39–010 

Calendar No. 43 

109TH CONGRESS REPORT " ! SENATE 1st Session 109–30 

WALLOWA LAKE DAM REHABILITION AND WATER 

MANAGEMENT ACT OF 2005 

MARCH 10, 2005.—Ordered to be printed 

Mr. DOMENICI, from the Committee on Energy and Natural 

Resources, submitted the following 

R E P O R T 

[To accompany S. 231] 

The Committee on Energy and Natural Resources, to which was 

referred the bill (S. 231) to authorize the Bureau of Reclamation to 

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

favorably thereon without amendment and recommends that the 

bill do pass. 

PURPOSE OF THE MEASURE

The purpose of S. 231 is to authorize the Bureau of Reclamation 

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

BACKGROUND AND NEED

Wallowa Lake Dam is a privately owned dam constructed in 

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

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

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

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

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

those deficiencies to larger environmental issues in the Wallowa 

River Basin. 

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S. 231 authorizes the Secretary of the Interior, acting through 

the Commissioner of Reclamation, to participate in: (1) the 

Wallowa Lake Dam Rehabilitation Program, in cooperation with 

ADC; and (2) phases II and III of the Wallowa Valley Water Management Plan, in cooperation with tribal, State, and local governmental entities. The Wallowa Lake Dam Rehabilitation Program, 

as described in the February 2001 Vision Statement, focuses on 

planning, designing, and constructing recommended improvements 

to Wallowa Lake Dam. When this phase is completed, ADC will be 

able to raise pool levels and work closely with the Oregon State 

Parks Department to assess the impact on nearby park facilities. 

Phase II of the Wallowa Valley Water Management Plan will 

focus on the planning and implementation of fish screens, automated head gates, and flow measurement devices at unscreened diversions. The Nez Perce Tribe is currently working with the Oregon Department of Fish and Wildlife to plan and implement fish 

recovery measures. S. 231 provides that only the Tribe may own 

and operate fish passage facilities constructed with Federal funds 

at Wallowa Lake Dam. 

Phase III focuses on planning, designing, and implementing the 

institutional framework and infrastructure, including pumps and 

pipelines, needed for a water exchange between the Wallowa River 

and the Lostine and Bear Creek Valley irrigation system. 

LEGISLATIVE HISTORY

S. 231 was introduced on February 1, 2005 by Senator Smith for 

himself and Senator Wyden. S. 231 is similar to S. 1355, as passed 

by the Senate in the 108th Congress. 

During the 108th Congress, S. 1355 was introduced by Senators 

Smith and Wyden on June 26, 2003. The Subcommittee on Water 

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

108–271. At the business meeting on March 10, 2004, the Committee on Energy and Natural Resources ordered S. 1355 favorably 

reported, with an amendment in the nature of a substitute. S. 

Rept. 108–250. S. 1355 was passed by the Senate, as amended, by 

unanimous consent on September 15, 2004. 

During the 107th Congress, a similar measure, S. 1883, was introduced by Senators Smith and Wyden. The Subcommittee on 

Water and Power held a hearing on S. 1883 on June 6, 2002. S. 

Hrg. 107–817. The Committee on Energy and Natural Resources 

ordered S. 1883 favorably reported on July 31, 2002, with an 

amendment. S. Rept. 107–284. S. 1883 passed the Senate as title 

III of S. 2556 on November 20, 2002. 

At a business meeting on February 9, 2005, the Committee on 

Energy and Natural Resources ordered S. 231 favorably reported. 

COMMITTEE RECOMMENDATION

The Senate Committee on Energy and Natural Resources, in 

open business session on February 9, 2005, by unanimous voice 

vote of a quorum present, recommends that the Senate pass S. 231. 

SECTION-BY-SECTION ANALYSIS

Section 1 entitles the bill the ‘‘Wallowa Lake Dam Rehabilitation 

and Water Management Act of 2005’’. 

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Section 2 defines key terms used in the Act. 

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

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

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

facilities needed to implement the Wallowa Lake Dam Rehabilitation Program and Phases II and III of the Wallowa Valley Water 

Management Plan. 

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

of the Wallowa Dam, and for Phase II and Phase III of the 

Wallowa Valley Water Management Plan, provides a unique, costeffective means of enhancing flood control protection for downstream communities, and of re-establishing a fishery for the Nez 

Perce Tribe. 

The Wallowa Basin is aboriginal territory for the Nez Perce, who 

are co-managers with the Federal Government of certain fish resources and support enactment of the bill. S. 231 will help provide 

water for the recovery of ESA-listed species in an important subbasin within the Columbia River Basin, where actions by the Bureau of Reclamation are covered by the 2000 Columbia River biological opinion. The Nez Perce Tribe, as well as numerous State, 

Federal and local agencies have collaborated on this successful 

project since 1992. The management plan for the Wallowa Valley 

is consistent with action plans associated with the Bonneville 

Power Administration’s Fish and Wildlife Program and the 

Wallowa County/Nez Perce Tribe Salmon Habitat Recovery Plan. 

Rehabilitation of the dam is necessary to provide for additional 

water storage. 

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

rights holders have agreed to make an additional 4,300 acre-feet of 

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

will help the Nez Perce restore sockeye and coho salmon passage 

at the dam, and provide for the downstream water exchange, and 

it will also aid in resolving issues related to Federally-listed salmon 

runs. The Committee notes that these circumstances are unique 

and the Committee does not intend this legislation to set precedent 

for Federal assistance to private projects. 

Section 3(b)(1) requires the Secretary, as a condition of providing 

funds, to ensure that the program meet the standards of the dam 

safety program in the State of Oregon. 

Section 3(b)(2) requires that as a condition of receiving funding, 

ADC must assume liability for work performed or supervised with 

funds provided to it under this Act. 

Section 3(b)(3) provides a liability waiver for the United States 

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

to a facility rehabilitated or constructed under this Act. 

Section 3(c) limits the Federal share of the cost of activities authorized under this Act to 80 percent. 

Section 3(c)(2)(A) excludes any expenditures by the Bonneville 

Power Administration from being credited against the Federal cost 

share. 

Section 3(c)(2)(B) excludes any expenditures made by individual 

agricultural producers in any Federal commodity or conservation 

program from being credited against the Federal share of the costs. 

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Section 3(d) requires the Secretary to comply with applicable 

State water law. 

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

to any facility rehabilitated or constructed under this Act. 

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

or rehabilitated under this Act. 

Section 3(g) provides that any facility constructed using Federal 

funds for trapping and transporting migratory salmon may be 

owned and operated only by the Nez Perce tribe. 

Section 4 states that activities funded under this Act shall not 

be considered a supplemental or additional benefit under Federal 

reclamation law. 

Section 5 authorizes $25.6 million in appropriations for the Federal cost share. 

COST AND BUDGETARY CONSIDERATIONS

The following estimate of costs of this measure has been provided 

by the Congressional Budget Office. 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, February 14, 2005. 

Hon. PETE V. DOMENICI, Chairman, Committee on Energy and Natural Resources, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 231, the Wallowa Lake Dam 

Rehabilitation and Water Management Act of 2005. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Julie Middleton. 

Sincerely, 

DOUGLAS HOLTZ-EAKIN, 

Director. 

Enclosure. 

S. 231—Wallowa Lake Dam Rehabilitation and Water Management 

Act of 2005 

Summary: S. 231 would authorize the Bureau of Reclamation to 

participate in the rehabilitation of the Wallowa Lake Dam in Oregon and the implementation of the Wallowa Valley Water Management Plan. The bill would limit the bureau’s share of the rehabilitation costs to 80 percent. Assuming appropriation of the necessary amounts, CBO estimates that implementing S. 231 would 

cost $25 million over the 2006–2010 period. In addition, we estimate that implementing S. 231 would result in additional net direct spending by the Bonneville Power Administration (BPA) of $5 

million over the 2006–2010 period. The federal government would 

not hold title to any facility rehabilitated or constructed under this 

bill, nor would the federal government be responsible for the operation and maintenance of those facilities. 

S. 231 contains no intergovernmental or private-sector mandates 

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

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

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Estimated cost to the Federal Government: The estimated budgetary impact of S. 231 is shown in the following table. The costs 

of this legislation fall within budget function 300 (natural resources 

and environment). 

By fiscal year, in millions of dollars— 

2006 2007 2008 2009 2010 

CHANGES IN SPENDING SUBJECT TO APPPROPRIATION 

Rehabilitation Spending by the Bureau of Reclamation: 

Estimated Authorization Level ............................................................. 5 7 7 7 0 

Estimated Outlays ................................................................................ 2 4 7 7 5 

CHANGES IN DIRECT SPENDING 

Net BPA Spending: 

Estimated Budget Authority ................................................................. 5 0 0 0 0 

Estimated Outlays ................................................................................ 2 2 1 (1) (1) 

1 Collections of less than $500,000. 

Basis of estimate: For this estimate, CBO assumes that S. 231 

will be enacted by the end of fiscal year 2005 and that spending 

would occur at the same rate as similar bureau and BPA projects. 

Spending subject to appropriation 

Based on information from the Bureau of Reclamation, CBO estimates that the total cost of rehabilitating the Wallowa Lake Dam 

in Oregon and implementing the Wallowa Valley Water Management Plan would be about $32.6 million. S. 231 would authorize 

the appropriation of $25.6 million for the bureau’s share of the cost 

of those projects. The remaining $7 million would be paid by the 

BPA and the Bonneville Power Foundation, a nonprofit organization. Based on information from the bureau, we expect that rehabilitation of the dam and implementation of the management plan 

would take five years and that funds will be appropriated in roughly equal installments over that period to complete the projects. Assuming appropriation of the authorized amount, we estimate that 

implementing the bill would cost the bureau $25 million over the 

2006–2010 period, and an additional $1 million after that period. 

Direct Spending 

Implementing S. 231 also would result in additional direct spending by BPA of $5 million over the 2006–2010 period for structures 

to allow for safe passage of fish through the Wallowa Lake Dam 

projects authorized in the bill. Such spending is authorized under 

current law, but BPA would not make these investments without 

the bureau’s involvement in the Wallowa Lake projects. Because 

BPA must recover its costs through the sale of electricity, any additional spending would be offset by slightly higher proceeds from 

electricity sales over the next 15 to 20 years. Consequently, BPA’s 

additional spending would have a negligible net budgetary impact 

over many years. 

Intergovernmental and private-sector impact: S. 231 contains no 

intergovernmental or private-sector mandates as defined in UMRA 

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

Estimate prepared by: Federal Costs: Julie Middleton and Lisa 

Cash Driskill. Impact on State, Local, and Tribal Governments: 

Marjorie Miller. Impact on the Private Sector: Selena Caldera. 

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

REGULATORY IMPACT EVALUATION

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

Rules of the Senate, the Committee makes the following evaluation 

of the regulatory impact which would be incurred in carrying out 

S. 231. 

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. 231. 

EXECUTIVE COMMUNICATIONS

The testimony provided by the Department of the Interior at the 

Subcommittee hearing on S. 1355 in the 108th Congress, before the 

Committee adopted an amendment in the nature of a substitute, 

follows: 

STATEMENT OF JOHN W. KEYS III, COMMISSIONER, BUREAU

OF RECLAMATION, DEPARTMENT OF THE INTERIOR

Mr. Chairman and Members of the Subcommittee I am 

John Keys, Commissioner of the Bureau of Reclamation. I 

appreciate the opportunity to present the Department’s 

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

to participate in implementation of the Wallowa Lake Dam 

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

Wallowa Lake Dam Rehabilitation Program and Wallowa 

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

be merit to this proposed project, the Department does not 

support S. 1355, as currently drafted. 

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

Dam safety deficiencies have been identified by the United 

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

Ronde Model Watershed, Reclamation, and other local, 

state, and Federal agencies, developed the Wallowa Lake 

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

environmental issues in the Wallowa River Basin. The 

Dam Rehabilitation Program and Water Management Plan 

is a six year proposal with an estimated total cost of 

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

efforts, under which the Federal government would pay 

$32 million funded through the Bureau of Reclamation. 

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While the programs developed by the ACD and the 

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

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

does not provide for Reclamation’s participation in the 

planning stages of the dam rehabilitation aspects of the 

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

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

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

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

[nit] however, it does not provide administrative authority 

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

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

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

projects and operations. S. 1355 would authorize the use 

of Reclamation funds for a non-Federal purpose. Reclamation funds are limited and are targeted to perform essential functions at our projects, such as security, operations 

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

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

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

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

support activities which detract from high priority work on 

current Bureau of Reclamation facilities. The Department 

cannot, therefore, support S. 1355. 

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

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, the Committee notes that no changes in existing law are made by the bill S. 231 as ordered reported. 

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