79–010

Calendar No. 938

106TH CONGRESS REPORT

2d Session " ! SENATE 106–489

KLAMATH BASIN WATER SUPPLY ENHANCEMENT ACT OF

2000

OCTOBER 4 (legislative day, SEPTEMBER 22), 2000.—Ordered to be printed

Mr. MURKOWSKI, from the Committee on Energy and Natural

Resources, submitted the following

REPORT

[To accompany S. 2882]

The Committee on Energy and Natural Resources, to which was

referred the bill (S. 2882) to authorize the Bureau of Reclamation

to conduct certain feasibility studies to augment water supplies for

the Klamath Project, Oregon and California, 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:

Strike out all after the enacting clause and insert in lieu thereof

the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Klamath Basin Water Supply Enhancement Act of

2000’’.

SEC. 2. AUTHORIZATION TO CONDUCT FEASIBILITY STUDIES.

In order to help meet the growing water needs in the Klamath River basin, to

improve water quality, to facilitate the efforts of the State of Oregon to resolve

water rights claims in the Upper Klamath River Basin including facilitation of

Klamath tribal rights claims, and to reduce conflicts over water between the Upper

and Lower Klamath Basins, the Secretary of the Interior (hereinafter referred to as

the ‘‘Secretary’’) is authorized and directed, in consultation with affected state, local

and tribal interests, stakeholder groups and the interested public, to engage in feasibility studies of the following proposals related to the Upper Klamath Basin and

the Klamath Project, a federal reclamation project in Oregon and California.

(1) Increasingly the storage capacity, and/or the yield of Klamath Project facilities while improving water quality, consistent with the protection of fish and

wildlife;

(2) the potential for development of additional Klamath Basin groundwater

supplies to improve water quantity and quality, including the effect of such

groundwater development on non-project lands, groundwater and surface water

supplies, and fish and wildlife;

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(3) the potential for further innovations in the use of existing water resources,

or market-based approaches, in order to meet growing water needs consistent

with state water law.

SEC. 3. ADDITIONAL STUDIES.

(a) NON-PROJECT LANDS.—The Secretary may enter into an agreement with the

Oregon Department of Water Resources to fund studies relating to the water supply

needs of non-project lands in the Upper Klamath Basin.

(b) SURVEYS.—To further the purposes of this Act, the Secretary is authorized to

compile information on native fish species in the Upper Klamath River Basin, upstream of Upper Klamath Lake. Wherever possible, the Secretary should use data

already developed by Federal agencies and other stakeholders in the Basin.

(c) HYDROLOGIC STUDIES.—The Secretary is directed to complete ongoing hydrologic surveys in the Klamath River Basin currently being conducted by the U.S. Geological Survey.

(d) REPORTING REQUIREMENTS.—The Secretary shall submit the findings of the

studies conducted under section 2 and Section 3(a) of this Act to the Congress within 90 days of each study’s completion, together with any recommendations for

projects.

SEC. 4. LIMITATION.

Activities funded under this Act shall not be considered a supplemental or additional benefit under the Act of June 17, 1902 (82 Stat. 388) and all Acts amendatory

thereof or supplementary thereto.

SEC. 5. WATER RIGHTS.

Nothing in this Act shall be construed to—

(1) create, by implication or otherwise, any reserved water right or other right

to the use of water;

(2) invalidate, preempt, or create any exception to State water law or an

interstate compact governing water;

(3) alter the rights of any State to any appropriated share of the waters of

any body or surface or groundwater, whether determined by past or future

interstate compacts or by past or future legislative or final judicial allocations;

(4) preempt or modify any State of Federal law or interstate compact dealing

with water quality or disposal; or

(5) confer upon any non-Federal entity the ability to exercise any Federal

right to the waters of any stream or to any groundwater resources.

SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

There are authorized such sums as necessary to carry out the purposes of this

Act. Activities conducted under this Act shall be non-reimbursable and non-returnable.

PURPOSE OF THE MEASURE

The purpose of S. 2882, as ordered reported, is to authorize Bureau of Reclamation to conduct certain feasibility studies to augment water supplies for the Klamath Project, Oregon and California, and for other purposes.

BACKGROUND AND NEED

The Klamath Project (the Project) on the Oregon-California border is one of the earliest Federal reclamation projects. In early

1905, the Oregon and California State Legislatures ceded title to

Lower Klamath and Tule Lakes to the United States for project development under provisions of the Reclamation Act of 1902. Construction was authorized on May 15, 1905, for project works to

drain and reclaim lakebed lands of the Lower Klamath and Tule

Lakes; store waters of the Klamath and Lost Rivers; divert irrigation supplies; and control flooding of the reclaimed lands.

There are two main water supplies for the Project. One consists

of Upper Klamath lake and the Klamath River. The other consists

of Clear Lake Reservoir, Gerber Reservoir and Lost River, which

are located in a closed basin.

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The Project features consist of Link River Dam and Reservoir,

Gerber Dam and Reservoir, and Clear Lake Dam and Reservoir,

additional diversion dams, 5 major pumping plants and 18 canals

with a total length of 185 miles. The project area includes 233,625

acres of irrigable lands. There are approximately 22,000 acres of

land leased to farmers on the Lower Klamath and Tule Lake National Wildlife Refuges.

The principal crops grown in this area are cereal grains, alfalfa

hay, onions, potatoes, and grass seed. Water is also used to irrigate

pastures for beef cattle. The area is noted for the production of

malting barley. The average irrigation season extends from April

through September.

There has been growing concern about meeting the competing

needs of needs of farmers, fish, tribes, and wildlife refuges. Within

the basin, a consensus is developing on the need to increase overall

water supplies in order to meet these growing needs and enhance

the environment. The Bureau of Reclamation has undertaken a

water supply initiative study. The Federal Government has acquired the Agency Lake Ranch property for the purpose of inundating it with 30,000 to 40,000 acre-feet of water during the periods when Upper Klamath Lake would otherwise spill. In addition,

the water users helped the Fish and Wildlife Service secure $3.6

million for refuge water supply augmentation.

The water rights in this basin are not adjudicated. Oregon is trying to use an alternative process to formal adjudication. The tribes

and Federal irrigators have been working to resolve issues.

As ordered reported, S. 2882 provides the Secretary of the Interior with the authority to conduct certain feasibility studies in the

Klamath Basin designed to increase water supplies and improve

water management and water quality in the Upper Basin. It is the

Committee’s intent that the Secretary will take into consideration

all the water needs in the Klamath Basin in conducting these feasibility studies and making recommendations, including the water

needs of fish and wildlife; refuge areas; tribes; non-project

irrigators; and irrigators who receive water from the Federal reclamation project.

LEGISLATIVE HISTORY

S. 2882 was introduced by Senator Smith of Oregon on July 17,

2000. The Subcommittee on Water and Power held a hearing on

the bill on July 25, 2000. At the business meeting on September

20, 2000, the Committee on Energy and Natural Resources ordered

S. 2882, as amended, favorably reported.

COMMITTEE RECOMMENDATION

The Committee on Energy and Natural Resources, in open business session on September 20, 2000, by a unanimous voice vote of

a quorum present, recommends that the Senate pass S. 2882, if

amended as described herein.

COMMITTEE AMENDMENT

During the consideration of S. 2882, the Committee adopted an

amendment in the nature of a substitute that removes the construction authorization, clarifies the scope of the feasibility studies,

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and authorizes the Secretary to fund a feasibility study of nonproject lands.

SECTION-BY-SECTION ANALYSIS

Section 1 designates a short title.

Section 2 authorizes the Secretary of the Interior to conduct feasibility studies of 3 identified proposals related to the Upper Klamath Basin and the Klamath Project. These studies are to be conducted in consultation with affected State, local and tribal interests, stakeholder groups, and the interested public. The studies are

authorized to help meet the growing water needs in the Klamath

Basin, to improve water quality, to facilitate resolution of water

rights claims, and to reduce conflicts over water in the Upper and

Lower Klamath Basins.

Section 3 authorizes additional studies. The Secretary may enter

into an agreement with the Oregon Department of Water Resources to fund studies relating to the water supply needs of nonproject lands in the Upper Klamath Basin. The Secretary is authorized to compile information on native fish species, and where possible, is to use data already developed by Federal agencies and

other stakeholders. The Secretary is also directed to compete ongoing hydrologic surveys. Findings of studies conducted under section

2 and section 3(a) (water needs non-project lands) are to be submitted to Congress within 90 days of each study’s completion, together with any recommendations for projects.

Section 4 provides that activities funded by this Act shall not be

considered a supplemental or additional benefit under Reclamation

law.

Section 5 provides that no existing water rights shall be affected

by the Act.

Section 6 authorizes such sums as necessary and provides that

activities conducted under the Act shall be non-reimbursable and

non-returnable.

COST AND BUDGETARY CONSIDERATIONS

The Congressional Budget Office estimate of the costs of this

measure has been requested but was not received at the time the

report was filed. When the report is available, the chairman will

request it to be printed in the Congressional Record for the advice

of the Senate.

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. 2882. 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. 2882, as ordered reported.

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EXECUTIVE COMMUNICATIONS

On, August 4, 2000, the Committee on Energy and Natural Resources requested legislative reports from the Department of the

Interior and the Office of Management and Budget setting forth

Executive agency recommendations on S. 2882. These reports had

not been received at the time the report on S. 2882 was filed. When

the reports become available, the Chairman will request that they

be printed in the Congressional Record for the advice of the Senate.

the testimony provided by the Commissioner of the Bureau of Reclamation at the Subcommittee hearing follows:

STATEMENT OF ROBERT T. ANDERSON, COUNSELOR TO THE

SECRETARY, DEPARTMENT OF THE INTERIOR

Thank you for the opportunity to present the Administration’s views on S. 2882, the Klamath Basin Water Supply Enhancement Act of 2000. The Administration opposes

this bill as drafted but could support the bill if changes

outlined below are made.

For the last decade, the conflict over water availability

in the Klamath Basin has escalated and the competition

for water supplies has increased. While much of the focus

has been on operation of the Bureau of Reclamation (Reclamation) Klamath Project, there are myriad factors which

affect the availability of water for meeting the Klamath

Basin needs as well as a number of potentially competing

uses. For example, the water rights of the Klamath Basin

remain unadjudicated. While the courts have reaffirmed

the existence of senior Indian water rights, these rights

have not yet been quantified. The Department of the Interior (Interior) has trust responsibilities for the Klamath

Basin tribes. In the upper basin there are two endangered

fish, the Lost River sucker and the short nose sucker.

Down river, the coho salmon is listed as threatened, under

the Endangered Species Act. Four national wildlife refuges—Clear Lake, Tule Lake, Lower Klamath and Upper

Klamath—were established to enhance migratory bird populations and are currently facing water shortages. Farmers

dependent on the Klamath Project are facing annual uncertainty over water availability. Appropriators junior to

the Klamath Project may face an even more uncertain

water supply. In short, it has become apparent that in dry

years there is not enough water to meet all basin needs.

There are many processes currently underway to grapple

with these seemingly intractable water use conflicts. In the

upper Klamath Basin, the State of Oregon is in the process

of adjudicating water rights. Recognizing the potential for

parties to negotiate settlement of their water rights claims

prior to final adjudication, Oregon is conducting a parallel

alternative dispute resolution (ADR) process. Interior, the

U.S. Forest Service, and the Klamath Basin tribes are active participants in the ADR, as are many others with interest in the outcome of the adjudication. While that process may be far from resolution, parties to the ADR agree

on two points: (1) there is a great potential to develop adVerDate 11-MAY-2000 17:02 Oct 05, 2000 Jkt 089010 PO 00000 Frm 00005 Fmt 6659 Sfmt 6969 E:\HR\OC\SR489.XXX pfrm04 PsN: SR489
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ditional water supply and (2) increased water supplies are

a key element in accomplishing negotiated settlements.

In addition to our participation in the ADR process, Interior is working with other agencies, tribes, and stakeholders in other forums to help resolve these conflicts over

water. In all these activities, it has become clear that the

solution involves finding additional water supplies and

managing water supplies to achieve efficiencies. Therefore,

the Administration is encouraged that the Oregon delegation would lend such important support to an effort to expand the manageable water supply in the Basin. We believe that, with a few changes, S. 2882 will move the interested parties toward solutions that address the needs of all

in the Basin.

S. 2882 would authorize and direct the Secretary of the

Interior to engage in feasibility studies of proposals: (1) to

increase the storage capacity and/or yield of the Klamath

Project, (2) to develop additional Klamath Basin groundwater supplies to improve water quantity and quality, and

(3) for the use of the water made available by activities authorized by this bill. Once Congress has had 90 calendar

days to review the feasibility studies, and the requirements of the National Environmental Policy Act have been

fulfilled, the Secretary is authorized to commence planning, design and construction. The United States would

pay all of the costs associated with this legislation, including feasibility studies, design, planning and construction.

We believe enactment of the feasibility studies proposed

in S. 2882 if amended would benefit the threatened and

endangered fish species as well as the four national wildlife refuges in the Klamath Basin. In addition, water made

available by strategies studied under S. 2882 could play a

key role in the adjudication of Indian and private irrigation water rights claims. The Administration strongly supports provisions in S. 2882 requiring compliance with Federal law, including the National Environmental Policy Act

and Endangered Species Act, to ensure public involvement

and resolution of environmental issues prior to implementation. For these reasons, the Administration supports authorizing the feasibility studies and the planning and design of facility modifications and for ground water development.

The Department and others recognize the potential to

augment the water supply by modifying Klamath Project

features and developing groundwater supplies. Interior is

confident that the feasibility studies will demonstrate that

there are steps that can be taken to alleviate the very real

potential for shortages in the near future. The Administration recognizes there are tribal trust and wildlife refuge

aspects that must be considered in focusing studies and allocating costs.

However, the Administration cannot support: (1) authorizing construction prior to completion of Administration

and Congressional review of feasibility studies, and (2)

making all activities authorized under this bill non-reimVerDate 11-MAY-2000 17:02 Oct 05, 2000 Jkt 089010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6969 E:\HR\OC\SR489.XXX pfrm04 PsN: SR489
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bursable and non-returnable. Longstanding Administration

policy opposes simultaneously authorizing feasibility reports and construction. Additionally, we oppose provisions

making 100 percent of construction costs reimbursable up

front, as Reclamation policy calls for assigning costs based

on a feasibility study according to project purposes with

beneficiaries assuming appropriate levels of repayment responsibility. Therefore, Section 3 should be deleted. Under

Section 7, the United States would pay 100 percent of the

costs of the feasibility reports despite the benefits the

studies could have for the State, power and irrigation interests, among others. Normally Administration policy has

the United States bear 50 percent of the feasibility study

costs with appropriate non-Federal interests contributing

50 percent. However, the factors discussed above may justify some flexibility on this standard.

This concludes my testimony. I would be pleased to answer any questions you may have.

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing

Rules of the Senate, the Committee notes that no changes in existing law are made by the bill S. 2882, as ordered reported.

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