October 1, 2020 - Issue: Vol. 166, No. 171 — Daily Edition116th Congress (2019 - 2020) - 2nd Session
All in House sectionPrev57 of 125Next
MAKING CERTAIN TECHNICAL CORRECTIONS TO KLAMATH BASIN WATER SUPPLY ENHANCEMENT ACT OF 2000; Congressional Record Vol. 166, No. 171
(House of Representatives - October 01, 2020)
Text available as:
Formatting necessary for an accurate reading of this text may be shown by tags (e.g., <DELETED> or <BOLD>) or may be missing from this TXT display. For complete and accurate display of this text, see the PDF.
[Pages H5180-H5183] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov] MAKING CERTAIN TECHNICAL CORRECTIONS TO KLAMATH BASIN WATER SUPPLY ENHANCEMENT ACT OF 2000 Mrs. DINGELL. Mr. Speaker, I move to suspend the rules and pass the bill (S. 3758) to amend the Klamath Basin Water Supply Enhancement Act of 2000 to make certain technical corrections. The Clerk read the title of the bill. The text of the bill is as follows: S. 3758 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. KLAMATH BASIN WATER SUPPLY ENHANCEMENT ACT OF 2000 TECHNICAL CORRECTIONS. Section 4(b) of the Klamath Basin Water Supply Enhancement Act of 2000 (114 Stat. 2222; 132 Stat. 3887) is amended-- (1) in paragraph (1)-- (A) in the matter preceding subparagraph (A)-- (i) by striking ``Pursuant to the reclamation laws and subject'' and inserting ``Subject''; and (ii) by striking ``may'' and inserting ``is authorized to''; and (B) in subparagraph (A), by inserting ``, including conservation and efficiency measures, land idling, and use of groundwater,'' after ``administer programs''; (2) in paragraph (3)(A), by inserting ``and'' after the semicolon at the end; (3) by redesignating the second paragraph (4) (relating to the effect of the subsection) as paragraph (5); and (4) in paragraph (5) (as so redesignated)-- (A) by striking subparagraph (B); (B) in subparagraph (A), by striking ``; or'' and inserting a period; and (C) by striking ``the Secretary--'' and all that follows through ``to develop'' in subparagraph (A) and inserting ``the Secretary to develop''. SEC. 2. CONTINUED USE OF PICK-SLOAN MISSOURI BASIN PROGRAM PROJECT USE POWER BY THE KINSEY IRRIGATION COMPANY AND THE SIDNEY WATER USERS IRRIGATION DISTRICT. (a) Authorization.--Notwithstanding any other provision of law and subject to subsection (b), the Secretary of the Interior (acting through the Commissioner of Reclamation) shall continue to treat the irrigation pumping units known as the ``Kinsey Irrigation Company'' in Custer County, Montana and the ``Sidney Water Users Irrigation District'' in Richland County, Montana, or any successor to the Kinsey Irrigation Company or Sidney Water Users Irrigation District, as irrigation pumping units of the Pick-Sloan Missouri Basin Program for the purposes of wheeling, administration, and payment of project use power, including the applicability of provisions relating to the treatment of costs beyond the ability to pay under section 9 of the Act of December 22, 1944 (commonly known as the ``Flood Control Act of 1944'') (58 Stat. 891, chapter 665). (b) Limitation.--The quantity of power to be provided to the Kinsey Irrigation Company and the Sidney Water Users Irrigation District (including any successor to the Kinsey Irrigation Company or the Sidney Water Users Irrigation District) under subsection (a) may not exceed the maximum quantity of power provided to the Kinsey Irrigation Company and the Sidney Water Users Irrigation District under the applicable contract for electric service in effect on the date of enactment of this Act. The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from Michigan (Mrs. Dingell) and the gentleman from Virginia (Mr. Wittman) each will control 20 minutes. The Chair recognizes the gentlewoman from Michigan. General Leave Mrs. DINGELL. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days in which to revise and extend their remarks and include extraneous material on the measure under consideration. The SPEAKER pro tempore. Is there objection to the request of the gentlewoman from Michigan? There was no objection. Mrs. DINGELL. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise in support of S. 3758, which addresses two issues regarding Bureau of Reclamation water and power management. First, the bill amends Klamath Basin Water Supply Enhancement Act of 2000 to support water conservation and efficiency measures in the Klamath Basin. This bill provides additional authorization for Reclamation to work with Klamath Basin irrigators on activities that align water supplies and demand. Further, this legislation would extend the use of drought relief funding to certain conservation measures, land idling, and groundwater uses. Second, the bill also carries provisions to make two irrigation districts in eastern Montana eligible to continue to receive project use power rates from the Bureau of Reclamation. Mr. Speaker, I appreciate the efforts from Senators Merkley and Wyden to advance this bill, and I urge my colleagues to support its adoption. Mr. Speaker, I reserve the balance of my time. Mr. WITTMAN. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise in reluctant support of S. 3758. While this bill makes important technical corrections that will provide relief to the Klamath Basin irrigators which have been hard hit by drought, it also includes a provision that perpetuates a 75-year mistake. In 1946, the Bureau of Reclamation entered into contracts with two irrigation entities in Montana to provide project use power, better known as PUP. Normally, these subsidized power rates are reserved for Federal projects. However, for reasons lost to history, these two entities-- which are not part of any Federal project, and in fact, one is a private company--have been able to obtain and renew their project use power or PUP contracts. [[Page H5181]] Recently, the Bureau of Reclamation realized it lacked the authority to provide these two entities PUP rates and has decided to let these contracts expire December 31, 2020. It is extremely concerning that it took the Bureau of Reclamation 75 years to realize it made a mistake, which makes this situation quite unique. This unfortunate mistake by bureaucrats left more than 130 family farms in limbo, uncertain if they will be able to afford to maintain their farmland after January 1, 2021. While we are not opposing this fix today, the committee wants to be clear that this is a one-off, unique situation. We do not see this as a pathway or precedent for other irrigation districts to follow. Mr. Speaker, I include in the Record two legal opinions from the Department of the Interior, Office of the Solicitor, which indicate that the department did not have the legal authority to enter into PUP contracts with the two Pick-Sloan Missouri Basin Program entities because there is no Federal nexus. U.S. Department of the Interior, Office of the Solicitor, Billings, MT, March 10, 2014. Memorandum To: Michael J. Ryan, Regional Director, Bureau of Reclamation, Great Plains Region, Billings, Attn: GP-4100 (Fern Thompson) From: Karan L. Dunnigan, Field Solicitor, Office of the Solicitor, Rocky Mountain Region (Billings) Subject: Authority to Enter Into a Pick-Sloan Missouri Basin Program (P-SMBP) Project Use Power (PUP) Contract with Kinsey Irrigation Company (Company) I. Question In an October 31, 2013 memorandum, you asked: (1) whether the Bureau of Reclamation (Reclamation) had or has the authority to enter into a PUP contract with the Company; (2) if not, whether Reclamation should continue to honor its current contract with the Company until the contract expires; and (3) if so, if Reclamation should approve the Company's request for an increased contract rate of delivery. II. Brief Answer Reclamation does not and did not have the authority to enter into a PUP contract with the Company, because the United States has had no interest in the unit and there has been no federal nexus with the unit since the title transfer of the Kinsey facilities in the 1940's. Because Reclamation has no authority to provide PUP to the Company, Reclamation should seek to terminate the provision of PUP to Kinsey as soon as is practical. And any increased deliveries to the Company should not be at a PUP rate. III. Background The Farm Security Administration constructed the Kinsey project in 1937. The project was referenced in Senate Document 191, 78th Congress, 2nd Session, 1944, and thus appears to have been contemplated to be (and indeed was briefly) a P-SMBP unit. However, in 1945 the Company purchased the federally-owned Kinsey project facilities from the United States, rendering the Kinsey project entirely private. The Kinsey project has no other federal nexus. In 1946, Reclamation entered into a power contract with the Company, providing power at the PUP rate of 2.5 mills per kilowatt-hour. Reclamation's regional office raised concerns about providing PUP power to a private district on several occasions, but for reasons lost to history, the Commissioner of Reclamation's office instructed the region to continue providing PUP power to the district, and at the original 2.5 mill rate. The contract has been renewed and extended over the years, and currently terminates on December 31, 2020. The Kinsey project does appear in the 1963 ``Report on Financial Position, Missouri River Basin Project'' (1963 Report) as a project entitled to PUP. IV. Analysis Pursuant to Reclamation Law and Policy, PUP is available only where it has been specifically authorized by Congress and, unless Congress specifically provides otherwise, only to Reclamation projects. Here, while the Kinsey project was initially a federal project, and briefly an authorized unit of the P-SMBP, title transfer to the Company divested the Kinsey project of its status as an authorized P-SMPB unit and rendered it entirely private. Accordingly, the Company is not entitled to PUP. A. Project Pumping Power Authority to produce and supply PUP is implied in the Town Sites and Power Development Act of 1906 (Act of April 16, 1906, ch. 1631, 34 Stat. 116). PUP is further contemplated under the Reclamation Project Act of 1939, at section 9(c), which provides that: Any sale of electric power . . . made by the Secretary in connection with the operation of any project or division of a project, shall be for such periods, not to exceed forty years, and at such rates as in his judgment will produce power revenues at least sufficient to cover an appropriate share of the construction investment at not less than 3 per center per annum . . . Thus, under the 1939 Act, PUP must also be ``in connection with the operation of any project or division of a project.'' And under further Reclamation law and policy, PUP is only available to Reclamation projects for which PUP was explicitly authorized. The Reclamation Act of 1902 provides that ``the title to and the management and operation of the reservoirs and the works necessary for their protection and operation shall remain in the Government until otherwise provided by Congress.'' Sec. 6. So, without further authorization from Congress, Reclamation projects must be owned by the United States. The Reclamation Manual at FAC 04-06 provides that ``[p]roject use power is used to meet the electrical service requirements of a Reclamation project pursuant to congressional authorization.'' Further, the Reclamation Manual defines Reclamation Project as ``those facilities or features of a project constructed/developed/or transferred to Reclamation under the authority of Federal Reclamation law (or the Water Conservation and Utilization Act) for which ownership is retained by the United States, unless otherwise authorized by Congress.'' As with the 1902 and 1939 Acts, under the Reclamation Manual project use power can only be provided to project facilities owned by the United States unless Congress authorizes otherwise. The Flood Control Act of 1944 authorized the P-SMBP. Subsection (a) of Section 9 of that Act approved the general comprehensive plans set forth in H.D. 475 and S.D. 191, 78th Congress 2nd Session. S.D. 191, at page 22, provides: In the plan proposed, irrigation pumping with its incidental power requirements plays a large part. The cost of such power will be an important element in the irrigators' annual expenses, and must be low if success is to be achieved. Experience and study indicate that the cost per kilowatt-hour should not exceed 2\1/2\ mills for energy delivered to major project pumping plants. (The current PUP rate is of course much higher than the rate contemplated in 1944, but still a fraction of the market rate.) The Kinsey project was a federal irrigation project, transferred to Reclamation as a part of the Flood Control Act of 1944. Therefore, the Kinsey project was briefly a P-SMPB unit. However, the Kinsey project ceased to be a Reclamation project when the Company bought it two years later. Without specific Congressional authority, facilities transferred by title transfer are no longer able to receive PUP because they are no longer federal projects. B. The 1963 Report Although the 1963 Report indicates in its exhibits that the Kinsey project receives PUP, we interpret this inclusion as an oversight resulting from to the fact that the Kinsey project was initially a P-SMBP unit and had continued to receive PUP. Congress adopted the ``1963 Report'' by passing .the 1965 Garrison Diversion Unit legislation: In addition to reauthorizing the initial stage of the Garrison diversion unit, the approval of this legislation will indicate acceptance by the Congress of the Department's recommendations with respect to the overall financial position of the Missouri River Basin project. About 3 years ago, the committee requested the Department of the Interior to study ways and means of placing the Missouri River Basin project in a sound financial position and to report its findings and recommendations to the Congress. A ``sound financial position'' was interpreted to mean that commercial power and municipal and industrial water investments would be repaid with interest in not to exceed 50 years and that irrigation investments would be repaid within 50 years plus any authorized development period, including that portion to be repaid from power revenues. H.R. Rept. No. 282, 89th Cong., 1st Sess. 8 (1965). Identical language appeared in the 1964 report, H.R. Rept. No. 1606, 88th Cong., 2d Sess. 8 (1964), and the Senate committee report contained a similar acknowledgement, S. Rept. No. 470 (on S. 34). 89th Cong, 1st Sess. 4 (1965). Thus, as with our recent memorandum on PUP at Frenchman- Cambridge Unit, we interpret the presence or absence of a unit in the 1963 Report as evidence of Congress's intent for that unit. But even where the Kinsey project's inclusion in the report is contrary evidence, it is not sufficient to indicate clear Congressional intent to provide PUP to a project that is otherwise completely private and without a federal nexus . C. The Current Contract with the Company The provision of power to the Company at a PUP rate has never been authorized, so Reclamation should seek to raise the rate or terminate the current contract as soon as it is practical. The contract contains a ``Modification of Rates'' provision allowing for the United States to promulgate a new rate schedule for the contract (General Power Contract Provisions, para. F). The provision sets forth the procedure by which the United States gives notice to the Company of a new rate schedule, and the Company has the option to terminate its contract instead of accepting the new rate. V. Conclusion Without clear Congressional intent to the contrary, privately owned facilities are not eligible to receive PUP. The Kinsey project was transferred to the Company in 1946, and has been private for 68 years. The project has [[Page H5182]] no other federal nexus. Reclamation has no authority to provide power to the Company at PUP rates. Reclamation should stop doing so as soon as it is practical. If you have any questions, please contact Bryan Wilson in this office. ____ U.S. Department of the Interior, Office of the Solicitor, Billings, Montana, November 30, 2017. Memorandum To: Michael J. Ryan, Regional Director, Bureau of Reclamation Great Plains Region, Billings, Attn: GP-4100 (Margaret Ventling) From: Karen L. Dunnigan, Field Solicitor, Office of the Solicitor, Rocky Mountain Region (Billings) Subject: Authority to Enter Into a Pick-Sloan Missouri Basin Program (P-SMBP) Project Use Power (PUP) Contract with Sidney Water Users Irrigation District (Sidney) I. Question In a November 9, 2017 memorandum, you asked if the Bureau of Reclamation (Reclamation) is authorized to enter into a PUP contract with Sidney. II. Brief Answer Reclamation does not have and never had the authority to enter into a PUP contract with Sidney, because the United States never had an interest in Sidney's project, there is no federal nexuswith Sidney, and no other authority exists to allow Reclamation to provide PUP to Sidney. This situation is similar to that of Kinsey Irrigation Company, addressed in our memorandum dated March 10, 2014, except that Kinsey was originally a Reclamation project. III. Background The Sidney project was constructed by the State of Montana in 1938. Reclamation entered into Contract No. L79R-449 with Sidney's predecessor-in-interest, the Montana State Water Conservation Board, on July 31, 1946, for seasonal irrigation pumping power. Contract No. L79R-449 terminated and was replaced by Contract 14-06-600-9164 on May 15, 1967. The latter contract was supplemented and extended, and ultimately was to expire on December 31, 2000. The State assigned the contract to Sidney on June 30, 1997, and the Western Area Power Administration extended the contract until December 31, 2020. IV. Analysis Pursuant to Reclamation Law and Policy, PUP is available only where it has been specifically authorized by Congress and, unless Congress specifically provides otherwise, only to Reclamation projects. While the Kinsey project referenced above was initially a federal project, the Sidney project has never been federal or had a federal nexus. Accordingly, Sidney is not and never was entitled to PUP. Authority to produce and supply PUP is implied in the Town Sites and Power Development Act of 1906 (Act of April 16, 1906, ch. 1631, 34 Stat. 116). PUP is further contemplated under the Reclamation Project Act of 1939, at section 9(c), which provides that: Any sale of electric power . . . made by the Secretary in connection with the operation of any project or division of a project, shall be for such periods, not to exceed forty years, and at such rates as in his judgment will produce power revenues at least sufficient to cover an appropriate share of the construction investment at not less than 3 per center per annum . . . Thus, under the 1939 Act, PUP must also be ``in connection with the operation of any project or division of a project.'' And under further Reclamation law and policy, PUP is only available to Reclamation projects for which PUP was explicitly authorized. The Reclamation Act of 1902 provides that ``the title to and the management and operation of the reservoirs and the works necessary for their protection and operation shall remain in the Government until otherwise provided by Congress.'' Sec. 6. So, without further authorization from Congress, Reclamation projects must be owned by the United States. The Reclamation Manual at FAC 04-06 provides that PUP ``is used to meet the electrical service requirements of a Reclamation project pursuant to congressional authorization.'' Further, the Reclamation Manual defines a Reclamation project as ``those facilities or features of a project constructed/developed/or transferred to Reclamation under the authority of Federal Reclamation law (or the Water Conservation and Utilization Act) for which ownership is retained by the United States, unless otherwise authorized by Congress.'' As with the 1902 and 1939 Acts, under the Reclamation Manual PUP can only be provided to project facilities owned by the United States unless Congress authorizes otherwise. The Flood Control Act of 1944 authorized the P-SMBP. Subsection (a) of Section 9 of that Act approved the general comprehensive plans set forth in H.D. 475 and S.D. 191, 78th Congress 2nd Session. S.D. 191, at page 22, provides: In the plan proposed, irrigation pumping with its incidental power requirements plays a large part. The cost of such power will be an important element in the irrigators' annual expenses, and must be low if success is to be achieved. Experience and study indicate that the cost per kilowatt-hour should not exceed 2\1/2\ mills for energy delivered to major project pumping plants. (The current PUP rate is of course much higher than the rate contemplated in 1944, but still a fraction of the market rate.) Sidney was always a state project. and it is unclear why it was ever provided PUP. Without specific Congressional authority, non-federal projects are not eligible to receive PUP. V. Conclusion Without clear Congressional intent to the contrary, non- federal facilities are not eligible to receive PUP. Sidney is not and has never been federal, and has no federal nexus. Reclamation has no authority to provide power to Sidney at PUP rates. If you have any questions, please contact Bryan Wilson in this office. Mr. WITTMAN. Mr. Speaker, I yield 2 minutes to the gentleman from Oregon (Mr. Walden). Mr. WALDEN. Mr. Speaker, I thank my colleagues for bringing this legislation forward, and especially Chairman Grijalva and Ranking Member Bishop. I also thank Oregon senators, Merkley and Wyden, for their efforts on this, too. Irrigators in the Klamath Basin, which I represent, face another drought-stricken year. There have been a lot of things we have done to help them over time. I have been involved in these issues for more than 20 years now, and it is one of the most vexing water systems in the country when you try and parse it all together and make it all work, and couple that with Federal requirements and Tribal rights, and then get a drought year, we get in really bad shape. This year, I welcomed Secretary of Interior David Bernhardt and Bureau of Reclamation Commissioner Brenda Burman to the Klamath Basin. They got a firsthand look at what our farmers were facing there. Secretary Bernhardt was the first Secretary of the Interior to visit the Klamath Basin in about 20 years, so we are really appreciative that he took time personally to come out there. We are thankful to the Trump administration for listening to us. They have committed to provide funding to ensure we have the best science available to make better decisions by the Federal Government when it comes to the allocation of water. Today, in this legislation, we are providing yet another tool to help farmers. This legislation will give the Bureau of Reclamation the authority to spend $10 million each year over the next 4 years to implement measures including groundwater pumping and water movement through the Bureau of Reclamation facilities. This is simply essential for the survival of irrigated agriculture in the Basin. Mr. Speaker, I look forward to continuing to work with Congress, the administration, and local officials to find durable, lasting solutions for the farmers, ranchers, fish, and Tribes in the Klamath Basin. Mr. Speaker, I thank my colleagues for bringing this bill forward, and urge its passage. Mrs. DINGELL. Mr. Speaker, I have no further requests for time, and I reserve the balance of my time. Mr. WITTMAN. Mr. Speaker, I am prepared to close, and I yield myself such time as I may consume. Mr. Speaker, I commend Congressman Greg Walden for his sponsorship of the House companion bill, H.R. 7116, that makes the needed noncontroversial technical corrections to the Klamath Basin Water Supply Act so that all the benefits can be accessed. Congressman Gianforte is also supporting his constituents as the House sponsor of H.R. 3471, which mirrors Montana's provisions that are contained within S. 3758. Again, I thank all my colleagues on both sides of the aisle who worked hard to resolve this issue so that folks in these regions can have certainty about the water that they so desperately need. Mr. Speaker, I yield back the balance of my time. Mrs. DINGELL. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I, too, commend my colleague, Mr. Walden, for his leadership and trying to bring this together with Mr. Gianforte and finding an answer. I am going to miss my friend deeply so he better stay engaged to make sure we do this right. I thank Mr. Wittman for working with him this afternoon on the passage of this and several other critical bills. And all the leadership of the Committee on Natural Resources. And, again, what happens when Republicans and Democrats work together, we can really get things done. [[Page H5183]] Mr. Speaker, this legislation will help address water conservation and the power challenges in the Klamath Basin. Mr. Speaker, I urge my colleagues to support this legislation, and I yield back the balance of my time. {time} 1545 The SPEAKER pro tempore. The question is on the motion offered by the gentlewoman from Michigan (Mrs. Dingell) that the House suspend the rules and pass the bill, S. 3758. The question was taken; and (two-thirds being in the affirmative) the rules were suspended and the bill was passed. A motion to reconsider was laid on the table. ____________________
All in House sectionPrev57 of 125Next