[Congressional Record Volume 148, Number 108 (Thursday, August 1, 2002)]
[Senate]
[Pages S7938-S7939]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DOMENICI (for himself, Mr. Campbell, and Mr. Allard):
  S. 2868. A bill to direct the Secretary of the Army to carry out a 
research and demonstration program concerning control of salt cedar and 
other nonnative phreatophytes; to the Committee on Environment and 
Public Works.
  Mr. DOMENICI. Mr. President, I rise today to introduce a piece of 
legislation that is of paramount importance to the State of New Mexico. 
Specifically, this bill will address the mounting pressures brought on 
by the growing demands, on all fronts, of a diminishing water supply.
  As you may know the water situation in the west can be described at 
this time, as difficult at best. Annual snow packs were abnormally low 
this year causing many areas in the west to be plagued by severe 
drought conditions.
  The seriousness of the water situation in New Mexico becomes more 
acute every single day. The chance of this drought effecting every New 
Mexican in some way is substantial. Wells are running dry, farmers are 
being forced to sell livestock, many of our cities are in various 
stages of conservation and many, many acres have been charred by 
catastrophic wildfires.
  The drought conditions also have other consequences. For example, the 
lack of stream flow makes it very difficult for New Mexico to meet its 
compact delivery obligations to the state of Texas.
  The bill that I am introducing today deals more specifically with the 
issue of in stream water flows. To compound the drought situation, New 
Mexico is home to a vast amount of Salt Cedar. Salt Cedar is a water-
thirsty non-native tree that continually strips massive amounts of 
water out of New Mexico's two predominant water supplies--the Pecos and 
the Rio Grande rivers.
  Estimates show that one mature salt cedar tree can consume as much as 
200 gallons of water per day. In addition to the excessive water 
consumption, salt cedars increase fire and flood frequency, increase 
river channelization, decrease water flow and increase water and soil 
salinity along the river. Studies indicate that eradication of the salt 
cedars could increase river flows. Increasing river flows could help 
alleviate mounting pressure to meet compact delivery obligations--
especially on the Pecos.
  This bill that I am introducing today would authorize the Army Corps 
of Engineers to establish a research and demonstration program to help 
with the eradication of this non-native species. In addition to 
projects along the Pecos and the Rio Grande, the bill allows other 
states with similar problems, including Texas, Colorado, Utah and 
Arizona to develop and participate in similar projects as well.
  The drought and the mounting legal requirements on both the Pecos and 
Rio Grande rivers are forcing us toward a severe water crisis. Solving 
such water problems has become one of my top priorities for the state.
  I ask unanimous consent that a copy of the bill and my statement be 
printed in the record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2868

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SALT CEDAR CONTROL.

       (a) Findings.--Congress finds that--
       (1) States are having increasing difficulty meeting their 
     obligations under interstate compacts to deliver water;
       (2) it is in the best interest of States to minimize the 
     impact of and eradicate invasive species that extort water in 
     the Rio Grande watershed, the Pecos River, and other bodies 
     of water in the Southwest, such as the salt cedar, a noxious 
     and nonnative plant that can use 200 gallons of water a day; 
     and
       (3) as drought conditions and legal requirements relating 
     to water supply accelerate water shortages, innovative 
     approaches are needed to address the increasing demand for a 
     diminishing water supply.
       (b) Definitions.--In this section:
       (1) Control method.--
       (A) In general.--The term ``control method'' means a method 
     of controlling salt cedar (Tamarix) or any other nonnative 
     phreatophyte.
       (B) Inclusions.--The term ``control method'' includes the 
     use of herbicides, mechanical means, and biocontrols such as 
     goats and insects.
       (2) Demonstration project.--The term ``demonstration 
     project'' means a demonstration project carried out under 
     this section.
       (3) Secretary.--The term ``Secretary'' means the Secretary 
     of the Army, acting through the Chief of Engineers.
       (c) Program.--
       (1) In general.--Not later than 1 year after the date on 
     which funds are made available to carry out this section, the 
     Secretary shall--
       (A) complete a program of research, including a review of 
     past and ongoing research, concerning a control method for 
     use in--
       (i) the Rio Grande watershed in the State of New Mexico;
       (ii) the Pecos River in the State of New Mexico; and
       (iii) other bodies of water in the States of Arizona, 
     Colorado, New Mexico, Texas, and Utah that are affected by 
     salt cedar or other nonnative phreatophytes; and
       (B) commence a demonstration program of the most effective 
     control methods.
       (2) Available expertise.--
       (A) In general.--In carrying out the programs under 
     paragraph (1), the Secretary shall use the expertise of 
     institutions of higher education and nonprofit 
     organizations--
       (i) that are located in the States referred to in paragraph 
     (1)(A)(iii); and
       (ii) that have been actively conducting research or 
     carrying out other activities relating to the control of salt 
     cedar.
       (B) Inclusions.--Institutions of higher education and 
     nonprofit organizations under subparagraph (A) include--
       (i) Colorado State University;
       (ii) Dine College in the State of New Mexico;
       (iii) Mesa State College in the State of Colorado;
       (iv) New Mexico State University;
       (v) Northern Arizona University;
       (vi) Texas A&M University;
       (vii) University of Arizona;
       (viii) Utah State University; and
       (ix) WERC: A Consortium for Environmental Education and 
     Technology Development.
       (d) Federal Expense.--The research and demonstration 
     program under subsection (c) shall be carried out at full 
     Federal expense.
       (e) Consultation.--The activities under this section shall 
     be carried out in consultation with--
       (1) the Secretary of Agriculture;
       (2) the Secretary of the Interior;
       (3) the Governors of the States of Arizona, Colorado, New 
     Mexico, Texas, and Utah;
       (4) tribal governments; and
       (5) the heads of other Federal, State, and local agencies, 
     as appropriate.
       (f) Research.--To the maximum extent practicable, the 
     research shall focus on--
       (1) supplementing and integrating information from past and 
     ongoing research concerning control of salt cedar and other 
     nonnative phreatophytes;
       (2) gathering experience from past eradication and control 
     projects;
       (3) arranging relevant data from available sources into 
     formats so that the information is accessible and can be 
     effectively brought to bear by land managers in the 
     restoration of the Rio Grande watershed;
       (4) using control methods to produce water savings; and
       (5) identifying long-term management and funding approaches 
     for control of salt cedar and watershed restoration.
       (g) Demonstration Projects.--
       (1) In general.--The Secretary shall carry out not fewer 
     than 10 demonstration projects, of which not fewer than 2 
     shall be carried out in each of the States referred to in 
     subsection (c)(1)(A)(iii).
       (2) Cost.--Each demonstration project shall be carried out 
     at a cost of not more than $7,000,000, including costs of 
     planning, design, and implementation.
       (3) Relationship to other control projects.--Each 
     demonstration project shall be coordinated with control 
     projects being carried out as of the date of enactment of 
     this Act by other Federal, State, tribal, or local entities.
       (4) Period of project implementation.--Each demonstration 
     project shall be carried out--

[[Page S7939]]

       (A) during a period of not less than 2 but not more than 5 
     years, depending on the control method selected; and
       (B) in a manner designed to determine the time period 
     required for optimum use of the control method.
       (5) Design.--
       (A) Control methods.--Of the demonstration projects--
       (i) at least 1 demonstration project shall use primarily 1 
     or more herbicides;
       (ii) at least 1 demonstration project shall use primarily 
     mechanical means;
       (iii) at least 1 demonstration project shall use a 
     biocontrol such as goats or insects; and
       (iv) each other demonstration project may use any 1 or more 
     control methods.
       (B) Measurement of costs and benefits.--Each demonstration 
     project shall be designed to measure all costs and benefits 
     associated with each control method used by the demonstration 
     project, including measurement of water savings.
       (6) Monitoring and maintenance.--After completion, each 
     demonstration project shall be monitored and maintained for a 
     period of not more than 5 years, at a cost of not more than 
     $100,000 per demonstration project per year.
       (h) Authorization of Appropriations.--There are authorized 
     to be appropriated to carry out this section--
       (1) $10,000,000 for fiscal year 2003; and
       (2) such sums as are necessary for each of fiscal years 
     2004 through 2007.
                                  ____

      By Mr. KERRY (for himself and Mr. Brownback):
  S. 2869. A bill to facilitate the ability of certain spectrum auction 
winners to pursue alternative measures required in the public interest 
to meet the needs of wireless telecommunications consumers; to the 
Committee on Commerce, Science, and Transportation.
  Mr. KERRY. Mr. President, I am introducing legislation which I hope 
will create an equitable solution to the dilemma facing many wireless 
companies in America. Unfortunately, due to the uncertain legal status 
of licenses related to that FCC Auction No. 35, several companies have 
contingent liabilities in the millions or billions of dollars. These 
contingent liabilities are damaging the companies' ability to acquire 
additional spectrum to meet the urgent needs of wireless consumers and 
to roll out new and innovative services to consumers. The affected 
providers are the successful bidders for wireless spectrum that the 
Federal Communications Commission auctioned in Auction No. 35. Some of 
the spectrum had previously been licensed to companies, including 
NextWave Personal Communications Inc., whose bankruptcy filings and 
subsequent failure to pay amounts due to the FCC for their licenses led 
to the cancellation of those licenses.
  The status of NextWave's licenses has been the subject of extended 
litigation in the Bankruptcy Court, the United States Court of Appeals 
for the Second Circuit, the United States Court of Appeals for the 
District of Columbia Circuit and the Supreme Court of the United 
States. In June 2001, after the FCC had conducted Auction No. 35, the 
D.C. Circuit held that ``the Commission violated the provision of the 
Bankruptcy Code that prohibits governmental entities from revoking 
debtors' licenses solely for failure to pay debts dischargeable in 
bankruptcy,'' effectively nullifying the FCC ability to deliver the 
licenses to winning bidder. In August 2001, after the issuance of that 
court's mandate, the FCC restored the NextWave licenses to active 
status. More recently, the Supreme Court granted the FCC's petition for 
a writ of certiorari to review the D.C. Circuit's judgment. The Supreme 
Court will not hear arguments in the case until the fall of 2002 and is 
unlikely to announce a decision until the spring of 2003. If the Court 
reverses the D.C. Circuit's decision, there will be further litigation 
on remand in the D.C. Circuit to resolve issues that the court did not 
reach in its first decision. The result is that there is not likely to 
be a final resolution of the status of the NextWave licenses and the 
FCC therefore will not be in a position to deliver licenses to the 
winners of Auction No. 35--until three or more years from the time the 
auction was concluded. Although the FCC recently returned most of the 
down payment funds previously deposited by successful bidders, it 
continues to hold without interest substantial sums equal to three 
percent of the total amount of the winning bids. It apparently intends 
to hold those sums indefinitely. Despite the lengthy delay in 
delivering the licenses, moreover, the FCC takes the position that the 
successful bidders remain obligated, on a mere 10 days' notice, to pay 
the full amount of their successful bids if and when the FCC at some 
unknown future date establishes its right to deliver those licenses.
  The situation is grossly unfair to those who bid on these licenses in 
good faith. Companies calibrate their bids on the understanding, 
implicit in any commercial arrangement, that delivery of the licenses 
will occur in a reasonable time following the auction. That expectation 
is especially crucial in the context of spectrum licenses, given the 
recent volatility we have seen in market prices for spectrum. It is 
particularly burdensome to such companies for the FCC to hold even a 
portion of their enormous down payments without paying interest for 
such extended periods. Even more troubling, the companies' contingent 
obligation to pay on very short notice the remaining $16 billion they 
bid for the licenses at issue adversely affects their capacity to serve 
the needs of their customers. Such large contingent liabilities impede 
the companies' ability to take interim steps, such as building out its 
network further or leasing spectrum from others, that may be urgently 
needed to improve service for its customers. The FCC's failure to 
respond appropriately to alleviate these serious burdens disserves the 
public interest.
  This bill addresses these problems in two ways. It requires the FCC 
promptly to refund to the winning bidders the full remaining amount of 
their deposits and down payments. In addition, it gives each winning 
bidder an opportunity to elect, within 15 days after enactment, to 
relinquish its rights and to be relieved of all further obligations 
under Auction No. 35. Those who choose to retain their rights and 
obligations under Auction No. 35 will nonetheless be entitled to the 
return of their deposits and down payments in the interim. If and when 
the FCC is in a position to deliver the licenses at issue to those who 
remain obligated, they will be required to pay the full amount of their 
bid in accordance with the FCC's existing regulations. Those who elect 
to terminate their rights and obligations under Auction No. 35 will be 
free to pursue other opportunities to acquire spectrum and serve 
consumers.
  I want to make this next point especially clear, nothing in the 
bill's provisions would affect the FCC's legal position in the Supreme 
Court with respect to the validity of its original cancellation of the 
NextWave licenses. If the FCC prevails in the Supreme Court, it will 
reestablish its right to allocate the spectrum at issue. It may then 
grant licenses to Auction No. 35 winning bidders who have declined to 
relinquish their rights under the bill. It will also be free to conduct 
a re-auction of any spectrum won by Auction No. 35 bidders who have in 
the meantime elected to relinquish their auction rights.
                                 ______