II

104TH CONGRESS

1ST SESSION S. 274

Entitled the ‘‘Old Faithful Protection Act of 1995’’.

IN THE SENATE OF THE UNITED STATES

JANUARY 25 (legislative day, JANUARY 10), 1995

Mr. BAUCUS introduced the following bill; which was read twice and referred

to the Committee on Energy and Natural Resources

A BILL

Entitled the ‘‘Old Faithful Protection Act of 1995’’.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 TITLE I—OLD FAITHFUL PROTECTION

4 ACT

5 SEC. 101. SHORT TITLE.

6 This title may be cited as the ‘‘Old Faithful Protec7 tion Act of 1995’’.

8 SEC. 102. FINDINGS AND PURPOSES.

9 (a) FINDINGS.—The Congress finds that—

10 (1) Yellowstone National Park is a unique and

11 irreplaceable national and international treasure and
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1 part of one of the few remaining undisturbed hydro2 thermal systems in the world;

3 (2) there is a risk that unrestricted hydro4 thermal or geothermal resource development adja5 cent to Yellowstone National Park in the States of

6 Montana, Wyoming, and Idaho will interfere with or

7 adversely affect the hydrothermal and geothermal

8 features of such Park or the management of relevant

9 mineral resources;

10 (3) further research is needed to understand

11 the characteristics of the thermal systems and fea12 tures and the effects of development on such sys13 tems and features on lands outside of Yellowstone

14 National Park but within the Yellowstone Protection

15 Area, as such area is defined in this title;

16 (4) preservation and protection of the thermal

17 system associated with and the features within Yel18 lowstone National Park is a benefit to the people of

19 the United States and the world;

20 (5) cooperation between the United States and

21 the States of Montana, Idaho, and Wyoming to pro22 tect and preserve Yellowstone National Park is de23 sirable; and

24 (6) as a settlement of litigation concerning

25 water rights, including the reserved water rights of
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1 the United States associated with units of the Na2 tional Park System in Montana, the Department of

3 the Interior and the Department of Justice, on be4 half of the United States, and a Compact Commis5 sion, on behalf of the State of Montana, have devel6 oped a Compact that constitutes such a settlement

7 of litigation concerning matters within its scope and

8 which, in Article IV, establishes a program for regu9 lation of development and use of groundwater in

10 areas adjacent to Yellowstone National Park.

11 (b) PURPOSES.—The purposes of this title are—

12 (1) to require the Secretary to take the nec13 essary actions to preserve and protect the thermal

14 systems and features of Yellowstone National Park;

15 (2) to provide a framework for management by

16 the States of Montana, Wyoming, and Idaho of reg17 ulated resources within the Yellowstone Protection

18 Area outside of but directly related to Yellowstone

19 National Park to preserve and protect the thermal

20 systems and features of Yellowstone National Park;

21 (3) to authorize, as provided in section 8, ap22 proval of Article IV of the Compact as an appro23 priate State program;

24 (4) to require relevant research; and
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1 (5) to authorize to be appropriated, as provided

2 in section 112, necessary sums.

3 SEC. 103. DEFINITIONS.

4 For purposes of this title:

5 (1) The term ‘‘Secretary’’ means the Secretary

6 of the Interior except as otherwise provided.

7 (2) The term ‘‘Yellowstone Protection Area’’

8 means the area in Montana, Idaho, and Wyoming

9 identified on the map entitled ‘‘Yellowstone Protec10 tion Area’’, numbered 20036A, and dated July

11 1994, and any modifications thereof as may be made

12 under section 7.

13 (3) The term ‘‘thermal systems and features’’

14 means the hydrothermal and geothermal systems

15 and features of Yellowstone National Park associ16 ated with the regulated resources within the Yellow17 stone Protection Area.

18 (4) The term ‘‘regulated resources’’ means—

19 (A) geothermal steam and associated geo20 thermal resources, as defined in section 2(c) of

21 the Geothermal Steam Act of 1970 (30 U.S.C.

22 1001(c)); or

23 (B) groundwater with a temperature in ex24 cess of 59 degrees Fahrenheit.
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1 (5) The term ‘‘well’’ means a well or facility

2 producing or intended to produce regulated re3 sources but excludes facilities that would do no more

4 than utilize the natural unenhanced surface flow of

5 a natural spring.

6 (6) The term ‘‘approved State program’’ means

7 a program of Montana, Idaho, or Wyoming that has

8 been submitted to the Secretary and has been ap9 proved pursuant to this title.

10 (7) The term ‘‘Compact’’ means the water

11 rights compact entered into by the United States

12 and the State of Montana on January 31, 1994.

13 (8) Except as otherwise provided in this title,

14 terms used in this title shall have the same meaning

15 as in the Geothermal Steam Act of 1970.

16 SEC. 104. RESTRICTION ON FEDERAL LANDS.

17 (a) The Congress hereby declares that—

18 (1) Yellowstone National Park possesses nu19 merous thermal features, including Old Faithful gey20 ser and approximately 10,000 other geysers and hot

21 springs, and is hereby designated as a significant

22 thermal feature unto itself; and

23 (2) Federal legislation is desirable to preserve

24 and protect these features.
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1 (b) The Congress hereby declares that any use of, or

2 production from, any existing well, or any exploration for,

3 or development of, any new well within the boundary of

4 the Yellowstone Protection Area, as defined in section

5 103(2) of the Old Faithful Protection Act of 1995, risks

6 adverse effects on the thermal features of Yellowstone Na7 tional Park.

8 (c) Notwithstanding any other provision of law, the

9 Secretary shall not issue any geothermal lease pursuant

10 to the Geothermal Steam Act (30 U.S.C. 1001 and follow11 ing) for lands within the boundary of the Yellowstone Pro12 tection Area. Nothing in this section shall be construed

13 to apply to any lands not owned by the United States.

14 SEC. 105. MORATORIUM ON LANDS WITHIN THE YELLOW15 STONE PROTECTION AREA.

16 (a) PROHIBITION.—Except as provided by sections

17 107 and 108 of this title, there shall be no use (except

18 for monitoring by the Secretary or monitoring under an

19 approved State program) of, or production from, any ex20 isting well and no exploration for, or development of, any

21 new well within the Yellowstone Protection Area.

22 (b) MANAGEMENT.—The Secretary shall review Na23 tional Park Service management of Yellowstone National

24 Park and shall take such steps as may be necessary to
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1 protect and preserve the thermal systems and features of

2 such National Park.

3 SEC. 106. RESEARCH.

4 (a) IN GENERAL.—The National Park Service, in

5 consultation with the Forest Service, the United States

6 Geological Survey, and each State agency implementing

7 an approved State program, shall research the characteris8 tics of the thermal systems and features within the Yellow9 stone Protection Area, inventory and research the existing

10 and potential effects (including cumulative effects) of hy11 drothermal or geothermal development on such systems

12 and features, and periodically, but not less than once every

13 five years, inform Congress concerning the results of such

14 inventory and research.

15 (b) UNDER STATE PROGRAM.—If an approved State

16 program provides for research described in subsection (a),

17 both the Secretary and the relevant State may conduct

18 such research within the Yellowstone Protection Area.

19 (c) NONINTRUSIVE METHODOLOGIES.—Except for

20 research within a National Park System unit within the

21 Yellowstone Protection Area approved by the Secretary or

22 elsewhere under a permit issued by a State agency imple23 menting an approved State program, research pursuant

24 to this section shall exclusively use nonintrusive meth25 odologies.
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1 (d) LIMITATION.—Nothing in this title shall be con2 strued as authorizing any activities within any unit of the

3 National Park System in the Yellowstone Protection Area

4 inconsistent with laws or policies applicable to the relevant

5 unit.

6 SEC. 107. STATE MANAGEMENT PROGRAMS.

7 (a) DEVELOPMENT.—The States of Montana, Wyo8 ming, and Idaho are encouraged to develop and maintain

9 State programs for the management of regulated re10 sources outside of Yellowstone National Park to preserve

11 and protect the thermal systems and features of Yellow12 stone National Park.

13 (b) PERMIT.—Except as provided for in section 6, as

14 of the date of enactment of this title, no person shall en15 gage in any use (including research), production, explo16 ration, or development of any regulated resources on non17 Federal lands within the Yellowstone Protection Area ex18 cept to the extent authorized by a permit issued by a State

19 agency implementing an approved State program.

20 (c) STATE AUTHORITY.—(1) In the implementation

21 of an approved State program, a State may exercise the

22 authority to grant permits under subsection (b) for the

23 use (including research), production, exploration, or devel24 opment of any regulated resources within the Yellowstone

25 Protection Area.
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1 (2) Notwithstanding any other provision of law, no

2 permit within the Yellowstone Protection Area for regu3 lated resources issued prior to the date of enactment of

4 this title shall be deemed to have been issued in the imple5 mentation of an approved State program: Provided, That

6 permits issued by the State of Montana after January 31,

7 1994, shall be deemed to have been issued in the imple8 mentation of an approved State program.

9 (3)(A) The Secretary shall monitor the implementa10 tion of an approved State program (including the State’s

11 enforcement thereof) to assure consistency with the re12 quirements of this title.

13 (B) The Secretary may suspend implementation of an

14 approved State program if such implementation (including

15 the State’s enforcement thereof) is not being exercised in

16 a manner consistent with this title. During any such sus17 pension, no permit granted under such program shall be

18 effective except to the extent the Secretary determines

19 that the permitted activities would be consistent with the

20 purposes of this title.

21 (C) If an approved State program includes proce22 dures for the exercise of the Secretary’s authority to sus23 pend such a program’s implementation, the Secretary

24 shall follow such procedures. If no such procedures are
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1 included in a State program, the Secretary shall provide

2 notice and a reasonable time to comply with this title.

3 (d) APPROVAL BY THE SECRETARY.—(1) The Sec4 retary shall approve a program submitted by a State if

5 the Secretary determines that such program, when imple6 mented, will fulfill the purposes of this title regarding the

7 protection of the thermal systems and features of Yellow8 stone National Park.

9 (2) The Secretary shall not approve any State pro10 gram submitted under this section until the Secretary

11 has—

12 (A) solicited, publicly disclosed, and considered

13 the views of the heads of other State and Federal

14 agencies the Secretary determines are concerned

15 with the proposed State program;

16 (B) solicited, publicly disclosed, and considered

17 the views of the public; and

18 (C) found that the State has the necessary legal

19 authority and personnel for the regulation and man20 agement of regulated resources outside Yellowstone

21 National Park consistent with the requirements of

22 this title.

23 (3)(A) The Secretary may approve or disapprove a

24 program in whole or in part.
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1 (B) If the Secretary disapproves any proposed State

2 program, in whole or in part, the Secretary shall notify

3 the State in writing of the decision and set forth in detail

4 the reasons therefor. The State may submit a revised

5 State program or portion thereof.

6 (4) The Secretary shall not approve any State pro7 gram that does not, at a minimum—

8 (A) include ongoing scientific review of restric9 tions, boundaries, and permits applicable to the de10 velopment of a regulated resource;

11 (B) require that, in conducting the scientific re12 view referred to in subparagraph (A) and in imple13 menting the State program, any doubt shall be re14 solved in favor of protection of the thermal systems

15 and features of Yellowstone National Park; and

16 (C) allow the State agency authorized to admin17 ister the program to reject recommendations based

18 on the scientific review referred to in subparagraph

19 (A), to the extent such rejection is necessary to pro20 tect and preserve the thermal systems and features

21 of Yellowstone National Park.

22 (e) SCOPE.—Except to the extent an approved State

23 program is being implemented by a State, section 105(a)

24 of this title shall apply to the Yellowstone Protection Area.
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1 (f) MODIFICATION OF YELLOWSTONE PROTECTION

2 AREA.—(1) The boundaries of the Yellowstone Protection

3 Area in a State may be modified pursuant to an approved

4 State program if such modification is approved by the Sec5 retary.

6 (2) The Secretary shall not approve any such modi7 fication that the Secretary finds would not be consistent

8 with the purposes of this title.

9 (3) The Secretary shall revise the map of the Yellow10 stone Protection Area to reflect any approved boundary

11 modifications.

12 (4) If an approved State program includes procedures

13 for the exercise of the Secretary’s authority to approve

14 modifications of the boundaries of the Yellowstone Protec15 tion Area, the Secretary shall follow such procedures.

16 (g) COOPERATIVE AGREEMENT.—The Secretary is

17 authorized to enter into cooperative agreements with the

18 States of Montana, Idaho, and Wyoming and with the Sec19 retary of Agriculture to fulfill the purposes of this title.

20 (h) FEDERAL FINANCIAL ASSISTANCE.—(1) Subject

21 to appropriation, the Secretary may provide financial as22 sistance for the implementation of an approved State pro23 gram. In providing such assistance, the Secretary may

24 enter into appropriate funding agreements, including

25 grants and cooperative agreements, with a State agency
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1 or agencies, upon such terms and conditions as the Sec2 retary deems appropriate.

3 (2) A recipient State may invest fund provided under

4 this subsection so long as such funds, together with inter5 est and any other earnings thereon, shall be available for

6 use by the State only under the terms and conditions of

7 the approved State program and an agreement entered

8 into with the Secretary under this subsection and shall

9 not be used by the State for any other purpose.

10 SEC. 108. MONTANA PROGRAM.

11 (a) APPROVAL.—(1) The Congress finds that Article

12 IV of the Compact fulfills the purposes of this title regard13 ing the protection of the thermal systems and features of

14 Yellowstone National Park.

15 (2) All provisions of section 107 are applicable to this

16 section, except for purposes of section 107(d)(1) the Com17 pact shall be deemed to have been submitted to the Sec18 retary, and, notwithstanding sections 107(d)(2),

19 107(d)(3), and 107(d)(4), Article IV thereof shall be con20 sidered an approved State program for regulation of

21 groundwater resources within the Montana portion of the

22 Yellowstone Protection Area. Article IV of the Compact

23 shall not be considered an approved State program for the

24 management of regulated resources within the Montana
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1 portion of the Yellowstone Protection Area other than

2 groundwater resources.

3 (b) SCOPE.—Nothing in this title shall be construed

4 as amending the Compact or as altering its status in rela5 tionship to any litigation with regard to water rights.

6 (c) REVIEW PROCEDURES.—For purposes of sections

7 107(c)(3)(B), 107(c)(3)(C), 107(f)(1), and 107(f)(2), the

8 provisions of the Compact with respect to—

9 (1) review of administrative decisions under Ar10 ticle IV of the Compact;

11 (2) enforcement of the Compact;

12 (3) the discretion of any party to the Compact

13 to withdraw therefrom; and

14 (4) modification of boundaries and restrictions

15 within the Controlled Groundwater Area, shall be

16 deemed to be procedures for the exercise of the Sec17 retary’s authority to approve modifications of the

18 boundaries of the Yellowstone Protection Area or to

19 suspend the implementation of an approved State

20 program.

21 SEC. 109. IDAHO AND WYOMING PROGRAMS.

22 (a) Section 104, subsection 105(a), subsection

23 107(b), and paragraph 107(c)(2) shall not be effective

24 with respect to the Yellowstone Protection Area within the

25 State of Idaho and the State of Wyoming for two years
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1 after the date of enactment of this title if the Governor

2 of the State notifies the Secretary that the State will pro3 hibit any permit action or other approval action involving

4 regulated resources within the Yellowstone Protection

5 Area during such two-year period.

6 (b)(1) The State of Wyoming or the State of Idaho

7 may, within the two-year period provided for in subsection

8 (a), submit a State program to the Secretary for approval.

9 (2) Upon receipt of a State program within the two10 year period provided for in subsection (a), the Secretary

11 shall review such program pursuant to section 107.

12 (c) Section 104, subsections 105(a), 107(b), and

13 paragraph 107(c)(2) shall become effective with respect

14 to the Yellowstone Protection Area within the State of

15 Idaho or the State of Wyoming—

16 (1) upon the approval or disapproval of the re17 spective State program;

18 (2) at the end of the two-year period provided

19 for in subsection (a); or

20 (3) if the State takes any permit action or other

21 approval action contrary to the notification provided

22 to the Secretary pursuant to subsection (a).

23 SEC. 110. JUDICIAL REVIEW.

24 (a) ADMINISTRATIVE PROCEDURES.—Except as pro25 vided in this section, any Federal agency action or failure
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1 to act to implement or enforce this title shall be subject

2 to judicial review in accordance with and to the extent pro3 vided by chapter 7 of title 5, United States Code.

4 (b) REMEDY.—The sole remedy available to any per5 son claiming deprivation of a vested property right by en6 actment of this title or Federal action pursuant to this

7 title shall be an action for monetary damages, filed pursu8 ant to section 1491 or 1505 of title 28, United States

9 Code, in the Court of Federal Claims. Any just compensa10 tion awards determined by the Court of Federal Claims

11 to be due to a claimant shall be paid consistent with sec12 tion 2517 of such title.

13 SEC. 111. REGULATIONS.

14 No later than two years after the date of enactment

15 of this title, the Secretary shall promulgate such rules and

16 regulations as are necessary to implement this title.

17 SEC. 112. AUTHORIZATION OF APPROPRIATIONS.

18 There are authorized to be appropriated such sums

19 as may be necessary to carry out this title.

20 SEC. 113. SCOPE OF TITLE.

21 Nothing in this title shall be construed as increasing

22 or diminishing any rights of the United States with re23 spect to water, or as affecting any previous adjudication

24 of or any agreement concerning any such rights.
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1 SEC. 114. LAND EXCHANGE.

2 (a) GENERAL.—Notwithstanding any other provision

3 of law and subject to the provisions of this title, the Sec4 retary of Agriculture shall acquire by exchange certain

5 lands and interests in lands owned by the Church Univer6 sal and Triumphant, its successors and assigns, (referred

7 to in this title as ‘‘the Church’’), located in the Yellow8 stone Controlled Groundwater Area and Corwin Springs

9 Known Geothermal Resource Area of the Gallatin Na10 tional Forest.

11 (b) OFFER AND ACCEPTANCE OF LAND AND INTER12 EST IN LAND.—

13 (1) NON-FEDERAL LANDS AND INTERESTS.—If

14 the Church offers—

15 (i) title that is acceptable to the United

16 States to all rights, title, and interests to ap17 proximately 26 acres of land owned by the

18 Church as depicted on the maps entitled

19 ‘‘Church/Forest Services Land Exchange Pro20 posal’’, dated July 1994;

21 (ii) all right, title and interest to the sub22 surface regulated resources estate on all Church

23 properties within the Yellowstone Controlled

24 Groundwater Area;

25 (iii) a perpetual public access road and

26 utility easement of sixty feet in width, plus al-
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1 lowance for cuts and fills, over Church property

2 to the Gallatin National Forest lands in the

3 Cutler Homestead/Sentinel Butte area, as de4 picted on the maps referenced in paragraph

5 (b)(1)(i); and

6 (iv) other rights and covenants in accord7 ance with the terms of the ‘‘Church/Forest

8 Service Land Exchange Specifications’’ docu9 ment prepared pursuant to paragraph (b)(3);

10 the Secretary of Agriculture shall accept a war11 ranty deed to the land specified in paragraph

12 (b)(1)(i), a special warranty deed to the regu13 lated resources specified in paragraph (b)(1)(ii),

14 State water rights transfer documents, and any

15 other such instruments as may be necessary to

16 transfer the above referenced property interests.

17 (2) FEDERAL LAND AND INTERESTS.—

18 (A) GENERAL.—Upon acceptance by the

19 Secretary of Agriculture of title to the lands, in20 terests, and rights and covenants offered by the

21 Church pursuant to paragraph (b)(1)—

22 (i) the Secretary, upon request by the

23 Secretary of Agriculture, shall convey by

24 patent to the Church, subject to all valid

25 existing rights, and a reservation to the
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1 United States of all regulated resources,

2 title to approximately 11 acres within the

3 Gallatin National Forest, as depicted on

4 the map referenced in paragraph (b)(3);

5 (ii) the Secretary of Agriculture shall

6 convey an easement to the Church grant7 ing the right to collect and transport

8 across Federal lands the natural

9 unenhanced surface flow at LaDuke Hot

10 Springs from its source to the east bank of

11 the Yellowstone River as depicted on the

12 maps referenced in paragraph (b)(1), and

13 the United States shall withdraw all of its

14 water rights claims and objections filed

15 with regard to LaDuke Hot Springs in

16 pending water rights adjudications under

17 Federal and State law;

18 (iii) the Secretary shall grant to the

19 Church standard Forest Service rights-of20 way authorizations for existing roads

21 across National Forest System land as

22 generally depicted on the maps referenced

23 in paragraph (b)(1) and further defined by

24 the document referenced in paragraph

25 (b)(1)(i); and
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1 (iv) the Secretary shall grant to the

2 Church other rights and covenants in ac3 cordance with the terms of the ‘‘Church/

4 Forest Service Land Exchange Specifica5 tions’’ document pursuant to paragraph

6 (b)(3).

7 (B) SURVEYS.—Surveys prepared to stand8 ards approved by the Secretary shall be fur9 nished by the Church for the affected Federal

10 and non-Federal lands and surface interests

11 prior to conveyance of the Federal lands and in12 terests in this exchange.

13 (3) AGREEMENT.—The document entitled

14 ‘‘Church/Forest Service Land Exchange Specifica15 tions,’’ jointly developed and agreed to by both par16 ties, shall define the non-Federal and Federal lands

17 and interests involved in this exchange, including

18 legal descriptions of lands and interests, and other

19 terms, conditions, and covenants, but shall not in20 clude any minimum surface flow requirements to the

21 Yellowstone River from LaDuke Hot Springs. Such

22 document, upon completion, shall be transmitted to

23 the Committee on Energy and Natural Resources of

24 the United States Senate and the Committee on Re25 sources of the United States House of Representa-
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1 tives and shall not take effect until sixty days after

2 receipt by both Committees.

3 (c) TITLE.—

4 (1) REVIEW OF TITLE.—Within ninety days of

5 receipt of the approved surveys and title documents

6 from the Church, the Secretary shall review the title

7 for the non-Federal lands described in paragraph (b)

8 and determine whether—

9 (A) the applicable title standards for Fed10 eral land acquisition have been satisfied subject

11 to any variances expressly contained in this

12 title; and

13 (B) all draft conveyances and closing docu14 ments have been received and approved.

15 (2) CONVEYANCE OF TITLE.—In the event the

16 quality of title does not meet Federal standards or

17 is otherwise unacceptable to the Secretary, the Sec18 retary shall advise the Church regarding corrective

19 actions necessary to cure title defects. The convey20 ance of lands to the Church described in paragraph

21 (b)(2)(A) shall be completed not later than ninety

22 days after the Secretary has approved title.

23 SEC. 15. GENERAL PROVISIONS.

24 (a) MAPS AND DOCUMENTS.—The maps referred to

25 in section 14 are subject to corrections for any technical
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1 errors in describing the properties. The maps and docu2 ments described in section 14(b) (1) and (3) shall be on

3 file and available for public inspection in the Office of the

4 Chief of the Forest Service, in Washington, D.C.

5 (b) NATIONAL FOREST SYSTEM LANDS.—All lands

6 and interests in lands conveyed to the United States under

7 this title shall be administered in accordance with the laws

8 and regulations pertaining to the National Forest System.

9 (c) VALUATION.—The value of the lands and inter10 ests in lands to be exchanged under this title and de11 scribed in section 14(b) are deemed to be equal, and there12 fore, no appraisals shall be required.

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