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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Old Faithful Protection
Act of 1993’’.
SEC. 2. FINDINGS AND PURPOSES.
(a) FINDINGS.—The Congress finds that—
(1) Yellowstone National Park is a unique and
irreplaceable national and international treasure and
part of one of the few remaining undisturbed hydro-
thermal systems in the world;
(2) there is a risk that unrestricted groundwater
use or hydrothermal or geothermal resource develop-
ment adjacent to Yellowstone National Park in the
States of Montana, Wyoming, and Idaho will inter-
fere or adversely affect the hydrothermal and geo-
thermal features of such Park or the management of
relevant mineral resources;
(3) further research is needed to understand the
characteristics of the protected systems and features
and the effects of development on such systems and
features on lands outside of Yellowstone National
Park but within the Yellowstone Protection Area, as
such area is defined in this Act;
(4) preservation and protection, free from injury
or impairment, of the hydrothermal system associated
with and the features within Yellowstone National
Park is a benefit to the people of the United States
and the world;
(5) cooperation between the United States and
the States of Montana, Idaho, and Wyoming to pro-
tect and preserve Yellowstone National Park is desir-
able; and
(6) as a settlement of litigation concerning water
rights, including the reserved water rights of the
United States associated with units of the National
Park System in Montana, the Department of the Inte-
rior and the Department of Justice, on behalf of the
United States, and a Compact Commission, on behalf
of the State of Montana, have developed a Compact
that, when ratified by the State and signed by the
Secretary of the Interior and the Attorney General of
the United States, will constitute such a settlement of
litigation concerning matters within its scope and
which, in Article IV, also establishes a program for
regulation of development and use of groundwater in
areas adjacent to Yellowstone National Park.
(b) PURPOSES.—The purposes of this Act are—
(1) to require the Secretary to take the necessary
actions to preserve and protect the hydrothermal sys-
tem associated with, and the hydrothermal and geo-
thermal features within, Yellowstone National Park
from injury or impairment by protecting the Federal
reserved water rights of Yellowstone National Park;
(2) to provide a framework for management by
the States of Montana, Wyoming, and Idaho of regu-
lated resources outside of but significantly related to
Yellowstone National Park to the extent such States
implement appropriate approved programs for such
management that are adequate to preserve and pro-
tect, free from injury or impairment, the protected
systems and features;
(3) to authorize, as provided in section 8, ap-
proval of Article IV of the Compact as such an appro-
priate State program; and
(4) to require relevant research.
SEC. 3. DEFINITIONS.
For purposes of this Act:
(1) The term ‘‘Secretary’’ means the Secretary of
the Interior.
(2) The term ‘‘Yellowstone Protection Area’’
means the area in Montana, Idaho, and Wyoming
identified on the map entitled ‘‘Yellowstone Protection
Area’’, numbered 20036, and dated May 1993, and
any modifications thereof as may be made under sec-
tion 7.
(3) The term ‘‘protected systems and features’’
means the hydrothermal and geothermal systems and
hydrothermal and geothermal features associated with
Yellowstone National Park.
(4) The term ‘‘regulated resources’’ means—
(A) geothermal steam and associated geo-
thermal resources, as defined in section 2(c) of
the Geothermal Steam Act of 1970 (30 U.S.C.
1001(c)); and
(B) hydrothermal resources.
(5) The term ‘‘geothermal well’’ means a well or
facility producing or intended to produce regulated
resources.
(6) The term ‘‘hydrothermal system’’ means a
groundwater system, including cold water recharge
and transmission and warm and hot water discharge.
(7) The term ‘‘hydrothermal resources’’ means
groundwater with a temperature in excess of 59 de-
grees Fahrenheit and any other groundwater that, on
the basis of research pursuant to section 6, and, in a
State with an approved State program, pursuant to
the procedures in such approved State program, is de-
termined to have characteristics that indicate it may
be directly related to the protected systems and fea-
tures.
(8) The term ‘‘approved State program’’ means
a program of Montana, Idaho, or Wyoming that has
been submitted to the Secretary and has been ap-
proved pursuant to this Act.
(9) The term ‘‘Compact’’ means the water rights
compact ratified in 1993 by the State of Montana
through enactment of H.B. 692.
(10) Except as otherwise provided in this Act,
terms used in this Act shall have the same meaning
as in the Geothermal Steam Act of 1970.
SEC. 4. RESTRICTION ON FEDERAL LANDS.
The Geothermal Steam Act of 1970 (30 U.S.C. 1001
and following) is amended by adding at the end thereof the
following new section:
‘‘SEC. 30. (a) The Congress hereby declares that—
‘‘(1) Yellowstone National Park possesses numer-
ous hydrothermal and geothermal features, including
Old Faithful geyser and approximately 10,000 other
geysers and hot springs, and warrants designation as
a significant thermal feature unto itself;
‘‘(2) the establishment of the Park in 1872 re-
served to the United States a water right which in-
cludes a right with respect to groundwater (including
the water in the hydrothermal system supporting such
features) necessary to preserve and protect such fea-
tures for the benefit of future generations; and
‘‘(3) Federal legislation is desirable to protect
these Federal water rights from possible injury or
damage.
‘‘(b) The Congress hereby declares that any use of, or
production from, any existing geothermal well, as such term
is defined in section 3(5) of the Old Faithful Protection Act
of 1993, or any exploration for, or development of, any new
geothermal well or any facility related to the use of geo-
thermal steam and associated geothermal resources within
the boundary of the Yellowstone Protection Area, as defined
in section 3(2) of the Old Faithful Protection Act of 1993,
risks adverse effects on the hydrothermal and geothermal
features of Yellowstone National Park.
‘‘(c) The Secretary shall not issue a lease under this
Act for lands within the boundary of the Yellowstone Protec-
tion Area, as defined in section 3(2) of the Old Faithful
Protection Act of 1993. Nothing in this section shall be con-
strued to either affect the ban on leasing referenced under
section 28(f) or to apply to any lands not owned by the
United States.’’.
SEC. 5. MORATORIUM ON OTHER LANDS.
(a) PROHIBITION.—(1) Except as provided by sections
7 and 8 of this Act, there shall be no use (except for monitor-
ing by the Secretary or monitoring under an approved
State program) of, or production from, any existing geo-
thermal well and no exploration for, or development of, any
new geothermal well or any other new facility related to
tures, and periodically inform Congress concerning the re-
sults of such inventory and research.
(b) UNDER STATE PROGRAM.—If an approved State
program provides for research described in subsection (a),
the Secretary, in cooperation with the relevant State, may
conduct such research in areas within and adjoining Yel-
lowstone National Park.
(c) NONINTRUSIVE METHODOLOGIES.—Except for re-
search within a National Park System unit approved by
the Secretary or elsewhere under a permit issued by a State
agency implementing an approved State program, research
pursuant to this section shall exclusively use nonintrusive
methodologies.
(d) LIMITATION.—Nothing in this Act shall be con-
strued as authorizing any activities within any unit of the
National Park System inconsistent with laws or policies
applicable to the relevant unit.
SEC. 7. STATE MANAGEMENT PROGRAMS.
(a) DEVELOPMENT.—The States of Montana, Wyo-
ming, and Idaho are encouraged to develop State programs
for the management of regulated resources outside of Yellow-
stone National Park to preserve and protect, free from in-
jury or impairment, the protected systems and features.
(b) PERMIT.—As of the date of enactment of this Act,
no person shall engage in any use (including research), pro-
duction, exploration, or development of any regulated re-
sources on any land located within the Yellowstone Protec-
tion Area except to the extent authorized by a permit issued
by a State agency implementing an approved State pro-
gram.
(c) STATE AUTHORITY.—(1) In the implementation of
an approved State program, a State may exercise the au-
thority to grant permits under subsection (b) for the use
(including research), production, exploration, or develop-
ment of any regulated resources within the Yellowstone Pro-
tection Area.
(2) Notwithstanding any other provision of law, no
permit issued prior to the date of enactment of this Act
shall be deemed to have been issued in the implementation
of an approved State program, but in the event that after
the date of enactment of this Act the Secretary, on the basis
of research pursuant to section 6, determines that ground-
water with a temperature of 59 degrees Fahrenheit or less
has characteristics that indicate it may be directly related
to the protected systems and features, a permit issued prior
to such determination with respect to such groundwater
shall not be invalidated unless, pursuant to the procedures
in an approved State program it is determined that contin-
ued utilization of the groundwater covered by such permit
would be inconsistent with the purposes of this Act.
(3)(A) The Secretary shall monitor the implementation
of an approved State program (including the State’s en-
forcement thereof) to assure consistency with the require-
ments of this Act.
(B) The Secretary may suspend implementation of an
approved State program if such implementation (including
the State’s enforcement thereof) is not being exercised in a
manner consistent with this Act. During any such suspen-
sion, no permit granted under such program shall be effec-
tive except to the extent the Secretary determines that the
permitted activities would be consistent with the purposes
of this Act.
(C) If an approved State program includes procedures
for the exercise of the Secretary’s authority to suspend such
a program’s implementation, the Secretary shall follow such
procedures.
(d) APPROVAL BY THE SECRETARY.—(1) The Sec-
retary may approve a program submitted by a State if the
Secretary determines that such program, when imple-
mented, will fulfill the purposes of this Act regarding the
protection of the protected systems and features.
(2) The Secretary shall not approve any State pro-
gram submitted under this section until the Secretary has—
(A) solicited, publicly disclosed, and considered
the views of the heads of other State and Federal
agencies the Secretary determines are concerned with
the proposed State program;
(B) solicited, publicly disclosed, and considered
the views of the public; and
(C) found that the State has the necessary legal
authority and qualified personnel for the regulation
and management of regulated resources outside Yel-
lowstone National Park consistent with the require-
ments of this Act.
(3)(A) The Secretary may approve or disapprove a
program in whole or in part.
(B) If the Secretary disapproves any proposed State
program, in whole or in part, the Secretary shall notify
the State in writing of the decision and set forth in detail
the reasons therefor. The State may submit a revised State
program or portion thereof.
(4) The Secretary shall not approve any State pro-
gram that does not, at a minimum—
(A) include ongoing scientific review of restric-
tions, boundaries, and permits applicable to the devel-
opment of a regulated resource;
(B) require that, in conducting the scientific re-
view referred to in subparagraph (A) and in imple-
menting the State program, any doubt shall be re-
solved in favor of protection of the protected systems
and features;
(C) allow the State agency authorized to admin-
ister the program to reject recommendations based on
the scientific review referred to in subparagraph (A),
to the extent such rejection is necessary to guarantee
no adverse effect on the hydrothermal system within
Yellowstone National Park; and
(D) enable citizens of such State to obtain judi-
cial review of actions taken by the State agency im-
plementing the program to the extent necessary to as-
sure that such actions are consistent with all applica-
ble law, including this Act.
(e) SCOPE.—Except to the extent an approved State
program is being implemented by a State, section 5(a) of
this Act shall apply to the Yellowstone Protection Area.
(f) MODIFICATION
OF YELLOWSTONE PROTECTION
AREA.—(1) The boundaries of the Yellowstone Protection
Area in a State may be modified pursuant to an approved
State program to the extent such modification is approved
by the Secretary.
(2) The Secretary shall not approve any such modi-
fication that the Secretary finds would not be consistent
with the purposes of this Act.
(3) The Secretary shall revise the map of the Yellow-
stone Protection Area to reflect any approved boundary
modifications.
(4) If an approved State program includes procedures
for the exercise of the Secretary’s authority to approve
modifications of the boundaries of the Yellowstone Protec-
tion Area, the Secretary shall follow such procedures.
(g) COOPERATIVE AGREEMENTS.—The Secretary is
authorized to enter into cooperative agreements with the
States of Montana, Idaho, and Wyoming and with the Sec-
retary of Agriculture to fulfill the purposes of this Act.
(h) FEDERAL FINANCIAL ASSISTANCE.—(1) Subject to
appropriation, the Secretary may provide financial assist-
ance for the implementation of an approved State program.
In providing such assistance, the Secretary may enter into
appropriate funding agreements, including grants and co-
operative agreements, with a State agency or agencies, upon
such terms and conditions as the Secretary deems appro-
priate.
(2) A recipient State may invest funds provided under
this subsection so long as such funds, together with interest
and any other earnings thereon, shall be available for use
by the State only under the terms and conditions of the
approved State program and an agreement entered into
with the Secretary under this subsection and shall not be
used by the State for any other purpose.
SEC. 8. MONTANA PROGRAM.
(a) APPROVAL.—(1) The Congress finds that Article IV
of the compact, when implemented, will fulfill the purposes
of this Act regarding the protection of the protected systems
and features.
(2) All provisions of section 7 are applicable to this
section, except for purposes of section 7(d)(1) the Compact
shall be deemed to have been submitted to the Secretary,
and, notwithstanding sections 7(d)(2), 7(d)(3), and 7(d)(4),
once signed by the Secretary and the Attorney General of
the United States, Article IV thereof shall be considered an
approved State program for regulation of groundwater re-
sources, including the hydrothermal resources within the
Montana portion of the Yellowstone Protection Area. Article
IV of the Compact shall not be considered an approved State
program for the management of regulated resources within
the Montana portion of the Yellowstone protection area
other than groundwater resources.
(b) SCOPE.—Nothing in this Act shall be construed as
amending the Compact or as altering its status in relation-
ship to any litigation with regard to water rights.
be deemed to have been submitted to the Secretary for ap-
proval as an approved State program.
SEC. 11. CITIZEN SUITS.
(a) IN GENERAL.—(1) Any person may commence a
civil suit on the person’s own behalf to enjoin any party,
including the United States, except for a State or agency
or political subdivision thereof, that the plaintiff alleges—
(A) is in violation of any provision of this Act;
or
(B) is using a regulated resource in the absence
of, or beyond the scope of the terms or conditions of,
a permit issued pursuant to an approved State pro-
gram, or in violation of regulations issued under the
authority of an approved State program.
(2) The Federal district courts shall have jurisdiction,
without regard to the amount in controversy or the citizen-
ship of the parties—
(A) to require the Secretary or another party to
take any steps required or permitted by this Act, if
those steps are necessary to fulfill the purposes of this
Act; or
(B) to enforce the provisions, prohibitions, per-
mits, or regulations of an approved State program.
(b) VENUE AND INTERVENTION.—(1) Any suit under
this section may be brought in any appropriate judicial dis-
trict.
(2) In any such suit under this section in which the
United States is not a party, the Attorney General of the
United States, at the request of the Secretary, may inter-
vene on behalf of the United States as a matter of right.
(c) COSTS.—The court, in issuing any final order in
any suit brought under this section, may award costs of
litigation (including reasonable attorney and expert witness
fees) to any party, whenever the court determines such
award is appropriate.
(d) NONEXCLUSIVE RELIEF.—The injunctive relief
provided by this subsection shall not restrict any right
which any person (or class of persons) may have under any
statute or common law to seek judicial review of actions
taken by the State agency implementing an approved State
program or to seek enforcement of any standard or limita-
tion or to seek any other relief including relief against the
Secretary.
(e) NOTICE.—Before seeking the injunctive relief au-
thorized under this section, notice of intent to sue shall be
given to the Secretary, the State agency implementing any
relevant approved State program described in section 7,
and each intended defendant. Such notice shall allow the
minimum period of time necessary for an intended defend-
ant to take those measures that (1) will cure any alleged
violations of this Act, or (2) will end any alleged improper
use of regulated resources, as described in subsection
(a)(1)(B).
SEC. 12. JUDICIAL REVIEW.
(a) ADMINISTRATIVE PROCEDURES.—Except as pro-
vided in this section, any Federal agency action or failure
to act to implement or enforce this Act shall be subject to
judicial review in accordance with and to the extent pro-
vided by chapter 7 of title 5, United States Code.
(b) REMEDY.—The sole remedy available to any person
claiming deprivation of a vested property right by enact-
ment of this Act or Federal action pursuant to this Act shall
be an action for monetary damages, filed pursuant to sec-
tions 1491 or 1505 of title 28, United States Code, in the
Court of Federal Claims. Any just compensation awards de-
termined by the Court of Federal Claims to be due to a
claimant shall be paid consistent with section 2517 of such
title.
SEC. 13. REGULATIONS.
No later than two years after the date of enactment
of this Act, the Secretary shall promulgate such rules and
regulations as are necessary to implement this Act.
SEC. 14. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as
may be necessary to carry out this Act.
SEC. 15. SCOPE OF ACT.
Nothing in this Act shall be construed as increasing
or diminishing any rights of the United States with respect
to water, or as affecting any previous adjudication of or
any agreement concerning any such rights.
HR 1137 RH——2