Text: S.Hrg. 107-853 — MISCELLANEOUS WATER AND POWER BILLS
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[Senate Hearing 107-853]
[From the U.S. Government Printing Office]
S. Hrg. 107-853
MISCELLANEOUS WATER AND POWER BILLS
SUBCOMMITTEE ON WATER AND POWER
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
S. 934 S. 2696
S. 1577 S. 2773
S. 1882 H.R. 2990
JULY 31, 2002
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
JEFF BINGAMAN, New Mexico, Chairman
DANIEL K. AKAKA, Hawaii FRANK H. MURKOWSKI, Alaska
BYRON L. DORGAN, North Dakota PETE V. DOMENICI, New Mexico
BOB GRAHAM, Florida DON NICKLES, Oklahoma
RON WYDEN, Oregon LARRY E. CRAIG, Idaho
TIM JOHNSON, South Dakota BEN NIGHTHORSE CAMPBELL, Colorado
MARY L. LANDRIEU, Louisiana CRAIG THOMAS, Wyoming
EVAN BAYH, Indiana RICHARD C. SHELBY, Alabama
DIANNE FEINSTEIN, California CONRAD BURNS, Montana
CHARLES E. SCHUMER, New York JON KYL, Arizona
MARIA CANTWELL, Washington CHUCK HAGEL, Nebraska
THOMAS R. CARPER, Delaware GORDON SMITH, Oregon
Robert M. Simon, Staff Director
Sam E. Fowler, Chief Counsel
Brian P. Malnak, Republican Staff Director
James P. Beirne, Republican Chief Counsel
Subcommittee on Water and Power
BYRON H. DORGAN, North Dakota, Chairman
BOB GRAHAM, Florida GORDON SMITH, Oregon
RON WYDEN, Oregon JON KYL, Arizona
TIM JOHNSON, South Dakota LARRY E. CRAIG, Idaho
DIANNE FEINSTEIN, California BEN NIGHTHORSE CAMPBELL, Colorado
MARIA CANTWELL, Washington RICHARD C. SHELBY, Alabama
THOMAS R. CARPER, Delaware CHUCK HAGEL, Nebraska
Jeff Bingaman and Frank H. Murkowski are Ex Officio Members of the
Patty Beneke, Democratic Senior Counsel
Colleen Deegan, Counsel
C O N T E N T S
Baucus, Hon. Max, U.S. Senator from Montana...................... 4
Bingaman, Hon. Jeff, U.S. Senator from New Mexico................ 22
Burns, Hon. Conrad, U.S. Senator from Montana.................... 7
Carlson, Peter, Coordinator, Small Reclamation Program Act
Chavez, Martin J., Mayor, Albuquerque, NM........................ 46
Craig, Hon. Larry E., U.S. Senator from Idaho.................... 3
Crapo, Hon. Mike, U.S. Senator from Idaho........................ 5
Dorgan, Hon. Byron L., U.S. Senator from North Dakota............ 1
Groat, Charles G., Director, U.S. Geological Survey, Department
of the Interior................................................ 19
Hagel, Hon. Chuck, U.S. Senator from Nebraska.................... 2
Halbert, Wayne, General Manager, Harlingen Irrigation District,
Cameron County #1, Harlingen, TX............................... 50
Keil, Dan, Chairman, North Central Montana Regional Water
Authority, Conrad, MT.......................................... 25
Keys, John W., III, Commissioner, Bureau of Reclamation,
Department of the Interior..................................... 8
Raybould, Jeff, Chairman, Board of Directors, Fremont-Madison
Irrigation District, St. Anthony, ID........................... 37
Scholle, Peter, Ph.D., State Geologist and Director, New Mexico
Bureau of Geology and Mineral Resources, New Mexico Institute
of Technology, Socorro, NM, accompanied by M. Lee Allison,
Ph.D., State Geologist and Director, Kansas Geological Survey,
University of Kansas, Lawrence, KS............................. 53
Smith, Hon. Gordon, U.S. Senator from Oregon..................... 2
Sunchild, Bruce, Sr., Vice Chairman, Chippewa Cree Tribe, Box
Elder, MT...................................................... 30
Additional material submitted for the record..................... 63
MISCELLANEOUS WATER AND POWER BILLS
WEDNESDAY, JULY 31, 2002
Subcommittee on Water and Power,
Committee on Energy and Natural Resources,
The subcommittee met, pursuant to notice, at 2:33 p.m. in
room SD-366, Dirksen Senate Office Building, Hon. Byron L.
OPENING STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
Senator Dorgan. Welcome to the hearing of the Subcommittee
on Water and Power. The subcommittee will receive testimony on
several pending bills relating to various water resources and
matters in the West. I look forward to learning more about
these bills which address topics ranging from rural water
supply to specific water projects.
The bills that we will hear about today are S. 934, to
require the Secretary of the Interior to construct the Rocky
Boy's North Central Mountain Regional Water System in the State
of Montana, and for other purposes; S. 2556, to authorize the
Secretary of the Interior to convey certain facilities to the
Fremont-Madison Irrigation District of the State of Idaho; S.
1882, to amend the Small Reclamation Projects Act of 1956, and
for other purposes; S. 1577 and H.R. 2990, to amend the Lower
Rio Grande Valley Water Resources Conservation and Improvement
Act of 2000, to authorize additional projects under that Act,
and for other purposes; S. 2696, to clear title to certain real
property in New Mexico associated with the Middle Rio Grande
project, and for other purposes; and S. 2773, to authorize the
Secretary of the Interior to cooperate with the High Plains
Aquifer States in conducting hydrogeologic characterization,
mapping, modeling and monitoring program for the High Plains
Aquifer, and for other purposes.
I am pleased to see my colleagues here today to discuss
these important bills, and I especially appreciate Commissioner
Keys and Director Charles Groat being here to testify on behalf
of the administration. In addition, I know that several of the
witnesses have traveled long distances in order to provide
testimony to us, and we very much appreciate your willingness
to be here as well.
We will now turn to my colleagues to see if they have
opening statements. I would like to request that when we hear
witnesses today, you will summarize your statements to no more
than 5 minutes, and all the prepared written statements will be
made a part of the permanent record. Let me call on my
colleague, Senator Craig.
[The prepared statements of Senators Hagel and Smith
Prepared Statement of Hon. Chuck Hagel, U.S. Senator From Nebraska
I thank the Chairman for holding this hearing to examine several
bills related to water projects. At a time when the country is facing
its worst national drought in decades, the importance of the country's
water resources becomes even more apparent.
One of the bills being reviewed today, S. 2773, would direct the
U.S. Geological Service to conduct a mapping, modeling and monitoring
program for the High Plains Aquifer, also known as the Ogallala
Aquifer. Of the eight states that have some portion of their land over
the aquifer, Nebraska has the most--approximately 64,400 square miles,
about 83 percent of the state.
Mr. Chairman, I do not disagree that we need better science on the
High Plains Aquifer and its water levels. The aquifer is a major source
of irrigation and drinking water, and it is an essential resource to
all who live in this region of the country.
Despite the need for more information, however, we must have the
cooperation and support of the states affected, as well as their water
resource agencies. A previous version of this legislation was opposed
by Nebraska's Department of Natural Resources. The department believed
the legislation would have permitted the federal government to unduly
influence state programs and state law.
Most of the opposed language from the previous version of this
legislation does not appear in S. 2773. However, this bill still needs
One of my concerns with the legislation is the potential costs to
the states, especially at a time when many states--including Nebraska--
are experiencing severe budget shortfalls. Also, under this bill, one
lone state could put forth recommendations that would affect many other
states, without consent of the affected states. Finally, this bill--
while written with good intentions--could eventually lead to the
erosion of state sovereignty in regard to water laws, allowing the
federal government to intervene in state groundwater use.
The Western States Water Council--representing the governors of
eighteen states--has suggested sensible language changes to S. 2773.
These changes would improve the bill, and make S. 2773 more acceptable
to Nebraska. I have provided these recommendations to both the majority
and minority staffs, and I encourage the members of this subcommittee
to review them.
I look forward to working with the authors of S. 2773 to improve
this bill, and help enact sensible legislation that will enable us
better understand and use wisely our groundwater resources.
Prepared Statement of Hon. Gordon Smith, U.S. Senator From Oregon
Mr. Chairman, I appreciate your convening this legislative hearing
today on various water-related bills pending before the Subcommittee
today. Several of these bills are site-specific in nature, and I'm sure
they are very important to solving local water supply or water quality
issues. I would like to welcome the Commissioner of Reclamation, John
Keys, and the Director of the U.S. Geological Survey, Dr. Charles
Groat, as well as all the other witnesses who will provide testimony
One of the bills to be heard today is S. 1882, a bill which I
introduced to amend and update the Small Reclamation Projects Act of
1956. The underlying Act established Reclamation's small loan program,
and was used successfully for decades by eligible water districts for
During the last Administration, a decision was made not to accept
any more loan applications for this program, despite the remaining
funds of over $200 million under the current authorization ceiling.
This effort to update the program is a recognition that the funding
needs for many irrigation districts and other eligible entities have
changed in recent years. As a result of threatened and endangered
species, as well as higher environmental standards, water users are
being called on to modify their conveyance and distribution systems, to
screen diversions, and to mitigate for certain project impacts.
Generally speaking, these are not the types of projects that are
attractive to commercial lenders. The small loan program, as updated by
this bill, can provide an important funding source for the types of
investments we are requiring water users to make.
I would like to submit for the record letters of support for S.
1882 that I have received from the National Water Resources Association
and the Association of California Water Agencies.
I look forward to hearing from the witnesses here today.
STATEMENT OF HON. LARRY E. CRAIG, U.S. SENATOR
Senator Craig. Well, Mr. Chairman, first of all, thank you
for holding this hearing. As the session draws toward an end we
have several pieces of legislation that with hearing and markup
can become law this year. The one that I am speaking to is S.
2556. That's an important piece of legislation for Idaho and
especially southeastern Idaho.
Jeff Raybould, from that area, is serving as chairman of
the board of directors of the Fremont-Madison Irrigation
District, and is here to speak to that legislation.
I'm also joined by my colleague Mike Crapo. Both he and I
have worked on this issue here on the Senate side, recognizing
how important it is that when these Bureau of Reclamation
projects have been paid out, that we honor the commitment
initially made in the law years ago that they would then be
turned over to the managing entity, in this instance the
Fremont-Madison Irrigation District, and that's what this
Our colleagues in the House, Mike Simpson and Butch Otter
have already moved this legislation. What we're dealing with is
identical legislation, so if we are successful here in the
Senate, then this can become law this year. We have been able
to transfer title now to, this will be the third district in
our State, as I say, responding to the intent of the original
law. At the same time, working with these districts to assure
that the integrity of the project, its environmental
sensitivity and all that goes with an efficiently run
irrigation district to supply quality water, at the same time
recognizing its responsibility to the region is insured within
the passage of this legislation.
Now this kind of an approach is not without critics and so
when Mr. Raybould comes before us today to offer testimony, I
will ask him some questions relating to this particular project
and what it means to the upper valley area of southeastern
Again, Mr. Chairman, thank you very much. Reclamation
projects are important to the West and in a time of drought, we
learn that lesson all over again. And I know your State and
mine, but yours especially is experiencing very short water
years this year, as is true of other States in the upper
midwest. Again, thank you very much.
Senator Dorgan. Senator Craig, thank you very much. We have
Senator Crapo with us today, as well as Senator Baucus, and if
the two of you would wish to make statements at the start of
the hearing, we would be happy to receive those statements. Why
don't you please take seats at the witness table. Senator
Baucus, we will recognize you first, followed by Senator Crapo.
Your entire statements will be made part of the record and you
STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR
Senator Baucus. Thank you very much, Mr. Chairman and
Senator Craig. I am here to testify on behalf of S. 934, a bill
introduced along with my colleague, Senator Burns. This
legislation authorizes the North Central Regional Water System
construction project and addresses the lack of water, lack of
quality water supply for the Chippewa Cree tribe and six
additional counties in Montana: Chouteau, Hill, Liberty,
Pondera, Teton, and Toole Counties.
I also would like to extend a very warm welcome to those
Montanans who have traveled great distances. Of those, some of
them here that you have referred to, Mr. Chairman, have come
great distances, and I would like them all to stand when I
mention their names.
Dan Keil, who is chairman of the North Central Montana
Regional Water Authority. Stay standing. Bruce Sunchild, and
Dan Belcourt with the Rocky Boy, and also Dave Jones, who is
the co-chair of the North Central Montana Regional Water
Authority. These folks, and I know all of them, I have known
all of them a long time. These folks are very committed. And
they've got a problem and it's up to us to help solve it. Thank
you guys, very much.
Here's the problem. The problem is that as you know, Mr.
Chairman, we're in the part of the country west of the 100th
Meridian where it doesn't rain. You know, there is about 40
inches of annual precipitation back here in Washington, D.C. It
gets pretty muggy sometimes in the summers, as we all know. But
in our part of the country, particularly western North Dakota,
you and I have discussed this, Mr. Chairman, along with eastern
Montana, it is just dry. It is part of our country that just
does not get very much rainfall. That's number one.
And number two, our State per capita income is down at the
bottom of the barrel statewide. You can guess what it's like in
eastern Montana, like I'm sure it is in western North Dakota.
Sixty years ago Montana ranked 10th in the Nation in per capita
income. We're now 47th. So we are struggling, there is not a
lot of water, it doesn't rain very much, we are in a drought
situation, we are low income, and we just need some help here.
And I might say that all of us here are working for
everybody in Idaho, in North Dakota and Montana--I had six of
them stand up, but we all have people in our own States that we
could have stand up, but it's up to us to find a solution.
Just picture this. What was it like during the 1930's when
there was no water, you know, drought? You had to go carry
water great distances, trying to find drinking water. There
just wasn't any. And even before that, the west was developed,
there was just no running water, no drinking water.
Now of course we have some areas of our State, or of all of
our States, that have water supplies. But when drought
conditions occur, it is just so much worse than it otherwise
has been in the past. In addition to that, there are systems in
Montana, water systems, which are on EPA's short list, that is,
if they don't get their act together, EPA is going to start
citing them for contamination reasons or pollution reasons, and
that's just because there is so little water and it's over
subscribed, and we just need to get water systems to these
locations, particularly Rocky Boy and also the surrounding
private communities, which leads me to another point.
This is a joint partnership, this is not just water systems
for the Rocky Boy and is the case in other parts of Montana for
systems for the tribes. This is joint. This is people on and
off reservation working together, because they all need water
and they all need water desperately, really desperately. And to
make this a little more poignant, there's a source, it's called
Tiber Dam, it's close by. And so the idea is to take water from
Tiber and put it into the system. It's a joint system strongly
supported by members and non-members, by the surrounding
The only problem, of course, is really twofold. One I might
say, I have highest respect for the Bureau of Reclamation, but
all agencies get a little bit stuck in their ways. I don't
fault them because everybody who works for the Federal
Government, 99 percent are trying to do a good job, they are
trying to do what's right. I'm not one of these people that
bashes Federal employees, I just don't go in for that, because
I know they try hard.
But I also know, because we all know it from experience,
that all organizations, public and private, sometimes get a
little bit hide bound and you've got to light a little fire
under their feet to get them going, and that's what we have to
do here with the BOR but in a cooperative way, a tone of
working together with both the tribe and the non-tribal
members, and the same approach should be taken here with BOR,
and of course it's finding the resources to get this project
I strongly encourage your committee, with all due deference
and respect, Mr. Chairman, to work with me and with Senator
Burns, and with Congressman Rehberg over in the House, to
figure out a way where we can skin this cat. Let's get started
here. Let's get this project going, because it is so
desperately needed. And if we could get it going, at least the
authorization by this year, it would make a great deal of
difference to an awful lot of folks and has been said in other
contexts, it would be a good down payment. Thank you, Mr.
Senator Dorgan. Senator Baucus, thank you very much. Well
STATEMENT OF HON. MIKE CRAPO, U.S. SENATOR
Senator Crapo. Thank you, Mr. Chairman and Senator Craig
and Senator Burns, Senator Baucus and members of the committee.
I appreciate the opportunity to testify before you today on S.
2556, the Fremont-Madison Conveyance Act. I want to
particularly express my appreciation to Senator Craig, my
colleague from Idaho. He and I as cosponsors of this
legislation, have worked on it a long time, and hopefully we
are at the point where we have worked through all of the
wrinkles and we are at a stage where we can proceed now
expeditiously to facilitate this title transfer.
I also want to express my appreciation to Mr. Jeff
Raybould, who is the president of the board of directors of
Fremont-Madison Irrigation District, who will be testifying
today on a later panel. Jeff will be providing a fuller account
of the history of FMID's operations and the development of this
conveyance proposal, so I will keep my remarks here brief.
S. 2556 would require the Secretary of the Interior to
convey title to portions of the district, namely the Cross Cut
Diversion Dam, the Cross Cut Canal, and the Teton Exchange
Wells. These are currently under the ownership of the Bureau of
The district has managed these facilities since their
creation in 1938, and by all accounts has done an excellent job
of maintaining and operating the facilities. FMID also has a
strong record of working within the community to manage the
facilities in a manner that reflects and complements the unique
ecological surroundings in which they reside.
Over the past few years, representatives of the district
have worked with local citizens, agriculture interests, the
Bureau of Reclamation, and conservation groups to create a
transfer agreement that would be acceptable to all interested
parties, and we do have some further discussion to have which
I'm sure Senator Craig will engage in today to clarify the
issues, but I commend all of the parties for their work on such
a delicate and complex process, and I look forward to
continuing work with them as this legislation proceeds through
the legislative process.
Mr. Chairman, this measure is critically important to the
people of eastern Idaho and reflects the spirit pioneered by
this committee in partnership with the Bureau of Reclamation to
advance previous title transfer proposals. I commend your
leadership in calling this hearing and offer my services to the
committee as it works forward to enact this provision. Thank
you very much, Mr. Chairman.
Senator Dorgan. Senator Crapo, thank you too for your
consideration today and your contributions. Do you have any
questions, Senator Craig, or Senator Burns?
Senator Burns. No, I have no questions.
Senator Craig. Where is Rocky Boy on the map?
Senator Baucus. North central Montana.
Senator Dorgan. Closest town that I might recognize?
Senator Baucus. Havre.
Senator Craig. Okay, thank you. I appreciate it.
Senator Baucus. I note that the entire Idaho Senate
delegation is here, which shows the importance of that project,
and the entire Montana Senate delegation is here, showing the
importance of this Montana project.
Senator Dorgan. Well, I know how hard both delegations have
worked on these issues, and your participation at our committee
hearing today is much appreciated. We understand that you have
other things to do, so we will let you go and we will be
hearing from your constituents in a bit, but thank you for your
Senator Baucus. And we will let you get this passed. Thank
Senator Dorgan. Thank you very much. Next we call the
Honorable John Keys, Commissioner of the Bureau of Reclamation;
the Honorable Charles G. Groat, Director, U.S. Geological
Survey. As they come forward and take their seats, let me call
on Senator Burns.
Would you have an opening statement, Senator Burns?
STATEMENT OF HON. CONRAD BURNS, U.S. SENATOR
Senator Burns. Mr. Chairman, thank you very much for
holding this hearing today. We appreciate that very much, and I
will put my full statement in the record to shorten the time.
We want to hear from the witnesses.
We want to thank the delegation that came in from Montana,
both the folks who represent the water district up there, the
newly formed water authority, and of course those folks, this
means a lot for the folks on the reservation and we hope that
this gets funded and gets done right away, and I appreciate you
having this hearing and thank you very much.
[The prepared statement of Senator Burns follows:]
Prepared Statement of Hon. Conrad Burns, U.S. Senator From Montana
First, I would like to thank the Chairman of this Subcommittee,
Senator Dorgan, for holding this hearing. This project has been a long
time in the making, and I am happy to be here today.
I would like to welcome our witnesses from Montana, Dan Keil and
Bruce Sunchild, Sr., who have been two of the most actively involved
members of the coalition that has built this proposal. Dan Keil is
speaking on behalf of the North Central Montana Regional Water
Authority, and Bruce Sunchild is speaking on behalf of the Chippewa
Cree Tribe of the Rocky Boy's Reservation. Additionally, I would like
to thank BOR Commissioner John Keyes for being here today and for his
attentiveness to this and other Montana issues.
The Rocky Boy's/North Central Water Project will bring a safe,
reliable water supply to about 19,000 people spread across 10,700
square miles in 8 Montana counties. That's a lot of space, without much
water. Groundwater in north central Montana is very sparse, and many of
these communities are heavily burdened with poor water quality,
unreliable sources, and changing federal drinking water regulations.
Several of these communities are currently are under threat of
administrative action by the Montana DEQ for non-compliance to Safe
Drinking Water Standards. Without upgrades, these communities will be
This has been a long and complicated process, but through it all,
the cooperation of the members has been very impressive. The Chippewa-
Cree tribe, the State of Montana, and the United States negotiated
agreed a water compact in the 106th Congress and we passed Public Law
106-163 which identified a 10,000 acre-foot water right at Lake Elwell,
or Tiber Dam, and provided $15 million for upgrades to the tribal
municipal water system. I was glad to be a part of that process and
sponsored the legislation. Now it is time to connect those two pieces.
At the same time, the Rocky Boy's water compact was being
negotiated, a group of communities in the region were determining how
to best meet their community water needs at a reasonable cost, and the
North Central Regional Water Authority was created. The Tribe and the
North Central Authority worked together very well and have produced an
effective solution that will help strengthen the region's water supply
The State of Montana has played a large role in this process as
well and has been very supportive of this process. The Montana
Legislature created a mechanism to fund the State share of regional
rural water projects in 1999. The Treasure State Regional Water Fund
has now grown to over $8 million and will continue to receive $4
million a year until 2016. Earnings for this fund will be used as state
matching funds for federal dollars.
The State, local, and federal involvement in this project has been
extensive and has produced a very good result. I support this project
and am glad to be part of it. I look forward to hearing the testimony
of the witnesses.
Senator Dorgan. Commissioner Keys, thank you so much for
being with us, and we will include your statement in its
entirety in the record. Why don't you proceed to summarize.
Mr. Keys. Mr. Chairman, I am testifying on five bills
today; is there any certain order that you would prefer me to
take them, chronologically or whichever?
Senator Dorgan. Well, does any part of your testimony have
greater merit than other parts?
Mr. Keys. No, sir, they're all very important.
Senator Dorgan. Well then, why don't you proceed at your
STATEMENT OF JOHN W. KEYS III, COMMISSIONER, BUREAU OF
RECLAMATION, DEPARTMENT OF THE INTERIOR
Mr. Keys. Yes, sir. Mr. Chairman, I would ask that all of
the statements be included in the record.
The first one is S. 934, which would require the Secretary
of the Interior to construct the Rocky Boy North Central
Montana Regional Water System in north central Montana. The
administration supports the goal of assuring a safe and
reliable water supply for the Rocky Boy Reservation and other
communities in north central Montana. We recognize that this
area is historically water short, and with water quality and
water infrastructure concerns, and we understand that some of
the communities are facing safe drinking water standard
However, we cannot support S. 934 as introduced. We have
several concerns that I will try to outline for you. First,
section 2(a)(2) states that the United States has a trust
responsibility to insure that adequate and safe water supplies
are available to meet the needs of the reservation. Such
provision would cause large problems with respect to Federal
liability. It would make the United States responsible for
providing domestic water systems on the reservation, something
that has not been envisioned before now.
Second, the proposed bill would provide an inequitable cost
share requirement for parties to the construction. It would
call for perpetual Federal financial and management obligations
for both construction and operation and maintenance of the
system, and it would be in conflict with the 1944 Flood Control
Act in allowing the use of project use power from the Pick
Sloan Missouri basin program for non-irrigation purposes.
Third, S. 934 contains provisions that would replicate
activities already required and underway under the Settlement
Act, Public Law 106-163. Section 203 of that Settlement Act
authorized a regional feasibility study for north central
Montana. That study is underway to evaluate water and related
resources in north central Montana. It's a comprehensive study
that is looking at water supply and needs by the agricultural,
municipal, rural, and industrial water users. The appraisal
level scoping document is scheduled for completion in October
of this year with the final planning report due in 2004.
Section 202 of the Settlement Act authorized a municipal,
rural and industrial feasibility study to evaluate alternatives
for water supply for the Rocky Boy reservation. The tribe
released a draft report of this study in July 2001. We are
currently working with the tribe to complete that study.
And fourth, several other provisions of S. 934 are also
inconsistent with the Settlement Act. They involve the water
source for the tribal and non-tribal communities, financial
arrangements for the non-tribal obligations, and other
provisions of Reclamation law.
And finally, we're concerned about the strain on
Reclamation's budget that S. 934 would cause. It would
authorize another $180 million to be spent on the project. Many
times over the last 15 years Reclamation has been put in the
awkward position of opposing projects that try to solve
untenable situations, yet millions of Americans still live
without safe drinking water. Congress has authorized us to
develop nearly a dozen single purpose, MR&I projects from rural
communities throughout the Western United States.
These projects will cost more than $2 billion to build, and
most were developed from feasibility studies with little or no
input from Reclamation. In other words, we just pass the money
through from Reclamation to the developers. While each is
different in its terms, many share common problem areas,
inequitable Federal cost share provisions and responsibility,
and the responsibility for operation and maintenance.
We need to work together, the administration, Congress, the
States, the tribes, and the water users, to identify these
elements and try to put together a program that would take care
of those situations.
Now certainly we appreciate the help from Mr. Burns and Mr.
Baucus in trying to address these. The administration believes
that S. 934 is premature at this time. I would certainly like
to reiterate Interior's support for implementing the Rocky Boy
Water Rights Settlement Act, and our support for finding a way
to meet domestic water needs in north central Montana.
Mr. Chairman, S. 1557 would amend Public Law 106-576 by
authorizing 15 additional projects in the Lower Rio Grande
Valley of west Texas. It would also increase the authorization
for report preparation to $8 million, institute a 50 percent
cap on Federal report preparation costs and increase the
authorization for project funding to $47 million.
The Department appreciates and supports efforts by the
irrigation districts in the Lower Rio Grande Basin to improve
and encourage water efficiency and to responsibly manage water
supplies in the border region during the severe drought that
exists in that area now. Under Public Law 106-576 Reclamation
has worked successfully and cooperatively with local entities
in the basin, the Texas Water Development Board and the Texas
Agricultural Extension Service to develop the necessary
criterion to administer the law and determine project
feasibilities and eligibilities for Federal funding. We
continue to work with the districts to complete the studies for
the first four authorized projects. So far, so good. We are
also working cooperatively on field tests to try to control
several noxious plants in the canals of the area, hydrilla and
Mr. Chairman, our concern with S. 1557 is that it
authorized 15 new projects without first having feasibility
studies completed for them and their not have been having been
reviewed by Reclamation for adequacy. We are very concerned
about the effects of the water shortage in Texas and certainly
in the Rio Grande Valley, and we would commit to maintain the
work that we're doing with them now to complete those studies
that are underway, to complete the construction of those four
authorized projects, and then do some studies on those others
to be authorized at some future time.
Mr. Chairman, S. 1882, an amendment to the Small
Reclamation Projects Act of 1956, would authorize $1.3 billion
for three new programs, revise and expand the grant and loan
program of Reclamation, create a Small Reclamation Water
Resources Management Partnership Program, and establish a 10-
year loan guarantee program.
Our Department recognizes the reality of aging Federal and
non-Federal water infrastructures that will need rehabilitation
during the next several decades. We understand the many other
future needs for ecosystem restoration, new water supplies, and
improvements for the quality of our rivers and streams.
The Department supports these efforts and has programs that
work in many of these areas. We are also most interested in
workable effective ways to protect our water supplies, water
quality, and aquatic habitats. However, the programs that would
be authorized by S. 1882 would strain Reclamation's financial
and administrative resources. If enacted, it would even make it
difficult to meet many of our existing obligations. Therefore,
the Department cannot support S. 1882.
We have several specifics. It would be a very costly
program, requiring new and significant funding resources that
would compete with other departmental funding priorities. It
would greatly expand Reclamation's authority and jurisdiction
to include projects not only in the 17 Western States and
Hawaii, but would also include those in Puerto Rico, Guam,
American Samoa, the Northern Mariana Islands, the Virgin
Islands, and islands of the Pacific Territory. This large
expansion would tax Reclamation's budget and work force much
beyond its current limits.
Establishment of a loan guarantee program in Reclamation
also has many concerns. It would take quite a while to get up
and running and it would require additional expertise and
staffing. New principles and standards would have to be
developed for the program and compliance with the Federal
Financial Management Act of 1996 would have to be insured. It
would also put us in the role of a commercial loan officer, a
role that our inspector general has been critical of in the
Mr. Chairman, there is a great deal of public interest in
the small loan program. We field inquiries on that program
regularly. The Department supports effort to provide technical
assistance to the water users. However, the combined financial
and administrative burdens imposed by S. 1882 are such that we
cannot support this approach. We would certainly welcome the
opportunity to work with you and the committee to find an
alternate way to do that, or maybe dust off one of the old
programs that we already have authority to use in doing that.
Mr. Chairman, S. 2556, the Fremont-Madison Conveyance Act,
would transfer title to the Cross Cut Diversion Dam and Canal,
the Teton Exchange Wells and the Idaho Department of Water
Resources permit number 22-7022, for those wells to the
Fremont-Madison Irrigation District in eastern Idaho.
The Cross Cut Diversion Dam and Canal are paid-out
facilities with their irrigation assessments completed in 1979.
The legislation provides for the payment for the Teton Exchange
Wells and permit, currently valued at $277,961.
The Bureau of Reclamation has worked closely with the
Fremont-Madison Irrigation District over the past few years to
settle the issues involved with the title transfer for the
facilities and the permit. We are very close to agreement on
this bill. While there are still a couple of issues to solve,
the Department could support S. 2556 with a couple of technical
First, section 3(a) of S. 2556 requires the district to pay
the administrative costs of the title transfer and related
activities, including the cost of any NEPA review. It also
limits the district's contributions toward these administrative
costs to $40,000. In September 2001, Reclamation and the
district signed a memorandum of agreement which called for each
party to pay 50 percent of costs associated with applicable
procedural requirements. The MOA also calls for the district to
pay for applicable surveys, title searches, facility
inspections and development of a quit claim deed and other
legal documents. Section 3(a) is not clear on which of these
activities are subject to the $40,000 limitation. We believe
the MOU signed by both of us should be honored and that the
limitation be eliminated from the bill.
Section 2(a) of S. 2556 requires that the title transfer be
completed no later than the termination date of the MOA, in
other words, September 13, 2003. Section 2(d)(1) states that
the transfer should be done as soon as practicable. We would
appreciate clarification, preferably using the language ``as
soon as practicably.''
Mr. Chairman, we have worked closely with the district in
trying to get this title transfer done. We think it's a good
title transfer and certainly are willing to work with you on
the few details so that we can get on and get this done.
Certainly Mr. Raybould and Dale Swenson, their manager there,
have been great people to work with and we certainly appreciate
the support of Mr. Craig and Mr. Crapo in getting this one
Mr. Chairman, S. 2696 would clear title to certain real
property associated with the Middle Rio Grande project in New
Mexico. The Department is not adverse to transferring the San
Gabriel and Tingley Beach property parcels to another entity.
However, there is a current ongoing lawsuit before the U.S.
Court for the District of New Mexico over the disputed
ownership of these parcels.
We believe the most prudent course of action is to allow
the Court to give its decision on the disputed lands before
instituting a legislative remedy. Therefore, the Department
cannot support S. 2696 at this time.
With respect to the city of Albuquerque's request to make
improvements on the property, Reclamation has issued a license
to the city that allows the use of those lands as proposed in
its improvement plans.
Mr. Chairman, while there is disagreement with the Middle
Rio Grande Conservancy District on the title to these lands,
the district is a good and valuable partner on this project.
They have retired their debts to the United States. While we
believe that it is best to wait on the Court's decision to
settle this matter, we are open to working with all of the
parties to find an acceptable solution.
That concludes the formal statements and I would certainly
stand for any questions you night have.
[The prepared statements of Mr. Keys follow:]
Prepared Statements of John W. Keys III, Commissioner of Reclamation,
Department of the Interior
My name is John Keys. I am Commissioner of the U.S. Bureau of
Reclamation. I appreciate the opportunity to provide the
Administration's views on S. 934, legislation to require the Secretary
of the Interior to construct the Rocky Boy's/North Central Montana
Regional Water System, in the State of Montana.
The Administration supports the goal of assuring a safe and
reliable water supply for both the reservation and the non-reservation
communities in north-central Montana. We recognize that north-central
Montana is an historically water-short basin, with water quality and
water infrastructure concerns. We understand some of these communities
may be facing Safe Drinking Water standard violations. However, the
Administration cannot support S. 934, as introduced, because it imposes
new responsibilities to provide domestic water both to the Rocky Boy's
Reservation, inconsistent with the recent settlement, and to non-Indian
communities under provisions that are inconsistent with Administration
In considering S. 934, it is necessary to revisit briefly Public
Law 106-163, the Chippewa Cree Tribe of the Rocky Boy's Reservation
Indian Reserved Water Rights Settlement and Water Supply Enhancement
Act (Settlement Act). The purposes of the Settlement Act are to achieve
a ``fair, equitable and final settlement of all claims to water rights
in the State of Montana for the Chippewa Cree Tribe.'' The Department
has been strong in its support of the Settlement Act and its
implementation; Reclamation is authorized to fund $29 million and the
Bureau of Indian Affairs is authorized to fund $21 million for a total
settlement of $50 million. These monies are for multiple economic and
water development activities on the reservation, and include $15
million for municipal, rural and industrial water needs of the Tribe.
We have numerous concerns with S. 934: first, the ``Finding'' of
section 2(a)(2)--which states that the United States has a trust
responsibility to ensure that adequate and safe water supplies are
available to meet the needs of the Reservation. As written, S. 934
indicates that Congress intends to make the United States responsible
for providing domestic water systems on the Reservation, including
potential liability for money damages if such duty is not met. This
commitment could have serious adverse legal consequences with respect
to Federal liability.
The Administration also has concerns about (1) the strain on
Reclamation's current budget; (2) the inequitable cost share
requirement; (3) the potentially perpetual Federal financial and
management obligation for both construction and for operating and
maintaining the system; and (4) the proposed use of project use power
from the Pick Sloan Missouri Basin Program (PSMBP) for non-irrigation
purposes. I will submit separately a more detailed analysis of these
and related technical issues.
Several provisions in S. 934 are inconsistent with the Settlement
Act and Reclamation policy. For example, the Settlement Act recognized
a Tribal right to a 10,000 acre-feet per year permanent allocation from
Reclamation's Tiber Reservoir (Lake Elwell), without cost to the Tribe.
Thus, under the Settlement Act, costs incurred by the Federal
Government for the design and construction of the reservoir are not
passed on to the Tribe, nor is an annual operations and maintenance
charge assessed, which is otherwise standard procedure under
Reclamation Law (via water service and repayment contracts). S. 934 is
not clear what the water source would be for the pipeline. Any
authorization should provide that the tribal supply will be the 10,000
acre-feet Tiber allocation already held by the Tribe. If future
supplies for the non-tribal communities are to come from Tiber water,
the beneficiaries should pay their proportionate capital costs for the
reservoir and the pipeline, as well as operation and maintenance costs.
Across the 17 western states, current municipal & industrial (M&I)
beneficiaries at Reclamation reservoirs pay these costs, and with
Two other examples of how S. 934 is inconsistent with the
Settlement Act pertain to the extent of federal financial
responsibility. Section 201(d) of the Settlement Act states explicitly
that ``The United States shall have no responsibility or obligation to
provide any facility for the transport of water allocated by this
section to the Rocky Boy's Reservation or to any other location. Except
for the contribution set forth in section 105(a)(3), the cost of
developing and delivering the water allocated by this title or any
other supplemental water to the Rocky Boy's Reservation shall not be
borne by the United States'' (emphasis added). In contrast, S. 934
places the total cost of the tribal portion of the system on the United
States, including the upsizing necessary to serve the North Central
Montana Water Authority.
With regard to the Rocky Boy's Reservation needs, the Settlement
Act authorizes $15 million for the planning, design, construction,
operation, maintenance, and replacement of a future water supply system
for the Reservation. Sec. 105(a)(3) of the Act states that these funds
are ``for the total federal contribution'' (emphasis added) to such a
system. In contrast, S. 934 would authorize the Secretary of the
Interior to assist the Chippewa Cree Tribe on the Rocky Boy's Indian
Reservation to plan, design, construct, operate, maintain, and replace
the Rocky Boy's Rural Water System. In addition, it would authorize
federal assistance to the North Central Montana Regional Water
Authority for the planning, design, and construction of the non-core
rural water system off the reservation. The bill would authorize
appropriations of at least $120 million for the core system on the
Rocky Boy's Indian Reservation (not including the Federal obligation
for operations, maintenance and replacement (OM&R)). Further, S. 934
would authorize at least $60 million for the non-core system that
provides water deliveries to areas that are not on the reservation.
Finally, S. 934 contains provisions that replicate activities
already required--and underway--under the Settlement Act. Section 203
of the Settlement Act authorizes a regional feasibility study for North
Central Montana. Since the rural water project proposed by S. 934 is a
smaller portion of the region encompassed by the study, we believe that
consideration of S. 934 is premature until the regional feasibility
study is final. Further, other Indian water rights settlements in the
basin are being negotiated. Until those settlements are concluded, it
is not clear what the relative demands and needs of the basin will be.
The regional feasibility study to be conducted under section 203 of the
Settlement Act will produce a comprehensive analysis of the region's
water needs, and will provide Congress with an informed context as it
considers legislation on further rural water development in north-
Also, Section 202 of the Settlement Act authorized a municipal,
rural, and industrial study requiring that multiple alternatives be
brought forward at the feasibility level, so all parties to the
settlement could make informed decisions. To implement section 202 of
the Act, the Tribe released a draft feasibility study in July 2001, and
Reclamation is working with the Tribe to complete the study.
Reclamation emphasizes that the intent of Section 202--a thorough
evaluation of the feasibility of multiple alternatives--must first be
met, so decision makers can make informed decisions.
Previous efforts to address the water needs of rural communities
have taken a piecemeal approach, without a programmatic basis. This has
resulted in a number of common problems. The authorized Federal cost-
shares have been inequitable, and the authorized Federal obligations
for facility operations and maintenance are unsustainable.
Additionally, expectations on the part of communities with authorized
projects become frustrated because of delays due to inadequate
available resources. I suggest a more comprehensive approach. We need
to work together--the Administration, the Congress, the States, and the
stakeholders--to provide safe drinking water for rural America. We need
to identify the appropriate Federal and non-Federal roles in providing
this water, to evaluate the appropriate role to be played by the
numerous Federal and non-Federal agencies involved with developing
municipal, residential, and industrial water in rural and small-town
America. This is a priority for me and this Administration. I look
forward to working with the Committee and Subcommittee to formulate a
programmatic approach to rural water issues.
In conclusion, Mr. Chairman, the Administration believes that S.
934 is premature. However, I would like to reiterate the Department's
support for implementing the Rocky Boy's Water Rights Settlement Act as
well as our support for finding a way to meet the domestic water supply
needs of north-central Montana. As such, we would like to work with
Senator Burns and the rest of the Montana delegation, the Committee,
the Tribe, and the project sponsors to work through these difficult
issues in a manner that addresses the needs of Montana and the
interests and concerns of the Department.
S. 1577/ H.R. 2990
My name is John Keys and I am the Commissioner of the Bureau of
Reclamation. I am pleased to present the Department's views on S. 1577
and H. R. 2990, which amend P.L. 106-576, the Lower Rio Grande Valley
Water Resources Conservation and Improvement Act of 2000 and to discuss
water issues in the Lower Rio Grande Valley. Given that both bills are
nearly identical, my comments will apply to both measures.
S. 1577 and H.R. 2990 aim to provide areas in Texas that are facing
a drought, with some important water saving measures. The Department
lauds efforts to improve and encourage water efficiency, and to
responsibly manage water supplies in the border region. The
Administration, the Department of the Interior and the Bureau of
Reclamation (Reclamation) share the concern of the Committee, the State
of Texas, and the water users over the severe water shortages that
exist in this area. The Administration supports the goals to amplify
and make more efficient use of the current water supply. The
Administration is committed to working with the Committee to
effectively address these water supply concerns.
These bills would amend P.L. 106-576 by authorizing 15 additional
projects in West Texas and in the Lower Rio Grande Valley of Texas. S.
1577 and H.R. 2990 would increase the authorization for report
preparation to $8,000,000, institute a 50% cap on federal report
preparation costs, and increase the authorization for project funding
The Department of the Interior testified in general support (with
some suggested revisions) of the legislation that became P.L. 106-576.
These measures appear to maintain the intent of the existing law while
authorizing additional projects and increasing the funding ceilings.
However, given the numerous other demands on Reclamation's budget and
the number of already authorized but unfunded projects, we have
concerns about adding additional projects to Reclamation's workload at
this time. We also have concerns over the lack of Administration review
in the process for projects in this bill. The Administration does not
support authorizing projects that have not undergone Administration
review. It is important to note that appropriations will be needed in
order to implement the original Act and any new authorizations.
Reclamation Background in the Lower Rio Grande
The Department's involvement with the Lower Rio Grande irrigation
districts dates back almost 50 years when Reclamation began cooperative
efforts to modernize facilities and improve water use efficiency.
Beginning in 1954, investigations identified the need for
rehabilitation of existing distribution systems and construction of
main drain outlets for the La Feria and Mercedes Districts. Public Laws
85-370 and 86-357 authorized the rehabilitation projects for La Feria
and Mercedes districts respectively. Rehabilitation of the diversion,
distribution, and drainage systems were accomplished through contracts
among the local entities and Reclamation. Both the La Feria and
Mercedes districts have paid out their repayment obligation associated
with their projects and Reclamation is currently in the process of
returning title to the La Feria lands conveyed to the United States as
part of their contractual obligation. In addition, Reclamation entered
into contracts with numerous irrigation districts in Harlingen, Hidalgo
and Cameron counties pursuant to the Small Reclamation Projects Act of
1956. All contracts are now paid out, with Donna Irrigation District
being the most recent to fulfill its repayment obligation in 2001.
Through the years, Reclamation has also prepared technical reports
covering water conservation and basin studies to identify specific
problems and needs of the area. For example, in September of 2000,
Reclamation sponsored a Water Conservation Field Services workshop in
Weslaco, Texas to present current information and technology updates to
local irrigation districts regarding water measurements, management,
In December 2000, the Lower Rio Grande Valley Water Resources
Conservation and Improvement Act was signed into law and became P.L.
This legislation was an effort to provide some important water
saving measures to an area of Texas that had suffered from drought.
Briefly, the law directed the Secretary, acting through the
Commissioner of Reclamation, to undertake a program, in cooperation
with the State of Texas, water users and other non-Federal entities, to
investigate and identify conservation and efficiency improvement
opportunities. This was to include review of studies or planning
reports prepared outside of Reclamation and the evaluation of
alternatives such as lining irrigation canals and increasing the use of
pipelines and other water delivery facilities.
Within six months of enactment, the Secretary was to develop and
publish a set of criteria to determine which projects would qualify and
have the highest priority for financing. P.L. 106-576 provided certain
minimum criteria and required the Secretary to make a determination of
whether the project meets the criteria within a year of submittal of a
request. The law also outlined the report, plan and cost-sharing
requirements a project sponsor would need to fulfill to secure federal
funding. The law authorized four projects and $10,000,000 for their
construction if they later met these criteria and project requirements.
The federal cost share was capped at 50% of any construction, with up
to 40% to be contributed by the State. The remainder of the non-federal
share was authorized to include in-kind contributions of goods and
services, including funds previously spent on feasibility and
Since enactment of the bill, Reclamation has been working
successfully and cooperatively with local entities in the Lower Rio
Grande, the Texas Water Development Board, and the Texas Agricultural
Extension Service of Texas A&M University on its implementation. As
noted, a requirement of P.L. 106-576 was issuance of criteria by which
Reclamation would administer the law and determine project eligibility
for federal funding. Reclamation prepared and shared criteria with
state, local and other federal entities. The criteria were finalized in
late June 2001, within the six month time frame provided in P.L. 106-
Reclamation also has worked closely with those districts involved
in the four authorized projects and with the Texas Water Development
Board to address funding necessary to begin planning, designing, and
reviewing the project plans and reports. Funding for Reclamation to
begin preparation of a project plan and report has been advanced from
one district. Three other districts are funding similar work by
consultants. To date, three projects have been submitted to
Reclamation. The authorized projects in the original bill have not been
appropriated Federal funds.
Reclamation will continue its efforts to implement the Lower Rio
Grande Water Resources Conservation and Improvement Act of 2000 to help
make the most efficient use possible of the available supply.
Reclamation is also working with several entities in the Valley to
field test various methods of controlling water hyacinth and hydrilla.
These noxious plant species are spreading rapidly and are increasingly
clogging irrigation district canals and intakes to pumping plants--all
of which greatly restrict the flow of water both within the irrigation
systems and in the Rio Grande as well.
The Department's activities in the Lower Rio Grande Valley are
important components of government service in the area, but they are
only one part. We applaud the many efforts taken by universities, state
and local governments, and other federal agencies. We pledge to
continue the Departments coordination and cooperation as we all work
together to conserve the water resources that are in such short supply.
S. 1577/H.R. 2990
Project Authorization: Under P.L. 106-576, projects would include
on-farm activities to enhance water conservation, such as water
application metering, concrete lining of canals and other irrigation
system management improvements. The proposed legislation would continue
these activities and also enable the Secretary to use cooperative
agreements to work with the State of Texas, non-Federal entities, and
institutions of higher education, to develop educational programs and
establish on-farm training programs for state-of-the-art water
application and conservation techniques. We are concerned that this
bill, like the earlier bill, authorizes projects without first
undergoing the Administration review required by Executive Order 12322.
Project Eligibility Requirements: In 2000, the Commissioner of
Reclamation testified on the legislation that became P.L. 106-576,
stating that funding and eligibility decisions should be made on the
basis of the relative costs associated with water conservation
opportunities. The amendments presented in S. 1577 and H.R. 2990 adopt
the criteria established by Reclamation under the 2000 legislation. The
Department supports this approach, as it provides more certainty to
applicants by ratifying Reclamation's standards in law.
One aspect of improving efficiency is ensuring that the
improvements made provide the highest return. Reclamation's guidelines
will assist in that. However, given that the authorization level is
proposed to increase to $47 million, it also may be appropriate to
analyze the projects (or sets of projects) in the context of the
established Principles and Guidelines. A simplified approach to the
analysis could possibly be used, such as a recent model for this area
prepared by Texas A&M University as a potential tool for evaluating
projects in the Lower Rio Grande Valley.
Funding and Cost Sharing: The cost sharing provisions adopted in
P.L. 106-576 establish a 50 percent federal maximum for construction
costs. These bills would amend Section 4 (b) of P.L. 106-576 to
stipulate that the 50 percent federal maximum be applied to total
project costs (e.g. studies, designs, reviews, approvals, construction)
rather than just construction. This change would simplify the
application of cost sharing provisions between the federal and non-
federal contributions for completing a project. The $47 million amount
for construction is subject to further review when project reports are
Mr. Chairman, we are very concerned about the effects of the water
shortage in the Lower Rio Grande Valley and we recognize the importance
of improving the efficiency of water use and delivery in this part of
the country, especially in light of the current drought conditions.
Reclamation would be happy to work with Senator Hutchison and the
Committee to continue to address the water supply problems.
My name is John Keys and I am the Commissioner of the Bureau of
Reclamation (Reclamation). I am pleased to appear before this
Subcommittee to provide the Department's views on S. 1882.
S. 1882 would amend the Small Reclamation Projects Act (SRPA) to
authorize $1.3 billion for three new programs: a revised and expanded
grant and loan program within the Bureau of Reclamation; a Small
Reclamation Water Resources Management Partnership Program; and a 10-
year loan guarantee program.
The Department recognizes the realities of an aging federal and
nonfederal water infrastructure that will need rehabilitation during
the next several decades, and understands the many other future needs
involving ecosystem restoration efforts, new water supplies for
increasing demands, and improvements in the quality of our rivers and
streams. The Department supports ongoing environmental restoration
programs, as well as water reclamation and reuse and has programs that
contribute to these areas. The Department is also interested in
workable, effective ways to protect water quality and quantity,
including aquatic habitats. However, the programs authorized by this
bill would strain Reclamation's financial and administrative resources,
and if enacted would make it even more difficult to meet our many other
obligations. Therefore, the Department cannot support S. 1882.
I note that the provisions in S. 1882 are nearly identical to those
approved by the House Resources Committee on November 11, 2001. As you
are aware, last July Secretary Norton testified before the House
Subcommittee on Water and Power on H. R. 1985, Small Reclamation Water
Resources Project Act of 2001. The Secretary expressed a number of
concerns with the SRPA provisions of H.R. 1985: Those concerns remain
true for S. 1882.
First, it would be a very costly program, requiring new and
significant funding resources to implement. It also would compete with
other Departmental priorities for funding.
Second, the bill would greatly expand Reclamation's authority and
jurisdiction to include not only projects in the 17 Western states and
Hawaii, but also those located in the Commonwealth of Puerto Rico,
Guam, American Samoa, the Commonwealth of the Northern Mariana Islands,
the Virgin Islands, and the Territory of the Pacific Islands. Given the
number of other demands on Reclamation's budget and the number of
already authorized but unfunded projects, we have concerns about adding
any additional projects to Reclamation's current workload.
Finally, establishment of a ``Loan Guarantee'' Program would
require much lead time, and also require additional staffing. The
program would need to be developed in a manner that meets the
principles and standards set forth in OMB Circular No. A-129,
``Policies for Federal Credit Programs and Non-Tax Receivables,'' and
the requirements of the Federal Financial Management Improvement Act of
1996. It also would put Reclamation in the role of a commercial loan
officer for developers of projects, a role Interior's Inspector General
criticized in a 1991 audit report.
Although the SRPA Program is currently inactive and has not
accepted new loans since 1993, there continues to be public interest in
the program, with staff occasionally receiving inquiries about possible
loan/grant funding for non-Federal small projects. The Department
supports efforts to provide technical assistance to non-Federal water
user entities in constructing and rehabilitating their water resource
projects and in carrying out restoration efforts. However, the combined
financial and administrative burdens imposed by this bill are such that
we cannot support this approach. Therefore, the Department cannot
support S. 1882. The Department welcomes the opportunity to work with
Subcommittee members to find workable solutions to address
Reclamation's aging water infrastructure and restoration needs
Mr. Chairman, my name is John Keys. I am Commissioner of the U.S.
Bureau of Reclamation. I am pleased to provide the Administration's
views on S. 2556, the Fremont-Madison Conveyance Act, which directs the
Secretary of the Interior to transfer title of certain Federal owned
facilities, lands and permits to the Fremont-Madison Irrigation
The facilities under consideration for transfer in S. 2556--the
Cross Cut Diversion Dam and Canal, the Teton Exchange Wells and the
Idaho Department of Water Resources permit number 22-7022--are
associated with the Upper Snake River Division, Minidoka Project and
the Lower Teton Division, Teton Basin Project, respectively, and are
located near Rexburg in eastern Idaho. The facilities under
consideration for transfer are used exclusively for irrigation purposes
and have always been operated and maintained by the District. While the
Cross Cut Diversion Dam and Canal are paid-out by the District, the
legislation provides for a payment for the Teton Exchange Wells, which
are currently valued at $277,961, based upon the outstanding balance to
be repaid by the District.
Mr. Chairman, over the last few years, we have been working very
closely with the District and numerous other local organizations
including the Henry's Fork Foundation, a local conservation and
sportsmen's organization, to work through the issues on the title
transfer for the features, lands and water rights associated with this
project. Over the last year, we have made great progress in narrowing
the scope of the transfer to meet the District's needs, protect the
interests of the other stakeholders, and ensure that the transfer does
not negatively impact downstream contractors of the integrated Snake
River system. While I believe that we are very close to agreement on
this legislation, S. 2556, as drafted, creates some problems and
concerns, which I will address in my statement. However, with the
technical modifications outlined below, the Department could support S.
Individuals, organizations, Federal, States and local agencies
interested in the Henry's Fork of the Snake River have a very
impressive history of collaboration and cooperation through the Henry's
Fork Watershed Council (Council)--a grassroots community forum whose
goal is to encourage management of the Henry's Fork Basin in a
socially, economic and environmentally sustainable manner. When the
District first raised the idea of title transfer, the Council dedicated
its March, 1999, meeting to this issue. This included presentations by
the District and Reclamation and fostered open discussions with any and
all groups or individuals who had comments or concerns.
Subsequently, the District and the Henry's Fork Foundation, along
with the Land and Water Fund of the Rockies engaged in a series of
negotiations to develop a mutually acceptable proposal. While that
process did not result in a concrete proposal, it did lead to some
consensus on the facilities to be transferred that are included in this
legislation. It also led to the removal of the Grassy Lake and Island
Park dams from the transfer proposal about which many local
organizations had serious concerns.
Accordingly, in September, 2001, Reclamation and the District
signed a memorandum of agreement (Contract No. 1425-01-10-3310) (MOA)
which expires on September 13, 2003, and is referenced in S. 2556. This
agreement lists the facilities to be transferred, delineates the
respective responsibilities to complete activities necessary for the
title transfer such as arrangements for the sharing of costs, valuation
of the facilities to be transferred, and responsibilities associated
with compliance with Federal and State laws.
We have, however, identified some concerns and technical issues
which I would like to raise for the Committee's consideration:
Cost Share Requirements
First, Section 3(a) of S. 2556 requires the District to pay the
administrative costs of the conveyance and related activities,
including the costs of any review required under NEPA, but limits their
contribution to no more than $40,000. This language is both unclear as
to what is or is not included as ``costs,'' nor is it in accordance
with the MOA that FMID should pay the 50% of costs associated with
applicable procedural requirements of the NEPA, ESA, and other
applicable state and federal laws required.
We agree that it is appropriate to share the costs of compliance
with Federal laws, as was agreed upon in the MOA. We also believe that
the recipients of title transfer should cover those costs that are
associated with the real estate transaction resulting from the title
transfer. In this vein, the MOA states that the District would pay for
applicable activities such as surveys, title searches, facility
inspections, and development of a quit claim deed or other legal
documents necessary for completing the transfer. Unfortunately, S.
2556, as drafted, is unclear on this point.
To address these ambiguities, we suggest that S. 2556 reference the
MOA's treatment of costs or reiterate the manner in which the
distribution of costs were addressed in the MOA. Given the amount of
work that went into developing the MOA, its applicability under S. 2556
for implementation of the transfer, and the fact that it has been
agreed upon and signed by representatives of both Reclamation and the
District, referencing the MOA on these issues would provide an
equitable, clear and consistent resolution to our concern.
Conveyance Deadline and Report
Section 2(a) of S. 2556 requires that the title transfer be
completed no later than the termination date of the MOA (September 13,
2003). However, Section 2 states that the transfer be completed ``as
soon as practicable after the date of enactment and in accordance with
all applicable law.'' These provisions appear inconsistent as Section
2(a) designates a required date certain for completion, while Section
2(d) (1) states that it be completed ``as soon as practicable,''
Further, Section 2(d) (2) requires that the Secretary submit a
report to Congress within one year of the date of enactment if the
transfer has not been completed in that time frame. This provision
seems somewhat arbitrary and could potentially delay the transfer from
the September 13, target date while the report is being prepared.
To address our concerns with inconsistent deadlines and reporting
requirements, I suggest that the legislation be modified to require
that the transfer be completed ``as soon as practicable after the date
of enactment'' and the reporting requirement in S. 2556 be modified to
require a report to Congress be completed only if the title has not
been transferred by September 13, 2003 the expiration date of MOA
referenced in the legislation. In this manner, the requirements are
made clear and consistent, and no report to Congress would be necessary
if the facilities are transferred by the MOA's expiration date.
In conclusion, Mr. Chairman, I believe we have worked closely with
the District and a great deal of progress has been made. I would like
to take this opportunity to compliment District Board Chairman Jeff
Raybould and their Executive Director, Dale Swenson, for their
diligence and commitment in working with us and the other interested
entities of eastern Idaho on the issues surrounding this transfer. I
would also like to thank Senator Craig and Senator Crapo and their
staffs for their cooperation. With the technical modifications
mentioned above, I believe the Department could support passage of this
My name is John Keys and I am the Commissioner of the Bureau of
Reclamation (Reclamation). I am pleased to be here today to present the
views of the Department regarding S. 2696, which would clear title to
real property in New Mexico associated with the Middle Rio Grande
Project and for other purposes.
The Department has some concerns with S. 2696, primarily that the
dispute over ownership of the San Gabriel and Tingley Beach parcels is
currently embodied in a pending lawsuit before the United States
District Court for the District of New Mexico. Aside from the lawsuit,
the Department also has concerns about the method in which this
legislation attempts to transfer the property. The Department is not
adverse to transferring ownership to another entity, but all parties
must agree on the venue and all applicable federal laws must be met in
the process. The Department believes the prudent course of action is to
allow the legal system to render its decision regarding the disputed
lands before instituting a legislative remedy. Therefore, the
Department cannot support S. 2696 at this time.
With respect to the City Of Albuquerque's desires to make
improvements on this property, Reclamation has provided a license to
the City which allows the use of those lands as proposed in the City's
The Middle Rio Grande Conservancy District (District) was created
by the Conservancy Act of 1923 to improve the economy of the Middle
Valley by lowering the water table and providing flood protection and
water for irrigation. In the 1940's, the District requested that
Reclamation take over the operation of the District and retire its
outstanding bonds. In September 1951, the District and Reclamation
entered into a 50-year repayment contract in the amount of $15,708,567.
A key component of the contract is Article 29, which states:
Title to all works constructed by the United States under
this contract and to all such works as are conveyed to the
United States by the provision hereof, shall as provided in
Article 26, be and continue to be vested in the name of the
United States until otherwise provided for by Congress,
notwithstanding the transfer hereafter of any such works to the
District for operation and maintenance.
Furthermore, the District acknowledged the need and desire to seek
reconveyance after their debt was repaid when it testified in 1998
before a committee of the New Mexico Legislature.
Section 5 of the bill states that ``nothing in this act shall be
construed to affect or otherwise interfere with any position set forth
by any party in the lawsuit `` It is unclear to the Department how the
passage of this legislation could not affect the lawsuit given that the
ownership of the two parcels referenced in the bill is part of the
Despite this disagreement, the District has been a good partner on
this project and has retired its debt to the United States. While we
believe that it is best to wait on the court's decision to settle this
matter, we are always open to working with all interested parties to
find acceptable solutions.
Mr. Chairman, that concludes my remarks and I would be happy to
respond to any questions the committee may have.
Senator Dorgan. Commissioner, thank you very much for your
statement. Next we will here from the Honorable Dr. Charles G.
Groat, Director of the U.S. Geological Survey.
STATEMENT OF CHARLES G. GROAT, DIRECTOR,
U.S. GEOLOGICAL SURVEY, DEPARTMENT OF THE INTERIOR
Dr. Groat. Thank you, Mr. Chairman, members of the
committee. I appreciate the opportunity to provide the views of
the Department of the Interior on S. 2773, High Plains Aquifer
Hydrogeologic Characterization, Mapping, Modeling and
Monitoring Act. The administration agrees with the committee
concerning the importance of ground-water monitoring and
coordination of monitoring efforts among Federal, State and
local entities. We especially appreciate the bipartisan efforts
to sponsor the bill and also appreciate the value that the bill
places on sound science as a guiding principle for management
Before expressing support for the bill and its goals, I do
want to mention two or three concerns that the administration
has with the bill. First, that we be sure we have explored all
possible existing programs as alternative means for
accomplishing the goals of the bill, such as the National
Cooperative Geological Mapping Act and our water partnership
program. We also want to make the committee aware that the USGS
and the Department of the Interior in the process of
restructuring and reprioritizing our strategic plans and the
programs that are adopted by new legislation or by new actions
will be subject to prioritization within that process.
And also, we just point out that this program is not
included in our 2003 President's budget and so, should it pass,
it would be subject to use of available resources during that
Also, a couple of concerns conveyed by the Department of
Justice that I want to convey to you, and that is the feeling
that sections 3 and 4 may unconstitutionally require the States
to take certain actions, and whether this language needs
review, I would just submit to the committee staff and ask them
to consider that.
The resource challenge addressed by this bill is certainly
a critical one. Irrigation water pumped from the aquifer has
made the High Plains one of the Nation's most important
agricultural areas. However, the benefits have been mitigated
to some degree by the major declines in ground-water levels and
the fact that water levels at increased pumping lists, they
also decrease well yield and put a strain on the resource,
raising concerns about the sustainability of irrigated
agriculture in many parts of the High Plains, particularly
those in the southern and central parts of the High Plains
where as much as 50 percent of the aquifer has been dewatered
in some of those areas.
The bill directs the Secretary of the Interior acting
through the U.S. Geological Survey in cooperation with, and
this is an important aspect, State geological surveys and the
water management agencies in the High Plain Aquifer States, to
establish and carry out a program of characterization, mapping,
modeling and monitoring of the High Plains Aquifer. And here
again, as I started out by saying, this underpins the value of
science in providing an understanding that can lead to wise
This would be accomplished through mapping activities,
analysis of rates at which the ground water is being withdrawn
and recharged, and changes in water storage in the aquifer. And
we would insure that data collected under this program is
consistent with Federal Geographic Data Committee standards so
that it is uniform across the whole aquifer system.
The role identified for the Department of the Interior in
the bill is consistent with the USGS's role in conducting
extensive geological mapping and ground-water investigations in
the Nation, and in this bill as in these other programs, in
cooperation with State and local partners. Furthermore, the
USGS has been active in programs in the High Plains Aquifer
system for some time. We have offices in each of the States
underlaying by the High Planes Aquifer system. These offices
have a long history of ground-water monitoring and assessment
activities within the aquifer.
In fact, in the early 1970's, the USGS carried out the
first comprehensive quantitative study of the High Plains
Aquifer through the Regional Aquifer System program. With our
partners in the cooperative water program, we continue to
provide ground-water models and evaluate present and future
state of the aquifer in some parts of the High Plains,
although, and this is the critical point that the legislation
addresses, the overall assessment of the aquifer is now over
two decades old.
And frankly, Mr. Chairman, that's not good enough. This
program this legislation defines would modernize this
assessment and would provide the necessary new information
that's needed for improved understanding. More in-depth studies
are required to determine the relevant importance of all the
factors that affect the aquifer as well as its physical makeup,
and improve the estimates of recharge, which is critical to
projecting future water levels and their response to
We recognize in doing this the need to insure that any of
our monitoring activities should complement and be coordinated
with State activities.
One suggestion we would have, Mr. Chairman, that is in
order to insure cooperation between the USGS and the non-
Federal community, we suggest that language similar to that
currently contained in the National Cooperative Geological
Cooperative Mapping Act be inserted into section 3 of this
legislation, specifically, and I quote: ``That the Federal
share of cost of activities under the State component for any
fiscal year shall not exceed 50 percent.'' This conforms to
matching requirements we have in other parts of the
In summary, a reliable source of ground water is an
essential element of the economy of the communities of the High
Plains. The goals of this bill are commendable. It contains
provisions that are well within the scope of the expertise of
the USGS and its State partners, and emphasizes a high level of
coordination between the Department of the Interior and the
States addressing an issue of significant economic concern both
to the High Plains and to the nation.
Thank you, Mr. Chairman. I would be happy to answer any
[The prepared statement of Dr. Groat follows:]
Prepared Statement of. Charles G. Groat, Director,
U.S. Geological Survey, Department of the Interior
Mr. Chairman and Members of the Committee, thank you for the
opportunity to provide the views of the Department of the Interior
(DOI) on S. 2773, the ``High Plains Aquifer Hydrogeologic
Characterization, Mapping, Modeling, and Monitoring Act.'' The
Administration agrees with the Committee concerning the importance of
ground-water monitoring and coordination of monitoring efforts among
Federal, State, and local entities. We especially appreciate the bi-
partisan efforts of the sponsors of the bill to address this important
issue and the emphasis within the bill on the need for reliance on
However, the Administration has a few concerns with this bill. The
goals of this bill can be achieved without legislation, through better
coordination of existing Federal and State programs. Further, the USGS
and DOI are in the process of revising their strategic plan; while
important, the proposed program would have to be taken into account
among all DOI priorities as the strategic plan develops. The total
costs of the proposed program are uncertain. Funding for this program
is not included in the fiscal year 2003 President's budget, and would
be subject to available resources.
Irrigation water pumped from the aquifer has made the High Plains
one of the Nation's most important agricultural areas. The intense use
of ground water has caused major declines in ground-water levels.
Water-level declines increase pumping lifts, decrease well yields,
limit development of the ground-water resource, and raise concerns
about the long-term sustainability of irrigated agriculture in many
areas of the High Plains. The changes are particularly evident in the
central and southern parts of the High Plains, where more than 50
percent of the aquifer has been dewatered in some areas.
The bill directs the Secretary of the Interior, acting through the
United States Geological Survey (USGS), and in cooperation with the
State geological surveys and the water management agencies of the High
Plains Aquifer States, to establish and carry out a program of
characterization, mapping, modeling, and monitoring of the High Plains
Aquifer. This would be accomplished through mapping of the
configuration of the High Plains Aquifer, and analyses of the rates at
which ground water is being withdrawn and recharged, changes in water
storage in the aquifer, and the factors controlling the rate of flow of
water within the aquifer. Effective coordination of the data collection
and monitoring efforts requires that any data collected under the
program be consistent with Federal Geographic Data Committee data
standards and that metadata be published on the National Spatial Data
The role identified for DOI in this bill is consistent with USGS's
leadership role in monitoring, interpretation, research, and assessment
of the earth and biological resources of the Nation. As the Nation's
largest water, earth, and biological science, and civilian mapping
agency, USGS conducts the most extensive geologic mapping and ground-
water investigations in the Nation in conjunction with our State and
local partners. Furthermore, the USGS has been active in a number of
programs and investigations that involve the High Plains Aquifer,
The USGS has offices in each of the eight States underlain by the
High Plains Aquifer (Texas, Oklahoma, Kansas, Nebraska, South Dakota,
Wyoming, Colorado, and New Mexico). These offices have a long history
of ground-water monitoring and assessment activities within the
aquifer. Existing USGS programs that are highly relevant to High Plains
Aquifer issues include the Ground-Water Resources Program, National
Cooperative Geologic Mapping Program, National Water-Quality Assessment
(NAWQA) Program, National Streamflow Information Program, Water
Resources Research Act Program, and the Cooperative Water Program.
The USGS carried out the first comprehensive quantitative study of
the High Plains Aquifer in the late 1970's through the Regional
Aquifer-System Analysis (RASA) Program. With our partners in the
Cooperative Water Program, we continue to provide ground-water models
to evaluate the present and future state of the aquifer in some parts
of the High Plains, although an overall assessment of the aquifer is
now over two decades old.
In response to the water-level declines, a ground-water monitoring
program was begun across the High Plains in 1988 to assess annual
water-level changes in the aquifer, an effort requiring collaboration
among numerous Federal, State, and local water-resource agencies. Water
levels continue to decrease in many areas of the aquifer, but the
monitoring has indicated an overall reduced rate of decline of the
water table during the past two decades. This change is attributed to
improved irrigation and cultivation practices, decreases in irrigated
acreage, and above normal precipitation during this period. More in-
depth studies are required to determine the relative importance of
these different factors and to improve estimates of recharge rates,
which is crucial to projecting future water levels and their response
to changing agricultural practices.
We recognize the need to ensure that any USGS monitoring activities
should complement State monitoring activities. In order to ensure
cooperation between USGS and the non-federal community, we suggest that
language similar to that currently contained in the National
Cooperative Mapping Act be inserted in Section 3 (2)(d)(2) of S. 2773.
Specifically, ``The Federal share of the cost of activities under the
State component for any fiscal year shall not exceed 50 percent'' (43
U.S.C. Chapter 2, Section 31 c.).
We have been advised by the Department of Justice, that Sections 3
and 4 unconstitutionally require that States take certain actions. We
recommend that the Committee examine these provisions to address the
In summary, a reliable source of ground water is an essential
element of the economy of the communities on the High Plains. The goals
of the bill are commendable, it contains provisions that are well
within the scope and expertise of the USGS, and it emphasizes a high
level of coordination between the Department of the Interior and the
States in addressing an issue of significant economic concern to the
Nation. However, the Administration has concerns with the bill and any
new funding would remain subject to available resources.
Thank you, Mr. Chairman, for the opportunity to present this
testimony. I will be pleased to answer questions you and other members
of the Committee might have.
Senator Dorgan. Dr. Groat, thank you very much.
Senator Bingaman, do you have an opening statement?
STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR
FROM NEW MEXICO
The Chairman. Mr. Chairman, let me just say briefly, there
are two bills that are part of your hearing today that are very
important to us in my State, and that I very much appreciate
you allowing to be part of this hearing.
S. 2696, the Albuquerque Biological Park Title
Clarification Act, which was put in at the request of the city
of Albuquerque and the mayor of Albuquerque, and he is here to
testify on that in one of the later panels.
And then S. 2773, that we have just been hearing testimony
on, that we think is also very important, helping to deal with
the problems in the High Plains Aquifer.
So thank you very much for having the hearing on these two
bills in particular, and I look forward to asking some
Senator Dorgan. Senator Craig.
Senator Craig. John, or Dr. Keys, you mentioned some
concerns as it relates to definition as reimbursables as it
relates to the MOA, and some other concerns about ambiguity in
the language. We will be happy to work with you and the
Department to make sure that this is well clarified before we
move it out.
Mr. Keys. Mr. Chairman, Mr. Craig, it's very easy to take
care of. We have been working with the House side and have
reached agreement with them, and we certainly think that that
can be accomplished.
Senator Craig. We will take a look at that work then. Thank
Senator Dorgan. Senator Burns, do you have any questions of
Senator Burns. I have no questions other than with
Secretary Keys, we're looking forward to working with you and
we can work out, I think, our differences up there too, John,
and we look forward to working with you on that.
Mr. Keys. Mr. Chairman, Senator Burns, we look forward to
Senator Burns. That will be great.
Senator Dorgan. Senator Bingaman.
The Chairman. Thank you very much, Mr. Chairman. Let me ask
first about S. 2696, ask Mr. Keys a couple questions about
this. I'm somewhat confused about the position the Government
is taking here, because my impression is that the impetus for
this legislation was a suggestion from the Bureau of
Reclamation that the city get legislation like this enacted.
That was the way it was explained to me. The mayor, of course,
is here to testify and he can clarify that. Let me just ask you
ahead of time.
I think his impression is that the city was asked to urge
the delegation to pursue this legislation and did, and now the
Bureau of Reclamation says they oppose the legislation, and
that's a little confusing.
Mr. Keys. Mr. Chairman, Senator Bingaman, before the
lawsuit was filed, the United States with Reclamation
representing it felt that we had title to those lands in
question, and certainly we were willing to enter into
arrangements with the city of Albuquerque to transfer those
lands to them, and that was at the time the request was made
for the legislation.
In the meantime, there was a disagreement from the Middle
Rio Grande Conservancy District that they owned the lands. They
felt that since they had paid out their agricultural allocation
of the project costs that they owned those lands. Certainly we
don't agree with that, and certainly they didn't agree with
that, so they filed a lawsuit.
What we're saying is we need to let that lawsuit run its
course before the legislation is passed. I'm not sure what
would happen if the legislation went forward and the land was
transferred without that lawsuit being decided. Not being an
attorney, I don't know what mess that would make.
The Chairman. Let me just tell you my own view on it. It's
been a while since I filed suit to quiet title, but I think the
idea of this legislation is to, as to these particular parcels,
these two parcels, to make it very clear as to what the
ownership is, and that would not affect the remainder of the
litigation, the Middle Rio Grande Conservancy District's
lawsuit and the Bureau of Reclamation dispute about that, that
would continue as to everything else. But as to these parcels,
it would clarify that in fact the city does own this land since
the city paid for it. Am I confused on that?
Mr. Keys. Mr. Chairman, Senator Bingaman, the question at
hand is whether the Bureau of Reclamation or the Middle Rio
Grande Conservancy District owns the lands. If they indeed are
Reclamation lands then we would work with your committee for
the title transfer to those lands to the city. If MRGCD owns
the lands then I think they will probably charge the city for
The Chairman. But now as I understand it, the Middle Rio
Grande Conservancy District is not the one complaining about
this litigation--I mean about this proposed legislation. They
are not disputing the right of the city to go ahead and have
ownership of these two parcels. The Bureau of Reclamation was
willing to quit claim its interests to the city for a dollar,
that was before all the litigation started.
Mr. Keys. Yes.
The Chairman. And what we are saying is let us just enact
legislation to accomplish the extinguishment of the Federal
Government's interests so that the city can own it.
Mr. Keys. Mr. Chairman, Senator Bingaman, how about if I
get one of our attorneys to come up and talk with you so that
they can explain how they felt that it would confuse the issue
if legislation is passed?
The Chairman. Yes, I wish you would do that. Why don't you,
if you could get your legal team to tell us how this is a
problem for us to pass this, because quite frankly, this
litigation may continue for a while, most litigation does, and
we believe it's important to clear up the title to this
property and we thought we could do that without any great
controversy, and then of course we found that you are in
opposition to this, which is a problem.
Mr. Keys. I would be glad to do that.
The Chairman. We would appreciate that very much.
Director Groat, let me ask you, I appreciate your comments
about the importance of this effort to better map and
understand the problem with the High Plains Aquifer, and that
of course is the purpose of the legislation. You indicate in
your testimony that you have some suggestions related to the
legislation, you mentioned some concerns. I just say to you
that we are anxious to work with you to resolve those. We think
this is important bipartisan legislation. Would you agree to
work with us over the next few weeks so that when we come back
into session in September we will be able to dispose of this?
Dr. Groat. Senator, we agree that this is important
legislation and feel that the details that need to be worked
out are minor, and look forward to doing that.
The Chairman. Thank you very much. Thank you, Mr. Chairman.
Senator Dorgan. Senator Smith, we have heard from the two
witnesses and are about to excuse them. If you have any
statement you wish to make before we do that, or questions, I
would be happy to let you do that.
Senator Smith. Thank you, Mr. Chairman.
I understand that contrary to my hopes in the statement,
that the administration is opposing S. 1882, and that's been
the testimony today, and I just hope they will work with us to
get it so that you can support it, so we can move it. These
small loan programs are pretty important to some small
Mr. Keys. Mr. Chairman, Senator Smith, we are more than
happy to do that.
Senator Smith. Thank you. And I wonder, Mr. Keys, if you
can give me any update on Klamath Falls from your perspective.
Is water flowing, are things okay?
Mr. Keys. Mr. Chairman, Mr. Smith, the water is flowing. It
is still 105 degrees and everything is on fire out there right
now. We expect the water to flow to the end of the season and
we expect a full delivery. Tomorrow is a cutback day on
releases from Upper Klamath Lake, and certainly we have people
in government-to-government consultation today with the tribes
there on that cutback, so everything is on schedule to this
Senator Smith. Thank you.
Senator Dorgan. Commissioner and Director, thank you very
much for being here today. We will excuse you and thank you for
The second panel that we will call will be Dan Keil,
chairman, North Central Montana Regional Water Authority; Bruce
Sunchild, Sr., vice chairman, Chippewa Cree Tribe, Box Elder,
Montana; Jeff Raybould, chairman, Board of Directors, Fremont-
Madison Irrigation District, St. Anthony, Idaho; Peter Carlson,
attorney, Will & Carlson, Inc., Washington, D.C. If those
witness would come forward and take their positions at the
table, we would appreciate it.
As I indicated previously, the entire statement of the
witnesses will be made a part of the permanent record and we
would ask the witnesses for the purpose of this subcommittee to
summarize. Mr. Keil, am I pronouncing your name correctly?
Mr. Keil. Yes, sir.
Senator Dorgan. Dan Keil, chairman, North Central Montana
Regional Water Authority. Why don't you begin?
STATEMENT OF DAN KEIL, CHAIRMAN, NORTH CENTRAL MONTANA REGIONAL
WATER AUTHORITY, CONRAD, MT
Mr. Keil. Thank you, Mr. Chairman. For the record, my name
is Dan Keil. I'm a farmer from north central Montana and am
serving as chairman of the North Central Montana Regional Water
Authority. I want to thank you for the opportunity to testify
today in support of authorizing the Rocky Boys/North Central
Regional Water System, S. 934. I would like to thank Senator
Burns and Senator Baucus for their remarks and their strong
support of this project.
I also would like to thank the State of Montana. They are
not here to testify, but they submitted a statement in support
of this. The Governor is in strong support, this governor and
the previous governor both, of this project. We have been
working on it for a considerable length of time.
I also have in addition to that, the chairman of the Hill
County Water District, which is one of the participating
This project, as you can see from the map and the map
that's attached to the testimony,* is about 8 percent of the
total area of the State of Montana that's being served by this,
and that's a pretty good sized area. It's basically a
combination of rural water systems that are there, the
communities that are there, and it would be a wholesale water
supply system to those communities to solve some of the
problems that they are experiencing now.
* The map has been retained in subcommittee files.
This is an area that is short of ground water, basically
there is none. What little bit there is is concentrated in a
couple areas, and the rest of the people that are in that area
like my water system, parts of that, when we put that thing in
25 years ago, were hauling water 25, 30 miles one way. Surface
water supplies are also limited and suffer from water quality
This is a joint project, as Senator Baucus stated, between
the Chippewa Cree Tribe and the residents off of the adjoining
communities. This North Central Montana Regional Water
Authority includes 16 rural water districts and 2 water user
associations. Most of these systems are small, with limited
customer base. It is increasingly difficult for these systems
to satisfy the regulatory requirements imposed by the Federal
Government through the Safe Drinking Water Act.
I was here in 1996 testifying in front of the EPW Committee
about the amendments that were being proposed at that time to
the Safe Drinking Water Act, and those were solving one
problem, but they also created more problems. I have been
involved in drinking water system work for 30 years.
When my little area out there, we got together and obtained
a drinking water system from the Federal Government that was
established to supply an anti-ballistic missile base. In 1972,
President Nixon went to Russia and signed the first SALT
agreement, and that's what--that project was closed down, and
we formed a water district off of that to serve portions of
five counties. I was chairman of that system for quite a while,
I also served on the National Rural Water Association board.
The Department of Environmental Quality, which implements
the Safe Drinking Water Act in Montana, has declared three of
the rural water districts to be out of compliance with this
act. At least 12 other systems are expected to have difficulty
meeting future requirements. One system has been ordered to
obtain authorization this year or seek another source of water
to supply their customers. A number of the systems are under
boil orders at this time.
Due to the small customer base of the districts, they
cannot individually afford to construct their own treatment
plants or develop alternative sources of water. A regional
water system is the only feasible approach to meeting north
central Montana's need for clean drinking water.
The reoccurring drought is another problem. We have had
that for 5 years, we are approaching the sixth year, but it did
rain finally in that area, so--that didn't serve, because it's
such a big area, not all of them got it, but it has relieved
some of the restrictions. The main streets of our small towns
are dying and without a reliable source of safe drinking water,
there is little to attract new businesses. The small
communities and rural areas of north central Montana and the
reservation are struggling to meet the needs of their people
and satisfy the requirements of the Safe Drinking Water Act,
but cannot do it on their own.
The proposed rural water system takes advantage of
available storage at the Bureau of Reclamation's Lake Elwell.
The Rocky Boy will utilize their allotment out of that lake and
the non-reservation users will contract with the Bureau of
Reclamation for additional water. A single water treatment
plant will be built to provide safe water to the existing rural
water districts and the reservation. This single treatment
plant will allow the users to take advantage of the economies
of scale in meeting current and future requirements of the Safe
Drinking Water Act.
The water authority is prepared to contribute a non-Federal
cost share of 25 percent, which is equivalent to that required
for other rural water systems such as Washone and Lewis and
Clark. In addition, the water authority has already invested
millions of dollars in existing water delivery systems which
will continue to be used to deliver water from the rural water
systems core pipeline to the ultimate water users. While not
recognized in the bill as part of the non-Federal cost share,
the use of existing delivery systems significantly reduces the
overall cost of the project.
The water authority is also responsible for all off-
reservation operation and maintenance costs. While we are
willing to do our part, we simply do not have the resources to
meet the requirements of the Safe Drinking Water Act and
provide good clean drinking water to our system.
We ask you for your support in helping us to make safe
drinking water a reality in our State. Thank you for the
opportunity to come and appear.
[The prepared statement of Mr. Keil follows:]
Prepared Statement of Dan Keil, Chairman, North Central Montana
Regional Water Authority, Conrad, MT
Mr. Chairman and members of the subcommittee, my name is Dan Keil.
I am Chairman of the North Central Montana Regional Water Authority.
Thank you for the opportunity to testify before the subcommittee in
support of authorizing the Rocky Boys/North Central Montana Regional
Water System. I would also like to thank Senator Max Baucus and Senator
Conrad Burns for their strong and continuing support for this project.
The Rocky Boys/North Central Montana Regional Water System will
provide a safe and dependable municipal, rural and industrial water
supply for the Rocky Boy's Reservation and the public water supply
systems that comprise the North Central Montana Regional Water
Authority. Speaking on behalf of the off-Reservation portion of the
project, I can assure you that the communities in north central Montana
strongly support both the on-Reservation and off-Reservation components
of the project.
NEED FOR THE WATER SYSTEM
The Rocky Boys Reservation and north central Montana are plagued by
problems with water quality and supply. The off-Reservation public
water supply systems are unable to meet the requirements of the Safe
Drinking Water Act. According to the Montana Department of
Environmental Quality (DEQ), three of the public water supply systems
which would be served by the proposed regional system are out of
compliance with the federal Act. Of these three, DEQ has issued an
administrative order to one system requiring an alternative source of
water and expects to bring enforcement actions against the other two
systems in the very near future.
The Montana DEQ prioritized the existing water systems according to
their expected difficulty in meeting future regulatory requirements
based upon current EPA proposals and the 1996 amendments to the Safe
Drinking Water Act. As can be seen from the attached table, almost all
of the existing systems are either out of compliance or will have
difficulty meeting future regulatory requirements unless they upgrade
Many of the systems treat their water with chlorine which in turn
may cause problems with elevated levels of disinfection by-products.
Other systems have problems with bacterial contamination and elevated
levels of total dissolved solids, iron, manganese, lead, copper,
sulfate and sodium. Boil orders either have been issued in the past or
are presently in effect for a number of the systems.
Many area residents are not served by any public water system. Due
to the limited availability and poor quality of groundwater, these
residents must often haul their own water. The available water supply
fails to meet water quality standards and poses real health risks to
the area's population.
Water quality problems are exacerbated by water supply issues.
Because of the general lack of good quality groundwater, most of the
area's larger public water systems use surface water supplies,
including the Milk River. As recognized in the North Central Montana
Regional Water System Planning/Environmental Report dated May 2000, the
availability of direct flow supplies from the Milk River is limited by
the loss of active storage due to the rapid rate of sedimentation,
unused Canadian treaty rights and unquantified Indian reserved water
rights. Public water systems relying on the Milk River have had to
implement strict water rationing requirements.
The water availability problems have been aggravated by drought. In
2000 and 2001, the U.S. Department of Agriculture classified all 56
Montana counties under drought disaster status. A number of the
counties which will be served by the proposed regional water system
have received a drought disaster classification for the last five
years. As of June 13, 2002, the National Oceanic and Atmospheric
Administration predicted the drought in Montana is likely to persist
with some areas experiencing short-term improvements. In recognition of
the continuing drought, the U.S. Department of Agriculture has already
granted Montana drought disaster status for 2002.
The poverty rate for all eight counties which will be served by the
regional water system exceeds the national average. According to the
U.S. Census Bureau, 19.8 percent of the people in Hill County and 17.4
percent in Toole County live in poverty. These are two of the counties
which will be served by the regional water system. The Montana
Department of Labor & Industry reports the unemployment rate on the
Rocky Boys Reservation at 27 percent. According to the department,
unemployment on the Rocky Boys Reservation is more than twice that on
other Montana reservations and is the highest in the state. These
statistics only reflect those persons actively looking for work and do
not reflect the true situation on the Reservation where many have
become discouraged and given up hope of finding a job. In 1999, this
committee's report on the Rocky Boys Reservation's Indian reserved
water rights settlement estimated unemployment on the Reservation at
nearly 70 percent. A reliable source of safe drinking water is
necessary to improve the low standard of living on the Reservation and
in the surrounding area.
A dependable supply of water is also essential to ongoing efforts
to attract new businesses to the area in order to provide for future
economic growth. In addition to long term benefits, the regional water
project will provide an immediate economic boost for north central
Montana and the Rocky Boys Reservation. Assuming labor costs for the
project at 25 percent of the total construction budget, the project
will generate approximately $38.75 million in wages via 1,242
construction man years. These construction dollars will provide a much
needed stimulus to the regional economy.
The North Central Montana Regional Water Authority, along with the
Rocky Boys Reservation, the State of Montana, and the Bureau of
Reclamation, has studied possible alternatives to supply water to the
region. The option of updating existing public water supply systems to
comply with the Safe Drinking Water Act was rejected due to the high
cost. Another option, using Missouri River water, was rejected because
it would introduce arsenic from the Missouri into the Milk River basin,
thereby degrading the water quality of the receiving streams. Obtaining
additional water from the Milk River was also studied but rejected due
to the limited physical and legal availability of water. The use of
additional groundwater sources was also investigated. This option was
not feasible because there is very little groundwater physically
available, and the groundwater that is available is of poor quality or
is under the influence of surface water which according to the Safe
Drinking Water Act requires treatment. Of all the alternatives
reviewed, the proposed regional water project is the only one which
provides a dependable water supply while offering the lowest capital
project and life-cycle costs.
Water for the Rocky Boys/North Central Montana Regional Water
System will be diverted from Lake Elwell, a Bureau of Reclamation
reservoir on the Marias River, which is located approximately 40 miles
west of the Rocky Boys Reservation. As part of the Rocky Boys reserved
water rights settlement, the Chippewa Cree Tribe was allocated 10,000
acre-feet per year from storage in Lake Elwell. The off-Reservation
portion of the regional water system will contract with the Bureau of
Reclamation for purchase of stored water from Lake Elwell. There is
sufficient storage available in the reservoir to provide a reliable
supply for the project while satisfying recreational and fishery needs.
Studies conducted over the last decade, in cooperation with the
Bureau of Reclamation, the State of Montana and the Tribe, have all
identified Lake Elwell and the Marias River as the appropriate source
of water for the system. Of the other possible water sources, water
availability in the Milk River is severely limited, the Missouri River
has elevated arsenic levels which cause water quality concerns, and
adequate groundwater simply does not exist. Lake Elwell is the most
practical source of water for the project.
A water treatment plant, using conventional filtration, will be
located near the intake on Lake Elwell. The water will be treated to
meet both the primary and secondary requirements of the Safe Drinking
Water Act standards. A core pipeline will convey water from the
treatment plant to the Rocky Boys Reservation. A series of transmission
pipelines will also provide water to smaller distribution lines
belonging to the area's off-Reservation public water supply systems.
The regional water system will take advantage of the infrastructure of
these existing systems. When completed, the regional water system will
provide a safe and dependable water supply for a projected 30,000
people in 2045. Water will be provided to all or parts of eight
counties including 10,700 square miles in north central Montana.
Without the proposed centralized water treatment plant, most of the
participating systems would be required to build new or to
significantly upgrade existing conventional water treatment plants. Due
to the low population densities and limited income potential in north
central Montana, individual communities, both on and off the
Reservation, cannot afford their own treatment plants. The existing
public water supply systems are also concerned about additional
upgrades which may be necessary in the future to satisfy changing
federal and state regulation. A central treatment plant will allow
these existing systems to economically meet both the current and any
future requirements of the Act.
The project will receive power from the Pick Sloan Missouri Basin
Program. All of the other MR&I regional water systems recently
authorized by Congress in the Upper Missouri River Basin have
benefitted from Pick Sloan power. The North Central Montana project
should be treated similarly, particularly since Montana produces
approximately 22 percent of the Pick Sloan power but consumes only 6.5
The estimated total project cost is $200 million, the Rocky Boys
Reservation portion of which is $120 million. The bill proposes the
federal share of the off-Reservation construction to be 75 percent. The
North Central Montana Regional Water Authority has worked with the
State of Montana to secure funding for the non-federal share of the
capital costs. A portion of the approximate $20 million non-federal
share of the project has already been set aside . The Authority will
also be responsible for the cost of operating, maintaining and
repairing the off-Reservation portion of the project.
In testimony before the House subcommittee, the Bureau of
Reclamation expressed concern about the impact of the project on its
budget and suggested a programmatic approach involving a number of
federal and non-federal agencies in the funding of regional water
systems. The Authority is willing to work with the Bureau to address
its funding concerns. The bill has been drafted to include a cost share
requirement similar to recent MR&I projects authorized by Congress. We
recognize that other federal agencies have a role in ensuring safe
drinking water. We also recognize that our North Central Montana
communities need this project authorized now. We have a member system
which is subject to an administrative order and schedule for water
quality compliance, and cannot afford further delay. We ask Congress to
authorize this project while we work with the Administration on an
equitable funding approach.
The north central Montana communities and the Tribe have been
working together on the project development since 1992, having formed
an Ad Hoc Committee in 1993. Off-Reservation and Tribal communities
worked with the 1999 Montana Legislature to enact legislation allowing
establishment of regional water authorities and creating a state
regional water system fund. This type of cooperation is needed to
benefit all Montanans. Recognizing the area's need, the State of
Montana, local entities and the Tribe agreed to seek federal
authorization for the project. This joint commitment is evidenced in
the reserved water rights compact negotiated between the Chippewa Cree
Tribe, the State of Montana, and the federal government.
Sixteen rural water districts, two water users associations, and
several Hutterite colonies originally expressed an interest in the
project and paid preliminary fees to demonstrate their earnestness. I
have attached to my testimony a list of the participating off-
Reservation entities. In addition, more than 145 households not
presently served by a water system have expressed interest in receiving
water. All of the public water systems on the attached list are members
of the North Central Montana Regional Water Authority.
The people of north central Montana and the Rocky Boys Reservation
presently do not have a reliable source of water. The proposed regional
water system will provide water to an area historically afflicted by
water supply and quality problems. We ask this subcommittee's support
in passing this important legislation to protect the social and
economic future of our region.
Thank you again for the opportunity to testify in support of the
Rocky Boys/North Central Montana Regional Water System. I would be
pleased to answer any questions.
Senator Dorgan. Mr. Keil, thank you very much for being
here. Next we will hear from Bruce Sunchild, Sr., vice
chairman, Chippewa Cree Tribe, in Box Elder, Montana.
Mr. Sunchild, you may proceed.
STATEMENT OF BRUCE SUNCHILD SR., VICE CHAIRMAN,
CHIPPEWA CREE TRIBE, BOX ELDER, MT
Mr. Sunchild. Mr. Chairman, members of the subcommittee, my
name is Bruce Sunchild, Sr. I am the vice chairman of the
Chippewa Cree Tribe of the Rocky Boy's Reservation and co-chair
of the Rocky Boy's North Central Montana Regional Water System
coordinating committee. I have a written statement that I have
submitted for the record and I will now summarize my remarks.
I would like to thank the honorable chairman of the
subcommittee and members of the Subcommittee on Water and Power
for scheduling this hearing. I would also like to thank our
Senators, Montana Senators Conrad Burns and Max Baucus for
introducing this important legislation and for their strong and
continued support for this project.
The Chippewa Cree Tribe and North Central Regional Water
Authority are jointly seeking enactment of S. 934, Federal
legislation authorizing the Rocky Boy's North Central Montana
Regional Water System. This water system will provide a safe
and reliable municipal rural industrial water supply for the
Rocky Boy's Reservation and our neighboring off-reservation
Mr. Chairman, the Rocky Boy's Reservation is a place of
tremendous unemployment where 39 percent of the people live
below the poverty level. The basic level of infrastructure that
most Americans take for granted are lacking on this
reservation. One of those areas where we are lacking is that we
don't have a good water supply system for municipal, rural or
industrial purposes. Unless we can attract businesses to our
reservation, we will never create the jobs necessary to
establish a sustainable economy.
We certainly cannot do so without an adequate water supply.
Presently we don't even have sufficient water for drinking
purposes, not to mention sufficient water to attract businesses
or to allow our agricultural community to grow. Study after
study has identified this as a fundamental issue we must
address to have a permanent viable homeland. Ground water is
the primary source of domestic water within the Rocky Boy's
In addition to our limited water supply, we lack an
adequate water delivery infrastructure system. Of the various
sources of ground water on the reservation, only the shallow
alluvial bedrock aquifers have limited potential for
development. The other ground water sources either exceed the
criteria set by the Safe Drinking Water Act, are too expensive
to develop, or high concentrations of chloride sodium sulfate,
which makes the water undesirable for domestic use.
Wells generally have a low yield, producing 10 gallons per
minute or less water. Historically these private wells are used
for a period of time and then abandoned due to the decrease in
yields. As yields decrease, the water quality also decreases.
There are very few alternatives for providing water on Rocky
Boy's Reservation. Studies have shown there are simply no
reliable sources of surface ground water on the reservation to
serve the needs of the reservation. These studies conducted by
the tribe, the Bureau of Indian Affairs, and the Indian Health
Service, have all concluded that there is a need for a
reservation-wide domestic water system.
The water rights of the Chippewa Cree as described in
Public Law 106-163, the Chippewa Cree Water Supply Enhancement
Act of 1999 ratified the compact entered into by the tribe and
the State of Montana. As part of the settlement, the tribe
received an allocation of 10,000 acre-feet per year of stored
water from the Bureau of Reclamation in Lake Elwell, also
referred to as Tiber Dam.
The settlement also provided for an appropriation of $15
million as recognition of a need for a new tribal municipal
water system and to begin development of the future water
supply system for the reservation.
The proposed project as authorized by S. 934 is an
innovative collaborative solution to the need of both the tribe
and the north central part of Montana for an MR&I system.
Discussion of the proposed project began during the compact
negotiations between the tribe and the State of Montana. It was
recognized as a unique opportunity for the tribe and off-
reservation neighbors to cooperate for the benefit of both
communities. In many areas in this country, competing use of
water could create litigation between on- and off-reservation
water users. To be cooperating in this manner as we have is
unusual and something that we are all proud of.
Water will be diverted from the lake into a common water
quality treatment plant. The water will be treated to meet all
criteria of the Safe Drinking Water Act. This centralized
treatment plant will eliminate the need for each community to
build its own treatment plant. It will also simplify the
process of upgrading the plant to meet changing requirements of
the Safe Drinking Water Act. Because all the water will be
treated to standards, reservation residents will uniformly have
access to safe drinking water.
A core pipeline will convey the water from the treatment
plant to Rocky Boy's Reservation. Smaller distribution lines
will then convey the water to various communities and users on
the reservation. The tribe proposes to use the $15 million
settlement money to upgrade our existing water delivery systems
to receive the imported water.
This project will dramatically enhance the health and
quality of life and economic development potential for our
reservation and region. This project----
The Chairman [presiding]. You can just continue to ignore
Senator Burns. That's for somebody else.
The Chairman. We ring those to be sure everyone is awake.
Mr. Sunchild. I appreciate that. This project will allow
the Chippewa Cree Tribe members to realize the goal of self-
determination and will provide for the first time ever a safe
reliable source of drinking water on the reservation, but it
will also be the cornerstone of the tribe's current and future
economic development plans.
Mr. Chairman, over the course of the last quarter century
the Federal Government has strongly urged tribes to settle
their water rights and claims so as to quantify the extent of
the tribal rights and to create certainty for off-reservation
residents. While we did that, we settled on our water rights
and the United States ratified that settlement through Public
Law 106-163. However, the settlement of water rights only
benefits a tribe if there is a method of putting that water to
some beneficial use.
The agreement with the West bypassed Indian Country, Mr.
Chairman. Additionally, for the last century as States and
local governments established water systems, they often forgot
about Indian Country, at best. At worst, they endeavored to
divert the water system before it reached the reservation. Now
that Congress has the opportunity to do the right thing and
assist both Chippewa Cree and a dozen non-Indian communities in
north central Montana who cannot presently comply with
established drinking water standards.
H.R. 1946 created an opportunity to accumulate and
negotiate our water rights into a proverbial win-win situation.
I must conclude by saying we are concerned by the comments made
about this legislation by the BOR at a hearing in April before
the House Resources Committee. The problem we have with BOR's
previous testimony which may be presented again today is that
they seem to be saying that once we settle our water rights
claim, it had enacted the Public Law with the Settlement Act,
that they should have nothing more to do with the tribes in our
region, or surrounding neighborhoods in north central Montana.
The fact is, the powers within the Federal Government
decided that the legal liability they may have for not
previously protecting our water was such that $15 million for
the water settlement was acceptable, but that a more expensive
pipeline and water treatment facility would not be justified
based on the strength of our claim. There are speculative
estimations led by attorneys concerned with this that costs
relate to the damages. They have no connection to what it
actually costs to deliver water.
Clearly the fact that the United States agreed in the
Settlement Act to reserve 10,000 acre-feet of water for the
Chippewa Cree Tribe in the Federal reservoir 50 miles away
implied that there would have been a method of delivering the
water to the reservation. We would not have agreed to have this
water reserved for the tribe if there was not a method of
getting it to the reservation. At this time, at the time of the
settlement, it was agreed that issues of delivering water would
have to be undertaken through a subsequent act of Congress. We
are now at that point in time where we need the subsequent act
We are not contending that the United States is legally
liable if it does not pay for the water in Tiber to be
delivered to the reservation. We are contending that there are
moral and common sense reasons why this should happen. The
Settlement Act clearly anticipated that we would be returning
to this body at a future point in time. It was also sensible to
include the surrounding non-Indian communities who are unable
to comply with the Safe Drinking Water Act, who are desperately
in need of a supply of water.
Mr. Chairman, my written testimony describes the numerous
studies that have examined how to get us that 10,000 acre-feet
of water from Tiber. I will not summarize those studies at this
hearing. It is safe to say that those studies conclude the
pipeline system authorized by this legislation is the most
viable and preferred alternative. I have a copy here of a study
that was submitted, so I will leave that here for the record.
We urge the enactment of S. 934. Again, we appreciate our
friends Max Baucus, Conrad Burns for introducing the bill, and
hope that you will now quickly mark it up and move it to the
floor of the Senate. Thank you again for the opportunity to
testify in support of this important and necessary project. I
will be pleased to answer any questions.
[The prepared statement of Mr. Sunchild follows:]
Prepared Statement of Bruce Sunchild, Sr., Vice Chairman,
Chippewa Cree Tribe of the Rocky Boy's Reservation, Box Elder, MT
Mr. Chairman and members of the Subcommittee, my name is Bruce
Sunchild, Sr. I am the Vice-Chairman of the Chippewa Cree Tribe of the
Rocky Boy's Reservation and Co-Chairman of the Rocky Boy's North
Central Montana Regional Water System Coordinating Committee. I would
like to thank the Honorable Chairman Byron Dorgan and the members of
the Subcommittee on Water and Power for scheduling this hearing. I
would also like to thank our Montana Senators, Conrad Burns and Max
Baucus, for introducing this important legislation and for their strong
and continuing support for this project.
The Chippewa Cree Tribe and the North Central Regional Water
Authority are jointly seeking the enactment of S. 934, federal
legislation authorizing the Rocky Boy's/North Central Montana Regional
Water System. The water system will provide a safe and reliable
municipal, rural, and industrial water supply for the Rocky Boy's
Reservation and our neighboring off-reservation communities.
NEED FOR THE WATER SYSTEM
This project is essential to our Tribes' goal of establishing a
self-sustaining homeland. The Rocky Boy's Reservation, located in north
central Montana, consists of more than 120,000 acres, which are home to
approximately 3,500 Tribal members who reside on the reservation. We
have a rapid population growth rate that exceeds 3% annually.
Unemployment on the Rocky Boy's Reservation is extraordinarily high and
approximately 39% of Rocky Boy's young, rapidly growing population
lives below the poverty level. A dependable source of high quality
water is needed to enable Tribal members and other Reservation
residents to achieve an adequate standard of living.
The Chippewa Cree Tribe has made important strides in economic
development over the past ten years in the areas of production of
cattle, grain, timber and tourism. Nonetheless, studies have
demonstrated that the reservation cannot sustain its current rate of
growth, much less provide for economic growth, without additional
supplies of water for drinking, agricultural and municipal and
industrial purposes. Proposed expansions of our tribal college and
other enterprises also cannot proceed until new, firm water supplies
are located. The Indian Health Service has concluded that an imported
water supply is the only viable option for supplying long-term Tribal
Municipal, Residential, and Industrial (MR&I) needs.
A safe and reliable water supply is a cornerstone of economic
development. The assurance of an adequate supply of high quality
municipal, rural and industrial water will enable the Tribe to pursue
current and future economic development. It will also allow current and
future Reservation residents to enjoy a higher quality of life through
improved health conditions, more employment opportunities, and an
overall increased level of economic development.
THE ROCKY BOY'S/NORTH CENTRAL MONTANA REGIONAL WATER SYSTEM
IS THE BEST ALTERNATIVE
Groundwater is the primary source of domestic water within the
Rocky Boy's Reservation. In addition to our limited water supply, we
lack an adequate water delivery infrastructure system. Of the various
sources of groundwater on the Reservation, only the shallow alluvial
and bedrock aquifers have limited potential for development. The other
groundwater sources either exceed the criteria set by the Safe Drinking
Water Act, are too expensive to develop or have high concentrations of
chloride, sodium, and sulfate which make the water undesirable for
Although the quality of the water in the shallow alluvial aquifer
is generally acceptable, the quantity is inadequate. Wells in this
aquifer generally have low yields, producing 10 gallon per minute or
less of water. Historically, these private wells are used for a period
of time and then abandoned due to decreasing yields. As yields
decrease, the water quality also often decreases. Furthermore, these
wells are frequently connected hydrologically to the major water
courses where the potential for pollution is significant. Recently,
drought relief monies were obtained to build new wells for the current
municipal system. However, lack of recharge to the shallow bedrock
aquifers on the Reservation severely limits water yield.
There is simply not enough good quality groundwater to meet the
Tribe's current needs, much less our future needs. Surface water
sources are also limited in quantity, cannot provide a reliable source
of water and are allocated to irrigation. As a result, many Tribal
members have to haul water for their domestic use.
There are very few alternatives for providing water to the Rocky
Boy's Reservation. Studies have shown there are simply no reliable
surface and groundwater on-reservation sources to serve the needs of
the Reservation. These studies, conducted by the Tribe, the Bureau of
Indian Affairs, and the Indian Heath Service, have all concluded that
there is a need for a Reservation-wide domestic water supply system.
TRIBAL WATER RIGHT
The water right of the Chippewa Cree Tribe, as described in Public
Law 106-163, the ``Chippewa Cree Tribe of the Rocky Boy's Reservation
Indian Reserved Water Rights Settlement and Water Supply Enhancement
Act of 1999,'' ratified the Water Compact entered into by the Tribe and
the State of Montana. As part of the water settlement, the Tribe
received an allocation of 10,000 acre-feet per year of stored water
from the Bureau of Reclamation in Lake Elwell, also referred to as
Tiber Reservoir. The settlement also provided for an appropriation of
$15 million as recognition of the need for a new Tribal municipal water
system and to begin development of a future water supply system for the
The proposed project is an innovative and collaborative solution to
the need of both the Tribe and the north central part of Montana for an
MR&I system. Discussion of the proposed project began during the
compact negotiations between the Tribe and the State of Montana. It was
recognized as a unique opportunity for the Tribe and its off-
reservation neighbors to cooperate to the benefit of both communities.
In many areas of this country, competing uses of water would create
litigation between on and off-reservation waters users. To be
cooperating in the manner we have is unusual and something that we are
all proud of.
Lake Elwell is a Bureau of Reclamation facility located 50 miles
west of the Rocky Boy's Reservation. The availability of thousands of
acre feet of unallocated water in Tiber Reservoir provides the
opportunity to meet the water needs of the Tribe and neighboring north
central regional communities. P.L. 106-163 allocated 10,000 acre-feet
per year of water from the lake to the Tribe.
Water will be diverted from the lake into a common water quality
treatment plant. The water will be treated to meet all of the criteria
of the Safe Drinking Water Act. This centralized treatment plant will
eliminate the need for each community to build its own treatment plant.
It will also simplify the process of upgrading the plant to meet
changing requirements of the Safe Drinking Water Act. Because all of
the water will be treated to standards, Reservation residents will
uniformly have access to safe drinking water.
A core pipeline will convey water from the treatment plant to the
Rocky Boy's Reservation. Smaller distribution lines will then convey
the water to the various communities and users on the Reservation. The
Tribe proposes to use our $15M in settlement monies to upgrade our
existing water delivery system to receive the imported water.
The estimated total cost of the project is $200 million. The tribal
portion of the project is estimated at $120 million. All costs of the
reservation system, including operation and maintenance, will be a
This project will dramatically enhance the health, quality of life
and economic development potential of our Reservation and region. This
project will allow Chippewa Cree Tribal members to realize their goal
of self-determination and will provide, for the first time ever, a safe
and reliable source of drinking water on the Reservation. It will also
be the cornerstone for the Tribe's current and future economic
development plans. I urge your support for this project.
Mr. Chairman, in the landmark 1908 decision where the Winters
Doctrine was established, the Supreme Court ruled that when the United
States established federal Indian reservations, there had to be
sufficient water reserved for the tribes to establish those
reservations as permanent tribal homelands. Over the course of the last
quarter century, the federal government has also strongly urged tribes
to settle their water rights claims so as to quantify the extent of the
tribal right and create certainty for off-reservation residents who
will almost certainly have a junior water right to the tribe. Well, we
did that. We settled our water rights and the United States ratified
that settlement in P.L. 106-163. However, the settlement of a water
right only benefits a tribe if there is a method of putting that water
to some beneficial use. The greening of the west bypassed Indian
country, Mr. Chairman. Additionally, for the last century, as state and
local governments established water systems, they too often forgot
about Indian country--at best. At worst they endeavored to divert our
water before it reached the reservations. Now the Congress has an
opportunity to do the right thing and to assist both the Chippewa Cree
Tribe and the dozens of non-Indian communities in North Central Montana
who cannot presently comply with established drinking water standards.
H.R. 1946 creates an opportunity to culminate the negotiation of our
water rights into a proverbial win-win situation.
RESPONDING TO BOR'S CONCERNS
We are concerned by comments made about S. 934 (or more
specifically, about H.R. 1946, the House counterpart bill) by the BOR
at a hearing in April before the House Resources Committee. The problem
we have with the BOR's previous testimony--which may be presented again
today--is that they seem to be saying that once we settled our water
rights claim and had it enacted into law (P.L. 106-163 or ``Settlement
Act''), that they should have nothing more to do with our Tribe, our
region, or our surrounding neighbors in north central Montana. The fact
is that the powers that be within the federal government decided that
the legal liability they may have for not previously protecting our
water was such that a $50 million water settlement was acceptable but
that a more expensive pipeline and water treatment facility could not
be justified based on the strength of our claim. These are speculative
estimations made by attorneys concerned with costs related to damages;
they have no connection to what it costs to actually deliver water.
Clearly, the fact that the United States agreed in the Settlement Act
to reserve 10,000 acre feet of water for the Chippewa Cree Tribe in a
federal reservoir that is 50 miles away implied that there would have
to be a method delivering that water to the reservation. We would not
have agreed to have this water reserved for the Tribe if there was not
going to be a method of getting it to us. At the time of the Settlement
Act, it was agreed that the issue of delivering water would have to be
undertaken through a subsequent act of Congress. We are now at that
spot in time where we need the subsequent act of Congress. We are not
contending that the United States is ``legally liable'' if it does not
pay for the water in Tiber to be delivered to the reservation; we are
contending there are moral and common sense reasons why this should
happen and the Settlement Act clearly anticipated that we would be
returning to this body at a future point in time. It also makes sense
to include the surrounding non-Indian communities who are not able to
comply with the Safe Drinking Water Act and who are desperately in need
of a supply of water.
We are submitting to the Committee the results of a comprehensive
study funded by the EPA and the state of Montana that we undertook in
conjunction with HKM Engineering. BOR provided technical oversight to
this investigation. This study examined alternatives on a region-wide
basis (as opposed to on-reservation only), which is what S. 934 would
authorize. This study determined that transporting water from the Tiber
Reservoir to serve the Reservation and the 10,700 square mile service
area that comprises the North Central Montana Regional Water System--
7.3 percent of the total land area of the state of Montana--to be the
preferred alternative. This is the regional MR&I system supported by
the Tribe and State in the negotiated water rights compact.
The Settlement Act authorized two additional studies to analyze
water development alternatives in North Central Montana. One study,
involving the Tribe, evaluated options for developing a ``Tribal Only''
MR&I water system serving the Rocky Boys Reservation. The other
investigation, conducted solely by BOR, was a regional feasibility
study evaluating alternatives to meet the water needs of North Central
The Chippewa-Cree Tribe strongly involved the Bureau of Reclamation
in the ``Tribal Only'' MR&I study. This was because this federal agency
questioned whether Tiber Reservoir should be the preferred source of
water supply for the previously discussed North Central Montana
Regional Water System. The Tribe subcontracted $155,000 of the study
back to BOR to evaluate the other potential sources of supply and to
complete environmental and economics work tasks. No preferred option to
Tiber Reservoir was identified.
The BOR regional feasibility study has not yet been completed but
has identified no alternative firm water supply for the Rocky Boys
Reservation or the surrounding communities in North Central Montana.
It should also be observed that Article VII of the Chippewa Cree-
Montana Water Rights Compact entered into by my Tribe and the State of
Montana on April 14, 1997 (Section 85-2-235 of the Montana Code
Annotated) which was ratified by the United States via enactment of
P.L. 106-163, contains language in Section A(3)(b) and (c) authorizing
the Chippewa Cree Tribe to withdraw as a party to the Compact, ``if the
municipal, rural and industrial water supply system identified as the
preferred alternative by the feasibility study to serve the Rocky Boy's
Reservation, or an equivalent water supply system as determined by the
Tribe is not authorized or appropriated'' [within certain time frames].
We are aware that we were required to waive this right to withdraw via
Section 5(a) of the Settlement Act (unless the entire compact should be
declared void) but it is important for you to understand that when we
negotiated our compact with the state of Montana, it was clearly our
understanding that the construction of an MR&I system and the delivery
of water to that system were critical components of that agreement.
The BOR's previous statement expressed concern that a finding
provision in H.R. 1946 (Section 2(a)(2)), stating that the U.S. has a
trust responsibility to ensure an adequate supply of water to meet the
needs of the reservation establishes some sort of newly created
liability should they not deliver that water. The BOR doesn't seem to
understand that the federal government, pursuant to its general trust
responsibility to the Indian tribes of this country, already has the
power to assist tribes in obtaining sufficient water for permanent
tribal homelands, and it should do so. The Supreme Court has already
made that quite clear and there was no intent in including that point
to expand existing law, merely to reiterate it. If the BOR is
particularly concerned with this provision, we are not averse to having
it stricken from the bill.
Finally, it is disconcerting to the Tribes that the BOR, which has
been involved in constructing numerous municipal water systems and was
continuously involved in the several studies, is challenging the
preferred alternative without any acceptable alternative. Our neighbors
and we are asking for the assistance of the United States in dealing
with a serious region-wide problem while at the same time putting to
beneficial use the 10,000 acre feet of water that has been reserved for
us by the federal government in the Tiber Reservoir. We urge the
enactment of S. 934.
Again, we appreciate that our friends Max Baucus and Conrad Burns
introduced this bill and we hope that you will now quickly mark it up
and move it on to the floor of the Senate. Thank you again for the
opportunity to testify in support of this important and necessary
project. I would be pleased to answer any questions.
The Chairman. Thank you very much.
Mr. Raybould, why don't you go right ahead.
STATEMENT OF JEFF RAYBOULD, CHAIRMAN, BOARD OF
DIRECTORS, FREMONT-MADISON IRRIGATION DISTRICT, ST. ANTHONY, ID
Mr. Raybould. Thank you, Mr. Chairman, members of the
committee. My name is Jeff Raybould. I am the chairman of the
Fremont-Madison Irrigation District, and I am here today in
support of S. 2556.
Fremont-Madison Irrigation District saw title transfer as
an opportunity that we might be able to save a modest amount on
our O&M expense, that we could provide additional water to our
irrigators in our district, and also work to improve conditions
on the river.
Early on, Fremont-Madison decided the best way to go about
this was to do this out in the open. Initially our chairman and
the BOR area manager went before the Henry's Fork Watershed
Council, which is the group of State agencies and private
entities and organizations that work together to help better
manage the Henry's Fork Watershed, and we laid out our plans to
transfer all of our facilities that we have a contract with the
Bureau for to the district. We had a lot of open discussion
about how this might come about and how it might work in the
future with the district having ownership of the facilities.
The Henry's Fork Foundation, a local environmental group,
stepped forward and said that they could see opportunities that
would be available by the district having title, and wanted to
work with us to achieve title of all of our facilities. They
brought in Bruce Driver as an advisor. He is from the Land and
Water Fund of the Rockies, and he worked with the Henry's Fork
Foundation and Fremont-Madison Irrigation to try and devise a
memorandum of agreement of how we would operate after title
This process included regular reports back to the watershed
council. We had a special meeting in June 2000 to discuss title
transfer with all the participants of the watershed council,
and the MOA that was being negotiated with the Henry's Fork
Foundation. At the June meeting it became evident that even the
Henry's Fork Foundation was going to have trouble supporting
title transfer of the reservoirs, Island Park and Grassy Lake.
The other organizations too had doubts about whether that would
be a good thing to do at this time.
But there wasn't any opposition to the transfer of the
Cross Cut Diversion Dam, the Cross Cut Canal, the Teton Wells,
and the associated water permits. Based on the feedback that we
got working through this process with the watershed council and
the Henry's Fork Foundation, we decided to move forward with a
limited transfer bill that transfers only the Cross Cut
Diversion Dam, the canal, and the wells.
We have begun the process of doing the required NEPA work
for this transfer and we continue to have outreach with the
local stakeholders. Now the local stakeholders have raised some
concerns about whether this would be a good thing to do,
whether Fremont-Madison having the existing wells and possibly
drilling additional wells might have impacts on the river. We
believe that we can mitigate those impacts and that this title
transfer should not be held up on the technicality that there
potentially could be impact some day. We believe that the State
of Idaho has the ability to regulate the water that might be
withdrawn from the aquifer and see that no one is injured from
any additional development that may occur.
Mr. Chairman, committee members, Fremont-Madison has a long
history of working with all the people in the area to do what's
best for the river while providing a water supply to our
irrigators. We put a lot of time and energy into this watershed
council and we believe that we have made improvements to the
environment as well as supplied water to our irrigators, and we
pledge our continued support to do that, even after this title
transfer process is completed, and would hope that this
committee could recommend to the full committee that the bill
have an opportunity to be looked at by the full Senate and
voted on this session.
I appreciate your time today and will be willing to answer
any questions that you may have.
[The prepared statement of Mr. Raybould follows:]
Prepared Statement of Jeff Raybould, Chairman, Board of Directors,
Fremont-Madison Irrigation District, St. Anthony, ID
Mr. Chairman, Members of the Subcommittee, I am Jeff Raybould,
Chairman of the Board of Directors of the Fremont-Madison Irrigation
District (FMID) in Idaho. I am here to testify in support of S. 2556.
This legislation would require the Secretary of the Interior to
convey certain facilities to our District pursuant to the Memorandum of
Agreement with the Bureau of Reclamation. These facilities include: the
Cross Cut Diversion Dam, the Cross Cut Canal and the Teton Exchange
FMID was created under the laws of the State of Idaho in 1935 to
enter into a repayment contract with the United States Bureau of
Reclamation for the construction of Island Park Dam, Grassy Lake Dam
and the Cross Cut Diversion Dam and Canal. The forty year repayment
contract was paid out in 1979 by the spaceholders of FMID.
FMID provides a supplemental water supply to approximately 1,500
water users irrigating approximately 200,000 acres associated with the
original Island Park and Grassy Lake projects as well as the failed
Teton Dam project. Forty canal companies existed prior to the creation
of FMID. The canal companies supply the natural flow water (primary
water supply) to lands of their stockholders. They also conduct their
own operation and maintenance. Most of the lands served by FMID are
also lands of the canal companies. The FMID uses these canal companies
to deliver storage water.
In 1993, FMID and the Henry's Fork Foundation, a local
environmental group, helped form the Henry's Fork Watershed Council
which is a grassroots community forum that uses a non-adversial,
consensus-based approach to problem solving and conflict resolution
among citizens, scientists, and agencies with varied perspectives.
FMID originally submitted a resolution to the Bureau of
Reclamation, requesting transfer of title from Reclamation to FMID of
Island Park Dam, Grassy Lake Dam, Cross Cut Dam and Canal and the Teton
wells. FMID worked closely with the Henry's Fork Foundation to develop
a consensus on how title for all these facilities could be transferred.
In the course of this effort, the Watershed Council held a special
meeting in June, 2000 to discuss the transfer of facilities. At this
time, there was no opposition expressed to title transfer of the Cross
Cut Dam and Canal and the Teton wells from any representative of the
Watershed Council, including the Henry's Fork Foundation and the
Greater Yellowstone Coalition. As a result of these consultative
discussions, FMID has decided at this time to only go forward with
seeking title to the Cross Cut Dam and Canal and the Teton wells.
The Cross Cut Dam is located on Henry's Fork of the Snake River
which diverts water into the Last Chance and Cross Cut Canals. It is a
concrete gravity weir with a structural height of 17 feet and a total
length of 457 feet. It was completed in 1938. The Cross Cut Canal
begins at the Cross Cut Dam. The canal is approximately 7 miles long
with a capacity of 600 cubic feet/second (cfs) at the head.
The canal diverts storage water from the Henry's Fork near Chester
and conveys it to the Teton River. In addition to conveying storage
water to users on the Teton River, the canal also conveys natural flow
water to some of the lands within the Fall River Irrigation Company
system. A portion of the Cross Cut Canal was constructed through the
already existing Fall River Canal. FMID has operated and maintained the
canal since it was built. FMID and Fall River jointly employ a canal
manager to address operation and maintenance needs.
Five Teton Exchange Wells were constructed by the Bureau of
Reclamation in the early 1970's as part of the Lower Teton Division.
They were designed to provide groundwater in exchange for water storage
in Teton Reservoir. Failure of the Teton Dam in June, 1976 made the
constructed wells the only supplemental water source available to
irrigate the lands affected by the Teton Dam failure.
In 1977, FMID and the Bureau entered into a contract to allow the
use of the wells as a backup water supply in drought years. This
contract provides for the use of wells, pumps, motors and appurtenant
facilities over a 25 year period.
Water from the five wells is pumped into the lower Henry's Fork
system to augment supplemental irrigation water supply for FMID in dry
years. FMID pays for all operation, maintenance and replacement costs.
FMID has conducted extensive outreach with local entities in
response to the proposed title transfer and we will continue to do so
as the process moves forward. We would like to address four concerns
that have recently been raised by local environmentalists:
(1) First, the only facilities authorized for transfer are
the Cross Cut Dam and Canal and the Teton Wells. Island Park
and Grassy Lake Dams are not included.
(2) Second, it has been suggested that additional
conservation flows be designated for the Henry's Fork. This
should not be a condition for title transfer, but we will
continue to work with all local stakeholders to address this
(3) Third, the Secretary is required to complete all actions
as required under the National Environmental Policy Act. At the
request of local environmental groups, the Bureau of
Reclamation has already initiated this process. The ultimate
level of review will be determined in accordance with this law.
(4) Fourth, it has been suggested that the legislation be
delayed so that a comprehensive plan for drought management can
be developed. We are committed to working on drought management
with all local stakeholders. Legislative consideration of our
title transfer proposal should not be delayed. In fact,
enactment of this bill would free up resources for us to devote
to drought management strategies.
This concludes my remarks. Thank you for allowing me to appear
before your subcommittee today. I would be pleased to answer any
questions you might have.
The Chairman. Thank you very much.
Mr. Carlson, why don't you go right ahead?
STATEMENT OF PETER CARLSON, COORDINATOR,
SMALL RECLAMATION PROGRAM ACT COALITION
Mr. Carlson. Mr. Chairman, members of the subcommittee, my
name is Peter Carlson. I am president of the firm of Will &
Carlson, Inc., a Washington, D.C. government relations firm
specializing in natural resources issues.
I would like to submit a letter of support for this
legislation from the Association of California Water Agencies
for the record as well.
The Chairman. We will include that letter in the record.
Mr. Carlson. Thank you. I also have with me today Roger
Shimpaku from California and Tim Clark from Arizona, two of the
leading experts on the implementation of small reclamation
projects out west.
I am appearing today as the coordinator of the coordinator
of The Small Reclamation Coalition, which is made up of the
National Urban Agriculture Council, the Western Coalition of
Arid States, the Oregon Water Resources Congress, and the
Eastern Municipal Water District in Southern California.
At the outset let me state our strong support for S. 1882,
the Small Reclamation Water Resources Act of 2001, and express
our appreciation for your holding this hearing, and Senator
Gordon Smith for introducing the legislation.
The proposed amendments represent an 8-year effort to
restructure the program and provide Western water users with
new options for addressing their water related needs. Growth
and the aging of the infrastructure out West are the driving
forces for this legislation. There is presently not in place an
active small reclamation loan program at the Bureau of
Reclamation that is accepting proposals for projects. As a
result, there is a project gap between the larger reclamation
project that is typically before your subcommittee and the
smaller programs that reclamation offers such as technical
assistance. The Small Reclamation Water Resources Act of 2001
will close that gap.
The amendments contained in S. 1882 address these issues in
the following manner: No longer requiring irrigation as a
project purpose in the program will allow for the development
of projects in the urban-rural crossover setting that are more
economically and environmentally sound.
Providing additional definition and expansion of the
activities which can be undertaken through the program,
especially for rehabilitation and betterment and in the area of
water quality improvements will help address aging
infrastructure problems as well as developing new opportunities
to make better use of existing supplies without the need to
create new water supply structures.
Streamlining of the proposal process and the establishment
of a definite schedule for the proposal processing will give
water users greater program confidence and certainty.
The establishing of a new smaller partnership program under
title II of the SRPA amendments and the activities that can be
carried out under the program will facilitate problem solving
in a manner that gets the work done sooner before more problems
We see this as a $40 to $60 million a year program with
respect to the Bureau of Reclamation's water and related
resources budget. We appreciate the decision to increase the
ceiling in the program from $359 million to $1.3 billion. This
is one of the major changes in S. 1882 from legislation
introduced in the past Congresses. S. 1882 calls for $900
million to be made available to carry out projects under title
I of the amendments, $300 million for title II, and $100
million for title III.
These numbers are not without foundation. When the program
was suspended in 1995, there were notices of intent for
projects totaling approximately $450 million. Approximately
$170 million of this total was for Native American projects. We
conducted an electronic survey of 1,000 water users in the West
and received responses to our survey from 12 of the 17 States
indicating a strong interest in using both title II and title I
of the proposed amendments, further justifying the need for a
We have also received responses to the idea contained in S.
1882 of setting aside up to 20 percent of the proposed ceiling
in the program for Indian tribes and economically disadvantaged
communities, an approach the water community strongly supports.
The continuation of the Bureau of Reclamation small reclamation
loan program with the changes made by S. 1882 is the most
important and appropriate course to take at this time. There is
strong interest out there and a belief that the small
reclamation loan program is the best vehicle to accomplish the
work for helping address the rural-urban Indian population and
water and environmental needs in the west.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Carlson follows:]
Prepared Statement of Peter Carlson, Coordinator,
Small Reclamation Program Act Coalition
Mr. Chairman, Members of the Subcommittee, my name is Peter
Carlson, I am President of the firm Will & Carlson, Inc., a Washington,
D.C. governmental relations firm specializing in natural resource
issues. I am appearing today as the coordinator of the Small
Reclamation Program Act Coalition which is made up of the National
Urban Agriculture Council (NUAC), the Western Coalition of Arid States
(WESTCAS), the Oregon Water Resources Congress (OWRC) and the Eastern
Municipal Water District in Southern California (EMWD).
At the outset, let me state our strong support for S. 1882, the
Small Reclamation Water Resources Act of 2001 and express our
appreciation for your holding this hearing and Senator Gordon Smith for
introducing the legislation. The proposed amendments represent an eight
year effort to restructure the program and provide western water users
with new options for addressing their water resource related needs.
The Small Reclamation Program Act was last amended in 1986, and the
amendments were appropriate for that time. The changes proposed by S.
1882 build on what we, the water users, have learned since that time
and will make this an even better program from an environmental,
business and socio-economic standpoint.
According to the Western Water Policy Review Commission report from
1998 ``Once the outpost of a young nation, today's West is home to
nearly one-third of the American population. The region has experienced
rapid population growth in recent years: western states grew by about
32 percent in the past 25 years, compared with a 19-percent rate in the
rest of the nation. By the year 2025, the West will add another 28
A more recent report from the University of Colorado's Center of
the America West, of 11 Western states (California, New Mexico,
Wyoming, Washington, Idaho, Utah, Arizona, Oregon, Colorado, Montana,
Nevada), indicated that the 2000 census counted 61.4 million people in
the Western states--a 21 percent increase from 1990. By 2050, 109
million people will live in the Western States, the study estimates.
This Westward growth is why S. 1882, is so vitally important. There
is presently not in place an active Small Reclamation Loan Program at
the Bureau of Reclamation that is accepting proposals for projects.
From our perspective, the proposed amendments would bring a number of
important changes to the existing program that would help address the
issues related to growth in the West. This decision, amending the Small
Reclamation Loan Program, is an important step in investing in the West
and putting in place a revitalized program that western water users can
use to address the various needs associated with growth, whether they
be water supply, water conservation, water quality, environmental or
social purposes. There is currently a program gap between the larger
Reclamation project that is typically before your Subcommittee and the
smaller programs that Reclamation offers, such as technical assistance.
The Small Reclamation Water Resources Act of 2001 will close that gap.
The amendments contained in S. 1882 address these issues in the
1. No longer requiring irrigation as a project purpose in the
program will allow for the development of projects in the
urban-rural crossover setting that are more economically and
environmentally sound. This is precisely the area of greatest
need for support in development of small projects.
2. Providing additional definition and expansion of the
activities which can be undertaken through the program,
especially for rehabilitation and betterment and in the area of
water quality improvements. This will help address aging
infrastructure problems as well as developing new opportunities
to make better use of existing supplies, without the need to
create new water supply structures.
3. The streamlining of the proposal process, and the
establishment of a definite schedule for proposal processing
will give water users greater program confidence and certainty.
Proposals will no longer languish in the bowels of the
bureaucracy only to then have to wait years for an answer on
whether there is a Federal interest in the proposed work.
4. The establishing of a new, smaller partnership program
under Title II of the SRPA amendments, and the activities that
can be carried out under the program. This will facilitate
problem solving in a manner that gets the work done sooner
before more problems develop, through the work being carried
out by the project sponsor within 18 months and a shortened
5. The reduction of the repayment period for Title I projects
from 40 years to 25 years will also bring the program in line
with current business practices in the private sector and
lessen the financial exposure to the Federal government.
6. Connecting the proposed work to organizations that have
legal authority and responsibility for such work on their
projects, and making sure that work is consistent with
applicable State water law will keep the program focused and
As part of the discussions with the organizations I represent,
which helped in the development of the ideas embodied in S. 1882, some
have questioned whether the Bureau's Budget would be able to
accommodate this program. Western water user organizations have been
working successfully on the Energy and Water Appropriations bill
through our ``Invest In the West'' campaign to increase the allocation
for the Bureau of Reclamation's Water and Related Resources program.
Given the construction schedules associated with the program and the
decision-making process that is built into the legislation, we see this
as a $40 to $60 million a year program. We believe the Bureau of
Reclamation should be able to accommodate such a level, given the
changes to the program proposed by these amendments.
We appreciate the decision to increase the cost-ceiling in the
program from $359 million to $1.3 billion in order to accommodate the
interest out in the West for the program. This is one of the major
changes in S. 1882 from legislation introduced in past. S. 1882 calls
for $900 million to be made available to carry out projects under Title
I of the amendments, $300 million for Title II and $100 million for
Title III. These numbers are not without foundation.
When the program was suspended in 1995 there were Notices of Intent
for projects totaling approximately $450 million. Approximately $170
million of this total was for Native American projects. There were
another ten projects that were in or about to enter the construction
phase, the last three of which are being completed by this years
At the end of the 106th Congress we conducted an electronic survey,
based on similar legislation in the last Congress, to assess the
interest in the programs that would be developed under this
legislation. Historically 15 of the 17 Western states have used this
program. We received responses to our survey from water users in 12 of
the 17 states indicating a strong interest in using both Title I and
Title II of the proposed amendments.
Since that time I have also received responses to the idea
contained in S. 1882 of setting aside up to 20% of the proposed ceiling
in the program for Indian Tribes and economically disadvantaged
communities, an approach the water community strongly supports. These
amendments also open the program up to Hawaii, Alaska and the Insular
areas so their water needs can be addressed as well, an idea that we
Another 1998 recommendation of the Western Water Policy Review
Commission was ``Given the declining federal budgets, innovative
sources of funding and investment, including public and private
partnerships, must be found for the management and restoration of
Part of the reason for including a section in this bill on
guaranteed loans is to explore the initiation of a new loan guarantee
section under the Act. The Federal Government has approximately forty
guaranteed loan programs listed in the Federal Budget. The Loan
Guarantee section of these amendments is to open the door for a new,
innovative approach to assist in funding projects. We believe that
making available such a new financial tool for the Bureau to explore
and make use of (loan guarantees) could benefit the water users in the
West by having projects developed in a more timely manner while we all
continue to work together to increase the financial resources for the
Bureau of Reclamation for other projects in the program. As we stated
earlier, we don't envision this program being a heavy financial burden
on the Bureau of Reclamation's Water and Related Resources budget, but
we are willing to work with the Bureau to explore new ways, such as
this proposal, to see if there are financial innovations that work in
meeting our needs.
I would like to address the issue of whether the Bureau of
Reclamation should or shouldn't be in the loan business. Why is it that
almost every Federal agency has a loan program, to assist in carrying
out their activities, yet in past comments on the program the Bureau of
Reclamation claims ``the current loan process (at Reclamation) suffers
from a lack of trained credit officers to monitor loans as well as
assist in determining economic feasibility, repayment terms, maturity
dates, and interest rates . . . . Reclamation would continue to be in
the business of developing repayment contracts and engaging in loan
collection activities, two tasks for which the private sector is better
suited than the Federal Government.'' The former Administration made
great claims about Reinventing Government. Why can't Reclamation learn
from the best of what other Federal agencies do with their loan
programs and in turn benefit the public from a reinvention in their
loan program? This is part of the reason why S. 1882 is so important in
terms of the prescriptiveness of the process, decision making time
frames and the need to rewrite the guidelines for the new program
Some would like Reclamation just to be in the grant business. We
don't believe that would be a good idea. From FY91 to FY99 Reclamation
provided approximately 4,600 grants worth about $750 million. Unless
you tie the grants down like S. 1882 would do through the amendments to
the program, I believe that a grant only program would be a recipe for
waste and abuse. If the Bureau has such experience with grants, which I
have been told are more burdensome to administer, and have so few
loans, it would seem like they can figure out how to make a loan
program work better from an administrative standpoint.
The continuation of the Bureau of Reclamation's Small Reclamation
Loan Program, with the changes made by S. 1882 is the most important
and appropriate course to take at this time. Based on the details in
the Western Water Policy Review Commission report, our survey and
meetings and conversations with water users in the West, there is a
strong interest out there for a program that can help address the needs
of the West, and a belief that the Small Reclamation Loan Program is
the best vehicle to accomplish the work. Investing in the West through
the proposed amendments to the program will be the best step forward
into the 21st Century for helping the rural, urban, Indian population
and the water and environmental resources of the West.
The Chairman. Thank you very much, and let me call on
Senator Craig for his questions at this point.
Senator Craig. Mr. Chairman, thank you very much.
Gentlemen, thank you all for your testimony.
Jeff, let me address a couple of questions to you, and I
think I will mainly focus on something that we are both aware
of that I think you have addressed in part, but it's an
editorial that appeared in an Idaho newspaper about this
legislation. This editorial appeared to be written directly
from certain environmental groups talking points more so than
from the whole value of what we're attempting to do here, and I
believe it contained many inaccuracies such as saying that the
Idaho congressional delegation rejects requests from
environmentalists to testify on the bill.
As I understand it, there was an environmental group which
testified about the bill during the hearing for the House of
Representatives had on similar legislation, and my office
frankly has never heard from any of those groups that has made
request for the committee, or they would be seated there with
Let me quote from the editorial and see if you have a
response. It says: ``This legislation could be interpreted to
in the future include the Island Park and Grassy Lake
Reservoirs.'' Do you read that or is it the understanding of
the irrigation districts that the intent of this is to acquire
and/or transfer within this legislation that, or set a
precedent for that purpose?
Mr. Raybould. Mr. Chairman, Senator Craig, that is not our
intent nor is that the way we read that section of the
legislation. However, if a clarification can be made, and I
believe that they did make a clarification over on the House
side by relisting the exact facilities that were to be
transferred, we would be amenable to that. That wouldn't be a
problem for us at all.
Senator Craig. Okay. It says that only five of the 45 wells
in the Teton Basin District are now operable and those
additional wells--as those additional wells are brought on
lines and possibly expanded, some fear they will diminish flows
in the Lower Henry's Fork and the Teton River. They also ask
how operating more wells will affect people using surface and
ground water for irrigation areas. You partially addressed that
by the role that the State plays in monitoring and/or the
issuance of permits for drilling and water rights within those
areas. Would you care to address that any further?
Mr. Raybould. Mr. Chairman, Senator Craig, the opportunity
to develop more ground water with the existing State permit is
there. However, before we can do that, we're going to have to
go to the Idaho Department of Water Resources and secure
drilling permits for the number of wells that we want to drill.
There will be an opportunity for anyone to come to the
Department at that time and protest whether those drilling
permits are issued or not, and explain why. And we will have
the opportunity to show whether or not we believe there will be
injury, if there is any injury to occur, how we would mitigate
for that injury, and it's our intention to put forth a
mitigation plan that would take care of any potential impacts
to ground water or river flows prior to any further development
of that permit.
Senator Craig. Lastly, Mr. Chairman, it said: ``Land never
intended to be irrigated in the Fremont-Madison District could
be conceivably covered in this legislation.'' I didn't even
understand that comment in general, but your reaction to it?
Mr. Raybould. Mr. Chairman, Senator Craig, that's an
inaccurate statement. There has been some confusion over the
years about what the exact boundaries of the Fremont-Madison
Irrigation District are. A substantial amount of land was
annexed into the district on the anticipation of the completion
of the construction of the Teton Dam. As you may or may not be
aware, that dam failed on June 5, 1976, and was not
reconstructed. Those lands were already annexed into the
district and have been provided a supplemental water supply by
these wells that we're talking about, as well as the existing
supply that we have in Island Park and Grassy Lake Reservoirs,
and we are not intending to bring any more land into the
district, or water any land that the Bureau of Reclamation
isn't aware was either part of the original boundaries of the
district or this annexation which took place with Teton.
Senator Craig. Thank you for those questions. Let me
comment in closing for the record, Mr. Chairman, that as I have
been a part of transferring irrigation districts to title once
they have been paid out, as is the case here, the thing that is
most unique about Fremont-Madison is that they have looked very
closely at all of these other transfers, looked at their
problems, and from the very beginning, they chose a very open
public process. By incorporating in that the Henry's Fork group
and allowing full public participation in a very transparent
process, so my compliment to them for the way they worked this
We all know the importance of water in the West. They
recognize that. They also recognize the role that it plays for
things other than irrigation, and I think that's why they moved
in such an open and public way to ultimately bring us to this
legislation. I want to thank Jeff and his organization for that
Thank you, Mr. Chairman.
The Chairman. Thank you. Before I call on Senator Burns,
let me just ask one question, if I could, Mr. Raybould. We do
have this written statement that has been submitted for the
record and in fact we have a series of statements here. We have
six different statements of written testimony to be submitted,
some related to this legislation, some to other bills being
considered at this hearing.
This is from the Henry's Fork Foundation and the conclusion
is, it says, ``The HFF would like to request that the current
legislative proposal be delayed while the various stakeholder
groups are convened to see if there might be an alternative
that meets everyone's needs.''
Now you have undoubtedly seen that testimony. Could you
respond to that suggestion?
Mr. Raybould. I would be happy to, Mr. Chairman. We have
been working on this for over 4 years and we believe that we
have come to a point where we have resolved as many of the
differences as we can. We don't think there are any significant
issues out there left to be dealt with. This is a transfer of a
diversion dam, a canal and some wells and we would like to see
We know there's other issues out there. We're in a drought.
There is not enough water to go around. As I said in my
statement, we are committed to work with the Henry's Fork
Foundation and all the other stakeholders to work through these
issues and do the best job we can with the limited flexibility
that we have.
The Chairman. Thank you very much.
Senator Burns. Thank you very much, Mr. Chairman. I will
just--I want to first of all thank Dan Keil, Bruce Sunchild,
and the delegation from Montana who've come back to testify on
behalf of the legislation to complete the water distribution
system up in north central Montana.
You know as we look at this, this is not a new idea and
it's not a new project. We're not starting from ground level.
We already have projects established there. Right now we are
just looking for a system to manufacture more water and
distribute it more efficiently. But the State has made the
commitment to this project and so have the local communities.
And I want to personally thank Dan Keil for coming back
because Dan has been, ever since I've been around, he has been
dealing with rural water districts, 30 years experience on it,
and Dan knows that you just cannot take on a project like this
unless it has strong local support and people who are willing
to invest not only their time and talent, but their resources
into making it work. So I appreciate that.
But we're just building on a system that is already there,
and it is not a new idea, not a novel idea, so we just
appreciate your help and support on this. There are some minor
things we will have to work out with the BOR and I think we can
do that, working together with the communities and the
delegation, we can do that now.
As far as getting it passed this year, it looks like the
platter may be kind of full when we come back, but who knows.
We may see the floodgates open up and all kinds of positive
things happen. But Bruce and Dan, I appreciate you making this
trip today and this testimony, and we will continue to work
with you as this project moves forward.
Thank you, Mr. Chairman, and I appreciate scheduling the
hearing, and I think it will be one of those areas we might be
ready for a mark when you reconvene the full committee after we
come back and after the August break, and we will work pretty
hard in August trying to work out the kinks in this thing to
where it's acceptable to all parties, and I thank you for that.
The Chairman. Thank you very much. Let me thank all these
witnesses and go ahead and dismiss this panel, and call the
final panel, made up of the Honorable Martin Chavez, the mayor
of the city of Albuquerque, and Wayne Halbert, who is the
manager of the Harlingen Irrigation District.
I failed to recognize also that Dr. Peter Scholle, the
director and State geologist for New Mexico, with our New
Mexico Institute of Mining and Technology, is also here. Thank
you very much for coming. And Dr. Lee Allison is accompanying
him. He is with the Kansas Geological Survey, University of
Thank you all very much for being here. I think that the
testimony is divided on different subjects here. Let me start
on the left with Mayor Chavez to talk about his concern,
particularly about S. 2696, which I believe is the bill that
you are mainly focused on today. Thank you for coming.
STATEMENT OF MARTIN J. CHAVEZ, MAYOR,
Mr. Chavez. Thank you very much, Senator. Very briefly, and
my written comments I believe are part of the record, and I
would like to deviate somewhat on those based on Commissioner
Keys' testimony because I am frankly a little bit astonished
right now. I know him by reputation to be an outstanding
individual but I think there is a real problem somewhere at the
staff level of what the facts are as they're getting to the
By way of background of course, Tingley Beach was the place
where all of Albuquerque went in the 1940's to swim, to
recreate, until everyone started getting sick because it was
improperly lined. It was shut down. It is now used primarily
for fishing and the goal for the city of Albuquerque and this
wonderful piece of property that runs through the heart of the
city has been to renovate it, use it once again. It has been
the object of considerable capital expenditure by the city of
In 1997, we acquired it from the Middle Rio Grande
Conservancy District for $3.8 million, a very good currency. At
that time the Bureau of Reclamation specifically, on December
15, 1997, approved the sale by the conservancy to the city of
Albuquerque. And then subsequent thereto, we had the silvery
minnow litigation, at which time the Bureau of Reclamation
reversed its position and said that no, Conservancy doesn't
have title, we have title to all of the water works up and down
the Rio Grande as pertain to a conservancy district.
We kind of got caught up in that litigation, Senator, and
what was disturbing to me--and I think if we can meet and get
staff talking to staff properly, and elected officials to
elected and appointed officials properly, we can get this
worked out--in March--and these parcels have nothing to do with
that litigation, they have no impact on the litigation
whatsoever. In March of this year, the area manager from the
Bureau of Reclamation came to my office and said we agree this
has nothing to do with the litigation, go ahead and ask your
delegation to introduce legislation to clear the title.
And so we were operating only at the request of the Bureau,
or the suggestion of the Bureau of Reclamation, so I'm
astonished that they now stand in opposition. I think there is
just a disconnect somehow in the process and that's what I want
to work with you and the subcommittee to get resolved, but
that's where we are at.
There is a contest over title. If the conservancy owes it,
they have already conveyed it to us for $3.8 million. If the
Bureau of Reclamation owns it, and my personal legal opinion is
that their claim isn't too strong, but even if they do, they
have already expressed willingness to convey it to us anyway,
so we're left out in the cold wondering if we're going to have
to wait 10 years for that litigation to wind its way to the
Supreme Court, which it certainly will.
[The prepared statement of Mr. Chavez follows:]
Prepared Statement of Martin J. Chavez, Mayor, Albuquerque, NM
Thank you for inviting me to testify on Senate Bill 2696. The City
of Albuquerque is the victim of a fight between the Federal government
and the Middle Rio Grande Conservancy District over water. The fight
has jeopardized the development of Albuquerque's Rio Grande Biological
In 1997, the City paid the Conservancy District $3,875,000.00 for
Tingley Beach and San Gabriel Park in order to expand the Rio Grande
Biological Park. The Federal government now claims that the City does
not own the property. (United States District Court for the District of
New Mexico Cause No. CIV 99-1320 JP/KBM-ACE, entitled Rio Grande
Silvery Minnow, et al. v. Eluid L. Martinez, et al.) The Federal
government claims that in1953, in an unrecorded ``Grant of Easement'',
the Conservancy District conveyed fee title to all of its property to
the Federal government. If the claim is valid, the Conservancy District
did not own Tingley Beach and San Gabriel Park in 1997, and under
Reclamation law, title to the property can be conveyed to the City only
by an act of Congress.
The City plans to invest $15,300,000.00 of City funds to improve
and develop Tingley Beach and San Gabriel Park for the Rio Grande
Biological Park. The City cannot, however, risk the investment of
public funds to improve property it may not own. Until the cloud on the
City's title to the property has been removed, the City cannot improve
Tingley Beach and San Gabriel Park and complete the Rio Grande
Because of their location and characteristics, Tingley Beach and
San Gabriel Park are unique properties for the development of the Rio
Grande Biological Park. Monetary damages or the purchase of other
property will not permit the City to develop the unique, high quality
park that it can develop by improving Tingley Beach and San Gabriel
The Conservancy District leased Tingley Beach to the City in 1931
and San Gabriel Park in 1963. The City has been in possession of the
property since that time. The Conservancy District has not used the
property and there are no reclamation works on the property. The Bureau
of Reclamation recently determined that Tingley Beach and San Gabriel
Park is surplus to the reclamation project and that the Bureau of
Reclamation does not want the property.
The enactment of Senate Bill 2696 will remove the cloud on the
City's title to Tingley Beach and San Gabriel Park and permit the City
to complete the development of the Rio Grande Biological Park.
RIO GRANDE BIOLOGICAL PARK
The Rio Grande Biological Park lies along the east side of the Rio
Grande River north and south of Central Avenue, which is historic Route
66 through Albuquerque. It is an educational, research and recreational
treasure, that provides a unique and vital view of New Mexico and our
biologically diverse world, not only for the residents and visitors to
Albuquerque, but for the State of New Mexico. When completed, the Rio
Grande Biological Park will instill in the public a recognition of the
need for water conservation, habitat conservation, the interdependence
of life and environmental stability that is essential to our future as
a community, state and nation; support and enhance environmental
education, awareness and stewardship; and provide a recreational,
cultural and educational facility and resource that uniquely portrays
the cultural, environmental and ecological aspects of the Rio Grande
The Rio Grande Biological Park occupies 170 acres and consists of
the Rio Grande Zoo, Tingley Aquatic Park, and the Albuquerque Aquarium
and Botanic Garden. Tingley Aquatic Park will be constructed on the
site of Tingley Beach and the Botanic Garden will be expanded into San
Tingley Beach consists of 35.3 acres and is located south of
Central Avenue between the Rio Grande Zoo and the Albuquerque Aquarium
and Botanic Garden. It was created when Mayor Clyde Tingley, who later
became Governor of New Mexico, asked the Middle Rio Grande Conservancy
District to lease burrow pits that had been dug to construct a levy to
the City for a park and swimming beach.
The Albuquerque Aquarium and Botanic Garden is located north of
Central Avenue across from Tingley Beach. San Gabriel Park consists of
42.7 acres and is located northwest of and adjacent to the Botanic
Garden. In the late 1950's, the Conservancy District moved the
Albuquerque Drain west and isolated a portion of the Rio Grande River
channel. The Conservancy District leased this property to the City for
park and recreation purposes.
TINGLEY AQUATIC PARK
Because it lies between the Rio Grande Zoo and the Albuquerque
Aquarium and Botanic Garden, Tingley Aquatic Park is a key transitional
and connecting element in the Rio Grande Biological Park system that is
accessible by trail, road and eventually by a railroad.
Tingley Aquatic Park will be developed for water-oriented
recreational use, education and environmental research and planning.
Improvements will consist of five lakes for boating, deep-water
fishing, children's fishing and model boating. One lake will be an
observation lake. The City will also construct a swimming pool, picnic
areas and facilities, and a building for group meetings and gatherings
on the property.
As part of this project, the City will remove all non-native plants
from the bosque adjacent to Tingley Beach and re-establish and maintain
the Rio Grande cottonwood as the dominate canopy species. The City will
also create additional wetlands and marshes that were historically
abundant in the Rio Grande Valley.
The United States Corps of Engineers has plans to assist the City
in the reclamation and construction of the lakes. The Corps of
Engineers also plans, in association with the Rio Grande Zoo, to
construct a bosque exhibit on property adjacent to Tingley Beach that
will illustrate a succession sequence from an oxbow lake, to a cattail
marsh, to a saltgrass meadow, to a bosque.
The City's and the Corps of Engineers' projects at Tingley Beach
will improve wildlife habitat along the Rio Grande River at Tingley
Tingley Aquatic Park is also a part of the Rio Grande Valley State
Park which was authorized by the New Mexico Legislature in 1983 to
preserve, protect and maintain the natural scenic beauty of the Rio
Grande River and its immediate riverine corridor. The City is the
operator of the Rio Grande Valley State Park.
SAN GABRIEL PARK
The Botanic Garden was created to reflect the region's
environmental and cultural heritage. The expansion of the Botanic
Garden into San Gabriel Park will carry through with this theme. The
improvements will include seventeen gardens, including a Japanese Tea
Garden, conservatories, a tree nursery, botanic library, herbarium,
office and meeting rooms, and support facilities.
The expansion at San Gabriel Park will include ethnobotanic
exhibits which will offer the only place in the state to learn about
the historic use of plants for fiber, food and medicine. An antique
apple orchard will feature apple trees that were brought to the area by
Hispanic settlers. The Zuni Waffle Garden will illustrate ancient
Anazazi Indian methods for conserving water and will feature ancient
plants cultivated by the Anazazi. The City has already constructed the
El Jardin de la Curandera exhibit at San Gabriel Park, honoring 400
years of Hispana presence in New Mexico and exploring herbal medicines
used within the contexts of the practices of curanderismo.
A Period Farm will illustrate farming techniques and practices
during the period from 1920 through 1940 which was the period of
Albuquerque's greatest growth and transformation into an urban center.
The Trial Garden will feature new breeds of plants and the Camino
de Colores will be a highway of flowers.
An exhibit entitled El Canoncito will provide the backdrop for the
Conifer and Mountain Meadows exhibit and will illustrate the varied
microclimates found in the mountain environments of New Mexico.
San Gabriel Park is in the cottonwood bosque (riparian forest) of
the Rio Grande River and offers an unparalleled opportunity to showcase
this distinctive natural environment. The expansion of the Botanic
Garden into San Gabriel Park will include a Cottonwood Gallery of the
magnificent existing stands of cottonwoods that remain to provide a
living example of the native bosque.
The City, in cooperation with the State of New Mexico and the
United States Bureau of Reclamation, will construct, at San Gabriel
Park, the Rio Grande Silvery Minnow Rearing and Breeding Facility for
breeding and conditioning the endangered Rio Grande Silvery Minnow for
release into the Rio Grande River. The City recently awarded a contract
for the construction of this facility.
RIO GRANDE BOSQUE RAILROAD
The master plan for the Rio Grande Biological Park includes the
construction of the three-quarter scale Rio Grande Bosque Railroad
which will provide a transportation link that covers the four miles of
the Rio Grande Biological Park between the Aquarium and Botanic Garden
in the north, through Tingley Aquatic Park, to the Rio Grande Zoo in
the south. A depot and turnaround will be constructed at San Gabriel
Park and a depot will be constructed at Tingley Aquatic Park. The Rio
Grande Bosque Railroad will also connect the national Hispanic Cultural
Center south of the Rio Grande Zoo with the Rio Grande Biological Park.
The enactment of Senate Bill 2696 will make the City's vision for a
unique biological park possible. I urge your support of Senate Bill
The Chairman. Before we go to the other witnesses, let me
just very quickly break with our usual procedure here and just
ask a question or two about this, since I don't think any of
the other witnesses are going to testify on this particular
Can you elaborate a little more on what the city's plans
are for this biological park and why the delay in getting this
title cleared would be a real problem for the city?
Mr. Chavez. Yes, certainly, Senator. We have already spent
close to $4 million on Tingley, acquiring the property. We have
title insurance to cover us but I don't want the insurance, I
want the property. We are poised to spend approximately $15
million in the complete renovation, with beautiful paddle
areas, swimming areas, remote control boats. It's going to be a
gorgeous--it will restore it to what it was if not better than
in the 1940's.
But I am reluctant to authorize the expenditure of
municipal taxpayer money if we don't have title to the
property, and the bureau's offer of a license doesn't give us
any relief. What they're offering us is a 25-year license fully
revokable at their whim, and that of course is not the basis
upon which a prudent mayor would spend millions of dollars.
The Chairman. Thank you very much. Let me just say, we want
to keep working with you and try to resolve this breakdown in
communication which apparently exists with the Bureau of
Reclamation. But, I thank you very much for testifying, and we
will continue to work with you on that. You can remain for the
remainder of the hearing or proceed with your next obligation,
whatever your choice is.
Mr. Chavez. I do have some other goals for Albuquerque, and
I'm going to go try to shake another branch of the Federal
money tree across town.
The Chairman. I knew you had that in mind. So Mr. Halbert,
why don't you go ahead with your testimony.
STATEMENT OF WAYNE HALBERT, GENERAL MANAGER,
HARLINGEN IRRIGATION DISTRICT, CAMERON COUNTY #1, HARLINGEN, TX
Mr. Halbert. Thank you, Mr. Chairman, committee members,
and staff. Thank you for the opportunity to testify before you
today for the communities and water districts along the lower
Texas border. My name is Wayne Halbert, general manager of the
Harlingen Irrigation District, and I represent irrigation
districts that supply irrigation water for a million acres or
over a million acres of farmland, and raw water to
municipalities for over a million and a half people.
My testimony is in support of S. 1577 and H.R. 2990, which
amends the Lower Rio Grande Valley Resources Conservation
Improvement Act of 2000.
For the past several years the border region has been
deeply involved in integrated resource management studies to
determine a direction for our communities to make in water
resource management. These studies have given us really stark
revelations as to unprecedented predictions and population
growth, and needs for the water resources over the next few
Rio Grande Valley water districts have partnered with the
Bureau of Reclamation on projects since the early 1950's, and
many developed projects remain undone due to the lack of
funding available to meet the needs of these districts.
Districts since those fundings ran out in the 1960's have
systematically chipped away at these projects within their
budget restraints. However, various changes in the water
resource conditions have made this a slow process,
unacceptable, has made this slow process unacceptable and has
placed the agricultural and municipal supply needs in peril.
Dryer than normal conditions, drought situations, explosive
developments in Mexico and the United States along the border
with Mexico, Mexico's violation of the terms of the 1944 treaty
which many of you have seen in the newspapers. Population
explosion in the Rio Grande Valley has escalated massive
problems within our water resource situation.
And if our population problems aren't enough, Mexico's
along the borders are many times worse, and they draw from the
same resource we're talking about. All of these pressures have
turned up the heat on water resources on the Rio Grande, and
there are many valid reasons and concerns and frustrations over
the various issues that we could think about and talk about
that desperately need your help.
But really what we're here for today is to offer you a
blueprint for at least some of the solutions to our problems.
The comprehensive water recourse plans sought solutions that
would provide a balance to the fragile economy and environment
of the border region. Our goal was to find enough firm yield
water to provide for the municipal, industrial, environmental
and agricultural needs of the region and to dovetail those
plans into the expected growth needs of the valley.
With 85 percent of the water being used by agriculture,
obviously our plans showed that the greatest challenges of
conservation and the greatest opportunities of conservation
would be in irrigation projects. S. 1577/H.R. 2990 provides the
authorization for the Bureau of Reclamation to implement the
programs and projects that surfaced as the most cost effective
way to provide for the water resource needs of the Texas border
Our irrigation systems were built in the early 1900's,
1905, and they are the life blood of the municipalities as well
as agriculture. All of the municipalities along the Rio Grande
border depend on the irrigation systems to deliver their water
to them for treatment. The projects outlined in this
legislation would more than double the water available for
municipal and industrial use without collapsing the
agricultural economy. The agricultural economy is extremely
important to our region.
A couple of years ago we testified that an undependable
water supply could do irreparable damage and would push our
local unemployment figures out of sight. We now have a report
from Texas A&M that estimates as many as 30,000 jobs have been
lost over the past few years directly related just to the
Mexico treaty issue alone. The importance of legislation has
been accelerated by all of the conditions that we have stated.
We recognize that we may have to live and grow on less
water than we have been accustomed to. We continue to lose
farms and businesses that have been a part of the Rio Grande
Valley heritage for over a hundred years, mostly because water
resource demands of the past 7 years have been inadequate.
The cost of water to the general public is on the rise and
will continue to do so as the scarcity of the resource
manifests itself. This legislation allows us to turn these
tragic losses around and provide new life and new hope to the
Rio Grande border region. Districts had planned these needed
projects for years and anticipated accomplishing them over the
next 20 years or so, but the testimony that we have given today
has shown you that we do not have that luxury.
Every few acre feet of water not conserved is another
family farm gone, another few jobs lost, another business who
has had to close their doors. Our future is definitely in your
hands, and we appreciate your support for S. 1577/H.R. 2990.
Thank you for your attention.
[The prepared statement of Mr. Halbert follows:]
Prepared Statement of Wayne Halbert, General Manager,
Harlingen Irrigation District, Cameron County #1, Harlingen, TX
Mr. Chairman, Committee Members and staff, thank you for the
opportunity to testify before you today on behalf of the communities
and water districts along the Texas Border. I am Wayne Halbert, General
Manager of the Harlingen Irrigation District and represent irrigation
districts that supply irrigation water to over a million acres of
farmland and raw water to municipalities for over 1.5 million people.
Our testimony is in support of S. 1577, which amends the Lower Rio
Grande Valley Resources Conservation and Improvement Act of 2000, to
authorize additional projects under that Act, and for other purposes.
For the past several years the Border Region has been deeply
involved in Integrated Resource Management studies to determine a
direction for our communities to take in water resource management. The
State of Texas gave direction to these studies in 1997 with legislation
that required even more comprehensive determinations of water resource
status. These studies have given us some stark revelations as to
unprecedented predictions in population growth and needs for water
resources over the next few years. The Rio Grande Valley Irrigation
Districts have partnered with the Bureau of Reclamation on projects
since the early 1950's. Most of the Districts have utilized BOR loan
programs to do conservation projects. Many developed projects remain
undone due to a lack of funding available to meet the needs. Districts
have systematically chipped away at these projects within their budget
Various changes in the water resource condition have made this slow
progress unacceptable and has placed the agricultural and municipal
supply needs in peril. Drier than normal conditions over the past nine
years have exhausted water supplies and caused thousands of acres of
land to become unproductive and unable to sustain the industry that
depends on that production. Explosive developments in Mexico, which
share the waters of the Rio Grande, have deprived the United States of
a greater amount of the water resource, accelerating the crisis.
Admittedly a part of the Mexico issue is drought related but a greater
part is a change in Mexico's operations of their system that has
deprived the U.S. users of over a year's supply of water and placed
Mexico in violation of the terms of the 1944 Water Treaty.
The population explosion in the Rio Grande Valley area is escalated
by the massive legal and illegal migration from Mexico for which
Congress continues to struggle with solutions even today. As if our
population problems are not enough, Mexico's along the border are many
times worse and they draw from the same resource.
All of these pressures turn up the heat on the water resources for
the Rio Grande. There are many valid concerns and frustrations over
various issues that we desperately need congressional help with, but we
also want to offer you a blue print for at least some of the solutions.
The comprehensive water resource studies of which copies of these
reports have been provided to this committee, an emphasis was made to
seek solutions that would provide balance to the fragile economy and
environment of the border region. The committees and consultants were
charged with the responsibility of finding ways to provide an adequate
water supply for the least amount of impact, both financial and
physical. Our goal was to find enough firm yield water to provide for
the municipal, industrial, environmental and agricultural needs of the
region and to dovetail that plan into the expected growth needs of the
The studies looked at desalination, reverse osmosis, runoff reuse,
groundwater recovery, new dam sites, long distance pipelines and any
other opportunity that presented any semblance of credible water
supply. After several years of study it has become apparent that
because agriculture uses 85% of the water available, agriculture must
be the target for the major water conservation projects.
S. 1577/H.R. 2990 provides the authorization for the Bureau of
Reclamation to implement the programs and projects that surfaced as the
most cost effective way to provide for the water resource needs of the
Texas Border region. Most of the irrigation systems were built in the
early 1900's and many of the delivery systems that are the lifeblood of
the municipalities as well as agriculture must be renovated.
Improvements to these canals would provide annually one half of a years
current municipal needs in saved water. Other conservation projects
that include volumetric accounting of the water and new technologies in
water delivery could save another 75% of the municipal current annual
needs. All of these projects can be accomplished for construction costs
of from $0.02 to $3.07 per 1000 gallons which projects on a debt
service basis from a fraction of a cent to $0.23 per 1000 gallons of
water saved. The projects outlined in this legislation could more than
double the water available for municipal and industrial use without
collapsing the agricultural economy.
The agricultural economy is extremely important to our region as a
large portion of the workforce is dependent on the agriculture
industry. The Border aspects of the region only increases this problem
and agricultural layoffs create immediate social problems far beyond
the normal expectations. We testified a couple of years ago that an
undependable water supply could do irreparable damage and would push
our local unemployment figures out of sight. We now have a report from
Texas A&M that estimates as many as 30,000 jobs have been lost over the
past nine years directly related to the water shortage on the Mexico
The importance of this legislation has only been accelerated by the
past several years drought condition and recent information that
indicate explosive demands in Mexico on the water resource. We
recognize that we may have to live and grow on less water than we have
been accustomed to. The latest work by Texas A&M University economist
have documented losses approaching one billion dollars over the past
five years attributable solely to Mexico's withholding of water from
the four county region of the Lower Rio Grande Valley. We continue to
lose farms and businesses that have been a part of the Rio Grande
Valley heritage for over a hundred years, mostly because water resource
demands the past seven years have been inadequate. The greatest impacts
of these losses today are to our agricultural community; however, the
associated impacts are beginning to take their toll to the Border
Region as a whole. The cost of water to the general public is on the
rise and will continue to do so as the scarcity of the resource
manifests itself. Water shortages to the general populace have been
held to a minimum but we are rapidly approaching a crisis in this arena
This legislation allows us to turn these tragic losses around and
provide new life and new hope to the whole Rio Grande Border Region.
The infrastructure that is needed to solve these problems is apparent.
Districts have planned these needed projects for years and anticipated
accomplishing them over the next twenty or so years. Testimony today
has shown you that we do not have that luxury. Every few acre feet of
water not conserved is another family farm gone, another few jobs lost,
another business who had to close their doors. Our future is in your
We appreciate your support for S. 1577. Thank you for your
The Chairman. Thank you very much for your testimony.
Dr. Scholle, why don't you go right ahead.
STATEMENT OF PETER SCHOLLE, Ph.D., STATE GEOLOGIST AND
DIRECTOR, NEW MEXICO BUREAU OF GEOLOGY AND MINERAL RESOURCES,
NEW MEXICO INSTITUTE OF TECHNOLOGY, SOCORRO, NM, ACCOMPANIED BY
M. LEE ALLISON, Ph.D., STATE GEOLOGIST AND DIRECTOR, KANSAS
GEOLOGICAL SURVEY, UNIVERSITY OF KANSAS, LAWRENCE, KS
Dr. Scholle. Thank you, Mr. Chairman, members of the
committee. I am the director of the Bureau of Geology and
Mineral Resources and the New Mexico State Geologist, as well
as a member of the High Plains Aquifer Coalition. I am
appearing today on the coalition's behalf in support of S.
The coalition is a joint effort between the Geological
Surveys of the eight High Plains Aquifer States and the U.S.
Geological Survey. The coalition's objective is to improve the
geological characterization and understanding of the High
With me is Lee Allison, lead organizer of the coalition and
the State geologist and director of the Kansas Geological
Survey. We appreciate the invitation to appear before this
In introduction, a reliable source of water is essential to
the well-being and livelihoods of the people in the High Plains
region where ground water is used for drinking water, ranching,
farming and other purposes. However, many areas of the High
Plains Aquifer have experienced a dramatic depletion of this
resource. The problem we face is that current water removal
rates cannot be sustained, and the aquifer is being rapidly
Let me begin with some facts about the aquifer. It
encompasses one of the major agricultural regions in the world,
it underlies 174,000 square miles and includes parts of eight
States, New Mexico, Texas, Oklahoma, Kansas, Colorado,
Nebraska, Wyoming and South Dakota, as you can see from the
map. Approximately 2.3 million people live within the High
Plains and the aquifer supplies drinking water for 82 percent
of them. Agriculture, however, represents the dominant land and
water use in the region, with 94 percent of ground water
withdrawals from the aquifer for irrigation.
The High Plains Aquifer is the single largest and most
productive aquifer in the United States, yielding about 30
percent of the Nation's ground water used for irrigation.
During 1955, total water use outside the Platte River Valley in
Nebraska, total water use in the High Plains was estimated to
be 19.9 billion gallons per day, and outside the Platte River
Valley in Nebraska, 92 percent of that need was met by aquifer
Although High Plains dry land farming is possible,
availability of water on demand from the aquifer has made
abundant reliable crop yields a reality. As a result, the
region accounts for about 19 percent of total U.S. production
of wheat and cotton, 15 percent of our corn, 3 percent of our
sorghum. In addition, the region produces nearly 18 percent of
U.S. beef and is rapidly becoming a center for hog and dairy
industries. Those numbers alone should elevate concern about
the health of the aquifer from a regional to a national level.
In terms of the aquifer, the High Plains Aquifer is often
discussed as a single entity, but it's really a regional system
composed of eight smaller units that are geologically similar
and hydrologically connected, that is, water can move from one
sub-aquifer to another. The aquifer consists of a heterogeneous
mixture of loose clay, silts, sands and gravels deposited over
millions of years by ancient river systems. The Ogallala
Formation is the principal geologic unit but the aquifer as a
whole also includes deposits that are older and younger than
The saturated thickness of the aquifer can exceed a
thousand feet, but typically averages about 200 feet. The
depths of the water table ranges from 0 to 500 feet, with an
average of about 100 feet. Aquifer water generally flows
westward and discharges naturally through streams and springs.
Water may also be lost from the aquifer by evapotranspiration
or through leakage into underlying rock units. However, pumping
from numerous irrigation wells is the number one cause of
ground water withdrawal.
Precipitation is the dominant source of water recharge for
the aquifer. The relatively low rainfall of the region limits
aquifer recharge rates and thus provides a long-term limit on
renewable water use. The estimated annual potential recharge
from rainfall ranges from as little as a quarter of an inch per
year in the southwestern portion of the aquifer, unfortunately
in New Mexico, to 6 inches in the northeastern portion.
Withdrawals greatly exceed recharge in many areas since
extensive irrigation began in the 1940's. This has resulted in
widespread water level declines, especially in southern areas,
more than 100 feet in parts of Kansas, New Mexico, Oklahoma and
Texas. In some places irrigation has become impossible or cost
prohibitive because of such declines. From 1980 to 1997 the
average water level in the aquifer fell 2.7 feet. Current
drought conditions can only increase water use and aquifer
Looking at New Mexico specifically, 72 percent of the
aquifer area that had potential water production now has less
than 50 feet of saturated thickness. 30 feet is considered the
economic minimum for irrigation. In addition, New Mexico's
aquifer water levels are continuing to fall at average rates of
a foot every four years, despite higher than average rainfall
in the 1990's.
The research needs are great. Because the structure for
conducting hydrogeologic research on the aquifer differs
dramatically among States, both the existing knowledge base and
ongoing aquifer research efforts vary substantially from State
to State. Much of the past research was limited by State
expertise and budget allocations.
To prevent future inconsistencies among State research
efforts and to efficiently utilize existing research data, the
High Plains Aquifer Coalition was chartered a year ago. During
that year the coalition has begun an information exchange and
standardization process and is in the early stages of
developing a cooperative regional strategic plan for scientific
research and collaboration.
Through past research we have learned that the aquifer is
heterogeneous, consists of many subregions and small flow
units. Past research also helped identify the need to focus
future research efforts on geological and hydrological
characterizations, mapping, modeling and monitoring of aquifer
subunits. Improved knowledge of these areas will refine our
understanding of the aquifer, provide better tools and
strategies for long-term coordinated aquifer management, and
ultimately will lead to the development of improved approaches
for enhancing and extending the life of the aquifer.
State water and local water users, managers and regulators
increasingly are demanding the types and quality of data needed
to develop useful and reasonable water management programs. The
resources currently available to State and Federal universities
are insufficient to meet these needs. Added Federal funds would
expand existing capabilities and enhance the efforts of ongoing
local State funding.
The eight coalition State geological surveys and the U.S.
Geological Survey are nonregulatory scientific agencies that
are impartial. In consultation with State and local water
agencies and groups, they have agreed on a need for a
comprehensive understanding of the subsurface configuration and
hydrogeology of the High Plains aquifer.
Major research questions include rates and controls on
recharge, relationships among saturated thickness, geologic
character and well yield, relationships among water levels,
water use and aquifer lifetime, and impact of climate change.
More detailed discussions of specific science plans are
included in the written testimony and won't be covered here.
S. 2773 establishes procedures to ensure that the research
performed is that most critical to water users and managers.
The bill would require that broadly based State advisory groups
concur with proposed studies, that peer review ensures that
research is of the highest quality, that funds are awarded on
merit, and that there is technical review of both Federal and
State activities. These procedures provide an unusually
rigorous level of accountability.
In conclusion, this bill will help ensure that the relevant
science needed to address aquifer depletion is available so
that we will have a better understanding of resources of the
High Plains Aquifer. We urge this subcommittee to support S.
2773. This concludes our testimony on behalf of the coalition,
but we would be happy to answer questions that you may have.
[The prepared statement of Dr. Scholle follows:]
Prepared Statement of Peter A. Scholle, Ph.D., State Geologist and
Director, New Mexico Bureau of Geology and Mineral Resources, New
Mexico Institute of Technology, Socorro, NM
Mr. Chairman and Members of the Committee, my name is Peter
Scholle, and I am the Director of the Bureau of Geology and Mineral
Resources, the New Mexico State Geologist, and a member of the High
Plains Aquifer Coalition. I am appearing today on the Coalition's
behalf in support of Senate Bill 2773--The High Plains Aquifer
Hydrogeologic Characterization, Mapping, Modeling and Monitoring Act.
The Coalition is a joint effort between the geological surveys of the
eight High Plains Aquifer states and the U.S. Geological Survey. The
Coalition objective is to improve the geological characterization and
understanding of the High Plains aquifer. With me is Lee Allison, the
lead organizer of the Coalition, and the State Geologist and Director
of the Kansas Geological Survey. We appreciate the invitation to appear
before this Committee.
A reliable source of water is essential to the well-being and
livelihoods of people in the High Plains region where ground water is
used for drinking water, ranching, farming, and other purposes. Many
areas of the High Plains aquifer have experienced a dramatic depletion
of this resource. Large-volume pumping from this aquifer has led to
steadily declining water levels in the region, and the area faces
several critical water-related issues.
Let me begin with some facts about the aquifer. The High Plains
aquifer is the most widespread blanket sand and gravel aquifer in the
nation. It encompasses one of the major agricultural regions in the
world and underlies 174,000 square miles, including parts of eight
states New Mexico, Texas, Oklahoma, Kansas, Colorado, Nebraska, Wyoming
and South Dakota. (Figure 1) *
* Figures 1-4 have been retained in subcommittee files.
Approximately 2.3 million people live within the High Plains, and
the aquifer supplies drinking water for 82 percent of them.
Agriculture, however, represents both the dominant land and water use
in the region (94 percent of groundwater withdrawals from the aquifer
are for irrigation). The High Plains aquifer is the most intensely
pumped aquifer in the United States, yielding about 30 percent of the
nation's ground water used for irrigation. During 1995, total water use
in the High Plains was estimated to be 19.9 billion gallons per day
and, with the exception of the Platte River Valley of Nebraska, 92
percent of that need was met by aquifer water.
Although High Plains dry-land farming is possible, availability of
``water on demand'' from the aquifer has made abundant, reliable crop
yields a reality. As a result, the region accounts for about 19 percent
of total U.S. production of each wheat and cotton, 15 percent of our
corn, and 3 percent of our sorghum. In addition, the region produces
nearly 18 percent of U.S. beef and is rapidly becoming a center for hog
and dairy industries. Those numbers alone should elevate concern about
the sustainability of the aquifer from a regional to a national level.
Aquifers are underground deposits containing permeable rock or
sediments (silts, sands, and gravels) from which water can be pumped in
usable quantities. Although the High Plains aquifer often is discussed
as a single entity, it is a regional system composed of eight smaller
units that are geologically similar and hydrologically connected that
is, water can move from one aquifer to the other. The aquifer is
unconfined, that is, it is not confined under pressure below
impermeable rocks as artesian water is. The aquifer consists of a
hetereogeneous mixture of loose clays, silts, sands, and gravels that
formed over millions of years by ancient river systems. The Ogallala
Formation is the principal geologic unit, but the aquifer as a whole
also includes deposits that are older and younger than the Ogallala. In
some locations, the Ogallala Formation crops out at the surface,
forming a naturally cemented rock layer called mortar beds.
Aquifer characteristics are determined in large part by geology.
The High Plains aquifer is composed mainly of silt, sand, gravel, and
clay-rock debris that washed off the face of the Rocky Mountains and
other more local sources over the past several million years. The
aquifer varies greatly from place to place: thick in some places, thin
in others; permeable (able to transmit water easily) in some places,
less so in others. Where the deposits are thick and permeable, water is
easily removed and the aquifer can support large volumes of pumping for
long periods. In most areas, this water is of good quality.
Beneath the High Plains aquifer is much older, consolidated
bedrock, usually limestone, sandstone, or shale. In some places this
bedrock holds enough water to be called an aquifer, and it may be
connected to the overlying aquifer. Some layers of the underlying
bedrock contain saltwater; where these are directly connected to the
High Plains aquifer, they pose a threat to water quality.
WATER RESOURCES IN THE HIGH PLAINS AQUIFER
Usable water in the High Plains aquifer is in the pore spaces
between particles of sand and gravel. This water (called ground water)
accumulated slowly--in some of the deeper parts of the aquifer, over
tens of thousands of years. In the subsurface, water in the aquifer
generally moves slowly from west to east, usually at the rate of tens
of feet per year.
Water volumes and use are measured in various ways. One measure is
an acre-foot, or the amount of water necessary to cover an acre of
ground (a parcel about the size of a football field) with a foot of
water. An acre-foot equals 325,851 gallons of water.
Another measure of ground water is saturated thickness. The
saturated thickness of the High Plains aquifer is the vertical distance
between the water table and the base of the aquifer. Saturated
thickness is commonly measured in feet but ``feet of saturated
thickness'' is not the same as feet of actual water. Only about 10 to
25 percent of the aquifer volume is pore space that can yield
extractable water. Therefore, in an aquifer with 17 percent pore space,
removing 1 acre-foot of water causes the water table to drop by about 6
feet. The saturated thickness of the aquifer can exceed 1,000 feet, but
averages about 200 feet. Depth to water table ranges from 0 to 500
feet, with an average of about 100 feet. Much greater saturated
thicknesses were common before the onset of large-scale irrigation.
Groundwater can also be measured in terms of its availability: how
much water can be removed by a well over short periods. Large volumes
of water can be pumped rapidly (1,000 gallons or more per minute) from
the High Plains aquifer in many locations. This contrasts with many
areas in the region, where wells generally produce smaller amounts
(less than 100 gallons per minute). By way of comparison, a good
household well produces 5 to 10 gallons per minute, although many
household wells produce less.
Recharge is the natural movement of water into an aquifer, usually
from precipitation. Areas of increase can also be the result of
increased recharge to the aquifer by one or more of the following
factors: greater than normal precipitation; decreased withdrawals; or
downward leakage of surface-water irrigation and water from unlined
canals and reservoirs. The relatively low rainfall of the region limits
aquifer recharge rates and thus provides a long-term limit on
sustainable water use. The estimated average annual potential recharge
from rainfall ranges from as little as 1/4 of an inch per year in the
southwestern portion of the aquifer area to 6 inches in the
northeastern portion. Where the aquifer is closer to the earth's
surface, where soils are sandier, and precipitation amounts greater,
recharge can be significant, as much as 4 to 6 inches per year.
Withdrawals greatly exceeded recharge in many areas since intensive
irrigation began in the 1940's. This has resulted in widespread water-
level declines, especially in southern areas--more than 100 feet in
parts of Kansas, New Mexico, Oklahoma and Texas. In some places,
irrigation has become impossible or cost prohibitive because of such
declines. From 1980 to 1997, the average water level in the aquifer
fell 2.7 feet. (Figure 2 )
Aquifer water generally flows eastward and discharges naturally to
streams and springs. Water may also be lost from the aquifer by
evapotranspiration or through leakage into underlying rock units.
However, pumping from the numerous irrigation wells is the number one
cause of groundwater withdrawal. Decreases in saturated thickness of 10
percent or more result in a decrease in well yields and an increase in
pumping costs because the pumps must lift the water from greater depths
(Figures 3 & 4).
WATER-LEVEL DECLINES IN THE AQUIFER
Large-scale irrigation began in the High Plains in the late 1800's,
with the use of ditches to divert water from rivers. As technology
improved, groundwater became the major irrigation source because
surface water (lakes, rivers, and streams) is relatively scarce in the
region. With the advent of large-capacity pumps that were capable of
drawing several hundred gallons of water per minute, people began to
exploit that ground water. Using a technique called flood irrigation,
water was pumped through long pipes or ditches along the edges of a
field, then out onto rows of crops.
In the 1950's and 1960's, technological developments led to a
dramatic increase in large-scale pumping. In particular, center-pivot
irrigation systems--large sprinklers that roll across the land on
wheels--allowed people to irrigate uneven terrain, thus opening up
large new areas for irrigation. These irrigation methods led to the
cultivation of crops, such as corn, that could not previously be grown
reliably in the area.
For many years, people believed that the High Plains aquifer
contained an inexhaustible amount of water. However, large-volume
pumping (mostly for irrigation) eventually led to substantial declines
in the water table, and people realized that the amount of water in the
aquifer was finite and could be exhausted. Much of the Ogallala portion
of the High Plains aquifer has declined since predevelopment, with some
areas having declines of more than 60 percent.
WHEN WILL THE AQUIFER RUN DRY?
Perhaps the most common and important question about the High
Plains aquifer is: How much longer can it support large-scale pumping?
It's a simple question with a complicated answer. First, the aquifer
will probably be able to support small, domestic wells far into the
future. With proper planning, most cities and towns should be able to
provide for their water needs. Second, the future of agricultural use
of the aquifer depends on a variety of factors, including the price of
irrigated crops, the price and availability of energy (the deeper the
water table, the more energy it takes to pump water), climate, and how
the water is managed. Third, it is important to remember that the
aquifer is not one consistent, homogeneous unit. Rather, it varies
considerably from place to place. In places, the aquifer consists of
less than 50 feet of saturated thickness and receives little recharge.
In other places, the aquifer is far thicker or receives considerably
With those qualifications in mind, researchers have made
projections about the aquifer, based on past trends in water-level
declines. Obviously, the actual future use of water will be affected by
commodity prices, energy prices, climate, and management policies. In
addition, relatively little data are available for some parts of the
aquifer, and projections are not practical in those areas. Assuming a
saturated thickness of 30 feet as the minimum amount necessary to
support large-scale pumping, researchers concluded that parts of the
aquifer are effectively exhausted in some areas. Other parts of the
aquifer are predicted to have a lifespan of less than 25 years, based
on past decline trends. However, the biggest share of the aquifer would
not be depleted for 50 to 200 years or longer. It is important to
remember that these projections are based on past trends, and future
changes could alter the actual depletion rate.
WHERE DO WE GO FROM HERE?
Individuals, governmental agencies, and private organizations are
all attempting to address issues related to the High Plains aquifer. In
addition, several new institutions have recently been proposed to deal
with issues concerning the aquifer on a regional basis. Irrigators have
implemented a number of techniques that have improved the efficiency
with which they use water--using low-pressure application methods on
center-pivot systems, for example, instead of spraying water high into
Among the more far-reaching proposals for extending the life of the
aquifer is the idea of sustainable development. This is the concept of
limiting the amount of water taken from the aquifer to no more than the
amount of recharge, and perhaps less, depending on the impact on water
quality and minimum streamflows. This level of use is the target of the
safe-yield management policies currently in effect in some Groundwater
Management Districts in the wetter or thicker parts of the High Plains
aquifer. Adoption of a similar policy in other areas of the High Plains
aquifer would require a substantial decrease in the amount of water
currently used. This would have an impact on the type and amount of
crops grown in the area and, in turn, on a variety of economic
activities. Because many of the water rights in the High Plains aquifer
were established long ago and thus may have priority, the
implementation of sustainable-development approaches to water resources
has potentially serious legal implications. Other methods for dealing
with the High Plains aquifer are being proposed, discussed, and
implemented. All are aimed at extending the life of this crucial
HIGH PLAINS AQUIFER COALITION
Each state manages its water resources differently. The number of
state and local water agencies and their duties vary dramatically among
the eight High Plains states. None of the eight state geological
surveys deal directly with groundwater management. State geological
surveys provide scientific advice to their respective state and local
management agencies. Some state surveys focus strictly on the geologic
framework in which groundwater exists, others investigate both the
geology and the hydrology of groundwater.
Because the structure for conducting hydrogeologic research on the
aquifer differs dramatically among states, both the existing knowledge
base and ongoing aquifer research efforts vary substantially from state
to state. Much of past research was limited by state expertise, budget
allocations and cooperation among state agencies. To prevent future
inconsistencies among state research efforts and to efficiently utilize
existing research data, in June 2000, the geological surveys of the
eight states that contain the High Plains aquifer formed the High
Plains Aquifer Coalition, in alliance with the U.S. Geological Survey.
Coalition members are Kansas Geological Survey, New Mexico Bureau of
Geology and Mineral Resources, Nebraska Conservation and Survey
Division, Texas Bureau of Economic Geology, Colorado Geological Survey,
Oklahoma Geological Survey, South Dakota Geological Survey, Wyoming
State Geological Survey, and U.S. Geological Survey.
The purpose of the Coalition is to cooperate in joint
investigations and scientific exchanges concerning the earth sciences
(including hydrology, geology, geochemistry, geochronology, geophysics,
geotechnical and geological engineering and related investigations) on
topics of mutual interest. This agreement was specifically undertaken
to advance the understanding of the three-dimensional distribution,
character, and nature of the sedimentary deposits that comprise the
High Plains aquifer in the eight-state Mid-continent region. It
recognizes that the distribution, withdrawal, and recharge of
groundwater, and the interaction with surface waters is profoundly
affected by the geology and the natural environment of the High Plains
aquifer in all eight States--New Mexico, Texas, Oklahoma, Colorado,
Kansas, Nebraska, South Dakota, and Wyoming--thereby establishing a
commonality of interests among the Surveys and citizens of these
The Geological Surveys agreed that reaching a fuller understanding
of the three-dimensional framework and hydrogeology of the High Plains
Aquifer is necessary to provide local and state policymakers with the
earth-science information required to make wise decisions regarding
urban and agricultural land use, the protection of aquifers and surface
waters, and the environmental well being of the citizens of this
geologically unique region.
Through past research, we have learned that the aquifer consists of
many sub-regions or smaller units. Past research also helped identify
the need to focus future efforts on geological and hydrological
characterization, mapping, modeling and monitoring of aquifer subunits.
The eight state geological surveys and the U.S. Geological Survey, in
consultation with state and local water agencies and groups, have
agreed on the need for comprehensive understanding of the subsurface
configuration and hydrogeology of the High Plains Aquifer. Improved
knowledge in these areas will refine our understanding of the aquifer
and provide better tools and strategies for long-term, coordinated
The High Plains Aquifer Coalition is in the early stages of
developing a cooperative regional strategic plan for scientific
research and collaboration that will lead to a more detailed
understanding of what research is required in the region. Major
research questions in the High Plains aquifer include: rates and
controls on recharge, relationships among saturated thickness, geologic
character, and well yield, relationship among water levels, water use,
and aquifer lifetime, impacts of climate changes, and appropriate scale
and precision of data sets for new management approaches.
Topical research areas that we anticipate to be addressed by this
legislation include the following:
Research on the regional geologic framework, particularly
the completion of detailed, quadrangle-size (1:24,000 scale)
surface and subsurface geologic maps and models in digital
format, and the public dissemination of these maps and models,
as well as interpretive information derived from them.
Research on geologic processes relating to deposition of
sedimentary sequences--their definition, nature, extent,
origin, and bounding surfaces--forming the High Plains aquifer
and adjacent aquifers.
Research on the region's hydrogeology and its fluid systems.
Research on processes controlling the quantity and quality
of water recharging the High Plains aquifer, including the
effect of past and future changes in climate and land-use
activities on recharge.
Research on enhancing the recharge of the High Plains
Research on the porosity, permeability, storage capacity,
and specific yield of the aquifer.
Research on the geological and hydrological processes
controlling regional differences and temporal changes in water
Research on the vertical and lateral exchange of groundwater
between different formations that make up the High Plains and
adjacent aquifers and the effect of such exchange on water
quality in the High Plains aquifer.
Research on the age of groundwater recharging and moving
through the aquifer.
Research on improved techniques for modeling the occurrence,
movement, and quality of water in the High Plains aquifer.
Research on using geophysical techniques, procedures, and
models for regional application in mapping subsurface deposits
in the Mid-continent region.
Transfer of technology and information among the Surveys and
to both the private and public sectors.
In addition to a possible increase in the density of data for
adequate aquifer management the Coalition has identified a preliminary
list of other data that would be needed to develop an aquifer
management plan. These include:
Determination of the approach to define aquifer subunits,
such as hydrologic boundaries, ground-water divides,
hydrological characteristics, aquifer extent, major differences
in recharge, or saturated thickness, in conjunction with
Determination of recharge, stream outflow, and ground-water
inflow and outflow to give estimates of net sustainable
quantities of water to be pumped from areas of different
saturated thickness in the High Plains aquifer.
Estimates of total saturated thickness and how it varies
across the aquifer that will be needed for continued pumping.
Estimates of depth ranges from ground surface to the base of
Assessment of uncertainties for estimating sustainable yield
volumetrics of the aquifer, including practical saturation
thickness, water level measures, and depth to bedrock in
Determination of methods to reduce the largest uncertainties
in calculating the aquifer volume.
Delineation of critical recharge areas.
why the bill is important to the region and the nation
Extending the life of the High Plains aquifer is essential to the
economic viability of the region because there are no realistic
alternative water sources. Accurate data about aquifer variability and
subunit characteristics will allow us to accurately determine current
water levels, where and at what rates aquifer water moves, and the
variables that impact water recharge rates in aquifer subunits.
Knowledge of these factors will allow us to better predict future water
levels and ultimately will lead to development of improved approaches
for enhancing and extending the life of the aquifer and other factors
useful for management purposes.
Federal funds will expand existing capabilities and enhance the
effects of ongoing state and local funding. Complementary funding will
allow us to build regional databases and understanding of the aquifer.
The bill enlists expertise from the U.S. Geological Survey not
available at the state level and fosters better coordination with other
groups within states and across state boundaries. State and local water
users, managers and regulators are increasingly demanding the types and
quality of data needed to develop useful and reasonable water
management programs. For example, in Kansas, local Groundwater
Management Districts are requesting subunit characterization of the
aquifer that requires a more sophisticated and regional understanding
of the nature of the aquifer. Current resources for state and federal
water agencies are insufficient to meet these increasingly demanding
Senate Bill 2773 establishes procedures to ensure that the research
carried out is that most critical to water users and managers. The bill
would require that broadly based state advisory groups concur with
proposed studies; that peer review ensures the research is of the
highest quality; that funds are awarded on merit; and that there is
technical review of both federal and state activities. These procedures
provide an unusually rigorous level of accountability.
In conclusion, this bill is an important first step in a
comprehensive program to extend the life of the aquifer. The bill will
help ensure that the relevant science needed to address aquifer
depletion is available so that we will have a better understanding of
the resources of the High Plains aquifer and can ultimately lead to
extending the life of the aquifer. We urge this Subcommittee to support
Senate Bill 2773 The High Plains Aquifer Hydrogeologic
Characterization, Mapping, Modeling and Monitoring Act. This concludes
my testimony on behalf of the Coalition. We are submitting additional
written testimony for your review. Thank you for your consideration. We
would be happy to answer any questions that you may have.
The Chairman. Thank you very much. Dr. Allison, did you
have any comments you wanted to add?
Dr. Allison. Mr. Chairman, no. I'm here in support in terms
The Chairman. All right. Well, thank you all very much. Dr.
Scholle, let me just ask you, it seems as though when I hear
your testimony, this is something of a race against time in the
sense that the levels that water is being consumed out of this
aquifer is substantially greater than the level at which it's
being recharged, and do you believe that what we have in this
legislation will allow for the research to be done quickly
enough that we can get answers to actually change some policies
and address the problem? I mean, is this going to be a
situation where we're studying the problem after it's too late
to do anything about it?
Dr. Scholle. Well, I should first say that the aquifer
depletion, as you can see on that map which depicts aquifer
depletion areas, aquifer depletion is very inconsistent in
different areas. New Mexico actually has some of the most dire
problems, as do Texas, Oklahoma and Kansas to the north. In
Nebraska, there is actually an increase in water levels in the
aquifer, so the problem is highly variable from place to place.
I do believe that the resources that would be put into this
program certainly will speed our understanding of the aquifer.
I think that substantial understanding will come within the
next 5 to 10 years through these studies, and will indeed make
an impact on the information available to decision makers.
Just to illustrate the problem, there's probably somewhere
between half a million and a million wells in the High Plains
aquifer. Of those, we have done long-term monitoring on 5,000
wells. I mean, that's a trivial number of wells in terms of
understanding the details. I mean, you see the broad sketches,
the broad outline of where increases are extant and where
decreases are extant in the aquifer, but the details are far
more complex than are depicted on that diagram. 5,000 wells is
what we have long-term monitoring on, we are now doing
monitoring on about 10,000 wells in total, and it's still a
tiny tiny fraction, and that's probably the best known portion
of the entire problem.
In terms of aquifer characterization, in terms of
geological knowledge, we are far far behind the curve and all I
can say is that we will make our utmost effort to get the data
as quickly as possible in response to this bill and in response
to the needs.
The Chairman. All right. Well, thank you very much, and we
will take all the testimony that has been submitted here and
consider it as we try to move ahead on these various pieces of
So thank you all very much, and that will conclude our
[Whereupon, at 4:18 p.m., the hearing was adjourned.]
Additional Material Submitted for the Record
Statement of Dave Jones, Chairman, Hill County Water District and
Vice-Chairman of the North Central Montana Regional Water Authority
Mr. Chairman and members of the subcommittee, my name is Dave
Jones. I am Chairman of the Hill County Water District and Vice-
Chairman of the North Central Montana Regional Water Authority. Thank
you for the opportunity to provide this statement in support of Senate
Bill 934 authorizing the Rocky Boy's/North Central Montana Regional
Water System. I would also like to thank Senator Max Baucus and Senator
Conrad Burns for their strong and continuing support for this project.
The Hill County Water District is located in northern Montana,
generally between the communities of Chester and Havre. The District
was created to provide water service to the communities of Joplin,
Inverness, Rudyard, Hingham, Gildford and Kremlin, as well as the
outlying rural areas. Hill County Water District has approximately 800
users. The average water bill is roughly $75.00 per month, based on
average water consumption of 7,500 gallons per household per month.
Currently, the Hill County Water District is served by two water
supplies. Water from the Fresno Reservoir, located on the Milk River,
serves as the primary source and is supplemented by an infiltration
gallery along the banks of the Marias River. The Fresno Reservoir
supply is not filtered. The Environmental Protection Agency (EPA) rules
dictate that all public water supply systems must filter and treat all
surface water. Hill County Water District is on EPA's Significant Non-
Compliance (SNC) list as they are in violation of the Surface Water
Treatment Rule (SWTR) of the Safe Drinking Water Act (SDWA). Hill
County Water District received an Administrative Order in 1994 for this
violation. The Order was amended in 1998 and again in 2001.
Several years ago, the communities of Kremlin and Gildford combined
their schools. The elementary school (K-8) is located within the
community of Kremlin. The District administers chlorination to the
system at Kremlin. The community does not have adequate chlorination
contact time, as required by the SDWA. The community, including the
school, has been on a boil order since 1998.
When the District received the first administrative order, an
engineering firm was hired to evaluate all available alternatives to
the District. The evaluated alternatives included groundwater and
construction of a Fresno Reservoir Water Treatment Plant.
Prior to the formation of the Hill County Water District and
construction of its current water system, the communities now served by
the District either hauled water from nearby communities or were served
by shallow or moderately deep wells. The wells generally yielded modest
quantities of water that were of very poor quality. The total dissolved
solids in some of the early wells were so high that the water could not
be used for drinking or irrigation. The sodium was also very high,
ranging from 397 ppm to 2,500 ppm. The generally accepted standard for
sodium is 270 ppm. Iron and manganese were also persistent water
quality problems, as was sulfate.
The engineering firm investigated seven different treatment
alternatives for the Fresno supply. Based on the maximum day demand,
the water treatment plant would need a total capacity of 1.4 million
gallons per day. Several alternatives were eliminated due to the
difficulty in treating Milk River water, which supplies Fresno
Reservoir. Conventional treatment is a well established technology for
treating water from the Milk River. The capital cost to construct a
conventional package plant, based on 1993 cost estimates, was $1.2
million. The District was able to secure $700,000 combined local funds
and state grants. Based on a $500,000 loan from the State of Montana's
Revolving Loan Program, the debt service would be approximately $46,000
per year. The monthly user rate, just for debt service, would increase
by $5.00 per month. In addition, the existing rate does not include the
additional cost for operation and maintenance of a treatment plant.
Estimates for these expenses, prepared for the District, range from $15
to $20 per month per user. If the District was to construct its own
water treatment plant, the cost to the individual user would exceed
$100 per month, making it unaffordable to the District's residents.
DEQ is investigating if the supplemental water source for the
District at the Marias River is also under the influence of surface
water. If this supplemental water source was determined to be under the
influence of surface water, it would also need to be filtered and
treated. To construct and maintain two treatment plants would be a
substantial financial burden.
HKM Engineering of Billings, Montana, prepared an estimate of each
individual system's user rate, once the system joins the Rocky Boy's/
North Central Montana Regional Water System. The estimated user rate
for the Hill County Water District was $58.07 per month. Clearly, the
Regional Water System would be more affordable.
According to the U.S. Bureau of Reclamation, the storage at Fresno
Reservoir during this winter was at 15% of normal. One of the
District's intake structures at the Reservoir is exposed. On March 28,
2002, the U.S. Secretary of Agriculture declared the State of Montana a
disaster area due to drought. The District is very concerned about the
ability to draw water from the Reservoir given the ongoing drought
The Montana Department of Environmental Quality (DEQ) has been very
supportive of the regional water system concept because of the obvious
advantages offered to small public water systems, such as the Hill
County Water District. The DEQ sees that is in the best long-term
interest of the Hill County Water District to connect to the Regional
System. (See attached letter from Jan Sensibaugh, Director of Montana
DEQ, to Dan Keil).
In 2001, the DEQ issued an amended Administrative Order to the
District. The most current Order imposes the following deadlines for
Deadline for federal project authorization--December 1, 2002
Deadline for submission of engineering plans--December 14,
Deadline for beginning construction--June 1, 2004
Deadline for providing water service--December 31, 2007
My District is under the gun to meet the above compliance schedule.
The Board of Directors of Hill County Water District believes that the
Rocky Boy's/North Central Montana Regional Water System will resolve
many of our most significant water supply problems.
I respectfully request that the committee pass S. 934 authorizing
the Rocky Boy's/North Central Montana Regional Water System.
Thank you. It is an honor to provide this statement to the
Montana Department of Environmental Quality,
Helena, MT, March 30, 2001.
Chairman, North Central Montana Regional Water Authority, Havre, MT.
Re: Department compliance actions
Dear Mr. Keil: My thanks to you and the representatives of the
North Central Montana Regional Water Authority (Authority) for meeting
with department staff in Great Falls on February 22. The information
provided to our staff helped to clarify the status of the Rocky Boys/
North Central Montana Regional Water System (System).
As you know, the department has an outstanding enforcement action
against the Hill County Water District. The order was issued in 1994,
amended in 1998, and now must be amended again because the compliance
deadlines in the current order have not been met. Additionally, the
department may initiate similar actions against other public water
suppliers with compliance problems that have expressed interest in
connection to the System. These additional compliance actions would be
initiated because of inadequate treatment of surface water sources (or
groundwater sources that have been directly influenced by surface
The department is very supportive of the regional water system
concept because of the obvious advantages offered to small public water
suppliers. Numerous small water suppliers that are facing important
compliance decisions would benefit specifically by connection to this
System. It is our intention to promote this solution to the maximum
extent allowed within our statutory authority and responsibility.
Our role as a regulatory agency imposes direct responsibility for
protecting the public health of those served by public water supplies
in Montana. Because we believe that it is in the best long-term
interest of your customers to connect to the System, we intend to allow
additional time for those water suppliers affected by department
However, considerable time has elapsed since the original
enforcement action was taken against Hill County. We believe that it is
important that deadlines for important milestones be established to
ensure that public exposure to risks from inadequately treated sources
In order to address this concern, we intend to impose the following
deadlines for public water suppliers affected by department enforcement
Deadline for funding authorization--December 1, 2002
Deadline for submission of engineering plans--December 15,
Deadline for beginning construction--June 1, 2004
Deadline for providing water service--December 31, 2007
These deadlines would be included in the revised order for the Hill
County Water District, and for any other systems placed under similar
enforcement actions. At this time, it appears that two additional water
suppliers that are interested in connection to your System will be
placed under department enforcement actions in the near future.
Until water service is provided to the affected water suppliers
from your System, we believe it is very important that those suppliers
provide an alternative approved source of water for their customers. It
is not reasonable to assume that customers of these supplies will boil
their water or otherwise obtain properly treated water until the above
deadlines are met. However, we will work with each affected supplier to
develop the best, most economical solution to providing safe water on
an interim basis.
Congratulations to you and your member systems in the work that has
been accomplished to date. If you should have any questions, or if
there is something that we can do to help support your efforts, please
do not hesitate to contact me.
Jan P. Sensibaugh,
Statement of John Tubbs, Chief, Resource Development Bureau,
Montana Department of Natural Resources and Conservation
Mr. Chairman and members of the committee, for the record my name
is John Tubbs. I am Chief of the Resource Development Bureau of the
Montana Department of Natural Resources and Conservation. As a
representative of the State of Montana, I want to thank you for the
opportunity to provide this statement in support of Senate Bill 934
authorizing the ``Rocky Boy's/North Central Montana Regional Water
System Act of 2001.''
Governor Martz has asked me to relay her strong support of the
proposed regional water project in North Central Montana. Governor
Martz is very interested in seeing this project authorized because of
the tremendous need for safe drinking water in this area of Montana and
the benefits the regional water system can provide to the water users,
the state and the nation. As my testimony will demonstrate, the support
of the State of Montana for this project is strong and comes with a
significant financial commitment for funding.
The Tribal Government of the Rocky Boy's Reservation has been
trying to address a serious need for safe drinking water. In 1999, the
Montana Legislature and the Rocky Boy's Tribal Council approved a water
compact that, in part, provides 10,000 acre-feet of water out of Tiber
reservoir for the Rocky Boy's Reservation. In 2000, Congress authorized
the Rocky Boy's compact and in 2001 appropriated settlement funds. A
portion of these funds, $16 million are for on reservation water
distribution works. S. 934 will provide authorization for the
transmission and treatment of waters from Tiber reservoir to the Rocky
The driving need for a reliable, high quality water supply on the
reservation presented the opportunity for a regional water system to
serve tribal members and non-tribal communities. Working with local and
state representatives, tribal leaders have taken this opportunity to
work with their neighbors to achieve a common goal, adequate and safe
drinking water for our communities. It is so important to note this
positive action of both the tribal and non-tribal communities working
together. When the tribal leaders reached out to their neighbors and
extended this opportunity and vision, they bridged a gap in
relationships that had existed for decades. The proposed Rocky Boy's/
North Central Montana Regional Water System is a shared vision based on
a common need.
In the early 1990's, representatives from the tribal and non-tribal
governments met to begin the planning for this project. The benefits of
a regional water supply were unquestionable, but the size and cost of
the proposal led to many questions about economic feasibility. An
interagency team was assembled to coordinate a state review of the
proposed regional water system. The team is composed of representatives
for the Departments of Natural Resources and Conservation,
Environmental Quality, and Commerce. This state coordinating committee
is still actively evaluating the proposal. Two state grants have been
awarded to provide funding for preliminary engineering for the system
so everyone can base their support for this project on factual
information. In the 1990's, several studies were completed to
demonstrate the cost effectiveness of the proposed regional water
system and to assure that were no significant environmental impacts.
Published reports as to the feasibility of a regional water system
North Central Montana Regional Water System Needs Assessment,
Dated May 19, 1997. Prepared by MSE-HKM, Inc.
North Central Montana Regional Water System Environmental
Assessment. Prepared by MSE-HKM, Inc.
North Central Montana Regional Water System Feasibility
Study, Dated October 9, 1997. Prepared by MSE-HKM, Inc.
North Central Montana Regional Water System Appraisal Level
Study, dated June 27, 1997. Prepared by MSE-HKM, Inc.
North Central Montana Regional Water System Planning/
Environmental Report, dated May, 2000. Prepared by MSE-HKM,
Once authorized, further design studies will be conducted and an
environmental assessment report published.
What has been determined is that water quality is poor in some
areas of the region. with inadequate water quantity is often an issue.
Communities and water districts in the region have tried to attack this
problem through several methods. Some are chlorinating surface water
but do not have filters in place as required under the 1986 Safe
Drinking Water Act. As a result. at least three systems are currently
out of compliance with federal safe drinking water standards. As many
as 13 of the remaining systems are expected to have difficulty meeting
future regulatory requirements, based upon current U.S. EPA regulatory
proposals, or other requirements of the 1996 amendments to the Safe
Drinking Water Act (SDWA). Compliance with the requirements of the Safe
Drinking Water Act is difficult because there are 20 individual public
water supplies serving the rural communities of the area. In each case,
the small number of users served by individual system must bear the
full cost of running the drinking water system. By joining together on
a regional basis, future compliance costs will be associated with one
intake and treatment facility, and they will spread amongst a larger
user base. From the state's perspective, a regional system will show
that the region has the capacity to operate, manage, and finance future
Insufficient water quantity is an everyday issue to many area
residents of the area. Montana is in the fourth year of a severe
drought. Though recent June rains have softened the blow of below
normal snow pack, North Central Montana communities know severe drought
will come again. The proposed source of supply, Tiber Reservoir, will
provide both a high quality source of drinking water for the region and
a firm supply of water that ``drought proofs'' the communities in this
region. There is no other source in the region that has sufficient
quantity and quality to meet the combined needs of all the communities
in this region.
What would a regional system cost in comparison to the alternatives
that these community water supplies may have? The total estimated cost
of the regional system is approximately $200 million. The State of
Montana, as a condition of support, asked for an alternative analysis
of the costs to communities and individuals of providing safe drinking
water without a regional system. Based on engineering estimates, the
cost of maintaining and operating 20 individual water systems within
the region is about 10 percent lower than the $200 million cost of
constructing the regional system. However, the benefits of a regional
system greatly exceed the 10 percent increase in total cost for the
regional project. First, the quality of water provided from the
regional system will be a great improvement to many of the individual
systems. If you have bad groundwater to start with, treatment doesn't
improve its quality; it only makes it safe to drink. Second,
maintaining the individual systems does not address the benefits of
providing a reliable water supply that protects the communities against
From a regulatory aspect a regional water system has significant
benefits. At the present time, there are 20 different regulated systems
within the region that wish to be a part of the authority. Meeting
regulatory requirements of the Safe Drinking Water Act must be
demonstrated by each system. When a rule changes, all those systems
must react to the change. Also, because many of the systems are for
small municipalities or county water districts, some with fewer than
200 connections, there is a reduced capacity on the part of smaller
systems to maintain and operate a water supply, not to mention the
problems that long-established communities are having. That means that
the Montana Department of Environmental Quality must perennially deal
with problems of compliance. A regional water system would provide one
point of regulation for all of the member systems. If a rule were
changed, it would affect only one treatment plant. Due to economies of
scale, a regional system can be efficiently operated with a higher
level of oversight and management than individual municipal water
supply systems. Yielding an expected increased degree of compliance.
The state also supports this regional water system because of its
potential to yield strong economic benefits. Unemployment on the
Reservation is high. Construction will employ many people that have
limited job opportunities. The construction period is estimated to be
in excess of a decade. Once constructed, there will be long-term jobs
created as the Tribe and the non-tribal water users operate and
maintain the facilities. These types of jobs are highly sought after in
this area of Montana. Finally, the regional pipeline will provide one
of the key resources that enterprising businesses look for when they
locate in an area--a safe water supply. This project will not resolve
all of the economic problems that North Central Montana faces; however,
it will serve as a cornerstone to future success upon which the people
in the area can build.
The state supports the Rocky Boy's/North Central Montana Regional
Water System because it provides the Rocky Boy's Reservation with a
safe and reliable drinking water system. The Rocky Boy's Reservation is
the home of the Chippewa Cree Tribe in Montana. Since the establishment
of the Rocky Boy's Reservation in 1916, tribal members have been
limited to developing poor quality groundwater sources and limited
surface water sources for their drinking water systems. The existing
systems on the reservation are inadequate today and will not be able to
provide safe drinking water for the future. The state of Montana
supports every effort to provide the tribal members living on the Rocky
Boy's Reservation a reliable, high quality drinking water system. We
are all Montanan's and all of us must have the opportunity to prosper
whether we live on an Indian Reservation or not. It is an absolute; the
tribal members of the Rocky Boy's Reservation must have a safe and
reliable drinking water system. The regional system will provide the
required water supply for the reservation.
Finally, I would like to tell the Committee about the legislation
that Montana has passed to support this regional water system proposal.
Clearly, considering the price tag of this project, a partnership
amongst local, state and federal governments needs to be forged.
Montana has made a commitment to this partnership. The Montana State
Legislature established a funding mechanism in 1999 specifically to
provide state cost share dollars for regional water systems. This fund
has now grown to over $8 million and will continue to receive $4
million a year until 2016. Earning from this fund will be used to match
federal expenditures along with local cost share. The Treasure State
Regional Water Fund Legislation enjoyed strong support from the State
of Montana. In the Senate, S. 220 received 50 of 50 votes. In the
House, S. 220 received 97 of 100 votes for passage.
I respectfully request that the committee, after due consideration,
pass S. 934 authorizing the Rocky Boy's/North Central Water System.
This is so important to the people in North Central Montana that I ask
on behalf of the State of Montana that you give this bill your
approval, so that the planning and engineering can proceed on this
Thank you. It is an honor to provide this statement to the
Office of the Governor,
State of Montana,
Helena, MT, July 30, 2002.
Hon. Byron L. Dorgan,
Chairman, Subcommittee on Water and Power, Senate Committee on Energy
and Natural Resources, U.S. Senate, Washington, DC.
Re: S. 934--Rocky Boy's/North Central Montana Regional Water System
Dear Chairman Dorgan: Montana's Congressional delegation, working
with the Chippewa Cree Tribe of the Rocky Boy's Reservation and the
North Central Montana Regional Water Authority, has introduced
legislation in the U.S. Congress for authorization of the Rocky Boy's/
North Central Montana Regional Water System. Development of this rural
water project will bring a safe, ample supply of drinking water to the
Rocky Boy's Reservation and to the surrounding region of North Central
The State of Montana has supported the planning and administration
of this regional water project with appropriations of nearly $350,000
to date. For the current biennium, the 2001 Montana Legislature
appropriated initial funding of up to $2.3 million for the state's
portion of the non-federal cost share for regional water system
Drinking water supplies on the Reservation, in the surrounding non-
tribal communities, and for rural residences are both inadequate and of
poor quality. Due, in part, to lack of safe and sufficient water
supplies, economic activity in the region has been in a state of
decline. The Chippewa Cree Tribe finds this unacceptable--members of
their tribe need the opportunity to thrive and succeed, rather than
facing a future that promises little more than a subsistence level of
existence for the majority. Poor quality, unsafe drinking water is no
more desirable in this area than anywhere else. The proposed regional
drinking water system is critical to the future of North Central
As a Senator from a western state, I know that you appreciate the
importance in regard to the needs of Montana's Indian Reservations and
rural communities. Your subcommittee's support is critical for the
success of this project and the long-term viability of North Central
I would appreciate the support of your subcommittee for S. 934, the
legislation to authorize this vital project. This regional water supply
system will greatly improve the quality of life on the Rocky Boy's
Reservation and to North Central Montana.
National Water Resources Association,
Arlington, VA, July 29, 2002.
Hon. Gordon Smith,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Dear Senator Smith: On behalf of the Board of Directors and
membership of the National Water Resources Association (NWRA), I am
writing to voice our support for your legislation, the Small
Reclamation Water Resources Act of 2001 (S. 1882).
As water users in Oregon and the 16 other Western States, our
members understand the importance of conserving our limited water
supplies. S. 1882 would improve and reauthorize the Small Reclamation
Project Loan Program that was discontinued during the previous
Administration. The legislation provides both loans and grants to
assist irrigation districts, municipalities and other water related
organizations to develop and implement water conservation, water
quality improvements, water management for urban landscapes, drought
assistance, fish and wildlife improvements as well as public safety
Our members found the previous Small Reclamation Project Loan
Program to be very helpful in resolving difficult water supply
problems. S. 1882 maintains the utility of the program while adding
flexibility to address our current and future water challenges.
Passage of this legislation will greatly aid in the development and
expansion of local water programs in California and the other
Once again, NWRA supports S. 1882 and we look forward to assisting
you and your staff in building support for this needed legislation.
Thomas F. Donnelly,
Executive Vice President.
Association of California Water Agencies,
Sacramento, CA, July 29, 2002.
Hon. Gordon Smith,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Re: Support of the Small Reclamation Water Resources Act of 2001 (S.
Dear Senator Smith: The Association of California Water Agencies
(ACWA) supports your Small Reclamation Water Resources Act of 2001 (S.
1882). As you know, ACWA represents over 440 water districts throughout
the state who collectively deliver over 90 percent of California's
agricultural, residential and industrial water supplies. Passage of
this legislation will greatly aid in the development and expansion of
local water programs in California and the other Reclamation states.
ACWA supports this legislation because the grants and loans it
makes available to agencies allows them to develop projects that
promote efficient water use, develop new water supplies, and enhance
the environment within their service areas. This program promotes state
and local participation in small Reclamation projects that will provide
ACWA is pleased to support S. 1882 and appreciates your leadership
on Western water issues.
David L. Reynolds,
Director of Federal Relations.
Idaho Water Users Association, Inc.,
Boise, ID, August 6, 2002.
Subcommittee on Water and Power, Senate Committee on Resources, Hart
Senate Office Building, Washington, DC.
Re: S. 2556--Fremont-Madison Conveyance Act
Dear Mr. Chairman: This letter is provided on behalf of the Idaho
Water Users Association (IWUA) in support of S. 2556, the Fremont-
Madison Conveyance Act. IWUA represents more than 300 irrigation
districts, canal companies, water districts, public water suppliers,
municipalities, hydropower interests, aquaculture companies,
agribusinesses and individuals. We are dedicated to the wise and
efficient development and use of water resources. IWUA represents over
two million acres of irrigated land and is affiliated with both the
National Water Resources Association and the Family Farm Alliance. IWUA
is proud to count Fremont-Madison Irrigation District among its many
IWUA has strongly supported previous title transfer legislation for
its members, including Burley Irrigation District and Nampa & Meridian
Irrigation District. Of course, both of these bills were approved by
Congress and signed by the President. We commend Senator Crapo for
introducing S. 2556 and Senator Craig for cosponsoring the bill. We
strongly urge your subcommittee to give the legislation favorable
IWUA adopted the attached resolution at its Annual Conference in
January, 2002, expressing support for Fremont-Madison's proposed title
transfer. We request that this letter of support and IWUA's resolution
be included in the official hearing record as the subcommittee
considers the bill. Thank you.
Norman M. Semanko,
Executive Director and General Counsel.
Resolution No. 2002-14--Fremont-Madison Irrigation District
WHEREAS, Fremont-Madison Irrigation District (Fremont-Madison) is
involved in a process to obtain the transfer of the legal title of
portions of certain physical facilities used by Fremont-Madison,
namely: the Cross Cut Diversion Dam, the Cross Cut Canal, the five (5)
developed wells drilled pursuant to Idaho Water Permit 22-07022 and the
assignment of said permit, all of which property rights are presently
held by the United States, Bureau of Reclamation (Bureau); and
WHEREAS, Fremont-Madison is also working with the Bureau to
complete the administrative process for the title transfer and is
drafting a bill to convey the said facilities to Fremont-Madison for
introduction in the Congress of the United States; and
WHEREAS, Fremont-Madison has controlled, managed, operated, and
maintained the said facilities with permission and direction from the
Bureau at all times since they were constructed.
NOW, THEREFORE, BE IT RESOLVED, That the Idaho Water Users
Association supports Fremont-Madison in their effort to acquire legal
title from the United States to the Cross Cut Division Dam, the Cross
Cut Canal, the five (5) wells developed under Permit 22-07022, together
with the right to further develop wells under Permit 22-07022, but only
pursuant to a plan which mitigates for injury of all irrigation water
users and which is approved by the Idaho Department of Water Resources.
The Henry Fork Foundation, Inc.,
Ashton, ID, July 29, 2002.
Energy and Natural Resources Committee, Water and Power Subcommittee,
U.S. Senate, Washington DC.
Re: S. 2556--Fremont-Madison Conveyance Act
Dear Honorable Senators: The Henry's Fork Foundation (HFF) sends
this letter on behalf of our approximately 2,000 members who are
dedicated to protecting the Henry's Fork watershed. The HFF mission is
to ``understand, protect, and restore the unique values of the Henry's
Fork River while doing so in the context of mutual respect for others
that live and work in the watershed to ensure solutions are
sustainable.'' In the context of both protecting the magnificent
Henry's Fork fishery and mutual respect for others who live and work in
the watershed, we submit the following comments regarding S. 2556.
Because the current version of this bill for the most part mirrors
companion legislation--H.R. 4708--in the House of Representatives, many
of our comments and suggestions are identical to those the HFF
submitted prior to the hearing on that bill.
The HFF has collaborated on difficult resource issues for the past
decade with the Fremont-Madison Irrigation District (FMID) and other
stakeholders in the Henry's Fork watershed. We were the only
conservation group--local, state, regional, or national--willing to sit
down and have substantive talks and negotiations regarding earlier
title transfer legislation involving Island Park Reservoir and the
various ways to protect the fishery resource while still meeting the
irrigation community's needs.
With the collaborative nature of our past involvement in title
transfer issues in mind, the HFF wants to reiterate once again our
position regarding the transfer of title of federal reclamation dams,
canals, or any other type of irrigation works in the Henry's Fork
watershed. The HFF believes that any type of title transfer legislation
should have an environmental component to ensure that the Henry's Fork
fishery resource is not only protected but also enhanced.
The HFF also wants to emphasize that we are cognizant of the dry
year water issues for the irrigation community in the Henry's Fork
watershed. Recent conversations with Dale Swensen and FMID have helped
frame these issues. The fact that the irrigation district--based on
Minidoka Project storage and operations--has only been allocated 62%
and 42% of Island Park Reservoir storage during the last two drought
years is illustrative of the need for supplemental irrigation water for
FMID users. Further, such dry year realities emphasize the nexus
between water storage rights (i.e., who actually owns the water) in the
upper Snake River Basin and federal Bureau of Reclamation (BOR)
operations during such years. In other words, during a dry year or
drought cycle reduced stream flows during the winter months are
inexplicably tied to broader system-wide BOR Minidoka Project
operations and reservoir carryover, and not FMID rights or operations.
These are classic dry year dilemmas that occur as foreseeable events
almost every decade for a 2-3 year period.
But fishery needs during drought years and cycles mirror those of
the irrigators. The impact of such low flow years on the fishery
resource in the Henry's Fork watershed is undeniable. Such impacts have
been documented by numerous studies funded and carried out by the HFF
and Idaho Department of Fish and Game (IDFG) highlighting the
connection between low flows and the loss of spawning and rearing
habitat, juvenile mortality, year-class strength, the loss of
macrophyte habitat, and overall stream health. There is also the
chance--depending on project operations--that Island Park Reservoir
will reach such low levels that unnaturally high levels of sediment
will be released downstream. These are enormously significant fishery
concerns, but there is an economic fall-out as well. An economic study
funded and completed by the HFF and published in the Intermountain
Journal of Sciences in 2000 estimated the total annual value of the
Henry's Fork fishery only between Island Park Dam and Hatchery Ford at
So with these dry year irrigation and fishery needs in mind, the
HFF provides the following comments regarding a piece of legislation
that aims to only provide for one piece of the overall economic well-
being and no mention of the ecological health of the Henry's Fork
watershed. We have tried to break our concerns with the title transfer
legislation into two specific categories. First, the HFF has a number
of specific concerns regarding the current proposals and we have
outlined those comments below. Second, we have some other policy and
resource related concerns specific to the portion of the title transfer
legislation pertaining to the Teton Wells. Finally, the HFF would like
to reiterate some of the fishery resource needs in the Henry's Fork
watershed, and advocate that the Idaho congressional delegation take
the lead in getting a number of diverse stakeholders together to design
a mutually agreeable and long-term solution to drought year problems in
the upper basin.
Specific Comments Regarding S. 2556
1. The ``shall'' language contained in Section 3 leaves the
Secretary no flexibility regarding the transfer of the federal assets
described in the bill based on further environmental or any other type
of analysis. This establishes bad precedent, doesn't give the federal
government the necessary flexibility to avoid possible impacts to other
water user contacts or obligations or the environment, and
predetermines a course of action that may not be in the public
2. The HFF does not have any specific comments regarding the
language in Section 2 regarding the Teton Exchange Wells. However, see
the section below for our comments regarding the extraordinarily
important resource issues concerns associated with the future use of
the Teton Exchange Wells. In addition, the FMID has stated both in
meetings and in public statements that the use of additional wells will
be capped at approximately 80,000 acre/feet to provide supplemental
water for its users. However, there is no explicit cap of the proposed
additional use in the legislation.
3. Nothing in S. 2556 elaborates on the scope of the NEPA process
related to title transfer activities. The proposed legislation should
be expanded to identify specific issues to be assessed and analyzed in
the NEPA process. Such issues include the possible impacts to existing
surface and groundwater rights, diminished flows in the Henry's Fork
between the point where water is diverted to fill the Cross Cut Canal
and where well discharges would enter the river, and other impacts to
temperature and other water quality parameters and aquatic habitat in
the lower Henry's Fork watershed.
The Teton Exchange Wells
The Teton Exchange Wells and the current and possible future water
use associated with State of ldaho water permit #22-7022 provide the
centerpiece for the proposed title transfer legislation. The original
permit for these wells envisioned 45 wells totaling 670 cfs of water.
However, to date only five wells have been drilled, providing
approximately 81 cfs. During last year's drought season, the FMID used
these wells to provide approximately 26,000 acre/feet of water to their
users. The HFF concerns regarding the use of the Teton Exchange Water
echo those of other stakeholders such as IDFG and the Upper Snake River
Cutthroats Chapter of Trout Unlimited. From our perspective there are
more questions than answers regarding the transfer of these wells.
These concerns include regulatory issues pertaining to the
relationship between the future use of additional wells and the current
moratorium on new groundwater permits in the Upper Snake River Basin,
the conjunctive management of surface and groundwater use in the State
of Idaho, and aquifer recharge. Most importantly from a river health
standpoint, the use of the additional water could have a deleterious
effect on the Henry's Fork River. The location of the new wells, the
amount of water pumped from the existing and new wells, the type and
location of deliver systems, location of water use, and return flows
all have implications for fish and wildlife resources. Finally, there
has been very little substantive talk regarding the use of some of the
well water as an exchange mechanism to provide water during strategic
time periods in the Henry's Fork system from Henry's Lake downstream
and benefit fish and wildlife resources.
The Henry's Fork Fishery
Perhaps the biggest disappointment regarding the current title
transfer legislation is that there was no attempt to include broader
stakeholder representation to develop a global remedy--i.e., a drought
management plan--to meet not only FMlD needs but also chose of the
fishery. Neither the HFF nor the Henry's Fork Watershed Council has
been part of this process. We have been forced into a corner regarding
our stance on the current proposal; that is not where we prefer to be.
The HFF made a commitment years ago to work whenever possible with
irrigators and others in the watershed to develop innovative solutions
to difficult natural resource problems. We remain committed to this
type of approach.
At the same time, perhaps the most important resource issue for the
HFF's constituency now and for the foreseeable future will be water. We
have yet to solidify a long-term drought response plan in the Henry's
Fork watershed that adequately protects the fishery and aquatic
resources. This void includes the lack of statutory, regulatory, or
negotiated mechanisms to guarantee that sediment events are avoided,
minimum winter flows established, and late-summer water quality effects
remedied. Therefore, in addition to our consistent approach to
collaboration in the watershed, the HFF also remains committed to
finding creative solutions to the aforementioned water and fishery
The HFF would like to request that the current legislative proposal
be delayed while the various stakeholder groups are convened to see if
there might be an alternative that meets everyone's needs. The Idaho
congressional delegation could help sponsor and facilitate talks that
should include everyone who has a stake in the outcome from Twin Falls
upstream. The HFF believes it is the ultimate irony that the federal
government spends millions of dollars annually on a hatchery driven
anadromous salmon and steelhead fishery in the lower river while some
of the world's greatest wild and native trout fisheries--Idaho
fisheries--dry up every ten years. The current title transfer approach
should he broadened to include a more comprehensive fix to drought year
water issues. We believe that legislation can be developed that meets
The HFF appreciates the opportunity to comment regarding S. 2556
and the important water use and natural resource issues addressed
therein. Please don't hesitate to call our office with any questions or
Scott B. Yates,
Interim Executive Director.
Arlington, VA, July 29, 2002.
Hon. Byron L. Dorgan,
Chairman, Water and Power Subcommittee, Committee on Energy and Natural
Resources, U.S. Senate, Washington, DC.
Re: S. 3556--Fremont-Madison Conveyance Act
Dear Senator Dorgan: On behalf of Trout Unlimited, I am writing in
regards S. 2556, the Fremont-Madison Conveyance Act. I request that you
include this letter in the record of the hearing on July 31, 2002 on
The mission of Trout Unlimited is to conserve, protect and restore
North America's trout and salmon fisheries and their watersheds. Trout
Unlimited is a private, non-profit organization with 130,000 members in
450 chapters nationwide. There are approximately 2,000 TU members in
Idaho, many of whom enjoy the diverse and outstanding fishery resources
of the Henry's Fork watershed. I work with TU's Western Water Project,
which focuses on water quantity issues around the West. Across the
West, even in normal water years, but especially in drought years like
this one, rivers are routinely drained dry--a condition that is
disastrous for fish, anglers and local economies that depend on water-
Citing Mark Twain's hoary aphorism about whiskey, water and
fighting seems required in every hearing about western water, because
there is a measure of truth in it. But in some parts of the West,
people have grown up, and gotten beyond the endless opportunities for
fighting. Instead, they are working together to solve problems, rather
than simply win a round.
In Idaho, a group of stakeholders on the Henry's Fork of the Snake
River, acting through the Henry's Fork Watershed Council, have a
remarkable history of collaboration and compromise on difficult
resource issues extending back for two decades. The Fremont-Madison
Irrigation District (FMID) is a leader in the Watershed Council; Trout
Unlimited's members and local chapter have been significantly engaged
Trout anglers have greatly appreciated this progress because the
Henry's Fork is justifiably famous for its remarkable trout fishing--
with large numbers of huge, fat, and smart wild rainbow trout. TU
members voted it the best fishing in the country, and ranked it number
one in TU's Guide to America's 100 Best Trout Streams. Anglers are not
the only beneficiaries of this fabulous fishing. An economic study
funded and completed by the Henry's Fork Foundation (HFF) and published
in Intermountain Journal of Sciences in 2000 estimated the regional
economic benefit of only a portion of the Henry's Fork fishery to be in
excess of $5 million per year.
The issues the Watershed Council members have worked through
sometimes have been tough. Upstream of the main fishing section of the
Henry's Fork, is Island Park Reservoir, a part of the Bureau of
Reclamation's Minidoka Project, and a principal water supply for FMID.
In 1992, Reclamation drew down Island Park Reservoir--to the point that
50,000 tons of sediment was released, blanketing the river with silt
and causing a disaster for aquatic life and the fishery. When the
possibility of again drawing down the reservoir and releasing silt
loomed last year due to drought conditions the HFF, FMID, Trout
Unlimited and Reclamation reached agreements that avoided repeating
That history of successful collaboration has not yet, however, been
extended to transferring title to Bureau of Reclamation facilities. The
Henry's Fork Foundation and the Fremont-Madison Irrigation District
(FMID) had prolonged, substantive and productive negotiations regarding
an earlier title transfer proposal for Island Park Reservoir and the
various ways a transfer could serve to protect the fishery resource
while still meeting the irrigation community's needs. Trout Unlimited
was a strong public and private supporter of those efforts. That the
effort foundered is proof of just how complex and potentially
contentious this transfer of public resources into the hands of
irrigation districts is, both on the Henry's Fork and elsewhere.
TRANSFER POLICY APPROACH
Trout Unlimited agrees with the premise that the federal government
need not own all of the 600-plus Reclamation projects. However,
spinning off parts of the Reclamation system to nonfederal ownership
makes policy sense only if the transfers protect and enhance the public
benefits associated with the projects. America's taxpayers, people in
the East, West, South, and North paid for these projects. Only if a
transfer of ownership of these public projects serves to increase the
public benefits and to solve the pressing problems in managing the
West's water for economic needs as well as environmental, recreational,
and aesthetic purposes, should it be accomplished.
The approach we advocate has four main points:
Transfers Should Enhance the Public Benefits of the Project and the
Associated River System
Our fundamental position is that title transfers make sense only if
the human and environmental systems associated with the water projects
are made better because of transfer. During most of the long history of
western water projects, environmental damage was simply taken as a
matter of course, with predictable results. One can hardly consider a
major water project now without stumbling over an endangered species
\1\ In the inter-mountain West, 8 trout subspecies are endangered
or threatened. Twenty species of Western fishes are now extinct. A
hundred more fish species are threatened or endangered--in total, 70%
of all native fish species west of the Rocky Mountains are extinct or
at risk. Over 300 runs of Pacific salmon and steelhead are at risk of
extinction or already gone.
The presence or possible presence of protected threatened and
endangered species creates significant complexity in a transfer. ESA
Section 7, which applies only to federal actions, prohibits jeopardy to
a species. Non-federal entities are not subject to Section 7, but
rather to Section 10, which prohibits ``take'' of the species. Because
Section 7 is significantly more stringent, transferring ownership of a
project from Reclamation to a water district effectively reduces the
level of protection afforded a listed species. Crafting transfer terms
that reflect this change in legal status is complex, and requires
substantial information, public and agency involvement, and careful
We can take Twain's approach and continue a century and a half of
fighting--eventually somebody may win; however, history shows that the
likely outcome is simply more fighting. Or we can take the modern
approach and ensure that an action, in this case transfer of ownership,
that benefits one set of interests, water users, also enhances the
public benefits of the project and the associated river system.
Some Federal Water and Power Projects Should Remain Federal
Projects that play critical roles in watershed and river management
for public purposes or are important to interstate, international, or
treaty obligations, should remain federal. Some projects are simply too
important to be able to adequately condition the transfers. For
example, projects such as Hoover Dam/Lake Mead and Glen Canyon Dam/Lake
Powell simply should remain federal.
As a corollary to the first principle, where public benefits cannot
be ensured and enhanced in a transfer, because adequate terms cannot be
crafted or the recipient will not accept the conditions, the project
should remain federal.
Water Users Are Not Entitled to Project Ownership; Transfer Is a New
Benefit To Be Negotiated and for Which Consideration Is
Under the Reclamation laws, water users are in no sense entitled to
project ownership when they complete their capital repayment
obligations. The law and history are unambiguous on the point. ``Paid
out'' does not mean ``paid for.''
Under Reclamation law, agricultural water users are obligated to
pay only pennies on the dollar of the costs for Reclamation
projects.\2\ While water districts may argue they are due ownership
when they complete payments, there is no legal claim that those
payments built equity. In fact, because the projects were almost
entirely subsidized with public funds, the argument in favor of
enhanced public benefits is much stronger than any argument in favor of
water user ownership. If water users are given a new benefit--ownership
and complete control of the facilities--the quid pro quo should be
enhanced public benefits.
\2\ The economics of water projects make nonsense of the notion
that water users have in any sense ``bought'' the projects. Since 1914,
the federal taxpayer has paid for from 40% to more than 90% of
irrigation project costs simply due to the no-interest repayment terms.
On top of that generous subsidy, irrigation water users have had more
than half (53%) of their $7.1 billion irrigation share of water project
costs shifted to hydropower users or simply forgiven. (Information on
Allocation and Repayment of Costs of Constructing Water Projects, GAO/
RCED 96-109, 1996.)
A Decision To Transfer a Project Should Not Be Made Until the
Consequences of Transfer Are Understood and the Terms of
Because water projects affect so many interests, the terms of the
deal determine whether a transfer is in the public interest. Congress
requires that water projects proposed for construction be evaluated,
and at least the general outline of the project determined, before
considering projects for authorization. Congress should do no less in
disposing of projects in which it has already invested the taxpayers'
We suggest that Congress require environmental review and facility-
specific transfer plans that set the terms and conditions be completed
prior to legislative action. As a less attractive alternative, Congress
could authorize transfers while also directing the Secretary of the
Interior to condition transfers in order to protect and enhance the
public benefits. The appropriate time for legislation and the language
used in that transfer legislation has been an issue since the topic of
granting ownership to water users first arose. When transfers are
directed before environmental review has been completed, Congress is
deprived of a thorough analysis of the transfer issues and interior's
ability to seriously consider the ``no action'' alternative is
eliminated. Similarly, when transfer is directed before the terms of
the deal are worked out, Interior's ability effectively to condition
the transfer to protect the public interest and enhance public benefits
is greatly reduced, if not eliminated.
Please note that conservation organizations are not alone in their
concern about terms and prior review. The Western States Water Council
whose members are appointed by Western governors arrived at very
similar conclusions in twice adopting a position on transfers of
federal water and power projects. In 1995, and again in 1998, the WSWC
adopted a position on transfers that sets out their concerns with third
party impacts, public costs and benefits, the change in applicable
laws, and the need for a strong role for states. They urge Congress and
the Administration to adopt a process and develop criteria and
guidelines for project-by-project review of transfer proposals, with
significant state involvement. (See Position No. 209 at http--//www--
westgov.org/wswc/transfer.html). Trout Unlimited agrees with this
HFF and TU appreciate that FMID faces a serious problem with the
drought year reliability of its Reclamation water supply because the
fishery faces the same problem. The principal reservoir FMID relies
upon is Island Park, part of Reclamation's Minidoka Project, and the
subject of the prior title transfer effort. During the last two drought
years, FMID has only been allocated 62% and 42% of Island Park
Reservoir storage because of the senior rights of other Minidoka
Project contractors. Unfortunately, these dry years are all too common,
and typically occur two or three years out of every ten. Every water
user on the Snake River and the Minidoka project, including the
fishery, faces the same set of problems.
The centerpiece of this bill is transfer of a partially developed
well field. Teton Exchange Wells and the associated State of Idaho
water permit #22-7022. While the permit envisioned 45 wells totaling
670 cfs of water, only five wells have been drilled, providing
approximately 81 cfs. FMID has stated its intent to firm its water
supply by drilling new wells and making more extensive use of the well
Our immediate concern is that additional water extraction from the
ground water system will have a deleterious effect on the Henry's Fork
River and aquatic resources. The location of the new wells, the amount
of water pumped from the existing and new wells, the type and location
of delivery systems, location of water use, and return flows all have
implications for fish and wildlife resources. We understand that other
water users have concerns about possible injury to their rights as
well. TU must oppose this legislation because of the uncertain, but
likely, impact further development of this well field would have on the
Henry's Fork aquatic resources.
Our more fundamental concern is one of missed opportunity. The
Henry's Fork needs a drought management plan that addresses the needs
of the agricultural community, the angling interests that now are a
significant part of the local economy, and the ecological needs of the
river. This bill transfers a potential significant source of water,
usable in dry years, to one of the many interests on the river. It
picks one set of interests as a winner, and ignores the others. A
drought management plan could use any new water developed in the well
field as a key element in responding to the inevitable periodic dry
years. This bill represents an approach to water problems from the last
century, one that Mark Twain would recognize. The Henry's Fork needs an
approach based on collaboration, communication, and a philosophy of
shared pain and shared gain. Additional use of the Teton Exchange Wells
may be an integral part of that approach to making an already stressed
water system work more effectively and provide greater benefits to all
TU requests that the current legislative proposal be deferred while
the various stakeholder groups are convened to see if there might be an
alternative that meets everyone's needs. Such talks could be sponsored
and facilitated by the Idaho congressional delegation and include those
with a stake in the outcome from Twin Falls upstream. The members of
the Henry's Fork Watershed Council have demonstrated that they can be
effective and work productively if given the opportunity. Missing this
opportunity to encourage creating an effective drought management plan
would be moving in the wrong direction.
We have the following specific comments on S. 2556:
1. Section 2(3) creates some ambiguity in the facilities to be
conveyed. Section 2(3)(a) describes the facilities to be transferred
specifically as the Cross Cut Diversion Dam, the Cross Cut Canal, and
the Teton Exchange Wells. However, subsection (3)(b) of Section 2 is
broader and includes broader language describing the transfer of all
United States rights, title, and interest ``any canal, lateral, drain,
or other component of the water distribution and drainage system that,
on the date of enactment of this Act, is operated or maintained by the
District to deliver water to and drainage of water from land within the
boundaries of the District.'' We understand that FMID may operate other
facilities beyond those specified in Section 2(3)(a). Therefore, we
suggest that the facilities to be transferred be identified in Section
2(3)(a) specifically and not generally.
2. Section 2(3)(c), concerning the Teton Exchange Wells, makes
clear that FNUD would receive not just the five wells it has been
using, but also the permit for 40 additional wells and approximately
589 cfs of additional water. The heart of our concern is the transfer
of this permit, and the possible development of some or all of the
additional diversions, with attendant effects on aquatic resources.
3. Section 3(a) directs transfer of the facilities by a date
certain. Directing transfer limits, and may eliminate the ability of
the Secretary to effectively negotiate terms and conditions in response
to the eventual NEPA and ESA process, reducing the value of a review
process subsequent to legislation. Directing a transfer is appropriate
in legislation after the environmental review is complete, and the
terms of the transfer have been set through negotiation. Prior to
reaching that point, a much better result is likely if the transfer is
authorized, but not directed.
4. Section 3(b) specifies the cost to FMID of the transaction and
the facilities. We reiterate the common-sense position set out above
that ``paid out'' does not mean ``paid for.'' The asset value to the
taxpayer of the transferred facilities has not been established and
should be in the course of a thorough review of the transfer proposal
and development of a drought management plan; after determining that
value, a reasonable price can be set. Section 3(b)(1)(B) sets an
arbitrary cap of $280,000, to the potential detriment of the federal
taxpayer. We also are concerned that Section 3(b)(2)(B) in limiting the
transaction costs to FM1D may be setting a cap on any mitigation or
environmental enhancement costs that could be required as part of the
transfer. Until that assessment is done, the environmental costs cannot
be quantified and should not be capped. Further, the $40,000 cap on
administrative payments again sets an arbitrary cap, to the detriment
of the federal taxpayer.
5. Section 5 calls for NEPA analysis to be performed after Congress
directs transfer. This process seriously limits the scope of NEPA
review (by essentially eliminating the no transfer alternative from
serious consideration) and greatly limits the ability of the Secretary
to require terms and conditions that protect public resources. We
suggest that at a minimum the legislation or legislative record make
clear that NEPA analysis is to consider thoroughly the effects of
development of the Teton Wells.
6. Section 5 is intended to legitimize use of Reclamation water on
land not currently eligible for that water. Water spreading is a
significant issue around the West that has typically been resolved, as
in this case, by legitimizing what amounts to use of water contrary to
law. While we do not have information about this particular situation,
we note that the effect of this section is to expand the number of
acres legally eligible for irrigation in a basin chronically short of
Congress and Reclamation are far from solving the problem of how,
when and under what conditions to transfer ownership of federal water
projects. In part, this is because each project is different, with
different users, beneficiaries, and environmental issues. Therefore,
the appropriate terms and conditions for transfer will differ from
project-to-project as well. We suggest that the best approach parallels
that which Congress follows when authorizing water projects. Congress
should require facility specific transfer plans that develop the issues
and find solutions before legislation is enacted. Just as with
feasibility studies for new projects, results are best when the
questions are asked, the public is involved, and the answers are found
early in the process. And as recent revelations about the Corps of
Engineers practices show, even that process is subject to flaws.
The development that we find most appealing is that in some areas
water users and conservation organizations are now actually talking to
one another about how to manage rivers for their mutual benefit. The
Henry's Fork is home to leaders in this approach, and their efforts
should be encouraged. We are very optimistic that common ground can be
found in many, if not most cases. The wisest of the Reclamation
contractors appreciate their rights and responsibilities as stewards of
vital natural resources, just as conservationists appreciate the
contributions of water users.
Congress' goal should be to improve the benefits derived from the
enormous federal investment in western water resources. To be satisfied
with the status quo in a deteriorating and increasingly complicated
system is not enough. Congress should only transfer Reclamation
projects when it leads to human and environmental systems that are
stronger, healthier and more resilient. We oppose S. 2556 because it
does not yet meet that test.
Very truly yours,
Trout Unlimited, Inc.
Idaho Falls, ID, July 27, 2002.
Honorable Senators of the Energy and Natural Resources Committee, and
the Water and Power Subcommittee, U.S. Senate, Washington, DC.
Subject--S. 2556, Fremont-Madison Conveyance Act
Honorable Senators: The Snake River Cutthroats, an Idaho Falls-
based chapter of both Trout Unlimited and the Federation of Fly
Fishers, representing over 200 members in eastern Idaho, offer these
comments on the bill, S. 2556, ``Fremont-Madison Conveyance Act.''
The passage of this bill and its companion House bill, H.R. 4708,
is opposed by the Snake River Cutthroats by unanimous vote of the Board
of Directors. We are very disappointed in the actions of the Fremont-
Madison irrigation District in causing this legislation to be
introduced without the partnership of the conservation community and
other stakeholders. We ask you to place this bill on hold until
language can be crafted by the stakeholders that is supported by both
the agricultural and conservation communities, or at a minimum,
consideration is given to the needs of the fishery and aquatic
This bill represents a serious failure in leadership, a lost
opportunity for the agriculture and conservation community to provide a
showcase example of cooperation and partnership. During drought years
we both suffer the same problem, inadequate supply of water. However,
the remedy is at hand, the Teton Exchange Wells and associated water
pumping permit now owned by the people of the United States. This
permit, with existing and future wells, exceeds the needs of both
parties. Working together, we could be a formidable force for improving
the welfare of our agricultural and conservation interests, and their
associated contributions to the local economy.
Unfortunately, Fremont-Madison has chosen to grasp for the prize
alone, without consultation with the other stakeholders, without
discussions within the framework of the Henry's Fork Watershed Council
on the language of the bill, or provisions for the health of the
watershed, and without regard for the procedures outlined in the
``Framework for the Transfer of Title,'' Bureau of Reclamation.
Fremont-Madison proposed paying 5280,000 for wells and water permits
conservatively valued at 12 times that. by the Bureau of Reclamation,
and in actuality multiples of this. Surely, there must be room for a
bit of sharing with the aquatic resources.
The Snake River Cutthroats respectfully make these requests of and
comments to the Senate Energy and Natural Resources Committee, and of
the Water and Power Subcommittee:
1. Please send this bill, S. 2556, back to its sponsors, or
place on hold, with instructions to include all stakeholders
including the conservation community, in its formulation, and
return with a ``do pass'' recommendation from the Henry's Fork
Watershed Council. Failure to do so will undoubtedly seriously
damage the legitimacy of and the climate of cooperation and
goodwill, so carefully developed by that council.
2. Fremont-Madison, for their own reasons, is trying to
acquire title without following the procedures outlined in
``Framework for the Transfer of Title,'' August 7, 1995, Bureau
of Reclamation. This procedure calls for NEPA analysis to be
performed before introduction of legislation to title transfer.
This approach seriously limits the effectiveness of the NEPA
review, and the ability of the Secretary of the Interior to
provide mitigation, and to require terms and conditions to
protect public resources. We believe that, at a minimum, the
bill should first require completion of the NEPA analysis, and
agreement to any necessary remediations prior to title
3. At a minimum, provide in the bill that some portion, (we
suggest 20%) of the water from the Teton Exchange Wells and of
the associated permit be reserved for the benefit of the
fisheries and welfare of the aquatic wildlife.
4. There may be testimony suggesting that water produced from
the wells will result in increased flows in the river, thus
providing the conservation benefit. Our analysis does not agree
with that, It is logical that the maximum summer irrigation
flows through the length Henry's Fork river would come if all
the water stored in the upper river is flowed to water right
holders over 50 to 150 miles downstream. And in drought years
these downstream users do acquire rights to that storage water,
amounting to over 50% this year. The Teton Exchange wells are
located in the lower portion of the District, thus water from
storage and natural flows belonging to these downstream water
users but diverted by Fremont-Madison in the upper district,
and replaced in the lower located wells, will actually decrease
flows in that river segment. And it is unexpected that it is
economically feasible for Fremont-Madison to fund the estimated
$100,000-200,000 lifting costs to hold additional water in the
reservoirs for winter flow supplementation for the fisheries
and aquatic resources.
The Snake River Cutthroats appreciate this opportunity to submit
comments on S. 2556.
For the Snake River Cutthroats,
Western States Water Council,
Midvale, UT, July 26, 2002.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, Hart
Senate Office Building, Washington, DC.
Dear Chairman Bingaman: On behalf of the Western States Water
Council, representing the governors of eighteen states, I am writing to
express our interest in legislation dealing with the conservation and
management of the High Plains Aquifer. As you know, the Council serves
as a forum for western states to express their views on water resource
issues. Several of our member states have determined to use the Council
as a vehicle to address their interests in protecting the High Plains
Aquifer and have formed a caucus that is meeting in conjunction will
our regular Council meetings to discuss issues of mutual concern.
To date, those discussions have revolved around the continuing need
for conservation of High Plains ground water resources and the likely
impact of incentive programs enacted as part of the Farm Bill. We have
also addressed the need for further legislation and welcome the
introduction of S. 2773. Good decisionmaking must be based on sound
science and there is a clear need for more information on the extent
and nature of the ground water resources of the High Plains aquifer. To
this end, we support further mapping, modeling and monitoring and urge
expedited action towards enactment of S. 2773 by the 107th Congress,
with assurances of close cooperation with state geologists and water
resource agencies. Attached are suggested changes to S. 2773 that we
believe would further improve the bill.
Provisions of other pending legislation are still being discussed
by our High Plains caucus, including those related to education
assistance, research, and voluntary incentive based programs. Any
federal actions, to the effective, must recognize the primacy of state
water law and provide incentives consistent with state policies and
programs. We look forward to working with the Congress to enact
appropriate federal legislation, and working with the federal agencies
to effectively implement legislative directives.
Karl J. Dreher,
Chairman, Western States Water Council.