[Senate Report 114-327]
[From the U.S. Government Publishing Office]
Calendar No. 600
114th Congress } { Report
SENATE
2d Session } { 114-327
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BOLTS DITCH ACCESS AND USE ACT
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September 6, 2016.--Ordered to be printed
_______
Ms. Murkowski, from the Committee on Energy and Natural
Resources, submitted the following
R E P O R T
[To accompany S. 2524]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 2524) to insure adequate use and access
to the existing Bolts Ditch headgate and ditch segment within
the Holy Cross Wilderness in Eagle County, Colorado, and for
other purposes, having considered the same, reports favorably
thereon with an amendment and recommends that the bill, as
amended, do pass.
The amendment is as follows:
Beginning on page 1, strike line 6 and all that follows
through page 2, line 21 and insert the following:
SEC. 2. BOLTS DITCH ACCESS.
PURPOSE
The purpose of S. 2524 is to insure adequate use and access
to the existing Bolts Ditch headgate and ditch segment within
the Holy Cross Wilderness in Eagle County, Colorado.
BACKGROUND AND NEED
When Congress authorized and designated the Holy Cross
Wilderness Area in 1980, Bolts Ditch was inadvertently not
included on the list of existing water facilities. Bolts Lake
is an existing water facility in Minturn, Colorado, outside of
the Wilderness Area which can only be filled using the Bolts
ditch and headgate. S. 2524 would allow for a special use
permit to be granted to the Town of Minturn, Colorado, for
access to the ditch and headgate within the Wilderness Area.
LEGISLATIVE HISTORY
S. 2524, was introduced by Senators Gardner and Bennet on
February 9, 2016. On May 17, 2016, the Subcommittee on Water
and Power held a hearing on S. 2524.
A companion measure, H.R. 4510, was introduced by
Representatives Polis, Lamborn, and Tipton on February 9, 2016.
On February 25, 2016, the Subcommittee on Federal Lands held a
hearing on H.R. 4510.
The Senate Committee on Energy and Natural Resources met in
open business session on July 13, 2016, and ordered S. 2524
favorably reported as amended.
COMMITTEE RECOMMENDATION
The Senate Committee on Energy and Natural Resources, in
open business session on July 13, 2016, by a majority voice
vote of a quorum present, recommends that the Senate pass S.
2524, if amended as described herein.
COMMITTEE AMENDMENT
During its consideration of S. 2524, the Committee adopted
an amendment to strike the findings in the bill.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Section 1 provides a short title.
Section 2. Bolts Ditch access
Section 2 grants special access and use to approximately
450 feet of Bolts Ditch and the Bolts Ditch Headgate within the
Holy Cross Wilderness, Colorado as depicted on the referenced
map for the purposes of the diversion of water and use,
maintenance, and repair of such ditch and headgate to the Town
of Minturn, Colorado.
COST AND BUDGETARY CONSIDERATIONS
The following estimate of costs of this measure has been
provided by the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 4, 2016.
Hon. Lisa Murkowski,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
Dear Madam Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2524, the Bolts
Ditch Access and Use Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jeff LaFave.
Sincerely,
Mark P. Hadley
(For Keith Hall).
Enclosure.
S. 2524--Bolts Ditch Access and Use Act
S. 2524 would require the Forest Service to provide a
special use authorization to the town of Minturn, Colorado, to
allow the town to manage and maintain a headgate used to divert
water to Bolts Lake. Based on analysis of information from the
Forest Service, CBO estimates that enacting the bill would
increase offsetting receipts from annual fees associated with
the authorization by about $150 a year; therefore, pay-as-you-
go procedures apply. Enacting the bill would not affect
revenues.
CBO estimates that enacting the bill would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2027.
S. 2524 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would benefit the town of Minturn, Colorado; it would give the
town easier access to the Bolts Ditch headgate so that it could
repair and maintain the town's water supply.
On July 11, 2016, CBO transmitted a cost estimate for H.R.
4510, the Bolts Ditch Access and Use Act, as ordered reported
by the House Committee on Natural Resources on June 15, 2016.
S. 2524 and H.R. 4510 are similar, and CBO's estimates of the
budgetary effects are the same.
The CBO staff contact for this estimate is Jeff LaFave. The
estimate was approved by Theresa Gullo, Assistant Director for
Budget Analysis.
regulatory impact evaluation
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 2524. The bill is not a regulatory measure in
the sense of imposing Government-established standards or
significant economic responsibilities on private individuals
and businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 2524, as ordered reported.
CONGRESSIONALLY DIRECTED SPENDING
S. 2524, as ordered reported, does not contain any
congressionally directed spending items, limited tax benefits,
or limited tariff benefits as defined in rule XLIV of the
Standing Rules of the Senate.
EXECUTIVE COMMUNICATIONS
The testimony provided by the U.S. Forest Service of the
U.S. Department of Agriculture at the May 17, 2016,
Subcommittee on Water and Power hearing on S. 2524 follows:
Statement of Leslie Weldon, Deputy Chief, National Forest System, U.S.
Forest Service, U.S. Department of Agriculture
Mr. Chairman and members of the Subcommittee, thank you for
the opportunity to present the views of the U.S. Department of
Agriculture (USDA) regarding S. 2902, Western Water Supply and
Planning Enhancement Act and S. 2524, Bolts Ditch Access and
Use Act. I am Leslie Weldon, Deputy Chief for the National
Forest System (NFS), USDA Forest Service.
s. 2902, title ii--protecting existing water rights
Water on National Forest System (NFS) lands is important
for many reasons, including fish and wildlife habitat, public
recreation, and providing a clean and plentiful supply of water
for downstream beneficial uses. Today, water from national
forests and grasslands contributes to the economic and
ecological vitality of rural and urban communities across the
nation, and those lands supply more than 60 million Americans
with clean drinking water.\1\
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\1\http://www.fs.fed.us/publications/policy-analysis/water.pdf.
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The purposes of the NFS were established by Congress in
1897 and were primarily focused on the protection of water and
watersheds and securing a continuous supply of timber. National
forests in the arid West typically occupy the very top of
critical watersheds, where water is stored in winter snow packs
and underground and slowly released through the spring and into
the summer. National forests in the East also occupy critical
watersheds, preserving water quality for downstream users and
moderating floods to protect downstream landowners.
Communities, farmers and ranchers, Native American Tribes, and
the general public depend on delivery of clean water from the
national forests and grasslands. Careful consideration of
activities that can have an adverse impact on waters and
watersheds on NFS lands is critical to downstream water users
and other inhabitants that can be impacted if these watersheds
are not protected.
USDA has not had time to fully analyze the effect of this
bill. USDA recognizes the fundamental role of States to
adjudicate water rights under state law. However, based on an
initial review, the bill appears to restrict USDA's ability to
protect water resources. USDA maintains its opposition to
provisions in any bill that would prohibit the Secretary of
Agriculture from regulating uses of NFS lands, or denying
authorizations for uses of NFS lands, because these
prohibitions have potential to adversely affect water resources
on those lands. It is USDA's position that the existing
statutory framework protects privately-held water rights in
balance with the ability of the Forest Service to protect water
resources. An example of the Forest Service work with
stakeholders within this framework is the recent publication of
final directives for ski areas operating on NFS lands under
term special use permits.
For the last 30 years, the Forest Service has required
ownership by the United States, either solely or in narrow
circumstances jointly with the permit holder, of water rights
developed on NFS lands to support operation of ski areas in
prior appropriation doctrine states. This policy was motivated
by the concern that if water rights used to support ski area
operations are severed from a ski area--for example, are sold
for other purposes--the Forest Service would lose the ability
to offer the area to the public for skiing.
On June 23, 2014, the Forest Service published a notice of
a proposed directive in the Federal Register to add riparian
and prior appropriation doctrine water clauses for ski area
permits to the Forest Service's Directive System. The final
clauses, published in the Federal Register on December 30,
2015, were the result of extensive public input, including
input from the ski industry and a wide range of other water
rights holders.
The final directive contains two ski area water clauses,
one for eastern States that follow the riparian doctrine for
water rights and one for western States that follow the prior
appropriation doctrine for water rights. Under a riparian
doctrine system, water rights are appurtenant to the land,
whereas under a prior appropriation doctrine system, water
rights may be severed from the land. Most ski areas on NFS
lands are in western states that adhere to the prior
appropriation doctrine.
The final directive does not require that ski area water
rights be acquired in the name of the United States. Instead,
the final directive focuses on assuring sufficiency of water to
operate ski areas on NFS lands. This modified approach for ski
area permits was determined to be appropriate given the
characteristics of ski area water rights and ski areas. Unlike
water rights diverted and used on NFS lands by holders of other
types of authorizations, ski area water rights may involve
long-term capital expenditures. In western States like Colorado
and New Mexico, holders of ski area permits may have to
purchase senior water rights at considerable expense to meet
current requirements for snowmaking to maintain viability.
Holders of ski area permits need to show the value of these
water rights as business assets, particularly during
refinancing or sale of a ski area. The value of these water
rights is commensurate with the significant investment in
privately owned improvements at ski areas. These investments
were recognized by Congress in enactment of the National Forest
Ski Area Permit Act, which authorizes permit terms of up to 40
years. 16 U.S.C. 497b(b)(1).
In addition to these financial issues, the land ownership
patterns at ski areas--particularly the larger ones--often
involve a mix of NFS and private lands inside and outside the
ski area permit boundary, which makes it difficult to implement
a policy of sole Federal ownership for ski area water rights.
Much of the development at ski areas is on private land at the
base of the mountains. As a result, water diverted and used on
NFS lands in the ski area permit boundary is sometimes used on
private land, either inside or outside the permit boundary.
With respect to sufficiency of water for ski area
operations, the final directive includes a definition for the
phrase, ``sufficient quantity of water to operate the ski
area,'' and clarifies when and how the holder must demonstrate
sufficiency of water to operate the permitted ski area and new
ski area water facilities; addresses availability of Federally
owned ski area water rights during the permit term; and
addresses availability of holder-owned ski area water rights
during the permit term and upon permit revocation or
termination.
At this time, ski industry representatives have indicated
support for the final directive, and members of Congress have
indicated appreciation for the agency's efforts to work
collaboratively on this solution. It is USDA's position that
additional legislation is not necessary to ensure protection of
privately-owned water rights.
USDA has not had adequate time to analyze the effects of
the bill on Forest Service groundwater policies. However, since
the Forest Service published its proposed groundwater directive
for notice and comment on May 6, 2014, the Agency has heard
from several States and other parties who are concerned about
the intent of and language in the proposal. By the end of the
comment period, the Agency had received 260 comments from
elected officials, States, Tribes, organizations, and
individuals from across the country. The House Natural
Resources Committee, as well as several States, asked the
Agency not to proceed with the proposed draft and to consult
with them before moving forward. The Forest Service has heard
these concerns and stopped work on the proposed groundwater
directive, and the Agency will not move forward with our
original proposal. Rather, we have committed to engaging with
States, Tribes, and citizens to fully understand concerns and
work collaboratively to address them before any future actions
or proposals would result. Should the Forest Service choose to
move forward with a new proposed directive in the future, it
would only be after engaging with States and making sure that
the Agency thoroughly understands their concerns in order to
address them. The Forest Service continues to consider
improvements to direction to Agency staff on groundwater to
maintain its stewardship responsibilities in a consistent,
credible, and transparent manner.
s. 2902, title i subtitle b--protecting critical water supply
watersheds
USDA has not had adequate time to analyze the effects of
this subtitle but upon initial review opposes NEPA provisions
that are beyond the scope of Farm Bill and HFRA authorities. As
a general matter, the Forest Service welcomes legislation that
incentivizes collaboration and expands the toolset we can use
to complete critical work on our nation's forests, without
overriding environmental laws.
While we support efforts to provide tools to support
improved forest management, capacity constraints due to the
present approach to budgeting for wildfire continue to hinder
further efforts to improve the health and resiliency of the
nation's forests. In fiscal year 1995, the Forest Service spent
16 percent of its budget on firefighting. Today the agency
spends more than half of its budget in fire management
activities and has seen a corresponding decline in non-fire
staffing of 39 percent since 1998. Notwithstanding these
challenges, through collaboration, the Forest Service has
consistently increased both the number of acres treated
annually to improve watershed resilience and timber
production--increasing timber harvest by 18 percent since 2008.
The frequency and intensity of wildfire, the rising cost of
assets needed to deploy against the spread of wildfire, and the
way that fire suppression is paid for constrain the agency's
capacity to realize additional gains through efficiencies and
partnerships alone. The most important action Congress can make
now in advancing the pace and scale of forest restoration is to
fix the fire funding problem.
The health of the national forests and the communities we
serve are our shared priority. The Forest Service is
accelerating restoration and management of the national forests
through innovative approaches and increased collaboration,
though it is clear that more work needs to be done, and we
welcome practical legislation that provides for expedient and
responsible efficiencies in the execution of that work.
USDA defers to Department of Interior on provisions that
most directly affect their agencies.
s. 2524--bolts ditch access and use act
S. 2524 seeks to resolve issues associated with the use and
maintenance of Bolts Ditch near the Town of Minturn, Colorado.
The headgate and approximately 450 lineal feet of the ditch are
located within the Holy Cross Wilderness on the White River
National Forest. The United States opposed two water rights
application cases associated with this ditch in 2006 and 2007.
Subsequently, the United States and the applicants reached a
stipulated agreement and settlement in both cases; where it was
agreed that the point of diversion would be removed from the
Holy Cross Wilderness unless (1) the point of diversion in the
Holy Cross Wilderness is specifically authorized by the
President, (2) the Holy Cross Wilderness boundary is altered to
exclude the point of diversion from the Wilderness area, or (3)
the point of diversion is confirmed by Congress to be
specifically included as a part of the authorization of the
Homestake Reservoir Project within the Holy Cross Wilderness
Area.
S. 2524 would direct the Secretary of Agriculture to issue
a special use permit to the Town of Minturn authorizing non-
motorized access to use and perform routine maintenance on the
Bolts Ditch headgate and 450 lineal feet of Bolts Ditch in
accordance with US Forest Service wilderness regulation. This
bill does not authorize new construction or reconstruction.
S. 2524 has the support of Eagle County, the Colorado River
District, and local and national wilderness advocacy
organizations.
The Department does not oppose S. 2524.
This concludes my remarks. I would be happy to answer any
questions. Thank you for the opportunity to testify.
CHANGES IN EXISTING LAW
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee notes that no
changes in existing law are made by the bill as ordered
reported.
[all]