[Senate Report 110-284]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 636
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-284

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



 
 GREAT SAND DUNES NATIONAL PARK AND PRESERVE ACT OF 2000 AMENDMENTS ACT

                                _______
                                

                 April 10, 2008.--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. 127]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 127) to amend the Great Sand Dunes 
National Park and Preserve Act of 2000 to explain the purpose 
and provide for the administration of the Baca National 
Wildlife Refuge, having considered the same, reports favorably 
thereon with an amendment and recommends that the bill, as 
amended, do pass.
    The amendment is as follows:
    On page 3, strike lines 12 through 14 and insert the 
following:
          ``(3) subject to any agreement in existence as of the 
        date of enactment of this paragraph, and to the extent 
        consistent with the purposes of the Refuge, use decreed 
        water rights on the Refuge in approximately the same 
        manner that the water rights have been used 
        historically.''.

                                Purpose

    The purpose of S. 127 is to amend the Great Sand Dunes 
National Park and Preserve Act of 2000 to explain the purpose 
and provide for the administration of the Baca National 
Wildlife Refuge.

                          Background and Need

    Public Law 106-530 required the Secretary of the Interior 
to establish the Great Sand Dunes National Park. In addition, 
the law required the Secretary, upon determining that 
sufficient land has been acquired to constitute an area that 
can be efficiently managed as a National Wildlife Refuge, to 
establish the Baca National Wildlife Refuge. Subsequently, in 
2004, the Secretary established the refuge.
    Although Public Law 106-530 gave the Secretary the 
authority to establish the refuge, it did not set forth 
specific purposes for doing so. It would be helpful to the Fish 
and Wildlife Service to have Congress enact such a provision so 
that it could guide management direction and a management plan.

                          Legislative History

    S. 127 was introduced by Senator Allard and Senator Salazar 
on January 4, 2007. Rep. Salazar introduced a companion measure 
in the House of Representatives (H.R. 1658) on March 22, 2007. 
The Subcommittee on National Parks held a hearing on S. 127 on 
September 11, 2007. (S. Hrg. 110-213.) The Committee on Energy 
and Natural Resources ordered it favorably reported on January 
30, 2008.

                        Committee Recommendation

    The Committee on Energy and Natural Resources, in open 
business session on January 30, 2008, by a voice vote of a 
quorum present, recommends that the Senate pass S. 127, if 
amended as described herein.

                          Committee Amendment

    During its consideration of S. 127, the Committee adopted 
an amendment to the bill. The amendment makes it clear that the 
provision in the bill requiring the Secretary, in administering 
water resources on the refuge, to use decreed water rights on 
the refuge in approximately the same manner that the water 
rights have been used historically, is subject to existing 
agreements and must be consistent with the purposes of the 
refuge.

                      Section-by-Section Analysis

    Section 1 amends section 6 of the Great Sand Dunes National 
Park and Preserve Act of 2000 by adding a purpose for the Baca 
National Wildlife Refuge. This section also requires the 
Secretary, in administering water resources on the refuge, to 
use decreed water rights on the refuge in approximately the 
same manner that the water rights have been used historically, 
subject to any agreement in existence and to the extent 
consistent with the purposes of the refuge.

                   Cost and Budgetary Considerations

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

S. 127--A bill to amend the Great Sand Dunes National Park and Preserve 
        Act of 2000 to explain the purpose and provide for the 
        administration of the Baca National Wildlife Refuge

    S. 127 would specify that the purpose of the Baca National 
Wildlife Refuge in Colorado is to restore and maintain habitats 
for native wildlife, plants, and fish in the San Luis Valley. 
The bill also would clarify that the Department of the Interior 
shall continue to use water rights for the refuge as it has in 
the past.
    CBO estimates that enacting S. 127 would have no effect on 
refuge operating costs or other discretionary spending because 
the legislation clarifies existing law and refuge practice. 
Enacting S. 127 would not affect direct spending or revenues.
    S. 127 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.
    The CBO staff contact for this estimate is Deborah Reis. 
This estimate was approved by Theresa Gullo, 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. 127. 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. 127, as ordered reported.

                   Congressionally Directed Spending

    S. 127, as reported, does not contain any congressionally 
directed spending items, limited tax benefits, or limited 
tariff benefits as defined by rule XLIV of the Standing Rules 
of the Senate.

                        Executive Communications

    The testimony provided by the National Park Service at the 
September 11, 2007 hearing follows:

 Statement of Daniel N. Wenk, Deputy Director, National Park Service, 
                       Department of the Interior

    Mr. Chairman and Members of the Subcommittee, thank you for 
the opportunity to testify today on behalf of the 
Administration on a number of bills.


s. 127 to amend the great sand dunes national park and preserve act of 
                                  2000


    S. 127 would amend the Great Sand Dunes National Park and 
Preserve Act of 2000 to explain the purpose and provide for the 
administration of the Baca National Wildlife Refuge in 
Colorado. The Administration supports this bill if amended. The 
bill amends earlier legislation by affirmatively establishing a 
purpose statement for the Refuge.
    The Fish and Wildlife Service is currently managing the 
refuge under a Conceptual Management Plan finalized in 2005. 
The Plan noted that the refuge's authorizing legislation did 
not state a purpose and proposed language similar to that of S. 
127. Specifically, S. 127 would explicitly define the purpose 
of the refuge as, ``. . . to restore, enhance, and maintain 
wetland, upland, riparian, and other habitats for native 
wildlife, plant, and fish species in the San Luis Valley.'' The 
Service would also be required to emphasize migratory bird 
conservation and manage the refuge in concert with broader 
landscape scale conservation efforts.
    The bill also includes a language requiring the Service to 
manage water on the refuge in approximately the same manner as 
has occurred historically. While this is the current intent of 
the Fish and Wildlife Service, such a requirement could be read 
to run counter to the purpose of the refuge and the 
sustainability of the wildlife, plant, and fish species and 
their habitat for which the refuge was established. As 
discussed below, for this reason we recommend a clarifying 
amendment to this language.


              background on baca national wildlife refuge


    The Baca National Wildlife Refuge is located in Saguache 
and Alamosa Counties in the San Luis Valley of south-central 
Colorado. The approved acquisition boundary includes 92,500 
acres of wetlands, desert shrub grasslands, and riparian lands 
and abuts lands managed by other conservation agencies and 
organizations, including the National Park Service, the U.S. 
Forest Service, and The Nature Conservancy. Other land features 
included within the refuge include stabilized sand dunes, 
intermittent streams, and approximately 20,000 acres of wetland 
basins, many of which are maintained through irrigation 
practices with decreed water rights. The refuge is administered 
as a unit of the San Luis Valley National Wildlife Refuge 
Complex, which includes the Alamosa and Monte Vista refuges, 
and other smaller units throughout the Valley.
    The refuge's wetlands are an integral part of a larger 
wetlands complex that constitutes the largest and most diverse 
assemblage of wetlands in the State of Colorado. Several bird 
species of conservation concern, such as White-faced ibis, rely 
on the Baca's wetlands for key foraging areas during the 
breeding season. Waterfowl and other water birds heavily 
utilize wetlands and other habitats on the refuge at various 
times of year, especially during the nesting season. Native 
fish species, including a recently discovered population of Rio 
Grande chub, which is listed by the State of Colorado as 
species of concern, and the Rio Grande sucker, listed by the 
State as endangered, live on the refuge in small streams 
draining from the Sangre de Cristo Range. Elk, mule deer, and 
pronghorn also use the refuge.
    To date, the Service has acquired 57,000 acres of fee-title 
land, and, in cooperation with neighboring landowners, is 
managing an additional 27,000 acres within the acquisition 
boundary.
    The refuge was authorized by Congress in 2000 as part of 
the larger creation of the Great Sand Dunes National Park and 
Preserve. While Congress did direct the Secretary of the 
Interior, acting through the Service, to administer the refuge 
in accordance with the National Wildlife Refuge System 
Administration Act of 1966 and the Refuge Recreation Act of 
1962, and specified certain water management requirements, no 
formal purpose for the refuge was provided.
    Typically, national wildlife refuges, when established by 
Congress or by Executive action, are assigned a primary purpose 
that gives the Service clear management direction for the 
refuge. For example, many refuges have as their purpose the 
conservation of migratory birds. Others were established 
primarily for big game, or the conservation of species 
protected by the Endangered Species Act. In recent years, an 
increasing number of refuges have been established in urban 
areas to promote environmental education. Numerous refuges have 
multiple purposes.
    It is important to note that these primary purposes do not 
necessarily preclude other management activities, including 
public use. Rather, they give refuge managers a framework for 
planning and implementing management activities, including 
long-range conservation planning to compatibility 
determinations, both of which were key provisions of the 1997 
amendments to the 1966 Refuge Administration Act.
    Designating purposes for the Baca National Wildlife Refuge 
is also necessary because the refuge is part of a larger public 
lands complex, comprised of multiple federal jurisdictions, 
which is in turn situated on a landscape with diverse land 
ownership status. Because refuges, by definition, are unique in 
their ``wildlife first'' approach to land management, it is 
important for the Service to be able to communicate with other 
area landowners, both public and private, as well as the 
general public about the purposes for which the Service will 
manage the Baca, as well as the overarching mission of the 
National Wildlife Refuge System.


                         water use requirement


    The only change the Administration recommends to the bill 
as currently written does not involve the purpose statement of 
the refuge but the provision at section 1(3), which would 
require the Secretary of Interior, in administering water 
resources on the refuge to ``use decreed water rights on the 
Refuge in approximately the same manner that the water rights 
have been used historically.'' As noted above, historically, 
water has been used to irrigate lands now included in the Baca 
National Wildlife Refuge. The Service expects to continue to 
manage the land in such a fashion, however, the document that 
will guide the future of the refuge is a Comprehensive 
Conservation Plan (CCP). While this plan will not be finished 
for a number of years, the refuge will be operating under the 
current Plan and provide for ``compatible'' uses as provided by 
the National Wildlife Refuge System Improvement Act. The 
requirement of S. 127 to use ``decreed water in approximately 
the same manner'' as it has been used historically could 
restrict the options for future management actions available to 
the Service in developing the CCP.
    Additionally, there is a pre-existing water service 
agreement between the Service and the Baca Grande Water and 
Sanitation District associated with the refuge. This agreement 
obligates the Service to lease up to 4,000 acre-feet of water 
rights--which the Service acquired along with the refuge--to 
the District. Currently, there are several wells on the refuge 
that are decreed for irrigation. Under the terms of the 
agreement, if the District requests the full amount of water to 
which they are entitled, the Service will need to change the 
decreed use of these wells from irrigation to municipal to 
fulfill the District's request. Because the Service must file 
in State water court to change the decreed use of these wells 
from irrigation to municipal, we wish to avoid any potential 
conflict between 5.127 and future state water court 
proceedings.
    For these reasons, we recommend amending the bill to 
include the following italicized language:
          (3) in subsection (d)--
                  (A) in paragraph (1), by striking ``and'' at 
                the end;
                  (B) in paragraph (2), by striking the period 
                at the end and inserting ``; and''; and
                  (C) by adding at the end the following:
          ``(3) subject to existing agreements and to the 
        extent it does not interfere with refuge purposes, use 
        decreed water rights on the Refuge in approximately the 
        same manner that the water rights have been used 
        historically.''.
    Mr. Chairman and Members of the Subcommittee, this 
concludes my prepared testimony on S. 127. I would like to 
extend our appreciation to you and the rest of the 
Subcommittee, especially Senator Salazar, for your leadership 
and support for the National Wildlife Refuge System and for 
landscape conservation efforts in the San Luis Valley. I would 
be happy to respond to any questions 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. 127 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):

        GREAT SAND DUNES NATIONAL PARK AND PRESERVE ACT OF 2000


                          (Public Law 106-530)


    AN ACT To provide for the establishment of the Great Sand Dunes 
National Park and Preserve and the Baca National Wildlife Refuge in the 
               State of Colorado, and for other purposes.

    Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Great Sand Dunes National 
Park and Preserve Act of 2000.''

           *       *       *       *       *       *       *


SEC. 6. BACA NATIONAL WILDLIFE REFUGE, COLORADO.

    [(a) Establishment.--(1) When] (a) Establishment and 
Purpose._
          (1) Establishment._
                  (A) In general._When the Secretary determines 
                that sufficient land has been acquired to 
                constitute an area that can be efficiently 
                managed as a National Wildlife Refuge, the 
                Secretary shall establish the Baca National 
                Wildlife Refuge, as generally depicted on the 
                map.
          [(2) Such establishment] (B) Effective date._The 
        establishment of the refuge under subparagraph (A) 
        shall be effective upon publication of a notice of the 
        Secretary's determination in the Federal Register.
          (2) Purpose._The purpose of the Baca National 
        Wildlife Refuge shall be to restore, enhance, and 
        maintain wetland, upland, riparian, and other habitats 
        for native wildlife, plant, and fish species in the San 
        Luis Valley.
    (b) Availability of Map.--The map shall be on file and 
available for public inspection in the appropriate offices of 
the United States Fish and Wildlife Service.
    (c) Administration.--[The Secretary] (1) In general.--The 
Secretary shall administer all lands and interests therein 
acquired within the boundaries of the national wildlife refuge 
in accordance with the National Wildlife Refuge System 
Administration Act of 1966 (16 U.S.C. 668dd et seq.) and the 
Act of September 28, 1962 (16 U.S.C. 460k et seq.) (commonly 
known as the Refuge Recreation Act).
    (2) Requirements.--In administering the Baca National 
Wildlife Refuge, the Secretary shall, to the maximum extent 
practicable--
          (A) emphasize migratory bird conservation; and
          (B) take into consideration the role of the Refuge in 
        broader landscape conservation efforts.
    (d) Protection of Water Resources.--In administering water 
resources for the national wildlife refuge, the Secretary 
shall--
          (1) protect and maintain irrigation water rights 
        necessary for the protection of monument, park, 
        preserve, and refuge resources and uses; [and]
          (2) minimize, to the extent consistent with the 
        protection of national wildlife refuge resources, 
        adverse impacts on other water users[.]; and
          (3) subject to any agreement in existence as of the 
        date of enactment of this paragraph, and to the extent 
        consistent with the purposes of the Refuge, use decreed 
        water rights on the Refuge in approximately the same 
        manner that the water rights have been used 
        historically.

           *       *       *       *       *       *       *


                                  
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