59–010 

Calendar No. 600 

114TH CONGRESS REPORT " ! SENATE 2d Session 114–327 

BOLTS DITCH ACCESS AND USE ACT 

SEPTEMBER 6, 2016.—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. 2524] 

The Committee on Energy and Natural Resources, to which was 

referred the bill (S. 2524) to insure adequate use and access to the 

existing Bolts Ditch headgate and ditch segment within the Holy 

Cross Wilderness in Eagle County, Colorado, and for other purposes, having considered the same, reports favorably thereon with 

an amendment and recommends that the bill, as amended, do pass. 

The amendment is as follows: 

Beginning on page 1, strike line 6 and all that follows through 

page 2, line 21 and insert the following: 

SEC. 2. BOLTS DITCH ACCESS. 

PURPOSE

The purpose of S. 2524 is to insure adequate use and access to 

the existing Bolts Ditch headgate and ditch segment within the 

Holy Cross Wilderness in Eagle County, Colorado. 

BACKGROUND AND NEED

When Congress authorized and designated the Holy Cross Wilderness Area in 1980, Bolts Ditch was inadvertently not included 

on the list of existing water facilities. Bolts Lake is an existing 

water facility in Minturn, Colorado, outside of the Wilderness Area 

which can only be filled using the Bolts ditch and headgate. S. 

2524 would allow for a special use permit to be granted to the 

Town of Minturn, Colorado, for access to the ditch and headgate 

within the Wilderness Area. 

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LEGISLATIVE HISTORY

S. 2524, was introduced by Senators Gardner and Bennet on February 9, 2016. On May 17, 2016, the Subcommittee on Water and 

Power held a hearing on S. 2524. 

A companion measure, H.R. 4510, was introduced by Representatives Polis, Lamborn, and Tipton on February 9, 2016. On February 

25, 2016, the Subcommittee on Federal Lands held a hearing on 

H.R. 4510. 

The Senate Committee on Energy and Natural Resources met in 

open business session on July 13, 2016, and ordered S. 2524 favorably reported as amended. 

COMMITTEE RECOMMENDATION

The Senate Committee on Energy and Natural Resources, in 

open business session on July 13, 2016, by a majority voice vote of 

a quorum present, recommends that the Senate pass S. 2524, if 

amended as described herein. 

COMMITTEE AMENDMENT

During its consideration of S. 2524, the Committee adopted an 

amendment to strike the findings in the bill. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

Section 1 provides a short title. 

Section 2. Bolts Ditch access 

Section 2 grants special access and use to approximately 450 feet 

of Bolts Ditch and the Bolts Ditch Headgate within the Holy Cross 

Wilderness, Colorado as depicted on the referenced map for the 

purposes of the diversion of water and use, maintenance, and repair of such ditch and headgate to the Town of Minturn, Colorado. 

COST AND BUDGETARY CONSIDERATIONS

The following estimate of costs of this measure has been provided 

by the Congressional Budget Office: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, August 4, 2016. 

Hon. LISA MURKOWSKI, 

Chairman, Committee on Energy and Natural Resources, 

U.S. Senate, Washington, DC. 

DEAR MADAM CHAIRMAN: The Congressional Budget Office has 

prepared the enclosed cost estimate for S. 2524, the Bolts Ditch Access and Use Act. 

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

to provide them. The CBO staff contact is Jeff LaFave. 

Sincerely, 

MARK P. HADLEY

(For Keith Hall). 

Enclosure. 

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S. 2524—Bolts Ditch Access and Use Act 

S. 2524 would require the Forest Service to provide a special use 

authorization to the town of Minturn, Colorado, to allow the town 

to manage and maintain a headgate used to divert water to Bolts 

Lake. Based on analysis of information from the Forest Service, 

CBO estimates that enacting the bill would increase offsetting receipts from annual fees associated with the authorization by about 

$150 a year; therefore, pay-as-you-go procedures apply. Enacting 

the bill would not affect revenues. 

CBO 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 2027. 

S. 2524 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

benefit the town of Minturn, Colorado; it would give the town easier access to the Bolts Ditch headgate so that it could repair and 

maintain the town’s water supply. 

On July 11, 2016, CBO transmitted a cost estimate for H.R. 

4510, the Bolts Ditch Access and Use Act, as ordered reported by 

the House Committee on Natural Resources on June 15, 2016. S. 

2524 and H.R. 4510 are similar, and CBO’s estimates of the budgetary effects are the same. 

The CBO staff contact for this estimate is Jeff LaFave. The estimate was approved by Theresa Gullo, Assistant Director for Budget 

Analysis. 

REGULATORY IMPACT EVALUATION

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

Rules of the Senate, the Committee makes the following evaluation 

of the regulatory impact which would be incurred in carrying out 

S. 2524. The bill is not a regulatory measure in the sense of imposing Government-established standards or significant economic responsibilities on private individuals and businesses. 

No personal information would be collected in administering the 

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

Little, if any, additional paperwork would result from the enactment of S. 2524, as ordered reported. 

CONGRESSIONALLY DIRECTED SPENDING

S. 2524, as ordered 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

The testimony provided by the U.S. Forest Service of the U.S. 

Department of Agriculture at the May 17, 2016, Subcommittee on 

Water and Power hearing on S. 2524 follows: 

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1http://www.fs.fed.us/publications/policy-analysis/water.pdf. 

STATEMENT OF LESLIE WELDON, DEPUTY CHIEF, NATIONAL

FOREST SYSTEM, U.S. FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE

Mr. Chairman and members of the Subcommittee, thank 

you for the opportunity to present the views of the U.S. 

Department of Agriculture (USDA) regarding S. 2902, 

Western Water Supply and Planning Enhancement Act 

and S. 2524, Bolts Ditch Access and Use Act. I am Leslie 

Weldon, Deputy Chief for the National Forest System 

(NFS), USDA Forest Service. 

S. 2902, TITLE II—PROTECTING EXISTING WATER RIGHTS

Water on National Forest System (NFS) lands is important for many reasons, including fish and wildlife habitat, 

public recreation, and providing a clean and plentiful supply of water for downstream beneficial uses. Today, water 

from national forests and grasslands contributes to the 

economic and ecological vitality of rural and urban communities across the nation, and those lands supply more than 

60 million Americans with clean drinking water.1

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. 

USDA has not had time to fully analyze the effect of this 

bill. USDA recognizes the fundamental role of States to adjudicate water rights under state law. However, based on 

an initial review, the bill appears to restrict USDA’s ability to protect water resources. USDA maintains its opposition to provisions in any bill that would prohibit the Secretary of Agriculture from regulating uses of NFS lands, or 

denying authorizations for uses of NFS lands, because 

these prohibitions have potential to adversely affect water 

resources on those lands. It is USDA’s position that the existing statutory framework protects privately-held water 

rights in balance with the ability of the Forest Service to 

protect water resources. An example of the Forest Service 

work with stakeholders within this framework is the remstockstill on DSK3G9T082PROD with HEARINGS

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cent publication of final directives for ski areas operating 

on NFS lands under term special use permits. 

For the last 30 years, the Forest Service has required 

ownership by the United States, either solely or in narrow 

circumstances jointly with the permit holder, of water 

rights developed on NFS lands to support operation of ski 

areas in prior appropriation doctrine states. This policy 

was motivated by the concern that if water rights used to 

support ski area operations are severed from a ski area— 

for example, are sold for other purposes—the Forest Service would lose the ability to offer the area to the public for 

skiing. 

On June 23, 2014, the Forest Service published a notice 

of a proposed directive in the Federal Register to add riparian and prior appropriation doctrine water clauses for ski 

area permits to the Forest Service’s Directive System. The 

final clauses, published in the Federal Register on December 30, 2015, were the result of extensive public input, including input from the ski industry and a wide range of 

other water rights holders. 

The final directive contains two ski area water clauses, 

one for eastern States that follow the riparian doctrine for 

water rights and one for western States that follow the 

prior appropriation doctrine for water rights. Under a riparian doctrine system, water rights are appurtenant to 

the land, whereas under a prior appropriation doctrine 

system, water rights may be severed from the land. Most 

ski areas on NFS lands are in western states that adhere 

to the prior appropriation doctrine. 

The final directive does not require that ski area water 

rights be acquired in the name of the United States. Instead, the final directive focuses on assuring sufficiency of 

water to operate ski areas on NFS lands. This modified approach for ski area permits was determined to be appropriate given the characteristics of ski area water rights 

and ski areas. Unlike water rights diverted and used on 

NFS lands by holders of other types of authorizations, ski 

area water rights may involve long-term capital expenditures. In western States like Colorado and New Mexico, 

holders of ski area permits may have to purchase senior 

water rights at considerable expense to meet current requirements for snowmaking to maintain viability. Holders 

of ski area permits need to show the value of these water 

rights as business assets, particularly during refinancing 

or sale of a ski area. The value of these water rights is 

commensurate with the significant investment in privately 

owned improvements at ski areas. These investments were 

recognized by Congress in enactment of the National Forest Ski Area Permit Act, which authorizes permit terms of 

up to 40 years. 16 U.S.C. 497b(b)(1). 

In addition to these financial issues, the land ownership 

patterns at ski areas—particularly the larger ones—often 

involve a mix of NFS and private lands inside and outside 

the ski area permit boundary, which makes it difficult to 

implement a policy of sole Federal ownership for ski area 

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water rights. Much of the development at ski areas is on 

private land at the base of the mountains. As a result, 

water diverted and used on NFS lands in the ski area permit boundary is sometimes used on private land, either inside or outside the permit boundary. 

With respect to sufficiency of water for ski area operations, the final directive includes a definition for the 

phrase, ‘‘sufficient quantity of water to operate the ski 

area,’’ and clarifies when and how the holder must demonstrate sufficiency of water to operate the permitted ski 

area and new ski area water facilities; addresses availability of Federally owned ski area water rights during the 

permit term; and addresses availability of holder-owned 

ski area water rights during the permit term and upon 

permit revocation or termination. 

At this time, ski industry representatives have indicated 

support for the final directive, and members of Congress 

have indicated appreciation for the agency’s efforts to work 

collaboratively on this solution. It is USDA’s position that 

additional legislation is not necessary to ensure protection 

of privately-owned water rights. 

USDA has not had adequate time to analyze the effects 

of the bill on Forest Service groundwater policies. However, since the Forest Service published its proposed 

groundwater directive for notice and comment on May 6, 

2014, the Agency has heard from several States and other 

parties who are concerned about the intent of and language in the proposal. By the end of the comment period, 

the Agency had received 260 comments from elected officials, States, Tribes, organizations, and individuals from 

across the country. The House Natural Resources Committee, as well as several States, asked the Agency not to 

proceed with the proposed draft and to consult with them 

before moving forward. The Forest Service has heard these 

concerns and stopped work on the proposed groundwater 

directive, and the Agency will not move forward with our 

original proposal. Rather, we have committed to engaging 

with States, Tribes, and citizens to fully understand concerns and work collaboratively to address them before any 

future actions or proposals would result. Should the Forest 

Service choose to move forward with a new proposed directive in the future, it would only be after engaging with 

States and making sure that the Agency thoroughly understands their concerns in order to address them. The Forest 

Service continues to consider improvements to direction to 

Agency staff on groundwater to maintain its stewardship 

responsibilities in a consistent, credible, and transparent 

manner. 

S. 2902, TITLE I SUBTITLE B—PROTECTING CRITICAL WATER

SUPPLY WATERSHEDS

USDA has not had adequate time to analyze the effects 

of this subtitle but upon initial review opposes NEPA provisions that are beyond the scope of Farm Bill and HFRA 

authorities. As a general matter, the Forest Service welmstockstill on DSK3G9T082PROD with HEARINGS

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comes legislation that incentivizes collaboration and expands the toolset we can use to complete critical work on 

our nation’s forests, without overriding environmental 

laws. 

While we support efforts to provide tools to support improved forest management, capacity constraints due to the 

present approach to budgeting for wildfire continue to 

hinder further efforts to improve the health and resiliency 

of the nation’s forests. In fiscal year 1995, the Forest Service spent 16 percent of its budget on firefighting. Today the 

agency spends more than half of its budget in fire management activities and has seen a corresponding decline in 

non-fire staffing of 39 percent since 1998. Notwithstanding 

these challenges, through collaboration, the Forest Service 

has consistently increased both the number of acres treated annually to improve watershed resilience and timber 

production—increasing timber harvest by 18 percent since 

2008. 

The frequency and intensity of wildfire, the rising cost 

of assets needed to deploy against the spread of wildfire, 

and the way that fire suppression is paid for constrain the 

agency’s capacity to realize additional gains through efficiencies and partnerships alone. The most important action Congress can make now in advancing the pace and 

scale of forest restoration is to fix the fire funding problem. 

The health of the national forests and the communities 

we serve are our shared priority. The Forest Service is accelerating restoration and management of the national forests through innovative approaches and increased collaboration, though it is clear that more work needs to be done, 

and we welcome practical legislation that provides for expedient and responsible efficiencies in the execution of that 

work. 

USDA defers to Department of Interior on provisions 

that most directly affect their agencies. 

S. 2524—BOLTS DITCH ACCESS AND USE ACT

S. 2524 seeks to resolve issues associated with the use 

and maintenance of Bolts Ditch near the Town of Minturn, 

Colorado. The headgate and approximately 450 lineal feet 

of the ditch are located within the Holy Cross Wilderness 

on the White River National Forest. The United States opposed two water rights application cases associated with 

this ditch in 2006 and 2007. Subsequently, the United 

States and the applicants reached a stipulated agreement 

and settlement in both cases; where it was agreed that the 

point of diversion would be removed from the Holy Cross 

Wilderness unless (1) the point of diversion in the Holy 

Cross Wilderness is specifically authorized by the President, (2) the Holy Cross Wilderness boundary is altered to 

exclude the point of diversion from the Wilderness area, or 

(3) the point of diversion is confirmed by Congress to be 

specifically included as a part of the authorization of the 

Homestake Reservoir Project within the Holy Cross Wilderness Area. 

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S. 2524 would direct the Secretary of Agriculture to 

issue a special use permit to the Town of Minturn authorizing non-motorized access to use and perform routine 

maintenance on the Bolts Ditch headgate and 450 lineal 

feet of Bolts Ditch in accordance with US Forest Service 

wilderness regulation. This bill does not authorize new 

construction or reconstruction. 

S. 2524 has the support of Eagle County, the Colorado 

River District, and local and national wilderness advocacy 

organizations. 

The Department does not oppose S. 2524. 

This concludes my remarks. I would be happy to answer 

any questions. Thank you for the opportunity to testify. 

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. 

Æ 

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