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Calendar No. 242
106th Congress Report
1st Session 106-130
THE LEWIS AND CLARK RURAL WATER SYSTEM ACT OF 1999
July 30, 1999.--Ordered to be printed
Mr. Murkowski, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 244]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 244) to authorize the construction of the
Lewis and Clark Rural Water System and to authorize assistance
to the Lewis and Clark Rural Water System, Inc., a nonprofit
corporation, for the planning and construction of the water
system, and for other purposes, having considered the same,
reports favorably thereon with an amendment and recommends that
the bill, as amended, do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
therefor the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Lewis and Clark Rural Water System Act
SEC. 2. DEFINITIONS.
In this Act:
(1) Environmental enhancement.--The term ``environmental
enhancement'' means the wetland and wildlife enhancement
activities that are carried out substantially in accordance
with the environmental enhancement component of the feasibility
(2) Environmental enhancement component.--The term
``environmental enhancement component'' means the proposals
described in the report entitled ``Wetlands and Wildlife
Enhancement for the Lewis and Clark Rural Water System'', dated
(3) Feasibility study.--The term ``feasibility study'' means
the study entitled ``Feasibility Level Evaluation of a Missouri
River Regional Water Supply for South Dakota, Iowa and
Minnesota'', dated September 1993, that includes a water
conservation plan, environmental report, and environmental
(4) Incremental cost.--The term ``incremental cost'' means
the cost of the savings to the project were the city of Sioux
Falls not to participate in the water supply system.
(5) Member entity.--The term ``member entity'' means a rural
water system or municipality that meets the requirements for
membership as defined by the Lewis and Clark Rural Water
System, Inc. bylaws, dated September 6, 1990.
(6) Project construction budget.--The term ``project
construction budget'' means the description of the total amount
of funds needed for the construction of the water supply
project, as contained in the feasibility study.
(7) Pumping and incidental operational requirements.--The
term ``pumping and incidental operational requirements'' means
all power requirements that are necessary for the operation of
intake facilities, pumping stations, water treatment
facilities, reservoirs, and pipelines up to the point of
delivery of water by the water supply system to each member
entity that distributes water at retail to individual users.
(8) Secretary.--The term ``Secretary'' means the Secretary of
(9) Water supply project.--
(A) In general.--The term ``water supply project''
means the physical components of the Lewis and Clark
Rural Water Project.
(B) Inclusions.--The term ``water supply project''
(i) necessary pumping, treatment, and
(iii) appurtenant buildings and property
(iv) electrical power transmission and
distribution facilities necessary for services
to water systems facilities; and
(v) such other pipelines, pumping plants, and
facilities as the Secretary considers necessary
and appropriate to meet the water supply,
economic, public health, and environment needs
of the member entities (including water storage
tanks, water lines, and other facilities for
the member entities).
(10) Water supply system.--The term ``water supply system''
means the Lewis and Clark Rural Water System, Inc., a nonprofit
corporation established and operated substantially in
accordance with the feasibility study.
SEC. 3. FEDERAL ASSISTANCE FOR THE WATER SUPPLY SYSTEM.
(a) In General.--The Secretary shall make grants to the water supply
system for the planning and construction of the water supply project.
(b) Service Area.--The water supply system shall provide for the
member entities safe and adequate municipal, rural, and industrial
water supplies, environmental enhancement, mitigation of wetland areas,
and water conservation in--
(1) Lake County, McCook County, Minnehaha County, Turner
County, Lincoln County, Clay County, and Union County, in
southeastern South Dakota;
(2) Rock County and Nobles County, in southwestern Minnesota;
(3) Lyon County, Sioux County, Osceola County, O'Brien
County, Dickinson County, and Clay County, in northwestern
(c) Amount of Grants.--Grants made available under subsection (a) to
the water supply system shall not exceed the amount of funds authorized
under section 9.
(d) Limitation on Availability of Construction Funds.--The Secretary
shall not obligate funds for the construction of the water supply
(1) the requirements of the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.) are met; and
(2) a final engineering report and a plan for a water
conservation program are prepared and submitted to Congress not
less than 90 days before the commencement of construction of
the water supply project.
SEC. 4. FEDERAL ASSISTANCE FOR THE ENVIRONMENTAL ENHANCEMENT COMPONENT.
(a) Initial Development.--The Secretary shall make grants and other
funds available to the water supply system and other private, State,
and Federal entities, for the initial development of the environmental
(b) Nonreimbursement.--Funds provided under subsection (a) shall be
nonreimbursable and nonreturnable.
SEC. 5. MITIGATION OF FISH AND WILDLIFE LOSSES.
Mitigation for fish and wildlife losses incurred as a result of the
construction and operation of the water supply project shall be on an
acre-for-acre basis, based on ecological equivalency, concurrent with
project construction, as provided in the feasibility study.
SEC. 6. USE OF PICK-SLOAN POWER.
(a) In General.--From power designated for future irrigation and
drainage pumping for the Pick-Sloan Missouri River Basin Program, the
Western Area Power Administration shall make available the capacity and
energy required to meet the pumping and incidental operational
requirements of the water supply project during the period beginning
May 1 and ending October 31 of each year.
(b) Conditions.--The capacity and energy described in subsection (a)
shall be made available on the following conditions:
(1) The water supply system shall be operated on a not-for-
(2) The water supply system shall contract to purchase the
entire electric service requirements of the project, including
the capacity and energy made available under subsection (a),
from a qualified preference power supplier that itself
purchases power from the Western Area Power Administration.
(3) The rate schedule applicable to the capacity and energy
made available under subsection (a) shall be the firm power
rate schedule of the Pick-Sloan Eastern Division of the Western
Area Power Administration in effect when the power is delivered
by the Administration to the qualified preference power
(4) It is agreed by contract among--
(A) the Western Area Power Administration;
(B) the power supplier with which the water supply
system contracts under paragraph (2);
(C) the power supplier of the entity described in
subparagraph (B); and
(D) the water supply system;
that in the case of the capacity and energy made available
under subsection (a), the benefit of the rate schedule
described in paragraph (3) shall be passed through to the water
supply system, except that the power supplier of the water
supply system shall not be precluded from including, in the
charges of the supplier to the water system for the electric
service, the other usual and customary charges of the supplier.
SEC. 7. NO LIMITATION ON WATER PROJECTS IN STATES.
This Act does not limit the authorization for water projects in the
States of South Dakota, Iowa, and Minnesota under law in effect on or
after the date of enactment of this Act.
SEC. 8. WATER RIGHTS.
Nothing in this Act--
(1) invalidates or preempts State water law or an interstate
compact governing water;
(2) alters the rights of any State to any appropriated share
of the waters of any body of surface or ground water, whether
determined by past or future interstate compacts or by past or
future legislative or final judicial allocations;
(3) preempts or modifies any Federal or State law, or
interstate compact, governing water quality or disposal; or
(4) confers on any non-Federal entity the ability to exercise
any Federal right to the waters of any stream or to any ground
SEC. 9. COST SHARING.
(a) Federal Cost Share.--
(1) In general.--Except as provided in paragraph (2), the
Secretary shall provide funds equal to 80 percent of--
(A) the amount allocated in the total project
construction budget for planning and construction of
the water supply project under section 3; and
(B) such amounts as are necessary to defray increases
in development costs reflected in appropriate
engineering cost indices after September 1, 1993.
(2) Sioux falls.--The Secretary shall provide funds for the
city of Sioux Falls, South Dakota, in an amount equal to 50
percent of the incremental cost to the city of participation in
(b) Non-Federal Cost Share.--
(1) In general.--Except as provided in paragraph (2), the
non-Federal share of the costs allocated to the water supply
system shall be 20 percent of the amounts described in
(2) Sioux falls.--The non-Federal cost-share for the city of
Sioux Falls, South Dakota, shall be 50 percent of the
incremental cost to the city of participation in the project.
SEC. 10. BUREAU OF RECLAMATION.
(a) Authorization.--At the request of the water supply system, the
Secretary may allow the Commissioner of Reclamation to provide project
construction oversight to the water supply project and environmental
enhancement component for the service area of the water supply system
described in section 3(b).
(b) Project Oversight Administration.--The amount of funds used by
the Commissioner of Reclamation for oversight described in subsection
(a) shall not exceed the amount that is equal to 1 percent of the
amount provided in the total project construction budget for the entire
project construction period.
(c) Operation and Maintenance.--The water supply system shall be
responsible for annual operation and maintenance of the project.
SEC. 11. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated to carry out this Act
$223,987,700, to remain available until expended, of which not more
than $10,100,000 shall be used for the initial development of the
environmental enhancement component under section 4.
purpose of the measure
S. 244 authorizes grants for the construction of the Lewis
and Clark Rural Water System and authorizes assistance to the
Lewis and Clark Rural Water System, Inc., a nonprofit
corporation, for the planning and construction of the water
supply system, and for other purposes.
background and need
The Lewis and Clark Rural Water System is designed to
provide replacement or supplemental water supplies from the
Missouri River to areas in southeastern South Dakota,
northwestern Iowa, and southwestern Minnesota serving about
180,000 people. The Lewis and Clark system is made up of 22
rural water systems and communities in the three States that
have joined together in an effort to cooperatively address the
dual problems facing the residents of the region--inadequate
quantities of water and the poor quality of that water.
This region has seen substantial growth and development in
recent years, and studies conducted by project supporters have
shown that future water needs will be significantly greater
than the current available supply. Most of the residents served
by ten of the water utilities in the proposed Lewis and Clark
project area currently enforce water restrictions on a seasonal
basis. Almost half of the membership has water of such poor
quality it does not meet present or proposed standards for
drinking water. More than two-thirds of the membership rely on
shallow aquifers as the primary source of drinking water--
aquifers which are very vulnerable to contamination by surface
The Lewis and Clark system will provide a supplemental
source of drinking water for its 22 members, serving as a
treated, bulk delivery system. Member utilities' existing
systems will continue to deliver water to individual users.
According to the bill sponsors, this ``regionalization
approach'' to solving the water supply and quality problems
utilizes the Missouri River as source of clean, safe drinking
water to more than 180,000 individuals.
The estimated Federal cost of the project is $223,987,700,
with a twenty percent local cost share. Funding for the Sioux
Falls component is limited to fifty percent of the incremental
cost to the city of participation in the project. Annual
operating costs are estimated at $4.7 million. The Bureau of
Reclamation participated in the planning and ability to pay
analyses, and agreed with the need for a project to meet both
supply and water quality needs. At the Subcommittee hearing on
this bill, the Assistant Secretary of the Interior for Water
and Science indicated that the Administration supported the
concept of the project, but was opposed to the legislation as
drafted. The Committee believes this legislation, as amended by
the Committee, is an appropriate and useful approach to address
the region's water quality and supply needs.
The members of the System collectively provide an average
of about 30 million gallons per day (78% in South Dakota) and
the proposal would provide an average of 16.5 million gallons
of supplemental supply, with a maximum delivery of 23.5 million
gallons. The raw water would be diverted from the Missouri
River near Vermillion, South Dakota, treated and discharged
through 400 miles of piping with a series of storage reservoirs
and pumping stations. The project is estimated to take about 8
years to complete.
S. 244 was introduced by Senators Johnson, Daschle, Grams,
Wellstone, Grassley and Harkin on January 19, 1999 and a
hearing was held in the Water and Power Subcommittee on May 27,
1999. S. 244 is similar to a measure introduced last Congress,
S. 777, which had a hearing on October 7, 1997, and was
reported out of Committee (S. Rept. No. 105-381). A House
companion measure, H.R. 297, was introduced on January 6, 1999.
At the business meeting on July 28, 1999, the Committee on
Energy and Natural Resources ordered S. 244, as amended,
committee recommendations and tabulation of votes
The Committee on Energy and Natural Resources, in open
business session on July 28, 1999, by a unanimous vote of a
quorum present, recommends that the Senate pass S. 244, if
amended as described herein.
During the consideration of S. 244, the Committee adopted a
substitute amendment which included the following substantive
(1) The amendment retains the requirement for a water
conservation plan, but deletes the detailed
requirements and approval since the responsibility for
water management in the three States resides in the
(2) The authorization for appropriations is reduced
by $2,342,300 to reflect an increase in the Sioux Falls
cost share. In addition, spending for the initial
development of the environmental enhancement component
is limited to not more than $10,100,000--an increase of
$1,613,000 that reflects recent updates in cost; and
(3) Language is added to clarify that annual O&M; is
the responsibility of the System.
The Committee wants to make clear that since this is not a
Reclamation project subject to Reclamation law, the Federal
government does not, and will not, hold title to this project.
The Committee understands that Pick-Sloan irrigation-power
customers will not be negatively affected by the use of
irrigation power for pumping and incidental operational
requirements of the water supply project.
Section 1 is a short title.
Section 2 provides a series of definitions and is self-
Section 3 explains the conditions for Federal financial
Section 4 provides for funding of the initial development
of the environmental enhancement component of the system.
Section 5 provides standard language on mitigation for fish
and wildlife losses.
Section 6 describes the use of Pick-Sloan Power for the
System and is self-explanatory.
Section 7 provides that this legislation does not limit any
other authorization for water projects in South Dakota, Iowa,
Section 8 is a savings clause and is self-explanatory.
Section 9 provides a cost share formula.
Section 10 defines the role of the Bureau of Reclamation.
Section 11 authorizes $223,987,700 for the System of which
not more than $10,100,000 shall be used for the initial
development of the environmental enhancement component.
cost and budgetary considerations
The Congressional Budget Office cost estimate report had
not been received at the time the report was filed. When the
report becomes available, the Chairman will request that it be
printed in the Congressional Record for the advice of the
Senate. The legislation authorizes $223.9 million as the
Federal share of the costs of the system.
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. 244. The bill is not a regulatory measure in
the sense of imposing Government-established standards or
significant economic responsibilities on private individuals
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
Little, if any, additional paperwork would result from the
enactment of S. 244, as ordered reported.
On April 21, 1999, the Committee on Energy and Natural
Resources requested legislative reports from the Department of
the Interior and the Office of Management and Budget setting
forth Executive agency recommendations on S. 244. These reports
had not been received at the time the report on S. 244 was
filed. When the reports become available, the Chairman will
request that they be printed in the Congressional Record for
the advice of the Senate. The written testimony provided by the
Assistant Secretary for Water and Science from the Department
of the Interior at the Subcommittee hearing follows:
Statement of Patricia J. Beneke, Assistant Secretary for Water and
Science, Department of the Interior
My name is Patricia J. Beneke, I am Assistant Secretary for
Water and Science within the U.S. Department of the Interior.
The Bureau of Reclamation is one of the bureaus that I oversee.
I am pleased to be here today to provide the Administration's
views on S. 244 to authorize the construction of the Lewis and
Clark Rural Water System and to authorize assistance to the
Lewis and Clark Rural Water System Inc.
S. 244, the Lewis and Clark Rural Water System Act of 1997,
authorizes the Secretary of the Interior to make grants and
provide project construction oversight to the Lewis and Clark
Rural Water System, Inc. for the planning and construction of a
domestic and industrial water supply system that would serve
over 180,000 persons in southern South Dakota, including the
City of Sioux Falls with a metropolitan population of 153,466
and people in southwestern Minnesota and northwestern Iowa. The
project would provide drinking water supply to meet the current
and future needs of the project beneficiaries. A small part of
the project's construction budget would be dedicated to fish,
wildlife, and wetland enhancement features. The Department
opposes S. 244 for reasons I will discuss.
The bill would authorize the appropriation of $226.3
million, of which not less than $8.4 million would be used for
the environmental enhancement component set forth in Section 4.
With the exception of the City of Sioux Falls component, the
Federal government would fund 80 percent of the project
planning and construction costs, and non-Federal interests
would provide the remaining 20 percent. For the City of Sioux
Falls component, non-Federal interests would provide 50
percent, an increase over the 20 percent specified in a
previous version of this bill.
Mr. Chairman, the Bureau of Reclamation has worked closely
with proponents of the Lewis and Clark Rural Water System to
provide technical assistance on the environmental and economic
studies. Reclamation believes the project would meet local and
regional water supply needs. However, we cannot support this
bill as drafted due to a number of concerns--including cost
sharing restrictions on the level of planning expenditures, and
the expansion of Reclamation's responsibilities outside of the
seventeen western states. Most notably, Section 10 directs the
Federal government to provide 80 percent of the design and
construction costs through grants (50 percent for the Sioux
Falls component). The Department's long-standing policy
relative to non-Indian municipal and rural water system
development is that non-Federal interests should repay 100
percent of allocated project construction costs at current
interest rates, and that they pay 100 percent of operation and
maintenance costs. In addition, urban areas like Sioux Falls
should have a sufficient population base and economic resources
to finance its own water system.
We are also concerned that Section 11(b) restricts the use
of funding for planning and construction by the Bureau of
Reclamation to one percent of the amount provided in the
construction budget. Recent experience with similar projects in
South Dakota (Mni Wiconi and Mid-Dakota) have been that this
level of funding is not adequate to provide the necessary
oversight and administration activities to ensure compliance
with the National Environmental Policy Act and the National
Historic Preservation Act, which are necessary activities that
are authorized in the legislation. Furthermore, the Feasibility
Study that was completed on this project and is referenced in
S. 244, provided for three percent of the project's
construction budget for these activities. We believe this is a
more realistic and appropriate level.
Additionally, this legislation authorized and directs the
Bureau of Reclamation to carry out these activities in the non-
Reclamation states of Minnesota and Iowa, which are east of the
100 meridian, and therefore are not among the 17 western states
where Reclamation has relationships with the states and has
other on-going legal and contractual responsibilities.
In summary, Mr. Chairman, Reclamation recognizes that the
project authorized by S. 244 would improve the water supply in
the region. However, it is difficult to justify this water
supply system as a Federal project with its minimal costs
sharing. Also, considering the already tight competition for
funding of ongoing projects in the region, it will be difficult
to fund this project.
That concludes my testimony. I would be happy to answer any
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. 244, as ordered