[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.

                                
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