[Senate Report 110-23]
[From the U.S. Government Publishing Office]
Calendar No. 49
110th Congress Report
SENATE
1st Session 110-23
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WALLOWA LAKE DAM REHABILITATION AND WATER MANAGEMENT ACT OF 2007
_______
February 16, 2007.--Ordered to be printed
_______
Mr. Bingaman, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 264]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 264) 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 with an amendment and
recommends that the bill, as amended, do pass.
Strike out all after the enacting clause and insert inlieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Wallowa Lake Dam Rehabilitation and
Water Management Act of 2007''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Associated ditch companies, incorporated.--The term
``Associated Ditch Companies, Incorporated'' means the
nonprofit corporation established under the laws of the State
of Oregon that operates Wallowa Lake Dam.
(2) Secretary.--The term ``Secretary'' means the Secretary of
the Interior, acting through the Commissioner of Reclamation.
(3) Wallowa lake dam rehabilitation program.--The term
``Wallowa Lake Dam Rehabilitation Program'' means the program
for the rehabilitation of the Wallowa Lake Dam in Oregon, as
contained in the engineering document entitled, ``Phase I Dam
Assessment and Preliminary Engineering Design'', dated December
2002, and on file with the Bureau of Reclamation.
SEC. 3. AUTHORIZATION TO PARTICIPATE IN PROGRAM.
(a) Grants and Cooperative Agreements.--The Secretary may provide
grants to, or enter into cooperative or other agreements with, tribal,
State, and local governmental entities and the Associated Ditch
Companies, Incorporated, to plan, design, and construct facilities
needed to implement the Wallowa Lake Dam Rehabilitation Program.
(b) Conditions.--As a condition of providing funds under subsection
(a), the Secretary shall ensure that--
(1) the Wallowa Lake Dam Rehabilitation Program and any
activities under this Act meet the standards of the dam safety
program of the State of Oregon;
(2) the Associated Ditch Companies, Incorporated, agrees to
assume liability for any work performed, or supervised, with
Federal funds provided to Associated Ditch Companies,
Incorporated, under this Act; and
(3) the United States shall not be liable for damages of any
kind arising out of any act, omission, or occurrence relating
to a facility rehabilitated or constructed with Federal funds
provided under this Act, regardless of whether the damages
arose during or after the rehabilitation or construction.
(c) Cost Sharing.--
(1) In general.--The Federal share of the costs of activities
authorized under this Act shall not exceed 50 percent.
(2) Exclusions from federal share.--There shall not be
credited against the Federal share of the costs of activities
authorized under this Act--
(A) any expenditure by the Bonneville Power
Administration in the Wallowa River watershed; and
(B) expenditures made by individual agricultural
producers in any Federal commodity or conservation
program.
(d) Compliance With State Law.--In carrying out this Act, the
Secretary shall comply with applicable Oregon State water law.
(e) Prohibition on Holding Title.--The Federal Government shall not
hold title to any facility rehabilitated or constructed under this Act.
(f) Prohibition on Operation and Maintenance.--The Federal Government
shall not be responsible for the operation and maintenance of any
facility constructed or rehabilitated under this Act.
SEC. 4. RELATIONSHIP TO OTHER LAW.
Activities funded under this Act shall not be considered a
supplemental or additional benefit under Federal reclamation law (the
Act of June 17, 1902 (32 Stat. 388, chapter 1093), and Acts
supplemental to and amendatory of that Act (43 U.S.C. 371 et seq.)).
SEC. 5. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated to the Secretary to pay the
Federal share of the costs of activities authorized under this Act
$6,000,000.
SEC. 6. TERMINATION OF AUTHORITY.
The authority of the Secretary to carry out any provisions of this
Act shall terminate 10 years after the date of enactment of this Act.
PURPOSE
The purpose of S. 264 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. 264 authorizes the Secretary of the Interior, acting
through the Commissioner of Reclamation, to participate in the
Wallowa Lake Dam Rehabilitation Program in cooperation with
ADC. 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.
LEGISLATIVE HISTORY
S. 264 was introduced on January 11, 2007 by Senator Smith
for himself and Senator Wyden and referred to the Committee on
Energy and Natural Resources. At its business meeting on
January 31, 2007, the Committee on Energy and Natural Resources
ordered S. 264 favorably reported with an amendment in the
nature of a substitute.
During the 109th Congress, the Committee considered similar
legislation, S. 231, introduced by Senator Smith on February 1,
2005. Senator Wyden was a co-sponsor. At the business meeting
on February 9, 2005, the Committee ordered S. 231 favorably
reported. S. Rept. 109-30. S. 231 passed the Senate, by
unanimous consent, on July 26, 2005. No further action occurred
on S. 231 prior to the sine die adjournment of the 109th
Congress. A measure similar to the amended version of S. 264,
section 3 of H.R. 5079, was considered by the House of
Representatives under suspension of the rules and passed by a
voice vote on September 25, 2006.
The Committee also considered similar legislation in the
108th Congress, S. 1355, introduced by Senator Smith on June
26, 2003. Senator Wyden was a co-sponsor. The Subcommittee on
Water and Power held a hearing on S. 1355 on October 15, 2003.
S. Hrg. 108-271. The Committee ordered the bill favorably
reported with amendments on March 10, 2004. S. Rept. 108-250.
S. 1355 passed by the Senate, by unanimous consent, on
September 15, 2004.
COMMITTEE RECOMMENDATION
The Senate Committee on Energy and Natural Resources, in
open business session on January 31, 2007, by voice vote of a
quorum present, recommends that the Senate pass S. 264, if
amended as described herein.
COMMITTEE AMENDMENT
During the consideration of S. 264, the Committee adopted
an amendment in the nature of a substitute. The amendment
addresses concerns that were raised by the Administration in
previous testimony and conforms the text of the bill to the
text of section 3 of H.R. 5079 which passed the House of
Representatives during the 109th Congress. The amendment is
explained in detail in the section-by-section analysis, below.
SECTION-BY-SECTION ANALYSIS
Section 1 provides the short title.
Section 2 defines key terms used in the bill.
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.
The Committee recognizes that this bill, by authorizing the
Bureau of Reclamation to provide grant money for the
rehabilitation of the Wallowa provides a unique, cost-effective
means of enhancing flood control protection for downstream
communities, and assisting with re-establishing a fishery for
the Nez Perce Tribe. Rehabilitation of the dam will also
provide for additional water storage.
With the ability to fill the lake to a higher elevation,
the water rights holders, pursuant to a Wallowa Valley Water
Management Plan 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 Tribe, which shares
management responsibility with the Federal Government of
certain fish resources, restore sockeye and coho salmon passage
at the dam, and provide for a downstream water exchange. 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) requires the Secretary, as a condition of
providing funds, to ensure that (1) the program meet the
standards of the dam safety program in the State of Oregon; (2)
ADC assumes liability for work performed or supervised with
funds provided to it under this Act; and (3) the United States
shall not be liable 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 in this Act to 50 percent; and excludes
certain expenditures from being credited against the Federal
cost share.
Section 3(d) requires the Secretary to comply with Oregon
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 4 states that activities funded under this Act
shall not be considered a supplemental or additional benefit
under Federal reclamation law.
Section 5 authorizes $6 million in appropriations for the
Federal cost share.
Section 6 sunsets the authority provided by the Act after
10 years.
COST AND BUDGETARY CONSIDERATIONS
The following estimate of costs of this measure has been
provided by the Congressional Budget Office:
S. 264--Wallowa Lake Dam Rehabilitation and Water Management Act of
2007
Summary: S. 264 would authorize the appropriation of $6
million for the Bureau of Reclamation's contribution to the
rehabilitation of the Wallowa Lake Dam. Implementing S. 264
would cost $6 million over the 2008-2012 period. Enacting the
legislation would not affect direct spending or revenues.
S. 264 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: For this
estimate, CBO assumes that this bill will be enacted near the
end of 2007, that $2 million will be provided each year over
the 2008-2010 period, and that outlays will follow the
historical spending pattern for similar activities.
Appropriation of the authorized amount would result in
discretionary spending of $6 million over the 2008-2011 period.
The estimated budgetary impact of S. 264 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--
---------------------------------------
2008 2009 2010 2011 2012
------------------------------------------------------------------------
CHANGES TO SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level... 2 2 2 0 0
Estimated Outlays............... 1 2 2 1 0
------------------------------------------------------------------------
Intergovernmental and private-sector impact: S. 264
contains no intergovernmental or private-sector mandates as
defined in the UMRA and would impose no costs on state, local,
or tribal governments.
Estimate prepared by: Federal Costs: Julie Middleton;
Impact on State, Local, and Tribal Governments: Lisa Ramirez-
Branum; Impact on the Private Sector: Craig Cammarata.
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. 264. 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. 264.
EXECUTIVE COMMUNICATIONS
Because S. 264 is similar to legislation considered during
the 109th and 108th Congresses, the Committee did not request
Executive Agency views. The testimony provided by the Bureau of
Reclamation at the Subcommittee hearing on S. 1355 in the 108th
Congress 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
can not 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. 264 as ordered
reported.