[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.

                          ____________________