IB10019: Western Water Resource Issues
July 27, 2001
Betsy A. Cody
Resources, Science, and Industry Division
CONTENTS
SUMMARY
Growing populations and changing values continue to place increasing demands on water supplies and river
systems,
resulting in water use and management conflicts throughout the country. Recent conflicts are particularly evident
in the
West, where the population is expected to increase 30% in the next 20-25 years and where agricultural needs are
often in
direct conflict with urban needs, as well as with water demand for threatened and endangered species, recreation,
and scenic
enjoyment.
Debate over western water resources revolves around the issue of how best to plan for and manage the use of
this
renewable, yet sometimes scarce and increasingly sought after, resource. Some observers advocate enhancing water
supplies, by building, for example, new storage or diversion projects, expanding old ones, or funding water
reclamation and
reuse facilities. Others emphasize the need to manage existing supplies more efficiently -- through conservation,
revision of
policies that encourage inefficient use of water, and establishment of market mechanisms to allocate water according
to
users' willingness to pay.
The 106th Congress re-authorized construction of two major water resource development projects,
a modified version of the
Animas-La Plata project in Southwest Colorado and a scaled-back version of the Garrison Diversion project, after
decades
of debate over how or whether the projects ought to be reauthorized. Additionally, ten title transfer bills were
enacted
during the 106th Congress as well as authorization for several rural water supply projects. Oversight
of ongoing agency
activities, such as project operations and restoration activities affecting the delta confluence of the San Joaquin and
Sacramento Rivers at the San Francisco Bay (Bay-Delta/CALFED), and the Colorado and Columbia Rivers were
also
discussed.
The 107th Congress is considering a number of bills on western water issues, including several title
transfer and wastewater
reclamation and reuse bills. Three bills addressing implementation of the CALFED program have been introduced.
Additionally, several oversight issues are likely to remain, including oversight of the Central Valley Project
Improvement
Act (e.g., contract renewals and water allocation), and management of the Columbia, Snake, and Colorado River
Systems.
The 107th Congress may also consider one or more Indian water rights settlement bills.
MOST RECENT DEVELOPMENTS
On July 26, 2001, the House Resources subcommittee on water and power held hearings on H.R. 1985
and H.R. 2404.
Both bills authorize certain water supply and ecosystem restoration activities associated with the California Bay-Delta
Restoration Program (Bay-Delta, or CALFED). On July 19, the Senate Energy & Natural Resources
subcommittee on
water and power held hearings on S. 976, which also addresses the CALFED program. The President has requested
$20
million for the CALFED program; however, neither the House- or Senate-passed versions of the Energy and Water
Development Appropriations bill (H.R. 2311) include funding for the program for FY2002. The Senate, however,
did
provide $40 million for Central Valley Project (California) activities which support the CALFED program. Relatedly,
the
appropriations bill, as reported from the House Appropriations Committee, included a provision directing the Corps
of
Engineers to include an "alternatives analysis" of a multipurpose Auburn Dam as part of the agency's long-term study
of
the American River (CA) watershed. This provision was struck by the Rules Committee prior to floor action on June
27.
The Senate did not address the Auburn Dam issue. (For more information on appropriations issues, see CRS Report RL31007, Appropriations for FY2002: Energy and Water Development.)
A controversy has erupted over the Bureau of Reclamation's April 6 announcement that no water would
be released to a
majority of farms in the Klamath Basin Project area (OR and CA) in order to protect endangered fish. The Bureau
based
the announcement on biological opinions developed by the Fish and Wildlife Service and the National Marine
Fisheries
Service. Congress included $20 million for assistance to eligible producers in the Klamath area in Section 2104 of
the
supplemental appropriations bill for FY2001 (H.R. 2216; P.L. 107-20), which became law July 24. A Senate
amendment
(S.Amdt. 899) to the Interior Appropriations bill (H.R. 2217), which would have prohibited the use of funds to carry
out
the Bureau's decision, was rejected on a 52-48 vote to table the amendment (Rollcall Vote No. 232, July 12, 2001).
The
amendment directed water flows to be managed as set forth under two earlier biological opinions until the Fish and
Wildlife Service took certain actions identified in a 1993 recovery plan for the Lost River and Shortnose suckers.
On July
24, the Bureau announced it would be able to deliver some water to farms and stay within the limits of the biological
opinion, due to higher water levels than anticipated.
Six bills have been introduced to authorize new water reuse projects under the Bureau of Reclamation's
Title 16 program
(H.R. 131, H.R. 685, H.R. 1245, H.R. 1251, H.R. 2115, and S. 491). A bill to amend the Reclamation Reform Act
of 1982
to clarify acreage limitations has also been introduced (S. 116).
BACKGROUND AND ANALYSIS
For more than a century, the federal government has been involved in developing water projects for a variety
of purposes
including flood control, navigation, power generation, and irrigation, which facilitated settlement of the West. Most
major
water projects, such as large dams and diversions, were constructed by either the Bureau of Reclamation (Bureau),
in the
Department of the Interior, or the U.S. Army Corps of Engineers (Corps), in the Department of Defense.
Traditionally, the
Corps has built and maintained projects designed primarily for flood control, navigation, and power generation,
whereas
Bureau projects were designed primarily to enhance storage capacity and provide reliable supplies of water for
irrigation and
some municipal and industrial uses.
The Bureau operates nearly 350 storage reservoirs and approximately 250 diversion dams providing water to
approximately
9 million acres of farmland and nearly 31 million people in 17 western states. Most Bureau water supply projects
were built
under authority granted to the Secretary of the Interior in the Reclamation Act of 1902, or through individual project
authorizations. The original intent of the Reclamation Act was to encourage families to settle and farm lands in the
arid and
semi-arid West where precipitation is typically 30% to 50% of what it is in the East.
For decades, the federal government largely took a structural approach to flood control, floodplain management,
and water
supply development. While the Corps was active in building dams and levees throughout the country, channeling
meandering rivers and streams to move floodwaters quickly and efficiently "out of harms way," the Bureau was
building
some of the largest water supply projects in the world. The Corps and the Bureau consequently are substantially
involved in
the management of some of the country's largest river systems, including the Colorado, the Columbia, the Missouri,
and the
Mississippi.
Construction of reclamation projects expanded greatly during the 1930s and 1940s, and continued rapidly until
the late
1960s and early 1970s. By the late 1960s, a combination of changing national priorities and local needs, increasing
construction costs, and the development of most prime locations for water works contributed to a decline in new
construction of major water works nationwide. Water supply for traditional off-stream uses -- such as municipal,
industrial,
and agricultural uses -- was increasingly in direct competition with a growing interest in allocating water to maintain
or
enhance in-stream uses, such as recreation, scenic enjoyment, and fisheries and wildlife habitat.
During the 1970s, construction of new projects slowed to a handful of major works, culminating in the
completion of the
Tellico dam project in Tennessee and the Tennessee Tombigbee waterway through Alabama and Mississippi. These
projects
pitted conservation and environmental groups, as well as some fiscal conservatives, against the traditional water
resources
development community. New on the scene was the National Environmental Policy Act of 1970 (NEPA), which
for the first
time required an assessment of the environmental effects of federal projects, and provided for more public scrutiny
of such
projects. In 1978, President Carter announced that future federal water policy would focus on improving water
resources
management, constructing only projects that were economically viable, cooperating with state and local entities, and
sustaining environmental quality. The Reagan Administration continued to oppose large projects, contending they
were
fiscally unsound. New construction of federally financed water projects virtually stopped until Congress passed the
Water
Resources Development Act (WRDA) of 1986, which addressed Corps projects and policies. Federal water research
and
planning activities were also reduced during the early years of the Reagan Administration, which felt that states
should have
a greater role in carrying out such activities. Consistent with this outlook, President Reagan abolished the Water
Resources
Council, an umbrella agency established in 1968 to coordinate federal water policy and to assess the status of the
nation's
water resource and development needs.
Congress subsequently scaled back several remaining authorized projects, changed repayment and cost-share
structures, and
passed laws that altered project operations and water delivery programs. For example, in 1982 Congress passed the
Reclamation Reform Act, which altered the Bureau's water pricing policies for some users. The Act revised acreage
limitation requirements and charges for water received to irrigate leased lands. Congress soon increased local
entities' to
share construction costs for Corps water resource projects with passage of the 1986 WRDA.
Over the last decade, both the Corps and the Bureau have undertaken projects or programs aimed at mitigating
or
preventing environmental degradation due in part to the construction and operation of large water projects. The
agencies
have pursued these actions through administrative efforts and congressional mandates, as well as in response to court
actions. Currently, the federal government is involved in several restoration initiatives, including the Florida
Everglades, the
California Bay-Delta, and the Columbia and Snake River basins in the Pacific Northwest. These initiatives have been
quite
controversial. Each involves many stakeholders at the local and regional level (water users, landowners, farmers,
commercial and sports fishermen, urban water suppliers and users, navigational interests, hydropower customers and
providers, recreationists, and environmentalists) and have been years in the making. At the same time, demand for
traditional or new water resource projects continues -- particularly for ways to augment local water supplies, maintain
or
improve navigation, and control or prevent floods and shoreline erosion. In addition, demand from some sectors for
a few
remaining large water supply projects continues (e.g., the Animas-La Plata Project (CO), the Garrison Diversion Unit
(ND),
and the Auburn Dam (CA)).
Legislative and Oversight Issues
The 107th Congress is considering several water resource issues in legislation ranging from
transferring title of federal
facilities to local project users, to individual project authorizations and agency policy changes (e.g., reoperation of
water
project facilities in the Central Valley of California and in the Colorado and Columbia River Basins). Oversight of
ongoing
agency activities, such as water management in the Klamath River Basin, implementation of the Central Valley
Project Act
(P.L. 102-575, Title 34), and authorization of a program to carry out activities affecting the delta confluence of the
San
Joaquin and Sacramento Rivers at the San Francisco Bay (Bay-Delta/CALFED) is also being discussed. Funding
and policy
direction through the annual Energy and Water Appropriations bill also influences the construction and operation
of
projects. (See CRS Report RL31007, Appropriations for FY2002: Energy and Water Development.)
In particular,
appropriations language concerning the American River (i.e., flood control plans and study of a multipurpose Auburn
Dam),
funding (or lack thereof) for the CALFED program, and funding for the Animas-La Plata and Garrison projects may
also be
debated.
Klamath River Basin
On April 6, 2001, the Bureau announced it would not release water from Upper Klamath Lake to approximately
200,000
acres of farms and pasturelands within the roughly 235,000-acre Klamath project service area. The area straddles
the
Oregon/California border and has been the site of increasingly complex water management issues involving several
tribes,
fishers, farmers, environmentalists, and recreationists. The Bureau based its announcement on two biological
opinions
issued under the Endangered Species Act (ESA) by the U.S. Fish and Wildlife Service (FWS) and the National
Marine
Fisheries Service (NMFS). The action was taken specifically to protect certain fish species listed under the Act (two
sucker
species and a coho salmon run), although the FWS opinion also addressed the effect of the project's operation on
bald
eagles. The Klamath area has experienced record low precipitation and according to the Bureau's April 6
announcement,
the current year was "expected to be one of the driest years since the Project began in 1907...." Operation of the
project
even in non-drought years is controversial because of the many demands for water throughout the Klamath River
basin. The
Bureau's announcement was generally supported by fishers who depend on lake storage and seasonal flows to
support
commercial and recreational fishing, tribes who assert priority water rights, and environmentalists. However,
farmers and
many in the surrounding community who also depend on those waters were, and remain, opposed to the action.
Since the Bureau's announcement, farmers have been desperate to release water from the lake and on several
occasions have
pried open Bureau facilities to release water into irrigation canals. According to Bureau documents the project
serves an
estimated 1,400 farms (nearly 1,000 full-time farms) covering 233,625 acres. Approximately 90% of the project
lands are
served by Upper Klamath Lake; other irrigated areas are served by two different reserviors. Hundreds of farms that
normally receive water from the Upper Klamath Lake were not able to plant crops, others have seen crops and/or
pasture go
dry, and some report that their wells have gone dry. The lack of water being released from the Lake has also
eliminated
water supplies to wildlife areas below the lake, including a National Wildlife Refuge, potentially harming bald eagles
and
migratory waterfowl that frequent the area. Legal challenges of the Bureau's decision have been filed, as well as a
petition
to the Secretary of the Interior to convene the Endangered Species Committee (known as the "God Squad") to
review the
decision for a possible exemption from the penalties of the ESA. In mid-July, the Secretary announced her decision
to not
convene the committee stating that the petitioner (the Pacific Legal Foundation) was not eligible under the ESA to
apply for
an exemption.
Congress has reacted to the controversy in a number of ways. The Senate Energy and Natural Resources
Committee held
oversight hearings on March 21, 2001, just prior to the Bureau's announcement, and the House Resources Committee
held
field hearings on June 16. Congress has provided $20 million to eligible farmers in the basin as part of the FY2001
supplemental approriations bill (H.R. 2216, ยง2104; P.L. 107-20). An amendment to the Commerce, Justice, State
appropriations bill to provide $200 million to farmers to compensate for the loss of water was rejected on a point
of order
July 18 (H.Amdt. 178 to H.R. 2500 (amendment number 1 as printed in the Congressional Record)). Additionally,
a Senate
amendment (S.Amdt. 899) to the FY2002 Interior Appropriations bill (H.R. 2217), which would have prohibited
the use of
funds to manage water flows under the most recent biological opinions, was rejected on a 52-48 vote to table the
amendment (Rollcall Vote No. 232, July 12, 2001). The latter amendment would have directed water flows to be
managed
as set forth under two earlier biological opinions until the Fish and Wildlife Service took certain actions identified
in a 1993
recovery plan for the Lost River and Shortnose suckers. A stand alone bill (H.R. 2389) has also been introduced
to
compensate individuals in the Klamath area for their economic losses due to the Bureau's decision.
On July 24, the Bureau announced it would be able to release some water from the lake and stay within the limits
of the
biological opinions, due to higher water levels than anticipated. While the release of approximately 75,000 acre-feet
of
water is expected to provide some water to farms and pasture land, many farmers in the area view the release as "too
little
too late." Many farmers did not plant crops prior to the Bureau's announcement and it is now too late in the growing
season to plant most crops. However, some who do have crops in the ground and those who have pastureland may
benefit
from the latest action. It is also hoped by the Bureau that the release may help replenish dwindling groundwater
supplies
which have resulted in some wells going dry. Debate over how and if area farmers and others dependent on the
agricultural
economy of the area ought to be compensated is likely to continue. Some have called for a re-examination of water
uses in
the basin, including the possibility of retiring farm lands from production. The status of water rights throughout the
basin is
the subject of an ongoing water rights adjudication process at the state level.
Title Transfer
Several bills have been introduced that would transfer the ownership (title) of individual Bureau of Reclamation
water
supply projects to current water users. These "title transfer" bills vary depending on the circumstances of each
project;
however, some general issues apply. Transfer issues range from questions regarding a project's worth and valuation
to legal
and policy questions regarding the transfer's affect on other area water users, fish and wildlife, future project
operations, and
future management of lands associated with the project. So far, one title transfer bill has been introduced in the
107th
Congress: Lower Yellowstone (H.R. 2202).
The Clinton Administration first actively negotiated title transfer on a voluntary basis with interested
water/irrigation
districts beginning in 1995 when it announced a policy "framework" to establish a process for negotiating title
transfers.
While some districts pursued the Administration's framework process, others sought direct legislative authority for
transfers.
In general, Congress must authorize transfer of title to reclamation facilities (32 Stat. 389; 43 USC 498), regardless
of the
process used to get to a transfer agreement.
The 106th Congress enacted 10 title transfer bills for projects in eight states: Wellton-Mohawk,
AZ (P.L. 106-221); Clear
Creek, CA (P.L. 106-566, Title IV), Sugar Pine, CA (P.L. 106-566, Title V), and Sly Park, CA (P.L. 106-377,
Division B);
Northern Colorado Conservancy District, CO (P.L. 106-367); Nampa-Meridian, ID (P.L. 106-466); Middle Loup,
NE ( P.L. 106-366); Griffith, NV (P.L. 106-249); Carlsbad, NM (P.L. 106-220); and Palmetto Bend, TX (P.L. 106-512).
Two title transfer bills were enacted at the end of the 105th Congress: 1) transfer of certain
Minidoka project facilities to the
Burley Irrigation District, ID (S. 538, P.L. 105-351); and, 2) transfer of the Canadian River Project, TX,
pending prepayment of the district's debt on the project (H.R. 3687, P.L. 105-316). The Burley title transfer
was completed on February 24, 2000, and the Canadian River transfer was completed in May, 1999. (Another title
transfer
bill was enacted during the first session of the 105th Congress -- Oroville-Tonasket (H.R. 412,
P.L. 105-9);
however, this transfer is somewhat different from the others in that it was developed in response to a settlement
agreement
between the Bureau and an irrigation district in Washington State.)
A central issue with title transfer legislation is whether the transfers should be mandated or simply authorized.
Some argue
that the transfers are "minor land transactions" and advocate that Congress direct they take place within a certain
time
period. Others strongly disagree. Debate mostly centers on the role the National Environmental Policy Act (NEPA)
would
and should play prior to a project's transfer. Environmentalists generally fear that a directed transfer with or without
specific NEPA language would effectively allow the Bureau and project transfer proponents to avoid assessing and/or
mitigating environmental effects of the proposed transfers. Conversely, project proponents have pursued directed
transfers
to avoid what they view are unnecessary delays and to ensure the transfers take place. For example, some title
transfer
legislation directs the transfer to occur "in accordance with all applicable law," while other legislation directs the
transfer
take place pursuant to an agreement already negotiated with project water users. Two laws recently enacted (P.L. 106-220
and P.L. 106-221) authorize the transfers; whereas, others (P.L. 106-249, P.L. 106-377, and P.L. 106-512) direct
the
transfer.
Other discussions center on the role the Endangered Species Act (ESA) might play on project operations after
the transfer.
One of the main concerns for environmentalists appears to be that once the project is out of federal ownership there
will no
longer be a legal obligation for the district to consult with other federal entities on the impact of project operations
on
threatened or endangered species as is now required of the Bureau under Section 7 of the ESA. Additionally,
environmentalists and others fear that once out of federal hands there will be little if any public scrutiny of project
operations. Conversely, project proponents are likely to favor private operations.
Controversies regarding the application of NEPA and ESA to project title transfers, as well as the question of
whether to
direct or authorize the transfers, are likely to remain at issue. Other issues involve concerns about the overall costs
of the
transfers, who should pay for costs associated with the transfer, effects on third parties, liability, the valuation of
project
facilities and lands (and treatment of mineral or other receipts), and financial compensation for the projects. Related
to
many of the issues outlined above is the question of how these projects might be operated in the future. Although
the House
Resources Committee has noted it contemplates that facilities would be maintained and managed without significant
changes, and in some cases bill language states the projects shall be managed for the purposes for which the project
was
authorized, transfer bills approved by the committees have been silent on enforcement issues and in describing what
might
occur if the new owners change operations (other than they must comply with all applicable laws at that time). Little
has
been said, for example, about what might occur if new project owners decided to partition project lands for new
homes and
convert irrigation water to domestic use.
Project Construction
Animas-La Plata. The 106th Congress passed the Colorado Ute
Settlement Act Amendments of 2000,
which reauthorizes construction of the Animas-La Plata Project (ALP) -- a multipurpose water supply project in
southwestern Colorado and northwestern New Mexico (P.L. 106-554). The Act amends the Colorado Ute Indian
Water
Rights Settlement Act of 1988, which was enacted to implement provisions of an agreement among Colorado Ute
Indian
tribes, non-Indian water users, the State of Colorado, and the federal government on how to satisfy outstanding tribal
water
claims.
As authorized in 1988, the ALP would have stored water for tribal and non-tribal use in the Ridges Basin
Reservoir and
eventually provided distribution facilities for Indian and non-Indian irrigation and municipal and industrial (M&I)
use.
Because of controversies surrounding construction of the ALP as authorized (including questions of compliance with
the
ESA, the Clean Water Act, and NEPA), the 105th Congress considered authorizing a smaller,
scaled-down version of the
project - known as "ALP-Lite" (S. 1771 and H.R. 3478). Both the House and the Senate held
hearings on the smaller Animas proposal, but neither bill received floor consideration.
Two new versions of the project were proposed in the 106th Congress: H.R. 3112, the
Colorado Ute
Settlement Act Amendments of 1999 and S. 2508. These bills proposed a smaller project than "ALP-Lite"
(originally estimated to cost $170 million) and aimed to settle the water rights claims of the Colorado Ute Indian
tribes. The
bills proposed construction of a reservoir, pumping plant, and other facilities capable of diverting and storing water
for an
average annual depletion of 57,100 acre-feet - the same depletion as proposed in "ALP-Lite." Water would be used
for
M&I purposes only; however, the language does not explicitly deauthorize construction of irrigation facilities.
On
December 15, S. 2508 (as amended) was included in H.R. 4577, the consolidated FY2001
appropriations act, which was signed by the President December 21 (P.L. 106-554).
Estimates of total costs for the project authorized by S. 2508 range from roughly $230 million to $340
million,
depending upon if funds already spent (i.e. sunk costs) and other factors (such as repayment charges)
are counted. The
Bureau of Reclamation estimates the total federal share of the project would be approximately $305 million, including
sunk
costs. Non-Indian water users would pay $38.7 million under the cost allocation established for S. 2508 as
passed the Senate, according to the Bureau.
While the scaled back authorizations continue to receive local and tribal support (approximately 1/3 of the project
water
would go to non-tribal municipal and industrial uses), environmental and taxpayer groups continue to oppose the
project.
Consequently, appropriations for the project may be subject to debate during the 107th Congress.
Auburn Dam & American River Flood Control. On June 26, the House
Appropriations Committee
reported H.R. 2311, which included language directing the Corps of Engineers to include an "alternatives analysis"
of a
multipurpose Auburn Dam as part of the agency's long-term study of the American River (CA) watershed (Section
103) -
language which could have extended on-going planning to put into place operational modification for downstream
flood
control. Section 103 was struck by the Rules Committee (H.Rept. 107-114) prior to floor debate. Section 202
regarding
flood release reimbursements at Folsum Dam was adopted June 28.
Congress has repeatedly debated complex measures to increase flood protection along the American River in
California, in
large part to protect the City of Sacramento. Proposals have included strengthening existing levees and flood
warning
systems, changing the operation of an existing dam on the river, and building a large new multi-purpose dam near
Auburn.
Debates over the Auburn Dam and other water supply proposals for the area have been particularly contentious -
most
recently during consideration of the Water Resources Development Act of 1999. Congress first authorized
construction of
the Auburn Dam on the North Fork of the American River in 1965. Construction of the project was delayed after
an
earthquake in 1975. Due to the delay and increasing environmental and financial concerns, construction did not
resume.
The Corps, the state Reclamation Board, and the Sacramento Area Flood Control Agency, proceeded to study flood
control
options and in 1996 identified three alternatives for flood control, including construction of a 508 foot-high detention
dam.
The 105th and 106th Congresses debated various elements of the study and ultimately
rejected authorization to construct a
dam on or near the Auburn site, but authorized appropriations for several flood protection activities within the 1999
WRDA
(P.L. 106-53).
Environmentalists generally oppose construction of a high dam at or near the Auburn site, while others interested
in
developing water supplies for the area have continued to support a multi-purpose Auburn dam. Others weighing in
on the
debate have advocated strengthening levees and taking other measures - funded in the FY2002 Energy and Water
Appropriations bill, H.R. 2311 - to increase flood protection for the City of Sacramento, in lieu of a multi-purpose
dam.
California Bay-Delta/CALFED. The authorization of an annual appropriation
of $143 million for
implementing portions of an ecosystem protection plan and long-term restoration projects for the San Francisco
Bay/San
Joaquin and Sacramento rivers delta (Bay-Delta, also known as the CALFED program) expired September 30, 2000.
Appropriators have been reluctant to fund the program absent an explicit authorization from the authorizing
committees; no
funds were included in the Energy and Water Development Appropriations bill for FY2001, and so far, none have
been
included for the program for FY2002, despite the President's request of $20 million and a Senate provision providing
$40
million for CVP projects supporting the program.
Two bills authorizing appropriations for the program were introduced on May 24 and May 25, 2001 (H.R. 1985
and S. 796,
respectively). Both bills would authorize certain activities outlined in an August 2000 record of decision (ROD) on
the
CALFED program; however, neither bill appears to authorize implementation of the ROD in its entirety.
Additionally, while
similar, the bills differ in several respects, including approaches to establishing a "governance structure" for the
program,
authorization of several water supply projects, study and report requirements, use of water from an Environmental
Water
Account, and water supply "assurances" to certain water users south of the Delta. A third bill, H.R. 2404, was
introduced
June 28, 2001. The bill would authorize implementation of certain aspects of the ROD, as well as authorize
feasibility
studies for certain water supply projects, while authorizing certain other water recycling and reuse projects.
The initial authorization for CALFED funding (P.L. 104-208, Division E) came on the heels of a 1994 agreement
among
state and federal agencies, urban, agricultural and environmental interests to protect the Bay-Delta while satisfying
key
needs of various interests. The process was initiated to address critical water quality/supply and fish and wildlife
habitat
issues in the 738,000 acre Bay-Delta estuary and has grown into a comprehensive effort to address long-term water
supply/quality issues for most of the state. The primary or "lead" federal agencies involved include: the Bureau of
Reclamation and the Fish and Wildlife Service, both within the Department of the Interior; the Environmental
Protection
Agency; the National Marine Fisheries Service (Department of Commerce); the U.S. Army Corps of Engineers
(Department
of Defense); and the Natural Resources Conservation Service (Department of Agriculture). State agencies include:
the
Resources Agency (Department of Water Resources, Department of Fish and Game, Reclamation Board, and Delta
Protection Commission); the California Environmental Protection Agency (including the State Water Resources
Control
Board); and the Department of Food and Agriculture.
To date, federal funding has been provided to provide fish screens for existing water diversions, pollution control
measures,
and management of fish, riparian and estuarine habitat. The funding has been in addition to funds already authorized
for
projects and programs under the Central Valley Project Improvement Act (Title 34, P.L. 102-575) and other
previously
authorized projects and programs.
Garrison Diversion Unit (Dakota Water Resources Act). Construction of the
Garrison Diversion Unit
in North Dakota was authorized in 1965 as part of the Pick-Sloan Missouri Basin Program, which authorized
numerous
multipurpose dams and reservoirs along the Missouri River and its tributaries. (1) The construction authorization for the unit
envisioned pumping water from Lake Sakakawea (behind Garrison dam, completed in 1956) into another lake and
then
releasing the water into a 74-mile canal, providing irrigation water through various distribution facilities to
approximately
250,000 acres. Over the years it was determined that it was not feasible to irrigate much of the land originally
designated for
irrigation. Additionally, environmental and economic concerns were raised about the project as authorized.
To resolve these issues and reassess the implementation of the project as authorized, Congress in 1984
established the
Garrison Diversion Unit Commission (P.L. 98-360). The Commission issued its final report on December 20, 1984,
and
Congress in 1986 passed the Garrison Reformulation Act (P.L. 99-294), authorizing most of the Garrison
Commission's
recommendations, including reducing the irrigation component to roughly 130,000 acres (113,000 of which were
to be
non-Indian lands); expanding funding for municipal, rural, and industrial (MR&I) water service; constructing
a water
treatment facility; and mitigating certain environmental impacts. Further analysis of certain project facilities deferred
construction of some facilities and in 1990 the Bush Administration formed a "Secretarial Task Group" to deal with
outstanding funding and construction issues. The task group recommended that only project features that were
consistent
with contemporary water needs and national priorities should be funded (i.e. completion of Indian
irrigation and MR&I
facilities), and recommended no future funding for non-Indian irrigation facilities.
Frustrated with the pace of construction of facilities under the 1986 reformulation, and concerned about the
changing
priorities at the state level, North Dakota has repeatedly pushed for another reformulation of the Garrison
authorization.
The Dakota Water Resources Act of 1999, a modified version of what was introduced in the 105th
Congress, was introduced
in the House and Senate on March 16, 1999 (H.R. 1137 and S. 623), and again in the House on
September 22, 1999 (H.R. 2918). These bills generally proposed deauthorizing much of the irrigation
development originally authorized and instead would authorize construction and use of existing facilities for
MR&I use
throughout the state.
On October 13, 2000, the Senate passed S. 623 (amended) and on December 15, the bill was included in
the
FY2001 Consolidated Appropriations Act, signed by the President on December 21, 2000 (P.L. 106-554). The final
version
includes language generally addressing the concerns of downstream water users and others, particularly federal
funding
levels, environmental impacts, and the feasibility of moving water from the Missouri River Basin into the Red River
Valley,
which flows north to Canada. However, despite these changes, the Canadian Government, the Great Lakes
Commission,
the Attorney General of Missouri, and national environmental groups had continued to oppose the bill as passed the
Senate
in October. Specifically at issue is the possible interbasin transfer of Missouri River water. While the bill authorizes
construction of numerous facilities, construction of a project that would carry water from the Missouri Basin into
the
Hudson Bay drainage would need future authorization from Congress. Project proponents argue the need for future
authorization should satisfy Canadian and downstream concerns, while project opponents argue that it will be difficult
for a
future Congress to deny such authorization and funding if investment has already been made in constructing key
facilities in
the western and eastern parts of the State.
Again, because of the controversy, appropriations for the project may be at issue during the 107th
Congress.
Rural Water Supply Projects. Beginning with authorization of the WEB Rural
Water Supply Act in
1980 (P.L. 96-355), Congress has authorized the Bureau to fund the construction of several "rural water supply"
projects
and oversee construction of another, with funding coming from the Department of Agriculture. These projects have
individual authorizations, but all are generally aimed at providing water for municipal and industrial (M&I) uses
in rural
areas -- a departure from the historical mission of providing water for irrigation, with M&I use as an incidental
project
purpose. To date, no rural water supply bills have been introduced in the 107th Congress.
Three rural water supply project authorizations were enacted during the 106th Congress: Lewis
and Clark (P.L. 106-246,
Title IV); Perkins County (P.L. 106-136); and Fort Peck (P.L. 106-382). The 105th Congress
authorized the Fall River
project (P.L. 105-352); however, it gives responsibility to the Secretary of Agriculture for the project, while
authorizing the
Bureau to oversee construction.
These projects have been somewhat controversial, largely due to the relatively large share of federal construction
costs
proposed. Typically, the Bureau requires that people benefitting from a reclamation project repay 100% of the
construction
costs (plus interest) attributed to M&I project purposes. For example, if a project's purpose is 50% irrigation,
30% flood
control and 20% M&I, M&I water users would pay (reimburse the federal government) for 100% of their
20% of
construction costs of the project, plus interest (the federal cost share would be 0% of the 20% cost allocated to
M&I
purposes). In contrast, the federal cost share (non-reimbursable component) for the Bureau's "rural water supply"
projects
typically ranges from 75% to 85%. Some have raised concerns that these projects have the potential to overwhelm
the
Bureau's budget. For example, the federal contribution to the Lewis and Clark project is estimated at $214 million.
For
perspective, the Bureau's budget ranges in the neighborhood of approximately $800 million (net current authority)
annually.
Prior to the recent authorizations, the Bureau had approximately 60 authorized projects in various stages of
construction
with projected construction costs for completion of $4.9 billion. Outstanding construction authorizations now total
approximately $7 billion.
Some also fear that these projects are outside the realm of those historically constructed by the Bureau and
believe they
would be better handled via other existing federal water quality or water supply programs, such as the USDA's Rural
Utility
Service or the EPA's state revolving loan fund. However, as designed, the projects do not fit EPA or USDA criteria,
and
thus project proponents have looked to the Bureau for funding. An additional concern with the Lewis and Clark
legislation
was that it would authorize projects outside of the Bureau of Reclamation's historic service area (outside the 17
western
states). For information on other federal water supply programs, see CRS Report RL30478 (pdf).
Title 16 Projects. Title 16 of P.L. 102-575 directs the Secretary of the Interior
to develop a program
to "investigate and identify" opportunities to reclaim and reuse wastewater and naturally impaired ground and surface
water.
The original Act authorized construction of 5 reclamation wastewater projects and 6 wastewater and groundwater
recycling/reclamation studies. The Act was amended in 1996 (P.L. 104-206) to authorize another 18 construction
projects
and an additional study, and again in 1998 (P.L. 105-321) and 2000 (P.L. 106-554, Division B, Section 106) to
authorize
two more construction projects. Water reclaimed via Title 16 projects may be used for M&I water supply
(non-potable
purposes only), irrigation supply, groundwater recharge, fish and wildlife enhancement, or outdoor recreation.
The general purpose of Title 16 projects is to provide supplemental water supplies by recycling/reusing
agricultural drainage
water, wastewater, brackish surface and groundwater, and other sources of contaminated water. Projects may be
permanent
or for demonstration purposes. Project construction costs are shared by a local project sponsor or sponsors and the
federal
government. The federal share is generally limited to a maximum of 25% of total project costs and in most cases
the federal
share is non-reimbursable, resulting in a de facto grant to the local project sponsor(s). Congress limited
the federal share of
individual projects to $20 million beginning in 1996 (P.L. 104-266). The federal share of feasibility studies is limited
to 50%
of the total, except in cases of "financial hardship"; however, the federal share must be reimbursed. The Secretary
may also
accept in-kind services that are determined to positively contribute to the study.
The Bureau's water reclamation and wastewater recycling program is limited to projects and studies in the 17
western states
authorized in the Reclamation Act of 1902, as amended (32 Stat. 388), unless specifically authorized by Congress. (2)
Authorized recipients of program assistance include "legally organized non-federal entities" (e.g., irrigation districts,
water
districts, and municipalities). Construction funding is generally limited to projects where: 1) an appraisal
investigation and
feasibility study have been completed and approved by the Secretary; 2) the Secretary has determined the project
sponsor is
capable of funding the non-federal share of project costs; and 3) the local sponsor has entered a cost-share
agreement
committing to funding its share.
The Bureau noted in its FY2001 budget justifications that it would focus its work on projects that are: "1)
economically
justified and environmentally acceptable in a watershed context, (2) not eligible for funding under another Federal
program,
and (3) directly address Administration priorities for the Reclamation program such as providing instream flows for
federally
endangered or threatened species, meeting the needs of Native American communities, and meeting international
commitments." The FY2002 justifications note the Bureau's primary focus will be on ongoing projects for which
the agency
has requested funds in prior years. Unlike other water supply or wastewater treatment programs run by the EPA,
USDA, or
HUD, the Bureau's Title 16 projects are statutorily authorized projects. While the Bureau has the authority to
undertake
general appraisal investigations and feasibility studies, it has interpreted the Title 16 language as requiring specific
congressional authorization for the construction of new projects. The total program appropriation for FY2001 is
$30.6
million.
LEGISLATION
H.R. 131 (Miller, Gary)
Amends the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of
the Interior to
participate in the Inland Empire regional water recycling project, to authorize the Secretary to carry out a program
to assist
agencies in projects to construct regional brine lines in California, and to authorize the Secretary to participate in the
Lower
Chino Dairy Area desalination demonstration and reclamation project. Introduced Jan. 3, 2001; referred to
Committee on
Resources. Referred to the Subcommittee on Water and Power February 15, 2001.
H.R. 685 (Miller, George)
Amends the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize certain projects
in California
for the use or reuse of reclaimed water and for the design and construction of demonstration and permanent facilities
for that
purpose, and for other purposes. Introduced February 14, 2001; referred to Committee on Resources. Referred to
the
Subcommittee on Water and Power February 23, 2001.
H.R. 1245 (McKeon)
Amends the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of
the Interior to
participate in the design, planning, and construction of a project to reclaim and reuse wastewater within and outside
of the
service area of the Castaic Lake Water Agency, California. Introduced April 2, 2001; referred to the House
Committee on
Resources.
H.R. 1251 (Napolitano)
Amends the Reclamation Projects Authorization and Adjustment Act of 1992 to increase the federal share of
the costs of the
San Gabriel Basin demonstration project. Introduced March 27, 2001; referred to Committee on Resources.
Referred to
the Subcommittee on Water and Power April 2, 2001.
H.R. 1261 (Horn)
Amends the Reclamation Projects Authorization and Adjustment Act of 1992 to impose a limit on the federal
share of the
costs of the Long Beach Desalinization Research and Development Project in Los Angeles County, California.
Introduced
April 2, 2001; referred to the Committee on Resources.
H.R. 1729 (Sanchez)
Amends the Reclamation Wastewater and Groundwater Study and Facilities Act to increase the ceiling on the
Federal share
of the costs of phase I of the Orange County, California, Regional Water Reclamation Project. Introduced May 8,
2001;
referred to Committee on Resources.
H.R. 1985 (Calvert)
Authorizes funding through the Secretary of the Interior for the implementation of a comprehensive program
in California to
achieve increased water yield and environmental benefits, as well as improved water system reliability, water quality,
water
use efficiency, watershed management, water transfers, and levee protection. Introduced May 24, 2001; referred
to
Committee on Resources and in addition to the Committee on Transportation and Infrastructure, for a period to be
subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the
jurisdiction of
the committee concerned. Referred to the House Resources Subcommittee on Water and Power June 6; referred
to the
House Transportation and Infrastructure Subcommittee on Water Resources and Environment May 25. (The bill
would
authorize certain CALFED program operations.) Subcommittee on Water and Power held hearings July 26.
H.R. 2115 (Smith, Adam)
Amends the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of
the Interior to
participate in the design, planning, and construction of a project to reclaim and reuse wastewater within and outside
of the
service area of the Lakehaven Utility District, Washington. Introduced June 18, 2001; referred to Committee on
Resources.
H.R. 2202 (Rehberg)
Conveys the Lower Yellowstone Irrigation Project, the Savage Unit of the Pick-Sloan Missouri Basin Program,
and the
Intake Irrigation Project to the pertinent irrigation districts. Introduced June 14, 2001; referred to Committee on
Resources.
Referred to the subcommittee on Water and Power on June 20.
H.R. 2389 (Herger)
Provides for the compensation of persons of the Klamath Basin who were economically harmed as a result of
the
implementation of the Endangered Species Act of 1973. Introduced June 28, 2001; referred to the House Committee
on the
Judiciary. Referred to Subcommittee on Immigration and Claims on July 16, 2001.
H.R. 2404 (Miller, George)
California Water Quality and Reliability Act of 2001. Authorizes federal agency participation and financial
assistance for
programs and for infrastructure improvements for the purposes of increasing deliverable water supplies, conserving
water
and energy, restoring ecosystems, and enhancing environmental quality in the State of California, and for other
purposes.
Introduced June 28, 2001: referred to Committee on Resources. Referred to the subcommittee on Water and Power
July
10. Subcommittee hearings held July 26.
S. 116 (Feingold)
Amends the Reclamation Reform Act of 1982 to clarify the acreage limitations and incorporate a means test for
certain farm
operations, and for other purposes. Introduced January 22, 2001; referred to Committee on Energy and Natural
Resources.
(The bill would authorize certain CALFED operations.)
S. 491 (Campbell)
Amends the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of
the Interior to
participate in the design, planning, and construction of the Denver Water Reuse project. Introduced March 8, 2001;
referred to Committee on Energy and Natural Resources. Placed on Senate Legislative Calendar under General
Orders June
5; Calendar No. 60.
S. 976 (Feinstein)
Provides authorization and funding for the enhancement of ecosystems, water supply, and water quality of the
State of
California. Introduced May 25, 2001; referred to Energy and Natural Resources Committee. Subcommittee on
Water and
Power held hearings June 19, 2001.
FOR ADDITIONAL READING
Beck, Robert E., ed. Waters and Water Rights. Charlottesville, VA: The Michie Co., 1991.
Getches, David H. Water Law in a Nutshell, 2nd ed. St. Paul: West Publishing Co., 1990.
National Research Council, Committee on the Future of Irrigation in the Face of Competing Demands. A
New Era for
Irrigation. Washington, DC: National Academy Press, 1996.
----. Committee on Western Water Management. Water Transfers in the West: Efficiency, Equity, and
the Environment.
Washington, DC: National Academy Press, 1992.
Reisner, Marc. Cadillac Desert, The American West and Its Disappearing Water. New York:
Viking Press, 1986.
Rogers, Peter. America's Water, Federal Roles and Responsibilities. Cambridge: MIT Press, 1996.
Simon, Benjamin M. Devolution of Federally Constructed Irrigation Projects. A Dissertation
submitted to the faculty of
the Columbian School of Arts and sciences, George Washington University. August 31, 2001.
Wahl, Richard. Markets for Federal Water, Subsidies, Property Rights and the Bureau of Reclamation.
Washington
DC: Resources for the Future, 1989.
Western Water Policy Review Advisory Commission. Water in the West: Challenge for the Next Century.
Springfield, VA:
National Technical Information Service, 1998.
Footnotes
1. (back)The plan to transfer water from the
Missouri River eastward for irrigation was originally authorized as part of the 1944
Flood Control Act, and was known as the Missouri-Souris project (58 Stat. 887) - one in a series of projects
authorized for
development as part of the Missouri River Basin Project (Pick-Sloan plan). While construction authorization for the
diversion unit was delayed, authorization of the Garrison Dam was included in the 1944 Act.
2. (back)Section 103(a)(4) of P.L. 106-566 directs
the Secretary of the Interior to study recycling, reclamation, and reuse of water
and wastewater for agricultural and non-agricultural uses in the state of Hawaii.
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