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Calendar No. 173
113th Congress Report
1st Session 113-95
NORTH FORK WATERSHED PROTECTION
September 10, 2013.--Ordered to be printed
Mr. Wyden, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 255]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 255) to withdraw certain Federal land and
interests in that land from location, entry, and patent under
the mining laws and disposition under the mineral and
geothermal leasing laws, having considered the same, reports
favorably thereon with an amendment and recommends that the
bill, as amended, do pass.
The amendment is as follows:
On page 3, after line 2, add the following:
(c) Effect of Section.--Nothing in this section prohibits
the Secretary of the Interior from taking any action necessary
to complete any requirement under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.) or the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.) required for
permitting surface-disturbing activity to occur on any lease
issued before the date of enactment of this Act.
The purpose of S. 255 is to withdraw approximately 362,000
acres of Federal land located along the Flathead River in
northwestern Montana from the mining laws and mineral and
geothermal leasing laws.
BACKGROUND AND NEED
The North Fork of the Flathead River extends approximately
90 miles from its headwaters in southern British Columbia south
into Montana, where it forms the western boundary of Glacier
National Park. The Flathead River was designated as a component
of the National Wild and Scenic Rivers System in 1976.
Although the North Fork itself is protected under the Wild
and Scenic Rivers Act, the Canadian portion of the river and
the river's watershed are not protected. There have been
several mining or oil and gas development projects over the
years which have raised concerns about the potential impact on
the river's water quality.
In February 2010, the Province of British Columbia and the
State of Montana signed a Memorandum of Understanding to
preclude mining, oil and gas development, and coalbed methane
extraction in the Flathead. Under the agreement, mining, oil
and gas, coalbed methane, and coal development would be
prohibited within the basin. However, much of the North Fork's
watershed in Montana is Federal land.
S. 255 would withdraw, subject to valid existing rights,
the Federal lands designated on the map referenced in the bill
from all forms of location, entry, and patent under the mining
laws of the United States; and from disposition under all laws
relating to mineral leasing and geothermal leasing. This action
will prevent future mining, oil and gas, coal bed methane,
coal, and geothermal development, as well as any other
activities governed by these statutes.
In 1982 the Department of the Interior issued several oil
and gas leases on national forest lands within the North Fork
watershed. Those leases were later suspended in 1988 when the
Ninth Circuit Court of Appeals ruled that the agency had failed
to comply with applicable environmental laws prior to issuing
the leases. The Federal agencies were enjoined from allowing
any activity on the issued leases. Since that decision, no
action has been taken on these leases, and there is presently
no oil and gas development on federal land within the area
proposed to be withdrawn by S. 255. Several lease holders have
voluntarily relinquished oil and gas leases within the area
withdrawn under S. 255, although a significant number of
outstanding leases remain.
S. 255 was introduced by Senators Baucus and Tester on
February 7, 2013. The Subcommittee on Public Lands, Forests,
and Mining held a hearing on the bill on April 25, 2013. At its
business meeting on June 18, 2013, the Committee ordered S. 255
favorably reported with an amendment.
In the 112th Congress, Senators Baucus and Tester
introduced similar legislation, S. 233. The Subcommittee on
Public Lands and Forests held a hearing on S. 233 on May 25,
2011 (S. Hrg. 112-131). During the 111th Congress, the
Committee considered similar legislation, S. 3075, also
sponsored by Senators Baucus and Tester. The Subcommittee on
Public Lands and Forests held a hearing on S. 3075 on April 28,
2010 (S. Hrg. 111-744).
The Committee considered S. 3075 at its business meeting on
July 21, 2010, and by a vote of 13-10 adopted an amendment in
the nature of a substitute. At its business meeting on August
5, 2010, the Committee ordered S. 3075 favorably reported, as
amended (S. Rept. 111-316).
The Senate Committee on Energy and Natural Resources, in
open business session on June 18, 2013, by a voice vote of a
quorum present, recommends that the Senate pass S. 255, if
amended as described herein.
During its consideration of S. 255, the Committee adopted
an amendment to add a new subsection to the withdrawal language
in section 3. The amendment states that nothing in the section
prohibits the Secretary of the Interior for taking any action
necessary to complete any requirement under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) or
the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)
required for permitting surface-disturbing activity to occur on
any lease issued before the date of enactment of the Act.
Section 1 contains the short title, the ``North Fork
Watershed Protection Act of 2013.''
Section 2 defines key terms used in the bill.
Section 3 withdraws, subject to valid existing rights, the
lands depicted on the referenced map from all forms of
location, entry, and patent under the mining laws and
disposition under laws relating to mineral and geothermal
Subsection (b) states that the map shall be available no
later than 30 days after enactment of this Act at appropriate
offices of the Bureau of Land Management.
Subsection (c) provides that nothing in this section
prohibits the Secretary of the Interior from taking any actions
under the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.) or the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) required for permitting surface-disturbing
activity to occur on any lease issued before the date of
enactment of this Act.
COST AND BUDGETARY CONSIDERATIONS
The following estimate of costs of this measure has been
provided by the Congressional Budget Office:
S. 255--North Fork Watershed Protection Act of 2013
S. 255 would withdraw 430,000 acres of federal lands in
Montana from programs to develop geothermal and mineral
resources. The affected lands, which lie adjacent to Glacier
National Park, are already protected for wilderness values, and
the proposed designation would not significantly affect the way
they are managed. Based on information provided by the Bureau
of Land Management (BLM), CBO estimates that implementing the
legislation would have no significant impact on the federal
budget. Enacting S. 255 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
The bill would not affect valid, existing rights on the
affected lands, including the rights of private entities to 39
oil and gas leases that have been suspended since 1985 because
of litigation. BLM has not offered any new oil and gas leases
on the affected lands since that litigation, and CBO does not
expect any such leases to be offered in the next 10 years. In
addition, based on information provided by BLM, CBO expects
that no income would be derived from other activities on the
affected lands over that period; therefore, we estimate that
enacting S. 255 would not affect direct spending.
S. 255 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
The CBO staff contact for this estimate is Jeff LaFave. The
estimate was approved by Theresa Gullo, 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. 255.
The bill is not a regulatory measure in the sense of
imposing Government-established standards or significant
economic responsibilities on private individuals and
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. 255, as ordered reported.
CONGRESSIONALLY DIRECTED SPENDING
S. 255, as reported, does not contain any congressionally
directed spending items, limited tax benefits, or limited
tariff benefits as defined in rule XLIV of the Standing Rules
of the Senate.
The testimony provided by the Bureau of Land Management and
the Forest Service at the April 25, 2013, Subcommittee on
Public Lands, Forests and Mining hearing on S. 255 follows:
Statement of James M. Pena, Associate Deputy Chief, National Forest
System, Forest Service, Department of Agriculture
Mr. Chairman, Ranking Member Barrasso, and members of the
Committee, thank you for inviting me here today to testify
regarding S. 255, the North Fork Watershed Protection Act of
S. 255 would, subject to valid existing rights, withdraw
National Forest System (NFS) lands located in the North Fork
and Middle Fork of Flathead River watersheds in Montana which
are primarily managed as part of the Flathead National Forest
from location, entry and patent under the mining laws and from
disposition under the mineral and geothermal leasing laws. S.
255 would also withdrawal a small amount of land in the
Kootenai National Forest. Currently there are 39 existing
leases or claims in the North Fork comprising 56,117 acres and
18 existing leases or claims in the Middle Fork comprising
8,595 acres. The Department supports S. 255, however, I would
like to clarify that although the Department has surface
management authority concerning mineral operations, the
management of the federal mineral estate falls within the
jurisdiction of the Secretary of the Interior. We defer to the
Department of the Interior on issues related to the status of
the existing claims and leases.
The Forest Service administers surface resources on nearly
193 million acres of NFS lands located in forty-two states and
the Commonwealth of Puerto Rico. The Forest Plan for the
Flathead National Forest blends areas of multiple uses in the
North Fork and Middle Fork with areas of specific or limited
uses elsewhere on the Forest. Under current law, NFS lands
reserved from the public domain pursuant to the Creative Act of
1891, including those in S. 255, are open to location, entry
and patent under the United States Mining Laws unless those
lands have subsequently been withdrawn from the application of
the mining laws. This bill would withdraw approximately 362,000
acres from the operation of the locatable and leasable mineral
laws subject to valid existing rights. This includes
approximately 291,000 acres on the Flathead National Forest and
approximately 5,000 acres on the Kootenai National Forest in
the North Fork watershed and 66,000 acres in the Middle Fork
watershed on the Flathead National Forest.
The majority of North Fork and Middle Fork of the Flathead
has low to moderate potential for the occurrence of locatable
and leasable minerals. A portion of the Middle Fork does have
an area of high potential for oil and gas occurrence. Much of
the North Fork and Middle Fork was leased for oil and gas in
the early 1980s. Subsequently, the Bureau of Land Management
(BLM) and Forest Service were sued and BLM suspended the leases
in 1985 to comply with a District Court ruling (Conner v.
Burford, 605 F. Supp. 107 (D.Mont.1985)). Presently, there are
no active locatable or leasable operations, including oil and
gas, in the North Fork or Middle Fork.
We recognize the bill would not affect the existing oil and
gas leases because they would constitute valid existing rights.
We also recognize the bill would not change the court's order
in Conner v. Burford requiring the BLM and Forest Service to
prepare an environmental impact statement (EIS) under the
National Environmental Policy Act before authorizing any
surface disturbing activities on the affected leases.
The Flathead National Forest and Flathead County rely on
the close proximity of local sources of aggregate to maintain
roads economically and as a source of building materials. We
are pleased this bill would not preclude the removal and use of
mineral materials, such as aggregate. The ability to continue
using those local mineral materials would allow us to more
easily maintain local roads, thus reduce erosion related
impacts to streams and lakes in the North Fork and Middle Fork
This concludes my testimony and I would be happy to answer
any questions that you may have.
Statement of Jamie Connell, Acting Deputy Director, Bureau of Land
Management, Department of the Interior
Thank you for the invitation to testify on S. 255, the
North Fork Watershed Protection Act of 2013. The Department of
the Interior supports S. 255, which would withdraw Federal
lands within the North Fork watershed of Montana's Flathead
River from all forms of location, entry, and patent under the
mining laws and from disposition under all laws related to
mineral or geothermal leasing. Enactment of S. 255 would mark
an important milestone in the work occurring across multiple
jurisdictions to help preserve the remarkable resources in the
Crown of the Continent ecosystem.
The Flathead River Basin, a key portion of an area known as
the Crown of the Continent ecosystem, spans the boundaries of
the United States and Canada. It includes part of the United
States' Glacier National Park and borders Canada's Waterton
Lakes National Park. These two parks comprise the world's first
International Peace Park as well as a World Heritage Site. The
U.S. Forest Service's Flathead National Forest is also located
within the Flathead River watershed. The Bureau of Land
Management manages the Federal mineral estate underlying the
Flathead National Forest.
Running along the west side of the Continental Divide, the
North Fork of the Flathead River enters the United States at
the Canadian border and forms the western border of Glacier
National Park until its confluence with the Middle Fork of the
Flathead River near the southern end of Glacier National Park.
The North Fork watershed, a sub-basin of the Flathead River
watershed, includes areas currently managed by the National
Park Service, the State of Montana, the U.S. Forest Service,
and some private landowners.
The Flathead River Basin is recognized for its natural
resource values, including wildlife corridors for large and
medium-sized carnivores, aquatic habitat, and plant species
diversity. The area is rich in cultural heritage resources,
with archeological evidence of human habitation starting 10,000
years ago. Several Indian tribes, including the Blackfeet, the
Salish, and the Kootenai, have a well-established presence in
the area. The area also has celebrated recreational
opportunities, including hunting, fishing, and backcountry
hiking and camping.
There has been interest in protecting the Crown of the
Continent resources for some time. On February 18, 2010, the
State of Montana and the Province of British Columbia executed
a Memorandum of Understanding which addresses a myriad of
issues related to the Flathead River Basin on both sides of the
U.S.-Canada border. The intention of Part I.A. of that
memorandum is to ``[r]emove mining, oil and gas, and coal
development as permissible land uses in the Flathead River
The Flathead River Basin contains Federally-owned
subsurface mineral estate under National Forest System lands
that the Federal government has leased for oil and gas
development. At the time legislation was initially proposed in
2010, there were 115 oil and gas leases in the North Fork
watershed that the BLM issued between 1982 and 1985. The
leases, which cover over 238,000 acres, are inactive and under
suspension as part of the 1985 court case Conner v. Burford. At
the request of Montana Senators Max Baucus and John Tester,
leaseholders have voluntarily relinquished 76 leases consisting
of almost 182,000 acres. The BLM has not offered any other
leases in the Flathead National Forest since the Conner v.
Burford litigation suspended the existing leases in 1985.
The U.S. Forest Service is responsible for the surface
management of National Forest System land; however, as noted
earlier, the Secretary of the Interior and the BLM are
responsible for administering the Federal subsurface mineral
estate under the Mining Law of 1872, the Mineral Leasing Act of
1920, and various mineral leasing acts. With respect to
locatable minerals and oil and gas resources, the Forest
Service has authority to regulate the effects of mineral
operations upon National Forest System resources. The BLM only
issues mineral leases for locatable minerals and oil and gas
resources upon concurrence of the surface management agency and
always works cooperatively with the agency to ensure that
management goals and objectives for mineral exploration and
development activities are achieved, that operations are
conducted to minimize effects on natural resources, and that
the land affected by operations is reclaimed.
S. 255 withdraws all Federal lands or interest in lands,
comprised of approximately 430,000 acres of the Flathead
National Forest, within the North and Middle Fork watersheds of
the Flathead River from all forms of location, entry, and
patent under the mining laws and from disposition under all
laws related to mineral or geothermal leasing. We note that
National Park acreage within the watershed is already
unavailable for mineral entry. S. 255 does not affect valid,
existing rights, including the 39 leases in the North Fork
watershed that are suspended under the Conner v. Burford
litigation. The Department fully supports S. 233 as it furthers
the goal of preserving the important resources of this region.
The Waterton-Glacier International Peace Park, which
extends from Canada into the United States, is one of the great
protected ecosystems on the North American continent. A 2010
World Heritage Center/International Union for the Conservation
of Nature Report noted that the International Peace Park is
``one of the largest, most pristine, intact, and best protected
expanses of natural terrain in North America. It provides the
wide range of non-fragmented habitats and key ecological
connections that are vital for the survival and security of
wildlife and plants in the Waterton-Glacier property and the
Flathead watershed.'' Retaining this expanse of natural
landscape in the Crown of the Continent ecosystem is of vital
importance for providing ecosystem connectivity, which is
essential for the growth and survival of plants and animals in
the region. S. 255 will help accomplish this goal.
The Department of the Interior is also committed to
maintaining the ecological integrity of Glacier National Park,
one of the most noteworthy natural and cultural treasures of
our Nation. Preserving the region's and the park's water
resources is also critical. The rich aquatic ecosystems provide
breeding and feeding habitats for a variety of important
species, and the Department recognizes the importance of
maintaining critical habitat corridors when planning for
resources uses. S. 255 will help protect and preserve the
important resources of the greater Crown of the Continent
ecosystem, including those within Glacier National Park.
The Department supports S. 255 and commends the many
parties involved in protecting the North Fork of the Flathead
River and the important resources shared by the United States
and Canada. We hope that this legislation and the efforts of
the federal and state/provincial governments add to the
important legacy of conservation in the Glacier/Waterton Lakes
area and Flathead River basin.
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 S. 255, as ordered