```

[Senate Report 109-45]
[From the U.S. Government Publishing Office]

                                                        Calendar No. 64
109th Congress                                                   Report
                                 SENATE
 1st Session                                                     109-45

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

 
                      RIO GRANDE NATURAL AREA ACT

                                _______
                                

                 March 30, 2005.--Ordered to be printed

  Filed, under authority of the order of the Senate of March 17, 2005

                                _______
                                

   Mr. Domenici, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                          [To accompany S. 56]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 56) to establish the Rio Grande Natural 
Area in the State of Colorado, 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. 56 is to establish a 33-mile stretch of 
the Rio Grande River between the Alamosa Wildlife Refuge and 
the Colorado and New Mexico State line as a Natural Area, to be 
administered by the Bureau of Land Management, to promote the 
protection and restoration of the riparian zone of the Rio 
Grande.

                          BACKGROUND AND NEED

    Federal, State, and local officials have looked for a way 
to restore and protect the riparian zone of the Rio Grande 
River in southern Colorado without creating a management 
structure that would conflict with the long-standing water uses 
upstream and the agricultural uses in the San Luis Valley. This 
group has worked together collaboratively to develop a proposal 
for Federal designation that protects the resources of concern 
and that protects property rights and existing uses. S. 56 will 
establish a 33-mile Natural Area along the river consistent 
with these goals.

                          LEGISLATIVE HISTORY

    S. 56 was introduced by Senators Allard and Salazar on 
January 24, 2005. At the business meeting on February 16, 2005, 
the Committee on Energy and Natural Resources ordered S. 56 
favorably reported. A similar bill (S. 1467) was introduced by 
Senator Campbell in the 108th Congress. The Subcommittee on 
Public Lands and Forests held a hearing on S. 1467 on November 
18, 2003 (S. Hrg. 108-321). At the business meeting on June 16, 
2004, the Committee on Energy and Natural Resources ordered S. 
1467 favorably reported (S. Rept. 108-303). S. 1467 passed the 
Senate by unanimous consent, as amended, on September 15, 2004.

                        COMMITTEE RECOMMENDATION

    The Committee on Energy and Natural Resources, in an open 
business session on February 16, 2005, by a voice vote of a 
quorum present, recommends that the Senate pass S. 56.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 entitles the bill the ``Rio Grande Natural Area 
Act''.
    Section 2 provides definitions used in the bill.
    Section 3 provides for the establishment of the Rio Grande 
Natural Area, defines its boundaries as including the river 
from the Alamosa National Wildlife Refuge to the Colorado-New 
Mexico State line and extending \1/4\ mile on either side of 
the river.
    Section 4 establishes the Rio Grande Natural Area 
Commission, which is to be made up of 9members, consisting of 2 
officials of the Department of the Interior, 2 officials of the State 
of Colorado, 1 representative of the Rio Grande Water Conservation 
District, and 4 individuals representing the general public. The 
section also provides guidance on how the Commission will operate.
    Section 5 establishes the powers and duties of the 
Commission.
    Section 6 provides guidance on the preparation of 
management plans, one for the non-Federal lands within the 
Natural Area, prepared by the Commission, and one for the 
Federal lands within the Natural Area, prepared by the 
Secretary of the Interior. The section directs that the 
Secretary and the Commission are to cooperate to ensure that 
the two plans are consistent.
    Section 7 provides self-explanatory direction for the 
administration of the Natural Area. Paragraph 7(a)(2)(D) 
prohibits the construction of water storage facilities in the 
Natural Area. This paragraph is not intended to preclude the 
continuing use and operation, repair, rehabilitation, 
expansion, or new construction of water supply facilities, 
water or wastewater treatment facilities, stormwater 
facilities, public utilities, or common carriers along the Rio 
Grande River and its tributaries upstream of the Natural Area.
    Section 8 describes the effects on water rights, changes to 
stream flow, and private lands.
    Section 9 authorizes appropriation of funds.
    Section 10 directs the termination of the Commission after 
a period of 10 years.

                   COST AND BUDGETARY CONSIDERATIONS

    The following estimate of costs of this measure has been 
provided by the Congressional Budget Office.

S. 56--Rio Grande Natural Area Act

    CBO estimates that S. 56 would not significantly affect the 
Federal budget. The bill could affect direct spending, but we 
estimate that any such effects would be negligible. Enacting S. 
56 would not affect revenues. S. 56 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would impose no costs on 
State, local, or tribal governments.
    S. 56 would establish the Rio Grande Natural Area on 
roughly 10,000 acres of Federal and nonfederal land surrounding 
a 33.3-mile segment of the Rio Grande River in Colorado. The 
Bureau of Land Management (BLM) would manage Federal land 
within the proposed natural area. S. 56 would establish a 
commission to develop and implement a plan to manage nonfederal 
land within the proposed area. Based on information from BLM, 
CBO estimates that increased costs to operate that commission 
and manage Federal land within the area would total less than 
$500,000 annually, assuming the availability of appropriated 
funds.
    The bill would withdraw Federal land within the proposed 
area from programs to develop natural resources. According to 
BLM, that land currently generates no significant receipts and 
is not expected to do so over the next 10 years. Therefore, we 
estimate that the proposed withdrawal could have a negligible 
effect on offsetting receipts (a credit against direct 
spending).
    The CBO staff contacts for this estimate are Megan Carroll 
and Deborah Reis. This estimate was 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. 56.
    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. 56, as ordered reported.

                        EXECUTIVE COMMUNICATIONS

    The views of the Administration were included in testimony 
received by the Committee at a hearing on S. 1467 during the 
108th Congress on November 18, 2003, as follows:

 Testimony of Jim Hughes, Deputy Director, Bureau of Land Management, 
                       Department of the Interior

    Thank you for the opportunity to testify on S. 1467, the 
Rio Grande Outstanding Natural Area Act. The Administration 
supports the purposes and goals of S. 1467. The Administration 
could support the legislation with a number of modifications.

                                s. 1467

    From its headwaters in Colorado's San Juan Mountains, the 
Rio Grande flows south through Colorado, bisecting New Mexico, 
then crossing into Texas where it forms the U.S./Mexico border 
until emptying into the Gulf of Mexico. At 1,885 miles long, 
the Rio Grande is the fifth longest river in North America (and 
among the 20 longest in the world). Its flowing waters have 
been essential to survival for prehistoric, historic, and 
present day populations.
    North from the New Mexico border into Colorado is a 33-mile 
stretch of the Rio Grande River that is outstanding for many 
reasons. Natural and undeveloped, this free flowing river is 
home to extensive wildlife. Significant for its recreational, 
scientific and educational uses, the area is dominated by 
sweeping views and a long history. Through multiple land 
acquisitions from willing sellers, the BLM has acquired a 
continuous 20-mile stretch of lands along the western bank of 
the Rio Grande now designated as the Rio Grande Corridor Area 
of Critical Environmental Concern.
    The people who live in the San Luis Valley have come 
together in a collaborative fashion to find ways to further 
protect and enhance this stretch of this historic river. 
Discussions about protection of the corridor began following 
completion of the BLM's 1991 San Luis Resource Management Plan. 
As part of the plan, BLM conducted a wild and scenic rivers 
eligibility and suitability analysis and ultimately recommended 
that stakeholders interested in the river create ``some 
enduring form of protection.'' The legislation being considered 
today is a result of that stakeholder process.
    S. 1467, the Rio Grande Outstanding Natural Area Act, was 
introduced on July 28th of this year. The bill's stated purpose 
is to conserve, restore, and protect this special resource. It 
does this by establishing the Rio Grande Outstanding Natural 
Area along a 33.3 mile segment of the Rio Grande from the New 
Mexico border north to the Alamosa National Wildlife Refuge in 
a corridor about \1/4\ mile wide on either side of the river. 
The overall area includes over 10,000 acres, approximately 35% 
of which is BLM-managed public land. The remainder is private 
land.
    The bill establishes a commission whose purpose is to work 
with Federal, State and local authorities to develop an 
integrated resource management plan for the area. We support 
this type of collaborative effort. The Secretary's 4Cs envision 
just this type of endeavor. However, as currently drafted, we 
have concerns about the bill's use of a commission as a means 
of advising the Secretary on land management decisions 
affecting this area. Specifically, the bill does not address 
the funding source for the commission, does not make clear the 
nature of the commission's advisory role, or its impact on 
affected private property interests. Given these concerns, we 
believe an advisory council is a more appropriate vehicle for 
this collaboration. Chartered under the Federal Advisory 
Committee Act (FACA), an advisory council would be able to fill 
many of the same roles as the proposed commission. The BLM 
currently works with 39 advisory councils. They range from our 
23 Resource Advisory Councils (RACs), which provide advice on 
multiple use management of public lands within a state or 
region of a state, to area-specific advisory councils, such as 
the Steens Mountain Advisory Council or the Canyons of the 
Ancients National Monument Advisory Committee in southwestern 
Colorado. All recommendations by advisory councils are 
considered by the BLM's State/field offices and by the 
Washington office when making decisions about the management of 
public lands.
    In addition, we would like to work on clarifications to 
this section to ensure that the BLM continues to have final 
responsibility for planning for the Federal lands. A single 
plan covering the entire river corridor is still viable, 
provided it is clear that the BLM has ultimate planning 
authority for the Federal lands. It is our understanding that 
the focus of this process would be restoration of the historic 
riparian community along the river. Specifically, issues of 
livestock movement through the largely unfenced river corridor, 
designation of vehicle access routes to minimize impact on 
riparian vegetation, and management of riparian habitat on BLM 
lands are likely to be addressed.
    Undertaking a management plan is a time-consuming task 
requiring extensive resources and expertise. We believe the 
time deadlines and other specifics of the planning sections 
established in the bill may be overly optimistic. In order to 
ensure a fully cooperative, collaborative, and consultative 
process that is consistent with the National Environmental 
Protection Act (NEPA) and other laws and regulations, we would 
urge longer timeframes. We would be pleased to work with the 
sponsor and the Committee to address this concern.
    While the southern Colorado stretch of the Rio Grande is 
truly outstanding, we would recommend that the sponsor of the 
bill consider whether a different designation for this area 
might be preferred. Currently, the BLM manages only one 
``Outstanding Natural Area'' (ONA), the Yaquina Head ONA, 
located on the Oregon coast. Yaquina Head ONA is a tourist 
destination with an emphasis on visitation. Because visitation 
is not a stated goal in this area, we are concerned that using 
the same terminology could result in confusion. Possible 
alternatives would be a ``cooperative management and protection 
area,'' such as exists in eastern Oregon in the Steens 
Mountains, or ``cooperative river management area.'' We would 
be pleased to work with the sponsor and the Committee to 
resolve this concern.
    There are additional technical issues we would like to work 
on as well. For example, we would like the opportunity to work 
with the sponsor and the Committee on an accurate map of the 
proposed area.
    Additionally, Section 11(a) of the bill calls for the 
revocation of any existing reservations on the public lands 
within the area. There are two such reservations. The first is 
a 1949 administrative withdrawal of approximately 2,700 acres 
for the purpose of future hydroelectric development (this 
withdrawal covers lands both in southern Colorado and northern 
New Mexico.) The second is a 1939 Executive Order creating 
public water reserves for the purpose of livestock and domestic 
access. These reservations are no longer necessary, because in 
the former case, hydroelectric development has been rejected as 
a viable option for this section of the river and in the later 
case because access to the Rio Grande now exists due to 
subsequent BLM land acquisitions. As written, the language only 
revokes the portion of the reservation within the \1/4\ mile 
river corridor, and could result in unnecessary management 
confusion. As all of these reservations are river-based, we 
advocate a complete revocation of the reservations in lieu of a 
partial revocation.
    Section 11(c) of the bill withdraws the public lands within 
the newly designated area from a host of public laws and 
provisions. To avoid confusion, we would recommend a standard 
withdrawal from location, entry, appropriation and/or patent 
under the public land laws and mining laws as well as from 
operations of the mineral leasing, mineral materials, and 
geothermal leasing laws. Such a standard withdrawal will foster 
clear understanding and, we believe, reflects the intent of the 
sponsor.
    The Administration supports section 9(c), 13, and 14 
regarding water rights. This language makes clear that the 
designations in this Act shall not be construed to constitute 
an express or implied water right.
    Mr. Chairman, we believe the goals of this legislation are 
worthy and we support them wholeheartedly. The local support 
for this proposal is just the kind of effort that this 
Department and this Administration encourages. We believe that 
by working together cooperatively, this area of the Rio Grande 
can be a model for responsible stewardship of the land.
    Thank you for the opportunity to testify, I would be happy 
to answer any questions.

                        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. 56, as ordered 
reported.

                                  

```