[Senate Report 115-320]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 539
115th Congress      }                                   {       Report
                                 SENATE
 2d Session         }                                   {      115-320

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



 
              SANTA ANA RIVER WASH PLAN LAND EXCHANGE ACT

                                _______
                                

                August 15, 2018.--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 H.R. 497]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (H.R. 497) to direct the Secretary of the 
Interior to convey certain Federal lands in San Bernardino 
County, California, to the San Bernardino Valley Water 
Conservation District, and to accept in return certain non-
Federal lands, and for other purposes, having considered the 
same, reports favorably thereon without amendment and 
recommends that the bill do pass.

                                PURPOSE

    The purpose of H.R. 497 is to direct the Secretary of the 
Interior (Secretary) to enter into a land exchange with the San 
Bernardino Valley Water Conservation District (District), to 
convey certain Federal lands in San Bernardino County, 
California, in exchange for certain non-Federal lands owned by 
the District.

                          BACKGROUND AND NEED

    The District, along with San Bernardino County, the Cities 
of Redlands and Highlands, state and Federal Fish and Wildlife 
Service agencies, the Bureau of Land Management (BLM), 
environmental groups, and other stakeholders, have been working 
since 1993 to develop the Upper Santa Ana Wash Land Management 
and Habitat Conservation Plan (Plan) along the Santa Ana River 
floodplain just below Seven Oaks Dam in California. The Plan 
covers roughly 4,600 acres of both public and private land. 
Once fully implemented, the Plan will provide for habitat 
protection, groundwater recharge, construction of public 
trails, and continued mining of aggregate.
    H.R 497 would direct the exchange of about 310 acres of 
pristine land owned by the District for roughly 327 acres of 
BLM lands nearby to facilitate the Plan's implementation. The 
lands to be conveyed by the District to BLM are important 
habitat for a number of species listed under the Endangered 
Species Act (16 U.S.C. 1531 et seq.), including the San 
Bernardino Merriam's kangaroo rat, Santa Ana River woolly star 
flower, Coastal California gnatcatcher, and the Slender-horned 
spineflower. The BLM land to be exchanged with the District 
will allow for the construction of additional settling ponds to 
realize approximately 1,200 acre feet annually for groundwater 
recharge.

                          LEGISLATIVE HISTORY

    Representative Cook introduced H.R. 497 in the House of 
Representatives on January 12, 2017. The Committee on Natural 
Resources' Subcommittee on Federal Lands held a hearing on H.R. 
497 on March 5, 2017, and favorably reported it, as amended, on 
June 2, 2017. H.R. 497, as amended, was passed by the House of 
Representatives on June 27, 2017, by a vote of 424 to 0.
    Senator Feinstein introduced companion legislation, S. 357, 
on February 13, 2017. The Subcommittee on Public Lands, Forests 
and Mining conducted a hearing on S. 357 on July 26, 2017.
    The Committee on Energy and Natural Resources met in open 
business session on May 17, 2018, and ordered H.R. 497 
favorably reported.

                        COMMITTEE RECOMMENDATION

    The Senate Committee on Energy and Natural Resources, in 
open business session on May 17, 2018, by a majority voice vote 
of a quorum present recommends that the Senate pass H.R. 497.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    Section 1 provides the short title.

Section 2. Definitions

    Section 2 contains definitions.

Section 3. Exchange of land; equalization of value

    Subsection (a) directs the Secretary, upon an offer made by 
the District to exchange lands with the United States, to 
convey to the District all right, title and interest of the 
United States in and to the 327 acres of Federal land, as well 
as any such portion of the 90 acres of the Federal exchange 
parcel, as may be needed to equalize the values of the land 
exchanged. The Secretary is further directed to accept from the 
District all right, title, and interest of the District in and 
to the 310 acres of non-Federal land, and any portion of the 59 
acres of the non-Federal exchange parcel, as may be required to 
equalize the values of the land exchanged. This subsection 
further states that such land exchange is subject to valid 
existing rights, is conditioned upon any needed equalization 
payment, and is to be conveyed within two years of the Act's 
enactment.
    Subsection (b) authorizes equalization payments for the 
land exchange and specifies that such payments must first be 
made by in-kind transfers of the Federal or non-Federal 
exchange parcels by the Secretary or the District. The fair 
market value of the applicable exchange parcel is to be 
credited against any required equalization payment. If the 
credit does not offset the entire amount of the required 
equalization payment and the District is in arrears, the 
District may make an equalization payment to the United States, 
notwithstanding the Federal Land Policy and Management Act 
(FLPMA, 43 U.S.C. 1716 et seq.) or the exchange shall not 
proceed. If the credit does not offset the entire amount of the 
required equalization payment and the Secretary is in arrears, 
the Secretary is directed to order the exchange without any 
additional equalization payment by the United States.
    Subsection (c) specifies that the value of the land to be 
exchanged is to be determined by appraisals that are conducted 
in accordance with nationally recognized standards.
    Subsection (d) specifies the title format for the land 
exchange.
    Subsection (e) directs the Secretary to finalize the 
applicable map and legal descriptions of the land to be 
exchanged. This subsection further authorizes the Secretary to 
correct minor errors and states that the map and legal 
descriptions shall be on file in appropriate BLM offices and 
made available for public inspection.
    Subsection (f) states that the District shall pay for any 
conveyance-related costs as a condition of the conveyance.

Section 4. Applicable law

    Section 4 waives the applicability of the Act of February 
20, 1909 (35 Stat. 641) for purposes of the land exchange 
authorized by this Act. This subsection further applies FLPMA 
to the exchange, except as otherwise provided in this Act.

Section 5. Cancellation of Secretarial Order 241

    Section 5 terminates Secretarial Order 241, dated November 
11, 1929, regarding withdrawing certain Federal lands for an 
unconstructed transmission line.

                   COST AND BUDGETARY CONSIDERATIONS

    The following estimate of the costs of this measure has 
been provided by the Congressional Budget Office:
    H.R. 497 would require the Bureau of Land Management (BLM) 
to convey 327 acres of federal land to the San Bernardino 
Valley Water Conservation District in California in exchange 
for 310 acres of land owned by the district. Under the 
legislation, BLM would be required to complete the exchange if 
the district requests, under the condition that the parcels to 
be exchanged are of equal value. If the parcels are not of 
equal value, the number of acres conveyed by the party with the 
lower valued land would be increased. Any lands received by BLM 
in the exchange would be managed for conservation purposes.
    CBO estimates that enacting H.R. 497 would affect direct 
spending; therefore, pay-as-you-go procedures apply. However, 
CBO estimates that any net effect on direct spending would be 
negligible. The federal lands that would be exchanged under the 
legislation generate receipts totaling $7,000 a year from 
several rights-of-way. If those lands were conveyed, the agency 
could request that the holders of those rights purchase 
permanent easements prior to the conveyance. The proceeds from 
the sale of those easements would partially or fully offset the 
lost receipts from the rights-of-way. Enacting the legislation 
would not affect revenues.
    CBO also estimates that enacting H.R. 497 would not 
increase net direct spending or on-budget deficits in any of 
the four consecutive 10-year periods beginning in 2029.
    H.R. 497 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act. The 
land exchange authorized in the legislation would benefit the 
San Bernardino Valley Water Conservation District. Any costs 
incurred by the district associated with the land exchange 
would be voluntary.
    On May 22, 2017, CBO transmitted a cost estimate for H.R. 
497, the Santa Ana River Wash Plan Land Exchange Act, as 
ordered reported by the House Committee on Natural Resources on 
April 27, 2017. The two versions of the legislation are 
similar, and CBO's estimates of their budgetary effects are the 
same.
    The CBO staff contact for this estimate is Jeff LaFave. The 
estimate was reviewed 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 H.R. 497. 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 H.R. 497, as ordered reported.

                   CONGRESSIONALLY DIRECTED SPENDING

    H.R. 497, 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 Department of the Interior at 
the July 26, 2017, hearing on S. 357, the companion legislation 
to H.R. 497, follows:

 Statement of John Ruhs, Acting Deputy Director for Operations, Bureau 
          of Land Management, U.S. Department of the Interior

    Thank you for the opportunity to present the views of the 
Department of the Interior on S. 357, the Santa Ana River Wash 
Plan Land Exchange Act. S. 357 would direct the exchange of 
approximately 327 acres of public lands managed by the Bureau 
of Land Management (BLM) for approximately 310 acres of land 
managed by the San Bernardino Valley Water Conservation 
District (WCD) in San Bernardino County, California.
    The Department supports the bill but would like to work 
with the sponsor and the Subcommittee on a few modifications. 
We appreciate Senator Feinstein's support of this land 
exchange, which will help consolidate ownership of lands, allow 
for infrastructure improvements, further mineral development, 
and contribute to habitat protection and conservation efforts 
in the Upper Santa Ana River Wash.


                               background


    For over twenty years, the BLM has been an active 
participant in coordinated land use planning and conservation 
efforts in the Upper Santa Ana River Wash (Wash Planning Area). 
This area is approximately one mile below the Seven Oaks Dam, 
near the City of Redlands, California, and involves a mix of 
both public and private land ownership.
    The Wash Planning Area is regionally important for flood 
control, groundwater recharge, recreation, and habitat for 
threatened and endangered species. The area is also an 
important source for aggregate for concrete products and 
roadway construction materials. Under a Public Law from 1909 
(``Act of February 20, 1909''), Congress set aside certain 
lands within this area for water recharge and excluded mining 
on BLM-managed lands. The diverse resource values within the 
region served as an impetus for the formation of a task force 
in 1993 to help coordinate land uses irrespective of land 
ownership boundaries. City and county officials, industry 
representatives, WCD officials, and the BLM were key members of 
the task force.
    After 15 years of collaboration and engagement with 
stakeholders representing water, mining, flood control, 
wildlife, and municipal interests, the task force finalized a 
Regional Plan to coordinate the uses of the Wash Planning Area. 
Based on this Regional Plan, the users of the Wash Planning 
Area are developing a Habitat Conservation Plan (HCP) with the 
U.S. Fish and Wildlife Service. Taken together, these 
management strategies serve to guide land uses and activities 
while also improving the wildlife habitat in the Upper Santa 
Ana River Wash.
Public Land Exchanges
    Under the Federal Land Policy Management Act of 1976 
(FLPMA), the BLM's mission is to sustain the health, diversity, 
and productivity of the public lands for the use and enjoyment 
of present and future generations. FLPMA provides the BLM with 
a clear multiple-use and sustained yield mandate that the 
agency implements through its land use planning process.
    Among other purposes, land exchanges allow the BLM to 
acquire environmentally-sensitive lands while transferring 
public lands into non-Federal ownership for local needs and the 
consolidation of scattered tracts. The BLM conducts land 
exchanges pursuant to Section 206 of FLPMA, which provides the 
agency with the authority to undertake such exchanges, or when 
given specific direction by Congress. To be eligible for 
exchange under Section 206 of FLPMA, BLM-managed lands must 
have been identified as potentially available for disposal 
through the land use planning process. Extensive public 
involvement is critically important for such exchanges to be 
successful. The Department notes that the process of 
identifying lands as potentially available for exchange does 
not include the clearance of impediments to disposal or 
exchange, such as the presence of threatened and endangered 
species, cultural or historic resources, mining claims, oil and 
gas leases, rights-of-way, and grazing permits. Under FLPMA, 
this clearance must occur before the exchange can be completed.


                                 s. 357


    S. 357 would require within two years of the bill's 
enactment the exchange of approximately 327 acres of BLM-
managed public lands for approximately 310 acres of WCD-
administered private lands in San Bernardino County, 
California. The purpose of the exchange would be to transfer 
public lands to the WCD for economic development and to acquire 
environmentally sensitive private lands for consolidated 
management of public lands.
    The land exchange would be subject to valid existing 
rights, appraisals would be conducted, and it would be 
completed pursuant to FLPMA Section 206. The WCD would be 
responsible for all costs associated with the exchange. If the 
value of the public lands proposed for exchange exceeds the 
value of the private lands, up to 59 additional acres of 
private lands may be added to the proposed exchange to equalize 
values. If the additional private lands are insufficient to 
equalize values, the WCD must make a cash equalization payment 
in accordance with the land exchange provisions of FLPMA or 
terminate the exchange. If the value of the private lands 
proposed for exchange exceeds the value of the public lands, up 
to an additional 90 acres of public lands may be added to the 
proposed exchange to equalize values. In the event that the 
additional public lands are insufficient to equalize values, 
the Secretary is not required to make a cash equalization 
payment to the WCD.
    The bill would also exempt any public lands proposed for 
exchange to the WCD from the ``Act of February 20, 1909.'' The 
private lands proposed for exchange to the BLM, however, would 
continue to be subject to the continued use, maintenance, 
operation, construction, relocation, or expansion of 
groundwater recharge facilities to the extent that such 
activities are not in conflict with the HCP. Finally, the bill 
revokes Secretarial Order 241 from November 11, 1929, which 
withdrew a portion of the public land for a transmission line 
that ultimately was not constructed.


                                analysis


    The Department supports the completion of land exchanges 
that consolidate ownership of scattered tracts of lands, 
thereby streamlining land management tasks and enhancing 
resources protection and providing opportunities for resource 
development. In this particular exchange, the BLM would acquire 
quality habitat for the Federally-listed Santa Ana River 
woolly-star, slender-horned spineflower, coastal California 
gnatcatcher, and the San Bernardino kangaroo rat, while 
facilitating mineral and infrastructure development for local 
communities across the region.
    We have a few concerns with the bill's provisions, however, 
and we would like the opportunity to work with the sponsor and 
Subcommittee to incorporate in the bill standard appraisal and 
equalization of values language, which has been used in many 
other successful legislated land exchanges. The Department is 
committed to continuing its adherence to the Uniform Appraisal 
Standards for Federal Land Acquisition and Uniform Standards of 
Professional Appraisal Practice and recommends the appraisal 
process be managed by DOI's Office of Valuation Services. The 
Department notes that the public lands proposed for exchange 
have not yet been fully analyzed under the National 
Environmental Policy Act (NEPA), the Endangered Species Act 
(ESA), the National Historic Preservation Act (NHPA), or the 
FLPMA public interest determination. These review requirements 
provide for public engagement, opportunities to consider 
environmental and cultural impacts, and help ensure that 
unknown or unforeseen issues are not overlooked. Finally, we 
understand that the Department of Justice would like to work 
with the Subcommittee to address a constitutional concern with 
some of the text in the bill.


                               conclusion


    Thank you for the opportunity to provide testimony on S. 
357, the Santa Ana River Wash Plan Land Exchange Act. The 
Department supports the bill, but would like to work with the 
sponsor and the Subcommittee on a few modifications. I would be 
happy to answer any questions.

                        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]