[House Report 107-416]
[From the U.S. Government Publishing Office]



107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     107-416

======================================================================



 
                DEEP CREEK-YAMPATIKA UTE WILDERNESS ACT

                                _______
                                

 April 23, 2002.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Hansen, from the Committee on Resources, submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2963]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 2963) to establish the Deep Creek Wilderness Area, 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:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Deep Creek-Yampatika Ute Wilderness 
Act''.

 SEC. 2. FINDINGS AND PURPOSE.

  (a) Findings.--Congress finds the following:
          (1) Certain areas located in the White River National Forest 
        and the Bureau of Land Management, Glenwood Springs Resource 
        Area, in Colorado along Deep Creek should be protected and 
        enhanced for the benefit and enjoyment of present and future 
        generations, including the areas making up the rugged and 
        remote limestone gorge formed by Deep Creek on the White River 
        Plateau of the White River National Forest in Garfield and 
        Eagle Counties, Colorado, which have wilderness values and 
        offer unique and valuable scenic, geological, scientific, and 
        recreational opportunities.
          (2) The unique high elevation riparian areas and natural and 
        wildlife components, enhanced by the rural western setting of 
        the area, provide extensive opportunities for primitive 
        recreational activities, are publicly used for hiking, cave 
        exploration, and solitude, and are worthy of additional 
        protection as a wilderness area.
          (3) Deep Creek carves a rugged and remote limestone gorge, 
        forming a dramatic pristine canyon over 2,500 feet deep and 13 
        miles long.
          (4) The limestone strata have created ideal conditions for 
        the formation of caves, many of which are among Colorado's most 
        outstanding.
          (5) There are both absolute and conditional decreed water 
        rights appertaining to waters upstream and downstream from the 
        Wilderness Area. These rights are private property rights and 
        are entitled to protection.
          (6) It is possible to provide for proper management and 
        protection of the wilderness values of the Wilderness Area in 
        ways that provide for the reasonable development of the 
        upstream and adjacent water rights.
          (7) Out of respect for the native Ute people who frequented 
        the area near Trappers Lake and the Deep Creek headwaters for 
        centuries, the Wilderness Area shall be known as the Deep 
        Creek-Yampatika Ute Wilderness.
          (8) Colorado law authorizes the Colorado Water Conservation 
        Board to hold instream flow rights in order to protect the 
        natural environment. Establishment and/or augmentation of such 
        an instream flow right for Deep Creek, abandonment of existing 
        conditional rights appertaining to waters upstream from the 
        Wilderness Area, and/or conversion to such instream flow rights 
        of existing absolute water rights appertaining to such waters 
        would be beneficial to the protection of the resources and 
        values of the Wilderness Area.
          (9) There are no known water resource facilities or projects, 
        or rights-of-way or access routes serving water resource 
        facilities or projects, within the Wilderness Area. Therefore, 
        it is not necessary to include provisions in this Act for 
        access, operation, routes, maintenance, or repair for water 
        resource facilities or projects.
  (b) Purpose.--The purpose of this Act is to conserve, protect, and 
enhance for the benefit and enjoyment of present and future generations 
the unique and nationally important values of the Federal lands 
depicted on the Map, including wilderness, geological, natural, 
scientific, recreational, environmental, biological, and scenic 
resources of such Federal lands, by establishing the Deep Creek-
Yampatika Ute Wilderness Area in the State of Colorado.

SEC. 3. DEFINITIONS.

  In this Act:
          (1) Wilderness area.--The term ``Wilderness Area'' means the 
        Deep Creek-Yampatika Ute Wilderness Area established by section 
        4.
          (2) Map.--The term ``Map'' means the map entitled ``Proposed 
        Deep Creek-Yampatika Ute Wilderness Area'' and dated February 
        25, 2002.
          (3) Secretary.--The term ``Secretary'' means--
                  (A) the Secretary of Agriculture, acting through the 
                Chief of the Forest Service, with regard to lands over 
                which that Secretary has jurisdiction; and
                  (B) the Secretary of the Interior, acting through the 
                Director of the Bureau of Land Management, with regard 
                to lands over which that Secretary has jurisdiction.

SEC. 4. DEEP CREEK-YAMPATIKA UTE WILDERNESS AREA DESIGNATION.

  (a) In General.--In furtherance of the Wilderness Act, there is 
established the Deep Creek-Yampatika Ute Wilderness Area in the State 
of Colorado.
  (b) Areas Included.--The Wilderness Area shall consist of 
approximately 7,350 acres of Federal land as generally depicted on the 
Map.
  (c) Effective Date.--
          (1) Determination.--Subsections (a) and (b) shall take effect 
        upon a determination by the Secretary of Agriculture that--
                  (A) conditional water rights described in section 
                6(e)(3)(A)(i) have been canceled or abandoned;
                  (B) absolute water rights described in section 
                6(e)(3)(A)(ii) have been conveyed to the Colorado Water 
                Conservation Board for conversion to instream flows 
                under Colorado law; or
                  (C) the Colorado Water Conservation Board has made a 
                final determination regarding whether or not instream 
                flow levels in Deep Creek are adequate.
          (2) Notice.--As soon as practicable after making a 
        determination under paragraph (1), the Secretary of Agriculture 
        shall publish notice of that determination in the Federal 
        Register.

SEC. 5. MANAGEMENT.

  (a) Wilderness Area.--After making a determination under section 
4(c), the Secretary, shall manage the Wilderness Area in a manner 
that--
          (1) conserves, protects, and enhances the resources of the 
        Wilderness Area; and
          (2) is in accordance with--
                  (A) the Wilderness Act (16 U.S.C. 1131 et seq.), 
                except that, with respect to any wilderness areas 
                designated by this Act, any reference in the Wilderness 
                Act to the effective date of the Wilderness Act shall 
                be deemed to be a reference to the date of the 
                enactment of this Act;
                  (B) the Federal Land Policy and Management Act of 
                1976 (43 U.S.C. 1701 et seq.); and
                  (C) other applicable law, including this Act.
  (b) Withdrawals.--Subject to valid existing rights, all Federal lands 
within the Wilderness Area are withdrawn from--
          (1) all forms of entry, appropriation, or disposal under the 
        public land laws;
          (2) location, entry, and patent under the mining laws; and
          (3) the operation of the mineral leasing, mineral materials, 
        and geothermal leasing laws, and all amendments thereto.
  (c) Aerial Navigation Training Exercises.--
          (1) In general.--The Colorado Army National Guard, through 
        the High Altitude ARNG Aviation Training Site, shall continue 
        to be allowed to conduct aerial navigation training maneuver 
        exercises over and upon the lands within the Wilderness Area in 
        a manner consistent with the memorandum of understanding dated 
        August 4, 1987, among the Colorado Army National Guard, the 
        Bureau of Land Management, and the United States Forest Service 
        as interpreted and implemented prior to the date of the 
        enactment of this Act.
          (2) Review and modification of memorandum of understanding.--
        The memorandum of understanding referred to in paragraph (1) 
        may be modified subject to the agreement of all parties 
        thereto. The parties to the memorandum of understanding shall 
        review the memorandum and associated annual operating plan not 
        later than 180 days after the date of the enactment of this 
        Act, and annually thereafter while the memorandum of 
        understanding is in effect. The review shall include 
        consideration of alternative locations over National Forest 
        System lands and lands administered by the Bureau of Land 
        Management outside of the Wilderness Area for the conduct of 
        activities identified in the memorandum. If the Colorado Army 
        National Guard identifies such an alternate location outside of 
        the Wilderness Area that meets its aerial training needs, the 
        memorandum of understanding shall be modified accordingly, 
        subject to the agreement of all parties thereto.
  (d) Hunting and Fishing.--Nothing in this Act shall affect the 
authority of the Colorado Division of Wildlife to regulate hunting or 
fishing in the Wilderness Area.
  (e) Grazing.--
          (1) In general.--Except as provided by paragraph (2), the 
        Secretary shall issue and administer any grazing leases or 
        permits in the Wilderness Area in accordance with the same laws 
        (including regulations) and Executive orders followed by the 
        Secretary in issuing and administering grazing leases and 
        permits on other land under the jurisdiction of the Forest 
        Service and Bureau of Land Management, respectively.
          (2) Grazing in wilderness area.--
                  (A) Forest service lands.--Grazing of livestock in 
                the Wilderness Area on lands that are under the 
                jurisdiction of the Forest Service shall be 
                administered in accordance with the provisions of 
                section 4(d)(4) of the Wilderness Act (16 U.S.C. 
                1133(d)(4)), in accordance with the guidelines set 
                forth under the heading ``Grazing in National Forest 
                Wilderness'' in House Report 96-617 of the 96th 
                Congress.
                  (B) BLM lands.--Grazing of livestock in the 
                Wilderness Area on lands that are under the 
                jurisdiction of the Bureau of Land Management shall be 
                administered in accordance with the provisions of 
                section 4(d)(4) of the Wilderness Act (16 U.S.C. 
                1133(d)(4)), in accordance with the guidelines set 
                forth in Appendix A of House Report 101-405 of the 
                101st Congress.
  (f) No Buffer Zones.--Congress does not intend for the establishment 
of the Wilderness Area to lead to the creation of protective perimeters 
or buffer zones around the Wilderness Area. The fact that there may be 
activities or uses on lands outside the Wilderness Area that would not 
be allowed in the Wilderness Area shall not preclude such activities or 
uses on such lands up to the boundary of the Wilderness Area consistent 
with other applicable laws.

SEC. 6. WATER RIGHTS AND MANAGEMENT.

  (a) Definition.--As used in this section, the term ``water resource 
facility'' means irrigation and pumping facilities, reservoirs, water 
conservation works, aqueducts, canals, ditches, pipelines, wells, 
hydropower projects and transmission and other ancillary facilities, 
and other water diversion, storage, and carriage structures.
  (b) Restrictions on Rights and Disclaimer of Effect.--
          (1) Restrictions on rights.--Neither the Secretary of 
        Agriculture nor the Secretary of the Interior, nor any other 
        officer, employee, representative, or agent of the United 
        States, nor any other person, shall assert in any court or 
        agency, nor shall any court or agency consider, any claim to or 
        for water or water rights in the State of Colorado, which is 
        based on any construction of any portion of this Act, or the 
        designation of any lands as wilderness by this Act, as 
        constituting an express or implied reservation of water or 
        water rights.
          (2) Disclaimer of effect.--(A) Nothing in this Act shall--
                  (i) be construed as a recognition, disclaimer, 
                relinquishment, or reduction of any water rights of the 
                United States in the State of Colorado existing before 
                the date of the enactment of this Act; or
                  (ii) be construed as constituting an interpretation 
                of any other Act or any designation made by or pursuant 
                thereto.
          (B) Nothing in this section shall be construed as 
        establishing a precedent with regard to any future wilderness 
        designations.
  (c) New or Expanded Projects.--Notwithstanding any other provision of 
law, on and after the date of the enactment of this Act, neither the 
President nor any other officer, employee, or agent of the United 
States shall fund, assist, authorize, or issue a license or permit for 
the development of any new water resource facility within lands 
designated wilderness pursuant to this Act.
  (d) Interstate Compacts.--Nothing in this Act, and nothing in any 
previous Act designating any lands as wilderness, shall be construed as 
limiting, altering, modifying, or amending any of the interstate 
compacts or equitable apportionment decrees that apportion water among 
and between the State of Colorado and other States. Except as expressly 
provided in this section, nothing in this Act shall affect or limit the 
development or use by existing and future holders of vested water 
rights of Colorado's full apportionment of such waters.
  (e) Stream Flows.--
          (1) Recommendations.--The Secretary of Agriculture shall 
        consult with the Colorado Water Conservation Board regarding 
        instream flow protection recommendations on Deep Creek within 
        the Wilderness Area and shall do so in accordance with Colorado 
        law and in consultation with interested parties and local 
        elected officials.
          (2) Restatement of current law.--As provided by Federal and 
        Colorado State law, the Secretary may continue to enter into 
        enforcement agreements with the Colorado Water Conservation 
        Board for monitoring and protecting instream flows.
          (3) Grants for compensation relating to water rights.--
                  (A) In general.--The Secretary of Agriculture may 
                make a grant to the Department of Natural Resources of 
                the State of Colorado for the following purposes:
                          (i) Conditional water rights.--Compensating 
                        willing parties for canceling or otherwise 
                        abandoning conditional water rights within or 
                        upstream of the Wilderness Area which would 
                        protect the natural environment within the 
                        Wilderness Area.
                          (ii) Absolute water rights.--Compensating 
                        willing parties for conveying absolute water 
                        rights within or upstream of the Wilderness 
                        Area to the Colorado Water Conservation Board 
                        for conversion to instream flows under Colorado 
                        law.
                  (B) Enforceable agreement.--Compensation under 
                clauses (i) and (ii) of subparagraph (A) shall be given 
                pursuant to an enforceable agreement between the 
                Department of Natural Resources of the State of 
                Colorado and the willing party setting out the fair 
                market value for the conditional water rights to be 
                canceled or abandoned, or the absolute water rights to 
                be conveyed, as applicable. The fair market value shall 
                be determined by an independent appraisal, performed by 
                an appraiser to be mutually agreed upon by the 
                Secretary of Agriculture, the Department of Natural 
                Resources of the State of Colorado, and the willing 
                party.
                  (C) Authorization of appropriations.--There is 
                authorized to be appropriated for the purposes of this 
                paragraph $300,000.

SEC. 7. MAP AND LEGAL DESCRIPTION.

  (a) In General.--As soon as practicable after the date of the 
enactment of this Act, the Secretary shall submit to Congress a copy of 
the Map and a legal description of the Wilderness Area.
  (b) Force and Effect.--The Map and legal description shall have the 
same force and effect as if included in this Act, except that the 
Secretary may correct clerical and typographical errors in the Map and 
the legal description.
  (c) Public Availability.--Copies of the Map and the legal description 
shall be on file and available for public inspection in the following:
          (1) The Office of the Director of the Bureau of Land 
        Management.
          (2) The Office of the Chief of the Forest Service.
          (3) The Office of the State Director of the Bureau of Land 
        Management in Colorado and the Glenwood Springs Resource area 
        Office in Glenwood Springs, Colorado.
          (4) The Office of the Regional Forester of the Forest Service 
        in Colorado, and of the White River National Forest, Forest 
        Ranger Office in Glenwood Springs, Colorado.
  (d) Map Controlling.--In the case of a discrepancy between the Map 
and the descriptions, the Map shall control.

SEC. 8. WILDERNESS POTENTIAL.

  Nothing in the Act shall preclude or restrict the authority of the 
Secretary to evaluate the suitability of roadless and unroaded areas 
adjacent to the Wilderness Area for inclusion in the National 
Wilderness Preservation System or to make recommendations to Congress 
for such inclusions.

                          PURPOSE OF THE BILL

    The purpose of H.R. 2963 is to establish the Deep Creek 
Wilderness Area.

                  BACKGROUND AND NEED FOR LEGISLATION

    Carved in multiple layers of limestone, shale and other 
sedimentary formations dating back to the Cambrian age, the 
Deep Creek area of Colorado is a rugged and remote wooded 
canyon that plunges 2,500 feet along a 13-mile path. The Deep 
Creek landscape plays host to subterranean streams, caverns, 
sinks and over 40 prehistoric caves, including Groaning Cave, 
which is the longest in the State of Colorado. Wending its way 
through the majestic canyon is the area's namesake, Deep Creek, 
a perennial stream with flows originating from snow run-off in 
the upper elevations of its watershed. The waterway is largely 
unmodified by water diversions, and empties directly into the 
Colorado River.
    Since 1990, resource managers, local officials and 
concerned citizens in the surrounding communities have had an 
extensive dialogue about how best to manage this magnificent 
resource. In 1995, the Forest Service and the Bureau of Land 
Management (BLM) jointly determined that Deep Creek was 
eligible for Wild and Scenic River designation. The 7350-acre 
area proposed for designation is managed in part by both these 
agencies.
    Congressman Scott McInnis (R-CO) introduced H.R. 2963 in 
September after wide-ranging conversations with local 
officials, local environmentalists and other interested 
citizens and citizen groups. Congressman McInnis, who grew up 
near Deep Creek and spent considerable time hiking there as a 
boy, drew the wilderness boundaries in H.R. 2963 along the 
canyon rim of Deep Creek, the same boundaries recommended by a 
consortium of Colorado-based environmental advocates in 1998. 
While some local environmental groups have since modified their 
1998 Deep Creek position by advocating an expansion of the 
boundaries beyond the canyon rims, the Garfield and Eagle 
County Commissions, the two counties immediately impacted by 
the designation, have endorsed the bill and its rim-to-rim 
boundary.

                            COMMITTEE ACTION

    H.R. 2963 was introduced on September 25, 2001. The bill 
was referred to the Committee on Resources, and within the 
Committee to the Subcommittee on Forests and Forest Health and 
the Subcommittee on National Parks, Recreation and Public 
Lands. On March 20, 2002, the Resources Committee met to 
consider the bill. The two Subcommittees were discharged from 
further consideration of the bill by unanimous consent. 
Congressman McInnis offered an amendment in the nature of a 
substitute to (1) mandate that the Forest Service and the 
Colorado Army National Guard meet within 180-days following 
enactment to review the Memorandum of Understanding governing 
the conduct of high altitude aerial training exercises within 
the designated area and consider alternative locations outside 
the wilderness area if an alternative location is identified 
and agreed upon by the relevant parties; (2) authorize the 
Forest Service to purchase from willing sellers water rights 
upstream of the wilderness area to protect the riparian values 
of the wilderness area, and that these rights would be held by 
the State of Colorado as part of the Colorado Instream Flow 
Program; and (3) trigger formal wilderness designation only 
after one of the following occur: (A) upstream conditional 
rights described in the legislation are canceled or abandoned; 
(B) upstream absolute water rights described in the legislation 
are conveyed to the Colorado Water Conservation Board for 
conversion to instream flows under Colorado water law; or (C) 
the Colorado Water Conservation Board has made a final decision 
as to the adequacy of instream flows in Deep Creek. Congressman 
Mark Udall (D-CO) offered an amendment to the amendment in the 
nature of a substitute to establish an alternative trigger 
mechanism, under which the Secretaries of Agriculture and the 
Interior could formally designate the wilderness area only 
after (1) all upstream conditional rights described in the 
legislation have been abandoned; and (2) the Colorado Water 
Conservation Board has augmented the existing State-held 
instream flow right to a level equal to either all of the 
upstream conditional rights or all unappropriated waters on 
Deep Creek, whichever is larger. The Udall Amendment was not 
adopted by a roll call of vote 8 yeas to 18 nays, as follows:


    The McInnis amendment in the nature of a substitute was 
adopted by a voice vote. The bill, as amended, was then ordered 
favorably reported to the House of Representatives by voice 
vote.

             SECTION-BY-SECTION ANALYSIS OF BILL AS AMENDED

Section 1. Short title

    Section 1 provides a short title for the bill, the ``Deep 
Creek-Yampatika Ute Wilderness Act.''

Section 2. Findings and purpose

    Section 2 acknowledges that certain areas located in the 
White River National Forest and the Bureau of Land Management, 
Glenwood Springs Resource Area, in Colorado along Deep Creek 
should be protected and enhanced for the benefit and enjoyment 
of present and future generations and are worthy of protection 
as a wilderness area. This section notes that the primitive 
recreational opportunities available in the area include hiking 
and solitude, as well as cave exploration. The Committee 
recognizes that the map of the wilderness designation was drawn 
to exclude the entrance to the Groening Cave, which is managed 
by the Forest Service.
    Section 2(a)(5) identifies the existence of both absolute 
and conditional decreed water rights appertaining to waters 
upstream and downstream from the wilderness area that are 
entitled to protection under Colorado law. Section 2(a)(8) 
restates Colorado State law by authorizing the Colorado Water 
Conservation Board to hold instream flow rights to protect the 
natural environment. The Committee recognizes that 
establishment and/or augmentation of such an instream flow 
right for the Deep Creek wilderness area, abandonment of 
existing conditional rights, and/or conversion of existing 
absolute water rights to instream flow rights would be 
beneficial to the protection of the resources and values of the 
wilderness area. The Colorado State instream flow program is 
considered by the Committee as capable of providing adequate 
protection to the biological health and hydrology of Deep Creek 
through the mechanism set forth in section 6(e)(3) of the bill, 
and no federal reserve water right is expressed or implied 
pursuant to the wilderness designation.
    Section 2(a)(7) recognizes use of the name Yampatika out of 
honor and respect for the native Ute Indians who lived on the 
flat tops around the canyon for centuries. For the last decade 
archeologists and historians have worked with the Ute elders to 
identify the prehistoric and historic Ute Trail that crosses 
from the Colorado River drainage to the White River drainage 
over the Flat Tops Mountains. This may be the oldest, longest, 
highest Indian trail left in the United States and it runs very 
close to Deep Creek.
    Section 2(a)(9) notes that there are no known water 
resource facilities, rights-of-way, or access routes serving 
water facilities or projects within the wilderness area. In 
fact, all water facilities in the vicinity of the proposed 
wilderness area were intentionally omitted from the boundary so 
as to avoid conflicts. Consequently, the Committee does not 
find it necessary to include provisions to allow for entry into 
the wilderness area for maintenance or repair of such 
facilities.

Section 3. Definitions

    Section 3 defines ``wilderness area'' and ``map'', 
delineating the boundary of the Deep Creek-Yampatika Ute 
Wilderness Area as established by Section 4. It also defines 
``Secretary'' to include both the Secretary of Agriculture and 
the Secretary of the Interior.

Section 4. Deep Creek-Yampatika Ute Wilderness Area designation

    Section 4 delineates the approximate acreage of the 
wilderness area at 7,350 acres. The Committee notes that there 
are no private inholdings within the boundary of the area; 
however, the legislation does not preclude the Secretaries from 
purchasing private property abutting the wilderness area for 
the purpose of incorporating such property into the wilderness 
area, provided it meets wilderness designation criteria. Any 
additions to the wilderness area would require an act of 
Congress.
    Section 4 also describes a conditional mechanism under 
which the Secretaries will formally designate the wilderness 
area only after certain specified steps are taken to protect 
the instream flow values of Deep Creek. The intent of the 
mechanism is to ensure that the hydrology in the wilderness 
area is adequately protected by the Colorado State Instream 
Flow Program, through the Colorado Water Conservation Board, 
without a federal reserve water right, prior to the wilderness 
designation. The bill requires the Secretary of Agriculture to 
publish notice of the wilderness determination in the Federal 
Register as soon as practicable.

Section 5. Management

    Section 5 directs that the wilderness area be managed in 
accordance with the Wilderness Act (16 U.S.C. 1331 et seq.), 
the Federal Land Policy and Management Act of 1976 (43 
U.S.C.1701 et seq.), and other applicable law. The legislation 
withdrawals the wilderness area, subject to valid existing 
rights, from public land laws, mining laws, and mineral 
leasing, mineral materials, and geothermal leasing laws.
    Section 5(c) deals with the continued aerial navigation 
training maneuver exercises over and on the lands within the 
wilderness area by the Colorado Army National Guard for 
training exercises. This section recognizes the existence and 
continuation, as implemented and interpreted, of a Memorandum 
of Understanding (MOU) among Colorado Army National Guard, 
through the High Altitude ARNG Aviation Training Site, the 
Forest Service, and the Bureau of Land Management.
    Section (5)(c)(2) directs the parties to the MOU to review 
the agreement for continued operations and the associated 
operating plan not later than 180 days after the date of the 
enactment of this legislation, and annually thereafter. These 
provisions are intended to encourage the Colorado Army National 
Guard to identify areas outside of the wilderness area where 
the High Altitude ARNG Aviation Training Site could be 
relocated, subject to agreement of all parties to the MOU. The 
Committee recognizes that while aerial training exercises are a 
pre-existing use in the wilderness area--and that the 
Wilderness Act expressly allows for such pre-existing uses to 
continue following wilderness designation--the Committee 
supports the relocation of the training site if a suitable 
location is determined and agreed on.
    Section (5)(d) specifies that the Colorado Division of 
Wildlife shall have continued jurisdiction over hunting and 
fishing in the wilderness area. Sections (5)(e)(1) and 
(5)(e)(2) address grazing and allow for the issuance of grazing 
leases or permits in the wilderness area by the Secretaries in 
accordance with the Executive Orders followed for other lands 
under the jurisdiction of the Forest Service or the Bureau of 
Land Management. The Committee intends that existing grazing 
permits will continue.
    Section (5)(f) specifies that Congress does not intend the 
establishment of the wilderness area to create protective 
perimeters or buffer zones around the wilderness area. The 
Committee recognizes that recreational activities that would 
not be allowed in the wilderness area go on around the boundary 
of the designation. Nothing in H.R. 2963 is intended to affect 
the continuance of these activities.

Section 6. Water rights and management.

    Section 6 addresses water protection in the wilderness 
area. This section prohibits new or expanded water resource 
facilities within the wilderness area and modification of 
interstate compacts, and prohibits anyone from making a claim 
for an express or implied reservation of water or water rights 
based on enactment of this legislation.
    Section (6)(e)(1) deals with the stream flows within the 
wilderness area and directs the Secretary of Agriculture to 
consult with the Colorado Water Conservation Board regarding 
instream flow protection recommendations. This is in accordance 
with Colorado law and is not to be interpreted to permit more 
consultative authority to the Secretary of Agriculture than 
what currently exists. By also directing consultation with 
interested parties and elected officials, the Committee intends 
that input from several sources will result in the adequate 
protection of the natural hydrography. Section (6)(e)(2) 
restates current federal and Colorado State law by authorizing 
the Secretary and the Colorado Water Conservation Board to 
enter into enforcement agreements for monitoring and protecting 
instream flows to protect Deep Creek's natural values.
    Section (6)(e)(3)(A) is referenced in Section 4 where the 
conditional mechanism for the wilderness determination is 
described. In Section (6)(e)(3)(A), the Secretary of 
Agriculture is given authority to make a grant to the 
Department of Natural Resources to compensate willing parties 
for canceling or abandoning conditional water rights within or 
upstream to the wilderness area, or compensating willing 
parties for conveying absolute water rights within or upstream 
to the wilderness area to the Colorado Water Conservation Board 
for conversion to instream flows under Colorado law. Section 
(6)(e)(3)(B) establishes that compensation shall be given 
pursuant to an enforceable agreement between the Department of 
Natural Resources of the State of Colorado and the willing 
party. The fair market value shall be determined by an 
independent appraisal. Section (6)(e)(3)(C) authorizes an 
appropriation of $300,000 to be granted to the Colorado 
Department of Natural Resources for allocation to willing 
owners of the water rights described above to accomplish the 
intent of this section. The Committee recognizes this sectionas 
an innovative approach to protect the biological health of the Deep 
Creek waterway within the wilderness area.

Section 7. Map and legal description

    Section 7 directs that the map and legal description shall 
have the same force and effect as if included in the 
legislation, and that in case of discrepancy, the map is 
controlling.

Section 8. Wilderness potential

    Section 8 makes clear that this legislation does not 
preclude or restrict the authority of the Secretary of 
Agriculture to evaluate the suitability of roadless and 
unroaded areas adjacent to the wilderness area for inclusion in 
the National Wilderness Preservation System in the future. The 
Committee recognizes that the boundary as drawn around the 
canyon rim is sufficient at this time to protect Deep Creek's 
wilderness character. However, H.R. 2963 does not restrict the 
consideration of these roadless and unroaded areas around the 
canyon rim for wilderness designation in the future. The 
Committee finds that such designations may prove appropriate in 
the future, should support for such designations emerge within 
the affected agencies, locally elected officials, and 
interested citizens.

            committee oversight findings and recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Resources' oversight findings and recommendations 
are reflected in the body of this report.

                   constitutional authority statement

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    compliance with house rule xiii

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in tax 
expenditures. According to the Congressional Budget Office 
(CBO) enactment of H.R. 2963 could affect direct spending by 
withdrawing federal lands from leasing and development and thus 
any accompanying receipts. CBO concluded that any such change 
in receipts would be ``negligible''.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to establish the Deep Creek-Yampatika 
Ute Wilderness Area.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, April 9, 2002.
Hon. James V. Hansen,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2963, the Deep 
Creek-Yampatika Ute Wilderness Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Megan 
Carroll.
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

H.R. 2963--Deep Creek-Yampatika Ute Wilderness Act

    CBO estimates that H.R. 2963 would have no significant 
impact on the federal budget. The bill could affect direct 
spending; therefore, pay-as-you-go procedures would apply, but 
we estimate that any such impact would be negligible. H.R. 2963 
contains no intergovernmental or private-sector mandates as 
defined in the Unfunded Mandates Reform Act and would impose no 
costs on state, local, or tribal governments.
    H.R. 2963 would designate as wilderness approximately 7,350 
acres of federal lands located along Deep Creek in Colorado and 
administered by the Forest Service and the Bureau of Land 
Management (BLM). Lands within the proposed wilderness would be 
withdrawn from programs to develop mineral and geothermal 
resources. Before the designation would take effect, however, 
the Secretary of Agriculture would have to determine that 
certain water rights within or upstream of the proposed 
wilderness have been canceled or conveyed to the Colorado Water 
Conservation Board. H.R. 2963 would authorize the appropriation 
of $300,000 for a grant to Colorado to allow the state to 
compensate willing parties for canceling or conveying such 
rights.
    Based on information from the state of Colorado, CBO 
expects the proposed designation would take effect in 2003. 
Based on information from the Forest Service and BLM, we 
estimate that designating the lands as wilderness would not 
significantly affect the agencies' costs and that the grant 
authorized under H.R. 2963 would cost $300,000 in 2003, 
assuming the availability of appropriated funds. Withdrawing 
the lands from leasing and development could result in forgone 
offsetting receipts if, under current law, the lands would 
generate receipts from those activities. According to the 
Forest Service and BLM, however, the lands currently generate 
no significant receipts and are not expected to over the next 
10 years. Hence, we estimate that any changes in offsetting 
receipts under H.R. 2963 would be negligible.
    The CBO staff contact for this estimate is Megan Carroll. 
This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    This bill is not intended to preempt any State, local or 
tribal law.

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes in existing 
law.

                            DISSENTING VIEWS

    I regret that I cannot support H.R. 2963 as approved by the 
Committee on March 20th.
    I greatly appreciate the cooperative approach taken by the 
bill's sponsor, Representative McInnis. We have worked together 
to try to resolve the concerns of the Administration and other 
parties, and the bill as approved by the Committee is a great 
improvement over the bill as introduced.
    Nonetheless, the bill as reported still falls short not 
only of the best that could be achieved but also of what I 
think is necessary to merit support.
    The bill could and should be improved in several respects, 
including the total area to which it would apply and the extent 
to which it would address potential conflicts between 
wilderness designation and continued use of the area for aerial 
navigation and training. However, its most serious defect is 
the way in which it addresses threats to the water-related 
resources and values of the proposed wilderness.
    As approved by the Committee, the bill includes a provision 
delaying the effective date of the wilderness designation. The 
purpose of the delay is to allow the State of Colorado to 
resolve the threat that upstream water rights, if developed, 
could greatly reduce the water flowing through Deep Creek 
Canyon and so degrade the ecology of the area.
    I support that approach, because I think it is important to 
resolve this problem before the wilderness is designated--the 
same point that the Administration made in its testimony at the 
hearing on the bill back in October. I also support the idea of 
relying on Colorado water law, including a State-owned instream 
flow right, as a way to resolve this problem with respect to 
this area. But I cannot support the specific wilderness-
designation ``trigger'' included in section 4(c) of the bill as 
approved by the Committee.
    In effect, that part of the bill says that the water 
problem will be considered ``solved,'' and the ``trigger'' will 
be pulled for wilderness designation if either one of two 
things happen--either elimination (through voluntary 
cancellation or abandonment) of existing upstream water rights 
that threaten the future integrity of the proposed wilderness 
area; or a ``final determination'' by the Colorado Water 
Conservation Board ``regarding whether or not instream flow 
levels in Deep Creek are adequate.'' In other words, the 
problem would be considered ``solved'' any time that state 
agency decides one way or another about the adequacy of the 
stream flows--even if the decision is that the flows are not 
adequate, and without even spelling out what ``adequate'' 
means.
    I cannot support that because I think that just won't do 
the job. I don't think it would be accurate or appropriate to 
deem the problem solved and the threat to the wilderness 
removed solely because the state agency makes a determination--
especially since the determination could be that there is 
inadequate water flowing in Deep Creek.
    To remedy this fatal flaw, during the Committee's 
deliberations I proposed an amendment that would have replaced 
this defective ``trigger'' with one that would be pulled only 
when the water problem really was resolved. Under my amendment, 
the wilderness ``trigger'' would be pulled when both of two 
things happen--first, conditional upstream water rights are 
eliminated, and, second, the Colorado Water Conservation Board, 
under Colorado law, has obtained an instream flow right to all 
the water in the creek not now claimed by parties with senior 
rights.
    My amendment would have let the State solve the problem--
just like the bill as reported. It respected Colorado water 
law--just like the bill as reported. And it would not have 
provided for any federal water right or any federal action to 
force the state to act--just like the bill as reported.
    But, unlike the bill as reported, my amendment would have 
assured that wilderness status for this area will wait until 
there is a real solution and real, adequate protection--
protection under Colorado law--for its water resources. And 
without such protection, whether in the form of my amendment or 
in another form that does the job, I cannot support this 
legislation.
                                                        Mark Udall.

                                
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