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95–284 2017

S. HRG. 114–399 

PENDING WATER AND POWER LEGISLATION 

HEARING 

BEFORE THE 

SUBCOMMITTEE ON 

WATER AND POWER 

OF THE

COMMITTEE ON 

ENERGY AND NATURAL RESOURCES 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

ON 

S. 593 S. 1365 

S. 982 S. 1533 

S. 1291 S. 1552 

S. 1305 

JUNE 18, 2015 

( 

Printed for the use of the 

Committee on Energy and Natural Resources 

Available via the World Wide Web: http://www.fdsys.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 

BILL CASSIDY, Louisiana 

CORY GARDNER, Colorado 

ROB PORTMAN, Ohio 

JOHN HOEVEN, North Dakota 

LAMAR ALEXANDER, Tennessee 

SHELLEY MOORE CAPITO, West Virginia 

MARIA CANTWELL, Washington 

RON WYDEN, Oregon 

BERNARD SANDERS, Vermont 

DEBBIE STABENOW, Michigan 

AL FRANKEN, Minnesota 

JOE MANCHIN III, West Virginia 

MARTIN HEINRICH, New Mexico 

MAZIE K. HIRONO, Hawaii 

ANGUS S. KING, JR., Maine 

ELIZABETH WARREN, Massachusetts 

SUBCOMMITTEE ON WATER AND POWER

MIKE LEE, Chairman 

JEFF FLAKE 

JOHN BARRASSO 

JAMES E. RISCH 

STEVE DAINES 

CORY GARDNER 

ROB PORTMAN 

MAZIE K. HIRONO 

RON WYDEN 

BERNARD SANDERS 

AL FRANKEN 

JOE MANCHIN III 

ANGUS S. KING, JR. 

KAREN K. BILLUPS, Staff Director 

PATRICK J. MCCORMICK III, Chief Counsel 

CHRISTOPHER KEARNEY, Budget Analyst and Senior Professional Staff Member 

ANGELA BECKER-DIPPMANN, Democratic Staff Director 

SAM E. FOWLER, Democratic Chief Counsel 

MELANIE STANSBURY, Democratic Professional Staff Member 

(III) 

C O N T E N T S 

OPENING STATEMENTS 

Page 

Barrasso, Hon. John, a U.S. Senator from Wyoming ........................................... 1 

Hirono, Hon. Mazie K., Subcommittee Ranking Member, and a U.S. Senator 

from Hawaii .......................................................................................................... 82 

Daines, Hon. Steve, a U.S. Senator from Montana .............................................. 90 

WITNESSES 

Thompson, Dionne, Deputy Commissioner for External and Intergovernmental Affairs, Bureau of Reclamation, U.S. Department of the Interior ...... 3 

Meissner, Jerry, Chairman, Dry-Redwater Regional Water Authority ............... 33 

Schempp, Adam, Senior Attorney and Director of the Western Water Program, Environmental Law Institute ................................................................... 43 

Stern, Charles, Specialist in Natural Resources Policy, Congressional Research Service ....................................................................................................... 49 

Willardson, Anthony, Executive Director, Western States Water Council ......... 58 

Yates, Ryan, Director of Congressional Relations, American Farm Bureau 

Federation ............................................................................................................. 73 

ALPHABETICAL LISTING AND APPENDIX MATERIAL SUBMITTED 

American Rivers: 

Letter for the Record ........................................................................................ 126 

Ankney, Hon. Duane: 

Letter for the Record ........................................................................................ 128 

Assiniboine and Sioux Tribes and Dry Prairie Rural Water Authority: 

Statement for the Record ................................................................................. 129 

Barrasso, Hon. John: 

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

Daines, Hon. Steve: 

Opening Statement ........................................................................................... 90 

Photograph ........................................................................................................ 91 

Eastern New Mexico Water Utility Authority: 

Statement for the Record ................................................................................. 133 

Hirono, Hon. Mazie K.: 

Opening Statement ........................................................................................... 82 

Meissner, Jerry: 

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

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

Montana Department of Natural Resources and Conservation: 

Letter for the Record ........................................................................................ 139 

Schempp, Adam: 

Opening Statement ........................................................................................... 43 

Written Testimony ............................................................................................ 45 

Stern, Charles: 

Opening Statement ........................................................................................... 49 

Written Testimony ............................................................................................ 51 

Thompson, Dionne: 

Opening Statement ........................................................................................... 3 

Written Testimony ............................................................................................ 5 

Responses to Questions for the Record ........................................................... 104 

U.S. Department of Agriculture, Forest Service: 

Statement for the Record regarding S. 982 .................................................... 85 

Statement for the Record regarding S. 1533 .................................................. 89 

Page

IV 

Willardson, Anthony: 

Opening Statement ........................................................................................... 58 

Written Testimony ............................................................................................ 60 

Responses to Questions for the Record ........................................................... 112 

Yates, Ryan: 

Opening Statement ........................................................................................... 73 

Written Testimony ............................................................................................ 75 

The text for each of the bills which were addressed in this hearing can be found on the 

committee’s website at: http://www.energy.senate.gov/public/index.cfm/hearings-and-businessmeetings?ID=545782e0-2ade-47b3-98f9-726dfefd4d59 

(1) 

PENDING WATER AND POWER LEGISLATION 

Thursday, June 18, 2015 

U.S. SENATE SUBCOMMITTEE ON WATER AND POWER, COMMITTEE ON ENERGY AND NATURAL RESOURCES, Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:05 p.m. in Room 

SD–366, Dirksen Senate Office Building, Hon. John Barrasso, presiding. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM WYOMING 

Senator BARRASSO. [presiding] I want to thank all of the witnesses for being here today. I call the meeting to order. 

We are in the middle of votes and members may come and go 

based on that. 

Today we are having a hearing on a series of water bills that address protecting water rights and promoting water development in 

the West. Four of the bills are ones I am sponsoring. They are S. 

593, the Bureau of Reclamation Transparency Act; S. 1305, a bill 

to amend the Colorado River Storage Project Act to authorize the 

use of the active capacity of the Fontenelle Reservoir in my home 

State of Wyoming; S. 982, the Water Rights Protection Act; and S. 

1533, the Water Supply Permitting Coordination Act. 

I would also like to note that I am pleased to be sitting in for 

Subcommittee Ranking Member, Mike Lee. He and I share a commitment to ensuring that we protect water rights and examine 

ways to promote more water for rural and Western communities. 

I will briefly explain the four bills I am sponsoring and then if 

other members arrive, they will have an opportunity to give opening statements. After that I will recognize any other sponsors of 

the bills being discussed today for their statements. 

S. 593, the Bureau of Reclamation Transparency Act, is a bill to 

require the Secretary of the Interior to submit to Congress a report 

on the maintenance backlog of the Bureau of Reclamation. S. 593 

seeks to expand on the information provided by Bureau of Reclamation Asset Management Plan by providing a detailed assessment of major repair and rehabilitation needs at the project level 

at Bureau of Reclamation owned and managed sites known as reserved works. The legislation also asks the Bureau to develop a 

similar assessment for sites owned by the Bureau but managed by 

other entities. They are known as transferred works. I believe it is 

important for Congress to know the maintenance backlog of these 

sites so that we can begin to address it. I will note that this bill 

unanimously passed the Senate in the last Congress. 

2 

S. 1305 is a bill which would amend the Colorado River Storage 

Project Act to authorize the use of the active capacity of the 

Fontenelle Reservoir in my home State of Wyoming. The purpose 

of S. 1305 is to have the Bureau of Reclamation enter into an 

agreement with the State of Wyoming to complete the area around 

the Fontenelle Reservoir to increase the storage capacity of the facility. Fontenelle Reservoir is one of the projects authorized by the 

Colorado River Storage Project Act of 1956. This bill directs that 

the State of Wyoming pay for the entire project. This includes paying for the study, the design, the planning and construction of the 

project. This common sense bill would provide much needed water 

storage for Southwestern Wyoming. 

S. 982, the Water Rights Protection Act, is a bill to prohibit Federal agencies from withholding approving permits unless the 

permitee gives up that privately held water right to the Federal 

Government. This bill also prevents the implementation of the Forest Service Groundwater Directive which would essentially allow 

the Forest Service to comment on and require permits for anything 

the agency claims would impact Forest Service groundwater. This 

includes activities that would occur in any watershed where there 

is Forest Service land. This legislation would prohibit the Secretary 

of the Interior and the Secretary of Agriculture from asserting jurisdiction over groundwater that has been historically controlled by 

the states. The bill also recognizes the state’s long standing authority related to protecting, evaluating and allocating groundwater resources. 

The purpose of S. 1533, the Water Supply Permitting Coordination Act, is to streamline the current multiple agency permitting 

process that delays the construction of new or expanded surface 

water storage by creating a one stop shop permitting process 

through the Bureau of Reclamation. Currently, Federal agencies 

are not required to coordinate their permits and approvals with one 

another which can lead to significant delays in the development of 

new water storage. This legislation would put the Bureau of Reclamation in the lead role as a coordinating agency to expedite the 

process. I believe this important bill will help expedite the construction of new water storage projects throughout the West. 

As other members appear I will call on them. I would like to recognize our witnesses today. Ms. Dionne Thompson, Deputy Commissioner of External and Intergovernmental Affairs at the Bureau 

of Reclamation (BOR); Mr. Jerry Meissner, Chairman of the Dry 

Red-water Regional Water Authority; Mr. Adam Schempp, the Director of Western Water Program, Environmental Law Institute; 

Mr. Charles Stern, Specialist in Natural Resource Policy, Congressional Research Service; Mr. Tony Willardson, Executive Director, 

Western States Water Council; and Mr. Ryan Yates, Director of 

Congressional Relations, American Farm Bureau. 

With that let me please call on Ms. Thompson. 

3 

STATEMENT OF DIONNE THOMPSON, DEPUTY COMMISSIONER 

FOR EXTERNAL AND INTERGOVERNMENTAL AFFAIRS, BUREAU OF RECLAMATION, U.S. DEPARTMENT OF THE INTERIOR 

Ms. THOMPSON. Chairman Barrasso, I am Dionne Thompson, 

Deputy Commissioner for External and Intergovernmental Affairs 

at the Bureau of Reclamation. Thank you for the opportunity today 

to testify on the seven bills before the Subcommittee today. 

In the interest of time I will summarize the Department’s views 

briefly and submit my full testimony on each bill for the record. 

I will do my best to answer any questions proposed today; however, as you know, these bills deal with very specific ongoing issues 

in some of your home states, so I may need to defer with detailed 

answers on some questions and reply in writing for the record. 

S. 593, the Reclamation Transparency Act. To begin, S. 593 directs Reclamation to improve and expand upon the information developed on the state of its infrastructure. The bill reflects extensive 

edits made by the sponsors during the prior Congress and is consistent with the draft infrastructure investment strategy Reclamation is initiating concurrently. For these reasons we are pleased to 

support the bill. 

S. 982, the Water Rights Protection Act. My written statement 

on S. 982 explains the Department’s views that this bill compromises the Federal Government’s long standing authority to 

manage Federal lands and associated water resources, uphold proprietary rights for the benefit of Indian Tribes and insure proper 

management of the public lands and resources for the benefit of all 

citizens. This legislation is overly broad and could have numerous 

unintended consequences that would have adverse effects on existing law and voluntary agreements. The Department opposes S. 

982. 

S. 1291, the Northport Irrigation Bill. S. 1291 deals with early 

repayment by the Northport Irrigation District. The Department 

supports this legislation and supported it in prior Congresses, and 

we are pleased to support it today. 

S. 1305, the Fontenelle Reservoir bill. S. 1305 amends the Colorado River Storage Project Act to authorize Reclamation to modify 

Fontenelle Dam on the Green River in Wyoming and as a result 

increase the amount of water developed by Fontenelle. With positive statements detailed in my written statement, the Department 

does not oppose S. 1305. 

S. 1365, Rural Water Project Completion Act. S. 1365 creates a 

fund in the Treasury which would provide Reclamation with a dedicated funding stream to pay for construction of authorized rural 

water projects and to implement Indian water rights settlements. 

The Department appreciates the sponsor’s desire to assist Reclamation with its important budget obligations, and we support the 

goals of this bill. We have some specific concerns, however, described in my written statement. 

S. 1533, the Water Supply Permitting Coordination Act. S. 1533 

directs the Secretary of the Interior to coordinate Federal and State 

permitting processes related to the construction of new surface 

storage projects on lands managed by Interior or the Department 

4 

of Agriculture. The Department does not find the provisions of S. 

1533 to be necessary and consequently does not support the bill. 

S. 1552, the Clean Water for Rural Communities Act. Lastly, as 

S. 1552 would authorize destruction, construction rather, of the 

Dry-Redwater Regional Water Authority System and the 

Musselshell-Judith Rural Water System in the States of Montana 

and North Dakota. These projects would create several hundred 

million dollars of new budget obligation on Reclamation’s Rural 

Water Program. For that reason and the reasons described in my 

written statement, the Department does not support S. 1552. 

Clean, safe, reliable water is essential to the well being of our 

citizens and the continuing progress of America’s economic endeavors, a concept at the very heart of the Bureau’s mission. We appreciate the efforts of the Subcommittee to address the water-related 

needs of the communities we serve. The Bureau, as well, recognizes 

the growing water challenges confronting families, farmers, tribes, 

businesses and rural economies, particularly in the face of a changing climate. 

We believe and we have always believed that such challenges can 

only be met through tenacious collaboration on the ground and 

here in our nation’s capital. With that in mind and noting the constraints of—budgetary resources, Federal budgetary resources, we 

extend our continuing commitment to work with the Subcommittee 

to strengthen Federal programs and projects and that deliver water 

and power to the people we all serve. 

Thank you for the opportunity to present these views. I would be 

pleased to answer any questions at the appropriate time and glad 

to respond in more detail in writing on any questions requiring 

input from on the ground experts. 

[The prepared statement of Ms. Thompson follows:] 

5 


Insert offset folio 1 here 95284.001

Statement of Dionne Thompson 

Deputy Commissioner for External and Intergovernmental Affairs 

Bureau of Reclamation 

U.S. Department of the Interior 

before the 

Committee on Energy and Natural Resources 

Subcommittee on Water and Power 

on 

S. 593, the Bureau of Reclamation Transparency Act 

June 18, 2015 

Chainnan Lee and members of the Subcommittee, I am Dionne Thompson, Deputy 

Commissioner for External and Intergovernmental Affairs at the Bureau of Reclamation 

(Reclamation). I am pleased to provide the views of the Department of the Interior (Department) 

on S. 593, the Bureau of Reclamation Transparency Act. The Department supports S. 593. 

S. 593 is a reintroduced version of bipartisan legislation previously introduced by Senators 

Barrasso and Schatz during the 1131

h Congress. The prior bill was numbered S. 1800, was also 

titled the Bureau of Reclamation Transparency Act, and Reclamation testified on the bill in 

February of2014. Reclamation appreciates the constructive work conducted with tbe sponsor's 

offices and this Subcommittee to develop a number of specific changes to the bill consistent with 

our 2014 testimony. These changes were all incorporated into the current version of S. 593. 

Reclamation recognizes the value in obtaining additional information on the status of our 

infrastructure. The bill is consistent with a draft Infrastructure Investment Strategy and process 

Reclamation has initiated proactively, which I will briefly summarize here. 

For the past year, Reclamation has been developing a draft Infrastructure Investment Strategy 

(Strategy) for assessing and reporting on infrastructure investment needs for Reclamation's 

approximately 4,000 unique assets. The Strategy builds upon Reclamation's ongoing asset 

management planning and budget processes, including the existing major rehabilitation and 

replacements ('MR&R) database. Much of the initial focus of this Strategy has been on "reserved 

works"; facilities constructed, owned, and operated by Reclamation, as opposed to "transferred 

works", which are those facilities that were built and are owned by Reclamation, but which are 

operated and maintained by water and power customers pursuant to contracts. 

Consistent with the directives inS. 593, Reclamation's Strategy process will focus on: improving 

data collection, analysis, and reporting on the condition of Reclamation-owned infrastructure; 

categorizing potential investments according to relative importance and urgency; and 

collaboration with water and power customers in planning for these investments. 

Based on arrangements originating with Section 6 of the Reclamation Act of 1902, over twothirds of Reclamation's facilities are transferred works, managed by non-federal project 

beneficiaries. These operating entities provide valuable input to the formulation of 

Reclamation's annual asset management activities. At present, Reclamation's annual budget 

requests include estimates of the appropriated funds needed for maintenance conducted by 

Reclamation at its facilities. The estimates in the budget request do not include the amounts 
6 


Insert offset folio 2 here 95284.002

funded by non-federal beneficiaries for their maintenance of Reclamation facilities. 

Reclamation's budget documents, delivered to Congress annually and posted online, are 

developed over a multi-step 18-month process that begins at the field office level where 

managers consider the condition of the facilities under their jurisdiction, safety considerations 

associated with facilities' condition, and- very importantly the ability of operating partners to 

fund the work identified pursuant to the terms of their contract and requirements of Reclamation 

Law. Investments in MR&R are analyzed and prioritized at the field, regional, and bureau levels 

based on criteria such as: Engineering Need; Risks and Consequences of Failure; Efficiency 

Opportunities; Financial Feasibility; and availability of Non-Federal Cost Share. 

During this process, Reclamation categorizes the information that will go into its budget requests 

using its Programmatic Budget Structure (PBS). The PBS uses two of its five primary categories 

to show the budget request for Operations and Maintenance (O&M) activities: 1. Facility 

Operations, and 2. Facility Maintenance and Rehabilitation. It should be noted that in addition to 

the appropriated funds in these two categories, a substantial portion of O&M activities is paid for 

directly by water and power users with their own funds or project revenues. 

The Facility Operations category includes items and activities that are necessary to operate 

Reclamation facilities to produce authorized project benefits for water supplies, power, flood 

control, fish and wildlife, and recreation. This category includes not only facility operations by 

Reclamation at reserved works, but also Reclamation's oversight of the operations of facilities 

performed by water user entities at transferred works. Facility Operations includes all routine or 

preventive maintenance activities. Routine maintenance is defined as recurring daily, weekly, 

monthly, or annually, and most tasks performed by Reclamation maintenance staff are included 

in this category. Also included in this category are routine safety and occupational health items, 

including those for workplace safety inspection and hazard abatement. The amount budgeted 

under this category for each facility is the funding necessary to perform routine O&M activities. 

On an annual basis, each region, along with centralized program management staff, determines 

the appropriate budget level to support staffing and other resources necessary at each facility for 

continued operations to deliver authorized project benefits. 

The second category, Facility Maintenance and Rehabilitation, addresses the needs over and 

above the resources in Facility Operations, and corresponds roughly to the concept ofMR&R 

The Facility Maintenance and Rehabilitation category includes major and non-routine 

replacements and extraordinary maintenance of existing infrastructure. This category also 

includes activities to review and conduct condition assessments (facility O&M and dam safety 

inspections), as well as funding necessary for the correction of dam safety deficiencies (dam 

safety modifications), the implementation of security upgrades, and building seismic safety 

retrofits. Consequently, most of tbe budgeted items under this category are related to sitespecific facility needs. 

After Reclamation's field offices identify MR&R activities in their jurisdiction that require 

appropriated funds, they are evaluated at the regional level where these are compared to the 

needs and priorities of other activities and facilities in that region. There are five regions within 

Reclamation. The regions' PBS allotments for Facility Maintenance and Rehabilitation each 

year are then evaluated at the next level of internal review, with Reclamation's Budget Review 

2 
7 


Insert offset folio 3 here 95284.003

Committee (BRC) process. A given year's BRC is working in advance of a budget request two 

years into the future, and is comprised of senior management from across the agency, providing 

the maximum breadth of relevant experience and program knowledge. Each region presents its 

priorities to the BRC, which evaluates the MR&R needs and priorities against those of other 

regions in order to ensure that Facility Maintenance and Rehabilitation activities reflect 

Reclamation's greatest overall need and agency priorities. No urgent maintenance issues 

necessary to the safe operation of a facility are deferred in the budgeting or facility review 

processes. The end result is a budget request that has been prioritized and vetted across the 

organization, concurrent with input from the Department and Reclamation leadership. 

For the purpose of reporting asset condition to the Federal Real Property Profile to meet 

requirements of the Executive order 13327, "Federal Real Property Management," and to better 

understand upcoming needs, Reclamation develops and annually updates estimates ofMR&R 

needs. This effort, which informs the annual budget process, represents an outlook of 

Reclamation's best estimate of reported deferred maintenance, and identified extraordinary 

maintenance, dam safety modifications, repairs, rehabilitation, and replacement activities at a 

point in time looking forward five years, regardless offunding source, for all assets. The 

estimated total in 2012 amounted to $2.5 billion over five years (fiscal years 2013-2017) 1 It is 

important to note that a substantial portion of projected needs to address the rehabilitation of 

aging infrastructure (roughly $1.2 billion of the $2.5 billion estimate) will be financed directly by 

our water and power customers. Cost estimates associated with these identified needs range 

from "preliminary" to "feasibility" level, and should not be collectively assumed to be at one 

particular uniform level of detail. Variability in the MR&R estimates from year to year may be 

the result of additional information received from the estimating source (i.e., Reclamation field 

offices and non-federal operating entities), changes in field conditions, further evaluations 

conducted, and work priorities, thus impacting the inclusion or deletion of specific identified 

needs within a particular year, or from year to year. 

As stated in prior testimony before this Subcommittee, one of the main challenges Reclamation 

faces in securing funding for the identified near-term needs as well as longer-term MR&R needs 

is the varying economic strength of our operating partners. Given the requirement under 

Reclamation Law for the repayment of maintenance costs either in the year incurred or over 

time, Reclamation must work in collaboration with our water and power partners that must repay 

these investments. For some of these partners, the cost-share requirements associated with 

MR&R work are simply beyond their financial capabilities. Like any organization tasked with 

constructing, operating, and maintaining a wide portfolio of assets, Reclamation has to prioritize 

its actions to maximize the benefits derived from its investment of both federal and non-federal 

funds. Given the substantial economic and financial interest of Reclamation's non-federal 

partners, the development of cost estimates for maintenance requirements on reserved and 

transferred works is both collaborative and dynamic. We acknowledge there are tradeoffs 

associated with decisions to fund one identified need versus another, but Reclamation's annual 

budget request reflects our best effort to balance those constantly evolving needs associated with 

all elements of our mission. 

www.usbr.gov/assctmauagcment/ Asset%20lm•entory/FY%202012%20Reclamation%20Assct%20Management%20 

Plan. pdf 

3 
8 


Insert offset folio 4 here 95284.004

The requirements of S. 593 would complement the processes described above, and the bill makes 

allowance for the valuable input from operating partners that is central to Reclamation's asset 

management program. 

This concludes my written statement. I am pleased to answer questions at the appropriate time. 

4 
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Insert offset folio 5 here 95284.005

Statement of Dionne Thompson 

Deputy Commissioner for External and Intergovernmental Affairs 

Bureau of Reclamation 

U.S. Department of the Interior 

Before the 

Committee on Energy and Natural Resources 

Subcommittee on Water and Power 

United States Senate 

on 

S. 982, the Water Rights Protection Act 

June 18, 2015 

Chairman Lee, Ranking Member Hirono and members of the Subcommittee, thank you for the 

opportunity to provide the views of the Department of the Interior (Department) on S. 982, the 

Water Rights Protection Act. I am Dionne Thompson, Deputy Commissioner for External and 

Intergovernmental Affairs at Bureau of Reclamation. S. 982 threatens the Federal Government's 

longstanding authority to manage federal lands and associated water resources, uphold 

proprietary rights for the benefit of Indian tribes, and ensure the proper management of public 

lands and resources. The legislation is overly broad, drafted in ambiguous terms, and likely to 

have numerous unintended consequences that would have adverse effects on existing law, tribal 

water rights, and voluntary agreements. The Department opposes S. 982. 

The federal government retains the right to regulate government lands under Article IV, Section 

3 of the Constitution, which grants the United States authority to reserve water rights for its 

reservations and its property. Similarly, Article l, Section 8 of the Constitution granted the 

United States power to regulate commerce with Indian tribes, which courts have cited, along 

with the treaty power found in Article II, Section 2, as authority to reserve Indian water rights. 

Although the federal government generally defers to the States in the allocation and regulation of 

water rights, dating back to 1908 the Supreme Court has held that the establishment of federal 

reservations- whether by treaty, statute, executive order, or otherwise- impliedly reserved water 

necessary to fulfill the purposes of those reservations, in what is known as the doctrine of federal 

reserved water rights. Originally expressed as the power to reserve water associated with an 

Indian reservation, over time, the Supreme Court and other comts have revisited and built on the 

doctrine in holding that reserved rights applied to all federal lands. In the West, these 

reservations come with priority dates that often serve as protection from injurious surface and 

groundwater diversions by parties with junior priority. Whether to provide a homeland for Indian 

tribes, protect national parks or wildlife refuges, protect endangered or threatened species, secure 

safe and reliable drinking water supplies, safeguard public resource values, or maintain access 

for recreational uses associated with federal lands, the doctrine of federal reserved water rights 

along with existing federal land management authorities are a critical component in allowing the 

Department to fulfill its mission to protect and manage the Nation's natural resources and 

cultural heritage and honor its trust responsibilities and special commitments to American 

Indians. 

Section 2 of S. 982 establishes a general definition of"water right" that is unclear and could 

create uncertainty among water right holders in light of the established doctrine offederal 
10 


Insert offset folio 6 here 95284.006

reserved water rights. lf enacted, we would interpret this definition as having no applicability to 

disputes involving federal reserved water rights. 

Section 3 of S. 982 would prohibit the Secretary of the Interior or the Secretary of Agriculture 

from: (I) conditioning any permit, approval, license, lease, allotment, easement, right-of-way, or 

other land use or occupancy agreement on the limitation, encumbrance, or transfer of any water 

right directly or indirectly to the United States, (2) requiring any water user to apply for or 

acquire a water right in the name of the United States under State law, (3) asserting jurisdiction 

over groundwater withdrawals or impacts on groundwater resources, or ( 4) infringing on the 

rights and obligations of a State in evaluating, allocating, and adjudicating the waters of the State 

originating on or under, or t1owing from, land owned or managed by the Federal Government. 

Section 3 would jeopardize the Departments of the Interior and Agriculture's ability to exercise 

its long-standing authority to establish conditions on the use of public lands and resources, 

interfering with the Departments' ability to protect the lands and resources they are entrusted to 

manage. The intent of this Section, along with the savings clauses in Section 5, is unclear and 

could potentially tie up established practices and lead to extensive and wasteful litigation. For 

example, the Department is concerned that this provision could lead to parties challenging the 

renewal of public lands use permits that are conditioned on assurances that water will continue to 

be available for specific on site purposes, as well as for the purposes of the reservation. This sort 

oflegal ambi!:,>uity could hinder ongoing water use in a time where many communities are 

experiencing significant drought-related hardship. 

Sections 3 and 4 would create uncertainty for many existing voluntary arrangements that are 

designed to produce a more efficient operation of U.S. facilities in the wake of ongoing drought, 

climate change and reduction of water supplies. We are concerned these provisions may prohibit 

parties from voluntarily entering into agreements with the Department or its bureaus with respect 

to water rights in order to protect state, federal or third party interests. For example, this bill 

could prevent the Bureau of Reclamation from partnering with parties who use groundwater to 

support recreational activities on Reclamation lands, since the recreational users often apply 

jointly with Reclamation for a state permit since Reclamation is the land owner. Further, there 

are numerous examples where Reclamation has contracts with water users that include the 

transfer or relinquishment of pre-existing private water rights in exchange for a license or 

contract that provides project benefits at Reclamation facilities, e.g. storage or delivery of 

water. The bill, as written, may prohibit renewal of such contracts, thus interfering with 

voluntary, mutually-beneficial agreements that improve water resource management. 

S. 982 could preclude Departmental bureaus from protecting property interests or resource 

values as mandated by Congress. The bill could result in the transfer of water rights off federal 

reservations that may impede the Department from managing facilities and resources. For 

example, the legislation would prohibit the National Park Service from exercising its authority to 

perfect water rights in the interest of the United States for waters diverted from or used on 

National Park Service lands, including operations associated with National Park Service 

concessioners, lessors or permittees. The requirement that all water rights on National Park 

Service lands be held in the name of the United States is !:,>rounded, in part, on the potential 

damage and disruption that privately held water rights could cause to park resources and 

2 
11 


Insert offset folio 7 here 95284.007

operations. The bill could also hinder the US. Fish and Wildlife's implementation of the 

National Wildlife Refuge Administration Act if any conditions pertaining to groundwater flows, 

whether in or out of a refuge or hatchery, are deemed to be more restrictive than a State's law. 

S. 982 would restrict the Secretary of the Interior and Secretary of Agriculture from acquiring 

water rights under State law, which could seriously reduce these agencies' ability to meet the 

established purposes of federal reserved lands, such as the National Wildlife Refuges or National 

Fish Hatcheries. The legislation would also put these agencies at a disadvantage, as other federal 

agencies would not be under similar restrictions. This restriction could also hinder the Bureau of 

Reclamation's ability to acquire water rights for the purposes of developing future water 

projects. 

S. 982 would also impose unnecessary restrictions on the Bureau of Land Management's (BLM) 

ability to manage water-related resources vital to many multiple uses on public lands and 

cooperatively mitigate impacts to sensitive water resources. Under the Federal Land Policy and 

Management Act, the BLM has the authority to consider terms and conditions on right-of-way 

applications to mitigate impacts to water-related resources. The BLM does not require the 

transfer or relinquishment of water rights as a condition of authorizations for public land use. 

However, S. 982 could undermine cooperative arrangements with ranchers and local 

communities where BLM frequently partners with public land users through collaborative 

agreements to plan, finance, and develop water resources. BLM also commonly applies for new 

livestock water rights to the extent allowed by the laws of the State in which the land is located. 

Where grazing preferences are associated with a water right, the bill could limit BLM's ability to 

conduct grazing preference transfers. The legislation would not provide additional protections 

for the holders of water rights beyond current BLM policy, and if enacted, would jeopardize the 

BLM's ability to manage water-related resources vital to many multiple uses on public lands. 

In terms of groundwater, Section 3(3) could prevent the Department from protecting against 

damage to groundwater-dependent resources, such as thermal features, cave-forming process, 

and springs, located in reserved federal lands and Indian reservations, some of which rely on 

springs for their daily water needs. Section 3(3) precludes Departmental managers from 

"asserting jurisdiction" over groundwater withdrawals or impacts, unless such assertion would 

impose no greater restrictions than state laws, regulations or policies regarding the protection and 

use of !,>roundwater. Some states allow for unregulated groundwater use and provide no 

protection for groundwater-dependent resources. Because states have different laws regarding 

groundwater use and protection, it would be extremely difficult, if not impossible, for federal 

reservation managers to make such determinations on a state-by-state basis. The bill could lead 

to inconsistent approaches by federal managers in different states having different laws, and even 

potentially to litigation as parties attempt to sort out the relative levels of restriction inherent in 

the laws, regulations or policies of different states. 

Undermining the Department's ability to manage groundwater resources could lead to significant 

damages to the purpose of a reservation of federal land. This Section also raises concerns about 

whether Reclamation can continue to exercise existing rights to return flows, including 

groundwater returns, at a number of Reclamation projects in various western States. In addition, 

Section 4(a)(2) would require the Department to "coordinate with the States in the adoption and 

3 
12 


Insert offset folio 8 here 95284.008

implementation of ... any rulemaking, policy, directive, management plan" [emphasis added] to 

ensure consistency with State groundwater laws and programs. This has the potential to impose 

onerous new obligations on Reclamation every time a policy or directive and standard (D&S) is 

adopted or implemented, given that Reclamation already provides the opportunity for public 

review of new policies D&S's. The term "coordinate" is unclear in Section 4, and may therefore 

raise challenges to addressing the tremendous variability in the states' approach to groundwater 

regulation. In addition, Section 4(b) includes a sweeping prohibition on taking "any action that 

adversely affects" water rights granted by a State, a State authority over water rights, or specified 

State definitions related to water rights. This provision would likely generate substantial 

litigation and would likely interfere with legitimate federal water management activities. 

It is unclear what the effect of Section 5 would be on Sections 3 and 4 of the bill. Section 5 

provides a savings clause that indicates S. 982 does not: limit or expand any existing "legally 

recognized authority" of the Secretary of the Interior or the Secretary of Agriculture; interfere 

with Bureau of Reclamation contracts entered into pursuant to reclamation laws; affect the 

implementation of the Endangered Species Act; limit or expand any existing or claimed reserved 

water rights of the Federal government; limit or expand certain authorities under the Federal 

Power Act; and limit or expand any water right or treaty right of any federally recognized Indian 

tribe. Depending on the interpretation of"legally recognized authority" this provision appears to 

be in direct conflict with Sections 3 and 4 of the bill, and could lead to future litigation and 

uncertainty. 

We appreciate the opportunity to present the Department's views on S. 982. As detailed above, 

the bill would negatively impact the Department's ability to manage water resources to protect 

ongoing public lands uses and the environment, allow for maximum beneficial use of Federal 

water facilities, and ensure adequate water is available for fisheries or threatened or endangered 

species. For these reasons and the potential for unintended consequences associated with its 

enactment, the Department opposes this bill. 

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

time. 

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13 


Insert offset folio 9 here 95284.009

Statement of Dionne Thompson 

Deputy Commissioner for External and Intergovernmental Affairs 

Bureau of Reclamation 

U.S. Department of the Interior 

Before the 

Committee on Energy and Natural Resources 

Subcommittee on Water and Power 

United States Senate 

on 

s. 1291 

To Authorize Early Repayment Within the Northport Irrigation District 

June 18,2015 

Chairman Lee and members of the Subcommittee, I am Dionne Thompson, Deputy 

Commissioner for External and Intergovernmental Affairs at the Bureau of Reclamation 

(Reclamation). Thank you for the opportunity to provide the views of the Department of the 

Interior (Department) on S. 1291, legislation to authorize the early repayment of obligations 

within the Northport Irrigation District within the State of Nebraska. The Department supports 

this bill. 

S. 1291 would authorize landowners served by the Northport Irrigation District to prepay the 

remaining portion of construction costs allocated to them for the North Platte Project. 

Completed repayment will relieve the landowners within the District from the full cost pricing, 

compliance and land use certification obligations associated with the Reclamation Reform Act of 

1982 (RRA). Subsection 213(c) of the RRA specifies that no authority is provided for lump sum 

or accelerated repayment of construction costs, except for repayment contracts that provide for 

lump sum or accelerated repayment that were in effect as of the enactment of RRA. Therefore, 

Reclamation and the Congress have interpreted current law to require water contractors to obtain 

additional statutory authority to make accelerated repayments of construction costs allocated to 

irrigation, except for those contracts already in effect as of the RRA's enactment, or for contracts 

otherwise exempt from the provisions of the RRA. 

Northport is the only remaining district in the North Platte Project that is subject to RRA acreage 

limitations. All other districts with the Project have repaid their construction obligations in full 

to Reclamation, which relieved those districts from the full-cost pricing, compliance and land use 

certification obligations associated with the RRA. 

As long as proposals such as this do not reduce revenues or negatively impact the United States, 

Reclamation typically supports legislation authorizing the pre-payment of repayment contracts, 

and has done so previously before the Congress 1

. Specific statutory authorization for early or 

accelerated repayment is not required in all cases involving construction costs that are allocated 

to irrigation, but would be in the case of Northport. 

1 HR 4562 testimony June 10. 2014: HR 818 testimony May 12. 2011: HR 5666 testimony July 27, 2006; HR 4195 

testimony November 9. 2005 
14 


Insert offset folio 10 here 95284.010

In general, early repayment authority in contracts is limited to landowners. In other words, a 

district cannot pay out early; rather, each landowner can decide if his or her land should be paid 

out early. It is Reclamation policy to require landowners who want to pay out early to pay out all 

of their land in the subject district and not just a portion of their land. This policy would 

continue to be applied for Northport and the North Platte Project if S. 1291 were to be enacted. 

Early payout would accelerate the repayment of these project costs to the United States Treasury. 

Where these repayment obligations are not accompanied by interest, early repayment has a net 

positive impact on overall repayment to the Treasury and we are highly confident that this will 

be the case under this bill. 

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

appropriate time. 
15 


Insert offset folio 11 here 95284.011

Statement of Dionne Thompson 

Deputy Commissioner for External aud Intergovernmental Affairs 

Bureau of Reclamation 

U.S. Department of the Interior 

before the 

Committee on Energy and Natural Resources 

Subcommittee on Water and Power 

on 

s. 1305 

Amendment to the Colorado River Storage Project Act on Increasing the Active Capacity 

ofFontenelle Reservoir 

June 18,2015 

Chairman Lee and members of the Subcommittee, I am Dionne Thompson, Deputy 

Commissioner for External and Intergovernmental Affairs at the Bureau of Reclamation 

(Reclamation). Thank you for the opportunity to provide the views of the Department of the 

Interior (Department) on S. 1305, which would amend the Colorado River Storage Project Act 

(Public Law 84-485). The amendment authorizes Reclamation to increase the active capacity 

and, as a result, the amount of water developed by Fontenelle Reservoir in Wyoming. With the 

concerns described below appropriately noted, the Department does not opposeS. 1305 in its 

current form. 

Fontenelle Reservoir is part of the Seedskadee Project, a participating project under P.L. 84-485. 

The dam and reservoir are located in the Upper Green River Basin in southwestern Wyoming 

about 50 miles from Rock Springs. Fontenelle Dam is an embankment dam standing 139 feet 

high with a crest length of over a mile (5,421 feet). Fontenelle Reservoir has a total capacity of 

345,360 acre-feet and is operated for municipal and industrial water use, power production, flood 

control, and fish and wildlife-in support of the Seedskadee National Wildlife Refuge. 

Recreation facilities at Fontenelle Reservoir are managed by the Bureau of Land Management 

under an agreement with Reclamation. 

The intent ofS. 1305 is to increase the yield ofFontenelle Reservoir, further developing the State 

of Wyoming's allocation of Colorado River water under the Colorado River Compact. To 

understand how S. 1305 would increase the water available to Wyoming, it is important to 

review some basic engineering features associated with Fontenelle Dam. 

In general, the active capacity of a reservoir is the space between the highest elevation at which 

water can be stored and the lowest elevation from which water can be released so as to allow 

operation for all authorized purposes. Power is an authorized purpose of the Seedskadee Project. 

The lowest elevation at which Fontenelle Powerplant can be safely operated is approximately 40 

feet above the bottom elevation of the inlet to the powerplant, and is referred to as "minimum 

power pool elevation." 

In order to protect the upstream face of a dam from erosion caused by wave action, large stones 

that are resistant to erosion and wave action are placed on the upstream side of the dam. These 
16 


Insert offset folio 12 here 95284.012

stones are referred to as "riprap". ln keeping with engineering practices, Fontenelle Dam 

includes riprap protection on the upstream face of the embankment. Because the dam would not 

be operated with any frequency below the lowest power production elevation, original 

construction and subsequent modifications did not include placing riprap on the upstream face of 

dam below minimum power pool elevation. 

For some years, the State of Wyoming has expressed interest in placing riprap below the 

minimum power pool elevation, and this project has come to be known as the "Riprap Project." 

By doing so, it would be possible to operate the reservoir within a greater range of elevationsincreasing the operating range and yield of the reservoir. S. 1305 would authorize the 

Department to undertake the "study, planning, design and construction activities" necessary to 

consider and implement the Riprap Project (a lowering of the elevation of the riprap). 

In considering the Riprap Project, Reclamation has had concerns, and we appreciate the chance 

to review this legislation as it was drafted over the past several months. We are pleased to note 

that each of these concerns appears to be addressed in the introduced language of S. 1305. 

S. 1305 amends P.L. 84-485 to authorize consideration and implementation of the Riprap 

Project. In doing so, it grounds the Riprap Project on the statute that originally authorized the 

Seedskadee Project. S. 1305 relies upon the authority of the Contributed Funds Act (Act of 

March 4, 1921) as the means for the State of Wyoming to provide the funding to consider and 

undertake the Riprap Project. With this arrangement, Reclamation believes that the Riprap 

Project can be implemented without any request for new appropriations, and with no foreseeable 

impact to Reclamation's already constrained budget. 

lt is unlikely that the Riprap Project will adversely affect other states dependent on the Colorado 

River or Mexico beyond what they would face when the Upper Basin States make full utilization 

of their apportionments, considering their apportionments and required releases from the Upper 

Basin to the Lower Basin under current operational guidelines that implement key provisions of 

the Law of the River including the Colorado River Compact. Having said that, ifS. 1305 

becomes law, it will be important to conduct additional analysis to ensure that other interests are 

protected. S. 1305 includes the following elements that should provide some assurance of no 

adverse impacts to other water uses. 

First, S. 1305 appears to create robust sideboards to prevent the Riprap Project from conflicting 

with law, compacts, and treaties. This protects against Wyoming expanding its entitlement to 

Colorado River water. In Section 2, S. 1305 provides reassurance that it will not modify, conflict 

with, preempt, or otherwise affect any applicable federal statutes or decrees, including, but not 

limited to: 

• Boulder Canyon Project Act 

• Colorado River Compact of 1922 

• Boulder Canyon Project Adjustment Act 

• Treaty between the United States of America and Mexico relating to the utilization of waters 

of the Colorado and Tijuana Rivers and of the Rio Grande 

• Upper Colorado River Basin Compact 

2 
17 


Insert offset folio 13 here 95284.013

• Colorado River Storage Project Act (P.L 84-485), other than as indicated in Section 1 of S 

1305 

• Colorado River Basin Project Act (Public Law 90-537; 82 Stat. 885) 

• Any State of Wyoming or other State water law 

Second, S. 1305 amends P.L. 84-485 to authorize the planning, design, and construction of the 

Riprap Project. The bill's stated purposes include "making it possible for the States of the Upper 

Basin to utilize, consistently with the provisions of the Colorado River Compact, the 

apportionments made to and among them in the Colorado River Compact and the Upper 

Colorado River Basin Compact, respectively." P.L. 84-485 sets a clear boundary around the 

Riprap Project; it cannot permit Wyoming to expand its entitlements under the Colorado River 

Compact and the Upper Colorado River Basin Compact. 

Another important element of S. 1305 is the definition of active storage capacity. Although 

active capacity can generally be understood as the difference between the upper and lower 

elevations at which a reservoir may be operated, the elevation of both the upper and lower limit 

may also be defined by considerations beyond engineering. Other considerations often limit the 

degree to which a reservoir may be drained. These considerations include issues oflaw, 

hydrology, economics, and environment. S. 1305 acknowledges these limitations; in the bill 

"active storage capacity" is "defined or limited by legal, hydrologic, structural, engineering, 

economic, and environmental considerations." 

Environmental compliance concerns also are addressed under S. 1305. The bill requires 

compliance under the National Environmental Policy Act, the Endangered Species Act, and the 

National Historic Preservation Act. 

WhileS. 1305 is clearly written to integrate with existing law, regulations and contracts, there 

are some questions associated with operation and design that may limit the scope of the Riprap 

Project. Reclamation has not studied the operation ofFontenelle Dam at the lower elevations 

proposed under the Riprap Project. The original planning and design for the facility did not 

include operations at such low levels. Operation at lower levels could raise the following issues 

that should be explored by the study to be authorized by this Act: 

• Water Delivery Requirements- At lower reservoir elevations, the rate at which the reservoir 

can be drained is slowed (because of the reduced hydraulic head). Without the study and 

planning that would be conducted pursuant to this bill, Reclamation does not know whether 

water can be delivered at such rates as would be necessary. 

• lnstream Flows- Under current operations and agreements, Reclamation is required to 

deliver 5,000 acre-feet to the Seedskadee National Wildlife Refuge for fish and wildlife 

purposes on an annual basis. As noted above, without additional study Reclamation does not 

know whether it will be able to meet these flow requirements at lower reservoir levels. 

• Power Generation Operating the reservoir at lower elevations will affect powerplant 

operations. There would be periods when the powerplant cannot be operated efficiently and 

when the powerplant cannot be operated at all. The result will be impacts on Reclamation's 

3 
18 


Insert offset folio 14 here 95284.014

ability to generate and deliver power under P.L. 84-485. There is a potential for impacts to 

irrigators and municipalities that use Colorado River Storage Project power as well as to the 

members of the Colorado River Energy Distributors Association, which rely upon and 

purchase the power. 

That concludes my statement. I am pleased to answer questions at the appropriate time. 

4 
19 


Insert offset folio 15 here 95284.015

Statement of Dionne Thompson 

Deputy Commissioner for External and Intergovernmental Affairs 

Bureau of Reclamation 

U.S. Department of the Interior 

Before the 

Committee on Energy and Natural Resources 

Subcommittee on Water and Power 

United States Senate 

on S. 1365 

A Bill to authorize the Secretary of the interior to use designated funding to pay for 

Construction of authorized rural water projects, and for other purposes 

June 18, 2015 

Chairman and Members of the Subcommittee, I am Dionne Thompson, Deputy Commissioner 

for External and Intergovernmental Affairs at the Bureau of Reclamation (Reclamation). I am 

pleased to be here to provide the views of the Department of the Interior (Department) on S. 

1365, a bill to authorize the Secretary of the Interior to use designated funding to pay for 

construction of authorized rural water projects and for implementation of Indian water rights 

settlements. My statement today will draw upon testimony delivered before this Committee 

regarding S. 715 in the 1131

h Congress and S. 3385 during the !12th Congress. 

Like the sponsors of the legislation being considered today, the Department supports the goals of 

encouraging vibrant rural economies and ensuring safe, reliable sources of drinking water for 

rural residents. Rural water projects help to build strong, secure rural communities and are 

important to our non-federal sponsors, which is why the President's FY 2016 Budget includes 

$36.6 million for Reclamation's rural water projects. Likewise, the importance of rural water 

has led Congress in recent years to increase appropriations for the construction of authorized 

projects. Since 2012, approximately $88 million in additional appropriations have been included 

for rural water construction projects. The Administration also recognizes that water is a sacred 

and valuable resource for Indian people and therefore has reaffirmed the Federal Government's 

commitment to addressing the water needs of Native American communities through Indian 

water rights settlements. 

The Department has a solid history of supporting Reclamation's rural water program, allocating 

almost $450 million offunding between FY 2010 and FY 2015 to construct, operate, and 

maintain authorized rural water projects. This is in addition to $232 million provided for these 

projects in the American Recovery and Reinvestment Act (Recovery Act). Still, as important as 

the rural water program is, it must compete with a long list of other priorities within the Budget, 

including aging infrastructure, environmental compliance and restoration actions, and other 

activities needed to address future water- and energy-related needs, including the shifting 

challenges associated with the effects of climate change. Notwithstanding the importance of 

rural water projects, current budgetary constraints have limited the ability to make federal 

investments that match on-the-ground capabilities. 

1 
20 


Insert offset folio 16 here 95284.016

Despite such constraints Reclamation has worked diligently to promote sustainability and 

resiliency for water users in the West and to support the basic drinking water needs of rural 

communities- tribal and nontribal- as directed by the Congress. 

S. 1365 would create the Reclamation Rural Water Construction and Settlement Implementation 

Fund. In contrast to S. 715 and S. 3385 from the previous two Congresses, which would have 

established a single account receiving $80 million annually for 20 years to address rural water 

needs, S. 1365 would establish two accounts with deposits totaling $115 million annually for 20 

years. 

In the first account, S. 1365 aims to provide a constant level of mandatory funding to support the 

construction of authorized rural water projects to deliver water to smaller, isolated communities. 

Similarly, the second account would be structured to provide a constant level of mandatory funds 

to underwrite implementation of authorized Indian water rights settlements, including planning, 

design and construction of water projects. 

Regarding the first account, it is the Department's belief that federal investments in such projects 

must recognize the current fiscal constraints and the need to make tough choices in prioritizing 

those investments. The Administration supports the goals embodied by S. 1365 of advancing the 

economic security of Americans living in rural areas and on tribal lands. Constructing basic 

water infrastructure projects will not only help to provide the economic and health benefits 

associated with clean, reliable, drinking water systems that many Americans take for granted, but 

it would also assist in creating jobs in the short-term through ongoing construction, but the 

Administration supports discretionary funding for these projects. 

Since the 1980s, Congress has authorized Reclamation to undertake the design and construction 

of specific projects intended to deliver potable water supplies to rural communities located in 

North Dakota, South Dakota, Montana, New Mexico and the non-Reclamation states of 

Minnesota and Iowa. These authorized projects exist in communities that have long experienced 

urgent needs for water due to poor quality of the existing supply or the lack of a secure, reliable 

supply. For example, in rural Montana, some communities have, from time-to-time, been subject 

to "boil water" orders due to the unsafe conditions of the existing drinking water supplies. fn 

Eastern New Mexico, the communities currently rely on the diminishing Ogallala Aquifer and 

the current drinking water systems are projected to be depleted within 40 years. The rural water 

supply projects authorized for Reclamation's involvement provide a resource to these rural 

communities, and the Congress has authorized federal assistance to meet those needs. 

In 2006, the Rural Water Supply Act (P.L. 109-451) authorized Reclamation to establish a 

program to work with rural communities- including tribes- in the 17 Western States to assess 

rural water supply needs and conduct appraisal and feasibility studies without individual acts of 

Congress. Pursuant to the Rural Water Supply Act, Reclamation created a program to enable 

coordinated examination of the various options to address rural communities' water supply needs 

through a cost-effective, priority-based process. 

In addition to authorizing appraisal investigations and feasibility studies, Section 104 of the 

Rural Water Supply Act required that the Secretary of the Interior- in consultation with the 

2 
21 


Insert offset folio 17 here 95284.017

Secretary of Agriculture, the Administrator of the Environmental Protection Agency, the 

Director of the Indian Health Service, the Secretary of Housing and Urban Development and the 

Secretary of the Army develop a comprehensive assessment of the status of the existing, 

authorized rural water projects. Section 104 also directed Reclamation to describe its plans for 

completing the design and construction of the authorized rural water projects. 

In response to Section 104, Reclamation conducted a review and, in 2014, issued a report titled 

"Assessment of Reclamation's Rural Water Activities and Other Federal Programs that Provide 

Support on Potable Water Supplies to Rural Water Communities in the Western United States" 

which is posted on Reclamation's website (www.usbr.gov/ruralwater/docs/Rural-WaterAssessment-Report-and-Funding.pdO. It should be noted that the assessment was open to public 

comment and that the comments from rural water project sponsors, water districts, Indian 

Tribes, and other interested parties were carefully reviewed and resulted in modifications to the 

assessment and the criteria used to allocate project funding. 

In addition to providing a report on the status of the existing authorized rural water projects, the 

assessment report describes how Reclamation's Rural Water Supply Program will be carried out 

and coordinated with other Federal programs that support the development and management of 

water supplies in rural communities in the western states while maximizing efficiency of the 

various programs by leveraging Federal and non-Federal funding to meet the shared goals of the 

programs. 

As described in the assessment report, each of the Acts of Congress authorizing Reclamation's 

involvement in the rural water supply projects required that the cost ceilings included in the 

original authorizing legislation be indexed to adjust for inflation, estimated to be 4% annually. 

The result of these indexing requirements is that the overall cost of the authorized rural water 

projects has risen and continues to rise, such that the total estimated funding that would be 

required to complete these projects is as of2014 approximately $2.4 billion, which is 

substantially higher than the original authorization amounts, which totaled $2.0 billion. 

Reclamation has recognized the need to make meaningful progress in constructing authorized 

rural water projects, even amid severe pressure on Reclamation's budget across nearly all 

program areas. At the levels provided in the 2016 budget, and without additional non-federal 

funding, progress would be made toward project completion, but some of the currently 

authorized projects would be completed much later, perhaps not until well after 2063, despite 

close to $4.0 billion being invested by that time. In fact, it is estimated that, as of2063, an 

outstanding balance of approximately $1.1 billion would remain to complete construction of 

current! y authorized projects. 

Across the country, state, local, and Tribal governments are taking a greater leadership role in 

water resources investments, including financing projects the federal government would have in 

the past. Constrained federal budgets do not preclude the ability of non-federal parties to move 

forward with important investments in water resources infrastructure and the Department stands 

ready to support that effort, even with the additional resources made available through S. 1365. 

3 
22 


Insert offset folio 18 here 95284.018

S. 1365 would create a dedicated Reclamation Rural Water Construction and Settlement 

Implementation Fund in the United States Treasury comprised of monies that would otherwise 

be deposited into the Reclamation Fund established by the first section of the Act of June 17, 

1902 (32 Stat 388, chapter 1093). This funding source would afford earlier completion of 

authorized water projects and would enable the payment of compensation associated with 

authorized Indian water rights settlements. Section 1 03( c) of the bill provides that the bill's cost 

would be offset so as to not increase the deficit The Department supports such language. 

However, even if an equivalent and acceptable offset is identified, use of those funds must be 

weighed against other priorities across the federal government, including deficit reduction. 

Section 103 ofS. 1365 provides that, for each fiscal year from 2015 through 2035, $115,000,000 

per year will be deposited into the Fund in addition to interest earned on invested money that is 

available in the Fund but not utilized for the current withdrawaL Section l 04( c) of S. 1365 limits 

expenditures from fiscal year 2015 through 2035 from the Fund to not more than $115,000,000 

in addition to interest accrued in that same fiscal year, with an allowance for the use of funds 

carried over from prior years. The bill further divides the total fis>ure of $115 million between 

the two accounts $80 million for the Rural Water Project Account, and $35 million for the 

Reclamation Infrastructure and Settlement Implementation Account 

Specific to the Rural Water Project Account, S. 1365 provides that if a feasibility study has been 

submitted to the Secretary by February 27, 2015, and those rural water projects are subsequently 

authorized by Congress, they may be eligible to receive funding through the Reclamation Rural 

Water Project Account S. 1365 directs the Secretary of the Interior to develop programmatic 

goals enabling the expeditious completion of construction of the existing rural water projects and 

to establish prioritization criteria for the distribution of funds, a requirement addressed through 

the completion of Reclamation's assessment report 

With respect to its rural water program, Reclamation's first goal is to advance the construction of 

rural water projects that meet the most urgent water supply needs in the shortest amount of time, 

given our current budget constraints. The second goal is to give priority to rural water projects 

that address Indian and tribal water supply needs. 

Within the context of the above goals, Reclamation recognizes that current and projected funding 

levels may not be sufficient to expeditiously complete the federal funding portion of every 

project and that it must prioritize the allocation of available funding. The assessment report 

outlines prioritization criteria to guide Reclamation's decision-making to maximize the agency's 

ability to meet its programmatic goals, to maximize water deliveries to rural communities in as 

short a period as possible, and to reflect the diverse needs and circumstances facing each 

individual project The water construction prioritization criteria identified by Reclamation, and 

also reflected in Section 202(b )(2) of S. 1365, take into account the following: 

Is there an urgent and compelling need for potable water supplies in the affected 

communities? 

How close is the Project to being? 

What are the financial needs of the affected communities? 

4 
23 


Insert offset folio 19 here 95284.019

What are the potential economic benefits of the expenditures on job creation and general 

economic development in the affected communities? 

What is the ability of the Project to address regional and watershed level water supply 

needs? 

Does the project minimize water and energy consumption and encourage the 

development of renewable energy resources such as wind, solar, hydropower elements? 

Does the project address the needs of tribal communities, tribal members, and the other 

community needs or interests? 

The criteria would also take into account "such other factors as the Secretary determines to be 

appropriate to prioritize the use of available funds." Regarding the second account, for Indian 

water rights settlements, Title III of S. 1365 further defines the Reclamation Infrastructure and 

Settlement Implementation Account, stipulating that no less than $35 million, plus accrued 

interest, be expended to provide compensation to resolve congressionally authorized Indian 

water rights settlements and to complete planning, design and construction of authorized water 

projects associated with those settlements. Creating a mandatory fund for Indian Water 

Settlements would foster certainty in water rights and boost economic growth in Indian Country. 

The Administration is proud of its record on Indian water rights settlements, and we continue to 

be committed to settlements as an important way to address the water needs of Native American 

communities. Indian water rights settlements are consistent with the general Federal trust 

responsibility to American Indians and with Federal policy promoting tribal sovereignty, selfdetermination, and economic self-sufficiency. Water settlements not only secure tribal water 

rights but also help fulfill the United States' promise to tribes that Indian reservations would 

provide their people with permanent homelands. These settlements resolve what has often 

been decades of controversy and contention among tribes and neighboring communities over 

water, replacing those conflicts with certainty, which fosters cooperation in the management of 

water resources and promotes healthy economies. As drought and climate change intensifies, it 

is all the more urgent to plan for settlement costs, enable the timely resolution of tribes' rights, 

and provide water to Native Americans nationwide. 

Since 2009, the Administration has supported and Congress has enacted six Indian water rights 

settlements for nine tribes at a total Federal cost of slightly more than $2 billion. All told, these 

settlements resolved disputes and litigation spanning well over a century. Most recently, the 

Administration was pleased to support two smaller and less comprehensive water rights 

settlements involving Tribes, in the 113111 Congress: the Pyramid Lake Paiute Tribe-Fish Springs 

Ranch Settlement Act and Bill Williams River Water Rights Settlement Act of20l4. The 

Administration is working with all of the affected tribes now to implement these settlements. 

This Administration's active involvement in settlement negotiations has resulted in both 

significant improvements in the terms of the settlements and substantial reduction in their 

Federal costs, which ultimately led to our support for these six Indian water rights 

settlements. We stand ready to support Indian water settlements that result from negotiations 

with all stakeholders, including the Federal government, and that represent a good use of 

taxpayer dollars and good cost share contributions from states and other benefitting parties. 

5 
24 


Insert offset folio 20 here 95284.020

To date, Congress has enacted 29 Indian water settlements, a good start in addressing the need 

for reliable water supplies in Indian country. There are 277 federally recognized tribes in the 

West alone (excluding Alaska), and we are seeing increased interest in Indian water rights 

settlements east of the JOO'h Meridian. Many of these tribes are in need of: clean, reliable 

drinking water; repairs to dilapidated irrigation projects; and the development of other water 

infrastructure necessary to bring economic development to reservations. 

Once a settlement is enacted by Congress, and appropriations are authorized to implement it, 

primary funding responsibilities fall to Reclamation and the Bureau of Indian Affairs (BIA), 

although other agencies can and do contribute based on the particular terms of a settlement. To 

support these efforts, the President's FY 2016 Budget requests $244.5 million for Indian water 

rights settlements ($40.8 million for negotiation and legal support and $203.7 million for 

implementation, including $136 million for Reclamation and $67.7 million for the Bureau of 

Indian Affairs). 

With some notable recent exceptions, such as the $180.0 million in mandatory funding 

authorized by PL. 111-291 and directed to the Navajo-Gallup Water Supply Project between the 

fiscal years of2012-2014, water rights settlements generally have been funded through the 

Department's discretionary appropriations. Work to be performed under the settlements by 

Reclamation has come out of Reclamation's budget, and trust funds and other settlement costs 

generally have come out of the BIA's budget, but all Departmental agencies have been asked 

from time to time to expend discretionary funds from their budgets on implementation of these 

water settlements. In all of these cases, the Administration has worked successfully with 

Congress to secure funds to continue to implement and complete signed settlements. The 

Administration will certainly need to continue to work with Congress on these issues. 

In conclusion, I want to underscore the importance of these settlements to this Administration. 

Indian water rights settlements can resolve uncertainty, produce critical benefits for tribes and 

bring together communities to improve water management practices in some of the most stressed 

water basins in the country. The Administration believes that discretionary funding is the 

appropriate avenue for addressing water rights settlements' while remaining cognizant of and 

responsive to the many competing needs for limited budgetary resources, particularly given 

widespread drought throughout much of the West. 

This concludes my written statement. I am pleased to answer questions at the appropriate time. 

6 
25 


Insert offset folio 21 here 95284.021

Statement of Dionne Thompson 

Deputy Commissioner for External and Intergovernmental Affairs 

Bureau of Reclamation 

U.S. Department of the Interior 

before the 

Committee on Energy and Natural Resources 

Subcommittee on Water and Power 

on 

S. 1533, the Water Supply Permitting and Coordination Act 

June 18, 2015 

Chairman Lee and members of the Subcommittee, I am Dionne Thompson, Deputy 

Commissioner for External and Intergovernmental Affairs at the Bureau of Reclamation 

(Reclamation). I am pleased to provide the views of the Department of the Interior (Department) 

on S. 1533, the Water Supply Permitting and Coordination Act. This testimony draws upon an 

earlier statement presented by the Department in February 2014 during the ll31

h Congress' 

consideration of predecessor legislation HR 3980 1

. 

S. 1533 directs the Secretary of the Interior to coordinate federal and state permitting processes 

related to the construction of new surface storage projects on lands managed by Interior and the 

US. Department of Agriculture (USDA). Section 3(a) of the bill would establish Reclamation as 

the "lead agency for purposes of coordinating all reviews, analyses, opinions, statements, 

permits, licenses, or other approvals or decisions required under Federal law to construct 

qualifying projects." A series of deadlines and timelines are mandated in Section 4 for notifying 

and consulting with cooperating agencies, completing environmental reviews, and determining 

project schedules. While nothing in the bill would facilitate more regular federal funding for any 

of these activities, the bill does allow for contributed funds from non-federal entities. Section 

6(c) of the bill would prohibit use of any contributed funds for "a review of the evaluation of 

permits" by the Reclamation Regional Directors in the region in which qualifying projects would 

be built. 

This legislation raises several concerns. First, establishing Reclamation as the lead agency for 

permitting for storage projects on Interior and USDA administered lands is problematic. Since 

those lands exist in all 50 states, this would put Reclamation in a significantly expanded role of 

administering the permitting process for activities beyond the 17 Western states where 

Reclamation has typically had jurisdiction under Reclamation law. 

Next, in Section 2(4) the definition of"cooperating agency" leads to confusion and is 

inconsistent with established regulations and judicial interpretations. For example, it is 

inconsistent with the definition under the National Environmental Policy Act (NEPA) and its 

implementing regulations which identify federal, Tribal, State, and local governmental entities as 

potential cooperating agencies and further allows those governmental entities with subject matter 

1 www.usbr.gov/newsroom/testimony/detail.cfm7Record!D=2521 

1 
26 


Insert offset folio 22 here 95284.022

expertise to be designated cooperating agencies. In addition, it is unclear what purpose is served 

by the bill's limitations on the use of agencies' funding in Section 6(c). 

On the whole, it is unclear what public policy problem would be addressed by the bilL Under 

NEP A, as well as the newly updated Principles, Requirements and Guidelines for Water and 

Land Related Resources Implementation Studies (P, Rand G's), existing regulation, and other 

laws, there is already ample basis for review of projects and coordination among federal agencies 

involved in water supply planning. 

We are not aware of any Reclamation or USDA-sited surface water storage projects that have 

been denied construction because of delays associated with project review or permitting, or 

shortcomings in communication among Reclamation, USDA, or any other state or federal 

partners. Rather, as stated above and in prior testimony in February 2014 and at a February 2012 

House Natural Resources Committee oversight hearing on surface water storage2

, project 

economics and the pricing and repayment challenges in the potential markets where projects 

would be built are the primary reasons for some projects being authorized but not constructed. If 

nothing else, this bill reduces the time necessary to establish the merits of projects and, in some 

ways, could make favorable recommendations for project construction less likely. Reclamation 

is proud of its history constructing the surface water storage projects that are central to life in the 

West and our national economy, but what is rarely considered in the political discussion of 

surface storage are the realities of project repayment and market conditions associated with 

building large dams today. The most frequent reasons for fewer large surface storage projects 

being built today center around economics or an inadequate potential water market associated 

with the given facilities. In other cases, environmental, safety or geologic challenges came to 

light during a project's development, and rendered construction, completion or operation 

unfeasible. 

This legislation places significant new requirements on the review of prospective construction of 

new surface water storage. But the underlying economic issues that prevent projects from being 

built- the difficulty of repayment are unchanged by this bilL Reclamation's focus today must 

include meeting the challenge of rehabilitating the existing, aging, water and power 

infrastructure on which Western economies depend. We would be glad to work with the 

Subcommittee on this important aspect of the debate surrounding new surface water storage. 

The Department believes that legislation focused on surface-storage projects should reflect 

consideration for the economic return to the Nation. We would be glad to work with the 

Subcommittee to explore these issues further. In conclusion, the Bureau of Reclamation will 

continue to pursue surface storage as one of many options to meet water demands in the West 

2 ··water for Our Future and Job Creation: Examining Regulatory and Burcaucmtic Barriers toNe"· Surface Storage 

Infmstructure." www. usbr.gov /newsroom/testimony /detaiL cf m?Rccord!D=2061 

2 
27 


Insert offset folio 23 here 95284.023

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

time. 

3 
28 


Insert offset folio 24 here 95284.024

Statement of Dionne Thompson 

Deputy Commissioner for External and Intergovernmental Affairs 

Bureau of Reclamation 

U.S. Department of the Interior 

Before the 

Committee on Energy and Natural Resources 

Subcommittee on Water and Power 

United States Senate 

on 

S. 1552 Clean Water for Rural Communities Act 

June 18, 2015 

Chairman Lee and members of the Subcommittee, I am Dionne Thompson, Deputy 

Commissioner for External and Intergovernmental Affairs at the Bureau of Reclamation 

(Reclamation). I am pleased to be here to provide the views of the Department of the Interior 

(Department) on S. 1552, the Clean Water for Rural Communities Act, which would authorize 

construction of the Dry-Redwater Regional Water Authority System and the Musselshell-Judith 

Rural Water System in the States of Montana and North Dakota. For the reasons described 

below, the Department cannot supportS. 1552 at this time. 

Like the sponsors of this legislation, the Department supports the goals of encouraging a vibrant 

rural economy and ensuring safe, reliable sources of drinking water in Montana and North 

Dakota. Rural water projects help build strong, secure communities and are important to local 

economies. Public Law 109-451 authorized Reclamation to establish a Rural Water Supply 

Program to help rural communities and tribes in the western United States analyze and develop 

options for meeting water supply needs through the completion of appraisal investigations and 

feasibility studies. However, we have concerns with the legislation as currently written and we 

request the opportunity to work with Congress to adequately address our concerns. S. 1552 

authorizes construction of two separate projects and my statement will speak to each of those 

projects separately. 

Dry-Redwater 

Section 4(a)(l) of S. 1552 applies to the planning, design, and construction of the Dry-Redwater 

Regional Rural Water Authority System in eastern Montana and a small service area in 

northwest North Dakota, and would require the Federal government to provide up to 75 percent 

of the System's overall construction cost Reclamation estimates that this authorization would 

amount to federal appropriations of at least $200 million dollars. The Department last testified 

before the Subcommittee on legislation related to the Dry-Redwater project in May of2011, and 

1 
29 


Insert offset folio 25 here 95284.025

prior to that, in July of2009. Since 2011, the Dry-Redwater Regional Water Authority 

(Authority) has made steady progress planning and designing their System. 

The Department is concerned about process issues raised by legislation authorizing a project for 

construction before the Dry-Redwater Regional Water System Feasibility Study (Feasibility 

Study) is complete, the potential strain on Reclamation's budget that could come about from this 

authorization, the cost share requirement proposed in the bill, and the proposed use of power 

from the Pick-Sloan Missouri Basin Program (P-SMBP) for non-irrigation purposes. 

In 2012, the Authority submitted a Feasibility Study to Reclamation for review. Upon initial 

review of the Study, Reclamation was unable to identify a technically viable water treatment 

alternative that presented a National Economic Development (NED) plan with net positive 

benefits to the nation. Reclamation informed the Authority that the Study could not be supported 

as being financially or economically feasible under the requirements of Reclamation's Rural 

Water Supply Program. Consequently, there are significant review findings and 

recommendations that must be addressed to bring the Study up to Reclamation's standards. 

Since project costs have not been fully developed by the Sponsor and reviewed by Reclamation, 

there is both real and unknown potential for this project being financially unsustainable for the 

project sponsors and could result in an additional strain on Reclamation's budget. 

Because of the importance of this issue, a Reclamation Design, Cost Estimating, and 

Construction (DEC) review further evaluated the Study in order to provide an independent 

analysis. The estimated cost to address the DEC Report Findings and Recommendations is in 

excess of $5.5 million. Neither Reclamation nor the Authority has sufficient funding to revise the 

Study to address the DEC Report Findings. In order to maintain their original service area and 

related project benefits, the Authority ruled out a scaled down approach. As a result of this 

decision, Reclamation entered into a Memorandum of Understanding (MOU) with the Authority 

on April27, 2015, with the objective of completing a summary report that documents the current 

status of the draft Study. The MOU also identifies the additional level of effort needed to revise 

the Study technically in order to meet the requirements of Reclamation's Rural Water Supply 

Program. Given the findings that resulted from Reclamation's review of the Study, we are not in 

a position to support the project as financially viable or verify that the total project cost estimate 

is economically sound. 

The Department is also concerned about the non-federal cost share for the System. As stated 

above, S. 1552 contemplates that the United States would fund 75 percent of the cost of 

constructing the System for the benefit of Montana citizens of Dawson, Garfield, McCone, 

Prairie, and Richland Counties, and North Dakota citizens of McKenzie County. While this has 

been the cost share level proposed in other rural water projects enacted into law, it represents the 

maximum federal cost share allowed under Title I of the Rural Water Supply Act of2006 (PL 

2 
30 


Insert offset folio 26 here 95284.026

109-451 ), which includes a requirement for a Feasibility Report that includes an analysis of the 

sponsor's capability-to-pay and identifies an appropriate contribution by the local sponsors. 

Section 5 of S. 1552 authorizes the delivery of 1.5 megawatts ofP-SMBP pumping power to be 

used and delivered between May 1 and October 31 for the benefit of this System at the firm 

power rate. Section 5(b)(2)(A) of the bill requires that the System be operated on a "not-forprofit basis" in order to be eligible to receive power under those terms. Reclamation is not certain 

of the impact the bill's requirements could have on Western Area Power Administration's 

existing contractual power obligations. In addition to those concerns mentioned above, we have 

yet to verify whether or not water rights issues associated with the System have been adequately 

addressed. 

We suggest System sponsors continue working with Reclamation's Great Plains Regional and the 

Montana Area Offices to further evaluate the System for scale and economic viability in an effort 

to refine the National Economic Development accounting such that the ratio of total benefits 

exceeds costs. We also recommend that they work with theW estern Area Power Administration 

and their contractors on the issues related to the System's pumping power needs 

Musselshell-Judith 

Section 4(a)(2) of S. 1552 would authorize the planning, design, and construction of the 

Musselshell-Judith Rural Water System in central Montana and would authorize appropriations 

of at least 75 percent of total project costs. Since the total estimated construction cost of the 

project is $87,102,000, Reclamation estimates that the total federal contribution of 75% would 

equate to $65,327,000 (2014 dollars). While a 75% cost share level has been proposed in other 

rural water projects enacted into law, the Department also does not support this cost share for the 

same reasons as stated previously-- this represents the maximum federal cost share allowed 

under the Rural Water Supply Act of 2006, which includes a requirement for a Feasibility Report 

that includes an analysis of the sponsor's capability-to-pay and identifies an appropriate 

contribution by the local sponsors, based upon that analysis. 

Earlier this year, the Central Montana Rural Water Authority's (Authority) Musselshell-Judith 

Rural Water System Feasibility Study (Feasibility Study) was submitted to Reclamation for 

technical review under Public Law 109-451. Even though initial indications suggest the System 

is technically feasible and provides benefits in excess of its costs, the Department is concerned 

about the strain on Reclamation's budget resulting from additional authorized rural water 

projects. 

3 
31 


Insert offset folio 27 here 95284.027

Common- Both Water Systems 

Another unique feature to the language of S. 1552 is in Section 7(b ), which addresses the cost 

indexing for the authorization of appropriations. Reclamation is not aware of a specific rationale 

for the differing indexing dates prescribed in the legislation. For the 'such sums as are 

necessary' appropriations authorized for the Dry-Redwater System, appropriations are to be 

indexed to January 1, 2008. For the Musselshell-Judith, the appropriations are to be indexed to 

November 1, 2014. Obviously this implies a different value in the funding authorizations, and 

while both projects have been on different timelines, is not clear on the specific policy rationale 

for these provisions since neither project has been certified by Reclamation as having a complete 

feasibility study at this time. 

Authorized rural water projects compete with a number of priorities within Reclamation's 

Budget, including aging infrastructure, Indian water rights settlements, environmental 

compliance and restoration actions, developing sustainable water supply strategies, and other 

priorities intended to address future water and energy related challenges. In the Fiscal Year 2016 

Budget, the Administration carried forward the President's commitment to be prudent with 

taxpayer dollars while setting consistent spending priorities for Reclamation. The 2016 budget 

request includes $36.5 million for rural water projects, $18.0 million of that total is for operation 

and maintenance of completed tribal systems and the remaining $18.5 million is for continued 

construction of authorized projects. 

The Depatiment has concerns about adding to the backlog of Reclamation's authorized rural 

water projects seeking federal construction funding. Discretionary rural water funding has 

enabled Reclamation to make progress in promoting certainty, sustainability, and resiliency in 

support of basic drinking water needs of rural western communities. However, Reclamation's 

ability to make federal investments that match on-the-ground capabilities has its limitations. 

Presently, the estimated federal funding requirement to complete construction on six authorized 

rural water supply projects exceeds $1.4 billion. Furthermore, Acts of Congress authorizing 

Reclamation's involvement in the existing six rural water supply projects require indexing of cost 

ceilings to adjust remaining construction cost balances for inflation, which is estimated at about 

4 percent annually. In a climate of constrained budgets, indexing widens the gap between the 

original authorized amounts and the total estimated funding required to complete rural water 

supply projects. 

Of Reclamation's six currently authorized rural water projects under construction or funded at 

some level today, all of the projects pre-date Title I of the Rural Water Supply Act of2006. 

Authorizing additional rural water projects may delay rural water projects that are already under 

construction. For example, two of six authorized rural water construction projects are located in 

Montana and like the proposed Systems, these projects present compelling needs. As of 

4 
32 


Insert offset folio 28 here 95284.028

September 30, 2014, the Fort Peck Reservation/Dry Prairie Rural Water System was 

approximately 50 percent complete and the Rocky Boy's/North Central Rural Water System was 

approximately 22 percent complete, as financially determined. These two Montana rural water 

projects not only represent over $381 million in authorized federal need, but also represent 

significant on-the-ground construction investments and the promise of water delivery to Native 

American and other communities. In the 15 years since these two projects were authorized, the 

federal government has invested over $247 million dollars; demonstrating the long-term 

commitment of resources to existing rural water projects in Montana. Various levels of federal 

need can also be demonstrated by sponsors for other authorized rural water projects in North 

Dakota, South Dakota, Iowa, Minnesota, and New Mexico. 

Conclusion 

Given existing constraints on program resources and other rural water project commitments as 

described earlier, Reclamation does not recommend the authorization of Federal assistance for 

these Water Systems as contemplated inS. 1552 at this time. 

That concludes my written statement. I am pleased to answer questions at the appropriate time. 

5 
33 

Senator BARRASSO. Thank you so much for your testimony. 

Mr. Meissner? 

STATEMENT OF JERRY MEISSNER, CHAIRMAN, DRYREDWATER REGIONAL WATER AUTHORITY 

Mr. MEISSNER. Good afternoon, Senator Barrasso, Senator 

Daines in attendance and members of the Subcommittee. I am 

Jerry Meissner, Chairman of the Dry-Redwater Regional Water 

Authority from Circle, Montana. I appreciate the opportunity to 

discuss our support of both S. 1552, the Clean Water for Rural 

Communities Act, and S. 1365, the Authorized Rural Water 

Projects Completion Act. 

The Dry-Redwater Regional Water Authority System, also called 

DRWA, is a rural water project in Eastern Montana with a current 

service area about 11,000 square miles covering the Montana counties of McCone, Richland, Dawson, Prairie, and Garfield. In addition, Dry-Redwater includes McKenzie County, North Dakota 

which sets atop the Bakken shale play and is North Dakota’s leading oil producing county. This bakken boom has brought a population increase to our Eastern Montana communities increasing the 

stress on our drinking water situation. 

Historically this part of Eastern Montana does not have good 

quality, water quality. Simply stated, the water is unsafe to drink. 

The majority of the rural residents obtain their water from private 

wells. Many haul all of their drinking and cooking water. The 

treatment of water in a private well is very costly and often complicated. 

The majority of the proposed communities to be served by DryRedwater are currently operating their own municipal water systems and are unable to meet the requirements of the Safe Drinking 

Water Act without expensive, energy intensive treatments. 

All of the communities are using wells as a source of water, and 

these wells are not providing the quality or quantity of water needed. Many of the existing systems treat their water with chlorine 

which, in turn, has caused problems with elevated levels of disinfection byproducts. In addition, there are problems with bacterial 

contamination. Total dissolved solids, organic levels, iron, manganese, lead, copper sulfate, sodium, and fluoride that render the 

water undrinkable. 

These small rural towns cannot afford to operate, maintain and 

replace their own water treatment facilities; therefore, in 2002 a 

steering committee of volunteers was formed and the Dry-Redwater 

Regional Water Authority became a legal entity. In 2005, the Regional Water System will allow the small communities to come together and provide citizens with access to a reliable, safe, high 

quality water supply. 

From a regulatory aspect, a regional water system has significant benefits. At a present time when a rule changes all area systems must react to the change individually. That means that the 

Montana Department of Environmental Quality is perennially facing problems with compliance issues as these smaller systems have 

a reduced capacity to maintain and operate. The regional water 

system would provide one point of regulation for all the member 

systems. If a rule were changed it would only affect one treatment 

34 

plant and a regional system can be upgraded and operated at a 

higher level of oversight than an individual municipal water system. 

Dry-Redwater has been working with the Bureau of Reclamation 

in Billings to install this water project as stipulated in the Rural 

Water Supply Act of 2006 and has expressed in the interim final 

rules; however, various interpretations of the interim final rules 

has significantly strung out Dry-Redwater’s approval with over $4 

million spent thus far and over ten years of commitment, we respectfully request the Committee to favorably report this bill and 

Congress to pass it into law so that the Dry-Redwater will be Federally authorized. As it stands now our system planning has 

reached a point beyond which we can easily move forward without 

the ability to work formally with Federal agencies. 

In summary, Dry-Redwater will provide a dependable regional 

water supply for public systems and rural water users. We have 

spent ten years working to provide a clean drinking water to this 

service area of approximately 15,000 people. We sincerely hope for 

our legislation to be passed into law so we may go forward with 

our plans to provide something that is often taken for granted in 

most areas in the United States, safe and clean drinking water. 

I would also like to add to my testimony that the Dry-Redwater 

fully supports S. 1365, the Authorized Rural Water Projects Completion Act, which was introduced by Senators Tester and Daines. 

This bill provides funding for authorized water projects and provides a way to pay for our water system. Dry-Redwater is grateful 

for this inclusion in this funding bill written by our Montana Senators and respectfully urges the Subcommittee and Congress to 

pass this bill into law so that the rural water projects can receive 

funds from the Reclamation Fund to finance Western Water Development. 

The BOR, in previous testimony before this Committee, has stated current projected funding levels may not be sufficient to complete the Federal funding portion of the authorized rural water systems. S. 1365 will assist the BOR in providing a level of funding 

to support the construction of authorized rural water projects. The 

Reclamation Fund was established in 1902 by Congress to be used 

as a funding source to construct water projects in the West. 

So we fully support this legislation. It paves a pathway to actual 

construction of these authorized rural water systems. 

Thank you for your time. 

[The prepared statement of Mr. Meissner follows:] 

35 


Insert offset folio 29 here 95284.029

Written Testimony of Jerry Meissner, Chairman of the 

Dry-Redwater Regional Water Authority 

U.S. Senate Energy and Natural Resources Subcommittee on 

Water and Power Hearing 

June 18, 2015 

I appreciate the opportunity to discuss the Dry-Redwater Regional Water 

Authority's support for both S. 1552, the Clean Water for Rural 

Communities Act (which will authorize our Dry-Redwater Regional Water 

Authority System), and S.1365, the Authorized Rural Water Projects 

Completion Act. 

The Dry-Redwater Regional Water Authority System- also called DRWAis a rural water project in Eastern Montana with a current service area of 

approximately 11,000 square miles covering the Montana counties of 

McCone, Richland, Dawson, Prairie and Garfield. In addition, our Water 

System will service McKenzie County, North Dakota which sits atop the 

Bakken Shale play and is North Dakota's leading oil producing county, with 

more than 2,300 currently producing wells on file and the highest number 

of active oil rigs on a month-to-month basis. This Bakken boom has 

brought a population increase both to North Dakota and to our Eastern 

Montana communities, increasing the stress on our drinking water 

situation. 

This part of Eastern Montana does not, historically, have good water 

quality. Simply stated, the water is unsafe to drink. Therefore in 2002 a 

steering committee of volunteers was formed to bring safe and clean 

drinking water to our citizens- and the Dry-Redwater Regional Water 

Authority became a legal entity in 2005. We have spent 10 years working to 

provide much needed clean drinking water to this service area of 

approximately 15,000 people. We sincerely hope this is the year for our 

legislation to be passed into law so we may go forward with our plans to 

provide something that is often taken for granted in most areas of the 

United States - safe and clean drinking water. 

The majority of the proposed communities to be served are currently 

operating their own municipal water systems. All of the communities are 

using wells as a source of water, but these wells are not providing the 

quality or quantity of water needed. These small rural towns cannot afford 

to build, operate, maintain and replace their own water treatment facilities 

1 
36 


Insert offset folio 30 here 95284.030

and face limited availability of water sources. Therefore we strive to 

construct a regional rural water system that will allow these small 

communities to work together to provide access to a reliable, safe, and high 

quality water supply. DRWA uses a regional approach to improve service, 

reduce environmental impacts and capture financial benefits while 

reducing costly duplication of services. This regional system will provide a 

supply-managed water service to customers in a fiscally responsible 

manner. 

Allow me to provide some examples of the problems Eastern Montanans 

currently face. The public water supply systems within our boundaries 

presently are unable to meet the requirements of the Safe Drinking Water 

Act without expensive energy intensive treatment options. According to the 

Montana Department of Environmental Quality (DEQ), one of our public 

water supply systems is out of compliance with the Federal Clean Water Act 

due to levels of secondary contaminants - sodium and total dissolved 

solids. Many of the existing systems treat their water with chlorine which in 

turn has caused problems with elevated levels of disinfection by-products. 

Other systems have problems with bacterial contamination and elevated 

levels of total dissolved solids, iron, manganese, lead, copper, sulfate and 

sodium that render the water undrinkable. 

Three communities must treat their water because of high levels of fluoride 

which is a health hazard and a regulated contaminant. Jordan does not 

treat its water but it is high in sodium and total dissolved solids which are 

not currently regulated, but have detrimental effects on those drinking it. 

Fairview has high organic levels in its water that has led to a disinfection 

by-product violation and the Town operates an iron and manganese 

removal water treatment facility that uses chlorine as the oxidizer; which, 

while effective at removing the iron and manganese, does have the problem 

of forming disinfection by-products. 

One well serves the students and faculty of the Garfield County School 

District No. 15. This well shows excess sodium and fluoride levels. And, the 

total dissolved solids are more than twice the recommended level. This well 

and the other private wells are not regulated by National Drinking Water 

Standards but the detrimental effects of the water on their users are not any 

less because they are not regulated. 

2 
37 


Insert offset folio 31 here 95284.031

The mral residents in the project area currently obtain their water, in the 

majority of instances, from private wells. Many mral residents haul all of 

their drinking and cooking water used, either because their well water is 

undrinkable or there is not a sufficient quantity to be usable. The treatment 

of water in a private well is very costly and sometimes complicated 

depending on what is in the water. Based upon preliminary review of the 

water quality in the wells of mral users we know the majority of them do 

not have access to the quality of water needed for a healthy existence. 

Attached is a spreadsheet documenting the quality of water samples from 

various wells within our service area. 

A regional mral water system will allow the small communities to come 

together and provide citizens with access to a reliable, safe, high quality 

water supply. From a regulatory aspect a regional water system has 

significant benefits. At the present time, there are six different regulated 

public water systems within the region that are meeting regulatory 

requirements of the Safe Drinking Water Act. When a mle changes, all 

systems must react to the change, individually. That means that the 

Montana Department of Environmental Quality is perennially facing 

problems with compliance issues in these smaller public water systems as 

they have a reduced capacity to maintain and operate due to their size. A 

regional water system would provide one point of regulation for all of the 

member systems. If a mle were changed, it would only affect one treatment 

plant and, due to economies of scale, a regional system can be upgraded 

and operated at a higher level of oversight and management at a smaller 

per user cost than smaller individual municipal water supply systems. An 

increased degree of compliance can be expected from a regional water 

system which further assures the water users of a safe and reliable source of 

water. 

The water for this project will be obtained from the Dry Arm of Fort Peck 

Lake near Rock Creek. Just under 4,000 acre feet of the 18 million acre feet 

has been granted to DRWA via MT Water Right 40E 30064997. The intake and conventional surface water treatment facility will be located at 

North Rock Creek on the Dry Arm of Fort Peck Lake, in McCone County. 

3 
38 


Insert offset folio 32 here 95284.032

Currently, about u,ooo users have completed applications for service and 

have paid 'good intention' fees to show their financial commitment. The 

State of Montana has invested over $8oo,ooo into studies and 

organizational efforts to date. In addition, DRWA has matched more than 

$450,000, and the Bureau of Reclamation has contributed $120,500. Total 

investments into DRWA to date exceed $4 million, including the funding 

provided by Richland County to help build DRWA's currently active Sidney 

South pipeline. 

The project as conceptualized will consist of over 1,220 of miles of pipeline, 

38 pump stations, and 20 major water storage reservoirs. The 2012 

Feasibility Report projected a total project cost of $233,201,300, but as it is 

2015 we must add for inflation. The DRWA is pursuing federal funding of 

75% of the project cost with the remaining 25% of funds pursued in the 

form of a low interest loan from the Rural Utility Service (12.5%) and a 

grant from the Coal Tax Trust Funds (12.5%) administered through the 

Montana Department of Natural Resources and Conservation. Working 

together, the communities in the area can more efficiently and effectively 

provide affordable safe and reliable water to the people of the area. 

The Dry-Redwater Regional Water System is also financially feasible given 

the funding packages currently used by the rural water systems in Montana 

and in comparison to rural water system costs in our three state region of 

Montana, South Dakota and North Dakota. The completed feasibility study 

includes preliminary engineering analysis of the system and the DRWA has 

also completed some preliminary cultural and environmental 

reviews. There are no fatal flaws found in these preliminary studies which 

included contacts with State, Federal and Local officials on NEPA 

compliance. 

There are distinct benefits of a regional water system in our area: 

• Communities will not absorb the costs of upgrading numerous 

smaller water facilities to keep up with water quality standards. 

• A greater number of regional system users helps defray the cost of 

good water for every individual in the area. 

• This system will provide jobs, not only during construction, but also 

for ongoing operation and maintenance. 

4 
39 


Insert offset folio 33 here 95284.033

• Economic and community development opportunities with the ability 

to attract businesses and people that need a reliable water source are 

greatly enhanced. 

• Total water and energy consumption by all communities will be 

substantially less than if each community provides water treatment. 

• A dependable, high-quality drinking water sources provides an 

incentive for business and industry to consider relocation to eastern 

Montana. 

• Reduction in chemical usage and cost as a result of increased crop 

spraying efficiency. 

• Rural area fire protection capacity 

• Increased property values 

• An alternative water sources for livestock. 

• Safe and reliable household drinking water to improve the health and 

existence of the people. 

The Dry-Redwater Regional Water Authority has been working with the 

Billings office of the Bureau of Reclamation to instill this water project as 

stipulated in the Rural Water Supply Act of 2006, and as expressed in the 

Interim Final Rules. However, the staff turnover within this regional office 

along with the various interpretations of the Interim Final Rules given by 

this office has significantly strung out this project's approval. Given the 

investment made in time and money - over $4 Million dollars has been 

spent thus far (see attached timeline) and over ten years of work we 

respectfully request the Committee to favorably report this bill and 

Congress to pass it into law so that the Dry-Redwater Regional Water 

System will be federally authorized. As it stands now, the system planning 

has reached a point beyond which it cannot easily move forward without 

the ability to work formally vvith the Bureau of Reclamation, the U.S. Fish 

and Wildlife Service, and other federal agencies. 

In summary, the Dry-Redwater Regional Water System will provide a safe 

and dependable municipal and rural water supply for the public water 

supply systems and rural users that comprise the Dry-Redwater Regional 

Water Authority. Many positive long-term economic impacts will be 

realized by the agricultural, energy, tourism and recreational industries of 

the area; while the potential for good quality and quantity of water will 

allow businesses and housing to build and develop. Our primarily 

agricultural-based frontier communities in eastern Montana strongly 

5 
40 


Insert offset folio 34 here 95284.034

support all components of this project as a good, clean, reliable source of 

water which is vital to our existence. 

I would also like to add to my testimony that the Dry-Redwater Regional 

Water Authority fully supports S. 1365, the Authorized Rural Water 

Projects Completion Act, which was introduced by Senators Tester and 

Daines. This bill provides funding for authorized rural water projects and, 

as its language will include the Dry-Redwater Regional Water Authority 

System once it is authorized, provides a way to pay for our Water System. 

The Dry-Redwater Regional Water Authority is grateful for this inclusion in 

this funding bill written by the Montana Senators and respectfully urges the 

Subcommittee and Congress to pass this bill into law so that rural water 

projects can receive funds from the Reclamation Fund to finance western 

water development. The Bureau of Reclamation, in previous testimony 

before this Committee, has stated that "current and pr~jected funding 

levels may not be sufficient to complete the federal funding portion of the 

authorized rural water systems." S. 1365 will assist the BOR and provide a 

continuous level of mandatory funding to support the construction of 

authorized rural water projects to deliver water to smaller, isolated 

communities like ours. The Reclamation Fund was established in 1902 by 

Congress to be used as a funding source to construct water projects in the 

West so we fully support this legislation that paves a pathway to actual 

construction of these authorized rural water systems. 

6 
41 


Insert offset folio 35 here 95284.035

Water Quality of a Small Sampling of Wells Currently Used in the Service Area 

Well Site Name County Depth Sodium Bicarbonate Sulfate Fluoride TDS 

73 RANCH Garfield 1003.00 1524.00 737.00 2464.00 2.80 4577.17 

JORDON JOHN Garfield 280.00 667.00 795.00 793.00 1.00 1885.00 

CLAUSON WILLIAM Garfield 300.00 502.00 812.00 391.00 1.00 1330.18 

73 RANCH Garfield 1003.00 1484.00 656.40 2346.00 <5.0 4362.31 

GARFIELD CO SCHOOL DIST #15 Garfield 350.00 447.00 912.60 33.80 3.35 1048.79 

BIG DRY SCHOOL HOUSE Garfield 700.00 625.00 378.20 916.00 <0.5 1788.81 

MCKERLICK JOHN Garfield 80.00 586.00 700.20 627.80 2.00 1603.38 

BURGESS RANCH Garfield 365.00 670.00 271.00 681.00 1.00 1806.43 

BAKER JIM Garfield 390.00 979.00 1052.00 1241.00 1.00 2780.48 

HOVERSON SARAH Garfield 370.00 1062.00 1247.00 1210.00 1.50 2996.94 

HAFLAJOE Garfield 258.00 544.00 886.00 657.00 0.10 1733.50 

PLUHAR PHILLIP Garfield 255.00 460.00 688.00 424.00 0.30 1259.24 

KEEBLER DEAN Garfield 600.00 592.00 618.00 748.00 1.40 1671.91 

LANDERS H Garfield 380.00 587.00 612.00 764.00 1.10 1688.92 

CITY OF CIRCLE McCone 1624.00 412.00 907.70 <25.0 4.31 1002.02 

CITY OF CIRCLE-WELL #1 McCone 150.00 775.00 829.60 1059.00 2.55 2317.44 

CITY OF CIRCLE McCone 1508.00 400.00 921.00 <0.1 5.20 1004.81 

CITY OF CIRCLE McCone 1508.00 472.20 886.90 <2.5 5.10 1109.19 

PRAIRIE ELK SCHOOL McCone 200.00 1891.00 2596.00 2055.00 0.95 5303.20 

DREYER RAY McCone 189.00 820.00 824.20 1229.00 0.80 2537.42 

WHITMUS FRANK McCone 101.00 975.00 1110.00 1350.00 1.18 2964.94 

WHITMUS FRANK McCone 640.00 476.00 1085.00 3.40 5.50 1129.85 

WHITMUS FRANK McCone 640.00 473.00 1088.20 <25.0 5.96 1123.78 

WHITMUS FRANK McCone 640.00 456.00 1003.50 <2.5 6.67 1101.34 

WHITMUS FRANK McCone 101.00 426.00 1043.10 7.40 0.06 1049.21 

WALLER G McCone 240.00 520.00 1000.40 837.70 0.10 2044.70 

MERRY HERSCHEL McCone 260.00 700.00 683.20 887.80 2.70 1967.40 

KJELGAARD HAROLD McCone 220.00 1340.00 1964.00 1345.00 1.90 3701.16 

FLATIEN CLINTON McCone 175.00 736.00 1160.00 660.00 4.07 2033.71 

WAGNER R McCone 85.00 92.00 494.80 667.20 0.10 1405.10 

ZAHN DONALD McCone 20.20 230.00 378.60 1705.70 0.20 2630.97 

ZAHN DONALD McCone 49.90 532.50 784.70 2125.80 0.20 3604.34 

UNKNOWN-19.4 Ml SW WELDON McCone ? 2300.00 295.00 3700.00 NR 8128.32 

PAWLOWSKIW McCone 37.40 193.00 448.40 522.20 0.40 1107.56 

SEXTON WALLACE McCone 75.00 1015.00 493.00 4830.00 1.12 7144.25 

MUELLER ARNOLD McCone 203.00 626.00 1251.00 205.00 5.20 1527.93 

UNKNOWN-10 Ml S PRAIRIE ELK McCone ? 4400.00 488.00 5000.00 NR 13717.39 

FILL WORTH R CIRCLE MT 20 Ml McCone 201.00 1127.50 1018.90 2016.60 0.60 3844.26 

TWITCHELL JOHN McCone 89.00 810.00 867.60 1319.50 NR 2675.14 
42 


Insert offset folio 36 here 95284.036

DREYER RAY McCone 

PAINE EDWARD McCone 

HUSEBY D McCone 

PAWLOWSKI OTIO McCone 

JAMES MATIHEW McCone 

SHEFFELBINE ORVILLE McCone 

SHEFFELBINE ORVILLE McCone 

GASS MILTON McCone 

WRIGHT STEWART McCone 

GIBBS DAVID McCone 

HERZBERG JOHN McCone 

NEFZGER DEAN McCone 

GULDBERG McCone 

Source: Ground Water Information Center 

17.00 1116.00 

123.00 1230.00 

20.00 445.00 

276.00 574.00 

109.00 584.00 

307.00 977.00 

67.00 897.00 

268.00 1470.00 

365.00 954.00 

210.00 825.00 

215.00 776.00 

175.00 1083.00 

65.00 234.00 

Meets Standards 

Exceeds Standards 

915.00 3171.90 0.50 5320.63 

1283.90 1659.50 1.00 3591.35 

878.40 673.00 0.30 1701.37 

932.50 1014.90 NR 2237.45 

1191.20 344.00 1.00 1562.91 

982.00 1511.00 0.20 3188.91 

791.00 1528.00 0.55 2962.21 

1713.00 1794.00 0.70 4178.61 

1315.00 947.00 2.20 2619.10 

819.80 1068.20 2.30 2349.54 

1290.00 624.00 1.10 2067.03 

1576.00 1245.00 2.00 3150.22 

684.00 1610.00 2.10 2813.50 

8 
43 

Senator BARRASSO. Thank you so very much, Mr. Meissner, for 

your testimony. 

Now, Mr. Schempp. 

STATEMENT OF ADAM SCHEMPP, SENIOR ATTORNEY AND DIRECTOR OF THE WESTERN WATER PROGRAM, ENVIRONMENTAL LAW INSTITUTE 

Mr. SCHEMPP. Senator Barrasso, thank you for the opportunity 

to be here today to provide my views on Senate bill 982, otherwise 

known as the Water Rights Protection Act. 

I am Adam Schempp, a senior attorney and Director of the Western Water Program at the Environmental Law Institute (ELI). 

Founded in 1969 ELI is an internationally recognized, nonpartisan 

NGO with a mission of providing the highest quality research, publications, educational materials and training in environment energy 

and natural resources law and management. 

While my testimony is intended in part to advance ELI’s educational mission, the views presented here are my own and they do 

not necessarily reflect the views of ELI’s Board of Directors or its 

members. 

Senate bill 982 appears to address some of the concerns that 

prompted it including the effect of private rights to water from the 

Forest Service’s 2011 interim directive which sought to require ski 

areas operating on public land to transfer their water rights to the 

Federal Government, but the bill would introduce into Federal law 

some broad and ambiguous language which, along with some internal inconsistencies could make its potential impacts sweeping. At 

the very least the bill could prove challenging for Federal agencies 

to implement and for courts to interpret. 

For example, Subsection 5–1, the savings clause concerning the 

bill’s effect on existing authority, reads in part: ‘‘Nothing in this act 

limits or expands any existing legally recognized authority of the 

Secretary of the Interior or the Secretary of Agriculture to issue, 

grant or condition, any permit approval, license lease, allotment, 

easement, right of way or other land use or occupancy agreement.’’ 

If the Secretaries do not have the authority to condition permits, 

leases and the like in the way prohibited in Section 3 of this bill, 

then the bill is unnecessary. If the Secretaries do have that authority then those prohibitions are trumped by the savings clause. The 

only way to square the savings clause with Subsection 3–1 is to 

place great emphasis on the phrase, ‘‘legally recognized,’’ which 

itself is unclear. What if the Secretaries have this authority as a 

critical aspect of this issue and handling it in such a vague manner 

likely hampers rather than helps regulatory clarity? 

Other vagueness in the savings clauses arises in Subsection 5– 

D which reads: ‘‘Nothing in this act limits or expands any existing 

or claimed reserved water rights of the Federal Government on 

land administered by the Secretary of Interior or the Secretary of 

Agriculture.’’ The term ‘‘existing’’ clearly refers to reserved water 

rights that are already established at the time of the bill’s passage, 

but the term ‘‘claimed’’ is unclear as to its temporal meaning. If it 

is interpreted to mean reserved water rights already claimed at the 

time of the bill’s passage then there are no protections in this bill 

for future assertions of reserved water rights. 

44 

Turning to Section 3 of the bill, the prohibitions identified here 

lack specificity in their restrictions. A limitation of a water right 

is not a term of art and could be interpreted very broadly leading 

to disputes between applicants and the Federal land management 

agencies which might provoke delay in permit issuance and even 

litigation over whether a proposed permit or license condition is actually a limitation. 

Also, these prohibitions may have the unintended consequence of 

fewer land use occupancy agreements or would circumscribe the 

ability of the Secretaries to protect against adverse water impacts 

from land use or occupancy agreements. The multiple uses for 

which Secretaries of the Interior and Agriculture manage lands 

and the environmental laws that apply still remain. Thus, if a proposed surface use activity might be acceptable but it would produce 

incompatible impacts on other Federal resources if water is used in 

a certain way, the Federal agency might be inclined not to enter 

the agreement at all. 

Senate bill 982 also includes a prohibition against withholding, 

in whole or in part, land use or occupancy agreements. If withhold 

is interpreted to mean not issuing the land use or occupancy agreement, the Secretaries could deny any permit or could not deny any 

permit or application solely because of the potential impact of the 

resulting use of a water right. They could neither condition the use 

of water nor deny the use of land to ensure compliance with their 

other federally mandated obligations. 

Senate bill 982, by using ambiguous terms and by coupling that 

with sweeping savings clauses in Section 5, may in fact reduce regulatory certainty rather than improve it resulting in delay, confusion and litigation. 

I thank you, and I will be pleased to answer any questions at the 

appropriate time. 

[The prepared statement of Mr. Schempp follows:] 

45 


Insert offset folio 37 here 95284.037

Written Statement of Adam P. Schempp 

Senior Attorney and Director of the Western Water Program 

Environmental Law Institute 

Before the U.S. Senate Committee on Energy and Natural Resources 

Subcommittee on Water and Power 

Hearing on S. 593, the Bureau of Reclamation Transparency Act; S. 982, the Water Rights 

Protection Act; S. 1305, A bill to amend the Colorado River Storage Act to authorize the use of 

the active capacity of the Fontenelle Reservoir; S. 1365, a bill to authorize the Secretary of 

Interior to use designated funding to pay for construction of authorized rural water projects; S. 

1291, to authorize early repayment of obligations to the Bureau of Reclamation within the 

Northport Irrigation District in the State of Nebraska; S. 1552, to authorize construction of the 

Dry Red Water Rural Water and Musselshell Rural Water Projects; and S. 1533, to authorize the 

Secretary of the Interior to coordinate Federal and State permitting processes related to the 

construction of new surface water storage projects on lands under the jurisdiction of the 

Secretary of the Interior and the Secretary of Agriculture and to designate the Bureau of 

Reclamation as the lead agency for permit processing, and for other purposes 

366 Dirksen Senate Office Building 

June 18, 2015 

Adam P. Schempp 

Senior Attorney 

Environmental Law Institute 

1730 M Street, NW, Suite 700 

Washington, DC 20036 

www.eli.org 

schempp@eli.org 

202-939-3800[t] 

202-939-3868[f1 
46 


Insert offset folio 38 here 95284.038

Mr. Chairman and Members of the Subcommittee, I appreciate the opportunity extended to me 

by the Subcommittee to provide my views on S. 982, the "Water Rights Protection Act" 

I am Adam Schempp, Senior Attorney at the Environmental Law Institute ("ELI"). I also am the 

Director of ELI's Western Water Program. While my testimony is intended in part to advance 

ELI's educational mission, the views presented here are my own, and do not necessarily reflect 

the views of ELI's Board of Directors or its members. I will start by explaining the role of the 

Environmental Law Institute before turning to an analysis of S. 982. 

The Environmental Law Institute 

Founded in 1969 and based in Washington, DC, ELI is a highly respected non-partisan nongovernmental organization that does not litigate or lobby. Our primary mission is to provide the 

highest quality educational materials, publications, research, and training in environment, 

energy, and natural resources law and management. ELI seeks "to make law work for people, 

places, and the planet," and our institutional vision calls for "a healthy environment, prosperous 

economies, and vibrant communities founded on the rule of law." 

The Institute's staff includes lawyers as well as scientists, and we have worked throughout the 

United States and around the world. We deliver impartial analysis to opinion makers, including 

government officials, environmental and business leaders, academics, members of the 

environmental bar, and journalists. ELI is a clearinghouse and a town hall, providing common 

ground for debate on important environmental issues. Our flagship publication, the 

Environmental Law Reporter, is the most cited legal journal of its kind. ELI has trained over 

50,000 lawyers and managers as well as 2,000 judges from 25 countries in basic and advanced 

environmental law and practice. Graduates of ELI's Judicial Education programs are working on 

environmental problems all over the world. 

The subject matter of S. 982 touches on several core aspects of ELI's mission and priorities. We 

have deep institutional expertise in the management of water and federal lands, and ELI is 

committed to the US. Constitutional foundations on which our environmental law framework 

stands. And at the heart of ELl's mission is a desire to make environmental law work-to ensure 

that laws can be implemented successfully in the real world. To this end, ELI works closely with 

a wide range of institutions and stakeholders-and especially with states and municipalities, 

which are often on the front lines of environmental protection. We also promote robust 

enforcement of the law. 

Analysis of S. 982 

Senate Bill S. 982 appears to address some of the concerns that prompted it, including the effect 

on private rights to water from the Forest Service's 2011 Interim Directive that sought to require 

ski areas operating on public land to transfer their water rights to the federal government But the 

bill would introduce into federal law some broad and ambiguous language, which, along with 

some internal inconsistencies, could make its potential impact sweeping. At the very least, the 

bill could prove challenging for federal agencies to implement and courts to interpret 
47 


Insert offset folio 39 here 95284.039

Section 3 of the bill would prohibit the Secretaries of the Interior and Agriculture from 

conditioning (or even from "withholding") permits, licenses, leases, approvals, allotments, and 

other land use or occupancy agreements not only on transfers to the United States (as in the prior 

H.R. 3189, passed by the House of Representatives in 2014), but also on uncertain terms such as 

"limitation or encumbrance," or "other impairment" of any water right. The multiple uses for 

which these agencies manage lands and the environmental laws that apply, however, still remain 

(See Section 5(a)). Thus if a proposed surface use activity might be acceptable, but would 

produce incompatible impacts on other federal resources if water is used in a certain way, the 

federal agency might be inclined not to enter into the agreement at all. Hence, a potentially 

unintended consequence of S. 982 could be fewer land use or occupancy agreements. 

Senate Bill S. 982 adds a prohibition against "withhold[ing], in whole or in part," land use or 

occupancy agreements. If "withhold" is interpreted to mean "not issuing the land use or 

occupancy agreement," the Secretaries of the Interior and Agriculture could not deny any permit 

or application solely because of the potential impact of the resulting use of a water right. They 

could neither condition the use of water nor deny the use of land to ensure compliance with their 

other federally mandated obligations. 

Thus, either the legislation may lead to fewer land use or occupancy agreements or it would 

circumscribe the ability of the Secretaries to protect against adverse water impacts from land use 

or occupancy agreements. 

Section 3 of S. 982 lacks specificity in its restrictions. A "limitation" on a water right is not a 

term of art and could be interpreted very broadly, leading to disputes between applicants and the 

federal land management agencies, which might provoke delay in permit issuance and even 

litigation over whether a proposed permit or license condition is actually a "limitation" or not. 

Ambiguity is also present in the bill's prohibition on "assert[ing] jurisdiction over. ... impacts on 

groundwater," as used in Section 3, Subsection (3). Controls of surface uses and their impacts 

on groundwater can be very important in managing federal resources. Consider, for example, 

provisions in permits that are intended to protect springs, seeps, or cave resources on national 

park lands. State laws vary substantially on how (or even if) surface impacts to groundwater are 

addressed. The proposed bill language could leave federal agencies without sufficient authority 

to act, or create ambiguity in their authority. 

Section 3, subsection 3 also introduces a constitutional ambiguity by stating that federal agencies 

are bound (in the exercise of federal authority) not only by state laws and regulations, but also by 

state "policies" concerning groundwater use or protection. This, in effect, would give state 

agencies or officials the ability to trump federal law on land management by issuing a policy or 

multiple conflicting policies (enacted by no legislative body) that would be prospectively 

adopted by Congress in this bill. 

Senate Bill S. 982 also could benefit from further clarity in Section 5, the savings clauses. 

Subsection (d) reads, "Nothing in this Act limits or expands any existing or claimed reserved 

water rights of the Federal Government on land administered by the Secretary of the Interior or 

the Secretary of Agriculture." The term "existing" clearly refers to reserved water rights already 

2 
48 


Insert offset folio 40 here 95284.040

established at the time of the bill's passage. The term "claimed" is unclear as to its temporal 

meaning. If it is interpreted to mean reserved water rights already claimed at the time of the bill's 

passage, there are no protections in this bill for future assertions of reserved water rights. The 

addition of"or future" to the sentence would provide more clarity in meaning. 

Section 5 of S. 982 includes the statement: 

Nothing in this Act limits or expands any existing legally recognized authority of 

the Secretary of the Interior or the Secretary of Agriculture to issue, grant, or 

condition any penni!, approval, license, lease, allotment, easement, right-of-way, 

or other land use or occupancy agreement on Federal land subject to the 

jurisdiction of the Secretary of the Interior or the Secretary of Agriculture, 

respectively. 

On its face, this savings clause either contradicts Section 3 of the bill, particularly Subsection (1), 

or demonstrates that said portion of the bill is unnecessary. If the Secretaries of the Interior and 

Agriculture have existing authority "to issue, grant, or condition any permit, approval, license, 

lease, allotment, easement, right-of-way, or other land use or occupancy agreement," then 

Subsection 3(1) is tlumped by this savings clause. If the Secretaries do not have that authority, 

then Subsection 3(1) is superfluous. Balancing this savings clause with Subsection 3(1) requires 

placing great emphasis on the phrase "legally recognized," which is not clear. The arguments 

regarding the authority of the Secretaries of the Interior and Agriculture to condition land use 

agreements on the handling of water rights need not be reproduced here, but that critical aspect 

of this issue should not be resolved in such a vague manner. 

Yet another potentially significant matter is the intent and meaning of Subsection 4(b ), regarding 

the effect on state water rights. The subsection begins with: "In carrying out this Act, the 

Secretary of the Interior and the Secretary of Agriculture shall not take any action that adversely 

affects (1) any water rights granted by a State ... " The phrase "In carrying out this Act" appears 

to be limiting the scope of this prohibition, but it is unclear how carrying out the legislation could 

adversely affect a water right. The bulk of S. 982 (Section 3) concerns what the Secretaries of the 

Interior and Agriculture are prohibited from doing. Hence, the Subsection appears to be either 

redundant or nonsensical. If the intent of Subsection 4(b) is to ensure that the Secretaries of the 

Interior and Agriculture do not affect water tights when refraining from acting in the ways 

prohibited by Section 3, then that should be more clearly stated. If, however, "In carrying out this 

Act" is read more broadly, encompassing the activities generally addressed in this bill (such as 

issuing permits), the implications of Subsection 4(b) are not only sweeping but also make much 

of the preceding bill language unnecessary. 

In law and its implementation, the balance between federal purpose and water rights is 

challenging, controversial, and above all, delicate. S. 982, by introducing new and ambiguous 

terms, and by coupling that with sweeping savings clauses in Section 5, may in fact achieve 

primatily disequilibrium of that balance resulting in delay, confusion, and litigation. 

3 
49 

Senator BARRASSO. Thank you very much, Mr. Schempp. 

Mr. Stern? 

STATEMENT OF CHARLES STERN, SPECIALIST IN NATURAL 

RESOURCES POLICY, CONGRESSIONAL RESEARCH SERVICE 

Mr. STERN. Senator Barrasso, my name is Charles Stern. I’m a 

specialist in Natural Resources Policy at the congressional Research Service. Thank you for inviting CRS to testify on S. 593, S. 

1365 and S. 982. CRS takes no position on these bills but has been 

asked to provide background and analysis of their potential effects. 

S. 593, the Bureau of Reclamation Transparency Act, would require 

that the Bureau of Reclamation’s asset management reporting be 

expanded to include several new components. The mixed management structure of Reclamation water resource facilities complicates 

reporting on needed upgrades. Reclamation has undertaken efforts 

to improve this reporting including annual asset management 

plans. These reports summarize Reclamation’s infrastructure management efforts but have not included lists of facility specific repair 

needs. 

S. 593 would make several changes to Reclamation’s reporting 

process. Notably Section 4–B would require that the Bureau’s asset 

management plan include an itemized list of repair needs that reserve works. This would include a cost estimate for repair needs 

and a categorical rating for each item. Section 5 requires Reclamation to work with local project sponsors to develop similar requirements for transferred works. 

S. 593 does not address the management of projects rather it focuses on what information is made available to Congress and the 

general public about these facilities. Some may question how much 

of the information required by the legislation is already available. 

While some of this data appears to be tracked internally by Reclamation, it is not available in a consolidated public report. A more 

in depth review of some facilities, especially transferred works, 

could also be required by the bill. 

S. 1365, the Authorized Rural Water Settlement Project Completion Act, would establish dedicated funding for ongoing and newly 

authorized rural water projects and certain settlement agreements 

with Indian tribes. Since 1980, Congress has authorized Reclamation to undertake 12 rural water supply projects, six of which are 

ongoing. According to Reclamation total cost to complete these 

projects would be about $2.4 billion. In the current budget levels 

they may not be complete for 50 years or more. 

Indian water right settlements are also expected to be significant 

in terms of future year costs relative to Reclamation’s budget. 

Overall, 29 Indian water right settlements have been approved by 

Congress since 1978. To date, Congress has appropriated more 

than $2 billion in discretionary funds to these settlements and 

more funding will be needed. According to the Department of the 

Interior, 20 other settlements between the Federal Government 

and Federally recognized tribes are under negotiation or have negotiation teams appointed. 

S. 1365 would establish a new fund in the Treasury and transfer 

to it $115 million annually from 2015 to 2029 without further appropriation. These funds would be made available from future balVerDate Nov 24 2008 15:30 Jan 23, 2017 Jkt 095284 PO 00000 Frm 00053 Fmt 6633 Sfmt 6633 C:\TARSHA\HEARINGS\95284\D95284.TXT D95284
50 

ances accruing to the Reclamation Fund. The mandatory appropriation would be divided between two accounts with an account 

designated for authorized rural water projects designated to receive 

$80 million annually and an account for Indian water rights and 

other related settlement agreements to receive $35 million annually. 

Mandatory funding for rural water projects would be a contrast 

to the discretionary appropriations which typically fund these and 

other Reclamation projects and programs. Supporters argue that 

this funding is crucial to securing water supplies for these communities. Some may question elevating the priority of these projects 

by removing them from Reclamation’s regular appropriations process. Others may ask whether rural communities are eligible for 

other Federal funding. 

Several agencies are authorized to provide assistance of this 

type; however, the authorities for each agency’s programs are 

unique and the eligibility and competitiveness of individual communities may vary. In contrast, Congress has in some cases provided mandatory funding for Indian water right settlements. Thus, 

the bill’s proposed funding approach for these projects is not without precedent. 

S. 982 would establish prohibitions related to the conditioning of 

certain Federal actions on the transfer of water rights. The Subcommittee asked CRS to limit its testimony to abbreviated background on Federal Reserve water rights as they relate to this legislation. 

Federal Reserve water rights often arise in questions of water allocation and uses related to Federal lands. These rights co-exist 

with water rights administered under state law. Federal Reserve 

water rights were recognized by the Supreme Court in Winters v. 

United States in 1908. 

Under the Winters Doctrine when Congress reserves land from 

the public domain for a Federal purpose it also, by implication, reserves water resources sufficient to fulfill the specific purposes of 

the reservation. Although the Winters Doctrine was originally interpreted as applying to Indian reservations, it has since been applied to other Federal land reservation including water uses in national parks, national wildlife Refuges, and other Federal areas. As 

a result Federal agencies have, in some cases, asserted or negotiated reserve water rights in accordance with Federally authorized 

purposes. There is ongoing debate as to the limits of these rights. 

This concludes my statement. I would be happy to answer any 

questions you may have at the appropriate time. 

[The prepared statement of Mr. Stern follows:] 

51 


Insert offset folio 41 here 95284.041

Complete Statement of Charles V. Stern 

Specialist in Natural Resources Policy for the Congressional Research Service 

Before the Committee on Energy and Natural Resources 

Subcommittee on Water and Power 

United States Senate 

Hearing to Consider Pending Legislation 

June 18, 2015 

Chainnan Lee. Ranking Member Hirano, and members of the subcommittee, my name is Charles 

Stem. I am a Specialist in Natural Resources Policy at the Congressional Research Service (CRS). Thank 

you for inviting CRS to testify. You asked that CRS provide testimony on three bills: S. 593, the Bureau 

ofReclan1ation Transparency Act: S. 1365, the Authorized Rural Water Projects Completion Act: and S. 

982. the Water Rights Protection Act. 

In serving Congress on a non-partisan and objective basis, CRS takes no position on these bills but 

has been asked by the Subcommittee to provide background and analysis of their potential effects. TI1e 

statements presented in this testimony arc based on an analysis of the legislation within the time available. 

CRS remains available to assist the Subcommittee in its consideration of this legislation, related issues, 

and potential concerns among affected stakeholders. 

S. 593 - Bureau of Reclamation Transparency Act 

In brief, S. 593. the Bureau of Reclamation Transparency Act, would require that the Bureau of 

Reclamation's (Reclamation) asset management reporting be expanded to include several new 

components. Specifically, it would require that Reclamation annually report to Congress estimated costs 

for repair needs and a categorical rating for major repair and rehabilitation needs of Reclamation's 

facilities. Reclamation currently makes some infom1ation available on its infrastructure management 

activities; the proposed new requirements arc directed to be incorporated into those processes. 

The Bureau of Reclamation is one of the two principal agencies charged with constmcting and 

maintaining the federal govemment's largest investments in water infrastmcturc, the other being the U.S. 

Army Corps of Engineers. Other agencies and federal entities have played roles in water resource 

development. S. 593's requirements would apply only to the Bureau of Reclamation; thus it is the focus of 

this testimony. 

TI1e Bureau of Reclamation's assets arc concentrated in the 17 western states and include dams, 

canals, pipelines, hydropower facilities, and related infrastmcture. Some of these facilities were 

constmcted as far back as Reclamation's original authorization in 1902, and most of them are more than 

60 years old. In previous hearings. concerns have been raised about the perceived deterioration of 

Reclamation's infrastmcture and the infonnation (or lack thereof) on these conditions. 
52 


Insert offset folio 42 here 95284.042

Congressional Research Service 

Two important considerations provide context for CRS's analysis of S. 593: First, a broad discussion 

of the distribution of management responsibilities across different types of Reclamation facilities. Second, 

Reclamation's current process for reporting on repair and rehabilitation needs of these facilities. I will 

briefly discuss each ofthese topics before moving on to discuss the bill itself. 

First, I will discuss distribution of management responsibilities. As stated above, the majority of 

Reclamation's water resources facilities arc more than 60 years old, and a system of shared 

responsibilities to plan, constmct, finance, operate, maintain, and repair this infrastmcturc has emerged 

over time. Reclamation is tmiquc among federal water resource agencies in that it docs not manage much 

of the infrastmcturc that it owns. About two-thirds of the infrastmcture owned by Reclamation has been 

transferred to local project sponsors for operations and maintenance. While Reclamation technically owns 

these assets (which arc referred to as ''transferred works"), it is not responsible for their day-to-day 

maintenance. The bureau conducts periodic maintenance reviews at transferred works through its 

Associated Facilities Review of Operations and Maintenance Exan1inations program. However, the results 

of these examinations are typically not made public. 

'·Reserved works," which arc owned and operated by Reclamation, make up the remainder of 

Reclamation's assets. Most of these projects entail large, multipurpose assets that are owned and operated 

by Reclamation, and Reclamation's process of overseeing their operations and maintenance is generally 

more involved than that used for transferred works. Reclamation operates a Facility Maintenance <md 

Rehabilitation Program that identifies. schedules, and prioritizes the needs of its reserved works, but 

again, the results of these reviews arc typically not made public. 

The mixed management stmcture of Reclamation facilities complicates reporting on rehabilitation 

and upgrades of its assets. In recent years Reclamation has undertaken efforts to improve this reporting. 

These included, among other things, a major review of its infrastructure management that concluded in 

2008, 1 as well as annual asset management plans for FY20ll and FY20 12. The latter reports provided a 

high-level summary of Reclamation's infrastmcture management efforts, including discussions of how the 

bureau tracks and plans for management activities, aggregated estimates of maintenance requirements at 

regional and national levels, and some of the policy tools available to address these issues. Reclamation's 

last management plan (for FY2012) was published in May 2014. 

These and other reports and public documents issued by Reclamation generally have not included a 

list of facility-specific repair needs and associated estimates 2 As noted in previous CRS testimony, some 

agencies, such as the Environmental Protection Agency and the Department of Transportation, publish 

"needs assessments., that include project level estimates for needed repairs and upgrades, although it 

should be noted that these agencies and the infrastmcture they service are different than Reclan1ation. In 

any case, the availability of estimates for individual Reclamation facilities varies, and they are generally 

not compiled or regularly updated in a centralized, public report. 

Similarly, to vruying degrees Reclamation also reports its efforts to categorize the conditions of these 

facilities. Rcclrunation intemally tracks and rates the condition of its dan1s and also utilizes a ''Facility 

Reliability Rating" to categorize the condition of reserved works. Rcclan1ation has in recent years also 

undertaken a program to categorize the condition of urban canals that may be vulnerable to full or partial 

1 The 2008 rcvie\'V was conductt.'Cl in response to a 2006 National Research Cotmcil report ~md resulted in a munbt..'i' of changes to 

Reclmnation's infrastructure management 

2 Hovvevcr, Reclamation has provided higher level estimates of intl:astructurc needs. For instance, in 2012 Reclamation c~timated 

that costs for needed repairs and upgrades throughout the West were approximately $2.6 billion over the 2012-2016 time period. 

Some or these costs \vould be exlJected to be financed hy \Vater and po\ver customers. 
53 


Insert offset folio 43 here 95284.043

Congressional Research Service 

failure. However, this infonnation is not standardized or available for all of Reclamation's infrastructure, 

nor is it regularly reported on. 

S. 593 would make several changes to Reclamation's existing reporting process. It would require 

Reclamation to complete an Asset Management Report (building upon previous Asset Management 

Plans) 3 This report would be published and made publicly available within 2 years of enactment, and 

updated every two years thereafter. Perhaps most prominently, Section 4(b) of the bill would require that 

the bureau's new Asset Management Report include an itemized list of repair needs at reserved works. 

This list would include both a cost estimate for repair needs at Reclamation facilities and a categorical 

rating for each item. Section 5 of the bill requires that the Secretary coordinate with the nonfederal 

operators of transferred works to develop and implement. to the maximum extent practicable, a similar 

ratings and cost estimate system for transferred works. That is, all Reclamation-owned infrastructure, 

including that operated and maintained by local sponsors, would be subject to some level of reporting. 

The bill would provide an exception to the public reporting requirements for sensitive or classified 

infonnation, but would require that this infonnation still be made available to Congress. 

S. 593 docs not address directly tl1e management of projects by Reclamation or its local cooperators. 

Rather, its focus is on what infonnation is made available to Congress and the general public about 

Reclamation facilities, and in what fonnat. S. 593 would provide the Administration with some flexibility 

to detennine how it would implement the bill: however, the extent to which the new requirements in the 

legislation would tit into existing processes or necessitate new ones is unclear. Similarly. it is unclear 

whether the bill's requirements would create new costs for Reclamation. such as costs resulting from the 

assessment and publishing of project repair estimates and/or ratings in the new report." Some may also 

raise concerns about whether Reclamation's repair estimates or ratings could result in increased 

operations and maintenance costs being assessed on users. The extent to which such a scenario would 

actually be the case may be a function of how Reclamation would interpret and implement the bill. 

Finally, some may also question how much of the infonnation that would be required by the 

legislation is currently available in existing sources (such as through Reclamation's annual budget 

justifications and/or other programmatic reports). While some of this infommtion appears to be tracked by 

Reclamation, it is not available in a single, consolidated public report. Additionally, it is possible that a 

more in-depth review of the needs at some facilities, especially transferred works, could be required by 

this legislation. 

S. 1365- Authorized Rural Water Settlement Project Completion Act 

S. 1365 would establish dedicated funding for ongoing and newly authorized rural water projects and 

water and hydropower-related settlement agreements witll Indian tribes. This fi.mding would be available 

without furtl1cr appropriation over the 2015-2035 period. 

The Bureau of Reclamation has been authorized to design and construct individual rural water supply 

projects in tl1e western U.S. since 19805 Since that time, Congress has authorized Reclanmtion to 

3 To date, these Asset Management Plans have to date been produced lmder Reclamation's general authorities. 

4 The Congressional Budget Office estimated that a similar bill in the 113th Congress (S. 1800) \vould cost $2 million 

Reclamation $2 million to implement over the FY20 15-F20 19 period. Sec Congressional Budget Office, Cost EstimatefOrS. 

1800, the Bureau ofReclamafion Transparenc:v Act, July 3, 2014, http://v.;\\'W.cbo.gov/sites/default/filcs/sl800.pdf 

5 The flrst nrral vvatcr project authorized for design and constmction \Vas the WEB project in South Dakota, first authorized in 

P.L. 96-355. Prior to this time, Reclamation \'\ictS authorized to provide technical assistance for these projects. 
54 


Insert offset folio 44 here 95284.044

Congress1onal Research Service 

construct a total of 12 Rural Water Supply projects throughout the West. As of2015, six of these projects 

are complete, and six are ongoing. A 2014 report on mral water projects by Reclamation estimated that 

the total costs to complete the six ongoing projects would be about $2.4 billion (after adjusting for 

expected inflation) 6 The same report projected that at budgeted levels of about $50 million per year, 

construction of these projects may not be completed until2065 or later (for context, the FY2015 enacted 

amount for rural water projects was $31 million, and the FY20 16 proposed budget for these projects was 

$36.5 million). These estimates do not account for potential new rural water supply projects, which 

Reclamation has been authorized to study since 20067 Reclamation has stated that demand for new rural 

water projects is and will continue to be significant; it estimated the range of potential future demand for 

these projects in the western states to be $5 billion to $9 billion (plus additional needs for tribal projects) 8 

Indian water rights settlements and other tribal agreements could also be significant in tern1s of future 

year costs relative to Reclamation's budget. Overall, a total of 29 Indian water rights settlements have 

been approved by Congress since 1978, including six settlements that have been approved since 20 I 0. 

Congress has appropriated mandatory funding for some of these projects, while others have been funded 

with discretionary funds 9 CRS estimates that to date, Congress bas appropriated more than $2 billion in 

discretionary fimding for these projects (without adjusting for int1ation). According to the Department of 

the Interior, 20 other settlements between the federal government and federally recognized tribes arc 

under negotiation or have negotiation teams appointed. 10 These potentially could require congressional 

approval and/or future appropriations. 

S. 1365 would establish a new fund in the Treasury, the Reclamation Rural Water Construction and 

Settlement Implementation Fund, and transfer to it $ll5 million annually from 2015-2035. Within the 

proposed fund, the Secretary would be directed to establish two accounts: the Reclamation Rural Water 

Project Account and the Reclamation Infrastmcture and Settlement Implementation Account. The $115 

million transferred into the fund annually would be divided between these accounts, with the Reclamation 

Rural Water Project Account to receive $80 million annually and the Infrastructure and Settlement 

Completion Account to receive $35 million annually (with accrued interest adding to the availability of 

both an10unts). S. !365 defines projects eligible to receive rural water account funding as those mral 

water projects authorized as of the date of the enactment of the bill, or else those authorized for study 

under the Rural Water Supply Act of 2006 and subsequently authorized for construction after the 

enactment ofS. 1365. The bill also designates the Reclamation Infrastructure and Settlement 

Implementation Account as fimding compensation for certain monetary claims of Indian Tribes whose 

land has been used for the generation of hydropower, or to complete work on approved Indian water 

rights settlements and other similar tribal agreements. 

6 Bureau ofReclamation,.Assessment qfReclamation 's Rural Water Activities and Other Federal Programs that Provide Suppm1 

on Potable Water Supplies to Rural Communities in the Westem c~nited States, October 7, 2014, 

http://wv·.r\v.usbr.gov/mralwatcr/docs!Ruml-Water-Assessment-Report.pdf. Hcrcinafler Reclamation Rural Water Assessment. 

ll1e Rural Water Supply Act of2006 (P.L 109-451) provided programmatic authority for Reclamation to \Vork with rural 

communities, including tribes, in the 17 \Vestern states to assess \:Vater supply needs and conduct studies of these projects \\1thout 

individual acts of Congress. These projects \vould still need to be authorized for construction. 

8 Reclamation Rural \:Vater Assessment, p. 11. The e:...ient to which the additional tribal needs cited in that report ($1.5 billion) 

may overlap \dil1 potential future Indian \Vater Rights Settlements such as those propost..-d for funding inS. 1365 is tmkno\\11. 

"Forcxmnplc, Title X ofP.L 111-11 created a new flmd, the Reclamation Water Settlements Fund, and schcduk-d $1.2 billion in 

deposits to the fund, \Viil10ut fUrther appropriation, over the 2020-2029 period. Several specific settlements are to receive priority 

consideration tOr this ft.mding, with any remainder available to fund other eligible settlements. 

10 http://ww\v.usbr.gov/nativefwateiTights/waterrights.hl:ml. 
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Insert offset folio 45 here 95284.045

Congressional Research Service 

Funding directed toward the new accounts in S. 1365 would come from that which currently accrues 

to the Reclamation Fund. As noted in CRS Report R41328, the Reclamation Fund, which funds most 

traditional Reclamation activities, has a surplus due to receipts from natural resource royalties on public 

lands significantly exceeding appropriations from the fund (see Figure 1 below) 11 For 19 of the past 20 

years, receipts accruing to the Reclamation Fund have exceeded discretionary appropriations from it by 

more than $100 million: over the past 1 0 years receipts have exceeded appropriations by an average of 

$920 million per year. As of the end ofFY2014, the Reclamation Fund's balance was $13.1 billion and is 

expected to continue to grow. S. 1365 would direct a portion of the revenues which would otherwise 

accrue to the Reclamation Fund to certain types of projects. This is similar to a mechanism enacted in P.L. 

I J 1-J I (2009), in which nmds that would have othenvise accrued to the Reclamation Fund over the 2020-

2029 period were designated to nmd certain Indian Water Rights settlements, without further 

appropriation .

12 

Figure I. Reclamation Fund Receipts and Appropriations 

FYI 990-FY20 I 3 

Source: CRS, with Bureau of Reclamation Data 

Ever since Congress made Reclamation projects subject to congressional appropriations in the 

Reclamation Extension Act of 1914, funding for most Reclamation projects has been subject to 

congressional approval. S. 1365 would direct the Administration to allocate annual funding for each new 

account among eligible projects, potentially with limited additional input from congressional 

appropriators. 

11 Although lmder Reclamation's original authorizing legislation in 1902 the Reclamation Flmd \Vas available fOr expendiurre 

without further appropriations, Congress revised its approach in the Reclamation Extension Act (1914) to limit Reclamation's 

expenditures to only those item.'> for \Yhich tlmds arc made available annually by Congress. Sec 43 U.S.C. § 414. Thus, most 

Reclamation projects have b~.-"t:n m1d continue to be thndcd in discretionary appropriations ads. 

11 Sec P.L. 111-11, Title X. If enacted, mandatory funding for Indian Water Rights Settlements under S. I 365 would appear to 

add to and/or supplement this funding. 
56 


Insert offset folio 46 here 95284.046

Congressional Research Service 

Opponents of this change may argne that mandatory funding for these projects outside of the regular 

discretionary budget process is not merited and would in essence prioritize these projects over 

Reclamation's traditional activities. Supporters of previous versions of this legislation have argued that 

underfunding these projects could jeopardize access to reliable water supplies for eligible communities. 

Even if these projects were to receive significant increases in their discretionary appropriations, some 

might point out that if they are not financed in a manner that circumvents Reclamation's regular budget 

and appropriations process, they could make up an increasing portion of Reclamation's budget and 

thereby detract from traditional mission areas. 

Regarding rural water projects, some may ask whether these communities are eligible for other types 

of federal funding to assist with development of water infrastructure. As noted in CRS Report RL30478, 

several federal agencies other thau the Department of the Interior may provide aid to communities to 

assist with these necds. 13 These include the U.S. Department of Agriculture (Rural Utilities Service and 

Natural Resources Conservation Service), the Department of Housing aud Urban Development 

(Community Development Block Grants), the Department of Commerce (Economic Development 

Administration), the U.S. Anny Corps of Engineers Civil Works Program (Environmental Infrastructure), 

and the Environmental Protection Agency (Clean Water State Revolving Fund and Drinking Water State 

Revolving Fund loan programs). However, it is worth noting that the authorities for each of these 

programs arc unique, aud the eligibility aud/or competitiveness of individual communities for these funds 

may vary. 14 Furthermore, some argue that if current trends continue, future water supply needs are likely 

to outstrip the availability of future federal appropriations. 

As noted above, Congress has in some past cases provided mandatory funding for h1dian Water 

Rights Settlements. 11ms, unlike rural water projects, the bill's proposed funding approach for these 

projects is not without precedent. However, the wording of section 301 is notably broad compared to that 

enacted by Congress in previons legislation providing mandatory funding for these settlements, and could 

thus potentially fi.md a wide range of these agreements. 

S. 982- Water Rights Protection Act 

Finally, yon also asked CRS to provide abbreviated backgronnd on federal reserved water rights as 

they relate to S. 982, the Water Rights Protection Act. 

Federal reserved water rights often arise in questions of water allocation aud uses related to federal 

lauds. These rights coexist with \Vater rights administered under state law. Federal reserved water rights 

were first recognized by the U.S. Supreme Court in Winters v. United States in 190815 Under the Winters 

doctrine, when the federal govemment reserves land from the public domain for a federal purpose, it also 

reserves water resources sufficient to fulfill the purpose of the reservation. 16 

13 For a more detailed discussion, st--e CRS Report RL30478, Federal(v Supported WaterSupp(v and Wastewater Treatment 

Programs, coordinated by Claudia Copeland. 

14 For example" USDA's Rural Utility Service funds projects in cities and to\vns wlth a population of 10,000 or less (or to 

llllincorporated areas, regardless of population), while P.L. 109-451 (\-vhich authorizes study of potential future Reclamation 

Rural Water projects) defines these as areas vvith a population of no more than 50,000. 

15 Tfinters v. 564 (1908). For more infOnnation on iVinters doctrit1e, see CRS Rq)ort RL32198, Indian 

Resm11ed TYaterRights Winters Doctrine: An Ovetview, by Cynthia Bro\\·11. 

16 In 1976, the Supreme Court noted, ·"as long held that when the Federal Govemment withdrmvs its land il:om the puhlic domait1 

and reserves it for a ft.Xleral purpose, the Government, by implication, reserves appurtenant water then unappropriated to the 

extent needed to accomplish the purpose ofthe reservation.'· Sec Cappaert v. United States, 426 U.S. 128 (1976). 
57 


Insert offset folio 47 here 95284.047

Congressional Research Serv1ce 

Although the Winters Doctrine was originally interpreted as applying to Indian reservations, it has 

since been applied to other federal land reservations, including water uses in national forests, national 

parks, national monuments, and other areas. As a result, federal agencies have in some cases asserted or 

negotiated reserved \Yater rights in accordance with federally authorized purposes. For example, the 

National Park Service has a reserved water right for flows in the Gunnison River in Black Canyon of the 

Gunnison National Park. 17 In some cases, assertion of the reserved water rights by federal agencies has 

been controversial and has been denied by courts 18 

Generally, the critical factor in detennining reserved water rights has been the intent of Congress 

(either expressed or implied) that such rights be created. Among the many questions associated with 

federal lands and water rights are how limitations on these rights are applied under various circumstances 

and how federal management objectives are affected when water rights arc held by federal agencies and 

others. 

This concludes my written statement. I would be happy to answer any questions you may have at the 

appropriate time. 

~ National Park Service, "Wak>r Right Quantification Decreed for Black Canyon of the Gunnison National Park" Januar:v 24, 

2012. http:/ /wvvw.nature.nps. gov /water/Homcpagc/Black ~ Cfmyon.cfrn. 

18 ('.S. v. New Mexico, 438 U.S. 696 (197R). 
58 

Senator DAINES. [presiding] Thank you, Mr. Stern. 

Mr. Willardson? 

STATEMENT OF ANTHONY WILLARDSON, EXECUTIVE 

DIRECTOR, WESTERN STATES WATER COUNCIL 

Mr. WILLARDSON. Senator Daines, Senator Hirono, I appreciate 

the opportunity to testify on behalf of the Western States Water 

Council. 

This is our 50th anniversary since our creation as a policy advisory body to the Western Governors. Our members are appointed 

and serve at the pleasure of their Governors. We believe that the 

Authorized Rural Water Project Completion Act provides an appropriate and timely Federal investment of modest amounts that will 

minimize long term, Federal expenditures, create jobs and fulfill 

long standing promises and trust responsibilities in rural and tribal communities, some of which date back decades. 

We strongly support the policy of encouraging negotiated settlement of any water rights claims is the best solution to this critical 

problem. We also support the proposed Rural Water Construction 

and Settlement Implementation Fund for financing these needs as 

identified in S. 1365. 

The Council believes that receipts accruing to the Reclamation 

Fund, subsequent to the 1902 Reclamation Act and other acts, 

should be fully appropriated for their intended and authorized purposes. 

We also would suggest that Congress consider converting the 

Reclamation Fund from a special account to a true revolving trust 

fund. 

Some rural and tribal communities face serious water shortages 

now due to drought and declining stream flows and groundwater 

levels and inadequate infrastructure with some communities hauling water. Many rural and tribal communities are also suffering 

from high unemployment and lack the financial capability and expertise to meet their drinking water needs. The Reclamation Rural 

Water Project Supply Program was created in 2006 to provide an 

assessment of these rural water needs which were found to range 

from $5 to $8 billion as well as $1.2 billion for specific Indian water 

supply projects. 

In 2012, Reclamation estimated that to complete eight of those 

projects would cost $2.6 billion and that they would likely, at current funding levels, not be completed until 2063. The constant resolving outstanding Indian water rights claims is also growing and 

the Administration’s request for this Fiscal Year of $18.6 million 

for construction of authorized rural water projects and $18 million 

for tribal features of specific projects is not sufficient to complete 

them in a timely manner as would be provided by the S. 1365. 

This is a relatively modest Federal investment compared to the 

increasing costs which will likely occur if construction is further delayed, and we recognize the Federal budget constraints but still remains this obligation to fulfill Federal trust responsibilities and 

other promises to states and tribes who lost land from Federal 

flood control projects. 

I would mention the Garrison Diversion project in North Dakota 

which flooded 300,000 acres of private farmland as part of the PickVerDate Nov 24 2008 15:30 Jan 23, 2017 Jkt 095284 PO 00000 Frm 00062 Fmt 6633 Sfmt 6633 C:\TARSHA\HEARINGS\95284\D95284.TXT D95284
59 

Sloan Missouri Basin program as well as inundating 550 square 

miles of Native American lands and displacing some 900 Native 

American families. 

Similarly the North Central Rocky Boy’s rural water project in 

the State of Montana would implement that tribe’s settlement with 

the United States. According to the U.S. Conference of Mayors, $1 

invested in water and sewer infrastructure increases gross domestic product by $6.35. 

Similarly in the HDR study of economic impacts of the Lewis and Clark rural water system found a total economic impact of $14.4 

million in direct and indirect job creation of some 7,441 jobs. Improving the infrastructure in these rural tribal communities will 

improve their ability to attract business and develop their economies as well as provide a higher quality of life and safe drinking 

water and the associated health benefits. 

And despite the benefits, many of these smaller rural communities and tribal communities do not have the capacity to finance, 

design and construct these projects on their own. For this purpose 

of funding authorized Reclamation projects, the Reclamation Fund 

was created; however, current expenditures from that fund are far 

below current receipts and at the end of 2016 the Administration 

estimates that the unobligated balance in the Reclamation Fund 

will be $15 billion. So S. 1365 would set aside just a small amount 

of this money to complete and fulfill these obligations to these communities and further postponing these expenditures will only perpetuate the hardships that currently exist. 

We very much appreciate the opportunity to testify here on the 

Subcommittee to approve S. 1365 and work with the states toward 

its effective implementation. 

Thank you again. 

[The prepared statement of Mr. Willardson follows:] 

60 


Insert offset folio 48 here 95284.048

Testimony of Anthony Willardson, Executive Director 

of the Western States Water Council 

Submitted to the 

Senate Committee on Energy aud Natural Resources 

Subcommittee on Water and Power 

regarding 

S. 1365 Authorized Rural Water Projects Completion Act 

Hearing on Miscellaneous Water Bills 

June 18, 2015 

I. INTRODUCTION 

My name is Tony Willardson and I am the Executive Director of the Western States 

Water Council. We would like to thank the Chair and members of the Committee for the 

opportunity to testify. 

The Western States Water Council (WSWC), representing 18 western states from Alaska 

to California and Texas to North Dakota, strongly supports the Authorized Rural Water Projects 

Completion Act (S. 1365) as an appropriate and a timely federal investment of modest amounts 

that will minimize long-term federal expenditures, create jobs, and fulfill long-standing promises 

and trust responsibilities to rural and Tribal communities, some of which date back decades. We 

have supported previous legislative efforts to establish a dedicated funding source for the 

completion of federal rural water projects authorized by Congress for construction by the Bureau 

of Reclamation (see attached letter/WSWC Position #343). 

By way of this testimony, we also reiterate our support for the federal policy of 

encouraging negotiated settlements of disputed Indian water rights claims as the best solution to 

a critical problem that affects almost all of the Western States, as well as a strong fiscal 

commitment for meaningful federal contributions to such settlements that recognize the trust 

obligations of the United States government. Further, the Council's position is that Congress 

should expand opportunities to provide funding for the Bureau of Reclamation to undertake 

project construction related to settlements from revenues accruing to the Reclamation Fund, 

while recognizing the existence of other legitimate needs that may be financed by these reserves. 

I would add that the Council believes Indian water rights settlements are not and should not be 

defined as Congressional earmarks. Lastly, once authorized by the Congress and approved by 

the President, the Council supports steps to ensure that any water settlements will be funded 

without a corresponding offset, including cuts to some other tribal or essential Interior 

Department program (see attached WSWC Position #376). 

In addition, this testimony sets forth the WSWC's long-standing policy in support of 

using receipts accruing to the Reclamation Fund for authorized projects, including the types of 

rural water projects that would receive funding under S. 1365, through the proposed Reclamation 

Rural Water Construction and Settlement Implementation Fund (the Rural Water Projects 

"RWP" Fund). The Council believes receipts accruing to the Reclamation Fund subsequent to 

the Reclamation Act and other acts should be fully appropriated for their intended purpose in the 
61 


Insert offset folio 49 here 95284.049

continuing conservation, development and wise use of western resources to meet western waterrelated needs. Further, the Council has suggested that the Administration and the Congress 

investigate the advantages of converting the Reclamation Fund from a special account to a true 

revolving trust fund with annual receipts to be appropriated for authorized purposes in the year 

following their deposit (similar to some other federal authorities and trust accounts). See 

attached WSWC Position #367. 

II. THE NEED FOR RURAL WATER PROJECTS IN THE WEST 

Across the West, rural communities are experiencing water supply shortages due to 

drought, declining streamflows and groundwater supplies, and inadequate infrastructure, with 

some communities hauling water over substantial distances to satisfy their potable water needs. 

Moreover, those water supplies that are available to these communities are often of poor quality 

and may be impaired by naturally occurring and man-made contaminants, including arsenic and 

carcinogens, which impact their ability to comply with increasingly stringent federal water 

quality and drinking water mandates. At the same time, many rural and tribal communities in the 

West are suffering from significant levels of unemployment and simply lack the financial 

capacity and expertise to finance and construct needed drinking water system improvements. 

Since the 1980s, Congress has authorized Reclamation to address this need by designing 

and constructing projects to deliver potable water supplies to rural communities in the 17 western 

states. Furthermore, Congress established Reclamation's Rural Water Supply Program when it 

enacted the Rural Water Supply Act of 2006 (Pub. L. 109-451 ), authorizing the agency to work 

with rural communities in the West, including Tribes, to assess potable water supply needs and 

identify options to address those needs through appraisal investigations and feasibility studies. 

In 2009, the WSWC worked closely with Reclamation to identify sources of information 

on potable water supply needs in non-Indian rural areas of the West. Reclamation released an 

assessment report on July 9, 2012 ("Assessment Report") that discussed the results of this effort, 

finding that the identified need for potable water supply systems in rural areas of the 17 western 

states ranged from $5 billion to $8 billion, not including another estimated $1.2 billion for 

specific Indian water supply projects. 1 

The Assessment Report noted that there were eight active rural water projects located in 

Montana, New Mexico, North Dakota, and South Dakota, including the Lewis and Clark Rural 

Water Supply Project, which is located mostly in South Dakota but encompasses parts of the 

non-Reclamation states of Iowa and Minnesota. 2 The report also noted that of the rural water 

projects that Congress authorized Reclamation to undertake between 1980 and 2007 (when the 

Rural Water Supply Act was enacted), only four had been completed3 

According to Reclamation, the total amount ofF ederal funding needed to complete the 

eight authorized projects was $2.6 billion, which is substantially higher than the $2 billion 

1 8\.CREA\.i Of RECU'uvL\TION. ASSESSMENT OF REC!.A~IATION'S R\. "RAL WATER ACTIVITIES AND 0TIIER FEDERAL 

PROGRAMS THAT PRO\'IDE SLPPORT ON PO fABLE \VATER St:PPL.IES TO RURAL COMMUNITIES 11\ THE WESTERN 

9. 20 12). httu:l /mvw.nsbr. goy/mrahnltcr!docs/Rural-Watcr-Asscssmcni-Rcpon-and2 
62 


Insert offset folio 50 here 95284.050

Congress originally authorized 4 This increase is due in part to inflation and the rising costs of 

materials and labor. 5 Nevertheless, the Assessment Report estimated that these authorized 

projects could be completed by 2029 at a total Federal cost of around $3 billion, so long as 

Federal funding reflects the estimates provided in the ori~inal final engineering reports for each 

of the authorized projects about $162 million annually. However, at current funding levels of 

around $40-$50 million annually for construction, Reclamation estimates that some projects 

could be delayed beyond 2063 despite the expenditure of almost $4 billion in Federal funds by 

that point. 7 Moreover, an additional $1.1 billion in Federal expenditures would be needed to 

complete those projects that are not completed by 2063 8 Notably, Reclamation is seeking only 

$36.6 million for its rural water program in fiscal year (FY) 2016, with $18.6 million for 

construction of authorized rural water projects and the remaining $18 million for tribal features 

of specific projects. 9 

III. FEDERAL FUNDINGFORRURALWATERPROJECTS UNDERS.1365 

S. 1365 would provide $80 million per year for each of fiscal years 2015 through 2035 to 

complete the construction of rural water projects that have already received Congressional 

authorization. Other projects may be eligible for funding if: (1) a feasibility study is submitted to 

the Secretary of the Interior by February 27, 2015; and (2) Congress authorizes the project's 

construction after S. 1365's enactment. 

This funding represents a relatively modest Federal investment, compared to the 

increased costs that will likely occur due to construction delays if funding remains at current 

levels. We recognize that there are Federal budget constraints. Nevertheless, such constraints do 

not negate the Federal responsibility to complete authorized rural water projects, particularly 

those intended to fulfill in part a solemn Federal promise and trust responsibility to compensate 

States and Tribes for lost resources as a result of the construction of Federal flood control 

projects. 

For example, the Garrison Diversion Unit, an altered version of which would receive 

funding under S. 1365, is intended to compensate the State of North Dakota for the loss of over 

300,000 acres of prime fannland that was lost as a result of the construction of the Pick-Sloan 

Missouri River Basin Program, 10 which also inundated over 550 square miles of Native 

American land and displaced more than 900 Native American families. II Additionally, the 

North Central/Rocky Boys rural water project will implement the tribe's water rights settlement 

(as codified in Pub. L. 106-163) with the United States and the State of Montana. 

!d. 

8 !d. at 5. 9 U.S. BUREAl:OFRECLAMATJON.Rl'RAL \VATER PROJECTS (June 15. 2015). 

http://www.usbr.gov/newsroom/presskitlfactsheetlfactshectdetail.cfm?recordid=7. 

10 GARRISON DIVERSIO'i CONSER\.ANCV DISTRICT. HISTORY & FEDERAL LEGISLATION: THE PICK-SLO,~N MISSOURI 

BASIN 11 SENATE PROGR.~\I. REP. ). rm;~~G~~~~::~~~~~:~:~~~; 

3 
63 


Insert offset folio 51 here 95284.051

Authorizing the increased use of Reclamation Fund revenues to expedite completion of 

these projects fulfills a financial and moral obligation that some beneficiaries have waited 

decades to see honored. 

It is also important to note that the Federal expenditures provided under S. 1365 would 

generate significant and actual returns on this investment, including but not limited to: 

• National Economic Impacts: According to a 2008 U.S. Conference of Mayors report, 

one dollar invested in water and sewer infrastructure increases private output, or Gross 

Domestic Product, in the long-term by $6.35. Furthermore, for each additional dollar of 

revenue generated by the water and sewer industry, the increase in revenue that occurs 

in all industries for that year is $2.62. 12 

• Economic Impacts and Job Creation in Rural Communities: Investments in rural water 

projects have a direct impact on the economies of the communities serviced by those 

projects. For example, a 2006 study by HDR, Inc. on the economic impacts of 

constructing the Lewis and Clark Rural Water System, which would be eligible to 

receive funding under S. 1365, found that the total economic impact to South Dakota, 

Iowa, and Minnesota would total $414.4 million. The report also estimates that the 

project's construction would directly or indirectly create 7,441 jobs. On a yearly basis, 

this equals the creation of 532 direct and indirect jobs with average annual salaries 

ranging from $25,591 to $33,462. Approximately 72% of the economic impacts would 

be realized in South Dakota, with 17% in Iowa and 11% in Minnesota. u 

• Improved Potential for Economic Development in Rural Areas: The economy of every 

community, especially rural communities, requires sufficient water supplies of suitable 

quality. Such supplies depend upon adequate water infrastructure. Improving the water 

infrastructure of the rural and Tribal communities that would be affected by S. 1365 will 

improve their ability to attract business and develop their economies in ways that are not 

possible with their current water supplies. 

• Improved Quality of Life: The types of water projects that would receive funding under 

S. 1365 would meet the same water quality standards as public systems. These projects 

would therefore provide a higher quality of safe drinking water and associated health 

benefits than the water supplies upon which these communities currently rely. 

• Reduced Costs: Rural communities would no longer need to expend limited resources 

drilling and maintained wells, softening and treating water, or hauling water. In 

addition, these communities would see decreased electrical pumping costs. 

• Rural Fire Protection: Rural water systems provide water storage that fire trucks can 

use to assist with rural fire protection. 

12 THE U.S. CO'JI'EREl'CE OF MAYORS: MAYORS WAfER COCNCIL, LOCAL GOVER'iMENT TNVESTME'.;T IN Ml"'ICIPAL 

WATER .A.i'JD SEWER [NTRASTR\JCTiiRE: ADDING VALCE TO THE NATIONAL ECO'JOl\IY. i 2008), available at 

4 
64 


Insert offset folio 52 here 95284.052

• Livestock Use: Rural water projects provide a more reliable and better supply of water 

for livestock. They also have the potential to decrease the impacts of livestock grazing 

on riparian areas by allowing for the delivery of water away from these sensitive areas. 

• Increased Property Values: In some areas, the resale value of property may increase 

with a more reliable, safe, clean and adequate water supply. 

IV. THE USE OF THE RECLAMATION FUND UNDER S. 1365 

Title I of S. 1365 would provide funding for eligible rural water projects by establishing a 

Reclamation Rural Water Construction and Settlement Implementation Fund (the "RWP" Fund) 

within the U.S. Treasury, and within the RWP Fund a separate Rural Water Project Account and 

Reclamation Infrastructure and Settlement Account, that would be financed from revenues that 

would otherwise be deposited in the Reclamation Fund. These monies would not be subject to 

further appropriation, would be in addition to other amounts appropriated for the authorized 

projects, and should not result in corresponding offsets to other critical Reclamation and 

Department of the Interior programs. The Secretary of the Interior would also invest the portion 

of these receipts not needed to meet current expenses, and the resulting interest and proceeds 

from the sale or redemption of any obligations would become part of the RWP Fund. The RWP 

Fund would terminate in September 2035, at which point its unexpended and unobligated 

balance would transfer back to the Reclamation Fund. 

Congress established the Reclamation Fund when it enacted the Reclamation Act of 1902 

(Pub. L. 57-161) and it was intended to be the principle means of financing Federal western 

water and power projects in the 17 western states. As stated in Section 1 of the Reclamation Act, 

the Reclamation Fund provides monies " ... reserved, set aside, and appropriated as a special fund 

in the Treasury." 

Reclamation Fund receipts are derived from water and power sales, project repayments, 

and receipts from public land sales and leases in the 17 western states, as well as oil and mineralleasing related royalties. However, the receipts that accrue to the Reclamation Fund each year 

are only available for expenditure pursuant to annual appropriations acts. Over the years, rising 

energy prices and declining Federal expenditures from the Reclamation Fund for Reclamation 

purposes have resulted in an increasingly large unobligated balance. 

According to the Administration's FY 2016 budget request, actual and estimated 

appropriations from the Reclamation Fund were $901 million for FY 2014 and $914 million for 

FY 2015. Appropriations requested for FY 2016 from the Reclamation Fund are $856 million, a 

substantial decrease. This compares with actual and estimated receipts and collection to the 

Fund of $1.984 billion for FY 2014, $1.849 billion for FY 2015 and $1.846 billion for FY 2016. 

As a result, the Reclamation Fund's unobligated balance is expected to grow from an actual 

balance of$13.1 billion in FY 2014 to an estimated amount of over $15 billion by the end ofFY 

2016. 14 Contrary to Congress' original intent, instead of supporting western water development, 

much of the unobligated balance has gone instead to other Federal purposes. The WSWC has 

14 THE APPENDIX, Bt 'DGET OF THE Ul\!TED STATicS GOVERNMEc;T. FISC.·\L YEAR 2016. 650 (April 20 15). 

http :1 !''"''." hitchousc. goy/ si1cs/dc fault!filcs/ omb/bndgct/f\ 20 16/asscls/int. pdf. 

5 
65 


Insert offset folio 53 here 95284.053

long supported using the Reclamation Fund for its intended purpose of financing western water 

development, including the types of rural water projects that would receive funding under S. 

1365. 

Unlike typical Congressional authorizations that often do not specify a funding 

source and may require more Federal monies in addition to current authorizations, S.1365 

would employ an established stream of receipts and associated interest. Furthermore, as 

required by Section 1 03( c), no amounts may be deposited in, or made available from, the 

RWP Fund if the transfer or availability of the amounts would increase the Federal 

deficit. 

It is also important to note that the concept of using receipts accruing to the RWP Fund to 

establish a separate account to finance specific water projects is not new. Specifically, Congress 

established the Reclamation Water Settlements Fund (RWSF) under Title X of the Omnibus 

Public Lands Management Act of2009 (Pub. L. 111-11). The RWSF consists of receipts 

transferred from the Reclamation Fund and provides specified levels of funding starting in FY 

2020 for a period of I 0 years to help finance specified water infrastructure projects that are part 

of Congressionally-authorized water settlements, especially Indian water rights settlements. The 

use of these funds furthers the construction of much needed water infrastructure in the West in 

accordance with the Reclamation Fund's original intent and purpose. 

V. FUNDING PRIORITIZATlON UNDER S. 1365 

Before expenditures from the RWP Fund could be made, Section 202(b)(l) ofS. 1365 

would require the Secretary of the Interior to develop programmatic goals to ensure that the 

authorized projects are constructed as expeditiously as possible, and in a manner that reflects the 

goals of the Rural Water Supply Act of2006. The bill would also require the Secretary to 

develop funding prioritization criteria that would consider: (I) the "urgent and compelling need" 

for potable water supplies in affected communities; (2) the status of the current stages of 

completion of a given project; (3) the financial needs of affected rural and tribal communities; 

(4) the potential economic benefits of the expenditures on job creation and general economic 

development in affected communities; (5) the ability of an authorized project to address regional 

and watershed level water supply needs; (6) a project's ability to minimize water and energy 

consumption and encourage the development of renewable energy resources, such as wind, solar, 

and hydropower; (7) the needs oflndian tribes and tribal members, as well as other community 

needs or interests; and (8) such other factors as the Secretary deems appropriate. 

The WSWC stated in a June 8, 2012letter (attached) that these programmatic goals and 

funding priorities" ... should be developed in a transparent manner in consultation with the 

affected communities and States and should consider existing state water plans and priorities." 

States and the affected communities have on-the-ground knowledge of the facts and 

circumstances associated with the authorized projects that would receive funding under S. 1365, 

and are therefore the most appropriate entities to assist the Secretary in developing these goals 

and priorities. 

VI. RECLAMATION AND RURAL WATER PROJECTS 

Reclamation is well suited to carry out the development and construction of the 

authorized rural water projects that would receive funding under S. 1365. These specific projects 

are already authorized and under construction by Reclamation, which has a long history of 

6 
66 


Insert offset folio 54 here 95284.054

planning, designing and constructing water infrastructure projects in the West. Most other 

existing federal water quality and supply programs typically provide loans, grants, or loan 

guarantees. However, many smaller and poorer rural communities have very limited capacity 

and little experience to be able to design and construct water projects with financial assistance 

alone. Consequently, they often need the experience and assistance that Reclamation can 

provide to help assess needs, design, plan, and construct large water infrastructure projects. 

VII. CONCLUSION 

The expedited construction of authorized rural water projects facilitated by S. 1365 will 

save the Treasury money in the long run, as costs continue to rise, and fulfill Federal obligations 

in a more timely manner, including Federal tribal trust responsibilities. Postponing spending on 

this obligation through inadequate or insufficient funding levels only increases Federal costs and 

perpetuates hardships to rural and tribal communities in the West. S. 1365 would not only fulfill 

solemn Federal obligations, but also provide needed economic development and job creation. 

Importantly, the bill would use receipts that are already accruing to the Reclamation Fund 

for their intended purpose of financing the construction of western water projects. 

The WSWC appreciates the opportunity to submit this testimony, and urges the 

Committee to approve S. 1365 and work with the States towards its effective implementation. 

7 
67 


Insert offset folio 55 here 95284.055

WESTERN STATES WATER COUNCIL 

5295CommerceDrive,Suite202 I Murmy, Utoh!M107 I (501)685-2555 I FAX(/101)685-2559 

June 8, 2012 

Senator Jeff Bingaman, Chairman 

Energy and Natural Resources Committee 

United States Senate 

SD-364 Dirksen Senate Office Building 

Washington, DC 20510 

Dear Senators: 

Web Page: II\IW1A!.westernstateswater.org 

Position No. 343 

Senator Lisa Murkowski, Ranking Member 

Energy and Natural Resources Committee 

United States Senate 

SD-312 Dirksen Senate Office Building 

Washington, DC 20510 

On behalf of the Westem States Water Council, which represents eighteen states, I am writing to 

express our support for legislative action to establish a dedicated funding source for the completion of 

federal mral water projects authorized by the Congress for constmction by the Bureau of Reclamation. 

These projects include components that benefit both Indian and non-Indian mral communities. Many of 

these communities, particularly smaller communities, are struggling to provide adequate water supplies to 

meet the needs of their citizens of a quality consistent with federal mandates. 

It is essential that these projects be completed in a timely manner for the benefit of these 

communities in fulfillment of long-standing promises and trust responsibilities, some dating back 

decades. Another important consideration is the impact on the federal budget and economic growth. 

Accelerated construction scheduling, made possible by a more timely federal investment of modest 

amounts, will minimize long-term federal expenditures and create more jobs now. 

With respect to programmatic goals and funding priorities established pursuant to directives in 

any legislation, these should be developed in a transparent manner in consultation with the affected 

communities and States --and should consider existing state water plans and priorities. 

We appreciate the opportunity to express our interests and look forward to working with you to 

address this important need. 

Sincerely, 

Phillip C. Ward 

Chaim1an 

Westem States Water Conncil 

8 
68 


Insert offset folio 56 here 95284.056

RESOLUTION 

of the 

WESTERN STATES WATER COUNCIL 

in support of 

INDIAN WATER RIGHTS SETTLEMENTS 

Scottsdale, Arizona 

October 10, 2014 

Position No. 376 

WHEREAS, the Western States Water Council, an organization of eighteen western 

states and adjunct to the Western Governors' Association, has consistently supported negotiated 

settlement of disputed Indian water rights claims; and 

WHEREAS, the public interest and sound public policy require the resolution ofindian 

water rights claims in a manner that is least disruptive to existing uses of water; and 

WHEREAS, negotiated quantification of Indian water rights claims is a highly desirable 

process which can achieve quantifications fairly, efficiently, and with the least cost; and 

WHEREAS, the advantages of negotiated settlements include: (i) the ability to be 

flexible and to tailor solutions to the unique circumstances of each situation; (ii) the ability to 

promote conservation and sound water management practices; and (iii) the ability to establish the 

basis for cooperative partnerships between Indian and non-Indian communities; and 

WHEREAS, the successful resolution of certain claims may require "physical solutions," 

such as development of federal water projects and improved water delivery and application 

techniques; and 

WHEREAS, the United States has developed many major water projects that compete 

for use of waters claimed by Indians and non-Indians, and has a responsibility to both to assist in 

resolving such conflicts; and 

WHEREAS, the settlement of Native American water claims and land claims is one of 

the most important aspects of the United States' trust obligation to Native Americans and is of 

vital importance to the country as a whole and not just individual tribes or States; and 

WHEREAS, the obligation to fund resulting settlements is analogous to, and no less 

serious than the obligation of the United States to pay judgments rendered against it; and 

9 
69 


Insert offset folio 57 here 95284.057

WHEREAS, Indian water rights settlements involve a waiver of both tribal water right 

claims and tribal breach of trust claims that otherwise could result in court-ordered judgments 

against the United States and increase costs for federal taxpayers; and 

WHEREAS, current budgetary pressures and legislative policies make it difficult for the 

Administration, the states and the tribes to negotiate settlements knowing that they may not be 

funded because either they are considered earmarks or because funding must be offset by a 

corresponding reduction in some other expenditure, such as another tribal or essential Interior 

Department program; 

NOW, THEREFORE, BE IT RESOLVED, that the Western States Water Council 

reiterates its support for the policy of encouraging negotiated settlements of disputed Indian 

water rights claims as the best solution to a critical problem that affects almost all of the Western 

States; and 

BE IT FURTHER RESOLVED, that the Western States Water Council urges the 

Administration to support its stated policy in favor of Indian land and water settlements with a 

strong fiscal commitment for meaningful federal contributions to these settlements that 

recognizes the trust obligations of the United States government; and 

BE IT FURTHER RESOLVED, that Congress should expand opportunities to provide 

funding for the Bureau of Reclamation to undertake project construction related to settlements 

from revenues accming to the Reclamation Fund, recognizing the existence of other legitimate 

needs that may be financed by these reserves; and 

BE IT FURTHER RESOLVED, that Indian water rights settlements are not and should 

not be defined as Congressional earmarks; and 

BE IT FURTHER RESOLVED, that steps be taken to ensure that any water settlement, 

once authorized by the Congress and approved by the President, will be funded without a 

corresponding offset, including cuts to some other tribal or essential Interior Department 

program. 

(See alm Nos. 250, 275, 310, and 336) 

Originally adopted March 21, 2003 

Revised and reaffirmed Mar 29, 2006, October 17, 2008, and October 7, 2011 

10 
70 


Insert offset folio 58 here 95284.058

RESOLUTION 

of the 

Position No. 367 

Revised and Readopted 

(formerly Position No. 333 7.29/2011: 

See also Position No. 304- 7111!2008) 

WESTERN STATES WATER COUNCIL 

regarding the 

THE RECLAMATION FUND 

Helena, Montana 

July 18,2014 

WHEREAS, in the West_ water is indeed our "life blood," a vital and scarce resource the 

availability of which has and continues to circumscribe growth, development and our economic well 

being and environmental quality of life -- the wise conservation and management of which is critical to 

maintaining human life, health, welfare, property and environmental and natural resources; and 

WHEREAS, recognizing the critical importance of water in the development of the West, the 

Congress passed the Reclamation Act on June 17, 1902 and provided monies ''reserved, set aside, and 

appropriated as a special fund in the Treasury to be known as the 'reclamation fund,· to be used in the 

examination and survey for and the construction and maintenance of irrigation works for the storage, 

diversion, and development of water for the reclamation of arid and semiarid land .. '• in seventeen western 

states, to be continually invested and reinvested; and 

WHEREAS, then President T11eodore Roosevelt stated, ''T11e work of the Reclamation Service in 

developing the larger opportunities of the western half of our country for irrigation is more important than 

almost any other movement. The constant purpose of the Government in connection with the 

Reclamation Service has been to use the water resources of the public lands for the ultimate greatest good 

of the greatest number; in other words, to put upon the land permanent homemakers, to use and develop it 

for themselves and for their children and children's children ... ; " 15 and 

WHEREAS, the Secretary of the Interior was authorized and directed to "locate and construct" 

water resource projects to help people settle and prosper in this arid region, leading to the establishment 

of the Reclamation Service today's U.S. Bureau of Reclamation; and 

WHEREAS, western states and the Bureau of Reclamation have worked in collaboration to meet 

the water-related needs of the citizens of the West, and protect the interests of all Americans, recognizing 

changing public values and the need to put scarce water resources to beneficial usc for the ''ultimate 

greatest good of the greatest number;" and 

15State of the Union Address, 1907 

II 
71 


Insert offset folio 59 here 95284.059

Position No. 367 

Revised and Readopted 

(formerly Position No. 333 7.29/2011: 

See also Position No. 304- 7111!2008) 

WHEREAS. the Bureau of Reclamation has built facilities that include 348 reservoirs with the 

capacity to store 245 million acre-feet of water, irrigating approximately 10 million acres offam1land that 

produce 60 percent of the nation's vegetables and 25 percent of its fruits and nuts. as well as providing 

water to about 31 million people for municipal and industrial uses, while generating more than 40 billion 

kilowatt hours of energy each year from 53 hydroelectric power plants, enough to serve 3.5 million 

households, while providing 289 recreation areas with over 90 million visits annually, and further 

providing flood control, and fish and wildlife benefits: and 

WHEREAS, project sponsors have and continue to repay the cost of these facilities, which also 

produce power receipts that annually return nearly one billion in gross power revenues to the federal 

government. prevent millions in damages due to floods each year, and generate billions of dollars in 

economic retums from agricultnral production: and 

WHEREAS, the water and power resources developed under and flood control provided by the 

Reclamation Act over the last century supported the development and continue to be critical to the 

maintenance of numerous and diverse mral communities across the West and the major metropolitan 

areas of Albuquerque. Amarillo, Boise, Denver, El Paso, Las Vegas, Los Angeles, Lubbock, Phoenix, 

Portland, Reno, Sacramento, Salt Lake City, Seattle, Tucson and numerous other smaller cities: and 

WHEREAS, western States arc committed to continuing to work cooperatively with the 

Department of Interior and Bureau of Reclamation to meet our present water needs in the West and those 

of future generations, within the framework of state water law, as envisioned by President Roosevelt and 

the Congress in 1902: and 

WHEREAS, according to the Administration's FY 2015 request actual and estimated receipts 

and collections accruing to the Reclamation Fund are $2.046 billion for FY 2013.$2.002 billion for FY 

2014, and $2.037 billion for FY2015, compared to actual and estimated appropriations of$858 million 

for FY 2013, $913 million for FY 2014, and $819 million for FY 2015and as a rcsnlt the unobligated 

balance at the end of each year respectively is calculated to be $12.029 billion, $13.118 billion and 

$14.336 billion respectively; and 

WHEREAS, this unobligated balance in the Reclamation Fund continues to grow at an 

increasing rate from an aetna! balance of$5.67 billion at the end ofFY 2006, to the estimated $14.336 

billion by the end ofFY 2015, over a 150% increase; and 

WHEREAS, under the Reclamation Act of 1902, the Reclamation Fund was envisioned as the 

principle means to finance federal western water and power projects with revenues from westem 

resources and its receipts are derived from water and power sales. project repayments, certain receipts 

from public land sales, leases and rentals in the 17 westem states, as well as certain oil and mineralrelated royalties - but these receipts are only available for expenditure pursuant to annual appropriation 

acts: and 

12 
72 


Insert offset folio 60 here 95284.060

Position No. 367 

Revised and Readopted 

(formerly Position No. 333 ·· 7/29/2011: 

See also Position No. 304- 7:' 11 /2008) 

WHEREAS, with growing receipts in part due to high energy prices and declining federal 

expenditures for Reclamation purposes, the unobligated figure gets larger and larger, while the money is 

actually spent elsewhere for other federal purposes contrary to the Congress· original intent; 

NOW THEREFORE BE IT RESOLVED, that the Western States Water Council asks the 

Administration and the Congress to fhlly appropriate the receipts and collections accruing to the 

Reclamation Fund subsequent to the Reclamation Act and other acts for their intended purpose in the 

continuing conservation, development and wise usc of western resources to meet western water-related 

needs-- recognizing and continuing to defer to the primacy of western water laws in allocating water 

among uses -- and work with the States to meet the challenges of the future. 

BE IT FURTHER RESOLVED. that such "needs" may include the constmction of Reclamation 

facilities incorporated as part of a Congressionally approved Indian water right settlement 

BE IT FURTHER RESOLVED, that the Administration and the Congress investigate the 

advantages of converting the Reclamation Fund from a special account to a tme revolving tmst fund with 

annual receipts to be appropriated for authorized purposes in the year following their deposit (similar to 

some other federal authorities and tmst accounts). 

13 
73 

Senator DAINES. Thank you, Mr. Willardson. 

Mr. Yates? 

STATEMENT OF RYAN YATES, DIRECTOR OF CONGRESSIONAL 

RELATIONS, AMERICAN FARM BUREAU FEDERATION 

Mr. YATES. Senator Daines, Ranking Member Hirono, Senator 

Franken, other members of the Subcommittee, thank you for calling this important hearing on S. 982, the Water Rights Protection 

Act, and inviting me to testify on behalf of the American Farm Bureau Federation and the nation’s farmers and ranchers. 

On behalf of the nearly six million Farm Bureau member families across the United States I commend you for your leadership in 

advancing legislation to prevent attempts by Federal land management agencies to circumvent long standing state water law. The 

Farm Bureau has a strong interest in ensuring that the relationship between Federal land management agencies and public land 

ranchers is maintained. 

Federal land management agencies have begun to pressure private land owned businesses to surrender long held water rights 

which they have paid for and developed as a condition of receiving 

renewals in their special use permits that allow them to operate on 

public land. Specifically the Forest Service has applied a water 

clause to special use permits which requires an applicant to transfer his or her lawfully acquired water right into a joint ownership 

agreement with the United States Government as a condition of 

granting a renewal of the permit. 

What’s more troubling is that the clause also grants the United 

States Government sole ownership of the water right in the event 

of revocation of the permit. Use of the D30 water clause was struck 

down by a Federal judge in 2012 in a lawsuit brought by the National Ski Areas Association. These kinds of actions by the Federal 

Government violate Federal and State law and will ultimately 

upset water allocation systems and private property rights on 

which western economies have been built. 

It is no secret that the Forest Service has long sought to expand 

Federal ownership of water rights in the Western United States. In 

an August 15th 2008 Intermountain Region briefing paper addressing applications, permits or certificates filed by the United States 

for stock water, the Forest Service claimed, ‘‘It is the policy of the 

Intermountain Region that livestock water rights used on National 

Forest grazing allotments should be held in the name of the United 

States.’’ 

During a House Natural Resources hearing held on March 12th, 

2012 the Forest Service testified the Forest Service believes water 

sources used to water permitted livestock on Federal land are integral to the land where the livestock grazing occurs, therefore the 

United States should hold the water rights for current and future 

grazing. 

Lastly, the recently withdrawn Forest Service Groundwater Directive would have formally codified the Forest Service efforts to 

require the transfer of privately held water rights to the Federal 

Government as a condition of a permit’s renewal. 

The Forest Service has even argued that the Clean Water Act 

provides the agency the statutory authority to implement their 

74 

policies concerning the transfer or takings of water rights. Thus, 

while the EPA’s final Waters of the U.S. rule raises many policy 

questions and concerns, one additional cause for alarm is the impact that it may have on lawfully held water rights held by farmers 

and ranchers. 

During a recent hearing of the House Natural Resources Committee this year Forest Service Deputy Chief Leslie Weldon acknowledged that the Chief of the Forest Service stated that the 

proposed directive has been put on hold. While we applaud the 

agency’s withdrawal of the flawed proposal we remain concerned 

that this withdrawal is only temporary. After acknowledging the 

withdrawal, Deputy Chief Weldon testified that the Forest Service, 

‘‘will publish a new draft for a new round of public comment before 

any direction is finalized.’’ 

In addition to land perhaps the most valuable resource for every 

farmer and rancher in America is water. In order to provide the 

food, feed, fuel and fiber for the nation and the world farmers and 

ranchers simply need to have access to water. This is especially 

crucial in the West. 

Moreover we believe they have the right to expect that their lawfully acquired water rights should be respected by the Federal Government. Passage of S. 982 represents an important and necessary 

step in protecting private property rights and upholding long established water law by prohibiting Federal agencies from expropriating water rights through the use of permits or leases. 

Further, this legislation recognizes the ability of states to confer 

water rights, acknowledges that the Federal Government will respect those lawfully acquired rights and assures valid holders of 

water rights under state law cannot have those rights diminished 

or otherwise jeopardized by assertions of rights by Federal agencies. 

It is important to note that S. 982 does not confer any new rights 

or diminish any existing rights. Passage of S. 982 will not provide 

landowners with more than they currently have nor will it diminish any existing authority from the Federal Government. The 

Water Rights Protection Act simply assures that Federal agencies 

will respect long standing State and Federal water law and uphold 

the Federal Government’s long standing deference to the states on 

matters of water rights. 

The American Farm Bureau Federation appreciates the Committee’s willingness to listen to the concerns of our members. The need 

for permanent legislation to protect private property rights from 

the ongoing threats of Federal takings cannot be overstated. Farmers, ranchers, and small businesses rely on regulatory certainty 

and the constitutional protection of private property rights to make 

sound business decisions. 

We look forward to working with the Committee on securing enactment of this critically important legislation. 

Thank you. 

[The prepared statement of Mr. Yates follows:] 

75 


Insert offset folio 61 here 95284.061

... 

Statement of the 

American Farm Bureau Federation 

TO THE SENATE COMMITTEE ON ENERGY AND NATURAL RESOURCES 

RE: "S. 982 (BARRASSO), THEW A TER RIGHTS PROTECTION ACT OF 2015' 

JUNE 18, 2015 

Presented by: 

Ryan R. Yates 

Director· of Congr·essional Relations 

American Farm Bureau Federation 
76 


Insert offset folio 62 here 95284.062

Ryan R. Yates 

Director of Congressional Relations 

American Farm Bureau Federation 

Chairman Lee, Ranking Member Hirono, and Members of the Subcommittee, thank you for 

calling this important hearing on the Water Rights Protection Act and inviting me to testify on 

behalf of the American Farm Bureau Federation (AFBF) and the nation's farmers and ranchers. 

My name is Ryan Yates and I am Director of Congressional Relations at AFBF. 

On behalf of the nearly 6 million Farm Bureau member families across the United States, I 

commend you for your leadership in advancing legislation to prevent attempts by federal land 

management agencies to circumvent long-standing state water law. Farm Bureau has a strong 

interest in ensuring that the longstanding relationship between federal land management agencies 

and public land ranchers is maintained, and I am pleased to offer this testimony this afternoon on 

behalf of our organization. 

The U.S. Forest Service and other federal agencies have bes>un to pressure privately owned 

businesses to surrender long-held water rights which they have paid for and developed- as a 

condition of receiving renewals in their special use permits that allow them to operate on public 

land. These kinds of actions by the federal government violate federal and state law and will 

ultimately upset water allocation systems and private property rights on which western 

economies have been built. 

It is no secret that the Forest Service has long sought to expand federal ownership of water rights 

in the western United States. In an Aug. 15, 2008, Intermountain Region briefing paper 

addressing applications, permits or certificates filed by the United States for stock water, the 

Forest Service claimed, "It is the policy of the Intermountain Region that livestock water rights 

used on national forest grazing allotments should be held in the name of the United States to 

provide continued support for public land livestock grazing programs." Further, another 

Intermountain Region guidance document dated Aug. 29, 2008, states, "The United States may 

claim water rights for livestock use based on historic use of the water. Until a court issues a 

decree accepting these claims, it is not known whether or not these claims will be recognized as 

water rights." During a House Natural Resources hearing on March 12, 2012, the Forest Service 

testified, "The Forest Service believes water sources used to water permitted livestock on federal 

land are integral to the land where the livestock grazing occurs; therefore, the United States 

should hold the water rights for current and future grazing." Lastly, the recently withdrawn 

Forest Service groundwater directive (directive) would have formally codified the Forest Service 

efforts to require the transfer of privately held water rights to the federal government as a 

condition of a permit's renewal into the agency's policy handbook. 

During a recent hearing of the House Natural Resources Committee Water and Power 

Subcommittee, Forest Service Deputy Chief Leslie Weldon acknowledged that the "Chief of the 

Forest Service stated that the proposed directive has been put on hold." While we applaud the 

agency's withdrawal of the flawed proposal, we remain concerned that this withdrawal is only 

temporary. After acknowledging the withdrawal, Deputy Chief Weldon testified that the Forest 

Service "will publish a new draft for a new round of public comment before any direction is 

finalized." 

In addition to land, perhaps the most valuable resource for every farmer and rancher in America 

is water. In order to provide the food, feed, fuel and fiber for the nation and the world, farmers 

and ranchers simply need to have access to water. This is especially crucial in the west. 
77 


Insert offset folio 63 here 95284.063

Ryan R. Yates 

Director of Congressional Relations 

American Farm Bureau Federation 

Moreover, we believe they have a right to expect that their lawfully acquired water rights should 

be respected by the federal government. 

The Forest Service has even argued that the Clean Water Act provides the agency the statutory 

authority to implement their policies concerning the transfer or takings of water rights. Thus, 

while EPA's final "waters of the U.S." rule raises many policy questions and concerns, one 

additional cause for alarm is the impact it might have on lawfully held water rights by farmers 

and ranchers. 

Passage of S. 982 represents an important and necessary step in protecting private property rights 

and upholding long-established water law by prohibiting federal agencies from expropriating 

water rights through the use of permits, leases and other land management arrangements. 

Further, the legislation recognizes the ability of states to confer water rights, acknowledges that 

the federal government will respect those lawfully acquired rights, and assures valid holders of 

water rights under state law cannot have those rights diminished or otherwise jeopardized by 

assertions of rights by federal agencies when those assertions have no basis in federal or state 

law. 

Congressional History of Western Water Law 

Scarcity of water in the Great Basin and southwest United States led to the development of a 

system of water allocation that is very different from how water is allocated in regions graced 

with abundant moisture. Rights to water are based on actual use of the water and continued use 

for beneficial purposes as determined by state laws. Water rights across the west are treated in a 

fashion similar to property rights, even though the water is the property of the citizens of the 

states. Water rights can be and often are used as collateral on mortgages as well as improvements 

to land and infrastructure. 

The settlers in the arid west developed their own customs, laws and judicial determinations to 

deal with mining, agriculture, domestic and other competing uses recognizing and establishing 

the prior appropriation doctrine, which is first in time, first in right. Out of these grew a fairly 

uniform body of laws and rights across the western states. The federal government as original 

sovereign and owner of the land and water prior to Congress granting statehood ultimately chose 

to acquiesce to the territories and later the states on control, management and allocation of water. 

Act of July 26, 1866: 

The United States Congress passed the Act of July 26, 1866 [subsequently the Ditch Act 

of 1866) that became the foundation for what today is referred to as "Western Water 

Law." The Act recognized the common-law practices that were already in place as 

settlers made their way to the western territories including Utah. Congress declared: 

"Whenever, by priority of possession, rights to the use ojwaterjor mining, agriculture, 

manufacturing, or other pwposes, have vested and accrued, and the same are recognized 

and acknowledged by the local customs, laws and decisions of courts, the possessors and 

owners of such vested rights shall be maintained and protected" 

(43 USC Section 661) 
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Ryan R. Yates 

Director of Congressional Relations 

American Farm Bureau Federation 

This Act of Congress obligated the federal government to recognize the rights of the 

individual possessors of water, but as important, recognized "local customs, laws and 

decisions of state courts." 

The Desert Land Act of 1877: 

"All surplus water over and above such actual appropriation and use .... shall remain and 

be held free jar appropriation and use of the public for irrigation, mining and 

manufacturing ... " 

The Taylor Grazing Act of 1934: 

"nothing in this Act shall be construed or administered in a way to diminish or impair 

any right to the possession and use of water for mining, agriculture, manufacturing and 

other pwposes .. " 

The McCarran Amendment of 1952: 

Congress established a unified method to allocate the use of water between federal and 

non-federal users in the McCarran Amendment. (43 USC Section 666) The McCarran 

Amendment waives the sovereign immunity of the United States for adjudications for all 

rights to use water. 

"waives the sovereign immunity!!{ the United States fin· adjudications Jiw all rights to use 

1vater." 

The 1976 Federal Land Policy Management Act: 

"All actions by the Secretary concerned under this act shall be subject to valid existing 

rights." 

Congress has been explicit in the limits it has established on sovereignty and states' rights 

for the United State Forest Service and other land management agencies. 

Forest Service Groundwater Management Directive 

While the Forest Service has stated that it has withdrawn its groundwater directive, it 

acknowledges that this withdrawal is only temporary. Recognizing that a new and revised 

directive may likely be on the horizon, we believe it is important for the Committee to 

understand the primary concerns that farmers and ranchers have with the proposed directive. 

Lack of Legal Authority 

One of our primary criticisms of ongoing federal efforts to regulate groundwater (Directive) is 

that the land management agencies lack legal authority to regulate groundwater. The Organic 

Administration Act of 1897 (Organic Act) vests the Forest Service with the authority to manage 

surface waters under certain circumstances. The statute provides no authority for management of 

groundwater. Nor does the Multiple-Use Sustained-Yield Act of 1960 (MUSYA) provide the 

agency with authority over groundwater. That statute merely provides "that watershed protection 

is one of five co-equal purposes for which the NFS lands were established and are to be 

administered." 2560.01(1 )(f). See United States v. New Mexico, 438 U.S. 696, 713 (1978). 
79 


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Ryan R. Yates 

Director of Congressional Relations 

American Farm Bureau Federation 

The proposed directive would have required the agency to "consider the effects of proposed 

actions on groundwater quantity, quality, and timing prior to approving a proposed use or 

implementing a Forest Service Activity." [2560.03(4)(a)(d)) The Forest Service does not 

currently own or manage groundwater nor does it have the authority to approve or disapprove 

uses of water that are granted under state law; this state authority is recognized both by federal 

statutes and in court precedents. 

The Forest Service cites several statutes, including the Organic Act, the Weeks Act and 

MUSY A, to frame its expansive regulatory view in seeking authority to manage groundwater. 

The agency incorrectly interprets the purposes for which water is reserved as a provision of the 

Organic Act The Organic Act simply authorizes the Forest Service to manage the land, 

vegetation and surface uses. The Act does not provide authority to manage or dispose of the 

groundwater or surface waters of the states based on the agency-declared "connectivity." 

The Weeks Act states, "The Secretary of Agriculture is hereby authorized and directed to 

examine, locate, and purchase such forested, cut-over, or denuded lands within the watersheds of 

navigable streams as in his judgment may be necessary to the regulation of the flow of navigable 

streams or for the production of timber." 16 U.S.C. § 515. The Forest Service inappropriately 

attempts to use this reference of "navigable streams" to include regulation of groundwater, which 

is not referenced in the Weeks Act 

The United States Supreme Court has gone to great lengths to bring clarity to the scope of the 

Organic Act's determination that federal authority extends only to prudent management for 

surface water resources. In United States v. New Mexico, the Court defined prudent management 

to: 

1) "secure favorable water flows for private and public uses under state law," and 

2) "furnish a continuous supply of timber for the people." 

The agency authority is narrowed to proper management of the surface to achieve the specific 

purpose of the Organic Act not the direct management of the groundwater and agency-declared 

interconnected surface waters. MUSY A does not expand the reserved water rights of the United 

States. United States v. New Mexico, 438 lJ.S. 696, 713 (1978) Additionally, the court denied 

the Forest Service's instream flow claim for fish, wildlife and recreation uses. Specifically, the 

court denied the claim on the grounds that reserved water rights for National Forest System lands 

established under the Forest Service's Organic Act of 1897 are limited to the minimum amount 

of water necessary to satisfy the primary purposes of the Organic Act- conservation of favorable 

water flows and the production of timber and were not available to satisfy the claimed instream 

flow uses. 1 

Inexplicably, the Forest Service also points to the Clean Water Act as a source oflegal authority 

and direction for the directive. 2560.01. There is no explanation of how the Clean Water Act 

applies to this directive or how sections 303, 401, 402 or 404 of the Clean Water Act (cited in the 

directive) provide any legal authority to the Forest Service to regulate groundwater. The Clean 

Water Act does not even grant the federal government jurisdiction over groundwater. At a 

minimum, federal agencies must provide a modicum of justification for any claim oflegal 

1 http://www.justlce.gov/enrd/3245.htm 
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Ryan R. Yates 

Director of Congressional Relations 

American Farm Bnreau Federation 

authority, particularly when the Forest Service has no authority whatsoever to implement the 

Clean Water Act. 

Expansion of Federal Authority through lnterconnectivity Clause 

The directive proposed a new standard of interconnectivity [2560.03(2)] by proposing to 

"manage surface water and groundwater resources as hydraulically interconnected, and consider 

them interconnected in all planning and evaluation activities, unless it can be demonstrated 

otherwise using site-specific information." Presuming that all groundwater and surface waters 

are interconnected implies the agency has authority to manage, monitor and mitigate water 

resources on all NFS lands. This assumption of federal authority violates federal and state 

statutes and will ultimately upset water allocation systems and private property rights on which 

western economies have been built. In an era of limited federal budgets, this attempt to expand 

the reach of the agency into individual and state activities is particularly inappropriate. 

Whether or not water is "connected" is not the sole, or even most critical, factor for asserting 

regulatory authority. The Forest Service's attempt to use extremely controversial Clean Water 

Act terminology such as any "hydrological connection" to establish its authority over water 

rights is misplaced and unlawful. In fact, the Supreme Court specifically rejected the "any 

hydrological connection" approach to federal jurisdiction. Rapanos et ux., v. United States 547 

U.S. 715 (2006) 

Further, the directive expands current Forest Service regulatory scope of groundwater resources 

to a watershed-wide scale, including both Forest Service lands and adjacent non-federal lands. 

Specifically, the new policy states the agency will, "evaluate and manage the surfacegroundwater hydrological system on an appropriate spatial scale, taking into account surface 

water and groundwater watersheds, which may or may not be identical and relevant aquifer 

systems," and "evaluate all applications to States for water rights on NFS lands and applications 

for water rights on adjacent lands that could adversely affect NFS groundwater resources, and 

identify any potential injury to those resources or Forest Service water rights under applicable 

state procedures (FSM 2541 )." This is an unprecedented attempt to expand federal authority in 

approving state-granted water rights. 

With the exception of federally reserved tights that are specifically set out either in statute or 

recognized by the courts, the states own and manage the water within their jurisdictions. The 

manner in which states regulate water rights differs substantially, particularly between western 

states, where the appropriation doctrine is common, and eastern states where the riparian system 

is in more general use. Farm Bureau supports the present system of appropriation of water rights 

through state law and opposes any federal vitiation or preemption of state water law. Water 

rights as property rights cannot be taken without compensation and due process oflaw. There is 

no legal or policy justification for the Forest Service to insert itself in this regulatory arena by 

attempting to use the permitting process to circumvent state water law or force existing water 

rights holders to relinquish their rights. 

Without clear congressional authorization, federal agencies may not use their administrative 

authority to "alter the federal-state framework by permitting federal encroachment upon 

traditional state power." In Solid Waste Agency of Northern Cook County (SWANCC) v. US. 

Army Corps (if Engineers, 531 U.S. 159 (2001). Although SWANCC was decided in the context 

of the Clean Water Act, the legal principle is the same: federal agencies must have clear 
81 


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Ryan R. Yates 

Director of Congressional Relations 

American Farm Bureau Federation 

congressional direction before altering the balance of federal and state authorities. The Forest 

Service has none here. It is clear that by proposing to manage the groundwater resources and 

interconnected surface waters within the states on a massive watershed basis, the Forest 

Service's proposed directive exceeds the agency's statutory authority and seeks to redefine the 

federal-state framework The manner in which the directives insert the Forest Service in the 

evaluation of"all applications to States for water rights on NFS lands and applications for water 

rights on adjacent lands" (FSM 2560.03(6)(f)), contravenes this federally established system of 

deferral to the states. The Forest Service cannot and should not act where congressional authority 

has not been granted to it 

Constitutional Takings Violation 

The directive would authorize actions that would appear to violate the takings clause of the 

United States Constitution. The 5111 amendment provides protections for citizens from 

government takings of private property without just compensation. The directive provides that 

the Forest Service would be required to "obtain water rights under applicable state law for 

groundwater and groundwater-dependent surface water needed by the Forest Service (FSM 

2540)" and "[Require] written authorization holders operating on NFS lands to obtain water 

rights in compliance with applicable State law, FSM 2540, and the terms and conditions of their 

authorization." 

Requiring written authorization for permitted uses including livestock grazing on NFS lands 

provides a vehicle for the agency to obtain water rights based on the permittee's agreement to 

comply with the "terms and conditions of the conditional use authorization." Under the Forest 

Service's terms and conditions [FSM 2541.32], the agency will now be able to require holders of 

water rights with permitted activities on system lands to comply with the water clause and to 

hold their water rights "jointly" with the United States. Further, there is no reference in the 

directive to the government's obligation to pay just compensation for the surrender to the 

government of privately held water rights legally adjudicated by the state. 

Conclusion 

Through statute and years of well-established case law, states have developed systems to fairly 

appropriate often scarce water resources to users. Because water is the lifeblood for all farm and 

ranch operations, we are greatly concerned that some agencies in the federal government 

apparently wish to bypass or ignore the established system of water rights. 

The American Farm Bureau Federation appreciates the Committee's willingness to listen to the 

concerns of our members. The need for permanent legislation to protect private water rights from 

the ongoing threats of federal takings cannot be overstated. Farmers, ranchers, and small 

businesses rely on regulatory certainty and the constitutional protection of private property rights 

to make sound business decisions. We look forward to continuing to work with you and the 

Senate Energy and Natural Resources Committee in securing enactment of this critically 

important legislation. Thank you. 
82 

Senator DAINES. Thank you, Mr. Yates. 

The Chair will now yield to the Ranking Member of the Subcommittee, Senator Hirono, for her opening remarks. 

STATEMENT OF HON. MAZIE K. HIRONO, U.S. SENATOR FROM 

HAWAII 

Senator HIRONO. Thank you, Senator Daines, and I would like to 

thank Chairman Barrasso for holding this hearing. 

Good afternoon to all of you, and I thank all the panelists for 

being here. 

This is the first hearing of the Subcommittee on Water and 

Power of the 114th Congress. The Subcommittee’s work is critical 

to communities across the nation as water is fundamental to all aspects of life. 

In the native Hawaiian culture, you can guess I represent Hawaii, water or wai, is considered a sacred source of life. Water was 

the most sought after resource by native Hawaiians and streams 

often provided the boundaries for land subdivisions or Ahupua’a. It 

was water that shaped communities as native Hawaiians understood that a constant supply of fresh water was critical to sustain 

their lives. It is because of this understanding that the protection 

and sharing of water is so fundamental to Hawaiian culture. 

Fast forward to today and water remains an essential concern. 

Hawaii has to be especially creative when it comes to maximizing 

benefits of our limited water resources. We do not have other states 

to lean on, and water can be a limited factor as we search for ways 

to be more food as well as energy sustainable. 

Hawaii just recently committed to being 100 percent reliant on 

renewable energy sources by 2045, a bold and ambitious move. Yet 

we often have to make such bold and ambitious commitments far 

in advance of other states. Just recently the Hawaii State Legislature passed a bill to expand the development of hydro electric 

projects on agricultural lands, which would contribute to making 

Hawaii more energy and food sustainable. 

Of course water is fundamental to every state. The stewardship 

of this precious resource includes developing smart policies that 

protect, conserve and manage water at the watershed scale, balancing the many water needs of our communities, supporting sustainable development of our economies and protecting the ecosystem and special places that depend on those waters. These responsibilities are at the heart of our work here on the Subcommittee, and I look forward to working with all of you and my 

colleagues to advance water legislation. 

Regarding the legislation that is before us today, one bill, in particular, stands out as good public policy to support sustainable 

water supplies. Senators Tester and Daines’s Rural Water Project 

Act, S. 1365, would provide dedicated funding for rural water 

projects and Indian water rights settlements. I know that when I 

came in at least one of you testified to that point. 

It is hard to imagine that in the 21st century there are still communities in the United States that do not have adequate drinking 

water supplies. We have a responsibility to ensure that all communities have access to clean, potable water. Providing dedicated 

83 

funding to complete rural water projects is critical to doing so and 

will save taxpayers money over the long run. 

This bill is also important because it supports the United States 

in meeting its responsibilities to Native American tribes. Since the 

1970’s the U.S. has enacted more than 29 Indian water rights settlements. However, the claims of hundreds of tribes remain unresolved and funding remains a major barrier. 

In the coming decades, nearly two dozen settlements, costing billions of dollars, are likely to be enacted. S. 1365 would provide 

modest, dedicated funding for these settlements which would enable the Federal Government to better plan for settlement costs 

and save money over time. It would enable more timely resolution 

of the tribal claims, support economic development in Indian Country and bring greater certainty to water in the West, which is especially important as competition for water and drought intensify. 

Among the other bills before us today, I am particularly interested in hearing the thoughts of our witnesses on S. 982, the Water 

Rights Protection Act. The Administration and others have raised 

concerns about the potential impacts of this bill on the Federal 

Government’s authority to manage public lands and waters, protect 

tribal and Federal rights and ensure water is available for environmental uses. It is important that we fully understand what this bill 

does and its potential implications. 

In developing new policies, we should be looking at how to improve the way the Federal Government does business. S. 593, the 

Bureau of Reclamation Transparency Act, and S. 1533, the Water 

Supply Permitting Act, are aimed at improving Reclamation practices in managing our nation’s water infrastructure and permitting 

processes. We can always improve government business practices 

so long as they do not adversely impact the public good or the environment. 

I look forward to hearing more from the experts. We will have 

some questions for you today about your thoughts on these legislative proposals. 

Finally, the remaining bills on the agenda today involve specific 

infrastructure projects including a reservoir project in Wyoming, 

two rural water projects in Montana and an irrigation project in 

Nebraska. These bills are relatively straight forward. 

We face significant challenges in the stewardship of our nation’s 

water supplies, particularly in a time of unprecedented drought 

and climate changes. 

I just read yesterday that NASA published a report indicating 

that 21 of our world’s 37 largest aquifers are being depleted at 

unsustainable rates. Of those 21 troubled aquifers, two are located 

within the United States. There is no denying that water supply 

issues will continue to be a critical piece of our national conversation. 

As we grapple with these issues in this Subcommittee, developing solutions will require that we work together and think creatively about water management and use, infrastructure and financing—all critical to the long term resilience of our communities 

and the environment. 

Again, I look forward to working with all of you and the members of this Committee. Thank you very much. 

84 

I would like to ask for unanimous consent that the two statements that were submitted by the Forest Service be included in the 

record. 

Senator DAINES. So ordered. 

Senator HIRONO. Thank you. 

[The information referred to follows:] 

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STATEMENT FOR THE RECORD 

U.S. DEPARTMENT OF AGRICULTURE 

FOREST SERVICE 

BEFORE THE 

UNITED STATES SENATE 

COMMITTEE on ENERGY AND NATURAL RESOURCES 

SUBCOMMITTE on WATER AND POWER 

Concerning S. 982 

June 18, 2015 

Thank you for the oppottunity for the U.S. Department of Agriculture (USDA), Forest Service, 

to provide views on S. 982, Water Rights Protection Act. S. 982 would have a significant impact 

on the ability of federal land management agencies to protect surface and groundwater resources 

on federal lands, as well as other natural resources on federal lands that depend on water. 

Limiting the ability of federal land management agencies to protect water on federal lands could 

also have negative impacts on communities, water users, and landowners downstream, as well as 

on fish, plants, and wildlife. The legislation is overly broad and would expose the Forest Service 

to litigation risk and create additional uncertainty in the administration of land uses in the 

National Forest System (NFS). USDA opposes S. 982. 

The purposes of the NFS were established by Congress in 1897 and were primarily focused on 

the protection of water and watersheds and securing a continuous supply of timber. National 

forests in the arid West typically occupy the very top of critical watersheds, where water is 

stored in winter snow packs and underground and slowly released through the spring and into the 

summer. National forests in the east also occupy critical watersheds, preserving water quality for 

downstream users and moderating floods to protect downstream landowners. Communities, 

farmers and ranchers, Native American Tribes, and the general public depend on delivery of 

clean water from the national forests and grasslands. Careful consideration of activities that can 

have an adverse impact on waters and watersheds on NFS lands is critical to downstream water 

users and other inhabitants that can be impacted if these watersheds are not protected. By 

significantly restricting the Forest Service's ability to address these concerns, 

S. 982 would substantially undercut the primary purposes of the NFS established by Congress. 

Section 3 of S. 982 prohibits the Secretary of the Interior or the Secretary of Agriculture from: 

( l) conditioning any permit, approval, license, lease, allotment, easement, right-of-way, or other 

land use or occupancy agreement on the limitation, encumbrance, or transfer of any water right 

directly or indirectly to the United States, (2) requiring any water user to apply for or acquire a 

water right in the name of the United States under State law, (3) asserting jurisdiction over 

groundwater withdrawals or impacts on groundwater resources, or (4) infringing on the rights 

and obligations of a State in evaluating, allocating, and adjudicating the waters of the State 

originating on or under, or flowing from, land owned or managed by the Federal Government. 
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To the extent Section 3 precludes conditioning issuance, renewal, amendment, or extension of a 

land use authorization on any impairment of title to a water right, the bill would have the effect 

of precluding any term or condition in a special use authorization related to the exercise of water 

rights, since any such condition could be deemed to impair that water right. As a result, the bill 

would not allow the federal land management agencies to establish conditions on the exercise of 

water rights that are deemed necessary to ensure sufficiency of water to conduct authorized uses 

ofNFS lands and to protect public health and safety and natural resources. The bill would limit 

the ability of the agencies to protect species of special concern and their habitats on federal land, 

particularly when they are dependent on water resources, and would limit the ability of the 

agencies to protect against contamination of water and other natural resources. 

In addition, Section 3(1 )(A) would preclude any condition limiting the transfer of a water right to 

a subsequent permit holder or requiring a water right to be offered for sale to a subsequent permit 

holder as a "designee" of the United States. Because section 3(1) would prohibit withholding 

issuance or renewal of a land use authorization on limitation, encumbrance, or any other 

impairment of a water right, this provision also could be interpreted to prohibit the Forest Service 

from denying a land use authorization on the basis of potential impacts on water resources from 

the proposed use. 

Section 3(2) would prohibit the Forest Service from requiring a permit holder to acquire water 

rights in the name of the United States as a condition of a land use authorization. This provision 

would defeat the agency's ability to ensure that sufficient water exists on NFS lands to support 

the continuation of existing uses. The Forest Service has a longstanding responsibility to ensure 

sufficient water remains available for permitted activities on NFS lands. This applies to use or 

occupancy ofNFS lands in support of a Forest Service program that uses water and needs water 

rights. The existing Forest Service policy does not apply to water that is diverted from NFS 

lands for uses offNFS lands, such as irrigation diversions and ditches, municipal reservoirs, or 

pipelines. The Forest Service policy also does not apply to water that is diverted from NFS lands 

under a state-allocated water right and used on NFS lands for oil and gas operations or mining 

activities. 

The Forest Service recently published a proposed policy in the Federal Register that would 

establish a different approach for water rights for ski areas. Under this proposed policy, water 

rights for ski areas would not be required to be in the name of the United States. This different 

approach takes into account the long-term capital expenditures that may be involved in 

developing ski area water rights; the need to show their value as business assets, particularly 

during refinancing or sale of a ski area; the significant value ski area water rights may have, 

which is commensurate with the significant investment in privately owned improvements at ski 

areas; and the land ownership patterns at ski areas, which often involve a mix ofNFS and private 

lands both inside and outside the ski area permit boundary, making it difficult to implement a 

policy of sole federal ownership for ski area water rights. Much of the development at ski areas 

is located on private lands at the base of the mountains. As a result, water diverted and used on 

NFS lands in the ski area permit boundary is also sometimes used on private land, either inside 

or outside the permit boundary. 

2 
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The bill's provisions regarding acquisition and transfer of water rights are inappropriate or 

unnecessary for use and occupancy ofNFS lands. In particular, the provisions in S. 982 

regarding acquisition and transfer of water rights are not needed for ski areas, as the Forest 

Service's new ski area water clause will provide for water rights to be acquired and retained in 

the name of the ski area and will not require them to be in the name of or transferred to the 

United States. 

Section 3(3) prohibits federal land management agencies from asserting jurisdiction to regulate 

groundwater withdrawals or impacts on groundwater resources unless exercise of that 

jurisdiction is consistent with and no more stringent than applicable state law and policies. This 

provision would allow water users to challenge the Forest Service's exercise of jurisdiction to 

manage uses ofNFS lands to minimize adverse impacts on resources on and off those lands, 

including the potential for contamination resulting from those uses. Section 3(3) would limit the 

ability of the Forest Service to balance the multiple uses ofNFS lands in accordance with the 

Multiple Use-Sustained Yield Act. 

Section 3(4) precludes infringing on the rights and obligations of a state in evaluating, allocating, 

and adjudicating the waters of the state originating on or under or flowing from land owned or 

managed by the United States. States' authority to allocate and adjudicate water rights in prior 

appropriation doctrine states, where water rights are not appurtenant to the land, is already 

established as a matter oflaw. Under 43 U.S.C. § 666, the United States has waived its 

sovereign immunity with regard to state water rights proceedings and is subject to state water 

rights laws. To that extent, federal agencies like the Forest Service are already precluded from 

infringing on the rights of states to allocate water. However, the courts have held that the 

conditioning of access to water under land use authorizations by federal land management 

agencies to protect resources on federal lands does not infringe on the rights of the states to 

allocate water. This provision of the bill could be construed to override those rulings and, 

consistent with other provisions of the bill, to prohibit the Forest Service from including 

conditions in land use authorizations to protect resources and public and health and safety on 

NFS lands. 

Section 4(a)(l) requires the Secretaries to recognize the longstanding authority of the states 

relating to evaluation, protection, allocation, regulation, and adjudication of groundwater by any 

means. Section 4(a)(2) requires coordination with the states in adoption and implementation of 

any Forest Service rules, policies, directives, and plans to ensure they impose no greater 

restrictions or requirements than state groundwater laws and programs. Like Section 3(4), this 

provision would make it more difficult for the Forest Service to condition land use authorizations 

that involve access to or use of groundwater to balance the multiple uses of federal lands and 

protect resources on those lands. 

Section 4(b) prohibits the Forest Service from taking any action that adversely affects: 

• Any water rights granted by a state. 

• The authority of a state to adjudicate water rights. 

• State definitions for "beneficial use," "priority of water rights," and "terms of use." 

• Terms and conditions of groundwater withdrawal, guidance and reporting procedures, 

and conservation and source protection measures established by a state. 

• The use of groundwater in accordance with state law. 

3 
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Insert offset folio 71 here 95284.071

• Any other rights and obligations of a state established under state law. 

Collectively, these prohibitions would make it much more difficult for the Forest Service to 

appropriately manage NFS lands, safeguard other users of those lands, and protect the natural 

resources on those lands. The adverse effect of these prohibitions is amplified by their 

ambiguity. In particular, it is unclear how adverse effects are to be determined for many of the 

listed items. Moreover, the last prohibition is overbroad in that it applies to any state rights and 

obligations, not just state rights and obligations regarding water. 

The ambiguity of the bill is exacerbated still further by Section 5, which appears to deny the 

plain meaning of Sections 3 and 4 of the bill. Section 5(a) provides that nothing in the bill limits 

or expands any existing authority of federal land management agencies to condition any land use 

authorization. However, this provision conflicts with Section 3 of the bill, which would 

effectively eliminate the Forest Service's authority to impose conditions on the exercise of water 

rights in its land use authorizations. Section 5(a) also conflicts with the provisions in Section 4 

of the bill that limit the ability of the Forest Service to impose conditions on the use of 

groundwater in land use authorizations. Under existing law, the Forest Service has the 

responsibility to condition land use authorizations for water infrastructure to meet broad 

mandates that include minimizing impacts on fish and wildlife and protecting federal property, 

other lawful users, and public health and safety, yet this bill would significantly limit the 

agency's ability to carry out those responsibilities. 

Section 5( c) provides that nothing in the bill affects implementation of the Endangered Species 

Act (ESA). This provision could conflict with other terms of the bill that limit the ability of the 

agency to include conditions in land use authorizations regarding water use. Section 3(1) 

arguably would preclude any condition on the exercise of water rights, including those that are 

deemed necessary to protect threatened and endangered species. Courts would normally as a 

matter of statutory interpretation attempt to give meaning to Section 3(1 ), Section 5( c), and the 

ESA. If the agency argued that Section 5(c) allows conditions or limits on water rights to the 

extent necessary to protect listed species, the Forest Service would be subject to legal challenge 

under Section 3(1) whenever the agency attempted to impose those conditions or limits on the 

grounds they were necessary to comply with the ESA. 

Section 5( d) provides that nothing in the bill limits or expands existing or claimed reserved water 

rights of the federal government on lands administered by the Secretary of the Interior or 

Agriculture. This provision also would give rise to potential litigation under Section 3(1) if the 

Forest Service attempted to condition a federal reserved water right. 

We appreciate the opportunity to present USDA views on S. 982. As detailed above, the bill 

would have a significant adverse impact on our longstanding authority to manage federal lands. 

This concludes the USDA statement for the record. 

4 
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4 

5 

6 

7 

8 

9 

10 

11 

12 

STATEMENT FOR THE RECORD 

U.S. DEPARTMENT OF AGRICULTURE 

FOREST SERVICE 

BEFORE THE 

UNITED STATES SENATE 

COMMITTEE on ENERGY AND NATURAL RESOURCES 

SUBCOMMJTTE ON WATER AND POWER 

Concerning S.1533, the Water Supply Permitting and Coordination Act 

June 18, 2015 

13 Thank you for the opportunity for the U.S. Department of Agriculture (USDA), Forest Service to 

14 provide views on S. 1533, "to authorize the Secretary of the Interior to coordinate Federal and 

15 State permitting processes related to the construction of new surface water storage projects on 

16 lands under the jurisdiction of the Secretary of the lnterior and the Secretary of Agriculture and 

17 to designate the Bureau of Reclamation as the lead agency for permit processing, and for other 

18 purposes." USDA does not support this bill. 

19 Section 3(a) establishes the Bureau of Reclamation as the "lead agency for purposes of 

20 coordinating all reviews, analyses, opinions, statements, permits, licenses, or other approvals of 

21 decisions required under Federal law to construct qualifying projects." The Forest Service would 

22 become a "cooperating agency." Deadlines and timelines are mandated in Section 4 for 

23 notifying and consulting with cooperating agencies, completing environmental reviews (one year 

24 for an environmental assessment, and 1 year and 30 days for a draft environmental impact 

25 statement), and determining projects schedules. While nothing in the bill would facilitate more 

26 regular federal funding for any of these activities, the bill does allow for contributed funds from 

27 non-federal agencies. 

28 The Department has serious concerns about this bill and cannot support it. Concerns include, but 

29 are not limited to mandated timeframes, creation of authority for Bureau of Reclamation which 

30 contradicts established principles of the Forest Service, NEPA inconsistencies, expanded records 

31 management requirements, and unresolved economic feasibility considerations. 

32 We understand that water resource planning is a priority, and we look forward to working with 

33 the Committee on S.l533. 

1 
90 

STATEMENT OF STEVE DAINES, U.S. SENATOR FROM 

MONTANA 

Senator DAINES. Thank you, Ranking Member Hirono. 

Let me start off by first thanking Chairman Barrasso for holding 

this hearing on this very important topic ensuring that all Americans have access to clean drinking water and water infrastructure. 

I would also like to recognize Mr. Meissner for appearing today 

before the Committee. It is always good to have another Montanan 

back here in D.C. Welcome, Mr. Meissner. 

Mr. MEISSNER. Thank you. 

Senator DAINES. You know, some of the earliest water projects 

built by the Bureau of Reclamation were built in Montana. These 

projects provide a critical infrastructure for Montana homesteaders 

and were a vital importance to the long term growth of our state. 

Water is a precious resource in Montana, and there are still 

rural communities that face barriers to access and are in dire need 

of clean drinking water. Water is a basic need of life. 

In Montana we depend on a steady supply to irrigate our crops, 

to water our livestock and to provide energy through hydropower. 

In fact, if you look at this chart behind me, this picture, that is not 

in some Third World country. 

[The information referred to follows:] 

91 


Insert offset folio 73 here 95284.073
92 

That is Roundup, Montana, and the quality of water that we see 

in a community that has about 2,000 people there in Roundup. 

So the struggle for water continues to create health problems in 

Indian country and nearby communities in addition to making economic development that much more difficult. For far too long perpetual delays and maintenance backlogs have caused inefficient 

water delivery and damaged infrastructure on Montana’s reservations. Every year we wait to delay funding of these essential 

projects. 

The more expensive the construction becomes, operation maintenance costs become more expensive, and year after year these 

projects continue to fall by the wayside without any action to address and prioritize our limited resources for critical infrastructure 

like rural water project. These short-term fixes must stop. It is 

time that the Federal Government fulfills its obligations and promises to Montana’s rural communities and provides needed funding 

to ensure our rural water projects are completed. 

I would also like to bring the Committee’s attention to two bills 

on the agenda today that I introduced with my colleague from Montana, Senator Jon Tester, S. 1365, the Authorized Rural Water 

Project Completion Act, and S. 1552, the Clean Water for Rural 

Communities Act. 

The first bill, S. 1365, would enable the completion of construction of congressionally authorized rural water projects as expeditiously as possible. It would ensure adequate funding is directed to 

projects in rural communities in North Dakota, South Dakota, 

Montana, New Mexico, Minnesota and Iowa. It would also provide 

much needed access to water supplies. 

The second bill, Senate bill 1552, authorizes two Bureau of Reclamation rural water projects critical to Montana, the DryRedwater Rural Water System and the Musselshell-Judith Rural 

Water System. This bill would collectively facilitate water treatment and deliver to 22,500 Montanans and North Dakotans. Senator Tester is also a co-sponsor. 

It is important that our rural communities have access to clean 

and drinkable water, and I urge my colleagues to join me in supporting these critical measures. 

I would like to start by asking a question. Mr. Meissner, in your 

testimony you discuss the challenges you face in working toward 

approval of the Dry-Redwater Authority water project which the 

BOR still has not granted, and I think everyone here can agree 

that you have had to go through much more trouble than you 

should have. Could you elaborate a bit further on the benefits to 

having this project approved as soon as possible? 

Mr. MEISSNER. Benefits? Are you talking about if we started construction today? 

Senator DAINES. Yes, what are the benefits of the project by having this approved as soon as possible? 

Mr. MEISSNER. We have a long range goal to bring water out of 

Fort Peck into those counties that I suggested. Without the ability 

of having BOR as a Federal agency working side by side in partnership with us we are at odds. There’s things that they can do. 

There’s things we can’t do. 

93 

Up to this time, it seems like bureaucracy is the issue. They have 

things that they have to have in order to move, and we have continually tried to meet those goals. It’s like an ongoing target. We 

meet feasibility, and the target is changed. We’ve been at this like 

ten years, and the BOR has done everything, bureaucratically, to 

assist us, but the target keeps moving. 

But without the ability of you to have the bills and have money 

in hand we can’t go forward with our construction. They can’t go 

forward with their planning. 

I think financially we’ve proven in Sidney with the construction 

that we have done with assistance from Richland County and the 

city of Sidney, we can do this. But we need Federal assistance to 

complete the planning, and we need dollars. 

Senator DAINES. Thank you, Mr. Meissner. 

Ms. Thompson, do you believe that spending several years of 

staff time and resources into developing these feasibility studies for 

the Dry-Redwater Rural Water System and the Musselshell-Judith 

Rural Water System is a worthwhile use of time? 

Ms. THOMPSON. Senator Daines, thank you for the question. 

We, at Reclamation, believe that in order to move forward on 

rural water projects we need to meet our feasibility study requirements, and we have worked in concert with the Dry-Redwater, 

Musselshell folks to get to the point where they have a feasibility 

study that can be approved so we can move forward. We do believe 

that that sometimes takes time, but we are committed to working 

with them. 

Senator DAINES. So considering all the time and the money that 

has already been invested by BOR staff on these projects, isn’t it 

about time Congress authorized them? 

Ms. THOMPSON. Senator, if Congress authorizes the program and 

provides appropriations we are happy to assist with that, but until 

we have a feasibility study and appropriations we cannot move forward. 

Senator DAINES. Can I get your commitment to work with us and 

our Committee on creative ways we can expedite construction on 

these important projects? 

Ms. THOMPSON. We would be happy to work with you and project 

sponsors on this if we have an authorization in place and the funding to go forward or to explore options for creative funding. We’re 

happy to look into that. 

Senator DAINES. Thanks so much. 

Mr. Chairman? 

Senator BARRASSO. [presiding] Thank you very much, Senator 

Daines. 

Senator Hirono? 

Senator HIRONO. Thank you, Mr. Chairman. 

This is a question for Mr. Schempp. S. 982, the Water Rights 

Protection Act, contains several broad provisions which prohibit the 

Secretary of the Interior and Secretary of Agriculture from taking 

any action to limit or adversely affect a water right in a land use 

agreement. At the same time the bill includes several provisions 

stating that the bill does not affect a number of existing laws. It 

seems to me that these savings provisions are in conflict with the 

other parts of the bill. 

94 

You touched on these issues in your testimony noting that the 

bill would create ambiguity that could result in delays, confusion 

and litigation in its implementation. Can you help us better understand the potential legal uncertainties and challenges that this bill 

presents? 

Mr. SCHEMPP. Ranking Member Hirono, I will do my best to do 

so. 

I would particularly identify subsection 5–1 and subsection 3–1 

as being potentially in conflict, particularly with regard to the effects of existing authority and the savings clauses. I think there is 

a significant question as to what legally recognized will consist of. 

And if this bill is passed that there will be a great deal of discussion, potentially litigation, over whether or not what has basically, 

whether the savings clause winds up trumping Subsection 3–1 or 

to what extent Subsection 3–1 is avoided via the savings clause. 

Senator HIRONO. Thank you. 

For Ms. Thompson, your testimony on S. 982 states that the Department opposes this bill. I understand that the Administration 

issued a formal SAP opposing the House version of this bill last 

year and that about 60 outside groups oppose the bill. In your testimony you state that the bill would potentially negatively impact 

the Department’s ability to manage water, protect public lands and 

the environment and Federal land and tribal water rights. Can you 

please expand on these potential impacts and be concise? Thank 

you. 

Ms. THOMPSON. Sure. 

Senator Hirono, the impacts we expect could occur as a result of 

this legislative language would involve impacting our ability to 

carry out mandates for natural resource protection as mandated by 

Congress. I believe in the testimony we referenced potential impacts to the Bureau of Land Management, to the National Park 

Service with respect to water rights where they have obligations 

pursuant to legislation and statute. 

We can provide more detail for the record, but at this point some 

of these impacts are—haven’t been explored all the way simply because this is very complicated legislation. 

Senator HIRONO. Thank you. 

I can see that just in reading the bill I think that it does create, 

a lot of areas of uncertainty that would need to be clarified if we 

are going to go forward. 

For you, again, Ms. Thompson. As you probably know many 

members of the Hawaii delegation, both past and present, have initiated efforts to make Hawaii eligible for resources provided by the 

Bureau of Reclamation. While we, as well as Alaska, are located in 

the Western region of the U.S. and face many similar water challenges as our friends in the 17 Western states that you cover, we 

have not been afforded the same opportunities to participate in 

these programs. As water resources become constrained and climate patterns shift, states will, no doubt, become more proactive 

in addressing water needs. So as it stands Hawaii is not eligible 

to take advantage of funding for drought resiliency projects under 

the SECURE Water Act and many other water projects and conservation programs. 

95 

Wouldn’t it be a better use of Federal dollars to support drought 

resiliency projects in our states proactively instead of waiting for 

emergency assistance? Basically I really think that Hawaii and 

Alaska need to be part of what the Bureau covers. 

Ms. THOMPSON. Sure, Senator, recently the Bureau of Reclamation has revisited its drought response program and we issued 

funding opportunity announcements for a new drought program 

that would allow the State of Hawaii or Alaska to apply for contingency planning assistance. That funding opportunity announcement closes on June 25th and we will welcome the state to apply 

for that, to benefit from the assistance that they could provide. 

Senator HIRONO. Does that include other programs that your Bureau has where Hawaii and Alaska would not apply right now? So 

are you saying that administratively you can affect this change so 

that our two states can participate? 

Ms. THOMPSON. Actually this authority is through the Drought 

Relief Act of 1992, and Hawaii has been eligible through that statute for drought contingency planning assistance. But as you said, 

we are not able to afford the resiliency assistance that you have 

spoken of. 

Senator HIRONO. Thank you for that clarification. So we would 

require statutory change which I hope we can get your support on. 

Thank you, Mr. Chairman. 

Senator BARRASSO. Thank you very much. 

Senator Flake? 

Senator FLAKE. Thank you, Mr. Chairman. 

I am glad, once again, to co-sponsor the Water Rights Protection 

Act. I wish this bill was not necessary, but two recent proposals by 

the Forest Service have created the need for the bill and to stand 

up for private property. 

It may be lost on some not familiar with the West, but water 

rights, like land and vehicles and other assets used in business are 

private property and they are extremely valuable. Requiring a business to turn over their water rights to the Federal Government as 

a condition of getting a permit is about like asking the oil man to 

sign over his drilling rig to the BLM or making a rancher sign over 

the title to his truck just to use Forest Service land. It is asking 

a bit much. 

What this bill does say is that the Federal agencies can issue 

permits, they can condition these permits and they can enforce environmental laws. They just cannot take people’s private land or 

private property, I should say, as they do this. So I think this is 

an important piece of legislation, and I am glad to support it. 

I have just a couple of questions on some of the bills before us. 

Ms. Thompson, there are two projects that would be authorized 

as part of S. 1552. Can you tell whether these projects have completed all the necessary reviews that are required of the Rural 

Water Supply Act of 2006? 

Ms. THOMPSON. Senator Flake, those two projects are the DryRedwater and Musselshell-Judith projects, and neither has a complete feasibility study before the Bureau of Reclamation although 

it’s my understanding that the Musselshell-Judith has completed 

work in the region and that particular feasibility study is with our 

Denver Office who completes the programmatic review. 

96 

Senator FLAKE. Okay. So Reclamation has not developed a recommendation on these projects that have not completed the review? 

Ms. THOMPSON. We have been in consultation with the parties 

who are putting forward the feasibility studies. 

Senator FLAKE. But would going forward with them, kind of, circumvent some of the process that we have compared to those who 

have gone through all the reviews? 

Ms. THOMPSON. I’m sorry. Could you repeat the question? 

Senator FLAKE. Putting a program like this or authorizing funding for it when Reclamation hasn’t yet issued a recommendation is, 

kind of, circumventing the process as we have it or not? 

Ms. THOMPSON. Indeed. Indeed. 

We have six projects already in construction in the West for 

which there is a deficit of, I’m sorry, of backlog of about $1.4 billion, so adding two more authorizations to that, of course, we would 

have to find additional funding for those. 

Senator FLAKE. Good. 

Mr. Meissner, in a June hearing on drought Deputy Secretary 

Connor discussed a number of water projects and provided a back 

of an envelope number on the cost per acre foot. What is the approximate cost per acre foot that the water for these two projects 

that would be authorized under S. 1552? 

Ms. THOMPSON. Senator, I’m afraid I’m not able to provide information along those lines at this time. I’m not certain that we have 

calculated that expense, especially since those feasibility studies 

haven’t been completed. 

Senator FLAKE. Mr. Meissner, have you? Do you have any back 

of the envelope, kind of, cost per acre foot on these projects? 

Mr. MEISSNER. Are you asking? 

Senator FLAKE. Yes. 

Mr. MEISSNER. No, I can’t answer that as well. However, the 

question you asked about the feasibility. We entered into a memorandum of understanding with BOR so that we could come into an 

agreement with them to proceed to this point. Without the bills and 

funding BOR cannot do any more administrative planning for us. 

I don’t know if that answers your question, but no, we have not 

yet. 

Senator FLAKE. Okay. 

Mr. Yates, ranching has long been an important part of Arizona’s 

economy. I grew up on a cattle ranch myself. Can you briefly talk 

about the amount of grazing on public lands and the importance 

of water rights for these grazing operations to continue? 

Mr. YATES. Well certainly, and ranching is an important part of 

the American West and certainly provides jobs and management of 

Federal Western range lands and certainly including the State of 

Arizona. 

What has been troubling when you talk about the long standing 

practice of Federal land permitting and ranching across the American West is that, you know, public land ranchers have fought Federal land management agencies and environmental pressures 

through litigation on decreases in opportunities for continued Federal land grazing. 

97 

In 1949, the BLM and the Forest Service managed 5.4 million 

AUMs across all western rangelands. From 1949 to 2012 the government has reduced livestock grazing by just over three million 

AUMs or a total reduction in excess of 70 percent. 

So again, as we look to continue to provide a tool to Federal land 

management agencies these kinds of pressures that continued efforts to reduce the ability for Federal land ranchers to maintain 

western rangelands and landscapes is certainly troubling. 

When we look at the use and the application of the water clause 

as been used by the Forest Service the potential impacts on, not 

only private property rights, but the ability for a rancher to continue operating and certainly operating with a degree of certainty 

that he’ll be able to come back not only to have his grazing permit 

renewed but to be able to manage that resource is certainly concerning. 

So again, we appreciate your support of S. 982 and certainly 

hope for its passage. 

Senator FLAKE. Thank you, Mr. Chairman. 

Senator BARRASSO. Thank you very much, Senator Flake. 

Senator Franken? 

Senator FRANKEN. Thank you, Mr. Chairman for holding this 

hearing on rural water bills. 

I am proud to co-sponsor the Authorized Rural Water Projects 

Completion Act, S. 1365, introduced by Senators Tester and 

Daines. I support this bill because rural communities in Southwestern Minnesota have critical water needs. 

In 2000, Congress authorized the Lewis and Clark Regional 

Water System. The State of Minnesota and the local communities 

involved have prepaid their full share, $154 million, to bring this 

project to completion, but the funding at the Federal level has been 

woefully inadequate. And so far just until last month no water at 

all to Minnesota, finally we got Rock County Rural Water District 

got connected. But there are other communities there that have 

paid their full share plus, $17 million on top of that. These are 

small towns, and so far no water at all, not one drop. 

The Authorized Rural Water Projects Completion Act would provide dedicated annual funding for Lewis and Clark and projects 

like it. Today’s hearing is a step forward for getting that bill 

passed, I hope. 

As I said, lack of Federal funding has delayed this project and 

these delays have been costing these communities money. Meanwhile the cost of construction increases, as Mr. Willardson noted in 

his testimony, due to inflation and rising costs of material and 

labor. And that is just the immediate costs, but there are also costs 

of the economics of these communities. 

You refer to Lewis and Clark in your testimony, Mr. Willardson. 

Can you talk more about these costs for local communities when 

projects like Lewis and Clark are delayed? 

Mr. WILLARDSON. Thank you for the question, Senator Franken. 

While I do not have specific economic information, obviously 

water is critical. It’s part of the infrastructure of any of the economy of a rural community. So business, in fact, more and more 

businesses are considering or including in their bond evaluations 

the access to water and the security of that water. So anytime that 

98 

you’re restricting a community’s water supply you’re going to also 

limit economic growth. 

Senator FRANKEN. Thank you. 

Ms. Thompson, I want to clarify a few things about the Reclamation Fund. This year the Bureau of Reclamation requested about 

$856 million in total appropriations but left some $37 million of 

that for rural water projects. About how much does the Reclamation fund collect each year from receipts on public lands? 

Ms. THOMPSON. Senator, I am not familiar with the exact number, but I’d be happy to get back to you for the record on that. 

[The information referred to was not provided as of the time of 

printing.] 

Senator FRANKEN. Mr. Stern, do you have an answer to that? 

Mr. STERN. Senator Franken, are you asking receipts from natural resource royalties on public lands? 

Senator FRANKEN. Yes. 

Mr. STERN. I believe the total last year was around $1.7 billion. 

Senator FRANKEN. Okay, there is a billion, about, each year that 

goes into the Reclamation Fund but it is not appropriated to the 

Bureau of Reclamation, my math, maybe $900 million. How much 

of an unobligated balance does that leave in the Reclamation 

Fund? I will go to you, Mr. Stern. 

Mr. STERN. Senator Franken, I have the number here, if you give 

me one second. 

Senator FRANKEN. Sure. 

Mr. WILLARDSON. Senator, if you would like I can tell you. 

Mr. STERN. Sorry. 

Senator FRANKEN. Sure. 

Mr. STERN. As far as the unobligated balance goes it would be 

around, I think, there was a balance of $13.2 billion in the Reclamation Fund as of the end of FY2014. 

Senator FRANKEN. Is that about right to you, Mr. Willardson? 

Mr. WILLARDSON. Yes, and the Administration’s estimated balance at the end of this fiscal year will be over $15 billion. 

Senator FRANKEN. Okay. So here is what is troubling to me. The 

Bureau of Reclamation requested less than $3 million for Lewis 

and Clark this year, less than $3 million. That is less than these 

individual communities have been paying after they fully prepaid 

what they were supposed to, what their share was, after the state 

had done it. That is just not fair to these communities. 

The Minnesota State legislature, we finally got this last piece 

connected because the Minnesota State legislature approved a $22 

million, Federal funding advance for or it allocated $22 million. 

Does this seem fair to you, Mr. Willardson? 

Mr. WILLARDSON. Well, many of these communities have been 

waiting a long time to see these commitments fulfilled. As you’re 

aware some of these were in compensation for the Missouri PickSloan program, so some have been waiting 70 years to see those 

promises fulfilled. 

And no, it is a little hard to explain that with an excess of $1 

billion a year coming in that’s not being spent from the Reclamation Fund that we can’t fund completion of these projects. 

99 

Senator FRANKEN. My thoughts exactly. I am sorry to have gone 

over time, but I believe Mr. Stern took four minutes to find that 

data. [Laughter.] 

Senator BARRASSO. But you did a great job pronouncing his name 

today compared to the hearing yesterday we had on Indian Affairs. 

So this was—— 

Senator FRANKEN. Well, that was Mr. Desiderio. 

Senator BARRASSO. Beautifully spoken. 

Senator FRANKEN. Desiderio. [Laughter.] 

Senator FRANKEN. Thanks a lot for bringing that up, by the way. 

[Laughter.] 

Senator FRANKEN. Stern is easy. 

Senator BARRASSO. It is. It is good. 

Senator FRANKEN. Love my background too, pronounced. 

Senator BARRASSO. Thank you, Senator Franken. 

Ms. Thompson, in your written testimony you talk about the Doctrine of Federal Reserve Water Rights. You said, ‘‘Originally expressed as the power to reserve water associated with an Indian 

reservation.’’ You also said, ‘‘Over time Supreme Court and other 

courts have revisited and built on the Doctrine and holding that reserved rights applied to all Federal lands.’’ So my question is does 

all Federal land come with reserved Federal water rights and do 

these rights trump state water rights including privately held 

water? 

Mr. THOMPSON. Senator, Reclamation follows the Reclamation 

Act and Section 8 of the 1902 Act says that state waters have primacy. State rights have primacy over water rights. So we adhere 

to that particular statutory mandate. 

Senator BARRASSO. And how about the state control of groundwater? Same? 

Ms. THOMPSON. For the most part, I believe that’s correct. 

Senator BARRASSO. Folks in my state and across the West are obviously in serious need of more water, ranchers, farmers and rural 

communities trying to make a living. They depend on water to 

grow crops like to grow alfalfa or raise cattle. Many have junior 

water rights and worry about getting the water they need to keep 

their livelihoods. They worry about drought. They are also worried 

about losing their water rights to Federal agencies as a condition 

of renewing their grazing permits. 

So they are worried about the EPA and the Army Corps expanding Federal jurisdiction over state waters, the waters of the U.S. 

and the WOTUS rule that is out there. All these things are happening at once and feels to be threatening of Western and rural 

economies. We, on this Committee, are offering some solutions, 

some bills before us today to address these problems. We do not 

want to interfere with the Bureau of Reclamation operations, but 

we do have constituents that need to be protected. 

So my question is will you work with us to improve and to move 

these bills to protect water rights, to expand water storage and to 

provide more water to rural and Western communities? 

Ms. THOMPSON. Senator, we’d be happy to work with you on 

these matters. 

Senator BARRASSO. Thank you. 

100 

Mr. Yates, in your written testimony you state that with regard 

to the Forest Service requesting water rights in exchange for renewing permits, you write that these kinds of actions by the Federal Government violate Federal and State law and will ultimately 

upset the water allocation systems and private property rights on 

which Western economies have been built. Can you explain how 

the water allocation system and the farmers and ranchers who hold 

private property water rights have been negatively impacted by 

these actions? 

Mr. YATES. Thank you, Senator, for the question. 

Certainly it’s been noted that not only agriculture, but ski areas 

have had a vested interest in this issue. But frankly all industries 

and public land users who require a special use permit should be 

equally concerned about these types of water grabs. 

Obviously for any farmer or rancher good soil, good sunlight and 

most certainly water is a very valuable resource and asset to continue their day to day operations to continue to provide food, feed 

and fiber for the country. 

But I think it’s important to know as we look at this larger issue 

we have great concerns over the takings issues that the Forest 

Service and other land management agencies have begun to pursue. Again, obviously, the concerns over Fifth Amendment protections are critically important. 

I think it’s also important to go back a little bit, and when you 

look historically through statute and case law Congress has granted management and authority of waters to the states going back 

to the Ditch Act in 1866 through the McCarran amendment in 

1952. The Federal Government has acquiesced to the states on all 

state water matters. Certainly this legislation, your legislation, 

would not change the status quo, but it would ensure that any future actions by these Federal agencies to go around this long standing relationship between the Federal Government and the State 

Government would be maintained. 

Senator BARRASSO. And the final question, Mr. Yates. As you 

stated in your written testimony the Forest Service has temporarily 

withdrawn their groundwater directive. You go on to say the Forest 

Service Deputy Chief Weldon testified that the Service will publish 

a new draft after public comment. You go further to state that the 

Forest Service, ‘‘Does not currently own or manage groundwater 

nor does it have the authority to approve or disapprove uses of 

water that are granted under state law.’’ 

Since the Forest Service does not even have the authority to regulate ground water, is it possible for the agency to craft an acceptable directive or should it just be permanently withdrawn? 

Mr. YATES. Well, certainly I appreciate the question. We were 

certainly thrilled following our criticism of the Groundwater Rule 

that the agency did decide to take a time out and withdraw the 

rule. You know, specifically from the proposed water clause to the 

expansion of authority through the establishment of an 

interconnectivity clause. And those of you that have followed the 

issue of the WOTUS rule know that there’s similarities in definitions when we’re talking about that interconnectivity clause to the 

frankly, their disregard for the historic Federal deference to states 

and water authorities. 

101 

I see no reason for the agency, frankly, to pursue a second or a 

third groundwater directive. I’d just assume have them leave it 

alone. They got caught with their hand in the cookie jar and they 

should probably stop there. 

Senator BARRASSO. Thank you, Mr. Yates. 

I thank everyone who has come to testify today in this important 

hearing. Senator Hirono has a second round of questions which she 

will do, and then she will adjourn the meeting. Thank you for being 

here today. 

The record will stay open and there may be some written questions as well from both members on each side. 

Thank you. 

Senator BARRASSO. Thank you, Senator Hirono. 

Senator HIRONO. [presiding] Thank you. 

I would like to just do a very short second round. I have a question involving the Indian Water Rights Settlements issue, and that 

is addressed in S. 1365. 

Mr. Willardson, thank you for being here with us today. In your 

testimony you state that the Western States Water Council supports the policies advanced by S. 1365, and I am particularly interested in the Western States’ support for advancing Indian water 

right settlements. 

I think you have probably noted that Ms. Thompson’s testimony 

states that the current, basically piecemeal, approach to funding 

settlements which competes with other tribal and water priorities 

is the appropriate approach, but clearly your organization, your position is that you support this more permanent approach. Could 

you expand on that and help us understand why the Council supports settlements and a strong fiscal commitment to them? 

Mr. WILLARDSON. Yes, thank you, Senator. 

We have worked for 30 years with the Native American Rights 

Fund to resolve negotiated settlements of these claims. These 

claims continue to be a cloud over other private property rights, 

and until they can be settled and settled permanently it is a challenge to economic development on those both Indian and non-Indian lands that are adjacent. 

Finding a permanent funding source has been a challenge as well 

as finding offsets for some of the direct funding in recent settlements that have passed Congress. We have been supportive of legislation that set aside money for the Reclamation Fund in 2009 for 

a settlement fund which has yet to be funded but will in the future. 

This is another opportunity to provide a small amount of money 

which will go a long ways to help with those settlement negotiations and implementation of those to the extent that it involves 

projects that are built by the Bureau of Reclamation, and that’s an 

important point. 

Now this is money just for funding the infrastructure as part of 

those settlements and is something that we continue to strongly 

support and look for these permanent sources of funding given as 

you noted that there are many outstanding claims yet to be resolved. 

Thank you. 

Senator HIRONO. Thank you very much. 

102 

I recognize that there is a very strong economic argument to be 

made for something, a much more permanent approach, not to 

mention that we certainly have a Federal responsibility to the 

American Indian tribes to live up to our obligations to them. 

I would like to echo the Chairman’s thanks to all of you for participating today and being witnesses. 

Some members of the Committee may submit additional questions in writing and if so, we will ask you to submit answers for 

the record, so I hope that that will be alright with you all. 

We will keep the hearing record open for two weeks to receive 

any additional comments. 

This Subcommittee hearing is adjourned. 

[Whereupon, at 3:20 p.m., the hearing was adjourned.] 

(103) 

APPENDIX MATERIAL SUBMITTED 

104 


Insert offset folio 156 here 95284.156

U.S. Senate Committee on Energy and Natural Resources 

Subcommittee on Water and Power 

June 18, 2015 Hearing regarding Pending Legislation 

Questions for the Record Submitted to Ms. Dionne ThompSon 

Questions from Senator Jeff Flake 

Question 1: In your written testimony you state that "8.982 would restrict the Secret.'lry of the 

Interior and Secretary of Agriculture from acquiring water rights under State law." Please specify 

which provisions of the bill the Department views as limiting the acquisitions of water rights 

under State law by Federal agencies. 

RESPONSE: Section 4(b) of this bill creates ambiguity over the proper roles of the states and 

Reclamation under Section 8 of the Reclamation Act. For example, state water rights law 

provides water right holders (including Reclamation) the ability to take actions to protect and 

defend their rights so as to assure the ability of agencies to execute their mission. The language 

of Section 4(b) could be broadly interpreted as preventing Reclamation from exercising these 

provisions, in conformity with state law, that it would otherwise be allowed to do under Section 

8 of the Reclamation Act. In addition, Section 4(b) could prevent Reclamation from making 

legitimate objections to proposed changes in State law and regulatory requirements that would 

adversely impact its water rights and impede Reclamation's ability to carry out its mission. 

Question 2: In your written testimony on S.982 you point to "numerous examples where 

Reclamation has contracts with water users that include the transfer or relinquishment of preexisting private water rights ... " Please provide a list of the contracts that involve a transter or 

relinquishment of water rights in exchange for a license or contract at a Reclamation fucility. 

Please include in this list the date when the transfer or relinquishment occurred. 

RESPONSE: Reclamation's ability to successfully construct and operate new or expanded 

Federal water projects often requires the establishment of agreements with existing private water 

rights holders on afJected river systems to ensure the viability ofthe proposed project 

operations. Those agreements typically entail some fo1m of commitment existing water rights 

holders to not fully exercise those rights under specified conditions, in exchange for a Federal 

commitment to provide reliable supplies of Project water. In some cases those agreements 

involve an actual transfer or relinquishment of private water rights. Examples include: 

• Emery County Project, Utah. In agreements dated Jw1e 27, 1962 (with HuntingtonCleveland Irrigation Company, Contract #14-06-400-2523) and Jtme 25, 1962 (with 

Cottonwood Creek Consolidated Irrigation Company, Contract #14-06-400-2522), these 

entities contracted with the United States to "exchange and adjust'' water rights in order 

for the Emery County Project to proceed. In these contracts, the contractor "quitclaims to 

the United States its right to water in excess of the amount that it will call for as provided 
105 


Insert offset folio 157 here 95284.157

above ... and further agrees to execute any appropriate conveyance or assignment to the 

United States of its water rights representing such excess water." 

• Vernal Unit, Central Utah Project. In an agreement dated September 20, 1994 (with 

"Individual Water Users Uiilizing Dodds Ditch", Contract #95-07-40-Rl850), the water 

users agreed to accept certain guarantees of water deliveries from the United States in 

exchange for agreeing not to fully exercise of their 1897-decreed water right. 

• Clear Creek (Sac1·amento River tributary), California. In consideration of the 

removal of Saeltzer Dam in 2000, Reclamation agreed (contract #00-WC-20-1735, 

August 18, 2000) to provide a substitute supply of water to the McConnell Foundation, 

holder of the water rights that can no longer be exercised due to the dam removaL As 

part of this arrangement, Townsend Flat Water Ditch Company provided a quitclaim 

deed to the United States fur "all its right, title and interest in and to" a pre-1914 

appropriative right for diverting up to 55 cubic feet per second from Clear Creek, in 

excess of 6,000 acre-feet. 

• Rio Grande Project New Mexicoffexas. In order to facilitate the construction and 

operation of the Rio Grande Project (including Caballo and Elephant Butte Reservoirs}, 

the United States acquired, in a contract dated June 27, !906, water rights from the 

Elephant Butte Water Users Association and the El Paso Valley Water Users Association 

in exchange for federal payments and the opportunity for those districts to utilize the 

planned project irrigation works and repay their allocated share of project construction 

costs over time. 

• Fryingpan-Arkansas Project, Colorado. In a contract with the United States (#14-06-

700-6576), the Highline Canal Company agreed to transfer to the Board of Water Works 

of Pueblo, Colorado, a one-half interest in the Company's decreed Western Slope water 

rights, in exchange receiving various benefits fi·om the United States including an 

entitlement to store 1,000 acre-feet of Company Water in Project facilities. Separately, 

the United States contracted with the Board of Water Works of Pueblo to provide for the 

transportation of the transferred water rights through the Fryingpan-Arkansas Project 

transmountain diversion works. 

• Central Valley Project, California. Under Contract ILR-1126, dated May 24, 1939, the 

Madera Irrigation District conveyed its water rights and land to the United States in 

exchange for payments from the U.S., access to a supplemental water supply from Friant 

Dam (Central Valley Project), and other benefits. 

• Central Valley Project, California. More generally in 1939, in order to construct and 

operate the CVP, an historic accord was struck between the United States and a group of 

farmers and their water supply entities who held priority water rights to the waters of the 

San Joaquin River. That accord allowed the United States to use those priority rights for 

delivery from Friant Dam, in exchange for a substitute water supply delivered to those 

farmers and entities from CVP Facilities. This agreement, known as the "Exchange 

Contract," permitted the building and filling of Friant Dam and the irrigation of 1.3 

million acres on the east sideofthe San Joaquin Valley to proceed. The contractors 

agree not to "divert, dispose of, or otherwise use water" pursuant to their San Joaquin 

2 
106 


Insert offset folio 158 here 95284.158

rights so long as the United States fulfills certain Project water delivery commitments. 

However, these exchange contracts do not include a transfer or relinquishment of water 

rights. 

Questions from Senator Mazie K. Hirono 

Question l: Honoring our federal trust responsibilities to American Indian tribes and our 

Nation's First People is absolutely paramount. I am dismayed to learn that we have advanced 

only 29 Indian water rights settlements over the last three and a half decades, when hundreds of 

tribes' water rights have not been adjudicated. Resolving these claims is of the utmost 

importance to honoring tribes' rights, bringing water and economic development to Indian 

Country, and bringing greater certainty to Western water management. 

We should be doing everything that we can to resolve these claims and advance settlements in a 

timely manner. It is the federal government's legal and moral responsibility to do so. In your 

testimony you note that as drought and climate change intensify, it is all the more urgent to plan 

for these costs and enable the timely resolution oftribes' rights. And, yet-your testimony states 

that the current piecemeal approach to funding these settlements, which competes with other 

tribal and water priorities--is the appropriate approach. This seems incongruent, especially as the 

Administration is working to secure permanent funding for other important priorities such as 

conservation-which I also support. 

There seems to be broad consensus across a wide group of tribal and state stakeholders that 

providing permanent funding to resolve Indian water rights settlements is one of the most 

important policy steps we can take. 

It will not only help to resolve these settlements in a more timely manner-it makes fiscal sense 

from a budgeting stand-point as it would enable responsible planning and lower out-year costs. 

Can I have your commitment to work with the Subcommittee to identify a path forward on 

this critical issue? 

RESPONSE: As your question suggests, the resolution of Indian water rights claims has two 

phases: negotiation of a settlement agreement and the necessary implementing legislation, 

followed by implementation of the settlement terms. Successful completion of both phases 

carries significant benefits, because simply negotiating and enacting a settlement provides all 

parties with much needed certainty and a reliable basis for planning that had been previously 

lacking. To date, the United States has successfully enacted 29 Indian water settlements and is 

actively engaged in I & separate, additional settlement negotiations. As the Department has 

stated previously, this is a good start in addressing the need for reliable water supplies in Indian 

3 
107 


Insert offset folio 159 here 95284.159

country, but we agree that much more remains to be done. To that end, the President's Fiscal 

Year 2016 budget request seeks a significant increase in funding for ongoing and new settlement 

negptiations. 

On the implementation side, the Administration will need to continue to work with Congress to 

fund existing as well as upcoming settlements. With some notable recent exceptions, water 

rights settlements generally have been funded through the Department's discretionary 

appropriations. Work to be performed under the settlements by the Bureau of Reclamation 

(Reclamation) has come out of Reclamation's budget, and trust funds and other settlement costs 

generally have come out of the Bureau ofindian Affairs' (BIA) budget, but all Departmental 

bureaus have been asked from time to time to expend discretionary funds from their budgets on 

implementation of these water settlements. In all of these cases, the Administration has worked 

successfully with Congress to secure the funds needed to continue to implement and complete 

signed settlements. These funds already represent a significant and growing share of the 

bureaus' respective budgets. Finite budgetary and staff resources, as with all Department 

programs, will continue to be a limiting factor, particularly as the Department works to meet ne"' 

and growillg demands created by drought and other evolving challenges. That is why the 

Department has previously expressed support for looking at alternative approaches to funding 

settlement implementation activities. 

Also, can you provide any data or estimates you have on tl1e federal costs and economic 

impacts of Indian water rights settlements for the coming decades? 

RESPONSE: It is difficult to speculate on the number and size of future settlements. However, 

the Department has estimated that the costs v;'ithin the next ten years could be as high as $2.7 

billion. It is not unreasonable to consider the Federal costs of existing settlements as a predictor 

of fi.lture costs. With respect to settlements enacted since 2009, nearly $2.6 billion in Federal 

cost was authorized, nearly $1.1 billion has been appropriated, and over $1.5 billion remains to 

be funded. The Department does not currently have an estimate of the benefits generated by 

funding provided to date. However, the hundreds of millions of dollars provided so far have 

funded significant construction and rehabilitation projects in many parts of Indian Country, 

which have produced substantial and tangible economic benefits for the tribal communities 

involved. The investments have also provided substantial health and quality-of-life benefits, 

including access to safe and reliable sources of water for residential and other uses. Construction 

funding also provides short-term economic stimulus to .localities or regions. 

For these reasons,_ a delay in funding settlements also delays the receipt of many of the 1;1conomic 

benefits that are associated with settlements. These benefits wiU not fully accrue until the 

physical infrastructure associated with settlements is complete and operational. GiveiJ. the high 

unemployment levels in Indian country, delaying settlement implementation also delays tl1e 

stimulus effects associated with settlements. 

4 
108 


Insert offset folio 160 here 95284.160

Question 2: Access to safe, reliable drinking water is widely recognized around the world as a 

basic human right. In Hawaii, we are keenly aware of drinking water issues--as being an Island 

state we face many freshwater issues, including increased salt water intrusion with climate 

change. 

Ms. Thompson you state that authorized rural water projects not only protect public health, but 

provide economic benefits. In your testimony you state that at current funding levels, some of 

these projects would not be completed until after the year 2063. That is neru·ly a half-century 

from now! And even then, we would still be more than a billion dollars behind the curve in 

funding authorized projects. 

How can we ask communities suffering from inadequate water supplies to wait decades before 

we complete these projects? While I recognize that there are always competing demands on the 

federal budget, it seems unconscionable to not take action to help these communities now. 

If S. 1365 is authorized, how wiD it advance completion of outstanding rural water 

projects? And, what kinds of additional policy ideas should we be thinking about in terms 

of advancing alternative financing for such pro.iects? 

RESPONSE: Section 103(a)(l) ofS. 1365 would provide for a dedicated $80 million per-year 

ftmding stream for 20 years to carry out construction of authorized rural water projects. This 

level of aunual funding is larger than recent years' annual appropriations, which are trending 

below $80 million per year. In Reclamation's 2014 Rural Water Assessment Report 1

, 

Reclamation wrote that assuming an unconstrained level of federal funding that reflects the 

estimates provided in the original final engineering reports for each of the authorized projects 

(about $162 million annually) and non-federal party funding contributions no more than the 

minimum required by the authorization Acts, Reclamation estimates that all remaining rmal 

water projects could be completed by 2035. Reclamation has not conducted an estimate for the 

$80 million per year funding rate provided for inS. 1365, but it is reasonable to estimate that 

these same projects, which are currently projected not to be substantially complete until after the 

year 2060, would likely be complete after 2035, possibly after 2045. 

As for alternative financing for rural water projects, each of the authorized rmal water projects 

was enacted with some level of non-federal funding, with the exception of the tribal component 

of the Garrison Diversion Unit Rural Water Project. And for each, Reclamation has received the 

minimum authorized non-federal share, but no more. If the rate of construction at these projects 

is to be accelerated without additional strain to limited federal resources, higher non-federal 

contributions should be explored. This could be achieved either through increased direct 

expenditures by the non-federal parties or any number of alternative financi11g methods such as 

1 www.usbr.gov/ruralwater/docs/Rural-Water-Assessment-Report.pdf 

5 
109 


Insert offset folio 161 here 95284.161

bonding or private sector financing. No new federal statutory authority is immediately necessary 

for these avenues to be pursued by the non-federal project partners. 

Question 3: Ms. Thompson, S. 1533 would designate the Bureau of Reclamation as the lead 

agency for reviews, analyses, and permitting of water projects on federal lands. 

This bill appears to apply to any new surface water storage projects constructed on lands 

administered by the Department of the Interior and the Department of Agriculture. 

Your testimony noted that this bill would greatly expand the current scope of the Bureau's 

authority, and I would like to better understand that issue. 

1. You note in your testimony that economic and other constraints underlie current 

challenges in developing new large storage projects- not permitting requirements. Can 

you please explain these constraints in greater detail? 

RESPONSE: Water storage projects authorized pursuant to Reclamation law typically require 

that federally-funded construction be repaid by the project beneficiaries over a specified tenn. 

This concept is known as 'beneficiary pays'. In general, projects providing for agricultural 

water, the most common type of Reclamation project, are repaid over 40 years without interest 

pursuant to Section 9 of the Reclan1ation Projects Act of 1939. Projects providing mtmicipal and 

industrial (M&I) water supplies are typically repaid with interest assessed on the repayment, not 

to exceed 3 y, percent per year, pursuant to the Act. 

As stated in the testimony, significant economic constraints underlie the development of new 

large surface storage projects. Several factors contribute to this, including the fact that in the 

now-settled 17 western states where Reclamation is authorized to operate, land use issues, 

environmental considerations, sensitive cultural resources and other factors make new surface 

storage far more expensive to construct than it was in the first half of the 20111 century, when the 

majority of Reclamation's large reservoirs and projects were built. While water is no less 

precious today than it was in the early 20tl' century, it is more difficult today for water from a 

new large surface storage project to produce sufficient revenue for water users such that they can 

repay these now more-expensive projects. In addition, today's federal budget challenges make 

the appropriation of several hundred millions of dollars for the construction of new large surface 

storage projects a serious challenge. 

For these reasons, Reclamation works to optimize existing surface water storage, and is at work 

studying authorized new surface water storage mindful of these constraints. Where new large 

surface storage projects make sense and the benefits outweigh the costs to construct and operate 

6 
110 


Insert offset folio 162 here 95284.162

them, Reclamation pursues those projects, subject to authority and the availability or 

appropriations. 

2. What arc the potential jurisdictional and programmatic impacts ofthis bill? 

RESPONSE: S. 1533 puts Reclamation in a lead agency role over new surface water storage 

projects on lands administered by the Department of Agriculture. While many existing 

Reclamation facilities were constructed within or near national forests, Reclamation operates in 

the 17 western states, and there are USDA lands and national forests across the country2

, 

including several national forests in Alaska, Arkansas, Florida, Georgia, Illinois, Indiana, 

Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, New Hampshire, New 

York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Vermont, Virginia, West 

Virginia and Wisconsin. Placing Reclamation in a position to lead review of proposals in these 

states where Reclamation has no planning role, no operational role, no historic statutory 

authority and no budget for these activities is one source of jurisdictional and programmatic 

impacts from this bill. 

3. Under your existing authority and guidelines, how does the Bureau currently coordinate 

review and permitting with other affected Fedenl agencies, and what changes would this 

bill make to that process? 

RESPONSE: Reclamation and all federal agencies involved in resources management operate 

pursuant to the National Environmental Policy Act of 1969 (42 USC 4321-4347); Council on 

Environmental Quality Regulations at 40 CFR 1500-1508; Executive Orders; the Department of 

the Interior's Guidelines on Implementation ofNEPA, 43 CFR Part 46; Department of the 

Interior NEPA Procedures at 516 Departmental Manual Chapters 1-4 and 14; and the 

Reclamation Manual, National Environmental Policy Act, Policy document ENV P03. NEPA's 

implementing regulations require at Section 46.155 that agencies "consult, coordinate, and 

cooperate with relevant State, local, and tribal govermnents and other bureaus and Federal 

agencies concerning the environmental effects of any Federal action within the jurisdictions or 

related to the interests of these entities." Reclamation's policy on coordinating review and 

permitting with other federal agencies is summarized in Reclan1ation Manual Policy document 

ENV P03, and entails input and involvement by any and all planning documents likely to affect 

other federal agencies' land, resources or mission areas. 

2 www.fs.fed.us/recreation/map/state list.shtml 

7 
111 


Insert offset folio 163 here 95284.163

As stated in the answer to question 2, above, the primary change to Reclamation's processes ifS 

1533 were enacted would be to place Reclamation in the role of lead federal agency for projects 

located in areas where Reclamation historically has no role. 

8 
112 


Insert offset folio 164 here 95284.164

U.S. Senate Committee on Energy and Natural Resources 

Subcommittee on Water and Power 

June 18, 2015 Hearing regarding Pending Legislation 

Question for the Record Submitted to Mr. Tony Willardson 

Question from Senator Jeff Flake 

Question: In a written follow-up question on the proposed USFS groundwater directive 

after the February 26th hearing of this committee, Chief Tidwell indicated that the Forest 

Service has "initiated discussions with the Western States Water Council over the 

proposed directive." What is the status of these discussions and what is the Western 

States Water Council doing to ensure the Forest Service respects state authority over 

groundwater? 

July 6, 2015 

In response to the question from the Honorable Senator Flake above, the Western States 

Water Council (WSWC) was advised of the publication of the draft guidance as it was 

released, on May 6, 2014. The WSWC expressed concern at the time that the States were 

not consulted regarding its substance beforehand. Even before the withdrawal of the 

proposed guidance, the WSWC noted with appreciation the fact that the USFS had 

stepped back and engaged western states in a meaningful conversation before acting 

further. 

Briefly, the following outlines the direction of our involvement with this issue. The 

Western Governors' Association (WGA) in a July 2, 20141etter to USDA Secretary 

Vilsack noted: "Our initial review of the Proposed Directive leads us to believe that this 

measure could have significant implications for our states and our groundwater 

resources." The WGA and WSWC have worked closely together on this issue. The 

WGA letter also declared that "Congress recognized states as the sole authority over 

groundwater." 

On July 17,2014 in Helena, Montana, Jim Pena, Associate Deputy Chief of the National 

Forest System (NFS), discussed the Forest Service's proposed Groundwater Management 

Directive. He said the directive is not a rule and is intended to be an internal guidance 

document that would create a comprehensive direction for the agency's management of 

groundwater on NFS lands. He said the directive does not seek to interfere with state 

groundwater allocation. Instead, the Forest Service will inventory uses and monitor 

effects. The agency oversees a number of activities that impact surface and groundwater, 

such as proposals to develop geothermal sources. As a result, the directive is intended to 

ensure the agency has control over activities on NFS lands. He also said the directive 

would not change or expand Forest Service authority over surface water users. 

On September 10, 2014 on behalf of the Council, I testified regarding our concerns and 

those expressed by WGA. In part that testimony read: "We request that the USFS seek 

an authentic dialogue with the States to achieve appropriate policies that reflect both the 

legal division of power and the on-the-ground realities of the West. USFS should have 

consulted with the States before publishing the proposed directive, and should now seek 
113 


Insert offset folio 165 here 95284.165

U.S. Senate Committee on Energy and Natural Resources 

Subcommittee on Water and Power 

June 18, 2015 Hearing regarding Pending Legislation 

Question for the Record Submitted to Mr. Tony Willardson 

substantive engagement with the States in order to define and remedy any perceived 

deficiencies or inconsistencies. The directive may be well intentioned, but the problems 

that it is designed to address are not apparent, nor is the protection of groundwater a 

primary USFS responsibility." That testimony is attached. 

On October 3, 2014, the WSWC submitted formal comments to USFS Chief Tom 

Tidwell (which are attached). Our comments questioned the USFS authorities related to 

the directive, stating flatly: "Groundwater is a state and not a federal resource." It also 

added: "The directive to 'apply federal reserved water rights to groundwater as well as 

surface water' is inappropriate and legally unsupportable as none of the USFS cited 

statutes and authorities mention groundwater, nor establish any basis to manage or 

allocate waters, nor reserve any federal rights to water." We also questioned the lack of 

consultation with the states prior to publication of the directive, noting the requirements 

of Executive Order 13132 on Federalism. 

To the U.S. Forest Service's credit, while considering the formal comments on the 

guidance, they did agree to enter into a substantive conversation with the WSWC related 

to their intent, in order to clarify for the Council some of the language in the directive. 

For its part, the Council also agreed to explain its comments and objections to the 

directive and work towards finding common ground if possible to address USFS needs. 

On February 13, in Denver, Colorado WSWC members and staff met with USFS 

representatives, including Anita Tompkins, USFS Assistant Director for Water and 

Aquatic Resources and Chris Carlson, USFS National Groundwater Program Leader. 

The substance of the conversations revolved around USFS concerns about present and 

potential lawsuits over the adequacy ofUSFS analysis under the National Environmental 

Policy Act (NEPA) for permitted activities on NFS lands. The need for reliable data was 

also discussed, as was the need to ensure consistency in USFS decisionmaking, as well as 

compliance with applicable federal environmental and state water laws. The WSWC also 

previewed some work it had done to illustrate graphically the potential number of wells 

that might be impacted by the directive in the states of Arizona, Colorado, Idaho, Utah 

and Wyoming. There was also discussion of specific provisions of the directive and the 

potential for further conversations. The WSWC prepared a summary of the meeting. 

I believe this meeting is specifically what Chief Tidwell was referring to after the 

February 261

h hearing when he indicated that the Forest Service had "initiated discussions 

with the Western States Water Council over the proposed directive." Those 

conversations continued, and the WSWC had asked and several states had responded 

with specific proposed changes to the directive, prior to its withdrawal and in anticipation 

of an expected reopening of the comment period. The USFS has committed to fully 

engage states before determining whether or not to republish a new directive. The 

WSWC remains concerned over the impact of any new directive, but is encouraged by 

the USFS willingness to continue our conversations at our upcoming meetings in Lake 

Tahoe, Nevada on July 9, 2015. 

2 
114 


Insert offset folio 148 here 95284.148

WESTERN STATES WATER COUNCIL 

5296 GNtulutrce lJrit-•e. S.IJite 202 5Jurra_v, "Ctah 84107 l (lUJJ) 685-2555 1 I<1X (..)'OJ) 685-2559 

W"eb Page: WH'lt~ lJ'esternstateswateJ~ org 

October 3, 2014 

Tom Tidwell, Chief 

U.S. Forest Service 

1400 Independence A venue 

Washington D.C. 20250-llll 

RE: Proposed USFS Directive on Groundwater Resources 

Dear Chief Tidwell and Mr. Harper: 

ATTN: Rob Harper 

U.S. Forest Service 

WFWARP, 201 141

h Street, SW 

Washington D.C. 20250 

Forest Service Manual 2560 

On behalf of the Western States Water Council, I am writing to comment on the proposed 

U.S. Forest Service's (USFS) Proposed Directive on Groundwater Resource Management, 

published in the Federal Register for public comment on May 6 (FSM 2560). Attached to this 

letter are more specific comments. We appreciate the recognition of the importance of 

groundwater and the impact that USFS activities and USPS-permitted surface activities can have 

on this vital state resource, particularly in the West, where most USFS managed lands are 

located. Moreover, as any other landowner, we also recognize USFS authority to permit access 

to federal lands for lawful activities, including water resources development and operation of 

facilities to exercise state granted water rights. 

While perhaps well intended, our member States have serious concerns over the lack of 

substantive state participation in the development of the directive, especially given that the States 

have primary, often exclusive authority, over the protection, development and management of 

waters within their boundaries, including surface waters arising on, and flowing across USFS 

lands, and groundwater below those lands. Groundwater is a state and not a federal resource. 

The problems that the directive may be intended to address are not apparent, nor is the protection 

of groundwater a primary USFS responsibility. Indeed, the U.S. Supreme Court held in 

California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935), that states 

have exclusive authority over the allocation, administration, protection, and control of all nonnavigable waters located within their borders. 

We believe the USFS assertions of broad authority over groundwater and the potential 

interference with the lawful exercise of state water rights and permitted water uses on National 

Forest Service (NFS) lands are contrary to over 100 years of deference afforded state water laws 

by the Congress and the Supreme Court of the United States. Among other things, presumptive 

claims of any reserved right to groundwater are unsupported by legislation or opinions of the 

Court. Moreover, such claims are counterproductive and will only involve the USPS in extended 

litigation. Rather, USFS should partner with States to identify and address USFS needs. The 

existing compact between the State of Montana and USFS, as well as a Memorandum of 
115 


Insert offset folio 149 here 95284.149

Understanding between USFS and the State of Wyoming, may serve as appropriate options that 

may be emulated by USFS in other States. The Council and our federal partners have, working 

through our Western Federal Agency Support Team, also entered into continuing discussion on 

how best to fulfill legitimate federal water needs within state water law. 

The directive to "apply federal reserved water rights to groundwater as well as surface 

water" is inappropriate and legally unsupportable as none of the USFS cited statutes and 

authorities mention groundwater, nor establish any basis to manage or allocate waters, nor 

reserve any federal rights to water. Further, no federal court has ever upheld a reserved right to 

groundwater. The U.S. Supreme Court in United States v. New Mexico, 438 U.S. 696 (1978) 

specifically denied USFS claims to implied reserved surface water rights claimed for fish, 

wildlife, and recreation uses and found that reserved rights made pursuant to the Act were 

limited to the minimum amount of water necessary to satisfy the "primary purposes" of the 

national forest reservation. These primary purposes include the production of timber and 

watershed protection to insure favorable surface water flows. Furthermore, the Court found that 

all other needs were secondary purposes that required state-issued water rights. The proposed 

directive cannot extend USFS authorities beyond the limits the Court has set Even where 

reserved rights are recognized, the Congress has left it up to the States, under the McCarran 

Amendment, to quantify such rights in general state stream adjudications in state courts. 

Limited USFS resources are already overextended, as evidenced by necessary "fire 

borrowing," requiring careful consideration of national funding priorities. Even if it had the 

authority, the USFS is ill-equipped to undertake the extensive and costly processes and 

procedures that would be necessary to implement the directive. Moreover, much of the work the 

USFS envisions it would undertake or contract out would very likely duplicate existing 

capabilities of the States and other federal agencies. 

Governors John Hickenlooper of Colorado and Brian Sandoval of Nevada, then Chair 

and Vice Chair of the Western Governors' Association, wrote Secretary Tom Vilsack on July 2nd 

declaring, "Our initial review of the Proposed Directive leads us to believe that this measure 

could have significant implications for our states and our groundwater resources." In an Auf,>ust 

29111 reply, Secretary Vi! sack replied with an "open invitation to meet and discuss these 

directives." The WGA and the Council are working closely together on this issue, and we would 

reiterate, as also stated in the Governors' letter: "States are the exclusive authority for allocating, 

administering, protecting and developing groundwater resources .... " This directive has 

significant negative federalism implications for the States. 

We strongly urge you to take no final action on the directive until there has been an 

extended and extensive opportunity for USFS to work with our member States, the WGA, and 

the Council to identify and seek to resolve in a mutually acceptable manner the problems which 

the directive is intended to address. Notably, the directive mentions required consultation with 

the tribes, but not the States. We are prepared to enter into a substantive dialogue that would 

fulfill the requirements of Executive Order 13132 ("E.O.") on Federalism. As stated therein, 

"One-size-fits-all approaches to public policy problems can inhibit the creation of effective 

solutions to those problems." Sec. 2(f) 

Moreover, the E.O. states: "National action limiting the policymaking discretion of the 

States shall be taken only where there is constitutional and statutory authority for the action and 

2 
116 


Insert offset folio 150 here 95284.150

the national activity is appropriate in light of the presence of a problem of national significance. 

Where there are significant uncertainties as to whether national action is authorized or 

appropriate, agencies shall consult with appropriate State and local officials to determine 

whether Federal objectives can be attained by other means." Sec. 3(b) 

The E.O. continues: "When undertaking to formulate and implement policies that have 

federalism implications agencies shall ... where possible, defer to the States to establish standards; 

in determining whether to establish uniform national standards, consult with appropriate State 

and local officials as to the need for national standards and any alternatives that would limit the 

scope of national standards or otherwise preserve State prerogatives and authority .... " Sec. 3(d) 

Sec. 6 requires: "Each agency shall have an accountable process to ensure meaningful 

and timely input by State and local officials in the development of regulatory policies that have 

federalism implications." 

We again request that the USFS enter into an authentic dialogue with the WGA, the 

Council, and the States towards achieving a mutually acceptable policy that reflects both the 

constitutional division of power and the on-the-ground realities of the West. The USFS should 

also recognize that a flexible and consistent state-by-state approach may be a more effective and 

more feasible way of addressing USFS needs than a national approach that does not account for 

the significant physical, hydrological, and legal differences that exist between the states. USFS 

should have consulted extensively with the States before publishing the proposed directive, and 

should now substantively engage the States, in order to define and remedy any perceived need to 

"clarify existing responsibilities and provide greater consistency and accountability .. " 

Thank you for your attention to our concerns, and we look forward to engaging in a 

productive dialogue with you and other USFS representatives. 

Patrick Tyrrell, Chairman 

Western States Water Council 

3 
117 


Insert offset folio 151 here 95284.151

I. STATE PRIMACY OVER SURFACE WATER AND GROUNDWATER 

The Congress and the U.S. Supreme Court have consistently recognized that states have 

primary authority and responsibility for the appropriation, allocation, development, conservation 

and protection of the surface water and groundwater resources. Congress has recognized States 

as the sole authority over groundwater since the Desert Land Act of 1877. Moreover, the Court 

held in California Oregon Power Co. v. Bem;er Portland Cement Co., 295 U.S. 142 (1935), that 

states have exclusive authority over the allocation, administration, protection, and control of the 

non-navigable waters located within their borders. 

While the proposed directive identifies States as "potentially affected parties" and 

recognizes States as having responsibilities for water resources within their boundaries, it does 

not adequately acknowledge the primary and exclusive nature of these responsibilities. Further, 

the proposed directive does not explain how it will ensure that it will not infringe upon state 

allocation and administration of water rights and uses for both surface water and groundwater 

Consequently, the Council is concerned that the proposed directive could conflict with state 

water management and water rights administration. 

First, the Council is concerned that the proposed directive will require the 

implementation of certain conditions and limitations as part of the approval or renewal of special 

use permits that may interfere with the exercise of state issued water rights. Such requirements 

may create a significant burden on existing surface water and groundwater right holders who 

need the special use permits to exercise their water rights and could limit or hinder the exercise 

of current and future rights as permitted by the States. For example, proposed conservation 

requirements could limit the full exercise of certain water rights. The proposal would also require 

special use permit holders to meter and report their groundwater use, which could be expensive 

and may run contrary to the laws of some states. Restrictions placed on injection wells, already 

regulated by state and federal laws, could affect groundwater recharge projects. These are just a 

few examples. 

There is little information presented on the extent of groundwater use on USFS lands and 

the needs the directive is intended to address. Consequently, additional work is needed before 

adoption of the directive to better understand its implications for myriad projects and activities to 

ensure that the proposal does not impair the exercise of existing and prospective state granted 

water rights. The USFS should work with the state authorities, and state expertise and resources 

could help define the problem areas within the directive. 

Second, the directive would require the USFS to evaluate all water rights applications on 

National Forest System (NFS) lands, as well as applications on adjacent lands that could 

adversely affect groundwater resources the USFS asserts are NFS groundwater resources. As any 

other landowner or water user, USFS has the right to participate in state administrative processes 

to ensure that USFS interests are represented. USFS may also condition activities on National 

Forest lands and permit land surface disturbances. However, to the extent that the directive 

purports to interfere with or limit the exercise of state granted groundwater rights and state water 

use permitting authorities on USFS lands, and particularly pertaining to uses on non-USFS 

property, the proposed directive is beyond the scope of the agency's authority. The directive's 

requirement could also impose an unnecessary burden on USFS staff and other resources, as 

4 
118 


Insert offset folio 152 here 95284.152

state water right administrators not only have exclusive water use permitting authority, but also 

have the expertise to evaluate any and all impacts on water resources and water users. The 

directive raises the possibility ofUSFS actions interfering with the exercise of valid pre-existing 

property rights to the use of state waters. It is inappropriate for the USFS to attempt to extend 

its administrative reach to waters and adjacent lands over which it has no authority. 

Third, the proposal's rebuttable presumption that surface water and groundwater are 

hydraulically connected raises another set of questions, including the standards and methods that 

may be used to rebut this presumption. In fact, groundwater and surface waters may or may not 

be hydrologically connected requiring extensive and expensive geohydrologic analyses, which 

the USFS is ill equipped to undertake on a large scale. Further, the management of groundwater 

and rights to the use of groundwater varies by state and is as much a legal question as it is a 

scientific question of connectivity. Moreover, if the USFS presumes to have authority to 

regulate groundwater uses, then their rebuttable presumption of a connection to surface water 

sources could lead to an unwarranted and contentious assertion of authority over surface water 

uses as well, which the U.S. Supreme Court has clearly rebuffed. 

II. LEGAL BASIS OF THE PROPOSED DIRECTIVE 

The Council has a number of questions about the legal basis for the proposed directive. 

While the proposal cites various federal statutes that it describes as directing or authorizing water 

or watershed management on NFS lands, it contains very little discussion or analysis of how 

these provisions specifically authorize the activities contemplated in the proposed directive. The 

proposal also does not address the limits of the USFS's legal authority regarding water resources. 

Instead of supporting the proposed directive's activities, many of the authorities cited in 

the proposal support a more limited scope for USFS water management activities. For instance, 

none of the cited statutes mention groundwater specifically and many are primarily limited to the 

surface estate. Moreover, 16 U.S. Code Section 481 specifically provides that: "All waters within 

the boundaries of national forests may be used for domestic, mining, milling, or irrigation 

purposes, under the laws of the State wherein such national forests are situated .. 

The Council is particularly troubled by language in the directive that would require 

application of the reserved water rights doctrine to groundwater. As noted in the Council's 

attached position, the U.S. Supreme Court has recognized federal reserved rights to surface 

water, but no federal statute has addressed, nor has any federal court recognized, any federal 

property or other rights related to groundwater. Except as otherwise recognized under State water 

law, the Council opposes any assertion of a federal ownership interest in groundwater or efforts 

to otherwise diminish the primary and exclusive authority of states over groundwater. 

It is also important to note that the U.S. Supreme Court narrowly interpreted the Organic 

Act, which the USFS cites as one of the legal justifications for the proposal, in United States 

v. New Mexico, 438 U.S. 696 (1978). Namely, the Court denied USFS claims to implied reserved 

surface water rights claims for fish, wildlife, and recreation uses and found that reserved rights 

made pursuant to the Act were limited to the minimum amount of water necessary to satisfy 

"primary purposes" of the national forest reservation, such as the conservation of favorable 

surface water flows and the production of timber. Furthermore, the Court found that all other 

5 
119 


Insert offset folio 153 here 95284.153

needs were secondary purposes that required state-issued water rights. Similarly, the Court's 

other decisions regarding the reserved water rights doctrine have generally narrowed its scope by 

imposing "primary purpose" and "minimal needs" requirements. The proposal must ensure that it 

complies with the limits the Court has placed upon the recognition and exercise of implied 

federal reserved water rights. 

Further, the assertion of reserved water rights in state general water rights adjudications 

and administrative proceedings can be contentious, time-consuming, costly, and 

counterproductive, often resulting in outcomes that do not adequately provide for federal needs. 

For this reason, different States and federal agencies have worked together to craft mutually 

acceptable and innovative solutions to address federal water needs. The State of Montana and 

USFS have entered into a compact that recognizes and resolves such needs. These types of 

negotiated outcomes are often much more capable of accommodating federal interests and needs 

and should be considered before asserting any reserved rights claims. At a minimum, the 

directive should require the USFS to consider alternatives to asserting reserved water rights 

claims, including those made in general state water rights adjudications and administrative 

proceedings. 

lll. THE LACK OF STATE CONSULTATION 

The Council is especially concerned by the Jack of state consultation in the development 

of the proposed directive and its assertion that it will not have substantial direct effects on the 

States, on the relationship between the federal government and the States, and the distribution of 

powers between the various levels of government. WSWC Position #371 (attached) notes that 

E.O. 13132 requires federal agencies to "have an accountable process to ensure meaningful and 

timely input by State and local officials in the development of regulatory policies that have 

federalism implications.. " 

As declared by the governors, the directive has the potential to significantly impact the 

States and their groundwater resources. Any federal action that involves the possible 

infringement on state water rights and the assertion of reserved water rights claims has, on its 

face, the ability to significantly impact state granted private property and water use rights, their 

administration, and state water management and water supply planning. 

It is particularly perplexing that the USFS deems it necessary to consult with tribes under 

Executive Order 13175, but has determined that the States do not warrant similar consultation 

under Executive Order 13132. It is difficult to understand how the USFS will be able to carry 

out this proposal in coordination with the States, as the directive proposes, without robust and 

meaningful consultation with the States. Moreover, waiting until the public comment period to 

solicit state input, as the USFS has done in this instance, is dismissive and counterproductive. 

Timely and substantive discussions could have led to improvements in the directive before being 

proposed, recognized and incorporated State's authorities and values, and avoided or minimized 

conflicts. The states should have been consulted much earlier in the development of this 

directive, especially given that it has apparently been under discussion for years. 

6 
120 


Insert offset folio 154 here 95284.154

IV. CONCLUSION 

Secretary Vilsack's letter to the Governors includes an invitation to meet and discuss the 

directive. The Council encourages a substantive dialogue with the States before the USFS takes 

any further action on this proposaL The Council is also ready to participate in a dialogue with the 

USFS to address questions and concerns raised herein regarding the proposed directive, as well 

as those raised by our member States in their comments, some of which have already been 

submitted. 

We ask for your careful consideration of our concerns and those of our member States. 

We look forward to further dialogue with the USFS regarding this proposal, and hope the USFS 

will appropriately defer to the authority of the States to manage their groundwater and surface 

waters, as recognized by the United States Congress and the Supreme Court. 

7 
121 


Insert offset folio 154 here 95284.170

Anthony G. Willa1·dson, Executive Dh-ecto1· 

Westem States Wate1· Council 

testimony presented before the 

House Committee on Agdculture 

Subcommittee on Conse1·vation, Ene1·gy & Fm·esti·y 

Regarding 

The U.S. Fm·est Se1-vice's Pmposed Gmundwate1· Dh-ective 

September 10, 2014 

On behalf of the Western States Water Council, a non-partisan government entity created 

by western governors to advise them on water policy issues, I am here to express the concerns of 

the Council regarding the U.S. Forest Service's (USFS) Proposed Directive on Groundwater 

Resource Management, published in the Federal Register for public comment on May 6. My 

testimony is based on Council Position #340- State Primacy over Groundwater (attached), as 

well as WGA Policy Resolution 2014-03 on Water Resources Management in the West, and a 

July 2nd letter to USDA Secretary Tom Vilsack from Governors John Hickenlooper of Colorado 

and Brian Sandoval ofNevada, then Chair and Vice Chair of the Western Governors' 

Association (also attached). The latter states: "Our initial review of the Proposed Directive 

leads us to believe that this measure could have significant implications for our states and our 

groundwater resources." 

In an August 291h letter, shortly before the close of the originally published comment 

period, Secretary Vilsack responded to a number of questions raised by the Governors and the 

Western Governors' Association, which is considering the Secretary's explanations and plans to 

comment prior to the newly extended deadline of October 3'd The Council and WGA continue 

to work closely together on this issue, and reiterate, as stated in the Governors' letter that "States 

are the exclusive authority for allocating, administering, protecting and developing groundwater 

resources, and they are primarily responsible for water supply planning within their boundaries." 

We request that the USFS seek an authentic dialogue with the States to achieve 

appropriate policies that reflect both the legal division of power and the on-the-ground realities 

of the West. USFS should have consulted with the States before publishing the proposed 

directive, and should now seek substantive engagement with the States in order to define and 

remedy any perceived deficiencies or inconsistencies. The directive may be well intentioned, but 

the problems that it is designed to address are not apparent, nor is the protection of groundwater 

a primary USFS responsibility. 

I. STATE PRIMACY OVER SURFACE WATER AND GROUNDWATER 

The Congress and the U.S. Supreme Court have consistently recognized that states have 

primary authority and responsibility for the appropriation, allocation, development, conservation 

and protection of the surface water and groundwater resources. Congress has recognized States 

as the sole authority over groundwater since the Desert Land Act of 1877. Moreover, the Court 

I 
122 


Insert offset folio 171 here 95284.171

held in California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935), that 

states have exclusive authority over the allocation, administration, protection, and control of the 

non-navigable waters located within their borders. 

While the proposed directive identifies States as "potentially affected parties" and 

recognizes States as having responsibilities for water resources within their boundaries, it does 

not adequately acknowledge the primary and exclusive nature of these responsibilities. Further, 

the proposed directive does not explain how it will ensure that it will not infringe upon state 

allocation and administration of water rights and uses for both surface water and groundwater. 

Consequently, the Council is concerned that the proposed directive could conflict with state 

water management and water rights administration. 

First, the Council is concerned that the proposed directive will require the 

implementation of certain conditions and limitations as part of the approval or renewal of special 

use permits that may interfere with the exercise of state issued water rights. Such requirements 

may create a significant burden on existing surface water and groundwater right holders who 

need the special use permits to exercise their water rights and could limit or hinder the exercise 

of current and fi1ture rights as permitted by the States. For example, proposed conservation 

requirements could limit the full exercise of certain water rights. The proposal would also require 

special use permit holders to meter and report their groundwater use, which could be expensive 

and may run contrary to the laws of some states. Restrictions placed on injection wells, already 

regulated by state and federal laws, could affect groundwater recharge projects. These are just a 

few examples. 

There is little information presented on the extent of groundwater use on USFS lands and 

the needs the directive is intended to address. Consequently, additional work is needed before 

adoption of the directive to better understand its implications for myriad projects and activities to 

ensure that the proposal does not impair the exercise of existing and prospective state granted 

water rights. The USFS should work with the state authorities, and state expertise and resources 

could help define the problem areas within the directive. 

Second, the directive would require the USFS to evaluate all water rights applications on 

National Forest System (NFS) lands, as well as applications on adjacent lands that could 

adversely affect groundwater resources the USFS asserts are NFS groundwater resources. As any 

other landowner or water user, USFS has the right to participate in state administrative processes 

to ensure that USFS interests are represented. USFS may also condition activities on National 

Forest lands and permit land surface disturbances. However, to the extent that the directive 

purports to interfere with or limit the exercise of state granted groundwater rights and state water 

use permitting authorities on USFS lands, and particularly pertaining to uses on non-USFS 

property, the proposed directive is beyond the scope of the agency's authority. The directive's 

requirement could also impose an unnecessary burden on USFS staff and other resources, as 

state water right administrators not only have exclusive water use permitting authority, but also 

have the expertise to evaluate any and all impacts on water resources and water users. The 

directive raises the possibility ofUSFS actions interfering with the exercise of valid pre-existing 

property rights to the use of state waters. It is inappropriate for the USFS to attempt to extend 

its administrative reach to waters and adjacent lands over which it has no authority. 

2 
123 


Insert offset folio 172 here 95284.172

Third, the proposal's rebuttable presumption that surface water and groundwater are 

hydraulically connected raises another set of questions, including the standard and methods that 

may be used to rebut this presumption. In fact, groundwater and surface waters may or may not 

be hydrologically connected requiring extensive and expensive geohydrologic analyses, which 

the USFS is ill equipped to undertake on a large scale. Further, the management of groundwater 

and rights to the use of groundwater varies by state and is as much a legal question as it is a 

scientific question of connectivity. Moreover, if the USFS presumes to have authority to 

regulate groundwater uses, then their rebuttable presumption of a connection to surface water 

sources could lead to an unwarranted and contentious assertion of authority over surface water 

uses as well, which the U.S. Supreme Court has clearly rebuffed. 

II. LEGAL BASIS OF THE PROPOSED DIRECTIVE 

The Council has a number of questions about the legal basis for the proposed directive. 

While the proposal cites various federal statutes that it describes as directing or authorizing water 

or watershed management on NFS lands, it contains very little discussion or analysis of how 

these provisions specifically authorize the activities contemplated in the proposed directive. The 

proposal also does not address the limits of the USFS' legal authority regarding water resources. 

Instead of supporting the proposed directive's activities, many of the authorities cited in 

the proposal support a more limited scope for USFS water management activities. For instance, 

none of the cited statutes mention groundwater specifically and many are primarily limited to the 

surface estate. Moreover, 16 U.S. Code Section 481 specifically provides that: "All waters within 

the boundaries of national forests may be used for domestic, mining, milling, or irrigation 

purposes, under the laws of the State wherein such national forests are situated .... " 

The Council is particularly troubled by language in the directive that would require 

application of the reserved water rights doctrine to groundwater. As noted in the Council's 

attached position, the U.S. Supreme Court has recognized federal reserved rights to surface 

water, but no federal statute has addressed, nor has any federal court recognized, any federal 

property or other rights related to groundwater. Except as otherwise recognized under State water 

law, the Council opposes any assertion of a federal ownership interest in groundwater or efforts 

to otherwise diminish the primary and exclusive authority of states over groundwater. 

It is also important to note that the U.S. Supreme Court narrowly interpreted the Organic 

Act, which the USFS cites as one of the legal justifications for the proposal, in United States 

v. New Mexico, 438 U.S. 696 (1978). Namely, the Court denied USFS claims to implied reserved 

surface water rights claims for fish, wildlife, and recreation uses and found that reserved rights 

made pursuant to the Act were limited to the minimum amount of water necessary to satisfy 

"primary purposes" of the national forest reservation, such as the conservation of favorable 

surface water flows and the production of timber. Furthermore, the Court found that all other 

needs were secondary purposes that required state-issued water rights. Similarly, the Court's 

other decisions regarding the reserved water rights doctrine have generally narrowed its scope by 

imposing "primary purpose" and "minimal needs" requirements. The proposal must ensure that it 

complies with the limits the Court has placed upon the recognition and exercise of implied 

federal reserved water rights. 

Further, the assertion of reserved water rights in state general water rights adjudications 
124 


Insert offset folio 173 here 95284.173

and administrative proceedings can be contentious, time-consuming, costly, and 

counterproductive, often resulting in outcomes that do not adequately provide for federal needs. 

For this reason, different States and federal agencies have worked together to craft mutually 

acceptable and innovative solutions to address federal water needs. The State of Montana and 

USFS have entered into a compact that recognizes and resolves such needs. These types of 

negotiated outcomes are often much more capable of accommodating federal interests and needs 

and should be considered before asserting any reserved rights claims. At a minimum, the 

directive should require the USFS to consider alternatives to asserting reserved water rights 

claims, including those made in general state water rights adjudications and administrative 

proceedings. 

III. THE LACK OF STATE CONSULTATION 

The Council is especially concerned by the lack of state consultation in the development 

of the proposed directive and its assertion that it will not have substantial direct effects on the 

States, on the relationship between the federal government and the States, and the distribution of 

powers between the various levels of government. WSWC Position #3 71 (attached) notes that 

E.O. 13132 requires federal agencies to "have an accountable process to ensure meaningful and 

timely input by State and local officials in the development of regulatory policies that have 

federalism implications .... " 

As declared by the governors, the directive has the potential to significantly impact the 

States and their groundwater resources. Any federal action that involves the possible 

infringement on state water rights and the assertion of reserved water rights claims has, on its 

face, the ability to significantly impact state granted private property and water use rights, their 

administration, and state water management and water supply planning. 

It is particularly perplexing that the USFS deems it necessary to consult with tribes under 

Executive Order 13175, but has determined that the States do not warrant similar consultation 

under Executive Order 13132. It is difficult to understand how the USFS will be able to carry 

out this proposal in coordination with the States, as the directive proposes, without robust and 

meaningful consultation with the States. Moreover, waiting until the public comment period to 

solicit state input, as the USFS has done in this instance, is dismissive and counterproductive. 

Timely and substantive discussions could have led to improvements in the directive before being 

proposed, recognized and incorporated State 's authorities and values, and avoided or minimized 

conflicts. The states should have been consulted much earlier in the development of this 

directive, especially given that it has apparently been under discussion for years. 

IV. CONCLUSION 

The Council appreciates the opportunity to testify and express our concerns with the 

proposed directive. Secretary Vilsack's letter to the Governors includes an invitation to meet 

and discuss the directive. The Council encourages such a dialogue before the USFS takes any 

further action on this proposal. The Council is also ready to participate in a dialogue with the 

USFS to address questions and concerns raised herein regarding the proposed directive, as well 

as those raised by our member States in their comments, some of which have already been 

submitted and are attached to this testimony. Given the extension recently granted, some of 

these States may choose to supplement their comments before the new deadline. (Separately 

4 
125 


Insert offset folio 174 here 95284.174

attached for the record are comments provided USFS from Alaska, Idaho, Nevada, North 

Dakota, South Dakota, Washington and Wyoming.) 

Thank you for your oversight efforts. We ask for your careful consideration of our 

concerns and those of our member States. We look forward to further dialogue with the USFS 

regarding this proposal, and hope the USFS will appropriately defer to the authority of the States 

to manage their groundwater and surface waters, as recognized by the Congress and the Supreme 

Court. 
126 


Insert offset folio 133 here 95284.133

14th 

July 1, 2015 

The Honorable Mike Lee, Chairman 

The Honorable Mazie Hirano, 

U.S. Senate Committee on Energy 

Subcommittee on Water and Power 

304 Dirksen Senate Office Building 

Washington, D.C. 205!0 

Dear Chairman Lee and Ranking Member Hirono; 

American Rivers 

On behalf of American Rivers' more than 100,000 members and across the 

United States, I write to you to express concerns with the Water Rights 

Protection bilL Far from protecting water this bill would irresponsibly jeopardize 

the federal government's ability to manage our nation's precious water resources. 

This bill is an overly broad and to address a conflict between the 

Colorado ski industry and the U.S. Forest has since been resolved. The bill 

will have harmful consequences throughout the United States if enacted. 

Due to its vague the bill not only affects the ski as 

intended, but all surface recognized by the State in users 

acquire possession of water or put it to use. 

private use of river 

management and stewardship, over statutory mandates to protect habitat 

management, outdoor recreation, and the of endangered 

Because of its if S. 982 becomes law, the government will to 

NW 

absent protections for anyone other than the applicant 

with other statutes or to simply reject applications out-ofrivers. enc:owragmg 

depend on it 

should request an independent 

diversions could have on watersheds that are 

phone 
127 


Insert offset folio 134 here 95284.134

chronically over allocated, such as the Lower Colorado Basin, the Rio Grande, and the 

Sacramento-San Joaquin system. 

Without the to implement reasonable 

and the Interior be unable to protect federal and 

overuse. Further, the bill would prevent the Federal Energy Regulatory Commission from 

hv<lropo•.ver dam to operate in more ecologically sustainable 

upriver. 

ladders to enable fish to survive their spawning 

poor drafting. It 

recognized 

However, states that the Departments 

the Interior not condition permits on limitations or "any other rmpallrm<,nt" 

Ostensibly, this negates the purpose of the bill, as it "~""''""''"Y 

authority. 

Specific:1lly S. 982 claims to have no effect on enforcement of the Endangered Species 

Power Act, federal reserved water rights, and Indian water rights. 

However, this bill conflicts with these existing laws and settlements enacted into 

law. The clauses will confuse agencies and likely lead to 

which clause is With protracted 

benefit 

This bill tips the delicate balance between riparian water use, ownership, and 

mandates to manage resources in favor interests with unsustai:nat>le 

It obstructs government from our rivers from exploitation in a 

of dire need for clean water. It thwarts river protection, restoration, and maximum 

beneficial use of federal lands. In resolving disputes between and industry, 

careful construction, and not a legislative cudgel, is Rivers 

this legislation and requests it not move beyond the ~UbC(JffirnJt.tee 

Sincerely, 

Director, Western Water and Public Lands Policy 
128 


Insert offset folio 135 here 95284.135

s 

Senate Natural and Energy Committee 

2015 

tam writing to give support to 5.1552, authorizing regional water projects in 

Montana. I have for years the House the Senate and 

The <mlnflr·t;,r1rP 

Senate, setting use 

our natural resources is always a top priority as with your committee. Regional 

water projects are 

Your consideration 
129 


Insert offset folio 136 here 95284.136

TESTIMONY OF 

ASSINIBOINE AND SIOUX TRIBES AND DRY PRAIRIE RURAL WATER AUTHORITY 

FOR SENATE ENERGY AND NATURAL RESOURCES COMMITTEE, SUBCOMMITTEE 

ON WATER AND POWER 

IN SUPPORT OF S. 1365 

L Fort Peck Reservation Rural Water System Status and Funding Needs 

The Fort Peck Reservation Rural water System consists of the Assiniboine and Sioux 

Rural Water System (ASRWS) and the Dry Prairie Rural Water System (DPRWS). The project 

was authorized by the Fort Peck Reservation Rural Water System Act of2000, PL 106-382 (114 

STAT 1451, October 27, 2000) and was enacted to ensure a safe and adequate municipal, rural 

and industrial water supply. The Act authorized $124 million for planning, design and 

construction of ASRWS and $51 million for the same activities ofDPRWS. The authorization 

was in 1998 dollars with provision for cost indexing to adjust for inflation. The statute 

contemplated 10 years of construction, Sections 9(a) and (b), and the authorized construction 

schedule has been extended twice, first, through 2015 and, more recently, through 2020. 

The project will serve 32,000 residents in northeastern Montana on the Fort Peck Indian 

Reservation and outside the Reservation in Valley, Daniels, Roosevelt and Sheridan counties 

where available groundwater is limited and of poor quality. Rural communities, farms and 

ranches covering 3,600 square miles will be connected by 3,200 miles of pipeline. The project 

area is larger than Delaware but smaller than Connecticut The project map is included as 

Appendix A 

2. Project Construction Status 

As shown in Table I below, the project will be 52% complete at the end ofFY 2015. 

ASRWS will be 60% complete, and DPRWS will be 34% complete. The Assiniboine and Sioux 

Tribes have built the regional intake, water treatment plant and main transmission pipelines that 

serve both the Tribes and Dry Prairie. The building of the regional construction features 

accounts for the differences in percentage of completion. 

TABLE 1 

FUNDING STATUS AND NEEDS 

Funding Status 

Total Federal Funding Authority (October 2014 $) 

Federal Funds Appropriated Through FY 2015 

Energy and Water Appropriations 

ARRAAIIocation 

Total 

%Complete 

Amount Remaining After FY2015 

Total Authorized (October 2014$) 

Adjusted for lnftation to FY 2020 at 2.41% Annually 

Years to Complete 

Average Annual Required to End in FY 2020 

ASRWS 

$212,222,000 

$79,506,000 

47,371,000 

126,877,000 

59.79% 

$85,345,000 

$92,666,000 

5 

$15,444,000 

DPRWS Project 

$89,884,000 $302,106,000 

$30,202,000 $109,708,000 

0 47,371,000 

30,202,000 157,0r9,000 

33.60% 51.99% 

$59,682,000 $145,027,000 

$64,808,000 $157,474,000 

5' 5 

$10,801,000 $26,245,000 

141861-l 
130 


Insert offset folio 137 here 95284.137

Construction funds remaining to be spent after FY 2015 total $157.474 million (Table 1) 

within the current authorization (in October 2014 dollars). The total assumes an average rate of 

construction inflation of 2.41% in future years. An average appropriation through fiscal year 

2020 of$26.245 million is required. The President's budget for FY 2016 was woefully 

inadequate at $3.7 million. 

The project is currently under budget by $12.5 million and can be completed within the 

authorized construction ceiling if appropriations are adequate to complete on the statutory 

schedule in 2020. Completion on schedule is not remotely possible with the President's FY 2016 

budget of $3.7 million, which is typical of the budgeting over the last five years. 

3. Remaining Appropriations to Complete Project Construction 

Administrative costs of extending the project completion to FY 2020, 8 years beyond the 

original statutory schedule, required the project to budget an additional $7.76 million for 

administrative overhead, including Bureau of Reclamation oversight (October 2014 dollars), but 

under those constraints, the project can still complete on time and on budget in 2020 given an 

average annual appropriation of $26.245 million. 

Administrative overhead costs beyond 2020 will reduce funds that can be applied to 

construction and cause the authorized ceiling to fall short of the amount needed to finish 

construction. The Subcommittee is urged to address the problem of inadequate budgeting of 

currently authorized projects in the Rural Water Program that are well advanced in construction 

to avoid extended annual overhead costs and inflation. S.l365 would address the problem of 

inadequate budgeting. 

4. Reclamation's Rural Water Program Status and Funding Needs 

The currently authorized rural water projects and the remaining federal cost to complete 

the projects after FY 2015 are summarized in Table 2. The total remaining costs to complete the 

projects are $1.325 billion. The projects will be 42% complete at the end ofFY 2015. 

TABLE2 

REMAINING FUNDS TO COMPLE1E AUll-IORIZED RURAL WA1ER PROGRAM 

Federal 

Total Federal Expenditures FY 2015 

Federal Through Proposed %Through Balance to 

Rural Water System Cost FY 2014 FY 2015 FY 2015 Complete 

Garrison Diversion Unit 856,679,000 516,001,319 6,496,000 60.99% 334,181,681 

Rocky Boys/North Central 327,586,000 76,923,449 4,059,000 24.72% 246,603,551 

Fort Peck/Dry Prairie 301,037,000 136,056,732 3,249,000 46.28% 161,731,268 

Jicarilla 

Le\1\is and Clark 417,962,000 219,813,012 2,432,000 53.17% 195,716,988 

Eastern New Mexico 392,533,178 5,793,468 47,000 1.49% 386,692,710 

Total 2,295,797,178 954,587,980 16,283,000 42.29% 1,324,926,198 

2 

14186!-1 
131 


Insert offset folio 138 here 95284.138

Congress has appropriated funds for the rural water program since the 1980s and 

completed large-scale projects, including WEB, Mid-Dakota and Mni Wiconi. We expect 

Congress to continue to appropriate funds to complete the currently authorized projects. The 

pace of construction funding is the issue, and S. 1365 would complete the projects 20 years 

earlier than the historic pace offunding and bring safe and reliable water supplies to the project 

beneficiaries at a much earlier date. 

Table 3 summarizes the budgeting by the administration over the last five years, which is 

declining and has averaged $30.678 million for construction. Congress has added funding to the 

administration's budget in three of the last five years, bringing construction funding to $48.298 

million annually. The administration has become more reliant on additions by Congress to fund 

the construction activities of the rural water program. 

TABLE 3 

5 YEAR HISTORY OF RECLAMATION'S RURAL WATER PROGRAM 

BUDGETING FOR CONSTRUCTION 

Rural Water System 

EastemNM 

Fort Peck/Dry Prairie 

Jicarilla Apache 

Lewis and Clark 

Mni \1\/iconi 

Garrison Diversion 

Rocky Boy's/North Central 

Subtotal 

Congressional Addition 

Effective Construction Funding by Fiscal Year 

2011 2012 2013 2014 2015 Average 

$0 $0 $1,978,000 $649,000 $47,000 $534,800 

2,000,000 493,000 7,500,000 4,300,000 3,249,000 3,508,400 

500,000 496,000 500,000 0 0 299,200 

2,000,000 493,000 4,500,000 3,200,000 2,432,000 2,525,000 

7,080,000 16,270,000 23,000,000 0 0 9,270,000 

19,954,000 4,685,000 12,605,000 11,507,000 9,001 ,000 11 ,550,400 

1 ,000,000 493,000 4,000,000 5,400,000 4,059,000 2,990.400 

$32,534,000 $22,930,000 $54,083,000 $25,056,000 $18,788,000 $30,678,200 

30,000,000 27,098,000 31,000,000 29,366,000 

Total Rural Water Program $32,534,000 $52,930,000 $54,083,000 $52,154,000 $49,788,000 $48,297,800 

5. Taxpayer Savings with S. 1365 

S. 1365 includes proposed deposits of$80 million annually into a special fund 

(Reclamation Rural Water Construction Fund). S. 1365 makes those deposits and interest 

available to complete authorized rural water projects without further appropriation. We fully 

endorseS. 1365 and think this bipartisan legislation should be passed by Congress and enacted 

into law. We applaud Senator Tester for introducing the bill and Senator Daines for 

cosponsoring the legislation along with five other senators. 

CBO found that authorized rural water projects would cost $366 million through fiscal 

year 2019 and an additional $1.398 billion between fiscal years 2019 and 2035 (February 19, 

2014, on S. 715, the Authorized Rural Water Projects Completion Act of2014). S. 1365 has the 

same proposed rural water program funding provisions asS. 715. However, budgeting at the 

current pace of the administration for the authorized rural water projects has costs through tis cal 

3 

141861-l 
132 


Insert offset folio 139 here 95284.139

year 2019 of $123 million. Therefore, the net effect of S. 1365 (not reported by CBO) is $243 

million ($366 million minus $123 million). 

CBO, however, failed to report the costs of ongoing appropriations that are funding the 

authorized rural water projects too slowly. S. 1365 would increase the rate of appropriations but 

would save the taxpayer in future costs. The taxpayers will save by shortening the completion 

date from 2054 with the current level of budgeting to 2035 as proposed by S. 1365. 

After fiscal year 2019, budgeting by the administration would require $2.488 billion 

through fiscal year 2054 at realistic levels of construction inflation (4%). CBO estimates to 

complete the projects in fiscal year 2035 are $1.398 billion with S. 1365. S. 1365 would 

complete the projects with a savings to the taxpayer after fiscal year 2019 of$ 1.09 billion 

($2.488 billion minus $1398 billion) and would complete the projects 20 years earlier 

The net savings to the taxpayer with S.l365, considering a cost increase through fiscal 

year 2019 of $243 million and the savings after fiscal year 2019 of $1.090 billion, would be $847 

million. Authorized projects would be completed 20 years earlier and at lower costs with S. 

1365 than with current levels budgeting by the administration. 

Clean, reliable and adequate supplies of water are critical to the future of the 

communities served by the Fort Peck Reservation Rural Water System. The authorization for the 

rural water system has been doubled to twenty years. The fiscally prudent course of action for 

Congress to take is to finance the completion of authorized rural water projects now so that the 

cost of these projects does not rise precipitously over time and the affected communities may 

enjoy the benefits of the projects sooner 

The Assiniboine and Sioux Tribes and Dry Prairie Rural Water Authority fully supportS. 

1365. 

4 

l-l1861-l 
133 


Insert offset folio 140 here 95284.140

ENMWli\JA Gayla Brumfield, Chairperson 

Sharon Vice 

Gayla Brumfield 

Chairwoman, Eastern New Mexico Water Utility Authority 

Submission for the Record to the United States Senate 

Subcommittee on Water and Power 

Legislative Hearing on Senate Bill 1365 

June 18th, 2015 

Eastern New Mexico Water Utility Authority Members 

City of Clovis • Cuny County • Town of Elida • Village of Grady • Town of Melrose • City of Portales • Town of Texico 

418 N, Main Street, Clovis, NM 88101 
134 


Insert offset folio 141 here 95284.141

ENMWliJA 

Chairman Lee, Ranking Member Hirono and Members of the 

Subcommittee, my name is Gayla Brumfield and I am a former Mayor 

ofthe City of Clovis, New Mexico and currently serve as the 

Chairwoman of the Eastern New Mexico Water Utility Authority 

(Authority). I would like to submit testimony for the record in strong 

support of S. 1365, the Authorized Rural Water Projects Completion 

Act, which would resolve some of the most critical potable water 

supply issues in the Western United States and those specifically 

impacting the seven Eastern New Mexico Water Utility member 

agencies. 

Mr. Chairman, we applaud and deeply appreciate the opportunity to 

express the importance of rural water projects and the need for the 

federal government to provide an adequate level of funding dedicated 

each year to complete these projects in a timely manner. The federal 

government's participation and funding capabilities are essential to 

making the Eastern New Mexico Rural Water System a reality for our 

Eastern New Mexico Water Utility Authority Members 

City of Clovis • Cuny County • Town of Elida • Village of Grady • Town of Melrose • City of Portales • Town ofTexico 
135 


Insert offset folio 142 here 95284.142

ENMWI.\t.IA 

area residents. We are caught in a race against the failing Ogallala 

aquifer and the time it will take for the federal government to meet its 

commitment to complete this important project. 

If federal funding continues along current trends and S. 1365 fails to 

become law then Eastern New Mexico's potable water supply will 

continue to decline at a rate that is outpacing our only viable alternative 

to meet our communities' needs. We believe this legislation will help us 

avoid costly delays in completing construction phases, limit long-term 

tax payer obligations and assures a more predictable and cost efficient 

means of building the Eastern New Mexico Rural Water System to 

realize a sustainable supply of water. 

This legislation is vital for Eastern New Mexico to establish a 

sustainable supply of water and assure our socio-economic future. A 

sustainable supply of water is critical to the future of our region which 

supports the 27th Special Operations Wing at Cannon Air Force Base, a 

Eastern New Mexico Water Utility Authority Members 

City of Clovis • Curry County • Town of Elida • Village of Graoly • Town of Melrose • City of Portales • Town of Texico 
136 


Insert offset folio 143 here 95284.143

ENMWltiJA 

number of industries including dairy, large-scale food production and 

processing, and colleges and universities, among others. 

Providing a sustainable water supply for Eastern New Mexico is our 

most significant challenge. Our communities rely solely on water 

reserves located in the Ogallala aquifer. Our member communities are 

investing millions of dollars each year in buying water rights, wells and 

transmission lines just to keep up with a demand that is essentially flat. 

Even with continuous investment in production facilities pumping 

capacity is declining in double digit percentages every year. 

The rate of decline of the aquifer is variable and it is hard to predict 

exactly how many more years we have. But, we absolutely know that if 

we do not begin receiving substantial increases in federal funding over 

the next several years, the outlook for our communities is dire. 

Eastern New Mexico Water Utility Authority Members 

City of Clovis • Curry County • Town of Elida • Village of Grady • Town of Melrose • City of Portales • Town of Texico 
137 


Insert offset folio 144 here 95284.144

ENMWtaJA 

Significant progress has been made since the Eastern New Mexico Rural 

Water System received Congressional Authorization in 2009. However, 

the majority of funding, more than $40 million to date, has come from 

the state of New Mexico and our member communities. Last year the 

project broke ground on Phase I, building the intake structure at Ute 

Reservoir. We are currently seeking federal funding for our next phase 

of construction, the building of an interim groundwater pipeline, which 

could provide relief for a few additional years while the rest of project is 

built. 

We are at a critical point in the development of the project and appear 

before you today to urge Congress to expeditiously pass S. 1365. We 

cannot emphasize strongly enough just how important this project is for 

our member entities, for our military, and for the citizens and businesses 

of eastern New Mexico. 

Eastern New Mexico Water Utility Authoritv Members 

City of Clovis • Curry County • Town of Elida • Village of Grady • Town of Melrose • City of Portales • Town of Texico 
138 


Insert offset folio 145 here 95284.145

ENMWlWJA 

While our situation is dire, we are well aware that the other critical 

regional rural water systems are languishing and this effort will assure a 

future for the west. 

Mr. Chairman, thank you for allowing me to submit my testimony for 

the record and please know that the Eastern New Mexico Water Utility 

Authority stands in strong support of S. 1365 and will gladly assist you 

in moving this important legislation through Congress. 

Eastern New Mexico Water Utility Authority Members 

City of Clovis • Curry County • Town of Elida • Village of Grady • Town of Melrose • City of Portales • Town of Texico 
139 


Insert offset folio 146 here 95284.146

DEPARTMENT OF NATURAL RESOURCES 

AND CONSERVATION 

June 17, 2015 

Honorable Lisa Murkowski, Chair 

Senate Committee on Energy and Natural Resources 

709 Hart Senate Office Building 

Washington, DC 20510 

Honorable Mike Lee, Chair 

Senate Subcommittee on Water and Power 

361A Russell Senate Office Building 

Washington, DC 20510 

RE: S. 1552- The Dry-Redwater Regional Water Authority System and the Musselshell-Judith Rural 

Water System Authorization Act of 2015 

Dear Senator Murkowski and Senator Lee: 

_l\llontana Senator Steve Daines, working wi!h_~Centr;.t Monta~a Regiof1al_\i\/ate!r~LJth.<Jrity (CMR~_. 

has recently introduced legislation in the U.S. Congress for the authorization of the Musselshell-Judith 

Rural Water System. 

The CMRWA is a coalition of eight incorporated communities, several unincorporated communities, and 

many rural families within six counties in the geographic center of Montana. Reliability of existing water 

supplies for member communities is questionable, at best. Lack of reliable water supply represents a 

significant public health risk to the residents of this region. Depth to decent quality potable water for 

wells is great1 and surface water supplies run low in summer as agricultural users divert significant instream flows. 

We know that reliable water supply is a substantial driver of the economy. Several of the communities 

which would be served by this regional system are within an hour's drive of Billings, a regional economic 

hub. Greater opportunities for sustainable growth would arrive with a regional drinking water supply. 

Passage of S. 1552 would provide for federal support and funding of the regional system. The Rural 

Water Supply Act of 2006 authorized the Secretary of the Interior to establish and implement a Rural 

Water Supply Program. The Musselshell-Judith project received U.S. Bureau of Reclamation approval for 

its Appraisal level Study in 2010 and approval for its Feasibility Report in January 2015. Significantly, 

this project is the first to complete the planning process prescribed under the Rural Water Supply Act. 
140 

Æ 


Insert offset folio 147 here 95284.147

The State of Montana has supported the planning and administration of the proposed MusselshellJudith Rural Water System with appropriations and grants totaling nearly $2.2 million, to date. Most of 

this fiscal support originated from natural resource tax-based funds, established to fulfill the State's 

commitment to regional water authorities for assistance in financing the non-Federal portions of 

authorized regional drinking water projects. 

Thank you for the opportunity to offer commentary in support of 5. 1552. 

cc Governor Steve Bullock 

The Honorable Steve Daines 

The Honorable Jon Tester 

The Honorable Ryan Zinke 

CMRWA Chairman Jim Kalitowski 

Meghan Marino 

Monty Sealey