[Congressional Record Volume 166, Number 171 (Thursday, October 1, 2020)]
[House]
[Pages H5180-H5183]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MAKING CERTAIN TECHNICAL CORRECTIONS TO KLAMATH BASIN WATER SUPPLY
ENHANCEMENT ACT OF 2000
Mrs. DINGELL. Mr. Speaker, I move to suspend the rules and pass the
bill (S. 3758) to amend the Klamath Basin Water Supply Enhancement Act
of 2000 to make certain technical corrections.
The Clerk read the title of the bill.
The text of the bill is as follows:
S. 3758
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. KLAMATH BASIN WATER SUPPLY ENHANCEMENT ACT OF 2000
TECHNICAL CORRECTIONS.
Section 4(b) of the Klamath Basin Water Supply Enhancement
Act of 2000 (114 Stat. 2222; 132 Stat. 3887) is amended--
(1) in paragraph (1)--
(A) in the matter preceding subparagraph (A)--
(i) by striking ``Pursuant to the reclamation laws and
subject'' and inserting ``Subject''; and
(ii) by striking ``may'' and inserting ``is authorized
to''; and
(B) in subparagraph (A), by inserting ``, including
conservation and efficiency measures, land idling, and use of
groundwater,'' after ``administer programs'';
(2) in paragraph (3)(A), by inserting ``and'' after the
semicolon at the end;
(3) by redesignating the second paragraph (4) (relating to
the effect of the subsection) as paragraph (5); and
(4) in paragraph (5) (as so redesignated)--
(A) by striking subparagraph (B);
(B) in subparagraph (A), by striking ``; or'' and inserting
a period; and
(C) by striking ``the Secretary--'' and all that follows
through ``to develop'' in subparagraph (A) and inserting
``the Secretary to develop''.
SEC. 2. CONTINUED USE OF PICK-SLOAN MISSOURI BASIN PROGRAM
PROJECT USE POWER BY THE KINSEY IRRIGATION
COMPANY AND THE SIDNEY WATER USERS IRRIGATION
DISTRICT.
(a) Authorization.--Notwithstanding any other provision of
law and subject to subsection (b), the Secretary of the
Interior (acting through the Commissioner of Reclamation)
shall continue to treat the irrigation pumping units known as
the ``Kinsey Irrigation Company'' in Custer County, Montana
and the ``Sidney Water Users Irrigation District'' in
Richland County, Montana, or any successor to the Kinsey
Irrigation Company or Sidney Water Users Irrigation District,
as irrigation pumping units of the Pick-Sloan Missouri Basin
Program for the purposes of wheeling, administration, and
payment of project use power, including the applicability of
provisions relating to the treatment of costs beyond the
ability to pay under section 9 of the Act of December 22,
1944 (commonly known as the ``Flood Control Act of 1944'')
(58 Stat. 891, chapter 665).
(b) Limitation.--The quantity of power to be provided to
the Kinsey Irrigation Company and the Sidney Water Users
Irrigation District (including any successor to the Kinsey
Irrigation Company or the Sidney Water Users Irrigation
District) under subsection (a) may not exceed the maximum
quantity of power provided to the Kinsey Irrigation Company
and the Sidney Water Users Irrigation District under the
applicable contract for electric service in effect on the
date of enactment of this Act.
The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from
Michigan (Mrs. Dingell) and the gentleman from Virginia (Mr. Wittman)
each will control 20 minutes.
The Chair recognizes the gentlewoman from Michigan.
General Leave
Mrs. DINGELL. 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 measure under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentlewoman from Michigan?
There was no objection.
Mrs. DINGELL. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise in support of S. 3758, which addresses two issues
regarding Bureau of Reclamation water and power management.
First, the bill amends Klamath Basin Water Supply Enhancement Act of
2000 to support water conservation and efficiency measures in the
Klamath Basin. This bill provides additional authorization for
Reclamation to work with Klamath Basin irrigators on activities that
align water supplies and demand.
Further, this legislation would extend the use of drought relief
funding to certain conservation measures, land idling, and groundwater
uses.
Second, the bill also carries provisions to make two irrigation
districts in eastern Montana eligible to continue to receive project
use power rates from the Bureau of Reclamation.
Mr. Speaker, I appreciate the efforts from Senators Merkley and Wyden
to advance this bill, and I urge my colleagues to support its adoption.
Mr. Speaker, I reserve the balance of my time.
Mr. WITTMAN. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise in reluctant support of S. 3758. While this bill
makes important technical corrections that will provide relief to the
Klamath Basin irrigators which have been hard hit by drought, it also
includes a provision that perpetuates a 75-year mistake.
In 1946, the Bureau of Reclamation entered into contracts with two
irrigation entities in Montana to provide project use power, better
known as PUP.
Normally, these subsidized power rates are reserved for Federal
projects. However, for reasons lost to history, these two entities--
which are not part of any Federal project, and in fact, one is a
private company--have been able to obtain and renew their project use
power or PUP contracts.
[[Page H5181]]
Recently, the Bureau of Reclamation realized it lacked the authority
to provide these two entities PUP rates and has decided to let these
contracts expire December 31, 2020. It is extremely concerning that it
took the Bureau of Reclamation 75 years to realize it made a mistake,
which makes this situation quite unique. This unfortunate mistake by
bureaucrats left more than 130 family farms in limbo, uncertain if they
will be able to afford to maintain their farmland after January 1,
2021.
While we are not opposing this fix today, the committee wants to be
clear that this is a one-off, unique situation. We do not see this as a
pathway or precedent for other irrigation districts to follow.
Mr. Speaker, I include in the Record two legal opinions from the
Department of the Interior, Office of the Solicitor, which indicate
that the department did not have the legal authority to enter into PUP
contracts with the two Pick-Sloan Missouri Basin Program entities
because there is no Federal nexus.
U.S. Department of the Interior,
Office of the Solicitor,
Billings, MT, March 10, 2014.
Memorandum
To: Michael J. Ryan, Regional Director, Bureau of
Reclamation, Great Plains Region, Billings, Attn: GP-4100
(Fern Thompson)
From: Karan L. Dunnigan, Field Solicitor, Office of the
Solicitor, Rocky Mountain Region (Billings)
Subject: Authority to Enter Into a Pick-Sloan Missouri Basin
Program (P-SMBP) Project Use Power (PUP) Contract with
Kinsey Irrigation Company (Company)
I. Question
In an October 31, 2013 memorandum, you asked: (1) whether
the Bureau of Reclamation (Reclamation) had or has the
authority to enter into a PUP contract with the Company; (2)
if not, whether Reclamation should continue to honor its
current contract with the Company until the contract expires;
and (3) if so, if Reclamation should approve the Company's
request for an increased contract rate of delivery.
II. Brief Answer
Reclamation does not and did not have the authority to
enter into a PUP contract with the Company, because the
United States has had no interest in the unit and there has
been no federal nexus with the unit since the title transfer
of the Kinsey facilities in the 1940's. Because Reclamation
has no authority to provide PUP to the Company, Reclamation
should seek to terminate the provision of PUP to Kinsey as
soon as is practical. And any increased deliveries to the
Company should not be at a PUP rate.
III. Background
The Farm Security Administration constructed the Kinsey
project in 1937. The project was referenced in Senate
Document 191, 78th Congress, 2nd Session, 1944, and thus
appears to have been contemplated to be (and indeed was
briefly) a P-SMBP unit. However, in 1945 the Company
purchased the federally-owned Kinsey project facilities from
the United States, rendering the Kinsey project entirely
private. The Kinsey project has no other federal nexus.
In 1946, Reclamation entered into a power contract with
the Company, providing power at the PUP rate of 2.5 mills per
kilowatt-hour. Reclamation's regional office raised concerns
about providing PUP power to a private district on several
occasions, but for reasons lost to history, the Commissioner
of Reclamation's office instructed the region to continue
providing PUP power to the district, and at the original 2.5
mill rate. The contract has been renewed and extended over
the years, and currently terminates on December 31, 2020.
The Kinsey project does appear in the 1963 ``Report on
Financial Position, Missouri River Basin Project'' (1963
Report) as a project entitled to PUP.
IV. Analysis
Pursuant to Reclamation Law and Policy, PUP is available
only where it has been specifically authorized by Congress
and, unless Congress specifically provides otherwise, only to
Reclamation projects. Here, while the Kinsey project was
initially a federal project, and briefly an authorized unit
of the P-SMBP, title transfer to the Company divested the
Kinsey project of its status as an authorized P-SMPB unit and
rendered it entirely private. Accordingly, the Company is not
entitled to PUP.
A. Project Pumping Power
Authority to produce and supply PUP is implied in the Town
Sites and Power Development Act of 1906 (Act of April 16,
1906, ch. 1631, 34 Stat. 116). PUP is further contemplated
under the Reclamation Project Act of 1939, at section 9(c),
which provides that:
Any sale of electric power . . . made by the Secretary in
connection with the operation of any project or division of a
project, shall be for such periods, not to exceed forty
years, and at such rates as in his judgment will produce
power revenues at least sufficient to cover an appropriate
share of the construction investment at not less than 3 per
center per annum . . .
Thus, under the 1939 Act, PUP must also be ``in connection
with the operation of any project or division of a project.''
And under further Reclamation law and policy, PUP is only
available to Reclamation projects for which PUP was
explicitly authorized. The Reclamation Act of 1902 provides
that ``the title to and the management and operation of the
reservoirs and the works necessary for their protection and
operation shall remain in the Government until otherwise
provided by Congress.'' Sec. 6. So, without further
authorization from Congress, Reclamation projects must be
owned by the United States.
The Reclamation Manual at FAC 04-06 provides that
``[p]roject use power is used to meet the electrical service
requirements of a Reclamation project pursuant to
congressional authorization.'' Further, the Reclamation
Manual defines Reclamation Project as ``those facilities or
features of a project constructed/developed/or transferred
to Reclamation under the authority of Federal Reclamation
law (or the Water Conservation and Utilization Act) for
which ownership is retained by the United States, unless
otherwise authorized by Congress.'' As with the 1902 and
1939 Acts, under the Reclamation Manual project use power
can only be provided to project facilities owned by the
United States unless Congress authorizes otherwise.
The Flood Control Act of 1944 authorized the P-SMBP.
Subsection (a) of Section 9 of that Act approved the general
comprehensive plans set forth in H.D. 475 and S.D. 191, 78th
Congress 2nd Session. S.D. 191, at page 22, provides:
In the plan proposed, irrigation pumping with its
incidental power requirements plays a large part. The cost of
such power will be an important element in the irrigators'
annual expenses, and must be low if success is to be
achieved. Experience and study indicate that the cost per
kilowatt-hour should not exceed 2\1/2\ mills for energy
delivered to major project pumping plants.
(The current PUP rate is of course much higher than the
rate contemplated in 1944, but still a fraction of the market
rate.)
The Kinsey project was a federal irrigation project,
transferred to Reclamation as a part of the Flood Control Act
of 1944. Therefore, the Kinsey project was briefly a P-SMPB
unit. However, the Kinsey project ceased to be a Reclamation
project when the Company bought it two years later. Without
specific Congressional authority, facilities transferred by
title transfer are no longer able to receive PUP because they
are no longer federal projects.
B. The 1963 Report
Although the 1963 Report indicates in its exhibits that the
Kinsey project receives PUP, we interpret this inclusion as
an oversight resulting from to the fact that the Kinsey
project was initially a P-SMBP unit and had continued to
receive PUP.
Congress adopted the ``1963 Report'' by passing .the 1965
Garrison Diversion Unit legislation:
In addition to reauthorizing the initial stage of the
Garrison diversion unit, the approval of this legislation
will indicate acceptance by the Congress of the Department's
recommendations with respect to the overall financial
position of the Missouri River Basin project. About 3 years
ago, the committee requested the Department of the Interior
to study ways and means of placing the Missouri River Basin
project in a sound financial position and to report its
findings and recommendations to the Congress. A ``sound
financial position'' was interpreted to mean that commercial
power and municipal and industrial water investments would be
repaid with interest in not to exceed 50 years and that
irrigation investments would be repaid within 50 years plus
any authorized development period, including that portion to
be repaid from power revenues.
H.R. Rept. No. 282, 89th Cong., 1st Sess. 8 (1965).
Identical language appeared in the 1964 report, H.R. Rept.
No. 1606, 88th Cong., 2d Sess. 8 (1964), and the Senate
committee report contained a similar acknowledgement, S.
Rept. No. 470 (on S. 34). 89th Cong, 1st Sess. 4 (1965).
Thus, as with our recent memorandum on PUP at Frenchman-
Cambridge Unit, we interpret the presence or absence of a
unit in the 1963 Report as evidence of Congress's intent for
that unit. But even where the Kinsey project's inclusion in
the report is contrary evidence, it is not sufficient to
indicate clear Congressional intent to provide PUP to a
project that is otherwise completely private and without a
federal nexus .
C. The Current Contract with the Company
The provision of power to the Company at a PUP rate has
never been authorized, so Reclamation should seek to raise
the rate or terminate the current contract as soon as it is
practical. The contract contains a ``Modification of Rates''
provision allowing for the United States to promulgate a new
rate schedule for the contract (General Power Contract
Provisions, para. F). The provision sets forth the procedure
by which the United States gives notice to the Company of a
new rate schedule, and the Company has the option to
terminate its contract instead of accepting the new rate.
V. Conclusion
Without clear Congressional intent to the contrary,
privately owned facilities are not eligible to receive PUP.
The Kinsey project was transferred to the Company in 1946,
and has been private for 68 years. The project has
[[Page H5182]]
no other federal nexus. Reclamation has no authority to
provide power to the Company at PUP rates. Reclamation should
stop doing so as soon as it is practical.
If you have any questions, please contact Bryan Wilson in
this office.
____
U.S. Department of the Interior,
Office of the Solicitor,
Billings, Montana, November 30, 2017.
Memorandum
To: Michael J. Ryan, Regional Director, Bureau of Reclamation
Great Plains Region, Billings, Attn: GP-4100 (Margaret
Ventling)
From: Karen L. Dunnigan, Field Solicitor, Office of the
Solicitor, Rocky Mountain Region (Billings)
Subject: Authority to Enter Into a Pick-Sloan Missouri Basin
Program (P-SMBP) Project Use Power (PUP) Contract with
Sidney Water Users Irrigation District (Sidney)
I. Question
In a November 9, 2017 memorandum, you asked if the Bureau
of Reclamation (Reclamation) is authorized to enter into a
PUP contract with Sidney.
II. Brief Answer
Reclamation does not have and never had the authority to
enter into a PUP contract with Sidney, because the United
States never had an interest in Sidney's project, there is no
federal nexuswith Sidney, and no other authority exists to
allow Reclamation to provide PUP to Sidney. This situation is
similar to that of Kinsey Irrigation Company, addressed in
our memorandum dated March 10, 2014, except that Kinsey was
originally a Reclamation project.
III. Background
The Sidney project was constructed by the State of Montana
in 1938. Reclamation entered into Contract No. L79R-449 with
Sidney's predecessor-in-interest, the Montana State Water
Conservation Board, on July 31, 1946, for seasonal irrigation
pumping power. Contract No. L79R-449 terminated and was
replaced by Contract 14-06-600-9164 on May 15, 1967. The
latter contract was supplemented and extended, and ultimately
was to expire on December 31, 2000. The State assigned the
contract to Sidney on June 30, 1997, and the Western Area
Power Administration extended the contract until December 31,
2020.
IV. Analysis
Pursuant to Reclamation Law and Policy, PUP is available
only where it has been specifically authorized by Congress
and, unless Congress specifically provides otherwise, only to
Reclamation projects. While the Kinsey project referenced
above was initially a federal project, the Sidney project has
never been federal or had a federal nexus. Accordingly,
Sidney is not and never was entitled to PUP.
Authority to produce and supply PUP is implied in the Town
Sites and Power Development Act of 1906 (Act of April 16,
1906, ch. 1631, 34 Stat. 116). PUP is further contemplated
under the Reclamation Project Act of 1939, at section 9(c),
which provides that:
Any sale of electric power . . . made by the Secretary in
connection with the operation of any project or division of a
project, shall be for such periods, not to exceed forty
years, and at such rates as in his judgment will produce
power revenues at least sufficient to cover an appropriate
share of the construction investment at not less than 3 per
center per annum . . .
Thus, under the 1939 Act, PUP must also be ``in connection
with the operation of any project or division of a project.''
And under further Reclamation law and policy, PUP is only
available to Reclamation projects for which PUP was
explicitly authorized. The Reclamation Act of 1902 provides
that ``the title to and the management and operation of the
reservoirs and the works necessary for their protection and
operation shall remain in the Government until otherwise
provided by Congress.'' Sec. 6. So, without further
authorization from Congress, Reclamation projects must be
owned by the United States.
The Reclamation Manual at FAC 04-06 provides that PUP ``is
used to meet the electrical service requirements of a
Reclamation project pursuant to congressional
authorization.'' Further, the Reclamation Manual defines a
Reclamation project as ``those facilities or features of a
project constructed/developed/or transferred to Reclamation
under the authority of Federal Reclamation law (or the Water
Conservation and Utilization Act) for which ownership is
retained by the United States, unless otherwise authorized by
Congress.'' As with the 1902 and 1939 Acts, under the
Reclamation Manual PUP can only be provided to project
facilities owned by the United States unless Congress
authorizes otherwise.
The Flood Control Act of 1944 authorized the P-SMBP.
Subsection (a) of Section 9 of that Act approved the general
comprehensive plans set forth in H.D. 475 and S.D. 191, 78th
Congress 2nd Session. S.D. 191, at page 22, provides:
In the plan proposed, irrigation pumping with its
incidental power requirements plays a large part. The cost of
such power will be an important element in the irrigators'
annual expenses, and must be low if success is to be
achieved. Experience and study indicate that the cost per
kilowatt-hour should not exceed 2\1/2\ mills for energy
delivered to major project pumping plants.
(The current PUP rate is of course much higher than the
rate contemplated in 1944, but still a fraction of the market
rate.)
Sidney was always a state project. and it is unclear why it
was ever provided PUP. Without specific Congressional
authority, non-federal projects are not eligible to receive
PUP.
V. Conclusion
Without clear Congressional intent to the contrary, non-
federal facilities are not eligible to receive PUP. Sidney is
not and has never been federal, and has no federal nexus.
Reclamation has no authority to provide power to Sidney at
PUP rates.
If you have any questions, please contact Bryan Wilson in
this office.
Mr. WITTMAN. Mr. Speaker, I yield 2 minutes to the gentleman from
Oregon (Mr. Walden).
Mr. WALDEN. Mr. Speaker, I thank my colleagues for bringing this
legislation forward, and especially Chairman Grijalva and Ranking
Member Bishop. I also thank Oregon senators, Merkley and Wyden, for
their efforts on this, too.
Irrigators in the Klamath Basin, which I represent, face another
drought-stricken year. There have been a lot of things we have done to
help them over time. I have been involved in these issues for more than
20 years now, and it is one of the most vexing water systems in the
country when you try and parse it all together and make it all work,
and couple that with Federal requirements and Tribal rights, and then
get a drought year, we get in really bad shape.
This year, I welcomed Secretary of Interior David Bernhardt and
Bureau of Reclamation Commissioner Brenda Burman to the Klamath Basin.
They got a firsthand look at what our farmers were facing there.
Secretary Bernhardt was the first Secretary of the Interior to visit
the Klamath Basin in about 20 years, so we are really appreciative that
he took time personally to come out there.
We are thankful to the Trump administration for listening to us. They
have committed to provide funding to ensure we have the best science
available to make better decisions by the Federal Government when it
comes to the allocation of water.
Today, in this legislation, we are providing yet another tool to help
farmers. This legislation will give the Bureau of Reclamation the
authority to spend $10 million each year over the next 4 years to
implement measures including groundwater pumping and water movement
through the Bureau of Reclamation facilities. This is simply essential
for the survival of irrigated agriculture in the Basin.
Mr. Speaker, I look forward to continuing to work with Congress, the
administration, and local officials to find durable, lasting solutions
for the farmers, ranchers, fish, and Tribes in the Klamath Basin.
Mr. Speaker, I thank my colleagues for bringing this bill forward,
and urge its passage.
Mrs. DINGELL. Mr. Speaker, I have no further requests for time, and I
reserve the balance of my time.
Mr. WITTMAN. Mr. Speaker, I am prepared to close, and I yield myself
such time as I may consume.
Mr. Speaker, I commend Congressman Greg Walden for his sponsorship
of the House companion bill, H.R. 7116, that makes the needed
noncontroversial technical corrections to the Klamath Basin Water
Supply Act so that all the benefits can be accessed.
Congressman Gianforte is also supporting his constituents as the
House sponsor of H.R. 3471, which mirrors Montana's provisions that are
contained within S. 3758.
Again, I thank all my colleagues on both sides of the aisle who
worked hard to resolve this issue so that folks in these regions can
have certainty about the water that they so desperately need.
Mr. Speaker, I yield back the balance of my time.
Mrs. DINGELL. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I, too, commend my colleague, Mr. Walden, for his
leadership and trying to bring this together with Mr. Gianforte and
finding an answer. I am going to miss my friend deeply so he better
stay engaged to make sure we do this right.
I thank Mr. Wittman for working with him this afternoon on the
passage of this and several other critical bills. And all the
leadership of the Committee on Natural Resources. And, again, what
happens when Republicans and Democrats work together, we can really get
things done.
[[Page H5183]]
Mr. Speaker, this legislation will help address water conservation
and the power challenges in the Klamath Basin.
Mr. Speaker, I urge my colleagues to support this legislation, and I
yield back the balance of my time.
{time} 1545
The SPEAKER pro tempore. The question is on the motion offered by the
gentlewoman from Michigan (Mrs. Dingell) that the House suspend the
rules and pass the bill, S. 3758.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill was passed.
A motion to reconsider was laid on the table.
____________________