IIA

103D CONGRESS

1ST SESSION H. R. 1137

IN THE SENATE OF THE UNITED STATES

NOVEMBER 16 (legislative day, NOVEMBER 2), 1993

Received

NOVEMBER 17 (legislative day, NOVEMBER 2), 1993

Read twice and referred to the Committee on Energy and Natural Resources

AN ACT

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

1001–1027), and for other purposes.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Old Faithful Protec5 tion Act of 1993’’.

6 SEC. 2. FINDINGS AND PURPOSES.

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

8 (1) Yellowstone National Park is a unique and

9 irreplaceable national and international treasure and

10 part of one of the few remaining undisturbed hydro11 thermal systems in the world;
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1 (2) there is a risk that unrestricted ground2 water use or hydrothermal or geothermal resource

3 development adjacent to Yellowstone National Park

4 in the States of Montana, Wyoming, and Idaho will

5 interfere or adversely affect the hydrothermal and

6 geothermal features of such Park or the manage7 ment of relevant mineral resources;

8 (3) further research is needed to understand

9 the characteristics of the protected systems and fea10 tures and the effects of development on such sys11 tems and features on lands outside of Yellowstone

12 National Park but within the Yellowstone Protection

13 Area, as such area is defined in this Act;

14 (4) preservation and protection, free from in15 jury or impairment, of the hydrothermal system as16 sociated with and the features within Yellowstone

17 National Park is a benefit to the people of the

18 United States and the world;

19 (5) cooperation between the United States and

20 the States of Montana, Idaho, and Wyoming to pro21 tect and preserve Yellowstone National Park is de22 sirable; and

23 (6) as a settlement of litigation concerning

24 water rights, including the reserved water rights of

25 the United States associated with units of the Na-
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1 tional Park System in Montana, the Department of

2 the Interior and the Department of Justice, on be3 half of the United States, and a Compact Commis4 sion, on behalf of the State of Montana, have devel5 oped a Compact that, when ratified by the State and

6 signed by the Secretary of the Interior and the At7 torney General of the United States, will constitute

8 such a settlement of litigation concerning matters

9 within its scope and which, in Article IV, also estab10 lishes a program for regulation of development and

11 use of groundwater in areas adjacent to Yellowstone

12 National Park.

13 (b) PURPOSES.—The purposes of this Act are—

14 (1) to require the Secretary to take the nec15 essary actions to preserve and protect the hydro16 thermal system associated with, and the hydro17 thermal and geothermal features within, Yellowstone

18 National Park from injury or impairment by protect19 ing the Federal reserved water rights of Yellowstone

20 National Park;

21 (2) to provide a framework for management by

22 the States of Montana, Wyoming, and Idaho of reg23 ulated resources outside of but significantly related

24 to Yellowstone National Park to the extent such

25 States implement appropriate approved programs for
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1 such management that are adequate to preserve and

2 protect, free from injury or impairment, the pro3 tected systems and features;

4 (3) to authorize, as provided in section 8, ap5 proval of Article IV of the Compact as such an ap6 propriate State program; and

7 (4) to require relevant research.

8 SEC. 3. DEFINITIONS.

9 For purposes of this Act:

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

11 of the Interior.

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

13 means the area in Montana, Idaho, and Wyoming

14 identified on the map entitled ‘‘Yellowstone Protec15 tion Area’’, numbered 20036, and dated May 1993,

16 and any modifications thereof as may be made under

17 section 7.

18 (3) The term ‘‘protected systems and features’’

19 means the hydrothermal and geothermal systems

20 and hydrothermal and geothermal features associ21 ated with Yellowstone National Park.

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

23 (A) geothermal steam and associated geo24 thermal resources, as defined in section 2(c) of
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1 the Geothermal Steam Act of 1970 (30 U.S.C.

2 1001(c)); and

3 (B) hydrothermal resources.

4 (5) The term ‘‘geothermal well’’ means a well

5 or facility producing or intended to produce regu6 lated resources.

7 (6) The term ‘‘hydrothermal system’’ means a

8 groundwater system, including cold water recharge

9 and transmission and warm and hot water dis10 charge.

11 (7) The term ‘‘hydrothermal resources’’ means

12 groundwater with a temperature in excess of 59 de13 grees Fahrenheit and any other groundwater that,

14 on the basis of research pursuant to section 6, and,

15 in a State with an approved State program, pursu16 ant to the procedures in such approved State pro17 gram, is determined to have characteristics that in18 dicate it may be directly related to the protected sys19 tems and features.

20 (8) The term ‘‘approved State program’’ means

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

22 been submitted to the Secretary and has been ap23 proved pursuant to this Act.
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1 (9) The term ‘‘Compact’’ means the water

2 rights compact ratified in 1993 by the State of Mon3 tana through enactment of H.B. 692.

4 (10) Except as otherwise provided in this Act,

5 terms used in this Act shall have the same meaning

6 as in the Geothermal Steam Act of 1970.

7 SEC. 4. RESTRICTION ON FEDERAL LANDS.

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

9 and following) is amended by adding at the end thereof

10 the following new section:

11 ‘‘SEC. 30. (a) The Congress hereby declares that—

12 ‘‘(1) Yellowstone National Park possesses nu13 merous hydrothermal and geothermal features, in14 cluding Old Faithful geyser and approximately

15 10,000 other geysers and hot springs, and warrants

16 designation as a significant thermal feature unto

17 itself;

18 ‘‘(2) the establishment of the Park in 1872 re19 served to the United States a water right which in20 cludes a right with respect to groundwater (includ21 ing the water in the hydrothermal system supporting

22 such features) necessary to preserve and protect

23 such features for the benefit of future generations;

24 and
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1 ‘‘(3) Federal legislation is desirable to protect

2 these Federal water rights from possible injury or

3 damage.

4 ‘‘(b) The Congress hereby declares that any use of,

5 or production from, any existing geothermal well, as such

6 term is defined in section 3(5) of the Old Faithful Protec7 tion Act of 1993, or any exploration for, or development

8 of, any new geothermal well or any facility related to the

9 use of geothermal steam and associated geothermal re10 sources within the boundary of the Yellowstone Protection

11 Area, as defined in section 3(2) of the Old Faithful Pro12 tection Act of 1993, risks adverse effects on the hydro13 thermal and geothermal features of Yellowstone National

14 Park.

15 ‘‘(c) The Secretary shall not issue a lease under this

16 Act for lands within the boundary of the Yellowstone Pro17 tection Area, as defined in section 3(2) of the Old Faithful

18 Protection Act of 1993. Nothing in this section shall be

19 construed to either affect the ban on leasing referenced

20 under section 28(f) or to apply to any lands not owned

21 by the United States.’’.

22 SEC. 5. MORATORIUM ON OTHER LANDS.

23 (a) PROHIBITION.—(1) Except as provided by sec24 tions 7 and 8 of this Act, there shall be no use (except

25 for monitoring by the Secretary or monitoring under an
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1 approved State program) of, or production from, any ex2 isting geothermal well and no exploration for, or develop3 ment of, any new geothermal well or any other new facility

4 related to the use of regulated resources within the Yellow5 stone Protection Area.

6 (2) Nothing in this subsection shall be construed to

7 affect existing facilities other than geothermal wells.

8 (b) MANAGEMENT.—The Secretary shall review Na9 tional Park Service management of Yellowstone National

10 Park and shall take such steps as may be necessary to

11 protect the protected systems and features and the hydro12 thermal, geothermal, and groundwater resources of such

13 National Park free from injury or impairment.

14 (c) RULE OF CONSTRUCTION.—Nothing in this sec15 tion shall be construed to affect the ban or prohibitions

16 referenced under sections 28(f) and 30(c) of the Geo17 thermal Steam Act of 1970.

18 SEC. 6. RESEARCH.

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

20 consultation with the Forest Service, the United States

21 Geological Survey, and each State agency implementing

22 an approved State program, shall research the characteris23 tics of the protected systems and features, inventory and

24 research the existing and potential effects (including cu25 mulative effects) of hydrothermal, geothermal, mineral, or
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1 other resources development (including development of

2 groundwater other than regulated resources) on such sys3 tems and features, and periodically inform Congress con4 cerning the results of such inventory and research.

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

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

7 the Secretary, in cooperation with the relevant State, may

8 conduct such research in areas within and adjoining Yel9 lowstone National Park.

10 (c) NONINTRUSIVE METHODOLOGIES.—Except for

11 research within a National Park System unit approved by

12 the Secretary or elsewhere under a permit issued by a

13 State agency implementing an approved State program,

14 research pursuant to this section shall exclusively use

15 nonintrusive methodologies.

16 (d) LIMITATION.—Nothing in this Act shall be con17 strued as authorizing any activities within any unit of the

18 National Park System inconsistent with laws or policies

19 applicable to the relevant unit.

20 SEC. 7. STATE MANAGEMENT PROGRAMS.

21 (a) DEVELOPMENT.—The States of Montana, Wyo22 ming, and Idaho are encouraged to develop State pro23 grams for the management of regulated resources outside

24 of Yellowstone National Park to preserve and protect, free
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1 from injury or impairment, the protected systems and

2 features.

3 (b) PERMIT.—As of the date of enactment of this

4 Act, no person shall engage in any use (including re5 search), production, exploration, or development of any

6 regulated resources on any land located within the Yellow7 stone Protection Area except to the extent authorized by

8 a permit issued by a State agency implementing an ap9 proved State program.

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

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

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

13 use (including research), production, exploration, or devel14 opment of any regulated resources within the Yellowstone

15 Protection Area.

16 (2) Notwithstanding any other provision of law, no

17 permit issued prior to the date of enactment of this Act

18 shall be deemed to have been issued in the implementation

19 of an approved State program, but in the event that after

20 the date of enactment of this Act the Secretary, on the

21 basis of research pursuant to section 6, determines that

22 groundwater with a temperature of 59 degrees Fahrenheit

23 or less has characteristics that indicate it may be directly

24 related to the protected systems and features, a permit

25 issued prior to such determination with respect to such
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1 groundwater shall not be invalidated unless, pursuant to

2 the procedures in an approved State program it is deter3 mined that continued utilization of the groundwater cov4 ered by such permit would be inconsistent with the pur5 poses of this Act.

6 (3)(A) The Secretary shall monitor the implementa7 tion of an approved State program (including the State’s

8 enforcement thereof) to assure consistency with the re9 quirements of this Act.

10 (B) The Secretary may suspend implementation of an

11 approved State program if such implementation (including

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

13 a manner consistent with this Act. During any such sus14 pension, no permit granted under such program shall be

15 effective except to the extent the Secretary determines

16 that the permitted activities would be consistent with the

17 purposes of this Act.

18 (C) If an approved State program includes proce19 dures for the exercise of the Secretary’s authority to sus20 pend such a program’s implementation, the Secretary

21 shall follow such procedures.

22 (d) APPROVAL BY THE SECRETARY.—(1) The Sec23 retary may approve a program submitted by a State if

24 the Secretary determines that such program, when imple-
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1 mented, will fulfill the purposes of this Act regarding the

2 protection of the protected systems and features.

3 (2) The Secretary shall not approve any State pro4 gram submitted under this section until the Secretary

5 has—

6 (A) solicited, publicly disclosed, and considered

7 the views of the heads of other State and Federal

8 agencies the Secretary determines are concerned

9 with the proposed State program;

10 (B) solicited, publicly disclosed, and considered

11 the views of the public; and

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

13 authority and qualified personnel for the regulation

14 and management of regulated resources outside Yel15 lowstone National Park consistent with the require16 ments of this Act.

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

18 program in whole or in part.

19 (B) If the Secretary disapproves any proposed State

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

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

22 the reasons therefor. The State may submit a revised

23 State program or portion thereof.

24 (4) The Secretary shall not approve any State pro25 gram that does not, at a minimum—
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1 (A) include ongoing scientific review of restric2 tions, boundaries, and permits applicable to the de3 velopment of a regulated resource;

4 (B) require that, in conducting the scientific re5 view referred to in subparagraph (A) and in imple6 menting the State program, any doubt shall be re7 solved in favor of protection of the protected systems

8 and features;

9 (C) allow the State agency authorized to admin10 ister the program to reject recommendations based

11 on the scientific review referred to in subparagraph

12 (A), to the extent such rejection is necessary to

13 guarantee no adverse effect on the hydrothermal sys14 tem within Yellowstone National Park; and

15 (D) enable citizens of such State to obtain judi16 cial review of actions taken by the State agency im17 plementing the program to the extent necessary to

18 assure that such actions are consistent with all ap19 plicable law, including this Act.

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

21 program is being implemented by a State, section 5(a) of

22 this Act shall apply to the Yellowstone Protection Area.

23 (f) MODIFICATION OF YELLOWSTONE PROTECTION

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

25 Area in a State may be modified pursuant to an approved
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1 State program to the extent such modification is approved

2 by the Secretary.

3 (2) The Secretary shall not approve any such modi4 fication that the Secretary finds would not be consistent

5 with the purposes of this Act.

6 (3) The Secretary shall revise the map of the Yellow7 stone Protection Area to reflect any approved boundary

8 modifications.

9 (4) If an approved State program includes procedures

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

11 modifications of the boundaries of the Yellowstone Protec12 tion Area, the Secretary shall follow such procedures.

13 (g) COOPERATIVE AGREEMENTS.—The Secretary is

14 authorized to enter into cooperative agreements with the

15 States of Montana, Idaho, and Wyoming and with the Sec16 retary of Agriculture to fulfill the purposes of this Act.

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

18 to appropriation, the Secretary may provide financial as19 sistance for the implementation of an approved State pro20 gram. In providing such assistance, the Secretary may

21 enter into appropriate funding agreements, including

22 grants and cooperative agreements, with a State agency

23 or agencies, upon such terms and conditions as the Sec24 retary deems appropriate.
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1 (2) A recipient State may invest funds provided

2 under this subsection so long as such funds, together with

3 interest and any other earnings thereon, shall be available

4 for use by the State only under the terms and conditions

5 of the approved State program and an agreement entered

6 into with the Secretary under this subsection and shall

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

8 SEC. 8. MONTANA PROGRAM.

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

10 IV of the compact, when implemented, will fulfill the pur11 poses of this Act regarding the protection of the protected

12 systems and features.

13 (2) All provisions of section 7 are applicable to this

14 section, except for purposes of section 7(d)(1) the Com15 pact shall be deemed to have been submitted to the Sec16 retary, and, notwithstanding sections 7(d)(2), 7(d)(3), and

17 7(d)(4), once signed by the Secretary and the Attorney

18 General of the United States, Article IV thereof shall be

19 considered an approved State program for regulation of

20 groundwater resources, including the hydrothermal re21 sources within the Montana portion of the Yellowstone

22 Protection Area. Article IV of the Compact shall not be

23 considered an approved State program for the manage24 ment of regulated resources within the Montana portion
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1 of the Yellowstone protection area other than groundwater

2 resources.

3 (b) SCOPE.—Nothing in this Act 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 7(c)(3)(B), 7(c)(3)(C), 7(f)(1), and 7(f)(2), the provisions

8 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,

16 shall be deemed to be procedures for the exercise of the

17 Secretary’s authority to approve modifications of the

18 boundaries of the Yellowstone Protection Area or to sus19 pend the implementation of an approved State program.

20 SEC. 9. IDAHO PROGRAM.

21 For purposes of section 7(d)(1), the provisions of

22 Section 42 of the Idaho Code related to geothermal re23 sources shall be deemed to have been submitted to the Sec24 retary for approval as an approved State program.
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1 SEC. 10. WYOMING PROGRAM.

2 For purposes of section 7(d)(1), the provisions of the

3 laws of the State of Wyoming referenced in the letter from

4 the Wyoming State Engineer included in the Committee

5 report to accompany H.R. 1137 of the 103rd Congress

6 shall be deemed to have been submitted to the Secretary

7 for approval as an approved State program.

8 SEC. 11. CITIZEN SUITS.

9 (a) IN GENERAL.—(1) Any person may commence a

10 civil suit on the person’s own behalf to enjoin any party,

11 including the United States, except for a State or agency

12 or political subdivision thereof, that the plaintiff alleges—

13 (A) is in violation of any provision of this Act;

14 or

15 (B) is using a regulated resource in the absence

16 of, or beyond the scope of the terms or conditions

17 of, a permit issued pursuant to an approved State

18 program, or in violation of regulations issued under

19 the authority of an approved State program.

20 (2) The Federal district courts shall have jurisdiction,

21 without regard to the amount in controversy or the citizen22 ship of the parties—

23 (A) to require the Secretary or another party to

24 take any steps required or permitted by this Act, if

25 those steps are necessary to fulfill the purposes of

26 this Act; or
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1 (B) to enforce the provisions, prohibitions, per2 mits, or regulations of an approved State program.

3 (b) VENUE AND INTERVENTION.—(1) Any suit under

4 this section may be brought in any appropriate judicial

5 district.

6 (2) In any such suit under this section in which the

7 United States is not a party, the Attorney General of the

8 United States, at the request of the Secretary, may inter9 vene on behalf of the United States as a matter of right.

10 (c) COSTS.—The court, in issuing any final order in

11 any suit brought under this section, may award costs of

12 litigation (including reasonable attorney and expert wit13 ness fees) to any party, whenever the court determines

14 such award is appropriate.

15 (d) NONEXCLUSIVE RELIEF.—The injunctive relief

16 provided by this subsection shall not restrict any right

17 which any person (or class of persons) may have under

18 any statute or common law to seek judicial review of ac19 tions taken by the State agency implementing an approved

20 State program or to seek enforcement of any standard or

21 limitation or to seek any other relief including relief

22 against the Secretary.

23 (e) NOTICE.—Before seeking the injunctive relief au24 thorized under this section, notice of intent to sue shall

25 be given to the Secretary, the State agency implementing
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1 any relevant approved State program described in section

2 7, and each intended defendant. Such notice shall allow

3 the minimum period of time necessary for an intended de4 fendant to take those measures that (1) will cure any al5 leged violations of this Act, or (2) will end any alleged

6 improper use of regulated resources, as described in sub7 section (a)(1)(B).

8 SEC. 12. JUDICIAL REVIEW.

9 (a) ADMINISTRATIVE PROCEDURES.—Except as pro10 vided in this section, any Federal agency action or failure

11 to act to implement or enforce this Act shall be subject

12 to judicial review in accordance with and to the extent pro13 vided by chapter 7 of title 5, United States Code.

14 (b) REMEDY.—The sole remedy available to any per15 son claiming deprivation of a vested property right by en16 actment of this Act or Federal action pursuant to this Act

17 shall be an action for monetary damages, filed pursuant

18 to sections 1491 or 1505 of title 28, United States Code,

19 in the Court of Federal Claims. Any just compensation

20 awards determined by the Court of Federal Claims to be

21 due to a claimant shall be paid consistent with section

22 2517 of such title.
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1 SEC. 13. REGULATIONS.

2 No later than two years after the date of enactment

3 of this Act, the Secretary shall promulgate such rules and

4 regulations as are necessary to implement this Act.

5 SEC. 14. AUTHORIZATION OF APPROPRIATIONS.

6 There are authorized to be appropriated such sums

7 as may be necessary to carry out this Act.

8 SEC. 15. SCOPE OF ACT.

9 Nothing in this Act shall be construed as increasing

10 or diminishing any rights of the United States with re11 spect to water, or as affecting any previous adjudication

12 of or any agreement concerning any such rights.

Passed the House of Representatives November 15,

1993.

Attest: DONNALD K. ANDERSON,

Clerk.

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