[Senate Report 115-96]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 126
                                                       
                                                       
115th Congress}                                            { Report
                                 SENATE
 1st Session  }                                            { 115-96

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TO AUTHORIZE THE USE OF THE ACTIVE CAPACITY OF THE FONTENELLE RESERVOIR
 
                                _______
                                

                  June 8, 2017.--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. 199]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 199) to authorize the use of the active 
capacity of the Fontenelle Reservoir, having considered the 
same, reports, favorably thereon without amendment and 
recommends that the bill do pass.

                                PURPOSE

    The purpose of S. 199 is to authorize the use of the active 
capacity of the Fontenelle Reservoir.

                          BACKGROUND AND NEED

    Fontenelle Reservoir in the State of Wyoming 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, flood 
control, and municipal and industrial water use, as primary 
purposes, with power generation specified as the only secondary 
purpose.
    Currently, Wyoming has the perpetual right to 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.
    S. 199 would authorize the Secretary to enter into an 
agreement with the State of Wyoming to make infrastructure 
improvements to enable the use of all active storage capacity 
of Fontenelle Dam and Reservoir, including the placement of 
sufficient riprap on the upstream face of Fontenelle Dam, on 
the condition that the State pay for the entire project, 
including the study, design, planning, and construction of the 
project.

                          LEGISLATIVE HISTORY

    S. 199 was introduced by Senator Barrasso on January 24, 
2017.
    Companion legislation, H.R. 648, was introduced by 
Representative Cheney in the House of Representatives on the 
same day. H.R. 648 was passed by the House of Representatives 
on a vote of 408-0 on March 15, 2017, and was received by the 
Senate and referred to the Committee on Energy and Natural 
Resources on March 21, 2017.
    In the 114th Congress, S. 1305 was introduced by Senator 
Barrasso on May 12, 2015. The Subcommittee on Water and Power 
held a hearing on S. 1305 on June 18, 2015. The Committee on 
Energy and Natural Resources met in open business session on 
July 30, 2105, and ordered S. 1305 favorably reported as 
amended (S. Rept. 114-135).
    The measure was included in Amendment No. 3234, which the 
Senate agreed to on April 19, 2016, as an amendment to S. 2012, 
the Energy Policy Modernization Act of 2016, which the Senate 
passed, as amended, on April 20, 2016.
    Companion legislation, H.R. 2273, was introduced by 
Representative Lummis in the House of Representatives on May 
12, 2015. The Subcommittee on Water, Power and Oceans held a 
hearing on June 25, 2015. The Committee on Natural Resources 
reported H.R. 2273, as amended, on March 14, 2016 (H. Rept. 
114-450), and the House of Representatives passed the bill, as 
amended, by voice vote on July 5, 2016. The bill was received 
by the Senate and placed on the Legislative Calendar on July 6, 
2016.
    The Committee on Energy and Natural Resources met in open 
business session on March 30, 2017, and ordered S. 199 
favorably reported.

                        COMMITTEE RECOMMENDATION

    The Senate Committee on Energy and Natural Resources, in an 
open business session on March 30, 2017, by a majority voice 
vote of a quorum present, recommends that the Senate pass S. 
199.

                      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.
    Subsection (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. 199--To authorize the use of the active capacity of the Fontenelle 
        Reservoir

    S. 199 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. 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 the 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. 199 also would require the state to contribute 
100 percent of the costs to design and construct the project. 
Those contributions would be classified as offsetting receipts, 
which are treated as reductions in direct spending, and would 
subsequently be spent without further appropriation.
    Enacting S. 199 would increase receipts and the associated 
direct spending; therefore, pay-as-you-go procedures apply. 
However, CBO estimates that the net effect on the budget would 
be negligible. Enacting the bill would not affect revenues.
    CBO also 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 2028.
    S. 199 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 the 
state to fund the project or participate in cooperative 
agreements would result from complying with conditions of 
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

    Because S. 199 is similar to legislation considered by the 
Committee in the 114th Congress, the Committee did not request 
Executive Agency views. The testimony provided by the Bureau of 
Reclamation at the hearing before the Subcommittee on Water and 
Power on June 18, 2015, follows:

  Statement of Dionne Thompson, Deputy Commissioner for External and 
Intergovernmental Affairs, Bureau of Reclamation U.S. 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.

                                  [all]