U.S. GOVERNMENT PUBLISHING OFFICE

28–693 WASHINGTON : 2019

S. HRG. 115–496 

THE BUREAU OF RECLAMATION’S TITLE 

TRANSFER PROCESS AND POTENTIAL BENEFITS 

TO FEDERAL AND NON-FEDERAL STAKEHOLDERS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

WATER AND POWER 

OF THE

COMMITTEE ON 

ENERGY AND NATURAL RESOURCES 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

JANUARY 17, 2018 

( 

Printed for the use of the 

Committee on Energy and Natural Resources 

Available via the World Wide Web: http://www.govinfo.gov 
(II) 

COMMITTEE ON ENERGY AND NATURAL RESOURCES 

LISA MURKOWSKI, Alaska, Chairman 

JOHN BARRASSO, Wyoming 

JAMES E. RISCH, Idaho 

MIKE LEE, Utah 

JEFF FLAKE, Arizona 

STEVE DAINES, Montana 

CORY GARDNER, Colorado 

LAMAR ALEXANDER, Tennessee 

JOHN HOEVEN, North Dakota 

BILL CASSIDY, Louisiana 

ROB PORTMAN, Ohio 

SHELLEY MOORE CAPITO, West Virginia 

MARIA CANTWELL, Washington 

RON WYDEN, Oregon 

BERNARD SANDERS, Vermont 

DEBBIE STABENOW, Michigan 

JOE MANCHIN III, West Virginia 

MARTIN HEINRICH, New Mexico 

MAZIE K. HIRONO, Hawaii 

ANGUS S. KING, JR., Maine 

TAMMY DUCKWORTH, Illinois 

CATHERINE CORTEZ MASTO, Nevada 

TINA SMITH, Minnesota 

SUBCOMMITTEE ON WATER AND POWER

JEFF FLAKE, Chairman 

JOHN BARRASSO 

JAMES E. RISCH 

MIKE LEE 

BILL CASSIDY 

ROB PORTMAN 

SHELLEY MOORE CAPITO 

CATHERINE CORTEZ MASTO 

RON WYDEN 

BERNARD SANDERS 

JOE MANCHIN III 

TAMMY DUCKWORTH 

TINA SMITH 

BRIAN HUGHES, Staff Director 

PATRICK J. MCCORMICK III, Chief Counsel 

LANE DICKSON, Professional Staff Member 

MARY LOUISE WAGNER, Democratic Staff Director 

SAM E. FOWLER, Democratic Chief Counsel 

CAMILLE TOUTON, Democratic Professional Staff Member 
(III) 

C O N T E N T S 

OPENING STATEMENTS 

Page 

Flake, Hon. Jeff, Subcommittee Chairman and a U.S. Senator from Arizona ... 1 

King, Jr., Hon. Angus S., Subcommittee Ranking Member and a U.S. Senator 

from Maine ........................................................................................................... 7 

WITNESSES 

Ewell, Austin, Deputy Assistant Secretary for Water and Science, U.S. Department of the Interior ...................................................................................... 8 

Arrington, Paul L., Executive Director/General Counsel, Idaho Water Users 

Association, Inc. ................................................................................................... 13 

Brown, Jerry, General Manager, Contra Costa Water District ........................... 21 

DeVries, Michael, General Manager of Metropolitan Water District of Salt 

Lake & Sandy, and Director of Provo River Water Users Association ............ 27 

Phillips, Jason, Chief Executive Officer, Friant Water Authority, CA ............... 33 

ALPHABETICAL LISTING AND APPENDIX MATERIAL SUBMITTED 

Arrington, Paul L.: 

Opening Statement ........................................................................................... 13 

Written Testimony ............................................................................................ 15 

Response to Question for the Record .............................................................. 57 

Brown, Jerry: 

Opening Statement ........................................................................................... 21 

Written Testimony ............................................................................................ 23 

Responses to Questions for the Record ........................................................... 59 

CleanWater Services: 

Letter for the Record ........................................................................................ 72 

DeVries, Michael: 

Opening Statement ........................................................................................... 27 

Written Testimony ............................................................................................ 29 

Response to Question for the Record .............................................................. 61 

Ewell, Austin: 

Opening Statement ........................................................................................... 8 

Written Testimony ............................................................................................ 10 

Responses to Questions for the Record ........................................................... 55 

Family Farm Alliance: 

Statement for the Record ................................................................................. 2 

Flake, Hon. Jeff: 

Opening Statement ........................................................................................... 1 

King, Jr., Hon. Angus S.: 

Opening Statement ........................................................................................... 7 

Phillips, Jason: 

Opening Statement ........................................................................................... 33 

Written Testimony ............................................................................................ 35 

Responses to Questions for the Record ........................................................... 69 

(1) 

THE BUREAU OF RECLAMATION’S 

TITLE TRANSFER PROCESS AND 

POTENTIAL BENEFITS TO FEDERAL 

AND NON-FEDERAL STAKEHOLDERS 

WEDNESDAY, JANUARY 17, 2018 

U.S. SENATE, 

SUBCOMMITTEE ON WATER AND POWER, 

COMMITTEE ON ENERGY AND NATURAL RESOURCES, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 11:00 a.m. in 

Room SD–366, Dirksen Senate Office Building, Hon. Jeff Flake, 

Chairman of the Subcommittee, presiding. 

OPENING STATEMENT OF HON. JEFF FLAKE, 

U.S. SENATOR FROM ARIZONA 

Senator FLAKE [presiding]. This hearing of the Senate Energy 

and Natural Resources Subcommittee on Water and Power will 

come to order. 

The purpose of today’s hearing is to receive testimony on the Bureau of Reclamation’s title transfer process and potential benefits 

to federal and non-federal stakeholders. This is our latest in a series of hearings and roundtables as the Subcommittee prepares a 

water supply bill to deal with some of the pressing needs in Arizona and throughout the West. 

We have heard proposals on better managing existing infrastructures, streamlining the permitting process for new infrastructure, 

storing floodwater for future use and improving access on project 

financing. 

I look forward to today’s discussion on how local ownership of 

water facilities can help speed up maintenance and improvements 

to Western water infrastructure. Voluntary title transfers are also 

an opportunity to relieve pressure on the federal budget. 

Represented on the panel today are a number of water agencies 

who have repaid their obligations to the Bureau of Reclamation 

and have taken over operations of their projects. We also have 

panel members whose agencies have successfully received the title 

to their projects, and I also look forward to learning more about 

their experiences. 

I would like to add into today’s record the prepared testimony of 

Dan Keppen, Executive Director of the Family Farm Alliance, an 

organization that has pushed for improvements to the title transfer 

process for decades. 

[The information referred to follows:] 
2 

Testimony for the Hearing Record of Dan Keppen 

Executive Director 

The Family Farm Alliance 

Submitted to the United States Senate 

Committee on Energy and Natural Resources 

Water and Power Subcommittee 

Hearing to Examine the Bureau of Reclamation's Title Transfer Process and 

Potential Benefits to Federal and Non-Federal Stakeholders 

January 17, 2018 

Chairman Flake, Ranking Member King, and Subcommittee Members: 

Thank you for this opportunity to present testimony for the hearing record on behalf ofthe Family 

Farm Alliance (Alliance). My name is Dan Keppen, and I serve as the executive director for the 

Alliance, which advocates for family fanners, ranchers, irrigation districts, and allied industries in 

seventeen Western states. The Alliance is focused on one mission- To ensure the availability of 

reliable, affordable irrigation water supplies to Western fanners and ranchers. Our members 

include irrigation districts and water agencies across the West that are responsible for the operation 

and maintenance of most of the Bureau of Reclamation's water supply and distribution facilities. 

Several of our members have worked with the federal government over the past two decades to 

transfer all or parts of Bureau of Reclamation (Reclamation) projects to these local operating 

entities. In filet, I would like to recognize two of the hearing witnesses, Mr. Paul Arrington, 

executive director of the Idaho Water Users Association, in that one of the first title transfers of a 

Reclamation district was approved by I 05th Congress to the Burley Irrigation District (IDAHO) in 

1998 and was facilitated by the Alliance, and Mr. Jason Phillips, CEO of the Friant Water 

Authority, a founding member of the Alliance. 

The Family Farm Alliance supports the transfer of Reclamation-owned facilities to willing non~ 

federal project beneficiaries, and would advocate for congressional authorization for the Secretary 

of the Interior to better facilitate the timely transfer of appropriate Reclamation projects or facilities 

into non-federal ownership. 

Overview of Family Farm Alliance Philosophy 

The members of the Family Farm Alliance believe that streamlined and efficient federal regulation 

and decision-making are the keys to sound Western water policy. Wherever possible and 
3 

practicable, meaningful delegation of decision-making authority and ownership responsibility 

should be transferred to the local level. 

The Alliance believes that iri the water arena, a "one size fits all approach;' dictated from 

Washington is counterproductive and ineffective. Federal laws and regulations should be drawn 

to recognize that facts and circumstances can vary significantly from region to region. Given the 

federal ownership and liability for each Reclamation-owned water project, bureaucratic 

inefficiencies sometimes overlay the process of managing and operating this important water 

infrastructure, even though operations and maintenance are typically performed by non-federal 

state-based local entities, such as irrigation or water districts. Such facilities, known as "transferred 

works", where project operation, maintenance and replacement responsibilities (other than title) 

are contracted to the non-federal entity, are still owned by the federal government, superimposing 

a layer of bureaucratic federal control over a project that has, for all intents and purposes, been 

transferred (other than in title) to the non-federal entity. Many of these projects are ripe for title 

transfer, yet there remain many barriers to an efficient transfer of title out of federal ownership to 

thes.e local operating entities. 

Role of Family Farm Alliance in Advancing Project Title Transfers 

As noted above, Reclamation's transfer ofcanals, natural flow water rights, pumping plants, roads 

and other assets to Burley Irrigation District (BID) in 2000 was a watershed moment in the history 

of Western irrigated agriculture and the title transfer process. In the years leading up to that 

transfer, the BID demonstrated its ability to operate, maintain and manage its facilities in a highly 

professional and competent inrumer. The effort to transfer the facilities into BID ownership took 

eight years after the district completed repayment of the Project's cons1Tuction cost 

The BID transfer was a primary objective of an initiative launched by the Alliance in 1997. That 

year, the Alliance distributed a survey to determine the level of interest among our members in 

developing a mote coordinated and concerted effort to facilitate Reclamation project transfers to 

local water users. We decided to gather this infonnation because of the lack of progress on pending 

Jegislatio11 in Congress and a less than acceptable ability of Reclamation to process project transfer 

requests from local interests on a timely and effective basis. 

Based on an overwhelmingly positive response received in these surveys, the Alliance Board of 

Directors established a "Project Transfer Council" and launched a related pilot project The 

primary objective was to lay the groundwork for concerted Congressional action on project 

transfers with an immediate focus on helping both the Carlsbad (NEW MEXICO) and Burley 

irrigation districts with their project transfer legislation, both in Congress and with the Clinton 

Administration. By assisting both districts both of which had been pursuing facilities transfers 

for quite some time and who were at the leading edge of title transfer efforts we intended to 

create positive precedents others could follow. 

In late 1997, the Alliance conducted a variety of organized activities intended to.facilitate positive 

Congressional action on pending project tTatlsfer legislation. That effort was successful, and 

ultimately led to the historic trru1sfer to BII:l two years later. Over a dozen other projects and 

facilities have been transferred to local interests since that time. Those local agencies are usually 

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4 

the irrigation or water district that has fulfilled or is close to fulfilling its obligation to pay for 

construction of the project. 

Benefits. and Regulatory Challenges Associated with Title Transfers 

The Alliance believes title transfers are one of several positive means of strengthening control of 

water resources at the local level. In addition, they can help reduce federal costs .and liability, and 

allow for a better allocation of federal resources. Operational decisions are more timely and many 

times are more cost effective when made at the local level. Fmther, maintenance and rehabilitation 

of our aging federally owned facilities is more effectively financed and constructed by the local 

agencies currently regponsible for these activities .. Title transfer allows for th!;lse operational and 

maintenance benefits to thrive, as title ownership of these facilities is placed. with the local 

beneficiaries and the irrigation districts involved In managing these projects for their benefit. This 

allows for a broader portfolio of financing alternatives for cost effective reinvestment in these 

facilities to be made available at the local level. 

Despite the benefits, local water agenCies are many times discouraged from pursuing title lransfer 

because the process is expensive and slow. Environmental analyses cru1 be time-consmning, even 

for uncomplicated projects that will continue to be operated in the same mmmer as they always 

have been. National Environmental Policy Act (NEPA) and the procedures required to address real 

property and cultural and historic preservation issues are often very inefficient, time consuming 

and .expensive. Moreover, every title transfer currently requires an act of Congress to accomplish, 

regardless of whether the project covers 1 0 acres or 1 OO,OOOacres. 

''Managing for Excellence" Approach to Title Transfers 

The challenge associated with title transfers has been. a major concem for our members in recent 

years, as welL We spent considerable time ten years ago working with Reclamation on the title 

transfer process via the "Managing for Excellence" (M4E) process. M4E was Reclamation's 

response to Managing Construction andlnfi·astructure in the 21" Century Bureau o.fReclamation, 

a cOmprehensive report completed in 2006 by the National Research Council (NRC) of the 

National Academy of Sciences. Executing the action plan has been primary initiative fot 

Reclamation. Alliance engagement in M4E and the related NRC study has been a priority with the 

Alliance since early 2005. 

Through the M4E process, Reclamation developed a legislative concept for a prograrnmaticc 

approach intended to simplify transfer offederally owned irrigation facilities to the non-federal 

operating entity. The idea was to create a set of criteria to identify projects whose transfer to local 

ownership would not impact the environment or taxpayers~ Facilities meeting the criteria could 

be transferred out of fede1'al ownership by the Secretary of the Interior under a new standing 

authority to be granted by Congress. The Reclamation approach envisioned the use of existing 

procedures (such as a categorical exclusion) under the NEP A to.strean1line environmental reviews 

for proposed title transfers meeting the programmatic criteria. 

In essence, Reclamation's approach would have requested that Congress delegate to the Seqretary 

of the Interior the authority to transfer the ownership of eligible water projects to the non" federal 

3 
5 

operating entity. Consistent with the .legislation, this could greatly reduce institutional barriers, 

such as time and expense that can impede transfers beneficial to both local interests and the federal 

govenunent. 

The Complexities and Importance of Project I Facilities Title Transfers 

Reclamation projects were built to grow the West, with the implied intent that, once the repayment 

contracts were paid off, Reclamation would. turn these projects over to the local districts to operate, 

and in due time, transfer the title to the facilities. That simple concept has morphed over the years 

into a process that can be expensive, uncertain and very lengthy. 

The Alliance believes. Congress could make the process of title transfer for some projects much 

more user-friendly through this approach; however, we. question what kind of transfer process the 

Secretary and Reclamation reconnnend. Federal legislation could be inttoduced to create an 

improved, more efficient manner for title transfers to move forward, and Congress must continue 

to oversee Reclamation's implementation of any legislation in order tO not create more barriers in 

the process. 

The Alliance believes such legislation would help those project beimficiaries interested in title 

transfer, in that the process of passing federal legislation for each and every title transfer would be 

greatly simplified through Secretarial order. However, some projects will continue to be;: more 

complex and still require lengthy NEPA, Endangered Species Act (ESA) and other expensive 

processes even with any new authorities provided through legislation. 

Take, for example, the Newlands Project in Nevada, the oldest Reclamation project in the W<>St. 

Today, almost 100 years after taking over the operations and maintenance responsibilities of the 

New lands Project and after having repaid all project construction costs, the transfer of Project 

facilities to the Truckee-Carson Irrigation District (TCID) has not been achieved. 

Part of the reason transfer has not occurred relates to funding. TCID has analyzed the prospect of 

a facilities transfer several times, only to conclude that the NEPA process would cost millions of 

dollars, and resulting in an uncertain outcome. Some of the reasons for this expense include the 

fact that TCID has been for years dealing with complex issues in the operation of the Project related 

to the ESA, Tribal water rights, and the fact that the largest land owner in the TCID is the U.S. 

Fish and Wildlife Service. 

TCID could not sustain such an outlay and still financially support its operational and maintenance 

duties. For example, TCID is currently planning to design, fund and consttuct the pennanent 

repair to the Truckee Canal. The NEPA work associated with developing an Extraordinary 

Operatio11 and Maintenance Environmental Impact Statement for that project alone will exceed $8 

million, an amount that exceeds the district's annual budget. District managers believe that the 

cost and scope of an environmental review associated with a proposed New lands Project facilities 

transfer would dwarf those associated with this canal repair effort. 

The magnitude of the cost and time !·equired to address his.toric preservation and NEPAissues for 

more complicated project title transfers in other parts of the West is staggering. This has PI'Oved to 

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be daunting for other districts and effectively dampens enthusiasm for some districts to.even begin 

undertaking transfer planning efforts. It is clear to the Alliance that other congressional efforts to 

streamline and simplifY environmental review processes could greatly benefit these more complex 

title transfers. 

This is abundantly clear when considering several of the other more controversial Reclamation 

projects for example, the Central Valley Project (CALIFORNIA) or the Klamath Project 

(CALIFORNIA/OREGON). In order for title transfer to be successful for these and other more. 

complicated projects, Congress must continue to play a major role in making title transfers more 

efficient and streamlined. 

The Alliance believes the importance of transfers .should be re-examined, with the understanding 

that there are many benefits to local entities and to the federal government that are yet to be 

measured. As outlined above, we know there are irrigation districts successfully operating and 

maintaining transferred works in the West that ;tre interested in acquiring title to Reclamation 

facilities. Experience throughout the West demonstrates that when control and ownership of 

projects is assumed by local interests, the. projects are run more cost effectively and with far fewer 

items of deferred maintenance and less bureaucratic red-tape. In addition, the federal govemment 

holds title to these facilities only because federal funds that have long since been repaid were used 

to help construct them. 

Reclamation and Western water users continue to confront the massive challenges posed by our 

aging water infrastructure. Traditional funding opportunities that used to be provided by the federal 

government to tackle aging waterinfrastructute no longer exist. Now, where limited federal dollars 

are available for infrastructure projects, they are stretched to meet the competing needs· of 

highways, airports, watet and sewer projects in urban areas. However, if a local district gains title 

to its facilities, it can take advantage of several financing opportunities and partner with other local, 

state; federal and /or non-governmental programs to rehabilitate their facilities. 

Finally, one other barrier for many title transfers in the past has been the continued use of federal 

project power at cost chased contracted rates to operate ReClamation projects after a title transfer. 

Many ti1nes, Reclamation projects were developed to include hydroelectric or other power sources 

that run pumps and other facilities at a low cost, thus ensuring these water supply development 

projects successfully and economically operated throughout their history. In many cases, these 

projects continue to require this power at these project rates in order to remain economically viable 

for the farms and ranches dependent on the water supply. The Alliance believes tlri&. issue must be 

resolved as many future title transfers will depend on the continuation of project power provided 

at current cost-based contracted rates. 

On behalf of the Family Farm Alliance, I would like to thank Chairman Flake, Ranking Member 

King, and the Subcommittee for holding this important oversight hearing, Thank you for this 

opportunity to present the views of the Alliance for the hearing record. 

5 
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Senator FLAKE. With that, I will now turn to the Ranking Member, Senator King. 

STATEMENT OF HON. ANGUS S. KING, JR., 

U.S. SENATOR FROM MAINE 

Senator KING. Thank you, Mr. Chairman, I am delighted to be 

here this morning. 

This is one of those issues where there are significant differences 

between regions of the country. 

In my State of Maine, water is an enormous asset. I remember 

having officials of a foreign company fly over Maine, and I asked 

them their impression. They said one word, water. They had never 

seen so many lakes and streams and access to water. 

This is particularly an issue that is of grave importance to the 

West, but it is one that I am interested in and I am delighted to 

participate in this hearing. 

We are going to talk today about the title transfer process where 

the Bureau of Reclamation does work with interested parties to 

transfer ownership of certain facilities. These transfers currently 

require an Act of Congress. They are legislative approaches that we 

are talking about that would remove Congressional approval requirement in some processes, and we are going to hear more about 

some of those opportunities today. 

When done appropriately, I believe that title transfers can provide mutual benefits, and I hope we are going to hear about this 

from you gentlemen today, to the government and to the project 

partners. It can help address aging infrastructure, provide greater 

autonomy and flexibility in managing the facilities. 

The parameters that define which projects make good candidates 

for title transfer are important, however. Not all title transfer proposals will be right for all parties and we need to ensure that the 

operation of these facilities are done in accordance, of course, with 

our environmental laws. 

I look forward to hearing from our witnesses and learning more 

about the different perspectives of how title transfer can be an important tool in upgrading our country’s aging infrastructure, if done 

in the right way. 

Thank you, Mr. Chairman. 

Senator FLAKE. Thank you, Senator King. 

Thank you for joining us today. We appreciate your expertise. We 

will go ahead and do a couple of introductions and move on to the 

testimony. 

We begin this panel with Mr. Austin Ewell, Deputy Assistant 

Secretary for Water and Science at the U.S. Department of the Interior. Next, we will have Mr. Paul Arrington, Executive Director 

and General Counsel of the Idaho Water Users Association. Then 

we will have Mr. Jerry Brown, General Manager of Contra Costa 

Water District. Next is Mr. Mike DeVries, General Manager for the 

Metropolitan Water District of Salt Lake & Sandy, as well as the 

Director of Provo River Water Users Association. Finally, we have 

Mr. Jason Phillips, CEO of Friant Water Authority. 

I want to thank you for the testimony that you will provide 

today. Please limit your testimony to no more than five minutes, 
8 

if possible, so we can maximize time for questions. Your full remarks, obviously, will be part of the record. 

With that, the Committee recognizes Mr. Ewell. 

STATEMENT OF AUSTIN EWELL, DEPUTY ASSISTANT SECRETARY FOR WATER AND SCIENCE, U.S. DEPARTMENT OF 

THE INTERIOR 

Mr. EWELL. Good morning. Thank you very much for having me 

here today. I’d also like to thank Lane for organizing and helping 

with the rescheduling. 

Chairman Flake, Ranking Member King and members of the 

Subcommittee, I am Austin Ewell, the Deputy Assistant Secretary 

for Water and Science at the Department of the Interior. The subject of today’s hearing is one with which the Department is very 

familiar. 

The Department strongly supports Congress’ efforts to better facilitate the title transfer of Reclamation facilities to non-federal entities. We appreciate the opportunity to engage in this discussion 

to share our knowledge and experiences with title transfers and 

learn from the stakeholders sitting alongside me today. 

For many years, Reclamation and interested stakeholders have 

been working together, along with other federal and state agencies 

and interested stakeholders, to negotiate the terms and conditions 

of specific title transfers. Unfortunately, even for simple transfers, 

this can be a time-consuming and costly process. 

In many cases, otherwise non-complicated candidates for title 

transfer have not proceeded because of the cost and time it takes 

to complete the required process and receive Congressional approval. 

Since 1996, Reclamation has transferred title to thirty projects or 

parts of projects across the West pursuant to various Acts of Congress. These title transfers generally have provided mutual benefits 

to both Reclamation and the non-federal entities involved. 

Over time Reclamation recognized that there were many more 

entities that might be good candidates to take title, but had not 

pursued it for various reasons. In an effort to work with stakeholders who are interested in pursuing title transfers, Reclamation 

developed a process to facilitate additional title transfers in a consistent and comprehensive way known as the Framework for the 

Transfer of Title. 

This process has allowed interested non-federal entities to work 

with and through Reclamation to identify and address issues that 

will enable title transfers to move forward. We have found that this 

process allows interested parties to address issues up front, before 

going to Congress to obtain a title transfer authorization. And 

while we have had some success, we see that the current process 

can be improved upon as it still takes too long and discourages 

some good candidates from coming forward. 

The Department would welcome the opportunity to work with 

the Committee to draft title transfer legislation. There are a few 

key considerations which we believe should be considered in any 

potential legislation. First, the legislation should authorize the Secretary, through the Bureau of Reclamation, to administratively 

transfer title to projects and facilities based upon the establishment 
9 

of specific eligibility criteria. Second, the process to develop title 

transfer agreements under a title transfer program should be open, 

public, and transparent. Third, as there currently is no categorical 

exclusion that applies to title transfers under the National Environmental Policy Act, Reclamation believes that the development of 

a categorical exclusion, depending upon its structure and content, 

would be a logical and helpful tool. Fourth, the existence of hydropower on a Reclamation project provides additional complexities 

that need to be addressed by legislation, including issues related to 

Federal Energy Regulatory Commission licensing and federal 

power marketing by the Power Marketing Administrations. Because of this complexity, Reclamation has not transferred any facilities that have included power generation facilities, but we are 

open to working through these matters with the Committee and 

our stakeholders. Finally, Reclamation recommends statutory language to ensure Reclamation law continues to control project water 

regardless of the title transfer and especially in circumstances 

where only a portion of a project is being transferred. This is important to ensure the transfer does not have an adverse impact on 

other project beneficiaries. 

In conclusion, we are encouraged by the Committee’s interest in 

title transfer of Reclamation facilities and look forward to working 

with the Congress to achieve our mutual goal of ensuring title 

transfers are beneficial to all parties. 

Thank you very much. 

[The prepared statement of Mr. Ewell follows:] 
10 

Statement of Austin Ewell 

Deputy Assistant Secretary for Water and Science 

U.S. Department of the Interior 

Before the 

Energy and Natural Resources Committee 

Subcommittee on Water and Power 

U.S. Senate 

on 

Reclamation Title Transfer Practices 

January 17,2018 

Chairman Flake, Ranking Member King, and members of the Subcommittee, I am Austin Ewell, 

the Deputy Assistant Secretary for Water and Science at the Department of the Interior. I am 

pleased to provide the views of the Department of the Interior (Department) on title transfer 

practices at the Bureau of Reclamation (Reclamation). The subject oftoday's hearing is one with 

which the Department is very familiar. 

The Department strongly supports Congress' efforts to better facilitate the title transfer of 

Reclamation facilities to non-Federal entities. We appreciate the opportunity to engage in this 

discussion to share our knowledge and experiences with title transfers and learn from the 

stakeholders sitting alongside me today. As you may know, Reclamation provided testimony at a 

House title transfer hearing in June 2017, and we are tracking the issue closely during this 

Congress. This statement draws upon many of the themes expressed at that hearing. 

Background 

Under Reclamation law, title to Reclamation projects, lands, and facilities must remain with the 

United States until such time as a title transfer is authorized by Congress. For many years, 

Reclamation and interested stakeholders have been working together, along with other federal 

and state agencies and interested stakeholders, to negotiate the terms and conditions of specific 

title transfers. Unfortunately, even for simple transfers, this can be a time consuming and costly 

process. In many cases, otherwise non-complicated candidates for title transfer have not 

proceeded because of the cost and time it takes to complete the required process and receive 

congressional approval. 

Since 1996, Reclamation has transferred title to thirty (30) projects or parts of projects across the 

West pursuant to various acts of Congress. These title transfers generally have provided mutual 

benefits to both Reclamation and the non-federal entities involved. Over time, Reclamation 

recognized that there were many more entities that might be good candidates to take title, but had 

not pursued it for various reasons. In an effort to work with stakeholders who are interested in 

pursuing title transfers, Reclamation developed a process to facilitate additional title transfers in 

a consistent and comprehensive way known as the Framework/or the Transfer of1ltlez This 

1 https:l/www.usbr.gov/title/framcwork _title _transfer_ 2004 _revision. pdf 

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process has allowed interested non-federal entities to work with and through Reclamation to 

identify and address issues that will enable title transfers to move forward. We have found that 

this process allows interested parties to address issues up front, before going to Congress to 

obtain a title transfer authorization. And while we have had some success, we see that the current 

process can be improved upon as it still takes too long and discourages some good candidates 

from coming forward. 

Our strong support for title transfer legislation was referenced in the President's Fiscal Year 

2018 budget request, which identifies "Bureau of Reclamation Title Transfer" as a legislative 

proposal we support. Our support for this concept is grounded in our aim to enable local water 

managers to make their own decisions to improve water management at the local level, while 

allowing Reclamation to focus management efforts on projects with a greater federal nexus. The 

enactment of title transfer legislation would be the culmination of Reclamation's longstanding 

experience with interested stakeholders. 

Important Considerations for Title Transfer Legislation 

Reclamation and the Department would welcome the opportunity to work with the Committee to 

draft Title Transfer legislation, and as stated at the House hearing referenced previously, there 

are a few key considerations which we believe should be considered in any potential legislation. 

First, the legislation should authorize the Secretary, through the Bureau of Reclamation, to 

administratively transfer title to projects and facilities based upon the establishment of specific 

eligibility criteria. Those criteria should focus on ensuring that the terms and conditions of title 

transfer agreements protect the project purposes for which the facilities were authorized; protects 

the contractors and the other stakeholders of the facilities who enjoy benefits from these 

facilities, protects the public and tribal entities as well as the environmental resources that may 

be impacted by the Project facilities and protect the Federal financial investment. We look 

forward to working with the Committee on establishing and defining these criteria. 

Second, the process to develop title transfer agreements under a title transfer program should be 

open, public, and transparent. 

Third, as there currently is no categorical exclusion that applies to title transfers under the 

National Environmental Policy Act (NEP A), Reclamation believes that the development of a 

categorical exclusion, depending upon its structure and content and subject to approval by the 

Council on Environmental Quality, would be a logical and helpful tooL We would like to work 

with the Committee to clarify and define the conditions and requirements that ought to be 

included in the categorical exclusion that would be developed as a result of any potential 

legislation. 

Fourth, the existence of hydropower on a Reclamation project provides additional complexities 

that need to be addressed by legislation, including issues related to Federal Energy Regulatory 

Commission (FERC) licensing and federal power marketing by the Power Marketing 

Administrations. For example, the transfer of Reclamation-owned and operated hydropower 

facilities to a non-federal entity would require the non-federal entity to obtain a FERC license to 

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continue operation of the hydropower facilities. This would likely add additional costs and 

burdens to the non-federal entity in that they would be required to both apply for the FERC 

license, an extensive process, and then once the FERC license is issued, to adhere to any 

operational conditions associated with that license. Historically, because of this complexity, 

Reclamation has not transferred any facilities that have included power generation facilities, but 

we are open to working through these matters with the Committee and our stakeholders. 

Fifth, Reclamation recommends statutory language to ensure Reclamation law continues to 

control project water regardless of the title transfer and especially in circumstances where only a 

portion of a project is being transferred. This is important to ensure the transfer does not have an 

adverse impact on other project beneficiaries. 

Conclusion 

Reclamation strongly supports expanding the number of projects and facilities that are 

transferred out ofF ederal ownership and we believe that the process for making this happen is 

key to our success. We have found that we are most successful when the process is collaborative, 

open, and inclusive so that all the stakeholders with an interest in the operations of the facilities 

have an opportunity to have their concerns and views heard. We believe a legislative 

pronouncement containing the concepts summarized in this statement will encourage more 

entities to pursue title transfer while making the process itself smoother and more trouble free. 

In conclusion, we are encouraged by the Committee's interest in title transfer of Reclamation 

facilities, and look forward to working with the Congress to achieve our mutual goal of ensuring 

title transfers are beneficial to all parties. 

This concludes my written statement. I would be pleased to answer questions at the appropriate 

time. 

3 
13 

Senator FLAKE. Thank you. 

Mr. Arrington. 

STATEMENT OF PAUL L. ARRINGTON, EXECUTIVE DIRECTOR/ 

GENERAL COUNSEL, IDAHO WATER USERS ASSOCIATION, INC. 

Mr. ARRINGTON. Thank you, Senator Flake. 

Chairman Flake, Ranking Member King, members of the Subcommittee, my name is Paul Arrington. I’m the Executive Director 

and General Counsel for the Idaho Water Users Association. I appreciate the opportunity to present testimony today on behalf of 

Idaho Water Users relating to the Bureau of Reclamation’s title 

transfer process. 

At the outset, I’d like to express my appreciation to Lane and 

other members of the Committee staff for working to coordinate 

this hearing. I also want to express my appreciation to the Committee for moving forward with the nomination of Brenda Burman 

as a Commissioner of Reclamation. She has long been a friend of 

the water user community, and we look forward to working with 

her. 

In Idaho, we feel especially lucky. We also get the opportunity to 

work with Lorri Grey, the Reclamation’s Regional Director. Like 

Commissioner Burman, she is a friend of the water community. In 

fact, Lorri and I were chatting just last night about this testimony, 

and she reiterated to me that title transfer is a mutually beneficial 

program and that a streamline process is needed for many title 

transfer processes or opportunities. 

One of the reasons I believe I was asked to testify today is because Idaho has a fairly rich history involving title transfer. In 

fact, one of the first successful Reclamation title transfers occurred 

in Idaho with the Burley Irrigation District in 1998. Since that 

time, three additional, excuse me, three additional entities have 

succeeded in obtaining title transfer. Another one is in the process 

right now and two others will commence the process shortly. 

We’ve talked a little bit today through testimony and in opening 

comments about the benefits associated with title transfer, local 

control of water resources, reducing or eliminating federal cost and 

liability associated with owning aging infrastructure, greater flexibility in access to financing in the operation and control of facilities, greater enforcement of easements and easier permitting for 

things like easement crossings. 

At the end of the day, in short, title transfer allows local water 

users to quickly and efficiently manage their system, something 

that can be difficult under federal ownership. The time and expense required due to NEPA analysis and getting/obtaining Congressional approval can be daunting and leads some to avoid going 

through the title transfer, some that might be qualified for it. In 

Idaho’s experience, a title transfer can take upwards of ten years 

and $200,000 to accomplish. 

But there is another hurdle to title transfer that is impacting 

Idaho entities’ desire and willingness to go through the process. 

That is the risk of losing project power through the title transfer 

process. This power provided a cost-based contracted rates is vital 

to the continued viability of these Reclamation projects. 
14 

One such entity is the A&B Irrigation District in Southern Idaho. 

This is an entity that relies on project power to maintain affordable 

assessments and the risk of losing project power causes it to choose 

not to participate in the title transfer process. A&B is located in 

a center of Idaho’s Snake River plain. For nearly three decades 

water users throughout the plain have experienced declining water 

supplies. Wells have been redrilled, moved and abandoned as water 

users have worked to protect their water supplies. 

Priority to the Administration is the norm throughout the plain. 

In 2009, the Idaho Water Resource Board adopted a comprehensive 

aquifer management plan that included a goal to change the aquifer budget by 600,000 acre-feet annually. The Department of Water 

Resources recently designated the area a groundwater management area. 

Recharge is a tool to help this water supply. Importantly, areas 

accessible by A&B’s canals are prime recharge areas that will benefit the whole plain, including Reclamation storage projects. Unfortunately, the risk of losing its project power, though, will prevent, 

may prevent, A&B from taking the opportunity to participate in 

the title transfer process. 

While a valuable tool, title transfer can be approved. As this Subcommittee may contemplate possible legislation on title transfer, 

we would suggest the following considerations: First, not every title 

transfer should require a full NEPA analysis. As Mr. Ewell just 

discussed, there are opportunities, potentially, to have a categorical 

exemption for certain title transfers. Second, not all title transfers 

should require an Act of Congress. And third, access to project 

power should not be eliminated simply because of the title transfer 

process. Provisions should be included to provide that in certain 

circumstances access to project power may be maintained. 

Thank you for the opportunity to testify today. I look forward to 

answering any questions you might have. 

[The prepared statement of Mr. Arrington follows:] 
15 

Testimony of Paul L. Arrington 

Executive Director I General Counsel 

Idaho Water Users Association, Inc. 

Submitted to the United States Senate 

Energy and Natural Resources Committee 

Subcommittee on Water and Power 

Hearing on the Bureau of Reclamation's Title Transfer Process 

January 17, 2018 

Chairman Flake, Ranking Member King, and Subcommittee Members: 

Thank you for this opportunity to present testimony on behalf of Idaho water users relating to the 

Bureau of Reclamation's (Reclamation) Title Transfer process. My name is Paul Arrington. I am 

Executive Director and General Counsel for the Idaho Water Users Association (IWUA). We 

represent approximately 300 canal companies, irrigation districts, water districts, ground water 

districts, municipal and public water suppliers, hydroelectric companies, aquaculture interests, 

agri-businesses, professional firms, and individuals- all dedicated to the wise and efficient use 

of Idaho's water resources. 

IWUA is closely associated with both the National Water Resources Association (NWRA) and 

the Family Farm Alliance. These organizations represent agricultural and municipal water 

providers, family farmers, ranchers and other water users throughout the western United States. 

Together, our groups work tirelessly to promote, aid and assist the development, control, 

conservation, preservation and utilization of Idaho's water resources- as well as the water 

resources of other western states. The Family Farm Alliance has provided the Subcommittee 

with additional written testimony on this matter. In addition, on June 8, 2017, both the Family 

Farm Alliance and NWRA submitted testimony relating to the then draft Reclamation Title 

Transfer Act in the House of Representatives (now H.R. 3281). 

Idaho's Rich History of Title Transfer 

Idaho has a rich history of Title Transfer involving Reclamation projects. In fact, one of the first 

Title Transfers of a Reclamation project involved the Burley Irrigation District in Southern Idaho 

in 1998. 

Since that time, other successful Idaho Title Transfers include Nampa & Meridian Irrigation 

District in 2001, Fremont Madison Irrigation District in 2004, and American Falls Reservoir 

District #2 in 2008. Each of these Title Transfers were successful due, in large part, to the 

demonstrated ability by these entities to operate, maintain and manage their facilities in a highly 

professional and competent manner. 

In addition, Pioneer Irrigation District, in Southwest Idaho, is currently working through the Title 

Transfer process and the Lewiston Orchards Irrigation District in Lewiston, Idaho will begin the 

TESTIMONY OF PAULL. ARRINGTON 

HEARING ON THE BUREAU OF RECLAMATION'S TITLE TRANSFER PROCESS 

PAGEl 
16 

Title Transfer process in the coming years. Finally, the Minidoka Irrigation District is currently 

waiting on Reclamation to draft a Memorandum of Understanding outlining the issues to be 

addressed in a title transfer. 

Idaho is not alone in its experience with title transfer. From Arizona to Washington State, water 

users and the federal government have benefited from title transfer. Many of these transferred 

projects have been operating successfully in a post title transfer environment for decades. I have 

attended several meetings with the NRW A and Family Farm Alliance and water users in 

Colorado, Washington State, and Utah that have also expressed interest in future title transfers. 

Title Transfer is a Beneficial Process that Can be Improved 

Over the past 115 years, Reclamation has planned, designed and constructed numerous irrigation 

projects in the West. These projects have become vital to the farms, ranches and rural 

communities that have sprung up because of these Reclamation investments. Many of these 

projects either have been paid for by the project beneficiaries or are close to being paid out. Yet, 

the process of transferring the title to these facilities is not automatic (as with a house or a car), 

and in fact can be so expensive, time consuming or complex that many irrigation districts don't 

even consider Title Transfer as a realistic option. 

Title Transfer can and does benefit the nation's water user community. Reclamation 

characterizes the Title Transfer process as a "commitment to a Federal Government that works 

better and costs less." 1 "The transfer of title will divest Reclamation of the responsibility for the 

operation, maintenance, management, res>ulation of, and liability for the project and will provide 

the non-Federal entity with greater autonomy and flexibility to manage the facilities to meet their 

current needs." 2 

IWUA agrees with Reclamation. Title Transfer is a great program. Title Transfer allows for local 

control of Idaho's water resources. It reduces federal costs and liability associated with owning 

aging infrastructure. It allows operational decisions to be made in a timelier and more costeffective manner. Financing for maintenance and rehabilitation is more accessible. Title Transfer 

will allow water users to quickly and efficiently address issues as they arise- something that is 

rarely possible under Federal ownership. For example, East Greenacres Irrigation District is a 

Reclamation project located in Post Falls, Idaho. Post Falls, like many areas in Idaho, is 

experiencing a significant population growth. At times, East Greenacres' pipelines cross through 

ground slated for development. Through negotiations with the developers, the pipelines are 

moved however, the federal pipeline easements remain. In one such instance, an agreement to 

move a pipeline, and the ultimate moving of that pipeline, occurred nearly I 0 years ago. Yet, the 

lots remain undeveloped because the federal easement remains on the property. In other words, 

even though the pipelines have been moved and no pipelines exist in the historical easement, a 

cloud remains on the title of those lots due to the existence of an easement that is no longer being 

used. Although requests to remove that federal easement have been in place for nearly a decade, 

1 Frameworkji;r the Transfor of1/tle Bureau ojReclamation Projects (updated Sept. 2004) 

(https:l/www.usbr.gov/titlc/fnnucwork Iitle transfer 2004 rcvision.pdf). 2 !d. 

TESTIMONY OF PAULL. ARRINGTON 

HEARING ON THE BUREAU OF RECLAMATION'S TITLE TRANSFER PROCESS 

PAGE2 
17 

it remains on the property. Had it owned these facilities, East Greenacres could easily and 

quickly vacate the easement, allowing the development to move forward. 

The benefits of Title Transfer are clear. However, the exorbitant time and expense required to 

accomplish a Title Transfer due primarily to what we would consider to be excessive 

environmental review under NEPA has been a deterrent for many water users. We support 

efforts to improve this process in a manner that will make Title Transfer more affordable and 

accessi b I e. 

Lessons Learned from the Title Transfer Process 

Idaho's rich history involving Title Transfer gives our water users a unique perspective on the 

current workings of the Title Transfer process. It is a complicated process. In fact, Reclamation's 

checklist summarizing the information necessary to accomplish a title transfer is 8-pages long3 

There are opportunities for improvement in this process. Perhaps the greatest hurdles for those 

desiring to take advantage of the Title Transfer process are the time and expense required to 

accomplish a transfer. The process can take nearly a decade and ultimately requires an act of 

Congress to complete. This is no small feat! 

The Burley Irrigation District Title Transfer took 8-years to accomplish. 

The Fremont Madison Irrigation District Title Transfer took nearly l 0-years and $300,000 to 

accomplish. 

The Nampa & Meridian Irrigation District Title Transfer took nearly l 0-years and over $200,000 

to accomplish. Importantly, however, the District was able to keep its costs down because it 

completed much of the analysis in-house. 

The Pioneer Irrigation District Title Transfer is a unique story. Pioneer previously began the 

Title Transfer process in 2006 even paying its own engineers to complete the NEPA review. 

However, that process was halted due to some unrelated issues. The process began anew in 2015. 

The new process is benefited by the previously completed research and analysis, which has 

allowed for the process to be truncated. Still, it is expected that the process will take at least 4-

years to accomplish and cost nearly $200,000 not including legal fees, any additional 

engineering that may be required and any efforts necessary to seek and obtain Congressional 

approval for the transfer. 

The Reclamation-determined requirements for environmental reviews are lengthy and expensive. 

For simple Title Transfers, where the projects will be transferred and ultimately continue 

operating in the same manner, the extensive NEPA process seems like an unnecessary expense. 

3 Title Transfer Checklist (https://www.usbr.gov/titleffitle Transfer Checklist-2009.doc). 

TESTIMONY OF PAUL L. ARRINGTON 

HEARING ON THE BUREAU OF RECLAMATION'S TITLE TRANSFER PROCESS 

PAGE3 
18 

Project Power Considerations and Title Transfer 

Other entities may be interested in Title Transfer, but the current processes and policies are 

creating impediments to that process. In particular, current Title Transfer practices result in the 

limiting, or even the loss, of project power. This power, provided at cost-based contracted rates 

to Reclamation projects, is necessary for the continued viability of the project. Any risk in losing 

or limiting that Project Power is too much for some entities to take and they, therefore, dismiss 

the idea of Title Transfer. These projects require project power, even after a potential Title 

Transfer, in order to remain economically viable for the operations dependent on the water 

supply. 

Burley Irrigation District, for example, utilizes project power for its operations. However, 

because of the Title Transfer process, its project power is now limited to a 20-year term contract 

that may, or may not, be renewed by Reclamation. 

The Minidoka Irrigation District, along with the Burley Irrigation District, paid part of the cost to 

build the original Minidoka Dam Power Plant and utilizes project power for its operations. 

However, even though it paid to develop the ability to generate power as part of the Minidoka 

Project, if it goes forward with title transfer, it risks losing its project power resulting in 

increased cost to its water users during a cycle of declining crop prices. 

East Greenacres Irrigation District 

East Greenacres has long demonstrated its ability to operate, maintain and manage its facilities in 

a highly professional and competent manner. Although East Greenacres is under contract with 

Reclamation for another decade, it could not consider Title Transfer due, in large part, to its 

reliance on project power to deliver water to its irrigation customers. If East Greenacres were to 

lose its project power, the increase in power costs, alone, would be crippling to the operations of 

their irrigation customers. 

A&B Irrigation District 

Another Idaho entity whose reliance on project power may prevent title transfer is A&B 

Irrigation District. A&B delivers both surface water and groundwater to 82,000 acres of prime 

farmland in Jerome and Minidoka Counties, in Southern Idaho. This Reclamation project 

includes over 180 deep wells, a pumping plant on the Snake River, canals, turnouts and over 700 

fatming units. A&B entered into its contract with Reclamation in 1962. Full payout of that 

contract is scheduled for 2020 (with only approximately $35,000 of the original $12.6 million 

construction cost remaining). The Reclamation contract provides that power generated at the 

Palisades power plant would be "set aside in perpetuity" for the benefit of A&B to provide the 

power "required for the operation of the pumping plants of the District." 

ln the early 1980's, A&B began experiencing groundwater declines and lost capacities that have 

continued to this day. Wells have been re-drilled, moved and abandoned as A&B has worked to 

protect its water supplies. A&B has filed two administrative water calls wherein A&B asked 

the Idaho Department of Water Resources to curtail junior priority groundwater uses in an effort 

to obtain the water it is entitled to receive under its water rights. In 2015, A&B installed a 

TESTIMONY OF PAULL. ARRINGTON 

HEARING ON THE BUREAU OF RECLAMATION'S TITLE TRANSFER PROCESS 

PAGE4 
19 

second pumping plant on the Snake River, along with 19-miles of buried pipeline, to deliver 

surface water to nearly 3,000 acres of! and previously covered by failing groundwater supplies. 

This project cost A&B's landowners $11.8 million and has been successfully funded and 

operated by the District over the past two years. 

A&B is not alone in its struggles with a depleting aquifer. From 2002 through 2014, calls for 

priority administration were the norm on Idaho's Eastern Snake Plan Aquifer. In 2009, the Idaho 

Water Resource Board adopted a Comprehensive Aquifer Management Plan ("CAMP") that 

included a goal to change the aquifer budget by 600,000 acre-feet annually over a 20-year 

period. In 2016, the Idaho Department of Water Resources designated the Aquifer as a 

Groundwater Management Area providing additional protections to an aquifer approaching 

"critical conditions." 

Finally, in 2015, a monumental agreement was entered between surface water and groundwater 

users to take proactive steps to recover the aquifer. One of the primary tools for recovery is 

recharge, with the State of Idaho committing to recharge the aquifer at a rate of 250,000 acrefeet/year. 

A&B desires to participate in recharge, including assisting with the State's program. In fact, 

areas accessible by A&B canals are prime recharge areas modeling shows that recharge in 

these areas would benefit water users throughout the aquifer (including Reclamation's own 

storage facilities). However, A&B's project is not authorized to deliver water for recharge. It is 

an irrigation project. Since it is a Reclamation project it does not have the operational flexibility 

to deliver water for recharge in areas accessible by its canals and laterals even though the 

recharge would benefit Reclamation by providing more water to Reclamation storage facilities. 

Like the other Idaho irrigation entities discussed today, there is no question that A&B can 

operate, maintain and manage its facilities in a highly professional and competent manner. The 

District has operated the project since 1966. Title Transfer is viewed by A&B as an opportunity 

to improve flexibility in the operation of its system and to open up opportunities for water supply 

projects to assist the State ofidaho and protect and improve the Eastern Snake Plain Aquifer. 

However, A&B cannot lose its project power. Without project power, A&B's assessments would 

nearly double significantly impacting its irrigation customers' operations (forcing some 

farmers out of business). A&B cannot pursue Title Transfer if its project power would be taken 

away in the process. As a result, prime recharge areas accessible through A&B's system may not 

be utilized. 

Title Transfer should not automatically result in the loss of project power. Opportunities should 

exist to maintain that benefit even after Title Transfer. To be sure, I recognize that this is a topic 

of contention with some in the public power community. However, as this Subcommittee knows, 

water and power users have many areas of mutual interest and I look forward to working with 

my colleagues in the public power sector to find common ground on this issue. 

TESTIMONY OF PAULL. ARRINGTON 

HEARING ON THE BUREAU OF RECLAMATION'S TITLE TRANSFER PROCESS 

PAGES 
20 

Conclusion & Suggestions for a Title Transfer Bill 

In conclusion, while a valuable tool, Title Transfer processes can be improved. As this 

Subcommittee may contemplate possible legislation on Title Transfer, we would suggest the 

following considerations: 

1. Not every Title Transfer should require full NEPA analysis. Some simple Title Transfers, 

particularly single use projects and those projects that will continue operating in the 

historical manner, should not be subject to the same rigorous NEP A analysis required for 

complex Title Transfers. Minimizing NEPA analysis requirements will eliminate much of 

the time and expense that has prevented more entities from taking advantage of the Title 

Transfer process. 

2. Not every Title Transfer should require an act of Congress. Reclamation should have the 

authority to complete simple Title Transfers "in house" (such as single use projects 

and/or those that will continue operating in the historical manner). This would further 

allow for quicker processing of the Title Transfer. 

3. Access to project power should not be eliminated because of Title Transfer. Farming and 

ranching operations throughout Idaho (and the west) rely on project power to maintain 

their economic viability. The loss of project power would significantly increase the cost 

of delivering water. Further, as explained in the A&B example provided above, water 

supply projects that would benefit both private and public water users (including 

Reclamation's own reservoirs) are not happening due to the risk oflosing project power 

in a Title Transfer. 

Thank you, Chairman Flake, Ranking Member King, and Members of the Subcommittee for 

providing this opportunity to share Idaho's experiences and suggested opportunities with the 

Title Transfer process. We appreciate the Subcommittee's interest in this important topic and 

your efforts on this matter. I would be happy to take any questions the Subcommittee may have. 

TESTIMONY OF PAULL. ARRINGTON 

HEARING ON THE BUREAU OF RECLAMATION'S TITLE TRANSFER PROCESS 

PAGE6 
21 

Senator FLAKE. Thank you, Mr. Arrington. 

I should note, Brenda Burman is a proud export from Arizona. 

Mr. ARRINGTON. Exactly. Great things, right? 

Senator FLAKE. Yes. 

Mr. Brown. 

STATEMENT OF JERRY BROWN, GENERAL MANAGER, 

CONTRA COSTA WATER DISTRICT 

Mr. BROWN. Good morning, Chairman Flake, Senator King and 

members of the Subcommittee. My name is Jerry Brown. I’m the 

General Manager of the Contra Costa Water District (CCWD). We 

are an urban water agency located in the eastern part of the San 

Francisco Bay Area region in Northern California. 

CCWD is the oldest and largest M&I contractor within the Central Valley Project, providing high-quality water to approximately 

500,000 residents and major industry. CCWD operates and maintains the Contra Costa Canal System, a unit of the Central Valley 

Project. 

The Contra Costa Canal System began construction in 1937 and 

is an earthen canal, which was constructed and is owned by Reclamation. Because of adjacent development, the canal poses a safety and flood risk. Unfortunately, we have averaged one drowning 

per year since the canal was built. 

CCWD has 100 percent repaid Reclamation for costs of construction, and our CVP contract allows for transfer of Contra Costa 

Canal System title to CCWD upon authorization by Congress. 

In the mid-1990s, CCWD initiated and completed Reclamation’s 

title transfer process but deferred the effort pending resolution of 

local stakeholder issues involving recreation. 

Reclamation’s process for evaluating suitability for title transfer 

is lengthy and thorough. Based on what we learned in that effort 

and having resolved the recreation issues, CCWD has recently reinitiated efforts to pursue title transfer through legislation. 

CCWD is interested in title transfer because we plan to spend a 

half billion dollars to replace the canal with a buried pipe. The 

Contra Costa Canal System conveys nearly all of CCWD’s water, 

and we prefer to own the facilities before making that level of investment. In addition, work on the canal system requires varying 

levels of coordination documentation with Reclamation for planning, engineering, maintenance and operation. 

CCWD ownership of the Canal System would eliminate much of 

this duplicative consultation that increases cost and causes schedule delays. Title transfer will result in lower costs and reduced Administrative burden and will eliminate flood and other safety concerns. 

Before deferring our previous title transfer effort, CCWD and 

Reclamation had worked for over two years on a transfer agreement. This included nine public negotiation sessions, environmental review and resolution of unique issues. 

Based on our experience, the following recommendations will 

streamline the title transfer process: 

Number one, Reclamation must assign an experienced program 

manager with authority to negotiate the transfer agreement with 

commitment of dedicated resources. 
22 

Number two, environmental review, including NEPA, ESA and 

National Historical Preservation Act, should leverage all the previous documents previously prepared for the facilities. Over the 

years since our title transfer effort, CCWD and Reclamation have 

completed NEPA reviews and other consultations with U.S. Fish 

and Wildlife Service and the State Historic Preservation Officer 

and these provide an efficient starting point. Newly required analysis should only focus on specific and not previously analyzed environmental impacts related specifically to the transfer of ownership. 

An Environmental Assessment/Finding of No Significant Impact 

was prepared for the previous title transfer effort and by the time 

the transfer process was deferred, U.S. Fish and Wildlife and 

SHPO had signed off on the additional permits as not being required. The significant amount of already completed recent reviews 

should be fully recognized and only for looking in new impacts specific to the title transfer of assets from Reclamation to CCWD 

should require additional review. 

Number three, Reclamation should be encouraged and authorized 

to proceed with quitclaiming federal property interests where title 

documentation is incomplete. A significant amount of time was 

spent during the previous effort trying to locate missing records 

with limited success. To try to re-survey or otherwise develop legal 

descriptions for all properties would be costly and provide little 

value. The existing right-of-way has been successfully managed and 

maintained for over 80 years using the existing land rights and 

quitclaim of all federal property interests to CCWD will provide a 

complete transfer without title conflict. Other title transfer legislation has also followed the quitclaim deed process. 

Number four, title transfer agreements should be allowed to proceed with contingencies for areas of uncertainty. For example, in 

our earlier transfer work we had a hazardous waste site that was 

included in the agreement, but actual transfer for that site was 

contingent upon Reclamation completing the cleanup as a followup. 

Number five, Congress should ensure Reclamation has the necessary resources to process the title transfers in a timely manner. 

And number six, definitive responsibilities and timelines should 

be established with accountability to Congress to ensure appropriate priority is given to title transfer tasks. 

Thank you for this opportunity to testify on this topic of importance to CCWD and your consideration of measures to streamline 

the title transfer process. 

[The prepared statement of Mr. Brown follows:] 
23 

Statement of Jerry Brown, General Manager 

Contra Costa Watet· Distt·ict 

Before the Senate Water and Power Subcommittee 

Legislative Hearing on Title Transfer of Bureau of Reclamation project facilities 

January 17,2018 

Chaiffilan Flake, Senator King and members of the Subcommittee--my name is Jeny Brown, 

and I am the General Manager of Contra Costa Water District (CCWD), an urban water agency 

located in the eastern part of the San Francisco Bay Area region in Northern California. CCWD 

is the oldest and largest M&I contractor within the Central Valley Project, providing high quality 

water to approximately 500,000 residents and many large industrial customers. CCWD operates 

and maintains the Contra Costa Canal System, a unit of the Central Valley Project (CVP), under 

Agreement with the U.S. Department ofinterior, Bureau of Reclamation (Reclamation). The 

Contra Costa Canal System began construction in 1937 and is an earthen canal, which was 

constructed and is owned by Reclamation. Although the canal has been maintained, it still poses 

a safety and flood risk. Unfortunately, we have averaged one drowning per year since the canal 

was built. 

CCWD has repaid Reclamation for costs of construction as set forth in the Long-teffil Renewal 

Contract between the United States and CCWD providing for Project Water Service and for 

Facilities Repayment (Contract No. I75r-3401 A-LTRl May 10, 2005) (CVP Contract). Article 

28.3 of the CVP Contract allows for transfer of title to the Contra Costa Canal System upon 

repayment of all outstanding capitalized costs of the facilities and upon authorization of 

Congress. CCWD initiated Title Transfer in the mid 1990's but deferred the effort after 

completing Reclamation's Title Transfer process and pending resolution of local stakeholder 

issues involving recreation. Reclamation's process for evaluating suitability for title transfer is 

lengthy and thorough. Building on what was learned in that effort, CCWD has recently 

reinitiated efforts to pursue Title Transfer through legislation. 

Why Title Transfer Makes Sense for CCWD 

CCWD is interested in Title Transfer because we plan to spend a half billion-dollars to replace 

the canal with a buried pipe. The Contra Costa Canal System conveys nearly all CCWD's water, 

and we prefer to own the facilities before making that level of investment. Title Transfer will 

result in lower costs and reduced administrative burden, provide greater flexibility in 

management of the asset, and will eliminate flood and other safety concerns. 

Lower costs and reduced administrative burden are benefits that will also accrue to Reclamation. 

Currently, work on the Canal System requires varying levels of coordination and documentation 

with Reclamation for planning, design, project implementation, maintenance, and operation. 

1 
24 

CCWD ownership of the Canal System would eliminate much of this duplicative consultation. 

We find ourselves doing much of the same work Reclamation conducts in its oversight and 

review responsibilities. Third parties including local cities, Contra Costa County, local and 

regional agencies, including recreation partners, and utilities working within the Canal System 

rights-of-way all of whom would also benefit from removing the additional layer of federal 

review and approval bureaucracy that increases costs and causes schedule delays. 

CCWD has been responsible for O&M of the Canal System for almost 50 years and its staff is 

intimately familiar with the system. We have built the relationships with neighboring agencies, 

environmental groups and landowners required for effective system operation to meet local 

needs. Reclamation does not have the system familiarity or local inter-agency relationships. 

Elimination of Reclamation's coordination and oversight function would not result in any 

adverse impacts. 

As a single purpose facility delivering M&I water, the Contra Costa Canal System is an ideal 

unit for Title Transfer. Not only does it meet all the criteria set forth by Reclamation in its 

Framework for the Transfer of Title, but CCWD has a long history of successful operations and 

maintenance of the Canal System, positive working relationships with federal, State and local 

regulatory agencies, and strong financial ratings. Title Transfer to CCWD will relieve the United 

States of any risk of canal failure. 

Reforming and Streamlining the Title Transfer Process 

Before deferring our previous Title Transfer efforts, CCWD and Reclamation had worked for 

over two years on the transfer agreement. This included nine public negotiation sessions, 

environmental review and various special issue considerations including power, contamination at 

one site, and incomplete land records. During those two years, significant progress was made 

and the parties were close to being complete with permitting and resolution of the special issues. 

Based on our experience, the following recommendations will streamline the Title Transfer 

process: 

1) Reclamation must assign an experienced Program Manager with authority to negotiate 

the Transfer Agreement with access to dedicated staff resources covering multiple 

disciplines including engineering, real property, environmental planning, cultural 

resources, public information, and legal. 

2) Environmental review, including National Environmental Policy Act (NEP A), 

Endangered Species Act (ESA) and National Historical Preservation Act (NHPA), should 

leverage all the recent documents prepared for the facilities to be transferred, and permits 

governing ongoing operations and management of the Canal System. Over the years 

since the previous Title Transfer effort, CCWD and Reclamation have developed a large 

library of completed NEPA reviews and other consultations with United States Fish and 

2 
25 

Wildlife Service (USFWS) and State Historic Preservation Officer (SHPO) that provide 

an efficient starting point. Newly required analyses should focus on specific 

environmental impacts related specifically to a transfer of ownership. An Environmental 

Assessment/Finding of No Significant Impact was prepared for the previous Title 

Transfer effort, and by the time the transfer process was deferred, USFWS and SHPO had 

signed off that additional permits were not required. The significant amount of already 

completed recent reviews should be fully recognized, and only the new impacts specific 

to the transfer of title of the assets from Reclamation to CCWD should require additional 

review. 

3) Reclamation should be encouraged and authorized to proceed with quitclaiming federal 

property interests where title documentation is incomplete. A significant amount of time 

was spent during the previous effort trying to locate missing records with limited success. 

To re-survey or otherwise develop legal descriptions for all the properties without 

adequate documentation would be costly, and provide little value. The existing right-ofway has been successfully managed and maintained for over 80 years using the existing 

land right records and quitclaim of all federal property interests to CCWD is believed to 

provide a complete transfer of all rights without title conflict. Other title transfer 

legislation has also followed the quitclaim deed approach. 

4) Title Transfer Agreements should be allowed to proceed with contingencies for areas of 

uncertainty. For example, in our earlier transfer work, an identified hazardous waste site 

was included in the agreement, but actual transfer was contingent on Reclamation 

completing the cleanup. 

5) Congress should ensure Reclamation has the resources necessary to process Title 

Transfers in a timely way, without impacting ongoing work. 

6) Definitive responsibilities and timelines should be established with accountability to 

Congress to ensure appropriate priority is given Title Transfer tasks. If authority to 

approve Title Transfers is delegated to the Secretary, an annual report should be provided 

to Congress indicating the status of current Title Transfers. 

Thank you for this opportunity to testify on this topic of importance to CCWD, and your 

consideration of measures to strean1line the Title Transfer process. 

3 
[hJ 

ro 2 --4~-~;::-j Legend Ill USBR Owned Facilities 

- USSR Owned Facilities 

Contra Costa Water District Boundary 

Contra Costa Water District Owned Facilities 

- Contra Costa Water District Owned Facilities 
27 

Senator FLAKE. Thank you, Mr. Brown. 

Mr. DeVries. 

STATEMENT OF MICHAEL DEVRIES, GENERAL MANAGER OF 

METROPOLITAN WATER DISTRICT OF SALT LAKE & SANDY, 

AND DIRECTOR OF PROVO RIVER WATER USERS ASSOCIATION 

Mr. DEVRIES. Good morning, Chairman Flake, Ranking Member 

King, Senator Lee and members of the Subcommittee. Thank you 

very much for the opportunity to testify today. 

My name is Michael DeVries, and I serve as the General Manager of the Metropolitan Water District of Salt Lake & Sandy as 

well as a Director of the Provo River Water Users Association. I am 

pleased to be here today to provide perspective on the benefits of 

title transfer related to Bureau of Reclamation project facilities in 

Utah. 

In 2006, the Salt Lake Aqueduct and related corridor, or SLA, 

were transferred to the District. The SLA is approximately 42 

miles in length and 84 inches in outside diameter. It reaches from 

the toe of Dear Creek Dam to the Salt Lake Valley. It was completed in 1951, and it’s critical to the water supply of the Salt Lake 

Valley. It is approximately, in approximately 20 years, rather, it 

will require major rehabilitation on the order of about $300 million 

or more. 

In 2014, the Provo Reservoir Canal and related corridor were 

transferred to the Association following a project that enclosed that 

canal. The current name of that facility is the Provo River Aqueduct, or PRA. The PRA is approximately 23 miles long and mostly 

126 inches in diameter. The PRA is very critical to the water supply of north Utah County and the Salt Lake Valley. 

The reconstruction of Terminal Reservoir which is a Salt Lake 

aqueduct facility, was a $40 million project that is nearly completed. The District issued tax-exempt bonds to finance that 

project. That would not have been possible without title transfer. 

The Provo Reservoir Canal enclosure that resulted in the creation of the PRA was a $150 million project, and this enclosure was 

completed before title transfer. However, financing for that project 

would not have been possible absent a commitment that title transfer would transfer upon completion of the project. 

We are grateful for the many years of cooperation and assistance 

with Reclamation but title transfer has enabled improved efficiencies for the District and Association that have led to significant 

cost savings. 

The enclosure project that resulted in the PRA included new capacity for local public entities. And that participation was critical 

to the project. Those entities required a firm commitment of equal 

standing capacity, which would not have been possible, legally, 

under Reclamation ownership. 

Reclamation’s lands people managed the SLA and PRA corridors 

before title transfer. Management of the SLA corridor by the District and management of the PRA corridor by the Association has 

been significantly simplified for both the public served by those facilities and local entities that need to cross those corridors with 

roads, utilities, et cetera. 
28 

The enclosure project that created the PRA was intended to provide, and did provide, the following specific benefits, in addition to 

the general benefits previously described: 

Number one, the capacity of the canal needed to be enlarged in 

order to accommodate the capacity needs for local entities, as well 

as Utah Lake System water from the Central Utah Project for Salt 

Lake County. 

Number two, the canal had siphons to carry water under streams 

and highways. The siphons made the canal a drowning hazard. 

That hazard was eliminated by enclosure. 

Number three, prior to enclosure use of the canal maintenance 

road for recreation created significant safety issues for the public, 

as well as the Association. The enclosure made possible a 20-milelong, paved trail under management of Utah County which is now 

one of the State of Utah’s most utilized trails at parks. 

Number four, the canal was mostly unlined and perched on foothills above the valley floor. Enclosure of the canal has eliminated 

any flooding breach hazards. 

Number five, with urbanization of lands along the canal, a lot of 

trash was dumped into the open canal. A very large majority of the 

water in the canal has been carried to culinary water treatment 

plants. Enclosure has improved public drinking water safety. 

And number six, the mostly unlined canal lost, on average, approximately 8,000 acre-feet of water annually. Because enclosure 

allowed that water to be saved and used, the Salt Lake County 

ULS petitioners were able to give back 8,000 acre-feet of ULS 

water to the DOI to be used for restoration of flows in the lower 

Provo River which is critical habitat for the endangered June Sucker. 

We are very grateful for the benefits that title transfer and the 

enclosure project have provided to our District and the Association. 

All involved would agree that an easier and more streamlined title 

transfer process would better serve the public, water entities and 

federal taxpayers. 

In speaking with my colleagues from other water entities in 

Utah, I believe that they also would benefit from an easier title 

transfer process. 

The general benefits for federal taxpayers, the District and Association have been evident with title transfer of the SLA and PRA. 

We greatly appreciate your interest in title transfer and urge you 

to consider streamlining the process. 

Mr. Chairman, we are committed to continuing to work with our 

delegation, this Committee and other Members of Congress who 

support title transfer. Thank you for this opportunity and your 

time and attention to this matter. I’d be pleased to answer any 

questions. 

[The prepared statement of Mr. DeVries follows:] 
29 

STATEMENT OF 

MICHAEL DEVRIES 

GENERAL MANAGER OF METROPOLITAN WATER DISTRICT OF SALT LAKE & 

SANDY 

AND 

DIRECTOR OF PROVO RIVER WATER USERS ASSOCIA TlON 

BEFORE THE 

ENERGY AND NATURAL RESOURCES SUBCOMMITTEE ON WATER AND 

POWER 

UNITED STATES SENATE 

Title Transfer of Bureau of Reclamation Project Facilities in Utah 

January 17, 2018 

Chairman Flake, Ranking Member King, Senator Lee, and members of the Subcommittee, thank 

you very much for the opportunity to testify today. My name is Michael DeVries. 1 serve as the 

General Manager of Metropolitan Water District of Salt Lake & Sandy (the District), as well as 

Director of Provo River Water Users Association (the Association). I am pleased to be here 

today to provide perspective on the benefits of the transfer of Bureau of Reclamation project 

facilities in Utah. 

Salt Lake Aqueduct 

In 2006, the Salt Lake Aqueduct and related corridor (SLA) were transferred to the District. The 

SLA is approximately 42 miles in length, and 84" in outside diameter. It reaches from the toe of 

Dear Creek Dam to the Salt Lake Valley. It was completed in 1951. It is very critical to the 

water supply of the Salt Lake Valley. In something like two decades it will require a major 

rehabilitation project that will cost hundreds of millions of dollars. 

Provo River Aqueduct 

In 2014, the Provo Reservoir Canal and related corridor were transferred to the Association 

following a project that enclosed that canal. The current name of that facility is Provo River 

Aqueduct (PRA). The PRA is approximately 23 miles long and mostly 126" in diameter. It 

reaches from the mouth of Provo Canyon to approximately the Salt Lake County/Utah County 

line near the Jordan River. The PRA is very critical to the water supply of north Utah County 

and the Salt Lake Valley. 

General Title Tran~fer Benefits 

Increased Availability of Financing.for Necessary Rehabilitation 
30 

Prior to title transfer of the SLA the District understood it needed to rebuild the SLA Terminal 

Reservoir, a 40 million gallon treated water reservoir constructed as a part of the SLA. It was a 

serious safety hazard. The reconstruction of Terminal Reservoir was a $40 Million project that is 

nearly completed. The District issued tax-exempt bonds to finance the project That would not 

have been possible without title transfer, as IRS private use rules treat money used to improve a 

federally owned facility as a "private use," which is not eligible for tax-exempt bond financing. 

The Provo Reservoir Canal enclosure that resulted in the creation of the PRA was a $150 Million 

project That enclosure project was completed before title transfer, but financing for that project 

would not have been possible absent a commitment that title would transfer upon completion of 

the project A large portion of the financing came from the Utah Board of Water Resources, and 

politically it would not have been possible to borrow those funds absent a commitment the PRA 

would be transferred. 

Reduced Federal and Local Costs 

The District is one of the local sponsors for the Little Dell Project, which includes an Army 

Corps of Engineers' constructed dam and reservoir. The Corps have very little day-to-day or 

year-to-year involvement with the operation and maintenance of that project, which is a distinct 

difference between how the Corps operates as compared to how Reclamation operates. Our 

experience is the federal dollars formerly spent by Reclamation on the federal "administration" 

of the SLA and the PRA simply failed to provide much value. In addition to potential savings in 

federal dollars, the District and Association spend far less time on red tape following title 

transfer. 

The enclosure project that resulted in the creation of the PRA happened under the supervision of 

Reclamation. That added considerable expense, including the NEP A process, and the funds the 

Association was required to pay to Reclamation for Reclamation's supervision. That supervision 

did not save the Association from also providing its own close supervision. 

The reconstruction of SLA Terminal Reservoir was considerably cheaper than it would have 

been without title transfer. The District saved the NEP A process costs and the cost of 

Reclamation inspectors. 

Improved Service to the Public 

The enclosure project that resulted in the PRA included new capacity for local public entities. 

That participation was critical to the project Those entities required a firm commitment of equal 

standing capacity, which would not have been legally possible under Reclamation ownership. 

Reclamation's lands people managed the SLA and PRA corridors before title transfer. They 

licensed non-project uses after seeking local project sponsor concurrence. The West-wide 

Reclamation standard form agreements are in many ways dated and do not reflect local laws or 

conditions. Management of the SLA corridor by the District and management of the PRA 

corridor by the Association is now much improved, both for the public served by those facilities 

and local entities that need to cross those corridors with roads, utilities, etc. 

2 
31 

The Needfor a Better Title Transfer Process 

The enclosure project that created the PRA was intended to provide, and did provide, the 

following more specific benefits, in addition to the general benefits discussed above: 

1. The capacity of the canal needed to be enlarged significantly to carry a new water 

supply from the Central Utah Project, Bonneville Unit, Utah Lake System (ULS) into 

the Salt Lake Valley. 

2. The canal had four siphons to carry water under streams and highways. The siphons 

made the canal dangerous. Something like 26 people drowned in the canal over the 

years. The enclosure virtually eliminated this personal safety hazard. 

3. The canal maintenance road was heavily used for recreation by the public before 

enclosure. This in spite of the dangers of the canal in terms of drowning hazards and 

pedestrian/bike/horse conflicts with maintenance vehicles and the dangers of highway 

crossings. Such recreation uses violated Reclamation policy, but stopping it was 

impractical. The enclosure project included the construction of a 20-mile long 

trail/linear park now managed by Utah County, including highway underpasses for 

the trail system. That would not have been possible without enclosure. 

4. The canal was mostly unlined and perched on foothills above the valley floor. In 

1988, the canal breached, causing very significant flood damage and lawsuits. Much 

of what was flooded in 1988 was open farmlands. Between 1988 and the enclosure 

much of that land had been developed. On two occasions after 1988 and before 

enclosure similar breaches were very narrowly averted. Enclosure virtually 

eliminated the canal breach hazard. 

5. With urbanization of lands along the canal, a lot of trash was dumped into the open 

canal. While the canal served irrigation when it was constructed by Reclamation, for 

many years before the enclosure a very large majority of the water in the canal has 

been carried to culinary water treatment plants. Enclosure improved water quality 

and public drinking water safety. 

6. The mostly unlined canal lost on average approximately 8,000 acre-feet (AF) of water 

annually. Because enclosure allowed that water to be saved and used, the Salt Lake 

County ULS petitioners were able to give back 8,000 AF ofULS water to DOl to be 

used for restoration of flows in the lower Provo River, which is critical habitat for the 

endangered June Sucker. 

7. The canal could not be operated in the winter because of ice dams. Enclosure allows 

the PRAto be used as a backup to the two other large aqueducts that carry water from 

the Provo River System into the Salt Lake Valley. 

3 
32 

lt is only because of the extraordinary benefits of the enclosure project, and the fact that project 

could not happen without title transfer, that the District, the Association and others were 

ultimately able to incur the major expense and wear of Reclamation's title transfer process. It is 

only because of the extraordinary benefits of the enclosure project, and the fact that the enclosure 

project could not happen without title transfer, that the District, the Association and others were 

able to gain enough political support to overcome Reclamation resistance to title transfer. 

The SLA title transfer was added to the same bill that transferred the PRA. But for the benefits 

of the enclosure project, the considerable general benefits of the SLA transfer would not have 

been enough to get the SLA title transfer over the Reclamation title transfer Rubicon. 

Reclamation employees feel the threat of a loss of budget and jurisdiction from title transfer, and 

it is just human nature to doubt others can do your job as well. They have many quiet ways to 

put sticks in the spokes of the already laborious Reclamation title transfer process. The fact that 

the District and the Association unexpectedly had to go back to Congress for a second bill to 

obtain title to the PRA is a good example of such a stick in the spokes. Without a better process 

that allows projects to be transferred in less time and with less expense, the small number of 

Utah Reclamation projects will not likely transfer, despite the merits of such transfers. 

Congressional Support 

I believe other title transfers in Utah will duplicate the general benefits federal taxpayers, the 

District and Association have seen with title transfer of the SLA and PRA. The Reclamation 

process for title transfer of the SLA and PRA was unduly expensive and laborious. l urge you to 

consider a streamlined process, particularly for projects that were authorized under the 1902 

Reclamation Act and thus have only water supply and power development as authorized 

purposes. 

Mr. Chairman, we are committed to continuing to work with our delegation, this Committee and 

other members of Congress who support the need for title transfers. Thank you for this 

opportunity and your time and attention to this important matter. I would be very pleased to 

answer any questions you may have. 

4814-9000-0730, v. 1 

4 
33 

Senator FLAKE. Thank you. 

Mr. Phillips. 

STATEMENT OF JASON PHILLIPS, CHIEF EXECUTIVE OFFICER, 

FRIANT WATER AUTHORITY, CA 

Mr. PHILLIPS. Good morning, Chairman Flake, Ranking Member 

King and members of the Subcommittee. 

My name is Jason Phillips, Chief Executive Officer of the Friant 

Water Authority in California. Friant Water Authority is a public 

agency formed under California law to operate and maintain the 

Friant-Kern Canal, a component of the Central Valley Project 

owned by the Bureau of Reclamation. The Friant-Kern Canal is a 

152-mile-long conveyance facility that delivers water to over a million acres of productive farmland, relied upon by over 15,000 farms 

and cities in the San Joaquin Valley. 

Thank you for the opportunity to testify on the process for transferring ownership of Reclamation’s facilities to non-federal interests. The Authority sees title transfer as a means to improve water 

management and address the challenges of aging infrastructure 

while at the same time reduce cost to the Federal Government and 

relieve it of potential liabilities. 

The problem is that the current title transfer process remains 

lengthy, overly complex and costly for the non-federal parties. 

Time, cost and uncertainty are powerful disincentives to undertaking a title transfer effort. The existing requirements which 

sometimes serve little useful purpose, nevertheless, entail substantial time, complexity and cost. 

The Friant-Kern Canal presents a good example of how title 

transfer can benefit both non-federal project beneficiaries and the 

federal taxpayer. The Authority is operated to maintain the FriantKern Canal under contract to Reclamation since 1986. Reclamation 

retains ownership of the canal and its related distribution works 

and administers the contracts governing the purchase and delivery 

of CVP water in the Friant Division. The Authority is responsible 

for all aspects of the canal’s operation and maintenance as well as 

all the costs related to those activities. 

Since taking over the responsibility for the canal in 1986, the Authority has taken an aggressive and proactive approach to maintenance and repairs. Despite those efforts, the water carrying capacity of the canal has greatly diminished, partly because of natural 

settling and partly because of land subsidence resulting from significant groundwater pumping in the valley because of drought. 

The canal is completely gravity fed and ground subsidence has 

caused part of the canal to sink faster than others, significantly affecting the conveyance capacity of the canal. In fact, the drop is so 

severe that it has reduced our ability to deliver water to many 

Friant Division contractors by nearly 60 percent. This means that 

during the exceptionally wet 2016 and 2017 water years when the 

Friant-Kern Canal should have been facilitating recharge of badly 

depleted groundwater supplies, the canal could function at only 40 

percent of capacity. 

The Authority and Reclamation are currently exploring options 

to address the canal’s subsidence problems, both in the short- and 

long-term and because the San Joaquin Valley is already facing an 
34 

estimated 2.5 million acre-foot per year water supply deficit, it is 

absolutely vital that the canal be restored to the original full capacity and doing so could cost up to $400 million. 

So with ownership of the canal, the Authority could move more 

rapidly and efficiently than the Federal Government in designing 

and carrying out repairs and would continue to operate and maintain the Friant-Kern Canal as it has for more than 30 years. 

One of the impediments to engaging Reclamation’s title transfer 

process is the complexity and cost associated with certain environmental permits required for title transfers because the transfers 

are considered major federal actions. For example, some of the Authority member irrigation districts considered acquiring title to 

small Reclamation distribution works within their district boundaries but the districts concluded that the cost of the permitting review alone would exceed the benefits of taking ownership to the 

small facilities, which the districts have operated, maintained and 

repaired for many decades. 

Congress should act to appropriately focus the scope of permitting as they are applied to Reclamation title transfers. We would 

welcome the opportunity to work with the Committee to develop 

legislation to that end. 

In cases where only the ownership of a project will change and 

not its operation or footprint, permitting review should either not 

apply at all or be addressed in a programmatic fashion. 

The Committee should consider establishing criteria for waivers 

and exclusions for title transfers where no material change in 

project operation will occur until non-federal ownership. 

Finally, the Authority joins the Family Farm Alliance and other 

water user organizations in urging Congress to grant the Secretary 

of Interior broad authority to make title transfers without the necessity of further action by Congress. 

Thank you again for the opportunity to present the views of 

Friant Water Authority to the Subcommittee. 

[The prepared statement of Mr. Phillips follows:] 
35 

Testimony of Jason Phillips 

Chief Executive Officer 

Friant Water Authority, CA 

Before the 

Subcommittee on Water and Power, 

U.S. Senate Committee on Energy and Natural Resources 

On 

The Bureau of Reclamation's Title Transfer Process 

and Potential Benefits to Federal and Non-Federal Stakeholders 

January 17, 2018 

Good morning Chairman Flake, Ranking Member King and Members of the Subcommittee. 

My name is Jason Phillips, and lam the Chief Executive Officer of the Friant Water Authority in 

California. The Friant Water Authority (Authority) is a public agency formed under California law 

to operate and maintain the Friant-Kern Canal, a component of the Central Valley Project (CVP) 

owned by the Bureau of Reclamation (Reclamation). 

Thank you for the opportunity to testify on Reclamation's process for transferring ownership 

title of its facilities to non-Federal interests that are eligible to take title under Reclamation Law. 

Like Reclamation, the Authority regards title transfer as a means of increasing the flexibility of 

non-Federal interests to improve water management and address the challenges of aging 

infrastructure, while at the same time reduce costs to the Federal government and relieve it of 

potential liabilities. 

The Authority and its 15 member agencies are eager to engage Reclamation in discussions to 

acquire title to the Friant-Kern Canal and related distribution facilities (and possibly to the Madera 

Canal). But Reclamation's current title transfer process, though developed with substantial input 

from Reclamation's customers, remains lengthy, overly complex and costly for the non-federal 

parties. And once the administrative process is successfully completed, an act of Congress is still 

required to transfer the title to a facility from Reclamation to a non-federal entity. Time, cost and 

uncertainty are powerful disincentives to undertaking a title transfer effort. 

To its credit, Reclamation has worked to improve the title transfer process, actively engaging with 

water-user organizations such as the Family Farm Alliance, of which the Authority is a founding 

member, to simplify and speed development of transfer agreements and implementing legislation. 

The agency, however, can only go so far to facilitate a process that must conform to the 

requirements of existing laws, which sometimes serve little useful purpose but nevertheless entail 

substantial time, complexity and cost. On! y Congress can address these issues, and the Authority 

is encouraged by the Committee's interest in doing so. 
36 

The Friant-Kern Canal presents a good example of how title transfer can benefit both the nonFederal project beneficiaries and the Federal taxpayer. It also illustrates how Congress can act to 

facilitate title transfers in a manner that continues to safeguard the interests of the public. 

The Friant Division 

The 152-mile-long Friant-Kern Canal and the 36-mile-long Madera Canal, together with Friant 

Dam and Millerton Lake on the San Joaquin River, form the Friant Division of the CVP. On 

average, the Division delivers 1.2 million acre-feet of irrigation water annually to approximately 

15,000 farms on one million acres of the most productive farmland in the world. Friant Division 

deliveries also are vital to meeting the domestic water needs of many small communities in the 

San Joaquin Valley, as well as larger metropolitan areas, including the City of Fresno. 

Built between 1945 and 1951, the Friant-Kern Canal carries water south from Millerton Lake along 

the foothills of the Sierra Mountains on the eastern edge of the San Joaquin Valley to its terminus 

at the Kern River, four miles west of Bakersfield. The canal is lined by concrete for most of its 

length, and has an initial capacity of 5,000 cubic feet per second ( cfs) at the San Joaquin River that 

gradually decreases to 2,000 cfs at the Kern River. The width of the Canal ranges from 128 feet 

where it starts to 64 feet at its lower end. 

The shorter Madera Canal carries water north from Millerton Lake on the San Joaquin River to the 

Chowchilla River. Completed in 1945, the Madera Canal has an initial capacity of 1,000 cfs that 

decreases to 625 cfs at its terminus. 

The Authority (initially the Friant Water Users Authority) has operated and maintained the FriantKern Canal as a "transferred work" under contract to the Bureau of Reclamation since 1986. 

Reclamation retains ownership of the Canal and its related distribution works, and Reclamation 

administers the contracts governing the purchase and delivery of CVP water in the Friant Division. 

The Authority is responsible for all aspects of the Canal's operation, maintenance and replacement 

(OM&R) as well as all costs related to those activities. 

Two of the Authority's member agencies receive water via the Friant Division's Madera Canal, 

which is operated as a transferred work by the Madera and Chowchilla Water and Power Authority. 

The Madera and Friant-Kern canals are in similar circumstances and their operating authorities are 

interested in pursuing title transfers. 

Other components of the CVP outside of the Friant Division also are operated as transferred works 

by non-federal authorities composed of project beneficiaries, but the Friant Division is unique in 

that its water users have fully repaid the capital construction costs allocated to the Friant Division. 

This action was authorized by the San Joaquin River Restoration Settlement Act oj2009 (P.L. 111-

11, Title X, Subtitle A, Sec. 10010). 

Having paid their capital obligation, Friant Division water users are eligible to take title to its 

components. 
37 

The Settlement Act authorized the Interior Department to accept prepayment of Friant's 

outstanding capital obligation and to convert Friant Division "water service" (9(e)) contracts to 

"repayment" (9(d)) contracts. Friant water users subsequently paid approximately $215 million to 

the Federal government for cost of constructing the elements of the Friant Division, including the 

Friant-Kern and Madera Canals and related distribution works. Per the Settlement Act, the $215 

million was deposited into the San Joaquin River Restoration Fund, where most of it remains 

available to implement the San Joaquin River Restoration Settlement, agreed to in 2006 by the 

Authority, the Federal government and a coalition of environmental organizations. 

In late 2016, Congress approved similar "prepayment" provisions in the Water Infrastructure 

Improvements jbr the Nation Act (WIIN Act; P.L. 114-322, Sec. 4011), giving the Secretary 

general authority to accept early repayment of capital costs from project beneficiaries, and to make 

9(e)-to-(9d) contract conversions. Because 9(e) water service contracts are not common anywhere 

but California, the WIIN Act provisions are likely to have the greatest effect there, potentially 

increasing requests for title transfers for elements of the CVP and other stand-alone Reclamation 

projects in the State. 

Aging Infrastructure 

The Friant Division was designed and is operated as a conjunctive-use project to convey surface 

water for direct beneficial uses, such as irrigation, and to recharge groundwater basins in the 

southern San Joaquin Valley. Relative to the amount of water runoff into Millerton Reservoir, 1.8 

million acre-feet per year, the operational surface storage capacity of Friant Dam is minimal- only 

about 385,000 acre-feet. The ability to move significant water through the canals in wetter years 

to store in groundwater recharge basins is critically important to make the project work as intended. 

The system delivers two classes of water: Class 1, the first 800,000 acre-feet of firm supply; and 

Class IT, up to an additional 1.4 million acre-feet of non-firm supply available only during wetter 

years. Historically, the Friant Division has received a combination of Class I and Class II totaling 

about 1.2 million acre-feet annually. Much of the Class II water is directed to groundwater 

recharge. 

This system has been hugely successful. When the Canal came on-line in 1951, severely depleted 

groundwater levels immediately began to rise and stabilize. As planned, ample groundwater 

supplies became available to carry farmers through in dry periods, and those groundwater supplies 

were replenished in wet years with surface water delivered via the Friant-Kern Canal. 

At nearly 70 years old, the Friant-Kern Canal is the very definition of"aging infrastructure." Since 

taking over the responsibility for the Canal in the 1986, the Authority has taken an aggressively 

proactive approach to maintenance and repairs. Despite those efforts, however, the water-carrying 

capacity of the Canal has gradually diminished over time, partly because of natural "settling" and 

partly because of land subsidence resulting from groundwater pumping in the Valley. The Canal 

is a gravity-fed facility and does not rely on pumps to move water. Subsidence has caused parts of 

the Canal to sink in relationship to other parts. This negatively affects the Canal's ability to convey 

water. When the land elevation lowers, the Canal must be operated at a lower flow-stage to ensure 

that water doesn't overflow the banks. 
38 

From 2012-2017, California weathered its worst drought on record at the same time that 

increasingly stringent environmental regulations required more surface water to flow to the ocean. 

This forced San Joaquin Valley water users to rely heavily on groundwater supplies. 

In addition, in 2014 and 2015 Reclamation made a decision not allocate any surface water to Friant 

water-supply contractors for the first time in the history of the project. This action caused most 

Friant districts to rely solely on groundwater resources to maintain their crops and protect decades 

of investments. 

Groundwater pumping during the drought, including that done by non-Friant irrigators in the 

region, caused an alarming rapid subsidence below a portion of the Friant-Kern Canal. The drop 

is so severe that it has reduced our ability to deliver water to many Friant Division contractors by 

nearly 60 percent. This means that during the exceptionally wet 2016-2017 water year, when the 

Friant-Kern Canal should have been recharging badly depleted groundwater supplies, the Canal 

could function at only 40 percent of its capacity in areas with the greatest ability to store 

groundwater. A fact sheet on the subsidence problem is attached to my testimony. 

The Authority and Reclamation are currently exploring options to address the Canal's subsidence 

problem both in the short-term and more permanently. The San Joaquin Valley is already facing 

an estimated 2.5-million-acre-foot per year water supply deficit, and in the near future a new State 

law re~:,>ulating groundwater pumping could enlarge that shortfall during drought years. So it is 

absolutely vital that the Friant-Kern Canal be restored to its original full capacity. Doing so could 

cost as much as $400 million. 

Title Transfer Opportunities and Benefits 

The cost for the capacity restoration of the Friant-Kern Canal is largely allocated to the Authority, 

although there would be considerable costs to Reclamation as well. Transferring ownership of the 

Canal to the Authority would significantly improve our ability to pay for the capacity restoration 

project, and reduce or eliminate any Federal costs. Owning the Canal means the Authority would 

have the asset necessary to secure favorable financing in the market. If the Canal remains in 

Federal ownership, securing affordable financing terms would be difficult if not impossible. 

Simply put, it's hard to borrow money with collateral that's not yours. 

With ownership of the Canal, the Authority could move more rapidly and efficiently than 

Reclamation in designing and carrying out repairs. Normal operations, while still governed by 

existing contracts, laws and agreements, also would become more flexible and responsive to 

changing circumstances and needs when decisions are not slowed by review and approval of the 

Reclamation bureaucracy. The Authority would still be bound to meet all contractual obligations 

to water users, as well as its obligations under the San Joaquin River Settlement and other 

applicable environmental laws. And the Authority would continue to operate and maintain the 

Friant-Kern Canal as it has for more than 30 years. 

At the same time, Reclamation would be freed from the costs associated with designing and 

overseeing capacity repairs to the Canal, as well as the cost of overseeing the nom1al day-to-day 

operations of the facility and any liability associated with its operations. 

4 
39 

But Reclamation would continue to make water-delivery decisions, consistent with the existing 

contracts, laws, re!,>ulations, water rights and agreements that govern the operation of the CVP and 

the San Joaquin River. And Reclamation would continue to receive the revenues from the sale of 

CVP water through the Friant Division. 

In other words, transferring title of the Friant Kern Canal to the Authority would not and likely 

could not, change the current operation of the facility, or saddle the Federal taxpayer with the cost 

of building the Canal - already repaid by Friant water users - or deprive the government of the 

revenues that the Canal will generate into the future. Instead, with a title transfer, Federal costs 

would decrease while the Authority's ability to protect the original Federal investment in the 

project would increase. 

Some might argue that transferring the Friant-Kern Canal to non-Federal ownership will undercut 

environmental protections provided by the Endangered Species Act (ESA), the Clean Water Act 

(CWA) and other federal and State laws. We see no merit in these assertions. All such laws will 

continue to apply to Friant-Kern Canal operations regardless of the facility's ownership. For 

example, two of the largest water projects in California are on the Merced and Tuolumne rivers, 

tributaries to the San Joaquin River. Both projects were built and are owned and operated by nonFederal irrigation districts. These districts must comply with the Federal and California 

Endangered Species Acts, as well as Federal and State clean water, fishery and wildlife laws and 

regulations. In this regard, a locally owned Friant-Kern Canal would be no different from any other 

locally owned project. 

Impediments and Recommendations 

One of the impediments to engaging in Reclamation's title transfer process is the complexity and 

cost associated with reviews under the National Environmental Policy Act (NEPA) and National 

Historic Preservation Act (NHP A), which apply to title transfers because they are considered major 

Federal actions. For example, some of the Authority's member irrigation districts considered 

acquiring title to small Reclamation distributions works within their district boundaries. But the 

districts concluded that the cost of the NEPA review alone would exceed the benefits of taking 

ownership to these small facilities, which the districts have operated, maintained and repaired for 

many decades. 

Congress should act to appropriately focus the scope and implementation of NEP A and NHP A as 

they are applied to Reclamation title transfers while maintaining a transparent process that is open 

to public participation. We would welcome the opportunity to work with the Committee to develop 

legislation to that end. 

The Committee also should develop legislation to require NEPA and NHPA evaluations to focus 

on the particulars of an individual title transfer itself, and not on hypothetical and unlikely 

"alternatives" and outcomes, or on the "impacts" of existing, well-established operations that 

would not otherwise be subject to review. 

5 
40 

Nor should a NEPA or NHPA reviews of a proposed title transfer include expected project repairs 

or rehabilitations by the non-Federal owner. Such projects will be reviewed and permitted 

separately under all applicable Federal and state laws and regulations in the normal course of 

events. There is no need delay a title transfer by including NEPA reviews of repair projects that 

will, or may occur in the future. 

In cases where only the ownership of a project will change and not its operations or "footprint," 

NEPA and NHPA reviews should be deemed to not apply or be addressed in a programmatic 

fashion through categorical exclusions. The Committee should consider establishing criteria for 

waivers and exclusions for title transfers where no material change in project operations will occur 

under non-Federal ownership. 

Reclamation has supported NEPA reviews of title transfers though categorical exclusions, but only 

for uncomplicated, stand-alone projects. This would appear to exclude components of large 

projects, such as the CVP's Friant-Kern Canal. The Authority recommends that the committee 

consider establishing criteria that will ensure facilitation of title transfers and explicitly include 

large project elements, such as the Friant-Kern Canal, when no change in operations will occur as 

a result of a title transfer. 

Finally, the Authority joins the Family Farm Alliance and other water-user organizations in urging 

Congress to grant the Secretary of Interior broad authority to make title transfers without the 

necessity of further action by Congress. Of course, such authority should be appropriately 

conditioned to ensure the fairness and transparency of the title transfer process, while also 

including specific direction and criteria, such as those the Authority has suggested above, to 

genuinely facilitate title transfers for all types of projects. 

Recognizing the importance of Congress' role in oversight of agency operations, the Authority 

welcomes the opportunity to work with the Committee to develop legislation that would provide 

periodic review by the Committee regarding implementation of title transfer legislation to ensure 

that both the agencies and the beneficiaries are meeting their obligations under the law in a timely 

fashion. 

Thank you again for the opportunity to present the views of the Friant Water Authority to the 

Subcommittee. I am happy to answer any questions you may have. 

6 
41 

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42 
43 
44 
45 

Senator FLAKE. Thank you, Mr. Phillips, and thank you all for 

your testimony. Let me just start. 

Mr. Ewell, Reclamation’s FY’18 budget stated a proposal to facilitate greater title transfers was being developed by the Administration. What is the status of that proposal? What details can you give 

us at this point in terms of the Administration looking to address 

this issue? 

Mr. EWELL. Yes, thank you, Senator. 

The current program is being worked on closely and in a very 

collaborative manner with OMB. As that is continuing its process 

we hope to have something up this way in the coming weeks, as 

it relates to it. 

Generally, as, kind of, echoed by the stakeholders here today, the 

idea that a list of criteria, specific criteria, would be established 

and ultimately that the taxpayer and the Federal Treasury would 

be protected. 

Senator FLAKE. Great. 

For all the non-federal witnesses, to some extent or another in 

your testimonies you talk about the challenge and expense associated with NEPA and historic preservation reviews and the current 

processes as being a problem. Can you go a little deeper into that? 

Also, Mr. Brown, you made a suggestion that previous NEPA or 

Historic Preservation Act reviews can be utilized where possible. 

Can you talk first a little about that? 

Mr. BROWN. Sure. 

As I mentioned there were many public sessions, public documents that were made available to the stakeholders and other parties. We do extensive analysis of every action on the canal right 

away. All that we’re really seeking is going forward that there’s a 

recognition of the past work and an incorporation of that, that we 

don’t go back and redo that or duplicate it. 

Really, the facilities being 80 years, it’s a culmination of a lot of 

different activities and events and almost to the number of them, 

they’ve all been analyzed in some various fashion under NEPA and 

the Preservation Act and so we are very concerned and very protective of the cultural resources, the historic nature of the facilities 

and we would just like to see that those things be recognized as 

adequate as we move forward. 

Senator FLAKE. Thank you. 

Anybody else on that subject? 

Mr. DeVries, your organization has had the benefit of having 

completed a transfer. Can you talk a little about the potential future operations, how the potential future operations are being considered by the Bureau in your process? I would be interested in 

anybody else who wants to discuss their experience here, but you 

specifically mentioned it. Do you want to talk about that? 

Mr. DEVRIES. Sure. Thank you, Senator. 

Relative to the operations, maintenance and replacement related 

obligations, I feel that the title transfer process, communications of 

such responsibilities from Reclamation to our District and Association, that that process has been a smooth process. I feel that we’ve 

effectively managed and handled that in coordination with Reclamation. They’ve been supportive. That has worked out well. 
46 

I think where we’ve had the biggest challenge relates to the corridors and lands management related to the corridor, specifically 

the Salt Lake Aqueduct. When we took over that facility, there 

were a lot of encroachments that needed immediate attention. It 

was a big enough issue that we ended up having some state legislation passed to prevent adverse possession with some of the encroachments that related to the corridor because we had taken 

local ownership of that. So the big challenge that we had was going 

in and cleaning up a lot of remnants of encroachments that were 

probably just not handled the way they should have been prior to 

our taking over and maybe that wasn’t communicated as effectively 

as it should have been relating to that process. 

Senator FLAKE. Thank you. 

Mr. DEVRIES. Thank you. 

Senator FLAKE. Senator King. 

Senator KING. Mr. Ewell, all of you have testified that the length 

of time, I think somebody had said, a couple hundred thousand dollars, ten years. Why does it take so long? What are the obstacles? 

Mr. EWELL. Thank you, Senator, for the question. 

I think ultimately as the process is taking place there are, kind 

of, two components which probably have added length to the process. The first is entering, historically, into the MOA with the particular stakeholders. And last, as it relates to the legislative process. 

At the end of the day we believe that working with the stakeholders up front and being able to identify a number of these matters early on and allowing us to then enter into a title transfer 

agreement with the parties would help facilitate and expedite the 

process. 

Senator KING. You are suggesting that Congress would slow 

down something? I am shocked, shocked. 

Mr. EWELL. Senator, I’m new to public service in DC, but there 

seems to be a theme there at times. 

Senator KING. Well, I was wondering, there is a concern of Congress losing, entirely, the control over transfers of important public 

assets. One option might be instead of just abrogating the control 

with criteria, would be a Congressional veto within a certain period 

of time. In other words, make your deal, submit it to Congress. If 

Congress doesn’t act within 90 days, it is deemed approved. Then 

at least Congress would have an opportunity to review, if it chose. 

It would be, kind of, intermediate steps. So I commend that to you 

for your thinking as another alternative as we are approaching 

this. 

Let me ask about the NEPA question. Mr. Arrington, I think all 

of you have mentioned it. As I understand it, the problem is that 

NEPA is being applied simply for the handing of a deed, not for 

an action, not for a new dam or a new pump or anything else, and 

that is the problem. 

That is the problem you have identified. Am I correct? 

Mr. ARRINGTON. Absolutely. 

One of the main things to stress on a lot, on a majority of the 

title transfers we’re talking about here, we’re talking single function or single purpose or few purpose entities that are going to be 

operated in the same way, post title transfer. And so, it really is 
47 

simply a handing of a deed. These organizations have, for years, 

operated and maintained these systems even though Reclamation 

has owned them. They operate them, they maintain them, they 

clean them and now they’re just taking title to them. And so, 

they’ll transfer that paper is what is—— 

Senator KING. But if there was a contemplated major change in 

the facility, if it was transferred from public ownership, NEPA 

didn’t apply to the transfer but then the new owner would be exempt from NEPA, would they not because it would not be a federal 

action or am I incorrect? 

Mr. ARRINGTON. No, that’s correct. 

I think that gets back to what Mr. Ewell was talking about earlier about a categorical exemption that identifies specifically what 

opportunities would fit under a categorical exemption. It wouldn’t 

apply to every single title transfer. 

There may be a title transfer that would need a little more detailed review and maybe more NEPA, but for most of what we’re 

seeing, at least in particular in the four that have happened in 

Idaho, the facilities were operated the same way after, there has 

been no change. 

Senator KING. I think there needs to be some creative thinking 

about it because we don’t want to exempt from NEPA a transfer 

which would lead to a substantial change and environmental impact. On the other hand, if it is just a transfer with no change in 

operation, I think you are talking about creating criterion and categorizing these transfers. 

Mr. ARRINGTON. I agree with you. 

Senator KING. Are these transfers always permanent or are they 

for a term of years? Are they fee simple or can they be 20 years? 

What is the pattern? 

Mr. ARRINGTON. Well, I can speak from our experiences. They’re 

permanent transfers. I haven’t—I’m not aware of any that are 

transfers for a period of years. 

Senator KING. Okay. 

Final question. I noticed, Mr. Brown, you listed five criteria, or 

six, I think, of things that needed to be part of this. One is one sentence which is actually quite significant. I want to be sure I have 

the exact words. ‘‘Congress should ensure Reclamation has the resources necessary to process title transfers in a timely way without 

impacting ongoing work.’’ 

There is a lot in that sentence because around here we often talk 

about cutting the bureaucracy and cutting the size of government, 

diminishing the size of government. I think we need to recognize 

that when we do things like that we cut the ability of government 

to respond to processes like what you are talking about. 

When I talk to my constituent services people in Maine, one of 

the biggest problems they have is there is nobody to answer the 

phone at various federal agencies or it takes forever to process a 

piece of paper. So we can’t both talk about improved government 

service and starving the bureaucracy at the same time. We need 

people who have the ability to respond to these programs. I think 

that is an important point that is implicit in your comment. Is that 

correct, Mr. Brown? 

Mr. BROWN. That’s correct. 
48 

Senator KING. Thank you. 

Thank you, Mr. Chairman. 

Senator FLAKE. Thank you. 

Senator Lee. 

Senator LEE. Thank you very much, Mr. Chairman. 

Thanks to each of you for being here. I want to thank all of you 

for what you do to promote efficient, effective water management 

policies. 

I want to thank those of you who traveled out from the West and 

particularly you, Mr. DeVries, for being here. It is good to have a 

Utahan on the panel. In fact, I would like to start my questions 

with you, Mr. DeVries. 

You stated in your written testimony that prior to the title transfer that took place the money that the Bureau of Reclamation 

spent on the Salt Lake and Provo River aqueducts provided relatively little value because it mostly duplicated work that was already being conducted by the Districts and the Water Users Associations. Am I understanding your testimony correctly in that regard? 

Mr. DEVRIES. That is correct. 

And specifically to the operations and maintenance-related activities, the majority of that activity was already being handled by our 

District and the Association anyway. 

The right-of-way or encroachment issues related to the corridors, 

however, that was something that, as I mentioned, was something 

that we had to do quite a bit of catch-up work to get things under 

control, in essence. And we’re still—that’s still in progress. 

Senator LEE. Was that the only activity, prior to title transfer, 

what was happening through the Bureau of Reclamation that could 

not be handled or was not being handled effectively by the Water 

Users Associations and Districts? 

Mr. DEVRIES. Well, really the main thing that was happening, 

and it was more related to the Salt Lake aqueduct corridor, again, 

was the corridor management of the properties and lands related 

to that corridor. So that was something that we feel now that we’re 

able to handle that locally. We’re able to respond and be more efficient with the process of taking care of encroachments, taking care 

of crossings, anything related to that corridor. 

Senator LEE. At a lower cost? 

Mr. DEVRIES. At a lower cost, correct. 

Senator LEE. You also mentioned in your written testimony that 

NEPA played a significant role, the federal NEPA requirements 

added rather substantial costs to the enclosure project along the 

Provo River Canal, but the reconstruction of the terminal reservoir, 

on the other hand, was done following the title transfer. Is that 

right? 

Mr. DEVRIES. That is correct. 

Senator LEE. And my understanding is that saved the District a 

lot of money because it did not have to go through the NEPA process. 

Mr. DEVRIES. That’s correct. It was an interest-free loan because 

it was locally owned, in essence. 
49 

Senator LEE. Can you give me a rough approximation as to how 

much money the water district saved because of the fact that this 

reconstruction occurred after the title transfer? 

Mr. DEVRIES. You know, I don’t have those exact numbers, Senator. My guess is probably on the order of millions of dollars because the loan, again, was interest-free. So I’d have to get exact 

numbers or have to do more analysis to get you an exact number. 

Senator LEE. Okay, but it was likely in the millions of dollars? 

Mr. DEVRIES. Correct. 

Senator LEE. And were the environmental conditions worse during the project or are the environmental conditions today worse as 

a result of the fact that this didn’t go through the NEPA process 

but was instead subject to local authorities, local laws? 

Mr. DEVRIES. You know, I think because we—so obviously, we 

had the savings of not having to go through NEPA. Environmentally, there really were no negative impacts to not going 

through NEPA. It basically was reconstruction, same footprint, 

same site. So, really there was nothing that would have—it would 

have not helped the process to have to go through a NEPA process 

in this case. 

Senator LEE. Can you walk us through some of the steps taken 

by the State of Utah and by the Provo River Water Users Association to make sure that the environment was protected? 

Mr. DEVRIES. Yeah. 

So, I think, again, the key here is any work, reconstruction, replacement or other activities related to these facilities, either the 

PRA or the SOA, any work that’s done, like obviously we’re going 

to be looking out for any potential impacts, environmentally speaking and work closely with the state, along those lines. 

But in every case, it’s always been in the same footprint, same 

area, so the likelihood of any impacts is pretty slim anyway as far 

as environmentally speaking. But nonetheless, it is something we 

are sensitive to and work closely with the state on. 

Senator LEE. While saving millions of dollars. 

Mr. DEVRIES. Right. 

Senator LEE. Because of the lack of need to go through the federal NEPA legislation. 

You still get the same environmental protection, the same. The 

environment is no less protected, even while millions of dollars in 

compliance costs are being saved. 

Mr. DEVRIES. Correct. 

And I would add that additionally we don’t have to have Reclamation inspectors involved with any projects when it comes to reconstruction. So that is handled locally with our entities as opposed 

to having multiple layers of inspectors which adds additional costs 

as well. 

Senator LEE. Thank you, Mr. DeVries. 

Mr. DEVRIES. Thank you. 

Senator LEE. Thank you, Mr. Chairman. 

Senator FLAKE. Thank you. 

It is nice to have Senator Smith on the Subcommittee, and I just 

want you to know all three of us are jealous of the 10,000 lakes 

you have, speaking of water. 

[Laughter.] 
50 

But I appreciate you being here. Your turn. 

Senator SMITH. Thank you very much, Chair Flake, and I am 

happy to be here. 

I want to just start out by saying that I want to thank all of our 

witnesses for being here today and you know, I, too, have spent a 

lot of time when I was Lieutenant Governor trying to figure out 

how to make government work better, more efficiently, more costeffectively. So I share that goal. 

I just want to ask a couple of things. 

As Senator Flake was saying, we do not have a lot of Bureau of 

Reclamation projects in Minnesota, in my state, the Land of 10,000 

Lakes, but the Bureau is the second largest producer of hydropower in the country and many of the rural electric co-ops that actually provide electricity to about 75 percent of the geographic 

mass of Minnesota, and also the municipal utilities, rely on purchasing electricity from Bureau hydro facilities around the country. 

So it is really important to me that, for Minnesota, any changes 

that we might make to the title transfer process would not affect 

electricity rates in Minnesota where we have very competitive 

rates. 

Mr. Ewell, could you just comment on that and help me understand how this might work? 

Mr. EWELL. Sure, thank you, Senator. 

Senator SMITH. In regard to the co-ops. 

Mr. EWELL. My pleasure. 

As you pointed out there are certain complexities that relate to 

hydropower projects. And in particular, as I had mentioned in my 

testimony, with FERC licensing as well as the Power Marketing 

Administrations. And due to those complexities, historically Reclamation has not transferred, of the 30 projects since 1996, none 

of those have had a power component to it. However, we’re very 

much willing to work with the stakeholders and the Committee on 

a particular project because each one is unique by its nature, but 

to work on that to see if there is a way to protect and maintain 

those very matters that you had raised. 

Senator SMITH. Okay, thank you. 

To follow up on the questions that Senator King was asking, how 

would that work? As I understand it the Administration is asking 

for some sort of a categorical exemption from Congressional review. 

How would that work with these, with the hydro question, as well 

as, you know, I am also concerned, of course, about the categorical 

exemption from making sure that environmental safeguards are 

followed? 

Mr. EWELL. No, understood and thank you for the follow-up question. 

As mentioned earlier, as it relates to those projects and kind of 

as the current legislation that’s being worked on in conjunction 

with other departments and OMB which we hope to have up here 

in the coming weeks, but that criteria would look at more single 

purpose projects such that those that don’t have complexities in relation to them that would qualify for that potential categorical exclusion. It would be possible that the more complex project would 

then need to still go through that NEPA process. 
51 

Senator SMITH. I look forward to continuing to work on that. I 

think that that is a really important issue. 

I just want to ask one more question with the time that I have. 

As you were saying, Minnesota has lots and lots of water, but 

surprisingly we don’t have very much water at all in the southern 

part of our state. We have real issues with droughts and water 

shortages which have a significant impact on rural economic development which brings me to the Lewis and Clark project which is 

very important, a big pipeline to bring water into southern Minnesota and on to Iowa. This project is about 73 percent complete 

and it still needs significant resources to be completed. In fact, the 

state has stepped in to fund the project while we are awaiting federal funds. 

I am just wondering, since I have you here, if you will commit 

to working with me on the completion of this really important 

project for rural economic development in Minnesota? 

Mr. EWELL. Thank you for the question, Senator. 

I’m happy to work with you and any stakeholders as it relates 

to projects. Part of my reason in coming to Washington, DC, was 

to serve and to work with those stakeholders and customers of Reclamation to try to complete projects and fulfill the mission of Reclamation. 

I look forward to it. Thank you. 

Senator SMITH. Well, thank you. That will be very important. 

I will look forward to talking with you more about the funding 

in the President’s 2019 funding request which will be very important to us finishing the project. 

Mr. EWELL. Thank you. 

Senator FLAKE. Thank you. 

Senator Risch. 

Senator RISCH. Thank you, Senator Flake. 

Senator Smith, welcome to the Committee. 

When I was Lieutenant Governor I missed the class on the ranking of the states for hydropower. Where does Idaho rank on that? 

[Laughter.] 

I would not have looked at Minnesota as number two. 

Senator SMITH. Well, it is because we purchase so much hydropower from other states, Senator. 

Senator RISCH. Ahhh—— 

Senator SMITH. Otherwise, yes, we have very little hydropower in 

our state. We buy it mostly from other places, including Canada. 

Senator RISCH. Well, next of all I am from Lewis and Clark 

Country. Are you going to also try to tell me that Lewis and Clark 

explored Minnesota when they went through there? We are going 

to have some difficulties, I think. 

[Laughter.] 

Senator SMITH. Oh, I bet we will get along, Senator. 

[Laughter.] 

Senator RISCH. Well, thank you so much. 

The southern part of our state is extremely dry and would be 

very much desert like a lot of the other intermountain western 

states. We have a real interest in this since most of these are conveyances that have been done or a lot of the conveyances that have 

been done, have been done in Idaho. 
52 

Mr. Chairman, I really do not have any questions, but what I do 

want to do is thank you for holding this hearing. I hope we can actually make some progress in this area because it is really important that as we move ahead with the fact that Idaho has two-thirds 

of the Reclamation assets in Idaho are managed by non-federal entities. It is really important when they need to do one of these conveyances that we do it in a less cumbersome manner than what we 

have. 

So thank you for the hearing, and I hope we can actually get 

some drafting done and get something done. And thank you to the 

witnesses, although I could not be here, I did see some of it on TV. 

Paul, welcome to Washington. I have no doubt that you will do 

as well as your predecessor did who had a long range, as you know, 

in that and is Mr. Water in Idaho. 

Thank you, Mr. Chairman. 

Senator FLAKE. Well, thank you. Thank you, Senator Risch. 

Just one follow-up question, if I can, with Mr. Phillips. There 

was some discussion, and we had a little discussion here, about the 

continued applicability to some of these rules with the transfers. 

You said in your statement, ‘‘All such laws will continue to apply 

through the Friant-Kern Canal operations regardless of facility’s 

ownership.’’ Is that generally the case? 

Mr. PHILLIPS. Well certainly in California the similar law would 

still apply and, in fact, if we wanted to do anything different than 

current operations it’s possible that federal law would apply to 

those actions, if we wanted to make any major infrastructure 

changes. 

So, we might not—— 

Senator FLAKE. So if it is just an ownership change, no problem. 

Mr. PHILLIPS. Yeah. 

Senator FLAKE. But if there is change in operations? 

Mr. PHILLIPS. Exactly. 

And I wanted to give one example of one of our districts who, 

just a couple years ago, we repaid all of our contracts in 2010, over 

30 districts. One of those districts that has the pipelines that it 

uses to distribute water off of the canal and then also the house 

that it uses for administration, there’s never any federal employees 

there. They’ve owned it or not owned it, but they’ve used it for decades. And when they approached Reclamation with we’d be interested in title transfer, Reclamation said, just for those pipelines 

and for the one admin building, you need to transfer us $1 million 

so that we can start the permitting process. And that’s the last discussion they’ve had, obviously. And so that gets into what are they 

doing, what is the need for that? 

Senator FLAKE. Thank you. Thank you. I appreciate that. 

I thank you all for sharing your experience or expertise and experience, insights, here today. 

Last Congress we were able to put together a water supply bill 

that addressed many of the needs from across the West. I think between this bill and the Subcommittee’s hearings, we have the material to go to work on another water supply and drought bill that 

deals with a number of the certainty and supply and operations 

issues that you all discussed today. 
53 

For the information of the members, questions may be submitted 

for the record before the close of business on Thursday. The record 

will remain open for two weeks. We ask the witnesses to respond 

as promptly as possible and your responses will be made part of 

the record. With the thanks of the Committee, the Committee 

stands adjourned. 

[Whereupon, at 11:53 a.m. the hearing was adjourned.] 
(54) 

APPENDIX MATERIAL SUBMITTED 
55 

U.S. Senate Committee on Energy and Natural Resources 

Subcommittee on Water & Power 

January 17,2018 Hearing: The Bureau of Reclamation's Title Transfer 

Process and Potential Benefits to Federal and Non-Federal Stakeholders 

Questions for the Record Submitted to Mr. Austin Ewell 

Questions from Ranking Member Maria Cantwell 

Question 1: How would Reclamation ensure that multiple beneficiaries are protected in any 

potential title transfer? 

Response: An open, public and transparent process is essential to the successful transfer of title 

of Reclamation projects or parts of projects. Reclamation has memorialized that lesson in its 

Framework for the Transfer ofTitle guidance, which notes that all transfers must have the 

consent of other project beneficiaries. Beyond project beneficiaries, any legislation that 

authorizes Reclamation to conduct title transfers without additional congressional approval needs 

to ensure that affected state, local, and tribal governments, appropriate federal agencies; parties 

to interstate water compacts and treaties, and the public continue to have the opportunity to voice 

their views and suggest options for remedying any problems. 

Question 2: What would you see as Congress's role for more complex projects, such as those 

involving preference power rates or other complicating factors? 

Response: Reclamation projects such as large multipurpose projects where there is no 

consensus among the project beneficiaries concerning the transfer, where multiple competent but 

competing beneficiaries have expressed an interest in acquiring title, or where the institutional 

and legal concerns cannot be readily resolved are not considered good candidates for 

administrative title transfer, and therefore would benefit from the oversight of Congress. 

Projects that involve power marketed by the Power Marketing Administrations or projects that 

have preference power rates add additional complexity to the transfer process, and therefore 

should require congressional approval before title can be transferred out of Reclamation 

ownership. 

Question 3: How do you ensure that in these transfers, the public interest is protected and that 

the intent of Congress in construction of these facilities remains? 

Response: In addition to ensuring the public has the opportunity to participate in an open, 

public and transparent process as noted above, Reclamation's existing guidance and 

recommended eligibility criteria referenced in our testimony is designed to both ensure that the 

transfer protects not only the interest of the non-federal entities interested in taking title, but also 

the authorized purposes for which the projects were developed and the public interest as well. 

Question from Senator Jeff Flake 

Question: The Bureau of Reclamation's Framework on Transfer of Title indicates that "future 

uses on transferred land and waters" should be considered in determining the price for a project 

and previous experience has shown a range of future operations being considered in NEP A 
56 

U.S. Senate Committee on Energy and Natural Resources 

Subcommittee on Water & Power 

January 17, 2018 Hearing: The Bureau of Reclamation's Title Transfer 

Process and Potential Benefits to Federal and Non-Federal Stakeholders 

Questions for the Record Submitted to Mr. Austin Ewell 

reviews for a title transfer. Please explain how potential future operations should be predicted, 

assessed and/or documented during the title transfer process. 

Response: In negotiating a title transfer, Reclamation must balance the benefits available to a 

transferee, including greater autonomy and flexibility to manage the facilities to meet current 

needs, with Reclamation's interest in ensuring the Reclamation project continues operations 

consistent with the authorized project purposes. Reclamation must consider future uses in order 

to determine the appropriate compensation to the United States, which includes the equivalent of 

the net present value of any repayment obligation to the United States or other income stream the 

United States derives from the assets to be transferred. It has been Reclamation's experience that 

during the development of a potential title transfer agreement, the associated public process 

provides an important forum for recipients of title to outline their goals and intentions, as well as 

allowing other stakeholders to inquire how their interests would be protected if the title transfer 

were to be approved. 

2 
57 

U.S. Senate Committee on Energy and Natural Resources 

Subcommittee on Water & Power 

January 17,2018 Hearing: The Bureau of Reclamation's Title Transfer 

Process and Potential Benefits to Federal and Non-Federal Stakeholders 

Question for the Record Submitted to Mr. Paul Arrington 

Question from Senator Jeff Flake 

Question: The Bureau of Reclamation's Framework on Transfer of Title indicates that "future 

uses on transferred land and waters" should be considered in determining the price for a project 

and previous experience has shown a range of future operations being considered in NEPA 

reviews for a title transfer. Please explain how potential future operations should be predicted, 

assessed and/or documented during the title transfer process. 

First, thank you for this additional question and the continued thought you give to this very 

important issue. As stated in my testimony during the hearing, Idaho has a long history of title 

transfers and Idaho water users continue to view title transfer as a means to provide greater 

flexibility in the operation of their systems. 

It is Idaho's experience that transferred projects continue to operate in the same historical 

manner after the title transfer. These projects were developed, in many cases, over a century ago, 

to provide water delivery and drainage services to the landowners within their boundaries. Water 

rights were perfected under Idaho law provided for the specific purposes of the project Today, 

Idaho's economy relies in large part on the agricultural operations supported by these facilities. 

In areas where urbanization has extended into agricultural areas, these projects still operate to 

deliver irrigation water to subdivisions, golf courses, schools, etc. In short, Idaho's experience is 

that there is no change to "future uses on transferred land and waters" following title transfer. 

Assuming or predicting a change in the future use of a project can have significant consequences 

to a title transfer and, in many cases, may not even be a feasible consideration. Such 

considerations could make the simplest title transfers very complex. 

For example, water rights are issued for specific uses on specific lands, and any future changes to 

project purposes using underlying state water rights will be controlled by the state through a 

public process. Such changes could not be guaranteed. It would not be practical to speculate 

about possible future changed uses of the water rights during the title transfer process. 

Further, state laws provide clear obligations and liabilities for water delivery entities relating to 

the operation and maintenance of water facilities. Even as urbanization occurs around these 

facilities, they are operated and maintained for their same purpose. Urbanization does not change 

the use of these facilities or the obligations and liabilities associated. 

Finally, as stated, most of these facilities have been in operation for well over a century. Millions 

of acres of prime farmland are irrigated each year as a result of these facilities. Tens of thousands 

of homeowners receive the water required to irrigate their lawns and communities irrigate their 
58 

U.S. Senate Committee on Energy and Natural Resources 

Subcommittee on Water & Power 

January 17, 2018 Hearing: The Bureau of Reclamation's Title Transfer 

Process and Potential Benefits to Federal and Non-Federal Stakeholders 

Question for the Record Submitted to Mr. Paul Arrington 

golf courses and schools through these facilities. It is not practical to consider altering the uses of 

these facilities. 

Speculating as to future uses would not be helpful in a title transfer. Absent a clear and identified 

path for future operations, a title transfer should not predict, assume or speculate about changed 

future operations. 

I appreciate that the Subcommittee has some level of concern that an entity could take advantage 

of an abbreviated title transfer process, with abbreviated NEPA requirements, only to change 

some aspect of the transfer works when the process is completed. Such a change may avoid 

NEPA analysis of impacts that, some may feel, should have been considered as part of the 

transfer process. 

However, I do not see this as a reason to limit the streamlined title transfer process. Title transfer 

is sought, in large part, to provide the local entity with local control of these facilities. Title 

transfer provides flexibility in the continued operations. During the hearing, the Subcommittee 

heard multiple examples of how title transfer provides greater flexibility in operations and 

management currently in federal ownership but under local control. Part of that flexibility is the 

right to review operations and, if needs or opportunities arise, change the way those facilities 

operate. If an entity, following title transfer, desires to change some aspect of the use of the 

transferred works, that entity would be solely responsible for the cost, liability and other 

obligations of those operations. 

In some instances, the local entity may know of specific future changed or additional uses for the 

project. In those instances, the NEPA process can consider the future use. Absent a clear plan, 

however, NEPA should presume that the facilities will be operated in a manner consistent with 

the historical operations. 

2 
59 

U.S. Senate Committee on Energy and Natural Resources 

Subcommittee on Water & Power 

January 17, 2018 Hearing: The Bureau of Reclamation's Title Transfer 

Process and Potential Benefits to Federal and Non-Federal Stakeholders 

Questions for the Record Submitted to Mr. Jerry B1·own 

Questions from Senator Jeff Flake 

Question 1: The Bureau of Reclamation's Framework on Transfer of Title indicates that 

"future uses ou transferred land and waters" should be considered in determining the price 

for a project and previous experience has shown a range of future operations being 

considered in NEPA reviews for a title transfer. Please explain how potential future 

operations should be predicted, assessed and/or documented during the title transfer 

process. 

There are several factors that may be considered in evaluating the price and future operations 

including the type of project or facilities, origination ofland (acquired vs withdrawn), repayment 

structure and status, and contractual language. In the case of the Contra Costa Canal, the 

facilities were constructed and land was acquired by Reclamation as part of the Central Valley 

Project (CVP) for the sole purpose of providing water service to the Contra Costa Water District 

(CCWD). The capital costs for all facilities and land acquired for the Contra Costa Canal has 

been repaid by CCWD. CCWD's existing CVP contract specifies that title of the facilities will 

be transferred "upon repayment of all outstanding capitalized costs of one or more of the Project 

Works, and upon appropriate authorization (if Congress". All investments made by the federal 

government and taxpayers has been repaid by CCWD with interest. In cases similar to the 

Contra Costa Canal, it would not be appropriate to negotiate a price when all costs have been 

repaid and the existing contract specifies the financial terms of title transfer. 

There may be some instances where the cost of facilities has not been repaid, or lands used were 

transferred from other federal purposes ("withdrawn lands") to support a project. In these 

instances, it might be appropriate to establish a price during title transfer to ensure federal 

taxpayers are compensated for transferring non-reimbursed facilities or withdrawn lands to a 

non-federal entity. Another consideration in determining the price should be the depreciated 

value or remaining useful life of the facilities. Many projects are at or near the end for their 

useful life and carry a significant liability and requirement for reinvestment by the local entity to 

renew or replace. 

For future operations, consideration should be given to whether the project facilities and land are 

going to continue to operate in the public domain and for the intended purposes. The Contra 

Costa Canal facilities are the primary water conveyance source for the region serving over 

500,000 people, and must continue to operate in perpetuity to meet this need. CCWD has been 

responsible for operations and maintenance of the Contra Costa Canal facilities since 1972 and 

transferring the title to CCWD will not have an impact on future operations or other public 

benefits such as recreation. It would be a reasonable approach to include consideration of the 

underlying need of the existing facilities to define the level ofNEPA review for title transfers. 
60 

U.S. Senate Committee on Energy and Natural Resources 

Subcommittee on Water & Power 

January 17, 2018 Hearing: The Bureau of Reclamation's Title Transfer 

Process and Potential Benefits to Federal and Non-Federal Stakeholders 

Questions for the Record Submitted to Mr. Jerry B1·own 

Question 2: In your testimony you highlighted challenges with incomplete title 

documentation and the time spend to locate missing records. Please explain the delays that 

you have experienced in this area and provide a few more details abont your suggestion on 

using a quitclaim approach. 

As would be expected with facilities of this age, size, and acquisition history, a number of 

discrepancies and gaps in property records were identified as part of the review for the previous 

title transfer effort. These include easements for public roadway and utilities crossings of the 

canal system, missing third-party agreements or land rights, and non-recorded agreements or 

easements. A significant amount of time was spent trying to locate missing records. Toresurvey or otherwise develop legal descriptions or establish records for all the properties would be 

costly, and not provide significant value. Lands of this vintage often have conflicting land 

descriptions with neighboring land records, and a precise survey location of the existing facilities 

is immaterial to their existing presence, use and need. A Quit Claims process was agreed to 

during the previous negotiation sessions with Reclamation. It was also envisioned at the time 

that an escrow account of $100,000 (1996 dollars) would be established and funded by 

Reclamation and used during the three years following the transfer by CCWD to pay for the 

value of any parcels or easements it acquires to resolve meaningful disputes resulting from 

defects in the title being conveyed by Reclamation. Such an approach provides the lowest cost 

to an equitable administration of property rights. 

2 
61 

To 

U.S. Senate Committee on Energy and Natural Resources 

Subcommittee on Water & Power 

Response to Question for the Record Submitted to Mr. Mike DeVries 

from the Honorable Senator Jeff Flake 

January 17, 2018 Hearing: The Bureau of Reclamation's Title Transfer 

Process and Potential Benefits to Federal and Non-Federal Stakeholders 

Question: The Bureau of Reclamation's Framework on Transfer of Title indicates that "future 

uses on transferred land and waters" should be considered in determining the price for a project 

and previous experience has shown a range of future operations being considered in NEPA 

reviews for a title transfer. Please explain how potential future operations should be predicted, 

assessed and/or documented during the title transfer process. 

Response: 

I am grateful for the opportunity to address this question. I appreciate your continued interest in 

the issue of title transfer. 

Previous Utah Title Transfers 

I believe the approach that best addresses these issues is reflected in the Provo River Project 

Transfer Act, Pub. L 108-382, Section 3(c). Provo River Water Users Association (Association) 

was required to hold the United States economically harmless. It did so by paying the present 

value of what the United States expected to receive from the Association under the repayment 

contract, and the present value of what the United States expected to receive, based on historical 

experience, in the way of fees paid by third parties for use of project lands. The payment of 

Metropolitan Water District of Salt Lake & Sandy (District) was the same formula, except with 

respect to the Salt Lake Aqueduct 

In fairness, others seeking title transfers in Utah should be treated similarly. 

l believe that beyond holding the United States economically harmless in the manner described 

speculating about new and different possible future uses of facilities and water could be 

problematic and unwise for a variety reasons. 

There is Little Opportunity for Significant Changes to Existing Project Infrastructure in 

Utah 

In Utah, water is seriously over-appropriated in all but a few isolated outlying areas. 

Entitlements to water from Reclamation projects have been allocated for a long time. With the 

exception of a soon-to-be-delivered supply from the Central Utah Project Utah Lake System 

(ULS), the water from Reclamation projects in Utah is in full use or the same is planned on the 

near horizon. 
62 

Reclamation project facilities in Utah are site specific. The surface water in question is captured 

and stored in the mountains, and transported by gravity to and used in the valleys. The function 

of these facilities is dependent upon their current locations and elevations. 

Many of the Reclamation facilities in Utah are largely located in highly urbanized areas, quickly 

urbanizing areas, or are confined by adjoining federallands. 1 A large majority of Utah's 

population is located in a highly urbanized and narrow band, the Wasatch Front. Approximately 

63% of Utah is federally owned2 

As a result of these factors and more, opportunities for expanding the capacity of, or changing 

the location or footprint of, existing Reclamation project facilities are very limited, or nonexistent. The enclosure of the Provo Reservoir Canal in 2010 to in part carry ULS water in 

addition to water previously carried in the Provo Reservoir Canal may be the only significant 

example. 

There May Be Little Opportunity to Make Changes in the Uses of Project Water in Utah, 

At Least in the Near Term 

Treating surface water to culinary quality standards is a very expensive proposition, in terms of 

infrastructure and operating costs. I am not aware of plans to treat water from the small number 

of Utah Reclamation projects that are the subject of repayment contracts where that water is not 

already being treated. 

It is my understanding that the water from most of the Utah Reclamation projects at issue is 

already being used for at least secondary irrigation in urban and suburban developments to a 

greater or lesser extent, particularly in the areas where growth has been and will be healthy. 

State and Local Interests Dominate When it Comes to Water Rights For Reclamation 

Projects That are Subject to Repayment Contracts 

All water in Utah belongs to the public. 3 

When a repayment contract is involved, the United States' ownership interest in project water is 

"at most nominal." ln Ickes v. Fox, 4 the Supreme Court described beneficial ownership of water 

lights in irrigation projects built under Reclamation Acts 

Although the government diverted, stored and distributed the water, the contention 

of petitioner that thereby ownership of the water or water-rights became vested in 

the United States is not well founded. Appropliation was made not for the use of 

the government, but, under the Reclamation Act, for the use of the land owners; 

1 See https:!/nationalmap.gov/small_scale/printable/images/pdf/fedlands/UT.pdf. 2 https://fas.org/sgp/crs/misc/R42346.pdf. 

3 Utah Code Ann.§ 73-1-1. 4 300 U.S. 82 (1937) 
63 

and by the terms of the law and of the contract already referred to, the water rights 

became the property of the land owners, wholly distinct from the property right of 

the government in the irrigation works. The government was and remains simply 

a carrier and distributor of the water, with the right to receive the sum stipulated in 

the contracts as reimbursement for the cost of construction and annual charges for 

operation and maintenance of the works. 

In Nevada v. United States, 5 the Supreme Court rejected the United States' claim of ownership 

rights confirmed in its name by the Orr Ditch decree for the Newlands Reclamation Project: 

Once these lands were acquired by settlers in the Project, the Government's 

"ownership" of the water rights was at most nominal; the beneficial interest in the 

rights confirmed to the Government resided in the owners of the land within the 

Project to which these water rights became appurtenant upon the application of 

Project water to the land. 

The Solicitor adopted and acknowledged the holding of Nevada in its M Opinion, M-36966, 

explaining, "the water user who puts the project water to beneficial use obtains a vested property 

interest in the water right." The "beneficial ownership of reclamation project water rights is in 

the water user who puts the water to beneficial use." M opinions are binding on DOl. 

In Strawbeny Water Users Association v. United States, 6 the Utah Supreme Court recognized 

"the right of use rests with Strawberry," the water users association, and Reclamation has "mere 

title." 

The Idaho Supreme Court has reached the same conclusion: 

Based upon the United States Supreme Court cases, the Reclamation Act, the Idaho 

Constitution, Idaho statutory and case law, it is clear that the entity that applies the 

water to beneficial use has a right that is more than a contractual right. The 

irrigation entities in this case act on behalf of those who have applied the water to 

beneficial use and repaid the United States for the costs of the facilities 7 

It should be pointed out that with respect to the Moon Lake Project and the Spring City Division 

of the Sanpete Project the United States does not even have nominal title to the water rights for 

those projects. 

Except as expressly stated otherwise by Congress, Congress intended state water law to apply to 

Reclamation projects. "lt generally can be said that state law governs the distribution of water 

from federal projects unless Congress expresses a different approach." 8 

5 463 U.S. 110 (1983) 6 2006 UT 19, ~ 35, 133 P3d 410 7 United States v. Pioneer Irrigation Dist., 157 P.3d 600, 609 (Idaho 2007). 8 Jicarilla Apache 7hbe v. United States, 657 F.2d 1126, 1133 (lOth Cir. 1981) (citing California 

v. United States, 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978)) 
64 

From the legislative history of the Reclamation Act of 1902, it is clear that state 

law was expected to control in two important respects. First, and of controlling 

importance to this case, the Secretary would have to appropriate, purchase, or 

condemn necessary water rights in strict conformity with state law .... Second, 

once the waters were released from the Dam, their distribution to individual 

landowners would again be controlled by state law9 

In the rare circumstances when Congress has expressed a limitation on use of project wateracreage limitations-it has said clearly that such limitations do not apply after a project is paidout.10 

State and Local Development of Water, and Freeing Up Water Markets, is Sound Policy 

Under the Reclamation Act, 

It is declared to be the policy of the Congress to recognize the primary 

responsibilities of the States and local interests in developing water supplies for 

domestic, municipal, industrial, and other purposes and that the Federal 

Government should participate and cooperate with States and local interests in 

developing such water supplies in connection with the construction, maintenance, 

and operation of Federal navigation, flood control, irrigation, or multiple purpose 

projects. 11 

Note, this says the United States should cooperate with states and local interest in "developing 

water supplies for domestic, municipal, industrial and other purposes" from all manner of federal 

projects-"navigation, flood control, irrigation or multiple purpose projects." 

In 2003, then-Secretary of the Department of the Interior implemented Water 2025 to address 

prevention of conflicts about water in the West. That program says the following with respect to 

the administration of water: 

Since 1866, federal water law and policy has deferred to states in the allocation and 

administration of water within their boundaries. This policy will be honored and 

enhanced by Water 2025. 12 

Water 2025 further "recognize[ d) that state and local governments should have a leading role in 

meeting the [water] challenges [the West faces], and that the Department of the Interior should 

9 California v. United States, 438 U.S. 645, 665-67 (1978). 10 43 U.S.C. § 390mm(a). 11 43 U.S.C. § 390b(a). 12 Water 2025: Preventing Crises and Cm?f!ict in the West at 3, available at: 

https:!/books.google.com/booksryid=rK6Rea6uRZ4C&printsec=frontcover&source=gbs_ge_sum 

mary _r&cad=O#v=onepage&q&f=false. 

4 
65 

focus its attention and existing resources on areas where scare federal dollars can provide the 

greatest benefits to the West and the rest of the Nation." 13 

Reclamation and DOI policy supports changes in use from irrigation to Municipal and Industrial 

uses. The current Reclamation policy on Transfers and Conversions of Project Water, PEC P09 

(2017), provides the following introduction: 

Reclamation supports transfers and conversions of project water as means of 

promoting flexibility in water management and maximizing project benefits. 

Reclamation will work with affected State, local, and tribal governments, project 

partners, and water users to facilitate transfers and conversions within the 

framework of relevant legal authority. 14 

It announces the following as Reclamation's "general policy": "to encourage and facilitate 

transfers and conversions of project water within the limits of applicable law and Reclamation's 

responsibilities for protecting the interests of the Federal govemment." 15 

Despite this stated policy, in recent years Reclamation has greatly increased the bureaucratic 

burden, and greatly expanded the federal role in these changes in use. Reclamation broadened 

what qualifies as a "conversion of contract water," making more changes in the use of water 

subject to the requirements ofPEC P09. "Conversion of contract water" is currently defined as 

"A change in primary purpose for the use of contract water (e.g., from irrigation use to M&l use, 

as those terms are defined under Paragraph 3 of PEC POS)." 16 PEC POS in tum defines 

"irrigation use" as "The use of contract water to irrigate land primarily for the production of 

commercial agricultural crops or livestock, and domestic and other uses that are incidental 

thereto." 17 

Footnote 6 to that policy provides that "irrigation use" 

does not include uses such as watering golf courses; lawns and ornamental 

shrubbery used in residential and commercial landscaping, household gardens, 

parks and other recreational facilities; pasture for animals raised for personal 

purposes or for nonagricultural commercial purposes; cemeteries; and similar uses 

(except to the extent that some of these uses may be incidental to uses that are 

primarily agricultural). lt also does not include commercial agricultural uses that 

do not require irrigation, such as fish farms and livestock production in confined 

feeding or brooding operations. 18 

13 Jd at 2. 14 PEC P09 at l, available at: https://www.usbr.gov/recman/pec/pec-p09.pdf. 15 Jd at 3. 16 ld at 2. 17 PEC POS at 3, available at: https://www.usbr.gov/recman/pec/pec-p05.pdf. 18 Jd at 3, n.6. 
66 

The current definition of"irrigation use," incorporated into the definition of"conversion of 

contract water," is directly contrary to prior Reclamation Policy. WTR P02 (200 1 ), a 

predecessor ofPEC P05 and P09, says the following: 

[W]hen a project contractor or end user is itself the one who continues to use 

untreated, raw project water which is converted from the irrigation of commercial 

crops to the irrigation of other vegetation (including, but not limited to, lawns and 

ornamental shrubbery used in residential and commercial landscaping; gardens; 

golf courses, parks, and other developed recreational facilities, commercial 

nurseries, and pasture for animals raised only for personal pleasure and use), then 

such a conversion is not a "change in the type of use" of project water and is, 

therefore, not a "transfer of project water" subject to this policy. 

The 2001 Memorandum that went to Regional Directors explaining the adoption of that policy 

says: 

The Bureau of Reclamation has many old projects where the only authorized 

project purpose is irrigation. If"irrigation" were interpreted, as a matter of Federal 

reclamation law, to mean only the irrigation of commercial crops, with the 

irrigation of vegetation for other purposes (e.g., lawns and ornamental shrubbery 

used in residential and commercial landscaping; gardens, golf courses, parks and 

other developed recreational facilities; commercial nurseries, and pasture for 

animals raised only for personal pleasure and use) being considered a municipal 

and industrial (M&I) use or miscellaneous use of project water, then we would have 

many projects where the project water is being used for unauthorized purposes. 

It appears that even before 2001, the practice ofReclamation for nearly 100 years had reflected 

Reclamation's 2001 interpretation of"irrigation" to include these various non-agricultural 

irrigation uses. 

Although current Reclamation policy expands the changes in what had long been understood to 

be "irrigation uses" that are now subject to its requirements, it recognizes the importance of 

conservation. Under PEC P09, 

Where a contractor foregoes its own consumptive uses of contract water, 

temporarily or permanently, to allow the water to be used for environmental, 

conservation, or similar purposes under a formal state program designed for those 

purposes, and the contractor has obtained Reclamation's approval of the 

arrangement, the change is not a conversion of contract water for purposes of this 

PolicyforPEC 09-01 19 

This exclusion of conservation from the definition of"conversion of project water" aligns with 

Reclamation's System Conservation Pilot Program (SCPP). According to the Upper Colorado 

River Basin Commissioner, the SCPP is 

19 PEC P09 at 2. 

6 
67 

a program designed to explore potential solutions in regards to declining water 

levels in Lakes Mead and Powell, as well as the potential for long-term drought in 

the Upper Colorado River Basin. The program implements and tests on-the ground 

water conservation opportunities which may be helpful in managing ongoing record 

drought conditions in the Colorado River Basin. The purpose of the program is to 

explore and learn about the effectiveness of temporary, voluntary and compensated 

measures that could be used when needed, to help maintain water levels in Lake 

Powell at a level necessary for hydroelectric power production and to protect 

Colorado River compact entitlements. 20 

SCPP projects between 2015 and 2017 in the Upper Basin are estimated to have conserved 

approximately 21,383 acre-feet. 21 Projects in the Lower Basin Phase 1 and 2 were estimated to 

conserve more than 110,000 AF. 22 

What we have been seeing over the past few decades is a move toward free markets that result in 

the highest and best use of water. In 1987, professor David Getches wrote, "society benefits 

from making fuller, more productive use of water resources, not from rigorous obeisance to an 

awkward system that defines water rights based on historical practices." 23 

Expanding on this view, Marc Reisner and Sarah Bates offered the following commentary on the 

state of western water: 

Our approach to western water is now very much at odds with environmental 

protection, which has become one of society's greatest concerns. It is at odds with 

the free market economic system, whose fundamental efficacy has been 

rediscovered by Democrats and Republicans alike. It cuts against the grain of 

America's oldest public virtue: Yankee thrift and efficiency. 

The Bureau of Reclamation ... is still very much like the Bureau of Reclamation: 

its "new mission" largely undefined, its new priorities still unclear or greatly 

hampered by policies and laws it has not moved to change. And the western states, 

for their part, have not responded well (with some notable exceptions) to the 

sweeping changes of the past two decades: the shriveling importance of the 

agricultural economy, the explosive growth of water-short cities, the desperate 

deterioration of water-dependent ecosystems, and the environmental concern that 

the vast majority of their own citizens now share. 

And yet it is in the case of western water that one of the most interesting lessons of 

modern times is being learned-that free market economics and environmental 

20 http://www.ucrcommission.com/RepDoc/SCPPDocuments/SCPP _15 _18.pdf. 21 Id 

22 https://www.usbr.gov/lc/region/programs/PilotSysConsProg/pilotsystem.html. 23 D. Geches, Water Use Fjjiciency: The Value ufWater in the West, Public Land & Resources 

L. Rev, voL 8 (1987). 

7 
68 

preservation are not nearly so incompatible as many have thought. Allowing water 

in the West to gravitate to its highest economic use could be enormously beneficial 

to rivers, wetlands, wildlife, and whole ecosystems. But a more rational scheme of 

priority, allocation, and end use has been subverted by a system almost Soviet-like 

in its inefficiency, its unyielding laws, its abrogation of power to a distant 

priesthood of planners and lawyers and engineers whose attitude toward nature, not 

to say efficiency, seems one of indifference-or, at best, passing interest. 24 

Water 2025 sought to tackle many of the same "sweeping changes" identified by Reisner and 

Bates. In doing so, it recognized that"[ w ]ater banks and markets are essential to avoiding crises 

in critical areas of the West." It explained, 

the Department of the Interior strongly supports the use of these mechanisms to 

allow water to be shifted between competing water uses because they are based on 

a recognition of the validity of existing rights. Water banks also avoid or reduce 

the conflict, crisis, and headache that results when water uses are changed through 

regulatory or other means. More importantly, water banks can provide a 

mechanism for preserving irrigated agriculture and meeting other water supply 

needs. 25 

Allowing water allocation to be the subject of efficient markets, free of federal bureaucracy, will 

save federal administrative dollars, reduce the need for new water projects, and mitigate conflict 

over this scarce resource. 

Changes in use of water should be counted as one of the possible benefits to come from title 

transfer, but not in terms of speculation as to when and how that may come about in any 

particular project, and not in terms of increasing the cost to the water users representative 

seeking title transfer. 

A pre-title transfer review of speculated, possible future changes in facilities and uses of water 

after title transfer could easily become overwhelming. Consider, for example, the NEPA 

process, which typically involves consideration of an actual, proposed action, at least one 

alternative, and a no-action alternative. Even when the details of the proposed action are known, 

this process can be very time consuming and expensive. A similar evaluation of speculative 

possible future changes in facilities and use of water after title transfer could easily become 

overwhelming. Whatever evaluation is to be made of possible changes to facilities and water 

uses as a part of the title transfer process, we would strongly suggest that such evaluation be less 

formal, and be left to Congress. We would not suggest that such evaluations be left to an agency 

that may have a bias toward keeping projects under federal control. 

4812-7177-2764, v. 1 

24 M. Reisner & S. Bates, Overtapped Oasis, Re.fimn or Revolution for Western Water, 146-147 

(1990). 

25 Water 2025: Preventing Crises and Conflict in the West at 16. 

8 
69 

U.S. Senate Committee on Energy and Natural Resources 

Subcommittee on Water & Power 

January 17, 2018 Hearing: The Bureau of Reclamation's Title Transfer 

Process and Potential Benefits to Federal and Non-Federal Stakeholders 

Questions for the Record Submitted to Mr. Jason Phillips 

Questions from Senator Jeff Flake 

Question 1: The Bureau of Reclamation's Framework on Transfer of Title indicates that "future 

uses on transferred land and waters" should be considered in determining the price for a project 

and previous experience has shown a range of future operations being considered in NEP A 

reviews for a title transfer. Please explain how potential future operations should be predicted, 

assessed and/or documented during the title transfer process. 

Response: 

Generally speaking, NEPA reviews should be confined to a range options for future 

operations that include only realistic possibilities. In the case of the Friant-Kern Canal, 

that range is very narrow because, if transferred, the Canal would continue in its 

primary role of providing water supply service to the Friant Division long-term 

contractors (Friant Contractors). In the foreseeable future, the Canal would still be used 

to provide water for direct application to crops, for municipal and industrial uses, and 

also convey water for groundwater banking in various groundwater recharge facilities in 

the San Joaquin Valley. These functions are required and governed by existing longterm contracts with Reclamation and by State law. This would not change with title 

transfer. 

However, two factors, driven by recent changes in State of California groundwater use 

and groundwater policy, could influence the efficacy and scope of Canal operations. 

First, the Friant-Kern Canal faces several risks that have emerged from long-standing 

groundwater overdraft in the San Joaquin Valley. Groundwater pumping outside the 

boundaries of the Friant Division has resulted in staggering levels of subsidence along 

the Friant Kern Canal (three feet of vertical displacement over two years). Importantly, 

the cause of subsidence is not within the control of the Friant Water Authority. While 

recent implementation of California's Sustainable Groundwater Management Act 

(SGMA) may ultimately address the groundwater overdraft that caused the recent 

subsidence, the Friant Water Authority will neither be certain of nor in control of such 

factors that can erode the capacity of the facility. 

Second, the implementation of SGMA will create an increasing demand for conveyance 

and transfer of both surface and groundwater supplies throughout the San Joaquin 

Valley. The Friant-Kern Canal can provide conveyance opportunities that span more 

than 180 miles of the San Joaquin Valley, including intersections with seven river 

systems. 
70 

U.S. Senate Committee on Energy and Natural Resources 

Subcommittee on Water & Power 

January 17,2018 Hearing: The Bureau of Reclamation's Title Transfer 

Process and Potential Benefits to Federal and Non-Federal Stakeholders 

Questions for the Record Submitted to Mr. Jason Phillips 

The effects of SGMA will include an increased demand for conveyance along the FriantKern Canal as a result of these natural interconnectivities. 

The only foreseeable change in use of Reclamation lands or the right-of-way is what may 

be needed to implement a project or projects to correct or mitigate existing and future 

subsidence of the Canal. 

Question 2: In your testimony you indicate that subsidence has reduced the Friant-Kern Canal's 

ability to deliver water by nearly 60 percent. What does this loss mean in terms of volume of 

water that cannot be delivered, and what does that mean for farms, businesses, and communities 

in the area? 

Response: 

A 20-mile portion of the Friant-Kern Canal has subsided three feet in the past two years, 

degrading that segment to 60 percent of its designed capacity. The resulting constriction 

most acutely affects six Friant Division long-term contract holders (Friant Contractors) 

who receive water along the southernmost 52 miles of the cana1 1. These contractors 

irrigate 330,000 acres of land in Tulare and Kern counties, two of the five most 

productive agricultural counties in the United States. 

The capacity restriction presents severe challenges for the Friant Division, whose 

conjunctive-use design relies on the delivery of Class 2 contract supplies. The Friant 

Division Class 2 contract supplies are generally available only during wetter years and 

high-flow events, and delivery of that water was intended to replenish regional 

groundwater supplies during periods of higher water availability. Approximately 

1.4 million acre-feet of Class 2 contracts are distributed throughout the Friant Division, 

with more than a third located below the capacity constriction. Historically, year-to-year 

availability of Class 2 water has fluctuated between 0 and 100 percent, with a long-term 

average reliability of 36 percent. 

The Friant Water Authority estimates that subsidence prevented the delivery of 300,000 

acre-feet in 2017. In some cases this required impacted districts to purchase water 

elsewhere at considerable cost. However, the long-term effect of subsidence on Class 2 

reliability is the more important measure. Without correction, the six contractors below 

the constriction will likely have their Class 2 reliability reduced by almost half (resulting 

1 The six Friant Division contractors directly affected by the subsidence-caused capacity constriction are Saucclito 

Irrigation District (!D), Delano-Earlimart !D. Kern Tulare Water District. South San Joaquin Municipal Utility 

District. Shafter-Wasco TD, and Arvin-Edison Water Storage District. 

2 
71 

U.S. Senate Committee on Energy and Natural Resources 

Subcommittee on Water & Power 

January 17, 2018 Hearing: The Bureau of Reclamation's Title Transfer 

Process and Potential Benefits to Federal and Non-Federal Stakeholders 

Questions for the Record Submitted to Mr. Jason Phillips 

in a reduction of long-term average reliability from 36 to 19 percent). This reduction is 

equivalent to the supply needed to sustain 50,000 acres of land, or 15 percent of the 

land in the six affected districts. These losses are recoverable if the canal is repaired. 

Maintaining lands with proven and reliable supplies such as these will be important in 

the coming years, as the greater San Joaquin Valley could lose 30 percent of its irrigated 

lands to the implementation of the State of California's Sustainable Groundwater 

Management Act (SGMA). 

-- ### --

3 
72 

Clean Water Services 

January 30,2018 

The Honorable Lisa Murkowski, Chair 

The Honorable Maria Cantwell, Ranking Member 

The Honorable JeffFlake, Chair, Subcommittee on Water & Power 

The Honorable Angus King, Ranking Member, Subcommittee on Water & Power 

Committee on Energy and Natural Resources 

United States Senate 

Washington, DC 20510 

RE: January 171

h Subcommittee on Water & Power Hearing to Examine tbe Bureau of 

Reclamation's Title Transfer Process and Potential Benefits to Federal and Non-Federal 

Stakeholders 

Dear Chairs Murkowski & Flake and Ranking Members Cantwell & King: 

On behalf of Clean Water Services (CWS), located in Washington County, Oregon, I am writing 

to share our perspective on the issue of title transfer of Bureau of Reclamation facilities, which 

was discussed in the Water and Power Subcommittee hearing on January 17, 2018. 

Clean Water Services is the water resources management utility in the Tualatin River Watershed. 

Clean Water Services builds and operates wastewater treatment facilities, constructs and 

maintains drainage, water quality, and stream enhancement projects, and manages flow in the 

Tualatin River. CWS provides sanitary and stormwater services to more than 600,000 customers 

in Washington County and its twelve member cities. 

CWS believes that title transfer of Bureau of Reclamation facilities to their non-federal sponsors 

could provide benefits to both the nation's water community and the federal government. It 

could hasten needed environmental and safety benefits at the Hagg Lake project. Additionally, it 

provides water users with the ability to quickly and efficiently make key operational and 

maintenance decisions. Transferring title of Bureau of Reclamation facilities to non-federal 

sponsors will also reduce the federal government's costs and liability associated with aging 

infrastructure. 

The current title transfer process is often slow and expensive, and as a result, many water entities 

are discouraged from pursuing this path. Clean Water Services strongly supports efforts to 

streamline and expedite the title transfer process. CWS is pleased to see that the Subcommittee 

is examining the Bureau of Reclamation title transfer process and looking for ways to achieve 

efficiencies that might encourage more entities to consider title transfer. 

2550 SW Hillsboro Highway • Hillsboro, Oregon 97123 

Phon€: (503)681~3600 • Fax: (503)681-3603 • deanwaterservices.org 
73 

CWS is closely monitoring federal action on the issue oftitlc transfer. A decade ago, Clean 

Water Services and other Tualatin Project repayment contractors had been seriously examining 

title transfer ofHagg Lake, Scoggins Dam and associated lands in our basin. During the 

examination of the facility, significant seismic issues were discovered. As a result, the facility is 

now one of Reclamation's top priorities under its Safety of Dams program. 

Clean Water Services remains interested in exploring title transfer of the Tualatin Project major 

works. Congressional legislation to address some of the current challenges associated with the 

title transfer process could make it a more favorable option. 

We would be happy to provide the Subcommittee with more detailed information about our 

views on title transfers, as well the Hagg Lake/Scoggins Dam project. Thank you for your 

attention to this very important issue. 

Bill Gaffi 

General Manager 

cc Senator Ron Wyden 

Chair Andy Duyck, Clean Water Services/Washington County 

0