[House Report 112-657]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 112-657
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NORTH TEXAS ZEBRA MUSSEL BARRIER ACT OF 2012
_______
September 10, 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
ADDITIONAL VIEWS
[To accompany H.R. 6007]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 6007) to exempt from the Lacey Act Amendments of
1981 certain water transfers by the North Texas Municipal Water
District and the Greater Texoma Utility Authority, having
considered the same, report favorably thereon without amendment
and recommend that the bill do pass.
PURPOSE OF THE BILL
The purpose of H.R. 6007 is to exempt from the Lacey Act
Amendments of 1981 certain water transfers by the North Texas
Municipal Water District and the Greater Texoma Utility
Authority.
BACKGROUND AND NEED FOR LEGISLATION
In 1900, Congress enacted legislation to support the
efforts of states to protect their resident game and birds. It
was designed to prevent hunters from killing game in one state
and escaping prosecution by moving the fish or wildlife across
state lines. It accomplished that goal by criminalizing both
the delivery for shipment and the shipment of parts or bodies
of ``wild animals or birds'' killed in violation of a state
law. In addition, the law tried to prevent the ``unwise''
introduction of foreign birds and animals by creating an
``injurious wildlife'' category.
The U.S. Fish and Wildlife Service (Service) implements the
injurious wildlife provisions through regulations contained in
50 CFR part 16. Under these provisions, injurious wildlife are
amphibians, birds, crustaceans, fish, mammals, mollusks,
reptiles and their offspring or gametes that are injurious to
the interests of human beings, agriculture, horticulture,
forestry, wildlife, or wildlife resources of the United States.
Plants and organisms other than those listed above cannot be
listed as injurious wildlife. Once listed as injurious, species
may not be imported into the United States or transported
between the states, the District of Columbia, Hawaii, or any
territory or possession of the United States by any means
without a special permit issued by the Service. An individual
may obtain a permit for the importation or interstate
transportation of live specimens of injurious wildlife for bona
fide scientific, educational, medical, or zoological purposes.
The penalty for an injurious wildlife Lacey Act violation is up
to six months in prison and a $5,000 fine for an individual or
a $10,000 fine for an organization. There are 236 species
listed as ``injurious wildlife'' including the brown tree
snake, snakehead fish, and zebra mussels.
Zebra mussels are native to Eastern Europe and Western Asia
and can grow to a maximum length of about two inches and live
four to five years. Until the mid-1980's, there were no zebra
mussels in North America. They were first discovered in the
United States in Lake St. Clair near Detroit in 1988. By 1990,
zebra mussels had been found in all five Great Lakes. It
appears zebra mussels entered the Great Lakes when ships
arriving from Europe discharged their ballast water. The
species rapidly dispersed by attaching themselves to boats
navigating these waters. In addition, this invasive species has
the ability to stay alive out of water for several days under
moist and reasonably cool conditions. They have continued to
spread through the Great Lakes basin, the St. Lawrence Seaway,
and much of the Mississippi River drainage system. They are now
found in thirty U.S. states. Zebra mussels were listed on
December 9, 1991 by the Service as ``injurious wildlife'' under
the Lacey Act.
Construction of the Lake Texoma reservoir project was
completed in 1944 and the lake is located in both Oklahoma and
Texas. The reservoir project provides a vital water supply for
over 1.6 million people. It was authorized by the Flood Control
Act of 1938 and it cost $54 million to construct. In 1989, the
Corps of Engineers granted an easement and permit to the North
Texas Municipal Water District (NTMWD) to construct and operate
an intake/pumping station at Lake Texoma. The pump station was
designed to transfer up to 125 million gallons per day of water
from Lake Texoma directly to Lake Lavon via a pipeline that
discharges into a tributary of Lake Lavon. The massive intake
structure cost over $100 million to construct.
In 1999, after eight years of deliberations, the State
Legislatures of Oklahoma and Texas adopted legislation
readjusting the boundaries of the Red River. It was signed into
law by the Governors of the two States and the Red River
Boundary Compact was approved by the United States Congress. It
became law on August 21, 2000. As a result, a portion of the
North Texas Municipal Water District intake facility is now
located in the State of Oklahoma.
Since 2009, zebra mussels have been identified as being in
Lake Texoma. This has raised concerns that this invasive
species could be transferred across state lines from the Red
River Basin to the Trinity River Basin in Texas. Lake Texoma
comprises 28 percent of the total water supply needs for North
Texas residents or enough water for 500,000 people. This is an
area that is experiencing rapid population growth and Lake
Texoma supplies are critical during frequent droughts or high
demand conditions.
In December 2010, the Service advised the NTMWD that
because of the revised boundary delineation, the use of the
pump station would constitute an interstate transfer of water
and a violation of the Lacey Act because invasive zebra mussels
would be transported across state lines. While there is debate
about whether the boundary of the intake facility should have
been changed, there appears to be little flexibility within the
Lacey Act to address this issue.
After voluntarily suspending operation of its Lake Texoma
pump station, NTMWD has been unable to use the water supplies
of Lake Texoma for the past three years. In addition, the Corps
of Engineers has indicated that it is unable to issue a new
grant pumping permit until the zebra mussel issue is addressed.
The severe drought of 2011 made this loss of water supply a
near catastrophe.
As a result, NTMWD has committed to construct a 46-mile
closed pipeline in the State of Texas to transfer all Lake
Texoma water directly to their water treatment facility at a
cost of over $300 million which will be paid for entirely by
water users. This project was issued a Section 404 Clean Water
Act permit by the Army Corps of Engineers on May 3, 2012.
However, the Service has indicated they lack the statutory
authority to tell the Water District that this pipeline will
comply with the Lacey Act. The Water District is, therefore,
faced with four options. These include moving the intake
structure at a cost of $100 million; convince the two state
legislatures to readjust the boundaries, agree to permanently
forgo using the water resources of Lake Texoma or enact a
legislative solution.
The North Texas Zebra Mussel Barrier Act will solve the
problem facing North Texas residents by recognizing that the
Lacey Act does not apply to the Lake Texoma water transfers
which would occur in a closed conveyance system where the water
would be transported to a treatment facility where the zebra
mussels will be completely destroyed. Without this legislation,
more than one million people will face the real prospect that
their water supply will be severely curtailed or unavailable in
the future.
The Committee on Natural Resources recognizes the unique
circumstances confronting the North Texas Municipal Water
District. The Committee is not aware of any similar situation
facing any other Municipal Water District in the United States
and by moving forward with this legislative solution, the
Committee does not intend for this to serve as a precedent for
exempting activities from the Lacey Act in the future.
COMMITTEE ACTION
H.R. 6007 was introduced on June 21, 2012, by Congressman
Ralph M. Hall (R-TX). The bill was referred to the House
Committee on Natural Resources, and within the Committee to the
Subcommittee on Fisheries, Wildlife, Oceans, and Insular
Affairs. On July 19, 2012, the Subcommittee on Fisheries,
Wildlife, Oceans, and Insular Affairs held a hearing on the
bill. On August 1, 2012, the Full Resources Committee met to
consider the bill. The Subcommittee on Fisheries, Wildlife,
Oceans, and Insular Affairs was discharged by unanimous
consent. No amendments were offered, and the bill was adopted
and ordered favorably reported to the House of Representatives
by unanimous consent.
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. 6007--North Texas Zebra Mussel Barrier Act of 2012
H.R. 6007 would exempt the North Texas Municipal Water
District (NTMWD) from prosecution under certain provisions of
the Lacey Act for the transfer of water containing zebra
mussels from Oklahoma to Texas. The Lacey Act protects plants
and wildlife by creating civil and criminal penalties for
various violations, including transferring injurious species
across state borders. Because zebra mussels are listed as
injurious species under that act, under current law,
transporting water containing zebra mussels would violate those
provisions.
Based on information provided by the U.S. Fish and Wildlife
Service (USFWS), CBO estimates that implementing the
legislation would have no significant impact on the federal
budget. Under current law, federal agencies, including the
USFWS and the Department of Justice, have the authority to
negotiate agreements that would allow the NTMWD to transfer the
affected waters without being prosecuted. Enacting H.R. 6007
could reduce revenues from penalties under the Lacey Act;
therefore, pay-as-you-go procedures apply. However, CBO
estimates that any such reductions would be negligible.
Enacting the bill would not affect direct spending.
H.R. 6007 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Jeff LaFaye. 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, spending authority, credit authority, or an increase
or decrease in revenues or tax expenditures. Based on
information provided by the U.S. Fish and Wildlife Service, CBO
estimates that implementing the legislation would have no
significant impact 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 is to exempt from the Lacey Act
Amendments of 1981 certain water transfers by the North Texas
Municipal Water District and the Greater Texoma Utility
Authority.
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
If enacted, this bill would make no changes in existing
law.
ADDITIONAL VIEWS
H.R. 6007 exempts the North Texas Municipal Water District
and the Greater Texoma Utility Authority from prosecution under
the Lacey Act Amendments of 1981. The exemption applies only
when these entities transport water that contains zebra
mussels--a species designated by the Fish and Wildlife Service
as ``injurious'' and therefore illegal to transport across
state lines--in closed conveyance systems until all zebra
mussels have been destroyed.
The aforementioned entities provide water to one of the
most rapidly urbanizing areas of the country. During the 1980's
they consulted with the Army Corps of Engineers to construct a
water intake structure on the Texas side of Lake Texoma, a man-
made lake that straddles the border between Texas and Oklahoma.
Since that time, two critical events occurred; first, zebra
mussels were discovered in Lake Texoma, and second, an
agreement shifted the Texas-Oklahoma boundary line such that
the water intake structure now lies in Oklahoma. It would take
an Act of Congress and two state legislatures to revise the
boundary. Because of this unforeseen boundary shift, previously
legal withdrawals from Lake Texoma will now violate the Lacey
Act. H.R. 6007 intends to remediate the problem.
The North Texas Municipal Water District has secured a $295
million bond to build an underground pipeline from Lake Texoma
to a water treatment facility at the edge of Lake Lavon, a
reservoir in Texas that does not currently contain zebra
mussels. All zebra mussels will be destroyed before water
enters Lake Lavon using technology that has been proven
effective for this purpose. The project will be financed
entirely by ratepayers, who will incur a 20% increase in rates.
A primary purpose of the Lacey Act is to curb the spread of
undesirable species. We believe that H.R. 6007 is in keeping
with the intention of the Lacey Act, since all water must be
kept in closed systems until all zebra mussels, including eggs
and larvae, have been removed. However, we emphasize that H.R.
6007 is necessary to remedy a unique and difficult situation,
and came about only after all other plausible options had
already been pursued. It should not set a precedent for making
exemptions to the Lacey Act.
Edward J. Markey.