[House Report 112-438]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 112-438
======================================================================
CENTRAL OREGON JOBS AND WATER SECURITY ACT
_______
April 16, 2012.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Hastings of Washington, from the Committee on Natural Resources,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2060]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred the
bill (H.R. 2060) to amend the Wild and Scenic Rivers Act to
adjust the Crooked River boundary, to provide water certainty
for the City of Prineville, Oregon, and for other purposes,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Central Oregon Jobs and Water Security
Act''.
SEC. 2. WILD AND SCENIC RIVER; CROOKED, OREGON.
Section 3(a)(72) of the Wild and Scenic Rivers Act (16 U.S.C.
1274(a)(72)) is amended as follows:
(1) By striking ``15-mile'' and inserting ``14.75-mile''.
(2) In subparagraph (B)--
(A) by striking ``8-mile'' and all that follows
through ``Bowman Dam'' and inserting ``7.75-mile
segment from a point one-quarter mile downstream from
the toe of Bowman Dam''; and
(B) by adding at the end the following: ``The
developer for any hydropower development, including
turbines and appurtenant facilities, at Bowman Dam, in
consultation with the Bureau of Land Management, shall
analyze any impacts to the Outstandingly Remarkable
Values of the Wild and Scenic River that may be caused
by such development, including the future need to
undertake routine and emergency repairs, and shall
propose mitigation for any impacts as part of any
license application submitted to the Federal Energy
Regulatory Commission.''.
SEC. 3. CITY OF PRINEVILLE WATER SUPPLY.
Section 4 of the Act of August 6, 1956 (70 Stat. 1058), (as amended
by the Acts of September 14, 1959 (73 Stat. 554), and September 18,
1964 (78 Stat. 954)) is further amended as follows:
(1) By striking ``ten cubic feet'' the first place it appears
and inserting ``17 cubic feet''.
(2) By striking ``during those months when there is no other
discharge therefrom, but this release may be reduced for brief
temporary periods by the Secretary whenever he may find that
release of the full ten cubic feet per second is harmful to the
primary purpose of the project''.
(3) By adding at the end the following: ``Without further
action by the Secretary, and as determined necessary for any
given year by the City of Prineville, up to seven of the 17
cubic feet per second minimum release shall also serve as
mitigation for City of Prineville groundwater pumping, pursuant
to and in a manner consistent with Oregon State law, including
any shaping of the release of the up to seven cubic feet per
second to coincide with City of Prineville groundwater pumping
as may be required by the State of Oregon. As such, the
Secretary is authorized to make applications to the State of
Oregon in conjunction with the City to protect these supplies
instream. The City shall make payment to the Secretary for that
portion of the minimum release that actually serves as
mitigation pursuant to Oregon State law for the City in any
given year, with the payment for any given year equal to the
amount of mitigation in acre feet required to offset actual
City groundwater pumping for that year in accordance with
Reclamation `Water and Related Contract and Repayment
Principles and Requirements', Reclamation Manual Directives and
Standards PEC 05-01, dated 09/12/2006, and guided by `Economic
and Environmental Principles and Guidelines for Water and
Related Land Resources Implementation Studies', dated March 10,
1983. The Secretary is authorized to contract exclusively with
the City for additional amounts in the future at the request of
the City.''.
SEC. 4. FIRST FILL PROTECTION.
The Act of August 6, 1956 (70 Stat. 1058), as amended by the Acts of
September 14, 1959 (73 Stat. 554), and September 18, 1964 (78 Stat.
954), is further amended by adding at the end the following:
``Sec. 6. Other than the 17 cubic feet per second release provided
for in section 4, and subject to compliance with the Army Corps of
Engineers' flood curve requirements, the Secretary shall, on a `first
fill' priority basis, store in and release from Prineville Reservoir,
whether from carryover, infill, or a combination thereof, the
following:
``(1) 68,273 acre feet of water annually to fulfill all 16
Bureau of Reclamation contracts existing as of January 1, 2011,
and up to 2,740 acre feet of water annually to supply the McKay
Creek lands as provided for in section 5 of this Act.
``(2) Not more than 10,000 acre feet of water annually, to be
made available to the North Unit Irrigation District pursuant
to a Temporary Water Service Contract, upon the request of the
North Unit Irrigation District, consistent with the same terms
and conditions as prior such contracts between the District and
the Bureau of Reclamation.
``Sec. 7. Except as otherwise provided in this Act, nothing in this
Act--
``(1) modifies contractual rights that may exist between
contractors and the United States under Reclamation contracts;
``(2) amends or reopens contracts referred to in paragraph
(1); or
``(3) modifies any rights, obligations, or requirements that
may be provided or governed by Oregon State law.''.
SEC. 5. OCHOCO IRRIGATION DISTRICT.
(a) Early Repayment.--Notwithstanding section 213 of the Reclamation
Reform Act of 1982 (43 U.S.C. 390mm), any landowner within Ochoco
Irrigation District in Oregon, may repay, at any time, the construction
costs of the project facilities allocated to that landowner's lands
within the district. Upon discharge, in full, of the obligation for
repayment of the construction costs allocated to all lands the
landowner owns in the district, those lands shall not be subject to the
ownership and full-cost pricing limitations of the Act of June 17, 1902
(43 U.S.C. 371 et seq.), and Acts supplemental to and amendatory of
that Act, including the Reclamation Reform Act of 1982 (43 U.S.C. 390aa
et seq.).
(b) Certification.--Upon the request of a landowner who has repaid,
in full, the construction costs of the project facilities allocated to
that landowner's lands owned within the district, the Secretary of the
Interior shall provide the certification provided for in subsection
(b)(1) of section 213 of the Reclamation Reform Act of 1982 (43 U.S.C.
390mm(b)(1)).
(c) Contract Amendment.--On approval of the district directors and
notwithstanding project authorizing legislation to the contrary, the
district's reclamation contracts are modified, without further action
by the Secretary of the Interior, to--
(1) authorize the use of water for instream purposes,
including fish or wildlife purposes, in order for the district
to engage in, or take advantage of, conserved water projects
and temporary instream leasing as authorized by Oregon State
law;
(2) include within the district boundary approximately 2,742
acres in the vicinity of McKay Creek, resulting in a total of
approximately 44,937 acres within the district boundary;
(3) classify as irrigable approximately 685 acres within the
approximately 2,742 acres of included lands in the vicinity of
McKay Creek, where the approximately 685 acres are authorized
to receive irrigation water pursuant to water rights issued by
the State of Oregon and have in the past received water
pursuant to such State water rights; and
(4) provide the district with stored water from Prineville
Reservoir for purposes of supplying up to the approximately 685
acres of lands added within the district boundary and
classified as irrigable under paragraphs (2) and (3), with such
stored water to be supplied on an acre-per-acre basis
contingent on the transfer of existing appurtenant McKay Creek
water rights to instream use and the State's issuance of water
rights for the use of stored water.
(d) Limitation.--Except as otherwise provided in subsections (a) and
(c), nothing in this section shall be construed to--
(1) modify contractual rights that may exist between the
district and the United States under the district's Reclamation
contracts;
(2) amend or reopen the contracts referred to in paragraph
(1); or
(3) modify any rights, obligations or relationships that may
exist between the district and its landowners as may be
provided or governed by Oregon State law.
Purpose of the Bill
The purpose of H.R. 2060, as ordered reported, is to amend
the Wild and Scenic Rivers Act to adjust the Crooked River
boundary, and to provide water certainty for the City of
Prineville, Oregon.
Background and Need for Legislation
The City of Prineville is located in Crook County, Oregon,
and has had the State's highest unemployment rates (ranging
from 15%-20%) for several consecutive years due to loss of
traditional logging and natural resources jobs. The recent
construction of Facebook's first custom-built data center
within the City limits and the potential establishment of three
other similar facilities could help reverse the economic
situation. However, the lack of adequate water supplies could
prevent this economic development.
Near the City, the Crooked River flows as a tributary of
the Deschutes River. Both rivers serve as a valuable water
supply source for irrigated agriculture in central Oregon. In
fact, seven irrigation districts rely on water from these two
rivers. The Arthur R. Bowman Dam, a Bureau of Reclamation-owned
project on the River, plays a pivotal role in delivering some
of that water. It is an earthen structure about 20 miles
upstream from Prineville. The Dam's congressionally authorized
purposes include flood control and irrigation. Water releases
from the Dam also provide water for a cold-water fishery.
Although the Dam impounds 160,000 acre feet of water at full
capacity, approximately 80,000 acre feet of this water are not
contracted for specific uses. However, the Bureau of
Reclamation annually releases some of the uncontracted water
supplies for fish and wildlife purposes into the lower Crooked
River and will continue to do so during good water years.
Like much of the West, central Oregon has experienced
controversies over the Endangered Species Act as part of the
larger Columbia basin. As a way to protect irrigation districts
in the local watershed and to reintroduce steelhead on an
experimental basis, various parties at the governmental and
non-governmental levels have worked on a collaborative basis.
This legislation, as amended, seeks to continue that
collaborative partnership through provisions that provide a
long-term water supply for the area, generate clean and
emissions-free hydropower and allocate more water for fisheries
purposes at no cost to the American taxpayer.
Committee Action
H.R. 2060 was introduced on May 31, 2011 by Congressman
Greg Walden (R-OR). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Water and Power and the Subcommittee on National Parks,
Forests and Public Lands. On June 23, 2011, the Subcommittee on
Water and Power held a hearing on the bill. On October 5, 2011,
the Full Natural Resources Committee met to consider the bill.
The Subcommittee on Water and Power and the Subcommittee on
National Parks, Forests and Public Lands were discharged by
unanimous consent. Congressman Tom McClintock (R-CA) offered en
bloc amendment designated .068; the amendment was adopted by
voice vote. The bill was then favorably reported, as amended,
to the House of Representatives by voice vote.
Section-by-Section Analysis
Section 1. Short title
This section designates the title of the bill as the
``Central Oregon Jobs and Water Security Act.''
Section 2. Wild and Scenic River; Crooked, Oregon
This section amends the Federal Wild and Scenic Rivers Act
to re-designate the Wild and Scenic boundary of the Crooked
River. Since the original congressional designation failed to
specify the exact upper boundary line of the Crooked Wild and
Scenic River, the Bureau of Land Management (BLM) established
the upstream boundary at the crest of the Arthur R. Bowman Dam.
Although BLM now states that this location was never intended
to be the boundary, it has been unwilling to move the boundary
at the administrative level. As such, this section moves the
upper boundary line one quarter downstream of the Dam. This
redesignation will allow up to six megawatts of hydropower
development at the Dam. The section requires any future
hydropower developer to analyze any related impacts to the
river and propose mitigation for any impacts.
Section 3. City of Prineville water supply
This section allows an additional annual release of 5,100
acre feet (equivalent to seven cubic feet per second, year-
round) of currently un-allocated water from the Dam to serve as
a state mitigation credit for groundwater pumping by the City
of Prineville. Since the water released would not actually be
withdrawn from the Crooked River, the increased flows would
also benefit prime trout fishing habitat. The section also
ensures that base ``fish'' flows authorized by Congress in 1956
are permanent.
As amended, this section requires the City of Prineville to
pay the federal government for the amount of water that serves
as mitigation under Oregon law. The provision references
federal documents used in making the water rate calculations.
The intent of this provision is to provide water supply
certainty to the City at reasonable and predictable water rates
while adhering to the longtime ``beneficiary pays'' policy. For
that reason, the Committee is concerned that the Bureau of
Reclamation (BOR) has offered widely conflicting accounts of
how much the water would cost and believes that BOR has failed
to offer transparent and certain information to the City. The
Committee expects BOR to consult and communicate substantively
with the City in this rate-setting effort and believes that a
temporary contract is necessary while contract negotiations are
under way. The Committee also believes that BOR's water supply
contract with the City is merely a paper exercise with no
environmental impact. The Administration, in testimony on the
bill, indicated the release will not actually increase flows
below the Dam due to current reservoir operational practice.
Additionally, the release is not an extraordinary circumstance
which causes a significant and adverse environmental effect. As
such, the Committee expects BOR to determine this paperwork
requirement as a Categorical Exclusion under the National
Environmental Policy Act.
Section 4. First fill protection
This section, as amended, ensures that existing water
supply contracts held between various irrigation districts and
the federal government are met prior to the use or release of
stored water behind the Dam for any new or additional purposes.
The provision also provides water for new lands identified as
part of the McKay Creek exchange in Section 5. Nothing in this
provision modifies existing contracts or any rights,
obligations or requirements under Oregon law.
Section 5. Ochoco Irrigation District
This section allows the nearby Ochoco Irrigation District
to pre-pay its capital repayment contract with the federal
government and requires the Secretary of the Interior to
certify that such amounts have been fully repaid. The provision
also provides a mechanism for an exchange of water and lands so
that more water is used for fish restoration on McKay Creek.
This section also amends the water contracts to enable the
District to participate in ``Conserved Water Projects'' under
Oregon law, if it so chooses, as a way to provide more water
for the environment.
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 Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(1) 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)(2)(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. 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:
H.R. 2060--Central Oregon Jobs and Water Security Act
H.R. 2060 would modify features of the Crooked River
Project located in central Oregon, north of the City of
Prineville, and prioritize the allocations of water from the
project for different uses. Based on information from the
Bureau of Reclamation, CBO estimates that enacting H.R. 2060
would have an insignificant impact on direct spending;
therefore, pay-as-you-go procedures apply. The legislation
would not affect revenues.
The main features of the Crooked River Project include
Bowman Dam, Prineville Reservoir, and Ochoco Dam and Reservoir
located in the Ochoco Irrigation District. Enacting two
provisions of H.R. 2060 would have an insignificant impact on
net direct spending over the next 10 years. Those provisions
would:
Require the city of Prineville to pay the Bureau
of Reclamation for additional water to be released from the
Prineville Reservoir. Based on information from the bureau, CBO
estimates that those payments would average less than $40,000
annually.
Authorize landowners in Ochoco Irrigation District
to prepay construction costs of the Crooked River project
allocated to their land. Those landowners owe the bureau
$400,000, and CBO estimates that exercising the prepayment
option would increase net receipts by less than $50,000 over
the 2012-2021 period.
CBO estimates that implementing other provisions of the
bill would have no significant effect on the federal budget.
H.R. 2060 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 Aurora Swanson.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
2. Section 308(a) of 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, credit authority, or an increase or decrease in
revenues or tax expenditures. Based on information from the
Bureau of Reclamation, CBO estimates that enacting H.R. 2060
would have an insignificant impact on direct spending;
therefore, pay-as-you-go procedures apply. The legislation
would not affect revenues.
The main features of the Crooked River Project include
Bowman Dam, Prineville Reservoir, and Ochoco Dam and Reservoir
located in the Ochoco Irrigation District. Enacting two
provisions of H.R. 2060 would have an insignificant impact on
net direct spending over the next 10 years. Those provisions
would first, require the City of Prineville to pay the Bureau
of Reclamation for additional water to be released from the
Prineville Reservoir. Based on information from the bureau, CBO
estimates that those payments would average less than $40,000
annually. Second, the provisions authorize landowners in Ochoco
Irrigation District to prepay construction costs of the Crooked
River project allocated to their land. Those landowners owe the
Bureau of Reclamation $400,000, and CBO estimates that
exercising the prepayment option would increase net receipts by
less than $50,000 over the 2012-2021 period.
CBO estimates that implementing other provisions of the
bill would have no significant effect on the federal budget.
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, as ordered reported, is to amend the
Wild and Scenic Rivers Act to adjust the Crooked River
boundary, and to provide water certainty for the City of
Prineville, Oregon.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the rules of
the House of Representatives.
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 Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as 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):
WILD AND SCENIC RIVERS ACT
* * * * * * *
Sec. 3. (a) The following rivers and the land adjacent
thereto are hereby designated as components of the national
wild and scenic rivers system:
(1) * * *
* * * * * * *
(72) Crooked, Oregon.--The [15-mile] 14.75-mile segment from
the National Grassland boundary to Dry Creek; to be
administered by the Secretary of the Interior in the following
classes:
(A) * * *
(B) the [8-mile segment from Bowman Dam] 7.75-mile
segment from a point one-quarter mile downstream from
the toe of Bowman Dam to Dry Creek as a recreational
river. The developer for any hydropower development,
including turbines and appurtenant facilities, at
Bowman Dam, in consultation with the Bureau of Land
Management, shall analyze any impacts to the
Outstandingly Remarkable Values of the Wild and Scenic
River that may be caused by such development, including
the future need to undertake routine and emergency
repairs, and shall propose mitigation for any impacts
as part of any license application submitted to the
Federal Energy Regulatory Commission.
* * * * * * *
----------
ACT OF AUGUST 6, 1956
AN ACT To authorize construction by the Secretary of the Interior of
the Crooked River Federal reclamation project, Oregon.
* * * * * * *
Sec. 4. In order to promote the preservation and propagation
of fish and wildlife in accordance with section 2 of the Act of
August 14, 1946 (60 Stat. 1080, 16 U.S.C., sec. 661a), an
appropriate screen and fish ladder shall be provided at the
diversion canal headworks of the Crooked River project below
Prineville Reservoir and a minimum release of [ten] 17 cubic
feet per second shall be maintained from said reservoir for the
benefit of downstream fishlife [during those months when there
is no other discharge therefrom, but this release may be
reduced for brief temporary periods by the Secretary whenever
he may find that release of the full ten cubic feet per second
is harmful to the primary purpose of the project]. Without
further action by the Secretary, and as determined necessary
for any given year by the City of Prineville, up to seven of
the 17 cubic feet per second minimum release shall also serve
as mitigation for City of Prineville groundwater pumping,
pursuant to and in a manner consistent with Oregon State law,
including any shaping of the release of the up to seven cubic
feet per second to coincide with City of Prineville groundwater
pumping as may be required by the State of Oregon. As such, the
Secretary is authorized to make applications to the State of
Oregon in conjunction with the City to protect these supplies
instream. The City shall make payment to the Secretary for that
portion of the minimum release that actually serves as
mitigation pursuant to Oregon State law for the City in any
given year, with the payment for any given year equal to the
amount of mitigation in acre feet required to offset actual
City groundwater pumping for that year in accordance with
Reclamation ``Water and Related Contract and Repayment
Principles and Requirements'', Reclamation Manual Directives
and Standards PEC 05-01, dated 09/12/2006, and guided by
``Economic and Environmental Principles and Guidelines for
Water and Related Land Resources Implementation Studies'',
dated March 10, 1983. The Secretary is authorized to contract
exclusively with the City for additional amounts in the future
at the request of the City.
* * * * * * *
Sec. 6. Other than the 17 cubic feet per second release
provided for in section 4, and subject to compliance with the
Army Corps of Engineers' flood curve requirements, the
Secretary shall, on a ``first fill'' priority basis, store in
and release from Prineville Reservoir, whether from carryover,
infill, or a combination thereof, the following:
(1) 68,273 acre feet of water annually to fulfill all
16 Bureau of Reclamation contracts existing as of
January 1, 2011, and up to 2,740 acre feet of water
annually to supply the McKay Creek lands as provided
for in section 5 of this Act.
(2) Not more than 10,000 acre feet of water annually,
to be made available to the North Unit Irrigation
District pursuant to a Temporary Water Service
Contract, upon the request of the North Unit Irrigation
District, consistent with the same terms and conditions
as prior such contracts between the District and the
Bureau of Reclamation.
Sec. 7. Except as otherwise provided in this Act, nothing in
this Act--
(1) modifies contractual rights that may exist
between contractors and the United States under
Reclamation contracts;
(2) amends or reopens contracts referred to in
paragraph (1); or
(3) modifies any rights, obligations, or requirements
that may be provided or governed by Oregon State law.
* * * * * * *
Dissenting Views
H.R. 2060 would amend a Wild and Scenic River designation
to move the boundary to allow for hydropower production at
Bowman Dam; amend the Crooked River Project Act to provide the
City of Prineville with 5,100 acre-feet of water as flow in the
Crooked River to mitigate for the City's use of groundwater,
pursuant to state groundwater law. This legislation would also
create a first fill ``priority'' in meeting water deliveries;
and allow for prepayment of debt on a project.
H.R. 2060 provides a unique opportunity to provide a
balanced solution for the Crooked River that would benefit all
stakeholders. We support the legislation's intent of providing
water and economic certainty to the City of Prineville and the
Ochoco Irrigation District. It does so in a way, however, that
provides certainty for the city and agriculture, but not for
the future needs of the environment.
Section 4 of the legislation amends the 1956 Act to add
language that would provide the existing Ochoco Irrigation
District contractors with a ``first fill'' priority basis.
Currently, contracted (68,273 acre-feet) and uncontracted
storage (approximately 80,000 acre-feet) space in the
Prineville Reservoir are filled simultaneously. Language in
Section 4 would require Reclamation to first fulfill the
agricultural contracted amount before any other fill. This
would mean that the agricultural contracted amounts would have
priority over any future water required for the environment. In
dry years, meeting the agricultural contract could result in no
water being available for future environmental demands from the
uncontracted storage. Section 4 also mandates how Reclamation
is to operate and manage the Prineville Reservoir, and removes
some flexibility on Reclamation's part to mitigate and adapt to
changing conditions.
For these reasons, we do not support H.R. 2060 as reported.
Edward J. Markey.
Raul Grijalva.
Rush Holt.
John Garamendi.
Grace F. Napolitano.
Niki Tsongas.
Dale E. Kildee.