[Senate Report 110-23]
[From the U.S. Government Publishing Office]



                                                        Calendar No. 49
110th Congress                                                   Report
                                 SENATE
 1st Session                                                     110-23

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



 
    WALLOWA LAKE DAM REHABILITATION AND WATER MANAGEMENT ACT OF 2007

                                _______
                                

               February 16, 2007.--Ordered to be printed

                                _______
                                

   Mr. Bingaman, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 264]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 264) to authorize the Bureau of 
Reclamation to participate in the rehabilitation of the Wallowa 
Lake Dam in Oregon, and for other purposes, having considered 
the same, reports favorably thereon with an amendment and 
recommends that the bill, as amended, do pass.
    Strike out all after the enacting clause and insert inlieu 
thereof the following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Wallowa Lake Dam Rehabilitation and 
Water Management Act of 2007''.

SEC. 2. DEFINITIONS.

  In this Act:
          (1) Associated ditch companies, incorporated.--The term 
        ``Associated Ditch Companies, Incorporated'' means the 
        nonprofit corporation established under the laws of the State 
        of Oregon that operates Wallowa Lake Dam.
          (2) Secretary.--The term ``Secretary'' means the Secretary of 
        the Interior, acting through the Commissioner of Reclamation.
          (3) Wallowa lake dam rehabilitation program.--The term 
        ``Wallowa Lake Dam Rehabilitation Program'' means the program 
        for the rehabilitation of the Wallowa Lake Dam in Oregon, as 
        contained in the engineering document entitled, ``Phase I Dam 
        Assessment and Preliminary Engineering Design'', dated December 
        2002, and on file with the Bureau of Reclamation.

SEC. 3. AUTHORIZATION TO PARTICIPATE IN PROGRAM.

  (a) Grants and Cooperative Agreements.--The Secretary may provide 
grants to, or enter into cooperative or other agreements with, tribal, 
State, and local governmental entities and the Associated Ditch 
Companies, Incorporated, to plan, design, and construct facilities 
needed to implement the Wallowa Lake Dam Rehabilitation Program.
  (b) Conditions.--As a condition of providing funds under subsection 
(a), the Secretary shall ensure that--
          (1) the Wallowa Lake Dam Rehabilitation Program and any 
        activities under this Act meet the standards of the dam safety 
        program of the State of Oregon;
          (2) the Associated Ditch Companies, Incorporated, agrees to 
        assume liability for any work performed, or supervised, with 
        Federal funds provided to Associated Ditch Companies, 
        Incorporated, under this Act; and
          (3) the United States shall not be liable for damages of any 
        kind arising out of any act, omission, or occurrence relating 
        to a facility rehabilitated or constructed with Federal funds 
        provided under this Act, regardless of whether the damages 
        arose during or after the rehabilitation or construction.
  (c) Cost Sharing.--
          (1) In general.--The Federal share of the costs of activities 
        authorized under this Act shall not exceed 50 percent.
          (2) Exclusions from federal share.--There shall not be 
        credited against the Federal share of the costs of activities 
        authorized under this Act--
                  (A) any expenditure by the Bonneville Power 
                Administration in the Wallowa River watershed; and
                  (B) expenditures made by individual agricultural 
                producers in any Federal commodity or conservation 
                program.
  (d) Compliance With State Law.--In carrying out this Act, the 
Secretary shall comply with applicable Oregon State water law.
  (e) Prohibition on Holding Title.--The Federal Government shall not 
hold title to any facility rehabilitated or constructed under this Act.
  (f) Prohibition on Operation and Maintenance.--The Federal Government 
shall not be responsible for the operation and maintenance of any 
facility constructed or rehabilitated under this Act.

SEC. 4. RELATIONSHIP TO OTHER LAW.

  Activities funded under this Act shall not be considered a 
supplemental or additional benefit under Federal reclamation law (the 
Act of June 17, 1902 (32 Stat. 388, chapter 1093), and Acts 
supplemental to and amendatory of that Act (43 U.S.C. 371 et seq.)).

SEC. 5. AUTHORIZATION OF APPROPRIATIONS.

  There is authorized to be appropriated to the Secretary to pay the 
Federal share of the costs of activities authorized under this Act 
$6,000,000.

SEC. 6. TERMINATION OF AUTHORITY.

  The authority of the Secretary to carry out any provisions of this 
Act shall terminate 10 years after the date of enactment of this Act.

                                PURPOSE

    The purpose of S. 264 is to authorize the Bureau of 
Reclamation to participate in the rehabilitation of the Wallowa 
Lake Dam in Oregon.

                          BACKGROUND AND NEED

    Wallowa Lake Dam is a privately owned dam constructed in 
1918 and raised in 1929. It is owned and operated by the 
Associated Ditch Companies, Inc. (ADC). Dam safety deficiencies 
have been identified by the U.S. Army Corps of Engineers and 
the Oregon Water Resources Department, causing the reservoir to 
be held below full pool elevation since 1996. ADC, in 
conjunction with the Grande Ronde Model Watershed Council, the 
Bureau of Reclamation, and other local, State, and Federal 
agencies developed the Wallowa Lake Dam Rehabilitation and 
Water Management Program to address dam safety deficiencies and 
to tie correction of those deficiencies to larger environmental 
issues in the Wallowa River Basin.
    S. 264 authorizes the Secretary of the Interior, acting 
through the Commissioner of Reclamation, to participate in the 
Wallowa Lake Dam Rehabilitation Program in cooperation with 
ADC. The Wallowa Lake Dam Rehabilitation Program, as described 
in the February 2001 Vision Statement, focuses on planning, 
designing, and constructing recommended improvements to Wallowa 
Lake Dam. When this phase is completed, ADC will be able to 
raise pool levels and work closely with the Oregon State Parks 
Department to assess the impact on nearby park facilities.

                          LEGISLATIVE HISTORY

    S. 264 was introduced on January 11, 2007 by Senator Smith 
for himself and Senator Wyden and referred to the Committee on 
Energy and Natural Resources. At its business meeting on 
January 31, 2007, the Committee on Energy and Natural Resources 
ordered S. 264 favorably reported with an amendment in the 
nature of a substitute.
    During the 109th Congress, the Committee considered similar 
legislation, S. 231, introduced by Senator Smith on February 1, 
2005. Senator Wyden was a co-sponsor. At the business meeting 
on February 9, 2005, the Committee ordered S. 231 favorably 
reported. S. Rept. 109-30. S. 231 passed the Senate, by 
unanimous consent, on July 26, 2005. No further action occurred 
on S. 231 prior to the sine die adjournment of the 109th 
Congress. A measure similar to the amended version of S. 264, 
section 3 of H.R. 5079, was considered by the House of 
Representatives under suspension of the rules and passed by a 
voice vote on September 25, 2006.
    The Committee also considered similar legislation in the 
108th Congress, S. 1355, introduced by Senator Smith on June 
26, 2003. Senator Wyden was a co-sponsor. The Subcommittee on 
Water and Power held a hearing on S. 1355 on October 15, 2003. 
S. Hrg. 108-271. The Committee ordered the bill favorably 
reported with amendments on March 10, 2004. S. Rept. 108-250. 
S. 1355 passed by the Senate, by unanimous consent, on 
September 15, 2004.

                        COMMITTEE RECOMMENDATION

    The Senate Committee on Energy and Natural Resources, in 
open business session on January 31, 2007, by voice vote of a 
quorum present, recommends that the Senate pass S. 264, if 
amended as described herein.

                          COMMITTEE AMENDMENT

    During the consideration of S. 264, the Committee adopted 
an amendment in the nature of a substitute. The amendment 
addresses concerns that were raised by the Administration in 
previous testimony and conforms the text of the bill to the 
text of section 3 of H.R. 5079 which passed the House of 
Representatives during the 109th Congress. The amendment is 
explained in detail in the section-by-section analysis, below.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 provides the short title.
    Section 2 defines key terms used in the bill.
    Section 3(a) authorizes the Secretary to provide grants or 
enter into cooperative or other agreements with tribal, State, 
and local governmental entities and the ADC, to plan, design, 
and construct facilities needed to implement the Wallowa Lake 
Dam Rehabilitation Program.
    The Committee recognizes that this bill, by authorizing the 
Bureau of Reclamation to provide grant money for the 
rehabilitation of the Wallowa provides a unique, cost-effective 
means of enhancing flood control protection for downstream 
communities, and assisting with re-establishing a fishery for 
the Nez Perce Tribe. Rehabilitation of the dam will also 
provide for additional water storage.
    With the ability to fill the lake to a higher elevation, 
the water rights holders, pursuant to a Wallowa Valley Water 
Management Plan have agreed to make an additional 4,300 acre-
feet of water available each year, in accordance with State 
water law. This will help the Nez Perce Tribe, which shares 
management responsibility with the Federal Government of 
certain fish resources, restore sockeye and coho salmon passage 
at the dam, and provide for a downstream water exchange. It 
will also aid in resolving issues related to Federally-listed 
salmon runs. The Committee notes that these circumstances are 
unique and the Committee does not intend this legislation to 
set precedent for Federal assistance to private projects.
    Section 3(b) requires the Secretary, as a condition of 
providing funds, to ensure that (1) the program meet the 
standards of the dam safety program in the State of Oregon; (2) 
ADC assumes liability for work performed or supervised with 
funds provided to it under this Act; and (3) the United States 
shall not be liable for damages arising out of any act, 
omission, or occurrence, relating to a facility rehabilitated 
or constructed under this Act.
    Section 3(c) limits the Federal share of the cost of 
activities authorized in this Act to 50 percent; and excludes 
certain expenditures from being credited against the Federal 
cost share.
    Section 3(d) requires the Secretary to comply with Oregon 
State water law.
    Section 3(e) prohibits the Federal Government from holding 
title to any facility rehabilitated or constructed under this 
Act.
    Section 3(f) provides that the Federal Government is not 
responsible for the operation and maintenance of any facility 
constructed or rehabilitated under this Act.
    Section 4 states that activities funded under this Act 
shall not be considered a supplemental or additional benefit 
under Federal reclamation law.
    Section 5 authorizes $6 million in appropriations for the 
Federal cost share.
    Section 6 sunsets the authority provided by the Act after 
10 years.

                   COST AND BUDGETARY CONSIDERATIONS

    The following estimate of costs of this measure has been 
provided by the Congressional Budget Office:

S. 264--Wallowa Lake Dam Rehabilitation and Water Management Act of 
        2007

    Summary: S. 264 would authorize the appropriation of $6 
million for the Bureau of Reclamation's contribution to the 
rehabilitation of the Wallowa Lake Dam. Implementing S. 264 
would cost $6 million over the 2008-2012 period. Enacting the 
legislation would not affect direct spending or revenues.
    S. 264 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.
    Estimated cost to the Federal Government: For this 
estimate, CBO assumes that this bill will be enacted near the 
end of 2007, that $2 million will be provided each year over 
the 2008-2010 period, and that outlays will follow the 
historical spending pattern for similar activities. 
Appropriation of the authorized amount would result in 
discretionary spending of $6 million over the 2008-2011 period. 
The estimated budgetary impact of S. 264 is shown in the 
following table. The costs of this legislation fall within 
budget function 300 (natural resources and environment).

------------------------------------------------------------------------
                                      By fiscal year, in millions of
                                                 dollars--
                                 ---------------------------------------
                                   2008    2009    2010    2011    2012
------------------------------------------------------------------------
              CHANGES TO SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level...       2       2       2       0       0
Estimated Outlays...............       1       2       2       1       0
------------------------------------------------------------------------

    Intergovernmental and private-sector impact: S. 264 
contains no intergovernmental or private-sector mandates as 
defined in the UMRA and would impose no costs on state, local, 
or tribal governments.
    Estimate prepared by: Federal Costs: Julie Middleton; 
Impact on State, Local, and Tribal Governments: Lisa Ramirez-
Branum; Impact on the Private Sector: Craig Cammarata.
    Estimate approved by: Peter H. Fontaine, 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 S. 264. 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. 264.

                        EXECUTIVE COMMUNICATIONS

    Because S. 264 is similar to legislation considered during 
the 109th and 108th Congresses, the Committee did not request 
Executive Agency views. The testimony provided by the Bureau of 
Reclamation at the Subcommittee hearing on S. 1355 in the 108th 
Congress follows:

 Statement of John W. Keys, III, Commissioner, Bureau of Reclamation, 
                       Department of the Interior

    Mr. Chairman and Members of the Subcommittee I am John 
Keys, Commissioner of the Bureau of Reclamation. I appreciate 
the opportunity to present the Department's views on S. 1355, a 
bill that would authorize Reclamation to participate in 
implementation of the Wallowa Lake Dam Rehabilitation Program 
and Wallowa Valley Water Management Plan in Oregon. Reclamation 
believes the Wallowa Lake Dam Rehabilitation Program and 
Wallowa Valley Water Management Plan are potentially 
worthwhile, with numerous benefits. While we believe there may 
be merit to this proposed project, the Department does not 
support S. 1355, as currently drafted.
    Wallowa Lake Dam is a privately-owned dam constructed in 
1918 and raised in 1929, and is owned and operated by the 
Associated Ditch Companies, Inc. (ADC). Dam safety deficiencies 
have been identified by the United States Army Corps of 
Engineers and Oregon Water Resources Department. ADC, in 
conjunction with the Grande Ronde Model Watershed, Reclamation, 
and other local, state, and Federal agencies, developed the 
Wallowa Lake Dam Rehabilitation Program to address dam safety 
deficiencies and developed the Wallowa Valley Water Management 
Plan to tie correction of those deficiencies to larger 
environmental issues in the Wallowa River Basin. The Dam 
Rehabilitation Program and Water Management Plan is a six year 
proposal with an estimated total cost of $38,800,000. S. 1355 
sets out an 80/20 cost share for these efforts, under which the 
Federal government would pay $32 million funded through the 
Bureau of Reclamation.
    While the programs developed by the ACD and the Model 
Watershed provide a concept, they do not meet Federal standards 
established in the Principals and Guidelines for planning water 
development programs. Furthermore, the project may affect 
species listed under the Endangered Species Act (ESA). Should 
Reclamation be authorized to fund this project, a funding 
decision may constitute a major Federal action subject to 
consultation under Section 7 of the ESA. It would also require 
environmental analysis in compliance with the National 
Environmental Policy Act (NEPA). The bill, as currently 
drafted, does not provide for Reclamation's participation in 
the planning stages of the dam rehabilitation aspects of the 
project and separates dam rehabilitation from implementation of 
the water management plan. Consequently, it would be difficult 
for Reclamation to meet the environmental compliance 
requirements for the ESA and NEPA. Until adequate planning can 
be completed, the Administration cannot support funding this 
project.
    The proposed bill would authorize Reclamation to provide 
funding to the ADC for dam rehabilitation activities, [nit] 
however, it does not provide administrative authority to 
transfer those funds. The legislation would need revision to 
provide Reclamation authority to issue grants. We would be 
pleased to work with the Committee in developing appropriate 
language.
    Finally, we are concerned that Reclamation's participation 
in this program would adversely impact ongoing projects and 
operations. S. 1355 would authorize the use of Reclamation 
funds for a non-Federal purpose. Reclamation funds are limited 
and are targeted to perform essential functions at our 
projects, such as security, operations and maintenance (O&M), 
resource management, dam safety, and construction. In addition, 
despite the very high Federal cost share for the project under 
S. 1355, there is no provision for repayment by project 
beneficiaries in accordance with Reclamation law. Funding for 
this project was not included in the President's budget, and we 
can not support activities which detract from high priority 
work on current Bureau of Reclamation facilities. The 
Department cannot, therefore, support S. 1355.
    Thank you again for the opportunity to provide the 
Administration's position on S. 1355. I would be happy to 
answer any questions you 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 bill S. 264 as ordered 
reported.

                                  
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