[Senate Report 105-321]
[From the U.S. Government Publishing Office]
Calendar No. 562
105th Congress Report
SENATE
2d Session 105-321
_______________________________________________________________________
DAMS IN EMIGRANT WILDERNESS, STANISLAUS
NATIONAL FOREST, CALIFORNIA
_______
September 9, 1998.--Ordered to be printed
_______________________________________________________________________
Mr. Murkowski, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany H.R. 1663]
The Committee on Energy and Natural Resources, to which was
referred the Act (H.R. 1663) to clarify the intent of the
Congress in Public Law 93-632 to require the Secretary of
Agriculture to continue to provide for the maintenance of 18
concrete dams and weirs that were located in the Emigrant
Wilderness at the time the wilderness area was designated as
wilderness in that Public Law, having considered the same,
reports favorably thereon without amendment and recommends that
the Act do pass.
purpose
H.R. 1663, as ordered reported, requires the Secretary of
Agriculture to continue to provide for the maintenance of 18
concrete dams and weirs located in the Emigrant Wilderness,
Stanislaus National Forest, California.
background and need
Between 1921 and 1954, local sporting enthusiasts and back
country users, with the assistance of the U.S. Forest Service,
California Conservation Corps, and the California Department of
Fish and Game, constructed a series of 18 concrete dams and
weirs throughout an area which was later designated as the
Emigrant Wilderness Area. The dams were built from native rock.
The last dam was completed in 1954, twenty years prior to
wilderness designation.
This bill attempts to clarify the maintenance and status of
the 18 structures in the wilderness area. It directs the
Secretary of Agriculture to enter into an agreement with a non-
Federal entity to retain, maintain, and operate, at private
expense, 18 concrete dams and weirs at levels that applied
before the wilderness designation.
legislative history
H.R. 1663 was introduced on May 20, 1997, by Congressman
Doolittle (R-CA). H.R. 1663 passed the House of Representatives
on July 22, 1997 by recorded vote of 424-2.
On March 25, 1998, the Subcommittee on Forests and Public
Land Management held a hearing on the measure. At the business
meeting on July 29, 1998, the Committee on Energy and Natural
Resources ordered H.R. 1663 favorably reported.
committee recommendation and tabulation of votes
The Committee on Energy and Natural Resources, in open
business session on July 29, 1998, by unanimous voice vote of a
quorum present recommends that the Senate pass H.R. 1663
without amendment.
section-by-section analysis
Section 1 requires the Secretary of Agriculture to enter
into an agreement with a non-Federal entity to retain, maintain
and operate at private expense, the concrete dams and weirs
located within the boundaries of the Emigrant Wilderness. This
section further states that the non-Federal entity is required
to maintain and operate the dams and weirs at the level that
applied to them before the enactment of Public Law 93-632.
It is the Committee's intent that the maintenance of the
dams and weirs will be done in accordance with the Wilderness
Act of 1964.
cost and budgetary considerations
The following estimate of this measure has been provided by
the Congressional Budget Office.
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 6, 1998.
Hon. Frank H. Murkowski,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1663, an act to
clarify the intent of the Congress in Public Law 93-632 to
require the Secretary of Agriculture to continue to provide for
the maintenance of 18 concrete dams and weirs that were located
in the Emigrant Wilderness at the time the wilderness area was
designated as wilderness in that public law.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Victoria V.
Heid.
Sincerely,
James L. Blum
(For June E. O'Neill, Director).
Enclosure.
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
H.R. 1663--An act to clarify the intent of the Congress in Public Law
93-632 to require the Secretary of Agriculture to continue to
provide for the maintenance of 18 concrete dams and weirs that
were located in the Emigrant Wilderness at the time the
wilderness areas was designated as wilderness in that public
law
CBO estimates that enacting H.R. 1663 would have no
significant impact on the federal budget. Because H.R. 1663
would not affect direct spending or receipts, pay-as-you-go
procedures would not apply. H.R. 1663 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and would have no impact on the
budgets of state, local, or tribal governments.
H.R. 1663 would direct the Secretary of Agriculture to
enter into an agreement with a non-federal entity to retain,
maintain, and operate at private expense 16 concrete dams and
weirs in the Emigrant Wilderness within the Stanislaus National
Forest, California. According to the Forest Service, under a
management decision made in 1989, the forest Service has
maintained 12 structures and allowed the other 6 to deteriorate
naturally; however, under revisions to the management plan
currently being prepared, the Forest Service is likely to
continue maintaining only 7 of the 18 structures. H.R. 1663
would provide for maintenance of all 18 structures--but at
private expense. CBO estimates that implementing the act would
not result in a significant change in Forest Service spending.
On July 17, 1997, CBO prepared a cost estimate for H.R.
1663 as ordered reported by the House Committee on Resources on
July 16, 1997. This version of H.R. 1663 is identical to the
House version, as are the estimated costs.
The CBO contact for this estimate is Victoria V. Heid. This
estimate was approved by Robert A. Sunshine, Deputy Assistant
Director for budget Analysis.
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 H.R. 1663.
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 H.R. 1663.
EXECUTIVE COMMUNICATIONS
On April 23, 1998, the Committee on energy and Natural
Resources requested executive comment on H.R. 1663 from the
Department of Agriculture and the Office of Management and
Budget. These legislative reports were not available at the
time this report was filed. When the requested reports become
available, the Chairman will request that they be printed in
the Congressional Record for the advice of the Senate. The
testimony provided by the Forest Service at the Subcommittee
hearing follows:
Statement of Eleanor Towns, Forest Service, Department of Agriculture
Mr. Chairman and member of the subcommittee, thank you for
the opportunity to present the Administration's view on H.R.
1663. The Administration opposes H.R. 1663, Operation and
Maintenance of Structures in Emigrant Wilderness.
H.R. 1663, to clarify the intent of Congress in P.L. 93-632 to require
maintenance of 18 concrete dams and weirs located in the
Emigrant Wilderness
H.R. 1663 would require the Secretary of Agriculture to
continue to provide for the maintenance of 18 concrete dams and
weirs that were located in the ``Emigrant Wilderness'' at the
time of its designation. The Department of Agriculture opposes
enactment of H.R. 1663.
By way of background, a variety of water control structures
exist within the Emigrant Wilderness. Most were constructed in
the 1920's and 1930's to enhance recreational fisheries.
Several other structures were built as late as 1951. The
original function of most structures was to augment stream
flows for fish habitat enhancement in downstream areas, and not
necessarily to promote lake fisheries. Fish were introduced
into the Emigrant area during the late 1920's by stockmen.
Prior to this period, these high elevation lakes were barren of
fish.
Congress designated the Emigrant Wilderness on January 3,
1975 and at the time of wilderness designation, 18 water
control structures existed within the wilderness boundary. The
legislative history of the designation indicates the Congress
were aware these structures would be included within the
wilderness boundary, neither the original legislation in 1975
nor a subsequent legislation specifically addressed these
structures, or provided an exception to the general prohibition
on structures in the 1964 Wilderness Act. The Forest Service
has attempted to address the issue of these structures within
the wilderness since the area was designated.
The first effort was development of an ``Emigrant
Wilderness Management Plan'' that was approved August 15, 1979
by the Regional Forester. This plan contained a requirement for
a study to determine ``the condition, value and cost-
effectiveness of the various control structures as well as
their efforts on the natural hydrological processes.'' That
study of the 18 water control structures in the Emigrant
resulted in an Environmental Analysis, and a decision was
issued in 1989. That decision was appealed and the Regional
Forester directed the Stanislaus Forest Supervisor to conduct
additional analysis. The Forest Supervisor elected to address
the future management needs for the water control structures
within the development of the ``Emigrant Wilderness Management
Direction, Forest Plan Amendment,'' which was initiated in
1993.
Let me address the current condition and status of the
structures. Three types of water control structures exist in
the Emigrant Wilderness. There are 12 streamflow augmentation
dams, whose purpose is to increase downstream flow during dry
seasons in late summer or early fall. These dams raise the
height of natural lakes about 6 to 10 feet (the exception is
one 25-foot high dam which inundates a former meadow). Each of
these dams has a small gate valve to regulate streamflow.
Operation of the streamflow valves results in a drawdown of the
impounded lake levels.
There are 3 lake-level dams, which add about 3 feet of
storage height to existing natural lakes, but are not intended
to regulate flow.
There are 3 meadow-maintenance dams, which are small, non-
regulating structures located in stream channels at the lower
end of meadows. Their purpose is to raise the water table to
sub-irrigate the meadows.
The dams are composed mostly of rock and mortar, with the
exception of one earth-fill dam. Many of the dams have
deteriorated over time as maintenance levels have declined.
Seven structures are in poor condition, and are leaking
significantly or have washed out and no longer function. The
remaining eleven are in fair to good condition. Because of the
age and theme of some dams, seven are now eligible for listing
on the National Register of Historic Places.
During the 1970's and 1980's, maintenance was shared
between the Forest Service and the California Department of
Fish and Game (CDFG). The last permit issued to CDFG for
maintenance and operation was issued in 1975 and included 11
structures. CDFG declined to participate in maintenance of the
other seven structures. Past operation of the dams for
streamflow augmentation releases has been primarily by CDFG.
Most recently, CDFG has indicated that they will no longer
maintain or operate these structures. This is a statewide
policy change due to decreasing budgets and workforce, and
incurred liabilities for structural safety.
Now, let me turn to the status of the revision of the
management direction for the Emigrant Wilderness. The Forest
Service is currently revising the management direction for the
Emigrant Wilderness. This revision considers the existing
statutes as well as the current resource management situation
and specifically addresses these structures. The environmental
analysis in the EIS considers each structure in the context of
its condition, purpose, function and the cumulative effects of
the various structures on natural processes. In May of 1996,
the Forest released a Draft Environmental Impact Statement
(DEIS) for public review and comment. A final Record of
Decision (ROD) is expected to be released sometime this spring.
The DEIS evaluation indicates that there are seven dams which
are eligible for inclusion on the National Register of Historic
Places (Historically Significant) due to their age and
construction methods and materials.
During the public review period of the DEIS, a number of
public comments directly addressed the water control
structures. Comments ranged from support for full retention of
all 18 structures, retention of some of the 18, to eliminating
all structures. In addition, extensive discussion with the
California Department of Fish and Game provided additional
information and considerations.
In summary, the Administration has previously testified
before the House concerning an earlier version of the
legislation. At that time our primary objection to the
legislation was based on the greatly reduced management
discretion and significant budgetary affects which would have
resulted. Subsequent amendments have partially addressed the
objections, but concerns remain.
The language now being considered by the subcommittee
requires that the ``Secretary of Agriculture shall enter into
an agreement with a non-Federal entity, under which the entity
will retain, maintain, and operate at private expense the 18
dams and weirs'' in the wilderness. The use of private sector
partners is welcomed and encouraged. However, assuming other
entities are willing to enter into such an agreement, the
Forest Service will still have to provide for oversight,
coordination, project approval, safety inspections, and
historical consultations in order to redeem management
responsibilities and address public safety and liability
concerns. Although maintenance costs for the dams in usable
condition is not excessive, if replacement of dams that no
longer exist would be required, a significant investment would
be necessary. We are also concerned about the implications of
language that might require reconstructing facilities inside
wilderness. These activities, even if conducted by a non-
Federal entity, would still be subject to provisions of the
Endangered Species Act, National Environmental Policy Act and
other environmental laws.
H.R. 1663 also would require that ``The Secretary shall
require the entity to operate and maintain the dams and weirs
at the level of operation and maintenance that applied to such
dams and weirs'' prior to wilderness designation. It is unclear
what the ``level of operation and maintenance'' for some
structures might imply, given that some 23 years have elapsed
since designation and records are virtually nonexistent for
many of the dams. Also left unanswered by this language is the
resolution of issues which may arise under the Endangered
Species Act, historical preservation statutes, and other
regulatory changes which have occurred since 1975.
In summary, we think the approach we are taking to look at
each dam in the context of its function, current condition,
possible historical value, and environmental effect, and make
individual determinations is preferable to H.R. 1663 which
would require that all structures that existed in 1975 be
retained even though some of them are not operative.
Conclusion
In conclusion, Mr. Chairman, thank you for the opportunity
to testify today.
This concludes my statement. I would be happy to answer any
questions you and the other members of the Subcommittee might
have.
changes in existing law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee notes that no
changes in existing law are made by the Act H.R. 1663, as
ordered reported.