59–010 

Calendar No. 49 

110TH CONGRESS REPORT " ! SENATE 1st Session 110–23 

WALLOWA LAKE DAM REHABILITATION AND WATER 

MANAGEMENT ACT OF 2007 

FEBRUARY 16, 2007.—Ordered to be printed 

Mr. BINGAMAN, from the Committee on Energy and Natural 

Resources, submitted the following 

R E P O R T 

[To accompany S. 264] 

The Committee on Energy and Natural Resources, to which was 

referred the bill (S. 264) to authorize the Bureau of Reclamation to 

participate in the rehabilitation of the Wallowa Lake Dam in Oregon, and for other purposes, having considered the same, reports 

favorably thereon with an amendment and recommends that the 

bill, as amended, do pass. 

Strike out all after the enacting clause and insert inlieu thereof 

the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Wallowa Lake Dam Rehabilitation and Water Management Act of 2007’’. 

SEC. 2. DEFINITIONS. 

In this Act: 

(1) ASSOCIATED DITCH COMPANIES, INCORPORATED.—The term ‘‘Associated 

Ditch Companies, Incorporated’’ means the nonprofit corporation established 

under the laws of the State of Oregon that operates Wallowa Lake Dam. 

(2) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of the Interior, 

acting through the Commissioner of Reclamation. 

(3) WALLOWA LAKE DAM REHABILITATION PROGRAM.—The term ‘‘Wallowa Lake 

Dam Rehabilitation Program’’ means the program for the rehabilitation of the 

Wallowa Lake Dam in Oregon, as contained in the engineering document entitled, ‘‘Phase I Dam Assessment and Preliminary Engineering Design’’, dated 

December 2002, and on file with the Bureau of Reclamation. 

SEC. 3. AUTHORIZATION TO PARTICIPATE IN PROGRAM. 

(a) GRANTS AND COOPERATIVE AGREEMENTS.—The Secretary may provide grants 

to, or enter into cooperative or other agreements with, tribal, State, and local governmental entities and the Associated Ditch Companies, Incorporated, to plan, design, and construct facilities needed to implement the Wallowa Lake Dam Rehabilitation Program. 

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(b) CONDITIONS.—As a condition of providing funds under subsection (a), the Secretary shall ensure that— (1) the Wallowa Lake Dam Rehabilitation Program and any activities under 

this Act meet the standards of the dam safety program of the State of Oregon; 

(2) the Associated Ditch Companies, Incorporated, agrees to assume liability 

for any work performed, or supervised, with Federal funds provided to Associated Ditch Companies, Incorporated, under this Act; and 

(3) the United States shall not be liable for damages of any kind arising out 

of any act, omission, or occurrence relating to a facility rehabilitated or constructed with Federal funds provided under this Act, regardless of whether the 

damages arose during or after the rehabilitation or construction. 

(c) COST SHARING.— (1) IN GENERAL.—The Federal share of the costs of activities authorized under 

this Act shall not exceed 50 percent. 

(2) EXCLUSIONS FROM FEDERAL SHARE.—There shall not be credited against 

the Federal share of the costs of activities authorized under this Act— (A) any expenditure by the Bonneville Power Administration in the 

Wallowa River watershed; and 

(B) expenditures made by individual agricultural producers in any Federal commodity or conservation program. 

(d) COMPLIANCE WITH STATE LAW.—In carrying out this Act, the Secretary shall 

comply with applicable Oregon State water law. 

(e) PROHIBITION ON HOLDING TITLE.—The Federal Government shall not hold title 

to any facility rehabilitated or constructed under this Act. 

(f) PROHIBITION ON OPERATION AND MAINTENANCE.—The Federal Government 

shall not be responsible for the operation and maintenance of any facility constructed or rehabilitated under this Act. 

SEC. 4. RELATIONSHIP TO OTHER LAW. 

Activities funded under this Act shall not be considered a supplemental or additional benefit under Federal reclamation law (the Act of June 17, 1902 (32 Stat. 388, 

chapter 1093), and Acts supplemental to and amendatory of that Act (43 U.S.C. 371 

et seq.)). 

SEC. 5. AUTHORIZATION OF APPROPRIATIONS. 

There is authorized to be appropriated to the Secretary to pay the Federal share 

of the costs of activities authorized under this Act $6,000,000. 

SEC. 6. TERMINATION OF AUTHORITY. 

The authority of the Secretary to carry out any provisions of this Act shall terminate 10 years after the date of enactment of this Act. 

PURPOSE

The purpose of S. 264 is to authorize the Bureau of Reclamation 

to participate in the rehabilitation of the Wallowa Lake Dam in Oregon. 

BACKGROUND AND NEED

Wallowa Lake Dam is a privately owned dam constructed in 

1918 and raised in 1929. It is owned and operated by the Associated Ditch Companies, Inc. (ADC). Dam safety deficiencies have 

been identified by the U.S. Army Corps of Engineers and the Oregon Water Resources Department, causing the reservoir to be held 

below full pool elevation since 1996. ADC, in conjunction with the 

Grande Ronde Model Watershed Council, the Bureau of Reclamation, and other local, State, and Federal agencies developed the 

Wallowa Lake Dam Rehabilitation and Water Management Program to address dam safety deficiencies and to tie correction of 

those deficiencies to larger environmental issues in the Wallowa 

River Basin. 

S. 264 authorizes the Secretary of the Interior, acting through 

the Commissioner of Reclamation, to participate in the Wallowa 

Lake Dam Rehabilitation Program in cooperation with ADC. The 

Wallowa Lake Dam Rehabilitation Program, as described in the 

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February 2001 Vision Statement, focuses on planning, designing, 

and constructing recommended improvements to Wallowa Lake 

Dam. When this phase is completed, ADC will be able to raise pool 

levels and work closely with the Oregon State Parks Department 

to assess the impact on nearby park facilities. 

LEGISLATIVE HISTORY

S. 264 was introduced on January 11, 2007 by Senator Smith for 

himself and Senator Wyden and referred to the Committee on Energy and Natural Resources. At its business meeting on January 

31, 2007, the Committee on Energy and Natural Resources ordered 

S. 264 favorably reported with an amendment in the nature of a 

substitute. 

During the 109th Congress, the Committee considered similar 

legislation, S. 231, introduced by Senator Smith on February 1, 

2005. Senator Wyden was a co-sponsor. At the business meeting on 

February 9, 2005, the Committee ordered S. 231 favorably reported. S. Rept. 109–30. S. 231 passed the Senate, by unanimous 

consent, on July 26, 2005. No further action occurred on S. 231 

prior to the sine die adjournment of the 109th Congress. A measure 

similar to the amended version of S. 264, section 3 of H.R. 5079, 

was considered by the House of Representatives under suspension 

of the rules and passed by a voice vote on September 25, 2006. 

The Committee also considered similar legislation in the 108th 

Congress, S. 1355, introduced by Senator Smith on June 26, 2003. 

Senator Wyden was a co-sponsor. The Subcommittee on Water and 

Power held a hearing on S. 1355 on October 15, 2003. S. Hrg. 108–

271. The Committee ordered the bill favorably reported with 

amendments on March 10, 2004. S. Rept. 108–250. S. 1355 passed 

by the Senate, by unanimous consent, on September 15, 2004. 

COMMITTEE RECOMMENDATION

The Senate Committee on Energy and Natural Resources, in 

open business session on January 31, 2007, by voice vote of a 

quorum present, recommends that the Senate pass S. 264, if 

amended as described herein. 

COMMITTEE AMENDMENT

During the consideration of S. 264, the Committee adopted an 

amendment in the nature of a substitute. The amendment addresses concerns that were raised by the Administration in previous testimony and conforms the text of the bill to the text of section 3 of 

H.R. 5079 which passed the House of Representatives during the 

109th Congress. The amendment is explained in detail in the section-by-section analysis, below. 

SECTION-BY-SECTION ANALYSIS

Section 1 provides the short title. 

Section 2 defines key terms used in the bill. 

Section 3(a) authorizes the Secretary to provide grants or enter 

into cooperative or other agreements with tribal, State, and local 

governmental entities and the ADC, to plan, design, and construct 

facilities needed to implement the Wallowa Lake Dam Rehabilitation Program. 

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The Committee recognizes that this bill, by authorizing the Bureau of Reclamation to provide grant money for the rehabilitation 

of the Wallowa provides a unique, cost-effective means of enhancing flood control protection for downstream communities, and assisting with re-establishing a fishery for the Nez Perce Tribe. Rehabilitation of the dam will also provide for additional water storage. 

With the ability to fill the lake to a higher elevation, the water 

rights holders, pursuant to a Wallowa Valley Water Management 

Plan have agreed to make an additional 4,300 acre-feet of water 

available each year, in accordance with State water law. This will 

help the Nez Perce Tribe, which shares management responsibility 

with the Federal Government of certain fish resources, restore 

sockeye and coho salmon passage at the dam, and provide for a 

downstream water exchange. It will also aid in resolving issues related to Federally-listed salmon runs. The Committee notes that 

these circumstances are unique and the Committee does not intend 

this legislation to set precedent for Federal assistance to private 

projects. 

Section 3(b) requires the Secretary, as a condition of providing 

funds, to ensure that (1) the program meet the standards of the 

dam safety program in the State of Oregon; (2) ADC assumes liability for work performed or supervised with funds provided to it 

under this Act; and (3) the United States shall not be liable for 

damages arising out of any act, omission, or occurrence, relating to 

a facility rehabilitated or constructed under this Act. 

Section 3(c) limits the Federal share of the cost of activities authorized in this Act to 50 percent; and excludes certain expenditures from being credited against the Federal cost share. 

Section 3(d) requires the Secretary to comply with Oregon State 

water law. 

Section 3(e) prohibits the Federal Government from holding title 

to any facility rehabilitated or constructed under this Act. 

Section 3(f) provides that the Federal Government is not responsible for the operation and maintenance of any facility constructed 

or rehabilitated under this Act. 

Section 4 states that activities funded under this Act shall not 

be considered a supplemental or additional benefit under Federal 

reclamation law. 

Section 5 authorizes $6 million in appropriations for the Federal 

cost share. 

Section 6 sunsets the authority provided by the Act after 10 

years. 

COST AND BUDGETARY CONSIDERATIONS

The following estimate of costs of this measure has been provided 

by the Congressional Budget Office: 

S. 264—Wallowa Lake Dam Rehabilitation and Water Management 

Act of 2007 

Summary: S. 264 would authorize the appropriation of $6 million 

for the Bureau of Reclamation’s contribution to the rehabilitation 

of the Wallowa Lake Dam. Implementing S. 264 would cost $6 million over the 2008–2012 period. Enacting the legislation would not 

affect direct spending or revenues. 

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S. 264 contains no intergovernmental or private-sector mandates 

as defined in the Unfunded Mandates Reform Act (UMRA) and 

would impose no costs on state, local, or tribal governments. 

Estimated cost to the Federal Government: For this estimate, 

CBO assumes that this bill will be enacted near the end of 2007, 

that $2 million will be provided each year over the 2008–2010 period, and that outlays will follow the historical spending pattern for 

similar activities. Appropriation of the authorized amount would 

result in discretionary spending of $6 million over the 2008–2011 

period. The estimated budgetary impact of S. 264 is shown in the 

following table. The costs of this legislation fall within budget function 300 (natural resources and environment). 

By fiscal year, in millions of dollars— 

2008 2009 2010 2011 2012 

CHANGES TO SPENDING SUBJECT TO APPROPRIATION 

Estimated Authorization Level ................................................................................ 2 2 2 0 0 

Estimated Outlays ................................................................................................... 1 2 2 1 0 

Intergovernmental and private-sector impact: S. 264 contains no 

intergovernmental or private-sector mandates as defined in the 

UMRA and would impose no costs on state, local, or tribal governments. 

Estimate prepared by: Federal Costs: Julie Middleton; Impact on 

State, Local, and Tribal Governments: Lisa Ramirez-Branum; Impact on the Private Sector: Craig Cammarata. 

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

REGULATORY IMPACT EVALUATION

In compliance with paragraph 11(b) of rule XXVI of the Standing 

Rules of the Senate, the Committee makes the following evaluation 

of the regulatory impact which would be incurred in carrying out 

S. 264. The bill is not a regulatory measure in the sense of imposing Government-established standards or significant economic responsibilities on private individuals and businesses. 

No personal information would be collected in administering the 

program. Therefore, there would be no impact on personal privacy. 

Little, if any, additional paperwork would result from the enactment of S. 264. 

EXECUTIVE COMMUNICATIONS

Because S. 264 is similar to legislation considered during the 

109th and 108th Congresses, the Committee did not request Executive Agency views. The testimony provided by the Bureau of Reclamation at the Subcommittee hearing on S. 1355 in the 108th 

Congress follows: 

STATEMENT OF JOHN W. KEYS, III, COMMISSIONER, BUREAU

OF RECLAMATION, DEPARTMENT OF THE INTERIOR

Mr. Chairman and Members of the Subcommittee I am 

John Keys, Commissioner of the Bureau of Reclamation. I 

appreciate the opportunity to present the Department’s 

views on S. 1355, a bill that would authorize Reclamation 

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to participate in implementation of the Wallowa Lake Dam 

Rehabilitation Program and Wallowa Valley Water Management Plan in Oregon. Reclamation believes the 

Wallowa Lake Dam Rehabilitation Program and Wallowa 

Valley Water Management Plan are potentially worthwhile, with numerous benefits. While we believe there may 

be merit to this proposed project, the Department does not 

support S. 1355, as currently drafted. 

Wallowa Lake Dam is a privately-owned dam constructed in 1918 and raised in 1929, and is owned and operated by the Associated Ditch Companies, Inc. (ADC). 

Dam safety deficiencies have been identified by the United 

States Army Corps of Engineers and Oregon Water Resources Department. ADC, in conjunction with the Grande 

Ronde Model Watershed, Reclamation, and other local, 

state, and Federal agencies, developed the Wallowa Lake 

Dam Rehabilitation Program to address dam safety deficiencies and developed the Wallowa Valley Water Management Plan to tie correction of those deficiencies to larger 

environmental issues in the Wallowa River Basin. The 

Dam Rehabilitation Program and Water Management Plan 

is a six year proposal with an estimated total cost of 

$38,800,000. S. 1355 sets out an 80/20 cost share for these 

efforts, under which the Federal government would pay 

$32 million funded through the Bureau of Reclamation. 

While the programs developed by the ACD and the 

Model Watershed provide a concept, they do not meet Federal standards established in the Principals and Guidelines for planning water development programs. Furthermore, the project may affect species listed under the Endangered Species Act (ESA). Should Reclamation be authorized to fund this project, a funding decision may constitute a major Federal action subject to consultation 

under Section 7 of the ESA. It would also require environmental analysis in compliance with the National Environmental Policy Act (NEPA). The bill, as currently drafted, 

does not provide for Reclamation’s participation in the 

planning stages of the dam rehabilitation aspects of the 

project and separates dam rehabilitation from implementation of the water management plan. Consequently, it 

would be difficult for Reclamation to meet the environmental compliance requirements for the ESA and NEPA. 

Until adequate planning can be completed, the Administration cannot support funding this project. 

The proposed bill would authorize Reclamation to provide funding to the ADC for dam rehabilitation activities, 

[nit] however, it does not provide administrative authority 

to transfer those funds. The legislation would need revision to provide Reclamation authority to issue grants. We 

would be pleased to work with the Committee in developing appropriate language. 

Finally, we are concerned that Reclamation’s participation in this program would adversely impact ongoing 

projects and operations. S. 1355 would authorize the use 

of Reclamation funds for a non-Federal purpose. Reclamamstockstill on PROD1PC66 with HEARING

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tion funds are limited and are targeted to perform essential functions at our projects, such as security, operations 

and maintenance (O&M), resource management, dam safety, and construction. In addition, despite the very high 

Federal cost share for the project under S. 1355, there is 

no provision for repayment by project beneficiaries in accordance with Reclamation law. Funding for this project 

was not included in the President’s budget, and we can not 

support activities which detract from high priority work on 

current Bureau of Reclamation facilities. The Department 

cannot, therefore, support S. 1355. 

Thank you again for the opportunity to provide the Administration’s position on S. 1355. I would be happy to answer any questions you might have. 

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, the Committee notes that no changes in existing law are made by the bill S. 264 as ordered reported. 

Æ 

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