[Congressional Record Volume 156, Number 5 (Tuesday, January 19, 2010)]
[House]
[Pages H154-H155]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 IDAHO WILDERNESS WATER FACILITIES ACT

  Ms. BORDALLO. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 3538) to authorize the continued use of certain water 
diversions located on National Forest System land in the Frank Church-
River of No Return Wilderness and the Selway-Bitterroot Wilderness in 
the State of Idaho, and for other purposes, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 3538

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Idaho Wilderness Water 
     Facilities Act''.

     SEC. 2. TREATMENT OF EXISTING WATER DIVERSIONS IN FRANK 
                   CHURCH-RIVER OF NO RETURN WILDERNESS AND 
                   SELWAY-BITTERROOT WILDERNESS, IDAHO.

       (a) Authorization for Continued Use.--The Secretary of 
     Agriculture is authorized to issue a special use 
     authorization to each of the 20 owners of a water storage, 
     transport, or diversion facility (in this section referred to 
     as a ``facility'') located on National Forest System land in 
     the Frank Church-River of No Return Wilderness or the Selway-
     Bitterroot Wilderness (as identified on the map titled 
     ``Unauthorized Private Water Diversions located within the 
     Frank Church River of No Return Wilderness'', dated December 
     14, 2009, or the map titled ``Unauthorized Private Water 
     Diversions located within the Selway-Bitterroot Wilderness'', 
     dated December 11, 2009) for the continued operation, 
     maintenance, and reconstruction of the facility if the 
     Secretary determines that--
       (1) the facility was in existence on the date on which the 
     land upon which the facility is located was designated as 
     part of the National Wilderness Preservation System (in this 
     section referred to as ``the date of designation'');
       (2) the facility has been in substantially continuous use 
     to deliver water for the beneficial use on the owner's non-
     Federal land since the date of designation;
       (3) the owner of the facility holds a valid water right for 
     use of the water on the owner's non-Federal land under Idaho 
     State law, with a priority date that predates the date of 
     designation; and
       (4) it is not practicable or feasible to relocate the 
     facility to land outside of the wilderness and continue the 
     beneficial use of water on the non-Federal land recognized 
     under State law.
       (b) Terms and Conditions.--
       (1) Equipment, transport, and use terms and conditions.--In 
     a special use authorization issued under subsection (a), the 
     Secretary is authorized to--
       (A) allow use of motorized equipment and mechanized 
     transport for operation, maintenance, or reconstruction of a 
     facility, if the Secretary determines that--
       (i) the use is necessary to allow the facility to continue 
     delivery of water to the non-Federal land for the beneficial 
     uses recognized by the water right held under Idaho State 
     law; and
       (ii) after conducting a minimum tool analysis for the 
     facility, the use of nonmotorized equipment and nonmechanized 
     transport is impracticable or infeasible; and
       (B) preclude use of the facility for the storage, 
     diversion, or transport of water in excess of the water right 
     recognized by the State of Idaho on the date of designation.
       (2) Additional terms and conditions.--In a special use 
     authorization issued under subsection (a), the Secretary is 
     authorized to--
       (A) require or allow modification or relocation of the 
     facility in the wilderness, as the Secretary determines 
     necessary, to reduce impacts to wilderness values set forth 
     in section 2 of the Wilderness Act (16 U.S.C. 1131) if the 
     beneficial use of water on the non-Federal land is not 
     diminished; and
       (B) require that the owner provide a reciprocal right of 
     access across the non-Federal property, in which case, the 
     owner shall receive market value for any right-of-way or 
     other interest in real property conveyed to the United 
     States, and market value may be paid by the Secretary, in 
     whole or in part, by the grant of a reciprocal right-of-way, 
     or by reduction of fees or other costs that may accrue to the 
     owner to obtain the authorization for water facilities.

  The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from 
Guam (Ms. Bordallo) and the gentleman in Utah (Mr. Bishop) each will 
control 20 minutes.
  The Chair recognizes the gentlewoman from Guam.


                             General Leave

  Ms. BORDALLO. Mr. Speaker, I ask unanimous consent that all Members 
may have 5 legislative days in which to revise and extend their remarks 
and include extraneous material on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentlewoman from Guam?
  There was no objection.
  Ms. BORDALLO. Mr. Speaker, prior to the designation of the Frank 
Church-River of No Return and the Selway-Bitterroot Wilderness areas in 
Idaho, private landowners received permits to maintain and repair water 
diversions on national forest land now included in those wilderness 
areas. Many of those permits have since expired, leaving those who own 
the water diversions without options for mechanically maintaining their 
water systems.
  The bill before us, H.R. 3538, would give the Secretary of 
Agriculture the authority to issue special use authorizations to owners 
of specific water storage, transport, or diversion facilities within 
these wilderness areas. The permits would only be issued if the owner 
can prove that the water facility meets certain criteria specified in 
the legislation.
  Mr. Speaker, we support the passage of H.R. 3538, and I reserve the 
balance of my time.

                              {time}  1445

  Mr. BISHOP of Utah. Mr. Speaker, I yield myself such time as I may 
consume.
  This bill, as introduced by Mr. Simpson of Idaho, would require the 
Forest Service to issue special use permits to owners of small, 
existing water systems in two Idaho wilderness areas. And although 
these water diversions continue to operate, their owners currently lack 
the authority to maintain or repair these facilities. Failure to 
maintain or repair these facilities would harm not only the farms and 
ranches that need to be assured of having access to water that they own 
to be viable, but also will be important for the Forest Service to 
maintain the environmental needs and watersheds on these particular 
Forest Service lands.
  This bill, H.R. 3538, will allow the owners of the existing water 
systems to do this necessary maintenance.
  Let me just say this legislation has been very narrowly tailored to 
apply to

[[Page H155]]

only a small number of sites that are within the wilderness areas and 
meet a very specific criteria. So to qualify for this bill, they would 
have to be a water diversion facility that was in existence before the 
wilderness area was designated. It has to be continuously used since 
the wilderness area was designated. The owners have to have a valid 
water right under Idaho law that predated the wilderness designation, 
and the sites only can be covered in this bill if there is no other 
alternative than to continue the use of these facilities within the 
wilderness designation. And so it is beneficial not only to the Forest 
Service but to these private property owners individually for the water 
rights that they have recognized that are valid.
  Let me say that this bill illustrates one of the problems that we 
here in Congress have. Wilderness designation is the most inflexible 
and restrictive of any of the land use weapons that are at our disposal 
and in our arsenal. Too often we find after the fact of that 
designation that there are simple activities that are denied because of 
that designation that should not have been there in the first place. We 
ought to be wise enough to devise a conservation practice for our lands 
without creating unintended consequences to neighboring families that 
were poorly thought out when the designation was originally made. There 
is no reason we cannot be both good stewards and good neighbors. This 
shows one of the problems we have when we rush into designation of land 
without doing a thorough understanding of what the consequences of that 
designation of land will be.
  I understand also there was another change in this particular bill. 
And although I stand, as I did on the other, to support it, I want to 
make public that we do not approve of the change that was made in that 
bill. Just as in the DeFazio bill, the word ``shall'' would have made 
it a better bill, and it should have remained, and that was the concept 
that the committee voted, so in this bill the word ``shall'' was 
changed to more permissive language after the committee voted on the 
bill. That ``shall'' should have been in here, which would have been 
the better language for this particular piece of legislation.
  Even though I support the bill with the change, that change was done 
in a poor process. That change should have been done before the 
committee actually allowed this bill to leave their jurisdiction. And 
in all sincerity, the mandate would be the appropriate policy we as 
Congress should have insisted upon. So I am not happy with that 
particular change, but I still support the bill because overwhelmingly 
it does a great deal of good in areas where otherwise there would be a 
great deal of harm done by the unexpected consequences of some rash 
action many years before. So I support this bill as well.
  I yield back the balance of my time.
  Mr. SIMPSON. Mr. Speaker, I rise today in support of H.R. 3538, the 
Idaho Wilderness Water Resources Protection Act. This bipartisan, non-
controversial legislation is a technical fix intended to enable the 
Forest Service to authorize and permit existing historical water 
diversions within Idaho wilderness.
  Last year, one of my constituents came to me for help with a problem. 
The Middle Fork Lodge has a water diversion within the Frank Church-
River of No Return Wilderness Area that has existed since before the 
wilderness area was established and is protected under statute. The 
diversion was beginning to leak and is in desperate need of repairs to 
ensure that it does not threaten the environment and watershed, but 
when the Forest Service began the process of issuing the Lodge a permit 
to allow them to make the necessary repairs, we discovered that the 
Forest Service did not have the authority to issue the required permit.
  As we looked into this issue, we discovered that the Forest Service 
lacks this authority throughout both the Frank Church-River of No 
Return Wilderness, where there are 22 known water developments, and the 
Selway-Bitterroot Wilderness, where there are three. These diversions 
are primarily used to support irrigation and minor hydropower 
generation for use on non-Federal lands.
  The damage to the water diversion at the Middle Fork Lodge is severe 
enough that the Forest Service had to do temporary emergency repairs 
last fall, but without authority to issue them the necessary special 
use permit, they will be unable to do the work needed to permanently 
fix the problem. While the urgent situation at the Middle Fork Lodge 
brought this issue to my attention, it is obvious to me that this 
problem is larger than just one diversion. At some point in the future, 
all 20 of these existing diversions will need maintenance or repair 
work done to ensure their integrity.
  H.R. 3538 authorizes the Forest Service to issue special use permits 
for 20 qualifying historic water systems in these wilderness areas. I 
believe it is important to get ahead of this problem and ensure that 
the Forest Service has the tools necessary to manage these lands.
  For these reasons I have worked with my colleague, Walt Minnick, to 
introduce H.R. 3538. This legislation allows the Forest Service to 
issue the required special use permits to owners of these historic 
water systems and sets out specific criteria for doing so. Providing 
this authority will ensure that existing water diversions can be 
properly maintained and repaired when necessary and preserves 
beneficial use for private property owners who hold water rights under 
state law.
  I have deeply appreciated the cooperation of the Forest Service in 
addressing this problem. Not only have they communicated with me the 
need to find a system-wide solution to this issue, but at my request 
they drafted this legislation to ensure that it only impacts specific 
targeted historical diversions--those with valid water rights that 
cannot feasibly be relocated outside of the wilderness area.
  H.R. 3538 is bipartisan and non-controversial. It is intended as a 
simple, reasonable solution to a problem that I think we can all agree 
should be solved as quickly as possible. I was encouraged that the bill 
passed out of Committee without objection and am hopeful that we can 
move it through the legislative process without delay so that the 
necessary maintenance to these diversions may be completed before the 
damage is beyond repair.
  Ms. BORDALLO. Mr. Speaker, I want to thank my colleague, the 
gentleman from Utah (Mr. Bishop), for managing the bills this afternoon 
with me, and I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentlewoman from Guam (Ms. Bordallo) that the House suspend the rules 
and pass the bill, H.R. 3538, as amended.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Ms. BORDALLO. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the 
Chair's prior announcement, further proceedings on this motion will be 
postponed.

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