[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
H.R. 4708, H.R. 4739 and H.R. 5039
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON WATER AND POWER
of the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
July 9, 2002
__________
Serial No. 107-135
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
Committee address: http://resourcescommittee.house.gov
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COMMITTEE ON RESOURCES
JAMES V. HANSEN, Utah, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska, George Miller, California
Vice Chairman Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana Dale E. Kildee, Michigan
Jim Saxton, New Jersey Peter A. DeFazio, Oregon
Elton Gallegly, California Eni F.H. Faleomavaega, American
John J. Duncan, Jr., Tennessee Samoa
Joel Hefley, Colorado Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado Calvin M. Dooley, California
Richard W. Pombo, California Robert A. Underwood, Guam
Barbara Cubin, Wyoming Adam Smith, Washington
George Radanovich, California Donna M. Christensen, Virgin
Walter B. Jones, Jr., North Islands
Carolina Ron Kind, Wisconsin
Mac Thornberry, Texas Jay Inslee, Washington
Chris Cannon, Utah Grace F. Napolitano, California
John E. Peterson, Pennsylvania Tom Udall, New Mexico
Bob Schaffer, Colorado Mark Udall, Colorado
Jim Gibbons, Nevada Rush D. Holt, New Jersey
Mark E. Souder, Indiana Anibal Acevedo-Vila, Puerto Rico
Greg Walden, Oregon Hilda L. Solis, California
Michael K. Simpson, Idaho Brad Carson, Oklahoma
Thomas G. Tancredo, Colorado Betty McCollum, Minnesota
J.D. Hayworth, Arizona Tim Holden, Pennsylvania
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana
Tim Stewart, Chief of Staff
Lisa Pittman, Chief Counsel/Deputy Chief of Staff
Steven T. Petersen, Deputy Chief Counsel
Michael S. Twinchek, Chief Clerk
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
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SUBCOMMITTEE ON WATER AND POWER
KEN CALVERT, California, Chairman
ADAM SMITH, Washington, Ranking Democrat Member
Richard W. Pombo, California George Miller, California
George Radanovich, California Peter A. DeFazio, Oregon
Greg Walden, Oregon, Calvin M. Dooley, California
Vice Chairman Grace F. Napolitano, California
Michael K. Simpson, Idaho Hilda L. Solis, California
J.D. Hayworth, Arizona Brad Carson, Oklahoma
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
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C O N T E N T S
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Page
Hearing held on July 9, 2002..................................... 1
Statement of Members:
Calvert, Hon. Ken, a Representative in Congress from the
State of California........................................ 1
Prepared statement on H.R. 4708, H.R. 4739 and H.R. 5039. 2
Doggett, Hon. LLoyd, a Representative in Congress from the
State of Texas............................................. 3
Gibbons, Hon. Jim, a Representative in Congress from the
State of Nevada............................................ 10
Prepared statement on H.R. 5039.......................... 11
Simpson, Hon. Michael K., a Representative in Congress from
the State of Idaho......................................... 9
Statement of Witnesses:
Garcia, Hon. Gustavo, Mayor, City of Austin, Texas........... 4
Prepared statement on H.R. 4739.......................... 6
Hodges, Bennie, Manager, Pershing County Water Conservation
District................................................... 28
Prepared statement on H.R. 5039.......................... 30
Keys, John W. III, Commissioner, Bureau of Reclamation, U.S.
Department of the Interior, Oral statement on H.R. 4708.... 13
Oral statement on H.R. 4739.............................. 16
Oral statement on H.R. 5039.............................. 18
Prepared statement on H.R. 4708.......................... 15
Prepared statement on H.R. 4739.......................... 17
Prepared statement on H.R. 5039.......................... 19
Malloch, Steven, Counsel, Western Water Project, Trout
Unlimited, Inc............................................. 34
Prepared statement on H.R. 4708 and H.R. 5039............ 36
Raybould, Jeff, Chairman, Board of Directors, Fremont-Madison
Irrigation District........................................ 26
Prepared statement on H.R. 4708.......................... 27
Additional materials supplied:
Semanko, Norman M., Executive Director and General Counsel,
Idaho Water Users Association, Statement submitted for the
record on H.R. 4708........................................ 48
H.R. 4708, TO AUTHORIZE THE SECRETARY OF THE INTERIOR TO CONVEY CERTAIN
FACILITIES TO THE FREMONT-MADISON IRRIGATION DISTRICT; H.R. 4739, TO
AMEND THE RECLAMATION WASTEWATER AND GROUNDWATER STUDY AND FACILITIES
ACT TO AUTHORIZE THE SECRETARY OF THE INTERIOR TO PARTICIPATE IN THE
DESIGN, PLANNING, AND CONSTRUCTION OF A PROJECT TO RECLAIM AND REUSE
WASTEWATER WITHIN AND OUTSIDE OF THE SERVICE AREA OF THE CITY OF AUSTIN
WATER AND WASTEWATER UTILITY, TEXAS; AND H.R. 5039, TO DIRECT THE
SECRETARY OF THE INTERIOR TO CONVEY TITLE TO CERTAIN IRRIGATION PROJECT
PROPERTY IN THE HUMBOLDT PROJECT, NEVADA, TO THE PERSHING COUNTY WATER
CONSERVATION DISTRICT, PERSHING COUNTY, LANDER COUNTY, AND THE STATE OF
NEVADA.
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Tuesday, July 9, 2002
U.S. House of Representatives
Subcommittee on Water and Power
Committee on Resources
Washington, DC
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The Subcommittee met, pursuant to call, at 2:07 p.m., in
room 1324, Longworth House Office Building, Hon. Ken Calvert
[Chairman of the Subcommittee] presiding.
STATEMENT OF THE HON. KEN CALVERT, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. Calvert. Good afternoon. The Subcommittee of Water and
Power will come to order.
The Committee is meeting today to hear testimony on three
bills. H.R. 4708, the Fremont-Madison Conveyance Act; H.R.
5039, the Humboldt Project Conveyance Act; and H.R. 4739, the
City of Austin Water Reclamation Authorization Act.
Under Rule 4(B) of the Committee rules any oral opening
statements at hearing are limited to the Chairman and the
Ranking Minority Member. If other members have statements, they
can be included in the hearing record under unanimous consent.
The subject of Federal facilities title transfer has been
of particular interest for this Committee and others throughout
the west. Title transfer legislation not only representatives a
concerted effort to help shrink the Federal Government, but it
also transfers facilities into the hands of those who can more
officially operate and maintain them.
H.R. 4708 directs the Secretary of Interior to transfer all
right, title and interest of the United States in and to all
components of the water system operated and maintained by the
Fremont-Madison Irrigation District to the District. This title
transfer must take place pursuant to a Memorandum of Agreement
between the Secretary of Interior and the Fremont-Madison
Irrigation District, dated September 13, 2001.
The District will be responsible for administrative costs
including any review required under the National Environmental
Policy Act incurred during the conveyance process up to
$40,000.
Mr. Calvert. H.R. 5039 provides for the transfer of lands
and facilities to the Pershing County Water Conservation
District, Pershing County, Lander County, and the State of
Nevada within 2 years of the enactment of this legislation.
H.R. 5039 requires that a report be submitted to Congress
if the title transfer does not take place within a specified
timeframe. This legislation also directs the Secretary of the
Interior to not require any of the entities receiving land or
facilities to pay more than $40,000 for administrative and NEPA
costs.
Mr. Calvert. Although unrelated, the next bill we will hear
today deals with another important subject for this Committee,
water recycling. H.R. 4739 will amend the Reclamation
Wastewater and Groundwater Study and Facilities Act to
authorize the Secretary of Interior to participate in the
design, planning and construction of a project to reclaim and
reuse wastewater within and outside the service area of the
City of Austin, Texas, Water and Wastewater Utility.
Mr. Calvert. The Chairman now recognizes the Ranking
Minority Member who is not here, but any opening statement will
certainly submit for the record.
Mr. Calvert. We have several Members who are going to
testify, but first, Mr. Doggett, who is the sponsor of H.R.
4739, would like to have an opening statement and introduce his
special guests.
[The prepared statement of Mr. Calvert follows:]
Statement of The Honorable Ken Calvert, Chairman, Subcommittee on Water
and Power
The subject of Federal facilities title transfer has been of
particular interest for this Committee and others throughout the west.
Title transfer legislation not only represents a concerted effort to
help shrink the Federal Government, but it also transfer's facilities
into the hands of those who can more efficiently operate and maintain
them.
In early 1995, the Department of the Interior announced that the
Bureau of Reclamation would transfer title to a significant number of
facilities to state and local governments. Since that time, Reclamation
officials have been working through a self-developed process to
implement that concept. Over ten title transfer bills have been signed
into law since the commencement of this process. This program remains a
high priority within the Subcommittee on Water and Power and
expeditious steps must be found to facilitate these transfers.
H.R. 4708 directs the Secretary of the Interior to transfer all
right, title, and interest of the United States in and to all
components of the water system that are operated and maintained by the
Fremont-Madison Irrigation District to the District. This title
transfer must take place pursuant to a memorandum of agreement between
the Secretary of the Interior and Fremont-Madison Irrigation District
dated September 13, 2001. The District will be responsible for all
administrative costs incurred during the conveyance process.
H.R. 5039 provides for the transfer of lands and facilities to the
Pershing County Water Conservation District, Pershing County, Lander
County, and the State of Nevada within two years of the enactment of
this legislation. H.R. 5039 requires that a report be submitted to
Congress if the title transfer doesn't take place within the specified
time frame. This legislation also directs the Secretary of the Interior
to not require any entity to pay more than $40,000 of administrative
and NEPA costs when NEPA compliance is estimated to cost $400,000.
Although unrelated, the next bill we will hear today deals with
another important subject for this Committee, water recycling. Natural
scarcity of fresh water makes the discovery of new and untapped sources
of water important to provide for future demand. One source of water
that has traditionally been overlooked is recycled water. Recycled
water is desirable because there is a constant supply; and, although
recycled water is mostly used in irrigation and industry, it also
relieves pressure on local streams and aquifers that currently provide
water for municipal and industrial use.
The importance of this resource was officially recognized in 1992
by the passing of Public Law 102-575. Title XVI of this law, also known
as the Reclamation Wastewater and Groundwater Study and Facilities Act,
authorized the Bureau of Reclamation to participate in the construction
of five water recycling projects. Since 1992, the Act has been revised
to include several other projects.
H.R. 4739 will amend the Reclamation Wastewater and Groundwater
Study and Facilities Act to authorize the Secretary of the Interior to
participate in the design, planning, and construction of a project to
reclaim and reuse wastewater within and outside of the service area of
the City of Austin Water and Wastewater Utility, Texas.
______
Mr. Doggett, you are recognized.
STATEMENT OF THE HON. LLOYD DOGGETT, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Doggett. Thank you very much, Mr. Chairman. It was my
good fortune to serve about 4 years ago on this Committee and I
am pleased to be back. I appreciate so much the help in advance
of today that your office and the Subcommittee staff
particularly has provided us on this piece of legislation. I
suppose that it is a little ironic that we are here today at
this time talking about water for Austin, Texas.
We are just a little north of the area that has suffered
the most severe floods, but today we have more water flowing
through the City of Austin than we know what to do with in the
Colorado River shed. Fortunately, no houses in it, but we are
here to discuss a subject that I know, Mr. Chairman, and other
Members of the Committee have expressed great interest on in
the past and that is how we make the most effective use of the
water we have.
We have many demands as well on water flowing out of the
Colorado River shed from all the neighboring areas and are
looking for ways to make the maximum use of the water that we
have through recycling projects.
I believe that the City of Austin is already a nationally
recognized leader in water resource planning and that this
legislation will help our community further the goals of water
conservation and sustainable development, goals that are very
important to our community, which is particularly sensitive to
the environment.
The reclaimed water service that we have now would be
supplemented by this project. For the last decade or so, the
City of Austin has developed and implemented long-range water
protection and conservation plans and with this legislation we
would be able to create a partnership between the City of
Austin and the Federal Government on this reclamation.
I believe that the legislation, designed with the
assistance of your staff, meets the eligibility requirements
and the goals established by the Bureau of Reclamation Title
XVI programs. We are well aware of the fact that there are many
projects out there already, there are many projects in a wide
range of areas that the Bureau has that it does not have fully
funded.
Our objective today is a realistic one of being sure that
the City of Austin and this important project are on the list
of those projects to be considered as funds become available in
the future.
It is my pleasure, Mr. Chairman, to introduce at this time
our Mayor, Gus Garcia. He has a lifelong commitment to our
community and a distinguished record of public service. He
recently was elected as Mayor and this is his first
opportunity, despite many years of involvement in the
legislative process, to testify here in Congress.
I believe that he can provide more insight into the
importance of this legislation for our community and how it
fits into the overall national objectives of seeing that we
maximize our water resources.
Thank you.
Mr. Calvert. The Mayor is recognized. Welcome, Mayor.
STATEMENT OF THE HON. GUSTAVO GARCIA, MAYOR OF AUSTIN, TEXAS
Mr. Garcia. Thank you, Mr. Chairman and Members of the
Subcommittee. Thank you for the opportunity to appear before
you to talk today about House Resolution 4739.
I would also like to thank our Congressman, Lloyd Doggett,
for introducing H.R. 4739 and for all his hard work on behalf
of the City of Austin.
Like he indicated, my name is Gus Garcia and I currently
serve as Mayor of the city with a population of 670,000 and
growing every day. The City of Austin offers the best big city
life and small town environment.
The City of Austin recognized early on that our high
quantity of life would attract growth, thus creating an
exceptional challenge in maintaining our unique ambiance.
Although we have overcome some difficult obstacles, today
Austin is nationally recognized as a leader in sustainable
growth management. This is just one of the sustainable growth
initiatives that we have in place.
The City of Austin Water Reclamation Project is a
sustainable growth initiative that fosters economic development
while minimizing impacts on the environment. It is a city
priority and a personal priority of mine.
In my written testimony which was filed with the Clerk of
the Committee, I provided background on Austin and its water
needs, our efforts to meet those needs and the role that we
envisioned for the Bureau of Reclamation's Title XVI in helping
to meet those needs.
H.R. 4739 amends the Reclamation Wastewater and Groundwater
Study and Facilities Act to authorize the Secretary of the
Interior to participate in the design, planning and
construction of a water reclamation project within the service
area of the City of Austin Water and Wastewater Utility.
The City of Austin owns and operates its water and
wastewater utility which has approximately 180,000 connections
and services about 754,470 water users because our service area
is a little bit larger than the city limits.
The utility service area covers 450 square miles and is
served by three water treatment plants and three wastewater
treatment plans.
If I may divert here for just a minute, we are talking
about building a fourth water treatment plant in an
environmental sensitive area. The City, I think, would be best
served if we could use reclaimed water to serve the needs of
our recreational areas and our industrial areas instead of
putting another water treatment plant and treating the water to
potable and drinking water standards.
With the Lower Colorado River is the source of Austin's
water supply, Austin's supplies potable water to approximately
70 percent of the people in the Lower Colorado Basin. Recently,
in response to inevitable future water shortages, the Texas
Legislature adopted a comprehensive statewide regional water
management plan.
Austin's rapid population growth has resulted in a rapidly
increased demand for water. During the 1990's, the city
experienced a 35 percent growth in population and a 43 percent
increase in peak day water demand. The State plan highly
recommends water conservation and reuse.
We are going into the months right now when we will have a
great deal of demand for our treated water. The City of Austin
has joined the statewide conservation effort by expanding its
Water Reclamation Program. The expansion of our Water
Reclamation system will assist in reducing the needs for
additional water treatment plan capacity and help us meet the
city's goal of achieving a more sustainable water supply.
Stated another way, the effective use of properly treated
effluent conserves this precious resource while reducing the
need to use potable water to satisfy needs that can be met by
using properly treated effluent.
Currently reclaimed water use is over five millions gallons
per day during the summer. Austin has operated its water
reclamation program since 1980. In 1992, the City of Austin
began planning for citywide expansion by developing a series of
master plan documents.
Currently, and throughout the funding process, the city
continues to collaborate with the Bureau of Reclamation on
those plans.
A significant constraint to implement our water reclamation
program, of course, is funding. These funding issues have
become more difficult because of the recent economic downturn.
I realize that under Title XVI, Federal funding is capped, but
the city is prepared and committed to covering the bulk of this
cost.
We believe that the City of Austin Water Reclamation
Program System expansion fits within the goals and objectives
of the Title XVI Program, specifically in the areas of
applicability, eligibility, financial capacity, ownership,
regionalism, and environmental benefits.
In conclusion, given the national importance of addressing
water needs and water quantity, Federal assistance to this
program is appropriate and welcome.
I hereby respectfully request that the Subcommittee approve
this bill and seek its final passage.
We appreciate your time and support and we thank you again
for this is opportunity to testify.
I would be pleased to answer any questions that you may
have. Thank you, Mr. Chairman.
[The prepared statement of The Hon. Gus Garcia follows:]
Statement of The Honorable Gustavo Garcia, Mayor, City of Austin, Texas
Chairman Calvert, Representative Smith and members of the
Subcommittee, thank you for the opportunity to appear before you today
to testify in favor of H.R. 4739. I would also like to thank our
Congressman, Lloyd Doggett, for introducing H.R. 4739 and for all of
his hard work on behalf of Austin.
My name is Gustavo Garcia and I am the Mayor of Austin, the capital
City of Texas. With a population of 670,000 Austin offers the best of
big city and small town life. Achieving this balance has not always
been easy. The City of Austin recognized early on that our high quality
of life would attract growth and that we would have to manage this
growth in order to maintain our high quality of life. Though we have
had to overcome some difficult obstacles, today Austin is nationally
recognized as a leader in sustainable growth that enhances communities,
fosters economic development and minimizes the impact on the
environment. The City's Water Reclamation Program is one part of that
effort. It is a City priority and a personal priority for me.
In my testimony, I will provide background on Austin and its water
needs, our efforts to meet those needs and the role that we envision
for the Bureau of Reclamation's Title 16 Program in helping to meet
those needs.
H.R. 4739
H.R. 4739 amends the Reclamation Wastewater and Groundwater Study
and Facilities Act to authorize the Secretary of the Interior to
participate in the design, planning, and construction of a project to
reclaim and reuse wastewater within the service area of the City of
Austin Water and Wastewater Utility.
About the City of Austin Water & Wastewater Utility
The City of Austin owns and operates its Water and Wastewater
Utility, which has approximately 180,000 residential, multifamily,
commercial, industrial, and wholesale connections, with a total number
of users of 754,470. The Utility's service area covers 450 square miles
and is served by three wastewater treatment plants with a capacity of
130 million gallons/day and three water treatment plants with a peak
capacity of 265 million gallons/day. Austin has operated its Water
Reclamation Program since the early 80's, providing irrigation water
for golf courses. In 1992 the City of Austin began researching,
planning and developing an infrastructure system for the city-wide use
of reclaimed water.
During this time, the City of Austin has been a leader in water
conservation and reuse issues and promotion. While the commendations
and awards are many for the Utility's Water Conservation Program, a few
stand out:
LThe City has repeatedly received the Water Mark award
from the American Water Works Association for raising the public level
of understanding of water conservation issues as well as their top
award for conservation and reuse in the category of a Direct Program
for a Large Utility.
LIn 1996, the City received the United States Department
of the Interior, Bureau of Reclamation Long-Term Conservation Award for
Outstanding Conservation Achievements.
About Texas Water Resources
Future water shortages are inevitable in Texas. The Texas
legislature has recently adopted a comprehensive statewide water
management plan, unique in its approach in developing statewide
individual regional plans. The increasing scarcity of new water
supplies, the high cost of new water supply development and heightened
environmental concerns are the driving force behind the State'' plan.
Building on this effort, the Texas Legislature authorized sixteen
planning groups to develop regional plans for the development and
management of water resources over the next fifty years. These plans
identify current and future water demands, water availability,
potential water shortages, and potential solutions that address
shortages.
The State's regional plan identifies Austin as an area facing a
water shortage. Rapid population growth has resulted in rapidly
increased water use. During the 1990's, the City experienced a 35%
percent growth in population and a 43% percent increase in peak day
water demand
Against this backdrop, the City has joined the statewide effort.
Expanding Austin's Water Reclamation Program has been one of several
measures used to assist in meeting and balancing the water demands on
the Lower Colorado River, from which Austin draws its raw water supply.
The City of Austin provides potable water for 70% of the people in the
Lower Colorado River basin.
The City of Austin Water Reclamation Program
During peak irrigation demands in summer, the reclaimed water use
is over 5 million gallons of reclaimed water per day, predominantly for
landscape irrigation. An electric power utility will soon be a major
customer, and computer microchip manufacturers have expressed an
interest in reclaimed water. Other potential customers, such as the
University of Texas, are interested in using reclaimed water if
distribution lines can be extended to their property. Based on the high
quality of the effluent, the major uses for reclaimed water in Austin
include irrigation, cooling tower water, manufacturing processes and
toilets.
The City has developed a series of master planning documents
identifying potential large institutional, industrial, commercial, and
recreational customers. The planning documents also identified service
areas with necessary extensions on the north side of the City, on the
south side of the City, and in a satellite area. Satellite systems are
separate from the Utility's infrastructure due to geographical
constraints.
The expansion of our water reclamation system will provide a number
of benefits. It will assist in buffering the need for additional water
treatment plant capacity and help us meet the City's goals in achieving
a more sustainable water supply.
Reclamation and Reuse Project--North System Details
In 2000, Austin began implementing the plan that will serve
reclamation customers north of the Colorado River with construction of
the water reclamation pumping and storage facility at the Walnut Creek
Water Wastewater Treatment Plant and transmission main to the central
part of town. This phase of the project was completed in the spring of
2002.
The north system extensions consist of 52 miles of transmission
mains, four pump stations, and three storage tanks. The North System
will be implemented in eight phases. The estimated cost to complete
construction of all phases of the North System is $46 million. This
estimated cost for the North System does not include the approximately
$14 million already spent on the starter system.
These pumping and storage facilities and transmission mains will
serve as the backbone to the downtown area, the University of Texas,
several golf courses and various high tech manufacturing facilities.
Along with other potential large volume customers in the central part
and northeast part of town, it is estimated that these customers will
use approximately 5.8 to 7.3 billion gallons of reclaimed water per
year. The proposed alignment and facility locations for the North
System were located to implement the system as larger customers come on
line.
Reclamation and Reuse Project--South System Details
The City's Water Reclamation Initiative South System Master Plan
identifies potential customers south of Town Lake and the Colorado
River and delineates a service area that could be served by the South
Austin Regional Wastewater Treatment Plant. The south system extensions
consist of 66 miles of transmission mains, four pump stations, and five
storage facilities. The estimated cost to complete construction of all
phases of this system is $53.4 million.
The plan identified eighty-seven potential large volume customers
that could use approximately 2.9 billion gallons of reclaimed water per
year. The potential customers include a power generation plant next to
South Austin Regional Wastewater Treatment Plant, several high tech
manufacturing facilities, golf courses, City parks, and commercial
developments.
The proposed alignments of the transmission main and location of
the distribution systems were designed in phases to allow for
implementation of the system as large customers come on line.
The water reclamation improvements, pumping, and elevated storage
facility at the South Austin Regional Water Treatment Plant are
currently in the final design phase and are not part of the phasing
described in this section. The estimated cost for the water reclamation
part of the improvements at the plant is approximately $5 million.
Reclamation and Reuse Project--Satellite System Details
Annexation of an area in the northwest part of town has given the
City of Austin an opportunity to provide reclaimed water to an area
that is several miles from the north system service area. Two existing
wastewater package treatment plants, which are stand-alone facilities,
currently serve this area. A third package plant is located
approximately 2 miles further to the northwest and is in an area that
will be annexed in 2003. Package plants are self-sustaining plants,
separate from the main Utility system. The City of Austin is planning
to use these three package plants as satellite facilities to provide
reclaimed water to parkland, two golf courses, and residences in the
area.
Austin has already constructed approximately seven miles of
residential service lines to serve approximately 600 residences. The
cost of constructing the service lines is approximately $4.3 million.
Additional costs will be incurred to upgrade the package plants,
additional transmission mains, and a storage facility. The estimated
cost for those improvements range from $3 to $5 million. This
residential water project will be a pilot program to evaluate reclaimed
water use for residential irrigation.
[GRAPHIC] [TIFF OMITTED] 80549.001
Financial Constraints Facing Austin's Water Reclamation Program
A significant constraint to implementing our water reclamation
program is funding. This constraint has been compounded further by the
recent economic downturn, which has hit Austin particularly hard.
Austin's economy is strongly influenced by the high tech industry,
which went into recession earlier and deeper than other parts of the
economy. In a metropolitan area of approximately one million people, we
have lost in excess of 20,000 jobs in the high tech sector alone. The
impact has spread into other areas and affects our ability to proceed
with beneficial programs such as water reclamation and reuse.
I realize that under the Title 16 Program, Federal funding is
capped and that the City will have to cover the bulk of these costs.
The City is prepared and committed to doing so. However given the
national importance of addressing water needs and water quality,
Federal assistance with this project is appropriate and welcome.
Bureau of Reclamation's Title 16 Program
The Bureau of Reclamation operates a well-respected water
reclamation program, referred to as the Title 16 Program, designed to
improve efficiency in the use of water resources in urban areas.
Section 1602 of Public Law 102-575 establishes broad goals for the
Bureau of Reclamation in administering the Title 16 Program. These
goals include:
LIdentifying opportunities for reclamation and reuse of
municipal wastewater,
LInvestigating those opportunities and,
LProviding a cost-share opportunity for an appraisal and
feasibility study and for the design and construction of permanent
facilities to reclaim and reuse municipal wastewater.
The City of Austin's Water Reclamation Program fits well within
these broad goals. The City has identified and is in the process of
investigating, through a preliminary master plan, opportunities for
reclamation and reuse of municipal wastewater. Throughout the funding
process, the City will continue to collaborate with Bureau of
Reclamation on those plans. Based on the results of the investigations,
the City will request financial assistance from the Bureau of
Reclamation in the design and construction of infrastructure to reclaim
and reuse the municipal wastewater.
In addition to conforming to the general goals of the Title 16
Program, the City of Austin's Water Reclamation Program meets the
following specifics for the Title 16 Program:
Applicability--Austin is located in Texas, which is one of the
seventeen western states under the Bureau of Reclamation's
jurisdiction.
Eligibility--Austin is a municipality and therefore capable of
entering into a cost-sharing agreement with the Bureau of Reclamation.
Financial capability--Austin has dedicated revenue sources through
water and wastewater user fees and has demonstrated financial
capabilities as evidenced by the investment grade rating of its bonds.
Ownership--The City of Austin will hold title to the facilities and
be responsible for their operation and maintenance.
Regional perspective--Austin's Water Reclamation Program is
consistent with state authorized regional water supply plans for the
Colorado River.
Environmental benefits--Austin's Water Reclamation Program assists
in buffering the need for additional water treatment plant capacity and
helps us meet the City's goals in achieving a more sustainable water
supply.
Conclusion
H.R. 4739 will provide Federal authorization for the City of Austin
to formally enter the Bureau of Reclamation's Title 16 Program. We have
developed a large-scale phased project for the reclamation and reuse of
municipal wastewater in the Austin area and believe that the project
fits within the goals and objectives of the Title XVI program. I hereby
respectfully request that the Subcommittee approve H.R. 4739 and seek
its final passage. We appreciate your time and support.
Thank you again for this opportunity to testify. I would be pleased
to answer any questions that you may have.
______
Mr. Calvert. Thank you, Mayor. If you will please remain
there, we will have a couple of opening statements on two other
bills we have before us and then we will be hearing from
Commissioner Keys. Thank you.
Mr. Calvert. Next, Mr. Simpson, sponsor of H.R. 4708, will
have an opening statement on his legislation.
Mr. Simpson, you are recognized.
STATEMENT OF HON. MICHAEL K. SIMPSON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF IDAHO
Mr. Simpson. Thank you, Mr. Chairman, for holding this
hearing on H.R. 4708, the Fremont-Madison Conveyance Act. I
would also like to take this opportunity to thank Mr. Jeff
Raybould, President of the Board of Directors of the Fremont-
Madison Irrigation District for making the trip from Idaho
today.
H.R. 4708 would require the Secretary of Interior to convey
title of portions of the district, namely the crosscut
diversion dam, the crosscut canal and the Teton Exchange Wells
currently under the control of the Bureau of Reclamation of the
Fremont-Madison Irrigation District.
The district has managed these facilities since their
creation and by all accounts has done an excellent job of
maintaining and operating them. I'm confident they will
continue to be excellent stewards of these facilities once
ownership is transferred and conveyance of this title is in the
best interest of the users, the Federal Government and the
environment.
Over the past few months, representatives of the district
have worked with local citizens, agricultural producers and the
Bureau of Reclamation and conservation groups to create a
transfer agreement that would be acceptable to all interested
parties. I commend them on all of their hard work and look
forward to my work with them in the coming weeks as this bill
moves through the legislative process.
Mr. Chairman, I would like also to ask unanimous consent to
submit two letter of support. The letters are from The
Honorable Dirk Kempthorne, Governor of the State of Idaho and
from the Idaho Water Users Association.
Mr. Calvert. Without objection, it is so ordered.
Mr. Simpson. Thank you. That concludes my remarks.
Mr. Calvert. I thank the gentleman.
Mr. Calvert. Mr. Gibbons, the sponsor of H.R. 3059, you are
recognized to give your opening statement.
STATEMENT OF HONORABLE JIM GIBBONS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEVADA
Mr. Gibbons. Thank you very much, Mr. Chairman. I want to
thank you and express my appreciation to the Subcommittee for
holding this hearing on such short notice.
At the outset, Mr. Chairman, if I could, I would also like
to welcome two distinguished Nevadans who have come a long way
to attend this hearing as well, Mr. Bennie Hodges who is the
manager of the Pershing County Water Conservation District, and
Mr. Bob Gibson, a member of the Pershing County Water
Conservation District Board of Directors.
I would like to thank and welcome a fellow pilot, Mr. Keys,
who is attending here on behalf of the Bureau of Reclamation,
and of course, the distinguished guest from the Washington,
D.C. area, Mr. Steven Malloch, who representatives Trout,
Unlimited.
Mr. Chairman, this legislation, H.R. 5039, would direct the
Secretary of Interior to convey certain title to an irrigation
project in the Humboldt Project property in the Humboldt
Project, Nevada, to the Pershing County Water Control District
and the State of Nevada and to Lander and Pershing Counties
respectfully.
The Pershing County Water Conservation District will
receive Rye Patch Reservoir along with specific lands around
the reservoir and title for acquired pasturelands. The State of
Nevada will receive all the withdrawn lands above the high
water mark at Rye Patch to be added to existing State park and
withdrawn lands in the Humboldt Sink area and in the Lander
County area to be managed as wetlands.
This bill will protect and enhance, I believe, the public
benefits in this area because all lands conveyed to the State
will be used for recreation, wildlife habitat, wetlands,
resource conservation measures pursuant to the agreement
between the State and the Pershing County Water Conservation
District.
Lander County will receive title to designated pasturelands
and Pershing County will acquire land immediately adjacent to
Derby Airport for maintenance and future expansion purposes.
Over the past 5 years, the Pershing County Water
Conservation District has undergone an extensive consensus-
based process with Federal Government, the counties and the
State of Nevada. They have also conducted outreach with local
representatives of the environmental organizations and as a
result of public comments received through scoping meetings and
in other venues, the Pershing County Water Conservation
District has continued to reformulate their proposal in a
sincere attempt to address all concerns.
Mr. Chairman, I would admit that it has been a tough
process and they should be recommended for their efforts in
this effort. Mr. Chairman, this bill ratifies agreements
between the Bureau of Reclamation and the Pershing County Water
Conservation District, the State and the counties.
It has the support of the Governor of Nevada, the Humboldt
River Basin Water Authority and the Counties of Lander and
Pershing in Nevada.
The Department of Interior and the Bureau of Reclamation
are on record as supporters of transferring title to local
entities. This is the third, and hopefully final attempt to
obtain title to the Humboldt Project facilities since it has
repaid to the taxpayers its original project loan from the
government back in 1978 when the Pershing County Water
Conservation District operates and maintains the project and
its constituents are the sole beneficiaries of the project and
local control, therefore, Mr. Chairman, is the logical choice.
This Subcommittee has reviewed a number of title transfer
bills in the past. I believe this legislation is in the best
interests of the public and is consistent with other bills we
have favorably reviewed already. I urge expeditious
consideration in the House this year.
Again, Mr. Chairman, thank you for working this bill into
your Subcommittee's very busy schedule.
I would be happy to address any questions.
Statement of The Honorable Jim Gibbons, a Representative in Congress
from the State of Nevada
Mr. Chairman, thank you for considering H.R. 5039 the Humboldt
Project Conveyance Act. I want to express my strong appreciation to the
Subcommittee for holding this hearing on such short notice.
At the outset I would like to welcome Bennie Hodges, manager of the
Pershing County Water Conservation District (PCWCD) in Lovelock, Nevada
and Bob Gibson a member of the PCWCD Board of Directors. I also want to
welcome fellow pilot, Commissioner Keys of the Bureau of Reclamation
and our distinguished guest from Trout Unlimited.
My legislation, H.R. 5039, would direct the Secretary of the
Interior to convey title to certain irrigation project property in the
Humboldt Project, Nevada, to the Pershing County Water Control
District, the State of Nevada, and to Lander and Pershing Counties.
The Pershing County Water Conservation District will receive the
Rye Patch Reservoir along with specific lands around the reservoir and
title for acquired pasture lands.
The State of Nevada will receive all of the withdrawn lands above
the high water mark at Rye Patch to be added to existing State Park and
withdrawn lands in the Humboldt Sink area and in Lander County to be
managed as wetlands.
All lands being conveyed to the State will be used for recreation,
wildlife habitat, wetlands, or resource conservation pursuant to the
agreement between the State and the PCWCD
Lander County will receive title to designated pasture lands and
Pershing County will acquire lands immediately adjacent to Derby
Airport for maintenance and future expansion purposes.
Over the past five years, the PCWCD has undergone an extensive,
consensus-based process with the Federal Government, the Counties and
the State of Nevada. They have also conducted outreach with local
representatives of environmental organizations.
As a result of public comments received through scoping meetings
and in other venues, PCWCD has continued to reformulate their proposal
in a sincere attempt to address all concerns. They should be commended
for their efforts.
Mr. Chairman, this bill ratifies agreements between the Bureau of
Reclamation and PCWCD, the State, and the Counties. It has the support
of the Governor of Nevada, the Humboldt River Basin Water Authority,
and the Counties of Lander and Pershing.
The Department of the Interior and BOR are on record as supporters
of transferring title to local entities.
This is the third and hopefully final attempt to obtain title to
Humboldt Project facilities since it repaid its original project loan
back in 1978. PCWCD operates and maintains the Project and its
constituents are the sole beneficiaries of the Project. Local control
is the logical choice.
This Subcommittee has reviewed a number of title transfer bills in
the past. I believe that this legislation is consistent with other
bills we have favorably reviewed already and I urge expeditious
consideration in the House this year.
Again, Mr. Chairman, thank you for working this bill into your
Subcommittee's very busy schedule.
I will be happy to address any of the Committee's concerns.
______
Mr. Calvert. I thank the gentleman.
At this time I would like to ask unanimous consent that
Congressman Gibbons be given permission to sit on the dais.
Without objection, it is so ordered.
Mr. Doggett, after our questions with the Mayor, if he
chooses to come sit on the dais, you certainly may also.
Without objection, it is so ordered.
First our questions for the Mayor and then we will
introduce Commissioner Keys.
I am certainly very interested, Mayor, in Title XVI, being
from California. We have probably more than any other State has
successfully used Title XVI. There is a very similar situation
in my part of Southern California, an arid region, not enough
water, and certainly we feel the effects of a long-term
drought.
I hope we have a solution soon, but not the same way you
all are finding a solution. Hopefully, just a little bit of
rain would do just fine.
I understand your interest. I was going to ask, have you or
the City of Austin worked with the Bureau of Reclamation before
on this type of program?
Mr. Garcia. We have a very good relationship with the
regional office and intend to continue working with them. It is
enormously important for us to have that kind of partnership
because we are in it for the long term.
If we are to build a sustainable community, we need to do
this. We need to do it not just to make it sustainable, but
also to keep the rates for our ratepayers down. We don't need
to be building any more water treatment plans to provide water
that can be supplied by the wastewater treatment plants.
Like I said, this fourth treatment plant will be built in
an environmental sensitive area. We don't want to do that with
that tremendous cost and we don't think it is in our best
interest.
So, we hope to continue working with the Bureau and
strengthening our partnership, yes.
Mr. Calvert. I appreciate that. I know my friend, Mr.
Gibbons, to my right probably I should say the State with the
most success in water reclamation is the State of Nevada, even
though when you go to Las Vegas and you see the Bellagio Hotel
and all the wonderful water features there, they are using
recycled water and they do it very well.
Mr. Gibbons. Mr. Chairman, in Nevada we have enough whiskey
for drinking, but water is for fighting.
Mr. Calvert. That quote started with Mark Twain in
California. We understand that very well.
Mr. Gibbons. He was a resident of Nevada.
Mr. Calvert. He was a resident of California, too, for a
while. The Indians wouldn't let him in in those days.
Are there any other questions for the Mayor?
There are none. You have a very good project here.
Certainly, I think most of us from the West are very supportive
of water reclamation projects. So, we wish you well. If you
would like to stay to listen to the Commissioner, I'm sure he
might have some things to say you might want to have your
Member of Congress ask questions about.
Now, we are going to recognize John W. Keys, our
Commissioner, Bureau of Reclamation, who will have comments on
all three bills before us today.
Commissioner, since you are going to testify on all three
bills, normally we would limit your statement to 5 minutes, but
if you take a little extra time that's OK. We appreciate your
coming to visit our Committee and with that, Commissioner, you
are recognized.
STATEMENT OF JOHN W. KEYS, COMMISSIONER, BUREAU OF RECLAMATION,
U.S. DEPARTMENT OF AGRICULTURE.
Mr. Keys. Mr. Chairman, it is a pleasure to be here. Is
there any particular order you would like to address these?
Mr. Calvert. No. You can just take them as you see them.
Mr. Keys. Mr. Chairman, it is a pleasure to be here today
to offer testimony on H.R. 4708 first, the Proposed Fremont-
Madison Conveyance Act. H.R. 4708 would transfer title to the
Cross Cut Diversion Dam and Canal, the Teton Exchange Wells and
the Idaho Department of Water Resources Permit 22-7022 for
those wells to the Fremont-Madison Irrigation District.
The Cross Cut Diversion Dam and Canal are paid out
facilities with their irrigation assessments completed in 1979.
The legislation provides for the payment for the Teton Exchange
Wells and the Idaho permit for those wells currently valued at
about$278,000, based upon an outstanding balance to be paid by
the district.
Mr. Chairman, the Bureau of Reclamation has worked closely
with the Fremont-Madison Irrigation District over the last few
years to work through the issues involved with the title
transfer for the facilities and the permit. I personally was
working with them when I was regional Director there in
reclamation and my people have worked with them very closely
since.
We are very close to agreement on all of the issues in
4708. While there are still a couple of those to solve, the
department could support H.R. 4708 with a couple of technical
modifications.
First, Section 3(a) of 4708 provides or requires the
district to pay the administrative costs of the title transfer
process and related activities, including the costs of any
National Environmental Policy Act issues that have to be
covered.
Section 3(a) also limits the district's contributions
toward this administration cost to $40,000. In September 2001,
Reclamation and the District signed a Memorandum of Agreement,
which called for each party to pay 50 percent of costs
associated with applicable procedural requirements of NEPA,
ESA, and Endangered SpeciesAct and other State and Federal
laws.
We agree that it is appropriate to share the cost of
compliance with all of these laws. The MOA also calls for the
District to pay for applicable surveys, title searches,
facility inspections and development of a quitclaim deed or
other legal documents for that transfer.
Section 3(a) is not clear on which of those activities are
covered or subject to the $40,000 limitation. We believe that
the Memoranda of Agreement signed by both of us should be
honored and the limitation eliminated.
Section 2(a) of H.R. 4708 requires that the title transfer
be completed no later than the termination date of the MOA,
which is September 13, 2003.
Section 2(d)(1) states the transfer be completed as soon as
practicable. We would appreciate some clarification of which of
those we should live by.
Mr. Chairman, we have worked closely with the District to
complete this title transfer with the technical modifications
necessary mentioned. The department and Reclamation could
support passage of H.R. 4708.
At this time, I would like to take the opportunity to
compliment District Board Chairman Jeff Raybould and their
Executive Director, Dale Swenson for their good work and
commitment to working with us and with other parties in the
basin to do the transfer properly.
I would also like to thank Congress Simpson, Congressman
Otter, Senator Crapo, Senator Craig and their staffs for their
cooperation in this thing. It has been excellent working with
all of them.
That concludes the statement on H.R. 4708.
[The prepared statement of Mr. Keys on H.R. 4708 follows:]
Statement of John W. Keys, III, Commissioner, Bureau of Reclamation,
U.S. Department of the Interior
Mr. Chairman, my name is John Keys. I am Commissioner of the U.S.
Bureau of Reclamation. I am pleased to provide the Administration's
views on H.R. 4708, the Fremont Madison Conveyance Act, which directs
the Secretary of the Interior to transfer title of certain Federal
owned facilities, lands and permits to the Fremont-Madison Irrigation
District (District).
The facilities under consideration for transfer in H.R. 4708 the
Cross Cut Diversion Dam and Canal, the Teton Exchange Wells and the
Idaho Department of Water Resources permit number 22-7022 are
associated with the Upper Snake River Division, Minidoka Project and
the Lower Teton Division, Teton Basin Project, respectively, and are
located near Rexburg in eastern Idaho. The facilities under
consideration for transfer are used exclusively for irrigation purposes
and have always been operated and maintained by the District. While the
Cross Cut Diversion Dam and Canal are paid-out by the District, the
legislation provides for a payment for the Teton Exchange Wells, which
are currently valued at $277,961, based upon the outstanding balance to
be repaid by the District.
Mr. Chairman, over the last few years, we have been working very
closely with the District and numerous other local organizations
including the Henry's Fork Foundation, a local conservation and
sportsmen's organization, to work through the issues on the title
transfer for the features, lands and water rights associated with this
project. Over the last year, we have made great progress in narrowing
the scope of the transfer to meet the District's needs, protect the
interests of the other stakeholders, and ensure that the transfer does
not negatively impact downstream contractors of the integrated Snake
River system. While I believe that we are very close to agreement on
this legislation, H.R. 4708, as drafted, creates some problems and
concerns, which I will address in my statement. However, with the
technical modifications outlined below, the Department could support
H.R. 4708.
Background
Individuals, organizations, Federal, States and local agencies
interested in the Henry's Fork of the Snake River have a very
impressive history of collaboration and cooperation through the Henry's
Fork Watershed Council (Council) a grassroots community forum whose
goal is to encourage management of the Henry's Fork Basin in a
socially, economic and environmentally sustainable manner. When the
District first raised the idea of title transfer, the Council dedicated
its March, 1999, meeting to this issue. This included presentations by
the District and Reclamation and fostered open discussions with any and
all groups or individuals who had comments or concerns.
Subsequently, the District and the Henry's Fork Foundation, along
with the Land and Water Fund of the Rockies engaged in a series of
negotiations to develop a mutually acceptable proposal. While that
process did not result in a concrete proposal, it did lead to some
consensus on the facilities to be transferred that are included in this
legislation. It also led to the removal of the Grassy Lake and Island
Park dams from the transfer proposal about which many local
organizations had serious concerns.
Accordingly, in September, 2001, Reclamation and the District
signed a memorandum of agreement (Contract No. 1425-01-10-3310) (MOA)
which expires on September 13, 2003, and is referenced in H.R. 4708.
This agreement lists the facilities to be transferred, delineates the
respective responsibilities to complete activities necessary for the
title transfer such as arrangements for the sharing of costs, valuation
of the facilities to be transferred, and responsibilities associated
with compliance with Federal and State laws.
We have, however, identified some concerns and technical issues
which I would like to raise for the Committee's consideration:
Cost Share Requirements
First, Section 3(a) of H.R. 4708 requires the District to pay the
administrative costs of the conveyance and related activities,
including the costs of any review required under NEPA, but limits their
contribution to no more than $40,000. This language is both unclear as
to what is or is not included as ``costs,'' nor is it in accordance
with the MOA that FMID should pay the 50% of costs associated with
applicable procedural requirements of the NEPA, ESA, and other
applicable state and Federal laws required.
We agree that it is appropriate to share the costs of compliance
with Federal laws, as was agreed upon in the MOA. We also believe that
the recipients of title transfer should cover those costs that are
associated with the real estate transaction resulting from the title
transfer. In this vein, the MOA states that the District would pay for
applicable activities such as surveys, title searches, facility
inspections, and development of a quit claim deed or other legal
documents necessary for completing the transfer. Unfortunately, H.R.
4708, as drafted, is unclear on this point.
To address these ambiguities, we suggest that H.R. 4708 reference
the MOA's treatment of costs or reiterate the manner in which the
distribution of costs were addressed in the MOA. Given the amount of
work that went into developing the MOA, its applicability under H.R.
4708 for implementation of the transfer, and the fact that it has been
agreed upon and signed by representatives of both Reclamation and the
District, referencing the MOA on these issues would provide an
equitable, clear and consistent resolution to our concern.
Conveyance Deadline and Report
Section 2(a) of H.R. 4708 requires that the title transfer be
completed no later than the termination date of the MOA (September 13,
2003). However, Section 2 states that the transfer be completed ``as
soon as practicable after the date of enactment and in accordance with
all applicable law.'' These provisions appear inconsistent as Section
2(a) designates a required date certain for completion, while Section
2(d)(1) states that it be completed ``as soon as practicable,''
Further, Section 2(d)(2) requires that the Secretary submit a
report to Congress within one year of the date of enactment if the
transfer has not been completed in that time frame. This provision
seems somewhat arbitrary and could potentially delay the transfer from
the September 13, target date while the report is being prepared.
To address our concerns with inconsistent deadlines and reporting
requirements, I suggest that the legislation be modified to require
that the transfer be completed ``as soon as practicable after the date
of enactment'' and the reporting requirement in H.R. 4708 be modified
to require a report to Congress be completed only if the title has not
been transferred by September 13, 2003 the expiration date of MOA
referenced in the legislation. In this manner, the requirements are
made clear and consistent, and no report to Congress would be necessary
if the facilities are transferred by the MOA's expiration date.
Conclusion
In conclusion, Mr. Chairman, I believe we have worked closely with
the District and a great deal of progress has been made. I would like
to take this opportunity to compliment District Board Chairman Jeff
Raybould and their Executive Director, Dale Swenson, for their
diligence and commitment in working with us and the other interested
entities of eastern Idaho on the issues surrounding this transfer. I
would also like to thank Congressman Simpson, Congressman Otter and
their staffs for their cooperation. With the technical modifications
mentioned above, I believe the Department could support passage of this
legislation.
That concludes my statement. I would be happy to answer any
questions.
______
STATEMENT OF JOHN W. KEYS, COMMISSIONER, BUREAU OF RECLAMATION,
U.S. DEPARTMENT OF AGRICULTURE
Mr. Keys. Mr. Chairman, H.R. 4739 would authorize the
Secretary of the Interior to participate in the planning,
design and construction of and land acquisition for the City of
Austin, Texas Water Reclamation Project. This work would be
accomplished under Title XVI of the Reclamation Project's
Authorization and Adjustment Act or Public Law 102-575.
Mr. Chairman, to date, 25 specific projects have been
authorized under the Title XVI Program. Congress has provided
funding to plan or construct 19 of these 25 authorized
projects.
In addition, under the general authority of Title XVI,
funding has been provided to identified and investigate eight
potential water-recycling projects and to conduct three
research and demonstration projects.
Municipal, industrial, domestic and agricultural wastewater
reuse efforts can assist States and local communities in
solving contemporary water supply problems. However, the
department opposes authorizing additional construction project
in the absence of feasibility studies to determine whether
these projects warrant Federal funding.
The Department also opposes H.R. 4739 because authorizing
new construction projects under Title XVI is likely to place an
undue burden on Reclamation's already tight budget. Today we
have been unable to provide full funding amounts to all but
four of the water reclamation and reuses projects presently
authorized by Title XVI.
At current funding levels, it will take Reclamation more
than 10 years to complete funding of the 25 already-authorized
projects.
Finally, the Department opposes enactment of H.R. 4739
provision authorizing land acquisition prior to completion of a
feasibility study. Federal contributions for land acquisition
should await the outcome of a feasibility study.
Mr. Chairman, it should be noted that Reclamation recently
began working with the City of Austin on an appraisal study of
this project. The appraisal study should be completed in about
a year. A feasibility study, if recommended as a result of the
appraisal study, has authority under the existing provisions of
Title XVI of P.L. 102-575.
We recommend continuing this cooperative study to prepare
the necessary analysis and evaluations of the project prior to
Congressional authorization of construction for the project.
In summary, Interior strongly encourages local and water
recycling efforts and is engaged in numerous water reuse and
recycling projects around the West. However, as stated, the
department cannot at this time support authorizing the new
construction request.
[The prepared statement of Mr. Keys on H.R. 4739 follows:]
Statement of John Keys, III, Commissioner, Bureau of Reclamation, U.S.
Department of the Interior
My name is John Keys and I am the Commissioner of the Bureau of
Reclamation (Reclamation). I am pleased to present the views of the
Department of the Interior (Department) on H.R. 4739, concerning the
City of Austin water reclamation project in the State of Texas.
H.R. 4739 would authorize the Secretary of the Interior (Secretary)
to participate in the design, planning, and construction of, and land
acquisition for, the City of Austin water reclamation project in the
State of Texas. The authority provided in H.R. 4739 is an amendment to
the Reclamation Projects Authorization and Adjustment Act, (Public Law
102-575), which limits the Federal share of project costs to 25 percent
of the total project costs and restricts the Secretary from providing
funding for the operation and maintenance of this project. While the
Department strongly encourages local water recycling efforts, must
oppose authorizing this additional Federal recycling project for the
reasons described below.
In 1992, Congress adopted, and the President signed, the
Reclamation Projects Authorization and Adjustment Act (Public Law 102-
575). Title XVI of this Act, the Reclamation Wastewater and Groundwater
Study and Facilities Act, authorized the construction of five water
reclamation and reuse projects. Four of these projects are in
California and the fifth is in Arizona. The Secretary also was
authorized to undertake a program to identify other water recycling
opportunities throughout the 17 western United States, and to conduct
appraisal level and feasibility level studies to determine if those
opportunities are worthy of implementation. In addition, the Secretary
was authorized to conduct research and to construct, operate, and
maintain demonstration projects. The Bureau of Reclamation has been
administering a grant program to fund these Title XVI activities since
fiscal year 1994.
In 1996, Public Law 104-266, the Reclamation Recycling and Water
Conservation Act, was enacted. This Act amended Title XVI and
authorized the Secretary to participate in the planning, design, and
construction of 18 additional projects, including two desalination
research and development projects. These new projects are distributed
within five states, including California, Nevada, Utah, Texas, and New
Mexico. Title XVI of P.L. 102-575 was further amended in 1998 by P.L.
105-321, to authorize a project in Salem, Oregon. Finally, Title XVI
was amended twice in 2000, first by Public Law 106-544, to authorize a
project in Sparks, Nevada, and then by Public Law 106-566, which
provided the Secretary with general authority to conduct planning
studies in the State of Hawaii. To date, Congress has provided funding
to plan or construct 19 of these 25 specifically authorized projects.
In addition, under the general authority of Title XVI, funding has been
provided to identify and investigate, at the appraisal or feasibility
level, eight potential water recycling projects, and to conduct three
research and demonstration projects.
Municipal, industrial, domestic, and agricultural wastewater reuse
efforts can assist states and local communities in solving contemporary
water supply problems. However, the Department opposes authorizing
additional construction projects in the absence of feasibility studies
to determine whether these particular projects warrant Federal funding.
In general, Reclamation places priority on funding new projects that:
(1) are economically justified and environmentally acceptable in a
watershed context; (2) are not eligible for funding under another
Federal program; and (3) directly address Administration priorities for
the Reclamation program, such as reducing the demand on existing
Federal water supply facilities.
It should be noted that the Department, through the Bureau of
Reclamation, has recently begun working with the City of Austin on an
appraisal study of this proposed project. The appraisal study should be
completed in less than one year from now. A feasibility study, if
recommended as a result of the appraisal, has authority under the
existing provisions of P.L. 102-575, Title XVI and would also be
contingent upon funding availability. We recommend continuing these
cooperative studies to prepare the necessary analyses and evaluations
of the project prior to Congressional authorization for construction.
The Department also opposes enactment of this legislation because
authorizing new construction projects is likely to place an additional
burden on Reclamation's already tight budget. To date, Reclamation has
been unable to provide the full authorized funding amounts for all but
four of the water reclamation and reuse projects presently authorized
by Title XVI. At current funding levels, it will take Reclamation more
than 10 years to complete funding of the 25 currently authorized
projects.
Finally, the Department opposes enactment of the provision in H.R.
4739 authorizing land acquisition prior to completion of a feasibility
study. Federal contributions for land acquisition should await the
outcome of a feasibility study.
In summary, the Department strongly encourages local water
recycling efforts, and is engaged in numerous water reuse and recycling
projects around the West. In fact, the Department has recently begun an
appraisal study of the project described in H.R. 4739. However, for the
reasons provided above, the Department cannot, at this time, support
authorizing this new construction request.
Thank you for the opportunity to comment on H.R. 4739. This
concludes my statement and I would be happy to answer any questions.
______
STATEMENT OF JOHN W. KEYS, COMMISSIONER, BUREAU OF RECLAMATION,
U.S. DEPARTMENT OF AGRICULTURE
Mr. Keys. Mr. Chairman, H.R. 5039, the Humboldt Project
Conveyance Act would transfer title to Rye Patch Dam and
Reservoir and all acquired lands under and adjacent to the dam
and reservoir and all acquired lands below the high water mark
to the Pershing County Water Conservation District. The
District has agreed to maintain a 3,000-acre foot minimum pool
in the reservoir for maintenance and fisheries protection.
Withdrawn lands above the high water mark in the vicinity
of the reservoir would be transferred to the State of Nevada to
be managed for recreation, wildlife habitat, wetlands and
resource conservation.
Approximately 23,000 acres of land in the Battle Mountain
Community Pasture will be transferred the District, while about
1100 acres of the Battle Mountain Community pasture would be
transferred to Lander Certify.
Finally, one and a half sections or 960 acres of land
around Derby Airport which Pershing County has leased from
Reclamation would be transferred to the county.
Humboldt Project Facilities are paid out; the payments
being completed in 1978. Their safety of dams obligation for
Rye Patch Dam repairs will be paid out later this year or next
year.
Mr. Chairman, let me commend the district for the extensive
amount of work that they have done to develop some very
important and complicated agreements between the many parties
involved. However, while the department supports enacting
legislation to enable these agreements to be implemented, we
cannot support H.R. 5039 as introduced.
I would hasten to add that we think with a few technical
corrections we could support that bill. In handling details for
the transfer of the Humboldt Project facilities, Reclamation in
Pershing County Water Conservation District have finalized or
are finalizing a Memorandum of Agreement to articulate rules
and responsibilities for completing all of the necessary
activities, necessary for this transfer.
A number of problems with H.R. 5039 must be addressed for
Interior to support the legislation. First, Section 4(F) limits
the amount of administrative costs and costs associated
withNational Environmental Policy Act compliance.
Under this section the District, Lander County and Pershing
County costs are limited to $40,000. This amount is not based
upon any estimate of costs that we are aware of for this
project. We recommend that any cost limitation require the
United States and the receivers of the transfer to each pay 50
percent of the total cost.
Section 4(g) states that the State of Nevada shall not be
responsible for any payments or cost under this section.
Interior feels that the State should pay for these lands that
they will receive, in other words, fair market value, and that
the States should share in paying the administrative and NEPA
costs for the title transfer.
In our written comments we have also covered some concerns
that we have with conveyance deadlines, a report to Congress on
the transfer and future obligations and benefits to the
Humboldt Project and the United States.
Mr. Chairman, the transfer of the Humboldt Project Lands
and the Project facilities to Pershing County Water
Conservation is a good transfer. We look forward to working
with them to complete this process.
This concludes my oral statements. I would certainly be
glad to answer any questions you might have on any of the
three.
[The prepared statement of Mr. Keys on H.R. 5039 follows:]
Statement of John W. Keys, III, Commissioner, Bureau of Reclamation,
U.S. Department of the Interior
Mr. Chairman, my name is John Keys. I am Commissioner of the U.S.
Bureau of Reclamation. I am pleased to provide the Administration's
views on H.R.5039, the Humboldt Project Conveyance Act, which directs
the Secretary of the Interior to transfer title of the Federal owned
facilities, and lands associated with the Humboldt project to the
Pershing County Water Conservation District (District), Pershing
County, NV, Lander County, NV and the State of Nevada (State) pursuant
to a series of agreements reached between these entities.
First, let me commend the District for the extensive amount of work
that they have done to develop some very important and complicated
agreements between different parties. However, while the Department
supports enacting legislation to enable these agreements to be
implemented, we cannot support H.R. 5039 as introduced.
Background
The Humboldt Project is located in northwestern Nevada on the
Humboldt River and was authorized in 1933. Construction of Rye Patch
Dam, the centerpiece of the Humboldt project was completed in 1936. In
1976, it was raised to 78 feet high which expanded its capacity to
213,000 acre feet of water. Rye Patch Reservoir is 21 miles long
stretching from Rye Patch dam north to the Callahan Bridge near the
town of Imlay. The Pershing County Water Conservation District assumed
full operations and maintenance responsibility for the project in 1941
and they have managed it ever since.
H.R. 5039
The Humboldt Project Conveyance Act proposes to transfer title to
all the lands and facilities associated with the Humboldt Project in
Nevada. The terms, conditions and details of the transfer are spelled
out in a series of agreements including a Memorandum of Agreement (MOA)
between the District and Lander County; a Conceptual Agreement between
the District and the State; and a Letter of Agreement between the
District and Pershing County. In addition, the legislation references a
MOA between the District and Reclamation, which is not yet completed
and is still being finalized. This MOA will articulate the respective
roles and responsibilities for completing all the necessary or required
steps including responsibilities for compliance with the National
Environmental Policy Act (NEPA) and other applicable Federal and state
laws, and responsibilities for other activities necessary to complete
the transfer.
The agreements referenced in H.R. 5039, if authorized for
implementation, would transfer the Dam, reservoir, and all acquired
lands under and adjacent to the dam and reservoir and all acquired
lands below the high water mark to the District. In addition, the
District will maintain a 3,000 acre foot minimum pool in Rye Patch
Reservoir for maintenance and fisheries protection.
Withdrawn lands above the high water mark in the vicinity of the
reservoir would be transferred to the State of Nevada to be managed for
recreation, wildlife habitat, wetlands and resource conservation.
Approximately 23,000 acres of land in the Battle Mountain Community
Pasture (BMCP) will be transferred to the District, while approximately
1,100 acres of BMCP land in the vicinity of the town of Battle Mountain
will be transferred to Lander County. Finally, one and one-half
sections of land around Derby Airport, which Pershing County has leased
from Reclamation, will be transferred to the County.
Concerns with H.R. 5039
While we support implementation of the terms and conditions of the
transfer, as embodied in the various agreements summarized above, there
are a number of problems with H.R. 5039, as presently drafted.
Cost Limitations
While H.R. 5039 clearly addresses many of the cost-related issues,
there are two areas of significant concern on this matter:
1) Section 4(f) limits the amount of administrative costs and costs
associated with compliance with the National Environmental Policy Act
(NEPA). Under this section, the District, Lander County and Pershing
County costs are limited to $40,000. The $40,000 figure is not based
upon any estimate of costs that we are aware of for this project. The
entities receiving title to the lands and facilities of the Humboldt
Project are receiving the benefits of title and should share in the
actual costs associated with the transfer. In order to address this
concern, I recommend that any cost limitation should reflect that the
United States pays no more than 50 percent of the total costs.
2) Section 4(g) states that the State of Nevada shall not be
responsible for any payments or costs under this section. This would
include payment for the withdrawn lands (Section 4(b)), and, if a value
is determined by an appraisal--administrative costs (Section 4(c)),
costs associated with compliance with NEPA (Section 4(d)), and real
estate costs, such as the cost of boundary surveys (Section 4(e)).
The Department has three concerns associated with Section 4(g).
First, since the State of Nevada is receiving title to withdrawn lands,
it is appropriate they be expected to pay for these lands. These are
public domain lands that were withdrawn for the construction and
operation of the Project whose value was not incorporated into the
District's repayment obligation, and thus, have never been paid for. It
is Reclamation's policy, that such lands be professionally appraised
pursuant to Federal standards of appraisals, and should reflect fair
market value. While in many cases lands that are below the water mark,
underneath dams and other facilities, and those reserved for
recreation, wetlands, and wildlife management are appraised at no or
little value, they are still subject to an independent appraisal. It is
important that such an appraisal take place to protect the financial
interests of the United States.
Second, since the State is receiving these lands, they should share
equally in the NEPA and administrative costs and should bear the real
estate costs associated with these lands as is proposed for all the
other recipients of lands and facilities in this bill.
Third, the language of Section 4(g) is very unclear as to how the
State's share of the costs associated with this Section would otherwise
be distributed since sections 4(c) and 4(e) require payment in equal
shares and Section 4(d) requires payment of the real estate transaction
costs by the ``entity receiving title.'' Given this language, several
important questions arise. Are the State's share of otherwise equally
shared costs distributed to all of the remaining parties, or are these
costs to be absorbed by Reclamation? Either interpretation results in
an inequitable distribution of costs and will create confusion,
controversy, and inevitably a delay in implementation.
Public Benefits or Windfall Profits
As presently drafted, Section 4(g) requires that the State manage
the lands transferred to them for recreation, wildlife habitat,
wetlands or resource conservation. However, it goes on to suggest that
the State could change that use and then make the ``payments pursuant
to the Act'' or the lands could revert to the District who could then
change the use as it sees fit. The Department maintains the legislation
should ensure that the public benefits are preserved regardless of
whether they are managed by the State, as currently envisioned in H.R.
5039 and in the Letter of Conceptual Agreement between the County and
the State. However, if ownership of the lands is sold by the State or
reverts to the District and is then sold, the United States should
share in any financial windfall that is received. We further note that
wile the legislation in its current form appears to contemplate the
preparation of a NEPA analysis of title transfer, the suggestion in
Section 4(g) that the use of lands could change after transfer greatly
complicates the preparation of an analysis of potential environmental
impacts (beneficial or adverse) under NEPA, and may make invite legal
challenge to such an analysis.
In order to address the above concerns, we recommend that Section
4(g) be deleted.
Conveyance Deadlines and Report
The next area of concern is related to the arbitrary and somewhat
confusing deadlines proposed in H.R. 5039.
Section 3(a) requires the Secretary to convey title to the lands
and facilities no later than two years after enactment. While it is our
hope that all of the steps and agreements required under this
legislation are completed in that time, two years is an arbitrary and
potentially unrealistic timeframe.
In most cases where title transfer has been completed quickly, a
good deal of the necessary work for the transfer such as preparation of
the environmental documentation (NEPA compliance), cultural resources,
hazardous materials and boundary surveys, preparation of legal
documentation or other actions that are required, had been completed,
or at least was initiated, prior to the legislative process. While the
District has made a great deal of progress in completing the MOAs and
other agreements, additional steps necessary have not yet begun, nor
have there been extensive discussions about what might be required.
This timetable, together with the funding limitations previously
mentioned, could also create significant obstacles to the preparation
of a NEPA analysis, and may also invite further legal challenges. This
makes it difficult to meet the proposed two-year goal.
Further, Section 3(c) requires that Secretary submit a report to
Congress within 18 months of enactment if the conveyance has not been
completed. This time frame also seems arbitrary and could actually
delay the transfer, since resources needed to complete the transfer
would be drawn away to prepare the report.
To address our concerns, I suggest the legislation be modified to
require the transfer be completed ``as soon as practicable after the
date of enactment'' and then require a report to Congress as to the
status of the conveyance, any obstacles to completion of conveyance and
the anticipated date of conveyance, if the transfer is not completed in
two years. This has been the language successfully used in other
authorized title transfers to both ensure accountability and to keep
Reclamation and the other entities moving forward in a positive manner.
Future Obligations and Benefits
The Department is also concerned that the legislation does not
clearly articulate the obligations and benefits that will exist and be
available after the transfer.
One of the primary benefits to the entities receiving title is the
ability to operate independently of Reclamation law. Conversely, one of
the primary benefits of title transfer to Reclamation is to limit its
liability and any financial exposure as it relates to the projects to
be transferred. In most of the transfers that have been enacted into
law, there has been a provision clearly articulating that the project
being transferred is no longer a Federal project, that the recipients
of title are no longer subject to Reclamation law and that they are no
longer eligible for Reclamation programs that are available to Federal
contractors.
Such a provision should be added to H.R. 5039 to clarify this
separation and to clearly articulate the understanding of both parties
as to what is expected in the future in this regard.
In addition, Section 8 of the bill provides that any conveyance
would not abrogate any provision of any contract executed by the United
States relating to any person's right to use water. This raises a
significant issue that may require additional clarification: If the
right of water users to use Humboldt Project water is based on water
right contracts entered into with the United States, the obligations of
the United States vis-a-vis the delivery of project water will need to
be clarified in light of the proposed de-federalization of the Project.
Reclamation cannot reasonably be required to maintain its obligations
to deliver project water once title, management, and operation of
Humboldt Project facilities passes out of Federal ownership and
control.
Conclusion
In closing, Mr. Chairman, let me commend the District, Lander
County, Pershing County, and the State for their hard work to come to
agreement on terms of the transfer that are embodied in the agreements
referenced in the legislation. With the technical modification
mentioned above, I believe the Department could support passage of this
legislation.
That concludes my statement. I would be happy to answer any
questions.
______
Mr. Calvert. Thank you, Commissioner. Please explain what
you are doing at the Bureau to expedite and encourage transfers
to take place?
Mr. Keys. Mr. Chairman, we have a process together that we
work very closely with any irrigation district that wants to
take title to their project. We encourage every irrigation
district to look at their facilities to see if it would be
advantageous to them to do that.
We have a framework that starts working which them on a
ground level to evaluate, to assess, to see all the facilities
that need to be transferred and it leads all the way up to
Congressional authorization.
Mr. Calvert. Now, you don't see any issues in the two
transfer bills that are being recommended today that would
prohibit such a transfer from taking place, do you?
Mr. Keys. Mr. Chairman, on the contrary, we think these
have been done in the correct way. With a few changes, we could
certainly support both of them.
Mr. Calvert. I would certainly encourage all the parties to
work with you to expedite this where we can get this to full
Committee as soon as possible so we can get these bills
accomplished. I am sure that would satisfy both of the Members
here.
On the water reclamation project, as you know, my interest
in water reclamation and certainly the City of Austin, as I
mentioned earlier, that we have a similar climate, in spite of
what has happened in Texas recently.
These water reclamation projects throughout the West are
necessary. I would ask you, what is the total amount of
unfunded Title XVI projects that you have right now that have
been authorized?
Mr. Keys. Mr. Chairman, it is right around $100 million.
Mr. Calvert. Obviously, from my perspective and I think for
the West, there was a story this weekend about New Mexico and
what is happening in that State with the lack of water.
Certainly, as you know, throughout the West, certainly Nevada,
certainly Arizona, I can't think of one State in the West that
is not interested in a reclamation project, and certainly now
in the Southwest.
We need to probably work together to get additional funds
available for these reclamation projects.
Mr. Keys. Mr. Chairman, I said that the total authorized up
to now is over $100 million. To be specific, it is $340
million.
Mr. Calvert. That is being a lot more specific.
Mr. Keys. With the right kind of funding, it would take us
somewhere between 10 and 20 years to get those that are already
authorized done.
Mr. Calvert. And it is absolutely necessary. I will tell
you, as you well know again, the difference we are having in
California and throughout the West.
What have you done to work with the City of Austin on this
project?
Mr. Keys. Mr. Chairman, we have an area office in Austin.
They have recently begun an appraisal level study of the
wastewater recycling project that this bill would authorize,
but it is at an appraisal level. Appraisal level study is to
take a quick look to see if the project has merit and should go
ahead.
With the right recommendation from there, it goes to a
feasibility study. We have authority under Title XVI to go
ahead with the feasibility study and we have the funds to do
that. A year from now when that appraisal level study is done,
if it recommends going into the feasibility, we can go right on
into the feasibility study without further authorization.
Then the feasibility study would probably take another year
to a year and a half and then we would come back for
authorization for construction.
Mr. Calvert. I just want to make one final point. As you
know, we have a bill that we hope to pass on the floor, CalFed,
soon. I have talked with Senator Domenici and others in the
West that are very interested in doing a western water bill for
needed western water projects.
When I say ``the west,'' I certainly mean the southwest and
throughout the United States. It is a considerable number. I
know that in these times of budget austerity that we are
concerned about that, but these types of projects are
absolutely necessary for the economic vitality of this nation.
So, we will hopefully be able to help you out on the
funding side of this in the future.
Mr. Keys. Mr. Chairman, we would be more than happy and
would look forward to working with you on that. The realities
of the reclamations budget within Interior is that it is fairly
flat. It being flat, we still operate and maintain our
projects, do the stuff to keep everything up.
We have the Title XVI portion of that. That, in most cases,
is just a pass-through. We like to do the feasibility studies
ahead of time with the cities and so forth, so that we can be
part of it to be sure that that money is getting its best use.
We would certainly be willing to work with you to do that.
Mr. Calvert. I thank the gentleman.
Mr. Doggett.
Mr. Doggett. Thank you, Mr. Chairman. Thank you for your
testimony, Mr. Keys. It is my understanding that your concern
about funding levels has caused you to raise these concerns
about other pieces of legislation like this in the past. You
are not singling out the City of Austin or its project. This is
a generalized concern that you have, isn't that correct?
Mr. Keys. Mr. Chairman, Mr. Doggett, that is exactly right.
We have testified consistently since I have been in office on
that very issue.
Mr. Doggett. And we appreciate the cooperation we have
already gotten from your staff in Austin, as well as here. I
just want, for the record, to make it clear that we are not
trying to get the cart ahead of the horse here. We recognize
that the appraisal and the feasibility study have to occur
first.
Since three of every four dollars that would be used for
this project will come from City of Austin taxpayers and
ratepayers, we are not about to embark on construction or
anything unless the appraisal and feasibility study suggests
those are the way to go.
Our goal with this legislation was to get our legislation
and authorization for all of this in place so that given the
amount of competition from around the country, we would be in
line in the event that working cooperatively with you the
appraisal and feasibility study suggest, as we believe they
will, that they are big advantages to the city, certainly to
our technology industry where we think that the average
semiconductor plant, say like Samsung in Austin, might save $1
million or $1.5 million by using this reclaimed wastewater at
lower rates as well as for our parks and our school district
and the like, that we can all be helped.
So, hopefully, we can continue to work together. I would
like to see this legislation approved to expedite that process,
but we realize it is going to be a long term project and we
need to work with you and the Committee to get the funding
necessary to accomplish this objective here and in other parts
of the country.
Thank you, Mr. Chairman.
Mr. Calvert. Thanks, gentlemen.
Mr. Gibbons.
Mr. Gibbons. Thank you, Mr. Chairman. First of all, I would
agree with your analysis that the bill as introduced has some
flaws in it that need to be worked out, certainly with regard
to cost-sharing issues. I think we can work those out between
both the Pershing County Water Conservation District counties,
et cetera.
I suppose working with you we could expect to have within
the next couple of weeks, if we work out the agreement, work
out the concerns that you have, some assurance that we could be
back here with a finalized version of this bill once we have
worked out those concerns with the bill.
Mr. Keys. Mr. Chairman, and Mr. Gibbons, we would certainly
do that. We feel that the corrections that are necessary are
fairly minor to make. They have a big impact, but they are easy
to make in the legislation itself.
Mr. Gibbons. With that, Mr. Chairman, I will yield back the
balance of my time and thank the witness and thank you for
having me, Bill.
Mr. Calvert. I thank the gentleman.
Mr. Simpson.
Mr. Simpson. Thank you, Mr. Chairman. Thank you, Mr. Keys,
for being here and for your testimony. I appreciate it very
much. You have a difficult job to do with limited resources and
we appreciate that.
Relative to 4708, there are a couple of issues that you
raised, one being the dates, one being mentioned as soon as
practicable and the other being September 13, 2003. We can
resolve those pretty easily. I think it means as soon as
practical before September 13, 2003. That is how I would read
that, but we can make that language very clear, I am sure.
The second one was something else dealing with the cap on
the amount that the district would have to pay of $40,000,
There has been precedents set in other legislation on transfers
where they have set the cap on what a district would have to
pay. Do you have any idea what those amounts are, if $40,000
would cover it?
Mr. Keys. Mr. Chairman, Mr. Simpson, the $40,000 figure is
a magic figure that floats around Idaho.
Mr. Simpson. A lot of magic floats around Idaho.
Mr. Keys. Yes, the semaphore was not unnoticed there. In
working with other districts, we worked out an estimate of what
it would take to do the title transfer process in NEPA. In
another case half of that was about $40,000. That seems to be a
magic number right now.
What I would tell you is that I don't anticipate a lot of
extra cost, but the total is more than $80,000. Certainly we
have no source of funds for more than our half of that share.
We would just expect the district to pay their portion of that.
Mr. Simpson. When you say ``more than $80,000,'' are we
talking $340 million as opposed to $100 million? I am just
kidding.
Mr. Keys. No, sir. I don't have a good estimate for it, but
certainly my people would work with Dale Swenson to be sure
that that is not excessive.
Mr. Simpson. I appreciate it. I thank you for being here
today and for your support of the legislation. We will work
with you to be sure we can make some adjustments so that all of
us can agree on the legislation as it moves forward.
Thank you.
Mr. Calvert. I thank you the gentleman.
I certainly thank you, Commissioner, for once again coming
to our Committee and sharing your time with us.
If there are no further questions, you are excused.
The next panel we have before us is Mr. Jeff Raybould,
Chairman, Board of Directors, of the Fremont-Madison Irrigation
District; Bennie Hodges, Manager of the Pershing County Water
Conservation District; and Steven Malloch, Counsel, Western
Water Project, Trout Unlimited, and I believe he is also
testifying on behalf of the Henry's Fork Foundation.
Just to remind the witnesses, we have a 5-minute rule. You
will see an indicator. When the yellow light comes on, that
means you have 1 minute to close up the statement. When the red
light comes one, that is 5 minutes and the time is up. We
appreciate your trying to stay within that timeframe so we have
time for questions.
With that, Mr. Raybould, you are recognized for 5 minutes.
STATEMENT OF JEFF RAYBOULD, CHAIRMAN, BOARD OF DIRECTORS,
FREMONT-MADISON IRRIGATION DISTRICT
Mr. Raybould. Thank you, Mr. Chairman, Members of the
Subcommittee. My name is Jeff Raybould, I am the Chairman of
the Board of Directors of the Fremont-Madison Irrigation
District. I am here to testify in support of H.R. 4708.
Mr. Chairman, Fremont-Madison saw title transfer as an
opportunity for the water users in our area to have an
increased water supply, to have some modest savings in the
operation and maintenance costs of our district and also to
have provide better consequence in the river.
Early one when we decided that we wanted to pursue title
transfer, we went hand in hand with the Bureau of Reclamation
to the Henry's Fork Watershed Council which is an organization
of 70 agency and organizations that meet on a regular basis to
discuss the needs of the watershed.
We let everyone know what our intentions were. After that
we held public meetings so that people could give their input.
At the conclusion of this part of the process, the Henry's Fork
Foundation came forward and thought that perhaps we could
develop a dialog with them on how we might move forward with
this transfer and not only enhance our water supply, but help
improve the consequence on the Henry's Fork.
They also brought in Bruce Driver of the Land and Water
Fund of the Rockies as an advisor to help them chart a course
that they thought the environment community would approve of.
All the while this was going on it was not done under the
cover of darkness as some have suggested. We give the watershed
counsel regular updates. We had a special workshop within the
watershed counsel to discuss this specific title transfer
proposal.
In the end the Henry's Fork Foundation and the other local
stakeholders could not support a transfer of all of our
facilities. They were concerned about the ownership of Island
Park Reservoir in particular, and also Grassy Lake moving from
Federal ownership to local ownership.
So, at this point in time, evaluating all the comments we
had obtained over a two to 3 year period and all the
discussions we had had with various groups, we decided to limit
the scope of the transfer that we would request from the Bureau
of Reclamation to their cross-cut diversion dam, the cross-cut
canal and the Teton Exchange wells. These items were all on the
table to begin with.
There was very little negative comment about the
possibility of those being transferred to Fremont-Madison
Irrigation. With the input that we had received over this
period of time, we decided to go forward with legislation. We
looked at various ways of doing it and have brought this bill,
4708 to you today.
There are some concerns about what might happen if there is
additional development of ground water because of this
transfer. I know the Department of Water Resources will look at
that very closely. Fremont-Madison Irrigation has agreed to put
a mitigation plant in place that would mitigate for any impacts
from additional development.
We believe that this is in the interest of the watershed.
We think that providing more water to our water users
undoubtedly will leave more water in the river, more carryover
in Island Park Reservoir for use for whatever purposes it might
be needed for.
Mr. Chairman, this is a good transfer. We have worked well
with the Environmental Committee over the years and would like
to have an opportunity to see this legislation move forward.
I thank you for your time and I would be happy to answer
any questions you might have.
Mr. Calvert. I thank the gentlemen.
[The prepared statement of Mr. Raybould follows:]
Statement of Jeff Raybould, Chairman of the Board of Directors,
Fremont-Madison Irrigation District
Mr. Chairman, Members of the Subcommittee, I am Jeff Raybould,
Chairman of the Board of Directors of the Fremont-Madison Irrigation
District (FMID) in Idaho. I am here to testify in support of H.R. 4708.
This legislation would require the Secretary of the Interior to
convey certain facilities to our District pursuant to the Memorandum of
Agreement with the Bureau of Reclamation. These facilities include: the
Cross Cut Diversion Dam, the Cross Cut Canal and the Teton Exchange
Wells.
FMID was created under the laws of the State of Idaho in 1935 to
enter into a repayment contract with the United States Bureau of
Reclamation for the construction of Island Park Dam, Grassy Lake Dam
and the Cross Cut Diversion Dam and Canal. The forty year repayment
contract was paid out in 1979 by the spaceholders of FMID.
FMID provides a supplemental water supply to approximately 1,500
water users irrigating approximately 200,000 acres associated with the
original Island Park and Grassy Lake projects as well as the failed
Teton Dam project. Forty canal companies existed prior to the creation
of FMID. The canal companies supply the natural flow water (primary
water supply) to lands of their stockholders. They also conduct their
own operation and maintenance. Most of the lands served by FMID are
also lands of the canal companies. The FMID uses these canal companies
to deliver storage water.
In 1993, FMID and the Henry's Fork Foundation, a local
environmental group, helped form the Henry's Fork Watershed Council
which is a grassroots community forum that uses a non-adversarial,
consensus-based approach to problem solving and conflict resolution
among citizens, scientists, and agencies with varied perspectives.
FMID originally submitted a resolution to the Bureau of
Reclamation, requesting transfer of title from Reclamation to FMID of
Island Park Dam, Grassy Lake Dam, Cross Cut Dam and Canal and the Teton
wells. FMID worked closely with the Henry's Fork Foundation to develop
a consensus on how title for all these facilities could be transferred.
In the course of this effort, there was no opposition to title transfer
of the Cross Cut Dam and Canal and the Teton wells from any
representative of the Watershed Council, including the Henry's Fork
Foundation and the Greater Yellowstone Coalition. As a result of these
consultative discussions, FMID has decided at this time to only go
forward with seeking title to the Cross Cut Dam and Canal and the Teton
wells.
The Cross Cut Dam is located on Henry's Fork of the Snake River
which diverts water into the Last Chance and Cross Cut Canals. It is a
concrete gravity weir with a structural height of 17 feet and a total
length of 457 feet. It was completed in 1938. The Cross Cut Canal
begins at the Cross Cut Dam. The canal is approximately 7 miles long
with a capacity of 600 cubic feet/second (cfs) at the head.
The canal diverts storage water from the Henry's Fork near Chester
and conveys it to the Teton River. In addition to conveying storage
water to users on the Teton River, the canal also conveys natural flow
water to some of the lands within the Fall River Irrigation Company
system. A portion of the Cross Cut Canal was constructed through the
already existing Fall River Canal. FMID has operated and maintained the
canal since it was built. FMID and Fall River jointly employ a canal
manager to address operation and maintenance needs.
Five Teton Exchange Wells were constructed by the Bureau of
Reclamation in the early 1970's as part of the Lower Teton Division.
They were designed to provide groundwater in exchange for water storage
in Teton Reservoir. Failure of the Teton Dam in June, 1976 made the
constructed wells the only supplemental water source available to
irrigate the lands affected by the Teton Dam failure.
In 1977, FMID and the Bureau entered into a contract to allow the
use of the wells as a backup water supply in drought years. This
contract provides for the use of wells, pumps, motors and appurtenant
facilities over a 25 year period.
Water from the five wells is pumped into the lower Henry's Fork
system to augment supplemental irrigation water supply for FMID in dry
years. FMID pays for all operation, maintenance and replacement costs.
FMID has conducted extensive outreach with local entities in
response to the proposed title transfer and we will continue to do so
as the process moves forward. We would like to address three concerns
that have recently been raised by local environmentalists:
(1) LFirst, the only facilities authorized for transfer are the
Cross Cut Dam and Canal and the Teton Wells. Island Park and Grassy
Lake Dams are not included.
(2) LSecond, it has been suggested that additional conservation
flows be designated for the Henry's Fork. This should not be a
condition for title transfer, but we will continue to work with all
local stakeholders to address this issue.
(3) LThird, the Secretary is required to complete all actions as
required under the National Environmental Policy Act. At the request of
local environmental groups, the Bureau of Reclamation has already
initiated this process. The ultimate level of review will be determined
in accordance with this law.
This concludes my remarks. Thank you for allowing me to appear
before your Subcommittee today. I would be pleased to answer any
questions you might have.
______
Mr. Calvert. Our next witness is Mr. Hodges, Pershing Water
Conservation District. You are recognized for 5 minutes.
STATEMENT OF BENNIE HODGES, MANAGER,
PERSHING COUNTY WATER CONSERVATION DISTRICT
Mr. Hodges. Mr. Chairman and Members of the Subcommittee, I
am the manager of the Pershing County Water Conservation
District and with me today I have fellow Board member, Bob
Gibson.
We are here in support of H.R. 5039, the Humboldt Project
Conveyance Act. This legislation will require the Secretary of
the Interior to convey facilities to our district pursuant to
agreements with the Bureau of Reclamation, Pershing County,
Lander County and the State of Nevada.
To fully understand this, this is a kind of complex
project. I have to kind of go back and give just a little bit
of an overview on this on how this and how this came about. In
the late 1920's, the irrigators in the Lovelock Valley, which
is about 90 miles east of Reno, realized that being on the
bottom end of the Humboldt System, the Humboldt River System as
an unreliable river system.
They already had two small reservoirs that they were
operating off of, but they weren't sufficient. They didn't
store a sufficient amount of water for a sustained water
supply. So, in the early 1930's they went to the Bureau of
Reclamation with a proposal that what is now present day Rye
Patch Reservoir, to build a reclamation project there.
The Bureau of Reclamation came to Rye Patch and looked at
it and they said, this is a good site. This was work as a good
place for a reservoir, but you don't have enough water rights
and water-righted ground to pay the construction costs and pay
future O&M costs.
So, the members of the irrigation district started working
up stream cutting east through Winnemucca and Lander County.
They got into Lander County and they bought two ranches up
there. They signed the agreement to buy them. They were ranches
of 30,000 acres, the Meyalduz and the Philippini Ranch.
They went back to the Bureau of Reclamation and said, with
these acquired ranches, do we have enough land and water,
mainly water, to justify the construction of a reclamation
project? And the Bureau said, yes, they do.
In 1934, contracts were signed that the Bureau would loan
the District the money to pay for the ranches and also to build
Rye Patch Reservoir. In 1936 Rye Patch Reservoir was completed
and in 1978 the repayment on the cost of the private ranches
that were purchased and the construction costs of Rye Patch was
repaid by the irrigation district.
Now, we have operated and maintained Rye Patch Reservoir
since 1941. We have grazed on the two ranches that we purchased
through the Bureau of Reclamation. We have grazed our cattle up
there since 1953. So, we have operated and maintained our
project for quite a long time, as you can see.
The constituents of the district have always felt that
especially the acquired lands that are within the project, the
acquired lands being the lands that the constituents of the
district bought and paid for, they should have title to them.
Starting in 1995, we started working with the Bureau of
Reclamation's guidelines and framework for title transfer. In
the course of doing that, we have had scoping sessions in Elko
County, Lander County, Lovelock, Reno, and Carson City.
Through oral and written testimony, we have issued response
and negotiated with the State, Pershing County, Lander County
and the Bureau of Reclamation. We feel that we have a win-win
situation put together for the State of Nevada, Pershing County
and Lander County and many of the other entities involved.
If this legislation is introduced and passed, we will have
environmental issues and happenings that do not exist to this
day. The State of Nevada would receive over 5800 acres to
create a wetlands in the heart of our community pasture.
There would be a 3,000 acre-foot minimum pool for the
fisheries at Rye Patch that they don't have today. They would
own the ground that the State park sits on at Rye Patch
Reservoir now, enabling them to receive increased funding from
the Nevada legislature as they have to lease that now. The
legislature doesn't like to give them much month on leased
ground.
In short, I think this is a very doable project. Some
points I would like to leave with the Committee on this is the
constituents of the district bought and paid for the withdrawn
lands and they have felt that they have always title to them,
100 percent of the cost.
Again, it is a win-win situation for the State of Nevada,
and all the local governments involved. If this legislation is
passed, it will ensure that agriculture in the Lovelock Valley
would exist in the future as it does now. It will also ensure
that the State of Nevada receive lands for State parks, a
wetlands, and a wildlife management area.
That concludes my statement.
Mr. Calvert. I thank the gentleman.
[The prepared statement of Mr. Hodges follows:]
Statement of Bennie Hodges, Manager,
Pershing County Water Conservation District
Mr. Chairman, Members of the Subcommittee, I am the manager of the
Pershing County Water Conservation District (PCWCD). With me today, is
PCWCD Board Member Bob Gibson. We are here to testify in support of
H.R. 5039, the Humboldt Project Conveyance Act.
This legislation would require the Secretary of the Interior to
convey facilities to our District pursuant to various agreements with
the United States Bureau of Reclamation (Reclamation), State of Nevada,
and the Nevada Counties of Lander and Pershing.
PCWCD is a quasi political agency of the State of Nevada.
1. Brief History of the Humboldt Project and the Pershing County Water
Conservation District
The lands served by PCWCD are located in a high desert valley at an
elevation of 3,900 feet. The valley lies some ninety miles east of
Reno, just above the Humboldt Sink, which is the terminus of the
Humboldt River.
Emigrants following the California Trail used the lower river area
in what is now Pershing County to rest with their livestock before
attempting to cross the dreaded Forty Mile Desert. Before long, the
increasing local population of emigrants and miners fueled a
significant demand for agricultural products in the area.
In the early 1900s, several irrigators banded together to construct
the Pitt Taylor Reservoirs, located upstream of Lovelock, Nevada.
However, these reservoirs were not of sufficient capacity and served
only part of the irrigated area that now makes up PCWCD. In addition,
the reservoirs suffered from a lack of available water during dry
years.
As the settlement of the Humboldt Basin progressed, the amount of
water available at the lower end of the system continued to decrease.
Water use on lands in the upper reaches of the river basin was
increasing at a rapid rate, which created shortages for lower basin
water users.
In response to the problem, the Nevada State Engineer ordered a
general adjudication of the Humboldt River system in 1923, designating
the Sixth Judicial District Court in Winnemucca as the decree court. In
1931, Hon. George A. Bartlett issued a final decree establishing the
water rights for the Humboldt River Basin. The Bartlett Decree was
immediately subjected to judicial challenges that were resolved through
the issuance of the ``Edwards Decree'' in 1934. Together, these decrees
are commonly referred to as the Humboldt River Decree. The Humboldt
River adjudication was finalized by order of the Nevada Supreme Court
in 1938, when it affirmed the Humboldt River Decree, halting all future
challenges. Lovelock irrigators who were last on the Humboldt River had
confirmed decreed water rights.
The issuance of the Bartlett Decree in 1931 established some order
on the river and opened the way for Lovelock Valley irrigators to build
a new water storage project to augment their decreed water supply. The
Lovelock Irrigation District had been organized in 1926 for the primary
purpose of exploring possible storage sites on the Humboldt River.
However, after the Bartlett Decree was entered these efforts
intensified. To facilitate the construction of such a project, the
District reorganized as a quasi political entity under the Nevada
Irrigation District Act and changed its name to the Pershing Water
Conservation District.
In the early 1930s PCWCD began negotiations with Reclamation for
the construction of the Humboldt Project. Funding for the Project was
approved in August 1933 when the Public Works Administration allocated
$2 million for construction. Presidential approval of the Project was
given via letter dated November 6, 1935.
After studying several locations for reservoir construction, PCWCD
and Reclamation decided on the present site of Rye Patch Reservoir.
However, to make the project feasible, PCWCD needed to acquire
supplemental water rights for the project. To this end, PCWCD sought
out willing sellers upstream of the reservoir site. PCWCD's directors
located several willing sellers in Lander County, and in January 1934,
PCWCD entered into purchase agreements with several ranch owners in the
Battle Mountain and Valmy areas. In total, PCWCD contracted to acquire
over 30,000 acres of land and appurtenant water rights from two large
ranches just outside Battle Mountain and additional water rights from
nearby properties for a contracted acquisition of 49,670 acre feet.
After PCWCD successfully located and contracted for the necessary
supplemental water rights, PCWCD's directors decided to proceed with
the project. PCWCD entered into a repayment contract with Reclamation
for the construction of Rye Patch Dam on October 1, 1934. The contract
provided for the full repayment of all project related construction and
acquisition costs over a forty year period.
In late 1934, to facilitate the transfer of the water rights to
PCWCD lands, PCWCD assigned its rights under the ranch and water right
purchase agreements to the United States Government. In early 1935, the
United States concluded the transactions when it purchased the land and
water rights PCWCD had put under contract. The purchase price for these
lands and water rights were then made a part of PCWCD repayment
obligation to Reclamation.
Construction of Rye Patch Dam began in January 1935, and was
completed in January 1936, with a designed capacity of 170,000 acre
feet. Due to the drought conditions and legal problems with the Pitt
Taylor Reservoirs, Rye Patch was not initially filled to full capacity.
In the early 1940s, with all water transfers completed, legal
problems solved and operating methods established, PCWCD assumed the
operation and maintenance of the Humboldt Project including Rye Patch
Dam and the purchased lands in Lander County. Since that time, PCWCD
has assumed all costs resulting from the day to day operations and
maintenance of the entire Humboldt Project.
Over the years, PCWCD entered into other contracts with
Reclamation. One contract was for the rehabilitation and betterment of
the Battle Mountain Collection System and another contract was for the
rehabilitation of Rye Patch Dam. These contracts, as with the original
construction contract, called for repayment by PCWCD for all funds
expended by the United States for project costs. Over the years, PCWCD
has satisfied each of these repayment obligations.
In the early 1990s, Reclamation determined that some modifications
to Rye Patch Dam would be necessary to protect the integrity of the
actual dam structure. This work was completed in 1996 and Rye Patch
Reservoir was filled to its present capacity of 213,000 acre feet.
PCWCD recently made its last payment to Reclamation for its portion of
the modification costs.
PCWCD has, with the guidance of Reclamation, successfully
maintained and operated the Humboldt Project for over fifty years. In
these fifty years, PCWCD kept pace with the changing aspects of its
operation by updating its equipment and methods. The project has
stabilized water supplies, increased productivity of agricultural land
within PCWCD, employed managers and consultants experienced in
irrigation systems and grazing, provided recreational opportunities,
and expanded the tax base for Pershing County and the State of Nevada.
2. Humboldt Project Overview
As stated, the Humboldt Project is located in Northwestern Nevada
on the Humboldt River. The project collects and stores Humboldt River
water in Rye Patch Reservoir for the irrigation of 37,504.62 acres of
farm land in and around Lovelock, Nevada. The Project facilities are
operated and maintained in conjunction with the non Federal portions of
the irrigation system PCWCD in Lovelock
Project Lands
The Project lands consist of a total of approximately 76,000 acres
of withdrawn and acquired land.
Withdrawn Lands
Approximately 46,000 acres were withdrawn from the public domain by
Reclamation in 1934-1935. Of this total, 32,000 acres are located
within the Humboldt Sink, and 14,000 acres are located along the
perimeter of and beneath Rye Patch Reservoir.
Acquired Lands
The remaining 30,000 acres of Project land consists of acquired
lands primarily located near Battle Mountain, Nevada. From 1934-1935
Reclamation purchased two ranches totaling 30,065 acres with water
rights, and the water rights of five other ranches, all of which were
located in the vicinity of Battle Mountain, Nevada, approximately 150
miles upstream from Lovelock, Nevada. These lands are presently leased
to PCWCD and used by PCWCD patrons as a community pasture. In 1934,
Reclamation also purchased a ranch and water rights under the future
site of Rye Patch Reservoir portions of which are leased by
Reclamation.
Project Water Rights
Concurrently with the acquisition of the water rights from these
private lands, PCWCD submitted several water right transfer
applications to change the place of use to the Lovelock Valley farm
lands. Ultimately as a result of transfer proceedings before the State
Engineer, the State Engineer issued a series of orders transferring a
total of approximately 49,670 acre feet of water to the Lovelock Valley
lands for use within PCWCD.
Rye Patch Reservoir
Rye Patch Dam and Reservoir, located on the Humboldt River about 26
miles upstream from Lovelock, stores the flow of the river for
diversion to the irrigated lands in the Lovelock area. The dam was
completed and began storing water in 1936. The reservoir is 21 miles
long and has a capacity of 213,000 acre feet. The operation and
maintenance of the Project were transferred from Reclamation to PCWCD
in 1941. There are 37,504.62 water righted acres within PCWCD. PCWCD
contains 40,983 acres in total.
Rye Patch Reservoir provides for the usual types of water based
recreation such as boating and fishing. Facilities such as campsites
and boat ramps have been developed and are operated under the
administration of the Nevada Division of Parks. Fishing for trout and
warm water species is managed by the Nevada Division of Wildlife.
Toulon and Humboldt Sink
Reclamation withdrew lands within the Humboldt Sink to avoid the
responsibility of flood damage which might occur due to project
operations. Approximately 18,000 acres of land in the Humboldt Sink has
been managed by the Nevada Division of Wildlife (NDOW) under a
Management Agreement since 1957. The current agreement was signed on
January 6, 1988 and is set to expire in 2013. NDOW administers these
lands for wildlife management and grazing purposes.
3. Title Transfer Efforts
Since September 1997, PCWCD has followed the title transfer
framework in an effort to obtain title to the Humboldt Project located
in the Humboldt River basin in northern Nevada. This is PCWCD's third
attempt to obtain title to the Humboldt Project facilities since it
repaid its original project loan in 1978. PCWCD operates and maintains
the Project, and its constituents are the sole beneficiaries of the
Project.
Since 1997, PCWCD has been engaged in ongoing communication and
negotiation with Reclamation, the State of Nevada, Lander County,
Pershing County and various public interest groups regarding title
transfer. With the assistance of Reclamation, PCWCD held scoping
meetings at four locations in the State: Battle Mountain, Lovelock,
Carson City and Reno. These scoping meeting were followed by the
receipt of comments from various individuals and groups that were
addressed by Reclamation and PCWCD. Out of these scoping meeting and
comments there occurred ongoing discussions resulting in agreements
that addressed the areas of concern.
4. Areas of Concern
In December 2001, Tina Nappe and Dave Stanley of the Lahontan
Audubon Society and Rose Strickland of the Toiyabe Chapter of the
Sierra Club expressed a variety of concerns to the State of Nevada:
a. LWater: As a part of the title transfer a portion of the
Humboldt Project water rights should be transferred from Lovelock
farmers for upstream use to establish an Argenta Marsh and downstream
for use in the Humboldt Sink because the water rights are publicly
owned. Money for the purchase of these water rights should be
legislated. Legislation should not be passed until water is secured for
the Argenta Marsh.
District Response: The Humboldt Project purchased ranches with
their appurtenant water rights and under the State process transferred
the appurtenancy to private lands described within PCWCD's boundaries
allowing for intermediate storage of these rights within Rye Patch
reservoir. While water is publicly owned in Nevada, the right of use
obtained by the transfer of the water rights is not. Therefore, neither
Reclamation nor PCWCD owns the right of use to the transferred water
rights that were perfected almost 60 years ago to PCWCD landowners. The
ownership of these water rights are with the appurtenant landowners. At
most, PCWCD/Reclamation have a trustee relationship with these
landowners to deliver Humboldt River water including water stored in
Rye Patch reservoir to them.
Through the title transfer process, PCWCD agreed to transfer to the
State approximately 6,000 acres of acquired lands that it paid for
through its Reclamation repayment contract for the creation of a
wetlands. PCWCD notes that the State has generated funds from outside
sources to purchase water rights for the Stillwater wetlands in the
Fallon, Nevada area and that there are water rights for sale on the
Humboldt system that the State could purchase to create an Argenta
Marsh on some or all of the 6,000 acres as water is available. If the
State or the United States is going to establish a wetland park for the
public, the appropriate public funds should be used.
b. LPCWCD cooperation for wetlands development: NDOW should have
flexibility to use its water rights where ever it chooses, and PCWCD
should participate in that effort.
District Response: NDOW presently holds water rights in PCWCD.
Under Nevada law, transfers in place of use can take place; however,
the water must be used as the transfer describes. NDOW and PCWCD are
working together to establish a delivery canal to transport NDOW's
water rights to the Toulon Sink Wildlife Area. To further assist NDOW's
Wildlife Area, PCWCD's drain water rights have been allowed to flow to
both the Toulon and Humboldt Sinks. All excess Humboldt River water
flows to the Humboldt Sink.
c. LPublicly owned lands (withdrawn) should be retained:
Reclamation should retain ownership until these lands are inventoried.
Flood and recreation uses should be addressed. An Environmental Impact
Statement should be required. Nevada should initiate a planning
process.
District Response: All transferred lands will be evaluated through
completion of the NEPA process prior to transfer. Those entities
receiving title to specified lands will be required to pay the
associated NEPA, administrative, and transfer expense. Since the State
will receive approximately 24% of the acquired lands in Battle Mountain
and approximately 50% of the Rye Patch lands, Nevada will be the second
largest financial participant in the NEPA environmental decision
process.
d. LPCWCD Funding: After transfer to the State, PCWCD should pay
the State to manage the State Parks, to purchase water for wetlands, to
develop wetlands plans, and to manage wildlife lands.
District Response: PCWCD has no statutory authority to collect
assessments from its patrons for payment to the State for such
purposes. PCWCD patrons who use the pasture pay only for pasture
operations. As part of the title transfer, PCWCD is requesting no
reimbursement from the State for the lands to which the State seeks
title.
e. LPCWCD should not receive title: In the alternative, PCWCD
should be required to enter into a conservation easement over project
lands.
District Response: If title is not transferred to PCWCD, the State,
and to Lander and Pershing Counties, title will remain with the United
States. Unless legislated by Congress (which may be incongruent with
the Reclamation Act), it is unlikely that the United States could
burden its ownership with a conservation easement.
5. Agreements/Legislation
After almost five years of negotiations, PCWCD entered into
agreements with the State of Nevada, Lander and Pershing Counties. As
of June 25, 2002, PCWCD approved execution of a Memorandum of Agreement
(MOA) with Reclamation that followed the Nampa-Meridian MOA earlier
executed by Reclamation. Other agreements are summarized as follows:
State Agreement
a. LRye Patch (withdrawn lands): Under the State's agreement with
PCWCD, the State will continue its operation of recreational facilities
at Rye Patch. PCWCD agreed to transfer title to these withdrawn project
lands to the State. In addition, PCWCD agreed to transfer title of all
withdrawn lands, approximately 7,000 acres, above the high water mark
around Rye Patch Reservoir to the State to support the State's
recreational use. Further, PCWCD agreed that it would maintain a
minimum pool of 3,000 acre feet at Rye Patch Reservoir to support
aquatic and wildlife.
b. LCommunity Pasture (acquired lands): PCWCD also agreed with the
State to transfer title to approximately 5,800 acres of acquired lands
within the community pasture to the State for conversion to a wetlands
park along the Humboldt River near Battle Mountain.
c. LWildlife Area (withdrawn lands): Project lands lying below the
agricultural lands of PCWCD and at the terminus of the Humboldt River
are also to be transferred to the State by agreement. This transfer of
approximately 20,000 acres will facilitate the State's continued
maintenance of the wildlife area within the Toulon and Humboldt Sink.
Lander County Agreement
Because the acquired lands of the community pasture lie close to
Battle Mountain, the county seat for Lander County, the Lander County
agreement allows for title of approximately 1085 acres of these
acquired lands to be converted for public use as: (1) a livestock event
center (135 acres approximately), (2) an industrial park (920 acres
approximately), (3) an expanded sewage treatment facility (165 acres
approximately), and (4) a primitive park recreation area with
associated parking (31 acres approximately).
Pershing County Agreement
The City of Lovelock which is the county seat of Pershing County
uses a portion of the withdrawn Humboldt Project lands lying below
PCWCD agricultural lands for Derby field, a municipal airport. Thus,
the agreement with Pershing County provides that the lands presently
used for a municipal airport and some expansion of this facility will
be transferred to Pershing County. This transfer would include
approximately 960 withdrawn acres on the northern portion of the
Humboldt Sink
6. Conclusion
This concludes my remarks. Additional information can be found at
http://water-law.com/Title/Handbook.htm. We would be pleased to answer
any questions you might have.
______
STATEMENT OF STEVEN MALLOCH, COUNSEL, WESTERN WATER PROJECT,
TROUT UNLIMITED, HENRY'S FORK FOUNDATION
Mr. Calvert. Mr. Malloch, you are recognized for 5 minutes.
Mr. Malloch. Thank you, Mr. Chairman. My name is Steve
Malloch. I appear today on behalf of both Trout Unlimited and
the Henry's Fork Foundation.
Trout Unlimited preserves, protects and restores North
America's trout and salmon fisheries and their watersheds. We
have about 130,000 members in 450 chapters nationwide with
about 2,002 in Idaho and 850 in Nevada.
The Henry's Fork Foundation is an Idaho conservation
organization whose 2,000 members work to protect the Henry's
Fork Watershed.
I thank you for citing Mark Twain's aphorism about whiskey,
water and fighting. It is obligatory in every one of these
hearings. In some parts of the West, however, people are on a
12-step program and are working on anger management.
Transfer reclamation project can go either way. A win-lose
fight or win-win cooperation. Gaining ownership of reclamation
projects is a significant win for water contractors. Our
problems with the transfer bills before the Committee today are
that they represent some missed opportunities for the
environment and in some cases, loses.
Trout Unlimited and the Henry's Fork Foundation agree with
the premise that the Federal Government need not own all of the
600-plus reclamation projects. The approach to transfer we
advocate has four points:
First, that transfers should enhance the public benefits of
the project and help restore the associated rivers and
ecosystems. Title transfer really makes sense only if the human
and environmental systems associated with the water projects
are made better because of the transfer.
Second, some water and power projects should remain
Federal. The projects that play critical roles in watersheds
and river management for public purposes should remain Federal.
Further, where public benefits cannot be ensured and enhanced
in a transfer, the project should remain Federal. We don't see
any particular problem with that with either of these projects
as long as the public benefits are ensured and enhanced.
Third, water users are not entitled to project ownership
transfers, a new benefit to be negotiated and for which
consideration is appropriate. Under reclamation laws, water
users are not entitled to project ownership. Paid out does not
mean paid for. If water owners are given a new benefit,
ownership and control of the facilities, the quid pro quo
should be fixing some of the problems that the projects have
created, enhancing the public benefits.
Fourth, a decision to transfer projects should not be made
until the consequences of the transfer are understood and the
terms of the transfer are determined. We suggest that Congress
require environmental review and facility-specific transfer
plans be completed prior to legislation.
I will comment primarily on H.R. 4708. To understand the
interest of Trout Unlimited and the Henry's Fork Foundation,
you have to know that TU's members voted the Henry's Fork as
the best fishing in the country. They ranked Henry's Fork No. 1
in Trout America's guide to 100 best trout streams.
Anglers are not the only beneficiaries of this fishery. The
regional economic benefit of only a portion of the Henry's Fork
Fishery was estimated in '99 to be in excess of $5 million a
year. Henry's Fork and TU's chapters have a long and productive
history or working with FMID on Henry's Fork issues, including
title transfer.
Through the Henry's Fork Water Shed Council and one-on-one,
we appreciate that FMID faces a serious problem with drought
year reliability of its reclamation water supply, because the
fishery faces the same problems. Unfortunately, dry years are
all too common and typically occur two to 3 years out of every
ten.
Every water user on the Snake River, including the fishery,
faces the same set of problems. The centerpiece of the bill is
the transfer of a partially developed well field, the Teton
Exchange Wells. While the plans originally called for 45 wells
totally 670 CFS, only five have been drilled.
Our immediate concern is that additional water extraction
from the ground water system may have adversely affected
Henry's Fork. Our fundamental concerned is one of missed
opportunity. The Henry's Fork needs a drought plan that
addresses the need of the agricultural community, the angling
interests and the river, the ecological needs of the river.
Trout Unlimited and the Henry's Fork Foundation requests
that the current legislative proposal be deferred while the
various stakeholder groups are convened to work out a 12-step
solution.
To conclude, our goals should be to improve the benefits we
all derive from western water resources. To be satisfied with
the status quo in a deteriorating and increasingly complicated
system is not enough. To slide backwards is even more
unfortunate.
Congress should only transfer reclamation projects when it
leads to systems, both human and ecological, which are stronger
and healthier and more resilient.
Thank you.
Mr. Calvert. I thank the gentleman.
[The prepared statement of Mr. Malloch follows:]
Statement of Steven Malloch, Counsel, Western Water Project, Trout
Unlimited, Inc.
Mr. Chairman, my name is Steven Malloch. I appear on behalf of both
Trout Unlimited (TU) and the Henry's Fork Foundation (HFF) in
testifying about H.R. 4708, the Fremont-Madison Conveyance Act.
Trout Unlimited's mission is to conserve, protect and restore North
America's trout and salmon fisheries and their watersheds. Trout
Unlimited is a private, non-profit organization with 130,000 members in
450 chapters nationwide. There are approximately 2,000 TU members in
Idaho, many of whom enjoy the diverse and outstanding fishery resources
of the Henry's Fork watershed. I work with TU's Western Water Project,
which focuses on water quantity issues around the West. Across the
West, even in normal water years, but especially in drought years like
this one, rivers routinely are drained dry a condition that is
disastrous for fish, anglers and local economies that depend on water-
based recreation.
Today I also appear on behalf of the Henry's Fork Foundation, an
Idaho conservation organization whose 2,000 members are dedicated to
protecting the Henry's Fork watershed. The HFF mission is to
``understand, protect, and restore the unique values of the Henry's
Fork River while doing so in the context of mutual respect for others
that live and work in the watershed to ensure solutions are
sustainable.'' A letter on H.R. 4708 from HFF is attached as an exhibit
to this testimony.
Introduction
It seems that citing Mark Twain's hoary aphorism about whiskey,
water and fighting is required in every hearing about western water,
because there is a measure of truth in it. But in some parts of the
West, people have grown up, and gotten beyond the endless opportunities
for fighting. Instead, they are working together to solve problems,
rather than simply win a round. Mr. Chairman, one example you know well
is in California, where the compromise reached in the CALFED process
was a victory of accomplishment over acrimony.
In Idaho, a group of stakeholders on the Henry's Fork of the Snake
River, acting through the Henry's Fork Watershed Council, have a
remarkable history of collaboration and compromise on difficult
resource issues extending back for two decades. The Henry's Fork
Foundation and the Fremont-Madison Irrigation District (FMID) are
leaders in the Watershed Council. Trout anglers have greatly
appreciated this progress because the Henry's Fork is justifiably
famous for its remarkable trout fishing with large numbers of huge,
fat, and, unfortunately, smart wild rainbow trout. TU members voted it
the best fishing in the country, and ranked it number one in TU's Guide
to America's 100 Best Trout Streams. Anglers are not the only
beneficiaries of this fabulous fishing. An economic study funded and
completed by the HFF and published in Intermountain Journal of Sciences
in 2000 estimated the regional economic benefit of only a portion of
the Henry's Fork fishery to be in excess of $5 million per year.
The issues the HFF and FMID have worked through with other
Watershed Council members have sometimes been tough. Upstream of the
main fishing section of the Henry's Fork is Island Park Reservoir, a
part of the Bureau of Reclamation's Minidoka Project, and a principal
water supply for FMID. In 1992, Reclamation drew down Island Park
Reservoir--to the point that 50,000 tons of sediment were released,
blanketing the river with silt and causing a disaster for aquatic life
and the fishery. When the possibility of again drawing down the
reservoir and releasing silt loomed last year due to drought conditions
the HFF, FMID, Trout Unlimited and Reclamation reached agreements that
avoided repeating that problem.
That history of successful collaboration has not yet, however, been
extended to transferring title to Bureau of Reclamation facilities. The
Henry's Fork Foundation and the Fremont-Madison Irrigation District
(FMID) had prolonged, substantive and productive negotiations regarding
an earlier title transfer proposal for Island Park Reservoir and the
various ways a transfer could serve to protect the fishery resource
while still meeting the irrigation community's needs. Trout Unlimited
was a strong public and private supporter of those efforts. That the
effort foundered is proof of just how complex and potentially
contentious this transfer of public resources into the hands of
irrigation districts is, both on the Henry's Fork and elsewhere.
Transfer Policy Approach
Trout Unlimited and the Henry's Fork Foundation agree with the
premise that the Federal Government need not own all of the 600-plus
Reclamation projects. However, spinning off parts of the Reclamation
system to non-federal ownership makes policy sense only if the
transfers protect and enhance the public benefits associated with the
projects. America's taxpayers, people in the East, West, South, and
North, paid for these projects. Only if a transfer of ownership serves
to increase the public benefit and to solve the pressing problems in
managing the West's water for economic needs as well as environmental,
recreational, and aesthetic purposes, should it be accomplished.
The approach we advocate has four main points:
Transfers should enhance the public benefits of the project and the
associated river system.
Our fundamental position is that title transfers make sense only if
the human and environmental systems associated with the water projects
are made better because of transfer. During most of the long history of
western water projects, environmental damage was simply taken as a
matter of course, with predictable results. One can hardly consider a
major water project now without stumbling over an endangered species
issue.
We can take Twain's approach and continue a century and a half of
fighting eventually somebody may win, but more likely the fighting will
simply continue. Or we can take the modern approach and ensure that an
action, in this case transfer of ownership, that benefits one set of
interests, water users, also enhances the public benefits of the
project and the associated river system.
Some Federal water and power projects should remain Federal.
Projects that play critical roles in watershed and river management
for public purposes or are important to interstate, international, or
treaty obligations should remain Federal. Some projects are simply too
important to be able to adequately condition the transfers. For
example, projects such as Hoover Dam/Lake Mead and Glen Canyon Dam/Lake
Powell simply should remain Federal.
As a corollary to the first principle, where public benefits cannot
be ensured and enhanced in a transfer, because adequate terms cannot be
crafted or the recipient will not accept the conditions, the project
should remain Federal.
Water users are not entitled to project ownership; transfer is a new
benefit to be negotiated and for which consideration is
appropriate.
Under the Reclamation laws, water users are in no sense entitled to
project ownership when they complete their capital repayment
obligations. The law and history are unambiguous on the point. ``Paid
out'' does not mean ``paid for.''
Under Reclamation law, agricultural water users are obligated to
pay only pennies on the dollar of the costs for Reclamation projects.
While water districts may argue they are due ownership when they
complete payments, there is no legal claim that those payments built
equity. In fact, because the projects were almost entirely subsidized
with public funds, the argument in favor of enhanced public benefits is
much stronger than any argument in favor of water user ownership. If
water users are given a new benefit ownership and complete control of
the facilities--the quid pro quo should be enhanced public benefits.
A decision to transfer a project should not be made until the
consequences of transfer are understood and the terms of
transfer determined.
Because water projects affect so many interests, the terms of the
deal determine whether a transfer is in the public interest. Congress
requires that water projects proposed for construction be evaluated,
and at least the general outline of the project determined, before
considering projects for authorization. Congress should do no less in
disposing of projects in which it has already invested the taxpayers'
money.
We suggest that Congress require environmental review and facility-
specific transfer plans that set the terms and conditions be completed
prior to legislative action. As a less attractive alternative, Congress
could authorize transfers while also directing the Secretary of the
Interior to condition transfers in order to protect and enhance the
public benefits. The appropriate time for legislation and the language
used in that transfer legislation has been an issue since the topic of
granting ownership to water users first arose. When transfers are
directed before environmental review has been completed Congress is
deprived of a thorough analysis of the transfer issues and Interior's
ability to seriously consider the ``no action'' alternative is
eliminated. Similarly, when transfer is directed before the terms of
the deal are worked out, Interior's ability effectively to condition
the transfer to protect the public interest and enhance public benefits
is greatly reduced, if not eliminated.
Please note that conservation organizations are not alone in their
concern about terms and prior review. The Western States Water Council
whose members are appointed by Western governors arrived at very
similar conclusions in twice adopting a position on transfers of
Federal water and power projects. In 1995, and again in 1998, the WSWC
adopted a position on transfers that sets out their concerns with third
party impacts, public costs and benefits, the change in applicable
laws, and the need for a strong role for states. They urge Congress and
the Administration to adopt a process and develop criteria and
guidelines for project-by-project review of transfer proposals, with
significant state involvement. (See Position No. 209 at http://
www.westgov.org/wswc/transfer.html). Trout Unlimited and the Henry's
Fork Foundation agree with this position.
H.R. 4708
HFF and TU appreciate that FMID faces a serious problem with the
drought year reliability of its Reclamation water supply because the
fishery faces the same problem. The principal reservoir FMID relies
upon is Island Park, part of Reclamation's Minidoka Project, and the
subject of the prior title transfer effort. During the last two drought
years, FMID has only been allocated 62% and 42% of Island Park
Reservoir storage because of the senior rights of other Minidoka
Project contractors. Unfortunately, these dry years are all too common,
and typically occur two or three years out of every ten. Every water
user on the Snake River and the Minidoka project, including the
fishery, faces the same set of problems.
The centerpiece of this bill is transfer of a partially developed
well field--Teton Exchange Wells and the associated State of Idaho
water permit 22-7022. While the permit envisioned 45 wells totaling 670
cfs of water, only five wells have been drilled, providing
approximately 81 cfs. FMID has stated its intent to firm its water
supply by drilling new wells and making more extensive use of the well
field.
Our immediate concern is that additional water extraction from the
ground water system will have a deleterious effect on the Henry's Fork
River and aquatic resources. The location of the new wells, the amount
of water pumped from the existing and new wells, the type and location
of delivery systems, location of water use, and return flows all have
implications for fish and wildlife resources. We understand that other
water users have concerns about possible injury to their rights as
well. Despite TU's and HFF's longstanding relationship with FMID, we
must oppose this legislation because of the uncertain, but likely,
impact further development of this well field would have on the Henry's
Fork aquatic resources.
Our more fundamental concern is one of missed opportunity. The
Henry's Fork needs a drought plan that addresses the needs of the
agricultural community, the angling interests that now are a
significant part of the local economy, and the ecological needs of the
river. H.R. 4708 represents an approach to water problems from the last
century, one that Mark Twain would recognize. The Henry's Fork needs an
approach based on collaboration, communication, and a philosophy of
shared pain and shared gain. Additional use of the Teton Exchange Wells
may be an integral part of that approach to making an already stressed
water system work more effectively and provide greater benefits to all
the users.
TU and the HFF request that the current legislative proposal be
deferred while the various stakeholder groups are convened to see if
there might be an alternative that meets everyone's needs. Such talks
could be sponsored and facilitated by the Idaho congressional
delegation and include everyone who has a stake in the outcome from
Twin Falls upstream. The members of the Henry's Fork Watershed Council
have demonstrated that they can be effective and work productively if
given the opportunity. Missing this opportunity to encourage creating
an effective drought management plan would be moving in the wrong
direction.
We have the following specific comments on H.R. 4708:
1. LSection 2(a) directs transfer of the facilities by a date
certain. Directing transfer limits, and may eliminate, the ability of
the Secretary to effectively negotiate terms and conditions in response
to the eventual NEPA and ESA process, reducing the value of a review
process subsequent to legislation. Directing a transfer is appropriate
in legislation after the environmental review is complete, and the
terms of the transfer have been set through negotiation. Prior to
reaching that point, a much better result is likely if the transfer is
authorized, but not directed.
2. LSection 2 creates some ambiguity in the facilities to be
conveyed. Section 2(a) describes the facilities to be transferred
specifically as the Cross Cut Diversion Dam, the Cross Cut Canal, and
the Teton Exchange Wells. However, subsection (c) of Section 2 is
broader and includes broader language describing the transfer of all
United States rights, title, and interest ``in the canals, laterals,
drains, and other components of the water distribution and drainage
system that is operated or maintained'' by FMID. We understand that
FMID may operate other facilities beyond those specified in Section
2(a). Therefore, we suggest that the facilities to be transferred be
identified in Section 2(c) specifically and not generally.
3. LSection 3 specifies the cost to FMID of the transaction and the
facilities. We reiterate the common sense position set out above that
``paid out'' does not mean ``paid for.'' The asset value to the
taxpayer of the transferred facilities has not been established and
should be in the course of a thorough review of the transfer proposal
and development of a drought management plan; after determining that
value, a reasonable price can be set. We also are concerned that
Section 3(a) in limiting the transaction costs to FMID may be setting a
cap on any mitigation or environmental enhancement costs that could be
required as part of the transfer. Until that assessment is done, the
environmental costs cannot be quantified and should not be capped.
4. LSection 4, concerning the Teton Exchange Wells, makes clear
that FMID would receive not just the five wells it has been using, but
also the permit for 40 additional wells and approximately 589 cfs of
additional water. The heart of our concern is the transfer of this
permit, and the possible development of some or all of the additional
diversions, with attendant effects on aquatic resources.
5. LSection 5 calls for NEPA analysis to be performed after
Congress directs transfer. This process seriously limits the scope of
NEPA review (by essentially eliminating the no transfer alternative
from serious consideration) and greatly limits the ability of the
Secretary to require terms and conditions that protect public
resources. We suggest that at a minimum the legislation or legislative
record make clear that NEPA analysis is to consider thoroughly the
effects of development of the Teton Wells.
6. LSection 7 is intended to legitimize use of Reclamation water on
land not currently eligible for that water. Water spreading is a
significant issue around the West that has typically been resolved, as
in this case, by legitimizing what amounts to use of water contrary to
law. While we do not have information about this particular situation,
we note that the effect of this section is to expand the number of
acres legally eligible for irrigation in a basin chronically short of
water.
H.R. 5039
Trout Unlimited and the Henry's Fork Foundation have not been
directly involved with the Humboldt Project, subject of a transfer
proposal in H.R. 5039. Trout Unlimited notes that many of the same
issues we raise in comments on H.R. 4708 are also at issue in H.R.
5039. Transfer of the Humboldt Project is, if anything, even more
complicated because it includes a major reservoir, public recreation
lands, and a desert marsh that serves an important ecological function.
As a matter of policy, the transfer approach outlined above should
apply to the Humboldt Project as well.
Conclusion
Congress and Reclamation are far from solving the problem of how,
when and under what conditions to transfer ownership of Federal water
projects. In part, this is because each project is different, with
different users, beneficiaries, and environmental issues. Therefore,
the appropriate terms and conditions for transfer will differ from
project-to-project as well. We suggest that the best approach parallels
that which Congress follows when authorizing water projects. Congress
should require facility specific transfer plans that develop the issues
and find solutions before legislation is enacted. Just as with
feasibility studies for new projects, results are best when the
questions are asked, the public is involved, and the answers are found
early in the process. And as recent revelations about the Corps of
Engineers practices show, even that process is subject to flaws.
The development that we find most appealing is that in some areas
water users and conservation organizations are now actually talking to
one another about how to manage rivers for their mutual benefit. We are
very optimistic that common ground can be found in many, if not most
cases. The wisest of the Reclamation contractors appreciate their
rights and responsibilities as stewards of vital natural resources,
just as conservationists appreciate the contributions of water users.
Congress' goal should be to improve the benefits derived from the
enormous Federal investment in western water resources. To be satisfied
with the status quo in a deteriorating and increasingly complicated
system, is not enough. Congress should only transfer Reclamation
projects when it leads to human and environmental systems that are
stronger, healthier and more resilient. We oppose H.R. 4708 and H.R.
5039 because they do not meet that test.
______
July 3, 2002
The Honorable Mike Simpson
1440 Longworth House Office Building
Washington, D.C. 20515
The Honorable Mike Crapo
111 Russell Senate Office Building
Washington D.C. 20510
Re: H.R. 4708--Fremont-Madison Conveyance Act
Dear Congressman Simpson and Senator Crapo:
The Henry's Fork Foundation (HFF) sends this letter on behalf of
our approximately 2000 members who are dedicated to protecting the
Henry's Fork watershed. The HFF mission is to ``understand, protect,
and restore the unique values of the Henry's Fork River while doing so
in the context of mutual respect for others that live and work in the
watershed to ensure solutions are sustainable.'' In the context of both
protecting the magnificent Henry's Fork fishery and mutual respect for
others who live and work in the watershed, we submit the following
comments regarding H.R. 4708.
As you are undoubtedly aware, the HFF has collaborated on difficult
resource issues for the past decade with the Fremont-Madison Irrigation
District (FMID) and other stakeholders in the Henry's Fork watershed.
We were the only conservation group--local, state, regional, or
national--willing to sit down and have substantive talks and
negotiations regarding earlier title transfer legislation involving
Island Park Reservoir and the various ways to protect the fishery
resource while still meeting the irrigation community's needs.
With the collaborative nature of our past involvement in title
transfer issues in mind, the HFF wants to reiterate once again our
position regarding the transfer of title of Federal reclamation dams,
canals, or any other type of irrigation works in the Henry's Fork
watershed. The HFF believes that any type of title transfer legislation
should have an environmental component to ensure that the Henry's Fork
fishery resource is not only protected but also enhanced.
The HFF also wants to emphasize that we are cognizant of the dry
year water issues for the irrigation community in the Henry's Fork
watershed. Recent conversations with Dale Swensen and FMID have helped
frame these issues. The fact that the irrigation district--based on
Minidoka Project storage and operations--has only been allocated 62%
and 42% of Island Park Reservoir storage during the last two drought
years is illustrative of the need for supplemental irrigation water for
FMID users. Further, such dry year realities emphasize the nexus
between water storage rights (i.e., who actually owns the water) in the
upper Snake River Basin and Federal Bureau of Reclamation (BOR)
operations during such years. In other words, during a dry year or
drought cycle reduced stream flows during the winter months are
inexplicably tied to broader system-wide BOR Minidoka Project
operations and reservoir carryover, and not FMID rights or operations.
These are classic dry year dilemmas that occur as foreseeable events
almost every decade for a 2-3 year period.
But fishery needs during drought years and cycles mirror those of
the irrigators. The impact of such low flow years on the fishery
resource in the Henry's Fork watershed is undeniable. Such impacts have
been documented by numerous studies funded and carried out by the HFF
and Idaho Department of Fish and Game (IDFG) highlighting the
connection between low flows and the loss of spawning and rearing
habitat, juvenile mortality, year-class strength, the loss of
macrophyte habitat, and overall stream health. There is also the
chance--depending on project operations--that Island Park Reservoir
will reach such low levels that unnaturally high levels of sediment
will be released downstream. These are enormously significant fishery
concerns, but there is an economic fall-out as well. An economic study
funded and completed by the HFF and published in the Intermountain
Journal of Sciences in 2000 estimated the total annual value of the
Henry's Fork fishery only between Island Park Dam and Hatchery Ford at
$5,012,509.
So with these dry year irrigation and fishery needs in mind, the
HFF provides the following comments regarding a piece of legislation
that aims to only provide for one piece of the overall economic well-
being and no mention of the ecological health of the Henry's Fork
watershed. We have tried to break our concerns with the title transfer
legislation into two specific categories. First, the HFF has a number
of specific concerns regarding the current proposals and we have
outlined those comments below. Second, we have some other policy and
resource related concerns specific to the portion of the title transfer
legislation pertaining to the Teton Wells. Finally, the HFF would like
to reiterate some of the fishery resource needs in the Henry's Fork
watershed, and advocate that the Idaho congressional delegation take
the lead in getting a number of diverse stakeholders together to design
a mutually agreeable and long-term solution to drought year problems in
the upper basin.
Specific Comments Regarding H.R. 4708
The ``shall'' language contained in Section 2 leaves the Secretary
no flexibility regarding the transfer of the Federal assets described
in the bill based on further environmental or any other type of
analysis. This establishes bad precedent, doesn't give the Federal
Government the necessary flexibility to avoid possible impacts to other
water user contacts or obligations or the environment, and
predetermines a course of action that may not be in the public
interest.
Section 2(a) (``Conveyance of Facilities'') describes the Federal
facilities to be transferred very specifically as the Cross Cut
Diversion Dam, the Cross Cut Canal, and the Teton Exchange Wells.
However, subsection (c) of Section 2 includes broader language
describing the transfer of all United States rights, title, and
interest ``in the canals, laterals, drains, and other components of the
water distribution and drainage system that is operated or maintained''
by FMID. Despite the key phrase ``water distribution and drainage
system,'' the language of subsection 2(c) is unnecessarily broad and
could be read to include other Federal project works. It is imperative
to tighten up this language in light of past title transfer proposals
that have included both Island Park and Grassy Lake Dams. Therefore,
the HFF proposes that section 2(c) be amended to specifically identify
included facilities as only those that are appurtenant to or associated
with the Cross Cut Diversion Dam, Cross Cut Canal, and Teton Exchange
Wells and operated or maintained by FMID.
The HFF does not have any specific comments regarding the language
in Section 4 (Teton Exchange Wells). However, see the section below for
our comments regarding the extraordinarily important resource issues
concerns associated with the future use of the Teton Exchange Wells. In
addition, the FMID has stated both in meetings and in public statements
that the use of additional wells will be capped at approximately 80,000
acre/feet to provide supplemental water for its users. However, there
is no explicit cap of the proposed additional use in the legislation.
Section 5 of the proposed legislation should be expanded to
identify specific issues to be assessed and analyzed in the NEPA
process. Such issues include the possible impacts to existing surface
and groundwater rights, diminished flows in the Henry's Fork between
the point where water is diverted to fill the Cross Cut Canal and where
well discharges would enter the river, and other impacts to temperature
and other water quality parameters and aquatic habitat in the lower
Henry's Fork watershed.
The Teton Exchange Wells
The Teton Exchange Wells and the current and possible future water
use associated with State of Idaho water permit 22-7022 provide the
centerpiece for the proposed title transfer legislation. The original
permit for these wells envisioned 45 wells totaling 670 cfs of water.
However, to date only five wells have been drilled, providing
approximately 81 cfs. During last year's drought season, the FMID used
these wells to provide approximately 26,000 acre/feet of water to their
users. The HFF concerns regarding the use of the Teton Exchange Water
echo those of other stakeholders such as IDFG and the Upper Snake River
Cutthroats Chapter of Trout Unlimited. From our perspective there are
more questions than answers regarding the transfer of these wells.
These concerns include regulatory issues pertaining to the
relationship between the future use of additional wells and the current
moratorium on new groundwater permits in the Upper Snake River Basin,
the conjunctive management of surface and groundwater use in the State
of Idaho, and aquifer recharge. Most importantly from a river health
standpoint, the use of the additional water could have a deleterious
effect on the Henry's Fork River. The location of the new wells, the
amount of water pumped from the existing and new wells, the type and
location of deliver systems, location of water use, and return flows
all have implications for fish and wildlife resources. Finally, there
has been very little substantive talk regarding the use of some of the
well water as an exchange mechanism to provide water during strategic
time periods in the Henry's Fork system from Henry's Lake downstream
and benefit fish and wildlife resources.
The Henry's Fork Fishery
Perhaps the biggest disappointment regarding the current title
transfer legislation is that there was no attempt to include broader
stakeholder representation to develop a global remedy--i.e., a drought
management plan--to meet not only FMID needs but also those of the
fishery. Neither the HFF nor the Henry's Fork Watershed Council has
been part of this process. We have been forced into a corner regarding
our stance on the current proposal; that is not where we prefer to be.
The HFF made a commitment years ago to work whenever possible with
irrigators and others in the watershed to develop innovative solutions
to difficult natural resource problems. We remain committed to this
type of approach.
At the same time, perhaps the most important resource issue for the
HFF's constituency now and for the foreseeable future will be water. We
have yet to solidify a long-term drought response plan in the Henry's
Fork watershed that adequately protects the fishery and aquatic
resources. This void includes the lack of statutory, regulatory, or
negotiated mechanisms to guarantee that sediment events are avoided,
minimum winter flows established, and late-summer water quality effects
remedied. Therefore, in addition to our consistent approach to
collaboration in the watershed, the HFF also remains committed to
finding creative solutions to the aforementioned water and fishery
issues.
Conclusion
The HFF would like to request that the current legislative proposal
be delayed while the various stakeholder groups are convened to see if
there might be an alternative that meets everyone's needs. The Idaho
congressional delegation could help sponsor and facilitate talks that
should include everyone who has a stake in the outcome from Twin Falls
upstream. The HFF believes it is the ultimate irony that the Federal
Government spends millions of dollars annually on a hatchery driven
anadromous salmon and steelhead fishery in the lower river while some
of the world's greatest wild and native trout fisheries--Idaho
fisheries--dry up every ten years. The current title transfer approach
should be broadened to include a more comprehensive fix to drought year
water issues. We believe that legislation can be developed that meets
everyone's needs.
The HFF appreciates the opportunity to comment regarding the
proposed legislation and the important water use and natural resource
issues addressed therein. Please don't hesitate to call our office with
any questions or comments.
Sincerely,
Scott B. Yates
Interim Executive Director
______
Mr. Calvert. Mr. Raybould, why has the district proposed to
put a cap on the administrative and NEPA costs associated with
the title transfer for FMID?
Mr. Raybould. Mr. Chairman, we believe that there needs to
be some certainty into what those costs will be. I guess I was
a little surprised when Mr. Keys said he didn't think he could
do it for $80,000.
We have already begun the NEPA process and it appears to us
that it is going to be a relatively uncomplicated NEPA. The
other work that has been done to date hasn't been too costly.
We have had to deposit monies with the Bureau to have that work
performed.
We believe it can be done for $80,000 or less. If there is
a cap in the legislation, it probably will be done for $80,000
or less.
Mr. Calvert. Well, could you work with the Department to
see if you can't get that issue resolved prior to our full
Committee markup which, I hope, is pretty soon? That apparently
is an issue that we need to deal with.
Mr. Raybould. Mr. Keys is a reasonable man and so are the
local people. I am sure that we can come to some kind of
agreement on that.
Mr. Calvert. I would appreciate that.
Mr. Hodges, how are you working with the Department of
Interior on the issues as far as this legislation is concerned?
Is it moving along pretty well?
Mr. Hodges. Mr. Chairman, could you repeat that question?
Mr. Calvert. On various issues. It seems like $40,000 is a
number worth mentioning here. You might mention that or any
other concerns.
Mr. Hodges. OK. We have had some concerns on some issues.
Mr. Calvert. Any technical issues or anything like that. We
can get these resolved very quickly, I hope.
Mr. Hodges. Yes, but we have already been exposed to the
dilemma of administrative costs. We have some real concerns
there. We have recently completed a Safety of Dams Project with
the Bureau of Reclamation and the construction portion of the
project was $3.1 million, however the administration cost of
the project was $4.4 or $4.5 million.
So, when you have admin costs exceeding construction costs,
that may raise some concerns with us. That is kind of what is
fueling our concerns on the administrative cost of the title
transfer.
Mr. Calvert. I see. That is quite a number for
administrative costs. Well, obviously, if there is not a large
discrepancy in the amounts of money for these NEPA and other
associated costs, if we can come to the resolution from the
Committee's perspective where we can get a relatively trouble-
free markup as we move down this road is what all of us would
like to have.
Mr. Hodges. I agree. My thoughts concur with Mr. Raybould,
too. We don't think that the NEPA process and the admin costs
are going to be as high as what the Bureau is predicting. We
think we can work it out.
Mr. Calvert. I appreciate that.
Mr. Gibbons.
Mr. Gibbons. Thank you very much, Mr. Chairman.
Mr. Hodges, again, welcome. You would agree that the
Pershing County Water Conservation District is willing to pay a
share of these costs whether it be for administrative costs,
the NEPA costs, the real estate transfer costs, et cetera.
Mr. Hodges. Absolutely.
Mr. Gibbons. And you would agree that you could work with
the Bureau of Reclamation on resolving their concerns.
Mr. Hodges. Absolutely.
Mr. Gibbons. Do you have any suggestions that you would
make with regard to resolving some of the concerns about
transfer costs within this bill that we have already presented
and introduced?
Mr. Hodges. Well, transfer costs associated with the
district or transfer costs also associated with the State,
Congressman?
Mr. Gibbons. Both.
Mr. Hodges. The district has always recognized that they
would pay their fair share. Lander County has always recognized
and so has Pershing County recognized that they would have to
pay their costs associated with the project.
We thought the State was on board with that until about 2
days before the bill was introduced. What we have been talking
about and playing with is what if we good a different approach
to keep this legislation alive?
What if the water district was to pick up the
administrative cost, the NEPA cost and some of the fair market
value cost on the withdrawn lands on certain portions of the
project just to keep this legislation moving and at any time in
the future if the State feels that they have the money and they
want to repay us just for the NEPA and costs associated with
the title transfer for the lands that they had originally
wanted, they could repay us back those costs and we would give
them the lands that were already marked in the legislation.
Mr. Gibbons. So, we could put in the bill language
recognizing your agreement with the State or a potential
agreement with the State to exchange some kind of property for
value once you have paid it.
Mr. Hodges. I think we can do that, Congressman.
Mr. Gibbons. Mr. Malloch, I know that you are from
Washington, D.C. Have you ever been out to the Humboldt
Project?
Mr. Malloch. I actually spent, in a prior life before I
became a lawyer and a lobbyist, if that's what I am, I was a
hydrologist. I have spent about 6 months in that part of
Nevada, more up in the Elko area, but basically, every desert
valley in Nevada that you can reach by road I've been to, and a
number that you really shouldn't try to reach.
Mr. Gibbons. Well, then we share a similarity. I was a
hydrologist for the Federal Water Master in my prior life
before becoming a lawyer. I can understand your position on
this. My concern is, of course, that this project needs to go
forward and one of the real issues here, of course, is the
benefit to the public.
Now, we have got new wetlands that are going to be created
by the State of Nevada on this transferred or withdrawn land,
et cetera, which was going to, of course, improve wildlife
habitat which is a concern of your organization's. I would
suppose that your agency or your organization supports those
concepts.
Mr. Malloch. Well, we absolutely support the concept that
in the case of a transfer reclamation project there should be
some real benefit and in this particular case, creation of some
wetlands protecting it, enhancing the wetlands, is a very real
public benefit and we appreciate that that is one of the things
that is the purpose of this project.
We understand that there are some real concerns that have
been brought up today about who is going to pay, whether that
really will happen.
Mr. Gibbons. Well, those are concerns that you are not a
party of. The payment is between the Bureau of Reclamation or
the Federal Government and the beneficiaries of the project who
have already paid that. I think we have already agreed that we
are going to pay the fair market value for it.
Mr. Malloch. I want to make sure that that happens and as I
understand the state of the negotiations, it's a little bit in
doubt right now. If that gets resolved, then I'm going to be
much happier with the bill.
Mr. Gibbons. OK, because without this bill there will be no
wildlife habitat restoration, there will be no wetlands, there
will be no resources conservation areas. In your familiarity
with that area you understand the importance of that. So, it is
important that we get your organization to support this bill,
because without your support or without this bill there will be
none of the benefits that you sit here and describe to us as
the reasons why you are here.
Mr. Malloch. I very much would like to see all of the
issues get lined up and be in a position where we can support
the bill publicly and wholeheartedly. That would be a very
positive outcome.
I had a very informative conversation with Mr. Hodges
earlier today and I hope that we can be in that position.
Mr. Gibbons. Thank you. Thank you, Mr. Chairman.
Mr. Calvert. Mr. Simpson.
Mr. Simpson. Thank you, Mr. Chairman. I appreciate you all
being here today. Thanks, Jeff, for coming out from Idaho. I
know it is not the best weather in the world to be out here,
but I appreciate your being here.
As you heard, some of the comments from Trout Unlimited
were relative to these transfers ought to be of public benefit
and also to the irrigation district that is receiving this. Are
there environmental benefits that are going to occur by this
transfer to the Fremont-Madison Navigation District?
Mr. Malloch. Mr. Chairman, Congressman Simpson, there is
not a specific environmental benefit that I can quantify, but
we believe that if we manage the system properly in years when
there is plenty of water, if we come up with a managed recharge
plan at that time will add water to the aquifer and then draw
that water back out through these ground water wells during dry
periods, that it is going to put more water in the river.
Now, less the small amount of that water that is
consumptively used by our crops, it is going to provide more
water in the system. There is a great likelihood that the
carryover in Island Park Dam will be greater than it otherwise
would be, so we won't need to impound as much water during the
storage season and we will be able to have more water for
winter flows.
A lot of this, you just have to use some common sense and
realize that more is better than less, in my opinion.
Mr. Simpson. I know you have been working on this for quite
some time, in face, ever since I was first elected 4 years ago,
this is one of the first issues that we sat down and talked
about. How long have you been working on it? With what local
groups have you been working to address this?
Mr. Malloch. Mr. Chairman, Congressman Simpson, it has been
a long time. I would have to go back to a calendar and see, but
I believe it has been about 4 years, maybe not quite that long.
We have worked within our Henry's Fork Watershed Council. It is
an organization that we put together in the watershed to deal
with these issues.
Within that group, the Henry's Fork Foundation has been the
primary environmental group that has wanted to sit down and
have discussions about how we could improve the watershed. The
bulk of our time has been spent with them. We have also met
with the greater Yellowstone Coalition, members of Idaho Rivers
United, and the local Trout Unlimited people, as well as our
own agricultural groups in the area.
Mr. Simpson. Thank you. Mr. Malloch, you mentioned one of
your concerns was the potential of additional wells being
drilled and so forth. Is that right? Did I get that right?
Mr. Malloch. It is not so much that that is a concern, FMID
has stated its intent to develop additional water supplied by
drilling more wells, if they can. Our question is: What are the
consequences of additional groundwater pumping on the aquatic
resource? That is a very real concern and the State of Idaho
would have to deal with that as well.
Mr. Simpson. Those are permitted through the State of
Idaho, though?
Mr. Malloch. They are.
Mr. Simpson. Those questions would be addressed when they
went to seek a permit to drill additional wells; would they
not?
Mr. Malloch. The impact on other water users would be
addressed and we want to make sure that impact on the aquatic
resources would be adequately addressed as well.
Mr. Simpson. But the State of Idaho would do that according
to State law, not this legislation or anything else. I mean you
could oppose those well permits of whatever at the State level
should you feel that those impact on other aquatic issues and
so forth?
Mr. Malloch. I can, absolutely. I would like to address one
other thing that Mr. Raybould point out. We think that there is
a real win-win solution here, too. As he points out, if they
obtain more water, if they drill more wells, there will be more
water in the system, a change from ground water to surface
water, potentially.
What we want to make sure is that the system is healthier
as a result, not just that water users get additional water,
but in fact the ecological system is healthier and from our own
parochial interests that the fish flows are healthier as well.
We think that there is a real win-win here, but that we are
going to have to work through some of the complicated issues
that Mr. Raybould alluded to.
Mr. Simpson. I appreciate that and I appreciate your
pointing out that Henry's Fork is one of the top, premier trout
streams in the country. It brings a heck of a lot more
fishermen out there and puts a lot more stress on the river,
but nevertheless, it is.
Mr. Malloch. Catch and release, catch and release.
Mr. Simpson. I didn't get during the first part of your
testimony, did you submit the Henry's Fork Foundation appendix
that you had to your testimony as part of the record?
Mr. Malloch. I believe I did. It is part of the printed
record.
Mr. Simpson. Part of the printed record?
Mr. Malloch. Yes.
Mr. Simpson. Because there is one part of it that I do have
to take exception with, well, several of them, but one part
particularly. It says, ``Perhaps the biggest disappointment
regarding the current title transfer legislation is that there
was no attempt to include broader stakeholder representation to
develop a global remedy, i.e., drought management plan, to meet
not only FMID, but also those of the fishery.''
``Neither the Henry's Fork Foundation or the Henry's Fork
Watershed Council has been part of this process. We have been
forced into a corner regarding our stance on the current
proposal. That is not where we prefer to be.''
I almost find that--I don't know if ``offensive'' is too
strong a word or not, but I think it needs to be responded to
if it is going to be part of the official record because I have
seen the irrigation district and the meetings that they have
had with these different organizations and to suggest that they
haven't been part of the process of developing this
legislation, I think, is outrageous.
So, as long as this letter is part of the record, I wanted
a response to that in the record. So, I appreciate it.
Mr. Malloch. May I respond briefly?
Mr. Simpson. Sure.
Mr. Malloch. The Henry's Fork Foundation and the FMID had a
very long and intense negotiation over a title transfer that
was broader than this. It included Island Park Reservoir,
Grassy Lake and that effort ultimately foundered for a variety
of reasons. FMID took the least controversial parts of that
proposal, the cross-cut canal diversion and these Teton wells
and encapsulated it into the legislation you have here.
My understanding is that FMID, and I was not, obviously, a
direct participant, my understanding is that FMID did keep a
number of entities in Idaho, including the Henry's Fork
Foundation, apprised of what they were doing, but there was not
sort of the negotiation and really getting in and wrestling
with the problems that I think really needs to happen.
Perhaps Henry's Fork Foundation and Trout Unlimited are
responsible for not engaging adequately. Perhaps FMID shares
some responsible as well.
Mr. Simpson. I appreciate that version of it also. I do
know that there was controversy relative to the Island Park
Reservoir, the dam and Grassy Lake Dam and consequently, during
that time it seemed that all the rest of the legislation, all
the rest of the bills, seemed to be OK. Nobody had a problem
with that. But they had two specific problems. That was Grassy
Lake and Island Park.
When they dropped that out, then we found problems other
places that weren't a problem before dropping those out.
Sometimes this is a process of attrition more than anything
else.
Do you have a version on that, Mr. Raybould?
Mr. Raybould. Well, Mr. Chairman, Mr. Simpson, I would just
like to say that we did not intentionally keep anyone out of
this process. Our door was open. Our phone was on the hook.
They were aware that we were going to proceed with this limited
transfer.
Discussions we had with the Executive Director of the
Henry's Fork Foundation were open and we were very candid with
him about what our intentions were.
Mr. Simpson. Well, I appreciate that and let me just say in
conclusion that there is nobody that cares more about the
fisheries than Henry's Fork and I do and the irrigators do that
also fish a heck of a lot and that people all over this country
do. So, we do want to maintain that and I'm sure that the
members of the Fremont-Madison Irrigation District feel the
same way about it.
I appreciate your testimony today.
Mr. Calvert. Thank you. Are there any further questions for
this panel?
If not, this panel is excused. We thank you for your coming
out to Washington, D.C. and testifying.
The Members of the Subcommittee may have some additional
questions for the witnesses and we will ask for you to response
to those in writing.
The hearing record will be help open for these responses
until July 23, 2002.
If there is no further business, I thank the Members and
this hearing is adjourned.
[Whereupon, at 3:23 p.m., the Subcommittee was adjourned.]
[Additional material submitted for the record follows:]
[A statement submitted for the record on H.R. 4708 by
Norman M. Semanko, Executive Director and General Counsel,
Idaho Water Users Association, follows:]
June 21, 2002
Subcommittee on Water and Power
House Committee on Resources
1522 Longworth House Office Building
Washington, DC 20510
Re: H.R. 4708--Fremont-Madison Conveyance Act
Dear Mr. Chairman:
This letter is provided on behalf of the Idaho Water Users
Association (IWUA) in support of H.R. 4708, the Fremont-Madison
Conveyance Act. IWUA represents more than 300 irrigation districts,
canal companies, water districts, public water suppliers,
municipalities, hydropower interests, aquaculture companies, agri-
businesses and individuals. We are dedicated to the wise and efficient
development and use of water resources. IWUA represents over two
million acres of irrigated land and is affiliated with both the
National Water Resources Association and the Family Farm Alliance. IWUA
is proud to count Fremont-Madison Irrigation District among its many
members.
IWUA has strongly supported previous title transfer legislation for
its members, including Burley Irrigation District and Nampa & Meridian
Irrigation District. Of course, both of these bills were approved by
Congress and signed by the President. We commend Representative Simpson
for introducing H.R. 4708 and Representative Otter for cosponsoring the
bill. We strongly urge your Subcommittee to give the legislation
favorable consideration.
IWUA adopted the attached resolution at its Annual Conference in
January, 2002, expressing support for Fremont-Madison's proposed title
transfer. We request that this letter of support and IWUA's resolution
be included in the official hearing record as the Subcommittee
considers the bill. Thank you.
Sincerely,
NORMAN M. SEMANKO
Executive Director and General Counsel
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