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                                                      Calendar No. 390
115th Congress      }                                    {      Report
                                 SENATE
 2d Session         }                                    {     115-235

======================================================================

 
 TO AUTHORIZE THE SECRETARY OF THE INTERIOR TO AMEND THE DEFINITE PLAN 
   REPORT FOR THE SEEDSKADEE PROJECT TO ENABLE THE USE OF THE ACTIVE 
                  CAPACITY OF THE FONTENELLE RESERVOIR

                                _______
                                

                 April 25, 2018.--Ordered to be printed

                                _______
                                

  Ms. Murkowski, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 648]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (H.R. 648) to authorize the Secretary of the 
Interior to amend the Definite Plan Report for the Seedskadee 
Project to enable the use of the active capacity of the 
Fontenelle Reservoir, having considered the same, reports 
favorably thereon without amendment and recommends that the 
bill do pass.

                                PURPOSE

    The purpose of H.R. 648 is to authorize the Secretary of 
the Interior to amend the Definite Plan Report for the 
Seedskadee Project to enable the use of the active capacity of 
the Fontenelle Reservoir.

                          BACKGROUND AND NEED

    Fontenelle Reservoir in the State of Wyoming is a principal 
feature of the Seedskadee Project, one of the initial projects 
authorized under the Colorado River Storage Project Act of 
1956. Authorized uses of Fontenelle Reservoir storage water 
include irrigation, fish and wildlife, recreation, flood 
control, and municipal and industrial water use, as primary 
purposes, with power generation specified as the only secondary 
purpose.
    Currently, Wyoming has the perpetual right to market 
120,000 acre-feet of the original 190,250 acre-feet active 
capacity from the reservoir. However, in order to increase the 
use of water storage and supplies from the reservoir, 
infrastructure improvements must be made to prevent erosion.
    H.R. 648 would authorize the Secretary to enter into an 
agreement with the State of Wyoming to make infrastructure 
improvements to enable the use of all active storage capacity 
of Fontenelle Dam and Reservoir, including the placement of 
sufficient riprap on the upstream face of Fontenelle Dam, on 
the condition that the State pay for the entire project, 
including the study, design, planning, and construction of the 
project.

                          LEGISLATIVE HISTORY

    H.R. 648 was introduced by Representative Cheney on January 
24, 2017, and referred to the Committee on Natural Resources. 
On March 15, 2017, H.R. 648 was passed by the House of 
Representatives by a vote of 408-0.
    Companion legislation, S. 199, was introduced by Senator 
Barrasso on January 24, 2017. The Committee on Energy and 
Natural Resources met in open business session on March 30, 
2017, and ordered S. 199 favorably reported (S. Rept. 115-96). 
Similar language is included in section 9001 of S. 1460, the 
Energy and Natural Resources Act of 2017 (Cal. 162).
    In the 114th Congress, similar legislation, H.R. 2273, was 
introduced by Representative Lummis in the House of 
Representatives on May 12, 2015, and referred to the Committee 
on Natural Resources. The Subcommittee on Water, Power, and 
Oceans held a legislative hearing on H.R. 2273 on June 25, 
2015. The Committee on Natural Resources reported H.R. 2273, as 
amended, on March 14, 2016 (H. Rept. 114-450), and the House of 
Representatives passed the bill, as amended, by voice vote on 
July 5, 2016.
    Companion legislation, S. 1305, was introduced by Senator 
Barrasso on May 12, 2015. The Subcommittee on Water and Power 
held a hearing on S. 1305 on June 18, 2015. The Committee on 
Energy and Natural Resources met in open business session on 
July 30, 2015, and ordered S. 1305 favorably reported as 
amended (S. Rept. 114-135). The measure was also included in 
Amendment No. 3234, which the Senate agreed to on April 19, 
2016, as an amendment to S. 2012, the Energy Policy 
Modernization Act of 2016, which the Senate passed, as amended, 
on April 20, 2016.
    The Committee on Energy and Natural Resources met in open 
business session on March 8, 2018, and ordered H.R. 648 
favorably reported.

                        COMMITTEE RECOMMENDATION

    The Senate Committee on Energy and Natural Resources, in 
open business session on March 30, 2018, by a majority voice 
vote of a quorum present, recommends that the Senate pass H.R. 
648.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Authority to make entire active capacity of Fontenelle 
        Reservoir available for use

    Section 1(a) authorizes the Secretary of the Interior to 
work with the State of Wyoming through cooperative agreements 
to enable the use of all active storage capacity of the 
Fontenelle Dam and Reservoir.
    Subsection (b) outlines the minimally required components 
of the agreements, including that the State of Wyoming shall be 
responsible for all funding of activities carried out under 
this act.

Section 2. Savings provisions

    Section 2 includes savings provisions specifying that 
nothing in this act modifies, conflicts with, preempts, or 
otherwise affects the Boulder Canyon Project Act; the Colorado 
River Compact of 1922; the Boulder Canyon Project Adjustment 
Act; the Treaty between the U.S. and Mexico relating to the 
utilization of waters of the Colorado and Tijuana Rivers and of 
the Rio Grande; the Upper Colorado River Basin Compact; the 
Colorado River Storage Project Act; the Colorado River Basin 
Project Act; or any State of Wyoming or other State water law.

                   COST AND BUDGETARY CONSIDERATIONS

    The following estimate of the costs of this measure has 
been provided by the Congressional Budget Office:
    H.R. 648 would authorize the Bureau of Reclamation (BOR) to 
plan and construct a project to expand water storage at 
Fontenelle Dam and Reservoir in southwestern Wyoming. Under 
current law, the amount of water storage available to the State 
of Wyoming at the reservoir is the difference between full 
capacity and the lowest water level that allows all of the 
authorized purposes of the Fontenelle project to be performed. 
Under the act, BOR would coordinate with the State of Wyoming 
to design and construct modifications to the Fontenelle Dam and 
Reservoir to allow the project to operate at a lower water 
level, thus expanding the amount of storage available to the 
state. H.R. 648 also would require the state to contribute 100 
percent of the costs to design and construct the project. Those 
contributions would be classified as offsetting receipts, which 
are treated as reductions in direct spending, and would 
subsequently be spent without further appropriation.
    Enacting H.R. 648 would increase receipts and the 
associated direct spending; therefore, pay-as-you-go procedures 
apply. However, CBO estimates that the net effect on the budget 
would be negligible. Enacting H.R. 648 would not affect 
revenues.
    CBO estimates that enacting the legislation would not 
increase net direct spending or on-budget deficits in any of 
the four consecutive 10-year periods beginning in 2028.
    H.R. 648 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act. The 
act would benefit the State of Wyoming by authorizing a 
cooperative agreement for upgrading the power plant at the 
Fontenelle Dam. Any costs incurred by the state to fund the 
project or participate in the cooperative agreement would 
result from complying with conditions of federal assistance.
    On April 11, 2017, CBO transmitted a cost estimate for S. 
199, a bill to authorize the use of the active capacity of the 
Fontenelle Reservoir, as ordered reported by the Senate 
Committee on Energy and Natural Resources on March 30, 2017. 
The two pieces of legislation are similar and CBO's estimates 
of their budgetary effects are the same.
    The CBO staff contacts for this estimate are Aurora Swanson 
(for federal costs) and Zachary Byrum (for mandates). The 
estimate was approved by H. Samuel Papenfuss, Deputy Assistant 
Director 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 H.R. 648.
    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 H.R. 648, as ordered reported.

                    CONGRESSIONAL DIRECTED SPENDING

    H.R. 648, as ordered 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.

                        EXECUTIVE COMMUNICATIONS

    Because H.R. 648 is similar to legislation considered by 
the Committee in the 114th Congress, the Committee did not 
request Executive Agency views. The testimony provided by the 
Bureau of Reclamation at the hearing before the Subcommittee on 
Water and Power on June 18, 2015, follows:

  Statement of Dionne Thompson, Deputy Commissioner for External and 
  Intergovernmental Affairs, Bureau of Reclamation, Department of the 
                                Interior

    The amendment authorizes Reclamation to increase the active 
capacity and, as a result, the amount of water developed by 
Fontenelle Reservoir in Wyoming. With the concerns described 
below appropriately noted, the Department does not oppose S. 
1305 in its current form. Fontenelle Reservoir is part of the 
Seedskadee Project, a participating project under P.L. 84-485. 
The dam and reservoir are located in the Upper Green River 
Basin in southwestern Wyoming about 50 miles from Rock Springs. 
Fontenelle Dam is an embankment dam standing 139 feet high with 
a crest length of over a mile (5,421 feet). Fontenelle 
Reservoir has a total capacity of 345,360 acre-feet and is 
operated for municipal and industrial water use, power 
production, flood control, and fish and wildlife--in support of 
the Seedskadee National Wildlife Refuge. Recreation facilities 
at Fontenelle Reservoir are managed by the Bureau of Land 
Management under an agreement with Reclamation.
    The intent of S. 1305 is to increase the yield of 
Fontenelle Reservoir, further developing the State of Wyoming's 
allocation of Colorado River water under the Colorado River 
Compact. To understand how S. 1305 would increase the water 
available to Wyoming, it is important to review some basic 
engineering features associated with Fontenelle Dam.
    In general, the active capacity of a reservoir is the space 
between the highest elevation at which water can be stored and 
the lowest elevation from which water can be released so as to 
allow operation for all authorized purposes. Power is an 
authorized purpose of the Seedskadee Project. The lowest 
elevation at which Fontenelle Powerplant can be safely operated 
is approximately 40 feet above the bottom elevation of the 
inlet to the powerplant, and is referred to as ``minimum power 
pool elevation.''
    In order to protect the upstream face of a dam from erosion 
caused by wave action, large stones that are resistant to 
erosion and wave action are placed on the upstream side of the 
dam. These stones are referred to as ``riprap''. In keeping 
with engineering practices, Fontenelle Dam includes riprap 
protection on the upstream face of the embankment. Because the 
dam would not be operated with any frequency below the lowest 
power production elevation, original construction and 
subsequent modifications did not include placing riprap on the 
upstream face of dam below minimum power pool elevation.
    For some years, the State of Wyoming has expressed interest 
in placing riprap below the minimum power pool elevation, and 
this project has come to be known as the ``Riprap Project.'' By 
doing so, it would be possible to operate the reservoir within 
a greater range of elevations--increasing the operating range 
and yield of the reservoir. S. 1305 would authorize the 
Department to undertake the ``study, planning, design and 
construction activities'' necessary to consider and implement 
the Riprap Project (a lowering of the elevation of the riprap).
    In considering the Riprap Project, Reclamation has had 
concerns, and we appreciate the chance to review this 
legislation as it was drafted over the past several months. We 
are pleased to note that each of these concerns appears to be 
addressed in the introduced language of S. 1305.
    S. 1305 amends P.L. 84-485 to authorize consideration and 
implementation of the Riprap Project. In doing so, it grounds 
the Riprap Project on the statute that originally authorized 
the Seedskadee Project. S. 1305 relies upon the authority of 
the Contributed Funds Act (Act of March 4, 1921) as the means 
for the State of Wyoming to provide the funding to consider and 
undertake the Riprap Project. With this arrangement, 
Reclamation believes that the Riprap Project can be implemented 
without any request for new appropriations, and with no 
foreseeable impact to Reclamation's already constrained budget.
    It is unlikely that the Riprap Project will adversely 
affect other states dependent on the Colorado River or Mexico 
beyond what they would face when the Upper Basin States make 
full utilization of their apportionments, considering their 
apportionments and required releases from the Upper Basin to 
the Lower Basin under current operational guidelines that 
implement key provisions of the Law of the River including the 
Colorado River Compact. Having said that, if S. 1305 becomes 
law, it will be important to conduct additional analysis to 
ensure that other interests are protected. S. 1305 includes the 
following elements that should provide some assurance of no 
adverse impacts to other water uses.
    First, S. 1305 appears to create robust sideboards to 
prevent the Riprap Project from conflicting with law, compacts, 
and treaties. This protects against Wyoming expanding its 
entitlement to Colorado River water. In Section 2, S. 1305 
provides reassurance that it will not modify, conflict with, 
preempt, or otherwise affect any applicable federal statutes or 
decrees, including, but not limited to:
           Boulder Canyon Project Act
           Colorado River Compact of 1922
           Boulder Canyon Project Adjustment Act
           Treaty between the United States of America 
        and Mexico relating to the utilization of waters of the 
        Colorado and Tijuana Rivers and of the Rio Grande
           Upper Colorado River Basin Compact
           Colorado River Storage Project Act (P.L. 84-
        485), other than as indicated in Section 1 of S. 130
           Colorado River Basin Project Act (P.L. 90-
        537; 82 Stat. 885)
           Any State of Wyoming or other State water 
        law

    Second, S. 1305 amends P.L. 84-485 to authorize the 
planning, design, and construction of the Riprap Project. The 
bill's stated purposes include ``making it possible for the 
States of the Upper Basin to utilize, consistently with the 
provisions of the Colorado River Compact, the apportionments 
made to and among them in the Colorado River Compact and the 
Upper Colorado River Basin Compact, respectively.'' P.L. 84-485 
sets a clear boundary around the Riprap Project; it cannot 
permit Wyoming to expand its entitlements under the Colorado 
River Compact and the Upper Colorado River Basin Compact.
    Another important element of S. 1305 is the definition of 
active storage capacity. Although active capacity can generally 
be understood as the difference between the upper and lower 
elevations at which a reservoir may be operated, the elevation 
of both the upper and lower limit may also be defined by 
considerations beyond engineering. Other considerations often 
limit the degree to which a reservoir may be drained. These 
considerations include issues of law, hydrology, economics, and 
environment. S. 1305 acknowledges these limitations; in the 
bill ``active storage capacity'' is ``defined or limited by 
legal, hydrologic, structural, engineering, economic, and 
environmental considerations.''
    Environmental compliance concerns also are addressed under 
S. 1305. The bill requires compliance under the National 
Environmental Policy Act, the Endangered Species Act, and the 
National Historic Preservation Act.
    While S. 1305 is clearly written to integrate with existing 
law, regulations and contracts, there are some questions 
associated with operation and design that may limit the scope 
of the Riprap Project. Reclamation has not studied the 
operation of Fontenelle Dam at the lower elevations proposed 
under the Riprap Project. The original planning and design for 
the facility did not include operations at such low levels. 
Operation at lower levels could raise the following issues that 
should be explored by the study to be authorized by this Act:
    Water Delivery Requirements--At lower reservoir elevations, 
the rate at which the reservoir can be drained is slowed 
(because of the reduced hydraulic head). Without the study and 
planning that would be conducted pursuant to this bill, 
Reclamation does not know whether water can be delivered at 
such rates as would be necessary.
    Instream Flows--Under current operations and agreements, 
Reclamation is required to deliver 5,000 acre-feet to the 
Seedskadee National Wildlife Refuge for fish and wildlife 
purposes on an annual basis. As noted above, without additional 
study Reclamation does not know whether it will be able to meet 
these flow requirements at lower reservoir levels.
    Power Generation--Operating the reservoir at lower 
elevations will affect powerplant operations. There would be 
periods when the powerplant cannot be operated efficiently and 
when the powerplant cannot be operated at all. The result will 
be impacts on Reclamation's ability to generate and deliver 
power under P.L. 84-485. There is a potential for impacts to 
irrigators and municipalities that use Colorado River Storage 
Project power as well as to the members of the Colorado River 
Energy Distributors Association, which rely upon and purchase 
the power.

                        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 as ordered 
reported.

                                  [all]