49–010 

Calendar No. 639 

113TH CONGRESS REPORT " ! SENATE 2d Session 113–299 

KLAMATH BASIN WATER RECOVERY AND ECONOMIC 

RESTORATION ACT 

DECEMBER 10, 2014.—Ordered to be printed 

Ms. LANDRIEU, from the Committee on Energy and Natural 

Resources, submitted the following 

R E P O R T 

[To accompany S. 2379] 

The Committee on Energy and Natural Resources, to which was 

referred the bill (S. 2379) to approve and implement the Klamath 

Basin agreements, to improve natural resource management, support economic development, and sustain agricultural production in 

the Klamath River Basin in the public interest and the interest of 

the United States, and for other purposes, having considered the 

same, reports favorably thereon with an amendment and recommends that the bill, as amended, do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Klamath Basin Water Recovery and Economic Restoration Act of 2014’’. 

SEC. 2. DEFINITIONS. 

In this Act: 

(1) AGREEMENT.—The term ‘‘Agreement’’ means each of— 

(A) the Restoration Agreement; and 

(B) the Upper Basin Agreement. 

(2) COMMISSION.—The term ‘‘Commission’’ means the Federal Energy Regulatory Commission. 

(3) FACILITIES REMOVAL.—The term ‘‘facilities removal’’ means— 

(A) physical removal of all or part of each facility to achieve, at a minimum, a free-flowing condition and volitional fish passage; 

(B) site remediation and restoration, including restoration of previously 

inundated land; 

(C) measures to avoid or minimize adverse downstream impacts; and 

(D) all associated permitting for the actions described in this paragraph. 

(4) FACILITY.—The term ‘‘facility’’ means the following 1 or more hydropower 

facilities (including appurtenant works licensed to PacifiCorp) within the jurisVerDate Sep 11 2014 03:10 Dec 30, 2014 Jkt 049010 PO 00000 Frm 00001 Fmt 6659 Sfmt 6621 E:\HR\OC\SR299.XXX SR299

emcdonald on DSK67QTVN1PROD with HEARING
2 

dictional boundary of the Klamath Hydroelectric Project, FERC Project No. 

2082 (as applicable): 

(A) Iron Gate Dam. 

(B) Copco No. 1 Dam. 

(C) Copco No. 2 Dam. 

(D) J.C. Boyle Dam. 

(5) GOVERNORS.—The term ‘‘Governors’’ means— 

(A) the Governor of the State of Oregon; and 

(B) the Governor of the State of California. 

(6) HYDROELECTRIC SETTLEMENT.—The term ‘‘Hydroelectric Settlement’’ 

means the agreement entitled ‘‘Klamath Hydroelectric Settlement Agreement’’ 

and dated February 18, 2010 (including any amendments to that agreement approved pursuant to section 3(a)). 

(7) JOINT MANAGEMENT ENTITY.—The term ‘‘Joint Management Entity’’ means 

the entity that— 

(A) is comprised of the Landowner Entity, the Klamath Tribes, the 

United States, and the State of Oregon; 

(B) represents the interests of the parties to the Upper Basin Agreement; 

and 

(C) is responsible for overseeing implementation of the Upper Basin 

Agreement, as described in section 7 of the Upper Basin Agreement. 

(8) JOINT MANAGEMENT ENTITY TECHNICAL TEAM.—The term ‘‘Joint Management Entity Technical Team’’ means the group of specialists appointed by the 

Joint Management Entity as provided for in section 7.8 of the Upper Basin 

Agreement. 

(9) KENO FACILITY.—The term ‘‘Keno Facility’’ means the dam located in 

Klamath County, Oregon, land underlying the dam, appurtenant facilities, and 

PacifiCorp-owned property described as Klamath County Map Tax Lot R-3907- 

03600-00200-000. 

(10) KLAMATH BASIN.— 

(A) IN GENERAL.—The term ‘‘Klamath Basin’’ means the land tributary to 

the Klamath River in Oregon and California. 

(B) INCLUSIONS.—The term ‘‘Klamath Basin’’ includes the Lost River and 

Tule Lake Basins. 

(11) KLAMATH PROJECT.— 

(A) IN GENERAL.—The term ‘‘Klamath Project’’ means the Bureau of Reclamation project in the States of California and Oregon, as authorized 

under the Act of June 17, 1902 (32 Stat. 388, chapter 1093). 

(B) INCLUSIONS.—The term ‘‘Klamath Project’’ includes any dams, canals, 

and other works and interests for water diversion, storage, delivery, and 

drainage, flood control, and similar functions that are part of the project described in subparagraph (A). 

(12) KLAMATH PROJECT WATER USERS.—The term ‘‘Klamath Project Water 

Users’’ has the meaning given the term in the Restoration Agreement. 

(13) LANDOWNER ENTITY.—The term ‘‘Landowner Entity’’ means the entity established pursuant to section 8 of the Upper Basin Agreement. 

(14) OFF-PROJECT AREA.—The term ‘‘Off-Project Area’’ means— 

(A) the areas within the Sprague River, Sycan River, Williamson River, 

and Wood Valley (including the Wood River, Crooked Creek, Sevenmile 

Creek, Fourmile Creek, and Crane Creek) subbasins referred to in Exhibit 

B of the Upper Basin Agreement; and 

(B) to the extent provided for in the Upper Basin Agreement, any other 

areas for which claims described by section 1.3 or 2.5.1 of the Upper Basin 

Agreement are settled as provided for in section 2.5.1 of the Upper Basin 

Agreement. 

(15) OFF-PROJECT IRRIGATOR.—The term ‘‘Off-Project Irrigator’’ means any 

person that is— 

(A)(i) a claimant for water rights for irrigation uses in the Off-Project 

Area in Oregon’s Klamath Basin Adjudication; or 

(ii) a holder of a State of Oregon water right permit or certificate for irrigation use in the Off-Project Area; and 

(B) a Party to the Upper Basin Agreement. 

(16) OREGON’S KLAMATH BASIN ADJUDICATION.—The term ‘‘Oregon’s Klamath 

Basin adjudication’’ means the proceeding to determine surface water rights 

pursuant to chapter 539 of the Oregon Revised Statutes entitled ‘‘In the matter 

of the determination of the relative rights of the waters of the Klamath River, 

a tributary of the Pacific Ocean’’, in the Circuit Court of the State of Oregon 

for the County of Klamath, numbered WA 1300001. 


emcdonald on DSK67QTVN1PROD with HEARING
3 

(17) PACIFICORP.—The term ‘‘PacifiCorp’’ means the owner and licensee of the 

facility (as of the date of enactment of this Act). 

(18) PARTY TRIBES.—The term ‘‘Party tribes’’ means— 

(A) the Yurok Tribe; 

(B) the Karuk Tribe; 

(C) the Klamath Tribes; and 

(D) such other federally recognized tribes of the Klamath Basin as may 

become party to the Restoration Agreement after the date of enactment of 

this Act. 

(19) RESTORATION AGREEMENT.—The term ‘‘Restoration Agreement’’ means 

the agreement entitled ‘‘Klamath River Basin Restoration Agreement for the 

Sustainability of Public and Trust Resources and Affected Communities’’ and 

dated February 18, 2010 (including amendments adopted prior to the date of 

enactment of this Act and any further amendments to that agreement approved 

pursuant to section 3(a)). 

(20) RIPARIAN PROGRAM.—The term ‘‘Riparian Program’’ means the program 

described in section 4 of the Upper Basin Agreement. 

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

(22) SECRETARIES.—The term ‘‘Secretaries’’ means each of— 

(A) the Secretary of the Interior; 

(B) the Secretary of Commerce; and 

(C) the Secretary of Agriculture. 

(23) SETTLEMENTS.—The term ‘‘Settlements’’ means each of— 

(A) the Hydroelectric Settlement; 

(B) the Restoration Agreement; and 

(C) the Upper Basin Agreement. 

(24) UPPER BASIN AGREEMENT.—The term ‘‘Upper Basin Agreement’’ means 

the agreement entitled ‘‘Upper Klamath Basin Comprehensive Agreement’’ and 

dated April 18, 2014 (including any amendments to that agreement approved 

pursuant to section 3(a)). 

(25) WATER USE PROGRAM.—The term ‘‘Water Use Program’’ means the program described in section 3 of the Upper Basin Agreement and section 16.2 of 

the Restoration Agreement. 

SEC. 3. AUTHORIZATION, EXECUTION, AND IMPLEMENTATION OF SETTLEMENTS. 

(a) RATIFICATION OF SETTLEMENTS.— 

(1) IN GENERAL.—Except as modified by this Act, and to the extent that the 

Settlements do not conflict with this Act, the Settlements are authorized, ratified, and confirmed. 

(2) AMENDMENTS CONSISTENT WITH THIS ACT.—If any amendment is executed 

to make any of the Settlements consistent with this Act, the amendment is also 

authorized, ratified, and confirmed to the extent the amendment is consistent 

with this Act. 

(3) FURTHER AMENDMENTS.—If any amendment to any of the Settlements is 

executed by the parties to the applicable Settlement after the date of enactment 

of this Act, unless the Secretary, the Secretary of Commerce, or Secretary of Agriculture determines, not later than 90 days after the date on which the nonFederal parties agree to the amendment, that the amendment is inconsistent 

with this Act or other provisions of law, the amendment is also authorized, ratified, and confirmed to the extent the amendment— 

(A) is not inconsistent with this Act or other provisions of law; 

(B) is executed in a manner consistent with the terms of the applicable 

Settlement; and 

(C) does not require congressional approval pursuant to section 2116 of 

the Revised Statutes (25 U.S.C. 177) or other applicable Federal law. 

(b) EXECUTION AND IMPLEMENTATION OF SETTLEMENTS.— 

(1) THE AGREEMENTS.— 

(A) IN GENERAL.—As authorized, ratified, and confirmed pursuant to subsection (a)— 

(i) the Secretary, the Secretary of Commerce, and the Secretary of 

Agriculture shall promptly execute and implement the Restoration 

Agreement; and 

(ii) the Secretary and the Secretary of Commerce shall promptly execute and implement the Upper Basin Agreement. 

(B) EFFECT OF EXECUTING AGREEMENTS.—Notwithstanding subsection (l), 

execution by the applicable Secretaries under subparagraph (A) of either 

Agreement shall not be considered a major Federal action under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). 


emcdonald on DSK67QTVN1PROD with HEARING
4 

(C) PARTICIPATION IN THE UPPER BASIN AGREEMENT.—As provided for in 

the Upper Basin Agreement and as part of implementing the Upper Basin 

Agreement, the Secretary and the Secretary of Commerce may— 

(i) participate in the Water Use Program and in the Riparian Program; and 

(ii) serve as members of the Joint Management Entity representing 

the Bureau of Indian Affairs, the United States Fish and Wildlife Service, the United States Geological Survey, and the National Marine 

Fisheries Service of the Department of Commerce, with the Secretary 

serving as the voting member, as described in section 7.1.5 of the 

Upper Basin Agreement. 

(2) HYDROELECTRIC SETTLEMENT.—To the extent that the Hydroelectric Settlement does not conflict with this Act, the Secretary, the Secretary of Commerce, 

and the Commission shall implement the Hydroelectric Settlement, in consultation with other applicable Federal agencies. 

(c) FEDERAL RESPONSIBILITIES.—To the extent consistent with the Settlements, 

this Act, and other provisions of law, the Secretary, the Secretary of Commerce, the 

Secretary of Agriculture, and the Commission shall perform all actions necessary to 

carry out each responsibility of the Secretary, the Secretary of Commerce, the Secretary of Agriculture, and the Commission, respectively, under the Settlements. 

(d) ENVIRONMENTAL COMPLIANCE.—In implementing the Settlements, the Secretaries and the Commission shall comply with— 

(1) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); 

(2) the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); and 

(3) all other applicable law. 

(e) PUBLICATION OF NOTICE; EFFECT OF PUBLICATION.— 

(1) RESTORATION AGREEMENT.— 

(A) PUBLICATION.—The Secretary shall publish the notice required by section 15.3.4.A or section 15.3.4.C of the Restoration Agreement, as applicable, in accordance with the Restoration Agreement. 

(B) EFFECT OF PUBLICATION.—Publication of the notice described in subparagraph (A) shall have the effects on the commitments, rights, and obligations of the Party tribes, the United States (as trustee for the federally 

recognized tribes of the Klamath Basin), and other parties to the Restoration Agreement provided for in the Restoration Agreement. 

(2) UPPER BASIN AGREEMENT.— 

(A) PUBLICATION.—The Secretary shall publish the notice required by section 10.1 of the Upper Basin Agreement if all requirements of section 10 

of the Upper Basin Agreement have been fulfilled, including the requirement for notice by the Klamath Tribes of the willingness of the Tribes to 

proceed with the Upper Basin Agreement following enactment of authorizing legislation as described in section 10.1.10 or 10.2 of the Upper Basin 

Agreement, as applicable, in accordance with the Upper Basin Agreement. 

(B) EFFECT OF PUBLICATION.— 

(i) PERMANENCY.—On publication of the notice required under section 

10.1 of the Upper Basin Agreement, the Upper Basin Agreement shall 

become permanent. 

(ii) TERMINATION.—On publication of the notice required under section 10.2 of the Upper Basin Agreement, the Upper Basin Agreement 

shall terminate, according to the terms of that section. 

(3) JUDICIAL REVIEW.— 

(A) IN GENERAL.—Judicial review of a decision of the Secretary pursuant 

to this subsection shall be in accordance with the standard and scope of review under subchapter II of chapter 5, and chapter 7, of title 5, United 

States Code (commonly known as the ‘‘Administrative Procedure Act’’). 

(B) DEADLINE.—Any petition for review under this subparagraph shall be 

filed not later than 1 year after the date of publication of the notice required under this paragraph. 

(f) ELIGIBILITY FOR FUNDS PROTECTED.—Notwithstanding any other provision of 

law, nothing in this Act or the implementation of the Settlements, other than as 

explicitly provided for in this Act or the Settlements— 

(1) restricts or alters the eligibility of any party to any of the Settlements, 

or of any Indian tribe, for the receipt of funds; or 

(2) shall be considered an offset against any obligations or funds in existence 

on the date of enactment of this Act, under any Federal or State law. 

(g) TRIBAL RIGHTS PROTECTED.—Nothing in this Act or the Settlements— 

(1) affects the rights of any Indian tribe outside the Klamath Basin; or 


emcdonald on DSK67QTVN1PROD with HEARING
5 

(2) amends, alters, or limits the authority of the Indian tribes of the Klamath 

Basin to exercise any water rights the Indian tribes hold or may be determined 

to hold except as expressly provided in the Agreements. 

(h) WATER RIGHTS.— 

(1) IN GENERAL.—Except as specifically provided in this Act and the Settlements, nothing in this Act or the Settlements creates or determines water 

rights or affects water rights or water right claims in existence on the date of 

enactment of this Act. 

(2) NO STANDARD FOR QUANTIFICATION.—Nothing in this Act or the Settlements establishes any standard for the quantification of Federal reserved water 

rights or any water claims of any Indian tribe in any judicial or administrative 

proceeding. 

(i) WILLING SELLERS.—Any acquisition of interests in land or water pursuant to 

either Agreement shall be from willing sellers. 

(j) NO PRIVATE RIGHT OF ACTION.— 

(1) IN GENERAL.—Nothing in this Act confers on any person or entity not a 

party to the Settlements a private right of action or claim for relief to interpret 

or enforce this Act or the Settlements. 

(2) OTHER LAW.—This subsection does not alter or curtail any right of action 

or claim for relief under any other applicable law. 

(k) STATE COURTS.—Nothing in this Act expands the jurisdiction of State courts 

to review Federal agency actions or determine Federal rights. 

(l) RELATIONSHIP TO CERTAIN OTHER FEDERAL LAW.— 

(1) IN GENERAL.—Nothing in this Act amends, supersedes, modifies, or otherwise affects— 

(A) Public Law 88–567 (16 U.S.C. 695k et seq.), except as provided in section 4(c); 

(B) the National Wildlife Refuge System Administration Act of 1966 (16 

U.S.C. 668dd et seq.); 

(C) the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); 

(D) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 

seq.); 

(E) the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), except to the extent section 8(b)(4) of this Act requires a permit under section 

404 of that Act (33 U.S.C. 1344), notwithstanding section 404(r) of that Act 

(33 U.S.C. 1344(r)); or 

(F) the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 

et seq.). 

(G) the Treaty between the United States and the Klamath and Moadoc 

Tribes and the Yahooskin Band of Snake Indians dated October 14, 1864 

(16 Stat. 707); or 

(H) the Klamath Indian Tribe Restoration Act (25 U.S.C. 566 et seq.). 

(2) CONSISTENCY.—The Agreements shall be considered consistent with subsections (a) through (c) of section 208 of the Department of Justice Appropriation Act, 1953 (43 U.S.C. 666). 

(3) FEDERAL ADVISORY COMMITTEE ACT.—The actions of the Joint Management Entity and the Joint Management Entity Technical Team shall not be 

subject to the Federal Advisory Committee Act (5 U.S.C. App.). 

(m) WAIVER OF SOVEREIGN IMMUNITY BY THE UNITED STATES.—Except as provided 

in subsections (a) through (c) of section 208 of the Department of Justice Appropriations Act, 1953 (43 U.S.C. 666), nothing in this Act or the implementation of the 

Settlements waives the sovereign immunity of the United States. 

(n) WAIVER OF SOVEREIGN IMMUNITY BY THE PARTY TRIBES.—Nothing in this Act 

waives or abrogates the sovereign immunity of the Party tribes. 

SEC. 4. KLAMATH PROJECT AUTHORIZED PURPOSES. 

(a) KLAMATH PROJECT PURPOSES.— 

(1) IN GENERAL.—Subject to paragraph (2) and subsection (b), the purposes of 

the Klamath Project include— 

(A) irrigation; 

(B) reclamation; 

(C) flood control; 

(D) municipal; 

(E) industrial; 

(F) power; 

(G) fish and wildlife purposes; and 

(H) National Wildlife Refuge purposes. 

(2) EFFECT OF FISH AND WILDLIFE PURPOSES.— 


emcdonald on DSK67QTVN1PROD with HEARING
6 

(A) IN GENERAL.—Subject to subparagraph (B), the fish and wildlife and 

National Wildlife Refuge purposes of the Klamath Project authorized under 

paragraph (1) shall not adversely affect the irrigation purpose of the Klamath Project. 

(B) WATER ALLOCATIONS AND DELIVERY.—Notwithstanding subparagraph 

(A), the water allocations and delivery to the National Wildlife Refuges provided for in the Restoration Agreement shall not constitute an adverse effect on the irrigation purpose of the Klamath Project for purposes of this 

paragraph. 

(b) WATER RIGHTS ADJUDICATION.—For purposes of the determination of water 

rights in Oregon’s Klamath Basin adjudication, until the date on which the Appendix E-1 to the Restoration Agreement is filed in Oregon’s Klamath Basin adjudication pursuant to the Restoration Agreement, the purposes of the Klamath Project 

shall be the purposes in effect on the day before the date of enactment of this Act. 

(c) DISPOSITION OF NET REVENUES FROM LEASING OF TULE LAKE AND LOWER

KLAMATH NATIONAL WILDLIFE REFUGE LAND.—Net revenues from the leasing of refuge land within the Tule Lake National Wildlife Refuge and Lower Klamath National Wildlife Refuge under section 4 of Public Law 88–567 (78 Stat. 851) (commonly known as the ‘‘Kuchel Act’’) shall be provided as follows: 

(1) Directly, without further appropriation: 

(A) 10 percent of net revenues from land within the Tule Lake National 

Wildlife Refuge that are within the boundaries of Tulelake Irrigation District to Tulelake Irrigation District, as provided in article 4 of Contract No. 

14–06–200–5954 and section 2(a) of the Act of August 1, 1956 (70 Stat. 799, 

chapter 828). 

(B) Such amounts as are necessary to counties as payments in lieu of 

taxes as provided in section 3 of Public Law 88–567 (16 U.S.C. 695m). 

(2) Subject to appropriation and, when so appropriated, notwithstanding any 

other provision of law: 

(A) 20 percent of net revenues to the Klamath Basin National Wildlife 

Refuge Complex of the United States Fish and Wildlife Service, for wildlife 

management purposes on the Tule Lake National Wildlife Refuge and the 

Lower Klamath National Wildlife Refuge. 

(B) 10 percent of net revenues from land within the Lower Klamath National Wildlife Refuge that are within the boundaries of the Klamath Drainage District to Klamath Drainage District, for operation and maintenance 

responsibility for the Federal reclamation water delivery and drainage facilities within the boundaries of the Klamath Drainage District and the 

Lower Klamath National Wildlife Refuge exclusive of the Klamath Straits 

Drain, subject to a transfer agreement with the Bureau of Reclamation 

under which the Klamath Drainage District assumes the operation and 

maintenance duties of the Bureau of Reclamation for Klamath Drainage 

District (Area K) lease land exclusive of Klamath Straits Drain. 

(C) The remainder of net revenues after application of paragraph (1) and 

subparagraphs (A) and (B) of this paragraph to the Bureau of Reclamation 

for— 

(i) operation and maintenance costs of Link River and Keno Dams incurred by the United States; and 

(ii) to the extent that the revenues received under this paragraph for 

any year exceed the costs described in clause (i)— 

(I) future capital costs of the Klamath Project; or 

(II) the Renewable Power Program described in section 17.7 of 

the Restoration Agreement, pursuant to an expenditure plan submitted to and approved by the Secretary. 

SEC. 5. TRIBAL COMMITMENTS; RELEASE OF CLAIMS. 

(a) ACTIONS BY KLAMATH TRIBES.— 

(1) RESTORATION AGREEMENT COMMITMENTS ACKNOWLEDGED AND AGREED

TO.—In consideration for the resolution of any contest or exception of the Klamath Project Water Users to the water rights claims of the Klamath Tribes and 

the United States (acting as trustee for the Klamath Tribes and members of the 

Klamath Tribes in Oregon’s Klamath Basin adjudication), and for the other 

commitments of the Klamath Project Water Users described in the Restoration 

Agreement, and for other benefits described in the Restoration Agreement and 

this Act, the Klamath Tribes (on behalf of the Klamath Tribes and the members 

of the Klamath Tribes) may make the commitments provided in the Restoration 

Agreement. 

(2) UPPER BASIN AGREEMENT COMMITMENTS ACKNOWLEDGED AND AGREED

TO.—In consideration for the resolution of any contest or exception of the OffVerDate Sep 11 2014 03:10 Dec 30, 2014 Jkt 049010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6621 E:\HR\OC\SR299.XXX SR299

emcdonald on DSK67QTVN1PROD with HEARING
7 

Project Irrigators to the water rights claims of the Klamath Tribes and the 

United States (acting as trustee for the Klamath Tribes and members of the 

Klamath Tribes in Oregon’s Klamath Basin adjudication), and for the other 

commitments of the Off-Project Irrigators described in the upper Basin Agreement, and for other benefits described in the Upper Basin Agreement and this 

Act, the Klamath Tribes (on behalf of the Klamath Tribes and the members of 

the Klamath Tribes) may make the commitments provided in the Upper Basin 

Agreement. 

(3) NO FURTHER ACTION REQUIRED.—Except as provided in subsection (c), the 

commitments described in paragraphs (1) and (2) are confirmed as effective and 

binding, in accordance with the terms of the commitments, without further action by the Klamath Tribes. 

(4) ADDITIONAL COMMITMENTS.—The Klamath Tribes (on behalf of the tribe 

and the members of the tribe) may make additional commitments and assurances in exchange for the resolution of its claims described in section 1.3.1 or 

2.5.1 of the Upper Basin Agreement, subject to the conditions that the commitments and assurances shall be— 

(A) consistent with this Act, the Settlements, and other applicable provisions of law, based on the totality of the circumstances; and 

(B) covered by a written agreement signed by the Klamath Tribes and the 

United States (acting as trustee for the tribe and the members of the tribe 

in Oregon’s Klamath Basin adjudication) pursuant to subsection (f). 

(b) ACTIONS BY KARUK TRIBE AND YUROK TRIBE.— 

(1) COMMITMENTS ACKNOWLEDGED AND AGREED TO.—In consideration for the 

commitments of the Klamath Project Water Users described in the Restoration 

Agreement, and other benefits described in the Restoration Agreement and this 

Act, the Karuk Tribe and the Yurok Tribe (on behalf of the tribe and the members of the tribe) may make the commitments provided in the Restoration 

Agreement, . 

(2) NO FURTHER ACTION REQUIRED.—Except as provided in subsection (c), the 

commitments described in paragraph (1) are confirmed as effective and binding, 

in accordance with the terms of the commitments, without further action by the 

Yurok Tribe or Karuk Tribe. 

(c) RELEASE OF CLAIMS BY PARTY TRIBES.— 

(1) IN GENERAL.—Subject to paragraph (2), subsection (d), and the Agreements, but without otherwise affecting any right secured by a treaty, Executive 

order, or other law, the Party tribes (on behalf of the tribes and the members 

of the tribes) may relinquish and release certain claims against the United 

States (including any Federal agencies and employees) described in sections 

15.3.5.A, 15.3.6.B.i, and 15.3.7.B.i of the Restoration Agreement and, in the case 

of the Klamath Tribes, section 2.5 of the Upper Basin Agreement. 

(2) CONDITIONS.—The relinquishments and releases under paragraph (1) shall 

not take force or effect until the terms described in sections 15.3.5.C, 15.3.5.D, 

15.3.6.B.iii, 15.3.7.B.iii, 15.3.7.B.iv, and 33.2.1 of the Restoration Agreement 

and sections 2.4 and 10 of the Upper Basin Agreement have been fulfilled. 

(d) RETENTION OF RIGHTS OF PARTY TRIBES.—Notwithstanding subsections (a) 

through (c) or any other provision of this Act, the Party tribes (on behalf of the 

tribes and the members of the tribes) and the United States (acting as trustee for 

the Party tribes), shall retain— 

(1) all claims and rights described in sections 15.3.5.B, 15.3.6.B.ii, and 

15.3.7.B.ii of the Restoration Agreement; and 

(2) any other claims and rights retained by the Party Tribes in negotiations 

pursuant to section 15.3.5.D, 15.3.6.B.iv, and 15.3.7.B.iv of the Restoration 

Agreement. 

(e) TOLLING OF CLAIMS.— 

(1) IN GENERAL.—Subject to paragraph (2), the period of limitation and timebased equitable defense relating to a claim described in subsection (c) shall be 

tolled during the period— 

(A) beginning on the date of enactment of this Act; and 

(B) ending on the earlier of— 

(i) the date on which the Secretary publishes the notice described in 

sections 15.3.5.C, 15.3.6.B.iii, and 15.3.7.B.iii of the Restoration Agreement; or 

(ii) December 1, 2030. 

(2) EFFECT OF TOLLING.—Nothing in this subsection— 

(A) revives any claim or tolls any period of limitation or time-based equitable defense that expired before the date of enactment of this Act; or 

(B) precludes the tolling of any period of limitation or any time-based equitable defense under any other applicable law. 


emcdonald on DSK67QTVN1PROD with HEARING
8 

(f) ACTIONS OF UNITED STATES AS TRUSTEE.— 

(1) RESTORATION AGREEMENT COMMITMENTS AUTHORIZED.—In consideration 

for the commitments of the Klamath Project Water Users described in the Restoration Agreement and for other benefits described in the Restoration Agreement and this Act, the United States, acting as trustee for the federally recognized tribes of the Klamath Basin and the members of such tribes, may make 

the commitments provided in the Restoration Agreement. 

(2) UPPER BASIN AGREEMENT COMMITMENTS AUTHORIZED.—In consideration for 

the commitments of the Off-Project Irrigators described in the Upper Basin 

Agreement and for other benefits described in the Upper Basin Agreement and 

this Act, the United States, acting as trustee for the Klamath Tribes and the 

members of the Klamath Tribes, may make the commitments provided in the 

Upper Basin Agreement. 

(3) NO FURTHER ACTION.—The commitments described in paragraphs (1) and 

(2) are confirmed as effective and binding, in accordance with the terms of the 

commitments, without further action by the United States. 

(4) ADDITIONAL COMMITMENTS.—The United States, acting as trustee for the 

Klamath Tribes and the members of the Klamath Tribes in Oregon’s Klamath 

Basin Adjudication, may make additional commitments and assurances of 

rights in exchange for the resolution of the tribal water right claims described 

in section 1.3.1 or 2.5.1 of the Upper Basin Agreement, subject to the conditions 

that the commitments or assurances shall be— 

(A) consistent with this Act, the Settlements, and other applicable provisions of law, based on the totality of the circumstances; and 

(B) covered by a written agreement signed by the Klamath Tribes and the 

United States (acting as trustee for the Klamath Tribes and the members 

of the tribe in Oregon’s Klamath Basin adjudication) under subsection 

(a)(3)(B). 

(g) JUDICIAL REVIEW.—Judicial review of a decision of the Secretary concerning 

any right or obligation under section 15.3.5.C, 15.3.6.B.iii, 15.3.7.B.iii, 15.3.8.B, or 

15.3.9 of the Restoration Agreement shall be in accordance with the standard and 

scope of review under subchapter II of chapter 5, and chapter 7, of title 5, United 

States Code (commonly known as the ‘‘Administrative Procedure Act’’). 

(h) EFFECT OF SECTION.—Nothing in this section— 

(1) affects the ability of the United States to take any action— 

(A) authorized by law to be taken in the sovereign capacity of the United 

States, including any law relating to health, safety, or the environment, including— 

(i) the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.); 

(ii) the Safe Drinking Water Act (42 U.S.C. 300f et seq.); 

(iii) the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.); 

(iv) the Comprehensive Environmental Response, Compensation, and 

Liability Act of 1980 (42 U.S.C. 9601 et seq.) 

(v) the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); and 

(vi) regulations implementing the Acts described in this subparagraph; and 

(B) as trustee for the benefit of any federally recognized Indian tribe 

other than an Indian tribe of the Klamath Basin; 

(C) as trustee for the Party tribes to enforce the Agreements and this Act 

through such legal and equitable remedies as are available in an appropriate United States court or State court or administrative proceeding, including Oregon’s Klamath Basin adjudication; or 

(D) as trustee for the federally recognized Indian tribes of the Klamath 

Basin and the members of the tribes, in accordance with the Agreements 

and this Act— 

(i) to acquire water rights after the effective date of the Agreements 

(as defined in section 1.5.1 of the Restoration Agreement and section 

14.3 of the Upper Basin Agreement); 

(ii) to use and protect water rights, including water rights acquired 

after the effective date of the Agreements (as defined in section 1.5.1 

of the Restoration Agreement and section 14.3 of the Upper Basin 

Agreement), subject to the Agreements; or 

(iii) to claim a water right or continue to advocate for an existing 

claim for water rights in an appropriate United States court or State 

court or administrative proceeding, subject to the Agreements; 

(2) affects the treaty fishing, hunting, trapping, pasturing, or gathering right 

of any Indian tribe except to the extent expressly provided in this Act or the 

Agreements; or 


emcdonald on DSK67QTVN1PROD with HEARING
9 

(3) affects any right, remedy, privilege, immunity, power, or claim not specifically relinquished and released under, or limited by, this Act or the Agreements. 

SEC. 6. WATER AND POWER PROVISIONS. 

The Klamath Basin Water Supply Enhancement Act of 2000 (Public Law 106–498; 

114 Stat. 2221) is amended— 

(1) by redesignating sections 4 through 6 as sections 5 through 7, respectively; 

and 

(2) by inserting after section 3 the following: 

‘‘SEC. 4. WATER MANAGEMENT AND PLANNING ACTIVITIES. 

‘‘(a) DEFINITIONS.—In this section: 

‘‘(1) OFF-PROJECT AREA.—The term ‘Off-Project Area’ means— 

‘‘(A) the areas within the Sprague River, Sycan River, Williamson River, 

and Wood Valley (including Crooked Creek, Sevenmile Creek, Fourmile 

Creek, and Crane Creek) subbasins referred to in Exhibit B of the Upper 

Basin Agreement; and 

‘‘(B) to the extent provided for in the Upper Basin Agreement, any other 

areas for which claims described by section 1.3 or 2.5.1 of the Upper Basin 

Agreement are settled as provided for in section 2.5.1 of the Upper Basin 

Agreement. 

‘‘(2) ON-PROJECT POWER USER.—The term ‘On-Project Power User’ has the 

meaning given the term in the Restoration Agreement. 

‘‘(3) RESTORATION AGREEMENT.—The term ‘Restoration Agreement’ means the 

agreement entitled ‘Klamath River Basin Restoration Agreement for the Sustainability of Public and Trust Resources and Affected Communities’ and dated 

February 18, 2010 (including any amendments adopted prior to the date of enactment of this Act and any further amendment to that agreement approved 

pursuant to section 3(a) of the Klamath Basin Water Recovery and Economic 

Restoration Act of 2014). 

‘‘(4) UPPER BASIN AGREEMENT.—The term ‘Upper Basin Agreement’ means the 

agreement entitled ‘Upper Klamath Basin Comprehensive Agreement’ and 

dated April 18, 2014 (including any amendment to that agreement). 

‘‘(b) ACTION BY SECRETARY.— 

‘‘(1) IN GENERAL.—The Secretary may carry out any activities, including by 

entering into an agreement or contract or otherwise making financial assistance 

available— 

‘‘(A) to align water supplies with demand, including activities to reduce 

water consumption and demand, consistent with the Restoration Agreement 

or the Upper Basin Agreement; 

‘‘(B) to limit the net costs of power used to manage water (including by 

arranging for delivery of Federal power, consistent with the Restoration 

Agreement and the Upper Basin Agreement) for— 

‘‘(i) the Klamath Project (within the meaning of section 2); 

‘‘(ii) the On-Project Power Users; 

‘‘(iii) irrigators in the Off-Project Area; and 

‘‘(iv) the Klamath Basin National Wildlife Refuge Complex; and 

‘‘(C) to restore any ecosystem and otherwise protect fish and wildlife in 

the Klamath Basin watershed, including tribal fishery resources held in 

trust, consistent with Restoration Agreement and the Upper Basin Agreement. 

‘‘(2) INCLUSION.—Purchases of power by the Secretary under paragraph (1)(B) 

shall be considered an authorized sale under section 5(b)(3) of the Pacific Northwest Electric Power Planning and Conservation Act (16 U.S.C. 839c(b)(3)).’’. 

SEC. 7. KLAMATH TRIBES TRIBAL RESOURCE FUND. 

(a) ESTABLISHMENT.—There is established in the Treasury of the United States 

a fund to be known as the ‘‘Klamath Tribes Tribal Resource Fund’’ (referred to in 

this section as the ‘‘Fund’’), consisting of the amounts deposited in the Fund under 

subsection (b), together with any interest earned on those amounts, to be managed, 

invested, and administered by the Secretary for the benefit of the Klamath Tribes 

in accordance with the terms of section 2.4 of the Upper Basin Agreement, to remain available until expended. 

(b) TRANSFERS TO FUND.—The Fund shall consist of such amounts as are appropriated to the Fund under subsection (k), which shall be deposited in the Fund not 

later than 60 days after the amounts are appropriated and any interest under subsection (c) or (d). 

(c) MANAGEMENT BY THE SECRETARY.—Absent an approved tribal investment plan 

under subsection (d) or an economic development plan under subsection (e), the SecVerDate Sep 11 2014 03:10 Dec 30, 2014 Jkt 049010 PO 00000 Frm 00009 Fmt 6659 Sfmt 6621 E:\HR\OC\SR299.XXX SR299

emcdonald on DSK67QTVN1PROD with HEARING
10 

retary shall manage, invest, and distribute all amounts in the Fund in a manner 

that is consistent with the investment authority of the Secretary under— 

(1) the first section of the Act of June 24, 1938 (25 U.S.C. 162a); 

(2) the American Indian Trust Fund Management Reform Act of 1994 (25 

U.S.C. 4001 et seq.); and 

(3) this section. 

(d) INVESTMENT BY THE KLAMATH TRIBES.— (1) INVESTMENT PLAN.— (A) IN GENERAL.—In lieu of the investment provided for in subsection (c), 

the Klamath Tribes may submit a tribal investment plan to the Secretary, 

applicable to all or part of the Fund, excluding the amounts described in 

subsection (e)(4)(A). 

(B) APPROVAL.—Not later than 60 days after the date on which a tribal 

investment plan is submitted under subparagraph (A), the Secretary shall 

approve such investment plan if the Secretary finds that the plan— 

(i) is reasonable and sound; 

(ii) meets the requirements of the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.); and 

(iii) meets the requirements of this section. 

(C) DISAPPROVAL.—If the Secretary does not approve the tribal investment plan, the Secretary shall set forth in writing the particular reasons 

for the disapproval. 

(2) DISBURSEMENT.—If the tribal investment plan is approved by the Secretary, the funds involved shall be disbursed from the Fund to the Klamath 

Tribes to be invested by the Klamath Tribes in accordance with the approved 

tribal investment plan, subject to the requirements of this section. 

(3) COMPLIANCE.—The Secretary may take such steps as the Secretary determines to be necessary to monitor the compliance of a Tribe with an investment 

plan approved under paragraph (1)(B). 

(4) LIMITATION ON LIABILITY.—The United States shall not be— 

(A) responsible for the review, approval, or audit of any individual investment under an approved investment plan; or 

(B) directly or indirectly liable with respect to any such investment, including any act or omission of the Klamath Tribes in managing or investing 

amounts in the Fund. 

(5) REQUIREMENTS.—The principal and income derived from tribal investments carried out pursuant to an investment plan approved under subparagraph (B) shall be— 

(A) subject to the requirements of this section; and 

(B) expended only in accordance with an economic development plan approved under subsection (e). 

(e) ECONOMIC DEVELOPMENT PLAN.— 

(1) IN GENERAL.—The Klamath Tribes shall submit to the Secretary an economic development plan for the use of the Fund, including the expenditure of 

any principal or income derived from management under subsection (c) or from 

tribal investments carried out under subsection (d). 

(2) APPROVAL.—Not later than 60 days after the date on which an economic 

development plan is submitted under paragraph (1), the Secretary shall approve 

the economic development plan if the Secretary finds that the plan meets the 

requirements of the American Indian Trust Fund Management Reform Act of 

1994 (25 U.S.C. 4001 et seq.) and this section. 

(3) USE OF FUNDS.—The economic development plan under this subsection 

shall— 

(A) require that the Klamath Tribes spend all amounts withdrawn from 

the Fund in accordance with this section; and 

(B) include such terms and conditions as are necessary to meet the requirements of this section. 

(4) RESOURCE ACQUISITION AND ENHANCEMENT PLAN.—The economic development plan shall include a resource acquisition and enhancement plan, which 

shall— 

(A) require that not less than 1⁄2 of the amounts appropriated for each 

fiscal year to carry out this section shall be used to enhance, restore, and 

utilize the natural resources of the Klamath Tribes, in a manner that also 

provides for the economic development of the Klamath Tribes and, as determined by the Secretary, directly or indirectly benefit adjacent non-Indian 

communities; and 

(B) be reasonably related to the protection, acquisition, enhancement, or 

development of natural resources for the benefit of the Klamath Tribes and 

members of the Klamath Tribes. 


emcdonald on DSK67QTVN1PROD with HEARING
11 

(5) MODIFICATION.—Subject to the requirements of this Act and approval by 

the Secretary, the Klamath Tribes may modify a plan approved under this subsection. 

(6) LIMITATION ON LIABILITY.—The United States shall not be directly or indirectly liable for any claim or cause of action arising from— 

(A) the approval of a plan under this paragraph; or 

(B) the use or expenditure by the Klamath Tribes of any amount in the 

Fund. 

(f) LIMITATION ON PER CAPITA DISTRIBUTIONS.—No amount in the Fund (including 

any income accruing to the amount) and no revenue from any water use contract 

may be distributed to any member of the Klamath Tribes on a per capita basis. 

(g) LIMITATION ON DISBURSEMENT.— 

(1) IN GENERAL.—Subject to paragraph (2), amounts in the Fund shall not be 

available for disbursement under this section until the Klamath Tribes— 

(A) make the commitments set forth in the Agreements; and 

(B) are determined by the Secretary to be in substantial compliance with 

those commitments. 

(2) EARLY DISBURSEMENT.—Based on the unique history of the loss of reservation land by the Klamath Tribes through termination of Federal recognition and 

acknowledging that restoration of tribal land is essential to building the tribal 

economy and achieving self-determination, the Secretary may disburse funds to 

the Klamath Tribes prior to the satisfaction of the requirements of paragraph 

(1) on a determination by the Secretary that such funds are available and that 

early disbursement will support activities designed to increase employment opportunities for members of the Klamath Tribes. 

(3) AGREEMENTS.—Any such disbursement shall be in accordance with a written agreement between the Secretary and the Klamath Tribes that provides the 

following: 

(A) For any disbursement to purchase land that is to be placed in trust 

pursuant to section 6 of the Klamath Indian Tribe Restoration Act (25 

U.S.C. 566d), the written agreement shall specify that if assurances made 

do not become permanent as described in section 15.3.3 of the Restoration 

Agreement and on publication of a notice by the Secretary pursuant to section 15.3.4.C of the Restoration Agreement or section 10.2 of the Upper 

Basin Agreement, any land purchased with disbursements from the Fund 

shall revert back to sole ownership by the United States unless, prior to reversion, the Klamath Tribes enter into a written agreement to repay the 

purchase price to the United States, without interest, in annual installments over a period not to exceed 40 years. 

(B) For any disbursement to support economic activity and creation of 

tribal employment opportunities (including any rehabilitation of existing 

properties to support economic activities), the written agreement shall 

specify that if assurances made do not become permanent as described in 

section 15.3.3 of the Restoration Agreement and on publication of a notice 

by the Secretary pursuant to section 15.3.4.C of the Restoration Agreement 

or section 10.2 of the Upper Basin Agreement, any amounts disbursed from 

the Fund shall be repaid to the United States, without interest, in annual 

installments over a period not to exceed 40 years. 

(h) PROHIBITION.—Amounts in the Fund may not be made available for any purpose other than a purpose described in this section. 

(i) ANNUAL REPORTS.— 

(1) IN GENERAL.—Not later than 60 days after the end of each fiscal year beginning with fiscal year 2014, the Secretary shall submit to the Committee on 

Appropriations of the House of Representatives, the Committee on Appropriations of the Senate, and the appropriate authorizing committees of the Senate 

and the House of Representatives a report on the operation of the Fund during 

the fiscal year. 

(2) CONTENTS.—Each report shall include, for the fiscal year covered by the 

report, the following: 

(A) A statement of the amounts deposited into the Fund. 

(B) A description of the expenditures made from the Fund for the fiscal 

year, including the purpose of the expenditures. 

(C) Recommendations for additional authorities to fulfill the purpose of 

the Fund. 

(D) A statement of the balance remaining in the Fund at the end of the 

fiscal year. 

(j) NO THIRD PARTY RIGHTS.—This section does not create or vest rights or benefits for any party other than the Klamath Tribes and the United States. 


emcdonald on DSK67QTVN1PROD with HEARING
12 

(k) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appropriated 

to carry out this section $8,000,000 for each fiscal year, not to exceed a total amount 

of $40,000,000. 

SEC. 8. HYDROELECTRIC FACILITIES. 

(a) FACILITIES REMOVAL DETERMINATION.— 

(1) IN GENERAL.—Subject to paragraph (3), in accordance with section 3 of the 

Hydroelectric Settlement, the Governors and the Secretary shall jointly— 

(A) as soon as practicable after the date of enactment of this Act, determine whether to proceed with facilities removal, based on but not limited 

to factors identified in the Hydroelectric Settlement; and 

(B) if the Governors and the Secretary determine under subparagraph (A) 

to proceed with facilities removal, include in the determination the designation of a dam removal entity, subject to paragraph (6). 

(2) BASIS FOR DETERMINATION TO PROCEED.—For purposes of making a determination under paragraph (1)(A), the Governors and the Secretary, in cooperation with the Secretary of Commerce and other appropriate entities, shall— 

(A) use existing information; 

(B) conduct any necessary additional studies; 

(C) comply with the National Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.); and 

(D) take such other actions as the Governors and the Secretary determine 

to be appropriate to support the determination under paragraph (1). 

(3) CONDITIONS FOR DETERMINATION TO PROCEED.—The Secretary and the 

Governors may not make or publish the determination under this subsection, 

unless the conditions specified in section 3.3.4 of the Hydroelectric Settlement, 

as modified by this Act as applicable, have been satisfied. 

(4) PUBLICATION OF NOTICE.—The Secretary shall publish notification of the 

determination under this subsection in the Federal Register. 

(5) JUDICIAL REVIEW OF DETERMINATION.— 

(A) IN GENERAL.—For purposes of judicial review, the determination of 

the Secretary under paragraph (1) shall constitute a final agency action 

with respect to whether or not to proceed with facilities removal. 

(B) PETITION FOR REVIEW.— 

(i) FILING.— 

(I) IN GENERAL.—Judicial review of the determination and related actions to comply with environmental laws (including the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), 

the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), and 

the National Historic Preservation Act (16 U.S.C. 470 et seq.)) may 

be obtained by an aggrieved person only as provided in this paragraph. 

(II) JURISDICTION.—A petition for review under this paragraph 

may be filed only in the United States Court of Appeals for the District of Columbia Circuit or in the Ninth Circuit Court of Appeals. 

(III) LIMITATION.—A district court of the United States and a 

State court shall not have jurisdiction to review the determination 

of the Secretary or related actions to comply with environmental 

laws described in subclause (I). 

(ii) DEADLINE.— 

(I) IN GENERAL.—Except as provided in subclause (II), any petition for review under this paragraph shall be filed not later than 

60 days after the date of publication of the determination in the 

Federal Register. 

(II) SUBSEQUENT GROUNDS.—If a petition is based solely on 

grounds arising after the date that is 60 days after the date of publication of the determination in the Federal Register, the petition 

for review under this subsection shall be filed not later than 60 

days after the grounds arise. 

(C) IMPLEMENTATION.—Any action of the Secretary with respect to which 

review could have been obtained under this paragraph shall not be subject 

to judicial review in any action relating to the implementation of the determination of the Secretary or in proceedings for enforcement of the Hydroelectric Settlement. 

(D) APPLICABLE STANDARD AND SCOPE.—Judicial review of the determination of the Secretary shall be in accordance with the standard and scope 

of review under subchapter II of chapter 5, and chapter 7, of title 5, United 

States Code (commonly known as the ‘‘Administrative Procedure Act’’). 


emcdonald on DSK67QTVN1PROD with HEARING
13 

(E) NONTOLLING.—The filing of a petition for reconsideration by the Secretary of an action subject to review under this subsection shall not— 

(i) affect the finality of the action for purposes of judicial review; 

(ii) extend the time within which a petition for judicial review under 

this subsection may be filed; or 

(iii) postpone the effectiveness of the action. 

(6) REQUIREMENTS FOR DAM REMOVAL ENTITY.—A dam removal entity designated by the Governors and the Secretary under paragraph (1)(B) shall, in the 

sole judgment of the Governors and the Secretary— 

(A) have the capabilities for facilities removal described in section 7.1.1 

of the Hydroelectric Settlement; 

(B) be otherwise qualified to perform facilities removal; and 

(C) have committed, if so designated, to perform facilities removal within 

the State Cost Cap as described in section 4.1.3 of the Hydroelectric Settlement. 

(7) RESPONSIBILITIES OF DAM REMOVAL ENTITY.—The dam removal entity designated by the Governors and the Secretary under paragraph (1)(B) shall have 

the responsibilities described in section 7.1.2 of the Hydroelectric Settlement. 

(b) FACILITIES REMOVAL.— (1) APPLICABILITY.—This subsection shall apply if— 

(A) the determination of the Governors and the Secretary under subsection (a) provides for proceeding with facilities removal; 

(B) the availability of non-Federal funds for the purposes of facilities removal is consistent with the Hydroelectric Settlement; and 

(C) the Hydroelectric Settlement has not terminated in accordance with 

section 8.11 of the Hydroelectric Settlement. 

(2) NON-FEDERAL FUNDS.— 

(A) IN GENERAL.—Notwithstanding title 31, United States Code, if the 

Department of the Interior is designated as the dam removal entity under 

subsection (a)(1)(B), the Secretary may accept, manage, and expend, without further appropriation, non-Federal funds for the purpose of facilities removal in accordance with sections 4 and 7 of the Hydroelectric Settlement. 

(B) REFUND.—The Secretary may administer and refund any amounts described in subparagraph (A) received from the State of California in accordance with the requirements established by the State. 

(C) INCLUSION.—The costs of dam removal shall include, within the State 

Cost Cap described in section 4.1.3 of the Hydroelectric Settlement, reasonable compensation for property owners whose property or property value is 

directly damaged by facilities removal, consistent with State, local, and 

Federal law. 

(3) AGREEMENTS.—The dam removal entity may enter into agreements and 

contracts as necessary to assist in the implementation of the Hydroelectric Settlement. 

(4) PROCEEDING WITH FACILITIES REMOVAL.— 

(A) IN GENERAL.—The dam removal entity shall, consistent with the Hydroelectric Settlement— 

(i) develop a definite plan for facilities removal as described in section 

7 of the Hydroelectric Settlement, including a schedule for facilities removal; 

(ii) obtain all permits, authorizations, entitlements, certifications, 

and other approvals necessary to implement facilities removal, including a permit under section 404 of the Federal Water Pollution Control 

Act (33 U.S.C. 1344), notwithstanding subsection (r) of that section; 

and 

(iii) implement facilities removal. 

(B) REPORT.— 

(i) IN GENERAL.—The Governors and the Secretary shall prepare and 

make public a report on the determination and plan for facilities removal. 

(ii) INCLUSIONS.—The report shall, at a minimum— 

(I) provide a detailed explanation of the basis for the determination to proceed with facilities removal and for the designation of 

the dam removal entity, including relevant supporting documents; 

(II) include any comments received from the Commission on the 

determination and a written response to the comments; 

(III) state specific goals intended to be achieved by facilities removal; 

(IV) include specific performance measures that will be used to 

show achievements in meeting the goals; 


emcdonald on DSK67QTVN1PROD with HEARING
14 

(V) provide a detailed explanation of factors that are unique to 

facilities removal in the Klamath Basin, including why the Federal 

role is limited to the Klamath Basin and sets no precedent for future Federal action; 

(VI) describe plans to address any potential costs in excess of the 

State Cost Cap described in section 4.1.3 of the Hydroelectric Settlement; 

(VII) describe plans for addressing or mitigating intentional or 

unintentional impacts on local communities and property owners; 

and 

(VIII) describe how any potential environmental or other liability 

concerns will be addressed. 

(iii) SUBMISSION.—The report required under this subparagraph shall 

be submitted to— 

(I) the Committee on Energy and Natural Resources of the Senate; 

(II) the Committee on Natural Resources of the House of Representatives; and 

(III) the Commission. 

(iv) COMMENT AND CONSULTATION BY COMMISSION.—Not later than 

180 days before the publication of the report required by this subparagraph, the Governors and the Secretary shall submit to the Commission the section of the report describing the basis of the determination 

to proceed with dam removal for comment and, as appropriate, consultation. 

(v) DEADLINE.—The report required under this subparagraph shall be 

made public— 

(I) not less than 1 year before the date of implementation of facilities removal; and 

(II) not more than 2 years before the date of implementation of 

facilities removal. 

(C) STATE AND LOCAL LAWS.— 

(i) IN GENERAL.—Except as provided in clause (ii), facilities removal 

shall be subject to applicable requirements of State and local laws relating to permits and other authorizations, to the extent the requirements are not in conflict with Federal law, including the determination 

of the Governors and the Secretary under subsection (a) and the definite plan (including the schedule) for facilities removal authorized 

under this Act. 

(ii) LIMITATIONS.—Clause (i) shall not affect— 

(I) the authorities of the States regarding concurrence with the 

determination of the Secretary under subsection (a) in accordance 

with State law; or 

(II) the authority of a State public utility commission regarding 

funding of facilities removal. 

(iii) JURISDICTION.—The United States district courts shall have 

original jurisdiction over all claims regarding the consistency of State 

and local laws regarding permits and other authorizations, and of State 

and local actions pursuant to those laws, with the definite plan (including the schedule) for facilities removal authorized under this Act. 

(D) ACCEPTANCE OF TITLE TO FACILITIES.— 

(i) IN GENERAL.—The dam removal entity may accept from PacifiCorp 

all rights, titles, permits, and other interests in the facilities and associated land, for facilities removal and for disposition of facility land (as 

provided in section 7.6.4 of the Hydroelectric Settlement) on providing 

to PacifiCorp a notice that the dam removal entity is ready to commence facilities removal in accordance with section 7.4.1 of the Hydroelectric Settlement. 

(ii) NON-FEDERAL DAM REMOVAL ENTITY.—Notwithstanding section 8 

of the Federal Power Act (16 U.S.C. 801), the transfer of title to facilities from PacifiCorp to a non-Federal dam removal entity, in accordance with the Hydroelectric Settlement and this Act, is authorized. 

(E) CONTINUED POWER GENERATION.— 

(i) IN GENERAL.—In accordance with an agreement negotiated under 

clause (ii), on transfer of title pursuant to subparagraph (C) and until 

the dam removal entity instructs PacifiCorp to cease the generation of 

power, PacifiCorp may continue, consistent with State law— 


emcdonald on DSK67QTVN1PROD with HEARING
15 

(I) to generate, and retain title to, any power generated by the 

facilities in accordance with section 7 of the Hydroelectric Settlement; and 

(II) to transmit and use the power for the benefit of the customers of PacifiCorp under the jurisdiction of applicable State public utility commissions and the Commission. 

(ii) AGREEMENT WITH DAM REMOVAL ENTITY.—As a condition of transfer of title pursuant to subparagraph (C), the dam removal entity shall 

enter into an agreement with PacifiCorp that provides for continued 

generation of power in accordance with clause (i). 

(F) REPORT.—Not later than 3 years after the date of the completion of 

facilities removal, the Governors and the Secretary shall submit to the 

Committee on Energy and Natural Resources of the Senate, the Committee 

on Natural Resources of the House of Representatives, and the Commission— 

(i) a detailed report describing the results of facilities removal, including the status of achieving the performance measures and goals included in the report described in subparagraph (B); and 

(ii) such additional reports as the Committees consider appropriate, 

to be completed and submitted by the Secretary, in consultation with 

the Governors. 

(5) LICENSES AND JURISDICTION.— 

(A) ANNUAL LICENSES.— 

(i) IN GENERAL.—The Commission shall issue annual licenses authorizing PacifiCorp to continue to operate the facilities until PacifiCorp 

transfers title to all of the facilities. 

(ii) TERMINATION.—The annual licenses shall terminate with respect 

to a facility on transfer of title for the facility from PacifiCorp to the 

dam removal entity. 

(iii) STAGED REMOVAL.— 

(I) IN GENERAL.—On transfer of title of any facility by PacifiCorp 

to the dam removal entity, annual license conditions shall no 

longer be in effect with respect to the facility. 

(II) NONTRANSFER OF TITLE.—Annual license conditions shall remain in effect with respect to any facility for which PacifiCorp has 

not transferred title to the dam removal entity to the extent compliance with the annual license conditions are not prevented by the 

removal of any other facility. 

(B) JURISDICTION.—The jurisdiction of the Commission under part I of the 

Federal Power Act (16 U.S.C. 792 et seq.) shall terminate with respect to 

a facility on the transfer of title for the facility from PacifiCorp to the dam 

removal entity. 

(C) RELICENSING.— 

(i) IN GENERAL.—The Commission shall— 

(I) stay the proceeding of the Commission regarding the pending 

license application of PacifiCorp for Project No. 2082 for the period 

during which the Hydroelectric Settlement remains in effect; and 

(II) resume the proceeding and proceed to take final action on 

the new license application only if the Hydroelectric Settlement 

terminates pursuant to section 8.11 of the Hydroelectric Settlement. 

(D) TERMINATION; LIMITATIONS.—If the Hydroelectric Settlement is terminated pursuant to section 8.11 of the Hydroelectric Settlement, the Commission, in proceedings on the application for relicensing, shall not be 

bound by the record or findings of the Secretary relating to the determination of the Secretary or by the determination of the Secretary. 

(c) LIABILITY PROTECTION.— 

(1) IN GENERAL.—Notwithstanding any other Federal, State, local, or common 

law, PacifiCorp shall not be liable for any harm to an individual or entity, property, or the environment, or any damages resulting from facilities removal or 

facility operations arising from, relating to, or triggered by actions associated 

with facilities removal under this Act, including any damage caused by the release of any material or substance (including a hazardous substance). 

(2) FUNDING.—Notwithstanding any other Federal, State, local, or common 

law, no individual or entity contributing funds for facilities removal shall be 

held liable, solely by virtue of that funding, for any harm to an individual or 

entity, property, or the environment, or damages arising from facilities removal 

or facility operations arising from, relating to, or triggered by actions associated 


emcdonald on DSK67QTVN1PROD with HEARING
16 

with facilities removal under this Act, including any damage caused by the release of any material or substance (including a hazardous substance). 

(3) PREEMPTION.—Notwithstanding section 10(c) of the Federal Power Act (16 

U.S.C. 803(c)), protection from liability pursuant to this section shall preempt 

the laws of any State to the extent the laws are inconsistent with this Act, except that this Act shall not limit any otherwise-available immunity, privilege, 

or defense under any other provision of law. 

(4) EFFECTIVE DATE.—Liability protection under this subsection shall take effect as the protection relates to any particular facilities on transfer of title to 

the facility from PacifiCorp to the dam removal entity designated by the Secretary under subsection (a)(1)(B). 

(d) FACILITIES NOT REMOVED.— 

(1) KENO FACILITY.— 

(A) TRANSFER.—On notice that the dam removal entity is ready to commence removal of the J.C. Boyle Dam, the Secretary shall accept the transfer of title to the Keno Facility to the United States in accordance with section 7.5 of the Hydroelectric Settlement. 

(B) EFFECT OF TRANSFER.—On the transfer under subparagraph (A), and 

without further action by Congress— 

(i) the Keno Facility shall— 

(I) become part of the Klamath Reclamation Project; and 

(II) be operated and maintained in accordance with the Federal 

reclamation laws and this Act; and 

(ii) the jurisdiction of the Commission over the Keno Facility shall 

terminate. 

(2) EAST SIDE AND WEST SIDE DEVELOPMENTS.—On filing by PacifiCorp of an 

application for surrender of the East Side and West Side Developments in 

Project No. 2082, the Commission shall issue an order approving partial surrender of the license for Project No. 2082, including any reasonable and appropriate conditions, as provided in section 6.4.1 of the Hydroelectric Settlement. 

(3) FALL CREEK.—Not later than 60 days after the date of the transfer of title 

to the Iron Gate Facility to the dam removal entity, the Commission shall resume timely consideration of the pending licensing application for the Fall 

Creek development pursuant to the Federal Power Act (16 U.S.C. 791a et seq.), 

regardless of whether PacifiCorp retains ownership of Fall Creek or transfers 

ownership to a new licensee. 

(4) IRON GATE HATCHERY.—Notwithstanding section 8 of the Federal Power 

Act (16 U.S.C. 801), consistent with section 7.6.6 of the Hydroelectric Settlement title to the PacifiCorp hatchery facilities within the State of California 

shall be transferred to the State of California at— 

(A) the time of transfer to the dam removal entity of title to the Iron Gate 

Dam; or 

(B) such other time as may be agreed to by the parties to the Hydroelectric Settlement. 

SEC. 9. ADMINISTRATION AND FUNDING. 

(a) AGREEMENTS.— 

(1) IN GENERAL.—The Secretaries may enter into such agreements (including 

contracts, memoranda of understanding, financial assistance agreements, cost 

sharing agreements, and other appropriate agreements) with State, tribal, and 

local government agencies or private individuals and entities as the Secretary 

concerned consider to be necessary to carry out this Act and the Settlements, 

subject to such terms and conditions as the Secretary concerned considers to be 

necessary. 

(2) TRIBAL PROGRAMS.—Consistent with paragraph (1) and section 32 of the 

Restoration Agreement, the Secretaries shall give priority to qualified Party 

tribes in awarding grants, contracts, or other agreements for purposes of implementing the fisheries programs described in part III of the Restoration Agreement. 

(b) ESTABLISHMENT OF ACCOUNTS.—There are established in the Treasury for the 

deposit of appropriations and other funds (including non-Federal donated funds) the 

following noninterest-bearing accounts: 

(1) The On-Project Plan and Power for Water Management Fund, to be administered by the Bureau of Reclamation. 

(2) The Water Use Retirement and Off-Project Reliance Fund, to be administered by the United States Fish and Wildlife Service. 

(3) The Klamath Drought Fund, to be administered by the National Fish and 

Wildlife Foundation. 

(c) MANAGEMENT.— 


emcdonald on DSK67QTVN1PROD with HEARING
17 

(1) IN GENERAL.—The accounts established by subsection (b) shall be managed 

in accordance with this Act and section 14.3 of the Restoration Agreement. 

(2) TRANSFERS.—Notwithstanding section 1535 of title 31, United States 

Code, the Secretaries are authorized to enter into interagency agreements for 

the transfer of Federal funds between Federal programs for the purpose of implementing this Act and the Settlements. 

(d) ACCEPTANCE AND EXPENDITURE OF NON-FEDERAL FUNDS.— (1) IN GENERAL.—Notwithstanding title 31, United States Code, the Secretaries may accept and expend, without further appropriation, non-Federal 

funds, in-kind services, or property for purposes of implementing the Settlement. 

(2) USE.—The funds and property described in paragraph (1) may be expended or used, as applicable, only for the purpose for which the funds or property were provided. 

(e) FUNDS AVAILABLE UNTIL EXPENDED.—All funds made available for the implementation of the Settlements shall remain available until expended. 

(f) TERMINATION OF AGREEMENTS.—If any Agreement terminates— 

(1) any appropriated Federal funds provided to a party that are unexpended 

at the time of the termination of the Agreement shall be returned to the general 

fund of the Treasury; and 

(2) any appropriated Federal funds provided to a party shall be treated as an 

offset against any claim for damages by the party arising under the Agreement. 

(g) BUDGET.— 

(1) IN GENERAL.—The budget of the President shall include such requests as 

the President considers to be necessary for the level of funding for each of the 

Federal agencies to carry out the responsibilities of the agencies under the Settlements. 

(2) CROSSCUT BUDGET.—Not later than the date of submission of the budget 

of the President to Congress for each fiscal year, the Director of the Office of 

Management and Budget shall submit to the appropriate authorizing and appropriating committees of the Senate and the House of Representatives a financial report containing— 

(A) an interagency budget crosscut report that displays the budget proposed for each of the Federal agencies to carry out the Settlements for the 

upcoming fiscal year, separately showing funding requested under preexisting authorities and new authorities provided by this Act; 

(B) a detailed accounting of all funds received and obligated by all Federal agencies responsible for implementing the Settlements; and 

(C) a budget for proposed actions to be carried out in the upcoming fiscal 

year by the applicable Federal agencies in the upcoming fiscal year. 

(h) REPORT TO CONGRESS.—Not later than the date of submission of the budget 

of the President to Congress for each fiscal year, the Secretaries shall submit to the 

appropriate authorizing committees of the Senate and the House of Representatives 

a report that describes— 

(1) the status of implementation of all of the Settlements; 

(2) expenditures during the preceding fiscal year for implementation of all of 

the Settlements; 

(3) the current schedule and funding levels that are needed to complete implementation of each of the Settlements; 

(4) achievements in advancing the purposes of complying with the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) under the Settlements; 

(5) additional achievements in restoring fisheries under the Settlements; 

(6) the status of water deliveries for the preceding water year and projections 

for the upcoming water year for— 

(A) the Klamath Project and irrigators in the Off-Project Area pursuant 

to the Agreements; and 

(B) the National Wildlife Refuges in areas covered by the Agreements; 

(7) the status of achieving the goals of supporting sustainable agriculture production (including the goal of limiting net power costs for water management) 

and general economic development in the Klamath Basin; 

(8) the status of achieving the goal of supporting the economic development 

of the Party tribes; 

(9) the assessment of the Secretaries of the progress being made toward completing implementation of all of the Settlements; 

(10)(A) identification of performance measures established for the goals of the 

Agreements and of facilities removal as described in the report to Congress required under section 8(b)(4)(B); and 

(B) until achieved, the assessment of the Secretaries of the progress being 

made toward meeting the performance measures; and 


emcdonald on DSK67QTVN1PROD with HEARING
18 

(11) the status of plans to address any potential cost in excess of the State 

cost cap as described in the report to Congress required under section 8(b)(4)(B). 

PURPOSE

The purpose of S. 2379 is to approve and implement the Klamath 

Basin agreements to improve natural resource management, support economic development, and sustain agricultural production in 

the Klamath River Basin in the public interest and the interest of 

the United States. 

BACKGROUND AND NEED

The Klamath River Basin drains a 16,000 square mile area in 

Oregon and California. The Klamath River originates in southern 

Oregon and flows 253 miles through northern California to the Pacific Ocean. The Basin is divided into two parts: the Upper Basin, 

which lies upriver and east of Iron Gate Dam and where the Upper 

Klamath Lake is found; and the Lower Basin, which includes that 

portion of the river between Iron Gate Dam and the Pacific Ocean. 

THE UPPER BASIN

Located in the Upper Klamath Basin is Upper Klamath Lake, 

which contains 50,000 acre feet of water storage and is naturally 

high in nutrients given its shallow depth. In addition, agricultural 

use has impacted the lake conditions over the past century. 

The Klamath Project, built in 1905, is a federal water project 

managed by the Bureau of Reclamation (BoR) in the Upper Basin. 

The project provides irrigation water for approximately 210,000 

acres. The project does not have a hydroelectricity component, so 

power is purchased from PacifiCorp, an investor-owned utility 

which serves the region. 

There are also 180,000 acres of irrigated agriculture that do not 

use water delivered from the Klamath Project. The land (mostly 

ranches) of these so-called ‘‘off-project users’’ is primarily to the 

north of Upper Klamath Lake and is located on tributaries to the 

Lake. 

The Klamath Basin National Wildlife Refuge (comprised of six 

wildlife refuges administered by the U.S. Fish and Wildlife Service) 

is located in the Upper Klamath Basin. The wetlands in these refuges are a stopping place for nearly three-quarters of the migratory 

birds on the Pacific flyway. Some of the Klamath Basin Project 

water is released downstream for the benefit of the two additional 

federal wildlife refuges, the Lower Klamath Wildlife Refuge and 

the Tule Lake Wildlife Refuge. Both of these refuges allow land to 

be leased out for farming (‘‘lease-land farming’’). 

Two fish species listed as endangered under the Endangered Species Act—the Lost River sucker and the shortnose sucker—are 

found in Upper Klamath Lake. Members of the Klamath Tribe use 

these fish for ceremonial purposes and historically relied on them 

for sustenance. Fish populations declined for a variety of reasons, 

such as low lake levels and related high nutrients and poor water 

quality, agricultural development, habitat degradation, and dams 

located on tributaries to the lake. 


emcdonald on DSK67QTVN1PROD with HEARING
19 

THE LOWER BASIN

The Lower Klamath Basin is located below Iron Gate Dam. The 

Klamath River runs through the Lower Basin to the Pacific Ocean. 

There are 13 anadromous fish species in the Lower Basin, including three types of salmon. One of these, the coho salmon, is listed 

as threatened under the Endangered Species Act. Much of the land 

area is irrigated agriculture or National Forest System land. Three 

Lower Basin tribes—the Hoopa Valley, Karuk, and Yurok Tribes— 

consider salmon to be an important resource, both economic and 

cultural. The presence of salmon has declined in the Lower Basin. 

KLAMATH DAMS

The Klamath Hydroelectric Project is comprised of six dams located on the Klamath River and is owned by PacifiCorp. These 

dams provide approximately 160 megawatts of hydroelectricity to 

170,000 homes and for power users in the Basin, including 

irrigators. One additional non-hydroelectric dam (Link River Dam) 

is owned by the Bureau of Reclamation and is operated to regulate 

flows for the production of hydropower downstream. The dams 

owned by PacifiCorp are: Keno Dam (a non-hydroelectric dam operated to regulate flows and as a diversion structure for irrigation); 

J.C. Boyle Dam; Copco Dams 2 and 1; and Iron Gate Dam. In addition, PacifiCorp operates a small dam on a tributary to the Klamath River. 

There is currently a hydroelectric relicensing proceeding pending 

before the Federal Energy Regulatory Commission (FERC) for the 

Klamath Hydroelectric Project but the FERC proceeding is inactive 

because the negotiated settlement calls for the removal of 

PacifiCorps dams (see discussion of the KHSA below). The original 

license expired in 2006, and the project is operating on annual licenses which are granted as a matter of course until a new license 

is issued. FERC has issued a final environmental impact statement 

and has indicated the conditions that FERC staff recommend be 

met by PacifiCorp in a new license. The States of California and 

Oregon also have pending proceedings relating to water quality certification of the project under section 401 of the Clean Water Act. 

Both water quality proceedings have been held in abeyance due to 

the negotiated settlement. However, the FERC and State proceedings could become active again if progress on implementing the 

settlement is not made. 

THE WATER RIGHTS ADJUDICATION

On March 7, 2013, the Final Order of Determination in the 

Klamath River Basin Adjudication was delivered by the Oregon 

Water Resources Department (OWRD) to the Klamath County Circuit Court, marking the end of Phase I of the water rights adjudication which has been ongoing since 1975. During Phase I, the 

OWRD determined the validity of 730 claims for the use of surface 

water in the Klamath Basin. The Department also received and resolved 5,660 contests to these claims. 

The key finding in the adjudication was that the most senior 

claims in the Klamath River Basin Adjudication are claims held by 

the United States in trust for the Klamath Tribes. These claims 

carry a priority date of ‘‘time immemorial.’’ The tribal claims were 


emcdonald on DSK67QTVN1PROD with HEARING
20 

recognized for certain reaches of major tributaries to Upper Klamath Lake and for the Lake itself. The next most senior rights holders are Indian Allottees (members of the Klamath Tribes who received allotments of land within the boundaries of the former reservation) and the so-called ‘‘Walton’’ claim holders, non-Indian purchasers of Indian allotments who hold lands that were once reservation lands and whose claims are based on the 1864 Klamath 

Treaty and carry a priority date of 1864. Under the Final Order of 

Determination, the United States holds the water rights for the 

Klamath Irrigation Project with a priority that dates to 1905, and 

users of the Project water hold the Project water rights for the purpose beneficial use of the water. 

KBRA AND KHSA AGREEMENTS

In February 2010, a negotiated settlement was reached by a 

number of parties in the Klamath River Basin on two related 

agreements—the Klamath Basin Restoration Agreement (KBRA) 

and the Klamath Hydropower Settlement Agreement (KHSA). 

However, Congress must authorize these two agreements before 

every provision of the agreements can be implemented. The KBRA 

provides for measures to address resource issues in the Basin and 

includes agreement on the allocation of water when shortage occurs. The KHSA provides for the removal of four Klamath River 

Dams owned by PacifiCorp. 

The KBRA is divided into sections designed to achieve three 

major goals: (1) restore and sustain natural production of fish species throughout the Basin; (2) establish reliable water and power 

supplies for agricultural users, communities, and wildlife refuges; 

and (3) contribute to the public welfare and sustainability of communities. The KBRA would have expired at the end of 2012 by its 

own terms since Congress had not acted to ratify it. The parties to 

the agreement each voted to extend the agreement in December 

2012, so the agreement remains in force. 

The second agreement, the KHSA, provides for dam removal and 

measures to restore fish runs. This agreement was reached with 

PacifiCorp, the owner of the four downstream hydroelectric dams, 

in the context of a relicensing proceeding before the Federal Energy 

Regulatory Commission. This agreement provides that the dams 

would be removed beginning in the year 2020. 

The KHSA calls on ratepayers and taxpayers in Oregon and California to pay up to $450 million to remove the dams. Of this 

amount, $200 million is to come from PacifiCorp’s ratepayers 

through a dam removal surcharge—up to $184 million from Oregon 

customers and $16 million from California customers. The remaining $250 million will come from a bond issued by the State of California. A recent estimate by the Department of the Interior suggests that the cost of dam removal could be less than $300 million. 

Oregon has already approved an increase to the ratepayers. 

The KHSA also calls for indemnification of PacifiCorp for any 

damages from dam removal and calls for the designation by the 

Secretary of the Interior of a ‘‘dam removal entity’’ to be responsible for the physical removal of the dams. This could be a government agency such as BoR. The agreement also allows PacifiCorp 

the right to the power generated from the dams up to the point 

they are actually removed. 


emcdonald on DSK67QTVN1PROD with HEARING
21 

The KHSA also includes provisions regarding the supply of 

power used for irrigation pumping. For example, the agreement anticipates that the Bonneville Power Administration (BPA) will sell 

power to the BoR who will sell it to Klamath irrigators to help 

lower irrigation power costs. However, the process to accomplish 

this has yet to be finalized. 

Pursuant to the KHSA, the Secretary of the Interior released a 

final environmental impact statement that endorsed removal of all 

four dams as its preferred alternative. The Secretary cannot make 

a final determination on whether dam removal is in the public interest until Congress acts. 

UPPER BASIN AGREEMENT

The final agreement, the Upper Basin Agreement, was signed on 

March 5, 2014, after a year-long Klamath Basin Task Force convened by Senator Wyden, Senator Merkley, Congressman Walden, 

and Governor Kitzhaber. The Agreement resolves water right disputes that were not addressed in the KBRA. The most senior water 

rights above Upper Klamath Lake are held by the Klamath Tribes 

and full exercise of those rights would preclude irrigation in many 

years. 

The Upper Basin Agreement lays out water management and 

restoration measures for the Upper Basin, including a water use 

program that will increase stream flows into Upper Klamath Lake 

adding at least 30,000 acre feet annually to the lake, which allows 

for a more predictable future for agriculture in the Upper Basin, 

a riparian program that will improve and protect riparian conditions to help restore fisheries, and an economic development program for the Klamath Tribes. 

Legislation is needed to implement the three settlement agreements. 

LEGISLATIVE HISTORY

S. 2379 was introduced by Senator Wyden on May 21, 2014. Senators Merkley, Feinstein, and Boxer are original cosponsors. The 

Subcommittee on Power and Water held a hearing on S. 2379 on 

June 3, 2014. S. Hrg. 113–451. At its business meeting on November 13, 2014, the Committee ordered the bill favorably reported 

with an amendment in the nature of a substitute. 

Similar legislation, S. 2727, was introduced by Senators Wyden 

and Merkley on July 31, 2014 and was referred to the Committee 

on Finance. The Committee on Energy and Natural Resources held 

an oversight hearing on water resource issues in the Klamath 

River Basin on June 20, 2013. Similar legislation (S. 1851 and H.R. 

3398) was also introduced in both the House and the Senate in the 

112th Congress, but was not acted upon. 

COMMITTEE RECOMMENDATION AND TABULATION OF VOTES

The Senate Committee on Energy and Natural Resources, in 

open business session on November 13, 2014, by a voice vote of a 

quorum present, recommends that the Senate pass S. 2379, if 

amended as described herein. 

The rollcall vote on reporting the measure was 17 yeas and 5 

nays, as follows: 


emcdonald on DSK67QTVN1PROD with HEARING
22 

YEAS 

Ms. Landrieu* 

Mr. Wyden 

Mr. Johnson 

Ms. Cantwell 

Mr. Sanders 

Ms. Stabenow* 

Mr. Udall 

Mr. Franken 

Mr. Manchin 

Mr. Schatz 

Mr. Heinrich 

Ms. Baldwin 

Ms. Murkowski 

Mr. Heller* 

Mr. Flake 

Mr. Portman 

Mr. Hoeven* NAYS 

Mr. Barrasso* 

Mr. Risch* 

Mr. Lee* 

Mr. Scott* 

Mr. Alexander* 

*Indicates vote by proxy. 

COMMITTEE AMENDMENT

During its consideration of S. 2379, the Committee adopted an 

amendment in the nature of a substitute. The amendment is described in the section-by-section analysis. 

SECTION-BY-SECTION ANALYSIS

Section 1 provides the short title, the ‘‘Klamath Basin Water Recovery and Economic Restoration Act of 2014.’’ 

Section 2 defines key terms used in the bill. 

Section 3(a)(1) approves and ratifies the Klamath Basin Restoration Agreement (KBRA), Klamath Hydroelectric Settlement 

(KHSA), and the Upper Klamath Basin Comprehensive Agreement 

(Upper Basin Agreement, collectively ‘‘the Settlements’’). Subsection (a)(3) establishes a process for future amendments, requiring that they be consistent with the Act. 

Subsection (b) provides for the Settlements’ execution and implementation by the Departments of the Interior (all three settlements) and Agriculture (KBRA only), the National Marine Fisheries service (all three), and the Federal Energy Regulatory Commission (KHSA only). Subsection (b)(1)(C) authorizes the relevant 

agencies to participate in the implementing programs of the Upper 

Basin Agreement. 

Subsection (c) requires the Secretary of the Interior to publish 

notice when all the commitments and actions agreed to in the 

KBRA and Upper Basin Agreement have happened, which would 

make official the legal settlements and releases of claims, or alternately, publication of notice if it is determined that they cannot 

happen and no other path to resolution can be agreed upon. Subsection (c)(3) limits, to one year, the time period in which judicial 


emcdonald on DSK67QTVN1PROD with HEARING
23 

review of this final decision for the Upper Basin Agreement can be 

initiated. 

Section 4 updates the authorized purposes of the Klamath Reclamation Project to include irrigation, reclamation, flood control, 

municipal uses, industrial uses, power, and fish and wildlife purposes (including serving the National Wildlife Refuges). Subsection 

4(a)(2) provides, consistent with the KBRA, that the fish and wildlife purposes, which are being established for the first time, cannot 

adversely affect the irrigation purposes (except for the agreed-upon 

water amounts to be delivered to the National Wildlife Refuges). 

Section 5 authorizes the Klamath, Karuk, and Yurok Tribes, and 

the United States acting as the trustee of federal tribes in the 

Klamath Basin, to make the series of commitments agreed upon in 

the Settlements, including settling certain water rights and waters 

claims (especially in the case of the Klamath Tribes) and otherwise 

agreeing not to pursue certain claims against the Project and OffProject irrigators. Subsections (d) and (f) authorize the Klamath 

Tribes and the United States, acting as their trustee, to continue 

negotiating for settlement of certain water rights claims not yet 

settled. Subsection (c) authorizes the Tribes to release claims where 

as appropriate. Subsection (h) provides a series of savings clauses 

limiting the scope of rights, privileges, and powers released by the 

United States and the federally recognized Tribes of the Klamath 

Basin to only those explicitly described in the Settlements. 

Section 6 authorizes the Secretary of the Interior to implement 

the water, power, and ecosystem restoration programs agreed upon 

in the Settlements. These include— • a water program to help irrigators align water supply and 

demand, including reducing total water consumption by both 

the Klamath Reclamation Project and the off-Project irrigators; • a program to limit the total cost of power to irrigators, by 

delivering Federal power and assisting in the development of 

a local renewable power program; and • various programs to restore ecosystems in the Klamath 

Basin to support recovery of endangered fish species. 

Section 7 establishes a Fund, as agreed upon in the Upper Basin 

Agreement, to provide for improved economic development for the 

Klamath Tribes, including primarily acquisition, restoration, and 

development of natural resources for the benefit of the Tribes. 

Section 8 directs the Secretary of the Interior to determine 

whether to proceed with removal of four facilities on the Klamath 

River—the J.C. Boyle, Iron Gate, Copco 1, and Copco 2 dams— 

based on whether removing the facilities would advance restoration 

of salmon fisheries and is in the public interest, taking into account 

potential impacts on local communities and federally recognized 

Tribes. Paragraphs (2) and (3) of subsection (a) requires that the 

determination comply with National Environmental Policy Act and 

happen only if certain conditions stipulated in the KHSA have been 

met. Subsection (a)(5) provides for judicial review of the Secretary’s 

determination only in the United States Court of Appeals for the 

Ninth Circuit or the District of Columbia Circuit, and requires that 

a petition for review be filed within 60 days of the determination 

being published in the Federal Register. 

Section 9 authorizes the Secretaries to enter into appropriate 

agreements (including contracts, memoranda of understanding, and 


emcdonald on DSK67QTVN1PROD with HEARING
24 

financial agreements) with State, tribal, and local governments and 

private individuals and entities in order to implement the Act and 

the Settlements. Subsection (a)(3) directs that, in awarding grants 

or contracts to implement the fisheries restoration programs in the 

KBRA, priority be given to the Tribes that are parties to the Settlements. 

COST AND BUDGETARY CONSIDERATIONS

The Congressional Budget Office estimate of the costs of S. 2379 

has been requested but was not received at the time the report was 

filed. When the Congressional Budget Office completes its cost estimate, it will be posted on the Internet at www.cbo.gov. 

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. 2379. 

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. 2379, as ordered reported. 

CONGRESSIONALLY DIRECTED SPENDING

Section 7(k) of S. 2379, as reported, authorizes appropriation of 

$8 million per fiscal year, not to exceed a total of $40 million, to 

the Secretary of the Interior to administer for the benefit of the 

Klamath Tribes in accordance with section 7 and the terms of the 

Upper Basin Agreement. 

EXECUTIVE COMMUNICATIONS

The testimony provided by John Bezdek, Senior Advisor to the 

Deputy Secretary at the Department of Interior, at the June 3, 

2014, hearing on S. 2379 before the Subcommittee on Water and 

Power, follows: 

STATEMENT OF JOHN C. BEZDEK, SENIOR ADVISOR TO THE

DEPUTY SECRETARY, DEPARTMENT OF THE INTERIOR

Chairman Landrieu, Ranking Member Murkowski, and 

members of the Committee, I am John Bezdek, Senior Advisor to Department of the Interior Deputy Secretary Michael Connor. I began working on Klamath Basin issues in 

1997 and since 2007 have had the privilege of working directly for the Department of the Interior (Department), 

alongside our interagency federal team, with the varied 

and diverse interests of the Klamath Basin regarding the 

Klamath Agreements (Agreements): the Klamath Hydroelectric Settlement Agreement (KHSA); the Klamath Basin 

Restoration Agreement (KBRA); and the Upper Klamath 

Basin Comprehensive Agreement (UKBCA). I am pleased 


emcdonald on DSK67QTVN1PROD with HEARING
25 

1 Revised Cost Estimates for the Klamath Basin Restoration Agreement. June 17, 2011. http:// 

216.119.96.156/Klamath/2011/06/RevisedCostEstimates.pdf. 

to provide the views of the Administration regarding S. 

2379, the Klamath Basin Water Recovery and Economic 

Restoration Act of 2014, which would authorize the Klamath Agreements. These agreements were envisioned to provide a comprehensive solution for water, fishery, and 

power issues in the Klamath Basin. 

The Klamath Basin has a long history of conflict driven 

by scarce water resources that have been over-allocated 

among competing uses. While the conflict began generations ago, in the recent past we have seen the following: 

water deliveries to Reclamation’s Klamath Project were 

shut off in 2001, which caused grave hardship for hundreds of farmers; over 30,000 adult salmon perished in the 

lower Klamath River (2002); closure of the commercial 

ocean fishery along the Oregon and California coasts due 

to poor Klamath Basin stocks in 2006; no surface water irrigation deliveries made to the upper basin ranching communities (2013); reductions in water supplies to the Klamath Reclamation Project (2010, 2013, and 2014); the continued voluntary tribal fishing ban, since 1986, for c’waam 

(Lost River Suckers) and Shortnose Suckers in Upper 

Klamath Lake; Endangered Species Act listings on declining populations of suckers in Upper Klamath Lake and 

Coho salmon in the Klamath River; limited water deliveries to wildlife refuges for a number of years, continuing 

today, for the water needed to support one of the most important stop over points on the Pacific Flyway; and a significant increase in the cost of power which makes it more 

expensive for irrigators to conserve and re-use water. All 

of these events continue to cast uncertainty and doubt 

upon the communities of the basin, including the continuation of the way of life of the tribes and the ranching communities and the $600 million a year in agricultural products and jobs that contribute to the local economy.1 Moreover, analysis shows all of these problems in the basin will 

likely worsen and may occur more frequently in the coming years due to impacts of climate change unless a long 

term solution is implemented. 

Fortunately, the tools, in the form of the Klamath Agreements, are available and ready to be implemented to address these issues. Collectively, these three Agreements 

approach the restoration of resources, economies, and communities of the basin in a holistic manner instead of continuing the band-aid approach that oftentimes falls short 

of providing even short-term relief—much less addressing 

the underlying causes. 

These agreements have broad and diverse support. 

There are currently 45 Parties to the KHSA and 43 Parties 

to the KBRA, representing Federal agencies, California 

and Oregon, three Indian tribes, two counties, irrigators, 


emcdonald on DSK67QTVN1PROD with HEARING
26 

2The Department of the Interior and National Oceanic and Atmospheric Administration 

signed the KHSA; the federal agency parties are not signatories to the KBRA. The KBRA includes provisions that these agencies will become parties when Federal authorizing legislation 

is enacted. PacifiCorp signed the KHSA; it is not a Party to the KBRA. 

and conservation and fishing groups.2 There are sixteen 

parties to the Upper Basin Agreement, including the State 

of Oregon, the Klamath Tribes, and a broad coalition of 

Upper Klamath Basin irrigators. 

The stakeholders of the Klamath Basin have made the 

courageous decision to set aside differences and generations of acrimony to find a better path forward. Implementing these agreements and accomplishing the parties’ 

collective goals will take substantial resources. Yet the cost 

of inaction could easily be even higher, not just in the form 

of additional dollars to be expended in the future, but also 

in the form of additional stressors upon communities in 

the basin. Thus, we support S. 2379 and the Agreements 

that it will implement, including the provisions on costs 

provided that all parties understand that full implementation of the Klamath Agreements will need additional, 

meaningful, non-federal cost-share that will reduce the 

overall costs to the United States. Over the course of implementing S. 2379, the Administration will work closely 

with all the parties to secure additional non-federal 

sources of funding. 

Despite the non-partisan development of this settlement 

framework over several federal and state administrations, 

the Administration acknowledges there are a handful of 

parties that have not signed the Klamath Agreements. We 

will continue our efforts to find common ground with these 

parties; however, it is important that the Committee understand that finding common ground has been difficult 

because some of the opponents have taken positions that 

would pose unacceptable risks to the farmers, and others 

oppose efforts to restore the fisheries that are important to 

the tribes and fishing communities. But we also believe 

the time is ripe for action and that we have a unique opportunity to heal and restore the basin in a lasting manner. We must not lose this opportunity. 

UKBCA

In 2010 when the KBRA and KHSA were signed, many 

felt the job was done. The reality is that the parties’ work 

was unfinished due to our inability to reach settlement 

with those many ranchers located on the tributaries to 

Upper Klamath Lake. With the execution of the UKBCA 

this past April, we now are able to address restoration of 

the resources and communities from the headwaters of the 

Klamath Basin all the way downstream by resolving 

claims surrounding the tribal water rights held in trust by 

the United States on behalf of the Klamath Tribes. We are 

able to do so by providing a framework for a balanced approach to management of water resources in the upper 

basin that comports seamlessly with the KBRA. In the 

UKBCA we have been able to simultaneously recognize the 


emcdonald on DSK67QTVN1PROD with HEARING
27 

seniority of the Tribal water rights, allocate sufficient 

water to restore and maintain the fisheries, and establish 

a framework for maintaining the majority of irrigation in 

the upper basin. All of this is accomplished through the establishment of certain specified instream flows in tributary 

streams above Upper Klamath Lake, the retirement of 

30,000 acre-feet of water previously consumptively used for 

irrigation, and, through riparian agreements with private 

landowners, to restore habitat necessary to support the 

fishery, while also providing for a stable, sustainable basis 

for the continuation of irrigated agriculture in the upper 

basin. Just as importantly, these actions will be managed 

by local stakeholders through the establishment of a Landowner Entity and a Joint Management Entity. 

S. 2379 also establishes tribal economic development 

funds to compensate the Klamath Tribes for additional 

commitments made in the UKBCA that were not made in 

the KBRA or KHSA, to implement a water management 

program in the upper basin. Since the beginning, the 

Klamath people have relied on the natural resources they 

needed to thrive in their traditional subsistence way; these 

resources, many of which require water to thrive, include 

the fish, animals, birds, and plants which have provided 

essential subsistence and economic resources to the Tribes, 

and which are deeply embedded in the Tribes’ religious 

and cultural practice. All who are familiar with the Klamath Tribes understand the deep and long-term impact the 

past termination of its federally recognized status and the 

impacts on treaty resources have had upon the economic, 

religious, and cultural viability of the Klamath Tribes. The 

economic development funds authorized under S. 2379 will 

provide support to help the Tribes in their commitment to 

build a viable tribal economy, restore their homeland, and 

increase the opportunities for the exercise of tribal treaty 

and cultural rights. The funds will accomplish this through 

the purchase of timber and other lands to be brought back 

into Trust and the restoration of their subsistence fishery 

that is central to who they are as a people. This will also 

provide significant movement towards self-determination 

that has been so elusive since the restoration of federal 

recognition. 

KHSA

The KHSA is a unique combination of environmental 

and economic interests striking an agreement that combines both business sense and protection of natural resources. It is an agreement to study the potential removal 

of four privately owned (PacifiCorp) hydroelectric facilities 

on the Klamath River and to determine, based on a host 

of scientific and engineering studies, whether removal of 

these facilities will advance restoration of fisheries and 

will be in the public interest. The KHSA calls for removal 

to occur in 2020, should the Secretary of the Interior determine that removal is in the public interest. Congressional 

authorization is necessary for the Secretary to make this 


emcdonald on DSK67QTVN1PROD with HEARING
28 

determination. If there is a decision to remove these facilities, the costs will be borne by a combination of 

PacifiCorp’s electricity customers in Oregon and California 

through a minimal surcharge and a water bond from the 

state of California. Consequently, there would be no federal costs associated with facilities removal under the 

KHSA. 

The KHSA also includes certain liability protections for 

PacifiCorp if these facilities are removed. The current cost 

estimate is below the cost cap included in the KHSA, 

though it remains uncertain at this point which non-federal entities would bear any costs in excess of those protections, should such a situation arise. The KHSA also provides a commitment for PacifiCorp to transmit and deliver 

federally generated power to the Klamath Project, which 

could provide savings to water users on power costs, making for efficient project operations, and opportunities to 

conserve water. On this point, discussions are ongoing between PacifiCorp, the Department, Bonneville Power Administration, Westem Area Power Administration, and the 

Klamath water users on ways to provide power at reduced 

costs to both the on and off-project communities. Analysis 

shows that purchasing Federal power could save larger irrigation loads three-quarters to one cent per kilowatt 

hours, or about 7 to 10 percent. The irrigators who could 

benefit comprise about half the irrigation loads in the 

basin; however, passage of S. 2379 would be needed to 

serve irrigators that are north of the Klamath Project. 

While these discussions may lead to near-term reductions 

in power costs, we also note that the KBRA includes programs that require S. 2379’s authorization and budget to 

provide more substantial long-term power relief. Studies 

are currently underway analyzing the best possible paths 

forward in achieving the long-term power goal once S. 

2379 is enacted. 

KBRA

The KBRA is a restoration agreement that includes 

water allocation and fish habitat restoration actions, predicated on, and working in conjunction with dam removal. 

The KBRA includes agreements among tribal and non-tribal entities resolving water rights disputes and provides the 

means for Reclamation’s Klamath Project to conserve 

water supplies and develop sources of power that will place 

the Project on par with other similarly sized irrigation 

projects in the West. The KBRA provides a reliable supply 

of water to the two national wildlife refuges that currently 

receive adequate water supplies in less than one out of 10 

years. If funded, the KBRA will put tribal members to 

work on habitat restoration actions needed in the basin. 

Through the establishment of a Federal Advisory Committee Act charter, the KBRA will give parties in the 

Klamath Basin a major voice in the decision making process regarding the basin’s resources. 


emcdonald on DSK67QTVN1PROD with HEARING
29 

To illustrate how the Klamath Agreements would 

change the impacts of the current water year, if fully authorized, involuntary shortages among Klamath Project 

irrigators could be avoided, the Lower Klamath National 

Wildlife Refuge would have a guaranteed supply of water 

(compared to no water being available this year), and 

upper basin irrigators might not be subject to having their 

diversions curtailed due to water rights administration. In 

addition, fishery resources would have a dedicated supply 

of water, in conjunction with an identified process for restoring degraded habitat. Without the KBRA, the Klamath 

Reclamation Project and the Klamath Tribes are likely to 

exercise the water rights recognized in the Klamath Basin 

Adjudication with increasing frequency, thereby creating 

uncertainty for and jeopardizing the livelihood of irrigators 

in the Upper Klamath Basin. 

While most of the items in the KBRA, especially those 

involving tribal and fisheries programs, are presently authorized under existing law, items associated with making 

Reclamation’s Klamath Project more efficient and flexible, 

such as in allocating funds received from the leasing of refuge lands to the wildlife refuges and irrigators and clarifying the Klamath Project’s purposes, require this additional Congressional authorization. Legislation would also 

be needed to provide the power for water management 

benefits to irrigators and to supply Federal electricity to 

off-project irrigators. 

KHSA/KBRA SCIENCE PROCESS

Between the signing of the Klamath agreements in early 

2010 and today, many federal studies have been undertaken and completed that analyze the potential effects of 

Klamath River dam removal and implementation of KBRA 

on local communities, tribes, and the environment. A Final 

Environmental Impact Statement analyzed the proposed 

action to remove the four lower PacifiCorp dams on the 

Klamath River in 2020 and to implement the KBRA, as 

well as three alternatives where some or all of the dams 

would remain in place. 

The process undertaken to develop new information for 

a Secretarial Determination was rigorous, open, and transparent; it provided multiple opportunities for stakeholder 

and public participation, included independent subjectmatter experts to provide a breadth of perspectives, and 

relied on multiple levels of independent peer review to ensure objectivity and accuracy of findings. 

Over 80 meetings and workshops were held throughout 

the basin over a period of two years that allowed for public 

and stakeholder participation in the science process for the 

KHSA and the KBRA. The public and stakeholders provided input on hypotheses to be tested, study designs, 

available sources of information, data analysis, and conclusions to be drawn from the analyses. The public involvement improved the quality of reports. 


emcdonald on DSK67QTVN1PROD with HEARING
30 

A summary of the findings from the science process is 

attached as an Appendix. All of these studies and materials are available to the public and can be found at http:// 

klamathrestoration.gov/. 

PARTIES WHO HAVE CONCERNS ABOUT THE KLAMATH

AGREEMENTS

We acknowledge that there are a small number of parties who participated in the negotiations but have chosen 

not to sign the Klamath Agreements. We respect that each 

party has its own unique concerns and must make its own 

decisions as to what it believes is in its best interest. Some 

of those who oppose the Klamath Agreements want to 

maintain the status quo or have general concerns about 

dam removal; others believe their resources are being inappropriately harmed or their rights are being terminated, 

or that they are bearing an unfair share of the adverse 

consequences of the Klamath Agreements. 

I wish to be clear that given the ongoing challenges and 

increasing demands for limited water resources, we should 

continue to evaluate opportunities to develop additional 

water storage and power generation opportunities where 

they make sense. But we should also not be afraid to 

evaluate reduction of water use or potential dam removal 

when the specific circumstances warrant. The KHSA, for 

example, reflects the unique circumstances of the Klamath 

Basin, where the owner of these private dams, in making 

a business decision that is in the best interests of its electricity customers and the company, has agreed to permit 

the Secretary of the Interior to evaluate whether their removal would advance fisheries and be in the overall public 

interest as part of a basin-wide restoration effort that addresses many of the systemic problems that continually 

plague the Klamath Basin. 

There are others who favor dam removal but do not support the Klamath Agreements because they either want to 

remove or significantly limit irrigated agriculture from the 

basin or believe that the assurances in the Agreements regarding water supply and the connected issue of river 

flows terminate tribal rights. As to the former, irrigated 

agriculture is part of the societal fabric of the basin and, 

as mentioned earlier, provides significant jobs and economic support to all communities of the basin. While the 

KBRA does provide further funding for voluntary retirement of up to 30,000 acre-feet of irrigation water on a willing seller or buyer basis, total removal of the loss of most 

of the irrigated agriculture in the basin is simply not consistent with a comprehensive and durable restoration program meant to assist the communities of the basin and 

their respective economies and ways of life. As to the latter, the tribal parties, state and federal fishery agencies, 

and environmental and fishing groups concluded that the 

water and fisheries program would significantly improve 

basin fisheries. The agreements do not terminate any tribal rights. 


emcdonald on DSK67QTVN1PROD with HEARING
31 

We have also heard the concerns of those around the 

reservoirs whose properties and businesses may be most 

directly impacted by dam removal. On this point, we believe that if S. 2379 is enacted, there should be a fund established, managed by representatives in local communities, to recompense land owners for significant diminishment in property value that occurs as a result of dam removal. The cost of such a fund, we believe, should be 

deemed a cost of mitigation associated with dam removal, 

and thus borne by non-federal sources. Upon enactment of 

S. 2379 we will meet with representatives from California 

and Oregon, as well as the local governments most affected 

by dam removal to assess the potential for establishment 

of such a fund. 

CONCLUSION

The Administration supports enactment of S. 2379, 

which is vital to the communities of the Klamath Basin 

provided that all parties understand that full implementation of the Klamath Agreements will need additional, 

meaningful, non-federal cost-share. Over the course of implementing S. 2379, the Administration will work closely 

with all the parties to secure additional non-federal 

sources of funding to offset the new federal costs and ensure timely implementation of the Klamath Agreements. 

This concludes my written statement. I am pleased to answer questions at the appropriate time. 

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the bill S. 

2379, as ordered reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is 

printed in italic, existing law in which no change is proposed is 

shown in roman): 

KLAMATH BASIN WATER SUPPLY ENHANCEMENT ACT 

OF 2000 

Public Law 106–498 

* * * * * * * 

SEC. 3. ADDITIONAL STUDIES. 

* * * * * * * 

SEC. 4. WATER MANAGEMENT AND PLANNING ACTIVITIES. 

(a) DEFINITIONS.—In this section: 

(1) OFF-PROJECT AREA.—The term ‘‘Off-Project Area’’ means— 

(A) the areas within the Sprague River, Sycan River, 

Williamson River, and Wood Valley (including Crooked 

Creek, Sevenmile Creek, Fourmile Creek, and Crane Creek) 

subbasins referred to in Exhibit B of the Upper Basin 

Agreement; and 

(B) to the extent provided for in the Upper Basin Agreement, any other areas for which claims described by section 


emcdonald on DSK67QTVN1PROD with HEARING
32 

1.3 or 2.5.1 of the Upper Basin Agreement are settled as 

provided for in section 2.5.1 of the Upper Basin Agreement. 

(2) ON-PROJECT POWER USER.—The term ‘‘On-Project Power 

User’’ has the meaning given the term in the Restoration Agreement. 

(3) RESTORATION AGREEMENT.—The term ‘Restoration Agreement’ means the agreement entitled ‘Klamath River Basin Restoration Agreement for the Sustainability of Public and Trust 

Resources and Affected Communities’ and dated February 18, 

2010 (including any amendments adopted prior to the date of 

enactment of this Act and any further amendment to that agreement approved pursuant to section 3(a) of the Klamath Basin 

Water Recovery and Economic Restoration Act of 2014). 

(4) UPPER BASIN AGREEMENT.—The term ‘Upper Basin Agreement’ means the agreement entitled ‘Upper Klamath Basin 

Comprehensive Agreement’ and dated April 18, 2014 (including 

any amendment to that agreement). 

(b) ACTION BY SECRETARY.— 

(1) IN GENERAL.—The Secretary may carry out any activities, 

including by entering into an agreement or contract or otherwise making financial assistance available— 

(A) to align water supplies with demand, including activities to reduce water consumption and demand, consistent with the Restoration Agreement or the Upper Basin 

Agreement; 

(B) to limit the net costs of power used to manage water 

(including by arranging for delivery of Federal power, consistent with the Restoration Agreement and the Upper 

Basin Agreement) for— 

(i) the Klamath Project (within the meaning of section 2); 

(ii) the On-Project Power Users; 

(iii) irrigators in the Off-Project Area; and 

(iv) the Klamath Basin National Wildlife Refuge 

Complex; and 

(C) to restore any ecosystem and otherwise protect fish 

and wildlife in the Klamath Basin watershed, including 

tribal fishery resources held in trust, consistent with Restoration Agreement and the Upper Basin Agreement. 

(2) INCLUSION.—Purchases of power by the Secretary under 

paragraph (1)(B) shall be considered an authorized sale under 

section 5(b)(3) of the Pacific Northwest Electric Power Planning 

and Conservation Act (16 U.S.C. 839c(b)(3)). 

SEC. [4] 5. LIMITATION. 

Activities funded under this Act shall not be considered a supplemental or additional benefit under the Act of June 17, 1902 (82 

Stat. 388) and all Acts amendatory thereof or supplementary thereto. 

SEC. [5] 6. WATER RIGHTS. 

Nothing in this Act shall be construed to— 

(1) create, by implication or otherwise, any reserved water 

right or other right to the use of water; 

(2) invalidate, preempt, or create any exception to State 

water law or an interstate compact governing water; 


emcdonald on DSK67QTVN1PROD with HEARING
33 

(3) alter the rights of any State to any appropriated share of 

the waters of any body or surface or groundwater, whether determined by past or future interstate compacts or by past or 

future legislative or final judicial allocations; 

(4) preempt or modify any State or Federal law or interstate 

compact dealing with water quality or disposal; or 

(5) confer upon any non-Federal entity the ability to exercise 

any Federal right to the waters of any stream or to any 

groundwater resources. 

SEC. [6] 7. AUTHORIZATION OF APPROPRIATIONS. 

There are authorized such sums as necessary to carry out the 

purposes of this Act. Activities conducted under this Act shall be 

nonreimbursable and nonreturnable. 


emcdonald on DSK67QTVN1PROD with HEARING
(34) 

APPENDIX

SUMMARY OF KEY FINDINGS REGARDING KLAMATH RIVER DAM

REMOVAL AND IMPLEMENTATION OF KBRA

This document is intended to serve as a summary and, as such, 

numbers cited herein represent averages and/or aggregates which 

may include associated levels of uncertainty that are explained 

fully in the contributing studies. All of the scientific studies, which 

include the complete scientific analysis and associated uncertainties, are available at klamathrestoration.gov. Any language below 

that appears to be a statement of fact is the Department’s best understanding and approximation of future events, based on extensive scientific study, but still subject to significant levels of uncertainty. 

Dam removal, sediment processes, and impacts on flooding: 

• The most probable cost for full dam removal, which is the 

preferred alternative identified in the FEIS, is about $292 million in 2020 dollars and is under the State cost cap of $450 

million. There is a 99 percent probability that removal costs 

would be no more than $493M and a 1 percent probability that 

removal costs could be less than $238M. 

• Dam removal would mobilize between one-third and twothirds of the 13 million cubic yards of sediment behind the 

dams. The majority of the sediment is fine-grained material 

that would be readily transported to the Pacific Ocean 2 to 3 

months following the drawdown of reservoirs in the winter of 

2020. 

• Extensive chemical testing of sediments behind the dams 

shows that human health would not be at risk due to contact 

with these sediments. 

• Dam removal would immediately restore more natural 

water temperatures and dissolved oxygen concentrations important to downstream fish and fisheries. 

• Dam removal would immediately eliminate toxic algae produced in the reservoirs; toxic algae create health concerns in 

the reservoirs and downstream in the Klamath River for people, fish, and wildlife. 

• Long-term flood risks would increase slightly for about 18 

miles downstream of the location of Iron Gate Dam. Analyses 

show that some additional structures currently outside the 

100-year flood plain would be located in a new 100-year floodplain following dam removal. If dam removal were to proceed, 

the Dam Removal Entity would work with willing landowners 

to reduce or eliminate flood risk for these additional structures. 

Impacts of dam removal and KBRA on fish and fisheries: • The timing of reservoir drawdown in a single winter season was designed to minimize negative impacts of released 


emcdonald on DSK67QTVN1PROD with HEARING
35 

sediments on sensitive fish species, particularly federally listed 

Coho salmon. • Basin-wide adult and juvenile salmon mortality is expected to be less than 10 percent in the year following dam removal, even under worst-case flow conditions. • In the long run, opening up fish passage to the Upper 

Klamath Basin through dam removal and restoring aquatic 

habitat under the KBRA would increase salmon and steelhead 

production. For example, annual Chinook salmon production 

would increase about 80 percent (ranging from 40 to 190 percent among modeled years). • The increased production would increase Chinook salmon 

harvest about 50 percent for commercial and sport ocean fisheries, as well as for in-river tribal fisheries. • Coho salmon would be expected to access 68 miles of 

stream habitat upstream of Iron Gate Dam, including 23 miles 

currently inundated by the reservoirs, thereby advancing the 

recovery of this federally listed species. • Steelhead trout would be able to migrate to historical habitat above Iron Gate Dam, including up to 420 additional miles 

of stream, and thereby advancing the most prized game fishery 

in the Basin. • Dam removal would also expand the distribution and number of trophy redband rainbow trout, another prized game fishery, throughout the hydroelectric reach of the river. • Dam removal would totally eliminate a large non-native 

game fishery on the reservoirs, which includes bass and yellow 

perch. 

Climate change impacts on water temperatures, fish, and flows: • Over a period of 50 years (2012 to 2061), climate change 

models show that water temperatures in the Klamath Basin 

would increase 1 to 3 degrees C (2 to 5 degrees F) and earlier 

snow melt would decrease summer flows. • Removing the Klamath River dams would restore salmon 

access to critical cool-water habitat for spawning and rearing 

in the Upper basin, thereby helping to buffer against effects of 

climate change. 

• Removing the dams would immediately improve late summer and fall water temperatures for salmon below this reach, 

thereby buffering against future impacts of climate change. 

• Decreased summer flows will worsen already strained 

water supplies needed to support farms, refuges, and fisheries. 

Impacts on jobs and regional economies: 

• Dam removal and full KBRA implementation would create 

a number of full time, part time, and temporary jobs: 

Æ Hundreds of commercial fishing jobs in five management areas from northern California to central Oregon; 

Æ 1,400 jobs during the year of dam removal; 

Æ 300 annual average jobs over 15 years for KBRA programs; 

Æ 70 to 695 farm jobs in drought years depending on 

drought intensity. 

Dam removal would also result in the loss of about 70 jobs associated with the operation and maintenance of the dams and 


emcdonald on DSK67QTVN1PROD with HEARING
36 

changes in the recreational industry (reductions in whitewater 

rafting and reservoir fishing/boating). 

Tribal and cultural impacts: • All of the native people residing in the Klamath River environment have spiritual beliefs and traditional practices that 

are inseparable from the River and surrounding homeland environments. Dam removal and implementation of the KBRA 

would help address tribal trust and social issues identified by 

the Klamath River Basin Tribes as detrimental to their traditional way of life. Dam removal would have beneficial effects 

on water quality, fisheries, terrestrial resources, and traditional cultural practices. Dam removal would enhance the ability of Indian tribes in the Klamath River Basin to conduct traditional ceremonies and other traditional practices. • Dam removal and reservoir drawdown could affect Native 

American cultural resources sites reported to be currently submerged beneath the reservoirs. Human remains may be associated with these sites. Plans to identify cultural resources and 

to avoid, minimize, or mitigate impacts to those resources 

would be developed in consultations with the appropriate State 

Historic Preservation Office, Tribes, and other Native American organizations. • The removal of the dams and associated facilities, all part 

of the Klamath Hydroelectric Project, would result in effects to 

those historic properties. Plans to avoid, minimize, or mitigate 

effects to historic era properties would be developed in consultation with the appropriate State Historic Preservation Office and other historic preservation entities. 

Hydropower, green house gas emissions, and electricity customers: • Dam removal would eliminate about 82 megawatts of hydropower in 2020 (enough power for 70,000 homes), which 

would be made up by a mix of other energy sources. • Following dam removal in 2020, approximately 526,000 

metric tons of carbon dioxide equivalents (MTCO2e) per year 

would be emitted to the atmosphere from replacement power 

assuming PacifiCorp’s current resource generation mix. This 

number would decrease to approximately 451,000 MTCO2e per 

year assuming PacifiCorp met California’s goal for replacement 

power sources. 

• A 2010 analysis by PacifiCorp prepared for the Oregon and 

California PUCs demonstrates that dam removal as laid out in 

KHSA would be less costly for their customers (about $251 million), and less risky, as compared to likely customer costs associated with relicensing the four dams, which would be in excess 

of $460 million over a 40-year license term. 

Wildlife refuges: 

• Dam removal and KBRA implementation would allow the 

refuges associated with Reclamation’s Klamath Project to have 

greater certainty about water deliveries with newly established 

allocations, even during drought years, and increased flexibility in the timing of water deliveries. 

• Full refuge needs would likely be met in 88 percent of 

years; currently refuge needs for water are met in less than 10 


emcdonald on DSK67QTVN1PROD with HEARING
37 

percent of the years. These NWRs wetlands are critical components of the Pacific Flyway, the corridor for migrating birds 

from as far away as Alaska and Mexico. • The additional water deliveries—and the increased predictability of those deliveries would mean that greater numbers of migratory waterfowl, non-game water birds, wintering 

bald eagles, and other sensitive species would be supported by 

the refuges and would increase recreational wildlife viewing. • The estimated increase of over 190,000 waterfowl in the 

fall would result in an additional 3,600 hunting trips annually. 

Real estate: • Upstream of Iron Gate Dam studies identified 668 parcels 

near Copco 1 and Iron Gate reservoirs which either have water 

frontage, water access, or views of reservoirs. Of these 668 parcels, 127 include single family homes. These 668 land parcels 

would decline in value if dams were removed and reservoirs 

drained. • Land values of parcels downstream of Iron Gate Dam, 

with river views and river access, may increase in the longterm because of restoration of the river, including improved 

water quality and more robust salmon and steelhead runs. 

Flows: • The differences in monthly average flows between dams 

remaining in place and dam removal options are relatively 

small; however, without the dams, pulse flows and other seasonal fluctuations beneficial to fish would occur more often. • The absolute minimum flow target under the KBRA would 

be approximately 800 cubic feet per second (cfs) at the location 

of Iron Gate Dam. In most months and years, however, flows 

would be much greater. In extreme drought years, flows could 

drop slightly below this target, but never drop below 700 cfs 

owing to the water-management provisions in the KBRA. 

Æ 


emcdonald on DSK67QTVN1PROD with HEARING