OLD FAITHFUL PROTECTION ACT OF 1993 

JOINT HEARING 

BEFORE THE 

STJBCOMMITTEE ON 

ENERGY AXD NATURAL R.ESOURCES 

AND THE 

SUBCO~MITTEE ON 

NATIONAL PARKS, FORESTS AND PUBLIC LANDS 

OF THE 

COMMITTEE ON 

NATURAL RESOURCES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRD CONGRESS 

FIRST SESSION 

ON 

H.R. 1137 

TO AMEND THE GEOTHERMAL STEAM ACT OF 1970 (30 U.S.C. 1001-1027), 

AND FOR OTHER PURPOSES 

73-461 

HEARING HELD IN WASHINGTON, DC 

APRIL 22, 1993 

Serial No. 103-21 

Printed for the use of the Committee on Natural Resources 

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1993 

For "a le 1_-,y till· U.S. Gnvcrnm~:nt Printing orri ~ 

pe rint d~ nl ,,r Dm:: u1nt.:nts. Congn.:s"itmal S<~lcs Office. Wa .... hi ngl(lll. DC 20..:1.()2 

ISBN 0-16-041755-4 
COMMITTEE ON NATURAL RESOURCES 

GEORGE MILLER, California, Chairman 

PHILIP R. SHARP, Indiana DON YOUNG, Alaska, 

EDWARD J. MARKEY, Massachusetts Ranking Republican Member 

AUSTIN J. MURPHY, Pennsylvania JAMES V. HANSEN, Utah 

NICK JOE RAHALL II, West Virginia BARBARA F. VUCANOVICH, Nevada 

BRUCE F. VENTO, Minnesota ELTON GALLEGLY, California 

PAT WILLIAMS, Montana ROBERT F. SMITH, Oregon 

RON DE LUGO, Virgin Islands CRAIG THOMAS, Wyoming 

SAM GEJDENSON, Connecticut JOHN J . DUNCAN, JR., Tennessee 

RICHARD H. LEHMAN, California JOEL HEFLEY, Colorado 

BILL RICHARDSON, New Mexico JOHN T. DOOLITTLE, California 

PETER A. DEFAZIO, Oregon WAYNE ALLARD, Colorado 

ENI F.H. FALEOMAVAEGA, American RICHARD H. BAKER, Louisiana 

Samoa KEN CALVERT, California 

TIM JOHNSON, South Dakota SCOTT MciNNIS, Colorado 

LARRY LAROCCO, Idaho RICHARD W. POMBO, California 

NEIL ABERCROMBIE, Hawaii JAY DICKEY, Arkansas 

CALVIN M. DOOLEY, California 

CARLOS ROMERO-BARCELO, Puerto Rico 

KARAN ENGLISH, Arizona 

KAREN SHEPHERD, Utah 

NATHAN DEAL, Georgia 

MAURICE D. HINCHEY, New York 

ROBERT A. UNDERWOOD, Guam 

HOWARD L. BERMAN, California 

LANE EVANS, Illinois 

PATSY T. MINK, Hawaii 

THOMAS J . BARLOW III, Kentucky 

THOMAS M. BARRETT, Wisconsin 

JOHN LAWRENCE, Staff Director 

RICHARD MELTZER, General Counsel 

DANIEL VAL K!SH, Republican Staff Director 

SUBCOMMI'ITEE ON ENERGY AND MINERAL RESOURCES 

RICHARD H. LEHMAN, California, Chairman 

PHILIP R. SHARP, Indiana BARBARA F. VUCANOVICH, Nevada, 

AUSTIN J. MURPHY, Pennsylvania Ranking Republican Member 

EDWARD J. MARKEY, Massachusetts CRAIG THOMAS, Wyoming 

NICK JOE RAHALL II, West Virginia JOHN T. DOOLITTLE, California 

LARRY LAROCCO, Idaho WAYNE ALLARD, Colorado 

NATHAN DEAL, Georgia SCOTT MciNNIS, Colorado 

PETER A. DEFAZIO, Oregon RICHARD POMBO, California 

THOMAS J. BARLOW III, Kentucky 

DEBORAH VON HOFFMANN LANZONE, Staff Director 

GREY STAPLES, Professional Staff Member 

LAUREN SCHARFMAN, Clerk 

WILLIAM CONDIT, Republican Consultant on Energy and Mineral Resources 

(II) 
SUBCOMMITTEE ON NATIONAL PARKS, FORESTS AND PuBLIC LANDS 

BRUCE F. VENTO, Minnesota, Chairman 

EDWARD J . MARKEY, Massachusetts JAMES V. HANSEN, Utah, 

NICK JOE RAHALL II, West Virginia Ranking Republican Member 

PAT WILLIAMS, Montana ROBERT F. SMITH, Oregon 

PETER A. DEFAZIO, Oregon CRAIG THOMAS, Wyoming 

TIM JOHNSON, South Dakota JOHN J . DUNCAN, JR., Tennessee 

LARRY LAROCCO, Idaho JOEL HEFLEY, Colorado 

NEIL ABERCROMBIE, Hawa_ii JOHN T. DOOLITTLE, California 

CARLOS ROMERO-BARCELO, Puerto Rico RICHARD H. BAKER, Louis1ana 

KARAN ENGLISH, Arizona KEN CALVERT, California 

KAREN SHEPHERD, Utah JAY DICKEY, Arkansas 

MAURICE D. HINCHEY, New York 

ROBERT A. UNDERWOOD, Guam 

AUSTIN J . MURPHY, Pennsylvania 

BILL RICHARDSON, New Mexico 

PATSY T. MINK, Hawaii 

RICHARD HEALY, Staff Director 

CHARLES (STAN) SLOSS, Counsel 

HEATHER HUYCK, Professional Staff Member 

GWYN FLETCHER, Staff Assistant 

STEPHEN HODAPP, Republican Consultant on National Parks 

(III) 

CONTENTS 

Page 

Hearing held: April 22, 1993 ....... ................ ........... ............. .. .... ................... ....... .. . 1 

Text of the bill: H.R. 1137 .... ..... ...... .... ...... .... .... .. .. .. .. .... ...... . .. .... .. . .. .............. ... .... ... 2 

Member statements: 

Hon. Richard H. Lehman ......... .............. ........ ............ .............................. ..... ... 1 

Hon. Bruce F. Vento .................................... ............................. ........................ 6 

Hon. Nick J. Rahall II .... ............. .......... ...................... ..... .. ....... ..... ..... .. .... ....... 9 

Hon. Pat Williams ............. .... .......... .. ..... .. .... ........ .. ... .. ..... ... ... .. .. .. .... .. .............. 10 

Witness statements: 

Panel consisting of: Dr. Dennis Fenn, Deputy Associate Director, Natural Resources, National Park Service, Department of the Interior .. ....... .... .. ... ...... .. .. .. .. . 15 

Chris Tweeten, Esq., chief deputy attorney general, State of Montana, and chairman, Montana Reserved Water Rights Compact 

Commission, accompanied by Barbara Cousins, legal counsel, Montana Reserved Water Rights Compact Commission, and Susan 

Cottingham, staff director .. . . .... . . .. .. .. . .. .. . . .. . . .... ... . . .. .. . . .. . . . . . .. . . . . . . .. . . ... . . .. . 23 

Mark S. Simonich, director, Montana Department of Natural Re- sources and Conservation, State of Montana .... .. .. .. .... .. .. .... ... .. .. .. .. . . . .. 32 

Edward L. Francis, vice president, Church Universal and Triumphant, 

Inc., Corwin Springs, MT .................. ........... ...... ...................... .. .................. 67 

Panel consisting of: 

Michael D. Scott, Northern Rockies regional director, The Wilderness 

Society.................... .............. ... .. ....................... ....... .. ....... ..... ................ .. 87 

Elizabeth Fayad, staff counsel, National Parks and Conservation Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 

Louisa L. Willcox, program director, Greater Yellowstone Coalition .... 102 

Additional material submitted for the hearing record from: 

Dr. Dennis Fenn, Deputy Associate Director, Natural Resources, National 

Park Service, Department of the Interior: "Corwin Springs Known Geo- thermal Resource Area Impact Analysis: Report to Congress" dated 

August 1991 ........ .... .. .... ... .. .... ...... .................................. ...... ............. 37 

APPENDIX 

APRIL 22, 1993 

Additional material submitted for the hearing record from: Hon. James V. Hansen: Prepared statement .......................................... ..... .. 129 

National Park Service, Department of the Interior: Prepared statement 

of Owen R. Williams, Reserves Water Rights Compact Negotiation 

Team Spokesperson on House Bill 692 dated April 7, 1993 .............. ..... ... 133 

Upper Yellowstone Defense Fund, Gardiner, MT: Prepared statement 

of Julia Page, president .. ..... ....... ................ ..................... .. ........ ....... .. ... .... ... 153 

Doney, Crowley & Shontz, counsel for the Church Universal and Triumphant, Inc., on water law matters: Letter from Ted J. Doney, Esq., 

to Hon. Dale Bumpers, chairman, Senate Subcommittee on Public 

Lands, National Parks and Forests, dated June 29, 1992 ........................ 155 

(V) 

H.R. 1137 TO AMEND THE GEOTHERMAL 

STEAM ACT OF 1970 

THURSDAY, APRIL 22, 1993 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ENERGY 

AND MINERAL RESOURCES AND SUBCOMMITTEE ON NATIONAL PARKS, FORESTS AND PUBLIC LANDS, COMMITTEE ON NATURAL RESOURCES, 

Washington, DC. 

The Subcommittees met at 10:05 a.m. in room 1324 of the Longworth House Office Building, the Hon. Richard H. Lehman and the 

Hon. Bruce F. Vento (chairmen of the Subcommittees) presiding. 

STATEMENT OF HON. RICHARD H. LEHMAN 

Mr. LEHMAN [presiding]. This morning the Subcommittee on Energy and Mineral Resources is meeting to conduct a joint hearing 

with the National Parks, Forests and Public Lands Subcommittee, 

chaired by Mr" Vento, on H.R. 1137, a bill to amend the Geothermal Steam Act of 1970. The bill was introduced by Representative Pat Williams. The purpose of this legislation is to prohibit the 

use or development of geothermal resources in a 15-mile band 

around Yellowstone National Park, in order to protect the park's 

significant thermal features, such as Mammoth Hot Springs. 

[The bill, H.R. 1137, follows:] 

(1) 
2 

10:3n CONGRESS 

1ST SESS!O:\ H.R.ll37 

To amend the Geothermal Steam Act of 1970 (30 U.S.C. 1001-102i), ami 

for other purposes. 

IN THE HOUSE OF REPRESEXTATIVES 

FBBRUARY 24, 19H3 

i\Ir. WILLL-1...\!S introduced the following bill; which was referred to the 

Committee on !\"atural Resources 

A BILL 

To amend the Geothermal Steam Aet of 1970 (30 U.S.C. 

1 001-1027), and for other purposes. 

Be it enacted by the Senate and House (~f Representa2 tives qj'thc Unite(/ States ofAmerica in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Aet may be cited as the "Old Faithful Protec5 tion .Act of HJ 93". 

6 SEC. 2. AMENDMENTS TO GEOTHERMAL STEAM ACT. 

7 The Geothermal Steam Act of 1970 (30 U.S.C. 1001 

8 ami follO\ving) is arncncled by adding the following lle\Y 

9 sections: 
3 

2 

"SEC. :30. The Cmt!,'Tess hereby declares that any usc 

2 of, or produdion from, an~· existing geothennal well, or 

3 an~· Pxploration for, or devcloprnent of, any new gl'o4 thermal well or any facility related to the usc of subsurface 

5 g-eotlwrmal n•sour<:L'S \Yithin the Corwin Springs Known 

6 Clcothcnnal Hcsnun:e Area (as designated in the ,July 22, 

7 1975, Pederal He;...ristcr (Feel. Heg-. Vol. 40, o. 141)) \rill 

8 re,mlt in a<lverse effects on sibrnifieant thennal fcatmes 

9 i11 Yello\\·stmlc :'\ational Park. ::\otwithstamling any other 

10 provision of law to the eontrary, the Seeretary shall pro11 hibit any usc of, or procluetion from, any existing geo12 tlwnnal well or an.v exploration for, or developnwnt of, any 

13 new geothcrnwl well or any fa cility related to the use of 

14 subsurf'<we gcotlH'rmal ref>ourccs within the C01win 

15 Springs Known Geothermal Hesonree Area, in<:lnding 

16 lands and watcrf> aud iutcrests or rights in sm:h lands and 

17 \\·ate rs not owned by the United States. For the purposes 

18 of this scetion, the tenn 'g~~othermal well' means a well 

19 for geothermal steam and associated geothermal rc20 f>Otll'CCS. 

21 "SEC'. :n. 'l'he SelTctar~-- shall not issue <Ill~' kase 

22 under this Aet for lands within a 15-milc radius of the 

23 boundary of Y cllowstonc ;.Jational Park. ;.Jothing i11 this 

24 scetion shall be eonstrned to affect the ban or· prohibition 

25 referelleeclnncler seetion 28(f) and seetion 30.". 

•IIR 1137 IH 
4 

3 

SEC. 3. MORATORIUM AND STUDY. 

2 (a) Any use of, or production from, any existing gco3 thermal well, or any exploration for, or development of, 

4 any new geothermal well or any facility related to the usc 

5 of subsurface geotherma l resources is prohibited on lands 

6 and waters and interests or rights in such lands and wa7 ters not owned ~· the lJ nit eel States, within a 15-mile ra8 dins of the boundary of Yellowstone ation l Pa rk , except 

9 with respect to the Island Park Geothermal Area (as clcs10 ignated by the map in the "Final E nvironmental Impact 

II Statement of the Island Park Geothermal An~a" (J anua ry 

12 15, 1980, p . A.'1) ), to " ·hich sueh prohibition shall apply 

13 to lands and waters and interests or rights in suc:h lands 

14 and waters not om ted b.Y the United States wit hin the full 

15 extent of such Area, until 180 days after th e receipt l>y 

I6 Congress of the study rC'fcrred to in subscctioll (b). :\'oth17 ing in this section shall be construed to affect the han or 

18 prohibitions refereneed under seetion 28(f), scetion 30, 

19 and section 31 of the Geothermal Steam Act of 1970. 

20 (b) The National Pa rk Service, in consultation with 

21 the F orest Se vi~.:e and the lJni tcd'States Geological Sur22 vcy, shall conduct a stud~· 0 11 th e impact of potential geo23 thermal development on the thermal features of Yellow24 stone National Park . .Such stucl.v shall not include the area 

25 referred to under section 30 of the Geothermal Steam Act 

26 of 1970, and shall not inelnde Federal lands \\i thin the 

•HR 1137 IH 
5 

4 

areas referred to in section 28(f) and section 31 of such 

2 Act. The study shall be submitted to Congress no later 

3 than 4 years after the date of enactment of this Act. 

0 

•HR 1137 IH 
6 

Mr. LEHMAN. The Geothermal Steam Act Amendments of 1988 

established a moratorium on development in this area, which expired in April 1992, and the area is again vulnerable to exploitation. H.R. 1137 is a statement that the Federal Government cannot tolerate threats to the unique features of our park. 

A similar bill was introduced in the 102nd Congress, and the essential issue remains. How can the Federal Government most completely protect the aspects of Yellowstone National Park that distinguish it as one of only two places in the world with intact active 

geysers? All other geothermal sites have been developed to the 

point of depletion. 

I take a personal interest in this legislation. I have three national parks in my own district and believe their protection is essential to the national interest. In 1984, I fought efforts by the city 

of San Francisco to raise the height of Hetch Hetchy Dam, located 

within Yosemite National Park in my own district. I firmly believed 

then as I do now that the city had no right to further drown pristine parkland without approval by Congress. The city was not entitled to expand the dam and spoil the park because they needed 

more water. 

The situation in Yellowstone is not unlike the situation in Yosemite. Yellowstone Park is a priceless Federal resource for which 

there exists a Federal reserved water right dating back to 1872. 

Development threatens to encroach on-and potentially destroyYellowstone's natural beauty. However, in this case, the State of 

Montana, in cooperation with the National Park Service, has neeotiated a compact to perfect that Federal reserved water right. The 

perfected right will, I feel, provide the park with the "no risk" protection it needs. But there is the matter of the existing development that is not 

eliminated by the compact. There is also the issue of other States, 

like Idaho and Wyoming, that contain or border the park. It is for 

these reasons that H.R. 1137 remains a Federal imperative. I believe the State has done a tremendous job in developing this compact and that its expected passage by the State legislature will be 

a tribute to its soundness. A deeply held belief that the thermal 

features of Yellowstone are too precious to lose was its driving 

force. The same driving force is behind the legislation for which 

this hearing is being held today. 

I welcome each of our witnesses and certainly look forward to 

what I think will be a valuable hearing, and I would like to turn 

it over to the chairman of the parks Subcommittee, Mr. Vento. 

STATEMENT OF HON. BRUCE F. VENTO 

Mr. VENTO. Well, thank you, Mr. Chairman, and I commend you 

for putting together this hearing. Obviously the new responsibilities that you have are significant, and we are pleased to have your 

help with the Natural Resources Committee in this leadership role. 

Today is Earth Day, a day that we attempt to look to the ideal 

of preserving that which is natural in our environment and conserving that which we use and trying to restore that which has 

been damaged. So I think it is fitting that we hold a hearing on 

this topic, especially with the problems that have surfaced and con-
7 

tinue to surface with regard to the threats to Yellowstone, a reserve that was set aside over 100 years ago. 

I think that our predecessors thought that they were setting this 

aside and preserving it for a long time, but as we march forward 

and gain more information, we find that the early attempts to do 

it in finally making it a National Park were not adequate unless 

we deal with the new information and understanding that we have. Nearly every place in the world on all the continents where we 

have geothermal features of the magnitude and fields like exist in 

the Yellowstone area have been destroyed because man tried to use 

them for energy and for other purposes. I guess there is still one 

in Russia that is hanging on. 

I think that is really what is behind this. I know that, good intentions aside, the fact is that the water rights and these other features really are at risk. We run the risk of Old Faithful, unless we 

are faithful to it, being turned off forever. We know that there are 

many aspects of this we don't understand, and I think that it is important that we attempt to move forward. 

I want to commend my colleague from Montana, who has been 

persistent in the face of some divergent views with regard to this 

issue and for persisting to work for preservation of this resource, 

this very significant resource in his area, and I look forward to 

working with him and with the Subcommittee. Hopefully, we will 

bring this to a conclusion in this session of Congress and protect 

America's heritage and the features that make Yellowstone such an 

outstanding plateau in our Western topography. 

Thank you, Mr. Chairman, and I would yield back my time. 

[Prepared statement of Mr. Vento follows:] 

OPENING STATEMENT CONGRESSMAN BRUCE F. VENTO 

I want to thank Representative Lehman, the new chairman of the Energy and 

Mineral Resources Subcommittee for his efforts and leadership in putting together 

this joint hearing. In the last Congress our two subcommittees held an extensive 

and informative hearing on the Yellowstone geothermal issue. The House subsequently passed legislation, reported from our committee, to protect Yellowstone National Park's geothermal resources. Unfortunately, the Senate did not pass the 

lsgislation, so it did not become law. This year H.R. 1137, again introduced by our colleague, Representative Williams, would amend the Ckothermal Steam Act of 1970 

to protect these precious resources. Yellowstone National Park would simply not be Yellowstone without its geothermal features. We must be faithful to Old Faithful and not risk turning it off 

forever. Today, we only know enough about these kinds of resources to know that 

we, in fact, know very little about them. The complex interconnections in the Yellowstone Ckyser Basin are only beginning to be understood. Risking damage to such 

unique resources-and the tourist dollars that they attract-for some hot baths and as a minor energy source makes little or no sense. For this reason, a moratorium 

for the next 4 years on geothermal exploration and production while the National 

Park Service, in consultation with the Forest Service and the U.S. Geological Sur- vey, studies this area is imperative. 

I understand that the National Park Service and the State of Montana have been 

diligently working to negotiate a compact for the Federal reserved water rights of 

Yellowstone, and understand that the Montana State Legislature is expected to act on it quite soon. I look forward to learning more about that matter and how it ad- dresses the issues raised by the legislation before us. 

I want to commend my Subcommittee colleague, Representative Williams, for his 

initiative and perseverance in protecting the geothermal resources of Yellowstone 

National Park. I endorse this legislation and look forward to working with the Clinton administration to see it enacted into law. 
8 

Mr. VENTO. I would ask unanimous consent that all the statements of the members and witnesses in their entirety be placed in 

the record, including one by our colleague, Mr. Rahall, your predecessor as chairman of the Energy and Mineral Resources Subcommittee. 

Mr. LEHMAN. Without objection, we will put all of those in the 

record including Mr. Rahall's. 

[Prepared statement of Mr. Rahall follows:] 
9 

STATEMENT OF U.S. REP. NICK J. RAHALL, II 

before the joint hearing by the 

Subcommittee on Energy and Mineral Resources 

Subcommittee on Parks, Forests and Public Lands 

H.R. 1137 . "Old Faithful Protection Act of 1993" 

••••••••••••••• 

I would like to first commend the gentleman from Montana, Pat Williams, for his 

tenacity in pursuing this legislation. For at stake in this debate is the integrity of some of 

the most cherished natural features in the American landscape: the geysers of Yellowstone 

National Park. 

Last year, in my capacity as chairman of the Mining and Natural Resources 

Subcommittee, I had the privilege of managing the predecessor of H.R. 1137 through the 

Committee and the House. At that time, from certain quarters of this Committee we were 

continuously subjected to what almost appears to be their mantra: this is a takings, 

takings, takings, this is a takings, takings, takings, this is a takings, takings, takings. 

What I suspected then, and what I now know for a fact in my new capacity as 

chairman of the Surface Transportation Subcommittee, is that this is an allegation or 

convenience. It is uttered by some against natural resource protection legislation. I have 

yet to hear it when it comes to development proposals. 

Obviously, in order to build an interstate highway the potential for a taking of 

private property exists. Some would say that this concern is superseded by the fact that 

having a system of interstate highways is in the national interest. That national interest 

must outweigh other concerns. I would agree with this. 

But I would also as strongly maintain that protecting the geyser system of 

Yellowstone National Park from the encroachments of a few is in the national interest as 

well. 

We have an axiom in the Public Works and Transportation Committee that there 

are no Republican roads or Democrat roads. Here, in the Natural Resources Committee, 

I would say that Old Faithful is not a Democrat geyser or a Republican geyser. It is a 

national treasure, and it is Incumbent upon us to protect it not only for the benefit of the 

present, but future generations or Americans as well. 
10 

Mr. LEHMAN. We will recognize Mr. Williams. Mr. VENTO. Happy Earth Day, Mr. Chairman. 

Mr. LEHMAN. Happy Earth Day. 

STATEMENT OF HON. PAT Wll..LIAMS 

Mr. WILLIAMS. Thank you, Mr. Chairman. On this Earth Day 

1993 it is fitting that the Natural Resources Committee would have 

this legislation as the centerpiece in recognizing Earth Day and it 

is a fitting day to launch this Congress's efforts to protect America's first national park. I thank both Subcommittees for moving quickly to consider this 

legislation, which intends to protect the geothermal features of Yellowstone National Park. 

The continued evolution of the Yellowstone caldera undisturbed 

in a pristine environment is a true thermometer of the health of 

both that piece of Earth and really, I think, the soul of our society. 

In a very real way, our struggle to protect Old Faithful and the 

geysers, hot pools, and wonderful geothermal features of Yellowstone National Park reflects the basic understanding of Nature's 

importance and value. And this Committee's work to preserve these 

features is only a part of the commitment and cooperation necessary if America really means to protect our national treasures for 

future generations. The regular eruptions of Yellowstone's geysers and this Nation's 

investment in their preservation are as much a symbol of America 

and the American spirit as is the Statue of Liberty or the cowboy 

or that first step on the moon. As you know, the Old Faithful Protection Act received overwhelming bipartisan support here in the 

House early last Congress. And although it was hard for me to 

imagine anyone having trouble with the protection of the geothermal features of Yellowstone's first national park, the Senate in 

fact did not act on the House bill, and we are now left with no clear 

policy on the protection of Yellowstone's geysers and hot pools, the 

largest intact geyser basin left in the world. So we will try again 

in this Congress. The legislation we consider today is identical to the bill that 

passed the House last session. However, the situation this legislation addresses is not the same as it was a year ago. There has been 

action now by the State of Montana in actually allowing a withdrawal of geothermal water adjacent to Yellowstone. That permit- ting and withdrawal had not happened the last time these Committees met on this bill. 

And there is another situation that is different now. Just this 

month, the Montana Legislature adopted a water compact that will 

have a positive effect on protecting Yellowstone. 

So I anticipate that amendments reflecting this new set of realities will be considered before the legislation is adopted, and I remain open to those discussions and to any suggestions as to how 

we best proceed in defining the Federal role. I am sure we will 

hear discussions of changes from folks who will testify today, and 

we will need to look at all those suggestions carefully. There is a clear need for a Federal policy, and as we set that policy, we must seek to keep it direct, enforceable to States' rights, and it must be on a no-risk standard. Let me say that again. The 
11 

bill that finally becomes law must have an ironclad, copper-riveted, 

zero-risk policy toward Yellowstone National Park-period. And according to Secretary Babbitt, the President will sign nothing less. Let me discuss some of the changes that have occurred since the 

House action and how they affect this consideration. 

The Montana State-Federal compact provides less protection 

than this legislation in only one way, and that is in the handling 

of existing subsurface developments. Until just recently, the areas 

of concern adjacent to Yellowstone were essentially undeveloped, 

and there was already Federal action to prohibit development on 

Federal lands in Island Park, Idaho. The fact that no one had established a right to use hot water resources adjacent to Yellowstone made the articulation of a strong 

Federal policy of "no subsurface development" possible. Montana's 

inability to control permits below 35 gallons a minute exposed the 

flaw in my State's law and led to the recent permitting which I 

mentioned earlier of a 35-gallon-a-minute well in the Corwin 

Springs area just outside of Yellowstone in Montana. 

Now, the water compact which recently passed closes the 35-gallon-a-minute loophole, but it does not address the existing well that 

was permitted before the compact passed. 

I look forward to hearing from the owner of that well, who was 

kind enough to come at our recommendation again today and be 

here, and I also look forward to any recommendations that the 

Park Service may have on that specific point. 

One area that has not changed since last Congress and points toward the need for legislation is the degree of protection being offered by the other States adjacent to Yellowstone. Wyoming is essentially without any process to protect Yellowstone-no process. 

Idaho's legal framework is just now being defined and deals with 

a very narrow area of regulation. No clear State direction exists 

outside Montana. 

The U.S. Senate was interested in assuring an appropriate State 

role that maintains State control of cold water permitting. I believe 

the Senate's concerns can be addressed, and addressed without 

eroding the Federal mandate to protect Yellowstone. 

So, I say to both of my chairmen, it is important work that we 

are about on this Earth Day. A clear Federal policy regarding geothermal leasing is not just important to Yellowstone. There are 

other nationally significant geothermal resources in the United 

States. In fact, they are listed in the Federal Geothermal Steam 

Act. An aggressive approach for Yellowstone will set the stage for 

protecting all of those resources. One of the pastimes I have found that comes with this issue is 

the collection of dead geyser stories. When one follows the science 

of geothermal development, one comes across more dead geyser accounts than you might think. These stories and the number of 

them clearly show how fragile natural geysers are and how energy 

development does one thing to them: destroys them. 

I once was impressed, in talking with a gentleman from the Soviet Union, who was discussing the Soviet experience about the loss 

of geysers, and he was hoping that the few they had left could be 

maintained. All of a sudden he stopped short and looked over at 
12 

me and said, "Surely Yellowstone is protected, isn't it?" Well, I am 

hopeful that before this Congress is out we can proudly say "yes." 

Thank you. 

[Prepared statement of Mr. Williams follows:] 
13 

CONGRESSMAN PAT WILLIAMS 

April 22, 1993 

statement before 

NATURAL RESOURCE COMMITTEE 

JOINT HEARING 

THE OLD FAITHFUL PROTECTION ACT 

This is Earth Day 1993. It is a fitting day to launch this Congress' efforts to protect 

America's first National Park. 

I thank both subcommittees for moving quickly this Congress to consider my 

legislation regarding the protection of the Geothermal features of Yellowstone National Park. 

The continued evolution of the Yellowstone Caldera undisturbed , in a pristine environment, 

is a true thermometer of the health of both our piece of the earth and the soil of our society. 

In a very real way our struggle to protect Old Faithful and the geysers, hot pools and 

geothermal features of Yellowstone ref1ects our basic understanding of nature's importance 

and value. This committee's work to preserve these features is only a pa rt of the 

commitment and cooperation necessary if America really means to protect our national 

treasures for future generations. The regular eruptions of Yellowstone's geysers and this 

natio ns' investment in their preservation are as much a symbol of America and the American 

spirit as is the Statue of Liberty. the cowboy, or that first step on the moon. 

As you know, the Old Faithful Protection Act received overwhelming bipartisan 

support here in the House earl y last Congress. And, although it is hard to imagi ne someone 

having trouble with the protection of th e geothermal features of this nation's first National 

Park, the Senate, in fact, did not act on the House bill and we were left with no clear policy 

on the protection of Yellowstone's geysers and hot pools -- the largest intact geyser basin in 

the world. 

So we will try again this Congress. The legislation we consider today is identical to 

the bill that passed the House last session. However, the situation this legislation addresses 

is not the same as it was a year ago. There has been action by the State of Montana in 

actuall y allowing a withdrawal of geothermal water adjacent to Yellowstone. And just this 

month the Montana legislature adopted a water compact that has a positive effect on 

protecting Yellowstone. 

I anticipate that amendments ref1ecting this new set of realities will be considered 

before legislation is adopted. I remain open to those discussions and to any suggestions on 

how we best proceed in defining the federal rol e. I'm sure we will hear discussion of 

changes from folks who will testi fy today and we will need to look at all those suggestions 

carefull y. There is a clear need fo r a Federal policy , and as we set that policy we must 

seek to keep it direct, enforceable to State rights, and it must be on a "no risk" standard --

that is we must have an iron clad, copper ri veted , no risk policy toward Yellowstone Park. 

1 
14 

Let me discuss some of the changes that have occurred since the House action and 

how they affect this consideration . 

The Montana State/Federal Compact provides less protection than this legislation in 

only one way, and that is in the handling of existing subsurface developments. Until just 

recently the areas of concem .adjacent to Yellowstone were essentially undeveloped and there 

was already federal action to prohibit development on federal land in Island Park, Idaho. 

The fact that no one had established a right to use hot water resources adjacent to 

Yellowstone made the articulation of a strong federal policy of no subsurface development 

possible. Montana's inability to control permits below 35 gallons a minute exposed the flaw 

tn my state's law and lead to the recent permitting of a 35 gallon a minute well in the 

Corwin Springs KGRA. The Water Compact for Montana closes the 35 gallons a minute 

loophole but it does not address the existing well. I look forward to hearing from the owner 

of that well, who will testify here today, and any thoughts the Park Service may have on 

th is issues. 

One area that has not changed since last Congress, and points toward the need for 

legisiation, is in the degree of protection being offered by the other states adjacent to 

Yellowstone Park. Wyoming is essentially without any process to protect Yellowstone. 

Idaho's legal framework is just being defined and deals with a narrow area of regulation . 

No clear state direction exists outside of Montana. The Senate was interested in assuring an 

appropriate State role that ma int ains State control of cold water permitting. I beli eve the 

Senate's concerns can be addressed , and addressed without eroding the Federal mandate to 

protect the Park. 

It is important work we are about this Earth Day. A clear Federal policy regarding 

geothermal leasing is not just important to Yellowstone. There are other nationally 

significant geothermal resources. In fact, they are listed in the Geothermal Steam Act. An 

aggressive approach for Yellowstone will set the stage for protection of all these resources. 

One of the pastimes that comes with this issue is the collecting of "dead geyser" 

stori es. In following the science of geothermal development one comes across more dead 

geyser accounts than you might think. These stories clearly show how fragile natural geyser 

systems are, and how energy development does destroy them. I once was impressed by a 

gentleman from the Soviet Union who was discussing the Soviet experience with the loss of 

geysers and their hopes for preservat ion of those that remained. Abruptly he asked with 

some desperation , "Yellowstone is protected, isn't it?"' 

By the end of this Congress 1 hope we can proudly say yes. 

I look forward to th e testimon y t('day and to the work ahead. 

2 
15 

Mr. LEHMAN. Thank you very much. 

Mr. Hinchey, do you have an opening statement? 

Mr. HINCHEY. No, Mr. Chairman. 

Mr. LEHMAN. Thank you very much. 

PANEL CONSISTING OF DR. DENNIS FENN, DEPUTY ASSOCIATE DIRECTOR, NATURAL RESOURCES, NATIONAL PARK 

SERVICE, DEPARTMENT OF THE INTERIOR; CHRIS 

TWEETEN, ESQ., CIDEF DEPUTY ATTORNEY GENERAL, 

STATE OF MONTANA, AND CHAIRMAN, MONTANA RESERVED 

WATER RIGHTS COMPACT COMMISSION, ACCOMPANIED BY 

BARBARA COUSINS, LEGAL COUNSEL, MONTANA RESERVED 

WATER RIGHTS COMPACT COMMISSION, AND SUSAN 

COTTINGHAM, STAFF DIRECTOR; AND MARK S. SIMONICH, 

DIRECTOR, MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, STATE OF MONTANA 

Mr. LEHMAN. With that, we will move to panel number one, and 

I would ask them to come forward right now. Dr. Fenn, Mr. 

Tweeten, and Mr. Simonich. 

Gentlemen, without objection, we will place your entire statements in the record today and ask you to summarize them. 

We will begin with Dr. Fenn, the Deputy Associate Director for 

Natural Resources for the National Park Service. 

STATEMENT OF DR. DENNIS FENN 

Dr. FENN. Thank you, Mr. Chairman. We appreciate the opportunity to appear before you today, before these two Subcommittees, to testify on H.R. 1137, a bill to amend the Geothermal Steam Act 

of 1970. 

We strongly support the purposes of H.R. 1137 and will continue 

to work with Mr. Williams's staff as well as the Committee in an 

effort to develop specific language that fully protects the significant 

thermal features of Yellowstone National Park yet allows for the 

reasonable and efficient implementation by both the Secretary and 

the States of Montana, Idaho, and Wyoming. Mr. Chairman, the Geothermal Steam Act of 1970 was enacted 

following several unsuccessful attempts in earlier Congresses to 

provide a clear-cut framework to govern the commercial development of geothermal steam and associated resources underlying the 

public lands. It was intended to provide authority to the Secretary 

of the Interior to lease these Federal lands for the development of 

such resources, in much the same manner as authority existed to 

lease these same lands for development of oil and gas deposits. Certain lands, including national parks and monuments, were 

specifically exempted from leasing under the provisions of the 1970 

act. The Committee Report specifically stated that it was the intent 

of Congress that the resources of Yellowstone and other such geysers and hot springs not be exploited under this authority. 

Well, in response to the drilling of a geothermal well by the owners of Royal Teton Ranch in Park County, Montana, which borders 

Yellowstone on the north, Congress amended the act in 1988 to obtain information on the impact of this development and potential 

geothermal development in the Corwin Springs KGRA. 
16 

On the thermal features of Yellowstone, the legislation required 

the Secretary to make recommendations on whether acquisition of 

geothermal rights associated with the well would be necessary to 

protect the significant geothermal features of Yellowstone if the 

Secretary determined that development would pose a direct threat 

to Yellowstone's thermal features. 

Former Secretary Manuel Lujan transmitted the U.S.G.S. study 

to Congress in October 1991 along with the determination that ac~ 

quisition of the geothermal rights was unnecessary at that time because there appeared to be no direct threat to the park. He noted 

that the study identified no discernible threat to the significant 

thermal features of Yellowstone from the operation of the existing 

well, surface diversion of the natural flows from the La Duke Hot 

Spring, or the use of downhole heat exchangers in the well in the 

La Duke area. He further noted that additional wells drilled in the La Duke 

area would not cause adverse effects to the park's geothermal 

springs, provided that the combined production of all the wells was 

less than the natural rate of thermal water outflow and that each 

well produced from the same reservoir as the Royal Teton Ranch. 

The Secretary's forwarding of the study to Congress was not 

without controversy. The National Park Service's impact analysis, 

which the Secretary chose not to transmit as a part of the document, concluded that, "There is sufficient probability of connection 

between geothermal systems in the Yellowstone National Park and 

those in the Corwin Springs KGRA to warrant extreme concern 

over the development of geothermal resources in the KGRA." 

The NPS report cited the situation at the Island Park KGRA as 

a precedent and recommended exercising the same extreme caution 

in considering geothermal development for lands adjacent to sensitive park resources. 

While Congress was addressing the impacts on park thermal features, the National Park Service was also considering another 

equally important aspect of the issue; that is, water rights for the 

parks. The Montana statewide water rights adjudication has been 

pending since 1973. National Park Service claims for reserved and 

appropriative water rights were filed in 1982. Negotiations between 

Montana and the Service occurred during the period of 1984 to 

1986 but broke down when the parties could not agree on geo~ 

thermal protection and the protection of certain existing Statebased water rights. At Montana's request, intensive negotiations resumed in early 

1992 and recently produced a draft compact that we have heard 

today has recently passed the Montana State Legislature. 

This compact offers an opportunity to obtain without litigation 

substantial protection of NPS reserved water rights and resources 

at three National Park System units in Montana, and an agreement to complete negotiations on two additional parks. The compact recognizes the Federal reserved water right in the geothermal 

resources, including groundwater, within Yellowstone National 

Park. 

Of particular importance to today's discussion, the compact provides protection to the hydrothermal resources of Yellowstone National Park by precluding development of geothermal water on 
17 

lands outside the park and providing restrictions and monitoring 

and inventorying of nongeothermal groundwater development. 

Mr. Chairman, let me conclude by expressing my deep appreciation to those individuals in the State of Montana who have worked 

so professionally and expeditiously in negotiating this water rights 

compact for the National Park Service. To have completed this 

process in only one year is a significant achievement. 

Secondly, as Secretary Babbitt indicated before the Full Committee on February 16 of this year, we wholeheartedly endorse Mr. 

Williams's efforts to protect the natural wonders of Yellowstone 

National Park and applaud his attention to this matter. 

Finally, let me say that we appreciate your Subcommittees' interest in this matter and your willingness to provide early hearings 

on this important legislation. We would look forward to working 

with you and Mr. Williams in developing the final bill language. 

I would like to say also that our position at this point is that we 

would request that language be developed to provide provisions to 

the bill to implement the Secretary's responsibilities, including provisions to allow State programs for the management of groundwater and geothermal resources on non-Federal lands adjacent to 

Yellowstone, so long as they are approved by the Secretary; 

Two, to adopt the Montana National Park Service water rights 

compact and its park protection language as a groundwater management program, as a State groundwater management program; 

Three, to recommend a time frame and mechanism, including authorities, as necessary, for implementing the results of the fouryear study required in subsection 3 [b] of the current bill; and 

Four, to provide procedures for managing any potential claims alleging deprivation of property rights. 

We request that the Committee defer action on H.R. 1137 until 

we can present this language and a report which we will transmit 

to the Committee shortly. 

Thank you very much. I would be pleased to respond to your questions. 

[Prepared statement of Dr. Fenn follows:] 
18 

STATEMENT OF DR. DENNIS FENN, DEPUTY ASSOCIATE DIRECTOR, NATURAL 

RESOURCES, NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR, 

BEFORE THE SUBCOMMITTEES ON NATIONAL PARKS, FORESTS AND PUBLIC 

LANDS, AND ENERGY AND MINERAL RESOURCES OF THE HOUSE COMMITTEE ON 

NATURAL RESOURCES, ON H.R. 1137, A BILL TO AMEND THE GEOTHERMAL 

STEAM ACT OF 1970 AND FOR OTHER PURPOSES. 

April 22, 1993 

Mr. Chairman, thank you :or the opportunity to appear before 

these two Subcommittees to testify o n H.R. 1137, a bill to amend 

the Geothermal Steam Act of 1970 . 

We strongly support the purposes of H.R. 1137 and will 

continue to work with Mr. Wil l iams' staff as well as the 

Committee i n an effort to deve lop specific language that fully 

protects the significant ther~a l fe atures of Yellowstone National 

Park ··et allows for r easonabl e a nd efficient implementation by 

both : e Secretary a nd the states of Montana, Idaho, and Wyoming. 

This l anguage will i nc lude p rovisions to: ( 1) implement the 

Secretary 's responsibilities, :ncluding provisions to allow state 

programs for the management of groundwater and geothermal 

resources on non-Federal lands adjacent to Yellowstone so long as 

they a re approved by the Secretary; ( 2) adopt the MontanaNational Park Servi ce water r~ghts c ompact and its park 

protection language as a state g roundwater management program; 

(3) recommend a time frame and mechanism, including authorities 

as necessary, for implementing the results of the 4-year study 

required in subsection 3(b); a nd ( 4) provide procedures for 

~anag ing any pote nt ial c l a1ms ~l leg ng depriva tion of property 

rights. We request that the Committee 1efer a ction on H.R. 1137 

until we can present this language 1n a report that we will 

transmit to the Committe e shortly. 
19 

H.R. 113 7, if enacted, would further amend the Geothermal 

Steam Act of 1970 by adding two new sections. Section JO would 

direct the Secretary of the Interior to prohibit any development 

of new geothermal wells, expansion of existing wells, or 

construction or expansion of facilities related to geothermal 

production within the Corwin Springs Known Geothermal Resources 

Area (KGRA), including on lands not owned by the Federal 

government, because such activities would result in adverse 

effects on significant thermal features in Yel lowstone National 

Park. Section 31 would prohibit the Secretary fr om issuing any 

lease under this Act for Federally-owned lands within a 15-mile 

radius of the t oundary of Yellowstone National Park. This would 

not apply to the Island Park KGRA, which is loca t ed wi thin this 

zone in the stat e of Idaho ~nd is the sub ject of similar 

prohibitions enacted by Congress in 1984. 

Section 3 of H.R. 1137 would place a moratorium on any 

development of new geothermal ~ells, expansio n of any existing 

wells, or construction or expansion of facilities related to 

geothermal production o n non -federa l ly owned l a nd s and waters, 

including the non-Federal ca nds and waters in the Island Park 

KGRA, within a :s-mi le radius of the boundary of Yellowstone 

until 180 day s fo llowlng the submission to Congress of a fouryear study on the i mpact of pot en t i a l geotherma l development on 

the thermal features o f Ye llowstone National Park. The s tudy 

would be performed by t he Nationa l Park Serv ce, in consultation 

with the Forest Serv ice and the U.S. Geological s urvey a nd would 

not include lands within the Corwin Springs KGRA or Federal lands 

within the 15 -mil e radius cited earlier. 

Mr. Chairman , the Geothermal Steam Act of 197 0 was enacted 

following several unsuc cessful attempts in earlier Congresses to 

provide a c lear-cut tramework to oovern the commercial 

development of geothermal steam and assocla ted geothermal 
20 

resources underlying the public lands. It was intended to 

provide authority to the Secretary of the Interior to lease 

Federa l lands for the development of such resources in much the 

same way that authority existed to lease these same lands for the 

development of oil and !as deposits. Certain lands, including 

national parks and monuments, were specifically exempted from the 

leasing provisions of the 1970 Act. Commi~~ee reports 

specifically stated that it was the intent of Congress that the 

resources of Yellowstone National Park or any other such geysers 

or hot springs not be xploited under this authority . 

In response to the drilling of a geothermal well by the 

owners of the Royal Teton Ranch in Park county, Montana, which 

borders Ye llowstone on the north, Congress amended the Act in 

1988 to obtain information on the impact of this development and 

potential geothermal development in the Corwin Springs KGRA on 

the thermal features of Yellowstone. That legislation required 

the Secretary to make recommendations on whether acquisition of 

the g eothermal rights associated with the well would ~e necessary 

to protect the significant thermal resources of Ye llowstone if 

the Secretary determined ~hat devel opment would pose a direct 

threat to YeLlowstone's thermal fea tures. 

Former Secretary Manuel Luja n transmitted the USGS study to 

Congress in October 1991, along with a determination that 

a cquisition of the geothermal rights was unnecessa ry at that 

time, because there appeared to be no direct threat to the park . 

He noted that the study identified no discernible risk to the 

significant thermal features o• el lowstone from (1) the 

operation of an existing geotr· ,rmal well drilled by ~he Royal 

Teton Ranch in t he La Duke Hot Spring area of the Corwin Springs 

KGRA at rates up to 25 liters per second; (2 ) s urface diversion 

of the present natural flow of La Duke Hot Spring; or (J) from 

the use of downhole heat exchang ers in wells in the La Duke area . 

He further noted that prod uction from a dditional geothermal wells 
21 

drilled in the La Duke area would not cause adverse effects on 

the park's thermal springs, provided that the combined production 

from all wells was less that the natural rate of thermal water 

outflow (50 to 70 liters per second) and that each well produced 

from the same reservoir as the Royal Teton Ranch geothermal well. 

The Secretary's forwarding of the study to Congress was not 

without c ontroversy. The National Park Service's Impact 

Analysis, which the Secretary chose not to transmit as a part of 

the USGS document, concluded that "there is sufficient 

probability of connection between geothermal systems in 

Y(ellowstone) N(ationa l ) P(ark) and those in the (Corwin Springs) 

KGRA to warrant extreme concern over deve lopment of geothermal 

resources in the KGRA." The NPS report cited the situation at 

the Island Park KGRA as a precedent and recommended exercising 

extreme caut ion in considering geothermal development for lands 

adjacent to sensitive park resources. 

While Congress was ada ressing impacts on park thermal 

features , the Nati onal Park Service was also considering another 

equally important aspect o f the issue -- water rights for the 

parks. The ~ontana State-wide Water Rights Adjudication has been 

pending since 1973. National Park Se r vice claims for reserved 

~nd appropriative wat e r rights were filed in 198 2 . Negotiations 

.etween Montana and the Se rvice occurred during the period of 

1984 through 1986 but broke down when the parties c ould not agree 

on geothermal protection and the protection of certain existing 

State-based water rights. At Montana's request , i ntensive 

negotiations resumed in early 1992 and recentl y produced a draft 

comoact that is now embodied in a bill tha t is pending before the 

Montana legislature. 

The compact offers 1n opportunity to obtain, without 

litigation, substantial protectlon of NPS reserved water rights 

and resources at thr ee National Park System units i n Montana and 
22 

a commitment to complete a agreement on two additional parks. 

The compact will also recognize a Federal reserved water right in 

the geothermal resources, i ncluding ground water, within 

Yellowstone National Park. Of particular importance to today's 

discussion, the compact provides protection to the hydrothermal 

resources of Yellowstone National Park by precluding development 

of geothermal wa~er on lands outside the park and providing 

restrictions on and monitoring and inventorying of non-geothermal 

groundwater development . 

Montana's legislature, which meets every two years, is 

slated to adjourn tomorrow. I f the measure passes and is 

approved by the governor, the compact will be submitted to the 

Departments of the Interior and Justice for Federal a pproval" 

Mr. Chairman, let me co nclude by expressing my deep 

a ppreciation to those individuals in the State of Montana who 

have worked so professi onally and expeditiously in negotiating 

this water rights c ompact ~ith the National Park Service. To 

have nearly completed t ha t process in only one year is a 

significant achievement . Secondl y, as Secretary Babbitt 

indicated before the f ul l Committee on February 16th of this 

year, we wholehear~edly endorse Mr. Williams' efforts to protect 

~he natural wonders of Ye llowstone National Park a nd applaud his 

a ttention to this matter. ?inally, let me say that we appreciate 

your Subcommittees' i nterest i n this matter and your willingness 

to schedule early hearings on this importa~t legislation. We 

look forward to working with you a nd Mr. Williams in developing 

final bill language. I would be pleased to respond to your 

q ue stions at this time. 

5 
23 

Mr. LEHMAN. Thank you very much. 

Mr. Tweeten? 

STATEMENT OF CHRIS TWEETEN 

Mr. TWEETEN. Thank you, Mr. Chairman. Members of the Subcommittee, my name is Chris Tweeten. I am the Chief Deputy At- torney General for the State of Montana, and I also serve as the 

chairman of Montana's Reserved Water Rights Compact Commission. With me today are: Barbara Cousins, the legal counsel for the 

Compact Commission, who is seated directly behind me; and Susan 

Cottingham, the staff director for the Compact Commission. And 

with the Committee's indulgence, I may, in the event questions are 

asked, refer to some assistance from them in responding to your 

questions. 

The Montana Reserved Water Rights Compact Commission was 

established by the Montana Legislature in 1979 and has recently 

completed a compact, as you have heard, with the National Park 

Service. I want to talk briefly about the context in which that 

agreement was reached. 

As you have heard, Montana has a statewide water adjudication 

program, which has been in existence since 1979 and which is proceeding basin by basin to adjudicate all water rights claims in the 

State of Montana. That adjudication program includes specifically 

Federal reserved water rights as well as water rights existing 

under State law. 

When our legislature enacted this program in 1979, it recognized 

the special nature of Federal reserved water rights and the complexities that are involved in quantifying those Federal reserved 

rights in a litigious framework, and the legislature created a special commission, composed of nine members, which was given the 

task of seeking to reach negotiated settlements of the Federal reserved water rights claims in Montana not only for Federal agen- cies like the National Park Service but also for Montana's seven Indian reservations. 

The commission is made up of appointees by the Governor of the 

State of Montana, appointees by the State legislature, and one appointee by the Montana attorney general. 

Over the past year and a half the commission has been meeting 

and negotiating intensively with the negotiating team made up of 

our Federal counterparts from the National Park Service and the 

United States Department of Justice, in an effort to quantify Montana's Federal reserved rights for the National Park Service that 

exist in Montana. And we have reached, as you have heard, an 

agreement with the National Park Service for a quantification of 

those rights for Glacier National Park, the Big Hole National Battlefield, and Yellowstone National Park. 

I am pleased to report this morning that as of Tuesday the Montana Legislature has completed action on that compact, has ratified 

it in a form that is acceptable to the Federal negotiating team, and 

that bill is going to the Governor's office for signature, and we have 

been assured that the Governor will properly act on it. So, from the 

State's end, the action on the compact is virtually complete, as I 

sit before you today. 
24 

I am pleased to testify this morning on Congressman Williams's 

bill and to urge you, in your consideration of that bill, to take into 

consideration the hard work that has gone before between the National Park Service and the State of Montana for the reaching of 

this compact, which I think is truly a historic example of cooperative Federal-State relationships, and to consider amendments to 

the bill that will accept Montana's approach as an approved Federal program for State program for the protection of these Federal 

resources within the State of Montana. 

Just briefly, the details of the compact are set forth in my written statement, and rather than repeat them in specific, I would 

just like to summarize them for you. 

Montana has a statute dealing with the subject of controlled 

groundwater areas in which the State is allowed to designate areas 

where groundwater withdrawals are to be regulated above and beyond the regulations that apply statewide. And the commission and 

the Park Service believed, and believe now, that the creation of a 

controlled groundwater area surrounding the portion of Yellowstone National Park that borders the State of Montana and is 

found in the State of Montana can provide adequate protection for 

the geothermal resources in Yellowstone Park by protecting the 

Federal reserved water right that is necessary for those features to 

be in existence. 

The controlled groundwater area has two parts. The boundaries 

of the groundwater area were devised by reference to a report of 

the working group of scientists who were designated by the Park 

Service and the State jointly to report and bring recommendations 

back to us with respect to the boundaries of a controlled groundwater area. That working group, in turn, relied heavily on studies 

that have been done by the United States Geological Survey and 

by the National Park Service, pursuant to congressional authorization. 

They came back and designated for us what they believed to be 

the significant boundaries that ought to be recognized for a controlled groundwater area. The groundwater area is broken into two 

parts. one part in which one might reasonably expect to encounter 

the discharge of geothermal water; and a second subarea in which 

it was believed that cold water recharge, which was important to 

the geothermal system, was present. 

The initial restrictions within the controlled groundwater area 

apply to all withdrawals of groundwater with a priority date on or 

after January 1, 1993. As of that date, all wells, once the compact 

goes into effect, will require a permit under State law, including 

those wells under 35-gallons-a-minute. And as Congressman Williams has pointed out, without these restrictions, these small wells 

would be allowed to develop without permitting by the State of 

Montana. 

The Montana Department of Natural Resources and Conservation will maintain jurisdiction to modify any permit for cold water 

if the character changes or if the cumulative development within 

the cold groundwater area requires that additional restrictions be 

put into place. The initial restrictions that exist within the controlled groundwater area are that withdrawals of groundwater with a tempera-
25 

ture of greater than 85 degrees Fahrenheit are not permitted unless the Department of Natural Resources finds, on recommendation from a technical oversight committee-about which I will 

speak briefly in a minute-that the hot water that is being produced is not hydrologically connected to the hydrothermal system 

within the park. 

Water between 60 degrees and 85 degrees is treated like cold 

water if it meets certain specified criteria that are set forth in the 

compact for identifying water in that temperature range that is not 

believed to be geothermally connected to the resource in the park. And, as I said, no restrictions are initially placed on the development of cold water within the controlled groundwatei." area. 

The compact provides for the creation of a five-member technical 

oversight committee, whose members will be appointed by the National Park Service, by the Department of Natural Resources and 

Conservation, by the Montana University System, by the United 

States Geological Survey, and then one additional member who is 

selected by the initial four members who are appointed. 

That oversight committee will have responsibility for conducting 

continuing oversight over the controlled groundwater area for considering studies that are developed and evidence that is developed 

in the controlled groundwater area and for making recommendations on changes that need to be made in the boundaries of the 

groundwater area or changes in the restrictions that are set forth 

in the compact with respect to groundwater development within 

the area. 

The compact provides for an initial review of the controlled 

groundwater area within one year after the receipt of a report 

inventorying groundwater development within the controlled 

groundwater area. Subsequent review will take place at a minimum every five years, and more often if the level of development 

within the groundwater area requires that that take place. 

I want to talk briefly about funding. It was agreed by the National Park Service and the State of Montana that it would not be 

fair or appropriate for the taxpayers of the State of Montana to pay 

the tab for the protection of Yellowstone Park. Montana has, as you 

probably know, less than 900,000 residents, and the national park 

being a national resource, it was agreed between the State and the 

National Park Service that it would be appropriate for the Federal 

Government to provide the financial resources to support the administration of a controlled groundwater area. And the efforts are 

already beginning to provide the appropriation that will be necessary for the State to administer that controlled groundwater 

area. 

We believe that initially an appropriation of $2.3 million will provide the seed money that is required in order to administer that 

controlled groundwater area for the foreseeable future. The compact provides that we can come back to Congress and ask for further appropriations in the event that circumstances change and 

further resources need to be devoted to the protection of the geo- thermal resources in Yellowstone Park. We recognize that Yellowstone Park is an important national resource, and over the past year and a half the State of Montana has 

spent a considerable amount of money and devoted a considerable 
26 

amount of time to the creation of this compact, which has as one 

of its centerpieces the protection of geothermal resources in Yellowstone National Park. 

The State now would ask to be allowed to work with Congress 

to integrate this innovative and cooperative State-Federal program 

into the efforts that are before you in Congressman Williams's bill 

to protect the geothermal resources in Yellowstone Park. We urge 

Congress to pass a bill out that takes into consideration the work 

that we have done in Montana, that encourages other States to engage in a similar process to try to develop a State-Federal cooperative program for the control of groundwater resources outside the 

national park which may have an effect on Federal resources in the 

park, and we ask that the funding be provided to implement the 

compact in a way that the State and the National Park Service 

agree. We would like to express our appreciation, finally, to our counterparts in the National Park Service and the Justice Department, 

who have worked long and hard to try to reach this historic agreement with the State of Montana, and we thank you for the opportunity to come before you and testify with respect to it. I would be ha~py to answer your questions. [Prepared statement of Mr. Tweeten follows:) 
27 

TESTIMONY OF CHRIS TWEETEN REPRESENTING 

THE STATE OF MONTANA ON H.R. 1137, 

"THE OLD FAITHFUL PROTECTION ACT OF 1993" BEFORE 

THE HOUSE NATURAL RESOURCES SUBCOMMITTEES ON ENERGY AND MINERAL 

RESOURCES AND NATIONAL PARKS, FORESTS AND PUBLIC LANDS, 

APRIL 22, 1993 

Chairman Lehman, Chairman Vento and members of the subcommittees, 

my name is Chris Tweeten . I am the Chief Deputy Attorney General 

for the State of Montana and the Chairman of the Montana Reserved 

Water Rights Compact Commission. With me today are Barbara 

Cosens, legal counsel for the Compact Cornmis~ion, and Susan 

Cottingham, staff director for the Compact Commission. The 

Compact Commission was established by the Montana Legislature in 

1979 to negotiate the settlement of reserved water rights as part 

of the state-wide general stream adjudication. It is composed of 

nine memb.,rs, four appointed by the Governor: two appointed by 

the President of the Senate; two appointed by the Speaker of the 

House; and one appointed by the Attorney General . 

Over the past year and a half the Compact Commission, and 

negotiating teams representing the National Park Service and the 

United States Department of Justice, have been engaged in 

negotiations to settle the quantification of the federal reserved 

water right for National Parks in Montana, including Glacier 

National Park, Big Hole Battlefield National Monument, and the 

portions of Yellowstone National Park in Montana. The 

negotiation process included extensive public involvement in tho areas affected by the agreement. The Compact agreed to by the 

negotiating teams is currently before the Montana legislature for 

ratification. 

I am pleased to be here today to testify on the portion of the 

Compact that addresses the federal reserved water right to the 

water necessary to preserve the hydrothermal system within 

Yellowstone National Park. The State of Montana and the National 

Park Service were able to build on the groundwork laid by 

Congress to design a cooperative state-federal program for the 

protection of the hydrothermal resources of Yellowstone National 

Park from adverse groundwater development in Montana. 

The State of Montana's goals in entering compact negotiations were to quantify federal reserved water rights as part of the 

state-wide general strean• adjudication, protect valid state-based 

water rights, and to maintain state control over resources outside the boundary of Yellowstone National Park. Concerns had 

been raised over the impact of a federal ban or moratorium 

pertaining to geothermal development on local control of 

groundwater use. 

The State of Montana recognizes that a federal reserved water 

1 
28 

right exists to the extent necessary to fulfill the purposes of 

tho ro~orvation of Yoll cwstcn~ N~Tinn~l P~rk . ~hA r.ompact 

Commission and the National Park Serv l(;e cyr:ee Lhat Congress 

intended to reserve the water necessary to preserve the 

hydroth .. rmal fo,>at ures wl t.h .i. n t.h"' ..T"""rv"'d 1 i'lnd of the Parle. 

However, quantification of the water ne(;e::~:;ary tu pr:ese.t:ve Lhe 

hydrothermal system within the l'arlt appeared to the Compact 

Commillllion to hP. ditticult, if not impossible. 

Rccogni2ing tho importance of the hydroth~rmal faaturo~ of 

Yellowstone to both the State or Montana and the united States, 

the State and the Park Service have agreed to establi~h a controlled groundwater i'lTP.i'l nnd<>t: ><t.n te law ndjacent to 

Yellowstone National Park in Montani1. Tht: mutuel goals are to 

allow no impact to the hydrothermal system within the Park, allow rAnsonnhle do;,vP..lopment of groundwater adjacent to the Park, 

provide i1 JUt:<Ut::l [uL· systematic study of groundwcter development, ~nd ~llow flexibility based on increas9d undQr~tanding of tho 

impact of groundwater use and of the hydrothermal system itself. 

Th& following ~estimony is a summary cf the p~r~inns of the ~ational Park service -- Montana Compa(;t ~e:t:t~:~ining Lo the 

Yellowstone Controlled Groundw~ter Area. 

The initi~:~l buumld.d .es of the Controlled Groundwater Area, 

divided into Subarc~R 1 and J, are illustratGd on the enclo~gd 

map. The boundaries were selected on recommendation by a TeduliCdl .Wo:cking Group contracted by the National Park Service. 

That group reli01d hQavily on studi.,s dono;> by tho;> u . S .G.S . l'lnrl .- h,., 

NPS pursuant to Congressional authorization. 

Subarea I represents the most U kA 1 y ilrAa ot discharge ot hot 

water frol'(l Yellowstone National Park. Infurm<>Llon used to 

delineate Subarea I included f~ult location, hot epring~ and 

evidence of the distribution ot impact in developed geothermal 

fields. Subarea II rl:!pre:>enL:l. Lhe most likely area of cold water 

recharge. Bound~ries !allow either the drain~ge divide or the 

out.crop p.:~t tF>rn ot a regional aquifer known as the Madison Group. 

Chemical evidem.:e ::;uygeats that this Group may be the source of come of the water in the hydrothGrrnal system within the Park. 

Montan~ follvwo; Lh<o doctrine of prior appropriation. Under the 

State ' s permit system, the priority date of a water right is the 

date on which the permit is issued. The initial restrictions 

within the Controlled Groundwa~er Area apply to groundwater 

appropriations with a priority date on or after Jil01111ry l, l'IY3. 

All wells after January 1. 19~3 must obtaizi "' pt:z:utll Lo appropri~te w~ter. Without these controls, small wQlls would be 

exempt from permi.t.ti ng under state law. The United States may be an objector to any appllc.;al..lon fo>: th"' appropriation of 

groundwater within the Controllgd Groundwater Area on the basis 

t.h;ot. T.hP. appropriation is in violation of applicable 

7. 
29 

restrictions. The Montana Department of Natural Resources and 

Conservation (DNRC) will maintain jurisdiction to modify any 

permit if the character of the water produced changes or the 

cumulative effect of development poses a threat to the Park. 

In addition, the following initial condi t i ons apply: 

Groundwater of greater than 85'F cannot be developed within 

the Area unless the Technical Oversight Committee (TOC) 

described below recommends that the development will produce 

water that is not hydrologically connected to the 

hydrothermal system within the Park. The recommendation by ~he TOC goes to the DNRC for a hearing and can only be 

rejected on a contrary showing by clear and convincing 

evidence. The water user, United States, State and other 

affected parties may present evidence. DNRC rulings are appealable on the record. An approved development must 

undertake monitoring recommRnded by the TOC. 

Water between 60 and 85'F is treated like cold water if it 

meeLs the following criteria chosen to detect any 

hydrothermal contribution: 

the temperature is less than or equal to that 

expected for the depth of production given a nnrmal thermal gradient; 

the chloride content is less than 10 ppm; and 

the production zone does not occur within the 

geologic formations known as the Madison Group. 

Water that does not meet each of these criteria is treated 

like hot watsr. 

Due to the low level of current development and the Wildern~ss s~atus of a large portion of the recharge 

subareas, the State of Montana and the Park Service agreed 

that further restrictions on water of less than 60•F are not 

currently necessary to prevent adverse effect on the 

hydrothermal system within the Park. 

To assess the level of development adjacent to the Park, all 

groundwater appropriations with a priority date before the 

effective date of ~he compac~ will be invomtor.i.ed over a three 

year period by the Montana Bureau of Mines and Geology. The 

inventory will include such information as well depth, water or pump level, water temperature, and for select wells, water 

chemistry. Following the inventory, the Bureau will sample wells on n continuing basis selected in consultation with thR Technical 

Oversight Committee . The Bureau will maintain a database on the 

3 
30 

Controlled Groundwater Area. The information in the database 

will b~ available to the public. 

A five~member Technical Oversight Committee will be established 

to• review applicationa for development of hydrothermal water; 

review the boundaries and restrictions; review scientific 

evidence relating to the area; assess the cumulative impact of 

all development in the area; review changes in the groundwater 

and hydrothermal systems revealed by inventory and analyses done 

by the Bureau of MinE's and GP-ology; advise the DNRC reqarding 

administration; and consult with the Bureau of Mines and Geology on inventory and sampling programs. 

The Committee members will include: one appointed by the National 

Park Service; one appointed by the U.S .G.S.; one appointed from 

the Montana University system by the Montana State Geologist; one appointed by DNRC; and one selected by the other four members. 

Each m~mber will serve a five-year term, subject to renewal. 

Recommendations to issue a permit for development of hydrothermal 

water or to modify boundaries or restrictions, require a supe.rmajority of 4 to l. 

Initial review by the TOC will take place within one year of 

receipt of the inventory report done by the Bureau of Mines and 

Geology. Subsequent review will take place every five years or following th~ issuance of 75 permits to appropriate water within 

the Controlled Groundwater Area, whichever comes first. Review 

may also be initiated on request by the State or the United 

State ... 

The TOC will make any recommendations on modification of the Area 

boundaries or restrictions to DNRC. Recommendations will be 

based on a determination by the TOC that modification is 

neeesaary to prevent adverse effect to the hydrothermal system 

within the Park. Prior to implementation of any recommendations, 

DNRC will hold a hearing in which the State, the United States, 

and any potentially affected party may preeent evidence to rebut 

the recommendations by the TOC. Any decision by DNRC is 

appealable on the record. 

The Commission and the Park Service Negotiating team have agreed 

that the population of. Montana ( l~ss than one million} should not 

bear the entire cost of implementing these innovative measures to 

protect this national treasure. The State seeks $2.3 million in 

federal funding 1:.0 es"tablish i1IIc1 achn.Lnlster the Areil and to fund 

the inventory and ongoing sampling program. It is our estimate 

that these funds would be sufficient to implement the program in 

perpetuity unless unknown circumstances arise or development 

pressure adjacent to the Park undergoes a significant increase. 

Nevertheless, we recognize that protection of the hydrothermal resources within Yellowstone National Park is of considerable 

4 
31 

importance to the State of Montana. Over the past year and a half the State of Montana has spent over $180,000 on Commission 

and DNRC staff time to study the establishment and implementation 

of the Controlled Groundwater Area . In addition, the State of 

Montana has agreed to (1) require drillers of new wells to report wat~r temperature; and (2) to prohibit any permi tting of wells 

that produce water in excess of 60•F until January 1, 1996. 

These interim measures were provided to protect the hydrothe rmal 

system prior to the receipt of funding . 

The State of Montana now seeks to work with Congress to integrate 

this innovative and cooperative state-federal program with the 

efforLs of Congress to maintain the integrity of this important 

national resource. On behalf of the State of Montana, I urge the 

committees to (l) amend H.R. 1137 to replace the proposed 15 mile 

moratorium in Montana with endorsement of the controlled 

Groundwater Area established by the National Park Service -- Montana Compact; and (2) ask that the funding necessary to 

implement the Controlled Groundwater Area be included in the FY 

94 Interior appropriations bill. 

The fact that state and federal government can work together to 

solve resource problems in the west is reflected in the agreement 

between the State of Montana and the National Park service and in 

your request that we testify on that agreement today. Thi s truly 

indjr.ates a new era in federal-state cooperation. 

We would like to express our appreciation for the efforts of the 

NaLional Park Service -- Department of Justice nogotiating team 

and technical staff, the Technical working Group and members of 

the public who have worked long and hard to design a solution 

that protects the hydrothermal system within the Park while 

allowing local water users an opportunity to be heard . 

Thank your for the opportunity to testify. I would be happy to answer any questions. 

5 
32 

Mr. LEHMAN. Thank you very much. Mr. Simonich? 

STATEMENT OF MARKS. SIMONICH 

Mr. SIMONICH. Thank you, Mr. Chairman, Chairman Vento, Representative Williams, Representative Hinchey. My name is Mark 

Simonich. I am the director of the Montana Department of Natural 

Resources and Conservation, and I am here today on behalf of the 

department to give our strongest support for the compact that has 

been negotiated between the Park Service and the State of Montana. The Department of Natural Resources is the department in 

State Government that is responsible for administering the water 

use laws of the State of Montana. One aspect of that is the controlled groundwater area statutes that we have on the books. In 

that regard, the department has worked very closely with the compact commission during the negotiating process to insure that we 

will have a workable administrative system set up within the compact, both in terms of the groundwater but also in terms of the 

water rights that were negotiated, so that we do protect all existing 

water rights. 

AB Mr. Tweeten expressed, one of the major parts of this compact 

from the department's standpoint certainly is the creation of the 

Yellowstone Controlled Groundwater Area. We are confident that 

the controlled groundwater area that has been set up with this 

compact is well within the general groundwater statutes, controlled 

groundwater statutes for the State of Montana, and we are eager 

to implement the compact. 

AB Mr. Tweeten discussed, the compact, in the negotiations they 

reached agreement on the funding for this controlled groundwater 

area. It will be my department that will be responsible for implementing this, for establishing the controlled groundwater area, and 

for administering it. We recognize that there may be a lag time in 

receiving any Federal funding. The compact took that into consideration and built in some interim measures that will be taken, and 

the department is fully prepared to take those interim measures. 

Last week, we went to the preconference committee in the State 

legislature and requested an appropriation for some seed money 

from the Resource Indemnity Trust Fund in Montana so that the 

DNRC can start implementing this as soon as the compact is ratified. 

We fully support the compact. We are going to do everything in 

our power to implement it. We don't want to give the impression 

that we are going to sit and wait and see if we get Federal funding 

before anything takes place. We certainly will need some Federal 

funding. We look forward to that. But we are committed to implementing of the compact. One of the things that I think the DNRC 

feels most strongly about the compact is that we believe that this 

compact embodies a very strong commitment to State administration and jurisdiction of its natural resources. 

The people of the State of Montana feel very strongly about Yellowstone Park. They love it, just like everyone else in the Nation 

does, and they believe that they want to be part of the process of 

protecting the park. 
33 

We believe that the compact that was reached in negotiations 

with the National Park Service and the appointed and elected officials from the State of Montana, all of the people that were involved in public meetings and public hearings around the State, 

shows that this compact is truly a made-in-Montana solution to a 

very potentially disastrous problem. 

The DNRC supports it fully. We would encourage you, as you 

move forward in your deliberations on Congressman Williams's bill, 

to try and work to implement the compact and put it in place at 

least for the portions of Montana so that the solution that has been 

reached jointly between the State and Federal Governments can be 

allowed to work. I also will answer any questions you may have. Thank you. 

[Prepared statement of Mr. Simonich follows:] 
34 

STATEMENT OF MARK SIMONICH 

DIRECTOR, MONTANA DEPARTMENT OF NATURAL RESOURCES 

AND CONSERVATION on H.R. 1137, "THE OLD fAITHFUL 

PROTECTION ACT OF 199.3" 

BEFORE THE HOUSE NATURAL RESOURCES SUBCOMMITTEES 

ON ENERGY AND MINERAL RESOURCES AND 

NATIONAL PARKS, FORESTS AND PUBLIC LANDS . APRIL 22, 1993 

The Department of Natural Resources and Conservation s~rong1y suppor~s ~he Compact negoti~ted between the State of Mon~ana and the National Park Service. The DNRC has 

responsibility for administering the water use law in Montana. 

Consequently the DNRC worked closely with the Reserved Water 

Rights Compact Commission to set up workable administrative 

systeme: for each unit of the National Park System t.hat will 

provide effective water management with the minimum burden to 

water right users. 

One of the major areas of DNRC involvement will be with the 

Yellowstone Controlled Groundwater Area. The controlled 

groundwater area created by this Compact fits well with the 

general controlled groundwater area statute under the Montana 

Water U:se Act. 

The Compact provides that the federal government will 

reimburse the State for costs associated with ~he establishmen~ 

of the Controlled Groundwater Area. The State is not in a position ·to b"' able to absorb all of the costs associated with 

this activity and so is very grateful to the National Park 

Service for the support they have given in this regard. The 

compact provides for interim mea~ures pending receipt of federal 

funds. 

I want to convey to this Committee in the strongest manner possible that it is the intent of the DNRC to do everything in 

its ability to implement the terms o£ this Compact. Be caus" of 

the anticipated lag time in receiving federal funding, the DNRC 

has already submitted a request to the Montana Legislature for 

initial funding to establish the controlled Ground Water Are~. 

Although we do not yet know the outcome of that request we are fully comrnitt~d to doing as much as possible with whatever funds we have available . 

The Compact acknowledges that the United States "r£ccivee: 

substantial benefit from the establishment and administration of 

the Yellowstone Controlled Groundwater Area, and that the 

national and international public benefit extends far beyond the 

boundaries of the state." Because of this the National Park 

Serv·ice ha~ agreed that the State should. be reimbursed for its 

costs . On behalf of the DNRC, I ask this Committee to concur in 

that sentiment and recommend that S2 . 3 million be appropriated to 

reimburse ~he sca~e for establishing and administering the 
35 

Controlled Groundwater Area. 

We also ask this Committee to recommend to the Department of 

Interior and to the Depilrtment of Justice rapid approval of the 

Compact so that we can begin the necessary work to implement it. 

The DNRC believes this Compact embodies a strong commitment 

to state administration and jurisdiction . We believe this is a s it should be . The Compact coven; much more than a court could in 

just decreeing water rights. The Compact was negotiated by 

elected and appointed officials with lots of input from the 

general public. We be lieve it truly represents a Made in Montana 

solution. We urge this Committee to amend H.R. 1137 by r emoving 

any references to a federal moratorium in Montana and by 

replacing it with the provisions of the Compact. This will assure that the State will continue to have the lead role in 

administering its water resources, and acknowledges the effort 

and desire of the people of the State of Montana to protect the 

unique geothermal features associated with Yellowstone National 

Park. 

Thank you. 
36 

Mr. LEHMAN. Thank you very much. 

I thank each of our panelists for the testimony today, and we will 

move right into a few questions. Dr. Fenn, first of all, you recommend in your testimony that we 

withhold any further movement on this bill until you have had an 

opportunity to offer us some changes in language to reflect the four 

points you have mentioned. How long do you think that will take? 

I understand the compact passed the legislature yesterday, and assuming the Governor signs it, how long do you think that will 

take? 

Dr. FENN. Thank you, Mr. Chairman. I think that in some of our 

discussions we are looking at, hopefully, having some draft language written to try to get the appropriate reviews within the next 

week. And so, hopefully in as short a time as possible we will have 

those changes to you for your consideration. I hope it will be as 

quickly as we can get it done. I don't know that we can get it done 

in a week, but we can do our work in a week and then start the 

review process so that we can get it out of the department to you 

folks. 

Mr. LEHMAN. Okay. And also, for the record, two years ago there 

was a lively hearing on this bill. At that time, it was suggested by 

the department that amendments remove the existing well of the 

Church Universal and Triumphant from the ban on subsurface geothermal development. Your position on that has changed. Correct? 

Dr. FENN. Well, I think that we would like to see that be considered as a part of the general solution. So I think that, in essence, 

we have backed away from that contention, yes. 

Mr. LEHMAN. Okay. Well put. 

I would like at this time to ask the department to formally transmit the National Park Service report entitled "Corwin Springs 

Known Geothermal Resource Area Impact Analysis Report to Congress," so that we might include it in this record. That, to my 

knowledge, has not been done. 

In that report, which we have seen, the Park Service states, and 

I quote, "The purpose of the study was to determine if there are 

cross-boundary connections between Yellowstone National Park 

geothermal resources and those in the Corwin Springs KGRA." 

In its preferred alternative, it later states that, "NPS has concluded that there is sufficient probability of connection between 

geothermal systems in Yellowstone National Park and those in the 

KGRA to warrant extreme concern over development of geothermal 

resources in the KGRA." The preferred alternative was to disallow 

all subsurface geothermal development. But it does permit use of 

natural gravity-driven surface flows at their sources. 

Could you transmit that to us? 

Dr. FENN. Yes, we will. 

[The report follows:) 
37 

Corwin Springs Known 

Geothermal Resource Area 

Impact Analysis: Report to Congress 

National Park Service 

.-'.ugus< 1991 
Table of Contents 

Executive Summary 

Introduction 

38 

Background of Development in Other Major Geothermal Areas 

Importance of Study Findings 

Summary Statement of Research Findings 

Recommendations and Alternatives 

References Cited 

3 

4 

5 

7 

8 

9 

14 
39 

Executive SUJDJilJll)' 

As directed by Section 8(a) of the Geothermal Steam Act Amendments (Public Law 100-

443), the U.S. Geological Survey (USGS), in consultation with the National Park Service 

(NPS), conducted scientific studies to determine impacts of present and potential 

geothermal development in the Corwin Springs Known Geothermal Resource Area 

(KGRA) on the thermal features in Yellowstone National Park (YNP). Section 8(d) of 

the Act further requires the Secretary to make recommendations in this repon regarding 

the acquisition of the geothermal rights necessary to protect the thermal resources and 

features in YNP. 

The Department's report on these studies is of two parts. Pan I is a scientific repon by 

the USGS that presents and analyzes technical data in terms of the likely effects of 

various levels of geothermal development in the KGRA on thermal features in YNP. 

Pan IT is an impact analysis and recommendation repon by the NPS on whether 

development is considered compatible with protection of park· resources and whether 

acquisition is necessary in the Corwin Springs KGRA This document constitutes the 

WS report. 

Based on the USGS studies, NPS studies, and background information on the history of 

geothermal developments near and in other major geothermal areas of the world, the 

NPS has concluded that there is sufficient probability of connection between geothermal 

systems in YNP and those in the KGRA to warrant exueme concern over development 

of geothermal resources in the KGRA In order to protect the integrity oC YNP 

geothermal resources, the NPS recommends that no subsurface development of 

geothermal resoun:es be permitted in the Corwin Springs KGRA. The NPS is concerned 

that no precedent for geothermal development be established with any well in the event 

that other panies owning geothermal and water rights in the Corwin Springs KGRA may 

wish to drill geothermal wells in the future. A precedent for such development could 

place the burden oi proof on the Department for "no adverse impact" from various 

development scenarios. Furthermore, the NPS considers that a precedent to exercise 

exueme caution in considering geothermal development for lands adjacent to sensitive 

park resources exists in the previous case of the Island Park KGRA Because the United 

States currently does not have authorities to prevent subsurface development on 

privately owned lands in the Corwin Springs KGRA. NPS recommends that nonlederal 

geothermal and water rights be acquired in the KGRA. 

J 
40 

Introduction 

Since 1986, public attention has focused on potential geothermal development in the 

Cmwin Springs KGRA This attention has focused primarily on a geothermal well 

drilled on the propeny of the Royal Teton Ranch near La Duke Hot Spring, 1.6 mi (2.6 

km) north of the YNP boundary. In April of 1986, the landowner of the Royal Teton 

Ranch (Church Universal and Triumphant) drilled a 459ft. (140m) well directly across 

the Yellowstone River from La Duke Hot Spring. The well produced water chemically 

similar to that in La Duke Hot Spring, and proved capable of diverting all water from 

this natural geothermal feature. 

In accordance with Section 115 of the Department of the Interior and Related Agencies 

Appropriation Act for 1987 (P.L 99-591), NPS published for review and comment a 

proposed notice in the .&lkW ~ on February 13, 1987 (52 FR 4700) that 

identified whether significant thermal features were located in twenty-two units of the 

National Park System, of which YNP was included. After receiving and considering all 

public comments, the Department finalized the report required by P.L 99-591 to list the 

significant thermal features located in park units and transmitted the report to Congress 

on June 30. 1987. On August 3, 1987, the Department published in the .Ee..d.ro!.l ~ 

the final list of significant thermal features located in units of the National Park System 

(52 FR 28790). Below is an excerpt from that notice that lists all of YNP as significant: 

''Feature: Yellowstone National Park (hydrothermal feature) Old Faithful and 

approximately 10,000 geysers and hot springs make YellowstOne National Park the 

world's greatest thermal area. Because each of the components listed are part of 

and in total comprise the Yellowstone hydrothermal system. the entire park unit is 

listed as a significant thermal feature." 

For those units in which significant thermal features were listed, future federal 

geothermal leasing would be dependent on detertninations of whether proposals to 

explore for. develop, produce, or use geothermal resources surrounding the listed 

features are "likely to result in significant adverse effects. adverse effectS, or no effectS" 

to the park thermal features listed as significant. Such determinations, subject to 

appropriate public notice, would establish whether federal leases could be issued for 

lands directly adjacent to listed park thermal fearures. State or private lands were not 

subject to the same considerations as federal lands under consideration for federal 

!easing. 

On September 22. 1988, the Geothermal Steam Act Amendments oi 1988 were signed 

into law (P.L 100-443). This revised the Geothermal Steam Act of 1970 to incorporate 

the concept of "significant thermal fearures" as listed in the August 3. 1987 illlli) 

~ notice and added three more units to this list not previously included in the 

Department of the lnterior notice. 
41 

Under Section 8(a) of the Geothermal Steam Act Amendments, the USGS, in 

consultation with the NPS, was required to initiate a "study of the impact of present and 

potential geothermal development in the vicinity of Yellowstone National Park on the 

thermal feawres within Yellowstone National Park." Congress further placed a 

moratorium on any production from existing wells, and on the development of new wells, 

until the study was completed, and for 180 days after receipt of the study by Congress. 

Since the enactment of the Geothermal Steam Act Amendments, development of the 

well owned by the Church Universal and Triumphant on the Royal Teton Ranch was 

suspended. The pump was removed from the well, and no new drilling is known to have 

occurred in the KGRA. 

The Department's report on the Corwin Springs studies is in two parts. Part I is a 

scientific report by the USGS that presents and analyzes technical data in tertnS of the 

likely effects of various levels of potential geothermal development in the KGRA on 

thermal feawres in YNP. Part II is an impact analysis and recommendation report by 

the NPS on whether development is considered·companble with protection of park 

resources and whether acquisition is necessary in the Corwin Springs KGRA. The 

present document is the NPS report. 

The study was not to be focused specifically on the existing well near La Duke Hot 

Spring. Instead, it was to detertnine if there are cross-boundary connections between 

YNP geothermal resources and those in the Corwin Springs KGRA. The major YNP 

geothertnal resources near the KGRA are the Mammoth Hot Springs-Hot River 

complex. Numerous smaller expressions of the YNP geothermal resource are found in 

the area, including the streambed temperawre anomalies and sulfate additions to the 

Yellowstone River near Bear Creek. Surface geothermal activity in the KGRA includes 

:he Bear Creek Springs, directly across the Yellowstone River from the YNP boundary 

about 1.8 mi. (3 km) upstream :':-om Gardiner. Montana and a complex of springs 

upstream and downstream of Li Duke Hot Spring itself. along both banks oi the river. 

Any assessment of risk must address the greater potential problems associated with the 

cumulative impactS of all geothermal development in the Corwin Springs KGRA rather 

than focus on those associated with only one well or development site. As soon as the 

scientific reportS in the area are released. ail landholders in the KGRA will have rightful 

access to maps that could prove useful in locating promising geothermal development 

:ites in the KGRA which could magnify the risk to the resources and values of YNP. 

:Oereiore. risk assessments must address the entire geothermal realm. Titis report and 

its reco=endations focus on this concern. 

Bac~ond of Development in Other Major GeothennaJ Areas 

:\ review oi the available literature on other significant geothermal resource areas, 

including those in New Zealand. China. Chile. Iceland, Russia. and the United States 

reveals disturbing similarities in the effects oi development. In every case involving 
42 

geyser areas, development seriously affected or destroyed the surface features of these 

areas. Only the Kronotski Biological Reserve, Kamchatka, USSR, and Yellowstone 

National Park, Wyoming. remain intact among the world's major geyser areas. In New 

Zealand, of more than 130 geysers that were active in 1950, only 14 still erupt, and 

massive disturbances due to energy development have also occurred in bot springs and 

other surface features. In Beowawe, Nevada, of 30 geysers active in 1958, none survived 

subsequent geothermal energy development exploration. 

The process by which many of the world's surface geothermal sites were so dramatically 

altered offers lessons with direct application to the Corwin Springs KGRA First, surface 

features may respond to relatively small changes in subsurface reservoir conditions over 

distances as great as 6 mi. (10 km), and may respond to changes of many types, including 

those of temperature, hydrostatic pressure, flow rates or directions, permeability, and 

geochemistry. 

Second, changes in the reservoir occurring at some distance from the surface site may 

not manifest themselves at the site for an extended time period. which could be from 3 

to 5 years or longer. Immediate actions may appear to do no harm but may in fact 

initiate long-term effeCts. 

Third. monitoring of complex subsurface geothermal systems has shown that such 

systems, being relatively fragile geologically, are subject to substantial natural fluctUations 

in the various elements of their character. This natural variability greatly complicates 

any attempts to monitor the effeCts of development, because it is often impossible to 

distinguish between system changes brought about by human manipulation and natural 

"background noise" brought about by the system's unique geothermal characteristics. 

Repeatedly, monitoring has been confounded by these problems until irreversible 

damage to the system occurred. 

Founh. WIUJ the information available to us we are unable to analyze geothermal systems 

definitively. Even the best technology and analysis may result in inconclusive findings 

subject to several legitimate interpretations, none of which has any guarantee of 

reliability. Prediction of the effeCts of development on a geothermal resource area is an 

imprecise exercise. 

Fifth, experience with attempts to reduce or mitigate the effeets of development is so iar 

very limited. Using reinjection of extracted fluids to provide pressure support in 

production reservoirs requires considerable subsurface information which must be 

obtained before reinjection wells can be properly sited. In the case of Corwin Springs 

KGRA such information does not yet exist. Also, NPS cautions that such information 

may not be easy to obtain considering the economic and environmental costs associated 

with drilling the wells necessary to collect the data. wttich, in rum, will be subject to 

interpretations and possible extrapolations. 

6 
43 

Last, human-caused changes in geothermal areas may be permanent. Any analysis of 

risk must weigh the possibility that the resource gets only one chance to survive any 

possible human error. The risk is, in that sense, an absolute one. 

Because of the international renown and significance of the area involved, it is clear that 

the sensitive thermal resources of YNP warrant the most rigorous of protective measures 

available. 

Importance or Study Findings 

Because YNP geothermal resources adjacent to the Corwin Springs KGRA have been of 

interest to scientific investigators for nearly a century, the mandated research built upon 

earlier work, some of which is cited in the appended report. 

The geological history of the KGRA is interwoven with that of Mammoth Hot Springs in 

YNP. Travertine formations similar to those now being formed at Mammoth occur 

between Mammoth and Hot River, at Bear Creek Hot Springs, and above the town of 

Gardiner. Travertine deposits of limited extent also occur at and near La Duke Hot 

Spring. It appears that geologic structural connections between Mammoth and the 

KGRA experienced geothermal fluid movement as recently as 10,000 years ago (Pierce 

et a! 1991). 

A number of geological structures, especially faults, exist that could act as conduits for 

geothermal fluid movement. Pierce eta!. (1991) and Hamilton and Chambers (1991) 

otier various lines of evidence for such fluid movement. Geological investigations 

~evealed no evidence of any barrier to fluid movement between Mammoth Hot Springs 

and the Corwin Springs KGRA. indicating that in the interest of protecting YNP 

geotherm2 resources. managers must act on the assumption that there is no barrier. 

Soil mercury anomalies and streambed thermal anomalies were mapped (Hamilton and 

Chambers 1991) to trace possible geothermal aquifers associated with faults in the 

Mammoth Hot Spri.ngs-La Duke Hot Spring area. Taken in their entirety, the data from 

soil-mercury, geological and geophysical investigations indicate or are consistent with 

geothermal fluid movement between YNP and the KGRA The investigators emphasize 

that these findings constitute an evolving physical model at this time. but as such they do 

suggest both possible cross-boundary connections and the uneasy narure of assessing such 

connections with limited data and current scientific techniques. 

Some geochemical characteristics determined by the USGS indicate similarities between 

waters in the KGRA and those at Mammoth Hot Springs (Kharaka eta!. 1991). Other 

geochemical characteristics are different between the two sites. but the differences can 

be explained by geochemical differences in their respective host rocks. Even if chemical 

differences between. for example. La Duke Hot Spring and Hot River were judged to be 

a significant proof of source differences between the two sites. the only separation 

7 
44 

between the two could be hydraulic (difference in hydrostatic head) because no geologic 

barriers (impermeable rock or stratigraphic discontinuity) have been discovered there. 

Hydraulic barriers may be sensitive to change if development altered the hydraulic head 

in reservoirs in the KGRA 

Summary Statement or Research Findings 

Two conclusions can be drawn from the studies. The first is that there is no evidence of 

a geologic barrier between the geothermal resources of YNP and those of the KGRA 

The second is that there is evidence of geothermal fluid movement between YNP and 

theKGRA 

The USGS and NPS studies were conducted to determine potential impacts of KGRA 

geothermal development on YNP geothermal resources. As long as there exists a 

possibility of a connection between the geothermal resources of the KGRA and those of 

YNP, subsurface development of geothermal resources in the KGRA presents potential 

risks to the resources of YNP. 

Some studies, such as the USGS work. focused primarily on major geothermal sites, such 

as Mammoth Hot Springs, Bear Creek Springs, and La Duke Hot Spring. It must be 

repeatedly emphasized, however, that all geothermal features of YNP, including aquifers, 

seeps, geothermally heated soils, and underwater springs, are judged significant, and any 

impact analysis must address their situations as well. Whatever interpretations are 

ultimately placed on data related to Mammoth Hot Springs, Hot River, Bear Creek 

Springs, or La Duke Hot Spring. there is ample reason to assume cross-boundary 

connections between geothermal aquifers in parts of the KGRA and in YNP. 

The USGS and NPS studies addressed many aspects of the possible cross-boundary 

geothermal connections between YNP and the KGRA, but it must be pointed out that 

there are many other important questions about the effectS of development on other, 

non-geothermal resources. both in the KGRA and, at least potentially, in YNP. Though 

these influences are beyond the immediate scope of this report, concerns expressed by 

several involved parties lead us to introduce them here. Geothermal water may 

influence the environment it enters in many ways, in a "ripple effect" that spreads far 

beyond the vent of the spring. 

For example. the heat and chemical character of the water, when entering a river, affect 

the emire life chain, from the simplest protozoa to the most sophisticated predators. 

The numerous springs and upwellings that occur near or in the Yellowstone River 

between Bear Creek Springs and Corwin Springs may have effectS on the ecology of the 

river. For example, thermal input into the Yellowstone River could impact the cutthroat 

trout, a species of special concern in Montana, by improving the hospitality of the river 

in that stretch by moderating water temperature variations, or enhancing productivity of 

rnacroinvertebrates that support fish populations (B. Shepard, Mt. Dept. Fish. Wildlife & 

8 
45 

Parks, pers. comm. 1991). Winter stress is suspected of being a major factor limiting fish 

populations in the Yellowstone River. The fate of the outflow of Bear Creek Springs 

would, in this regard, be of special interest to YNP managers, because west of the 

springs the Yellowstone River bends back into the park, and any development of the 

springs could affect park fish populations. 

Fish are an example of how the ecological setting might be affected by geothermal 

development. From them the web spreads and becomes more complex. The springs 

between Bear Creek Springs and La Duke Hot Springs, combined with the geothermally 

influenced waters of the Gardner River, keep several miles of the Yellowstone River 

relatively open during those times of cold weather that would normally free~ the river 

over completely downstream for many miles. This creates habitat for many animals, and 

has "feedback" effectS into YNP. For example, waterfowl that use the Yellowstone River 

in the KGRA move in and out of the park regularly, up and down the main river or up 

into tributaries such as the Gardner River. Fish or waterfowl are preyed upon by other 

birds, including osprey, bald eagles, and peregrine falcons, all of which are of special 

concern or currently given special legal protection by federal or state agencies. 

Consideration of the potential ecological impactS of geothermal developments in the 

KGRA draws in other elements of the setting, such as focusing on the esthetic or 

recreational value of relatively undisrurbed geothermal sites, which are enjoyed by some 

undetermined number of people who live in or visit the KGRA. The confluence of La 

Duke Hot Spring and the Yellowstone River is, for example, used by some recreational 

':>athers. It also must be noted that nongeothemtal subsurface development affecting 

c.Juifer pressures could conceivably affect YNP geothermal resources even though they 

are undertaken with no intention of developing geothermal resources. These issues are 

beyond tile scope of this repon, but must be recognized as factors warranting 

consideration during deliberations on the scope and magnitude of geothermal 

development in the KGRA. 

Recommendations and Alternatives 

NPS discusses six options in the interest of outlining the widest range of development 

scenarios that could be proposed in the KGRA to be paired with representative 

responses from the widest management spectrum. We recommend only one of the six 

options as it offers the greatest protection to the geothermal resources of YNP without 

depriving potential developers of all access to the production of surface features in the 

KGRA The preferred alternative is identified beiow as alternative #2. that is to 

disallow all subsurface geothermal development. :Jut permit use of narural gravity-driven 

surface flows at their sources. 

O:ach of the options discussed below were designed with the intent of each scenario not 

~s uiting in a mea.surable effect on the geothermal resources of YNP and that each 

option listed appty to all lands in the KGRA regardless of ownership. 

9 
46 

The following alternatives are proposed in light of protecting the geothermal resources of 

Yellowstone National Park and could potentially have ecological consequences on a sitespecific basis for the Yellowstone River and its associated plant and animal communities. 

Although ecological effectS have not been fully documented, we predict that the degree 

of such consequences will vary ac:cording to the proximity of the developable geothermal 

resource to the relevant resources affecting the YNP and the relative magnitude or 

volume and heat of the flow potentially removed from the system. Thus, it is important 

that decisions affecting the use of the geothermal features in the KGRA be considered 

on a site-specific basis and that they consider the consequences of their use to the 

resources and values of the YNP. 

For those options discussing subsurface development, we do not have enough 

information at this time to determine with absolute certainty the threshold number of 

"allowable" wells beyond which funher development would result in irreparable damage 

to YNP or below which would not constitute risk to the resources and values of YNP. 

Thus, the entire geothermal realm, not just one specific site, is the center for our 

concern for development. To the greatest extent possible, all potential wells should be 

identified and evaluated for their cumulative impact on the resources of YNP. We 

strongly recommend that cumulative impactS of all potential development sites be 

assessed prior to permitting any development in the KGRA Thus, we do not suggest 

that the wells be permitted in a piecemeal or progressive manner. 

Also, NPS intends for the standard of "no adverse impact" on YNP geothermal resources 

to be verified through a monitoring program, the costs of which will be borne by the 

developer(s). Even though we recognize that monitoring can be an inaccurate tool to 

predict change with certainty, it remains our only tool at the present time. Also, in 

see icing compliance with the standard of "no adverse impact, • we recognize that it is 

virtually impossible to prove a negative and the buraen for such proof could. undesirably, 

shift back to the Department of the Interior irom the developer when consiaering the 

impactS of future development sites on the resources and values of YNP. It is for this 

reason, that the cumulative impacts of development sites in the KGRA needs to be 

understood using the best field data available. For all options, research and monitoring 

are of critical importance, not only to protect the resources and values of YNP and to 

ensure compliance with use stipulations, but also to protect the rights of those proposing 

to develop geothermal resources. 

The alternative options are discussed below: 

I. Disallow ail surfaa or subsurface geothemuzi development in the Corwin Springs 

KGRA.. 

This alternative gives the maximum protection to the YNP geothermal system and to 

surface ecosystem resources in the KGRA However, this option presents the most 

potential for conflict with existing state leasing and permitting processes in the KGRA 

10 
47 

2 Disa/low all subsurjtlt% geotht!rnwi delidopmml, bill permit ll.f4! of n.aturai gravitydrivm surface flow$ at thDr .fOII1I:eS. [PREFERRED ALTERNATIVE] 

This alternative, like Number 1, assures that no subsurface geothermal development 

could risk the impairment of YNP geothermal resources, but it allows for use of surface 

hydrothermal outflow. The aquifer system underlying the YNP·KGRA landscape is 

complex. Many sources for water withdrawal exist and little is known about the potential 

effects of any of the subsurface withdrawals on other resources. We suspect that some 

level of drawdown, or reservoir pressure change, must accompany any subsurface 

withdrawal. Therefore, disallowing use of subsurface resources protects those resources 

without requiring monitoring and without depriving potential developers of all access to 

the production of the surface features. 

Based on the USGS srudies, NPS srudies, and background information on the history of 

geothermal developments near and in other major geothermal areas of the world, the 

NPS has concluded that there is sufficient probability of connection between geothermal 

svstems in YNP and those in the KGRA to warrant extreme concern over development 

~i geothermal resources in the KGRA In order to protect the integrity of YNP 

geothermal resources, the NPS recommends that no subsurface development of 

geothermal resources be permitted in the Corwin Springs KGRA The NPS is concerned 

that no precedent for geothermal development be established with any well in the event 

that other panics owning geothermal and water rights in the Corwin Springs KGRA may 

wish to drill geothermal wells in the furure. A precedent for such development could 

place the burden of proof on the Deparonent for "no adverse impact" from various 

development scenarios. Furthermore, the NPS considers that a precedent exists to 

exercise extreme caution in considering geothermal development for lands adjacent to 

sensitive park resources in the case of the Island Park KGRA 

3. Allow no ina-ease in subsurfuce geothemuzl development in the KGRA aver and 

abavt! aisting developed sites. and penniJ use of naturol surfuce outflows. 

This option would allow the use of surface flows or expressions and would allow 

deveiopers to move the point of diversion from the source of the surface flow to a 

producing well. However, it limits the use of subsurface ilows so as not to exceed 

narural surface outflows. There are currently a few such wells in existence. We are not 

aware that any of these wells currently are producing geothermal waters, except for a low 

flow research well operated by the USGS. Under this alternative. modest production 

would be allowed. not to exceed the amount of surface flow of the associated spring 

discharge. This restriction would require the developer to prove that the well taps the 

immediate subsurface flow source of the spring itself. Thus, the costs for monitoring 

resultant changes in spring flow would be borne by the developer. Also, the NPS should 

have access to the drill site and to the data collected. as necessarv to verifv the 

connection with the subsurface aquifer. - -

11 
48 

Research, which might be judged necessary for future monitoring. would whenever 

possible use existing production sites, and would be likewise restricted to extremely 

limited sampling if it were necessary to drill new research wells for that purpose. Also, 

it would be necessary for NPS to have the authority to cause the cessation of operations 

if the monitoring system points to future or possible changes in the YNP resources. 

Legislative authorities to conduct site and data surveys and to stop disrupting operations, 

before they manifest disruptions to the hydrothermal features at YNP, would have to be 

provided to the United States for those wells sited on State or privately owned lands. 

4. Permit pumping of gmtMmal wat6 from KGRA aquifen as long as it does net 

=«4 the 1111!tUU1Ub/e 1UIIZin1i flow from the surjt1a sJifirr8s aswriated with that part 

of the Ql[Uifor bmrg devf!Joped. 

This option would allow the use of surface flows, allow for diverting these flows in a 

manner that would allow the usc of existing wells, contemplate the use of new wells as 

long as they arc tied to a legal right to use surface flows, and require that use does not 

exceed the natural surface flows. The intent of this approach is to ensure that the total 

amount of water taken from the aquifer does not exceed that currently reaching the 

surface and becoming outflow. Thus, in order to develop a site, the developer must 

withdraw water from an aquifer demonstrated to be producing visible outflow, and the 

withdrawal must maintain measurable outflow. For example, if the outflow were 

completely dried up, there would be no way of determining by what amount the 

withdrawal exceeded the outflow. 

This option is less desirable because it significantly increases the risk of damaging 

hydrothermal resources in YNP. It relies heavily on the use of monitoring as a 

protective measure, a measure that, as discussed earlier, cannot always be considered a 

reliable test for discovering change to systems. Also, changes, once detected, may be of 

a magnirude resulting in adverse effects to the hydrothermal systems of YNP. Although 

the cost of the monitoring program and the subseauent burden of proof that the 

withdrawal will not harm the YNP geothermal system would be borne by the developer, 

data interpretations would be under the scrutiny of the NPS. Also, as with the 

Alternative #3, this option would require special legislative authorities to effect shut 

down of operations, if necessary to protect park resources. 

5. Permit devdopmort of KGRA geothermal wdls whose production does not exr:ud 

measurrzbk naruraJ outflows, insritutirrg both rrwnitoring and reinjection .!}'ltem.t. 

lllis option is the same as #4 above, except that this alternative has one added 

requirement of reinjecting geOthermal fluids. Discussions of reinjection and itS possible 

effects are provided by the USGS in Part l of this report. Reinjection must not be 

viewed as a panacea by which geothermal system abuses can be erased because the 

necessary subsurface information commonly does not exist to ensure reliable results. 

l2 
49 

l.nstallation and monitoring of observation wells would be required to provide assurances 

that pressure changes caused by production or injection did not extend to geothermal 

aquifers beneath the park. 

This alternative is offered in the interest of presenting the full range of options. It 

provides no protection for the YNP geothermal resource and makes it impossible for the 

NPS to carry out its mandate to protect these resources. We anticipate that unrestricted 

new and existing development in the KGRA will result in significant adverse impacts to 

the hydrothermal resources and values of the YNP. 

13 
50 

References Oted 

Note: The following papers were among those used in the preparation of this repon. 

Several of these were used in the most recent form available at the time the report was 

completed. 

Hamilton, W.L. and R.L Chambers. 1991. Soil mercury and streambed-temperature 

anomalies in the Norris-Mammoth-LaDuke corridor. Pages E-1-E-25 in M.L. 

Sorey, ed. Effects of potential geothermal development in the Corwin Springs 

Known Geothermal Resources Area, Montana, on the thermal features of 

Yellowstone National Park. USGS water-resources investigations report 91-4052, 

Menlo Park, California. 

Kharaka, Y.K., RJi Mariner, T.D. Bullen, B.M. Kennedy, and N.C. Sturchio. 1991. 

Geochemical investigations of hydraulic .connections between the Corwin Springs 

Known Geothermal Resources Area and adjacent partS of Yellowstone ~ational 

Park. Pages F-1- F-38 in ML Sorey, Ed. Effects of potential geothertnal 

development in Corwin Springs Known Geothermal Resources Area. Montana, on 

the thermal features of Yellowstone National Park. USGS water-resources 

investigations report 91-4052, Menlo Park, California. 

Pierce, K.L, K.D. Adams, and N.C. Sturchio. 1991. Geologic Setting of the Corwin 

Springs Known Geothermal Resources Area-Mammoth Hot Springs Area in and 

Adjacent to Yellowstone National Park. Pages C-1-C-38 in M.L Sorey, ed. 

EffectS of potential·geothermal development in the Corwin Springs Known 

Geothermal Resources Area. Montana. on the thermal features of Yellowstone 

National Park. USGS water resources investigations reoort 91-4052, Menlo Park. 

California. · 

Sorey, M.L 1991. Effects of Potential Geothertnal Development. Pages H-l-H-13 in 

M.L Sorey, ed. Effects of potential geothermal development in the Corwin 

Springs Known Geothertnal Resources Area. Montana, on the thermal fearures of 

Yellowstone National Park. USGS water resources investigations report 91-4{)52, 

Menlo Park. California. 

14 
51 

CORWIN SPRINGS 

KNOWN GEOTHERMAL RESOURCE AREA 

•AAK BOUNDAAY 

~ - !i u~ ~'\ ~ YELLOWSTONE NATIONAL PARI\"l 

---- --------------~ANA 

Public Land wYo ING- --- ----

ES Corwin Springs 

Known GeothennaJ Resource Area Boundary 

(KGRA) 

t 

N 
52 

Mr. LEHMAN. And is that bill before us consistent with that rec- ommendation? 

Dr. FENN. It is. 

Mr. LEHMAN. Mr. Tweeten, the bill I understand was passed by 

the legislature is now on the Governor's desk. Is that correct? 

Mr. TwEETEN. That's correct, Mr. Chairman. Mr. LEHMAN. And you do anticipate that the Governor will sign 

the bill? 

Mr. TwEETEN. That's correct. His representative testified in favor 

of the bill before both houses of the Montana Legislature. I expect 

no problem with his approval. 

Mr. LEHMAN. Okay. And could you explain for us how that compact affects other Federal reserved water rights in the other parks 

in Montana? 

Mr. TwEETEN. Briefly, Mr. Chairman, there are five National 

Park Service units in Montana. Glacier Park, Yellowstone National 

Park, the Big Hole National Battlefield, the Little Big Horn N ationa! Battlefield southeast of Billings, and the Big Horn Canyon 

recreation area on Yellowtail Reservoir. 

We have reached agreements with the Park Service with respect 

to the reserved water rights claims on three of those five units: the 

Glacier Park, the Big Hole National Battlefield, and Yellowstone 

National Park. The Little Big Horn Battlefield and the Big Horn 

Canyon recreation area lie either in or adjacent to the Crow Reservation in Montana, and we are undertaking water rights negotiations with the Crow Tribe, and we will be negotiating with the 

Park Service concurrently with respect to those units as our negotiations with the Crow proceed. We felt, for that reason and simply because we didn't have time 'before our legislature meets to complete a compact on those two 

units, that we would go ahead and complete the compact with respect to the other three units and leave those two until later. 

The compacts with respect to Glacier and Big Hole and with respect to the surface flows in Yellowstone were very similar. We recognized instream flow rights for the National Park Service units 

and all three units within the boundaries of the park units. We 

have recognized that, because of the priority base that exists with 

respect to those units, that there are restrictions that must apply 

with respect to development of water under State law outside of 

the park. 

There are a number of rivers that are a tributary to the Yellowstone system that rise in Montana outside Yellowstone Park, flow 

into Yellowstone Park, and then exit the park in the Yellowstone 

River. And we recognized in the course of these negotiations that, 

because of the National Park earlier priority date, that restrictions 

on surface flows in those drainages were required, and we have 

agreed with the Park Service as to what those restrictions will be. 

With respect to Glacier and Big Hole, we have made similar 

agreements with respect to development of water upstream from 

those two units as well. Mr. LEHMAN. All right. Mr. Vento may want to pursue this further. But let me move on to another point first. Under the compact, how do you treat existing wells? 

Mr. TwEETEN. Mr. Chairman, existing wells are grandfathered. 
53 

Mr. LEHMAN. Are they all grandfathered? 

Mr. TwEETEN. Yes. 

Mr. LEHMAN. And if this compact had been in effect prior to their 

coming on line, would they have been allowed? 

Mr. TwEETEN. You're referring to the Church well? 

Mr. LEHMAN. Right. 

Mr. TwEETEN. If this compact had been in effect prior to the development of that well, I am not entirely conversant with the temperature of the water that's being produced with the well, but if 

the water was in excess of 85 degrees, then the restrictions of the 

compact would have applied and the permit would have been issued by the State of Montana only upon a finding that the water 

that is being produced is not hydrologically connected to the geothermal resource in the park. 

Mr. LEHMAN. Explain how you differentiate hot and cold water, 

then, for purposes of the compact. 

Mr. TwEETEN. Well, there are three different levels that are in 

the compact. Water below 60 degrees is considered to be cold water, 

and as to that water presently, there is no restriction in the compact with respect to its development. There is a registration program that is put in place in the compact so that all of those wells 

will be registered with the State of Montana as part of our data 

collection process. Mr. LEHMAN. So it is just taken on face value that there is no 

connection between a well that's under 60 degrees and the resource 

we are trying to protect? 

Mr. TwEETEN. I think that's correct. I thinkthe present level of 

scientific data that we have indicates that development of those 

cold water wells, at least small cold water wells, under 35-gallonsa-minute, can proceed without restriction at the present time. Any 

well over 35-gallons-a-minute requires a permit from the State of 

Montana, just like it does anywhere else, and the compact doesn't 

change that. Mr. LEHMAN. So the temperature of the water is taken as proof that there is no impact on Yellowstone? 

Mr. TwEETEN. For water under 60 degrees, that's correct. For 

water between 60 degrees Fahrenheit and 85 degrees Fahrenheit, 

the compact provides a set of criteria that are used to analyze the 

water to determine whether the warm component of that water is 

connected to the geothermal resource in Yellowstone Park, and that 

includes chemical analysis, that includes an analysis of the depth 

at which the water is produced. 

Mr. LEHMAN. In other words, water colder than 60 degrees may 

be mingled with water that is hotter, causing the temperature to 

be 60 but the hotter component may in fact be connected to the 

park resource? 

Mr. TWEETEN. Well, we are told by the scientists that as wells 

get deeper, the temperature of the water tends to rise, and sometimes, depending on the depth of the well, the higher temperature 

may be attributable simply to the depth at which the water is produced. And there may be other reasons as well unconnected with 

the resource in the park. 

Mr. LEHMAN. Does the compact address the cumulative impact of 

a number of wells? 
54 

Mr. TwEETEN. It does in the sense that it requires the acquisition 

of data with respect to the number of wells that are being drilled, 

how much water is being produced, what the nature of that water 

is, and as that database grows and as observations occur with respect to the resource in the park, if it appears that that cumulative 

development is going to begin to have impacts, the technical oversight committee will then have the opportunity to make recommendations with respect to changing the boundaries of the controlled groundwater area or changing the restrictions that need to 

be placed on the development of that water. Mr. LEHMAN. And are there any flow limits or levels under which 

there is no triggering of the restrictions in the compact? 

Mr. TwEETEN. No. The restrictions apply to any withdrawal of 

groundwater regardless of how small, with respect to the registration program. When you get to the 35-gallon-a-minute level, then 

a permit is required. But all withdrawals of groundwater are subject to the compact. Mr. LEHMAN. Mr. Vento? 

Mr. VENTO. Dr. Fenn, we commented about Idaho. I think the Island Park area has been set in law for some time in order to protect Island Park, and those protections currently are at this time 

viewed as being sufficient. 

Dr. FENN. Yes. Mr. VENTO. This deals with the Montana issue which has been 

talked about in some detail and depth today. What about the situation in Wyoming? 

Dr. FENN. Currently there are no means to provide these same 

levels of protection. And one of the things this bill we hope would 

do is to extend some of those provisions to protection of the Wyoming resources. And I think also even in the Island Park area, the 

non-Federal lands are not provided that same degree of protection 

that the Federal lands are under the compact. 

Mr. VENTO. Do they fit within the zone that you would be concerned about? 

Dr. FENN. The non-Federal lands? 

Mr. VENTO. Yes. 

Dr. FENN. Yes, they do. And so that is why we feel that the com- bination of this proposed bill, with some amendments that we 

would propose, and the Montana compact is a very good combination. 

Mr. VENTO. What is the status of discussions with regard to 

these policy matters? I am certain that Congressman Williams is 

anxious to move along and to put this issue into-not that he is 

not interested in the other areas-but what is the status of discussions and policy with regard to these matters? 

Dr. FENN. I am not sure I understand your question. 

Mr. VENTO. Well, have you had any initial negotiations or discussions on common language that would be acceptable? 

Dr. FENN. I think what we have done at this point is put our energies into finishing the Montana compact and hoping that with 

that one in place, then we might be able to use that as a role model 

with the other two States. So we really haven't made very much 

progress in negotiations with the other States. Mr. VENTO. Well, that tells me you have high hopes. 
55 

Dr. FENN. Yes. 

Mr. VENTO. That is what I hear. Dr. FENN. Yes. I think that's true. Mr. VENTO. Well, Dr. Fenn, in your statement you request that 

action on the bill be deferred until language can be presented to 

provide procedures for managing any potential claims alleging deprivation of property rights. But aren't there already laws on the 

books, including the Tucker Act, that provide exactly such procedures? Why wouldn't that Tucker Act, whatever it is, be workable? 

you must know of it. 

Dr. FENN. Well, Mr. Chairman, I guess I would answer that 

question by saying that for the very reasons you just said, "whatever it means," it may tum outMr. VENTO. No, no, I think it is a law that allows individuals to 

go to the court of claims so that we basically cannot deprive property without due compensation. 

Dr. FENN. Right. We feel that having some specific references in 

this particular bill to provisions that the Secretary might use and 

invoke to implement these provisions would help maybe prevent 

some of those things from having to go strictly to the courts, and 

it might connect this legislation with the other legislations more directly in a way that will give clear guidance to the courts. Mr. VENTO. Yes. I think the problem gets to be, as the members 

of the Subcommittee are aware, as we begin to try to craft specific 

provisions in terms of this, then I think, first of all, it tends to depart from what the basic law is in terms of the Tucker Act or property rights, plus, you know, it sets a precedent and then we have 

all sorts of new determinations and solicitor's opinions flowing and 

there are all sorts of efforts, as you know, as you might expect, to 

gain a new interpretation of what a property right is. And so it 

leads us down a path that is very difficult. So I would just caution 

that simplicity in this instance is a virtue, in my view. 

I understand, as we look at the myriad of different rights or the 

efforts to debate that, those get to be pretty long fights out in the 

West, as I recall. 

A couple of other questions. Specifically, about the Montana compact, Dr. Fenn. The numbers and the indicators that you use I expect are relevant, or at least you believe they're relevant, to the 

geothermal features of Yellowstone. But it seems to me that 65 to 

80 degrees Fahrenheit is fairly hot water, I mean by the standards 

of aquifer water, which is cold. I understand that as you go closer. 

But is the general area that we are dealing with-and I haven't 

seen the map here of what constitutes your map. Do you have a 

map? I see you have a lot of maps here. I don't know if these are 

your maps. 

Dr. FENN. Yes. 

Mr. VENTO. I think maybe we could use one of them to point out 

what the area is. I know Congressman Williams had talked about 

this 15-mile area. 

Dr. FENN. Right. 

Mr. VENTO. Can you generally explain what the area is that is 

covered by the compact? 

Dr. FENN. May I go to the easel? 
56 

Mr. VENTO. Yes. There is a microphone there. You will have to 

kind of borrow them from your panelists. Dr. FENN. I can get out of the way and just show you what we 

have here. I can stand on this side. The compact area is this area right here. What you see here in 

this red checkered area are the recharge zones in the compact 

where they're not in the thermal zone but may be important drivers of the geothermal system. Mr. VENTO. I understand. 

Dr. FENN. And then this blue area is the actual discharge zone 

of the geothermal. And then of course the Island Park area in 

Idaho is right here in this part of the map. But the compact area 

covers this much of it right here, this being the 15-mile zone, in 

black. 

Mr. VENTO. Right. And so the compact area covers the black line, 

or just the mapping that you have there? 

Dr. FENN. Just the colored portion of the map. Right. Mr. VENTO. And the scientists that you are working with have 

advised you that those recharge areas and other areas that may be 

utilized for wells are in fact within the zones. Ones that are important for the features that they believe would be relevant to the features of Yellowstone. Is that correct? 

Dr. FENN. Yes, sir. 

Mr. VENTO. And the features we have here that are outlined, you 

have recharge areas in pink and then the geothermal or well areas, 

you would be concerned with surface water and wells or anything 

in any of those, in any case. Going up or coming down, it's all the 

same water. Correct? 

Dr. FENN. Yes. That's right. And the Corwin Springs is the 

green. Corwin Springs geothermal area is marked there in green. 

Mr. VENTO. Is the water generally in this area much higher in 

temperature from these aquifers? This water is from what aquifer, 

principally? Is that the Madison aquifer? I mean the Madison is 

limestone; that wouldn't be a good aquifer for putting a well into. 

Dr. FENN. I'm sorry, that's a technical question that I don't have 

the answer to. 

Mr. VENTO. Well, maybe somebody else here does. 

Mr. Tweeten, is there anyone around here? 

Okay. Well, nobody wants to volunteer. 

Mr. TWEETEN. Mr. Chairman, I hand that to Barb Cousins, our 

legal counsel, who is also a trained geologist, who I believe can give 

us information with respect to that. Mr. VENTO. Okay. Give your name for the record. I didn't hear 

it, I'm sorry. Ms. COUSINS. Mr. Chairman, I am Barbara Cousins. I am legal 

counsel for the Compact Commission. 

The Madison limestone was considered to be a potential recharge 

area for the park, and that was why a number of the recharge 

boundaries were drawn within the valley where Gardner sits. And 

in the discharge area it's deep enough that it is not a production 

zone for groundwater wells. 

The provisions in the compact that deal with water between 60 

and 85 degrees state that it cannot be completed within the Madison group. 
57 

Mr. VENTO. Cannot be? 

Ms. CouSINS. Cannot be completed. If it is producing from the 

Madison group, then it is given the same scrutiny that a well above 

85 degrees would be given. 

Mr. VENTO. So where is this water coming from, what formations? Other formations are there, but is it generally coming from 

sandstone formations? 

Ms. COUSINS. The water that is being produced is in alluvial 

gravels. 

Mr. VENTO. Alluvial gravels is where they're picking it up. So is 

it above? It's below, actually, the Madison formation then? 

Ms. CouSINS. It's above the Madison formation. 

Mr. VENTO. It's above. 

Ms. COUSINS. The Madison formation is deeper. 

Mr. VENTO. Yes. Well, it would be lower than alluvial gravels. 

That's right. But sometimes we get things turned around. What is the most common water temperature in this area? If I 

can ask, Ms. Cousins. I don't know that Mr. Tweeten can answer 

the question, but if he can, I would invite him to do so. But we 

have some pretty high temperatures here for what is basically 

groundwater then if it's coming from alluvial gravels. What is the 

cone of influence in this area in terms of these wells in alluvial 

gravels? Can you give us some idea of the dimensions of these 

wells, given the volumes that would be prescribed? Take whatever 

c.f.s. you want. 

Mr. TwEETEN. Mr. Chairman, with your indulgence, I will refer 

that question to Ms. Cousins. 

Mr. VENTO. Yes, that's fine. 

Ms. COUSINS. Mr. Chairman, I am not sure that I completely understand your question. Mr. VENTO. Well, what is the average temperature of alluvial 

gravel groundwater that is removed from this area? I mean you 

have a range here that is fairly high. And you're telling me it is 

even surface. Then Mr. Tweeten, when he answered Mr. Lehman's 

question, said, ''Well, as you get deeper, they get hotter." But we 

are dealing in surface waters here, so it isn't that, because of the 

depth of the removal so much as it is the fact that they are close 

to the Madison formation, which obviously has a hotter temperature because of geothermal temperatures. 

Please proceed to answer the question if you can. Ms. COUSINS. Mr. Chairman, one of the things that became 

acutely apparent when we were negotiating the compact is that we 

do not know the temperature of groundwater, and that is why we 

set up an inventory whereby every well existing in the area will 

be visited and the temperature will be measured. Adjustments on 

the restrictions can be made on recommendation of the technical 

oversight committee at that time. 

It was the determination of the scientific working group that 

anything below 60 degrees Fahrenheit we were safe to assume that 

there was not a contribution by hydrothermal waters from wells 

that they had looked at in that area. There was a small study that had been done in the West Yellowstone area because of water quality problems. The only wells that 

indicated any contribution by hydrothermal waters had chlorides in 
58 

excess of 10 parts per million, which is one of the criteria looked 

at if the temperature is above 60 degrees and had temperatures in 

excess of 60 degrees. Mr. VENTO. Well, it is chlorides that are apparently the primary 

solvent in the water. The water itself is solvent, but that would indicate activity that is related to the features, and it could impact 

the features in terms of its ability to carry dissolved substances, I 

assume. 

Well, I am concerned about this. I understand the compact was 

hard to negotiate, but as I look at the makeup of the committee, for instance, I find out there is sort of an unknown here. You have 

U.S.G.S., which obviously has been more liberal with regard to its 

interpretation of what can and cannot go on; and two representatives from Montana; and then a fifth person, to be selected. Then 

they would make determinations as to new applications and then 

you are in fact grandfathering in existing wells, but add to a certain volume. 

Now, I just want to state that that concerns me because it sort 

of seems to me that it places this particular appropriation of water, 

which you recognize, Mr. Tweeten, in your statement as a prior appropriation going back 100 years, but then since then we have had 

a lot of other applications, I assume, that have come in and have 

been adjudicated and given water rights ahead of the Park Service 

and, therefore, it may be or may not be detracting from or impacting on the features of the park. 

I hope Dr. Fenn is listening to this because these are concerns. 

I mean it is a complicated matter, and I guess we have to work on 

the basis of what has been agreed to in good faith by the Park 

Service and the Federal agencies that have responsibility. But nevertheless, I think, it leaves a couple of unknowns. And so I think 

in legislating, you know, I would hope that with Congressman Williams and others we could resolve that. 

We know specifically, Mr. Tweeten, what the number of grandfathered wells are in these zones that exist here. Can you tell me 

what the numbers are today? 

Mr. TwEETEN. Mr. Chairman, that's one of the problems that we 

encountered in trying to determine the level of development that 

existed. We have permanent records that go back to 1973 indicating the number of permits that have been issued for those wells 

since then. And there may be permit records that go back before 

that. There are no good records with respect to small wells, below 

35 gallons a minute, which is why the compact provides for an inventory process, which is going to be immediately undertaken to 

try to determine the total number of wells of all kinds that exist 

in this area. 

Mr. VENTO. I know. But you are saying everything that is a 

priori is, in essence, grandfathered. And you know, some of those, 

depending upon volume and the characteristics of it, may have a 

profound impact on these features. I mean that concerns me, and, 

of course, the makeup of future development being determined by 

this committee. We can only trust in God, but others pay cash, you 

know. [Laughter.] 

Especially when it comes to these types of features and these 

stakes here. 
59 

Mr. TwEETEN. Mr. Chairman, may I add something to that, because I am not sure that the concept of grandfathering has been 

clearly discussed. 

Mr. VENTO. Okay. . Mr. TwEETEN. The existing wells are grandfathered with respect 

to permits. That is, we don't require any additional permitting of 

existing wells. There is no restriction, however, in the compact on 

the ability of the Park Service to seek enforcement of its Federal 

reserved water right against an existing well that has a junior priority date. 

Mr. VENTO. All right. And I guess you are interpreting the National Park's Federal reserved water right as being prior to all of 

these, most all these permits? 

Mr. TwEETEN. It is the senior right in that basin. There may be 

some mining rights that existed prior to that time, but those are 

nonconsumptive surface flow rights. We don't believe that there are 

any groundwater rights that predate the Park Service's 1872 permit. 

Mr. VENTO. As you indicated, these surface rights can be very 

important because you need the water either way it's going. I mean 

unfortunately it has to go back down to come up, I assume. We 

don't produce any, I guess, in these aquifers themselves. 

Mr. TwEETEN. And the surface rights are also important for 

other values within the park besides the groundwater values. 

Mr. VENTO. Of course. Yes. 

Well, I note the $2.3 million apparently is one effort. I mean normally if we have water rights and the National Government exercises them, we don't always expect to fund the State in terms of 

its activities, but because of the unusual nature of the geologic and 

hydrologic features here, that is apparently the basis, Dr. Fenn, for 

agreeing to contribute to this. 

The State itself would be making some contribution. Is that correct? 

Dr. FENN. Mr. Vento, yes. The $2.3 million is for the establishment and administration of the controlled groundwater area, specific to Yellowstone National Park. It does not relate to the overall 

water rights that have been negotiated for all the other units of the 

park that were talked about earlier. 

The State will have some contribution. It will be mainly in-kind 

contribution, where members of the DNRC are going to be involved 

or members of the Montana Bureau of Mines. The controlled 

groundwater area will be established and administered by the Department of Natural Resources. The Montana Bureau of Mines and 

Geology will be doing the inventorying and monitoring of wells that 

are in place. It is going to be for primarily those activities that the 

$2.3 million is aimed at. 

We intend that that money will go into a trust account in the 

State. So that what we are trying to achieve is putting enough 

money in to begin with so we will be able to work primarily off the 

interest, and be able to work off that money well into the future 

to fund these activities. 

The department, the State, through this technical committee that 

Mr. Tweeten discussed, has two representatives on that. The State 

will certainly be picking up the full cost of their participation in the 
60 

technical committee and they will be picking up a portion of the 

cost of the fifth person that will be on the technical committee as 

well. 

Mr. VENTO. I appreciate that. Let me just ask one more quick question, Dr. Fenn. Is there anything in the compact that limits the forum where the National Government could seek to enforce its water rights? 

Dr. FENN. No, I don't believe that there is. And I think part of 

the reason why we feel we need this particular bill that has been 

proposed, with what we would propose as amendments, would be 

to help provide us the vehicle for making that enforcement. That's 

the reason we wanted one of our proposed amendments, is that vehicle. Currently this bill doesn't give us that. 

Mr. VENTO. Well, you know we want to cooperate in the adjudication process of the State. Obviously, it has been one that has been 

later on the scene but is very important. But of course the question 

of the United States being able to appeal finally on a decision ultimately is important. We don't want to put too hard an edge on this. 

We hope that it will all be worked out in a context that has been 

subscribed to in the compact. 

Mr. Chairman, thank you. 

Thank you for your patience, Pat. 

Mr. LEHMAN. Thank you. 

Mr. Williams? 

Mr. WILLIAMS. In a moment, Mr. Chairman. Mr. VENTO. Mr. Thomas? 

Mr. THOMAS. Thank you, Mr. Chairman. I am sorry I wasn't able 

to be here earlier. We have a hearing on USDA reorganization this 

morning. 

At any rate, let me say that I do support the concepts in this bill, 

and supported it last year and intend to support it again. 

I am concerned about buffer zones in general and in particular 

here, and I am concerned about State water law in that I think it 

needs to be protected in these kinds of bills. It seems to me we can 

fmd a way. Buffer zones should be limited to this sort of situation, 

and I am interested in insuring that the States continue to have 

as much representation and involvement and, indeed, authority as 

they possibly can. And I would like to work toward that. 

Thank you, Mr. Chairman. 

Mr. LEHMAN. Thank you. 

Mr. Williams? 

Mr. WILLIAMS. Thank you, Mr. Chairman. 

Thanks to each of our panelists for being with us. We appreciate 

your support and appreciate your good counsel on this. 

Let me say to Mr. Tweeten that I am particularly appreciative 

of you and your staff, specifically Ms. Cousins and Ms. 

Cottingham's kindness toward my staff as we worked together on 

the compact. You invited us into the room and were responsive to 

suggestions, and we are very appreciative of that. 

Dr. Fenn, let me follow up on something that Chairman Vento 

asked with regard to the work in Idaho and Wyoming to try to arrive at similar compacts. Has such work started at all? Have we 

begun such a process in either Wyoming or Idaho to move toward 

what we have apparently achieved in Montana? 
61 

Dr. FENN. We have had some preliminary discussions, particularly with Idaho, and we do have some preliminary agreements for 

protection of water resources in Idaho around Yellowstone, but that 

does not include geothermal resources at this point. The Wyoming 

negotiations, at least to my understanding, have not been initiated 

at this point. We are really dependent upon using the Montana negotiating compact, once it's approved, as the role model in working 

with the other two States. 

Mr. WILLIAMS. We, of course, were familiar with the Montana 

work during the last consideration of this bill, but we also knew 

that work had not even begun in the other States, and it was, we 

felt, in the best interest of Yellowstone to not wait the years necessary, although some urged that we wait until each State had 

worked out its own arrangements. But the Committee felt otherwise, and I think continues to hold to that. 

As you remember, Dr. Fenn, during the last Administration, the 

Park Service had one view of subsurface development, geothermal 

subsurface development around Yellowstone, the Department of the 

Interior had a different view, somewhat different view, and it was 

the Department of the Interior's view which was at that time 

brought to this Committee. I assume from your testimony that the 

Park Service still holds its view that you oppose all subsurface geothermal development near Yellowstone Park? 

Dr. FENN. I think that is a fair assessment. We are concerned 

that since it is a very difficult thing to prove or disprove definitively and with very many degrees of significance to the decimal 

point, that we just feel that it's much better to be very conservative 

in what we do so that we don't do irreparable damage inadvertently to the geothermal system. So caution is the way we would 

prefer that subsurface geothermal development proceed anywhere 

near Yellowstone. 

Mr. WILLIAMS. And the change, of course, in this Administration 

was expressed best by Secretary Babbitt, who came before us not 

too long ago. And in a direct and very firm answer to my question 

about whether the Department of the Interior, under his stewardship, had changed its view toward my legislation, he indicated very 

firmly that it had and was now, along with the Park Service, fully 

in support of erring on the side of protecting Yellowstone. 

We all recognize that, given current circumstances, with little or 

no additional drilling into the geothermal resources around Yellowstone, it is unlikely that Yellowstone will be damaged. But unlikely 

isn't good enough, not when you're talking about Yellowstone Park. 

So I am pleased that both the Department of the Interior and the 

Park Service are now on the same side of supporting the zero-risk 

policy. 

Mr. Tweeten, there are currently two subsurface wells in the 

Corwin Springs KGRA. Once the compact is in place, which it currently will be very shortly, what will have happened to the requests for those permits? What would now happen to requests for 

those permits had those wells not been drilled, the permits not 

been given, but that action be taken after the fact of the passage 

of the compact? What would happen to those permits and to that 

request? 
62 

Mr. TwEETEN. Well, Mr. Chairman, Congressman Williams, 

again not being fully conversant with all of the characteristics of 

those wells, but if my understanding is correct that they produce 

water in excess of 85 degrees, the permits would not be issued unless there was a finding made that that water in excess of 85 degrees was not part of the geothermal resource of Yellowstone Park, 

and that finding would have to be made by the Department of Natural Resources before it issued the permit. It would have to be 

made on recommendation of the technical oversight committee. 

Mr. WILLIAMS. Have you or perhaps Mr. Simonich, anyone, been 

in touch, in contact with the States of Idaho, Montana, your counterparts there, about this compact process, and have you offered 

any help in spreading the faith to our brethren? 

Mr. TwEETEN. Mr. Chairman, Congressman Williams, I don't 

know that those contacts have taken place, but we certainly will 

provide whatever assistance we can to those other States in their 

efforts to reach agreements with the Park Service. We think that 

our approach is the right approach in seeking to cooperate with the 

Federal Government, and we will certainly encourage those efforts 

on the part of the other States. 

Mr. WILLIAMS. You worked closely with the process, so you know 

the difficulty and you know the time it takes to move through that. 

Given that experience, do you find value in this legislation in moving it through this Congress, or do you think we should wait until 

those other States come up with-perhaps-come up with a somewhat similar compact to what Montana has? 

Mr. TwEETEN. Well, Mr. Chairman, Congressman Williams, from 

Montana's perspective, we find value in your legislation, but we 

urge you to tailor it to what has happened in Montana. With respect to what the situation might be in other States, it would be 

ironic, I guess, for us to take the position that Congress ought not 

to act. But we do-l mean we acted in our State because we wanted to have a role in the process. And if this legislation is crafted 

in such a way as to encourage the other States to take an active 

role, I think the prospect of having a Federal solution imposed on 

them will certainly give them the impetus that they need to come 

to the negotiating table and reach negotiated settlement similar to 

the one that we did. 

Mr. WILLIAMS. Well, I like to think that the possibility of Federal 

action moved Montana a little more quickly to reach its agreement 

on the compact. 

Mr. TwEETEN. I think that's true. 

Mr. WILLIAMS. Yes. -Subformat: 

Mr. Simonich, it's nice to see you back in Washington. I tell my 

colleagues here that Mark Simonich, prior to becoming the director 

of the Montana Department of Natural Resources and Conservation, worked on the Senate side as a staffer to Montana Senator 

Conrad Bums and advised Senator Bums on a number of issues. Did you advise him on this issue as well, Mr. Simonich? 

Mr. SIMONICH. Mr. Williams, yes, I did. And thank you for the 

kind welcome. [Laughter.] 

Mr. WILLIAMS. You're welcome. 
63 

You are in a critical position now, Mr. Simonich, and I want you 

to know personally that I am very appreciative of the work you did 

after you were confirmed as director to help move the compact. 

Perhaps it was at the confirmation hearing-! don't recall-but 

there was an article, a news article that was printed in the Bozeman Daily Chronicle that came out just after your confirmation 

hearing. You will recognize the headline on this, Mark, that says, 

"Simonich. Not Worried about Geothermal Wells." As you know, 

this Committee is worried about the geothermal wells. 

I assume that, like a lot of headlines, that doesn't quite get at 

what your worry and concern about protecting Yellowstone is. Let 

me tell you frankly I have a worry and concern about your concerns 

and the state of them because, as an adviser to Senator Burns, I 

assume you were one of those telling him this bill didn't need to 

pass last time. 

So, I guess it's appropriate now, because of your critical position 

in the State, for me to first note that your testimony begins by saying you are in strong support of the compact negotiated in Montana 

but does not confirm any support at all for this legislation. 

Does the Department of Natural Resources not support this legislation? 

Mr. SIMONICH. Mr. Chairman, Representative Williams, I guess 

let me, if I could, address a couple of those comments as well. As 

you are well aware, sometimes you are not always reported entirely 

correctly in the press and a lot of time the headline doesn't reflect 

even what is in the article. And in that particular instance, it was 

a rather long discussion with a newspaper reporter and the references in the headline was really to a discussion about the total 

number of wells, geothermal wells, that were currently being 

drilled in the area. And from the information that we had had in 

the department, we didn't see an immediate threat that there were 

a lot of wells being drilled. It does not reflect in any way, shape, or form my lack of concern 

or the lack of concern by the Governor or the State of Montana for 

the geothermal development. We are here because we are very concerned, and we want to make sure that the groundwater resources 

are protected. 

There was, I guess you'd call it, a glitch in the Montana law previously. Geothermal resources were not directly addressed under 

State law. A person could drill a well and if it was under 35 gallons 

a minute-in fact, back a few years ago if it was under 100 gallons 

per minute-they didn't even need to apply to the State for a permit, they could just put it to beneficial use, notify the State, and 

receive a certificate of water right for that. 

That led to the situation that we got into, and I think the bureaucracy in the State, the administration as well as the legislature, has recognized that that was a flaw, and we found a good way 

to work around that is through the compact, put into place a controlled groundwater area that will give much greater control to any 

type of development in that area. 

I addressed specifically the compact this morning because that 

really has been the emphasis of what Montana has been doing. 

Montana, as I said earlier, this is a made-in-Montana solution. Peo-
64 

pie in Montana really worked hard to come to this and show that 

they want to protect the park. The State of Montana certainly would support your bill. We are 

not certainly here opposing your bill. We support the concept of 

protecting the park. As Mr. Tweeten said, we would like to see the 

bill amended so that it does include the provisions of the compact. As Mr. Tweeten stated, I think it would be difficult for us to say 

from our vantage point that we think Federal restrictions ought to 

be placed on one of our neighboring States, however. If the bill is 

crafted in such a way that it encourages theni to come to the table 

and negotiate with the Park Service like Montana did, then that 

would be very helpful for those States. Mr. WILLIAMS. Well, I appreciate your support for the legislation. 

It was that glitch, as you call it, in Montana law as well as the 

many glitches in Idaho and Wyoming law, that prompted people in 

Montana to come up with a Montana-made solution to protect 

America's first national park. This bill was written by Montanans 

and supported by many, many people in Idaho and Wyoming. But 

this bill is in fact a Montana-made solution. That is why I am the 

author of it. 

I agree with you, Mark, that this bill needs to comport now with 

this new development, which is the compact. Had we had the compact when I had first introduced the bill the last time, it would 

have been made to comport with the compact then. But there was 

no compact, and we had to move ahead in its absence. 

And the problem now, I say to my two chairmen, is that we have 

one-third of the problem resolved, Montana's part of it. We still 

have Idaho and Wyoming to go. It seems to me that we ought to 

move ahead with this bill because this bill will become law, in my 

judgment, unless the Senate again delays and defuses it, long before Idaho and Wyoming have their part of a water compact process in place. And so I am hopeful that we will continue to move ahead on it, 

and, Mr. Simonich, I am pleased to have your support for the legislation. And we will bring it, we will marry it with the Montana 

compact. 

Thanks. 

Mr. LEHMAN. Thank you, Mr. Williams. 

Mr. Hinchey? 

Mr. HINCHEY. Thank you very much. I am new to this issue, so let me ask a naive question. First of 

all I want to express appreciation for the bill. Hopefully we will 

have this because it is obviously something that needs to be done 

for the resource. 

Can you describe for me the difference between the legislation 

that has passed the legislature in the compact? Is it that the legislation implements the compact, or what is the distinction? 

Mr. TwEETEN. Mr. Chairman, Representative Hinchey, the legislation, let me back up and put it in context. Under our water adjudication process, water compacts that are negotiated between the 

Federal Government and the Reserved Water Rights Compact 

Commission require approval by the Montana Legislature before 

they become effective. And that is the process that has just been 

completed in our Montana Legislature. 
65 

This compact has been submitted to the legislature. The legislature has approved it. When that occurs, it becomes State law. It, 

in essence, amends our Water Use Act to conform the Water Use 

Act to the compact. 

Mr. HINCHEY. Is there a way to determine the differences in the 

level of protection that would be afforded the resource in comparing 

what is done in Mr. Williams's bill and the legislation that you 

have just passed? 

Mr. TwEETEN. Mr. Chairman, there are differences between the 

bill and the compact. The bill adopts a 15-mile buffer zone. The 

compact adopts a somewhat smaller buffer zone with somewhat 

more sharply defined edges, shall we say. The bill provides a moratorium on hot water development. The compact provides what is, 

in effect, a moratorium on hot water development. The compact 

does not address existing wells. The bill, as I understand it, does. I think those are the major differences between the bill and the 

compact. 

The compact, in addition, does a lot of other things as well with 

respect to Glacier Park, with respect to the Big Hole Battlefield, 

with respect to surface flows for those two units and for Yellowstone Park that are not addressed by the bill. 

Mr. HINCHEY. Yes. And that is all very commendable, and I 

think that is very much to your credit. But I am just thinking 

about it now in the context of the protection of that particular resource within the park. And it would seem that the bill provides 

perhaps a greater degree of protection in the setting of that 15-mile 

limit, although it's an arbitrary limit, obviously. It would seem that 

that is a greater protection than what has been established in the 

compact. Is that not correct? 

Mr. TWEETEN. Well, Mr. Chairman, I think the boundary that we 

have done in the controlled groundwater area is a boundary that 

was drawn with reference to specific scientific recommendations 

that were made a working group of scientists who reviewed the ge- ology in the area and made determinations about where those lines 

ought to be drawn. And their conclusion is that anything outside 

of that line has no possible impact on the resource in the park. 

So, to the extent that the lines are different, I don't think that 

the difference in the lines makes any difference because anything 

that is outside the controlled groundwater area, we have been told, 

is not an area of concern to the geothermal resource in Yellowstone 

Park. 

Mr. HINCHEY. And the controlled groundwater is based on the 

temperatures, as you stipulated, 60 degrees and 85 degrees? 

Mr. TwEETEN. There are varying restrictions depending on the 

temperature of water that is produced by a well in the controlled 

groundwater area. That's right. 

Mr. HINCHEY. But anything that falls below 60 degrees is notrestricted or controlled under the provisions of the compact? 

Mr. TwEETEN. Except with respect to registration and data gathering, that is true as of now. The compact puts in place a process 

for adding restrictions on cold water development if the scientific 

data suggest that that is necessary. 

Mr. HINCHEY. Sixty degrees seems rather warm to me. What was 

the basis for choosing that particular number? 
66 

Mr. TwEETEN. It was chosen based on the recommendation of the 

scientific working group. We were told by the scientists that water 

below the temperature of 60 degrees Fahrenheit is not geothermal 

water. 

Mr. HINCHEY. So it's not water that comes from a geothermal 

source; that is water that has not been heated by a geothermal 

source? 

Mr. TwEETEN. I think that's correct. Mr. HINCHEY. Was there any consideration taken with regard to 

water that may enter the geothermal source and then be heated, 

any notion of protecting or paying attention to that particular 

water? 

Mr. TwEETEN. With your indulgence, I think I would like to refer 

that question to our counsel. Would that be all right? 

Mr. HINCHEY. Sure. 

Ms. CousiNS. Mr. Chairman, and Congressman Hinchey, therecharge areas that are designated within the controlled groundwater 

area were designated with that in mind. The bulk of the area within those are under wilderness status. So it was considered that 

there was not a need for limits on the development of cold water 

that might be recharging the system at this time. 

If I may, I would like also to point out that the compact actually 

goes much farther than what the Williams bill, as written, would 

do. That bill does not take into account inventory of cold water 

wells or the possibility of limiting them in the future if there is a 

cumulative impact from their development. 

It also does not provide an enforcement mechanism by which to 

keep track of permitting and have continuing jurisdiction to modify 

permits in the future. It also refers only to geothermal resources 

which, in general, depending on various State laws, but in general 

is considered above 90 degrees Fahrenheit. 

Mr. HINCHEY. If I may ask another question, based on your professional knowledge, how important is it relatively? I understand 

that the protection that has now been afforded in Montana is substantial and significant. How important is it relatively to engage 

the same kind of protection in the two other States that are involved? 

Ms. CousiNS. Mr. Chairman, Congressman Hinchey, I don't 

know specifically the geology in those areas. I know in the Island 

Park area there are geothermal resources, and that would certainly 

be a very important area to protect. Most of the studies that have 

been done on the geothermal resource consider that the recharge 

areas are to the northeast and the northwest of the park, which are 

the areas in Montana, not areas in Wyoming or Idaho. 

Mr. HINCHEY. Thank you very much. 

Mr. LEHMAN. Thank you very much. 

Are there other questions? Mr. Vento? 

Mr. VENTO. Mr. Tweeten, under the compact that has been developed, who will have the burden of proving the negative; that is, 

that hot well water is not hydrologically connected to the Yellowstone system? Who would have that burden of proof? In other 

words, are you going to have to prove the negative, or is somebody, 

is it the applicant's responsibility or is it the Park Service's responsibility or the State's? 
67 

Mr. TwEETEN. Mr. Chairman, with respect to wells that are producing hot water, I believe the burden falls on the applicant for 

proof that it is not hydrologically connected. 

With respect to cold water wells, I believe the burden falls on the 

Park Service to prove that there is a hydrologic connection. 

Mr. VENTO. You described cold water wells as those that have 

temperatures below 60 degrees Fahrenheit? 

Mr. TwEETEN. Right. I think that's right. 

Mr. VENTO. Well, fine. Mr. Chairman, I appreciate the responsiveness, and I realize we are asking some difficult questions. As 

Ms. Cousins was noting, since the initial bill, there have been 

many refinements in this. In fact, I notice the recharge area goes 

outside the 15-mile limit. 

So it is interesting to get the input and to try to get this more 

precisely. I guess we are going to have to figure out how to reference that. I don't think we are going to put the entire compact 

in the legislation and repass it. That I can tell you right now, Mr. Williams. 

Do you have any further questions, Pat? 

Mr. WILLIAMS. No. 

Mr. VENTO. I would thank the chairman. 

Mr. LEHMAN. Thank you very much. 

We appreciate your testimony and look forward to working with 

each of you. Now we will hear from our next panelist, Mr. Ed Francis. Mr. Francis, welcome to the Committee. We appreciate your 

being here today. Without objection, we will put your complete 

statement and any other documents you have for the Committee in 

the record, and we will ask you to proceed. 

STATEMENT OF EDWARD L. FRANCIS, VICE PRESIDENT, 

CHURCH UNIVERSAL AND TRIUMPHANT, INC., CORWIN 

SPRINGS, MONTANA 

Mr. FRANCIS. Thank you, Mr. Chairman. As noted, my name is 

Edward L. Francis, and I am the vice president and business manager of the Church Universal and Triumphant. 

The headquarters and religious community of our church are located within the Corwin Springs Known Geothermal Resources 

Area, and we stand to be directly impacted. The church does own 

water rights to La Duke Hot Spring dating back to 1899, as well 

as to a thermal well on its property drilled in 1986. In 1987 I gave testimony on the Geothermal Steam Act Amendments bill. That law imposed a temporary moratorium in the 

KGRA and directed the U.S.G.S. to conduct a study on the impact 

of potential geothermal development on Yellowstone National Park. 

With regard to the church's existing well, the U.S.G.S. specifically found that hot water could be withdrawn at the rate of 180 

to 140 gallons per minute without any risk whatsoever of adverse 

effects on the park's thermal features. 

As I have stated in testimony on the predecessor to this bill in 

the 102nd Congress, we are concerned that a proposal to create a 

permanent ban on geothermal resource use in the KGRA is in fact 

primarily directed at confiscating all of the church's geothermal 

water rights both at its well and the spring. 
68 

We do not suggest that this is based on any form of discrimination. It is based primarily simply on a reading of the wording of 

the bill. Previous testimony and debate on this proposed legislation 

has concentrated on the lack of State regulatory restrictions as well 

as on the issue of whether or not it constitutes a taking of private 

property. 

In particular, it was asserted that the church had not been 

granted a water right and, therefore, had no property rights associ- ated with its well. However, factual and legal information developed in the Senate Energy and Natural Resources Committee disclosed that, without revision of the bill, the taking likely would 

have been effected. This assessment was based upon a number of 

different factors, each of which still appears to be present in the 

current bill. 

In 1992 the church was granted a water right to its thermal well 

by the State of Montana for production at a rate of approximately 

33 gallons per minute, not to exceed 6.4 acre-feet per year. This 

volume of use equates to a year-round sustained production of 

under four gallons per minute and totals under five percent of the 

no-impact parameters specified by the U.S.G.S. 

Objections to this water right on several grounds were considered 

and were rejected by the Montana Depar ment of Natural Resources and Conservation, as we have heard today, the State's 

water adjudication authority. 

The well installed on the church's property in 1986 is tangible 

property, similar to a building or structure. Water rights granted 

by the State of Montana are recognized as a distinct property right 

pertinent to the well. We believe that if the Congress prohibits the 

use of this facility and the exercise of the water rights in spite of 

the U.S.G.S. findings of no risk to Yellowstone Park, it will be effectively taking the church's property for public benefit without the 

constitutionally required compensation. 

All of this information together resulted in the unanimous adoption in the Senate Energy Committee of bipartisan amendments 

which recognized the right of a property owner to receive just compensation for the loss of any State-recognized property rights and 

provided for the moratorium to be lifted when the affected States 

enacted laws that protect Yellowstone Park. 

More recently, the State of Montana, through its Reserved Water 

Rights Compact Commission, has negotiated the compact, which 

has been referred to, with the National Park Service, which establishes the Yellowstone Controlled Groundwater Area adjacent to 

the park. The compact utilizes the existing system of adjudicating 

Federal water rights claims under State law and avails itself of 

well-recognized State authority to establish and regulate controlled 

groundwater areas in order to achieve ironclad protection for Yellowstone Park's hydrothermal system. It is significant to note that no taking of private property is indicated by these regulations. It is now therefore clear that Montana will be regulating the appropriation of geothermal water so as to protect Yellowstone Park 

and that no existing water rights, including the rights held by the 

church, will in any way affect the park's thermal features, including Old Faithful. 
69 

However, as currently drafted, we believe that H.R. 1137 is in 

conflict with the Yellowstone compact in that it appears to abrogate 

the State's right to regulate water within its borders. It enacts restrictions that are unnecessary and are inconsistent with the compact and will cause the taking of existing water rights recognized 

under State law without just compensation. 

We therefore recommend that the bill be revised to eliminate the 

ban on the use of existing water rights in the KGRA, to recognize 

the Yellowstone compact in Montana in lieu of any moratorium, 

and also to enact into Federal law those provisions needed to give 

the compact full effect. Such revisions would appear to be consistent with the bill passed out of Committee in the Senate last year. 

If this is done, we can all be assured that the thermal wonders 

of Yellowstone National Park will be protected and preserved for 

posterity and that private rights and State prerogatives will not 

have been unduly impaired in the process. Mr. Chairman, we believe that it is fitting that the hearing on 

this bill is being held on Earth Day 1993. This occasion may be 

used to show that man can live in harmony with the environment 

and that our cherished rights and liberties in this Nation secured 

by the Constitution need not be suppressed or compromised in 

order to achieve that harmony. 

Mr. Chairman, I wish to thank you for this opportunity to express our concerns to the Committee, and I am open for any additional questions that members of the committee may have. 

[Prepared statement of Mr. Francis and attachments follow:] 
70 

Statcmt!%lt of 

CHURCH UNIVERSAL AND TRIUMl'HANT, INC. 

Bax 5(XX), Corwin Springs, Monwna 5903G-5(XX) 

Tnsaued !Jy 

EDWARD L. FRANCIS, Via Preside111 

For a Joint Hearing on 

H.R. 1137 

'70 AMEND THE GEOTHERMAL STEAM ACI OF 1970 

(30 U.S. C. HXJ1-1027), AND FOR OTHER PURPOSES" 

Before tk 

ENERGY AND MINERAL RESOURCES SUBCOMMI"JTEE 

andtk 

NATIONAL PARKS, FORESTS, AND 

PUBUC UNDS SUBCOMMITTEE 

oftk 

HOUSE COMMITTEE 

ON NATURAL RESOURCES 

April 22, 1993 
71 

EXECUTIVE SUMMARY 

" . The headquarters and religious community o f Church Uni versal and 

1 nu mphant are located to the north of Yellowstone National Park and are contained 

within th" Corwin Springs Known Geothermal Resources Area (KGRA) as well as the 

15-md!! buffer zone proposed in H.R. 1137. The church owns water rights to LaDuke 

Hot Spring and to a thermal well on its property within the area. 

Hot water was first appropriated from LaDuke Hot Spring by the church's 

predecessors in 1899. In 1986 the church installed the thermal well at the site of 

its 1Ww headquarters. The c~urch volunt<u1ly . agreed to cap the well and cooperate 

wnh a congresswnally authorized U.S. Geo.ogtcal Survey (USGS) study of potential 

impacts on Yellowstone Park's geothermal features. 

The USGS study released in 1991 specifically found that hot water could 

be wiU1drawn from the well at a sustained rate of 5-9 Us (80-140 gpm) without any 

nsk of ~dve se effects on ·the park's thermal features. An ·rmpact Analysis " issued 

by Y c:l lowst.one Park did not controvert the USGS findings perta.tnlilfl to the church's 'fiCll . 

Previous testimony and debate on the pn:decessor to this bill in the 102nd 

Congress (H.R . 3359) concentrated on the lack of state regulatory restrictions to 

prevent adverse impacts to Yellowstone Park hydrothermal systems, as well as on 

the iss ue of whether or not the legislation constitutes a "taking" of private property 

under applicable law. In particular, it was asserted that the church had no property 

ri!i hts associated with its well that would be lost. 

Factual and legal information developed in the Senate Energy and Natural 

Resou rces Committee disclosed that, without revision of the bill, a taking likely wou ld have been effected . This resulted in the unanimous adoption of bipaJt isan 

amendments t6 the bill in the Senate to address the taking issue and to allow states 

to adopt regulations to protect Yellowstone Park. We supported this amended version 

of the legislation. 

We are concerned that the proposed ban in the Corwin Springs KGRA (as 

provided in Section 2 of the bill) is in fact primarily directed at our church. The 

church is the only private holder of existing thermal water rights and is the owner 

of over two-thirds of the private property in the small area that comprises the 

KGRA. As currently written, H.R. 1137 would appear to confiscate all of the church's 

geothermal water rights, both at its well and spring, without due process and without 

any provision for just compensation. 

In 1992 the church was granted a certificate of water right to its thermal 

well lJv the state of Montana totaling 33.5 gpm, not to exceed 6.4 acre-feet per 

year. ·Th is use equates to a year-round sustained production of under 4 gpm, and 

totals under 5 percent of the no-impact parameters specified by the USGS. 

Objection s to this water right on several grounds were cons1dered and reJected by 

the !llontana Department of Natural Resources and Conservation, the state's administrative water adjudication authority. The Mont~na J?epartment of Health and Envi~onmental Sciences also confUllled those conclusJOns m an envtronmental unpact 

state1;1cnt issued late last year. 

-1-
72 

More .re~ently, the s~te of Montana, t!Jrol!gh its. Reserved Water Rights 

Compact Comnuss10n, has negotiated a compact w1th the NatiOnal Park Service which 

establishes a "Yellowstone Controlled Groundwater Area" adjacent to the park. The 

boundan~ of the area were drawn .bY a P'l?el of qualified scientists and range from 

several m1les to more than fifteen miles outs1de of the park. Permits may be obtained 

to appropnate .geothermal. groundwater after January 1, 1993 only after review by a 

techmc;U ovemght .committee comj)Osed of state 3f1d federal scientists (including the 

Nauonal Park Serv1ce) and a. showmg by an applicant through clear and convincing ev 1d Cr>\:t~ that the appropnat10n does not 1ncl ude Yellowstone Park hydrothermal water. 

The compact utili zes the existing system of adjudicating federal water 

rights claims under state law and avails itself of well-recognized state authority to 

establish and regulate controlled groundwater areas in order to achieve ironclad 

protection for Yellowstone Park's hydrothermal system. The compact even goes a 

step fimher than the pending federal legislation by regulating the future appropriation 

of nongeothermal groundwater that rna¥ recharge the Yellowstone hydrothermal 

system. Yet it does not constitute a taking. The Yellowstone compact is presently 

being zpproved by the Montana legislature. 

It is now therefore clear that Montana will be regulating the appropriation 

of geothermal water so as to provide full protection for Yellowstone Park and that 

no existing water rights, including the rights held by the church, will in any way 

affect any of the park's features, including Old Faithful. We have fully supported 

the enactment of this compact. 

However, as currently drafted, H.R. 1137 is in conflict wiU1 U1e Yellowstone 

compact in that it appears to abrogate the state's right to regulate water within its 

borders, enacts restrictions that are unnecessary and are inconsistent with the com- pact, and will cause a taking of existing water rights recognized under state law 

without just compensation. 

We therefore recommend that H.R. 1137 be revised to eliminate the ban on 

the use of existing water rights. in . the Corwin Sprin.gs KGRA, to _recogn ize the 

Yellowstone compact in Montana m lieu of any moratonum and e~act mto law t!J?se 

federal provisions needed to give the compact full effect, and to 1nclude a prov!Slon 

liftin g the moratorium in Wyoming and Idaho when those states enact laws that 

regulate geothermal development and protect the park's thermal features. 

If this is done we can all be assured that the thermal wonders of 

Yellowstone National P~k will be protected and preserved for posterity and that 

private rights and state prerogatives will not have been unduly impaired in the 

process. 

It is fitting that the hearing on this bill i~ be!ng held on ~~~ Day 1.993. 

This occasion may be usc;ct to s~ow that m3? ~ li~e Ul harm~ny w1th the envrron- ment and that our chenshed nghts and hberlles ~~ th1~ natto n, secure~ by the 

Constitution, need not be suppressed or compromised tn order to ach1eve that 

harmony . 

II II II 

-2-
73 

STATEMENT 

BACKGROUND 

Mr. Chairman , my nan1e is Edward L. Francis. I am the vice president and 

business manager of Church Universal and Triumphant. 

H.R. 1137 seeks to impose a permanent ban on the use of any geothermal 

well within the Corwin Springs Known Geothermal Resources Area (KGRA) It also 

seeks to impose at least a four-year moratorium in the states of Wyoming, Idaho 

and Montana on the use of any geothermal wells within 15 miles of Yellowstone 

National Park while a new study is conducted by the National Park Service (NPS) in 

consu ltation with the Forest Service and the United States Geological Survey (USGS). 

The headquarters and religious community of our church are located within 

the Corwin Springs KGRA, as well as within the 15-mile buffer zone proposed in 

H.R . 1137, and we stand to be directly impacted. Hot water from LaDuke Hot Spring 

was fust appropriated in 1899 and used by our predecessors to heat a 72-room hotel 

and health spa. In 1986 we, as the owner of all of the private water rights to the 

sprin g, drilled a well at our headquarters 700 feet away, across the Yellowstone 

Ri ver. The installation of the well and associated facilities was, and has remained, 

within the provisions of Montana Water law. 

In 1987 I gave testimony on the Geothermal Steam Act Amendments bill, 

which was eventually passed as Public law 100-443. That law imposed a temporary 

mora torium on production from existing and new geothermal wells in the Corwin 

Sprin gs KGRA and directed the USGS to conduct a study on the impact of present 

and potential geothermal development on the thermal features within Ye llowstone 

Park. 

Concerns were expressed by park officials and members of the public. 

Because of the importance of this issue, we were careful to exercise re straint and 

to cooperate in the gathering of scientific data for the USGS study. We stated 

from the beginning that we would abide by the USGS conclusions. 

-3-
74 

In 1991 the study was compleu:d and trammitu:d to Congress. 111e report 

issued by the USGS drew scien tific conclusions concerning the effects of potential 

gcothcnnal development in the KGRA , particularly with regard to the e,Usting thertnal 

weU on the church's property . 

In the 102nd Congre.s~ a bill ~imilar to H.R. 1137 (H.R. 3359) was passed 

by the House of Representatives. The bill wa,; amended in the Senate Energy and 

Natura l Resources Committee in several respects, but was never acted upon by the 

full S~::nate. 1 gave testimony on this bill in 1991 and in 1992. 

As I have stated in prior testimony, we are concerned that the proposal 

for the addition of Section 30 to the Geothermal Stearn Act (as provided in Section 2 

of the bill), which would create a pennanent ban on geothertnal resource use in the 

Corwin Springs KGRA is in fact primarily directed at our ch urch. The church is 

th e or.ly private holder of existing thennal water rights and is the owner of over 

two-thirds of the private-property in tl1e small area that comprises the KGRA. 

The USGS report set forth general and specific findings. With regard to 

th e ch urch's existing well, the USGS specifically found that hot water could be 

withdrawn at the rate of 5-9 Us (approximately 80-140 gpm) without any risk whatsoever of adverse effects on the park's thermal features. 

A separate "Impact Analysis" issued by Yellowstone Park did not controvert 

the USGS findings pertaining to the church's single well and existing water rights. 

Yellowstone Park Superintendent Robert D . Barbee stated in his report that the 

church's "single well is not the issue.· Rather, he warned of the dangers of proliferating geothermal development throughout the entire region around the park. 

In addition to banning the use of any new or existing geothermal wells, 

proposed Section 30 would also prohibit the "development of ... any facility related to 

the use of subsurface geothermal resources" within the Corwin Springs KGRA. 

These restrictions are worded vaguely and could inadvertentl y result in the confiscation of the church's water rights at LaDuke Hot Spring . Under Montana Water 

Law, the legal definition of a well includes a developed spring . The facilities at 

LaDuke Hot Spring also have subsurface components, such as an infiltration gallery , 

spring reservoir and water collection and conveyance piping . 
75 

As currently written, H.R. 1137 would appear to be directed at confiscating 

~II of tht: church's geothermal water rights, both at its well and the spring, without 

dut; process and without any provision for just compensation. 

Previous testimony and debate on this pcoposed legislation has concenlr.!ted 

on th<.: lack of state regulatory restri.ctions to prevent adverse impacts to Yellowstone 

Park hydrothermal systems, as well as on the issue of whether or not the legislation 

constitutes a "taking" of private property under applicable law. In particular, it was 

assert ed tl1at the church had not been granted a water right and therefore had no 

property rights associatedwith its well that would be lost as a result of the ban to 

be imposed within the Corwin Springs KGRA. 

However, factual and legal information developed in the Senate Energy and 

Natur al Resources Committee disclosed that, without revision of the bill, a taking 

likely would have .been effected by the ban. This taking assessment was based upon 

a number of different factors, each of which is still present in H.R. 1137. 

TAKING OF f'RNATE PROPERTY wmwur JUST COMPENSA110N 

First, proponents of the legislation have argued that the ban does not 

constitute a taking because it is merely a land use regulation instead of an actual 

confiscation . Cases have been cited upholding the regulation of private property, 

wi thout constituting a taking, in situations where there is a 'legitimate government 

interest." Certainly, the protection and preservation of Yellowstone Park's thermal 

fe3tures can be said to constitute a legitimate government interest. 

However, information submitted to the Senate Energy and Natural Resources 

Commi ttee pointed out that, according to the cases, such regulation must also Sl.!h:: 

stantially ~ the purported purpose of the regulation or it will be recognized 

as a taking. There must be a "precise fit" between the statutory end sought to be 

achieved and the means chosen to achieve it. Normally, this involves choosing U1e 

"least restrictive means" of achieving the legitimate government interest. 

Information was also submitted to the committee showing that a water 

right is considered to be a distinct and separate property right under Montana law. 

-5-
76 

H.R. ll37, and the prior legislation, have sought to ban not only the future 

appropria tion of thermal water within the Corwin Springs KGRA but also existing 

water rights, without clear justification. In particular, the findings of the USGS 

report and other scientific studies do not justify an absolute ban nor is there any 

indication that the e~ercise of the existing water rights will adversely impact 

Yell ow stone Park. It therefore follows that if a total ban is enacted, as opposed to 

less restrictive means of regulation tha.t are available, a taking is indicated. 

This is consistent with Superintendent Barbee's recommendation that no 

subsurface development be permitted. with the Corwin Springs KGRA based upon his 

concerns bout setting an adverse precedent, rather than upon any documented 

impacts or threats. In h"is transmittal memo of June 21, !991 accompanying the 

"Impac t Analysis" to the Director of the NPS, Superintendent Barbee stated that 

such a ban "would require congressional action that would constitute a federal 'taking' 

of the geothermal resource in the KGRA," 

Copies of the legal and factual information submitted to the Senate Energy 

and Natural Resources Committee in 1992 are also being submitted for the record in 

these current proceedings on H.R. 1137. 

In 1992 the church was granted a Certificate of Water Right to its thermal 

well by the state of Montana for production at a rate of 33.5 gpm, not to exceed 

6.4 acre-feet per year (copy attached). This use equates to a year-round sustained 

production of under 4 gpm, and totals under 5 percent of the no-impact parameters 

speci tied by the USGS . ·Objections to this water right on several grounds were 

co nsidered and rejected by the Montana Department of Natural Resources and 

Conservation, the state's administrative water adjudication authority. 

One such objection was the claim that the well was illegally drilled in 

1986. As has been pointed out in previous hearings, prior permits were required at 

that time only for wells intended to appropriate over 100 gallons per minute. Since 

this well was drilled as a test well and the amount of any possible appropriation 

had not been determined , those provisions did not apply . Furthermore, a few hours 

of pump testing in 1986 did not constitute an appropriation or an intent to appropriate over 100 gpm. 

-6-
77 

Another objection was that the church allegedly breached an agreement 

with the Montana Department of Health and Environmental Sciences in the 

appropriation of 33.5 gpm that occurred in 1992. However, that prior agreement 

pertained only to a contemplated "change in the point of diversion" of the existing 

water rights held by the church to LaDuke Hot Spring at a rate of up to 400 gpm, 

a pmcess which would have required prior state approval. The agreement did not 

appl y to exempt appropriations of under 35 gpm, for which no state permits were 

required in 1992. The department confirmed these conclusions in an environmental 

impact statement issued late last year. 

The well installed on the church's propeny in 1986 is a tangible property 

asset similar to a building, structure or appurtenance placed upon private land. It 

is not a speculative idea or future plan, but an existing facility ready to be used. 

Water rights to the well granted by the state of Montana in 1992 are also recognized 

as a distinct property right appurtenant to the well. If the Congress prohibits the 

use of this facility . and the exercise of the water right, in spite of the USGS findings 

of no risk to Yellowstone Park, it will effectively be taking the church's property 

for public benefit without the constitutionally required compensation. 

It has been argued by some that the government should not pay a property 

owner to refrain from damaging the environment. However, whether or not that 

familiar argument may be valid in other cases, it clearly does not apply here. The 

USGS has specifically found that the church's use of its single well at rates below 

80 to 140 gallons per minute will not adversely impact any of the park's thermal 

features. 

Yellowstone Park officials have not contradicted the USGS on this issue. 

Specifically with regard to the church's single well, Superintendent Barbee has said, 

"It 's not one well but the precedent of starting to drill holes into these aquifers. 

It's the next 10 wells, 20 wells, 200 wells that people keep punching" (see attached 

copy of article from Bozeman Daily Chronicle, 6/30/92). This position was summarized 

in a later article as follows: "Yellowstone Superintendent Bob Barbee said earlier 

this year the Church's well itself may not have an impact on Yellowstone but it 

sets a precedent for other drilling in the area" (see attached copy of article from 

Bozem~o..Jl~lv Chronicle, 9/14/92). As I have stated in prior testimony, the church 

has no intention of drilling any other thermal wells. 

-7-
78 

The factual information and legal opinions offered to the Senate Energy 

and Natural Resources Committee arc not inconsisten t with the opinions given by the 

Cong ressional Research Service on this subject. All of this informati on taken 

together resulted in the unanimous adoption in the Senate of bipartisan amendments 

to H.R. 3359 which recognized the right of a property owner to receive just compensation for the loss of any state-recognized property rights, and provided for the 

moratorium to be effective only until the affected states enact laws regulating geothermal development in a manner that protects the thermal features of Yellowstone 

Park. We supported this amended version of the legislation. 

STATE REGUlATION wmiOUT A TAKING 

More recently, the state of Montana, through its Reserved Water Rights 

Compact Commission, has negotiated a compact with the NPS which establishes a 

"Yellowstone Controlled Groundwater Area" adjacent to the park. The boundaries of 

the area were drawn by a panel of qualified scientists and range from several miles 

to more than 15 miles outside of the park. Pennits may be obtained to appropriate 

geothennal water after January I, 1993 only after review by a technical oversight 

committee composed of state and federal scientists (including the NPS) and a showing 

by an applicant through clear and convincing evidence that the appropriation does 

not include Yellowstone Park hydrotlJ<!nnal water. 

The compact utilizes the existing system of adjudicating federal water 

rights claims under state Jaw and avails itself of well-recognized state authority to 

establish and regulate controlled groundwater areas in order to achieve ironclad protection for Yellowstone Park's hydrothennal system. The compact even goes a step 

further than the pending federal legislation by regulating the future appropriation of 

nongeothermnl groundwater that may recharge the Yellowstone hydrothennal system. 

Since the regulations attempt to use the least restrictive means of achieving the 

purpose of protecting Yellowstone Park's hydrothermal system, no taking of private 

property is indicated. 

The Yellowstone compact has passed the House of Representatives of the 

Montana Legislature and is e:o:pectf'.d to be passed shortly by the Montana Senate 

and signed into Jaw by the Govemor. 

-8-
79 

It is now therefore cle<u" that Montana will be regulating the appropriation 

of geo thermal water so as to protect Yellowstone Park and that no existing water 

ri ghts, including the rights held by the church, will in any way affect any of the 

park's features, including Old Faithful. We have fully supported the enactment of 

this compact throughout the process. 

However, as currently drafted, H.R. 1137 is in conflict with the Yellowstone 

compact in that it appears to abrogate the state's right to regulate water within its 

borders, enacts restrictions that are unnecessary and are inconsistent with the compac t, and will cause the taking of existing water rights recognized under state law 

without just compensation. 

We therefore recommend that H.R. 1137 be revised to eliminate the ban on 

the use of existing water rights in the Corwin Springs KGRA, to recognize the 

Yellowstone compact in Montana in lieu of any moratorium and enact into law those 

fcd~r al provisions .needed to give the compact full effec t, and to include a provision 

lifting the . moratorium in Wyoming and Idaho when those states enact laws which 

reg ulate geothermal development in such a manner as to protect the park's thermal 

feat ures. Such revisions would be consistent with the bill passed out of committee 

in the Senate last year. 

If this is done, we can all be assured that the th erma l wonders of 

Yellowstone National Park will be protected and preserved for posterity and that 

privat e rights and state prerogatives will not have been unduly impaired in the 

process. 

It is fitting that the hearing on this bill is being held on Earth Day 1993. 

This occasion may be used to show that man can live in harmony with the environmer.t and that our cherished rights and liberties in this nation, secured by the 

Con sti tution , need not be suppressed or compromised in order to achieve th at 

harm on y. 

Mr. Chairman, I wish to thank you for this opportunity to share our concerns wi th the committee and I would be pleased to answer any additional questions 

th~t members of the committee may have. 

II It It 

-9-
~ 

:.: : • •• !.~ ! . ; 

I T H f ~ 

80 

STATE OF MONTANA 

DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION lmUSTSIZlHAY( +IUf H[l[NA. YOHUHAJIUO 

Certificate of Water Right Ce~TIFtCA E OF WA TER R IGHT I S HEREDY I SS UEU TO: 

~~U=~~ NfVERSAL C TRIUNPtiANT INC 

CORW[N SPRINGS I"'T 590,<!1 

-· c. -<- •V >oi.>C W:~( ; 

~ ~ UPOU FlN O ING TH ~T THE REQUIREP'I €NTS OF SECTION 05 -.?.-301 t"' CA ~ HAVE OEEN rtET . 

%~!l. IIE:l£.1li..E..._Of_llla!.J;;&....E...lli.l:ll..lillru!l::B: 8 1814.--,; 4J B 

~!.!_9B..L!Y_~ £: JUNE 29, 1 992 AT 11 :J S Aol'1o 

IQIJ!b_~Q~lc= JJ.so GPn 

TOT AL VOL.l!M: 6o40 AC R€ FEET P€R YE AR 

.!!..!li.f~!Q!:L...£Q l~! : HESW SW SEC, J ?.. T~P , 06$ RGE, 08~ PA RK C O 

QYB££: AOUNO~ATER WELL 

: 3 3 .5 0 GP H U P TO 6.40 AC-F "f ( 03/01 - 10/ 31 ) 

F OR 1 RR I G AT I ON 

UP TO 6.40 AC-FT (O:l/01-10/31) FOR RECREATION 

ON 'J . OO ACRES 

PLA£ € OF _ _t.!g: SWSW SEC. 3 2 TIOP. 085 RGE. OSE PARK CO 

FOR IRRIGATION ON 3. 00 AC RES 

SWSW SEC . 32 TWP. 085 RGE. 08E PARK CO 

FOR RECREATION 

** fl!!..Qg_B l.~ll : THIS CERTIFICAT E I S I SSUED SUBJECT TO Al..L PR !OR EXISTIN G WATER RIGHTS 

IN TH E SOURC E OF SUPPLY. 

~ ** EMB.I!j£ B.._l.tif.QE!!E ll~: TH E REC~ ATlON USE IS F OR A THERAP EUTIC HOT POOL . 

~f~ ~~ ~~Y :~a~.liS:R~~r~~fOfafi~~!~1~~~-BE ~~- ~ 

•• IRANSE SE...Q E....Jl.l!!!§~!~: UPIJN A CHANGE IN OWNERSHIP OF ALL OR ANY PORTION OF THIS CERTIFICATE, 

TH'E P ART I ES TO THE TRANSFER SHALL FILE WITH THE OEPARTN'EN T OF NATURA L 

O~ESOURCES ANO Cll tiSE RVATION A WATE R RlGHT TRAN SFEO CERTIFICAT E , 

~FORI"! 608 , PURSUANT TO SCCTION 85-Z""~2.4-, ~CA. 

~ 0 

~ 

~ 8 

( (~. { PR0~51S~~--- ---- --- -----

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81 

-------- ------ Bozeman Daily -----------

CHRONICLE PttMrmJ!Ikf'FQ_tftij.,t.t,M6Mft!.! a h ·~· .. ' .. ···,,;;;,~, .. ' . ' 

Chttrch taps geothermal well 

Ur scc'fiT~1c;\{iu j(iN - Chrooidr. ~W:j ---

UVL"{GSfON -- in .w clforl lo 

plu!l a 1~111 loo1Jh oie. the ChW"'C.h 

Univcn.nJ anrl Triumvhlllt ha." uncapp t d ita gcotherrc;al well nnd 

6Ued a ~ pool with tl1 t ho t watu it produ ~ 

The rnov r cov !d Oo lstcr the 

Chi.U'th's 2J"iUffien~ :hat i~ deserve-e 

to bt compeu!!..1red - ~s.3ihly to 

Taps/rrompage 1 

Purnpin a ~g:m on SWI(\zy, chun;h 

vice pre=iden t Ed Fra.nc:!.s Solid ln a pr"B N:!cue Mo!ld.3y. The move 

ls an dfort to ~d o~ a !oopholt:· in a.rg umenta by people "ho don 't 

want Ule govt:n: nu:OI to gife the 

church any mont: y if fedco.ra.l h." 

!Jam. 'T.lopmt~nl ol iLs wcU 

And J th e t:burch li!l ed out IL<~ 

papl" rwu rk curn·ctly. it pruU;~bly 

h~ csUtUlhht.1.l :. t:c"' but liwited 

wacer riY.hC wit:~ its well ou U1e 

west bW. of th~: Y d!uw-11tone RJ..,. er, thf' DNRC t~.,.1 r s.'\!cl 

•tt is a nt"w right~ and d~ nol 

affect tbc church's ril!:hls lu 

l.aOuJ.;e Hot Spriog on the other &id e of the river, Mac lutyre ».id. 

a8y b" the department h.u to is- sue a 'Niter rtght• U U1e chun:h'a 

app~C2ti oo i11 complete and the u&e 

of the watu !s "benclkbl. • Macin tyre ~u d department sta!fen ~cond uct a tie!d ln~­

ga tioo of thr: well to determ.lue iJ 

what h Ol\ th e gJuund ~~with 

~h alls in th e p.1(1Ct"\\'Ork. 

Frauds s aid th~ church h'" b ui lt a 5Yti mi:l~ puol ne ar the 

we!l, which ~ un a urns~y bench used lor storin,; trail er'3 atJd Is a 

rnile or murc from tMe- cht.m:h'4lo· hablted St.n.J ctures Thc church 

want~ cv \tuath· to t:u\ld a new 

headqumers corilVICJt lh <~:n~ . A 32-

pllon '\)t!l'·rninutc pump and IIS.wci· 

ated piping hiM! be-t;; installed on 

the wtll. Fr~nri ~ sait!. 

th e tunr: of S--ISO,I'.X.Xl -lla bln w~ 

niHg geollwrmal dtNelopnu:nt 0121" 

YeUowstooe N.1doulJ Pllfk pa.sse1:1 the U.S. Coo(lrt'u. The luue cornu up for ;a Sco;~. te he&rtoa 

Wedne6day. 

Uncapplna the weU ~ppt an to be lepj and probably esa.hli :c~hes 11. 

Ot:W w:a lU riiht. att:ordl.na' to Don- ;ld Maclnr:yn!, chlt! leg111 coun&el 

for th e Moota.na Depart went o! 

No.turu.l ~Ourtetl nnd Coasuvaa.clnt~ u.id tllt: amount of 

the new w;,t.er right wUl depend oo 

ac:twll uUKe IDld cn.ar be less than 

32 g;Uions pet minute. U5:\ng roort" than 3S ~allons per minute from ooe. wr:U may ~uire an eovirnn- Oletlbllmpact statemet~t bdon: a.ppruv:U. Wh eu the weU w-as (triUe<l 

i.JIIJ \t :-~~t.ed in 19&;, it waa PIJWJ>e<i 

at 1 n.!:: of 400 I(Ull0\1:1 per ntiaule. 

Citing a L: .S. Gt•o!o,icul Sunt:"r l 'tport. frand~ 9.11it.llh e weU could be 

p-•• unpcd at up to 140 g)lm with ·nu 

risk of o.dvt"J3C e.UC'\.:t:t oo tht:nnal futu res~ ln the park. 

Sub~ r.llid thu Tl:'port Is so 

full of warnings about ua ln~ tbe 

w~D . TI1e Natlonal Park ~cc l• sued a separate report tbat was 

much more cautious 11b out _.yeothenn:d development ouuJde 

the park. 

C'-!ogreuma.n PJ.t W11Hama, D. 

MonL. ,.ying that any risk to Yel- \oy.'fitone b too gnat. hu autho~ 

the "Old Faithful Pro t«<!on Act." 

which would bon gL"'tlt emul de-

\11!\opmcnt within 15 m..i\e-4 of Yel- luwlltone N.ali onal Park, iU\ ate3 

thM lndudt.-s the churrh'& well 11 

t}te hill p11 ~se s, lhe t hurc h Nz.nt3 

S4SO,QIX! irJ compeo.saUori for \us- Ing thf! well. whlch ha'· been 

c:1wed sitlce it wna driiied :lncl test· 

ed in 1986. 

T h at mof'!e y would pay fo r a 

pipcthte from LaDuke Hot Spri ng 

aeross lhe Vello,...,tone River to the 

tiun. 

However, Yc:U owl! tO!~(' Nat!Cit al 

Pa.rl< Superlnteude.nt Bub BLibt:~ 

Did L£xby he is worrit.-d ~ut th ~ 

etle<:t• on YeUoW$tCJor. '!l ll~yven 

a:ad thmnal fearures. n& wcU u th~ 

Pf'ttt'(lent that nuy ~: se t by the 

cburcb' a dec ision to ~t art the 

pump. 

1 t'!l not one ...reO but th e vrece- dcnt o! sbl.rting t.o drill holeta Into 

tbetse aquifers." ~ :u.id t.od~cy 

cburch'a plaooed deve lopment. The church OWllll water ria-hts at 

LaDuke. The bill hu o.lrearly ,..sed the Hou$e and Ia tche<iuled for a hear- lnt 1n tbt: ~ Eo01rY nnd Naru· ral Reoou1t::eB CofWiliU.tt \Ved.oe:ttday. 

The churcli'"' nnnouw. ~ffit aJ. 

s o t: a.me tht S¥tne day tlu\t tht: 

U.S. SJ ~t CoW1 1'-SUt:d <I dCc-i · "\on rnakln g it eu ler for priva tt: 

property owu~ to wi.a co m~nsatioo whqt the govenum:nt reaoirn development on th~it property to 

protect pobUc intC'I"HtS.. 

The cburch advocates that WUll=> bill It a "taldnJ( of pri=r 

property rights. and ~ u•lnll the well to bolster tbe ~ stah.ls ol Ita rifhb. • We ha~ choice 

but lo pro=<!. Ito • !hsme ~ lud b:l come to lh.la..~ Francia a.! d. Sea, Connd Buma, R. Mont .. and two other RepubUa.tJ seo.uors 

have advocated co mpen satin ~~: !.h e 

church but B\.lrn s backed off on that position I an week:· alter h~ 

letUlled tht: or the ~tc RC.!IIegal opinion that tl u! ch~ lwi no 

~right loUGoetlJt:wali. 

But Ril the thw-ch hn.d to du to t':Wiblish a right W'IU l>e¢n a "be\elld~ usc· of UD tO 35 galluns per 

minute and file a oo tic e with 

DNRC. Burns' spokesman Bryce 0u£t· 

man uld today Bums w\11 iniTo· 

In,, 1•·!( 11 ::. :: ,. ll :t·: -.·~t:-· .o.· ·w~ thr. 

:It'll : '' q·[~. 20 .,.;- ~:; ;, :'i.'U ·.o.ciJ!-1 

!hat ~Jtlie kt"t'~ p:.:.nd;(:, l • 

Yd!O wl! tnnc ,.,·:u ~·~~"' b!idt d iu 

l81:t 'pecil.i cully ltJ \HOt r.ct it 11 

geoth r: rmal feQ tU:T.fl. B&J Lc~ notc<J. 

Similar futun..~ fl/ uund the world 

~ b~r: Wtr.re<.l hf nee~ by t-V~ ~ 

Ol):nen :_ 

duct um:nd.mtn:.S that would com- pens ale a.r:yone who own~ a v-o lid 

wuler rig:h! th.111....-a5 !ul>t d;jrlflg lh t 

two-year tMI'II \Orium ir1 Vi!llams' 

bill. ·nlf~ M\Ou nt would be deter· 

lni.tJt.-d by a pa.od ofASJ['II'lli::.cl":i. 

Fr.ltlci3 said i.n thr pr(":';.3 rt'ka ~~: 

Uu;: duJI'l::il lind vo lun rnn~)· ii\IOirlL.U 

..Un ~r the wrll ami h,"''l !lu!! .~ r-Td ull· 

I"T'.Jl!>C;I;\\Jly~L:~.n ~i: 

· (io od l!uth -"'ll~ <:<HJ IJt:ro tiun 

hl~'l'n t t:~rrlc:d n:u ch "'"';ght, " ht 

anid. ~·we c ~o:i\•c-n ;Hiurit)' to the 

pro!L'('tlon uf Ye:J O..,"JtUile rm by 

oot m!\ving forw11 rd. hut no one 

b.u &en wy r."'IU!itlrrution to private pro~ rty riahts. !J1 !Acl, W'&it· lAg ha.!! done notillng but hurt us." 

If Con g rea' p3:s 5~9 William!' 

bill. Francis said, he wanLo; to see 

'1JaJ&nCt' and blmcs.s in the law to 

Wo allow for private pro'-'""rty lobe ~gnized nnclvrott:ctL-d ~ 

-once rrups (u( the i:r."'th efm.<l! 

aqul!er) ue: ~. wh:u ru-e w-e 

going to he fac ed with? " Bnr be-t 

L'lk«!. addhg th;~ It dVt.'S!I.I mnn.er 

"'ho dr:vtlup!l we:;s. · 1 clon't Oft if 

It's the Girl Scuut ~ · 

'Jl ll' USV$ till:r:y 'J! the Corwin 

Sp rU:;rs nre<~ ~d :!a.: d"'u :\:h's wtU a!vn e prnbal.l ly ,.-o\dd have no ef· 

k-ct on Lht: p:trX's t;unous gey!l-e/11 

:tnd hot pooh . Howe ... er. IMD9 th:otl 

accompi!r:!«d that ~tudy s how 

f{t"Qiht'rma l aqu ifcr"j ;:~t underlie 

pr-Tvutt! land !.u rru undiug lht p:lfk. 
Bozeman 

Daily Chronicle BigS~ 

Geothermal· bill's chances slim~ Bau

By scorr McMIUioN 

Clm>alc1. Slllll' Wrtt.r 

; A biD to proLect thc:roul1eature3 in Y~Co"'-st<:I'OC Na-. 

t:m Pask &-om drilling oo~~ !h~ pxk l::!: i.'\:.:l~i.Uotc 

od' lu, =7 :slim dlaoc:el f~ !be U.S. Saw.e 

:-6 r=. ao:oni!na" 1<> • ~ olde roSen Ma ~ 

·11 doe!n't loo.k likety thatanythins is g'o inl{ "to 

r:"rCV't in thi.1 ~ .. &ucus aide Cl.:rt l&h said totby. ·u ~ ~s the bill a3 k. it... it's r!Dt lltrl' ~to pro!.ed 

Ye~ It'• • bil.J the protect the b!des:t.s of the Cnust:h Univeru1 sDd Triunp!uat • 

Bal!CUr: o1fioe is wor\lng OCI amendmenta to ihe 

bill. but --~ on}y thrtt wee:b kfl in t.hl, 'Se~ion or 

~ ... ll<ttinr lbe bDI Oil( of Ill< 5<mtt ko unlil<dy, M sad. 

lb. bill, •Uihomd by R>p. P.! Wlllium >.nd kllown 

u lhe Old Fait!WI ~ Act. p>:~std Ill< Houae eorlier thio ,_ .,d Isla' ...., omended by Sen Coon><! Bb= In I Seoolr ComnUtttt. A> or!JIJ>ally writtt:n. '1\'Uliam$ bUI .. ·ould l!.ve 

h">n<11 ali oubsurface g<Oib<I1114l >Ctivity 2rOUDd Ye\. 

low.tooe. Ounh ol5c:iW 100d """"' R.c;:1u !ilion oen. tor.! criticited lbr ~ .... =rn ol "1>>t!nor" the 

churdl'o ........ riilll> O<itho ul rorroxnS31JO<'. Burna' ame.ndm~tl would ban p<:nnanentl1 111ll 

geothmnalieaM1f on c.denf Uod m!lt'.n IS mil<' ol 

Ye llo-.,totte. They aho wou ld lm~ • thre-e·yea.r 

montorium on teothumat drilf.lng on ptitale .la.nd •'ithin 15 rrWes of Yell~ in Wyo:nlcg wd MQ.!)--

ta:n.a aad order a frderal srudi of ~We Impact Oll 

Yellonton<'slhtrDUI leatwu However, thJI mon.torium f'Xempt~d the Corwin 

Scaiop aru. whCft' the chu.n::t. \Qilts'IO u~ the hot· 

• ·.atu well ll unc:awcd briefly in june, beause that 

...... ~ hu heal r:ud;.d by the us. Geo

· Belo~ lh< dlun:h'• ~dl c<n:ld ~ ~sod . aocc

to Bwn.s' fornu.th. tb~ J.!.r.e of Monbn3 would h

pus-~ \egi~ttio> which will protect Y

stone." ~critics h)'Y'e ui.d Bums.' ..m.cnd

put tbe re~ty of ;-co1ecting J'cl!OW"Sl.One 

hands of 'l•lr: ,R OVt rOi':'\! nl. which m•y n

"l'J\pped to do'"'· Rich «:b:><d tJw position toda

-rm nol s.JYing the ~.z!e ""''ld do 1 Eho&tr jo

l.fs lfl •wes.ome rtspon '$ ibili y.~ Rkh s,ajd. ~s

th.ac g«)thermJ.I plum~ic&~: is very dltfiCrllt to lt

SW>d. 

Beca.us.e ontr ~ ... t-tks rcnu.in ln this. M:S:

CongT"tSS, chanCe$ ~e !Jim the Senat-e will co

the b~l Rich ..,;d. U the b"l ;, n:introduad nex1 

II probabty •ill Win~ diBcr01t 2.0d strongff !orm

·u that mnns a-oint bKlc. to the dra~ 
83 

Mr. LEHMAN. Thank you very much, Mr. Francis. 

For what purpose did the church drill its well in 1986? 

Mr. FRANCIS. Mr. Chairman, the well originally drilled in 1986 

was an exploratory well to determine if geothermal water that was 

connected to La Duke Hot Spring would be available on the 

church's property in a more convenient place of use, that place of 

use being the church's headquarters, and the primary intent for the 

future being to utilize the water for medicinal hot spring pool and 

possibly for heating purposes. 

Mr. LEHMAN. And for what purpose are you using the well now? 

Mr. FRANCIS. The well was put to use in 1992 for use in a medicinal hot spring pool. 

Mr. LEHMAN. Have you ever used it for irrigation? 

Mr. FRANCIS. The irrigation use on that water was a· dual use 

which involved the irrigation discharge of the water after the heat 

had already been used in the medicinal hot spring pool. It did not 

constitute any additional use of water from the geothermal well. 

Mr. LEHMAN. How many total wells have you drilled on your 

land there? 

Mr. FRANCIS. For geothermal or for any purpose? 

Mr. LEHMAN. Well, give them all to me. Give them both. Mr. FRANCIS. Well, we have the one geothermal well, and we 

probably have-I am just guessing here-maybe a dozen or so additional wells for domestic purposes. 

Mr. LEHMAN. Okay. And how many of those would require certifi- cation under the compact rules? 

Mr. FRANCIS. You mean as of this date? 

Mr. LEHMAN. Right. 

Mr. FRANCIS. The compact only applies to wells drilled after January 1, 1993. So none of those wells would have been covered by 

the compact, although several of those wells were subject to the 

permitting requirements in Montana that predated the compact. 

Mr. LEHMAN. Would they require certification? 

Mr. FRANCIS. Those wells that are over 35 gallons per minute, 

prior to enactment of this compact, required a permit from the Department of Natural Resources. Mr. LEHMAN. And the water that you are drawing now, do you 

consider that a necessity? Is it necessary? 

Mr. FRANCIS. We consider it to be a valuable beneficial use of 

water that would perform a valuable function in connection with 

the church's headquarters and the uses that would be enjoyed by 

the people who live there. · Mr. LEHMAN. But it's not a necessity? I guess the issue here is 

if some people think it is a necessity for Yellowstone, if there is any 

possibility at all that it would be damaged by the men. My question 

is, is there an equal value on the other side here? 

Mr. FRANCIS. Well, Mr. Chairman, we wouldn't use the well and 

we wouldn't even consider using it if we felt that it would in any 

way damage or even pose even a minimal risk to Yellowstone N ational Park. We are basing our conclusions on balancing our need 

to use the water in comparison to Yellowstone Park's need to preserve its thermal features, on the U.S.G.S. report and conclusions 

that were issued in 1991. 
84 

Mr. LEHMAN. So you view the well as a component of your right 

to draw water there and as such you want to continue to do so, but 

you don't assert that it is absolutely necessary, and in terms of its 

impact on Yellowstone, you rely on your interpretation of that 1991 

study. Is that correct? 

Mr. FRANCIS. Yes, I would say that's correct. And I would simply 

add the proviso to that that we consider the use of the water to 

be a necessity in terms of having a medicinal hot spring pool at our 

headquarters, but not a life-and-death necessity if you want to rate 

necessity in terms of degrees of importance. 

Mr. LEHMAN. Thank you. 

Mr. Vento? 

Mr. VENTO. Do you support the compact? 

Mr. FRANCIS. Yes, sir. Chairman Vento, we have supported the 

compact through our involvement, which has been over the past six 

months or so. We have supported the enactment of this compact 

from the beginning. Mr. VENTO. It's my understanding from the answers that Mr. 

Tweeten gave me concerning the compact that they obviously will 

affect any new wells and others, while grandfathered, will also be 

examined for their impact. So they, in essence, would be or could 

not be in conflict with the water rights of the National Government 

and the establishment of the park, which apparently even predates 

the existence of this hot water feature that you have been utilizing 

which has become the point of interest or controversy. You are 

aware of that? 

Mr. FRANCIS. Yes, Chairman Vento. I am aware that the compact 

does not cede any authority to the United States to litigate any 

conflict that they feel would be with their reserved water right, and 

furthermore that the State retains authority to modify even prior 

water rights if they would be found to be in conflict. 

Mr. VENTO. Well, that would be ideal that they would first once 

adjudicate in the State and do so in a way that is acceptable and 

not result in National Government litigation. That is the preference. 

Under State law, can your rights and the hot water well be 

transferred or assigi;~.ed? 

Mr. FRANCIS. It's my understanding that under State law a 

water right issue by the State of Montana is fully transferrable as 

any other property right. 

Mr. VENTO. One of the tests that we are told that is key, obviously, is the issue of whether you would retain in terms of pulling 

back on these rights and going back to an earlier circumstance, 

whether the landowner still has economically viable use of their 

land. What is the economics of the utilization of this hot water feature that has been the point of interest in Corwin Springs by your 

Church Universal and Triumphant? 

Mr. FRANCIS. Well, Mr. Chairman, in terms of the economic use 

of that water right, we had a preliminary appraisal done on the 

value of the beneficial use of that hot water, which is in the range 

of 140 degrees Fahrenheit, by an appraiser in the State of Colorado, who is also an engineer with expertise in geothermal systems. 

Mr. VENTO. Well, that is not quite my question. I am not asking 

if there is a value to the water. I am asking if in terms of pulling 
85 

back and preventing the use of that particular feature, whether or 

not your land rights and property rights remain viable. In other 

words, how does it affect your other use of your lands? 

Mr. FRANCIS. Well, I think what you are asking for here is perhaps a legal conclusion. 

Mr. VENTO. I am not asking for a conclusion. Somebody else has 

to make that. But I am asking how do you think it affects the use 

of the other lands, not whether it has value intrinsically itself. 

Mr. FRANCIS. I think it would diminish the value of the land 

upon which it is located. 

Mr. VENTO. All right. Well, then you probably have some, in your 

view, remediation, I guess. I don't know that I agree with that or 

disagree with it, but I was interested in how you thought specifically, but you apparently want to keep that thought. But if you 

want to give the appraisal, I guess it would be useful for the 

record. I had stopped you from giving the appraisal, and if you 

want to give it for the record, it might be helpful. Please proceed. 

Mr. FRANCIS. Thank you, Mr. Chairman. 

This appraisal was conducted in 1992. The results were appended to testimony given to the Senate Energy and Natural Resources Committee in 1992, and the fmdings, to make a long story 

short, was he valued the use of that well at the approximate 35-

gallon-per-minute rate, at approximately $380,000. 

Mr. VENTO. Is that for use for medicinal purposes or for other 

purposes? 

Mr. FRANCIS. The basis upon which he conducted that evaluation 

was by looking at the heat value of the water and what it would 

cost using an alternative form of heating, such as, I think the least 

expensive method that he identified in his report was through 

liquified petroleum gas, which is fairly inexpensive in this area. 

That would be the alternative cost of heating that volume of water 

to the same temperature in lieu of using the geothermal. 

Mr. VENTO. So you are talking about heat, not medicinal. But 

your right is not based on heat, is it? It is not based on it, it's based 

on medicinal, is what you have testified to at the hearing. 

Well, in any case, obviously, I think this is an issue that will 

have to be resolved, I am certain. 

Thank you, Mr. Chairman. 

Mr. LEHMAN. Mr. Williams? 

Mr. WILLIAMS. Thank you, Mr. Chairman. 

Mr. Francis, it's nice to see you again. I appreciate your continuing trips back here on an issue which I know is a difficult one for 

you. 

I do want to say again in response to your correct statement that 

this bill does not comport with the compact. I want to say again 

that when I introduced this bill, the compact had not passed. We 

didn't know if it would. We didn't know then, although I believe we 

do now, that the Governor will sign it. And I made a public statement at the time of the introduction of it that I fully intended that 

if the compact passed and were signed, this bill would then be 

amended to comport with the Montana portion of that agreement; 

that is, with the compact. So I want to be clear about that. You mentioned that you support the compact. Had you not 

drilled the wells and were relying only on the surface flow at La 
86 

Duke, which you clearly own, had you not drilled the wells, would 

you support the compact, which according to earlier witnesses 

would have eliminated the church's or anyone's opportunity to drill 

those wells? 

Mr. FRANCIS. Well, Representative Williams, first let me say that 

I appreciate the fact that your bill was introduced before the compact became a reality and there was no intent on my part to indicate or to insinuate that your bill was intended to be in conflict 

with the compact. 

In terms of our support for the compact, it's my understanding 

that what the compact does is establish a procedure whereby very 

stringent conditions must be met for an applicant to be granted a 

permit under State water law to appropriate geothermal water. And my understanding of the reading of the compact and the testimony that I have heard is that an applicant must show by clear 

and convincing evidence, which is a very high standard of proof, 

that the geothermal water to be appropriated does not originate 

from or is not hydrologically connected to the Yellowstone Park or 

the hydrothermal system. 

Our support of the compact is based upon those provisions, and 

I would have to say that I think we would support the compact 

under either scenario, whether we had drilled a well prior to the 

passage of the compact or not. 

Mr. WILLIAMS. Thank you. . I want to be sure that the members of the Committee and the 

record reflect what I believe both Mr. Francis and I are clear about 

from previous discussions. And that is, this legislation is not aimed 

at the Church Universal and Triumphant. They happen to be people, an institution which has drilled this well. 

It is very clear from the history of this entire matter that this 

Committee and the Congress and myself have moved to prevent 

drilling whenever and wherever it occurred or was likely to occur. 

And as Mr. Francis knows, the Congress successfully passed and 

had signed into law a bill withdrawing an area in Idaho. 

So I want to be very clear that this is not a matter of aiming at 

any individual or institution whatsoever. 

Mr. Francis, as I recall when you testified before us previously 

on this bill, you mentioned that what the church believed it had 

a right to and in any event wanted was the surface flow emanating 

from La Duke Hot Springs, to which you have clear title. The legislation does not deny you the surface flow at La Duke Hot Springs. 

You question whether the legislation is clear enough on that point. 

If you want to present us with language for our consideration to 

make it clearer on that point, I would be happy to consider it and 

it is not unlikely that I would want to include that, because it is 

not my intention that the surface flow which now comes from La 

Duke, to which you have title and which is the amount of water 

you said would satisfy the church. It is my intention and the intention of this bill that the church have that flow, but that you take 

it from where it is. flowing naturally. And that is, Mr. Chairman, 

across the river from where their well now exists. I am not trying to prevent the church from having the amount 

of water coming to the surface that the church believes it has a 

right to and which in your own testimony a year ago you said 
87 

would satisfy your needs. You should have it. You should be able 

to capture the surface flow. I personally have no problem with that. 

Does that no longer satisfy the Church Universal and Triumphant? 

Mr. FRANCIS. Well, Representative Williams, what I testified to, 

in my recollection, not having it before me today, was that whether 

the church exercised its rights from the well or the spring or both, 

that all that we wanted to claim a right to presently or in the future in terms of the volume of the water was the surface flow of 

La Duke Hot Spring. The question that had arisen and still exists is the question of 

where and in what amounts that right would be exercised from, 

whether it would be from the spring or from the well or perhaps 

even from both in some amount. 

A13 I have noted in my written testimony, there is a concern 

about the wording of the bill and the fact that that could impact 

a right to take the surface flow of the spring, and certainly we 

would very much appreciate the opportunity to suggest some 

amendments that would take care of that issue. 

Mr. WILLIAMS. Well, I will appreciate receiving those, Ed, because I want to try to continue to work with you or anyone else 

who believes that their rights are being denied by this legislation. 

Let me just, at the clear risk of duplication, Mr. Chairman, let 

me be very clear that my intention is that the Church Universal 

and Triumphant continue to have what they have said they have 

wanted with regard to the amount of water. And that is, they have 

said here today and earlier that they want the volume of water 

which now comes naturally from an area called La Duke Hot 

Spring, to which they have title. 

I believe they should have that natural flow. It's theirs. I don't 

intend that we take it. What I object to and one of the purposes 

of this bill is that the Church Universal and Triumphant not be allowed to divert that flow and take it from another place rather 

than from the hot springs. 

Mr. Francis, thanks for being with us. 

Mr. FRANCIS. Thank you very much. 

Mr. LEHMAN. Thank you very much. 

Mr. FRANCIS. Thank you, sir. 

PANEL CONSISTING OF MICHAEL D. SCOTT, NORTHERN ROCKIES REGIONAL DIRECTOR, THE WILDERNESS SOCIETY, 

BOZEMAN, MONTANA; ELIZABETH FAYAD, STAFF COUNSEL, 

NATIONAL PARKS AND CONSERVATION ASSOCIATION; AND 

LOUISA L. WILLCOX, PROGRAM DffiECTOR, GREATER YELLOWSTONE COALITION 

Mr. LEHMAN. Let's hear from our third panel if they would come 

forward now. Mr. Scott, Ms. Fayad, and Ms. Willcox. 

Okay. We will again insert your statements in the record and ask 

you to summarize. 

We will begin with Mr. Scott. You may proceed. 

STATEMENT OF MICHAEL D. SCOTT 

Mr. SCO'IT. Thank you, Chairman Lehman, Chairman Vento, and 

members of the Subcommittee. My name is Michael Scott. I am the 

Northern Rockies regional director of the Wilderness Society, based 
88 

in Bozeman, Montana. I am pleased to be here today to testify on 

H.R. 1137. This vitally needed piece oflegislation is fully supported 

by the Wilderness Society. We would like to commend Representative Williams for his leadership and determination on this important piece of legislation. 

Certainly, Mr. Chairman, on this 24th Earth Day we should be 

able to muster the determination to protect the most renowned features of the world's first national park. This legislation assures all Americans that Yellowstone's geothermal wonders-its geysers, mud pots, and hot springs-will not 

be altered or extinguished through geothermal development. By 

regulating activity adjacent to the park, the bill addresses a fundamental problem. The park is simply not big enough to ensure 

complete protection of the springs and aquifers that charge Old 

Faithful, Norris Geyser Basin, Mammoth Hot Springs, and the 

other 10,000 thermal features in Yellowstone. There is real need for this legislation. As you heard earlier today, Mr. Chairman, there are already existing hot water wells drilled 

within the Corwin Springs KGRA. Without the protections that 

this measure contains, we may well be putting Yellowstone's magnificent features in jeopardy. We simply cannot afford, Mr. Chairman, to play geothermal roulette with Yellowstone. 

Today I would like to cover three areas in my testimony. First, 

I would like to discuss just exactly what the compact does and 

doesn't do to protect Yellowstone's thermal features. Second, I 

would like to propose three additional amendments to H.R. 1137. 

And finally I would like to urge the Committee to seek the funding 

necessary to implement the compact that was described earlier 

today. 

Mr. Chairman, there appears to be a bit of confusion about the 

relationship of the compact that was described by the representative from the State of Montana and Mr. Williams's legislation. 

Certainly, we are in support of the compact. We are in support, 

as the Park Service and the State of Montana has testified earlier, 

in melding the compact together with Representative Williams's 

legislation. The compact has some very significant features at- tached to it. For instance, it regulates all waters-cold, warm, and 

hot-not just hot water, as contained in Representative Williams's 

bill. 

The compact also uses existing regulatory agencies to enforce its 

provisions, and so avoids the duplication that you would engender 

by just having Federal control. And fmally, using the existing regulatory agencies probably saves both the Federal Government and 

the State of Montana money. 

But let's be clear, Mr. Chairman, there are a number of things 

the compact does not do, cannot do, to adequately protect Yellowstone's thermal features. The most obvious is, as we heard before, 

is that it only affects Montana. We need a piece of legislation that 

provides a consistent framework for regulating geothermal development around Yellowstone, not just in Montana but in Wyoming and 

Idaho as well. 

The compact does not deal with existing uses within the controlled groundwater area in Montana. As you just heard from the 

previous witness, Mr. Francis, he indicated that his well, drilled on 
89 

the west side of the Yellowstone River at La Duke, is not covered 

by this compact. If permits for the hot well were sought today, they 

would be denied under the terms of the compact because both on 

the basis of temperature and chlorides, they exceed the limits contained in the compact. That well as well as the others within the 

CGA should not be allowed to continue just because they were 

drilled before the effective date of the compact. 

H.R. 1137 deals with the potential that existing hot water wells 

might affect Yellowstone by proposing a ban on those uses. The 

church has argued that such a ban constitutes a taking of its property interest. It may be that the church has a claim, although, as 

we have heard from Representative Williams, his intent in this legislation is not to deny the church the use of the water just to deny 

or just to say where that water can be used, that it would be used 

as the surface flows of La Duke Spring and not by virtue of extracting it from a well. 

Clearly, if the church believes that it has had a property right 

affected by the passage of this legislation, we would urge the 

church to prosecute that in court. We don't see anything in this legislation that stops the church or any other property owner that 

feels aggrieved that a property interest might be adversely affected 

from going to court to change that. 

Finally, it's important to note that H.R. 1137, unlike the compact, provides absolute protection for Yellowstone's geysers. There 

is a provision that has not been talked about yet that allows the 

State of Montana to withdraw from the provisions of the compact 

if the Federal Government does not provide the $2.3 million in 

funding by the end of 1995. The State felt it needed that to assure 

some fiscal responsibility and to assure some protections for itself, 

which we well understand. 

But unfortunately if the United States does not appropriate the 

money before the end of 1995, the terms of the compact from the 

State's perspective may be null and void. Thus, we need a piece of 

legislation such as Mr. Williams has offered to give us that safety 

net to assure that there will be no effects on Yellowstone National 

Park. As we have said, we would like to see the principles of the compact incorporated in H.R. 1137 and would like to work with this 

Committee in pursuing that. 

Let me offer three other quick amendments that we would like 

to see in H.R. 1137. 

First, we would like to see the same kinds of rigorous applications of standards apply in Yellowstone Park as the State of Montana and as this Committee is contemplating to apply outside of 

Yellowstone Park. The recent blowout of the well, an old research 

well in Yellowstone, and the diversion by a park maintenance crew 

of thermal waters that was threatening a walkway point out that 

we have some inconsistent applications of standards in the park that need to be remedied. 

So we would propose an amendment to the bill that would require the Park Service to plug all remaining research wells to determine if the Park Service concession or other uses of subsurface 

waters in the park are adversely affecting thermal features and to 

develop a thermal features management policy to ensure that inci-
90 

dents like the diversion of thermal waters that occurred will not 

occur again. We would also like to urge Mr. Williams to consider an amendment that would change the boundary of his moratorium area in 

Montana to coincide with that of the controlled groundwater area 

so that if in fact the compact doesn't go into effect, that we will 

have the same moratorium boundary as the controlled groundwater 

area currently defines geologic boundary. Finally, we would urge this Committee to consider an amendment that would change the definition of geothermal waters. The 

definition currently contained in this bill is "waters that are 85 degrees and above." That is based on the Geothermal Steam Act, 

which was designed to regulate the commercial use of geothermal 

waters. The intent of this legislation is far different. This legislation is designed to protect Yellowstone from harm. If we are going 

to do that, we urge that this Committee adopt legislation that provides that rock-clad, iron-clad guarantee that the Yellowstone be 

protected from harm. 

So, we suggest using the definition contained in the compact, 

which is "any water above 60 degrees and 10 parts per million of 

chlorides" would be covered by this piece of legislation. 

Finally, as I indicated earlier, we would urge the Committee to 

ask the Appropriations Committees to expeditiously fund the implementation of the compact so we don't have to get into a question 

of whether we need the safety net that this legislation contains. 

Mr. Chairman, thank you for the opportunity to testify. I would 

be happy to answer any questions. 

[Prepared statement of Mr. Scott follows:] 
91 

T H E WILDERNESS SOCIETY 

TESTIMONY OF MICHAEL D. SCOTT REPRESENTING 

THE WILDERNESS SOCIETY ON H.R. 1137, 11THE OLD FAITHFUL PROTECTION ACT OF 199311 BEFORE 

THE HOUSE NATURAL RESOURCES SUBCOMMITTEES ON ENERGY AND MINERAL 

RESOURCES AND NATIONAL PARKS, FORESTS AND PUBLIC LANDS, 

APRIL 22, 1993 

Chairman Lehman , Chairman Vento and members of the subcommittees, 

my name is Michael Scott. I am the Northern Rockies Regiona l Direc tor 

of The Wilderness Society based in Bozeman, Montana. The Wilderness 

society is a fifty-eight year old national conservation o r ganization 

with 300,000 members nati o n-wide. 

I am pleased to be here today to testify on H.R. 1137, "The Old 

Faithful Protection Act of 1993". This vitally needed piece of 

legislation is ful ly supported by The Society . It is identical to 

legislation authored last year by Rep . Williams which passed the House 

but failed in the Senate . We commend Rep. Wil liams for his leadership 

and determination on this i~p ortant bill. 

cert ainly , on this 2 4th Earth Day, we should be able to muster the 

determination to protect the most renowned features of the world 's first 

national park. 

H.R. 1137 assures all Americans that Yellowstone ' s geothermal 

wonders - its geysers, mud pots and hot springs - will not be altered or 

extinguished through geot hermal development. The bill's premise is that 

no hot water development should be allowed adjacent to the Park if it 

might pose a risk to Yellowst one's features . 

By regulating activity a dj acent to the Pa rk, the bill addresses a 

fundamental problem. The Park is simply not big enough to ensure 

complete protection of the springs and aquifers that recharge Old 

Faithful, Norris Geyser Basin, Mammoth Hot Springs and the other 10,000 

therma l areas in Yellowstone . 

There is real need for this bill. There are already two hot water 

we lls drilled adjacent to Ye llows tone . Without t he protections this 

measure contains, we may wel l be putting Yellowstone's magnific ent 

features in jeopardy. 

One by one, the world's geyser systems have tampered with--and 

ruined. Now we are down to two that are s till basically untouched: 

Yellowstone 's and one on Russia ' s Kamchatka Peninsula. We simply cannot 

afford t o play geothermal roulette with Yellowst o ne . Yellowstone 

l'ORT HER:-; ROCKIES RW !Ol'AL OFFICE 

\iY) \'il . \1A!~ STREET . .S l '!TE E, ZE\1 A~. \ 1T i 9iJ; 

l·h)c, J )Ot:--1 0~)} 
92 

contains fully half of the world's geysers, a treasure too important to 

risk by allowing extraction of subsurface geothermal waters. 

Today, I would like to focus our testimony in four areas. First, 

I want to describe the recently completed compact between the National 

Park Service and the state of Montana, which quantifies the reserved 

water rights for Yellowstone National Park and its importance to H.R. 

1173. 

Second, I would like to discuss what the compact does, and does not 

do, to protect Yellowstone's hydrothermal systems and propose melding 

the principles contained in H.R. 1173 with those of the compact . 

Third, I would like to propose three additional amendments to H.R. 

1173. One would require the Park Service to better regulate uses inside 

Yellowstone which might adversely affect the Park's thermal features. 

Another changes the definition of geothermal waters. The final one proposes a different moratorium boundary in Montana. 

Finally, I want to urge the Committee to seek the funding necessary 

to implement H.R. 1173 and the compact. 

THE DRAFT NATIONAL PARK SERVICE/MONTANA RESERVED WATER RIGHTS COMPACT 

HELPS PROTECT YELLOWSTONE'S THERMAL FEATURES 

over the last fourteen months the Park Service and State of Montana 

have negotiated an historic agreement. The agreement, in the form of a compact, quantifies the federally held reserved water rights for 

Yellowstone and Glacier National Parks and the Big Hole Battlefield. 

The draft compact is currently before Montana's legislature for 

ratification. It also must be signed by the Secretary of the Interior 

before it takes effect. 

Yellowstone's portion of the compact identifies regulatory 

mechanisms to protect the Park's hydrothermal systems. In essence, the 

compact draws a line around Montana's portion of Yellowstone, defining 

a Controlled Groundwater Area (CGA) . Within the CGA the subsurface use 

of hot, warm and cold water is regulated to ensure that such uses established after January l, 1993 will not affect Yellowstone's 

hydrothermal systems. 

Hot water (over 85 degrees) produced from wells could not be used 

within the CGA unless the person wanting to use such water could show, 

beyond the shadow of a doubt, that the water was not linked to the Park. 

If uncertainty existed, the state would be required to deny the permit 

in order to protect the Park. 

Warm water (between 60 and 84 degrees) could be used only if it 

were determined that the water was not likely to come from an aquifer 

linked to Yellowstone . 

Cold water (less than 59 degrees) uses would be relatively 

unaffected by the compact. A permit would be needed for a well, and 
93 

periodically a technical committee composed of geothermal scientists 

would review permits to insure that their cumulative 

impact would not harm' cold-water recharge of the Park's hydrothermal 

systems. 

The compact provisions would be regu~1ted and enforced by Montana, 

using existing regulatory agencies. An advisory group of scientists, 

called the Technical Oversight Committee, is established to provide 

advice to the regulatory agencies on permitting decisions. 

Montana estimates it will need a one-time federal appropriation of 

$2.3 million to set up and implement the compact. 

WHAT THE COMPACT DOES 

The draft compact contains several important features not found in 

H.R. 1173. 

H.R. 1173 puts off-limits to subsurface geothermal development only 

those waters above 85 degrees. The compact regulates all waters - cold, 

warm and hot. Regulating all waters provides a greater degree of 

assurance that Yellowstone ' s hydrothermal systems will not be affected 

by subsurface water development. 

The compact uses Montana's existing regulatory agencies to enforce 

its provisions. H.R. 1173 requires the Secretary of the Interior to 

enforce its provisions. 

Using existing regulatory agencies is probably less expensive. It 

also may be more effective since people are used to reporting to state 

agencies on water development, but have no such history with the Park 

Service. 

WHAT THE COMPACT DOES NOT DO 

While the draft compact contains some distinctly positive aspects, 

which will benefit Yellowstone , there are several significant areas not 

covered by the compact that are contained in H.R. 1173. 

Perhaps the most obvious is that the compact affects only Montana. 

Yellowstone, however, lies in three states. Neither Idaho nor Wyoming 

has a system similar to that contained in Montana's draft compact . 

H.R. 1173 would go beyond the compact by creating a consistent 

framework for regulating geothermal development around Yellowstone. We 

need federal legislation that defines a clear standard of protection for 

the entire boundary of the Park, not three separate systems with varying 

levels of protection. 

The draft compact does not deal with uses within the CGA that 

existed prior to January 1 . 1993. This is an extremely serious problem. 

While we understand Montana's reluctance to take on the issue, there are 
94 

at least two known hot water wells within the proposed CGA. If permits 

for these wells were sought today, they would be denied under the terms 

of the compact. These wells should not be allowed to continue merely 

because they were drilled before the effective date of the compact. 

One of the wells, owned by the Church Universal and Triumphant was 

the subject of extensive USGS and Park Service analysis last Congress. 

Neither the USGS nor the Park Service, in reports, was able to establish 

conclusively that the Church's well and Yellowstone's geothermal systems 

are not connected . As then-Director of the Park Service Jim Ridenour 

stated, "If it can't be shown there are no risks, than I must assume 

there are . " (August 12, 1991 memo from Jim Ridenour to Tom Weimer) 

H.R. 1173 deals with the potential that existing hot water wells 

might affect Yellowstone by proposing a ban on such uses. The Church 

has argued that such a ban constitutes a taking of its property interest 

and estimates the worth of the well to be less than $500,000. 

It may be that the Church has a claim. That is for the courts to 

determine. H.R. 1173 does nothing to prevent a party from asking a 

court to decide if a taking has occurred. Clearly, though, we do not 

want to allow uses to continue that might damage Yellowstone. If a 

court determines we must pay to stop such uses, than so be it. 

Yellowstone is too important a resource with which to play geothermal 

roulette. 

It is significant to note that nothing in H.R. 1173 precludes the 

Church from using the surface flows at LaDuke Hot Spring. In fact, this 

has been the historical use to which the spring was put. Surface flows 

were piped to a resort a Corwin Springs where they were used for a pool 

and other purposes. 

H.R. 1173 contains study provisions not found in the compact. We 

simply do not know enough about Yellowstone's hydrothermal systems. The 

bill requires the National Park service to engage in a geophysical study 

of its entire boundary to better understand the hydrothermal linkages 

between the Park and surrounding lands. 

Finally, H.R. 1173 guarantees protection for Yellowstone's geysers. 

A provision of the draft compact allows Montana to withdraw from the 

compact after 1995 if the United States does not appropriate the $2.3 

million needed to implement its provisions. We all anticipate that the 

money will be forthcoming. But, in the unlikely event this does not 

occur, H.R. 1173 is needed to ensure Yellowstone will not suffer. 

THE PRINCIPLES CONTAINED IN THE DRAFT COMPACT SHOULD BE 

INCORPORATED IN H.R. 1173 

The draft compact between the Park Service and Montana contains 

some excellent principles. The compact defines a Controlled Groundwater 

Area designed to protect Yellowstone's hydrothermal features. Within 
95 

the CGA, cold, warm and hot water are regulated. The compact makes use 

of Montana's existing regulatory structure. 

These principles should be incorporated in H.R. 1173. We suggest 

that language be included in the bill allowing the Secretary of the 

Interior to certify programs, such as Montana's, designed to help 

protect Yellowstone's features. If a state chooses not to participate 

in Yellowstone's protection, the provisions of H.R. 1173 would be 

implemented by the Secretary. 

The bill should contain specific standards by which the Secretary 

judges a state program to determine if it should be certified. Uniform 

standards ensure uniform protection in the states around Yellowstone. 

The amendment should also require the Secretary to periodically 

review state programs to assure compliance with federal standards. 

Finally, the bill should authorize the Secretary to provide fund i ng to implement state programs. 

This amendment continues the assurance Rep . Williams has worked so hard to provide, namely that we take no chance with Yellowstone's 

geysers. It also rewards a state like Montana that is willing to share 

in the responsibility of protecting Yellowstone. 

H.R . 1173 SHOULD BE AMENDED TO INCLUDE A PROVISION REQUIRING THE PARK 

SERVICE TO DETERMINE THE IMPACTS OF ITS' ACTIVITIES WITHIN YELLOWSTONE 

ON THE PARK'S THERMAL FEATURES 

While it is imperative that we take steps to protect the geysers 

and other features outside the park, we cannot overlook threats posed 

within park borders. Two recent events, the blow- o ut of an old 

geothermal research well in Yellowstone and the diverting of geothermal 

waters by a Park maintenance crew, graphically illustrate this need. 

We recommend that the committees amend H.R. 1173 to include a 

provision directing the Park service to 1} plug all remaining capped 

research wells within the Park; 2} determine if existing National Park 

Service , concession or other uses of subsurface waters or the location 

of structures affects any Park thermal feature; and, 3} develop a 

thermal features management policy to ensure that incidents like the 

diversion of thermal waters will not occur again. 

H.R . 1173 SHOULD BE AMENDED TO USE THE CONTROLLED GROUNDWATER AREA 

BOUNDARY WITHIN MONTANA 

The boundary for the CGA in Montana was determined by an advisory 

panel of scientists. The line defining the boundary follows roughly the 

edge of the Madison Formation, a geologic strata which scientists 

believe is responsible for much of the recharge of Yellowstone's 

hydrothermal systems. 

5 
96 

This is a logical and scientifically defensible boundary. 

Therefore, we recommend the fifteen-mile boundary moratorium proposal 

used for Montana's portion of Yellowstone in H.R. 1173 be amended by 

substituting the CGA boundary. 

H.R. 1173 SHOULD BE AMENDED TO DEFINE GEOTHERMAL WATERS AS WATERS ABOVE 

60 DEGREES FAHRENHEIT AND CONTAINING MORE THAN 10 MILLIGRAMS/LITER OF 

CHLORIDES 

H.R . 1173 currently uses a definition of geothermal waters taken 

from the Geothermal Steam Act. The Act defines geothermal waters as any over 85 degrees. 

This definition was designed to fit the purposes of the Steam 

Act, namely to regulate the commercial use of geothermal steam and 

energy. H.R. 1173 has a decidedly different purpose. It is designed to protect Yellowstone's hydrothermal systems. 

The draft National Park Service/Montana compact uses a definition 

of geothermal waters much more consistent with protection of 

Yellowstone. It presumes that waters above 60 degrees, the ambient 

background temperature of groundwater, and above 10 milligrams/ liter of 

chloride are hydrothermal. H.R. 1173 should adopt the same definition. 

THE COMMITTEES SHOULD URGE THE APPROPRIATIONS COMMITTEE TO FUND 

IMPLEMENTION OF THE DRAFT COMPACT. 

Assuming the Montana legislature ratifies the compact and the 

Secretary signs it, the state will need a one-time $2.3 million 

appropriation to implement its provisions. We urge the committees to 

ask that the necessary monies be included in the FY 94 Interior 

appropriations bill. Quick funding will ensure that the compact is 

fully operative as soon as possible. 

CONCLUSION 

H.R. 117 3 is vitally needed . It would protect Yellowstone' s 

thermal wonders by preventing any subsurface geothermal development 

adjacent to the Park that might jeopardize them. 

Amending H.R. 1173 to include the principles contained in the draft 

Park Service/ Montana compact and the direction to the Park Service to better regulate in-park activities would strengthen the bill to provide 

world- c lass protection for a world-class park. 

Thank you for the opportunity to testify. 

answer questions. 

6 

I wou ld be happy to 
Mr. LEHMAN. Thank you. 

Ms. Fayad? 

97 

STATEMENT OF ELIZABETH FAYAD 

Ms. FAYAD. My name is Libby Fayad, and I am here representing 

the National Parks and Conservation Association. 

I just want to make one general point. The bill died last year because of the takings issue. Takings law did not change as a result 

of recent Supreme Court decisions. Taking, it is still a taking if the 

action does not advance a legitimate State interest or denies a 

property owner all viable use of his or her property. What is contemplated by H.R. 1137 is more in the nature of regulating, not taking. When the Clean Air Act passed two years ago, 

Congress required many industrial sources to spend hundreds of 

millions of dollars to comply with the Clean Air Act. If this bill results in some additional expenses for any property owner to comply 

with it, it is more in the nature of regulation than in taking. 

I would hate to see this bill get bogged down again, and I also 

would hate to establish the precedent where a national park unit 

is concerned and it is being threatened by an activity outside the 

boundaries of the park, that the Congress is going to figure out exactly who might have a case against the United States Government 

and assign a value to that and delay passage of the bill while all 

this is discussed by everybody and their brother. 

So I hope you move quickly to enact or pass H.R. 1137 with the 

amendments that have been suggested by the Wilderness Society 

and others and put this taking issue to rest. 

Thank you. [Prepared statement of Ms. Fayad follows:] 
98 

N ::, ir -1" ' :- 11 Parks :IJI C. ' ~..l ,:lf)il 

TESTIMONY PRESENTED BY 

ELIZABETH I<'AYAD 

STAFF COUNSEL 

NATIONAL PARKS AND CONSERVATION ASSOCIATION 

BEFORE THE 

HOUSE SlJBCOMMITTEE ON 

NATIONAL PARKS, PUBLIC LANDS Al\'D FORESTS 

ON TilE 

OLD FAITHFUL I'ROTECTION ACT OF 1993 

APRIL 22, 1993 

Mr. Chairman and members of the subcommin..:e, my name is Elizabeth Fayad. I am staff 

counsel for the National Parks and Con~rvation Association (NPCA), a nonprofit citluns' 

organi1.ation dedicated to the protection 811d enhancement of the nation's National Park 

System. 

On behalf of NPCA's 350,000 members, I n:.commend the swift passage of the Old Faithful 

Protection Act, H.R, 1137. 

Yellowstone National Park (YNP), the world's first national park, was established in 1872. 

The park's 2.2 million acres contain the world's greatest geyser area. Other thermal features 

of breathtaking beauty and mystery dt•t tht! landscape of this Biosphere Reserve and World 

Heritage Site. The preservation of the natural wonders of Yellowstone National Park for the 

inspiration of future generations should be an essen till! mission of the federal government. 

PROYISJONS OF H.R. 1137 

The purpose of H. R. 1137 is to protect the thermal fl!<ltures of Yellowstone National Park 

from geothermal development that takes pla~.:c outside the park. The bill is necessary 

because some geothermal development has already occurred on lands immediately adjacent to 

the park, which are owned by the Chun:h Universal and Triumphant. Potential exists for 

more development in the Corwin Springs Known Geothermal Resource Area (KGRA) and 

other areas adjacent to the park. 

H, R. 1137 prohibits the development and use of subsurface geothermal resources within the 

Corwin Springs KORA because such usc cre;Jtcs suhstantial risk of adverse effects on 

significant thermal features in Yellowstone National Park. The prohibition would apply to 

both privately and publicly held lands. 
99 

Those risks have been identified by two federal agencies. The U.S. Geological Survey 

(USGS) in its Water-Resources Investigations Report 91-4052, ("Effects of Potential 

Geothermal Development in the Corwin Springs Known Geothermal Resources Area, 

Montana, on the Thermal Features of Yellowstone National Park"), concludes that there 

could be flow paths between Mammoth Hot Springs and La Duke Hot Spring. The National 

Park Service (NPS) "Corwin Springs Gr.othermal Resource Area Impact Analysis: Report to 

Congress" (August 1991) concludes that "there is n\J evidence of a geologic barrier between 

the thermal resources of YNP and the KGRA," and that "there is evidence of geothermal 

fluid movement between YNP and the KGRA. • NPS report, p.8. 

The NPS report makes other points that provide a strong scientific basis for the ban on 

subsurface geothermal development in the Cof\l,lin Springs KGRA contemplated under section 

2 of H.R. 1137. The NPS report correctly points out that under the Geothermal Steam Act, 

all of the geothermal features of Yellowstone National Park are considered significant. The 

geothermal features of the park include aquifers, seeps, geothermally heated soils, and 

unde[V,Iater springs in addition to the more dramatic surface features. Ample scientific 

evidence exists of connections between the geothermal aquifers in parts of the KGRA and 

Yellowstone National Park. 

H.R. 1137 also temporarily prohibits the Sccret<~ry of the Interior from issuing leases u.'der 

the Geothermal Steam Act, 30 U.S.C. 1001, et sec., for lands within a !S-mile radius of the 

Yellowstone National Park boundary. Th~ ban prohibiting geothermal development in the 

Island Park KGRA and the Corwin Springs KGRA would remain permanent. 

The bill requires the National Park Service, in consultation with the U.S. Geological Survey 

and the Forest Service, to study the impact of potential geothermal development on the 

thermal features of Yellowstone National Park and report to Congress on the results within 

four years of the enactment of the law. The National Park Service should be the lead federal 

agency in this study. It is important that an agency dedicated to preservation of park 

resources, rather than one interested in resource development, be required to conduct the 

study. 

TAKINGS ISSUES 

H.R. 1137 is identical to H.R. 3359, which the House passe<! in the 102nd Congress. H.R. 

3359 did not pass the Senate before Congress ended. The bill was bogged down in a 

discussion of property rights--specifically the asserted right of the Church Universal and 

Triumphant to usc a geothermal well it had drilled on its Royal Teton Ranch. 

There are some legal issues concerning the wells drilled by the Church and the Church's 

water rights. However, even if the Church Universal and Triumphant has a legal right to the 

hot water at La Duke Hot Springs, it is doubtful that the actions contemplated by H.R. 1137 

would constitute a taking. The Supreme Court of the United States has found that a taking 

oceurs when a government action denies the property owner all viable use of his or her 

property, or the governmental action docs not substantially advance a legitimate government 

interest. Conversely, a taking does not occur when the action furthers a legitimate state 

interest and does not deny the owner all economically viable use of the property. 

2 
100 

It is the responsibility of the federal government to ensure the protection of units of the 

National Park System and their resources. The parks were set aside as a permanent 

investment for future generations. Protection of the resources of a national park, including 

the protection of the thermal features of Yellowstone National Park, is a legitimate goal of 

the federal government. As members of the Committee pointed out when this bill was before 

it in the last Congress, the protection of these resources is just as important as providing 

clean air and clean water, Indeed, no one has argued that the protection of the thermal 

features of Yellowstone is not a legitimatt: fcdcrdl objc:.:tive. 

Those promoting the idea that the geothermal development ban in H. R. 1137 results in the 

taking of Church Universal and Triumphant's property rights, and that the Church should 

receive taxpayer funds for this taking , argue that the ban on subsurface development of 

geothermal resources in the Corwin Springs KGRA is too restrictive. They contend that the 

Church should be allowed to use its well because the USGS study found that fluid production 

from this particular well poses no discernible ri ' k of decreasing water discharge levels from 

the park's thermal springs. 

Based on scientific evidence and the NPS re1x>rt and recommendation, it is reasonable for 

Congress to find that there is substantial risk to the geothermal resources of Yellowstone 

National Park and that a cautious approach to use of geothermal resources in the Corwin 

Springs KGRA is therefore justified. A cautious approach is also justified by the historic 

fact that geothermal development has wrecked most of the other geyser sites in the world. 

Once geysers are destroyed, they are destroyed forever. There is no human ability to start 

them back up again. 

H.R. 1137 would not deprive the Church Universal and Triumphant of other beneficial uses 

of its land. The ranch could still be used for ranching and farming and other Church 

activities as it has been in the past. The bill would not even prohibit all the use of the water 

at La Duke Hot Springs. The bill would stili allow the Church to use the natural surface 

flow of La Duke Hot Springs to heat its swimming pool or for other purposes of its 

choosing. There is, therefore, no compensable taking. 

H.R.II37 is similar to other environmental statutes that place additional requirements on 

citizens in order to protect the environment. The fact that those requirements may cost 

citizens money does not mean that parties can assert a taking to require the federal 

government to reimburse them. 

The United States Court of Claims is the appropria te forum for the ultimate resolution of a 

takings claim if the Church wants to file one. NPCA recommends that Congress not set the 

precedent that limitations on some uses of private property in order to protect the resources 

of the National Park System constitutes a taking worthy of compensation under the Fifth 

Amendment to the United States Constitution . 

. I 
101 

ADDITIONAL THREATS TO XEIJ, OW~ 

YellowstOne National Park is facing many other threats to its water resources from activities 

outside of the park's boundaries. In its recently released report, "Park Waters in Peril, • 

NPCA outlined the following additional threats tO the park's water resources: 

+ Oil and gas development that oould disrupt hydrologic features that may be essential 

to maintaining geothermal pressures. 

+ A mill tailings pile has polluted Soda Butte Creek which nows into the park. 

+ Other abandoned and unreclaimed mine sites that leach heavy metals and chemicals 

into waters in the Greater Yellowstone Ecosystem and affect migratory species like 

the cutthroat trout. 

+ Increased development in the area nf the park increases the potential for accidental 

pollution or sewage discharge. 

+ Fuel leaks and human waste from recreational boat use pollute Yellowstone Lake. 

I would like to submit the Yellowstone case study from the NPCA report for the record. 

The case study shows that the primary obstacles to protecting Yellowstone's water resources 

arc inadC'juate legal protection against damage to geothermal features from geothermal or oil 

and gas development on adja¢ent lands, and inadC'juate control of surface or groundwater 

pollution from both current and abandoned mining activities. 

The study also illustrates the need for Congress to address park waters protection in a more 

consistent and comprehensive way. For eumple, legi~lation to reauthorize the Clean Water 

Act and to reform the 1872 Mining Act should include provisions that specifically protect 

national park waters from degradation. 

Thank you for the opportunity to expres.\ NPCA 's strong support for H.R. 1137, 
102 

Mr. LEHMAN. Thank you very much. 

Ms. Willcox? 

STATEMENT OF LOUISA L. WILLCOX 

Ms. WILLCOX. Chairman Lehman, Chairman Vento, Congressman Williams, I appreciate the opportunity to submit the following 

comments on behalf of the Greater Yellowstone Coalition on H.R. 

1137, the Old Faithful Protection Act. My name is Louisa Willcox, 

and I am program director of the Greater Yellowstone Coalition, a 

conservation coalition based in Bozeman, Montana, comprised of 90 

national, regional, and local organizations and 4,500 individuals 

committed to preserving the integrity of the Greater Yellowstone 

ecosystem, one of the last remaining intact ecosystems in the continental United States. We are here today to support H.R. 1137 and Congressman 

Williams's efforts to keep Old Faithful and the other 199 geysers 

in Yellowstone faithful. And we would like to offer in addition to 

our own statement a statement by one of our member organizations of the coalition, the Upper Yellowstone Defense Fund, who 

could not be here today. They are based in Gardner, Montana, and 

are very concerned about this issue as well. 

It is our position that any activity that might interfere or modify 

the natural plumbing of any geothermal feature in Yellowstone 

Park is unacceptable, whether it be warm or hot water underground, pumping and development outside the park, excessive cold 

water development, oil and gas development, or even careless actions on the part of the Park Service inside Yellowstone. 

On Earth Day, it is fitting, I think, to take a step back and reflect upon the special set of factors within the Earth that come together to create geysers and upon the fact that in the last 30 years, eight of the ten major geyser systems that once existed around the 

world have been silenced or are permanently altered. 

First, and it hasn't really been said today but I know there have 

been other science experts on these panels, but I wanted to remind 

the Subcommittees that there are four important factors that come 

together to create the very special arrangement that enables geysers to happen. You have a heat flow close to the Earth, you have 

abundant source of groundwater, you have an underground reservoir for storing the water, and then you have very particular geologic structures and constrictions which allow pressure to build underground that is then released with a splash of spray and steam 

and the like. Congressman Williams earlier talked about dead geyser stories, 

and I would like to be indulged in two. They will be very brief. But 

I was going back through the literature on the stories of geysers 

around the world, and I wanted to remind the Subcommittees of 

what happened in Nevada at Beowawe about 25 years ago. This 

used to be the second only to Yellowstone in terms of geyser activity in North America, and with the drilling of four exploratory 

wells, all of these geysers were silenced and are no longer. Let us 

hope that doesn't happen to Yellowstone. I also wanted to mention that the other major geyser system in 

the world that has been primarily unaltered and undamaged in 

Kamchatka, Russia, happened to be a place that I went on my hon-
103 

eymoon last fall, and I visited their geothermal power station. And 

on the back page of my prepared testimony is a page of photographs. They are sort of a Jules Verne-type photograph of a power 

station that is in Russia. And a mud pot that a geothermal expert 

who was with us, Irving Freedman of the U.S. Geological Survey, 

said was most likely the remains of a geyser-it appeared to him 

as if it had not been inactive all that long-as they had expanded 

the geothermal development field in that area. 

So there appeared to be at least two dead geysers in Kamchatka, 

and there is interest in and proposals for geothermal exploration 

inside two of their preserved areas in Kamchatka. So the fate of 

the other major geyser system is in question at this point. I would like to offer several suggestions by way of amendments, 

possibly, to H.R. 1137. First, we support the KGA, controlled 

groundwater areas, boundaries and the specification of recharge 

and discharge areas within the Montana portion. That is a very 

well-thought-out scheme. It reflects what is scientifically under the 

ground. 

We also support the proposed breakdown of temperature ranges, 

the three temperature ranges, where different monitoring and different standards would apply. And we recommend that that arrangement be applied elsewhere in Greater Yellowstone, to Idaho 

and Wyoming. 

We recommend that Congressman Williams and the Subcommittees go forward with those sections of the bill, as they are written, 

relating to preventing underground hot water development within 

the Corwin Springs KGRA, and that would prevent any untoward 

activities happening at the three existing hot water wells that lie 

in the Corwin Springs KGRA. 

We also support the section of H.R. 1137 that applies to the moratorium on private and State lands within Idaho and Wyoming at 

a 15-mile radius around Yellowstone Park and also including the 

Island Park KGRA, which actually extends about 30 miles west of 

Yellowstone Park. 

We support the provision of the bill to go forward with a study 

and analysis of geothermal relationships in Wyoming and Idaho 

and make recommendations to Congress about what actions might be needed after such a study. 

And we want to point out-it was mentioned earlier or actually 

Congressman Hinchey asked a question about the Island Park area 

and why this bill is needed in Idaho and Wyoming-there are 

28,000 acres of non-Federal ground that have not been withdrawn 

that lie within the Island Park Known Geothermal Resource Area. 

No one has come forward to develop these lands yet, but they are 

vulnerable to development. And they also most of them have lease 

applications, geothermal lease applications, at the time that there 

was interest in developing geothermal resources within our Island 

Park. So it could be done again, and we believe that at least a 

study ought to take place now and some recommendations be made 

to Congress about what scientifically is linked to Yellowstone and 

size of what area may need to be protected. Finally, since it has been shown, at least by one researcher, that 

there is a potential for a risk to Yellowstone from oil and gas drilling and development, that we recommend that oil and gas leasing 
104 

on Federal land be prohibited outside the park within the area 

where geothermal protections will be applied by H.R. 1137, the 

areas within the CGA boundaries in Montana and the provisional 

boundaries that will be applied in Idaho and Wyoming. 

We then appreciate the opportunity to present our views here 

today. We would be happy to answer any questions. We thank Congressman Williams again for his persistence on this difficult but 

critical issue and look forward to working together to ensure that 

Yellowstone gets the iron-clad, copper-riveted protection that it 

greatly deserves. Thank you. 

[Prepared statement of Ms. Willcox and attachments follow:] 
105 

~ Greater Yellowstone Coalition 

STATEMENT OF 

LOUISA L. WILLCOX 

PROGRAM DIRECTOR 

FOR THE 

GREATER YELLOWSTONE COALITION 

BEFORE THE 

SUBCOMMITI'EE ON ENERGY AND MINERAL RESOURCES 

AND THE 

SFBCOMMriTEE ON NATIONAL PARKS, FORESTS AND PUBLIC LANDS 

OF THE 

COMMITI'EE ON NATURAL RESOURCES, HOUSE OF REPRESENTATIVES 

ON 

APRil., 22, i993 

P.O. Box 1874 • Bozeman. Montana 59771 • (406) 586-1593 • FAX (406) 586-a!Sl 
106 

Chairman Lehman, Chairman Vento and members of the Subcommittees, I appreciate the opportunity to submit the following comments on behalf of the 

Greater Yellowstone Coalition (GYC) on H.R.1137, the Old Faithful Protection 

Act. My name is Louisa Willcox, and I am Program Director of GYC, a 

conservation coalition based in Bozeman, Montana, comprised of approximately 

90 national, regional and local organizations and 4,500 individuals committed to 

preserving the integrity of the Greater Yellowstone Ecosystem, one of the last 

remaining intact ecosystems in the continental United States. We appreciate the 

opportunity to submit our views on this important bill, which would shape the 

future of Yellowstone and its irreplaceable geothermal wonders. 

Yellowstone is the largest remaining intact geyser basin in the world, and one of only two major geyser systems that have not been destroyed or damaged by 

geothermal development. The two hundred geysers in Yellowstone represent more than occur in the rest of the world combined, and reflect a unique 

combination of abundant groundwater, heat flow close to the surface of the earth, 

and underground geologic constrictions. The geothermal resources of the 

Yellowstone region are the principal feature which motivated the establishment 

of Yellowstone National Park, and as such are a national treasure to be 

safeguarded from any threat which might affect their natural functio~. 

Therefore, we believe that am: activity which might interfere or modify the 

natural plumbing of any geothermal feature or hydraulically-linked aquifer in 

Yellowstone Park is unacceptable. When data are lacking to formulate absolute 

and verifiable conclusions regarding the effect of a proposed action on any 

geothermal resource in Yellowstone Park, then that activity should be prohibited, 

whether it be proposed on federal, private or state lands. Since such conclusive 

data is still lacking after three years of intensive research by the U.S. Geolo~c 

Survey (USGS) and the National Parks Service (NPS) in the Corwin Springs 

Known Geothermal Resource Area (KGRA) and adjacent parts of Yellowstone 

Park, we believe that Congress should err on the side of caution and preservation 

of the Park's irreplaceable and fragile geysers. 

We are here today to support H.R. 1137 and Congressman Williams' efforts 

to keep Old Faithful "Faithful." At several important times in history aince 

Yellowstone was set aside in 1872 to protect its Eeysers, mudpota and fumaroles, 

Congress has demonstrated a clear commitment to protecting these geothermal resources for future generations, throuih such measures as the passage of Public 

Law 99-591 and the Geothermal Steam Act Amendmenta of 1988. Ironically, juat 

after the National Park Service celebrated its 75th anniversary, it has become 

clear that Congress must again act to prevent damage of Yellowstone's geysers. The reasons are several. 

First, although Yellowstone was established as the nation's first park for 

the purposes of protecting its i'eothermal features, the boundaries drawn around 

the park did not include all of its underground geothermal aquifers important to 

2 
107 

maintaining the integrity of its geysers. The complexities of geothermal 

plumbing were simply not understood in 1872 -- more than a century later, we are 

only be~ to learn about these natural processes that characterize the 

Greater Yellowstone Ecosystem. Congress must now address the problem that 

present policies and laws do not take this new cross-boundary information into 

account. 

Second, last year Congress received a report from the USGS in response to 

its 1988 request for a thorough analysis of cross-boundary geothermal 

relationships inside and outside Yellowstone Park. Although Congress had 

called for analysis and recommendations from the "USGS, in conjunction with 

the National Park Service," the National Park Service report was not submitted to 

Congress by the Interior Secretary. We appreciate the submission of this 

important report at this hearing today-· a report that concludes that !lQ 

underground geothermal pumping or development should occur in the Corwin 

Springs KGRA due to potential risk to Yellowstone's geothermal features. 

Third, although the Montana Reserved Water Rights Compact Commission 

(RWRCC) and the National Park Service have negotiated a critical, far-reaching 

agreement establishing a Yellowstone Controlled Groundwater Area under 

provisions of the Yellowstone Compact, this agreement still would not preclude 

underground geothermal pumping and development by the Church Universal 

and Triumphant (CUT) at the site of their existing hot water well- pumping 

which the Park Service has concluded would pose some risk to geothermal 

features inside the Park. Since the state of Montana has not addressed this 

fundamental issue, either in the Compact or other regulations, Congress must 

act to protect the public trust and prevent CUT from d8JI1.aiing Yellowstone's 

geothermal features through pumping hot water at this site. 

Fourth, the states of Idaho and Wyom.in&' do not now have in place the "copper-riveted, iron clad" regulations needed to protect a resource of such 

caliber. It is =clear whether the Geothermal Resource Act of Idaho could stand 

the test of a geothermal proposal on the lands now open to development inside the 

KGRA. Furthermore, Wyoming has no regulatory scheme to address geothermal 

development. And, neither state has adequate resources to tackle the difficult 

scientific challe~es involved in determining geothermal relationships, or the 

overall perspective needed to protect a national treasure such as Yellowstone. 

Background 

The largest functional geothermal basin in the world lies in the Greater 

Yellowstone Ecosystem (GYE). More than 200 geysers and over 10,000 other 

thermal features are found within the GYE, more than in the rest of the world 

combined. Despite extensive investigation in recent years, the exact boundaries of 

the Yellowstone geothermal reservoir are not known with certainty. However, no one disputes the fact that the geothermal features within Yellowstone National 

3 
108 

Park are most likely hydrologically connected to recharge areas beyond Park 

borders, especially to the west and north. 

Known Geothermal Resource Areas (KGRAB) in the GYE outside 

Yellowstone Park include: the Island Park and Yellowstone KGRAB (known 

collectively as the Island Park Geothermal Area or IPGA) in the Targhee and 

Gallatin National Forests, and the Corwin Springs KGRA, which adjoins 

Yellowstone National Park along its northern boundary. The boundaries drawn 

around these KGRAs were not based in precise scientific research or a thorough 

understanding of geothermal relationships; rather, they reflected geothermal 

energy development potential, and the location of previous lease applications. These areas are shown on the attached map. 

There are numerous documented accounts where geothermal development 

has disrupted the natural activity of surface hydrothermal features, includini hot 

springe, geysers, fwnarolea and mudpots with their associated thermophilic 

ecosystems (R. Hutchinson, updated report; D.E. White, 1979, USGS 

memorandum). A review of available literature indicates that only two of the ten 

major geyser systems in the world remain essentially Wldisturbed by geothermal 

development: the Kronotski Biological Reserve, Kamchatka, Russia, and 

Yellowstone National Park, Wyoming. Major geyser fields have been damaged or 

totally destroyed in New Zealand, China, Chile, Iceland, Italy, Nevada, and 

California. In every case, development seriously affected or destroyed outright the 

surface features of these areas. 

In Beowawe, Nevada, of 30 geysers active in 1958, none survived even 

exploratory geothermal energy drilling. This is a tragic story worth repeating, 

involving the death of a geothermal system that was second only to Yellowstone on the North American continent for its geyser activity. In the course of drilling and 

test pumping four exploratory holes, a private developer permanently silenced the 

geysers. No power was ever generated. In the words of USGS geothermal expert 

Don White, "The geysers were destroyed and probably could not be revived ap.in 

in many tens or even hundreds of years. Beowawe is a lesson in geothermal 

mana&"ement that should not be for&"otten ." 

In New Zealand, of more than 130 geysers active in 1950, only 14 still erupt, 

and massive disturbances due to energy development have occurred in hot sp~s and other surface features. Four years after the start-up of the Wairakei 

geothermal power plant in 1954, the Great Geyser in Geyser Thermal Valley, 

which ranked fifth among the major geysers of the world, became inactive. And, drillini 9-12 miles from Waiotopa, another New Zealand thermal area, 

interrupted geyser activity there · although these areas were thought to be 

hydrologically unconnected. 

The stories elsewhere in the world are much the same. In Tibet, a geyser 

field is being destroyed by geothermal development. And, in southern 

Kamchatka, the only other area besides Yellowstone with unaltered erupting 

4 
109 

geysers (mostly in Kronotski Preserve), a thermal area including at least two 

geysers have been destroyed by geothermal development (see attached photos). In a visit there last fall, I learned that there are several proposals for geothermal 

exploration next to and inside Kronotski and South Kamchatka Preserves. 

Several major findings emerge from a review of these developments: (1 ) 

hydrothermal surface features are very sensitive to small changes in reservoir 

conditions (temperature, hydrostatic pressure, flow rate, permeability and/or 

geochemistry) even over long distances; (2 ) any such disruption may be 

permanent and irreversible (R. Hutchinson, ibid); (3) attempts to reduce or 

mitigate effects of geothermal development are unreliable; (4) analysis of the 

functioning of geothermal systems can be inconclusive due to the limitations of 

the technologies involved. 

In Greater Yellowstone, thermal features have thus far been spared from 

large-scale geothermal development. Recreational spas and developments have 

been constructed in several areas to take advantage of natural hot springs, but 

these have utilized surface water rather than below-ground aquifers. 

When pressure for geothermal development has mounted in the past, 

Congress has boldly acted to prevent developments which could damage 

Yellowstone's irreplaceable geysers. In 1979, following passage of the 

Geothermal Steam Act of 1970 that provided for the leasing of geothermal 

resources, over 200 lease applications had been filed on federal lands in the Island 

Park Geothermal Area along with leases on roughly 28,000 acres of state and 

private land. The Geothermal Steam Act Amendments of 1982 authorized a ban 

on geothermal leasing and development in the IPGA, and required that an 

extensive two-year study be undertaken to determine the geothermal relationships 

between Island Park and areas inside Yellowstone Park. The ban on federal 

geothermal leasing in the IPGA remains in effect, althoueh that study was never fully funded and key questions about these relationships remain unanswered. 

In the Island Park area, these questions pertain not only to the protection of 

Yellowstone's geysers, but also to the maintenance of the rare trumpeter swan 

which winters there and the area's world-class fisheries; winter survival of the 

fishery in the upper Henry's Fork Basin is dependent on an ample supply of warm springs flowing out of the base of the rhyolite that border Y ellowatone 

Park's westem boundary. Flowing at 90,000 gallons per minute, Bii Springs, the 

headwaters of the Henry's Fork, and warm springs, combined with many other 

thermal springs, helps keep the river ice-free through the frequent sub-zero 

temperatures of Island Park winters. This provides year-round habitat for 

wildlife and fisheries, and helps fuel the recreation-based economy of the area. 

In 1986, La Duke Hot Springs, north of Yellowstone Park in the Corwin 

Springs KGRA, was slated for development by the Church Universal and 

Triumphant which drilled a well nearby, pumped it at over 400 gallons per 

5 
llO 

minute (without required state permits) with the stated intent of heating buildings 

and developing a spa. A special provision was included in the ~thermal Steam 

Act Amendments of 1988 to defer all geothermal development in the Corwin 

Springs KGRA while the USGS, in consultation with the NPS, conducted a study 

to determine the relationship between thermal resources in the KGRA, including 

La Duke Springs, and thermal features inside Yellowstone Park. The 

amendments also prohibited the issuance of new geothermal leases or production 

from existing wells until 180 days after the report was submitted to Cone-ress. If 

the study determined that geothermal development in the Corwin Springs KGRA 

may adversely affect the thermal features of Yellowstone National Park, the 

Secretary was directed to develop "recommendations regarding the acquisition of 

the e-eothermal rights necessary to protect such thermal resources and features." 

Need for Congressional Action 

We are here today, because the interim protection granted by the 1988 

Geothermal Steam Act Amendments has expired. Even with the significant 

improvements provided through the establishment of a Yellowstone Controlled 

Groundwater Area in Montana, Congress must still address 1) the threat posed if 

CUT pumps and develops its existini well; 2) the potential risk remainin&" on 28,000 acres on unprotected state and private land within the Island Park 

Geothermal Area; 3) the fact that the boundaries of the Island Park KGRA have never undergone rigorous scientific study to determine if they reflect the area necessary to protect Yellowstone's geothermal resources. 

It is not now important to retell the confusing drama created by the USGS 

study that recommended limited development of underground geothermal 

resources, such as that proposed by CUT, the contradictory conclusions of the 

National Park Service that only use of e:ristini surface flow waters was appropriate, and the decision of then Secretary of Interior Manual Lujan to side 

with the USGS, and exclude the Park Service from the debate altogether. What ii 

important is the interpretation of the data by geothermal experts within the Park 

Service. "As long as there exists a possibility of a connection between the 

geothermal resources of the KGRA and those of Yellowstone Park., risk must be 

assumed," according to the NPS. Also, Yellowstone Park Superintendent Bob 

Barbee's letter to NPS Director James Ridenour stated: "Any risk, no matter bow 

small, to Yellowstone's geothermal resources is too much risk." Such statements 

make it clear that if CUT moves forward with pumping hot water at ita enstin&' 

well site (where it now has an established right) such activity could pose a risk to 

Yellowstone. 

The risk to Yellowstone's j'eothermal resources from development on the 

inholdings within the Island Park Geothermal Area could also increase. 

Presently, the Northwest Power Planning Council is uplorini optiona to 

encourage renewable energy exploration and development, including geothermal 

development. For example, the Council has recently urged the Bonneville Power 

Administration to "proceed aggressively" with pilot geothermal demonstrations. 

Pressure to explore opportunities for geothermal development could be applied in 

6 
111 

the IPGA adjacent to Yellowstone, where geothermal relationships are very 

uncertain, and where private and state lands are still vulnerable to e-eothermal 

leasilli and development. This is the reason why Congress must now direct and 

fund the study to evaluate geothermal relationships in this area. 

New State and Federal Protections jn Montana· 

The Yellowstone Compact and Controlled Grpundwat.er Area. 

The state of Montana and the federal government have recently negotiated a Compact on the 1872 federal reserved water right for Yellowstone National Park. The negotiations are based on the recoiJUtion that in preserving the Park in 1872, 

Congress intended to reserve the water necessary to preserve the hydrothermal 

features within the Park. The Compact covers instream flow on streama that flow 

between Montana and the Park, and geothermal resources. The proposed 

settlement has been ratified by the state Legislature, and awaits the Governor's signature. 

Due to the scarcity of information regarding interrelationships of 

hydrothermal systems within and outside the Park, and the difficulty of 

quantifyi~ water necessary to preserve the hydrothermal features in the Park, 

the Compact Commission would establish a Controlled Groundwater Area (CGA) 

under existing state laws as a means of protectin~ the park's geothermal resources. 

The boundaries of the CGA, and particular restrictions, are included in the 

attached map. This includes two subareas within the CGA: 1) discharge areas, 

(where there is a strong presumption that an elevated water temperature is due to 

dischar~e from the Park) and 2) recharge areas (where there is a chance that 

elevated water temperature is not related to the Park). In the discharge areas, no 

production of hydrothermal water would initially occur. 

There would be no limitation on development of cold water (below 60 

degrees), but permits would be required under existing state law for all wells, and 

would be provisional. Wells that produce less than 35 gpm up to 10 acre feet per 

year would go through an expedited permit review process. The state could 

modify or revoke any permit if monitoring shows that hydrothermal systems for 

which a restriction applies are being affected. 

The Compact would establish a technical advisory committee to review the 

boundaries of the CGA, restrictions on groundwater development, cumulative 

impacts, and new scientific information. The five-member committee would 

include representatives of the National Park Service, the USGS, the state 

University System, the state Department of Natural Resources, and a fifth 

member to be appointed by the other four. An inventory of existin4f wells would 

take place immediately. The intent is to obtain federal funding for the initial 

inventory, establishing and administering the CGA, and necessary monitoring 

activities. 

7 
112 

Public Support 

The Old Faithful Protection Act and the Yellowstone Compact's geothermal 

protection enjoy widespread public and media support, both within the Greater 

Yellowstone reeion and from far away, where many constituents of the 

international treasures reside. I am delighted to be able to submit to you today 

statements of support from constituenta of our Coalition including the Henry's Fork Foundation, based in Island Park, Idaho, and the Upper Yellowstone 

Defense Fund in Corwin Springs, Montana, as well as a petition si~ed by 

citizens and members of the business community in Gardiner, Montana. Owners 

of these businesses recognize that their future and economic well-being is tied to 

the health of Greater Yellowstone and its maicificent geysers. So also does the 

Fremont County, Idaho, Commission, which passed a Comprehensive Land Use 

Plan in 1991 which prohibits "industrial uses that could have a negative impact 

on environmental quality and the attractions of the area, includi.ng the 

geothermal features of Yellowstone Park," 

Old Faithful Protection Act and Private Propertv "Tekipgs" C!ajme. 

To date, concerns about this bill have centered primarily around the 

question of whether the leeislation involves a "takini" of private property rights. 

After extensive hearings and analysis, the U.S. House of Representatives Mining 

and Natural Resources Subcommittee and the Congressional Research Service 

concluded that the Old Faithful Protection Act would not result in a "taking." 

However, under H.R. 1137, landowners would be able to challenge this 

interpretation in the claims courts if they wish, and receive compenaa.tion if the 

courts rule in their favor. 

Last Congress, CUT in particular made the claim that the Old Faithful 

Protection Act would result in a "taking" of private property rights. There was 

some debate last year over whether CUT actually had a water right, since they 

had never put their water in the geothermal well drilled in 1986 to ''beneficial 

use." That was the reaaon they pumped from their existing geothermal well for 

three daya at the end of June/early July, thereby secu~ a water right from the 

Department ofNatural Resources of32 gallons per minute-· even though the 

pumping wu done in violation of an agreement with the State Deparlment of 

Health. Although we objected to the granting of this right, since the pumping was illegal, even if it is determined that CUT does have a water rieht at the well, 

the restrictions imposed by the Old Faithful Protection Act would be fully within 

the regulatory powers of government. The reason is that Congress would not 

prevent CUT from using the surface waters at La Duke Hot Springs, where it has a valid right. 

In considering these matters, it is important to remember that no rights 

8 
113 

are absolute. For example, the U.S. Supreme Court has ruled that the right of 

free speech does not ~ve one the right to yell "fire" in a crowded theater. Private 

property rights do not give property owner& the ri~ht to drain Yellowstone 

geothermal aquifer&. What would the affect be on Yellowstone, if all private 

property owners in Gardiner and Corwin Springs attempted to exercise the same 

rights CUT claims it has? That would certainly affect Yellowstone, but whose 

well would be allowed and whose disallowed? Who would get compensated and 

who not? What about people who claim future rights? 

While owning property conveys rights to people, it also conveys 

responsibility. This is especially true for neighbors of Yellowstone Park. The 

wonders of Yellowstone are ''common" property, owned by all U.S. citizelll! ·· really everyone on earth. It is the responsibility oflandowners ·• and everyone 

else ·· to ensure that Yellowstone's treasures remain for future generatiolll!. Property owners cannot be expected to be reimbursed for fulfilling_ their 

responsibility. 

Regarding the issue of appropriate remedy, one should remember that for more than two centuries this country has had an established process for people 

who feel they should be compensated for lost property rlihts. The U.S. Court of 

claims exists for the reason. The Old Faithful Protection Act protects property 

owners and due process in the courts. 

If CUT, or any other property owner, has a claim against the U.S. Government, they should go through the federal court system. The courts are the venue best equipped to decide if a takine- has occurred and, if so, what the 

compensation should be. Congress is I1Qi the proper forum to decide this difficult 

issue. 

Recommerdations for HR 1131 

If the Governor si_@_~ the Compact, we recommend that HR 1137 be 

modified to incorpora~ llieProvisions of the Compact. Of particular importance 

is its specification of recharge and discharge areas which will be protected and 

monitored; this scientifically based distinction between recharge and discharge 

represents an improvement over HR 1137 in terms of precisely identifYini the 

character of groundwater movement, enabling the agencies to predict potential 

problems, and establish needed monitorini programs. Also important is the 

proposed breakdown of temperature of water into three ranges Oess than 600 F, 

between 600 and 850 and above 850 J where different monitori.ni and development 

standards would apply; this too is a far more sophisticated approach than that 

taken originally in HR 1137. The Compact negotiators recognize geothermal 

waters as those above 600 F, and restrict geothermal development above this level 

-hat, 

due to 

watm 

the potential 

and eeld wate{. 

for impacts 

These on definitions 

geothermal 

of 

features 

ieothermal 

in the 

water Parkand 

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the 

standards of review proposed for each makes sense, are scientifically based and 

9 
114 

should be applied on an ecosystem-wide basis, possibly through an amendment to 

the bill. 

Since water monitoring and testing are critical to implementing these 

provisions of the Compact and improving the level of understanding of 

geothermal relationships, we strongly urge Congress to appropriate the $2.3 

million necessary to establish this program. Without federal funding, 

implementation of these important protection measures simply will not occur. Attached is a letter submitted by GYC to the Interior Appropriations 

Subcommittee on this matter. 

We also urge that further regulations be considered to ensure that the Park 

Service exercises sufficient caution regarding protection of geothermal features 

inside the Park. Over the past six months several disturbi.ni incidents have occurred, including 1) excavation of travertine formations at Minerva Springs by a Park Service trail crew, 2) failure of a casing inside a geothermal well drilled by 

USGS near Old Faithful nearly forty years ago which temporarily created a geyser 

several stories high until capped, and 3) accidental bulldozing of a thermal 

feature during roadwork in the Park. Each of these incidents raise a question 

about whether or not the Park Service is exercising adequate oversight and 

placing the highest priority on protection of its irreplaceable geothermal wonders. 

Finally we recommend that oil and gas leasing be prohibited on all federal 

lands outside the park where geothermal protections would be established under 

H.R. 1137. The reason this is necessary is that, accordi.ni to USGS geothermal 

expert Irving Friedman, oil and gas drilling and development could have the 

same effect as geothermal development, by displacing underground QuidB and 

potentially damaging the complex plumbing systems for the geothermal features. 

We appreciate the opportunity to present our views here today, and we would be happy to answer any questions. We thank Congressman Willie.IJUI for 

his persistence on this difficult but critical issue, and look forward to working 

together to ensure the "iron clad, copper-riveted" protection for Yellowstone that it 

greatly deserves. 

10 
115 

~Greater Yellowstone Coalition 

March 22, 1993 

Honorable Sid Yates, Chairman 

House Appropriations Interior Subcommittee 

B-308 Rayburn 

Washington, D.C. 20515 

Dear Representative Yates: 

We are writing to ask your assistance in securing funding 

for a program that is critical to protecting the geothermal 

resources of Yellowstone National Park . 

The state of Montana and the National Park service are 

currently negotiating a reserved water rights compact for 

Yellowstone Park. The negotiations are complicated by the fact 

that the Compact strives to reserve not only the instream flows 

to which the federal government is legally entitled, but attempts 

to protect the hydrothermal resources for which the park was 

originally established in 1872 . 

The negotiators and consulting scientists acknowledge there 

is much that is not known about the interconnectedness of 

hydrothermal features within the park and groundwater in 

surrounding areas in Montana. The draft Yellowstone Compact 

proposes establishing a controlled groundwater area (CGA) outside 

the park; within this CGA, all geothermal and cold water 

development would be controlled. 

The Compact proposes an initial inventory of all existing 

wells, and monitoring of all existing and future wells. These 

are very important provisions, because for the first time, we 

will have a mechanism for documenting and monitoring all f u ture 

developments and changes in the character of the water that coul d 

be an early warning sign of potential damages occurring to the 

hydrothermal resources of Yellowstone Park. 

The National Park Service agrees that it will receive a 

benefit from establishment of the CGA , and that the proposed 

restrictions provide national and international benefits 

extending beyond the boundaries of Montana. The intent of the 

negotiators is to obtain federal funding for these activities. 

We are very concerned that allowing new developments to 

continue under the terms of the Compact without immediate funding 

to proceed with the necessary inventory and monitoring coul d 

result in unacceptable impacts on the park's hydrot hermal 

resources. There is a very real sense of urgency because of 

P.O. Box 1874 • Bozeman, Montana 5977 1 • (406) 586-1593 • FAX (406) 586-0851 
116 

extensive developments proposed by the Church Universal and 

Triumphant at La Duke hot springs within the CGA, and the rush of 

well applications within the CGA filed with the state in the last 

several weeks. 

We ask that you help assure immediate funding for the 

National Park Service for implementation of the Yellowstone 

Compact in order to protect the park's hydrothermal systems. We 

understand that the USGS is just completing its analysis of 

expected costs, and complete figures should be forthcoming. 

Sincerely, 

/~1 

( .! ·.·· /:-)t;C{ld'/· '· J /j I--- {(tJI'- L/ "/ ·j..YiJj 

Jea~ne-Marie Souvigney I / 

1ssociate Program Director 

(/ 
PROPOSED CONTROLLED GROUNDWATER AREAS, Yellowston

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118 
119 

Grand Prismatic Spring, Yellowstone National Park. The different color bands represent different algae species which flourish at specific temperature ranges in the hot 

water. (Photo by Sandy Nykerk). 

Eruption of Old Faithful, the most famous geyser in Yellowstone National Park. 

Geysers reflect a unique combination of four essential elements: a source of heat dose to the carth"s surface, an 

adequate supply of water, a reservoir, and a plumbing system in which water is stored and heated . (Photo by 

Sandy Nykerk). 
120 

Geothermal development near South Kamchatka preserve, Russia. Increased interest in and proposals for geothermal exploration in Kamchatka, both inside and outside the preserve 

system, potentially threatens the only other geyser system in the world besides Yellowstone that has not been 

damaged or destroyed by geothermal development. (Photo by Irving Friedman). 

This mudpot is what remains of a geyser within the developed geothermal field in 

South Kamchatka. It is one of several identified by USGS geothermal expert Irving Friedman that probably was silenced as a result of 

geothermal development. (Photo by Irving Friedman) 
121 

Mr. LEHMAN. Thank you very much. We appreciate your testimony this afternoon. 

I guess the bottom line here is that, if we are foolish and do the 

wrong thing or are not wise enough to be very cautious here, there 

is no way to mitigate the loss of this resource. It's not renewable. 

They can't restore it. It is just gone. You know, even when we 

clearcut something, at least maybe in 100 years it's going to come 

back naturally. Or when we destroy a fishery, there are means to 

restore or mitigate damages. But there is no way to do that with 

the loss of this resource, which is one of the central resources of 

the park. So I am moved by that fact. 

I guess there are other threats, obviously, to Yellowstone that we 

are not talking about today. 

Mr. Scott, in your testimony, the points you raised, one of the 

things you mentioned is that you think the boundaries here ought 

to be changed, and you state what you think they ought to be made 

to conform to the compact. Physically, what is the difference between those boundaries and the ones in the bill now? Could you tell 

us that? 

Mr. SCOTT. What we would propose is for the purposes of the 

State of Montana. On this map, that black line is roughly the 15-mile boundary 

contained in Congressman Williams's bill, and we would propose, 

for the purposes of the State of Montana, that we use a boundary 

that coincides with the drawn controlled groundwater area boundary, which would be in this boundary. And it basically follows what 

other earlier witnesses have testified to be the external extent of 

the Madison formation, limestone formation. 

Mr. LEHMAN. And why is that better? 

Mr. SCOTT. It was drawn based on current geologic theory, which 

holds that that is principally responsible for the recharge, that formation is principally responsible for the recharge of Yellowstone's 

thermal features. And that is roughly the outward extent of the influence of Yellowstone, and therefore that it is a scientifically defensible boundary. Mr. LEHMAN. Okay. You also mention in your statement, you say 

that, "Further regulations be considered to ensure that the Park 

Service exercise sufficient caution regarding protection of geothermal resources inside the park." Could you elaborate a little bit 

more on what you mean? 

Mr. SCOTT. Certainly, Mr. Chairman. AB I mentioned very briefly, there are a number of existing, but capped, old research wells 

within Yellowstone Park, one of which last year blew out and we 

had an equivalent, I suppose, of a little manmade Old Faithful. 

And it took quite a bit of effort to cap that, a lot of money, time, 

and effort on the part of the Park Service. 

There was also an incident where a park maintenance crew actually trenched a travertine deposit to change the flow of the travertine deposit so that it wouldn't invade a park walkway, which, had 

a tourist done that, it would have been considered probably some 

sort of malicious act and somebody would have been fined for it, 

at a minimum. To us, that points out the fact that the Park Service does not 

have its own house in order and that it needs some direction from 
122 

Congress to assure that the park is managing its thermal features 

or its activities inside the park to the same high degree that we 

are asking people outside the park to manage the thermal waters. 

So we broke down our recommendation into three parts: One, 

that the park be required to cap and plug all the remaining old research wells which are currently not being used, so that we won't 

have another blowout; secondly, that the park inventory the effects 

of its current activities, whether they are concession facilities or 

water systems the park uses inside the park, to see whether there 

is any adverse effect to any of the geothermal features; and finally, 

that the park be required to adopt some sort of a policy that would 

guide its employees in how they manage or, hopefully, leave alone, 

any of the thermal features as they change, which is what this one 

feature was doing, and that after all is what Yellowstone is all 

about, which is to show and see just how dynamic these features 

are and how they change over time. 

Mr. LEHMAN. Another point brought out here is that in the bill, 

I guess, the definition that triggers the application of the act is a 

temperature located in the Geothermal Steam Act of 1970, for purposes of defining geothermal resources. The question here is whether or not the same definition is really applicable to protecting the 

park resource. Is that a fair characterization of the position? 

Mr. ScoTT. That's exactly right, Mr. Chairman. What we are suggesting is that, rather than using a definition for commercial production that is contained in the Steam Act, what we do is adopt 

a definition that is more applicable to the protection of a natural 

feature like Yellowstone, which appears to be much closer to combining two aspects of the definitions in the compact that the State 

described, which is the hot and warm definitions. 

So, in other words, we are suggesting that you use a standard 

that says any water temperature above 60 degrees which contains 

chlorides in excess of ten parts per million be the defmition to define hydrothermally connected waters. 

Mr, LEHMAN, Thank you. 

Mr. Vento? 

Mr, VENTO. I had a conversation with Congressman Williams, 

and we noticed in this preserve, let's see, South Kamchatka Preserve in Russia, that they had on top of here a copper-riveted, ironclad facility. [Laughter.] 

Ms. FAYAD. Yes. Built in the 1950's. 

Mr. VENTO. Congressman Williams assured me this was not 

what he was talking about. [Laughter.] 

In terms of providing assurance. This is more rusty, I guess. Nor 

is he talking about one that has a little more stainless-steel in it, 

I guess. 

In any case, Mr. Scott, we appreciate very much the work that 

you have done, and others here from the Yellowstone Coalition, the 

National Parks and Conservation Association, in protecting this, 

what I guess is considered-Mr, Lehman may argue about thisone of the first national parks, 

I guess they all tried, They came in in 1860. How's that, guys? 

[Laughter.] 
123 

Mr. VENTO. But they were set aside as reserves, preserves, Yosemite and Yellowstone, long before my memory goes back. But my 

two older colleagues here may know. [Laughter.] 

Sorry, guys. 

But the point Mr. Scott made was the issue of the existing wells. 

It seems to me, when I was asking the question of Mr. Tweeten, 

maybe I misunderstood what he said, but I thought that the suggestion was that the grandfathered wells, whether they be hot or 

cold-and I think the formulation and some of the work they've 

done on the compact is very thoughtful, and it obviously goes beyond, and we will have to deal with those issues now in this protecting geothermal features. But I thought he said that they could 

go back and examine them as to their impact on the geothermal 

features in Yellowstone. 

Mr. SCOTT. Well, I wouldn't want to comment on that. 

Mr. VENTO. I didn't want you to take that. You know, I think 

that the record will show that that is what his answer was to my 

question. That is the way I understood it. Did you understand 

something different? I note that your testimony was prepared before the hearing, obviously. Mr. ScoTT. Yes. I wouldn't want to characterize what Mr. 

Tweeten had said. 

Mr. VENTO. I do, though. [Laughter.] 

Mr. SCOTT. The point that we were trying to make was that if 

you look at the temperature and chloride content of the well owned 

by the Church Universal and Triumphant, that under the provisions of the compact, the church, if it were corning and applying for 

that well today, the church would have to prove that there were ·no hydrothermal connections between its well and Yellowstone 

Park. And the U.S.G.S. spent several hundred thousand dollars, as 

did the Park Service, and you had those two entities before you, 

Mr. Chairman, last year for, I think, four hours or longer, asking 

them questions. They could not tell you at that point that beyond 

the shadow of a doubt there were no interconnections, that all they 

could say was that the risks were minimal but that there were 

risks. 

Under the terms of the compact, it is required that people are 

required to find under the terms of the compact that if there is 

risk, that a permit is denied. It is only for those temperature of 

wells, when you are into the higher temperatures and the chloride 

contents. 

So, the point we were trying to make in our testimony is that 

just because the well was drilled before the effective date of the 

compact, which is January 1, 1993, doesn't necessarily make it 

right. 

Mr. VENTO. No. Well, I agree with that. And of course you get 

into two questions here. I was talking about the retroactive question, and then you were talking about prospectively, depending 

upon temperature and so forth, how it would fit and who would 

have the burden of proof. Mr. SCOTT. Well, I think one of the things that Mr. Tweeten 

pointed out was that there is nothing in the compact that prevents 

the United States from going into court to try to enforce it. 
124 

Mr. VENTO. No, but, you know, ideally we don't enter into these 

and spend a couple of million dollars to have the privilege of engaging in court cases. You know, obviously the idea is that it would 

be-and I think it will be-a method to resolve things so that it's 

workable. At least if it isn't, then I guess we would be very concerned about it. We want the issues to be settled. 

In any case, I do think that the hearing did provide some insights for all of us, and there will be further discussion. I do appreciate the issues that you have all raised in terms of improvements and the discussion about the Idaho and Wyoming treatment and 

the Park Service activities within the parks. Obviously, parks are 

established. We obviously don't pay as much attention to this for 

the purposes of understanding the science and the geology here, 

and apparently that itself can deal with the features and be in conflict. 

So I don't know what all the ramifications are of this or what the 

cost would be, but, clearly, it would be, once you open up something, if you get a hole in the :pipe, it's like filling the basement 

with concrete to repair the hole m the pipe because you don't have 

the ability to get in there and do the work. 

Incidentally, if there is someone else here from the U.S.G.S. or 

from the Park Service who can talk to me about the depth of alluvial soils, I would be interested in knowing that because most of 

the profiles we have seen, that I have seen, do not indicate that 

very accurately. So I would like that information. 

With that, Mr. Chairman, I would yield. 

Mr. LEHMAN. Thank you. 

Mr. Williams? 

Mr. WILLIAMS. Thank you. 

My thanks to each of you for your support of this legislation and 

also to each of you and your organizations for your assistance over 

the past couple of years in developing the legislation. 

There is some difference of opinion among all the panelists as to 

exactly what the effect of this bill would be. At the risk of further 

torturing this descriptive phrase I use, it does seem to me that 

there is also some question as to what that fhrase really is. 

So that there be no doubt about my ful intentions, let me say it for you. It is iron-clad, copper-riveted, rock-ribbed, no-nonsense, 

zero-risk protection for Yellowstone National Park. 

Mr. LEHMAN. Other than that, are you flexible? [Laughter.] 

Mr. WILLIAMS. Absolutely. [Laughter.] 

Let me, Mr. Chairman, note from Ms. Fayad's testimony the 

opinion of the National Park and Conservation Association with regard to taking. 

Before reading these several sentences into the record, I want 

again to make clear that it is not the intention of this legislation 

to deny the Church Universal and Triumphant from the surface 

flow at La Duke Hot Springs, to which they have clear title. We 

do not take that. If we need to make it clearer in the bill, as I said 

to Mr. Francis, I am willing to do that. 

But I think that the testimony of the National Park and Conservation Association goes to what would happen even if the bill 

did take it, even if the bill went beyond the intention of its author. 

Here is what the Association says: 
125 

There are some legal issues concerning the wells drilled by the church and the 

church's water rights. However, even if the Church Universal and Triumphant has a legal right to the hot water at La Duke Hot Springs, it is doubtful that the actions 

contemplated by H.R. 1137 would constitute a taking. The Supreme Court of the United States has found that a taking occurs when a government action denies the property owner all viable use of his or her property or the governmental action does not substantially advance a legitimate government interest. Conversely, a taking does not occur when the action furthers a legitimate State interest and does not deny the owner all economical viable use of the property. 

Now, the Association may or may not be addressing the issue 

there if we took the La Duke Hot Springs. It is not our intention 

to take the water at La Duke Hot Springs. But it clearly is in the 

public and, therefore, the State's best interest to do all we can to 

protect Yellowstone. 

Let me ask both Mr. Scott and Ms. Willcox about this matter of 

the current flow at La Duke. Is it your understanding that the legislation would allow the Church Universal and Triumphant to have 

the current flow arising from La Duke Hot Springs? And so you 

support or oppose the church having that flow? 

Mr. Sco'IT. Congressman Williams, as you recall, last year when 

we testified before this Committee, we indicated, as we did this 

year, that we see nothing in the legislation to deny the church the 

use of the surface flows at La Duke. We were supportive of that 

last year, and we continue to be supportive of that this year. 

There was quite a bit of discussion last yE>ar about how one 

would accomplish the task of getting the flows from the east side 

of the river over to the west side of the river where the church 

would like to use it. We had discussions with Mr. Francis after the 

hearings where we talked to him about the prospects of putting a 

pipeline under the river to put the flows across and that in concept 

we saw nothing wrong with doing that. I always assumed that it 

was consistent with the correct way of doing that. 

So, no, we don't see anything in the legislation, we don't see any 

reason why the church should be denied the surface flows. 

Mr. WILLIAMS. Ms. Willcox, does the Greater Yellowstone Coalition have a view of this? 

Ms. WILLCOX. Yes. And we supported over a year ago in this 

hearing room, I believe, on a hearing on the Old Faithful Protection 

Act then, that the church should be allowed to use the surface flow 

at La Duke, where it has a very senior right. 

And I did not know that that was a matter of concern or contention until this morning in the Church Universal and Triumphant's testimony when they raised that concern. It has simply not been 

an issue with any of us. 

Mr. WILLIAMS. Mr. Chairman, would you ask Mr. Tweeten torejoin us at the hearing table? I have a question to ask Mr. Tweeten. 

Mr. LEHMAN. Certainly. 

Mr. Tweeten, why don't you come forward? 

Mr. WILLIAMS. Chris, you heard Michael Scott's suggestion that 

if the-I believe it was Mr. Scott's suggestion-that if the funding 

did not come forward, it might nullify the provisions of the compact. Is that your understanding? 

Mr. TwEETEN. Mr. Chairman, there are provisions in the compact that deal with the funding and what would happen if the 

funding did not come forward. 
126 

Mr. WILLIAMS. Are they severable? Is it severable at that point; 

that is, if the funding doesn't come forward, is the compact still in 

effect? 

Mr. TwEETEN. Well, the compact is still in effect, but it gives the 

State the option of withholding its implementation of certain portions of the compact until the funding becomes effective. It doesn't 

automatically withhold, but it gives the State that option if the 

Federal funding doesn't come forward. Mr. WILLIAMS. The compact at that point becomes voluntary on 

the part of the State. 

Mr. TwEETEN. With respect to those particular provisions, I 

think that's right. Mr. WILLIAMS. Are those critical provisions? 

Mr. TwEETEN. I think they're very important provisions. That is 

why we urge Congress to provide the funding so that we can implement them fully. 

Mr. WILLIAMS. Does the compact allow the State to withdraw at 

any time, even if you had the money? 

Mr. TwEETEN. No, Mr. Chairman. The compact is binding in perpetuity and can only be modified by either party on mutual agreement. Mr. WILLIAMS. Mr. Chairman, would Dr. Fenn also join us for 

one moment at the table? 

Dr. Fenn, this· is a new element in this with regard to the full 

provisions of the compact not being carried out if Congress does not 

appropriate the money. Is it the intention of the Department of the 

Interior, I assume in next year's budget, to ask for this money? 

Dr. FENN. Mr. Chairman, Mr. Williams, I think that the budget, 

the FY '94 budget, of course is already presented to the Congress. So we are looking at FY '95 as being our first opportunity, and I 

think it is our intent to do everything that we can to see to it that 

the needed funds to implement this pact are in the request that is 

sent forward. Mr. WILLIAMS. Would the Department be willing to consider, 

given the urgency of this and the short window time frame of '95, 

would the Department consider asking for this in a supplemental? 

Dr. FENN. We haven't had any discussions about that, but I 

think that is certainly a possibility. Now that the bill has been 

passed by the legislature and we hope will be signed by the Governor, it will be sent to the Secretary of the Interior for his approval and to Justice for their approval. Once that Federal approval has been given, and we don't anticipate too many major 

problems with that, then I think that a supplemental is a very real 

possibility. 

Mr. WILLIAMS. I assume we will need to provide authorization for 

this. Is that correct? 

Dr. FENN. I think that is what the hope would be. 

Mr. WILLIAMS. We might do that in this legislation. Mr. VENTO. If the gentleman would yield to me. No, I would 

agree in this bill, but the question that I had I think really gets 

back to Mr. Tweeten's comment is that if there isn't Federal funds 

forthcoming, that certain elements of the legislation would not be 

implemented, would not be able to be implemented. 
127 

Then the question is in terms of the involvement of State funding. If in fact there isn't State funding, then does that same hold 

true? I think we are on a very slippery slope to lead again to predicate the implementation of the legislation selectively on that basis 

simply because there is a reliance here on funding and good-faith 

effort. And I would want to be very careful about that particular 

slope that we get on. 

I understand the importance of it. We want to work in good faith. 

We will try to get this done. It is an important part, I think, that 

we have got a good measure to sell. But I am concerned about that 

aspect insofar as the State is a major participant and contributor 

in this particular process, you know. And the fungibility of the 

funds that the State might be putting in, I don't know that they 

are so isolated or identified. 

But I would have to know more about the compact. But that 

would be a concern, and we might want to answer that for the 

record on the part of, I note both the representatives from the 

State of Montana and the Park Service are still in the room and 

have been at the table. 

I think the bill, we might want to have a point, in terms of the 

legislation, to recognize the implementation of the law or the application of the law in the absence of the compact being brought about 

and so forth in terms of how we fit this, not to anticipate problems, 

but I think they have been recognized. 

I thank the gentleman. 

Mr. WILLIAMS. In conclusion, I want to thank again both chairmen for the haste in which you have dealt with this issue, and particularly thank you for the appropriateness of deciding to hold this 

hearing on Earth Day. 

Let me tell you something I learned yesterday. Remember when 

you were a kid and you used to go to the doctor and they'd take 

a culture and then they'd tell you to give them a call or they'd give 

you a call in four or five days. They were trying to grow this thing 

from your throat to see what it was so that they knew how to treat 

it. 

Today, that doesn't happen. You go in, and within a very short 

time, just a matter of hours, they can tell you what the problem 

is. 

It is a very important scientific breakthrough. It's because of Yellowstone National Park. One of the things that scientists needed in 

order to pull off this quick growing of cultures was an enzyme that 

wouldn't be destroyed by heat. And after much searching, they finally found it in one of the hot pools out at Yellowstone. 

These parks are scientifically more important than we know. Yellowstone National Park is a cash register for Montana, Wyoming, 

and Idaho. And it is of course a scenic and natural wonder to which 

we want to give zero-risk protection. 

Thank you, Mr. Chairman. 

Mr. LEHMAN. Thank you. 

I thank this panel and all the witnesses today, and with that we 

will adjourn the hearing. 

[Whereupon, at 12:45 p.m., the subcommittees were adjourned.] 

APPENDIX 

APRIL 22, 1993 

ADDITIONAL MATERIAL SUBMITTED FOR THE HEARING RECORD 

HONORABLE JAMES V.HANSEN 

OPENING STATEMENT ON H.R. 1137 

OLD FAITHFUL PROTECTION ACT OF 1993 

APRIL 22, 1993 

Mr. Chairman, I consider myself as an ardent 

conservationist when it comes to taking care of the great 

national parks of this country. Indeed, there are few, if 

any, states where the beautiful natural heritage of this 

country is better protected in the national park system than 

in the state of Utah. 

However, it seems to me that this Committee has 

adopted a major new initiative of establishing unnecessary, 

and potentially very costly, buffer zones around park areas. 

I see these efforts at Lechuguilla Cave, at Bodie Bowl, in 

the Chairman's BLM re-authorization bill and in a number 

of other pieces of legislation. 

(129) 
130 

-2-

What is particularly disturbing with this piece of 

legislation is that the bill is based on assumptions which 

totally contradict scientific studies carried out by the 

Interior Department. In 1988, Congress acted justifiably in 

response to concerns regarding the potential impact to 

unique park geothermal features by directing the USGS to 

study the issue. Now, just because certain interest groups 

disagree on an emotional basis with the USGS's scientific 

conclusion that certain geothermal development activities 

on lands outside the park can be pursued "without 

discernable risk" , the Committee is set to move this bill 

forward. 
131 

-3-

Mr. Chairman, I am disturbed by this measure not 

only because it is in total contravention of existing scientific 

data, but also because it clearly effects a taking of private 

property rights. It is precisely because the government has 

failed to establish that any geothermal development within 

the Corwin Springs area would have an adverse impact on 

Yellowstone Park geothermal features that this measure 

effects a taking. In several recent court cases, the courts 

have found that a taking has occurred when the action 

cannot be shown as necessary to advance some legitimate 

government interest. Such is clearly the case with this 

measure. 
132 

-4-

Mr. Chairman, I am very concerned about the 

direction this Committee is headed with respect to these 

buffer zone bills. While I support protecting parks, and I 

anticipate there will be numerous battles over unnecessary 

buffer zone bills such as this one. 
1:'\ RJ:PI.Y RH( It TO 

133 

Cnitecl States Depanment of th e Interior 

:\ATIO:\AL I'ARh SER\ lCF 

Wa1er Resourn:s o ... ;~ion 

1201 Oal Ridge Drive. Sum: 2SO 

Fort Collins, Colorado 80525 

TESTIMONY OF OWEN R. WILLIAMS 

NATIONAL PARK SERVICE 

RESERVED WATER RIGHTS COMPACT NEGOTIATION TEAM SPOKESPERSON 

ON HOUSE BILL 692 

April 7, 1993 

Thank you for the opportunity to testify on behalf of the National 

Park Service (NPS) with regard to the Draft Compact between the 

state of Montana and the United States for reserved water rights in 

Big Hole National Battlefield, and Glacier and Yellowstone National 

Parks. To begin with, let me provide some background about myself 

and the Federal negotiating team. I am Owen Williams, Chief of the 

National Park Service's Water Rights Branch in the Wa'Cer Resources 

Division. While located in Fort Collins Colorado, this unit is 

attached to the NPS's Washington Office. I served as the NPS lead 

in compact negotiations and my staff, led by Chuck Pettee, provided 

the technical support required by the team. Richard Aldrich, who 

is the Field Solicitor from Billings, served as the lead from the 

Department of the Interior's Office of the Solicitor. The team 

also included three attorneys from the Department of Justice (Eric 

Gould, James DuBois, and Dave Gehlert.f 

As you are aware , approximately fourteen months ago the State of 

Montana, through its Reserved Water Rights Compact Commission, and 

the united states, through the National Park Service, committed to a concerted effort to negotiate issues to produca a federal 

Reserved Water Rights compact. Before you is the product of that 

effort; one in which both parties may take pride, in my opinion. 

I am unable, today, to speak for anyone other .than the negotiation 

team itself. However, the team, joined by line officers of the 

affected parks, has passed the draft Compact on to the responsible 

officers of the Department of the Interior and the Department of 

Justice with a strong recommendation for approval. Washington 

staff of these Departments have concurred and recommended approval 

to their principals. Approval has been recommended because, in our collective view, this agreement accomplishes several things which are of paramount importance for the protection of these three NPS 

units. 
134 

2 

First, the Compact protects t~~ water-related resource values of 

each park to accomplish each "reservation's purposes". It provides 

instream flows for fish, riparian vegetation, and recreation and it 

assures that the free-flowing character of the rivers and streams 

of Yellowstone and Glacier will continue into the future. 

Protected, also, will be the historical conteY.t of Big Hole 

National Battlefield. The generations which follow us will have 

the opportunity to reflect upon and be enlightened by this 

important memorial to the history of this great country and its 

people. 

Second, water for the use of existing and future visitors and staff 

w i 11 be assured. The existing and reaso.nable future consumptive uses of water at these units will be quantified by the Compact and 

will be protected. This gives both the State and the NPS the 

certainty needed to respond to growth when it occurs. Also, 

private water rights holders will be more secure in the knowledge 

that their rights are no longer put at risk by an un-quantified 

senior Federal Reserved Right. 

Third, the Compact will avoid the substantial ~xpenditures of 

financial and staff resources that are associated with contentious 

and uncertain litigation. During times of heightened concern over 

governmental expenditures, this is not a trivial matter. 

Fourth, while recognizing existing water uses, the Compact also 

makes provision for a reasonable level of future water development 

by the people of Montana in tributary streams. This development can occur in an unhurried and planned manner because the Compact 

settles the un-quantified Federal Reserved Right question and 

provides protection for present and future non-federal uses. 

Similarly, the NPS can plan with more certainty because the Compact 

will specify the level of future water use of the surface and 

ground water which is tributary to the parks. 

Finally, the Controlled Groundwater Area provisions will _provide 

critically important protection for the Yellowstone hydrothermal 

system. The State and the NPS will be able to work together to 

improve our scientific understanding of the hydrothermal system 

before taking actions which could imperil this internationally 

important resource. At the same time, the people of Montana will 

be able to make reasonable and careful use of the ground water that 

does not affect the hydrothermal system. 

I want to emphasize that this agreement is sensible for all 

parties. It is the view of the NPS negotiators that a good 

litigation case with very substantial supporting data could be 

brought to court. It is also our view that little would be served 

by such a course of action. Instead, through the Compact existing 

private water rights will be protected. Also, future water 

development will be provided for in virtually all drainages while 

the protection required for these nationally important NPS units 

will be assured. 
135 

3 

In conclusion, I would like to recommend t hat this body take 

favorable action on the NPS Compact. I would also like to 

reiterate the NPS's commitment to continue negot i ations to settle 

Federal Reserved Water Rights claims at Bighorn Canyon National 

Recreation Area and Little Bighorn Battlefield National Monument. 
... to conserve the 

the natural and his

~ the wild life therein 

for the enjoyment o

such manner and b

will/eave them uni

enjoyment of future 

August 25, 

16 U.S.C. 1 
BIG HOLE NATIONAL B

11 

... public /ands ... are necessary 

management, and protection o

landmarks included within the 

J
BIG HOLE NATIONA

In order to preserve 

and sites associated 

with the Battle of the 

and to facilitate thei

administration and 

interpretation, ... " 
Big Hole Nationa! 

Parkwide Visitation {1

Thousands 

70 .----- --- -

60· . . . . .. .. . .. . . . .. . 

50· .. .. .. . .. . . . . . . VI I I I I I I I 1 · • · · · 

40· . . 

30· 

20· 

10· 

!1111111 1/1 ll lllllllt1 VIIII/1 1/

Q I U lfl/1/ (d 

1987 1988 1989 1990 

fZJ Number of Visitor
GLACIER NATIONAL PARK 

... II a public park or pleasure ground for t~e bene

t~e people of the United States .. .in a state of natu

and protection of the fish and game within the bo

(36 Stat
GLACIER NATION

Parkwide Visitation (1

Thousands 

2,500~------------------------

2,000 

1,500 

1,000 

500 

0 I W il d Will\ 1// // / 1 11//1/1 1/// 1/1 VI /lid 

1982 1983 1984 1985 1986 1987 

fZLl Number of Visitor
142 

NPS Consumptive Use 

Glacier National Park 

Acre-feet Gallons per 

per Year Minute 

NF Flathed River Basin (76LJ) 

North Fork Areas 4.70 70 

Backcountry Cabins/Use 4.14 55 

MF Flathead River Basin (761} 

Me Donald Creek Areas 246.00 1720 

Middle Fork Areas 0.70 10 

Backcountry Cabins/Use 4.48 55 

Saint Mar:t: River Basin (40T} 

Northern Border Areas 2.20 20 

Many Glacier Area 166.40 600 

Saint Mary Area Areas 128.40 915 

Backcountry Cabins/Use 3.52 40 

Two Medicine River Basin (41 M} 

Two Medicine Areas 6.40 70 

Backcountry Cabins/Use 0.57 5 

Cut Bank River Basin (41 L) 

Backcountry Cabins/Use 0.37 5 

Milk River Basin (40F) 

Backcountry Use 0.02 

TOTAL 567.80 
HISTORICAL MEAN MONT

N. FORK FLATHEAD RIVER NR COLUMBIA FA

Thousands 

25 ~------------------- -----------

.-.. 

C/) 

'+- 20' ........ . .. . .. 0 ..._ 

3: 

0 15 

'+-

E 

cu 10' <D 

~ 

+-' 

CJ) 5 • .. .. ... . . .. .. . 

V/\ I-/11./J 1./A:J ~

0 

Jan Feb Mar Apr May Jun Jul Aug S

• MAXIMUM fZ2 MEAN CJ MIN
WATER AVAILABLE FOR 

North Fork Flathead 

120 ·· · · · · :o::JTI xi n'~t : ~ ~l.J ofe 

(j)100. -- '+-

() 

..._. 

~ 80 1· · ···; :; .: ·· :~ .. . . . . . . . 

0 

en 601 ,. __ loQ) 

> 

0 40 1--· · .. -. . -:· ------- -----

:<\: ... .... .. . . . ... ..... : 

. . . 

. 

...... . .. .. .. . .... . . . . .. . 

1

: ... :: · 

.. 

. ~ 

A

Jan Feb Mar Apr May Jun Jul Aug 
H!STORICAL MEAN MON

MIDDLE FORK FLATHEAD RIVER NR W. GL

Thousands 

25 .------------------------------

.......-.. 

(/) 

(..) 

- 20 ' .. . . . ......._... .. . .... . . . .... . .... . ... ... . . .. 

$: ... .... .... ... . 0 15· 

-E 

ill 10 lo... 

+-' 

(/) 

5 

o•• •c • <o • •h • n ,. ,. ,. , .• ,. .• ,. 

Jan Feb Mar Apr May Jun Jul Aug 

.• MAXIMUM I!ZJ MEAN [] M
WATER AVAILABLE FOR 

Middle Fork Flathead 

80 · .. .. ·· · · .· CJ Existing Fuhue 

..-.. 

(/) . 

u 601 · " ' .... ._.. 

~ I ,, 

0 

.(/) 40' ... . . ; . ,_ 

Q) 

> 

·-

0 

Q!! · ... ,, ..... ,, ::: : ::: :•• = . ,, : :::::: :r t : ·::::u ::::::: ::1 1:: · ·: ::: ·1

Jan Feb Mar Apr May Jun Jul Aug 
, YELLOWSTONE NA

" ... a public park or pleasuring-gro

benefit and enjoyment of the peo

preservation, from injury or spolia

mineral deposits, natural couriosi

within said park, and their retentio

condition." 

(17 Sta
(/) 

c 

0 

----

~ 

c 

-

Yellowstone Nation

Parkwide Visitation (1980

3.5 

3 

2.5 

2 

1.5 

1 

0.5 

0 

80 81 82 

83 84 85 86 87 

0 Number of Visitors 
149 

NPS Consumptive Use 

Yellowstone National Park 

Acre-feet Gallons per 

Yellowstone River Basin {43B) 

North Entrance Area 

Stephens Creek Facilities 

TW Facil ities (Gardner) 

Northeast Entrance 

Backcountry Use 

Backcountry Patrol Cabins 

Day Use Areas 

Gallatin River Basin (41 H) 

Northwest Entrance Area 

Backcountry Use 

Backcountry Patrol Cabins 

Day Use Areas 

Madison River Basin ( 41 F) 

West Entrance Area 

Backcountry Use 

Backcountry Patrol Cabins 

Day Use Areas 

per Year 

1.70 

12.00 

58.70 

15.60 

10.70 

2.00 

2.40 

15.00 

2.80 

0.50 

0.60 

48.90 

2.80 

0.50 

0.70 

TOTAL 174.90 

Minule 

35 

50 

300 

50 

15 

6 

50 

10 

6 

200 

10 

6 
150 

Proposed Controlled Groundwater Area 

Yellowstone National Park area, Montana 

·---.......... 

Gardiner AIOHTNIA r -------------------------·------w:tOiJj,;c---

: 

i Yellowstone 

' ' ' ' ' ' ' i National 

' ' wl ' 

Yellontone Park 

' ' ' ii 

~l ...... ~: ~ 

~ ...... : ~ 

:ll: '"'

' ' ' ' ' ' ' ' ' ' ' 

-

~ 

00 

State Boundary 

Controlled groundwater 

subarea boundary 

Subarea 

Subarea II 

Known Geothermal 

Resource Area (KGRA) 

(within Subarea 1) 
EXISTING AND FUTURE 

Non-Federal Water Developmen

25~------------------------

20· . .. .. ·• · .... 

(/) --

~15· - .. . . . . . . .. . . . . . 

c 

0 

·~ 10· ...... .... .. . . . ... . . 

Q) 

.~ 

0 5· ... ·· ·· ·· · 

0 11 // II II Ill I I II VI I I I 1 r II .J 

Jan Feb Mar Apr May Jun Jul Au

• Existing l!lJ Future 
NON-FEDERAL W

Soda Butte 

.......... 

en 15 

20 

...... 

0 

~ 

c 

0 10 -

en 

L 

Q) 

,-- - ,- ,-- r- ,----

~ 

> 

0 5 

=- ~ ._ t 

0 

JAN FEB MAR APR MAY JUN JU

• Existing Municipal & 

Small Domestic Claims 

D Additional Existing 

Non-Federal Claims 

Five 

Ave
153 

Upper Yellowstone Defense Fund Box 405 ---- Gordiner. Monlona 59030 

April 19, 1993 

restlmony before the Subcommittee on National Parks, Forests and Public 

Lands and the Sutlcommlttee on Energy and Natural Resources on Apr-1122, 

1993. 

t-lr·. Chairman and Members or the Committee; 

11y name Is Julia Page. I live In Gardiner, Montana, and own and run a river 

outrlttlng business here. 11y business as well as every other business In 

town Is mostly dependent on tourism to Yellowstone Park. I am also 

president or the Upper Yellowstone Defense Fund which Is a grass roots 

group that has been active since 1987 In In trying to protect the natural 

resources or our area from the environmental harm caused by the Church 

Universal and Triumphant. 

We are strongly In favor of the Old Faithful Protection Act we feel It Is 

needed now before the CUT or any other selfish, aggressive, unscrupulous 

developer goes ahead with projects that are potentially harmful to 

Yellowstone's geotl\errnal system. Right now, the CUT Is so determined to 

push Its own rights to do anything, that they are willing to put 

Yellowstone at risk. This Is why we need the Old Faithful Protection Act. 

We must t.ake the measures necessary to protect Yellowstone rark from 

being damaged. 

Tne state of Montana has Just shown leadership and commlttment to 

resource protect I on In ratifying the Federal Reserve Water Rights 

Compact between the state and the federal government. Unfortundlely the 

state has not always acted this well. l.~st summer the state granted the 

CUT a certificate to Its geothermal well despite tlw fact that In order to 

put tl1e well to "beneficial use" It had to break a signed contract with the 

state. 

This signed contract was part of the first environmental Impact statement 
154 

written for the CUT's developments. The signed 111tlgatlon Agreement 

(Appendix [J of the document) was the public's assurance that nothing 

would be done with the geot11ermal well until It had undergone thorough 

environmental review. But, when the CUT uoed Its well last summer, one 

agency of state government said, "Stop, that's contrary to our agreement", 

while another stale agency said, "Fine, here's your certificate of 

comp\e\etlon, go ahead and use your we\\." The public's protection 

vanlst1ed. Tt1e Old Faithful Protection Act Is necessary to provide the 

Ironclad protection Yellowstone needs. It Is clear that the state will not 

always nave the will to stop this developer from doing harm to public 

resources. 

Had Congress acted last year we would not even have this well to consider. 

Last June, CUT rushed througll a crude plan to establish Its water right. 

The "beneficial use" It put Its well to was to fill a temporary pool located 

amongst some unoccupied trallci'S at an undeveloped site and then pump 

the water out every day to Irrigate a rleld or wild mustard which they do 

not cultivate or harvest. Tills totally contrived use serves as the basis or 

tt1e CUT's claim that the government Is taking Its private property. We 

neeo the protection of the Old Faithful Protection Act to forestall this 

kind or blatant PI'Ofiteerlng and to protect Yellowstone Park's 

Irreplaceable and very vulnerable geothermal resources. 

Neltt1er the Church Universal amJ Trlurnp11ant nor anyone else has a rlgl1t to 

destroy l11e geothermal resources or Yellowstone Park; their private 

Pl'uperty rlgllts do not extend that fal' We all have a responsibility to see 

that Yellowstone Is protected intact for future generations. Speaking for 

myself and the several hundred members or the Upper Yellowstone Defense 

Fund who live 11ere In Park County, I urge you to pass this bill now. 

Thank you. 

Sincerely, 

0~Par--- Julla Page 
155 

DONEY. CROWLEY & SHONTZ 

Ted 1. Done;.' 

Frank C. Crowley · 

lohn M Shontz • • 

Alben W_ Stone. rf C(lwl'51..'1" • • 

June 29, 1992 

The Honorable Dale Bumpers 

Chairman 

Subcommittee of Public Lands, 

National Parks & Forests 

SD 308 

Washington, D.C. 20510 

Re: H.R. 3359--Water Rights and Geothermal Well 

Dear Mr. Chairman: 

PO !lox I IH5 

~ l .. ~ ~ L.:"-lq Chance C ulch 

HC'icnJ MT )G62 4 

1<1116144"!-70 \R 

! dX (: ()(; 449·1-\-1 ..1) 

We are Montana counsel for the Church Universal and 

Triumphant, Inc. on water law matters. The Church has previously 

submitted testimony and materials to the Committee on Energy and 

Natural Resources concerning the above-referenced legislation, 

including a legal opinion from the Washington, D.C. law firm of 

Akin, Gump, Hauer & Feld in which we assis ted and cosigned. We 

also provided the Committee with comments on the legal status of 

the Church's g eothermal well by letter dated May 13, 1992. We 

specialize in water law. 

Today the Church filed a Notice of Completion with the Montana 

Department of Natural Resources and Conservation for the 

appropriation of 32 gallons per minute, not to exceed 10 acre-feet 

per year, from the geothermal well the Church had previously 

drilled near the LaDuke Hot Spring. In our previous correspondence 

to the Committee, we have pointed out that the Church has the right 

to file such a Notice. The Notice was filed after the Church had 

put the water to beneficial use for a swimming pool and for 

irrigation, beginning on June 28. The Notice was filed pursuant to 

Section 85-2-306, Montana codes Annotated. 

In pertinent part, Section 85-2-306, MCA, provides as follows: 

. a permit is not required before appropriating ground 

water by means of a well or developed spring with a maximum 

appropriation of 35 gallons per minute or l ess, not to exceed 

10 acre-feet per year . 

The statute further provides that an appropriator of ground water 

for 35 gallons per minute or less, not to exceed 10 acre-feet per 

year, can acquire a water right therefore simply by putting the 

water to beneficial use and filing a Notice of Completion. There 

is no requirement that any application for permit or other approval 
The Honorable Dale .Bumpers 

June 29, 1992 

Page 2 

156 

first be submitted to the Department of Natural Resources and 

Conservation. The acquisition of the water right is automatic by 

properly complying with the requirements of the Section, and the 

right legally. comes into existence immediately upon the filing of 

the Notice of Completion. After coming, into existence, it is 

subject only to the Department's review of the Notice to ensure that the requirements of the statute were met. The priority date 

of such a right is "the date of filing of the Notice of Completion 

" Section 85-2-306, MCA. 

Based upon the foregoing, and our knowledge of the Church's 

use of the water from the well, it is our opinion that the Church 

now has a legally protectible water right under Montana law for 32 

gallons per minute, not to exceed 10 acre-feet per year, to 

appropriate and use geothermal water from the well. 

Sincerely, 

~CJ:!;o-JvaP Attorney at Law .-(\ 

0 

ISBN 0-16-041755-4 

90000