[Senate Report 114-135]
[From the U.S. Government Publishing Office]
Calendar No. 215
114th Congress } { Report
SENATE
1st Session } { 114-135
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FONTENELLE RESERVOIR
_______
September 9, 2015.--Ordered to be printed
_______
Ms. Murkowski, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 1305]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 1305) to amend the Colorado River Storage
Project Act to authorize the use of the active capacity of the
Fontenelle Reservoir, having considered the same, reports
favorably thereon with an amendment in the nature of a
substitute and an amendment to the title and recommends that
the bill, as amended, do pass.
The amendments are as follows:
1. Strike all after the enacting clause and insert the
following:
SECTION 1. AUTHORITY TO MAKE ENTIRE ACTIVE CAPACITY OF FONTENELLE
RESERVOIR AVAILABLE FOR USE.
(a) In General.--The Secretary of the Interior, in cooperation with
the State of Wyoming, may amend the Definite Plan Report for the
Seedskadee Project authorized under the first section of the Act of
April 11, 1956 (commonly known as the ``Colorado River Storage Project
Act'') (43 U.S.C. 620), to provide for the study, design, planning, and
construction activities that will enable the use of all active storage
capacity (as may be defined or limited by legal, hydrologic,
structural, engineering, economic, and environmental considerations) of
Fontenelle Dam and Reservoir, including the placement of sufficient
riprap on the upstream face of Fontenelle Dam to allow the active
storage capacity of Fontenelle Reservoir to be used for those purposes
for which the Seedskadee Project was authorized.
(b) Cooperative Agreements.--
(1) In general.--The Secretary of the Interior may enter into
any contract, grant, cooperative agreement, or other agreement
that is necessary to carry out subsection (a).
(2) State of wyoming.--
(A) In general.--The Secretary of the Interior shall
enter into a cooperative agreement with the State of
Wyoming to work in cooperation and collaboratively with
the State of Wyoming for planning, design, related
preconstruction activities, and construction of any
modification of the Fontenelle Dam under subsection
(a).
(B) Requirements.--The cooperative agreement under
subparagraph (A) shall, at a minimum, specify the
responsibilities of the Secretary of the Interior and
the State of Wyoming with respect to--
(i) completing the planning and final design
of the modification of the Fontenelle Dam under
subsection (a);
(ii) any environmental and cultural resource
compliance activities required for the
modification of the Fontenelle Dam under
subsection (a) including compliance with--
(I) the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et seq.);
(II) the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.); and
(III) subdivision 2 of division A of
subtitle III of title 54, United States
Code; and
(iii) the construction of the modification of
the Fontenelle Dam under subsection (a).
(c) Funding by State of Wyoming.--Pursuant to the Act of March 4,
1921 (41 Stat. 1404, chapter 161; 43 U.S.C. 395), and as a condition of
providing any additional storage under subsection (a), the State of
Wyoming shall provide to the Secretary of the Interior funds for any
work carried out under subsection (a).
(d) Other Contracting Authority.--
(1) In general.--The Secretary of the Interior may enter into
contracts with the State of Wyoming, on such terms and
conditions as the Secretary of the Interior and the State of
Wyoming may agree, for division of any additional active
capacity made available under subsection (a).
(2) Terms and conditions.--Unless otherwise agreed to by the
Secretary of the Interior and the State of Wyoming, a contract
entered into under paragraph (1) shall be subject to the terms
and conditions of Bureau of Reclamation Contract No. 14-16 06-
400-2474 and Bureau of Reclamation Contract No. 14-06-400-6193.
SEC. 2. SAVINGS PROVISIONS.
Unless expressly provided in this Act, nothing in this Act
modifies, conflicts with, preempts, or otherwise affects--
(1) the Act of December 31, 1928 (43 U.S.C. 617 et seq.)
(commonly known as the ``Boulder Canyon Project Act'');
(2) the Colorado River Compact of 1922, as approved by the
Presidential Proclamation of June 25, 1929 (46 Stat. 3000);
(3) the Act of July 19, 1940 (43 U.S.C. 618 et seq.)
(commonly known as the ``Boulder Canyon Project Adjustment
Act'');
(4) the Treaty between the United States of America and
Mexico relating to the utilization of waters of the Colorado
and Tijuana Rivers and of the Rio Grande, and supplementary
protocol signed November 14, 1944, signed at Washington
February 3, 1944 (59 Stat. 1219);
(5) the Upper Colorado River Basin Compact as consented to by
the Act of April 6, 1949 (63 Stat. 31);
(6) the Act of April 11, 1956 (commonly known as the
``Colorado River Storage Project Act'') (43 U.S.C. 620 et
seq.);
(7) the Colorado River Basin Project Act (Public Law 90-537;
82 Stat. 885); or
(8) any State of Wyoming or other State water law.
2. Amend the title so as to read: ``A bill to authorize the
Secretary of the Interior to amend the Definite Plan Report for
the Seedskadee Project to enable the use of the active capacity
of the Fontenelle Reservoir.''.
PURPOSE
The purpose of S. 1305 is to amend the Colorado River
Storage Project Act to authorize the use of the active capacity
of the Fontenelle Reservoir.
BACKGROUND AND NEED
Fontenelle Reservoir is a principal feature of the
Seedskadee Project, one of the initial projects authorized
under the Colorado River Storage Project Act of 1956.
Authorized uses of Fontenelle Reservoir storage water include
irrigation, fish and wildlife, recreation, and domestic,
industrial and municipal stock watering, as primary purposes,
with power generation specified as the only secondary purpose.
Currently, the State of Wyoming has the right to
perpetually market 120,000 acre-feet of the original 190,250
acre-feet active capacity from the reservoir. However, in order
to increase the use of water storage and supplies from the
reservoir, infrastructure improvements must be made to prevent
erosion. This bill would provide authority for the Secretary to
enter into an agreement with the State of Wyoming to complete
this work.
S. 1305 would authorize the Secretary of the Interior to
enter into an agreement with the State of Wyoming to place
riprap around the reservoir, on the condition that the State
pay for the entire project, including the study, design,
planning, and construction of the project.
LEGISLATIVE HISTORY
S. 1305 was introduced by Senator Barrasso on May 12, 2015.
Companion legislation, H.R. 2273, was introduced by
Representative Lummis in the House of Representatives on the
same day. The Subcommittee on Water and Power held a
legislative hearing on S. 1305 on June 18, 2015.
The Committee on Energy and Natural Resources met in open
business session on July 30, 2015, and ordered S. 1305
favorably reported as amended.
COMMITTEE RECOMMENDATION
The Senate Committee on Energy and Natural Resources, in an
open business session on July 30, 2015, by a majority voice
vote of a quorum present, recommended that the Senate pass S.
1305, if amended as described herein.
COMMITTEE AMENDMENTS
During the consideration of S. 1305, the Committee adopted
an amendment in the nature of a substitute and an amendment to
the title.
The substitute amendment modifies section 1 to remove
language that would have amended the Colorado River Storage
Project Act to include a new section 17 in order to provide the
authority under the bill to expand the Fontenelle Reservoir's
capacity.
The title amendment strikes the title for S. 1305 as
introduced and inserts ``A bill to authorize the Secretary of
the Interior to amend the Definite Plan Report for the
Seedskadee Project to enable the use of the active capacity of
the Fontenelle Reservoir.
SECTION-BY-SECTION ANALYSIS
Section 1(a) authorizes the Secretary of the Interior to
work with the State of Wyoming through cooperative agreements
to enable the use of all active storage capacity of the
Fontenelle Dam and Reservoir. Section 1(b) outlines the
minimally required components of the agreements, including that
the State of Wyoming shall be responsible for all funding of
activities carried out under this act.
Section 2 includes savings provisions specifying that
nothing in this act modifies, conflicts with, preempts, or
otherwise affects the Boulder Canyon Project Act, the Colorado
River Compact of 1922; the Boulder Canyon Project Adjustment
Act; the Treaty between the U.S. and Mexico relating to the
utilization of waters of the Colorado and Tijuana Rivers and of
the Rio Grande; the Upper Colorado River Basin Compact; the
Colorado River Storage Project Act; the Colorado River Basin
Project Act; or any State of Wyoming or other State water law.
COST AND BUDGETARY CONSIDERATIONS
The following estimate of the costs of this measure has
been provided by the Congressional Budget Office:
S. 1305--A bill to amend the Colorado River Storage Project Act to
authorize the use of the active capacity of the Fontenelle
Reservoir
S. 1305 would authorize the Bureau of Reclamation (BOR) to
plan and construct a project to expand water storage at
Fontenelle Dam and Reservoir in southwestern Wyoming. Based on
information from the BOR, CBO estimates that implementing the
legislation would have an insignificant net cost. Because
implementing S. 1305 would affect direct spending, pay-as-you-
go procedures apply. Enacting S. 1305 would not affect
revenues.
Under current law, the amount of water storage available to
the State of Wyoming at the reservoir is the difference between
full capacity and the lowest water level that allows all of the
authorized purposes of the Fontenelle project to be performed.
Under the bill, the BOR would coordinate with the State of
Wyoming to design and construct modifications to Fontenelle Dam
and Reservoir to allow the project to operate at a lower water
level, thus expanding the amount of storage available to the
state. S. 1305 also would require the state to contribute 100
percent of the costs to design and construct the project.
(Those contributions would be recorded in the budget as
offsetting receipts and would subsequently be spent without
further appropriation.)
S. 1305 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would benefit the State of Wyoming. Any costs incurred by state
agencies related to the federal water project would be incurred
voluntarily as conditions of receiving federal assistance.
The CBO staff contacts for this estimate are Aurora Swanson
(for federal costs) and Jon Sperl (for intergovernmental
mandates). The estimate was approved by H. Samuel Papenfuss,
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 the bill.
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 the bill, as ordered reported.
CONGRESSIONALLY DIRECTED SPENDING
The bill, 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 Reclamation at the
June 18, 2015, Water and Power Subcommittee hearing on S. 1305
follows:
Statement of Dionne Thompson, Deputy Commissioner for External and
Intergovernmental Affairs, Bureau of Reclamation, Department of the
Interior
Chairman Lee and members of the Subcommittee, I am Dionne
Thompson, Deputy Commissioner for External and
Intergovernmental Affairs at the Bureau of Reclamation
(Reclamation). Thank you for the opportunity to provide the
views of the Department of the Interior (Department) on S.
1305, which would amend the Colorado River Storage Project Act
(Public Law 84-485). The amendment authorizes Reclamation to
increase the active capacity and, as a result, the amount of
water developed by Fontenelle Reservoir in Wyoming. With the
concerns described below appropriately noted, the Department
does not oppose S. 1305 in its current form.
Fontenelle Reservoir is part of the Seedskadee Project, a
participating project under P.L. 84-485. The dam and reservoir
are located in the Upper Green River Basin in southwestern
Wyoming about 50 miles from Rock Springs. Fontenelle Dam is an
embankment dam standing 139 feet high with a crest length of
over a mile (5,421 feet). Fontenelle Reservoir has a total
capacity of 345,360 acre-feet and is operated for municipal and
industrial water use, power production, flood control, and fish
and wildlife--in support of the Seedskadee National Wildlife
Refuge. Recreation facilities at Fontenelle Reservoir are
managed by the Bureau of Land Management under an agreement
with Reclamation.
The intent of S. 1305 is to increase the yield of
Fontenelle Reservoir, further developing the State of Wyoming's
allocation of Colorado River water under the Colorado River
Compact. To understand how S. 1305 would increase the water
available to Wyoming, it is important to review some basic
engineering features associated with Fontenelle Dam.
In general, the active capacity of a reservoir is the space
between the highest elevation at which water can be stored and
the lowest elevation from which water can be released so as to
allow operation for all authorized purposes. Power is an
authorized purpose of the Seedskadee Project. The lowest
elevation at which Fontenelle Powerplant can be safely operated
is approximately 40 feet above the bottom elevation of the
inlet to the powerplant, and is referred to as ``minimum power
pool elevation.''
In order to protect the upstream face of a dam from erosion
caused by wave action, large stones that are resistant to
erosion and wave action are placed on the upstream side of the
dam. These stones are referred to as ``riprap''. In keeping
with engineering practices, Fontenelle Dam includes riprap
protection on the upstream face of the embankment. Because the
dam would not be operated with any frequency below the lowest
power production elevation, original construction and
subsequent modifications did not include placing riprap on the
upstream face of dam below minimum power pool elevation.
For some years, the State of Wyoming has expressed interest
in placing riprap below the minimum power pool elevation, and
this project has come to be known as the ``Riprap Project.'' By
doing so, it would be possible to operate the reservoir within
a greater range of elevations--increasing the operating range
and yield of the reservoir. S. 1305 would authorize the
Department to undertake the ``study, planning, design and
construction activities''' necessary to consider and implement
the Riprap Project (a lowering of the elevation of the riprap).
In considering the Riprap Project, Reclamation has had
concerns, and we appreciate the chance to review this
legislation as it was drafted over the past several months. We
are pleased to note that each of these concerns appears to be
addressed in the introduced language of S. 1305.
S. 1305 amends P.L. 84-485 to authorize consideration and
implementation of the Riprap Project. In doing so, it grounds
the Riprap Project on the statute that originally authorized
the Seedskadee Project. S. 1305 relies upon the authority of
the Contributed Funds Act (Act of March 4, 1921) as the means
for the State of Wyoming to provide the funding to consider and
undertake the Riprap Project. With this arrangement,
Reclamation believes that the Riprap Project can be implemented
without any request for new appropriations, and with no
foreseeable impact to Reclamation's already constrained budget.
It is unlikely that the Riprap Project will adversely
affect other states dependent on the Colorado River or Mexico
beyond what they would face when the Upper Basin States make
full utilization of their apportionments, considering their
apportionments and required releases from the Upper Basin to
the Lower Basin under current operational guidelines that
implement key provisions of the Law of the River including the
Colorado River Compact. Having said that, if S. 1305 becomes
law, it will be important to conduct additional analysis to
ensure that other interests are protected. S. 1305 includes the
following elements that should provide some assurance of no
adverse impacts to other water uses.
First, S. 1305 appears to create robust sideboards to
prevent the Riprap Project from conflicting with law, compacts,
and treaties. This protects against Wyoming expanding its
entitlement to Colorado River water. In Section 2, S. 1305
provides reassurance that it will not modify, conflict with,
preempt, or otherwise affect any applicable federal statutes or
decrees, including, but not limited to:
Boulder Canyon Project Act
Colorado River Compact of 1922
Boulder Canyon Project Adjustment Act
Treaty between the United States of America
and Mexico relating to the utilization of waters of the
Colorado and Tijuana Rivers and of the Rio Grande
Upper Colorado River Basin Compact
Colorado River Storage Project Act (P.L. 84-
485), other than as indicated in Section 1 of S. 1305
Colorado River Basin Project Act (Public Law
90-537; 82 Stat. 885)
Any State of Wyoming or other State water
law
Second, S. 1305 amends P.L. 84-485 to authorize the
planning, design, and construction of the Riprap Project. The
bill's stated purposes include ``making it possible for the
States of the Upper Basin to utilize, consistently with the
provisions of the Colorado River Compact, the apportionments
made to and among them in the Colorado River Compact and the
Upper Colorado River Basin Compact, respectively.'' P.L. 84-485
sets a clear boundary around the Riprap Project; it cannot
permit Wyoming to expand its entitlements under the Colorado
River Compact and the Upper Colorado River Basin Compact.
Another important element of S. 1305 is the definition of
active storage capacity. Although active capacity can generally
be understood as the difference between the upper and lower
elevations at which a reservoir may be operated, the elevation
of both the upper and lower limit may also be defined by
considerations beyond engineering. Other considerations often
limit the degree to which a reservoir may be drained. These
considerations include issues of law, hydrology, economics, and
environment. S. 1305 acknowledges these limitations; in the
bill ``active storage capacity'' is ``defined or limited by
legal, hydrologic, structural, engineering, economic, and
environmental considerations.''
Environmental compliance concerns also are addressed under
S. 1305. The bill requires compliance under the National
Environmental Policy Act, the Endangered Species Act, and the
National Historic Preservation Act.
While S. 1305 is clearly written to integrate with existing
law, regulations and contracts, there are some questions
associated with operation and design that may limit the scope
of the Riprap Project. Reclamation has not studied the
operation of Fontenelle Dam at the lower elevations proposed
under the Riprap Project. The original planning and design for
the facility did not include operations at such low levels.
Operation at lower levels could raise the following issues that
should be explored by the study to be authorized by this Act:
Water Delivery Requirements--At lower
reservoir elevations, the rate at which the reservoir
can be drained is slowed (because of the reduced
hydraulic head). Without the study and planning that
would be conducted pursuant to this bill, Reclamation
does not know whether water can be delivered at such
rates as would be necessary.
Instream Flows--Under current operations and
agreements, Reclamation is required to deliver 5,000
acre-feet to the Seedskadee National Wildlife Refuge
for fish and wildlife purposes on an annual basis. As
noted above, without additional study Reclamation does
not know whether it will be able to meet these flow
requirements at lower reservoir levels.
Power Generation--Operating the reservoir at
lower elevations will affect powerplant operations.
There would be periods when the powerplant cannot be
operated efficiently and when the powerplant cannot be
operated at all. The result will be impacts on
Reclamation's ability to generate and deliver power
under P.L. 84-485. There is a potential for impacts to
irrigators and municipalities that use Colorado River
Storage Project power as well as to the members of the
Colorado River Energy Distributors Association, which
rely upon and purchase the power.
That concludes my statement. I am pleased to answer
questions at the appropriate time.
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 the bill as ordered
reported.
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