[Senate Report 113-95]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 173
113th Congress                                                   Report
                                 SENATE
 1st Session                                                     113-95

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                    NORTH FORK WATERSHED PROTECTION

                                _______
                                

               September 10, 2013.--Ordered to be printed

                                _______
                                

    Mr. Wyden, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 255]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 255) to withdraw certain Federal land and 
interests in that land from location, entry, and patent under 
the mining laws and disposition under the mineral and 
geothermal leasing laws, 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, after line 2, add the following:

    (c) Effect of Section.--Nothing in this section prohibits 
the Secretary of the Interior from taking any action necessary 
to complete any requirement under the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.) or the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.) required for 
permitting surface-disturbing activity to occur on any lease 
issued before the date of enactment of this Act.

                                PURPOSE

    The purpose of S. 255 is to withdraw approximately 362,000 
acres of Federal land located along the Flathead River in 
northwestern Montana from the mining laws and mineral and 
geothermal leasing laws.

                          BACKGROUND AND NEED

    The North Fork of the Flathead River extends approximately 
90 miles from its headwaters in southern British Columbia south 
into Montana, where it forms the western boundary of Glacier 
National Park. The Flathead River was designated as a component 
of the National Wild and Scenic Rivers System in 1976.
    Although the North Fork itself is protected under the Wild 
and Scenic Rivers Act, the Canadian portion of the river and 
the river's watershed are not protected. There have been 
several mining or oil and gas development projects over the 
years which have raised concerns about the potential impact on 
the river's water quality.
    In February 2010, the Province of British Columbia and the 
State of Montana signed a Memorandum of Understanding to 
preclude mining, oil and gas development, and coalbed methane 
extraction in the Flathead. Under the agreement, mining, oil 
and gas, coalbed methane, and coal development would be 
prohibited within the basin. However, much of the North Fork's 
watershed in Montana is Federal land.
    S. 255 would withdraw, subject to valid existing rights, 
the Federal lands designated on the map referenced in the bill 
from all forms of location, entry, and patent under the mining 
laws of the United States; and from disposition under all laws 
relating to mineral leasing and geothermal leasing. This action 
will prevent future mining, oil and gas, coal bed methane, 
coal, and geothermal development, as well as any other 
activities governed by these statutes.
    In 1982 the Department of the Interior issued several oil 
and gas leases on national forest lands within the North Fork 
watershed. Those leases were later suspended in 1988 when the 
Ninth Circuit Court of Appeals ruled that the agency had failed 
to comply with applicable environmental laws prior to issuing 
the leases. The Federal agencies were enjoined from allowing 
any activity on the issued leases. Since that decision, no 
action has been taken on these leases, and there is presently 
no oil and gas development on federal land within the area 
proposed to be withdrawn by S. 255. Several lease holders have 
voluntarily relinquished oil and gas leases within the area 
withdrawn under S. 255, although a significant number of 
outstanding leases remain.

                          LEGISLATIVE HISTORY

    S. 255 was introduced by Senators Baucus and Tester on 
February 7, 2013. The Subcommittee on Public Lands, Forests, 
and Mining held a hearing on the bill on April 25, 2013. At its 
business meeting on June 18, 2013, the Committee ordered S. 255 
favorably reported with an amendment.
    In the 112th Congress, Senators Baucus and Tester 
introduced similar legislation, S. 233. The Subcommittee on 
Public Lands and Forests held a hearing on S. 233 on May 25, 
2011 (S. Hrg. 112-131). During the 111th Congress, the 
Committee considered similar legislation, S. 3075, also 
sponsored by Senators Baucus and Tester. The Subcommittee on 
Public Lands and Forests held a hearing on S. 3075 on April 28, 
2010 (S. Hrg. 111-744).
    The Committee considered S. 3075 at its business meeting on 
July 21, 2010, and by a vote of 13-10 adopted an amendment in 
the nature of a substitute. At its business meeting on August 
5, 2010, the Committee ordered S. 3075 favorably reported, as 
amended (S. Rept. 111-316).

                        COMMITTEE RECOMMENDATION

    The Senate Committee on Energy and Natural Resources, in 
open business session on June 18, 2013, by a voice vote of a 
quorum present, recommends that the Senate pass S. 255, if 
amended as described herein.

                          COMMITTEE AMENDMENT

    During its consideration of S. 255, the Committee adopted 
an amendment to add a new subsection to the withdrawal language 
in section 3. The amendment states that nothing in the section 
prohibits the Secretary of the Interior for taking any action 
necessary to complete any requirement under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) or 
the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) 
required for permitting surface-disturbing activity to occur on 
any lease issued before the date of enactment of the Act.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 contains the short title, the ``North Fork 
Watershed Protection Act of 2013.''
    Section 2 defines key terms used in the bill.
    Section 3 withdraws, subject to valid existing rights, the 
lands depicted on the referenced map from all forms of 
location, entry, and patent under the mining laws and 
disposition under laws relating to mineral and geothermal 
leasing.
    Subsection (b) states that the map shall be available no 
later than 30 days after enactment of this Act at appropriate 
offices of the Bureau of Land Management.
    Subsection (c) provides that nothing in this section 
prohibits the Secretary of the Interior from taking any actions 
under the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.) or the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) required for permitting surface-disturbing 
activity to occur on any lease issued before the date of 
enactment of this Act.

                   COST AND BUDGETARY CONSIDERATIONS

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

S. 255--North Fork Watershed Protection Act of 2013

    S. 255 would withdraw 430,000 acres of federal lands in 
Montana from programs to develop geothermal and mineral 
resources. The affected lands, which lie adjacent to Glacier 
National Park, are already protected for wilderness values, and 
the proposed designation would not significantly affect the way 
they are managed. Based on information provided by the Bureau 
of Land Management (BLM), CBO estimates that implementing the 
legislation would have no significant impact on the federal 
budget. Enacting S. 255 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    The bill would not affect valid, existing rights on the 
affected lands, including the rights of private entities to 39 
oil and gas leases that have been suspended since 1985 because 
of litigation. BLM has not offered any new oil and gas leases 
on the affected lands since that litigation, and CBO does not 
expect any such leases to be offered in the next 10 years. In 
addition, based on information provided by BLM, CBO expects 
that no income would be derived from other activities on the 
affected lands over that period; therefore, we estimate that 
enacting S. 255 would not affect direct spending.
    S. 255 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Jeff LaFave. The 
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. 255.
    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. 255, as ordered reported.

                   CONGRESSIONALLY DIRECTED SPENDING

    S. 255, as 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 Bureau of Land Management and 
the Forest Service at the April 25, 2013, Subcommittee on 
Public Lands, Forests and Mining hearing on S. 255 follows:

  Statement of James M. Pena, Associate Deputy Chief, National Forest 
           System, Forest Service, Department of Agriculture

    Mr. Chairman, Ranking Member Barrasso, and members of the 
Committee, thank you for inviting me here today to testify 
regarding S. 255, the North Fork Watershed Protection Act of 
2013.
    S. 255 would, subject to valid existing rights, withdraw 
National Forest System (NFS) lands located in the North Fork 
and Middle Fork of Flathead River watersheds in Montana which 
are primarily managed as part of the Flathead National Forest 
from location, entry and patent under the mining laws and from 
disposition under the mineral and geothermal leasing laws. S. 
255 would also withdrawal a small amount of land in the 
Kootenai National Forest. Currently there are 39 existing 
leases or claims in the North Fork comprising 56,117 acres and 
18 existing leases or claims in the Middle Fork comprising 
8,595 acres. The Department supports S. 255, however, I would 
like to clarify that although the Department has surface 
management authority concerning mineral operations, the 
management of the federal mineral estate falls within the 
jurisdiction of the Secretary of the Interior. We defer to the 
Department of the Interior on issues related to the status of 
the existing claims and leases.
    The Forest Service administers surface resources on nearly 
193 million acres of NFS lands located in forty-two states and 
the Commonwealth of Puerto Rico. The Forest Plan for the 
Flathead National Forest blends areas of multiple uses in the 
North Fork and Middle Fork with areas of specific or limited 
uses elsewhere on the Forest. Under current law, NFS lands 
reserved from the public domain pursuant to the Creative Act of 
1891, including those in S. 255, are open to location, entry 
and patent under the United States Mining Laws unless those 
lands have subsequently been withdrawn from the application of 
the mining laws. This bill would withdraw approximately 362,000 
acres from the operation of the locatable and leasable mineral 
laws subject to valid existing rights. This includes 
approximately 291,000 acres on the Flathead National Forest and 
approximately 5,000 acres on the Kootenai National Forest in 
the North Fork watershed and 66,000 acres in the Middle Fork 
watershed on the Flathead National Forest.
    The majority of North Fork and Middle Fork of the Flathead 
has low to moderate potential for the occurrence of locatable 
and leasable minerals. A portion of the Middle Fork does have 
an area of high potential for oil and gas occurrence. Much of 
the North Fork and Middle Fork was leased for oil and gas in 
the early 1980s. Subsequently, the Bureau of Land Management 
(BLM) and Forest Service were sued and BLM suspended the leases 
in 1985 to comply with a District Court ruling (Conner v. 
Burford, 605 F. Supp. 107 (D.Mont.1985)). Presently, there are 
no active locatable or leasable operations, including oil and 
gas, in the North Fork or Middle Fork.
    We recognize the bill would not affect the existing oil and 
gas leases because they would constitute valid existing rights. 
We also recognize the bill would not change the court's order 
in Conner v. Burford requiring the BLM and Forest Service to 
prepare an environmental impact statement (EIS) under the 
National Environmental Policy Act before authorizing any 
surface disturbing activities on the affected leases.
    The Flathead National Forest and Flathead County rely on 
the close proximity of local sources of aggregate to maintain 
roads economically and as a source of building materials. We 
are pleased this bill would not preclude the removal and use of 
mineral materials, such as aggregate. The ability to continue 
using those local mineral materials would allow us to more 
easily maintain local roads, thus reduce erosion related 
impacts to streams and lakes in the North Fork and Middle Fork 
drainages.
    This concludes my testimony and I would be happy to answer 
any questions that you may have.
                              ----------                              


  Statement of Jamie Connell, Acting Deputy Director, Bureau of Land 
                 Management, Department of the Interior

    Thank you for the invitation to testify on S. 255, the 
North Fork Watershed Protection Act of 2013. The Department of 
the Interior supports S. 255, which would withdraw Federal 
lands within the North Fork watershed of Montana's Flathead 
River from all forms of location, entry, and patent under the 
mining laws and from disposition under all laws related to 
mineral or geothermal leasing. Enactment of S. 255 would mark 
an important milestone in the work occurring across multiple 
jurisdictions to help preserve the remarkable resources in the 
Crown of the Continent ecosystem.


                               background


    The Flathead River Basin, a key portion of an area known as 
the Crown of the Continent ecosystem, spans the boundaries of 
the United States and Canada. It includes part of the United 
States' Glacier National Park and borders Canada's Waterton 
Lakes National Park. These two parks comprise the world's first 
International Peace Park as well as a World Heritage Site. The 
U.S. Forest Service's Flathead National Forest is also located 
within the Flathead River watershed. The Bureau of Land 
Management manages the Federal mineral estate underlying the 
Flathead National Forest.
    Running along the west side of the Continental Divide, the 
North Fork of the Flathead River enters the United States at 
the Canadian border and forms the western border of Glacier 
National Park until its confluence with the Middle Fork of the 
Flathead River near the southern end of Glacier National Park. 
The North Fork watershed, a sub-basin of the Flathead River 
watershed, includes areas currently managed by the National 
Park Service, the State of Montana, the U.S. Forest Service, 
and some private landowners.
    The Flathead River Basin is recognized for its natural 
resource values, including wildlife corridors for large and 
medium-sized carnivores, aquatic habitat, and plant species 
diversity. The area is rich in cultural heritage resources, 
with archeological evidence of human habitation starting 10,000 
years ago. Several Indian tribes, including the Blackfeet, the 
Salish, and the Kootenai, have a well-established presence in 
the area. The area also has celebrated recreational 
opportunities, including hunting, fishing, and backcountry 
hiking and camping.
    There has been interest in protecting the Crown of the 
Continent resources for some time. On February 18, 2010, the 
State of Montana and the Province of British Columbia executed 
a Memorandum of Understanding which addresses a myriad of 
issues related to the Flathead River Basin on both sides of the 
U.S.-Canada border. The intention of Part I.A. of that 
memorandum is to ``[r]emove mining, oil and gas, and coal 
development as permissible land uses in the Flathead River 
Basin.''
    The Flathead River Basin contains Federally-owned 
subsurface mineral estate under National Forest System lands 
that the Federal government has leased for oil and gas 
development. At the time legislation was initially proposed in 
2010, there were 115 oil and gas leases in the North Fork 
watershed that the BLM issued between 1982 and 1985. The 
leases, which cover over 238,000 acres, are inactive and under 
suspension as part of the 1985 court case Conner v. Burford. At 
the request of Montana Senators Max Baucus and John Tester, 
leaseholders have voluntarily relinquished 76 leases consisting 
of almost 182,000 acres. The BLM has not offered any other 
leases in the Flathead National Forest since the Conner v. 
Burford litigation suspended the existing leases in 1985.
    The U.S. Forest Service is responsible for the surface 
management of National Forest System land; however, as noted 
earlier, the Secretary of the Interior and the BLM are 
responsible for administering the Federal subsurface mineral 
estate under the Mining Law of 1872, the Mineral Leasing Act of 
1920, and various mineral leasing acts. With respect to 
locatable minerals and oil and gas resources, the Forest 
Service has authority to regulate the effects of mineral 
operations upon National Forest System resources. The BLM only 
issues mineral leases for locatable minerals and oil and gas 
resources upon concurrence of the surface management agency and 
always works cooperatively with the agency to ensure that 
management goals and objectives for mineral exploration and 
development activities are achieved, that operations are 
conducted to minimize effects on natural resources, and that 
the land affected by operations is reclaimed.


                                 s. 255


    S. 255 withdraws all Federal lands or interest in lands, 
comprised of approximately 430,000 acres of the Flathead 
National Forest, within the North and Middle Fork watersheds of 
the Flathead River from all forms of location, entry, and 
patent under the mining laws and from disposition under all 
laws related to mineral or geothermal leasing. We note that 
National Park acreage within the watershed is already 
unavailable for mineral entry. S. 255 does not affect valid, 
existing rights, including the 39 leases in the North Fork 
watershed that are suspended under the Conner v. Burford 
litigation. The Department fully supports S. 233 as it furthers 
the goal of preserving the important resources of this region.
    The Waterton-Glacier International Peace Park, which 
extends from Canada into the United States, is one of the great 
protected ecosystems on the North American continent. A 2010 
World Heritage Center/International Union for the Conservation 
of Nature Report noted that the International Peace Park is 
``one of the largest, most pristine, intact, and best protected 
expanses of natural terrain in North America. It provides the 
wide range of non-fragmented habitats and key ecological 
connections that are vital for the survival and security of 
wildlife and plants in the Waterton-Glacier property and the 
Flathead watershed.'' Retaining this expanse of natural 
landscape in the Crown of the Continent ecosystem is of vital 
importance for providing ecosystem connectivity, which is 
essential for the growth and survival of plants and animals in 
the region. S. 255 will help accomplish this goal.
    The Department of the Interior is also committed to 
maintaining the ecological integrity of Glacier National Park, 
one of the most noteworthy natural and cultural treasures of 
our Nation. Preserving the region's and the park's water 
resources is also critical. The rich aquatic ecosystems provide 
breeding and feeding habitats for a variety of important 
species, and the Department recognizes the importance of 
maintaining critical habitat corridors when planning for 
resources uses. S. 255 will help protect and preserve the 
important resources of the greater Crown of the Continent 
ecosystem, including those within Glacier National Park.


                               conclusion


    The Department supports S. 255 and commends the many 
parties involved in protecting the North Fork of the Flathead 
River and the important resources shared by the United States 
and Canada. We hope that this legislation and the efforts of 
the federal and state/provincial governments add to the 
important legacy of conservation in the Glacier/Waterton Lakes 
area and Flathead River basin.

                        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 S. 255, as ordered 
reported.

                                  
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