[Senate Report 111-277]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 547
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-277

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                 IDAHO WILDERNESS WATER FACILITIES ACT

                                _______
                                

                 August 5, 2010.--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 H.R. 4474]

    The Committee on Energy and Natural Resources, to which was 
referred the Act (H.R. 4474) to authorize the continued use of 
certain water diversions located on National Forest System land 
in the Frank Church-River of No Return Wilderness and the 
Selway-Bitterroot Wilderness in the State of Idaho, and for 
other purposes, having considered the same, reports favorably 
thereon without amendment and recommends that the Act do pass.

                                PURPOSE

    The purpose of H.R. 4474 is to authorize the Secretary of 
Agriculture to issue a special use authorization to each of 20 
owners of twenty water storage, transport, or diversion 
facilities that are located on National Forest System land in 
the Frank Church-River of No Return Wilderness and the Selway-
Bitterroot Wilderness in the State of Idaho, to allow for the 
continued use of those facilities.

                          BACKGROUND AND NEED

    The Selway-Bitterroot Wilderness and the adjacent Frank 
Church-River of No Return Wilderness are two large National 
Forest wilderness areas in the State of Idaho. Located within 
both wilderness areas are several small water facilities, 
including facilities for hydropower development, irrigation, 
and domestic water uses. These facilities are privately 
operated and predate the establishment of the Selway-Bitterroot 
Wilderness in 1964 and the Frank Church-River of No Return 
Wilderness in 1980.
    In order to clarify that the owners of these water 
facilities can continue to operate and maintain them within the 
wilderness areas, H.R. 4474 authorizes the Secretary of 
Agriculture to issue special use permits for those facilities 
if certain conditions are met.

                          LEGISLATIVE HISTORY

    H.R. 4474, sponsored by Representatives Minnick and 
Simpson, passed the House of Representatives by a vote of 415-0 
on January 27, 2010. Companion legislation, S. 2966, was 
introduced on January 28, 2010 by Senators Risch and Crapo.
    The Subcommittee on Public Lands and Forests held a hearing 
on H.R. 4474 and S. 2966 on March 10, 2010. The Committee on 
Energy and Natural Resources considered the bill at its 
business meeting on June 16, 2010, and ordered H.R. 4474 
favorably reported without amendment at its business meeting on 
June 21, 2010.

                        COMMITTEE RECOMMENDATION

    The Committee on Energy and Natural Resources, in open 
business session on June 21, 2010, by a voice vote of a quorum 
present, recommends that the Senate pass H.R. 4474.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 provides the short title, the ``Idaho Wilderness 
Water Facilities Act.''
    Section 2(a) authorizes the Secretary of Agriculture to 
issue a special use authorization to each of the twenty owners 
of a water storage, transport, or diversion facility located on 
National Forest System land in the Frank Church-River of No 
Return Wilderness and the Selway-Bitterroot Wilderness if 
certain conditions are met. The conditions that must be met 
include a finding that the water facility predated the 
establishment of the wilderness, that it has been in 
substantially continuous use since that time, that the operator 
holds a valid water right for the facility under Idaho State 
law, and that it would not be practical to relocate the 
facility outside of the wilderness area.
    Subsection (b) authorizes the Secretary, under the special 
use authorizations, to allow the use of motorized equipment and 
mechanized transport necessary for the facilities' operations. 
It also authorizes the Secretary to require the facilities to 
be modified or relocated in order to reduce impacts to the 
wilderness if the beneficial use of water is not impacted. 
Finally, it requires that the owners provide reciprocal right-
of-way access across their properties provided they receive 
market value, paid by the Secretary, by granting a reciprocal 
right-of-way, a reduction of fees, or both.

                   COST AND BUDGETARY CONSIDERATIONS

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

H.R. 4474--Idaho Wilderness Water Facilities Act

    H.R. 4474 would authorize the Secretary of Agriculture to 
issue special permits for continued use of historic water 
diversions for those with valid water rights in the Frank 
Church-River of No Return Wilderness and the Selway-Bitterroot 
Wilderness of Idaho. Based on information from the Forest 
Service, CBO estimates that enacting H.R. 4474 would increase 
direct spending to process the permits and associated 
offsetting receipts from permit applications; therefore, pay-
as-you-go procedures would apply. CBO estimates, however, that 
any net direct spending would be negligible in each year.
    Currently, there are around 25 water diversion facilities 
located in those wilderness areas. Although owners of the water 
facilities have the authority to maintain the facilities, they 
cannot replace facilities or make major repairs without 
obtaining a special-use permit. The bill would authorize the 
Forest Service to issue such special use permits.
    H.R. 4474 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.
    On January 13, 2010, CBO transmitted a cost estimate for 
H.R. 3538, the Idaho Wilderness Water Facilities Act, as 
ordered reported by the House Committee on Natural Resources on 
December 16, 2009. The two pieces of legislation are similar, 
and CBO's estimated costs are the same.
    The CBO staff contact for this estimate is Aurora Swanson. 
The estimate was approved by Peter H. Fontaine, Assistant 
Director for Budget Analysis.

                      REGULATORY IMPACT EVALUTION

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out H.R. 4474.
    The Act is not a regulatory measure in the sense of 
imposing Government-established standards or significant 
economic responsibilities on private individuals and 
businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of H.R. 4474, as ordered reported.

                   CONGRESSIONALLY DIRECTED SPENDING

    H.R. 4474, as ordered reported, does not contain any 
congressionally directed spending items, limited tax benefits, 
or limited tariff benefits as defined in rule XLIV of the 
Standing Rules of the Senate.

                        EXECUTIVE COMMUNICATIONS

    The testimony provided by the Forest Service at the March 
10, 2010 Subcommittee hearing on H.R. 4474 follows:

  Statement of Harris Sherman, Undersecretary, Natural Resources and 
                 Environment, Department of Agriculture

    Mr. Chairman, Members of the Committee, thank you for the 
opportunity to share the Administration's views on S. 2966, the 
Idaho Wilderness Water Facilities Act.
    The U.S. Forest Service supports S. 2966. The bill 
authorizes the issuance of a special use permit for the 
continued use of water storage, transport, or diversion 
facility located on National Forest System lands in the Frank 
Church-River of No Return Wilderness and the Selway-Bitterroot 
Wilderness in Idaho. The permits will only be issued to the 
water system owners of the water systems identified on the two 
maps accompanying S. 2966, and if certain conditions are met.
    Currently, there are over 20 water developments within the 
Frank Church-River of No Return and Selway-Bitterroot 
Wilderness Areas that predate establishment of the wilderness, 
in some cases by decades.
    These developments include hydropower developments, 
irrigation, and domestic water uses. The legislation 
establishing both wilderness areas did not address these pre-
existing water developments. S. 2966 would direct the Forest 
Service to issue special use authorizations, if the Secretary 
makes the following determinations: the facility was in 
existence when the wilderness area on which the facility is 
located was designated as part of the National Wilderness 
Preservation System; the facility has been in substantially 
continuous use to deliver water for the beneficial use on the 
owner's non-Federal land since the date of designation; the 
owner of the facility has a valid water right for use of the 
water on the owner's non-Federal land under Idaho State law, 
with a priority date that pre-dates the date of designation; 
and it is not practicable or feasible to relocate the facility 
outside the wilderness and achieve the continued beneficial use 
of water on non-Federal land. We understand that the bill does 
not create any rights beyond what is provided in the special 
use permit and that both maintenance responsibilities and 
liabilities continue with the permit holder, and not the 
Federal government.
    This concludes my prepared statement on S. 2966 and I would 
be pleased to answer any questions you may have.


                        changes in existing law


    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that no 
changes in existing law are made by the Act H.R. 4474, as 
ordered reported.

                                  
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