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[Senate Report 106-489]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 938
106th Congress                                                   Report
                                 SENATE
 2d Session                                                     106-489

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           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

                              R E P O R T

                         [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;
          (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.
    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, and authorizes the Secretary to fund a 
feasibility study of non-project 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 
non-project 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.

                        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 additional 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-reimbursable 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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