Union Calendar No. 198

103D CONGRESS

1ST SESSION H. R. 1137

[Report No. 103–364]

A BILL

To amend the Geothermal Steam Act of 1970 (30

U.S.C. 1001–1027), and for other purposes.

NOVEMBER 15, 1993

Reported with an amendment, committed to the Commitordered to be printed tee of the Whole House on the State of the Union, and
IB

Union Calendar No. 198

103D CONGRESS

1ST SESSION H. R. 1137

[Report No. 103–364]

To amend the Geothermal Steam Act of 1970 (30 U.S.C. 1001–1027), and

for other purposes.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 24, 1993

Mr. WILLIAMS introduced the following bill; which was referred to the

Committee on Natural Resources

NOVEMBER 15, 1993

Reported with an amendment, committed to the Committee of the Whole

House on the State of the Union, and ordered to be printed

[Strike out all after the enacting clause and insert the part printed in italic]

[For text of introduced bill, see copy of bill as introduced on February 24, 1993]

A BILL

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 Protection

5 Act of 1993’’.
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1 SEC. 2. FINDINGS AND PURPOSES.

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

3 (1) Yellowstone National Park is a unique and

4 irreplaceable national and international treasure and

5 part of one of the few remaining undisturbed hydro6 thermal systems in the world;

7 (2) there is a risk that unrestricted groundwater

8 use or hydrothermal or geothermal resource develop9 ment adjacent to Yellowstone National Park in the

10 States of Montana, Wyoming, and Idaho will inter11 fere or adversely affect the hydrothermal and geo12 thermal features of such Park or the management of

13 relevant mineral resources;

14 (3) further research is needed to understand the

15 characteristics of the protected systems and features

16 and the effects of development on such systems and

17 features on lands outside of Yellowstone National

18 Park but within the Yellowstone Protection Area, as

19 such area is defined in this Act;

20 (4) preservation and protection, free from injury

21 or impairment, of the hydrothermal system associated

22 with and the features within Yellowstone National

23 Park is a benefit to the people of the United States

24 and the world;

25 (5) cooperation between the United States and

26 the States of Montana, Idaho, and Wyoming to pro-
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1 tect and preserve Yellowstone National Park is desir2 able; and

3 (6) as a settlement of litigation concerning water

4 rights, including the reserved water rights of the

5 United States associated with units of the National

6 Park System in Montana, the Department of the Inte7 rior and the Department of Justice, on behalf of the

8 United States, and a Compact Commission, on behalf

9 of the State of Montana, have developed a Compact

10 that, when ratified by the State and signed by the

11 Secretary of the Interior and the Attorney General of

12 the United States, will constitute such a settlement of

13 litigation concerning matters within its scope and

14 which, in Article IV, also establishes a program for

15 regulation of development and use of groundwater in

16 areas adjacent to Yellowstone National Park.

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

18 (1) to require the Secretary to take the necessary

19 actions to preserve and protect the hydrothermal sys20 tem associated with, and the hydrothermal and geo21 thermal features within, Yellowstone National Park

22 from injury or impairment by protecting the Federal

23 reserved water rights of Yellowstone National Park;

24 (2) to provide a framework for management by

25 the States of Montana, Wyoming, and Idaho of regu-
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1 lated resources outside of but significantly related to

2 Yellowstone National Park to the extent such States

3 implement appropriate approved programs for such

4 management that are adequate to preserve and pro5 tect, free from injury or impairment, the protected

6 systems and features;

7 (3) to authorize, as provided in section 8, ap8 proval of Article IV of the Compact as such an appro9 priate State program; and

10 (4) to require relevant research.

11 SEC. 3. DEFINITIONS.

12 For purposes of this Act:

13 (1) The term ‘‘Secretary’’ means the Secretary of

14 the Interior.

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

16 means the area in Montana, Idaho, and Wyoming

17 identified on the map entitled ‘‘Yellowstone Protection

18 Area’’, numbered 20036, and dated May 1993, and

19 any modifications thereof as may be made under sec20 tion 7.

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

22 means the hydrothermal and geothermal systems and

23 hydrothermal and geothermal features associated with

24 Yellowstone National Park.

25 (4) The term ‘‘regulated resources’’ means—
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1 (A) geothermal steam and associated geo2 thermal resources, as defined in section 2(c) of

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

4 1001(c)); and

5 (B) hydrothermal resources.

6 (5) The term ‘‘geothermal well’’ means a well or

7 facility producing or intended to produce regulated

8 resources.

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

10 groundwater system, including cold water recharge

11 and transmission and warm and hot water discharge.

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

13 groundwater with a temperature in excess of 59 de14 grees Fahrenheit and any other groundwater that, on

15 the basis of research pursuant to section 6, and, in a

16 State with an approved State program, pursuant to

17 the procedures in such approved State program, is de18 termined to have characteristics that indicate it may

19 be directly related to the protected systems and fea20 tures.

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

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

23 been submitted to the Secretary and has been ap24 proved pursuant to this Act.
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1 (9) The term ‘‘Compact’’ means the water rights

2 compact ratified in 1993 by the State of Montana

3 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 the

10 following new section:

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

12 ‘‘(1) Yellowstone National Park possesses numer13 ous hydrothermal and geothermal features, including

14 Old Faithful geyser and approximately 10,000 other

15 geysers and hot springs, and warrants designation as

16 a significant thermal feature unto itself;

17 ‘‘(2) the establishment of the Park in 1872 re18 served to the United States a water right which in19 cludes a right with respect to groundwater (including

20 the water in the hydrothermal system supporting such

21 features) necessary to preserve and protect such fea22 tures for the benefit of future generations; and

23 ‘‘(3) Federal legislation is desirable to protect

24 these Federal water rights from possible injury or

25 damage.
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1 ‘‘(b) The Congress hereby declares that any use of, or

2 production from, any existing geothermal well, as such term

3 is defined in section 3(5) of the Old Faithful Protection Act

4 of 1993, or any exploration for, or development of, any new

5 geothermal well or any facility related to the use of geo6 thermal steam and associated geothermal resources within

7 the boundary of the Yellowstone Protection Area, as defined

8 in section 3(2) of the Old Faithful Protection Act of 1993,

9 risks adverse effects on the hydrothermal and geothermal

10 features of Yellowstone National Park.

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

12 Act for lands within the boundary of the Yellowstone Protec13 tion Area, as defined in section 3(2) of the Old Faithful

14 Protection Act of 1993. Nothing in this section shall be con15 strued to either affect the ban on leasing referenced under

16 section 28(f) or to apply to any lands not owned by the

17 United States.’’.

18 SEC. 5. MORATORIUM ON OTHER LANDS.

19 (a) PROHIBITION.—(1) Except as provided by sections

20 7 and 8 of this Act, there shall be no use (except for monitor21 ing by the Secretary or monitoring under an approved

22 State program) of, or production from, any existing geo23 thermal well and no exploration for, or development of, any

24 new geothermal well or any other new facility related to
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1 the use of regulated resources within the Yellowstone Protec2 tion Area.

3 (2) Nothing in this subsection shall be construed to af4 fect existing facilities other than geothermal wells.

5 (b) MANAGEMENT.—The Secretary shall review Na6 tional Park Service management of Yellowstone National

7 Park and shall take such steps as may be necessary to pro8 tect the protected systems and features and the hydro9 thermal, geothermal, and groundwater resources of such Na10 tional Park free from injury or impairment.

11 (c) RULE OF CONSTRUCTION.—Nothing in this section

12 shall be construed to affect the ban or prohibitions ref13 erenced under sections 28(f) and 30(c) of the Geothermal

14 Steam Act of 1970.

15 SEC. 6. RESEARCH.

16 (a) IN GENERAL.—The National Park Service, in con17 sultation with the Forest Service, the United States Geologi18 cal Survey, and each State agency implementing an ap19 proved State program, shall research the characteristics of

20 the protected systems and features, inventory and research

21 the existing and potential effects (including cumulative ef22 fects) of hydrothermal, geothermal, mineral, or other re23 sources development (including development of groundwater

24 other than regulated resources) on such systems and fea-
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1 tures, and periodically inform Congress concerning the re2 sults of such inventory and research.

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

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

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

6 conduct such research in areas within and adjoining Yel7 lowstone National Park.

8 (c) NONINTRUSIVE METHODOLOGIES.—Except for re9 search within a National Park System unit approved by

10 the Secretary or elsewhere under a permit issued by a State

11 agency implementing an approved State program, research

12 pursuant to this section shall exclusively use nonintrusive

13 methodologies.

14 (d) LIMITATION.—Nothing in this Act shall be con15 strued as authorizing any activities within any unit of the

16 National Park System inconsistent with laws or policies

17 applicable to the relevant unit.

18 SEC. 7. STATE MANAGEMENT PROGRAMS.

19 (a) DEVELOPMENT.—The States of Montana, Wyo20 ming, and Idaho are encouraged to develop State programs

21 for the management of regulated resources outside of Yellow22 stone National Park to preserve and protect, free from in23 jury or impairment, the protected systems and features.

24 (b) PERMIT.—As of the date of enactment of this Act,

25 no person shall engage in any use (including research), pro-
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1 duction, exploration, or development of any regulated re2 sources on any land located within the Yellowstone Protec3 tion Area except to the extent authorized by a permit issued

4 by a State agency implementing an approved State pro5 gram.

6 (c) STATE AUTHORITY.—(1) In the implementation of

7 an approved State program, a State may exercise the au8 thority to grant permits under subsection (b) for the use

9 (including research), production, exploration, or develop10 ment of any regulated resources within the Yellowstone Pro11 tection Area.

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

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

14 shall be deemed to have been issued in the implementation

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

16 the date of enactment of this Act the Secretary, on the basis

17 of research pursuant to section 6, determines that ground18 water with a temperature of 59 degrees Fahrenheit or less

19 has characteristics that indicate it may be directly related

20 to the protected systems and features, a permit issued prior

21 to such determination with respect to such groundwater

22 shall not be invalidated unless, pursuant to the procedures

23 in an approved State program it is determined that contin24 ued utilization of the groundwater covered by such permit

25 would be inconsistent with the purposes of this Act.
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1 (3)(A) The Secretary shall monitor the implementation

2 of an approved State program (including the State’s en3 forcement thereof) to assure consistency with the require4 ments of this Act.

5 (B) The Secretary may suspend implementation of an

6 approved State program if such implementation (including

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

8 manner consistent with this Act. During any such suspen9 sion, no permit granted under such program shall be effec10 tive except to the extent the Secretary determines that the

11 permitted activities would be consistent with the purposes

12 of this Act.

13 (C) If an approved State program includes procedures

14 for the exercise of the Secretary’s authority to suspend such

15 a program’s implementation, the Secretary shall follow such

16 procedures.

17 (d) APPROVAL BY THE SECRETARY.—(1) The Sec18 retary may approve a program submitted by a State if the

19 Secretary determines that such program, when imple20 mented, will fulfill the purposes of this Act regarding the

21 protection of the protected systems and features.

22 (2) The Secretary shall not approve any State pro23 gram submitted under this section until the Secretary has—

24 (A) solicited, publicly disclosed, and considered

25 the views of the heads of other State and Federal
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1 agencies the Secretary determines are concerned with

2 the proposed State program;

3 (B) solicited, publicly disclosed, and considered

4 the views of the public; and

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

6 authority and qualified personnel for the regulation

7 and management of regulated resources outside Yel8 lowstone National Park consistent with the require9 ments of this Act.

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

11 program in whole or in part.

12 (B) If the Secretary disapproves any proposed State

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

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

15 the reasons therefor. The State may submit a revised State

16 program or portion thereof.

17 (4) The Secretary shall not approve any State pro18 gram that does not, at a minimum—

19 (A) include ongoing scientific review of restric20 tions, boundaries, and permits applicable to the devel21 opment of a regulated resource;

22 (B) require that, in conducting the scientific re23 view referred to in subparagraph (A) and in imple24 menting the State program, any doubt shall be re-
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1 solved in favor of protection of the protected systems

2 and features;

3 (C) allow the State agency authorized to admin4 ister the program to reject recommendations based on

5 the scientific review referred to in subparagraph (A),

6 to the extent such rejection is necessary to guarantee

7 no adverse effect on the hydrothermal system within

8 Yellowstone National Park; and

9 (D) enable citizens of such State to obtain judi10 cial review of actions taken by the State agency im11 plementing the program to the extent necessary to as12 sure that such actions are consistent with all applica13 ble law, including this Act.

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

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

16 this Act shall apply to the Yellowstone Protection Area.

17 (f) MODIFICATION OF YELLOWSTONE PROTECTION

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

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

20 State program to the extent such modification is approved

21 by the Secretary.

22 (2) The Secretary shall not approve any such modi23 fication that the Secretary finds would not be consistent

24 with the purposes of this Act.
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1 (3) The Secretary shall revise the map of the Yellow2 stone Protection Area to reflect any approved boundary

3 modifications.

4 (4) If an approved State program includes procedures

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

6 modifications of the boundaries of the Yellowstone Protec7 tion Area, the Secretary shall follow such procedures.

8 (g) COOPERATIVE AGREEMENTS.—The Secretary is

9 authorized to enter into cooperative agreements with the

10 States of Montana, Idaho, and Wyoming and with the Sec11 retary of Agriculture to fulfill the purposes of this Act.

12 (h) FEDERAL FINANCIAL ASSISTANCE.—(1) Subject to

13 appropriation, the Secretary may provide financial assist14 ance for the implementation of an approved State program.

15 In providing such assistance, the Secretary may enter into

16 appropriate funding agreements, including grants and co17 operative agreements, with a State agency or agencies, upon

18 such terms and conditions as the Secretary deems appro19 priate.

20 (2) A recipient State may invest funds provided under

21 this subsection so long as such funds, together with interest

22 and any other earnings thereon, shall be available for use

23 by the State only under the terms and conditions of the

24 approved State program and an agreement entered into
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1 with the Secretary under this subsection and shall not be

2 used by the State for any other purpose.

3 SEC. 8. MONTANA PROGRAM.

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

5 of the compact, when implemented, will fulfill the purposes

6 of this Act regarding the protection of the protected systems

7 and features.

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

9 section, except for purposes of section 7(d)(1) the Compact

10 shall be deemed to have been submitted to the Secretary,

11 and, notwithstanding sections 7(d)(2), 7(d)(3), and 7(d)(4),

12 once signed by the Secretary and the Attorney General of

13 the United States, Article IV thereof shall be considered an

14 approved State program for regulation of groundwater re15 sources, including the hydrothermal resources within the

16 Montana portion of the Yellowstone Protection Area. Article

17 IV of the Compact shall not be considered an approved State

18 program for the management of regulated resources within

19 the Montana portion of the Yellowstone protection area

20 other than groundwater resources.

21 (b) SCOPE.—Nothing in this Act shall be construed as

22 amending the Compact or as altering its status in relation23 ship to any litigation with regard to water rights.
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1 (c) REVIEW PROCEDURES.—For purposes of sections

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

3 of the Compact with respect to—

4 (1) review of administrative decisions under Ar5 ticle IV of the Compact;

6 (2) enforcement of the Compact;

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

8 to withdraw therefrom; and

9 (4) modification of boundaries and restrictions

10 within the Controlled Groundwater Area,

11 shall be deemed to be procedures for the exercise of the Sec12 retary’s authority to approve modifications of the bound13 aries of the Yellowstone Protection Area or to suspend the

14 implementation of an approved State program.

15 SEC. 9. IDAHO PROGRAM.

16 For purposes of section 7(d)(1), the provisions of Sec17 tion 42 of the Idaho Code related to geothermal resources

18 shall be deemed to have been submitted to the Secretary for

19 approval as an approved State program.

20 SEC. 10. WYOMING PROGRAM.

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

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

23 the Wyoming State Engineer included in the Committee re24 port to accompany H.R. 1137 of the 103rd Congress shall
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1 be deemed to have been submitted to the Secretary for ap2 proval as an approved State program.

3 SEC. 11. CITIZEN SUITS.

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

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

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

7 or political subdivision thereof, that the plaintiff alleges—

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

9 or

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

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

12 a permit issued pursuant to an approved State pro13 gram, or in violation of regulations issued under the

14 authority of an approved State program.

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

16 without regard to the amount in controversy or the citizen17 ship of the parties—

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

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

20 those steps are necessary to fulfill the purposes of this

21 Act; or

22 (B) to enforce the provisions, prohibitions, per23 mits, or regulations of an approved State program.
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1 (b) VENUE AND INTERVENTION.—(1) Any suit under

2 this section may be brought in any appropriate judicial dis3 trict.

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

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

6 United States, at the request of the Secretary, may inter7 vene on behalf of the United States as a matter of right.

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

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

10 litigation (including reasonable attorney and expert witness

11 fees) to any party, whenever the court determines such

12 award is appropriate.

13 (d) NONEXCLUSIVE RELIEF.—The injunctive relief

14 provided by this subsection shall not restrict any right

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

16 statute or common law to seek judicial review of actions

17 taken by the State agency implementing an approved State

18 program or to seek enforcement of any standard or limita19 tion or to seek any other relief including relief against the

20 Secretary.

21 (e) NOTICE.—Before seeking the injunctive relief au22 thorized under this section, notice of intent to sue shall be

23 given to the Secretary, the State agency implementing any

24 relevant approved State program described in section 7,

25 and each intended defendant. Such notice shall allow the
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1 minimum period of time necessary for an intended defend2 ant to take those measures that (1) will cure any alleged

3 violations of this Act, or (2) will end any alleged improper

4 use of regulated resources, as described in subsection

5 (a)(1)(B).

6 SEC. 12. JUDICIAL REVIEW.

7 (a) ADMINISTRATIVE PROCEDURES.—Except as pro8 vided in this section, any Federal agency action or failure

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

10 judicial review in accordance with and to the extent pro11 vided by chapter 7 of title 5, United States Code.

12 (b) REMEDY.—The sole remedy available to any person

13 claiming deprivation of a vested property right by enact14 ment of this Act or Federal action pursuant to this Act shall

15 be an action for monetary damages, filed pursuant to sec16 tions 1491 or 1505 of title 28, United States Code, in the

17 Court of Federal Claims. Any just compensation awards de18 termined by the Court of Federal Claims to be due to a

19 claimant shall be paid consistent with section 2517 of such

20 title.

21 SEC. 13. REGULATIONS.

22 No later than two years after the date of enactment

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

24 regulations as are necessary to implement this Act.
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1 SEC. 14. AUTHORIZATION OF APPROPRIATIONS.

2 There are authorized to be appropriated such sums as

3 may be necessary to carry out this Act.

4 SEC. 15. SCOPE OF ACT.

5 Nothing in this Act shall be construed as increasing

6 or diminishing any rights of the United States with respect

7 to water, or as affecting any previous adjudication of or

8 any agreement concerning any such rights.

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