```

[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 1986 Reported in Senate (RS)]

                                                       Calendar No. 610

104th CONGRESS

  2d Session

                                S. 1986

_______________________________________________________________________

                                 A BILL

 To provide for the completion of the Umatilla Basin Project, and for 
                            other purposes.

_______________________________________________________________________

                           September 16, 1996

                       Reported with an amendment

                                                       Calendar No. 610
104th CONGRESS
  2d Session
                                S. 1986

 To provide for the completion of the Umatilla Basin Project, and for 
                            other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             July 24, 1996

 Mr. Hatfield introduced the following bill; which was read twice and 
       referred to the Committee on Energy and Natural Resources

                           September 16, 1996

              Reported by Mr. Murkowski, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL

 
 To provide for the completion of the Umatilla Basin Project, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,
<DELETED>    Section 1. This Act may be referred to as the ``Umatilla 
Basin Project Completion Act''.</DELETED>
<DELETED>    Sec. 2. Title II of Public Law 100-557 is amended by 
adding at the end thereof:</DELETED>

        <DELETED>``authorization of project completion</DELETED>

<DELETED>    ``Sec. 214. For purposes of completing the Columbia River 
water exchanges and other mitigation efforts necessary to restore the 
Umatilla River basin fishery, and to provide for the expansion of 
Umatilla basin project district boundaries, the Secretary of the 
Interior (hereinafter referred to as the Secretary), acting pursuant to 
the Federal reclamation laws (Act of June 17, 1902, and Acts amendatory 
thereof and supplementary thereto), is authorized to complete 
construction and to operate and maintain the integrated Umatilla River 
basin project, including pump exchange projects known as phases I, II, 
and III.</DELETED>

         <DELETED>``umatilla river phase iii exchange</DELETED>

<DELETED>    ``Sec. 215. (a)(1) The Secretary is hereby authorized to 
construct a third and final phase of the Umatilla River basin project 
to provide additional flows in the Umatilla River for anadromous fish 
through a water exchange with Westland Irrigation District.</DELETED>
<DELETED>    ``(2) Prior to construction, the Secretary shall complete 
a feasibility study to identify alternatives within the authorized 
ceiling to provide Westland Irrigation District exchange flows of 
approximately 220 cubic feet per second, or greater.</DELETED>
<DELETED>    ``(3) The feasibility study for the phase III exchange 
facilities shall include an analysis of inclusion of other irrigators 
in the exchange, appropriate backup systems, water conservation 
opportunities, and such other analyses as the Secretary may deem 
appropriate to improve the exchange project for fishery restoration 
purposes.</DELETED>
<DELETED>    ``(4) Prior to completion of phase III facilities, the 
Secretary shall negotiate and execute an exchange agreement with the 
Westland Irrigation District and any other participating irrigators to 
allow the use of Columbia River water in exchange for an equal amount 
of Umatilla River or McKay Reservoir water: Provided, That the 
irrigation districts shall continue to be eligible to receive the same 
volume of water as they received under their respective contracts with 
the Bureau of Reclamation dated July 6, 1954 for Hermiston Irrigation 
District, November 18, 1949 for Stanfield Irrigation District, July 6, 
1954 for West Extension Irrigation District, and November 18, 1949 for 
Westland Irrigation District.</DELETED>
<DELETED>    ``(5) Phase III facilities may pump Columbia River water 
for exchange purposes only, and not for conjunctive use.</DELETED>
<DELETED>    ``(b) Operation of McKay Reservoir.-- The Secretary shall 
operate McKay Reservoir in accordance with Federal and State law and 
water rights filed pursuant to State law. The Secretary is authorized 
to continue to designate and deliver McKay Reservoir water for Umatilla 
River fishery purposes. This title shall not alter any party's rights 
or obligations under existing contracts for McKay Reservoir 
water.</DELETED>
<DELETED>    ``(c) Operation and Maintenance Costs.--All exchange 
system operation and maintenance costs and any increased operation and 
maintenance costs to the project caused by the phase III exchange shall 
be the responsibility of the Federal Government and shall be 
nonreimbursable.</DELETED>
<DELETED>    ``(d) Power for Project Pumping.--The Administrator of the 
Bonneville Power Administration, consistent with provisions of the 
Columbia River Basin Fish and Wildlife Program established pursuant to 
the Pacific Northwest Electric Power Planning and Conservation Act (94 
Stat. 2697), shall provide for project power needed to effect the phase 
III water exchange for purposes of mitigating anadromous fishery 
resources. The cost of power shall be credited to fishery restoration 
goals of the Columbia River Basin Fish and Wildlife Program.</DELETED>

    <DELETED>``umatilla basin project boundary adjustment</DELETED>

<DELETED>    ``Sec. 216. (a) Upon enactment of the Umatilla Basin 
Project Completion Act, the boundaries of the three irrigation 
districts with functioning Columbia River water exchange facilities are 
adjusted by operation of law as follows:</DELETED>
        <DELETED>    ``(1) Hermiston Irrigation District's boundaries 
        are adjusted to include the 1,091 acres identified in its 1993 
        request to the Bureau of Reclamation.</DELETED>
        <DELETED>    ``(2) Stanfield Irrigation District's boundaries 
        are adjusted to include the 230.99 acres receiving water under 
        1995 and 1996 temporary contracts with the Bureau of 
        Reclamation.</DELETED>
        <DELETED>    ``(3) West Extension Irrigation District's 
        boundaries are adjusted to include the 2,436.8 acres identified 
        in its 1993 request to the Bureau of Reclamation and are 
        classified as irrigable in the Bureau of Reclamation's Land 
        Classification Report.</DELETED>
<DELETED>    ``(b)(1) When the Umatilla basin project's phase III 
exchange is completed and fully functional, the Westland Irrigation 
District's boundaries shall be adjusted to include the 7,023 acres 
receiving water under 1995 and 1996 temporary contracts with the Bureau 
of Reclamation: Provided, That any analysis required by the National 
Environmental Policy Act of 1969 on the boundary expansion request 
shall be accomplished in conjunction with similar analysis on the phase 
III exchange facilities. The Westland Irrigation District shall pay 
analysis costs associated with boundary adjustment, not to exceed 
$300,000, and any additional costs shall be nonreimbursable.</DELETED>
<DELETED>    ``(2) The Westland Irrigation District's temporary 
contract with the Bureau of Reclamation is hereby extended for an 
additional ten-year period. All other terms of the temporary contract, 
including the payment, water delivery, and mitigation provisions, shall 
remain the same. A riparian project, as described in the 1996 temporary 
contract, will be designed and completed by the Westland Irrigation 
District. If phase III is not fully functional when this temporary 
contract, as extended, expires, the Secretary is authorized to enter 
into additional extensions on such terms and conditions as may be 
mutually agreeable.</DELETED>
<DELETED>    ``(c) Notwithstanding any other provision of this title, 
no parcel may receive project water unless it has a valid existing 
State water right and is classified as irrigable in the Bureau of 
Reclamation's Land Classification Report.</DELETED>
<DELETED>    ``(d) Upon approval of each irrigation district's boundary 
adjustment request and adjustment of the boundary, a legal description 
of the new district boundaries, including land classification and 
project boundary maps, shall be provided as an attachment to all four 
irrigation districts' existing contracts.</DELETED>
<DELETED>    ``(e) No alteration in the ability to pay determination 
for the Umatilla River basin project districts may be made as a result 
of the project boundary expansions authorized by this title.</DELETED>

                <DELETED>``treaty obligations</DELETED>

<DELETED>    ``Sec. 217. The Federal Government and the Confederated 
Tribes of the Umatilla Indian Reservation jointly recognize that 
completion of phase III and perpetual operation of the integrated 
project, including phases I, II, and III, meets all obligations of the 
Federal Government to provide the Confederated Tribes of the Umatilla 
Indian Reservation with water for fishery needs in the Umatilla River 
below the mouth of McKay Creek, as recognized by their 1855 treaty with 
the United States.</DELETED>

          <DELETED>``water protection and management</DELETED>

<DELETED>    ``Sec. 218. (a) The Secretary shall continue working in 
cooperation with the State of Oregon, the Confederated Tribes of the 
Umatilla Indian Reservation, the irrigation districts, and the affected 
public toward developing a comprehensive water management plan to 
assist in restoring the Umatilla River basin's anadromous fishery. The 
Secretary shall develop an integrated groundwater/surface water model 
of the upper Umatilla River basin for use in developing the 
comprehensive water management plan.</DELETED>
<DELETED>    ``(b) Project facilities and features authorized by this 
title shall be integrated and coordinated, from an operational 
standpoint, into existing features of the Umatilla basin 
project.</DELETED>
<DELETED>    ``(c) The Secretary shall enter into appropriate 
agreements with the State of Oregon, the relevant irrigation districts, 
and the Confederated Tribes of the Umatilla Indian Reservation, as 
appropriate, to provide funding for monitoring and administration, 
including regulation, of project-related water supplies for the 
purposes herein identified.</DELETED>

          <DELETED>``authorization for appropriation</DELETED>

<DELETED>    ``Sec. 219. (a) There is authorized to be appropriated to 
the Secretary, plus or minus such amounts as may be justified by reason 
of ordinary fluctuations of applicable cost indexes, the following 
sums, without fiscal year limitation:</DELETED>
        <DELETED>    ``(1) Not to exceed $71,000,000 for feasibility 
        studies, environmental studies, and construction of the phase 
        III exchange: Provided, That all costs of phase III planning 
        and construction, including operation and maintenance costs 
        allocated to the mitigation of anadromous fish species and the 
        study authorized in section 215 of this Act, shall be 
        nonreimbursable: Provided, further, That not less than 80 per 
        centum of such funds shall be used for actual 
        construction.</DELETED>
        <DELETED>    ``(2) Not to exceed $500,000 for the development 
        of a comprehensive water management plan and integrated 
        groundwater/surface water model, as provided for in section 
        218(a) of this title.</DELETED>
        <DELETED>    ``(3) Not to exceed $400,000 annually for 
        enforcement and protection of phases I, II, and III of exchange 
        water for instream uses, as provided for in section 218(c) of 
        this title.''.</DELETED>

                    <DELETED>water rights</DELETED>

<DELETED>    Sec. 3. Nothing in this Act shall--</DELETED>
        <DELETED>    (a) impair the validity of or preempt any 
        provision of State law with respect to water or water rights, 
        or of any interstate compact governing water or water 
        rights;</DELETED>
        <DELETED>    (b) create a right to the diversion or use of 
        water other than as established pursuant to the substantive and 
        procedural requirements of State law and as recognized under 
        State law;</DELETED>
        <DELETED>    (c) impair or affect any valid water right; 
        or</DELETED>
        <DELETED>    (d) establish or create any water rights for any 
        party, nor may any provision be construed to create directly or 
        indirectly an express or implied Federal reserved water right 
        for any purpose.</DELETED>
    Section 1. Short Title.--This Act may be referred to as the 
``Umatilla Basin Project Completion Act.''
    Sec. 2. Title II of Public Law 100-557 is amended by adding at the 
end thereof:
    ``Sec. 214. Authorization of Project Completion.--The Secretary of 
the Interior (hereinafter referred to as the Secretary), acting 
pursuant to the Federal reclamation laws (Act of June 17, 1902, and 
Acts amendatory thereof and supplementary thereto), is authorized to 
complete construction and to operate and maintain the integrated 
Umatilla Basin project, including pump exchange projects known as 
phases I, II, and III, for the purposes of completing the Columbia 
River water exchanges and other mitigation efforts necessary to restore 
the Umatilla River Basin fishery, and providing for the expansion of 
Umatilla Basin Irrigation Districts' boundaries.

``SEC. 215. UMATILLA BASIN PROJECT PHASE III EXCHANGE.

    ``(a)(1) Authorization of Project Construction.--The Secretary is 
hereby authorized to construct a third and final phase of the Umatilla 
Basin project to provide additional flows in the Umatilla River for 
anadromous fish through a water exchange with Westland Irrigation 
District.
    ``(2) Prior to construction, the Secretary shall complete a 
feasibility study to identify alternatives to provide Westland 
Irrigation District and other Umatilla River Basin water users with 
exchange flows of approximately 220 cubic feet per second to restore 
the Umatilla River fishery, as determined through analysis of options 
in a feasibility study described in section 215(a)(3).
    ``(3) The feasibility study for the phase III exchange facilities 
shall examine engineering, environmental, and economic factors 
associated with project alternatives, including but not limited to: 
technical engineering and hydrologic analyses pertinent to the 
identification and design of alternatives; biological analyses of 
instream flow levels to optimize anadromous fish restoration; and an 
assessment of the cost effectiveness of the alternatives for restoring 
the Umatilla Basin fishery. The study shall also include an analysis of 
inclusion of other irrigators in the exchange; consolidation of 
irrigation delivery facilities; potential for voluntary water 
transfers; optimization of water delivery scheduling for all four 
irrigation districts; appropriate backup systems; water conservation 
opportunities; and such other analyses as the Secretary may deem 
appropriate to improve the exchange project for fishery restoration 
purposes.
    ``(4) Prior to completion of phase III facilities, the Secretary 
shall negotiate and execute an exchange agreement with the Westland 
Irrigation District to allow the use of Columbia River water in 
exchange for an equivalent amount of Umatilla River or McKay Reservoir 
water: Provided, That the irrigation districts shall continue to be 
eligible to receive the same volume of water as they received from 
their Umatilla River water rights and under their respective contracts 
with the Bureau of Reclamation dated July 6, 1954 for Hermiston 
Irrigation District, November 18, 1949 for Stanfield Irrigation 
District, July 6, 1954 for West Extension Irrigation District, and 
November 18, 1949 for Westland Irrigation District. Additional exchange 
agreements with other water users may be executed prior to delivery of 
water to those entities. The exchange agreements shall incorporate 
water delivery scheduling optimation, conservation, water transfer, and 
other technical operational measures recommended in the feasibility 
study.
    ``(5) Phase III facilities may pump Columbia River water for 
exchange purposes only, and not for conjunctive use.
    ``(b) Operation and Maintenance Costs.--All exchange system 
operation and maintenance costs and any increased operation and 
maintenance costs to the project caused by the phase III exchange shall 
be the responsibility of the Federal Government and shall be 
nonreimbursable.
    ``(c) Power For Project Pumping.--The Administrator of the 
Bonneville Power Administration (hereinafter referred to as the 
Administrator), consistent with provisions of the Columbia River Basin 
Fish and Wildlife Program adopted by the Northwest Power Planning 
Council pursuant to the Pacific Northwest Electric Power Planning and 
Conservation Act (94 Stat. 2697), shall provide power needed to effect 
the phase III water exchange for purposes of mitigating anadromous 
fishery impacts. Beginning with the fiscal year that such power is 
provided, and continuing for so long as it is provided, the 
Administrator shall apply against amounts otherwise payable by the 
Administrator to the United States Treasury a credit that reduces the 
Administrator's payment by the amount equal to the cost of power 
provided in that year. For purposes of calculating that credit, the 
Administrator shall determine the cost of the power so provided by 
multiplying the amount of the power provided by the prevailing priority 
firm rate, or the rate which is then the equivalent of the priority 
firm rate if that designation is no longer used by the Administrator, 
plus applicable transmission charges for priority firm power.
    ``(d) Project facilities authorized by this title shall be 
integrated and coordinated into the existing Umatilla Basin Project.

``SEC. 216. UMATILLA BASIN IRRIGATION DISTRICTS BOUNDARY ADJUSTMENT.

    ``(a) Upon enactment of the Umatilla Basin Project Completion Act, 
the boundaries of the four irrigation districts are adjusted by 
operation of law as follows:
            ``(1) Hermiston Irrigation District's boundaries are 
        adjusted to include the 1,091 acres identified in its 1993 
        request to the Bureau of Reclamation;
            ``(2) Stanfield Irrigation District's boundaries are 
        adjusted to include the 3,549 acres identified in its 1993 
        request to the Bureau of Reclamation. Stanfield Irrigation 
        District shall design and complete a riparian project, as 
        described in their temporary contract with the Bureau of 
        Reclamation;
            ``(3) West Extension Irrigation District's boundaries are 
        adjusted to include the 2,436.8 acres identified in the June, 
        1993 Bureau of Reclamation Land Classification Report as 
        irrigable; and
            ``(4) Westland Irrigation District's boundaries are 
        adjusted to include the 9,912 acres identified in its 1993 
        request to the Bureau of Reclamation: Provided, That the 
        mitigation provisions included in Westland's 1996 temporary 
        contract with the Bureau of Reclamation shall remain in force 
        until phase III of the Umatilla Basin Project is constructed, 
        operationally tested, and ready for turnover to operations and 
        maintenance status. A riparian project, as described in the 
        temporary contract, will be designed and completed by the 
        Westland Irrigation District.
    ``(b) Notwithstanding any other provision of this Title, no parcel 
may receive project water unless it has a valid State water right and 
is classified as irrigable in the Bureau of Reclamation's Land 
Classification Report.
    ``(c) Upon approval of each irrigation district's boundary 
adjustment request and adjustment of the boundary, a legal description 
of the new district boundaries, including land classification and 
project boundary maps, shall be provided as an attachment to all four 
Irrigation Districts' existing contracts.
    ``(d) No alteration in the ability to pay determination for the 
Umatilla Basin Project districts may be made as a result of the project 
boundary expansions authorized by this Title.

``SEC. 217. WATER PROTECTION AND MANAGEMENT.

    ``(a) The Secretary, in cooperation with the Confederated Tribes of 
the Umatilla Indian Reservation (hereinafter referred to as the 
Tribes), shall participate in any discussions with the State of Oregon 
(hereinafter referred to as the State) regarding the Tribes' water 
claims and other water needs in the Umatilla River Basin. To facilitate 
these discussions of water claims:
            ``(1) The Secretary, taking into account the facilities and 
        analyses authorized by the Act, shall participate in any 
        efforts undertaken by the State, tribes, irrigation districts, 
        Bonneville Power Administration and the affected public to 
        develop a water management plan for the Umatilla River Basin. 
        The plan shall address restoration of the Umatilla River Basin 
        anadromous fishery. The Secretary shall also develop an 
        integrated groundwater/surface water model of the Upper 
        Umatilla River Basin.
            ``(2) Within two years after the date of enactment of this 
        Act, the Secretary shall report to the Committee on Energy and 
        Natural Resources of the Senate and the Committee on Resources 
        of the House of Representatives on the progress of:
                    ``(A) the facilities authorized by this Act;
                    ``(B) the water management plan;
                    ``(C) the groundwater/surface water model; and
                    ``(D) the status of discussions of Tribal water 
                claims in the Umatilla River Basin.
    ``(b) The Secretary shall enter into appropriate agreements with 
the State, the relevant irrigation districts, and the Tribes, as 
appropriate, to provide funding for monitoring and administration, 
including regulation, of project-related water supplies for the 
purposes herein identified.
    ``Sec. 218. Joint Water Supply System.--The Secretary is authorized 
to provide by grant or contract, any funds appropriated pursuant to 
Section 219(a)(4) of this Act, to the tribes for the construction of an 
offstream storage reservoir of approximately 10,000 acre-feet capacity, 
with associated works. Such authorization shall not include the purpose 
of constructing water treatment facilities. Such reservoir is to be 
located on or adjacent to the Tribes' Reservation in Oregon: Provided, 
that:
            ``(a) the City of Pendleton, Oregon (hereinafter referred 
        to as the City) agrees to provide up to $16,000,000 (in 
        addition to the $6,500,000 authorized by this Act for the 
        tribal share of the project) for feasibility level planning and 
        environmental studies and construction of the reservoir and 
        associated works provided for by this Section. Any cost 
        overruns beyond the $22,500,000 estimated for the reservoir and 
        associated works authorized by this Act shall be allocated 70 
        percent to the city and 30 percent to the tribes, unless they 
        mutually agree otherwise. In the event that actual construction 
        of the reservoir and associated works is not initiated within 
        24 months of funds being appropriated pursuant to section 
        219(a)(4), such funds will be returned to the Treasury;
            ``(b) the Secretary determines, pursuant to appropriate 
        feasibility level planning and environmental studies, that the 
        facility can be built and operated in a manner which conforms 
        to all applicable Federal, State, and tribal laws and that the 
        project siting and construction minimizes adverse effects on 
        the Umatilla River fishery;
            ``(c) the Secretary, in cooperation with the State and the 
        Tribes, determines that diversions for storage will not reduce 
        Umatilla River flows below the levels necessary to restore and 
        support the Umatilla River anadromous fishery. In diverting 
        water for storage and operation of the reservoir, the tribes 
        and the City may agree to higher levels of protection of 
        instream flows, as may be permitted by State and Federal law. 
The reservoir shall be filled only during periods of high flow, and in 
such a manner as to preserve the ecological value of high flow events 
in the Umatilla River, as determined by Federal, State, and Tribal 
fishery experts;
            ``(d) the city, subject to applicable Federal, State, and 
        tribal laws, shall use all of its water rights to the Umatilla 
        River and its tributaries with priority dates after January 1, 
        1910, including those rights identified in Oregon Revised 
        Statutes 538.450, for instream flow purposes to improve the 
        Umatilla River anadromous fishery, provided that adequate water 
        from the reservoir project is available for municipal use;
            ``(e) the city and the tribes shall be responsible for 
        operation and maintenance of the reservoir and associated works 
        and shall share all operation and maintenance costs on a pro 
        rata basis, determined by the amount of water in the reservoir 
        set aside for each Government's use, unless the city and the 
        tribes mutually agree to an alternative cost allocation; and
            ``(f) the Secretary may direct that funds authorized under 
        Section 219(a)(4) be contracted to the tribes, under the 
        provision of the Indian Self-Determination and Education 
        Assistance Act, 25 U.S.C. Sec. 450 et seq., as amended.

``SEC. 219. AUTHORIZATION OF APPROPRIATIONS.

            ``(a) There are authorized to be appropriated to the 
        Secretary, plus or minus such amounts as may be justified by 
        reason of ordinary fluctuations of applicable cost indexes, the 
        following sums, without fiscal year limitation:
            ``(1) not to exceed $64,000,000 for feasibility studies, 
        environmental studies, and construction of the Phase III 
        Exchange: Provided, That all costs of phase III planning and 
        construction, including operation and maintenance costs 
        allocated to the mitigation of anadromous fish species and the 
        study authorized in Section 215 of this Act, shall be 
        nonreimbursable; Provided further, That not more than 25 
        percent of the amount appropriated under this paragraph may be 
        expended for administrative overhead costs;
            ``(2) not to exceed $500,000 for a water management plan 
        and an integrated groundwater/surface water model, as provided 
        for in section 217(a) of this title;
            ``(3) not to exceed $400,000 annually for enforcement and 
        protection of phases I, II, and III exchange water for instream 
        uses, as provided for in Section 217(b) of this title; and
            ``(4) not to exceed $6,500,000 for feasibility studies, 
        environmental studies, and construction of the tribes' portion 
        of an off stream storage reservoir and associated works, as 
        authorized in section 218 of this title.''.
    Sec. 3. Water Rights.--Nothing in this Act shall--
    ``(a) impair the validity of or preempt any provision of State law 
with respect to water or water rights, or of any interstate compact 
governing water or water rights;
    ``(b) create a right to the diversion or use of water other than as 
established pursuant to the substantive and procedural requirements of 
State law and as recognized under State law;
    ``(c) impair any valid water right; or
    ``(d) establish or create any water rights for any party, nor may 
any provision be construed to create directly or indirectly an express 
or implied Federal reserved water right for any purpose.
    Sec. 4. Sense of the Congress.--It is the sense and expectation of 
the Congress that construction and operation of phase III, the 
perpetual operation of the integrated Umatilla Basin project, and the 
construction and operation of the Joint Water Supply System, as 
authorized in section 218 of this Act, will fulfill obligations of the 
Federal Government to provide the Confederated Tribes of the Umatilla 
Indian Reservation with water for fishery purposes in the Umatilla 
River below the mouth of McKay Creek, as recognized by their 1855 
treaty with the United States: Provided, That fulfillment of 
obligations is contingent upon an agreement between the United States, 
the tribes, and the State as to the instream flow levels necessary for 
fishery restoration, and that the design and operation of the 
integrated Umatilla Basin project, as determined by the feasibility 
study required in section 215(a)(3) of this Act, will allow such 
instream flow levels to be achieved.
```