[Senate Report 106-428]
[From the U.S. Government Publishing Office]
Calendar No. 850
106th Congress Report
SENATE
2d Session 106-428
======================================================================
PROTECTIONS FOR THE WATERSHED OF THE LITTLE SANDY RIVER
_______
September 28 (legislative day, September 22), 2000.--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 S. 2691]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 2691) to provide further protections for
the watershed of the Little Sandy River as part of the Bull Run
Watershed Management Unit, Oregon, and for other purposes,
having considered the same, report favorably thereon with an
amendment and recommend that the bill, as amended, do pass.
The amendment is as follows:
On page 5, insert:
``SEC. 3. LAND RECLASSIFICATION.
``(a) Within six months of the date of enactment of this
Act, the Secretaries of Agriculture and Interior shall identify
any Oregon and California Railroad lands (O&C lands) subject to
the distribution provision of the Act of August 28, 1937
(chapter 876, title II, 50 Stat. 875; 43 U.S.C. Sec. 1181f)
within the boundary of the special resources management area
described in Section 1 of this Act.
``(b) Interior shall identify public domain lands within
the Medford, Roseburg, Eugene, Salem and Coos Bay Districts and
the Klamath Resource Area of the Lakeview District of the
Bureau of Land Management approximately equal in size and
condition as those lands identified in paragraph (a) but not
subject to the distribution provision of the Act of August 28,
1937 (chapter 876, title II, 50 Stat. 875; 43 U.S.C.
Sec. 1181f). For purposes of this paragraph, ``public domain
lands'' shall have the meaning given the term ``public lands''
in Section 103 of the Federal Land Policy and Management Act of
1976 (43 U.S.C. Sec. 1702), but excluding therefrom any lands
managed pursuant to the Act of August 28, 1937 (chapter 876,
title II, 50 Stat. 875; 43 U.S.C. Sec. 1181f).
``(c) Within two years after the date of enactment of this
Act, the Secretary of the Interior shall submit to Congress and
publish in the Federal Register a map or maps identifying those
public domain lands identified pursuant to paragraphs (a) and
(b) of this Section. After an opportunity for public comment,
the Secretary of the Interior shall complete an administrative
land reclassification such that those lands identified pursuant
to paragraph (a) become public domain lands not subject to the
distribution provision of the Act of August 28, 1937 (chapter
876, title II, 50 Stat. 875; 43 U.S.C. Sec. 1181f) and those
lands identified pursuant to paragraph (b) become Oregon and
California Railroad lands (O&C lands) subject to the
distribution provision of the Act of August 28, 1937 (chapter
876, title II, 50 Stat. 875; 43 U.S.C. Sec. 1181f).
``SEC. 4. ENVIRONMENTAL RESTORATION.
``In General.--In order to further the purposes of this
Act, there is hereby authorized to be appropriated $10 million
under the provisions of section 323 of the FY 1999 Interior
Appropriations Act (P.L. 105-277) for Clackamas County, Oregon,
for watershed restoration near the Bull Run Management Unit.''.
Purpose of the Measure
The purpose of S. 2691 is to provide for further
protections for the watershed of the Little Sandy River as part
of the Bull Run Watershed Management Unit, near Portland,
Oregon.
Background and Need
The Little Sandy River lies adjacent to the Bull Run
Watershed, which is the primary municipal water supply for the
City of Portland, Oregon. The Bull Run Watershed Management
Unit was established by Congress in 1977, creating a management
partnership between the Forest Service and the city of Portland
for the review of issues which may affect water quality and
quantity. Additional protection was given to the Bull run
Watershed by the Northwest Forest Plan in 1993, restricting all
timber harvests in sensitive areas. Neither of these actions
extended a satisfactory level of protection to the nearby
Little Sandy Watershed. The Oregon Resources and Conservation
Act of 1996 provided temporary protection for the Little Sandy
Watershed. S. 2691 would expand the boundary of the Bull Run
Watershed Management Unit to include the southern portion of
the Little Sandy. This would add approximately 2,900 acres to
the Bull Run Watershed Management Unit, resulting in a total of
approximately 98,272 acres permanently protected as watershed
for the city of Portland.
Population growth in and around the city of Portland and
heightened awareness of water quality issues have increased the
public's interest in the preservation of the Little Sandy
Watershed. The legislation is needed to expand the size of the
Bull Run Watershed Management Unit and provide permanent
protection to the Little Sandy River. In so doing, the city of
Portland's protected watershed will be increased in size to
help meet growing demand for drinking water within the city.
Legislative History
S. 2691 was introduced on June 7, 2000 by Senator Wyden and
referred to the Committee on Energy on Natural Resources. The
Subcommittee on Forests and Public Land Management held a
hearing on S. 2691 on July 20, 2000. At the business meeting on
September 20, 2000, the Committee on Energy and Natural
Resources ordered S. 2692 reported favorably with an amendment.
Committee Recommendation and Tabulation of Votes
The Senate Committee on Energy and Natural Resources, in
open business session on September 20, 2000, by a voice vote of
a quorum present, recommends that the Senate pass S. 2691 if
amended as described herein.
Committee Amendment
During the consideration of S. 2691, the Committee adopted
an amendment offered by Mr. Wyden and Mr. Smith which added two
sections to the bill.
The first of these, section 3, requires the Secretaries of
Agriculture and Interior to complete an administrative land
reclassification such that Oregon and California Railroad lands
(O&C lands) that are within the affected area would become
public domain lands and other public domain lands would become
O&C lands for purposes of distribution of O&C receipts.
The second, section 4, authorizes funds for watershed
restoration activities near the Bull Run Management Unit.
Section-by-Section Analysis
Section 1 amends Public Law 95-200 (16 U.S.C. 482b note) by
striking section 1 and inserting new text that includes an
additional portion of the Little Sandy River watershed in the
Bull Run Watershed Management Unit of Oregon, including
appropriate reference to a map depicting the new boundary, as
well as conforming and technical amendments.
Section 2 amends Public Law 95-200 (16 U.S.C. 482b note) by
striking paragraph (1) of section 2(b) and inserts new text to
prohibit harvesting of trees in the unit as depicted in section
1. The section also makes conforming and technical amendments
to the OregonResource Conservation Act of 1996 and the Omnibus
Parks and Public Lands Management Act of 1996. The section also
clarifies that there is no effect on any water rights by the Act.
Section 3 requires the Secretaries of Agriculture and
Interior to complete an administrative land reclassification
such that Oregon and California Railroad lands (O&C lands) that
are within the affective area would become public domain lands
and other public domain lands would become O&C lands for
purposes of distribution of O&C receipts.
Section 4 authorizes funds for watershed restoration
activities near the Bull Run Management Unit.
Cost and Budgetary Consideration
The Congressional Budget Office estimate of the costs of
this measure has been requested but was not available at the
time the report was filed. When the report is available, the
Chairman will request it be printed in the Congressional Record
for the advice of the Senate.
Regulatory Impact Evaluation
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, change in existing law made by
bill S. 2691, as ordered reported, are shown as follows:
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. 2691, as ordered reported.
Executive Communications
On September 20, 2000, the Committee on Energy and Natural
Resources requested legislative reports from the Department of
Interior and the Office of management and Budget setting forth
executive views on the bill. These reports had not been
received at the time the report on S. 2691 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 testimony provided by the Department of Agriculture at
the Subcommittee hearing follows:
Statement of Paul Brouha, Associate Deputy Chief, Forest Service,
Department of Agriculture
Mr. Chairman and Members of the Subcommittee, thank you for
the opportunity to discuss the Administration's views
concerning S. 2691, a bill to provide further protection for
the watershed of the Little Sandy River as part of the Bull Run
Watershed Management Unit, Oregon. I am Paul Brouha Associate
Deputy Chief of the Forest Service.
S. 2691, if enacted, would add approximately 2,900 acres to
the Bull run Watershed Management Unit. If enacted, timber
harvest activities and general public access into this
additional portion of the Little Sandy River watershed would be
prohibited. The Administration does not feel this additional
protection for the Little Sandy River watershed is warranted
and, therefore, does not support this bill.
The majority of the Little Sandy River watershed is already
within the Bull Run Watershed Management Unit. The
Administration believes that the 1994 northwest forest plan
amendments (NWFP) provide sufficient protection for the health
of the Little Sandy River watershed and preservation of future
options. Specifically, the Little Sandy River watershed is
designated a Tier 2 Key watershed in the NWFP. This designation
emphasizes high water quality, as well as fish and watershed
restoration. The NWFP, with its extensive system of late-
successional and riparian reserves, watershed restoration, and
other components of the aquatic conservation strategy, proves
for a very high level of water quality protection.
The NWFP provides for a scientifically based, ecosystem
approach for management of federal lands. It is based on
landscape-level scientific analysis, and considers the
interrelationships of all the forest's resources in its
implementation. The NWFP is designed to aid in the recovery of
species listed under the Endangered Species Act (ESA) and is an
integral part of recovery plans for all listed species,
including the Northern Spotted Owl and the Lower Columbia River
winter steelhead and Chinook salmon, fish stocks in the Sandy
River Basin that are currently listed under the ESA. Portland
General Electric has already committed to providing fish
passage around their facility and restoring anadromous fish
habitat in the Little Sandy. National Marine Fisheries Service
has accepted the NWFP as an integral part of the recovery plan
for the ESA listed fish in the Sandy River Basin.
The Point of diversion for Portland's Bureau of Water Works
is above the confluence of the Little Sandy and Bull Run
Rivers. A water supply option study conducted by the City of
Portland in 1992 dismissed the option of developing the Little
Sandy as a municipal water source because of issues related to
water rights, cost of development, limited capacity, and
impacts to a variety of resources. A Regional Water Supply Plan
completed in 1996 by 27 water providers also dismissed the
option of the Little Sandy Basin as a water supply source at
the time but advocated protection. Therefore, it is unlikely
that the water of the Little Sandy will ever be used as a
municipal water source because of other available sources, the
limited amount of water in the Little Sandy, the uncertainty of
water rights, and the high costs of development. In addition,
if municipal water rights were ever obtained for the Little
Sandy River, the requirement under ESA to maintain instream
water flows for the recovery of federally listed fish would
restrict water depletion even for municipal use.
The Oregon Resources Conservation Act of 1996 (Division B
of P.L. 104-208) directed the Secretary of Agriculture to study
the portion of the Little Sandy River watershed within the Bull
Run Watershed Management Unit. The Forest Service in
consultation with the City of Portland, a private citizen-based
Provincial Advisory Committee, and other interested parties,
completed the study. It was submitted on June 15, 1998, by the
Secretary to the Senate Committee on Agriculture, Nutrition,
and Forestry, the Senate Committee on Energy and Natural
Resources, the House Committee on Resources and the House
Committee on Agriculture. The study recommended that the area
continue to be managed under the direction of the NWFP. The
reasons cited by the study are as follows:
The Little Sandy River has not been and
currently is not planned to be used to provide drinking
water; and
The waters of the Little Sandy River may be
needed to provide for the needs of fish species being
considered for listing under the ESA.
Since that time, both Chinook salmon and winter steelhead
in the Sandy River Basin were listed under the ESA.
There are many environmental safeguards already in place
for the Little Sandy River and other sensitive watersheds in
the Pacific Northwest. For these reasons we feel that S. 1691
is unnecessary.
This concludes my testimony. I would be happy to answer any
questions that you may have.
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. 2691, 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 95-200 (16 U.S.C. 482b note)
* * * * * * *
``Designation of Unit
[``Section 1. There is hereby established, subject to valid
existing rights, a special resources management unit within the
Mount Hood National Forest, State of Oregon, comprising
approximately 95,382 acres as depicted on a map dated April
1977, and entitled `Bull Run Watershed Management Unit, Mount
Hood National Forest', which is on file and available for
public inspection in the offices of the Chief, and the Regional
Forester--Pacific Northwest Region, Forest Service, Department
of Agriculture, minor adjustments in the boundaries of which
may be made from time to time by the Secretary of Agriculture
(hereinafter the `Secretary') after consultation with the city
and appropriate public notice and hearings.]
``SECTION 1. ESTABLISHMENT OF SPECIAL RESOURCES MANAGEMENT UNIT;
DEFINITION OF SECRETARY.
``(a) Establishment.--
``(1) In general.--There is established, subject to
valid existing rights, a special resources management
unit in the State of Oregon comprising approximately
98,272 acres, as depicted on a map dated May 2000, and
entitled `Bull Run Watershed Management Unit'.
``(2) Map.--The map described in paragraph (1) shall
be on file and available for public inspection in the
offices of the Regional Forester-Pacific Northwest
Region, Forest Service, Department of Agriculture, and
in the offices of the State Director, Bureau of Land
Management, Department of the Interior.
``(3) Boundary adjustments.--Minor adjustments in the
boundaries of the unit may be made from time to time by
the Secretary after consultation with the city and
appropriate public notice and hearings.
``(b) Definition of Secretary.--In this Act, the term
`Secretary' means--
``(1) with respect to land administered by the
Secretary of Agriculture, the Secretary of Agriculture;
and
``(2) with respect to land administered by the
Secretary of the Interior, the Secretary of the
Interior.
``MANAGEMENT
``Sec. 2. (a) The unit and the renewable resources therein,
shall be administered as a watershed by the [Secretary of
Agriculture] Secretary in accordance with the laws, rules and
regulations [applicable to National Forest System lands]
applicable to National Forest System land (in the case of land
administered by the Secretary of Agriculture) or applicable to
land under the administrative jurisdiction of the Bureau of
Land Management (in the case of land administered by the
Secretary of the Interior) except to the extent that any
management plan or practice is found by the Secretary to have a
significant adverse effect on compliance with the water quality
standards referred to in section 2(c) hereof or on the quantity
of the water produced thereon for the use of the city, and
other local government units and persons using such water under
agreements with the city (and the Secretary shall take into
consideration the cumulative effect of individual insignificant
degradation), in which case, and notwithstanding any other
provision of law, the management plan and all relevant leases,
permits, contracts, rights-of-way, or other rights or
authorization issued pursuant thereto shall forthwith be
altered by the Secretary to eliminate such adverse effect by
application of one or more such practices or uses: Provided,
however, That use of such water for the production of energy
and the transmission of such energy through and over the unit
are deemed consistent with the purposes of this Act and the
rights-of-way heretofore granted to Bonneville Power
Administration by the Forest Service through and over the unit
are validated and confirmed and deemed consistent with the
purposes of this Act.
``(b) Timber Cutting.--
``(1) * * *
``(2) Permitted cutting.--
``(A) In general.--Subject to subparagraph
(B), the [Secretary of Agriculture] Secretary
shall prohibit the cutting of trees in the area
described in paragraph (1).
``(B) Permitted cutting.--Subject to
subparagraph (C), the Secretary may only allow
the cutting of trees in the area described in
paragraph (1)--
``(i) for the protection or
enhancement of water quality in the
area described in paragraph (1); or
``(ii) for the protection,
enhancement, or maintenance of water
quantity available from the area
described in paragraph (1); or
``(iii) for the construction,
expansion, protection or maintenance of
municipal water supply facilities; or
``(iv) for the construction,
expansion, protection or maintenance of
facilities for the transmission of
energy through and over the unit or
previously authorized hydroelectric
facilities or hydroelectric projects
associated with municipal water supply
facilities.
``(C) Salvage sales.--The [Secretary of
Agriculture] Secretary may not authorize a
salvage sale in the area described in paragraph
(1).
``(b) Timber Cutting [sic]--
[``(1) In general.--Subject to paragraph (2), the
Secretary of Agriculture shall prohibit the cutting of
trees in that part of the unit consisting of the
hydrographic boundary of the Bull Run River Drainage,
including certain lands within the unit and located:
below the headworks of the city of Portland, Oregon's
water storage and delivery project, and as depicted in
a map dated July 22, 1996 and entitled `Bull Run River
Drainage'.]
``(1) In general.--Subject to paragraph (2), the
Secretary shall prohibit the cutting of trees on
Federal land in the entire unit, as designated in
section 1 and depicted on the map referred to in that
section.
* * * * * * *
``(c) The policy set forth in [subsection (a) and (b)]
subsections (a) and (b), [sic] shall be attained through the
development, maintenance, and periodic revision of land
management plans in accordance with procedures set forth in
section 5[6] of the Forest and Rangeland Renewable Resources
Planning Act of 1974 (88 Stat. 477, as amended: 16 U.S.C. 1604)
[section 1604 of this title], [through the maintenance] (in the
case of land administered by the Secretary of Agriculture) or
section 202 of the Federal Land Policy and Management Act of
1976 (43 U.S.C. 1712) (in the case of land administered by the
Secretary of the Interior) through the maintenance of systems
for monitoring and evaluating water quality, and through
supporting scientific research as the Secretary may deem
necessary after consultation and in coordination with the city.
In the development and revision of land management plans for
the unit, the Secretary, except as otherwise provided in
section 2(a) hereof, shall provide for public participation and
shall consult and coordinate with appropriate officials and
advisors of the city, and shall consider such data and research
as the city may collect through its own monitoring systems and
scientific efforts, if any. Such plans shall be prepared by an
interdisciplinary team; be embodied in appropriate written
material including maps and other descriptive documents; shall
contain water quality standards developed by the Secretary
after consultation and in cooperation with the city, which
standards shall be substantially based on and shall reflect a
quality of water not significantly less than the quality
reflected by percentile curves developed from data collected
from 1967 through 1975 and, if none, from data collected in the
first three years of record thereafter; and be available to the
public at convenient locations. The initial plan or plans shall
be completed as soon as practicable after the enactment of this
Act [Nov. 23, 1977], but not later than September 30, 1979.
Current data shall be compared: to historical data at least
annually for the purpose of determining compliance with the
standards and the significance of any deviation therefrom.
Deviations occurring from operation, maintenance, alteration,
or construction of water storage, or electrical generation and
transmission facilities, seasonal fluctuations, variations in
climate, and other natural phenomena, fire, or acts of God,
shall not be considered in determining the historical or
current percentile curves.
* * * * * * *
----------
Public Law 104-208--Sept. 30, 1996
* * * * * * *
[Sec. 606. Lands within the Bull Run Management Unit, as
defined in Public Law 95-200, but not contained within the Bull
Run River Drainage, as defined by this title and as depicted on
the map dated July 1996 described in Section 604 of this title,
shall continue to be managed in accordance with Public Law 95-
200.]
* * * * * * *
----------
Public Law 104-333--Nov. 12, 1996
[SEC. 1026. BULL RUN PROTECTION.--
[(a) Amendments to Public Law 95-200.--
[(1) The first sentence of section 2(a) of the Public
Law 95-200 is amended by striking ``2(b)'' and
inserting in lieu thereof ``2(c)''.
[(2) The first sentence of section 2(b) of Public Law
95-200 is amended after ``the policy set forth in
subsection (a)'' by inserting ``and (b)''.
[(3) Subsections (b), (c), (d), and (e) of section 2
of Public Law 95-200 are redesignated as subsections
(c), (d), (e), and (f), respectively.
[(4) Section 2 of Public Law 95-200 is amended by
inserting after subsection (a) the following new
subsection:
[``(b) Timber Cutting.--
[``(1) In general.--Subject to paragraph (2), the
Secretary of Agriculture shall prohibit the cutting of
trees in that part of the unit consisting of the
hydrographic boundary of the Bull Run River Drainage,
including certain lands within the unit and located
below the headworks of the city of Portland, Oregon's
water storage and delivery project, and as depicted in a
map dated July 22, 1996, and entitled `Bull Run River
Drainage'.
[``(2) Permitted cutting.--
[``(A) In general.--Subject to subparagraph
(B), the Secretary of Agriculture shall
prohibit the cutting of trees in the area
described in subparagraph (1).
[``(B) Permitted cutting.--Subject to
subparagraph (C), the Secretary may only allow
the cutting of trees in the area described in
subparagraph (1)--
[``(i) for the protection or
enhancement of water quality in the
area described in subparagraph (1); or
[``(ii) for the protection,
enhancement, or maintenance of water
quantity available from the area
described in subparagraph (1); or
[``(iii) for the construction,
expansion, protection or maintenance of
municipal water supply facilities; or
[``(iv) for the construction,
expansion, protection or maintenance of
facilities for the transmission of
energy through and over the unit or
previously authorized hydroelectric
facilities or hydroelectric projects
associated with municipal water supply
facilities.
[``(C) Salvage sales.--The Secretary of
Agriculture may not authorize a salvage sale in
the area described in subparagraph (1).''.
[(b) Report to Congress.--The Secretary of Agriculture
shall, in consultation with the city of Portland and other
affected parties undertake a study of that part of the Little
Sandy Watershed that is within the unit (hereinafter referred
to as the ``study area''). That study shall determine--
[(1) the impact of management activities within the
study area on the quality of drinking water provided to
the Portland Metropolitan area;
[(2) the identity and location of certain ecological
features within the study area, including late
successional forest characteristics, aquatic and
terrestrial wildlife habitat, significant hydrological
values, or other outstanding natural features; and
[(3) the location and extent of any significant
cultural or other values within the study area.
[(c) Recommendations.--The study referred to in subsection
(b) shall include both legislative and regulatory
recommendations to Congress on the future management of the
study area. In formulating such recommendations, the Secretary
shall consult with the City of Portland and other affected
parties.
[(d) Existing Data and Processes.--To the greatest extent
possible, the Secretary shall use existing data and processes
to carry out the study and report.
[(e) Submission to Congress.--The study referred to in
subsection (b) shall be submitted to the Senate Committees on
Energy and Natural Resources and Agriculture and the House
Committees on Resources and Agriculture not later than one year
from the date of enactment of this section.
[(f) Moratorium.--The Secretary is prohibited from
advertising, offering or awarding any timber sale within the
study area for a period of two years after the date of
enactment of this section.
[(g) Water Rights.--Nothing in this section shall in any
way affect any State or Federal law governing appropriation,
use of or Federal right to water on or flowing through National
Forest System lands. Nothing in this section is intended to
influence the relative strength of competing claims to the
waters of the Little Sandy River. Nothing in this section shall
be construed to expand or diminish Federal, State, or local
jurisdiction, responsibility, interests, or rights in water
resources development or control, including rights in and
current uses of water resources in the unit.
[(h) Other Lands in Unit.--Lands within the Bull Run
Management Unit, as defined in Public Law 95-200, but not
contained within the Bull Run River Drainage, as described in
the amendment made by subsection (a)(4) of this section and as
depicted on the map dated July 22, 1996, and entitled ``Bull
Run River Drainage'', shall continue to be managed in
accordance with Public Law 95-200.]
* * * * * * *