[Senate Report 114-327]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 600
114th Congress      }                                   {       Report
                                 SENATE
 2d Session         }                                   {      114-327

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



 
                     BOLTS DITCH ACCESS AND USE ACT

                                _______
                                

               September 6, 2016.--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. 2524]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 2524) to insure adequate use and access 
to the existing Bolts Ditch headgate and ditch segment within 
the Holy Cross Wilderness in Eagle County, Colorado, and for 
other purposes, having considered the same, reports favorably 
thereon with an amendment and recommends that the bill, as 
amended, do pass.
    The amendment is as follows:
    Beginning on page 1, strike line 6 and all that follows 
through page 2, line 21 and insert the following:

SEC. 2. BOLTS DITCH ACCESS.

                                PURPOSE

    The purpose of S. 2524 is to insure adequate use and access 
to the existing Bolts Ditch headgate and ditch segment within 
the Holy Cross Wilderness in Eagle County, Colorado.

                          BACKGROUND AND NEED

    When Congress authorized and designated the Holy Cross 
Wilderness Area in 1980, Bolts Ditch was inadvertently not 
included on the list of existing water facilities. Bolts Lake 
is an existing water facility in Minturn, Colorado, outside of 
the Wilderness Area which can only be filled using the Bolts 
ditch and headgate. S. 2524 would allow for a special use 
permit to be granted to the Town of Minturn, Colorado, for 
access to the ditch and headgate within the Wilderness Area.

                          LEGISLATIVE HISTORY

    S. 2524, was introduced by Senators Gardner and Bennet on 
February 9, 2016. On May 17, 2016, the Subcommittee on Water 
and Power held a hearing on S. 2524.
    A companion measure, H.R. 4510, was introduced by 
Representatives Polis, Lamborn, and Tipton on February 9, 2016. 
On February 25, 2016, the Subcommittee on Federal Lands held a 
hearing on H.R. 4510.
    The Senate Committee on Energy and Natural Resources met in 
open business session on July 13, 2016, and ordered S. 2524 
favorably reported as amended.

                        COMMITTEE RECOMMENDATION

    The Senate Committee on Energy and Natural Resources, in 
open business session on July 13, 2016, by a majority voice 
vote of a quorum present, recommends that the Senate pass S. 
2524, if amended as described herein.

                          COMMITTEE AMENDMENT

    During its consideration of S. 2524, the Committee adopted 
an amendment to strike the findings in the bill.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    Section 1 provides a short title.

Section 2. Bolts Ditch access

    Section 2 grants special access and use to approximately 
450 feet of Bolts Ditch and the Bolts Ditch Headgate within the 
Holy Cross Wilderness, Colorado as depicted on the referenced 
map for the purposes of the diversion of water and use, 
maintenance, and repair of such ditch and headgate to the Town 
of Minturn, Colorado.

                   COST AND BUDGETARY CONSIDERATIONS

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

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, August 4, 2016.
Hon. Lisa Murkowski,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
    Dear Madam Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2524, the Bolts 
Ditch Access and Use Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jeff LaFave.
            Sincerely,
                                             Mark P. Hadley
                                                  (For Keith Hall).
    Enclosure.

S. 2524--Bolts Ditch Access and Use Act

    S. 2524 would require the Forest Service to provide a 
special use authorization to the town of Minturn, Colorado, to 
allow the town to manage and maintain a headgate used to divert 
water to Bolts Lake. Based on analysis of information from the 
Forest Service, CBO estimates that enacting the bill would 
increase offsetting receipts from annual fees associated with 
the authorization by about $150 a year; therefore, pay-as-you-
go procedures apply. Enacting the bill would not affect 
revenues.
    CBO estimates that enacting the bill would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2027.
    S. 2524 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would benefit the town of Minturn, Colorado; it would give the 
town easier access to the Bolts Ditch headgate so that it could 
repair and maintain the town's water supply.
    On July 11, 2016, CBO transmitted a cost estimate for H.R. 
4510, the Bolts Ditch Access and Use Act, as ordered reported 
by the House Committee on Natural Resources on June 15, 2016. 
S. 2524 and H.R. 4510 are similar, and CBO's estimates of the 
budgetary effects are the same.
    The CBO staff contact for this estimate is Jeff LaFave. The 
estimate was approved by Theresa Gullo, 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. 2524. 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. 2524, as ordered reported.

                   CONGRESSIONALLY DIRECTED SPENDING

    S. 2524, as ordered 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 U.S. Forest Service of the 
U.S. Department of Agriculture at the May 17, 2016, 
Subcommittee on Water and Power hearing on S. 2524 follows:

Statement of Leslie Weldon, Deputy Chief, National Forest System, U.S. 
             Forest Service, U.S. Department of Agriculture

    Mr. Chairman and members of the Subcommittee, thank you for 
the opportunity to present the views of the U.S. Department of 
Agriculture (USDA) regarding S. 2902, Western Water Supply and 
Planning Enhancement Act and S. 2524, Bolts Ditch Access and 
Use Act. I am Leslie Weldon, Deputy Chief for the National 
Forest System (NFS), USDA Forest Service.


          s. 2902, title ii--protecting existing water rights


    Water on National Forest System (NFS) lands is important 
for many reasons, including fish and wildlife habitat, public 
recreation, and providing a clean and plentiful supply of water 
for downstream beneficial uses. Today, water from national 
forests and grasslands contributes to the economic and 
ecological vitality of rural and urban communities across the 
nation, and those lands supply more than 60 million Americans 
with clean drinking water.\1\
---------------------------------------------------------------------------
    \1\http://www.fs.fed.us/publications/policy-analysis/water.pdf.
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    The purposes of the NFS were established by Congress in 
1897 and were primarily focused on the protection of water and 
watersheds and securing a continuous supply of timber. National 
forests in the arid West typically occupy the very top of 
critical watersheds, where water is stored in winter snow packs 
and underground and slowly released through the spring and into 
the summer. National forests in the East also occupy critical 
watersheds, preserving water quality for downstream users and 
moderating floods to protect downstream landowners. 
Communities, farmers and ranchers, Native American Tribes, and 
the general public depend on delivery of clean water from the 
national forests and grasslands. Careful consideration of 
activities that can have an adverse impact on waters and 
watersheds on NFS lands is critical to downstream water users 
and other inhabitants that can be impacted if these watersheds 
are not protected.
    USDA has not had time to fully analyze the effect of this 
bill. USDA recognizes the fundamental role of States to 
adjudicate water rights under state law. However, based on an 
initial review, the bill appears to restrict USDA's ability to 
protect water resources. USDA maintains its opposition to 
provisions in any bill that would prohibit the Secretary of 
Agriculture from regulating uses of NFS lands, or denying 
authorizations for uses of NFS lands, because these 
prohibitions have potential to adversely affect water resources 
on those lands. It is USDA's position that the existing 
statutory framework protects privately-held water rights in 
balance with the ability of the Forest Service to protect water 
resources. An example of the Forest Service work with 
stakeholders within this framework is the recent publication of 
final directives for ski areas operating on NFS lands under 
term special use permits.
    For the last 30 years, the Forest Service has required 
ownership by the United States, either solely or in narrow 
circumstances jointly with the permit holder, of water rights 
developed on NFS lands to support operation of ski areas in 
prior appropriation doctrine states. This policy was motivated 
by the concern that if water rights used to support ski area 
operations are severed from a ski area--for example, are sold 
for other purposes--the Forest Service would lose the ability 
to offer the area to the public for skiing.
    On June 23, 2014, the Forest Service published a notice of 
a proposed directive in the Federal Register to add riparian 
and prior appropriation doctrine water clauses for ski area 
permits to the Forest Service's Directive System. The final 
clauses, published in the Federal Register on December 30, 
2015, were the result of extensive public input, including 
input from the ski industry and a wide range of other water 
rights holders.
    The final directive contains two ski area water clauses, 
one for eastern States that follow the riparian doctrine for 
water rights and one for western States that follow the prior 
appropriation doctrine for water rights. Under a riparian 
doctrine system, water rights are appurtenant to the land, 
whereas under a prior appropriation doctrine system, water 
rights may be severed from the land. Most ski areas on NFS 
lands are in western states that adhere to the prior 
appropriation doctrine.
    The final directive does not require that ski area water 
rights be acquired in the name of the United States. Instead, 
the final directive focuses on assuring sufficiency of water to 
operate ski areas on NFS lands. This modified approach for ski 
area permits was determined to be appropriate given the 
characteristics of ski area water rights and ski areas. Unlike 
water rights diverted and used on NFS lands by holders of other 
types of authorizations, ski area water rights may involve 
long-term capital expenditures. In western States like Colorado 
and New Mexico, holders of ski area permits may have to 
purchase senior water rights at considerable expense to meet 
current requirements for snowmaking to maintain viability. 
Holders of ski area permits need to show the value of these 
water rights as business assets, particularly during 
refinancing or sale of a ski area. The value of these water 
rights is commensurate with the significant investment in 
privately owned improvements at ski areas. These investments 
were recognized by Congress in enactment of the National Forest 
Ski Area Permit Act, which authorizes permit terms of up to 40 
years. 16 U.S.C. 497b(b)(1).
    In addition to these financial issues, the land ownership 
patterns at ski areas--particularly the larger ones--often 
involve a mix of NFS and private lands inside and outside the 
ski area permit boundary, which makes it difficult to implement 
a policy of sole Federal ownership for ski area water rights. 
Much of the development at ski areas is on private land at the 
base of the mountains. As a result, water diverted and used on 
NFS lands in the ski area permit boundary is sometimes used on 
private land, either inside or outside the permit boundary.
    With respect to sufficiency of water for ski area 
operations, the final directive includes a definition for the 
phrase, ``sufficient quantity of water to operate the ski 
area,'' and clarifies when and how the holder must demonstrate 
sufficiency of water to operate the permitted ski area and new 
ski area water facilities; addresses availability of Federally 
owned ski area water rights during the permit term; and 
addresses availability of holder-owned ski area water rights 
during the permit term and upon permit revocation or 
termination.
    At this time, ski industry representatives have indicated 
support for the final directive, and members of Congress have 
indicated appreciation for the agency's efforts to work 
collaboratively on this solution. It is USDA's position that 
additional legislation is not necessary to ensure protection of 
privately-owned water rights.
    USDA has not had adequate time to analyze the effects of 
the bill on Forest Service groundwater policies. However, since 
the Forest Service published its proposed groundwater directive 
for notice and comment on May 6, 2014, the Agency has heard 
from several States and other parties who are concerned about 
the intent of and language in the proposal. By the end of the 
comment period, the Agency had received 260 comments from 
elected officials, States, Tribes, organizations, and 
individuals from across the country. The House Natural 
Resources Committee, as well as several States, asked the 
Agency not to proceed with the proposed draft and to consult 
with them before moving forward. The Forest Service has heard 
these concerns and stopped work on the proposed groundwater 
directive, and the Agency will not move forward with our 
original proposal. Rather, we have committed to engaging with 
States, Tribes, and citizens to fully understand concerns and 
work collaboratively to address them before any future actions 
or proposals would result. Should the Forest Service choose to 
move forward with a new proposed directive in the future, it 
would only be after engaging with States and making sure that 
the Agency thoroughly understands their concerns in order to 
address them. The Forest Service continues to consider 
improvements to direction to Agency staff on groundwater to 
maintain its stewardship responsibilities in a consistent, 
credible, and transparent manner.


     s. 2902, title i subtitle b--protecting critical water supply 
                               watersheds


    USDA has not had adequate time to analyze the effects of 
this subtitle but upon initial review opposes NEPA provisions 
that are beyond the scope of Farm Bill and HFRA authorities. As 
a general matter, the Forest Service welcomes legislation that 
incentivizes collaboration and expands the toolset we can use 
to complete critical work on our nation's forests, without 
overriding environmental laws.
    While we support efforts to provide tools to support 
improved forest management, capacity constraints due to the 
present approach to budgeting for wildfire continue to hinder 
further efforts to improve the health and resiliency of the 
nation's forests. In fiscal year 1995, the Forest Service spent 
16 percent of its budget on firefighting. Today the agency 
spends more than half of its budget in fire management 
activities and has seen a corresponding decline in non-fire 
staffing of 39 percent since 1998. Notwithstanding these 
challenges, through collaboration, the Forest Service has 
consistently increased both the number of acres treated 
annually to improve watershed resilience and timber 
production--increasing timber harvest by 18 percent since 2008.
    The frequency and intensity of wildfire, the rising cost of 
assets needed to deploy against the spread of wildfire, and the 
way that fire suppression is paid for constrain the agency's 
capacity to realize additional gains through efficiencies and 
partnerships alone. The most important action Congress can make 
now in advancing the pace and scale of forest restoration is to 
fix the fire funding problem.
    The health of the national forests and the communities we 
serve are our shared priority. The Forest Service is 
accelerating restoration and management of the national forests 
through innovative approaches and increased collaboration, 
though it is clear that more work needs to be done, and we 
welcome practical legislation that provides for expedient and 
responsible efficiencies in the execution of that work.
    USDA defers to Department of Interior on provisions that 
most directly affect their agencies.


                s. 2524--bolts ditch access and use act


    S. 2524 seeks to resolve issues associated with the use and 
maintenance of Bolts Ditch near the Town of Minturn, Colorado. 
The headgate and approximately 450 lineal feet of the ditch are 
located within the Holy Cross Wilderness on the White River 
National Forest. The United States opposed two water rights 
application cases associated with this ditch in 2006 and 2007. 
Subsequently, the United States and the applicants reached a 
stipulated agreement and settlement in both cases; where it was 
agreed that the point of diversion would be removed from the 
Holy Cross Wilderness unless (1) the point of diversion in the 
Holy Cross Wilderness is specifically authorized by the 
President, (2) the Holy Cross Wilderness boundary is altered to 
exclude the point of diversion from the Wilderness area, or (3) 
the point of diversion is confirmed by Congress to be 
specifically included as a part of the authorization of the 
Homestake Reservoir Project within the Holy Cross Wilderness 
Area.
    S. 2524 would direct the Secretary of Agriculture to issue 
a special use permit to the Town of Minturn authorizing non-
motorized access to use and perform routine maintenance on the 
Bolts Ditch headgate and 450 lineal feet of Bolts Ditch in 
accordance with US Forest Service wilderness regulation. This 
bill does not authorize new construction or reconstruction.
    S. 2524 has the support of Eagle County, the Colorado River 
District, and local and national wilderness advocacy 
organizations.
    The Department does not oppose S. 2524.
    This concludes my remarks. I would be happy to answer any 
questions. Thank you for the opportunity to testify.

                        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.

                                  [all]