[Senate Report 104-24]
[From the U.S. Government Publishing Office]



                                                        Calendar No. 46
104th Congress                                                   Report
                                 SENATE

 1st Session                                                     104-24
_______________________________________________________________________


 
              CONTROL OF SALINITY UPSTEAM OF IMPERIAL DAM

                                _______


   April 3 (legislative day, March 27), 1995.--Ordered to be printed

_______________________________________________________________________


  Mr. Murkowski, from the Committee on Energy and Natural Resourses, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 523]
    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 523) to amend the Colorado River Basin 
Salinity Control Act to authorize additional measures to carry 
out the control of salinity upstream of Imperial Dam in a cost-
effective manner, and for other purposes, having considered the 
same, reports favorably thereon with an amendment and 
recommends that the bill, as amended, do pass.
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:
SECTION 1. AMENDMENTS TO THE COLORADO RIVER BASIN SALINITY CONTROL ACT.

    The Colorado River Basin Salinity Control Act (43 U.S.C. 1571 et 
seq.) is amended--
          (1) in section 202(a)--
                (A) in the first sentence--
                          (i) by striking ``the following salinity 
                        control units'' and inserting ``the following 
                        salinity control units and salinity control 
                        program''; and
                          (ii) by striking the period and inserting a 
                        colon; and
                  (B) by adding at the end the following new paragraph:
    ``(6) A basinwide salinity control program that the Secretary, 
acting through the Bureau of Reclamation, shall implement. The 
Secretary may carry out the purposes of this paragraph directly, or may 
make grants, commitments for grants, or advances of funds to non-
Federal entities under such terms and conditions as the Secretary may 
require. Such program shall consist of cost-effective measures and 
associated works to reduce salinity from saline springs, leaking wells, 
irrigation sources, industrial sources, erosion of public and private 
land, or other sources that the Secretary considers appropriate. Such 
program shall provide for the mitigation of incidental fish and 
wildlife values that are lost as a result of the measures and 
associated works. The Secretary shall submit a planning report 
concerning the program established under this paragraph to the 
appropriate committees of Congress. The Secretary may not expend funds 
for any implementation measure under the program established under this 
paragraph before the expiration of a 30-day period beginning on the 
date on which the Secretary submits such report''; and
          (2) in section 205(a)--
                  (A) in paragraph (1) by striking ``authorized by 
                section 202(a) (4) and (5)'' and inserting ``authorized 
                by paragraphs (4) through (6) of section 202(a)''; and
                  (B) in paragraph (4)(i), by striking ``section 202(a) 
                (4) and (5)'' each place it appears and inserting 
                ``paragraphs (4) through (6) of section 202'';
          (3) in section 208, by adding at the end the following new 
        subsection:
    ``(c) In addition to the amounts authorized to be appropriated 
under subsection (b), there are authorized to be appropriated 
$75,000,000 for subsection 202(a), including constructing the works 
described in paragraph 202(a)(6) and carrying out the measures 
described in such paragraph.''; and
          (4) in subsection 202(b)(4) delete ``units authorized to be 
        constructed pursuant to paragraphs (1), (2), (3), (4), and 
        (5)'' and insert in lieu thereof ``units authorized to be 
        constructed or the program pursuant to paragraphs (1), (2), 
        (3), (4), (5), and (6).''.
                         Purpose of the Measure

    The purpose of S. 523 is to enlarge the authorized 
activities under title II of the Colorado River Basin Salinity 
Control Act to include a program of salinity control in 
addition to the presently authorized projects and to increase 
the current ceiling by $75 million.

                          Background and Need

    Background: The Colorado River is one of the most heavily 
regulated and used water resources in the world. The 
combination of Interstate Compacts, treaties, decrees, State 
and Federal statutes, administrative decisions, and regulations 
that control the allocation and use of the Colorado are 
generically referred to as the ``Law of the River.'' The 
Colorado rises in the mountains of Colorado and flows about 
1,400 miles to the Gulf of California in Mexico, dropping 
12,000 feet in that journey. Along the way, the river drains 
seven States and is fed by tributaries in all States except 
California. As late as the early 1900's there was commercial 
navigation on the river.
    The unregulated flow of the River varies widely, from a 
high of 24 million acre feet in 1924 to a low of 5.5 million 
acre feet in 1977, measured at Lee Ferry. In 1905, the Colorado 
broke through a cut below the international boundary and for 16 
months flowed through the Imperial Valley and enlarged the 
Salton Sea. The flood was a major impetus to the eventual 
construction of Hoover Dam and the All-American Canal.
    The rapid development of Colorado River water in California 
around the turn of the century generated increasing concern 
among the other Basin States, especially in the Upper Basin, 
that California would claim the entire River before the other 
States were prepared to take what they each considered their 
fair share. Under the Western appropriation theory, priority in 
time grants priority of right. That concern resulted in the 
negotiation of an Interstate Compact, and was justified when 
the Supreme Court held in 1922 that priority of appropriations 
controlled over State lines (Wyoming v. Colorado, 259 U.S. 
419). Congress consented to the negotiations in 1921 and then 
to the resulting 1922 Compact in the Boulder Canyon Project Act 
of 1928 (45 Stat. 1057). The Compact apportioned the flow of 
the Colorado and its tributaries between the Upper Basin States 
(Wyoming, Colorado, Utah, and New Mexico) and the Lower Basin 
States (California, Arizona, and Nevada) and set the boundary 
at Lee Ferry in Arizona (about one mile below the Paria River 
and 17 miles below Glen Canyon Dam). Each Basin was apportioned 
7.5 million acre feet (maf) and the Lower Basin was permitted 
an additional 1 maf.
    The Boulder Canyon Project Act, in section 19, authorized 
the seven States to enter into negotiations, consistent with 
the Compact, for the development and use of the Colorado. The 
Upper Basin States negotiated a Compact in 1948 which was 
consented to by Congress in 1949 (63 Stat. 31). The Lower Basin 
States were unable to reach an agreement, and eventually 
Arizona initiated litigation before the Supreme Court which 
resulted in a decision in 1963 (Arizona v. California, 376 U.S. 
340) holding, in part, that in the absence of a negotiated 
agreement between the three Lower Basin States, Congress had 
apportioned the waters of the mainstream of the Colorado in the 
Lower Basin among the three States under the Boulder Canyon 
Project Act.
    Among the other significant elements of the Law of the 
River are the Mexican Treaty of 1944, which guaranteed delivery 
of 1.5 maf to Mexico, and the history of salinity concerns with 
that delivery, leading to the Colorado River Basin Salinity 
Control Act in 1974 (88 Stat. 266).
    Status of the Salinity Control Program. The 1944 Mexico 
Treaty obligates the United States to provide 1.5 maf of water 
to Mexico, but does not address quality. Mexico filed a formal 
protest in the 1960's when salinity increased sharply, 
primarily as a result of drainage from Wellton-Mohawk 
Irrigation and Drainage District compounded by reductions in 
flows from the closure and filling of Glen Canyon dam. Several 
minutes to the Treaty were negotiated, the final one being 
Minute 242. The most important provision requires that the 
average annual salinity of the Colorado delivered upstream from 
Morelos Dam (Mexico's principal diversion dam) would not exceed 
the average salinity of the water arriving at Imperial Dam by 
more than 115 parts per million, plus or minus 30 ppm. To 
secure Basin States support for the Minute, the United States 
agreed that the Basin States would not bear the cost of 
fulfilling any agreement with Mexico and that the United States 
would recognize replacement of (1) the water lost to the 
desalting plant reject stream and (2) any bypassed WMIDD 
irrigation drainage as a national obligation.
    With that understanding, Congress enacted the Colorado 
River Basin Salinity Control Act in 1974. Title I addressed the 
Mexican obligation by authorizing the Yuma Desalting Plant, the 
WMIDD irrigation drainage reduction program, concrete lining of 
the Coachella Canal in California (allowing the United States 
to use the conserved water to replace drainage water bypassed 
to Mexico), and a well field in Arizona known as the Protective 
and Regulatory Pumping Unit. Title II authorized the 
investigation and construction of salinity control projects to 
protect the quality of water delivered to the Lower Basin. In 
1984 the Act was amended to provide for the Department of 
Agriculture to participate in salinity control and also to 
direct the Bureau of Land Management to take actions to reduce 
salinity from BLM lands.
    The Inspector General of the Department of the Interior 
issued an audit report in March 1993 on the Salinity control 
program and made several recommendations. Among the 
recommendations was that BLM become more aggressive in its 
actions, especially since they seemed to be the most cost 
effective. The report noted that BLM estimated that its lands 
contributed about 700,000 tons of salt annually and that 
measures to control this salt loading would be in the range of 
$35-$60 per ton, but that plans were designed only to remove 
50,000 tons annually by the year 2010. The estimate for Grand 
Valley project, by comparison, is $147-$386 per ton.
    S. 523--Salinity Program. This legislation would authorize 
$75 million for a program of salinity control by the Bureau of 
Reclamation above Imperial Dam. The legislation adds to the 
existing title II program by providing the Bureau with the 
flexibility to tailor programs in the most cost-effective 
manner rather than having to come to Congress for a new 
authorization for each project. The legislation in some 
respects mirrors the flexibility provided USDA in 1984 and 
reflects the recommendations made by the Inspector General in 
his 1993 report on the Salinity Control program. The 
Administration has requested $6 million in its fiscal year 1996 
budget request for this new program and has also stated in the 
budget justification its support for a $75 million increase in 
the present ceiling to fund activities under title II. This new 
program is in addition to other activities by the Department, 
such as long-term contracts undertaken with non-federally 
financed facilities that would normally be undertaken with 
operation and maintenance appropriations. This new program is 
directed at capital improvements not operations.

                          Legislative History

    S. 523 was introduced on March 9, 1995 by Senator Bennett 
for himself and Senators Brown, Campbell, Hatch, and Kyl. A 
virtually identical measure, S. 2319 had been introduced during 
the last Congress by Senator Bennett and others on July 20, 
1994. A hearing was held on that measure on August 4, 1994 and 
the Committee considered and favorably reported the measure, 
with technical amendments, on September 21, 1994. In this 
Congress, a companion measure, H.R. 930, has been introduced in 
the House. At the business meeting on March 29, 1995, the 
Committee on Energy and Natural Resources ordered S. 523, as 
amended, favorably reported.

           Committee Recommendations and Tabulation of Votes

    The Senate Committee on Energy and Natural Resources, in 
open business meeting on March 29, 1995, by a unanimous vote of 
a quorum present recommends that the Senate pass S. 523, if 
amended as described herein.
    The rollcall vote on reporting the measure was 20 yeas, 0 
nays as follows:
        YEAS                          NAYS
Mr. Murkowski
Mr. Hatfield \1\
Mr. Domenici
Mr. Nickles \1\
Mr. Craig
Mr. Campbell \1\
Mr. Thomas \1\
Mr. Kyl \1\
Mr. Grams
Mr. Jeffords \1\
Mr. Burns \1\
Mr. Johnston
Mr. Bumpers
Mr. Ford
Mr. Bradley
Mr. Bingaman
Mr. Akaka
Mr. Wellstone \1\
Mr. Heflin \1\
Mr. Dorgan

    \1\ Indicates vote by proxy.

                          Committee Amendments

    The Committee adopted a substitute amendment to conform the 
text of S. 523 to the text of S. 2319 as reported by the 
Committee during the last Congress. The changes are mainly 
stylistic but also includes a conforming change to the 
underlying statute that was not included in S. 523 but which 
had been included in S. 2319. No substantive changes were made.

                      Section-by-Section Analysis

    The legislation amends section 202(a) of the Colorado River 
Basin Salinity Control Act to insert a new paragraph (6) that 
authorizes a program of salinity control in addition to the 
specific projects in the existing statute. The legislation also 
authorizes an additional $75 million for section 202(a) 
activities and makes necessary conforming amendments to the 
Salinity Control Act. The text of the new paragraph (6) is 
self-explanatory.
                   Cost and Budgetary Considerations

    The Congressional Budget Office estimate of the costs of 
this measure has been requested but was not received at the 
time the report was filed. When the report is available, the 
Chairman will request it to be printed in the Congressional 
Record for the advice of the Senate. The committee notes that 
the Administration has requested $6 million in its fiscal year 
1996 budget request for the new program authorized by this 
legislation.

                      Regulatory Impact Evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 523.
    The bill is not a regulatory measure in the sense of 
imposing Government established standards or significant 
economic responsibilities on private individuals and 
businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little if any additional paperwork would result from the 
enactment of S. 523.

                        Executive Communications

    On March 14, 1995, the Committee on Energy and Natural 
Resources requested legislative reports from the Department of 
the Interior and the Office of Management and Budget setting 
forth executive views on S. 523. These reports have not been 
received at the time the report on S. 523 was filed. When the 
reports become available, the Chairman will request that they 
be printed in the Congressional Record for the advice of the 
Senate. The Committee notes, however, that the President has 
specifically requested $6 million for the new program 
authorized by this legislation for fiscal year 1996 in his 
budget request and that the justification documents for the 
Bureau of Reclamation indicate that the Administration supports 
the new program, the $75 million increase in the title II 
ceiling (which is provided by this legislation), and plans to 
submit legislation. In testimony before the Committee last 
Congress, the Commissioner of Reclamation testified that the 
Administration supported identical legislation, S. 2319, then 
pending before the Committee.
                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill S. 523, as ordered reported, are shown as follows 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italic, existing law in 
which no change is proposed is shown in roman):

PUBLIC LAW 93-320--JUNE 24, 1974, AS AMENDED BY THE ACT OF OCTOBER 30, 
                        1984, PUBLIC LAW 98-569

  AN ACT To authorize the construction, operation, and maintenance of 
 certain works in the Colorado River Basin to control the salinity of 
        water delivered to users in the United States and Mexico

          * * * * * * *
    Sec. 202(a) * * *
    The Secretary is authorized to construct, operate, and 
maintain [the following salinity control units] the following 
salinity control units and salinity control program as the 
initial stage of the Colorado River Basin salinity control 
program[.]:
          * * * * * * *
          (6) A basinwide salinity control program that the 
        Secretary, acting through the Bureau of Reclamation, 
        shall implement. The Secretary may carry out the 
        purposes of this paragraph directly, or may make 
        grants, commitments for grants, or advances of funds to 
        non-Federal entities under such terms and conditions as 
        the Secretary may require. Such program shall consist 
        of cost-effective measures and associated works to 
        reduce salinity from saline springs, leaking wells, 
        irrigation sources, industrial sources, erosion of 
        public and private land, or other sources that the 
        Secretary considers appropriate. Such program shall 
        provide for the mitigation of incidental fish and 
        wildlife values that are lost as a result of the 
        measures and associated works. The Secretary shall 
        submit a planning report concerning the program 
        established under this paragraph to the appropriate 
        committees of Congress. The Secretary may not expend 
        funds for any implementation measure under the program 
        established under this paragraph before the expiration 
        of a 30-day period beginning on the date on which the 
        Secretary submits such report.
          * * * * * * *
    (b) * * *
          * * * * * * *
          (4) In implementing the [units authorized to be 
        constructed pursuant to paragraphs (1), (2), (3), (4), 
        and (5)] units authorized to be constructed or the 
        program pursuant to paragraphs (1), (2), (3), (4), (5), 
        and (6) of subsection (a) of this section the Secretary 
        shall comply with procedural and substantive State 
        water laws.
          * * * * * * *
    Sec. 205(a) * * *
          * * * * * * *
          (1) In recognition of Federal responsibility for the 
        Colorado River as an interstate stream and for 
        international comity with Mexico, Federal ownership of 
        the lands of the Colorado River Basin from which mist 
        of the dissolved salts originate, and the policy 
        embodied in the Federal Water Pollution Control Act 
        Amendments of 1972 (86 Stat. 816), 75 per centum of the 
        total costs of construction, operation, maintenance, 
        and replacement of each unit or separable feature 
        thereof authorized by section 202(a) (1), (2), and (3) 
        of this title, including 75 per centum of the total 
        costs of construction, operation, and maintenance of 
        the associated measures to replace incidental fish and 
        wildlife values forgone, 70 per centum of the total 
        costs of construction, operation, maintenance, and 
        replacement of each unit or separable feature thereof 
        [authorized by section 202(a) (4) and (5)] authorized 
        by paragraphs (4) through (6) of section 202(a) of this 
        title, including 75 per centum of the total costs of 
        construction, operation, and maintenance of the 
        associated measures to replace incidental fish and 
        wildlife values forgone, and 70 per centum of the total 
        costs of implementation of the on-farm measures 
        authorized by section 202(c) of this title, including 
        75 per centum of the total costs of construction, 
        operation, and maintenance of the associated measures 
        to replace incidental fish and wildlife values forgone, 
        shall be nonreimbursable. The total costs remaining 
        after these allocations shall be reimbursable as 
        provided for in paragraphs (2), (3), (4), and (5), of 
        subsection (a) of this section.
          * * * * * * *
          (4)(i) Costs of construction and replacement of such 
        unit or separable feature thereof authorized by 
        [section 202(a) (4) and (5)] paragraphs (4) through (6) 
        of section 202(a) of this title, costs of construction 
        of measures to replace incidental fish and wildlife 
        values forgone, when such measures are part of the on-
        farm measures authorized by section 202(c) of this 
        title or of the units authorized by [section 202(a) (4) 
        and (5)] paragraphs (4) through (6) of section 202(a) 
        of this title, and costs of implementation of the on-
        farm measures authorized by section 202(c) of this 
        title allocated to the upper basin and to the lower 
        basin under subsection (a (2) of this section shall be 
        repaid as provided in subparagraphs (ii) and (iii), 
        respectively, of this paragraph.
          * * * * * * *
    Sec. 208 * * *
          * * * * * * *
    (c) In addition to amounts authorized to be appropriated 
under subsection (b), there are authorized to be appropriated 
$75,000,000 for subsection 202(a), including constructing the 
works described in paragraph 202(a)(6) and carrying out the 
measures described in such paragraph.