adam Gray, CA
Jen Kiggans, VA Luz Rivas, CA
Tim Walberg, MI Darren Soto, FL
Mike Ezell, MS Julia Brownley, CA
Celeste Maloy, UT Joe Neguse, CO
Addison McDowell, NC Jared Huffman, CA, ex officio
Jeff Crank, CO
Bruce Westerman, AR, ex officio
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CONTENTS
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Page
Hearing Memo..................................................... v
Hearing held on Thursday, January 23, 2025....................... 1
Statement of Members:
Hageman, Hon. Harriet M., a Representative in Congress from
the State of Wyoming....................................... 2
Hoyle, Hon. Val T., a Representative in Congress from the
State of Oregon............................................ 3
Huffman, Hon. Jared, a Representative in Congress from the
State of California........................................ 5
Stansbury, Hon. Melanie A., a Representative in Congress from
the State of New Mexico.................................... 7
Carter, Hon. Buddy, a Representative in Congress from the
State of Georgia........................................... 12
Fulcher, Hon. Russ, a Representative in Congress from the
State of Arizona, prepared statement of.................... 45
Statement of Witnesses:
Thayn, Nathan, Owner, Thayn Farms, Green River, Utah......... 9
Prepared statement of.................................... 10
Toombs, Denise, Advisor, International Connectivity
Coalition, San Francisco, California....................... 14
Prepared statement of.................................... 15
Witherspoon, Dwight, Water Rights Unit Attorney, Navajo
Nation Department of Justice, Window Rock, Arizona......... 21
Prepared statement of.................................... 22
Hipke, Wesley, Water Projects Section Manager, Idaho
Department of Water Resources, Boise, Idaho................ 23
Prepared statement of.................................... 25
Additional Materials Submitted for the Record:
Submissions for the Record by Representative Hoyle
San Francisco Chronicle, How Meta, Google and Amazon are
quietly damaging the Pacific sea floor................. 46
U.S. Department of the Interior, Bureau of Land
Management, Right-of-Way Costs......................... 48
National Park Service, Right-of-Way Permit............... 49
Office of National Marine Sanctuaries, Special Use
Permits................................................ 50
Northern Chumash Tribal Council, Letter to the Committee. 52
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To: Committee on Natural Resources Republican Members
From: Committee on Natural Resources staff: Annick Miller, x58331
([email protected]), Doug Levine (doug.levine@mail.
house.gov), Kirby Struhar ([email protected]), and
Thomas Shipman ([email protected])
Date: January 21, 2025
Subject: Legislative Hearing on H.R. 231, H.R. 261, H.R. 331, and
H.R. ____ (Rep. Stansbury)
________________________________________________________________________
_______
The Subcommittee on Water, Wildlife and Fisheries will hold a
legislative hearing on H.R. 231 (Rep. Hageman), ``Colorado River Basin
System Conservation Extension Act''; H.R. 261 (Rep. Carter of GA),
``Undersea Cable Protection Act''; H.R. 331 (Rep. Fulcher), To amend
the Aquifer Recharge Flexibility Act to clarify a provision relating to
conveyances for aquifer recharge purposes; and H.R. ____ (Rep.
Stansbury) ``WaterSMART Access for Tribes Act'' on Thursday, January
23, 2025, at 10 a.m. EST in 1324 Longworth House Office Building.
Member offices are requested to notify Lindsay Walton (lindsay.
[email protected]) by 4:30 p.m. on Wednesday, January 22, 2025, if
their Member intends to participate in the hearing.
I. KEY MESSAGES
House Republicans are holding a hearing on two bills that
combat the effects of long--standing drought in the
American West and another bill that prevents federal marine
sanctuary designations from negatively impacting the
undersea cable network in the United States.
H.R. 231 would reauthorize the Colorado River Basin
Conservation Pilot Program through FY 2026.
H.R. 331 amends the Aquifer Recharge Flexibility Act to
clarify and streamline the process for transporting water
for aquifer recharge projects across federal land.
H.R. 261 would prevent the Secretary of Commerce from
requiring additional permitting for fiber optic cable
projects that have already been authorized by a Federal or
State agency, within a National Marine Sanctuary.
II. WITNESSES
Panel I
Members of Congress TBD
Panel II
Mr. Wesley Hipke, Water Projects Section Manager, Idaho
Department of Water Resources, Boise, ID [H.R. 331]
Ms. Denise Toombs, Advisor, International Connectivity
Coalition, San Franscisco, CA [H.R. 261]
Mr. Nathan Thayn, Owner, Thayn Farms, Green River, UT
[H.R. 231]
The Hon. Buu Nygren, President, Navajo Nation, Window
Rock, AZ [H.R. ____ (Stansbury)]
III. BACKGROUND
H.R. 231 (Rep. Hageman, R-WY), ``Colorado River Basin System
Conservation Extension Act of 2025''
The Colorado River Basin (Basin) covers seven states (Arizona,
California, Colorado, Nevada, New Mexico, Utah, and Wyoming) and the
Republic of Mexico (see Map 1). In the United States, the Basin
provides water for the irrigation of nearly 4.5 million acres,
municipal water supply to about 40 million people, and supports
hydropower facilities that can generate more than 4,200 megawatts (MW)
of electricity.\1\ Within the Basin, there are seven National Wildlife
Refuges and 11 National Park Service units.\2\
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\1\ U.S. Bureau of Reclamation, Colorado River Basin Report, March
2021, https://www.usbr.gov/climate/secure/docs/2021secure/basinreports/
ColoradoBasin.pdf.
\2\ Id.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Colorado River is one of the most developed, regulated, and
negotiated rivers in the United States. It has numerous diversions,
several major dams, and reservoirs. It is managed through multiple
compacts, laws, regulatory guidelines, contracts, court decisions, and
decrees (collectively known as the ``Law of the River'').\3\ Since
2000, the Basin has experienced historically dry conditions, and the
combined storage in Lake Powell (the reservoir created by Glen Canyon
Dam) and Lake Mead (the reservoir created by the Hoover Dam) reached
the lowest levels since Lake Powell initially began filling in the
1960s.\4\
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\3\ U.S. Bureau of Reclamation, Law of the River, https://
www.usbr.gov/lc/region/pao/lawofrvr.html
\4\ https://www.usbr.gov/dcp/docs/
DCP%20Basin%20States%20Transmittal%20Letter%20and %20attachments.pdf
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In 2014, the Bureau of Reclamation (Reclamation), the Colorado
River Basin States, and Colorado River water users explored ideas that
could mitigate the impacts of the ongoing drought in the Colorado River
Basin.\5\ One idea was the System Conservation Pilot Program (SCPP), a
4-year pilot program designed to explore solutions to address declining
water levels in Lake Mead and Lake Powell and the potential for long-
term drought in the Upper Colorado River Basin.\6\ The program
implemented and tested on-the-ground voluntary water conservation
opportunities that may help manage ongoing record drought conditions in
the Colorado River Basin.
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\5\ U.S. Bureau of Reclamation, Pilot Projects to Increase Colorado
River System Water in Lake Powell and Lake Mead, August 2021, https://
www.usbr.gov/lc/region/programs/LCBConservation&EfficiencyProgram/
report_to_congress W_appendices2021.pdf.
\6\ Upper Colorado River Commission, SYSTEM CONSERVATION PILOT
PROGRAM (2015-2018), http://www.ucrcommission.com/system-conservation-
pilot-program/.
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The SCPP originally concluded in 2018. From 2015-2017, the Upper
Basin SCPP funded 45 projects, for a consumptive use reduction of
approximately 22,116 acre-feet at a total cost of $4.5 million.\7\ In
2022, this program was authorized until September 30, 2024.\8\
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\7\ Upper Colorado River Commission, Final Report Colorado River
System Conservation Pilot Program in the Upper Colorado River Basin,
February 2018. http://www.ucrcommission.com/RepDoc/SCPPDocuments/
2018_SCPP_FUBRD.pdf
\8\ Pub. L. 117-328, div. CC, Sec. 102, Dec. 29, 2022, 136 Stat.
5573.
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H.R. 231 would extend the program's funding authorization until
September 30, 2026, and require the Secretary of the Interior
(Secretary) to report to Congress on the continued effectiveness of the
program by September 30, 2027.
The SCPP allows the Secretary to provide grants 1) to public
entities for water conservation pilot projects if the entity uses water
from the Colorado River Basin for municipal purposes; and 2) for new
water conservation agreements or for renewing or implementing water
conservation agreements.\9\
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\9\ 43 U.S.C. Sec. 620 note; Public Law 113-235.
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H.R. 261 (Rep. Carter, R-GA), ``Undersea Cable Protection Act''
Undersea cables have been used for more than 170 years,\10\ and are
largely responsible for the growth of international telecommunications
systems in recent decades. The current undersea cable network connects
every continent except Antarctica and ``carries about 95% of
intercontinental global internet traffic, and 99% of transoceanic
digital communications . . . including trillions in international
financial transactions daily.'' \11\ In 2023, the global market for
this technology was valued at $23 billion, and is projected to more
than double to $53 billion by 2030.\12\
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\10\ Congressional Research Service. Undersea Telecommunication
Cables: Technology Overview and Issues for Congress. September 13,
2022. https://crsreports.congress.gov/product/pdf/R/R47237
\11\ Id
\12\ Global Industry Analysts. Submarine Optical Fiber Cables. July
2024. https://www.marketresearch.com/Global-Industry-Analysts-v1039/
Submarine-Optical-Fiber-Cables-37720172/
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The Federal Communications Commission (FCC) grants cable landing
licenses for 25 years. However, like many other types of projects, the
process to site, install, and approve these cables typically involves
numerous agencies at the federal, state, and local levels. According to
the North American Submarine Cable Association (NASCA), over the last
20 years, ``no new cables have been constructed within any existing
national marine sanctuary . . . due to regulatory uncertainty, outright
opposition from particular sanctuary leadership in contravention of the
National Marine Sanctuaries Act (``NMSA''), and excessive regulatory
burdens and fees.'' \13\
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\13\ Comments of the North American Submarine Cable Association.
National Oceanic and Atmospheric Administration. Notice of Modification
to the Special Use Permit (SUP) Category for the Continued Presence of
Commercial Submarine Cables within the National Marine Sanctuary
System. October 1, 2024. https://www.regulations.gov/comment/NOAA-NOS-
2024-0089-0007
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Under the NMSA, the National Oceanic and Atmospheric
Administration's (NOAA) Office of National Marine Sanctuaries ``may
designate any discrete area of the marine environment as a national
marine sanctuary,'' \14\ if it is determined that the area is ``of
special national significance'' \15\ or will ``ensure coordinated and
comprehensive conservation and management of the area.'' \16\
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\14\ National Marine Sanctuaries Act. As amended by P.L. 106-513,
November 2000. https://nmssanctuaries.blob.core.windows.net/
sanctuaries-prod/media/archive/library/national/nmsa.pdf
\15\ Id.
\16\ Id.
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In amendments to the NMSA that were enacted in 1998, Congress gave
NOAA the authority to issue Special Use Permits (SUPs) for certain
categories of activities within a national marine sanctuary, if it is
determined that the activity is needed to establish access to its
resources or ``promote public use and understanding of a sanctuary
resource.'' \17\ To grant a SUP, the Secretary of Commerce must provide
public notice of the activity and is only allowed to authorize the
activity for a period of five years.\18\ These SUPs can often take
years to acquire and can come with additional burdens and costs.
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\17\ National Marine Sanctuaries Act. Section 310. Special Use
Permits. https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/
media/archive/library/national/nmsa.pdf
\18\ Id.
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In 2002, NOAA created five categories of SUPs to comply with the
NMSA amendments, one of which was ``the maintenance of submarine cables
beneath or on the seabed.'' \19\ In 2006, this category was amended to
include the ``continued presence'' of submarine cables and clarified
that the SUP solely applies to ``commercial'' cables.\20\
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\19\ National Oceanic and Atmospheric Administration. Notice of
Modification to the Special Use Permit (SUP) Category for the Continued
Presence of Commercial Submarine Cables Within the National Marine
Sanctuary System. Notice; Request for Comments. August 16, 2024.
https://www.federalregister.gov/documents/2024/08/16/2024-18099/notice-
of-modification-to-the-special-use-permit-sup-category-for-the-
continued-presence-of
\20\ Id.
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On August 16, 2024, NOAA issued a notice to modify the SUP category
for undersea cables, stating that the category ``does not apply to
commercial submarine cables in any new sanctuaries designated after
August 16, 2024.'' \21\ Therefore, for that two-year period, ``NOAA
will not require or issue SUPs for the continued presence of commercial
submarine cables on or within the submerged lands of newly designated
sanctuaries.'' \22\ This notice also applied to new cables in
sanctuaries that are designated in the two-year period.
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\21\ Id.
\22\ Id.
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H.R. 261 would make permanent NOAA's decision to no longer require
SUPs for telecommunications submarine cables in a marine sanctuary and
would apply this decision and prohibit any other NOAA authorization for
all existing and future cables within the boundaries of any marine
sanctuary. The bill amends NMSA to prohibit NOAA from requiring ``any
authorization for the installation, continued presence, operation,
maintenance, repair, or recovery of undersea fiber optic cables in a
national marine sanctuary'' if such activity is already permitted or
approved by a Federal or state agency.\23\ The legislation effectively
eliminates the SUP process and other redundant NOAA authorizations for
submarine cables, relying on the existing, robust federal and state
permitting processes to authorize these cables within national marine
sanctuaries. This will provide more clarity and certainty for project
developers and encourage investment in this infrastructure, which is
critical for long-term economic security. It will also bolster our
national security by promoting increased route diversity for cables
while maintaining the existing protection of our marine resources.
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\23\ The Undersea Cable Protection Act. https://
naturalresources.house.gov/uploadedfiles/cartga_003_xml1.pdf
H.R. 331 (Rep. Fulcher, R-ID), To amend the Aquifer Recharge
Flexibility Act to clarify a provision relating to conveyances
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for aquifer recharge purposes.
The Aquifer Recharge Flexibility Act (P.L. 116-260) was enacted in
2020 to facilitate aquifer recharge using federal infrastructure. In
many Reclamation states, aquifer recharge programs include using
existing irrigation canals and ditches to seep and percolate water into
an aquifer. Many existing irrigation canals and ditches cross lands
owned by the U.S. Bureau of Land Management (BLM). The irrigation canal
owners already have right-of-way (ROW) with the BLM for their
irrigation canals. The Aquifer Recharge Flexibility Act streamlined the
process for water managers to conduct aquifer recharge.
H.R. 331 would amend the Aquifer Recharge Flexibility Act to allow
the holder of a ROW grant approved by the BLM, acting on behalf of
themselves or a third party, to use the existing ROW for the purposes
of aquifer recharge without further authorization from the Secretary of
the Interior. The bill further clarifies that this use shall not be
considered an expansion or modification. This change would ensure that
the intent of the current law can be fully implemented.
H.R. ____ (Rep. Stansbury, D-NM) ``WaterSMART Access for Tribes Act''
The bill would allow the Secretary of the Interior to reduce or
waive cost-share requirements for tribal governments under
Reclamation's WaterSMART program. It is unclear what metrics
Reclamation will use to determine ``that the Indian tribe does not have
sufficient funds to pay such cost share'' as the bill requires.
Reclamation provides funding opportunities through the WaterSMART
program for projects and activities to increase water efficiency and
conservation. This includes cost-shared grants for water management
improvement projects such as canal lining and piping, watershed
resilience projects, the Basin Study Program, and drought planning and
implementation actions to address future water shortages.\24\ Most
WaterSMART projects require at least 50 percent cost sharing to
leverage non-federal financial resources.\25\ In the 116th Congress,
WaterSMART was amended to allow Reclamation to contribute up to 75
percent of the cost of certain projects that are focused on
environmental benefits.\26\
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\24\ U.S. Bureau of Reclamation, WaterSMART, https://www.usbr.gov/
watersmart/
\25\ Id.
\26\ P.L. 116-260, Division FF, Title XI--Western Water and Indian
Affairs.
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IV. MAJOR PROVISIONS & ANALYSIS
H.R. 231 (Rep. Hageman, R-WY), ``Colorado River Basin System
Conservation Extension Act of 2025''
Reauthorizes the Colorado River System Conservation Pilot
Program through Fiscal Year 2026.
H.R. 261 (Rep. Carter, R-GA), ``Undersea Cable Protection Act''
Prevents NOAA from prohibiting or requiring any
authorization for the installation, continued presence,
operation, maintenance, repair, or recovery of undersea
fiber optic cables in a national marine sanctuary if such
activity is already permitted or approved by a Federal or
state agency.
H.R. 331 (Rep. Fulcher, R-ID), To amend the Aquifer Recharge
Flexibility Act to clarify a provision relating to conveyances
for aquifer recharge purposes.
Amends the Aquifer Recharge Flexibility Act to clarify
that no additional permits or authorizations are needed to
transport water across BLM-managed lands for aquifer
recharge purposes. In addition, the bill introduces a 30-
day notice requirement on local entities planning to use
BLM infrastructure for aquifer recharge.
H.R. ____ (Rep. Stansbury, D-NM) ``WaterSMART Access for Tribes Act''
Gives the Department of the Interior the authority to
reduce or waive cost-share requirements for tribal
governments under Reclamation's WaterSMART program.
V. EFFECT ON CURRENT LAW
H.R. 231
https://naturalresources.house.gov/uploadedfiles/bill-to-
law_hagema_013_xml.pdf
H.R. 261
https://naturalresources.house.gov/uploadedfiles/bill-to-
law_cartga_003_xml1.pdf
H.R. 331
https://naturalresources.house.gov/uploadedfiles/ramseyer_-
_h.r._331.pdf
Rep. Stansbury Bill
https://naturalresources.house.gov/uploadedfiles/bill-to-
law_h.r.____stansbury.pdf
LEGISLATIVE HEARING ON H.R. 231, TO AMEND THE ENERGY
AND WATER DEVELOPMENT AND RELATED AGENCIES AP-
PROPRIATIONS ACT, 2015, TO REAUTHORIZE THE
COLORADO RIVER SYSTEM CONSERVATION PILOT PRO-
GRAM, ``COLORADO RIVER BASIN SYSTEM CONSERVATION
EXTENSION ACT OF 2025''; H.R. 261, TO AMEND THE NA-
TIONAL MARINE SANCTUARIES ACT TO PROHIBIT REQUIR-
ING AN AUTHORIZATION FOR THE INSTALLATION, CONTIN-
UED PRESENCE, OPERATION, MAINTENANCE, REPAIR, OR
RECOVERY OF UNDERSEA FIBER OPTIC CABLES IN A NA-
TIONAL MARINE SANCTUARY IF SUCH ACTIVITIES HAVE
PREVIOUSLY BEEN AUTHORIZED BY A FEDERAL OR STATE
AGENCY, ``UNDERSEA CABLE PROTECTION ACT OF 2025'';
H.R. 331, TO AMEND THE AQUIFER RECHARGE FLEXIBILITY
ACT TO CLARIFY A PROVISION RELATING TO CONVEYANCES
FOR AQUIFER RECHARGE PURPOSES; AND H.R. ____, TO
AMEND THE OMNIBUS PUBLIC LAND MANAGEMENT ACT OF
2009 TO INCREASE TRIBAL ACCESS TO WATER CONSERVA-
TION AND EFFICIENCY GRANTS, AND FOR OTHER PUR-
POSES, ``WATERSMART ACCESS FOR TRIBES ACT''
----------
Thursday, January 23, 2025
U.S. House of Representatives
Subcommittee on Water, Wildlife and Fisheries
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to notice, at 10 a.m., in
Room 1324, Longworth House Office Building, Hon. Harriet
Hageman [Chair of the Subcommittee] presiding.
Present: Representatives Hageman, Radewagen, Walberg,
Ezell, Maloy, McDowell, Crank; Hoyle, Stansbury, Golden, Min,
Elfreth, Gray, Rivas, and Huffman.
Also present: Representative Carter.
Ms. Hageman. The Subcommittee on Water, Wildlife and
Fisheries will come to order.
Good morning, everyone, and I want to welcome the Members,
the witnesses, and our guests in the audience for today's
hearing.
Without objection, the Chair is authorized to declare a
recess of the Subcommittee at any time.
Under Committee Rule 4(f), any oral opening statements at
hearings are limited to the Chair and the Ranking Member. I
therefore ask unanimous consent that all other Members' opening
statements be made part of the hearing record if they are
submitted in accordance with Committee Rule 3(o).
Without objection, so ordered.
I also ask unanimous consent that the Congressman from
Idaho, Mr. Fulcher, and the Congressman from Georgia, Mr.
Carter, be allowed to participate in today's hearing.
Without objection, so ordered.
We are here today to consider four legislative measures:
H.R. 231, the Colorado River Basin System Conservation
Extension Act of 2025, sponsored by myself; H.R. 261, the
Undersea Cable Protection Act of 2025, sponsored by
Representative Carter of Georgia; H.R. 331, to amend the
Aquifer Recharge Flexibility Act to clarify a provision
relating to conveyances for aquifer recharge purposes,
sponsored by Representative Fulcher of Idaho; and the
WaterSMART Access for Tribes Act, sponsored by Representative
Stansbury of New Mexico.
I now recognize myself for a 5-minute opening statement.
STATEMENT OF THE HON. HARRIET M. HAGEMAN, A REP-
RESENTATIVE IN CONGRESS FROM THE STATE
OF WYOMING
Ms. Hageman. Again, I want to welcome everyone to the
Committee on Natural Resources' first legislative hearing of
the 119th Congress.
There are several new faces at the Subcommittee and, for
those of you who don't know me, my name is Harriet Hageman and
I represent the great State of Wyoming. I am a litigator by
trade, and have spent my career challenging Federal overreach,
protecting water and property rights, exposing Federal land and
wildlife mismanagement, and fighting back against the
unconstitutional and unlawful acts of unelected bureaucrats. I
am very honored to serve as the Chair for the Subcommittee on
Water, Wildlife and Fisheries.
I also want to thank Congressman Bentz for his leadership
of the Subcommittee during the past two Congresses.
Today, the Subcommittee will consider four bills. Three of
these center on the Bureau of Reclamation's work in the West.
First we have H.R. 231, which I sponsored, and would
reauthorize the Colorado River Basin System Conservation Pilot
Program, or SCPP, through Fiscal Year 2026. The Colorado River
basin is one of the most developed, regulated, and negotiated
rivers in the United States and in our history. I know. I have
done a lot of work in that basin. It has numerous diversions,
several major dams, and is managed through multiple compacts,
laws, regulatory guidelines, contracts, court decisions, and
decrees. The basin is also experiencing long-term drought
conditions.
While many actions have been taken to address drought in
the basin, my legislation seeks to reauthorize a program that
has demonstrated that voluntary, compensated water conservation
projects can conserve water for Colorado River system storage
to help mitigate the impacts of the drought. To be clear, this
program is not and should not be viewed as a permanent solution
to addressing the drought conditions in the basin. However, at
this time it is a tool that the upper basin States can use to
reduce risk to test new innovative water management strategies.
While we are not discussing broader Colorado River basin
issues today, I do want to say that this Committee is committed
to working with the Trump administration, the Tribes, the seven
basin States, their congressional delegation, and stakeholders
to find a post-2026 solution.
Our second bill, H.R. 331, sponsored by Congressman
Fulcher, clarifies the intent of the Aquifer Recharge
Flexibility Act to ensure that the Bureau of Land Management
understands that third parties such as the Idaho Water
Resources Board, who is testifying before us today, can utilize
a right-of-way to transport water for aquifer recharge
purposes.
Our third Reclamation bill is sponsored by Congresswoman
Stansbury, and would allow the Secretary of the Interior to
reduce or waive cost share requirements for tribal governments
under Reclamation's WaterSMART program. This program, which is
already over-subscribed, helps fund infrastructure improvement
projects such as canal lining or piping to conserve and use
water more efficiently.
Our fourth bill, H.R. 261 sponsored by Congressman Buddy
Carter, would prevent the Secretary of Commerce from requiring
additional permitting for fiber optic cable projects that go
through a national marine sanctuary if they have already been
authorized by a Federal or State agency. Undersea networks are
a major component of our global connectivity, enhancing the
security of these cables and promoting, rather than deterring,
their deployment and maintenance will protect our national and
economic security and ensure that we are connected to the rest
of the world.
Again, I want to take the time to thank our witnesses for
being here today, and I look forward to a robust conversation.
I now recognize Ranking Member Hoyle for her opening
statement.
And I want to say that I look forward to working with you
during the 119th Congress as we move forward on these important
issues.
STATEMENT OF THE HON. VAL T. HOYLE, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF OREGON
Ms. Hoyle. Thank you, Chair Hageman.
Good afternoon, everyone. Well, it is not afternoon, is it?
It is morning. Good morning, everyone. I am excited to serve as
Ranking Member of the Water, Wildlife and Fisheries
Subcommittee, and I look forward to working with Chair Hageman
on protecting America's natural resources.
I also want to thank Chair Bentz for his service, and it
just made sense that we would have another Oregonian in
leadership on this Committee as water is so critically
important in the Pacific Northwest and in this country.
Now, I want to be clear. Climate change is having a
profound impact on our natural world. We are seeing drought,
weather changing from historic norms, leading to a strain on
our on our environment, economy, and national security. The
devastation in Los Angeles is just one example. Record-high
temperatures, dry vegetation combined with intense winds is
causing an inconceivable amount of harm.
Because of what we are facing as we keep breaking global
temperature records, one of the most important things this
Committee can do is help local communities better manage and
conserve their water resources. This is what the three water
bills in this hearing today do.
H.R. 231, the Colorado River Basin System Conservation Act,
would reauthorize the System Conservation Pilot Program to
support voluntary water conservation projects to address
drought impacts in the upper basin through 2026.
I am also really happy to see Representative Stansbury's
WaterSMART Access for Tribes Act, which authorizes the
Secretary of the Interior to reduce or waive the non-Federal
cost share requirements for Tribes receiving WaterSMART grants,
including on today's agenda. This legislation will help remove
a financial barrier for Tribes to increase drought and climate
change resiliency. I hope we can work together to quickly
advance this legislation and tribal water settlements through
the Committees to support Tribes' access to reliable water
sources.
H.R. 331, the Aquifer Recharge Flexibility Act amendments,
would make it harder for communities and Tribes to have input
on water management, while it allows third parties to use an
existing Bureau of Land Management right-of-way, easement
permit, or other authorization for aquifer recharge without
further authorization from the Secretary. It also classifies
this as not a major Federal action, all but guaranteeing these
aquifer recharge projects are exempt from NEPA review. I hope
the bill's sponsor will work with us to us to address this
concern.
The one bill that we feel needs major changes is H.R. 261,
the Undersea Cable Protection Act. First and foremost, we need
to make sure the purposes of the national marine sanctuaries
and the natural, cultural, and historical resources are
considered when permits are approved. These areas are some of
our most cherished ecosystems and help thousands of small
businesses nationwide, including the very robust and important
commercial fishing industry in Oregon and the Pacific
Northwest. National marine sanctuaries are our Nation's marine
national parks.
I recognize that fiber optic cables are less destructive
than many other activities and necessary for our economy and
national security, and I believe we can find a solution that we
all agree on that balances the need for fiber optic cables and
protecting and preserving our ocean ecosystems. We need to make
the language less ambiguous and allow NOAA to continue to
charge fair market rate and assess damages if necessary, and
protect NOAA's authority to carry out the National Marine
Sanctuary Act. If we get it right, it will help ensure the
build-out of critical infrastructure in America and protect the
sanctuary resources that local economies and small businesses
depend on.
I look forward to fighting for the health and
sustainability of our water, wildlife, and fisheries, and thank
you to the witnesses for participating in today's hearing. I
look forward to hearing from each of you.
With that, I yield back.
Ms. Hageman. Thank you. I now recognize Ranking Member
Huffman for his opening statement.
STATEMENT OF THE HON. JARED HUFFMAN, A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Huffman. Thank you, Madam Chairman, and congratulations
to you and to Ranking Member Hoyle.
I know the majority was eager to get us started with this
first Subcommittee hearing, and it is happening on a shorter
timeline than is standard for regular order. Democrats agreed
to this in the spirit of cooperation, but we do expect going
forward that the majority will work with us on the traditional
schedule, and the norms of the Committee will continue to be
honored. The majority's haste of putting this hearing together
also means that there are no Administration witnesses. None
were invited, and that would have been non-negotiable for the
majority over the past few years. I hope that, too, is not a
new precedent.
But with that, I am glad to see Representative Stansbury's
WaterSMART for Tribes bill included today. This is a good bill.
It is going to provide essential tools to help Tribes compete
for grants that improve water conservation and resiliency.
I have significant concerns about one bill, H.R. 261, the
Undersea Cable Protection Act. We have to make sure that our
national marine sanctuaries, which are some of America's most
cherished places, continue to be protected, and this bill
prohibits NOAA from requiring an authorization for the
installation, maintenance, or recovery of fiber optic cables in
any national marine sanctuary if such an activity was
previously authorized by any Federal or State agency. That is
really broad and sweeping.
The National Marine Sanctuaries Act drives a collaborative
process for developing and designating these sanctuaries that
encompass protection for ocean resources that ocean users,
local communities, and Tribes can all be proud of. They help
support coastal economies in a big way, and I know because I
have a couple of these marine sanctuaries in my district. They
generate $8 billion annually to local economies and support
tens of thousands of jobs and businesses, including fishing,
diving, tourism, recreation, and scientific research sectors.
And most of that activity is driven by small businesses.
Activities in these sanctuaries have to be compatible with
the purpose of the sanctuary. Small businesses such as dive
boat operators, recreational fishing guides, whale watching
tours, all of these must make sure that their activities comply
with the rules. But in this bill House Republicans are making
it clear that billion-dollar companies like Meta get a free
pass from all the rules. This bill lets them ignore any
assessment of the impacts of their activity on the marine
sanctuary, such as whether the route will disturb its most
vulnerable features like deep sea corals. And it allows them to
escape any fees or liability if a disaster occurs.
And disasters do occur. In 2020 a Facebook subsidiary
bungled a fiber optic laying operation off the coast of Oregon,
leaving their drilling pipes, fluids, and other construction
materials on the sea floor and creating two sinkholes. Why
would we give billion-dollar tech bros, donors, and pals that
have been exalted a little too much lately a free pass, knowing
that our small businesses are playing by the rules and will be
the ones to take the hit if a construction disaster occurs?
That said, I think there is nothing inherently incompatible
between undersea cables and national marine sanctuaries. They
exist in a bunch of existing sanctuaries, including the ones in
my district. But they don't need special statutory giveaways.
And if a bill is needed, we need to be thoughtful and careful
and targeted about the way we do that.
So finally, H.R. 331, which amends the Aquifer Recharge
Flexibility Act to make it easier for third parties to use
Federal rights-of-way for aquifer recharge projects, the
sponsors of this legislation have made progress to ensure that
the bill complies with the directives of the Federal Land
Policy Management Act and other key environmental laws. But it
still contains an unnecessary NEPA exemption, and that is bad.
It is going to make it difficult for Tribes and affected
communities to weigh in on projects that could significantly
impact them. I hope the sponsors will work with us to fix that
language, and make sure this legislation doesn't place
additional burdens on these local communities. And if they can
do that, I think that is a bill that should have broad
bipartisan support.
With that, I want to thank the witnesses, welcome everyone
to Washington, and I look forward to discussing these bills
further.
I yield back.
Ms. Hageman. Thank you. I will now introduce our first
panel. And as is typical with legislative hearings, the bills'
sponsors are recognized for 5 minutes each to discuss their
bills. To testify on my own bill, I recognize myself for 5
minutes.
I think it is important to give a bit of background related
to H.R. 231. The Colorado River basin covers seven States:
Arizona, California, Colorado, Nevada, New Mexico, Utah, and
Wyoming. In fact, Wyoming is the headwaters with the Green
River. It also covers the Republic of Mexico. In the U.S. the
basin provides water for irrigation of nearly 4.5 million acres
of land, municipal water supply to about 40 million people, and
it supports hydropower facilities that can generate more than
4,200 megawatts of electricity. Within the basin there are 7
national wildlife refuges and 11 National Park Service units.
In 2014, the Bureau of Reclamation, the river basin States,
and the river water users explored ideas that could mitigate
the impacts of the ongoing drought in the basin. One idea was
the System Conservation Pilot Program, or SCPP, a 4-year pilot
program designed to explore solutions to address declining
water levels in Lake Mead and Lake Powell, and the potential
for long-term drought in the upper Colorado River basin. The
program implemented and tested on-the-ground voluntary water
conservation opportunities that may help manage ongoing record
drought conditions in the basin.
The SCPP originally concluded in 2018. From 2015 to 2017
the Upper Basin SCPP funded 45 projects for a consumptive use
reduction of approximately 22,000 acre-feet at a total cost of
$4.5 million. In 2022 this program was reauthorized until
September 30, 2024.
H.R. 231 would extend the program's funding authorization
until September 30, 2026, and require the Secretary of the
Interior to report to Congress on the continued effectiveness
of the program by September 30, 2027.
The SCPP allows the Secretary to provide grants to public
entities for water conservation pilot projects if the entity
uses water from the Colorado River basin for municipal
purposes, and for new water conservation agreements or for
renewing or implementing water conservation agreements.
This is a good bill, and I urge its passage.
The Chair now recognizes Congresswoman Stansbury for 5
minutes.
STATEMENT OF THE HON. MELANIE STANSBURY, A REP-
RESENTATIVE IN CONGRESS FROM THE STATE OF NEW
MEXICO
Ms. Stansbury. All right. Well, good morning, everyone, and
thank you, Madam Chairwoman and Madam Ranking Member. It is
wonderful to be here with you today, and I am excited to serve
on this Committee, having worked on water much of my life and
my career, but also because we have great leadership. And I
know, Madam Chairwoman, you have a long history working on land
and water issues, as do you, Representative Hoyle, so thank you
so much.
I am delighted and honored to have the have the opportunity
to present the bill that we have in front of you here today. It
is called the WaterSMART Access for Tribes Act.
I would like to welcome Mr. Witherspoon. Thank you so much
for traveling all the way from Window Rock, Arizona, the Navajo
Nation. And I know our other guests who are testifying who
traveled from all over the West, thank you for being here
today.
As we say in New Mexico, water is life, water is sacred,
water is essential to everything we do. And yet, for many
tribal communities, access to water, infrastructure, and
funding needed to maintain that infrastructure is out of reach.
In fact, across the Navajo Nation it is estimated that 30 to 40
percent of Dene homes do not have access to running water,
piped water inside their homes. For example, in the To'hajiilee
chapter, which used to be in my district but is a community
near and dear to my heart, near to Albuquerque, the people of
To'hajiilee have lived for many years without safe drinking
water. Thankfully, the issues around water are finally being
addressed.
However, there are still many homes that have to haul water
from miles away that is used in homes, public buildings, and
even across public buildings. This is, sadly, a common story
across many communities. We have pueblos across New Mexico that
have long gone without sufficient funding to address water
infrastructure needs not only for drinking water, but also for
irrigation and other needs.
As much of the West continues to face drought conditions
and changes in water supply, it is unconscionable that we have
not summoned the moral courage and the political will to
address these issues. That is why this WaterSMART Access for
Tribes Act is crucial. Years of under-investment in tribal
water infrastructure have impacted the ability of our Tribes
and pueblos to address water needs.
It is estimated that, nationwide, almost half of tribal
homes lack access to adequate water or sanitation. And tribal
communities are 19 times more likely to not have access to
clean water overall. Make no mistake, Tribes and pueblos have
lived on these lands for countless generations since time
immemorial, practicing both traditional cultural ways of life
and resource stewardship, as well as economic activities. But
as communities have grown, infrastructure has aged, drought and
water security have intensified, the need to address water
security has grown more acute.
This WaterSMART Access for Tribes Act is one tool to unlock
critically-needed resources to address tribal water security.
For over a decade the Department of the Interior's WaterSMART
program has provided hundreds of grants to communities across
the West as one of the Nation's premier water conservation
programs. Yet, Tribes have received fewer than 5 percent of
these grants due to burdensome cost-sharing requirements which
have acted as a significant barrier to accessing funds.
This bill would authorize the Secretary of the Interior to
remove those barriers, and would unlock millions of dollars in
investment in tribal water programs and projects. This includes
projects for addressing drought, water conservation,
efficiency, reuse, and recycling.
Water is fundamental to the social, economic, and cultural
needs of Indigenous communities. This legislation will help to
break down economic barriers to addressing those needs, and
will help to unlock the funds to support tribal communities in
building out infrastructure. The time to address these issues
is now.
And I thank the Chair and Ranking Member for including this
bill in today's hearing, and I am happy to answer any
questions. Thank you very much.
Ms. Hageman. Thank you, Ms. Stansbury, for your testimony
today.
We do have several Members who are also participating in
other hearings on the Capitol today, so they will be coming in
and out. And as the bills' sponsors arrive, we will have them
make their statement at that time. But to move forward with
this, and make sure that we are staying on time, we will go
ahead and introduce the second panel that will be testifying
today: Mr. Nathan Thayn, Owner of Thayn Farms in Green River,
Utah; Ms. Denise Toombs, Advisor to the International
Connectivity Coalition in San Francisco, California; Mr. Dwight
Witherspoon, Water Rights Unit Attorney for the Navajo Nation
in Window Rock, Arizona. I was just with your president a few
days ago, it was wonderful to have an opportunity to meet him
again; and Mr. Wesley Hipke, Water Projects Section Manager of
the Idaho Department of Water Resources in Boise, Idaho.
Let me remind the witnesses that under Committee rules they
must limit their oral statements to Statements to 5 minutes,
but their entire statement will appear in the hearing record.
To begin your testimony, please press the button on the
microphone.
And we use timing lights. When you begin, the light will
turn green. When you have 1 minute remaining, the light will
turn yellow. And at the end of the 5 minutes, the light will
turn red and I will ask you to please complete your statement.
I will also allow all witnesses to testify before Member
questioning.
I now recognize Mr. Thayn for 5 minutes.
STATEMENT OF NATHAN THAYN, OWNER, THAYN FARMS,
GREEN RIVER, UTAH
Mr. Thayn. Thank you, Chair Hageman, and Ranking Member,
and other members of the Committee. I appreciate the
opportunity to present to you today.
My name is Nathan Thayn. I am a fourth-generation farmer
from Green River, Utah. My great-grandfather started farming in
the 1880s. We lived along the Price River and moved in the late
1970s to the Green River in central south Utah because there
was a lot more water there. My father, who sits behind me, 85
years old, hollowed out a corn barn to play pickleball. He is a
very active part of our family operation. I also have two sons
who are working with me on the farm and plan to continue our
heritage of producing corn, alfalfa, and melons. I am here
today to testify in favor of H.R. 231, legislation that would
reauthorize the System Conservation Pilot Program.
As Committee members know, the Upper Colorado River System
Conservation, or SCPP, is an important opportunity for
temporary, voluntary, and compensated reduction in consumptive
use of agricultural water in the upper Colorado River basin.
Projects typically involve full or partial season fallowing,
where farmers forgo irrigation. It is also used for forbearing
and the use of excess reservoir water shares. Participants are
compensated per acre-foot of conserved water to replace income
lost by not using their water for its typical purpose.
Our family farm operates about 1,600 acres of river bottom
and bench along the east side of the Green River, above the
little town of Green River, Utah. Our best money crop is corn,
followed by melons and alfalfa. We produce products. We end up
putting milk, beef, and melons on the tables of American
families throughout especially our region.
Over the years we have spent a lot of money investing in
infrastructure. We went from flood irrigation on that acreage
to pivots and sprinkler irrigation to conserve and to use water
more efficiently. We were introduced to the SCP program in
1923, as we had fields that had some poor drainage. We used
this as an opportunity to do projects to help those fields
drain better. And then, in 2024, we did a much larger
conservation project.
If you know anything about farming, it is a lot like
gambling. You spend a lot of money up front on seed and
fertilizer and machinery and other things, and hope that you
have a good market after you finished your crop with all the
vulnerabilities that apply, weather and what not, and get your
money back and turn a profit.
The SCPP has introduced us to the idea that we can conserve
water, leave it in the river, generate a better financial
return by putting it on less productive ground and restore the
productivity of fields where we have pulled water out to help
with soil health, drainage issues, and nutrient management.
We haven't traditionally used fallowing, as there is very
little incentive to do so. You put a lot of money into having
your fields in use and the water in use, the lose-it-or-use-it
law is in addition to the economic hit that you take by not
using your water. So this is kind of the first stab at thinking
seriously about conservation and all the benefits that could be
put with it.
We are learning that our water can be viewed as another
type of cash crop that would allow us to implement a type of
rotational fallowing, which could be very beneficial to our
operations. The SCP program has opened our eyes to the fact
that water we are saving and leaving in the river is benefiting
Utah, and also meeting our obligations there and allowing water
to be put in Lake Powell, Lake Mead, downstream.
And some of the uses of the SCCP, or excuse me, SCPP,
appreciate your support of this program. It is working. It has
changed our minds. It has changed some of the attitudes that we
have towards conservation and the opportunities that it
provides. And it is also helping our State and our downstream
neighbors, and providing a little extra water for the fish and
the environment. We have no interest in selling out. We love
what we do. My kids go to classrooms where there are four kids
that graduate, and they love it, and they want to come back.
They like the rural area and the setting.
I encourage the Committee to pass H.R. 231 quickly to
ensure the program is reauthorized. The SCPP is an important
tool for farmers. At the same time I would encourage the
Committee to work with States and farmers like me to make ways
of making even better, designing more flexible, long-term
policies that would provide water users with the tools needed
to conserve energy, as our farm alone has allowed over 2,000
acre-feet of water to return to the reservoirs, and we look
forward to working and striving to conserve even more.
I thank the Chair and the other members of this Committee
for this opportunity, and if there are any questions I would be
glad to take a stab at them.
[The prepared statement of Mr. Thayn follows:]
Prepared Statement of Nathan Thayn
on H.R. 231
Thank you, Chair Hageman and members of the Committee. I appreciate
the opportunity to present to you today.
My name is Nathan Thayne, I am a 4th generation farmer from Green
River Utah. My great, great grandfather William Alvin Thayn put down
roots in Wellington, Utah in the 1880's and started farming and raising
cattle on land adjacent to the Price River. My father eventually moved
to the Town of Green River Utah in the 1980's and purchased a large
farm immediately adjacent to the Green River. I studied Agriculture
Business at Utah State University and started full time farming with my
father right after graduating college. My father is here today sitting
in the gallery. I have two sons who are now working with me on the farm
and plan on continuing our heritage of producing some of the best corn,
watermelons and alfalfa in the West.
I am here this morning to testify in favor of HR 231, legislation
that would reauthorize the Upper Colorado River System Conservation
Pilot Program.
SCPP Background
As committee members know, the Upper Colorado River System
Conservation Pilot Program, or SCPP, is an opportunity for temporary,
voluntary, and compensated reduction in consumptive use of
agricultural, municipal, or industrial water in the Upper Colorado
River Basin. Projects typically involve full or partial season
fallowing of fields, (where farmers forgo irrigation), changing to
lower-water-use crops, or forbearing the use of excess reservoir water
shares. Participants are compensated per acre-foot of conserved water
to replace income lost by not using water for its typical purpose.
SCPP is administered in Utah, Colorado, New Mexico and Wyoming by
the Upper Colorado River Commission with support from local state
agencies. SCPP is currently funded by Inflation Reduction Act of 2022
allocations to the Bureau of Reclamation of up to $125 million. Just
under $50 million has been spent on SCPP to-date.
In 2022, SCPP was reauthorized for 2023 and 2024 as part of the
Upper Colorado River Commission's 5-Point Plan responding to former
Bureau of Reclamation Commissioner Touton's request for the Colorado
River Basin States to reduce use by an additional 2-4 million acre-feet
of water annually to protect critical elevations at Lake Powell and
Lake Mead.
In 2023, the SCPP program conserved about 38 thousand acre-feet at
a cost of about $16 million across the four Upper Division States. The
state of Utah contributed about 16 thousand acre-feet for about $5.5
million in compensation. In 2024, SCPP featured a more focused scope of
eligible projects that supported innovation and local resiliency in
water conservation. In 2024, SCPP conserved about 64 thousand acre-feet
at a cost of about $29 million across the four Upper Division States.
Utah contributed about 22 thousand acre-feet for about $10 million in
compensation.
My Experience with the SCPP Program
As I mentioned previously, my family farms about 1600 acres of
river bottom and bench land along the Green River. Our best money crop
is feed corn followed closely by alfalfa. Green River is known
nationwide for its melons and we love growing and eating those too! The
products we produce end up putting milk, beef and melons on the tables
of American families throughout the Nation.
My family farm conserved about 357 acre-feet of water in SCPP in
2023, and 1,981 acre-feet in 2024 by fallowing fields that usually grow
alfalfa and corn.
If you know anything about farming, it's a lot like gambling. We
spend a lot of money up front on seed, equipment, fertilizer, and fuel
in the hopes of growing a good crop and then having a good market to
sell it in at the end of the year to make our money back and maybe turn
a little profit.
We have also spent a lot of money improving efficiency in our
farming operations and in the use of our most precious resource, which
is water. We were introduced to the SCPP program in 2023. We always try
to maximize the use of our water. Occasionally, we have a need to pull
a field out of production for one reason or another. We still use the
water but it goes to more marginal ground and our financial returns go
down. The SCPP has introduced us to the idea that we can conserve
water, leave it in the river, generate a better financial return than
putting it on less productive ground and restore the productivity of
the fields we have pulled out of use by working on soil health,
drainage issues and nutrients needed by the crops we grow.
We haven't traditionally used fallowing as a tool in our farming
operations, primarily because of the financial hit we took by taking
the ground out of production. We are learning that our water can be
viewed as another type of cash crop that would allow us to implement a
type of rotational fallowing that would actually be very beneficial to
our operations.
The SCPP program has also opened our eyes to the fact that the
water we are saving and leaving in the river is benefiting Utah by
meeting our obligations to our downstream neighboring States as well as
benefiting the river environment and the endangered fish found in the
Green River.
In summary, the users of the SCPP appreciate your support for this
program. It is working. It is changing attitudes, making us better
farmers, providing a little bit of certainty and security in our
operations, and at the same time, helping our state and our downstream
neighbors and providing a little extra water for the fish and
environment. We have no interest in selling out to either developers or
wall street. We want to keep farming in the family for at least another
4 generations or longer.
To wrap up, let me summarize two key takeaways:
1. PASS HR 231
I encourage the Committee to pass HR 231 quickly to ensure this
program is reauthorized
2. LONGER TERM SOLUTION NEEDED
The SCPP is an important tool for farmers. At the same time, I
would encourage the Committee to work with states and farmers like me
to design a more flexible, longer-term policy that will provide water
users with the tools needed to conserve water on the Colorado River in
a transparent and effective fashion
Thank you again, Chair Hageman, and members of the committee for
this opportunity. I am happy to answer any questions you may have.
______
Ms. Hageman. Mr. Thayn, thank you for your very helpful and
informative testimony.
I see that we have now been joined by Congressman Carter,
and I am going to have him testify about his bill for 5
minutes, and then we will come back to the panel.
Mr. Carter?
STATEMENT OF THE HON. BUDDY CARTER, A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF GEORGIA
Mr. Carter. Thank you, Madam Chair, and thank you for
giving me this opportunity to speak about H.R. 261. H.R. 261 is
the Undersea Cable Protection Act.
The reason I introduced this bill was to address a
redundant process that is impeding the deployment of sub-sea
cables. The Department of Homeland Security has designated the
cables as critical infrastructure. And when you think about it,
they are. We rely on these cables more than any of us realize,
because they are the backbone of the Internet, and are critical
for intercontinental communication and transactions that are
necessary to support the increased data loads that are a
product of the growth in AI, super-computing, and everyday
dependency on the Internet.
If you don't hear anything else I say, listen to this. It
is estimated that in the financial sector alone, undersea
cables carry $10 trillion of financial transfers daily, $10
trillion of financial transfers daily. Anybody who has read the
news in the past 6 months knows our adversaries have been
targeting these cables and cutting them in order to cripple the
economic and national security of countries around the world.
This underscores the importance of redundancy and resiliency on
our own cables and the diversity of routes that are needed to
ensure we limit our own vulnerability to such activity.
The permitting process for sub-sea cables is robust, and
goes above and beyond to protect the marine habitat that is
particularly near and dear to the hearts of members like me who
are from the coast. I represent the entire coast of Georgia, so
it is important to me.
The Army Corps of Engineers, NOAA, State coastal
commissions, and local agencies are all involved in a process
that requires route planning, coordination, multiple
environmental reviews, and archeological assessments to ensure
the seabed floor and surrounding habitats are preserved and
protected. I understand the importance of this process, and my
bill does absolutely nothing to change that. What I am looking
to address is the additional Special Use Permit process that
prompts the secondary NEPA request, additional environmental
reviews, and the delays that come with such a bureaucratic
process in the instances where a submarine cable is being laid
in a marine sanctuary.
In some instances the marine sanctuary came after the
cables were laid, and they have to seek permission just to
stay. The SUPs issued by NOAA are limited to 5 years, which is
in stark contrast to the 25-year license they get from the FCC.
It takes longer than 5 years to plan the laying of these
cables. And as soon as you get your SUP, it is already time to
start another environmental review. And we already know what
the review will say, which is what they always say: sub-sea
cables do not cause environmental harm.
The investment to deploy these cables are significant, and
certainly expect a greater return on that investment than 5
years. And they deserve more regulatory certainty than this
black box process. I am told by folks in the sub-sea cable
industry that marine sanctuaries are de facto no-go zones
because of this regulatory uncertainty.
And these sanctuaries are not just as rare as you may
think. Over 400 miles of the coast of California is designated
as marine sanctuary. That is half the coast of the entire
State, which also happens to be the most strategic place to lay
sub-sea cables, given its position globally and its proximity
to data centers.
Limiting the ability to lay cables to less than half the
coast of California and outside of sanctuaries throughout the
United States limits the resiliency and the redundancy of these
cables. This limitation increases the risk of external events
like landslides, a ship dragging an anchor, fishing operations.
These things do happen, intentionally or not, would damage
multiple cables at the same time, and imperil our
communications which is detrimental to our national and
economic security.
NOAA has said that they oppose any requirement for SUPs for
these cables in marine sanctuaries for 2 years to determine a
process going forward. However, the process will only address
future marine sanctuaries, so the best-case scenario is a
patchwork of inconsistent rules depending on the sanctuary and
when it is designated.
My bill would provide regulatory certainty, businesses need
that regulatory certainty now, without jeopardizing any
environmental concerns or responsibilities that have to be
addressed before receiving a permit. This is a balanced
approach to protect the marine environment while ensuring our
national and economic security, as well as our global
leadership and technology.
Once again, I want to repeat what I said earlier because I
think it is very, very important. It is estimated that in the
financial sector alone, undersea cables carry $10 trillion
worth of financial transfers daily. This is important.
Thank you very much for considering this, Madam Chair, and
thank you for giving me the opportunity to address, and I yield
back.
Thank you. Very interesting testimony. Very helpful.
And I assume, Ms. Toombs, that you will be reiterating some
of the information he has provided and providing more detail
about the importance of this bill. So would you please go ahead
and begin your testimony for 5 minutes?
STATEMENT OF DENISE TOOMBS, ADVISOR, INTERNATIONAL
CONNECTIVITY COALITION, SAN FRANCISCO, CALIFORNIA
Ms. Toombs. Thank you, and thank you for the opportunity to
testify today on behalf of the International Connectivity
Coalition, ICC, regarding H.R. 261, the Undersea Cable
Protection Act of 2025.
This timely legislation is needed to address sub-sea cable
permitting and national marine sanctuaries to ensure
environmental concerns are addressed with direct consultation
with NOAA, while providing regulatory certainty for cable
network investment and development in the national interest.
I am Denise Toombs, Advisor to the ICC, with 25 years of
experience permitting sub-sea cables in the U.S. and globally.
The ICC represents companies that design and operate submarine
fiber optic cable networks which are the backbone of global
communications. These cables transmit 99 percent of
intercontinental data, enabling essential global activities
from commerce and financial transactions to secure government
and military operations.
A CSIS study estimates the sub-sea cable industry's
substantial investment in these global networks contributes
nearly $650 billion annually to the global economy and supports
our national security. With exponential growth in global
Internet traffic and the demand from technologies like AI and
super-computing, the need for sub-sea cables continues to rise.
In order for the U.S. to maintain global leadership in
technology, investment and deployment in sub-sea cables needs
regulatory certainty.
The current framework for the permitting of sub-sea cables
is already robust, requiring permits from multiple Federal,
State, and local agencies. Required studies in general, this is
not in marine sanctuaries, per se, include essential fish
habitat assessments, biological assessments, cultural and
archeological studies, and enforceable mitigation plans.
Environmental impact studies and monitoring that are integral
to these permitting processes and permit conditions continue to
show that the environmental impact of cables is minimal and
short term. Environmental protection is managed in part through
intensive routing analyses and engagement with resource
agencies and local marine users during the design phase,
established industry guidance and best management practices
during installation, and cooperation with resource agencies
during and after installation. The current permitting process
can take up to 3 years before moving on to installation.
The legislation being considered does not change or limit
any of these requirements. What the bill is looking to address
is the additional permitting framework for commercial sub-sea
cables in national marine sanctuaries. Special Use Permits
administered by NOAA add another layer of permitting, and
substantially increases the regulatory uncertainty for cable
projects.
NOAA's requirement for Special Use Permits is redundant to
the existing robust permitting processes already overseen by
Federal, State, and local authorities. Moreover, if an SUP is
issued, it is only good for 5 years with uncertain prospects
for renewal. A 5-year term is incompatible with critical
infrastructure investment and expected operating life of these
systems, and is in contrast with the 25-year license issued by
the FCC for these cables and the 20 to 25-year terms of most
State seabed leases.
These restrictions discourage cable routes through
sanctuaries, making them no-go zones, as mentioned. For
example, approximately 400 of California's 800 miles of
coastline is in areas designated as national marine
sanctuaries. This matters because network resiliency and
security require diverse cable routes. If networks are forced
into more congested areas, they are more vulnerable to becoming
a single point of failure during natural disasters or other
events.
The Undersea Cable Protection Act would streamline the
permitting process by eliminating the extra requirement of
NOAA's Special Use Permits, while retaining NOAA's oversight
role through a consultation process. This would have no effect
on the existing Federal, State, and local regulatory
requirements for sub-sea cables. The change would retain both
the protection of sanctuary resources and the continued
development of this critical infrastructure.
Sub-sea cables are essential to the U.S. economy and
national security, and this legislation represents a balanced
approach to safeguarding our marine environments while enabling
investment in vital communications networks.
Thank you for the opportunity to testify. I look forward to
your questions.
[The prepared statement of Ms. Toombs follows:]
Prepared Statement of Denise Toombs, Advisor to the International
Connectivity Coalition
on H.R. 261
Distinguished members of the Committee, thank you for the
opportunity to testify today on behalf of the International
Connectivity Coalition in support of H.R. 261, the ``Undersea Cable
Protection Act''. We appreciate Congressman Buddy Carter for
introducing this legislation to address subsea cable permitting in
national marine sanctuaries.
I am Denise Toombs, Advisor to the ICC, and am appearing on behalf
of the ICC to share my experience permitting subsea cables for nearly
25 years. I am recognized as a leading expert in environmental
permitting and licensing for marine capital projects, particularly
subsea cable projects in the U.S. and globally. I understand the
complexities of the local, state, and federal permitting regimes for
these types of projects and have a deep knowledge in applying these
regulations to subsea cable systems. The ICC is a group of companies
with substantial investments in subsea fiber optic cable networks that
enable people, companies, governments, and institutions to communicate
and transact business across oceans and between continents in near real
time.
Subsea cables are essential to U.S. economic and national security.
This is important legislation needed to address commercial subsea cable
\1\ permitting in national marine sanctuaries and is a balanced
approach to safeguarding our marine environments, while enabling
investment in vital communications networks.
---------------------------------------------------------------------------
\1\ This testimony is limited to commercial subsea cable
permitting, not subsea cables for research or military use.
Subsea Fiber-Optic Cables. Modern subsea cables use fiber-optic
technology to facilitate the transmission of 99% of international data
and communications across the world.\2\ These cables are laid on the
seabed between and around continents. Subsea cables are critical
infrastructure and are pivotal in the functioning of governments,
economies, and societies worldwide.\3\ They underpin the digital
economy, supporting everything from global trade and financial
transactions to the daily operations of businesses across borders. The
Center for Strategic and International Studies estimates that the
contribution of subsea cables to the U.S. economy in 2019 was nearly
649 billion, or approximately 3% of US GDP.\4\ Subsea cables also
support our national security communications, including secure military
and intelligence operations. Any disruption to these systems poses a
significant risk to U.S. economic and national security.
---------------------------------------------------------------------------
\2\ See https://www.subseacablemap.com/
\3\ See Priorities for DHS Engagement on Subsea Security &
Resilience; see also Securing Asia's Subsea Network: U.S. Interests and
Strategic Options
\4\ See Securing Asia's Subsea Network: U.S. Interests and
Strategic Options
---------------------------------------------------------------------------
With the rise of digitalization, e-commerce, data-driven economies,
and now artificial intelligence, the need for reliable, global internet
connections continues to grow exponentially, and worldwide demand for
bandwidth is now nearly doubling every two years.\5\ This, in turn, has
resulted in a year-over-year increase in the number of subsea cables at
a rate of 4 percent annually,\6\ making today's world of approximately
575 active subsea cables \7\ starkly different than the world of
approximately 100 cables that existed in 1999.\8\
---------------------------------------------------------------------------
\5\ See id.
\6\ See Rising Bandwidth Demand and the Impact on Subsea Cables,
OCEANS & CABLES (Feb. 26, 2024), https://oceanscables.com/rising-
bandwidth-demand-and-the-impact-on-subsea-cables/.
\7\ See id.
\8\ See World Submarine Cables & International Bandwidth,
STACKSCALE (July 7, 2022), available at https://www.stackscale.com/
blog/submarine-cables/.
---------------------------------------------------------------------------
Accommodating these essential lines of communication through
geographically diverse ocean routes is necessary to ensure that
disruption caused by an earthquake, maritime accident, or other
incident does not cause widespread loss of connectivity for U.S.
commerce, safety, and security interests. Subsea cable ``route
diversity'' is one of the key considerations during the design of new
cable systems to maintain resilience of digital communication
infrastructure. Therefore, potential route diversity benefits from
having fewer constraints during spatial planning. A principal policy
goal set by DHS is to coordinate internationally to increase network
resilience and route diversity.\9\ Given the vital role subsea cables
play in our digital communication infrastructure across the globe, it
is imperative that the United States promote, not delay, investment in
their installation and operation. The proposed legislation will help
ensure the United States remains a leader in strengthening the
resilience of cable networks through route diversity.
---------------------------------------------------------------------------
\9\ See Priorities for DHS Engagement on Subsea Security &
Resilience.
Subsea Cables in the Marine Environment. Subsea fiber optic cable
systems have minimal environmental impact. Subsea fiber optic cables
are typically less than 2 inches in diameter or about the size of a
garden hose. Throughout the design and installation process, extreme
care is taken to minimize its environmental footprint. The industry
practices early-stage engineering and leverages modern technology to
avoid or minimize environmental impacts while at the same time
maximizing societal, economic, and national security benefits.
The industry also deploys intensive routing analyses and regularly
engages with resource agencies and local marine users during the design
phase. During installation, they follow well established industry
guidance and best management practices and cooperate with resource
agencies and stakeholders during and after installation.
There is significant data which demonstrate that subsea fiber optic
cable installation and operation, including maintenance and repair,
have minimal environmental impact.10 For example, there are
impact assessments, monitoring reports, and post-installation surveys
prepared for U.S. subsea cable projects, including studies addressing
cables in national marine sanctuaries that demonstrated, even for
subsea cables within national marine sanctuaries, seafloor conditions
return to pre-cable installation conditions following the cable lay
activities, and biological communities along the cable route were found
to be indistinguishable from those in control areas away from the
cable.11,12 In addition, burial verification surveys
conducted for permit compliance along the West Coast consistently show
cables, once installed and buried, remain in place as recorded during
installation.
---------------------------------------------------------------------------
\11\ J. Lindholm, K. Roetcisoender, M. Seida, and T. Leggett, Final
Report, Olympic Coast National Marine Sanctuary PCL Cable Seafloor
Habitat Recovery at 10 (Mar. 2024). March 2024 report for seabed
recovery survey completed involving telecommunications subsea cables
installed in the Olympic Coast National Marine Sanctuary indicating
that there was ``no evidence of the cable (either exposed cable or
remnant trench from the cable installation)''; and that (2) ``there was
no difference with respect to the density'' of either sessile
macrofaunal invertebrates on the benthos or of demersal fishes
``between either cable and their unimpacted reference sites.'' See also
NOAA Office of National Marine Sanctuaries, ONMS-18-01, Submarine
Cables in Olympic Coast National Marine Sanctuary: History, Impact, and
Management Lessons (2018), at 42-43. Report found that ``[i]n general
terms, the physical habitat within OCNMS had returned to pre-
installation conditions within five years of cable installation.'' In
addition, the report concluded that in terms of ``impacts from undersea
cables, benthic communities along the cable route in [OCNMS] were
indistinguishable from those in control areas during the post-
installation surveys.''
\12\ Monterey Bay Aquarium Research Institute, Potential Impacts of
the Monterey Accelerated Research System (MARS) Cable on the Seabed and
Benthic Faunal Assemblages (2020) at i-ii. available at https://
sanctuarysimon.org/regional_docs/monitoring_projects/100391_MBARI_MARS
_2020_report.pdf. Summarized four ``comprehensive surveys'' performed
in 2008, 2010, 2015 and 2020 (13 years after the MARS cable's 2007
installation), on potential impacts on the Monterey Bay national Marine
Sanctuary, finding (1) that ``the MARS cable has had little detectable
impact on seabed geomorphology, sediment qualities, or biological
assemblages; (2) in terms of potential seabed effects, that with
respect to the ``cable trench'' associated with the cable's
installation on the seafloor, sediment had filled the cable trench in
deeper areas, ``which is now nearly imperceptible in most locations'';
and (3) that there was virtually no detectable effects along the cable
route with respect to benthic communities, including that (i) for the
first three comprehensive surveys, ``local-scale variation in benthic
megafaunal communities'' near the MARS cable ``was minor or
undetectable'', and (ii) the 2020 survey actually found that ``the
density of megafauna . . . was significantly greater along the cable
route than the undisturbed area just 50 m away.''
---------------------------------------------------------------------------
In addition, publicly available reports, such as the 2009 UNEP-WCMC
Report ``Submarine Cables and the Oceans: Connecting the World''
(``UNEP-WCMC milestone report'') aimed to provide objective, factual
descriptions of the subsea cable industry and the interaction of subsea
telecommunications with the marine environment.\13\ Since the UNEP-WCMC
milestone report, approximately 25 other peer reviewed university and
research institution studies have been completed on various aspects of
subsea cables in the marine environment, including leaching studies,
seabed recovery studies, marine mammal and shark studies, and EMF.\14\
The cumulative result of these studies echoes the UNEP-WCMC Report that
modern subsea fiber optic cables have short-term, minimal impacts on
the marine environment.
---------------------------------------------------------------------------
\13\ See https://resources.unep-wcmc.org/products/WCMC_RT059.
\14\ See https://www.un.org/depts/los/biodiversity/prepcom_files/
ICC_Submarine_Cables_&_BBNJ _August_2016.pdf.
Robust Permitting Regime. The installation and operation of subsea
cables in the US are subject to a robust permitting regime, requiring
permits and consultations from multiple federal, state, or local
agencies. The planning and permitting for a trans-oceanic subsea cable
can take two to three years before installation.
The resources in national marine sanctuary designations already
receive protection under existing federal and state laws governing the
installation, operation, maintenance, and ultimately, the retirement of
subsea fiber optic cables. The U.S. Army Corps of Engineers (USACE) is
typically the lead federal agency for subsea cable projects in the US.
Most cable projects qualify for authorization under Nationwide Permit
(NWP) 57 Electric Utility Line and Telecommunications Activities. NWP
57 authorizes the installation of the cable and requires, at a minimum,
federal consultations with the National Marine Fisheries Service (e.g.,
NOAA Fisheries), U.S. Fish and Wildlife Service, and Tribes.
US states and territories also have permitting authority for
installation and operation of subsea cables. States have robust and
well-developed regulatory regimes in place to protect marine
environments and cultural resources that may be affected by the
installation of subsea fiber optic cables. State authorizations include
conditions that encompass installation and/or the life of the cable.
Seabed leases in state waters generally have terms of 20 to 25 years,
with options for renewal, aligning with the investment and lifecycle of
a subsea cable.
California provides a good case study of a robust state regulatory
regime. The California agencies involved in reviewing a subsea cable
rely on a robust environmental review under the California
Environmental Quality Act (CEQA). The CEQA analysis addresses impacts
for multiple resources. It is conducted as a public process and results
in enforceable mitigations that are ultimately incorporated into permit
and lease conditions by appropriate agencies, including the California
State Lands Commission and the California Coastal Commission. The
California State Lands Commission is typically the lead agency with the
California Coastal Commission having a substantial role in the review
and authorization of subsea cables off the California coast.
The California State Lands Commission issues a submerged lands
lease authorizing the placement, occupancy, maintenance, and retirement
a subsea cable on state submerged lands incorporating mitigations
developed during the CEQA review. The California Coastal Commission, in
turn, issues a coastal development permit and certification under the
federal Coastal Zone Management Act that assure consistency between
federal actions and the California Coastal Management Program. The
submerged lands lease and the coastal development permit are two good
examples of state authorizations issued under existing state permitting
regimes that prioritize the avoidance, minimization, and mitigation of
impacts to resources, including resources of importance in national
marine sanctuaries.
California resource agencies have learned from the experience of
past projects and have amended some permitting requirements after
reviewing the body of information developed from earlier subsea cable
projects. The subsea cable industry, in turn, is able to anticipate
applicable requirements and incorporate them into project design. The
outcome is a more predictable--but still rigorous--process. Other
states have similar permitting regimes that ensure a predictable and
rigorous state-level permitting process for subsea cables.
Together, the existing federal and state subsea permitting regime
and review process address potential adverse impacts to marine
resources by requiring, at a minimum, the following:
Biological Assessments for review and concurrence by NOAA
Protected Resources Division and the US Fish and Wildlife
Service for potential effects on species listed under the
Endangered Species Act and Marine Mammal Protection Act.
Preparation of an Essential Fish Habitat Assessment for
NOAA Fisheries review and concurrence as required by the
Magnuson-Stevens Fishery Conservation and Management Act.
Environmental assessments of all elements of the project,
including a full air quality and greenhouse gas assessment.
Marine archaeological assessment required to identify and
avoid sensitive archaeological and cultural resources,
including consultations under the National Historic
Preservation Act with the state historic preservation
offices for potential impacts on historic and cultural
resources.
State water quality standard certifications.
Filing of ``as-built'' documentation with agencies for
inclusion on nautical charts, as well as providing pre-
construction and installation plans, engineering design
drawings, and emergency and contingency plans.
Provisions addressing notification and performance of
cable repairs and maintenance.
In addition to the above, many states have additional information
requirements as part of their review. For example, California requires
marine habitat assessment to identify and avoid sensitive marine
resources, such as hard bottom habitats, with required mitigation for
crossing unavoidable hard bottom habitat. Oregon and California also
impose mitigation requirements addressing cable burial, and a pre-
construction seafloor survey and post-installation survey (both which
are standard industry practice independent of regulatory requirements
in connection with construction and installation verifications). A
burial verification survey may be required at five or six years
following installation, and one year prior to the end of the lease
term, or if there is an event likely causing cable to become unburied
(such as a seismic event). Another evolving requirement we see (at a
state level and by NOAA) is the development of a marine wildlife
avoidance plan and requirement to have marine wildlife observers on
board cable installation and survey vessels.
Permitting Subsea Cables in National Marine Sanctuaries. Under
NOAA's current regulatory framework within national marine sanctuaries,
subsea cable operators are required to obtain a special use permit to
install and operate subsea cable systems. A special use permit is
limited to a five-year term, which can be renewed at NOAA's discretion.
However, 5-year permit terms are unsuitable for an infrastructure
investment that has a minimum 25-year useful life.
In addition, the special use permit application process requires an
applicant to undergo a separate federal environmental review by NOAA,
in addition to the federal and state processes described above. NOAA's
review requires a subsea operator to include an environmental
assessment and alternatives analysis that describes routes that were
considered and eliminated, the basis for elimination, and a site plan
and description of each alternative.
NOAA's current special use permit review process for subsea cables
is generally untested, does not have predictable processing timeframes,
and would result in permit terms too short to justify the enormous
investment required. Unlike USACE and state agencies, NOAA historically
has little experience permitting subsea cables and its special use
permit regulations contain no requirements specific to subsea cable
siting. Further, a special use permit for subsea cables requires a fair
market value fee using a formula that is outdated and not based on
actual, verifiable costs. It is not predictable or easy to apply.
Simply put, given the extensive review and protections guaranteed by
existing local, state and federal procedures, there seems no reasonable
need for NOAA to continue regulating subsea fiber optic cables with
special use permits and the fair market value formula, when considering
the various equities NOAA needs to balance.
It is evident that the existing NOAA regulations and permitting
regime have created a de facto ``no-go area'' for subsea cables in
national marine sanctuaries. According to NOAA's own data, only three
commercial subsea cable systems have been installed in national marine
sanctuaries, all between 1998 and 2000. Aside from these three cables,
it appears no subsea cable have been installed in an existing national
marine sanctuary since 2000. This is in comparison to, according to
industry sources, some 50 or so new subsea cable systems installed in
the United States since then (about 20 on the west coast and about 30
on the east coast).
The effect of NOAA's existing regulatory regime is clear. New
sanctuary designations effectively prohibit new cables and could add
new regulatory burden and significantly impact existing cables. This is
illustrated in the attached map of California fiber optic subsea
cables, overlaid by the boundaries of national marine sanctuaries off
the coast of California. The map shows the extent to which commercial
subsea cables landing in California and constructed since 2000, route
around and avoid the national marine sanctuaries. This is a direct
result of the special use permit process, and unrelated to market
demand. In fact, the only commercial subsea cables installed in
national marine sanctuaries in California were all installed prior to
the sanctuary designation of the areas and have all since been
retired.\15\
---------------------------------------------------------------------------
\15\ For the example, the cables, now retired, that land in Port
Arena, CA and traverse what is now the northern portion of the Greater
Farallones NMS, were installed prior to the 2016 expansion of the
Greater Farallones NMS, which expanded the sanctuary footprint to cover
the area traversed by the cables. Similarly, the cables, now retired,
that traverse what is now the western Davidson Seamount expansion of
the Monterey Bay NMS, were installed prior to the 2008 expansion of the
sanctuary to Davidson Seamount, which expanded the sanctuary footprint
to cover the area traversed by the cables.
---------------------------------------------------------------------------
The effect of these regulations is real and increases risk to the
subsea cable industry and has a direct, adverse impact on route
diversity and subsea cable resiliency. The industry avoids sanctuaries
because of the special use permit process, the special permit term, and
associated fair market value fees imposed by NOAA under its special use
permit regime. This in turn, especially on the west coast, diminishes
the number of potential cable landings and forces new cables into more
congested locations, especially when other maritime uses and physical
constraints drive routing decisions must be considered. This forced
routing could result in potential single points of failure that could
disrupt the timely exchange of data and information.\16\
---------------------------------------------------------------------------
\16\ See id.; Curtis Heinzl, Subway-Style Map Visualizes the Global
Network of Submarine Cables, BLOOMBERG (July 17, 2024), https://
www.bloomberg.com/news/newsletters/2024-07-17/subway-style-map-
visualizes-world-s-network-of-submarine-cables?srnd=homepage-uk.
Streamlined Permitting for Subsea Cables. The proposed legislation
would alleviate a significant regulatory burden on subsea cables by
eliminating NOAA's duplicative environmental permitting for subsea
cables and rely on existing, robust federal and state permitting
regime. NOAA would retain an oversight role for any commercial subsea
cable passing through a national marine sanctuary.
For subsea cables that might be installed in a national marine
sanctuary, which, as noted above, would require a permit from the
USACE, NOAA has explicit consultation authority under Section 304(d) of
the National Marine Sanctuary Act, which requires the USACE to consult
with NOAA on likely adverse impacts on a sanctuary resource. This
authority ensures NOAA's engagement in the USACE review process and
allows NOAA to recommend conditions of approval and even alternative
actions to protect sanctuary resources. The proposed legislation also
contains an agency cooperation provision that further ensures that NOAA
would have a continued consultative role on the installation of a new
cables in a sanctuary that could have adverse impacts on sanctuary
resources, similar to that of NOAA and other federal agencies, related
to essential fish habitat, marine mammal protection and endangered
species. For subsea cables that cannot rely on another federal or state
authorization, under the proposed legislation, NOAA would retain
permitting jurisdiction for subsea cables in national marine
sanctuaries.
NOAA itself is in the process of reconsidering its permitting
regime for subsea cables in national marine sanctuaries. In August
2024, NOAA issued Notice of Modification to the Special Use Permit
Category for the Continued Presence of Commercial Submarine Cables
within the National Marine Sanctuary System in Docket No. 2024-
18099.\17\ During the pause, NOAA is taking comments and considering
revisions to the 2011 Final Policy and Permit Guidance for Submarine
Cable Projects \18\ Members of the International Connectivity Coalition
provided comments to NOAA and encourage NOAA to consider eliminating
special use permit review in its entirety for subsea cables and instead
rely on its authorization and consultation authorities instead.
---------------------------------------------------------------------------
\17\ https://www.federalregister.gov/documents/2024/08/16/2024-
18099/notice-of-modification-to-the-special-use-permit-sup-category-
for-the-continued-presence-of
\18\ See https://nmssanctuaries.blob.core.windows.net/sanctuaries-
prod/media/archive/library/pdfs/subcable_final_guidance_2011.pdf
---------------------------------------------------------------------------
Under the proposed legislation, NOAA will continue to have a role
in reviewing subsea cables within national marine sanctuaries. With the
proposed legislation, however, the review process will be more
efficient, provide greater certainty to applicants, improve diversity
of routes, and focus Sanctuary staff resources on the marine sciences
and resource education at which they excel rather than diverting time
to permit processing.
In closing, I wanted to express the ICC's deep appreciation for the
Committee to the attention it is giving to this critically important
matter and for allowing me to share my testimony with you today.
*****
ATTACHMENT 1--California Coastline Map
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
------
Ms. Hageman. Thank you, Mr. Toombs. I now recognize Mr.
Witherspoon for 5 minutes.
STATEMENT OF DWIGHT WITHERSPOON, WATER RIGHTS UNIT
ATTORNEY, NAVAJO NATION DEPARTMENT OF JUSTICE,
WINDOW ROCK, ARIZONA
Mr. Witherspoon. [Speaking Native language] Chairman
Hageman, Ranking Member, members of the Subcommittee. Thank you
for this opportunity to testify on the WaterSMART Access for
Tribes Act. My name is Dwight Witherspoon, and I serve as an
attorney for the Navajo Department of Justice. Today, I am here
on behalf of Navajo Nation President, Dr. Buu Nygren, to
express our strong support for this legislation which will make
the WaterSMART grant program more accessible to Tribes by
allowing the flexibility with the non-Federal cost share
requirements.
While this bill does not address the full scope of the
Navajo Nation's water needs, it provides a useful tool to help
the nation and other Tribes address water infrastructure
challenges and move towards a more sustainable future.
The Navajo Nation water needs are immense and urgent. Our
nation spans over 27,000 square miles across Arizona, New
Mexico, and Utah, and many of our citizens live in remote areas
without access to clean drinking water. At a rate that is more
than 60, roughly 30 percent of our Navajo households lack
clean, reliable drinking water, a rate that is 67 times more
than the national average. This stark statistic is not just a
number. It represents thousands of families who are forced to
haul water for drinking, cooking, and bathing.
The lack of access to clean water has led to a cascade of
public health challenges, including higher rates of waterborne
illnesses and other preventable diseases. It also places an
undue burden on women, children, and elders, who are often
asked to be able to haul the water for long distances.
Unlike States and municipalities, the Navajo Nation does
not have a traditional tax base. Since tribal lands are held in
trust, it restricts our ability to generate revenue through
property taxes, and our community's remoteness limits other
economic development opportunities. As a result, we must rely
on Federal funding to build and maintain critical
infrastructure. Programs like the WaterSMART are helpful, but
the current and cost share requirements often put these funds
out of reach for tribal nations who need them the most.
The WaterSMART program has an opportunity to fund impactful
projects for the Navajo Nation. For example, the nation could
apply for drinking funding, water system efficiency upgrades at
the Alamo Chapter, a satellite reservation in central New
Mexico. The nation in the past has struggled to successfully
apply for these funds simply because they cannot meet the non-
Federal matching requirements. The WaterSMART access for Tribes
would address this hardship by allowing the Secretary of the
Interior to waive the non-Federal cost share requirements,
increasing the likelihood that Tribes like the Navajo Nation
will be able to access the critical funding.
It is crucial to understand that, while this water
WaterSMART Access for Tribes Act is a step forward, other
larger investments in drinking water infrastructure are needed
in Indian Country. For instance, the nation continues to
advance several water rights settlements before Congress. This
would resolve the nation's outstanding water claims in Arizona
and a majority of the claims in New Mexico, as well as address
the massive infrastructure needs on the Navajo reservation.
Access to water is not just a matter of infrastructure, it
is a matter of health and economic opportunity. It impacts our
children. Our schools struggle with inadequate water supplies.
It affects our ability to attract business, create jobs. It
perpetuate cycles of poverty. And it undermines our efforts to
build a sustainable future for the Navajo people.
We urge this WaterSMART Access for Tribes Act recognizes
these realities and offers a practical and immediate solution
to help address the barriers Tribes face in accessing Federal
resources. By waiving and reducing the cost share requirements,
this legislation would empower tribal nations to undertake
projects to conserve water, improve efficiency, and enhance
water delivery systems.
We urge the Subcommittee and Congress to support the
WaterSMART Access for Tribes Act, who will--while continuing to
prioritize tribal water rights settlements. Together with these
efforts, we can help turn the tide of water insecurity in
Indian Country while honoring the Federal Government's trust
responsibility for tribal nations.
In closing, we want to thank the Subcommittee for its
attention to our tribal needs. We look forward to you advancing
this legislation. We thank you for the opportunity to testify,
and happy to answer questions.
[The prepared statement of Mr. Witherspoon follows:]
Prepared Statement of Mr. Dwight Witherspoon, Water Rights Unit
Attorney, Navajo Nation Department of Justice
on H.R. ____, the WaterSMART Access for Tribes Act
Ya'at'eeh Chairman Hageman, Ranking Member, and Members of the
Subcommittee:
Thank you for the opportunity to testify on the WaterSMART Access
for Tribes Act. My name is Dwight Witherspoon, and I serve as an
attorney for the Navajo Nation Department of Justice in the Water
Rights Unit. Today, I am here on behalf of Navajo Nation President Dr.
Buu Nygren to express our strong support for this legislation, which
will make the WaterSMART grant program more accessible to Tribes by
allowing flexibility with the non-federal cost-share requirements.
While this bill does not address the full scope of the Navajo Nation's
water needs, it provides a useful tool to help the Nation and other
tribes address water infrastructure challenges and move toward a more
sustainable future.
The Navajo Nation's water needs are immense and urgent. Our Nation
spans over 27,000 square miles across Arizona, New Mexico, and Utah,
and many of our citizens live in remote areas without access to running
water or reliable infrastructure. Roughly 30% of Navajo households lack
access to clean drinking water--a rate that is more than 67 times the
national average. This stark statistic is not just a number; it
represents thousands of families who are forced to haul water for
drinking, cooking, and bathing. The lack of access to clean water has
led to a cascade of public health challenges, including higher rates of
waterborne illnesses and other preventable diseases. It also places an
undue burden on women, children, and elders, who are often the ones
tasked with hauling water over long distances.
These challenges are compounded by the unique legal and economic
realities faced by Tribal Nations. Unlike states and municipalities,
the Navajo Nation does not have a traditional tax base. Federal law
restricts our ability to generate revenue through property taxes, and
the remoteness of our communities limits other opportunities for
economic development. As a result, we must rely heavily on federal
funding to build and maintain critical infrastructure. Programs like
WaterSMART are helpful, but the current cost-share requirements often
put these funds out of reach for Tribal Nations that need them most.
The WaterSMART program has the opportunity to fund impactful
projects for the Navajo Nation. For example, the Nation could apply to
fund drinking water system efficiency upgrades at the Alamo Chapter, a
satellite reservation in rural central New Mexico, through the
WaterSMART program if funding is available. The Nation in the past has
struggled to successfully apply for these funds simply because we
cannot meet the non-federal matching requirements. The WaterSMART
Access for Tribes Act would address this hardship by allowing the
Secretary of the Interior to reduce or waive the non-federal cost-share
requirement, increasing the likelihood that Tribes like the Navajo
Nation will be able to access this critical funding.
It is crucial to understand that while the WaterSMART Access for
Tribes Act is a step forward, other larger investments in drinking
water infrastructure in Indian Country are needed. For instance, the
Nation continues to advance several water rights settlements before
Congress, which would resolve the Nation's outstanding water claims in
Arizona and the majority of its claims in New Mexico as well as address
the massive water infrastructure needs on the Navajo Reservation.
Access to water is not just a matter of infrastructure; it is a
matter of health, and economic opportunity. The inability to provide
clean, reliable water to all of our citizens limits our ability to
thrive as a Nation. It impacts our children's education, as schools
struggle with inadequate water supplies. It affects our ability to
attract businesses and create jobs, perpetuating cycles of poverty. And
it undermines our efforts to build a sustainable future for the Navajo
people.
The WaterSMART Access for Tribes Act recognizes these realities and
offers a practical, immediate solution to help address the barriers
that Tribes face in accessing federal resources. By waiving or reducing
the cost-share requirements, this legislation would empower Tribal
Nations to undertake projects that conserve water, improve efficiency,
and enhance water delivery systems.
We urge this Subcommittee and Congress to support the WaterSMART
Access for Tribes Act while continuing to prioritize the resolution of
Tribal water rights settlements. Together, these efforts can help us
turn the tide on water insecurity in Indian Country and honor the
federal government's trust responsibility to Tribal Nations.
In closing, I want to thank this Subcommittee for its attention to
the water needs of Tribal Nations. The Navajo Nation looks forward to
working with you to advance this legislation, the Nation's water rights
settlements, and other measures that support sustainable water access
for Native communities. Your leadership and commitment to addressing
these challenges will make a tangible difference in the lives of the
Navajo people and all Native Americans.
Thank you for the opportunity to testify. I am happy to answer any
questions you may have.
______
Ms. Hageman. Thank you, Mr. Witherspoon. The Chair now
recognizes Mr. Hipke for 5 minutes.
STATEMENT OF WESLEY HIPKE, WATER PROJECTS SECTION
MANAGER, IDAHO DEPARTMENT OF WATER RESOURCES,
BOISE, IDAHO
Mr. Hipke. My name is Wesley Hipke, and I am the Water
Projects Section Manager for the Idaho Department of Water
Resources. I am here today testifying on behalf of the Idaho
Water Resource Board.
The board is charged with formulating a comprehensive State
water plan for conservation, development, management, and
optimum use of Idaho's water resources, along with undertaking
and financing projects and programs to help meet those needs.
Idaho is a headwater State with significant water
resources, but also includes vast, semi-arid and arid regions
where water supplies vary significantly from year to year. As
with other Western States, water supply shortages and water use
conflicts occur across the State. Most notably is the eastern
Snake River plain in the southern portion of the State, home of
one-third of Idaho's population.
This plain is underlain by the Eastern Snake Plain Aquifer,
or ESPA. This aquifer covers an area roughly the size of Lake
Erie, and supports about one million acres of irrigated
farmland, municipal water supplies, and thousands of domestic
wells for drinking water. The ESPA discharges spring flows into
the Snake River, supplying water to an additional 600,000 of
irrigated acres, many municipalities, hydropower generation,
and a multitude of other uses. The value of goods and services
produced by the ESPA region exceeds $10 billion annually.
With the strong support of Governor Brad Little and the
Idaho legislature, Idaho has made significant investments in
water management, drought resiliency, expanding water supplies,
and repairing and improving critical water resource
infrastructure. Since 2019, more than $500 million has been
appropriated by the legislature to the board for these water
management improvements.
The water levels in the ESPA are declining at an
unsustainable rate. The Idaho Water Resource Board was tasked
with the development of the ESPA Comprehensive Aquifer
Management Plan to stabilize and recover this crucial aquifer.
A key component of the plan is the development of a State-
sponsored aquifer recharge program. This program diverts excess
surface water, including flood flows, in wet years to stabilize
and recover this aquifer. To date, Idaho has invested
approximately $60 million on recharge infrastructure. This does
not include program operations or expenditures made by private
parties.
Development of the aquifer recharge program includes the
use of existing irrigation canals for the transportation and
percolation of the water into the aquifer. A significant number
of the irrigation canals cross lands owned by the U.S. Bureau
of Land Management. These canals have existing right-of-ways
with the BLM. Using this existing infrastructure is hugely
beneficial for Idaho to reach its goals and stabilizing the
aquifer.
To ensure flexibility in managing aquifer recharge over
Federal lands, the 116th Congress enacted section 1105 of the
Aquifer Recharge Flexibility Act. In part, the Act states the
holder of a right-of-way, easement, permit, or other
authorization to transport water across public land
administered by the Bureau of Land Management may transport
water for aquifer recharge purposes without requiring
additional authorization from the Secretary where the use does
not expand or modify the operation of the right-of-way,
easement, permit, or other authorization across public land.
The Act was intended to allow the board to move and
infiltrate water for recharge through existing irrigation
canals that crossed BLM lands without obtaining additional
right-of-ways. Despite the plain wording of the Act, the BLM
has taken the position that the Act does not apply to third
parties, only to the right-of-way owners of record. The
interpretation requires the board to obtain new right-of-ways
to conduct recharge in canals that already have existing right-
of-ways.
The BLM right-of-way process can be onerous and will add
significant time to the development of recharge projects. This
could severely delay the board's ability to reach the goals of
recovering and stabilizing the ESPA. The BLM's insistence that
the board obtain new right-of-ways to utilize existing
irrigation canals for aquifer recharge is in contravention of
the plain language of the Act, and we believe is contrary to
the intent of Congress in passing the Act.
The amendments to the Act being sought in the legislature
would address BLM's erroneous interpretation that the Act does
not apply to third parties. The amendment will enable the board
to more efficiently implement its managed aquifer recharge
activities and reach its goals for the benefit of the citizens
of the State of Idaho.
In conclusion, I want to thank this Subcommittee for
considering this amendment to the Aquifer Recharge Flexibility
Act, and for this opportunity to provide testimony. I would be
happy to answer any questions the Subcommittee may have.
[The prepared statement of Mr. Hipke follows:]
Prepared Statement of Mr. Wesley Hipke, Water Projects Section Manager,
Idaho Department of Water Resources
on H.R. 331
My name is Wesley Hipke, and I am the Water Projects Section
Manager for the Idaho Department of Water Resources. I am also here
today testifying on behalf of the Idaho Water Resources Board (Board).
The Board consists of eight governor-appointed members, knowledgeable
in the field of water resources from across the State of Idaho and is
required by law to be politically balanced. The Board was established
by Idaho Constitution Article 15, Section 7, and is charged with
formulating a comprehensive state water plan for conservation,
development, management, and optimum use of Idaho's water resources,
and undertaking and financing projects and programs to help meet those
needs.
Idaho is a headwaters state with significant water resources, but
also includes vast semi-arid and arid regions. Like all arid Western
states, Idaho depends on snowpack for its water supplies, which varies
from year to year. Water resource administration and management are
therefore of critical interest to the State of Idaho and its residents.
As with other Western states, water supply shortages and water use
conflicts occur across the various regions of the state. Idaho has an
exceptional program to adjudicate water rights within the state,
including the Snake River Basin Adjudication which was completed in
2014. The Northern Idaho Adjudications and the Bear River Basin
Adjudication are currently underway. These adjudications, when
completed, will allow the Idaho Department of Water Resources to
administer water rights on a priority basis in times of shortage.
About one-third of Idaho's population resides on the Eastern Snake
River Plain. The Eastern Snake River Plain is underlain by the Eastern
Snake Plain Aquifer (``ESPA''), which is roughly the size of Lake Erie.
The ESPA is a 10,000 square-mile aquifer that underlies much of
southern and eastern Idaho, supports about 1 million acres of irrigated
farmland, municipal water supplies for 18 cities, and thousands of
individual domestic wells for drinking water. The aquifer discharges
spring flows to the Snake River, supplying water to an additional
600,000 acres of downstream irrigated land, many municipalities, and
flows for hydropower generation. The ESPA is the sole source of
drinking water for both cities and most rural residents in eastern
Idaho. The value of goods and services produced by the ESPA region
exceeds $10 billion annually.
Idaho has been very proactive in its responses to drought and water
supply shortages for all water uses, including drinking water,
irrigation, hydropower, fish, wildlife, environmental needs, and
others. With the strong support of Governor Brad Little and the Idaho
Legislature, Idaho has made significant investments in water
management, building drought resiliency, expanding water supplies, and
repairing and improving critical water resource infrastructure to
benefit water availability into the future. Since 2019, more than $500
million has been appropriated by the legislature to the Board for these
water management improvement purposes.
The water levels in the ESPA are declining at an unsustainable
rate. Because of its importance for the citizens of Idaho, the Idaho
Legislature tasked the Idaho Water Resource Board with developing a
plan to stabilize and recover the ESPA. In response, the Board
developed the Eastern Snake Plain Comprehensive Aquifer Management Plan
(ESPA CAMP) which was adopted as part of the State Water Plan in 2009.
The ESPA CAMP sets forth a suite of measures, the most prominent of
which is the development of a state-sponsored aquifer recharge program.
The aquifer recharge program diverts excess surface water (including
flood flows) in wet years to stabilize and recover the declining
aquifer.
Development of the managed aquifer recharge program includes the
use of existing irrigation canals and ditches as the mechanism for
seeping and percolating water into the aquifer. A significant number of
the existing irrigation canals and ditches cross lands owned by the
U.S. Bureau of Land Management (BLM). The irrigation canal owners
already have existing rights of way with the BLM for their irrigation
canals. Using existing irrigation infrastructure to divert, seep, and
deliver managed aquifer recharge water is hugely beneficial in reaching
Idaho's aquifer recharge goals. The program also includes other
measures undertaken by water users, municipalities, and other partners
in the effort. To date, Idaho has invested approximately $60 million on
aquifer recharge infrastructure in addition to program operations and
maintenance costs, not including the expenditures made by private
parties.
To ensure flexibility in managing aquifer recharge over federal
lands, the 116th Congress enacted Section 1105 of P.L. 116-260, the
Aquifer Recharge Flexibility Act (introduced as S. 1570/H.R. 2871 in
the 116th Congress). Section 1105 facilitates the use of existing
irrigation canals for aquifer recharge purposes by allowing the canals
to be used for the conveyance of aquifer recharge water without the
need to seek additional authorization from the federal government. In
part, the Act states:
Conveyance for Aquifer Recharge Purposes --The holder of a
right-of-way, easement, permit, or other authorization to
transport water across public land administered by the Bureau
of Land Management may transport water for aquifer recharge
purposes without requiring additional authorization from the
Secretary where the use does not expand or modify the operation
of the right-of-way, easement, permit or other authorization
across public land.
The Act was intended to allow the Board to move and infiltrate
managed recharge water through existing irrigation canals that cross
BLM lands without having to obtain additional rights of way from the
BLM. Despite the plain wording of the Act, the BLM has taken the
position that the Act does not apply to third parties, only to the
right of way owners of record. This interpretation has led the BLM to
deny the Board's use of those existing irrigation canals without first
obtaining a new right of way. The BLM right of way process can be
onerous and will add significant time to the development of recharge
projects. Utilizing the right of way process may severely delay the
Board's ability to reach its goal of recovering and stabilizing the
ESPA.
The BLM's insistence that the Board obtains new rights of way to
run aquifer recharge water through existing irrigation canals is in
contravention of the plain language of the Act and we believe is
contrary to the intent of Congress in passing the Act. The amendments
to the Act being sought in the legislation would address BLM's
erroneous interpretation that the Act does not apply to third parties.
The amendment will enable the Board to more efficiently implement its
managed aquifer recharge activities and reach its goal of recovering
the ESPA for the benefit of the citizens of the State of Idaho.
In conclusion, I want to thank this subcommittee for considering
this amendment to the Aquifer Recharge Flexibility Act and for this
opportunity to provide testimony. I would be happy to answer any
questions the Subcommittee may have.
______
Ms. Hageman. Thank you, Mr. Hipke. I thank the witnesses
for their testimony, and I will now recognize Members for 5
minutes each for questions, and I am going to begin with
myself.
Mr. Thayn, in your testimony you talk about your own
experience with the Upper Colorado River System Conservation
Pilot Program. Given the current water challenges on that river
and in that system, if this program were not to be
reauthorized, how challenging would it be to access other
Federal opportunities?
Mr. Thayn. Well, I don't know that I can speak to exactly
what it would, it is challenging in the economic terms of being
able to conserve water. The infrastructure you have is, we
spend a lot of money to put down to utilize the water and
efficiently do it. But as far as conservation, it is difficult
to see much incentive to do so.
I don't know that I can speak to how it would affect
others. Certainly, others that are used for conservation seems
kind of counter to me to what we are trying to do to conserve
water sometimes, although using water efficiently is definitely
what we need to do. Utilizing it and want to utilize it is the
goal with the idea of they will find somebody else for it, or
the scarcity, they will give it to somebody else who they feel
is more, so I don't know that I can speak to how it would
affect others' programs, but certainly conservation won't be as
much on the table or any incentive to do it.
Ms. Hageman. Well, this is definitely a program that has
helped your operation.
Mr. Thayn. Oh, definitely. And there is a benefit to
fallowing anyway, and that was known. But just the economic
cost of following those conservation plans when there is such
scarcity and such demand for it had little interest.
Ms. Hageman. So at the end of your written testimony you
discuss the idea of Congress working on a more long-term
solution to eventually replace the pilot program. Can you
expound upon what that program would look like, and how
building more flexibility into a long-term solution would
benefit farmers like you?
Mr. Thayn. Well, I think one thing that we are tied to is
the State, each has the Colorado compact, how much they get.
And having the States be able to show conservation and allow
them to have that demand management protects their water share.
I think this program allows you to hold that in place at the
same time conserve water for downstream.
The second part of your question?
Ms. Hageman. So what I was curious about is whether you had
any other ideas of how to build flexibility into the system for
a long-term solution to benefit our farmers.
Mr. Thayn. Yes, as long as it is measurable and
accountable, and the water that we are using is efficient, I
think it is going to be important that that is recognized in
conjunction with the conservation efforts. I think everybody is
worried they are going to take their water.
Ms. Hageman. Right.
Mr. Thayn. I think there is a big concern that that is
going to happen. So as long as farmers are doing their part,
that they are offered protection and the flexibility to do it
in a rotational program where you can see the benefits of it
without the worry of the loss or the lack of access to it.
Ms. Hageman. Well, thank you for that information.
And Ms. Toombs, in your testimony you mentioned that
commercial undersea cables are important to national security.
Could you please expand on how important these technologies
are, both domestically and globally?
Ms. Toombs. Yes, certainly. As was mentioned----
Ms. Hageman. Please turn on your microphone.
Ms. Toombs. I apologize for that. Yes, certainly. As was
mentioned earlier, and I will just reiterate it, sub-marine
cables really provide the backbone of the Internet. I find that
when I talk to people they are surprised that that is actually
where the Internet comes from, if you want to call it that.
They think it is satellite communications and it really isn't.
This is a sub-marine cable, or a piece of a sub-marine cable,
and they are just hiding in plain sight. And they do provide us
with secure and fast communications domestically,
intercontinentally, and globally.
Ms. Hageman. So I am going to go on to Mr. Hipke real
quickly here.
You state in your testimony that the BLM's implementation
of the Aquifer Recharge Flexibility Act has made it harder to
implement and manage aquifer activities in your area. How would
Congressman Fulcher's legislation clarify existing law, and how
would it help the Idaho Water Resources Board more effectively
manage its resources?
Mr. Hipke. Thank you, Madam Chairman, members of the
Committee.
To give you an idea, to get an easement in the past it has
taken me approximately 2 years to do that. And for those that
don't know, if you happened to see the news last summer, the
ESPA went through a potential curtailment last spring, which
was obviously a really big deal, that would have, if we had to
move forward with that, would have curtailed a large portion of
farmland.
And the reason I bring that up is the recharge program is
working, we just need to do more. And so every year that we
don't have the capacity to do excess water, the aquifer is
losing approximately to get it in balance we need to put in
about 600,000 acre-feet. And so currently the program is only
doing about 250. On a really dry year we can only do less than
half of that. So we have to be prepared on those wet years to
be able to put that water in the ground, and we don't know when
those are going to happen. So every year we don't have that in
place presents a problem.
Ms. Hageman. OK. Thank you for your testimony. The Chair
now recognizes Mr. Huffman for his 5 minutes of questioning.
Mr. Huffman. Thank you, Madam Chair, and I would like to
start with Mr. Witherspoon.
Mr. Witherspoon, thank you for your testimony. And you
explained what I think is the heart of the question with Ms.
Stansbury's bill, how the cost share requirements that we ask
of State and local governments and other applicants may make a
lot of sense in those contexts, but they are different for
Tribes. It is a significant burden, and I appreciate you
explaining that.
If we can get those cost share requirements waived so you
can participate in the WaterSMART program, what are some of the
specific things that you would be able to do? And I am
interested in the way that it might help you enhance drought
resiliency planning and improve water management for
communities that really are struggling.
Mr. Witherspoon. Thank you for the question.
The Navajo Nation has 110 communities, and each of those
communities has water projects. And being able to approach the
Navajo Nation Council as just one chapter to try to match the
dollars needed to participate in the program is sometimes a
very challenging obstacle because you have all the other 109
chapters that also have projects. So the limited amount of
resources the nation receives each year through its generation
of revenue, its trust fund, and the interest earned is
generally directed a good portion of that every year. And so
there is a limited amount that can be directed towards roads or
water or power or sewer.
And so it is difficult to be able to do projects. The
United States has 50 States, each State has water projects and
would like to benefit from such. The Navajo Nation also has 110
chapters. And so just at $1 million, that is $110 million to
come up with for water projects. And each chapter has water
projects, so it is difficult to get funds from council to try
to make use of these programs. Thank you.
Mr. Huffman. And I know that that is going to be the same
experience for a lot of the Tribes in my district, so I
appreciate your testimony there.
I want to turn to you, Ms. Toombs, for your testimony, and
I would like to better understand the goals of your coalition,
the ICC, as you call it, with this legislation. And I certainly
don't think that there is anything incompatible, as I said,
with undersea telecommunication cables and national marine
sanctuaries, but I do want to understand the context for this
discussion.
And so do you know how many cables are present right now in
national marine sanctuaries? NOAA tells me there are about 55.
Does that sound about right to you?
Ms. Toombs. Thank you for your question, by the way.
Mr. Huffman. Is that about----
Ms. Toombs. Fifty-five cables presently in the national
marine sanctuaries?
Mr. Huffman. Fifty-five cables, including many
telecommunication fiber optic cables. But 55 total cables in
national marine sanctuaries is what NOAA says. Does that sound
about right?
Ms. Toombs. That sounds like more cables than I am aware
of.
Mr. Huffman. Well, that would probably be good for you and
me both to know, but that is what NOAA----
Ms. Toombs. Yes.
Mr. Huffman [continuing]. That is what NOAA confirms.
Ms. Toombs. Yes.
Mr. Huffman. Do you know how many Special Use Permit
applications for fiber optic cables, including renewals, NOAA
has denied in the past 25 years?
Ms. Toombs. I do not know. I don't think there would be
many, if any.
Mr. Huffman. So few that it is zero.
Ms. Toombs. Yes.
Mr. Huffman. According to NOAA.
Ms. Toombs. That sounds about right.
Mr. Huffman. So no permit application has been denied by
NOAA, and we are talking about something that is being called a
no-go zone where there are 55 existing undersea cables,
including many of these telecommunication cables.
So it seems that the act of obtaining a permit may not be
the only issue at play here. Companies are apparently OK with
going through all of the other State and Federal permit
processes. You have to get permits from the Corps of
Engineers----
Ms. Toombs. Absolutely.
Mr. Huffman [continuing]. And the State of California and
so forth, which brings me to what I think may be the underlying
issue here, or objective, and that is fees and rent.
Would you agree that this legislation blocks NOAA from
collecting a fair market return for the use of these publicly-
owned resources?
Ms. Toombs. Before I comment on that----
Mr. Huffman. Well, I would just ask you to, it is a yes-or-
no question. Do you agree that that is what the bill does?
Ms. Toombs. One result would be to remove the fair market
value requirement.
Mr. Huffman. Right. And in fact, on----
Ms. Toombs. Associated with the----
Mr. Huffman. And on page 10 of your presentation to this
Committee dated January of this month, you state that that is
one of your objectives, to avoid the imposition of annual fair
market fees for a Special Use Permit in national marine
sanctuaries, correct? That is one of your objectives.
Ms. Toombs. That would be one of the----
Mr. Huffman. And yet you pay those fees for National Park
Service rights-of-way and for BLM rights-of-way, right?
Ms. Hageman. The gentleman's time has expired.
Mr. Huffman. I yield back.
Ms. Hageman. The Chair now recognizes Mr. Walberg for 5
minutes of questioning.
Mr. Walberg. I thank Madam Chair, and thanks to the panel
for being here, and I will restrict myself from regaling you
all with fly fishing opportunities on the Snake and the Green.
When you bring that up, all of a sudden my fly fishing hand
starts to shake.
And then you mentioned Lake Erie, which is in my district.
We could talk about walleye fishing, as well, but I won't do
that. I want to focus. I want to focus my questions on the
Undersea Cable Protection Act, introduced by my good friend
from Georgia, Mr. Carter.
I think we all agree that it is important for us to balance
the environmental interests and national security and economic
equities and our leadership technology when considering the
permitting of these cables. And so, Ms. Toombs, as we have
discussed today, you have had a lot of experience working on
the permitting process. And that is the key issue, the
permitting process and siting process, lengthy siting process,
for these undersea cables.
One specific example in your home State of California is
the Grover Beach Cable Landing Station. Can you share any
background on this project and how it relates to the issues we
are discussing today related to undersea cables?
Ms. Toombs. Thank you for your question. Yes, at the Grover
Beach Landing, I have actually permitted four cables, three in
2000, this was an earlier stage, and then one last year again,
all at Grover Beach.
And I believe your question was just what is entailed in
that, or how----
Mr. Walberg. What has been your experience? Yes.
Ms. Toombs. My experience was that it is a very rigorous
process, and the first round of cables, because this was early
on, was a bit more arduous than the later one. And the reason
for that was that it was new, it was an unfamiliar type of
project to agencies. So, we did a lot of studies, resulted in a
lot of mitigations that have been carried through over the
years.
And I would say the experience more currently or more
recently has been that industry has learned a lot over that
time. The agencies have learned a lot over that time. And so
now it has become a more predictable process. And so it
actually was a process that was a little easier than it was the
first time. But now those cables are in a newly designated
sanctuary, and perhaps that is what you were getting at, so
they were permitted before the sanctuary was designated.
Mr. Walberg. Yes, I guess in these studies have you seen
any indication of sub-sea cables being harmful to the
environment the way they are established?
Ms. Toombs. No, again, I have permitted cables, many in the
United States, globally and we take a lot of care to put them
in places that will not harm the environment. And there is a
lot of monitoring and rigorous oversight. And we have not
found, despite many, many follow-up surveys, many follow-up
studies, that the sub-marine cables have caused any harm to the
environment.
Mr. Walberg. Who at NOAA or otherwise in the permitting
process is ensuring the national security and economic
interests and that technology needs are also considered when
permitting cables? Who at NOAA does this?
Ms. Toombs. Pardon me?
Mr. Walberg. Who at NOAA does this?
Ms. Toombs. In my interactions with NOAA for permitting,
that is really not part of the permitting process to consider
those factors. We really focus on environmental protection and
the environment.
Mr. Walberg. Which are important factors.
Ms. Toombs. They are.
Mr. Walberg. And I think that the sponsor of the bill
pointed that out, so it seems that there ought to be some
consideration taken for that.
I guess my final question to you, Ms. Toombs, can you talk
about the national security implications of route
diversification rather than effectively funneling the cables
through one location?
Ms. Toombs. Yes, I can. And one of the important factors
about having diverse routes is so we don't have all the cables
going into one location or congested into a location because of
damage that could be caused, that could really make our global
networks susceptible to or being vulnerable to losing our
communications with the rest of the world, with financial----
Mr. Walberg. Sabotage.
Ms. Toombs. Sabotage could be one, but there--it could be
intentional, it could be unintentional. So yes.
Mr. Walberg. Unintentional, yes.
Ms. Toombs. Either way, it is damaging to our security.
Mr. Walberg. I appreciate it. I see my time has expired,
and I thank the Chair and yield back.
Ms. Hageman. Thank you. The Chair now recognizes Ms.
Stansbury for 5 minutes of questioning.
Ms. Stansbury. Thank you, Madam Chairwoman.
Mr. Witherspoon, thank you again for being here. I think
one of the benefits of hearings like this is to help bring more
information to us in Washington, D.C. and to those that may not
be familiar with the context on the ground.
And I was born in San Juan County and grew up partly in
Farmington, New Mexico, and my mother worked for the Navajo
Nation for a while, and drove and helped. She worked for
services for the blind and helped people in very rural
communities go shopping and things like that.
And I think that one thing that is really difficult for
people who are not familiar with places like the rural areas
and communities of the Navajo Nation is to understand that in
the United States in the year 2025 there are communities across
the largest tribal nation in the United States, 27,000 square
miles, it is the size of Massachusetts, Vermont, and New
Hampshire combined, that still do not have electricity and
running water, and that there are thousands of families, as you
said, Mr. Witherspoon, that don't have piped water into their
homes and they have to haul water.
And I wonder if you could share for us here today, because
I think it would be helpful for people to understand what that
looks like. What does it look like to have to haul water?
Mr. Witherspoon. Thank you for the question.
I have been able to do a number of presentations with my
colleague and our chapters, as well as in a number of college
institutions, and one of the pictures that we display is two
elders that are using a wheelbarrow, and they have to go about
a mile and a half, and they have jugs in their wheelbarrow to
be able to haul water for themselves. And so for them to do
that and certainly, they both have white hair, and it is
certainly a challenge for them. I think it is Jean and Larry.
But there is also cost for those that use vehicles. I think
the cost for municipalities for 100 gallons of water is 20 to
$0.40, but it is about $13.30 for those that have to haul
water. And so there is certainly an economic burden on
certainly using the vehicles, and travel, and that type of
cost. Thank you.
Ms. Stansbury. And I think that it is not just the economic
cost. It is a psychological cost. It is a physical cost. When
you talk to families that have to haul water, and there are
families even, like I was mentioning To'hajiilee, the people
have to drive 20, 30, sometimes 100 miles to go fill up water
tanks just to cook food, just to take a shower, just to have
clean drinking water.
Like, this is the year 2025 and there are thousands of
families in the Navajo Nation that don't have piped water in
their homes. And to the extent that the Navajo Nation is
willing to have members of this Committee visit, I think it
would be very impactful, especially as we are working to try to
get the water settlement that you all recently approved across
the finish line.
So I want to just make sure that when Mr. Witherspoon says
that the needs of the Navajo Nation are immense and urgent,
like, these are fundamental human rights issues.
The fact that we have elderly members of these communities
living in very rural areas that don't have piped water in their
homes, it should not be a condition of modern life in the
United States at the Navajo Nation. The WaterSMART program, as
you mentioned, Mr. Witherspoon, is just one small tool, but it
is an important tool in the arsenal of addressing the immense
water infrastructure needs of our tribal communities. And I am
hopeful that not only this particular bill, which will waive
cost sharing requirements for specific projects where there are
high economic needs of communities, will pass, but that we can
also advance the Navajo Nation's water settlement through
Congress this year, as well as the other pueblo settlements
that we are trying to get across the finish line because I
think that, if the American people at large really understood
what it looks like and what the psychological, spiritual,
physical and just life stress it is to not have adequate water
infrastructure, I think that people would really be shocked.
And so I am grateful that you traveled here today to share
your testimony, and grateful that the Navajo Nation is
supporting this bill. And I want to thank you and the president
and also the staff who are behind you for being here today.
Thank you.
Ms. Hageman. Thank you. The Chair now recognizes Mr. Ezell
for his 5 minutes of questioning.
Mr. Ezell. Thank you, Madam Chairman, and I am very excited
to be here on the Committee, and working under your leadership,
and being with everybody on the 119th Congress.
H.R. 261, the Undersea Cable Protection Act, is a crucially
necessary bill. Our current undersea cable network connects
every continent except Antarctica. These cables are imperative
to maintaining our national security.
While I believe in protecting our marine environments,
finding the balance of doing so and protecting our national
interest is paramount. This is especially true since we know
these regulations already exist at our State and local levels.
Unfortunately, Special Use Permits and other burdensome
requirements that are imposed on these cables have disrupted
progress, which can ultimately lead to national security
vulnerabilities. NOAA realized this and issued a notice to
relieve some of these duplicative and costly regulations for 2
years.
H.R. 261 would make permanent NOAA's decision to no longer
require Special Use Permits for telecommunications sub-marine
cables in a marine sanctuary. It would also prohibit any other
NOAA authorization for all existing and future cables within
the boundaries of any marine sanctuary.
Ms. Toombs, in your testimony you note that the commercial
undersea cables are subject to a robust permitting process.
Could you expand on the number of agencies and permits at both
the Federal and State level that are involved in permitting
process for undersea cables?
Ms. Toombs. Thank you for your question. Yes, I can.
In terms of the types of permits we need to obtain and how
many, and again, I am speaking of the U.S. at the Federal level
there would be probably a minimum of six Federal agencies that
would need to be part of that process, whether through permits
or through consultations. At the State level, of course, that
will vary from State to State. But I would say probably, at a
minimum, four different resource agencies or land agencies
would be involved in permitting these.
And because it is not all underwater, there would be local
agencies, as well, the local communities or planning
departments would get involved, and that could be a handful of
agencies or more, depending on the complexity of the landing.
And if I may make a follow-up point to one of the earlier
questions about NOAA not denying any SUPs, the reason for that
is there probably haven't been any applications. And I can
speak from experience that during the early phases of route
development, site development for new projects, we have often
advised that that pathway is too risky from a project
standpoint or from a development standpoint. And so one of the
reasons there haven't been any permit applications denied is
that we haven't submitted any, based on the risk----
Mr. Ezell. And roughly how long does this take?
Ms. Toombs. It is unclear. We don't really know because we
haven't actually gone through the process in several years. The
point was made earlier that there haven't been any new cables
permitted in the marine sanctuary for about 20 years.
Mr. Ezell. OK. What----
Ms. Toombs. So we don't honestly know how long----
Mr. Ezell. So we really don't know.
One criticism we might hear about H.R. 261 is that it
somehow circumvents or undermines the existing permitting
process. But you and I both know that this legislation simply
removes one step, the Special Use Permit, in a process that
involves several layers of review.
Can you talk about the difficulty the industry has faced in
trying to navigate the Special Use Permit process?
And how would this legislation improve the permitting
process for these projects?
Mr. Ezell. Yes. And as I mentioned, because we haven't been
applying for Special Use Permits, it is hard to say how we
would navigate it. That has been one of the reasons that we
have avoided doing that, because it is an uncertain path. It
adds uncertainty.
And I am sorry, the second half of your question?
Mr. Ezell. No, that is all right. Let's move on just a
minute.
These projects can often be decades long and require
extensive levels of investment. Would that be correct to say
that?
Ms. Toombs. Yes, that would be correct.
Mr. Ezell. Thank you.
Madam Chairman, I yield back.
Ms. Hageman. The Chair now recognizes Ms. Hoyle for 5
minutes of questioning.
Ms. Hoyle. Thank you.
First of all, I want to thank Mr. Thayn and your father for
coming all the way out here. It really, really matters. I am
sure, as a farmer, you have a lot of things to do at home.
Coming to D.C. is quite a sacrifice, but it is important to
hear about stewardship and conservation from people that are
utilizing these practices on the ground, as opposed to people
who hear about it or read about it from somewhere else. So I
just wanted to thank you so much for being here.
Secondly, I want to thank all the witnesses.
And Mr. Witherspoon, for you, would you care to share any
about the barriers the Navajo Nation has encountered when
accessing or participating in WaterSMART programs, and how
these challenges has impacted your water management efforts?
Mr. Witherspoon. One of the challenges that the nation
faces is capacity. In the Department of Water Resources, we
have four individuals, hydrologists, and we have 110
communities that each have water projects. And so being able to
apply sometimes for the Federal water grant programs is a great
undertaking. And so a lot of times they will look at large,
regional projects to be able to address their time and
capacity.
There are chapters. And certainly chapters at a particular
level, they have difficulty getting the expertise, certainly,
to apply, and then certainly trying to get that matching fund
from the Navajo Nation Government.
So those are some of the challenges that are faced to be
able to make access to these grant programs. Thank you.
Ms. Hoyle. Thank you. I think it is important that Congress
take steps to address these challenges so that Tribes can fully
access these programs as they were intended.
With that, Ms. Toombs, I want to thank you for your
testimony, and then I would like you to address incidents where
sub-sea fiber optic cable installations went poorly and did
result in environmental harm.
Ms. Toombs. Thank you for your question.
I have been involved in many projects, as I mentioned in my
testimony, and I have not had any projects where I would say it
resulted in environmental harm.
Ms. Hoyle. OK. So clearly, you were not involved with the
Facebook undersea fiber optic cable off the coast of Oregon,
just north of my district, which----
Ms. Toombs. That is correct.
Ms. Hoyle. Yes. The Facebook subsidiary created a mess off
the Oregon coast when a drill bit broke and left 1,100 feet of
6-inch steel pipe and 11-inch diameter drill tip, and 6,500
gallons of drilling fluid in the ocean. Two sinkholes later
formed along the cables pathway, and then Facebook just left,
did not tell anyone about it. It was found and now we are
working on addressing that issue.
And so my question is, isn't it reasonable to ensure that
companies continue to purchase general liability insurance, and
if a disaster occurs, which again, did occur just a couple of
years ago off the Oregon coast, that they pay for natural
resource damages and cleanup? And this is the current policy of
the Office of National Marine Sanctuaries. What is your
position on that?
My concern is that this bill would remove that liability
protection, and that is very concerning.
Ms. Toombs. Again, thank you for this question.
Ms. Hoyle. Sure.
Ms. Toombs. And I do understand your concern. I should also
mention that the technique used is in itself considered a
mitigation. It is a requirement to use that technique in
Oregon, as well as California, because it is considered to be
more environmentally safe.
Ms. Hoyle. So, sorry, Ms. Toombs, there is such a short
time. But specifically to the----
Ms. Toombs. Oh, the liability----
Ms. Hoyle. Protection and responsibility----
Ms. Toombs. My understanding is that the National Marine
Sanctuary Act still would retain the component or the section
that has to do with liability for damages. My understanding is
that is not part of the SUP.
Ms. Hoyle. OK. Thank you so much, and we will just need to
clarify that with----
Ms. Toombs. I am happy to clarify it.
Ms. Hoyle [continuing]. And follow up.
Ms. Toombs. Yes.
Ms. Hoyle. Thank you so much.
Ms. Toombs. Of course.
Ms. Hoyle. I yield.
Ms. Hageman. The Chair now recognizes Mr. Crank for 5
minutes of questioning.
Mr. Crank. Thank you, Madam Chair.
I am very fortunate. I represent Colorado Springs, the home
of United States Space Command. I also happen to serve on the
House Armed Services Committee. And I will tell you I had a
briefing the other day from the commander of U.S. Space
Command, and pretty much all we talked about was how China is
looking at ways, particularly in space, to disrupt the U.S.
economy, that they see that as economic warfare, that they
could literally shut this country down by using their assets in
space against U.S. assets. And I think this is a similar
situation here with the cables. As the sponsor of the bill
noted, $10 trillion daily go through those cables.
I got to tell you, I think sometimes the Chinese Communist
Party laughs at the debates probably that we have here, that we
would not streamline a process here to make sure that our
assets, our military assets particularly, or our economic
assets aren't protected. This is a false choice that some
people present, that it is either to protect our marine
preserves or have national security. You don't have to choose
between those two. We do both. We do it every single day. And I
think that we will rue the day someday, looking back, if we
ever do have the Chinese or another one of our adversaries use
this against the United States. So I would suggest that.
Ms. Toombs, do you think that the current permitting
timeline for undersea cables puts the U.S. in a vulnerable
position?
Ms. Toombs. Thank you for your question. I would say it is
less the permitting timeline itself, but rather the uncertainty
of it.
Mr. Crank. Yes.
Ms. Toombs. It is not predictable. And especially, as I
mentioned and has been mentioned here, for critical
infrastructure, a 5-year term on a permission is really not
long enough for that type of investment. And so I would say
that is really one of the deal killers on it. Not just the
timeline, but not knowing whether you can proceed on that
timeline and have any assurance that you will get a permit at
the end.
Mr. Crank. Is it so difficult right now that these marine
preserves are there that if somebody is going to put cable,
they don't bother going through them so they go around them,
therefore creating this pipeline where we have a have a
vulnerability because they are all close together?
Ms. Toombs. Yes, that has been one of the consequences of
it is that, again, because of the uncertainty, it is difficult
to commit to any sort of an investment or capital project,
infrastructure project for that duration of time. So to de-risk
that you go elsewhere.
Mr. Crank. Right.
Ms. Toombs. Yes.
Mr. Crank. Thank you.
And Madam Chair, I was happy to see that Western water
remains a priority for this Subcommittee. I knew it would be
with your leadership in the authorization and oversight plan.
It is no secret that Western States have been facing a historic
drought that has affected the water availability in the
Colorado River. Programs have been introduced at the Federal,
State, and local levels to address these historic droughts and
improve water conservation. And the Colorado River System
Conservation Pilot Program, or SCPP, has funded numerous
projects in Colorado to encourage voluntary water conservation.
And I would just thank you, Madam Chair, for your continued
focus on this. Thank you. I yield back.
Ms. Hageman. Thank you. And the Chair now recognizes Ms.
Elfreth for 5 minutes of questioning.
Ms. Elfreth. Thank you very much, Madam Chair, and thank
you to our panelists for being here today.
I think we can all appreciate the importance of, certainly,
national security and our 21st century economy when it comes to
these underwater cables. At the same time, government has gone
through the trouble of designating these national marine
sanctuaries for a number of reasons, including their fragility,
their importance and impact on the broader ecosystem that
surrounds them. Certainly, that is true in my home State of
Maryland. And so I think this is a balance that we need to get
right, and that is what I would like to hone in on today.
It is also my understanding that groups such as kayak
outfitters and stand-up paddle board companies, when they are
going into a national marine sanctuary now, certainly in
Mallows Bay in my State, in Maryland, they have to apply for a
Special Use Permit, and they have to pay a fee, recognizing the
potential human impact on these sensitive and fragile areas.
And so I would like to hone in on where Ranking Member
Huffman began, which is by circumventing the Special Use Permit
this bill also circumvents the fee that goes to the direct
management of these national marine sanctuaries. So can you
tell me, Ms. Toombs, how much money the companies you represent
would be saving by circumventing that fee process?
Ms. Toombs. Thank you for your question.
Really, the FMV, or the fair market value fee, is not part
of what I do as part of this permitting process. And as I
mentioned, we really haven't undertaken that. So I am not in a
position to say how much that would be.
Ms. Elfreth. OK. It is my understanding that, given a 20-
mile route through a sanctuary, the fair market fee would be
anywhere between $2.8 million and $7 million, again, that fee
going back to the management of that marine sanctuary because
of its designated importance this government has established.
My second question is around the text of the bill as
written. I have concerns about some ambiguity here,
particularly the legislation, as written. Let's again take my
home State of Maryland. I represent the coastline of the
Chesapeake Bay. Pardon me. The bill, as written--I am concerned
where it says any State or Federal agency--say if a company in
North Carolina wanted to have an interest in--my goodness.
You are reminding me to have some water.
[Laughter.]
Ms. Elfreth. Had an interest in undersea cables that went
into Federal waters off the coast of Maryland.
Ms. Hageman. If you would like to take a few minutes, we
can go to someone else and----
Ms. Elfreth. I will get there, I promise. One more
question.
Say a North Carolina company has interest in undersea
cables in Federal waters off the coast of Maryland through a
national marine sanctuary. Could a State agency in North
Carolina circumvent the regulatory powers of a State agency in
Maryland if we had concerns under this bill in the text as
written?
Ms. Toombs. No, I don't see a way for that to affect any
State regulations.
Ms. Elfreth. OK. I would like to see if we can find some
clarity on that, Madam Chair, just the ambiguity of that
particular line is concerning to me. To make sure that we
respect States----
Ms. Toombs. And if I can--if it would be useful to have
follow-up information I can provide you, I would be happy to do
so.
Ms. Elfreth. I would greatly appreciate working with you on
that, just to make sure that the language is as tight as
possible and, again, that we are balancing here----
Ms. Toombs. Yes.
Ms. Elfreth [continuing]. National security interests,
economic interests, but the interests----
Ms. Toombs. Right.
Ms. Elfreth [continuing]. Of protecting these national
marine sanctuaries.
Ms. Toombs. Yes, and on a personal note, if I may, I
wouldn't have agreed to be here if I felt that this bill would
in any way erode the protections we have on the environment,
and particularly on the marine environment.
Ms. Elfreth. And with my remaining time, and on that note,
would you agree that there is an interest, if this bill were to
pass, the Special Use Permit would not be needed, but still
that fair market fee piece of this for the management of those
national marines. Is it still important that the companies that
you represent would still be paying their fair share towards
the management of these sensitive areas?
Ms. Toombs. Again, I really can't speak to how the funding
works at the sanctuaries, so I would prefer not to speculate on
that.
Ms. Elfreth. OK, thank you very much.
And Madam Chair, I yield my time.
Ms. Hageman. Thank you. And there will be an opportunity to
submit a written question if you have one, and then there is a
procedure to provide responses. So you will have an opportunity
to follow-up.
The Chair now recognizes Mrs. Radewagen for 5 minutes of
questioning.
Mrs. Radewagen. Thank you, Chairwoman Hageman and Ranking
Member Hoyle for holding this hearing today. I also want to
thank Representative Carter for his introduction of H.R. 261.
The territories are already very isolated, and we rely
heavily on undersea cables to remain connected to the rest of
the country and the outside world. I believe both sides of the
aisle can agree we need to protect our marine environment, and
I can proudly say that the United States has some of the
highest standards in the world when it comes to environmental
protections. Unfortunately, we sometimes prioritize preserving
the bureaucratic machine over the actual communities who are
supposed to benefit from these protections. My question is for
you, Ms. Toombs.
In your testimony you mentioned the robust planning and
permitting required to lay undersea cable in the first place,
even outside of any plans to pass through a marine sanctuary.
Can you please provide some more information on what is
required and how safe the process is regarding protecting ocean
life?
If H.R. 261 were to pass, do you believe the existing
safeguards are enough to ensure that the local ecology of the
sanctuaries won't be negatively impacted by any hypothetical
future cables?
Ms. Toombs. Thank you for your question and for mentioning
the territories, as well. I have permanent cables in Puerto
Rico and islands like Hawaii, and resource protection there is
very, very important, and the current regimes there are also
very robust, even though there aren't national marine
sanctuaries there.
I lost my train of thought. Repeat the last part of the
question, please, I apologize.
Mrs. Radewagen. If H.R. 261 would pass, do you believe the
existing safeguards are enough to assure that the local
ecologies----
Ms. Toombs. Ah, yes. OK, I understand the question. Thank
you.
Yes, I would agree that there would not be, again, an
erosion of protections or circumventing NOAA.
I would say that what this would do is help integrate NOAA,
the sanctuary component of NOAA, into the overall permitting
process because they would be essential to the consultation.
They have specialized marine science or specialized expertise
on their staff and with the sanctuary, so their input into the
permitting process and assessing impacts would be essential.
Mrs. Radewagen. Thank you, Madam Chairwoman. I yield back
the balance of my time.
Ms. Hageman. Thank you. The Chair now recognizes
Congresswoman Maloy for 5 minutes of questioning.
Ms. Maloy. Thank you, Madam Chair.
Mr. Thayn, thanks for being here and thanks for bringing
your parents. That is the most Utah thing I have seen all day.
[Laughter.]
Ms. Maloy. I have spent a little bit of time in your part
of the State doing conservation work back when I was a soil
conservationist with the NRCS, and I know how seriously the
farmers in eastern Utah take their obligation to the Colorado
River. And I know that a lot of times agriculture gets a bad
rap when we talk about conservation, and people like to point
the finger at you. But I know that agriculture has been part of
the solution for a long time. The population of Utah has grown
a lot in the last 200 years. Our water hasn't increased much,
so thank you for being part of the solution.
Thank you for traveling all the way here. I did this once.
I was in your seat once, and I was really disappointed when I
saw how few people were sitting up here listening. So just know
that we do appreciate you being here. We are usually double-
booked.
Most of the things I wanted to ask you have already been
asked, but I just want to put a fine point on it. What is the
water year looking like this year for you?
Mr. Thayn. Well, south, where we are, is awful dusty, and
around us is, I think the northern parts are doing a little
better. Certainly, central-southern Utah, Arizona, New Mexico,
obviously California. But it is not looking so good at the
moment.
Ms. Maloy. And if I asked any of your neighbors what the
water year is looking like, they would all know. And that is
because your livelihood is really tied to water. And so you
have a high incentive to try to conserve, to try to be a good
steward of the resources, and to make sure that your farm lasts
for another generation. And I just want to make sure that you
know we see that and we appreciate it, and that everybody here
recognizes that.
Mr. Witherspoon, really quickly, I just want to say
WaterSMART is a good program, and I would like to see Tribes
taking advantage of it. So I am going to have my team reach out
to you and Ms. Stansbury and see if we can find a place where
we can all get to some agreement on that. I don't have a
question. I just wanted you to know that.
Mr. Hipke, you look a little lonely and neglected over
here, so I want to ask you a question, actually, you and Ms.
Toombs the same question, because I want to use my time really
efficiently. But both of you are here talking about permitting
processes that are longer and more onerous than they need to
be, and so my question for both of you is, do you have
confidence that we can make permitting decisions that were good
for the environment, good for Idahoans, good for the ocean in
less time and less expensively than we are doing it now?
Mr. Hipke. I will go ahead and start off. Yes, I do.
Thank you for the question, and I will be brief about it.
One of the things is my understanding, I am kind of the boots-
on-the-ground type of person, but as far as with when we
crafted this legislation it was actually BLM that asked for the
NEPA waiver, which makes sense given there is already an
easement there, we are not really doing anything new.
So yes, I think there is a way. The people who have worked
in the field with these agencies have been fantastic, but they
get somewhat tied around the legislation that is in place.
Ms. Maloy. Thank you. I agree. I think sometimes our
processes become an end unto themselves and we forget the
purpose of them.
Ms. Toombs?
Ms. Toombs. Yes, I would agree. I do think there is a way
that we can balance environmental protection and resource
protection with a predictable and reliable permitting process
that could be, again, shortened, more clarified. And, yes, I
believe it is possible.
Ms. Maloy. And you were asked earlier how many applications
have been denied. But I want to know if you can tell us how
many applications have been delayed and made unnecessarily more
expensive.
Ms. Toombs. That is a good question. We are not privy to
who may have submitted applications and withdrew them.
What I can say is it is more the opportunities lost,
applications that were never submitted because the process was
really too unclear and unpredictable. And that is a hard--there
is not a number for that, but it is lost opportunity.
Ms. Maloy. Thank you. I just appreciate all of you being
here. I know it is a sacrifice to come here and testify, but it
really does help us come up with better outcomes.
Mr. Thayn, last question for you. Is it colder in
Washington, D.C. right now or in Green River, Utah?
Mr. Thayn. It is about the same. I think it is a little bit
more humid here, though. We have a drier cold.
Ms. Maloy. It is definitely more humid here, and the cold
goes through your clothes in a way it doesn't in Utah. I
apologize for that. We will get you home soon.
[Laughter.]
Ms. Maloy. Madam Chair, I yield back.
Ms. Hageman. Thank you. I think the way to put it is
oftentimes the process is the punishment. And that is what we
need to change. As Representative Maloy so accurately stated,
we sometimes lose sight of what the very purpose of these
processes and permitting requirements are for, and they are
actually to have an end. There is an end goal, and we need to
make sure that this is working correctly.
The Chair now recognizes Representative Carter for 5
minutes of questioning.
Mr. Carter. Thank you, Madam Chair, and thank you all for
being here today.
Ms. Toombs, I want to speak to you. I spoke about H.R. 261,
as you did. And it is looking to essentially omit the
additional step of acquiring a Special Use Permit in a national
marine sanctuary. But I think there are some concerns from
people that it is going to cut NOAA out of the permitting
process. Do you think that is the case, that by eliminating the
SUP process we eliminate NOAA from the permitting process
altogether?
Ms. Toombs. Thank you for your question, and also thank you
for bringing the legislation here.
No, the intent is not to cut NOAA out of the process. In
fact, the process already has two different consultations with
NOAA for any sub-marine cable project, one under the Endangered
Species Act, the Marine Mammal Protection Act, and the other
under Magnuson-Stevens for essential fish habitat.
NOAA, for sanctuaries, would be consulted. So it would
offer another opportunity for NOAA to have an input in that
process. And really, it is useful for the project to get that
expertise early on.
Mr. Carter. Good, good. I just want to make sure everybody
understands we are not trying to eliminate them. We value their
input, and we would still have their input.
We have talked about the environmental studies that are
required in the permitting of a sub-sea cable, regardless of
where they are being deployed. Can you explain very briefly the
purpose of the environmental reviews?
Ms. Toombs. Yes. The purpose of the environmental reviews
is to help inform the agencies with permitting authority to
make their decisions. So they can't make a decision until they
have undergone these processes so they understand what the
consequences of their decision might be. And so that is why we
conduct multiple studies, because they go to different agencies
for different decisions and different recommendations.
Mr. Carter. So that is the additional information that is
gained by doing the environmental reviews?
Ms. Toombs. Yes.
Mr. Carter. Yes. So what is the purpose of SUP?
Ms. Toombs. The purpose of SUP? I mean, I did not write it,
but the purpose of the SUP, I don't know.
[Laughter.]
Ms. Toombs. Well, I am----
Mr. Carter. OK, thank you. No, no----
Ms. Toombs. I didn't mean that facetiously.
Mr. Carter [continuing]. Great answer, great answer.
Ms. Toombs. OK.
Mr. Carter. Do you believe that the existing permitting
process outside of a sanctuary provides adequate protection for
marine habitats?
Ms. Toombs. Yes, I do. As I explained, we have a number of
studies, and all of them factor into decisions that the
permitting agencies make.
Mr. Carter. OK. Bear with me on this one, OK? In August
2024 NOAA issued a notice to modify the Special Use Permit, or
the SUP, for commercial undersea cables, which includes a 2-
year pause on the need for these projects to obtain a special
use permit. While some may say that this solves this challenge
in the permitting process, we have heard concerns in our office
that the process doesn't fully solve the challenge.
Do you think NOAA's announcement last August fully solves
this problem, or is additional action needed?
Ms. Toombs. Again, thank you for that.
Referring to the pause, what it does, and the ICC, I must
say, appreciates NOAA's review or consideration of the
regulations. But it also, my mantra has been uncertainty. So
during that 2-year pause there is still some uncertainty as to
what the outcome would be.
Mr. Carter. Right.
Ms. Toombs. Yes.
Mr. Carter. OK. All right. Well, thank you very much for
your input and your expertise.
And Madam Chair, again, thank you for allowing me to waive
on, and I yield back.
Ms. Hageman. Thank you, Mr. Carter. And our final
questioner today is Mr. McDowell.
I recognize you for 5 minutes.
Mr. McDowell. Thank you, Madam Chair, and thank you to the
witnesses for being here today to testify before our Committee.
Ms. Toombs, one theme that members of this Committee have
talked about a lot is the multiple use and stewardship of our
Nation's natural resources. And given your extensive
involvement in permitting and licensing of undersea cable
projects, could you talk about how these cables interact with
the marine environment?
Ms. Toombs. Thank you for your question.
The interaction with the marine environment is really
mostly during the installation phase, when the cables are being
installed. But when we have done our job right, and I think we
do it right because we have done this a lot, there really isn't
interaction with the marine environment because most of these
cables are buried for the purpose of not interacting with the
marine environment or with marine users like commercial
fishing.
Mr. McDowell. Got you. You mentioned in your testimony that
new technology has helped these cables avoid environmental
impacts. Can you expand on the technological advancements or
other best practices that have allowed for these cables to
exist in a way that respects and protects our marine resources?
Ms. Toombs. Yes. Some of the practices and technological
changes come at different points of the cable's lifetime.
Probably some of the most important parts are right in the
beginning, some of the analyses and surveys and data collection
that take place so that we can put cables in places on the
seabed that will be the least harmful and most protective to
the cables, least harmful to the environment and most
protective to the cables at the same time.
Some of this is pretty technical. It is really beyond me
how some of the route engineers analyze data and come up with
some of the routing that they do, but our input into it is the
environmental piece of it. During installation the installation
process has become better about being more precise, I guess
about how the cables are installed, and what their conditions
are as they are installed.
But then also more to the community level, we have a lot of
best management practices that are undertaken during the
installation process, especially at the shore and near shore
having to do with public safety, and making sure that we try to
disrupt beach use and beach goers and ocean recreation as
little as possible.
So there are a lot of notifications and engagement with
local communities, with commercial fishermen, of course, and
the agencies to make sure that the installation goes as quickly
as possible and as according to plan as possible.
Mr. McDowell. Sure. Well, Mr. Thayn, I do just want to say
that I think it is pretty neat that you have your dad here
today. And your two sons are not here, is that correct?
Mr. Thayn. Correct.
Mr. McDowell. Are they back home working on the farm?
Mr. Thayn. Yes. We left them home.
Mr. McDowell. Well, I don't know what camera is on, but you
all get back to work.
[Laughter.]
Mr. Thayn. Ma'am, I yield back.
Ms. Hageman. Thank you, and I thank the witnesses for your
valuable testimony and the members for all of your questions.
A very thoughtful discussion today, and I think helpful in
terms of assessing the four bills that we are considering, and
providing background, additional background information for us
that will help us be better and do better at our jobs.
The members of the Committee may have some additional
questions for the witnesses, and we will ask you to respond to
those in writing if they are, in fact, received. Under
Committee Rule 3, members of the Committee must submit
questions to the Subcommittee Clerk by 5 p.m. Eastern Time on
Tuesday, January 28, and the hearing record will be held open
for 10 business days for such responses.
Without objection, the Subcommittee stands adjourned.
[Whereupon, at 11:49 a.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Prepared Statement of the Hon. Russ Fulcher, a Representative in
Congress from the State of Idaho
Mr. Chairman, thank you for the opportunity to talk about my bill--
H.R. 331. Mr. Hipke, good to see you, thank you for coming all this way
from Idaho!
This legislation amends the Aquifer Recharge Flexibility Act, which
was enacted into law in 2020, to ensure states, local governments,
Tribes, and public entities can use existing Bureau of Land Management
rights-of-way, easements, and permits for aquifer recharge without
unnecessary federal delays.
The Eastern Snake Plain Aquifer is essential to Idaho's
agricultural economy and the communities that rely on it. From ranchers
in Owyhee County to orchardists in the Payette River Basin and dairy
operations in the Treasure Valley, countless Idahoans depend on this
resource to support their livelihoods. Towns like Emmett, Weiser, and
Caldwell are just a few examples of communities sustained by its
availability.
Unfortunately, misinterpretation of the original law by the BLM has
created confusion and stalled critical recharge projects in Idaho. H.R.
331 provides a clear, efficient path forward, ensuring these projects
can proceed without redundant bureaucracy.
This bill supports Idaho's agricultural future by ensuring
stability for the families, farms, and businesses central to the
state's economy. I urge my colleagues to support this important piece
of legislation. Thank you, Mr. Chairman. I yield back.
______
Submissions for the Record by Rep. Hoyle
How Meta, Google and Amazon are quietly damaging the Pacific sea floor
San Francisco Chronicle, June 26, 2024 by Hayley Brazier
https://www.sfchronicle.com/opinion/openforum/article/fiber-optic-
cable-ocean-19532211.php
*****
In 2020, Edge Cable Holdings, a Facebook subsidiary, was burying a
new fiber-optic cable into the seabed near Tierra Del Mar, Ore. Working
beneath a rugged mixture of basalt rock mounds, unconsolidated sands
and sandstone bedrock, the company's drilling operation went awry.
Stalled out, the company ditched its metal pipes, drilling fluids and
other construction materials in the ocean: Out of sight, out of mind.
When Oregon's Department of State Lands learned of the abandonment,
it ordered Edge Cable Holdings and Facebook (now Meta) to pay a fine.
But the damage was done. Two sinkholes formed along the installation
path and most of the materials will remain lodged in the seafloor
forever. These items, and thousands of gallons of drilling fluid, pose
a risk to the surrounding seafloor ecosystem. Despite public outrage,
the company returned to complete the cable in 2021, with debris from
the first attempt still lodged in the seabed.
The cable was not the first to slither into Oregon's stretch of the
Pacific Ocean, and it's by no means the last. Big technology
companies--including Amazon, China Mobile, and Google--are flocking to
Oregon's coastline to land transpacific fiber-optic cables. Most
recently in August 2023, the Department of State Lands approved a
9,500-mile fiber-optic cable connecting Singapore, Guam and the United
States.
What has transformed Oregon into an undersea cable hotspot, and how
is the installation process affecting a vibrant ocean ecosystem? The
explanation resides in tax breaks, swift permitting processes, cheap
energy, vast amounts of open land for data centers and a historical
carelessness for the environment shared by the state and tech
companies.
Fiber-optic cables transmit data with pulses of light through thin
glass fibers. In 2022, they provided over 98% of the world's internet
services and international phone calls. There are more than 745,000
miles of submarine fiber-optic cables in operation around the world--
that's enough cable to wrap around the Earth's equator more than 29
times. It's the work of cables, not satellites, that connect us on a
global scale.
The Pacific, a wider and deeper ocean basin and therefore more
difficult to wire, received its first transoceanic cable in 1902. By
the early 1900s, the global seafloor hosted around 200,000 miles of
telegraph cables. By the 1950s, there were nearly 500,000 miles of
telephone and telegraph cables, with fiber-optic cables joining the mix
in the 1980s.
Back then, many transpacific cables landed in California,
Washington and British Columbia, where they could link up with
transportation hubs and industrial centers on land. That began to
change in 1991 when Oregon landed its first transpacific fiber-optic
cable. Called the North Pacific Cable, the privately owned line
connected Oregon to Alaska and Japan. In the three decades since, the
state has welcomed a new fiber-optic cable every four or five years, in
tandem with new data centers--large, high-security buildings that store
rows of servers. These servers host the internet's millions of
websites.
There are significant onshore incentives for cable owners to land
their lines in Oregon. The state's enterprise zones tax-exemption
program allows individual towns to negotiate property tax breaks for
big construction projects, saving companies millions of dollars each
year. In exchange for the tax breaks, tech companies provide a small
influx of jobs and tax revenue to small communities hurting from the
decline of the timber industry. In 2015, Oregon lifted its cap on
enterprise zones to attract even more data centers, just as more cables
arrived along the shoreline.
Consider Meta, which owns a 4.6 million square foot data center
complex in rural Prineville. Although it's far from the ocean in a
former timber town, this data center connects to a network of
underground fiber-optic cables, including the controversial undersea
cable installed near Tierra del Mar. In 2015, the Oregonian newspaper
reported that the data center complex received $30 million in tax
breaks during the previous two years.
For Meta, as well as Amazon, Google and Apple, Oregon offers a win,
win, win.
So who exactly is losing?
The coastal ecosystem. During installation, it's standard practice
to bury cables multiple feet into the seabed to avoid snags by fishing
vessels. The most common burial method is plowing, during which a
remotely operated vehicle cuts a ditch into the seafloor and inserts
the cable into the trough. Another method, jetting, uses high-pressure
fluids to liquefy sediments on the seafloor, easily slicing a clean
line into the seabed in which the cable can burrow. Companies also use
directional drilling to bore diagonally into the seabed from the shore.
All of these methods squish or displace any worms, crabs, sea stars,
urchins, anemones, corals or sponges living within the trenching path.
Once installed, submarine cables settle into the seafloor
ecosystem. In search of a hard substrate to call home, marine life will
colonize the cable's exterior. After a few decades of service, cable
owners have historically abandoned their lines in the ocean, a decision
that is cheaper for companies and often results in less disturbance for
colonizing species. Inert but not biodegradable, most dead cables will
sit in the ocean indefinitely, hidden from the public who is usually
none the wiser.
The 2020 Facebook/Edge Cable Holdings abandonment prompted Oregon
to pass a law in 2021 that instituted firmer planning and
decommissioning regulations for new undersea cable projects. Still, the
increasing scrutiny doesn't appear to be slowing the big tech
companies. As Amazon builds its recently approved line to Guam and
Singapore, the tech giant is also building another data center in
Umatilla, a small town on the Columbia River.
Data centers are no better for terrestrial environments than
submarine cables are for marine. The buildings suck significant amounts
of power from the grid. Oregon's renewable energies, like hydroelectric
dams on the Columbia River, can't cover data centers' growing energy
demands, meaning utility providers must tap into fossil fuels and
increase their greenhouse gas emissions. Despite Oregon's efforts to
decrease the state's carbon footprint, some regions are moving backward
in the fight against climate change. Big tech companies, and their big
buildings, are spurring that reversal.
Across Oregon, communities and ecosystems are confronting the
physical impacts of a world that runs on the internet--impacts that our
regulatory systems have yet to reckon with.
______
U.S. Department of the Interior
BUREAU OF LAND MANAGEMENT
Right-of-Way Costs
There are three different fees associated with obtaining a ROW on
BLM-managed public land. Processing fees, Monitoring fees and Rents are
adjusted annually based on inflation.
No processing fee, monitoring fee or rent is required for:
state or local agencies or instrumentalities thereof
(except municipal utilities and cooperatives whose
principal source of revenue is customer charges) where the
land will be used for governmental proposes and the land
resources will continue to serve the public interest; or
road use agreements or reciprocal road agreements.
Other exemptions, waivers or reductions of fees and/or rent may
apply and can be explained during the pre-application meeting.
Processing Fee
Applicants are required to reimburse the United States in advance
for the cost of processing an application. The fees are based on the
amount of time the
BLM estimates it will take to process your application and issue a
decision to grant or deny the application. We will determine the
appropriate once you have submitted your complete application, and will
notify you in writing of this fee. You must submit the appropriate
payment before we can begin processing your application.
There are six Processing Fee categories. The Processing Fee
Schedule is available at BLM offices. Categories 1 through 4 are one-
time, non-refundable fees based on the number of federal work hours
involved to process an application. Category 5 is for Master
Agreements, which are negotiated with a single applicant for processing
and monitoring multiple applications covering facilities within a
specific geographic area. Any application that requires more than 50
hours to process is a Category 6, which requires the applicant to
reimburse the BLM for the full cost of processing an application.
Monitoring Fee
The Monitoring fee reimburses the BLM for monitoring the
construction, operation, maintenance and termination of the project,
including protection and rehabilitation of the public lands involved.
The fee is based on the estimated number of work hours necessary to
monitor your grant.
The BLM will determine the category for your project and notify you
in writing of the appropriate fee. You must pay the Monitoring fee
before we issue you a ROW grant.
Rent
Rents are charged on an annual basis. The Linear Rent Schedule is
adjusted annually based on changes to the Implicit Price Deflator Index
(an inflation index), The Communication Uses Rental Schedule is
adjusted annually based on changes to the Consumer Price Index, All
Urban Consumers (CPI-U). Rents for linear and communication site ROWs
on public land are established via two separate administrative
schedules, based on land values in the project area and, in some cases,
an appraisal. We will notify you of the initial rent amount due. You
must pay rent for the initial rent period before we issue you a ROW
grant.
______
NATIONAL PARK SERVICE
About Us
Right-of-Way Permit
A right of way (ROW) is a permit issued by the National Park
Service (NPS) that allows a utility to pass over, under, or through NPS
property. The permit may be issued only pursuant to specific statutory
authority and generally if there is no practicable alternative to the
use of NPS lands, regardless of whether the equipment is serving the
NPS and its visitors or crossing the park to reach other communities.
You need a ROW permit any time you want to build or install a utility
on NPS lands. Projects could include electrical transmission lines,
telephone lines, canals, and sewer lines. Broadband equipment, such as
telecommunication sites, microwave, and fiber optic, requires a ROW
permit as well.
If your request is approved, you will be issued a ROW permit. The
permit does not give you an estate in fee, limited estate, or any
property interest or ownership in the land. Your permit is not
exclusive, and the park reserves the right to allow visitor use of the
land where appropriate.
The authorities authorizing the use of NPS lands for rights of way
are found at 54 USC 100902 and 36 CFR Parts 1 and 14. Note that the NPS
does not have the general authority to issue permits for roads or oil
or gas pipelines.
Costs
Application and processing fees: These charges reimburse the NPS
for the administrative and other costs incurred in processing your
request. Your application must be accompanied by the initial
application charge. At that time you may request an estimate of further
costs and a payment schedule. The park may decide to have an
independent contractor conduct necessary environmental and historic
compliance analysis. In that case you will be required to make payments
directly to the contractor. Charges may also include the cost of
monitoring the construction or installation of your utility should your
request for a ROW permit be approved. These fees are non-refundable,
since they reimburse the NPS for work performed.
Monitoring fee: If your request for a ROW permit is granted, you
will be responsible for reimbursing the NPS for monitoring your
compliance with the terms and conditions of the ROW permit. This fee is
non-refundable and may be paid annually or as arranged with the park
staff.
Use and occupancy fee: This charge is an annual rental based on the
market value of the rights authorized and is generally established by
an appraisal. The rent may be paid annually or on a schedule as
specified in the permit.
Exemptions to the requirements to pay any of the above fees may
apply and should be discussed with the park superintendent at the pre-
application meeting.
______
OFFICE OF NATIONAL MARINE SANCTUARIES
Special Use Permits
Section 310 of the National Marine Sanctuaries Act (16 U.S.C.
Sec. 1441; NMSA) allows the Secretary of Commerce, delegated to the
Office of National Marine Sanctuaries) to issue special use permits to
authorize the conduct of specific activities in a sanctuary if such
authorization is necessary (1) to establish conditions of access to and
use of any sanctuary resource or (2) to promote public use and
understanding of a sanctuary resource. Special use permits are
generally issued for concessionaire-type activities and other
commercial activities that require access to the sanctuary to achieve a
desired goal.
Public notice
The NMSA requires, among other things, the ONMS to provide
``appropriate public notice before identifying any category of activity
subject to a special use permit'' (see section 310(b) of the NMSA). To
comply with this directive from Congress, the ONMS has issued Federal
Register notices to describe the types of activities for which it can
require the issuance of a special use permit (78 FR 25957(May 3, 2013);
82 FR 42298 (Sept.7, 2017); 89 FR 48272 (June 6, 2024)). To qualify for
a special use permit, an activity must be among those listed in these
notices. The notices list the following activities:
1. The placement and recovery of objects associated with public or
private events on non-living substrate of the submerged
lands of any national marine sanctuary.
2. The placement and recovery of objects related to commercial
filming.
3. The continued presence of commercial submarine cables on or
within the submerged lands of any national marine sanctuary
(Note, 89 FR 66689 (https://www.federalregister.gov/
documents/2024/08/16/2024-18099/notice-of-modification-to-
the-special-use-permit-sup-category-for-the-continued-
presence-of) [August 16, 2024] modified this SUP category
so that, for a two-year period, this SUP category does not
apply to commercial submarine cables in any new sanctuaries
designated after August 16, 2024).
4. The disposal of cremated human remains within or into any
national marine sanctuary.
5. Recreational diving near the USS Monitor.
6. Fireworks displays.
7. The operation of aircraft below the minimum altitude in
restricted zones of national marine sanctuaries.
8. The continued presence of a pipeline transporting seawater to or
from a desalination facility (applies only to Monterey Bay
National Marine Sanctuary).
9. The operation of tethered underwater mobile systems at shipwreck
sites within Lake Ontario National Marine Sanctuary
If a proposed activity does not fall within the description of one
of the types of activities for which ONMS has provided public notice,
ONMS would need to publish a new Federal Register notice and solicit
public comments on the use of special use permits for the type of
activity proposed prior to issuing a permit.
Terms of special use permits
The NMSA requires special use permits to contain four specific
conditions. The NMSA requires that special use permits:
Shall authorize the conduct of an activity only if that
activity is compatible with the purposes for which the
sanctuary is designated and with protection of sanctuary
resources;
Shall not authorize the conduct of any activity for a
period of more than 5 years unless renewed by the
Secretary;
Shall require that activities carried out under the permit
be conducted in a manner that does not destroy, cause the
loss of, or injure sanctuary resources; and
Shall require the permittee to purchase and maintain
comprehensive general liability insurance, or post an
equivalent bond, against claims arising out of activities
conducted under the permit and to agree to hold the United
States harmless against such claims.
As is the case with general permits, in addition to these
statutorily-mandated conditions, the ONMS can place additional
conditions on special use permits specific to the activity being
permitted.
Permit fees
The NMSA allows the ONMS to assess and collect fees for the conduct
of any activity under a special use permit. If it is assessed, the
amount of the fee is calculated by adding all of the following.
The costs incurred, or expected to be incurred, by the
Secretary in issuing the permit;
The costs incurred, or expected to be incurred, by the
Secretary as a direct result of the conduct of the activity
for which the permit is issued, including costs of
monitoring the conduct of the activity; and
An amount that represents the fair market value of the use
of the sanctuary resource.
Application requirements
Unless otherwise instructed, applicants for special use permits
should submit a regular permit application form and comply with the
``Instructions for Submitting Applications for NMS Permits and
Authorizations.'' In addition, the NMSA requires the following for
special use permits:
Comprehensive liability insurance: Applicants will be
required to purchase and maintain comprehensive general
liability insurance, or to post an equivalent bond, against
claims arising out of activities conducted under the permit
and to agree to hold the United States harmless against
such claims. Applicants should show proof of such insurance
with the rest of the application materials.
Annual financial report: Most permits require some form of
reporting. Special use permit recipients are also required
to submit financial reports on or before December 31 of
each year the permit is valid. These reports should detail
the activities conducted under the permit during the
reporting year and any revenues derived from those
activities.
______
Northern Chumash Tribal Council
Los Osos, CA
January 21, 2025
Hon. Bruce Westerman, Chairman
Hon. Jared Huffman, Ranking Member
House Natural Resources Committee
1324 Longworth House Office Building
Washington, DC 20515
Dear Chairman Westerman and Ranking Member Huffman:
We write to express our opposition to legislative efforts under
consideration by the House Natural Resources Committee, to amend the
National Marine Sanctuary Act to prohibit requiring an authorization
for the installation, operation, maintenance, repair, or recovery of
undersea fiber optic cables in a national marine sanctuary if such
activities have previously been authorized by a Federal or State
agency.
The National Marine Sanctuary Act exists to protect marine
resources and the extraordinary scenic beauty, biodiversity, cultural
and historical connections, and economic productivity of our most
precious underwater treasures. It grants authority to the NOAA's Office
of National Marine Sanctuaries to fulfill its mandate.
In waiving all NOAA requirements for undersea fiber optic cables,
this bill would weaken the authority of the agency charged with
protecting and conserving special areas of the ocean and Great Lakes
through the management of a network of National Marine Sanctuaries--
areas considered to be of irreplaceable national significance--from the
permitting process.
The passage of this legislation would not only weaken the National
Marine Sanctuary Act but also set a dangerous precedent to eliminate
NOAA's role in evaluating the impact of an industrial activity within a
National Marine Sanctuary, undermining the ability to ensure the proper
care and management of sanctuary resources.
Keeping this authority within the hands of NOAA could also help
each sanctuary continue educating the public about the marine
environment and promoting responsible stewardship of these underwater
treasures while allowing for compatible recreational and commercial
activities.
In short, we believe NOAA's Office of National Marine Sanctuaries
needs to maintain a role in authorizing industrial activities within
the boundaries of a National Marine Sanctuary to ensure alignment with
and maintenance of its conservation mission.
We appreciate your consideration.
Sincerely,
Violet Sage Walker,
Chairwoman
[all]