[Senate Report 109-30]
[From the U.S. Government Publishing Office]
Calendar No. 43
109th Congress Report
SENATE
1st Session 109-30
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WALLOWA LAKE DAM REHABILITION AND WATER MANAGEMENT ACT OF 2005
_______
March 10, 2005.--Ordered to be printed
_______
Mr. Domenici, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 231]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 231) to authorize the Bureau of
Reclamation to participate in the rehabilitation of the Wallowa
Lake Dam in Oregon, and for other purposes, having considered
the same, reports favorably thereon without amendment and
recommends that the bill do pass.
PURPOSE OF THE MEASURE
The purpose of S. 231 is to authorize the Bureau of
Reclamation to participate in the rehabilitation of the Wallowa
Lake Dam in Oregon.
BACKGROUND AND NEED
Wallowa Lake Dam is a privately owned dam constructed in
1918 and raised in 1929. It is owned and operated by the
Associated Ditch Companies, Inc. (ADC). Dam safety deficiencies
have been identified by the U.S. Army Corps of Engineers and
the Oregon Water Resources Department, causing the reservoir to
be held below full pool elevation since 1996. ADC, in
conjunction with the Grande Ronde Model Watershed Council, the
Bureau of Reclamation, and other local, State, and Federal
agencies developed the Wallowa Lake Dam Rehabilitation and
Water Management Program to address dam safety deficiencies and
to tie correction of those deficiencies to larger environmental
issues in the Wallowa River Basin.
S. 231 authorizes the Secretary of the Interior, acting
through the Commissioner of Reclamation, to participate in: (1)
the Wallowa Lake Dam Rehabilitation Program, in cooperation
with ADC; and (2) phases II and III of the Wallowa Valley Water
Management Plan, in cooperation with tribal, State, and local
governmental entities. The Wallowa Lake Dam Rehabilitation
Program, as described in the February 2001 Vision Statement,
focuses on planning, designing, and constructing recommended
improvements to Wallowa Lake Dam. When this phase is completed,
ADC will be able to raise pool levels and work closely with the
Oregon State Parks Department to assess the impact on nearby
park facilities.
Phase II of the Wallowa Valley Water Management Plan will
focus on the planning and implementation of fish screens,
automated head gates, and flow measurement devices at
unscreened diversions. The Nez Perce Tribe is currently working
with the Oregon Department of Fish and Wildlife to plan and
implement fish recovery measures. S. 231 provides that only the
Tribe may own and operate fish passage facilities constructed
with Federal funds at Wallowa Lake Dam.
Phase III focuses on planning, designing, and implementing
the institutional framework and infrastructure, including pumps
and pipelines, needed for a water exchange between the Wallowa
River and the Lostine and Bear Creek Valley irrigation system.
LEGISLATIVE HISTORY
S. 231 was introduced on February 1, 2005 by Senator Smith
for himself and Senator Wyden. S. 231 is similar to S. 1355, as
passed by the Senate in the 108th Congress.
During the 108th Congress, S. 1355 was introduced by
Senators Smith and Wyden on June 26, 2003. The Subcommittee on
Water and Power held a hearing on S. 1355 on October15, 2003.
S. Hrg. 108-271. At the business meeting on March 10, 2004, the
Committee on Energy and Natural Resources ordered S. 1355 favorably
reported, with an amendment in the nature of a substitute. S. Rept.
108-250. S. 1355 was passed by the Senate, as amended, by unanimous
consent on September 15, 2004.
During the 107th Congress, a similar measure, S. 1883, was
introduced by Senators Smith and Wyden. The Subcommittee on
Water and Power held a hearing on S. 1883 on June 6, 2002. S.
Hrg. 107-817. The Committee on Energy and Natural Resources
ordered S. 1883 favorably reported on July 31, 2002, with an
amendment. S. Rept. 107-284. S. 1883 passed the Senate as title
III of S. 2556 on November 20, 2002.
At a business meeting on February 9, 2005, the Committee on
Energy and Natural Resources ordered S. 231 favorably reported.
COMMITTEE RECOMMENDATION
The Senate Committee on Energy and Natural Resources, in
open business session on February 9, 2005, by unanimous voice
vote of a quorum present, recommends that the Senate pass S.
231.
SECTION-BY-SECTION ANALYSIS
Section 1 entitles the bill the ``Wallowa Lake Dam
Rehabilitation and Water Management Act of 2005''.
Section 2 defines key terms used in the Act.
Section 3(a) authorizes the Secretary to provide grants or
enter into cooperative or other agreements with tribal, State,
and local governmental entities and the ADC, to plan, design,
and construct facilities needed to implement the Wallowa Lake
Dam Rehabilitation Program and Phases II and III of the Wallowa
Valley Water Management Plan.
The Committee recognizes that this bill, by authorizing the
Bureau of Reclamation to provide grant money for the
rehabilitation of the Wallowa Dam, and for Phase II and Phase
III of the Wallowa Valley Water Management Plan, provides a
unique, cost-effective means of enhancing flood control
protection for downstream communities, and of re-establishing a
fishery for the Nez Perce Tribe.
The Wallowa Basin is aboriginal territory for the Nez
Perce, who are co-managers with the Federal Government of
certain fish resources and support enactment of the bill. S.
231 will help provide water for the recovery of ESA-listed
species in an important sub-basin within the Columbia River
Basin, where actions by the Bureau of Reclamation are covered
by the 2000 Columbia River biological opinion. The Nez Perce
Tribe, as well as numerous State, Federal and local agencies
have collaborated on this successful project since 1992. The
management plan for the Wallowa Valley is consistent with
action plans associated with the Bonneville Power
Administration's Fish and Wildlife Program and the Wallowa
County/Nez Perce Tribe Salmon Habitat Recovery Plan.
Rehabilitation of the dam is necessary to provide for
additional water storage.
With the ability to fill the lake to a higher elevation,
the water rights holders have agreed to make an additional
4,300 acre-feet of water available each year, in accordance
with State water law. This will help the Nez Perce restore
sockeye and coho salmon passage at the dam, and provide for the
downstream water exchange, and it will also aid in resolving
issues related to Federally-listed salmon runs. The Committee
notes that these circumstances are unique and the Committee
does not intend this legislation to set precedent for Federal
assistance to private projects.
Section 3(b)(1) requires the Secretary, as a condition of
providing funds, to ensure that the program meet the standards
of the dam safety program in the State of Oregon.
Section 3(b)(2) requires that as a condition of receiving
funding, ADC must assume liability for work performed or
supervised with funds provided to it under this Act.
Section 3(b)(3) provides a liability waiver for the United
States for damages arising out of any act, omission, or
occurrence, relating to a facility rehabilitated or constructed
under this Act.
Section 3(c) limits the Federal share of the cost of
activities authorized under this Act to 80 percent.
Section 3(c)(2)(A) excludes any expenditures by the
Bonneville Power Administration from being credited against the
Federal cost share.
Section 3(c)(2)(B) excludes any expenditures made by
individual agricultural producers in any Federal commodity or
conservation program from being credited against the Federal
share of the costs.
Section 3(d) requires the Secretary to comply with
applicable State water law.
Section 3(e) prohibits the Federal Government from holding
title to any facility rehabilitated or constructed under this
Act.
Section 3(f) provides that the Federal Government is not
responsible for the operation and maintenance of any facility
constructed or rehabilitated under this Act.
Section 3(g) provides that any facility constructed using
Federal funds for trapping and transporting migratory salmon
may be owned and operated only by the Nez Perce tribe.
Section 4 states that activities funded under this Act
shall not be considered a supplemental or additional benefit
under Federal reclamation law.
Section 5 authorizes $25.6 million in appropriations for
the Federal cost share.
COST AND BUDGETARY CONSIDERATIONS
The following estimate of costs of this measure has been
provided by the Congressional Budget Office.
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 14, 2005.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 231, the Wallowa
Lake Dam Rehabilitation and Water Management Act of 2005.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Julie
Middleton.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
S. 231--Wallowa Lake Dam Rehabilitation and Water Management Act of
2005
Summary: S. 231 would authorize the Bureau of Reclamation
to participate in the rehabilitation of the Wallowa Lake Dam in
Oregon and the implementation of the Wallowa Valley Water
Management Plan. The bill would limit the bureau's share of the
rehabilitation costs to 80 percent. Assuming appropriation of
the necessary amounts, CBO estimates that implementing S. 231
would cost $25 million over the 2006-2010 period. In addition,
we estimate that implementing S. 231 would result in additional
net direct spending by the Bonneville Power Administration
(BPA) of $5 million over the 2006-2010 period. The federal
government would not hold title to any facility rehabilitated
or constructed under this bill, nor would the federal
government be responsible for the operation and maintenance of
those facilities.
S. 231 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 231 is shown in the following table. The
costs of this legislation fall within budget function 300
(natural resources and environment).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2006 2007 2008 2009 2010
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8CHANGES IN SPENDING SUBJECT TO APPPROPRIATION...................
Rehabilitation Spending by the Bureau of Reclamation:
Estimated Authorization Level.................................. 5 7 7 7 0
Estimated Outlays.............................................. 2 4 7 7 5
CHANGES IN DIRECT SPENDING
Net BPA Spending:
Estimated Budget Authority..................................... 5 0 0 0 0
Estimated Outlays.............................................. 2 2 1 (1) (1)
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\1\ Collections of less than $500,000.
Basis of estimate: For this estimate, CBO assumes that S.
231 will be enacted by the end of fiscal year 2005 and that
spending would occur at the same rate as similar bureau and BPA
projects.
Spending subject to appropriation
Based on information from the Bureau of Reclamation, CBO
estimates that the total cost of rehabilitating the Wallowa
Lake Dam in Oregon and implementing the Wallowa Valley Water
Management Plan would be about $32.6 million. S. 231 would
authorize the appropriation of $25.6 million for the bureau's
share of the cost of those projects. The remaining $7 million
would be paid by the BPA and the Bonneville Power Foundation, a
nonprofit organization. Based on information from the bureau,
we expect that rehabilitation of the dam and implementation of
the management plan would take five years and that funds will
be appropriated in roughly equal installments over that period
to complete the projects. Assuming appropriation of the
authorized amount, we estimate that implementing the bill would
cost the bureau $25 million over the 2006-2010 period, and an
additional $1 million after that period.
Direct Spending
Implementing S. 231 also would result in additional direct
spending by BPA of $5 million over the 2006-2010 period for
structures to allow for safe passage of fish through the
Wallowa Lake Dam projects authorized in the bill. Such spending
is authorized under current law, but BPA would not make these
investments without the bureau's involvement in the Wallowa
Lake projects. Because BPA must recover its costs through the
sale of electricity, any additional spending would be offset by
slightly higher proceeds from electricity sales over the next
15 to 20 years. Consequently, BPA's additional spending would
have a negligible net budgetary impact over many years.
Intergovernmental and private-sector impact: S. 231
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Estimate prepared by: Federal Costs: Julie Middleton and
Lisa Cash Driskill. Impact on State, Local, and Tribal
Governments: Marjorie Miller. Impact on the Private Sector:
Selena Caldera.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
REGULATORY IMPACT EVALUATION
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 231.
The bill is not a regulatory measure in the sense of
imposing Government-established standards or significant
economic responsibilities on private individuals and
businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 231.
EXECUTIVE COMMUNICATIONS
The testimony provided by the Department of the Interior at
the Subcommittee hearing on S. 1355 in the 108th Congress,
before the Committee adopted an amendment in the nature of a
substitute, follows:
Statement of John W. Keys III, Commissioner, Bureau of Reclamation,
Department of the Interior
Mr. Chairman and Members of the Subcommittee I am John
Keys, Commissioner of the Bureau of Reclamation. I appreciate
the opportunity to present the Department's views on S. 1355, a
bill that would authorize Reclamation to participate in
implementation of the Wallowa Lake Dam Rehabilitation Program
and Wallowa Valley Water Management Plan in Oregon. Reclamation
believes the Wallowa Lake Dam Rehabilitation Program and
Wallowa Valley Water Management Plan are potentially
worthwhile, with numerous benefits. While we believe there may
be merit to this proposed project, the Department does not
support S. 1355, as currently drafted.
Wallowa Lake Dam is a privately-owned dam constructed in
1918 and raised in 1929, and is owned and operated by the
Associated Ditch Companies, Inc. (ADC). Dam safety deficiencies
have been identified by the United States Army Corps of
Engineers and Oregon Water Resources Department. ADC, in
conjunction with the Grande Ronde Model Watershed, Reclamation,
and other local, state, and Federal agencies, developed the
Wallowa Lake Dam Rehabilitation Program to address dam safety
deficiencies and developed the Wallowa Valley Water Management
Plan to tie correction of those deficiencies to larger
environmental issues in the Wallowa River Basin. The Dam
Rehabilitation Program and Water Management Plan is a six year
proposal with an estimated total cost of $38,800,000. S. 1355
sets out an 80/20 cost share for these efforts, under which the
Federal government would pay $32 million funded through the
Bureau of Reclamation.
While the programs developed by the ACD and the Model
Watershed provide a concept, they do not meet Federal standards
established in the Principals and Guidelines for planning water
development programs. Furthermore, the project may affect
species listed under the Endangered Species Act (ESA). Should
Reclamation be authorized to fund this project, a funding
decision may constitute a major Federal action subject to
consultation under Section 7 of the ESA. It would also require
environmental analysis in compliance with the National
Environmental Policy Act (NEPA). The bill, as currently
drafted, does not provide for Reclamation's participation in
the planning stages of the dam rehabilitation aspects of the
project and separates dam rehabilitation from implementation of
the water management plan. Consequently, it would be difficult
for Reclamation to meet the environmental compliance
requirements for the ESA and NEPA. Until adequate planning can
be completed, the Administration cannot support funding this
project.
The proposed bill would authorize Reclamation to provide
funding to the ADC for dam rehabilitation activities, [nit]
however, it does not provide administrative authority to
transfer those funds. The legislation would need revision to
provide Reclamation authority to issue grants. We would be
pleased to work with the Committee in developing appropriate
language.
Finally, we are concerned that Reclamation's participation
in this program would adversely impact ongoing projects and
operations. S. 1355 would authorize the use of Reclamation
funds for a non-Federal purpose. Reclamation funds are limited
and are targeted to perform essential functions at our
projects, such as security, operations and maintenance (O&M),
resource management, dam safety, and construction. In addition,
despite the very high Federal cost share for the project under
S. 1355, there is no provision for repayment by project
beneficiaries in accordance with Reclamation law. Funding for
this project was not included in the President's budget, and we
cannot support activities which detract from high priority work
on current Bureau of Reclamation facilities. The Department
cannot, therefore, support S. 1355.
Thank you again for the opportunity to provide the
Administration's position on S. 1355. I would be happy to
answer any questions you might have.
CHANGES IN EXISTING LAW
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee notes that no
changes in existing law are made by the bill S. 231 as ordered
reported.