[House Report 112-657]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     112-657

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



 
              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.

                                  
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