[Senate Report 113-95] [From the U.S. Government Publishing Office] Calendar No. 173 113th Congress Report SENATE 1st Session 113-95 ====================================================================== 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.