69–010 

Calendar No. 126 

115TH CONGRESS REPORT " ! SENATE 1st Session 115–96 

TO AUTHORIZE THE USE OF THE ACTIVE CAPACITY OF 

THE FONTENELLE RESERVOIR 

JUNE 8, 2017.—Ordered to be printed 

Ms. MURKOWSKI, from the Committee on Energy and Natural 

Resources, submitted the following 

R E P O R T 

[To accompany S. 199] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Energy and Natural Resources, to which was 

referred the bill (S. 199) to authorize the use of the active capacity 

of the Fontenelle Reservoir, having considered the same, reports, 

favorably thereon without amendment and recommends that the 

bill do pass. 

PURPOSE

The purpose of S. 199 is to authorize the use of the active capacity of the Fontenelle Reservoir. 

BACKGROUND AND NEED

Fontenelle Reservoir in the State of Wyoming is a principal feature of the Seedskadee Project, one of the initial projects authorized under the Colorado River Storage Project Act of 1956. Authorized uses of Fontenelle Reservoir storage water include irrigation, 

fish and wildlife, recreation, flood control, and municipal and industrial water use, as primary purposes, with power generation 

specified as the only secondary purpose. 

Currently, Wyoming has the perpetual right to market 120,000 

acre-feet of the original 190,250 acre-feet active capacity from the 

reservoir. However, in order to increase the use of water storage 

and supplies from the reservoir, infrastructure improvements must 

be made to prevent erosion. 

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S. 199 would authorize the Secretary to enter into an agreement 

with the State of Wyoming to make infrastructure improvements 

to enable the use of all active storage capacity of Fontenelle Dam 

and Reservoir, including the placement of sufficient riprap on the 

upstream face of Fontenelle Dam, on the condition that the State 

pay for the entire project, including the study, design, planning, 

and construction of the project. 

LEGISLATIVE HISTORY

S. 199 was introduced by Senator Barrasso on January 24, 2017. 

Companion legislation, H.R. 648, was introduced by Representative Cheney in the House of Representatives on the same day. H.R. 

648 was passed by the House of Representatives on a vote of 408– 

0 on March 15, 2017, and was received by the Senate and referred 

to the Committee on Energy and Natural Resources on March 21, 

2017. 

In the 114th Congress, S. 1305 was introduced by Senator Barrasso on May 12, 2015. The Subcommittee on Water and Power 

held a hearing on S. 1305 on June 18, 2015. The Committee on Energy and Natural Resources met in open business session on July 

30, 2105, and ordered S. 1305 favorably reported as amended (S. 

Rept. 114–135). 

The measure was included in Amendment No. 3234, which the 

Senate agreed to on April 19, 2016, as an amendment to S. 2012, 

the Energy Policy Modernization Act of 2016, which the Senate 

passed, as amended, on April 20, 2016. 

Companion legislation, H.R. 2273, was introduced by Representative Lummis in the House of Representatives on May 12, 2015. The 

Subcommittee on Water, Power and Oceans held a hearing on June 

25, 2015. The Committee on Natural Resources reported H.R. 2273, 

as amended, on March 14, 2016 (H. Rept. 114–450), and the House 

of Representatives passed the bill, as amended, by voice vote on 

July 5, 2016. The bill was received by the Senate and placed on the 

Legislative Calendar on July 6, 2016. 

The Committee on Energy and Natural Resources met in open 

business session on March 30, 2017, and ordered S. 199 favorably 

reported. 

COMMITTEE RECOMMENDATION

The Senate Committee on Energy and Natural Resources, in an 

open business session on March 30, 2017, by a majority voice vote 

of a quorum present, recommends that the Senate pass S. 199. 

SECTION-BY-SECTION ANALYSIS

Section 1(a) authorizes the Secretary of the Interior to work with 

the State of Wyoming through cooperative agreements to enable 

the use of all active storage capacity of the Fontenelle Dam and 

Reservoir. 

Subsection (b) outlines the minimally required components of the 

agreements, including that the State of Wyoming shall be responsible for all funding of activities carried out under this act. 

Section 2 includes savings provisions specifying that nothing in 

this act modifies, conflicts with, preempts, or otherwise affects the 

Boulder Canyon Project Act; the Colorado River Compact of 1922; 

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the Boulder Canyon Project Adjustment Act; the Treaty between 

the U.S. and Mexico relating to the utilization of waters of the Colorado and Tijuana Rivers and of the Rio Grande; the Upper Colorado River Basin Compact; the Colorado River Storage Project Act; 

the Colorado River Basin Project Act; or any State of Wyoming or 

other State water law. 

COST AND BUDGETARY CONSIDERATIONS

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

S. 199—To authorize the use of the active capacity of the Fontenelle 

Reservoir 

S. 199 would authorize the Bureau of Reclamation (BOR) to plan 

and construct a project to expand water storage at Fontenelle Dam 

and Reservoir in southwestern Wyoming. Under current law, the 

amount of water storage available to the state of Wyoming at the 

reservoir is the difference between full capacity and the lowest 

water level that allows all of the authorized purposes of the 

Fontenelle project to be performed. 

Under the bill, the BOR would coordinate with the state of Wyoming to design and construct modifications to the Fontenelle Dam 

and Reservoir to allow the project to operate at a lower water level, 

thus expanding the amount of storage available to the state. S. 199 

also would require the state to contribute 100 percent of the costs 

to design and construct the project. Those contributions would be 

classified as offsetting receipts, which are treated as reductions in 

direct spending, and would subsequently be spent without further 

appropriation. 

Enacting S. 199 would increase receipts and the associated direct 

spending; therefore, pay-as-you-go procedures apply. However, CBO 

estimates that the net effect on the budget would be negligible. Enacting the bill would not affect revenues. 

CBO also estimates that enacting the bill would not increase net 

direct spending or on-budget deficits in any of the four consecutive 

10-year periods beginning in 2028. 

S. 199 contains no intergovernmental or private-sector mandates 

as defined in the Unfunded Mandates Reform Act and would benefit the state of Wyoming. Any costs incurred by the state to fund 

the project or participate in cooperative agreements would result 

from complying with conditions of federal assistance. 

The CBO staff contacts for this estimate are Aurora Swanson (for 

federal costs) and Jon Sperl (for intergovernmental mandates). The 

estimate was approved by H. Samuel Papenfuss, Deputy Assistant 

Director for Budget Analysis. 

REGULATORY IMPACT EVALUATION

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

Rules of the Senate, the Committee makes the following evaluation 

of the regulatory impact which would be incurred in carrying out 

the bill. 

The bill is not a regulatory measure in the sense of imposing 

Government-established standards or significant economic responsibilities on private individuals and businesses. 

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No personal information would be collected in administering the 

program. Therefore, there would be no impact on personal privacy. 

Little, if any, additional paperwork would result from the enactment of the bill, as ordered reported. 

CONGRESSIONALLY DIRECTED SPENDING

The bill, as reported, does not contain any congressionally directed spending items, limited tax benefits, or limited tariff benefits as defined in rule XLIV of the Standing Rules of the Senate. 

EXECUTIVE COMMUNICATIONS

Because S. 199 is similar to legislation considered by the Committee in the 114th Congress, the Committee did not request Executive Agency views. The testimony provided by the Bureau of Reclamation at the hearing before the Subcommittee on Water and 

Power on June 18, 2015, follows: 

STATEMENT OF DIONNE THOMPSON, DEPUTY COMMISSIONER

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

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 oppose S. 

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 acrefeet 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 of S. 1305 is to increase the yield of Fontenelle 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 

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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 stones are referred to as ‘‘riprap’’. In 

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 elevations—increasing 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. 

It 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, if S. 1305 becomes law, it will be important to conduct additional analysis to ensure that other interests are protected. S. 1305 includes the following eleVerDate Sep 11 2014 06:50 Jun 09, 2017 Jkt 069010 PO 00000 Frm 00005 Fmt 6659 Sfmt 6969 E:\HR\OC\SR096.XXX SR096
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ments 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 • 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 

of law, 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. 

While S. 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 of Fontenelle Dam at the lower eleVerDate Sep 11 2014 06:50 Jun 09, 2017 Jkt 069010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6969 E:\HR\OC\SR096.XXX SR096
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vations 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. • Instream 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 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. 

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

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

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