S. 2902

Statement of Estevan López, Commissioner
Bureau of Reclamation
U.S. Department of the Interior
Before the
Energy and Natural Resources Committee
U.S. Senate
on
S. 2902 (Flake) Western Water Supply and Planning Enhancement Act

May 17, 2016

Chairman Lee, Ranking Member Hirono and Members of the Subcommittee, I am Estevan López, Commissioner of the Bureau of Reclamation.  Thank you for the opportunity to provide the views of the Department on S. 2902, the Western Water Supply and Planning Enhancement Act.  Several provisions of S. 2902 include distinct and targeted provisions that touch on operational, environmental, planning and budget functions, many of which the Department has previously testified on.  For this reason, much of my statement will summarize the Department’s previously expressed views on the proposals in those provisions rather than the bill as a whole.

Title I, Subtitle A – Water Supply Improvements
Section 101 of S. 2902 contains language of interest to the Bureau of Reclamation (Reclamation) and Army Corps of Engineers.  Section 101, dealing with Reservoir Operation Improvement, would direct the creation of pilot projects to implement revisions of water operations manuals.  The Department notes that the directives of Section 101 fall on the U.S. Army Corps of Engineers (Corps), and that, pursuant to subparagraph 101(h)(3) the activities referenced would exclude Bureau of Reclamation (Reclamation) facilities except under certain conditions.

Reclamation believes that maintaining operations standards that reflect both the current state of science as well as changes in climate and hydrology to be an important part of supporting water resource management.  In Fiscal Year 2015 Reclamation began a Reservoir Operations Pilot Initiative as part of the WaterSMART program.  Historically, uncertainties in weather prediction and assumptions of an unchanging climate have resulted in conservative federal operating criteria for reservoir management.  It is expected that in some locations these criteria will have to be updated with consideration for weather forecast technology and shifts in climate conditions.  In 2015 Reclamation selected five pilot studies, one within each of Reclamation’s regions, to initiate work that is expected to be completed in FY 2018 as part of the Administration’s Federal Drought Action Plan.  The Reservoir Operations Pilot Initiative is a high priority action under Reclamation’s Climate Change Adaptation Strategy with a goal to increase water management flexibility in light of changing conditions.  These activities are critical to understanding where flexibilities may be increased through identifying trends in historic and projected climate, hydrology, sedimentation, and conjunctive groundwater management. The Corps has analyzed Section 101 and advises that.

Section 102 would amend the Colorado River Storage Project Act (Public Law 84-485) to authorize Reclamation to increase the active capacity and, as a result, the amount of water developed by Fontenelle Reservoir in Wyoming.  Reclamation appreciates the efforts of Senator Barrasso and his staff to work with Reclamation to address ours concerns identified in our June 18, 2015 testimony on similar legislation (S. 1305) before this Committee. With the subsequent amendment to S. 1305, the Department can now support this provision.

Section 103 would require the Department and the U.S. Department of Agriculture to enter into an arrangement with National Academy of Sciences to conduct a study on the impact of salt cedar control efforts in increasing water supply and improving riparian habitat.  The Departments of the Interior and Agriculture would then have 180 days to submit a report to Congress that describes a feasible plan to implement a tamarisk control plan, including a description of applicable timelines and costs.

The U.S. Geological Survey conducted an authoritative study on the effectiveness of the removal of salt cedar, which found that the removal of salt cedar from floodplain areas along rivers leads can lead to replacement by other vegetation that consumes roughly equal amounts of water.  The study found that removing salt cedar from these areas is unlikely to produce measurable water savings once replacement vegetation becomes established.  We look forward to working with the bill sponsor and the Committee to ensure that the previous report’s conclusions are considered, and any new reporting requirements add value to our current understanding of salt cedar impacts. 

Section 104 would amend Section 206 of the 2015 Appropriations Act and provide additional statutory direction on Colorado River operations.  The Department fully recognizes the severity of the ongoing historic drought in the Colorado River basin and the importance of proactive, consensus-based efforts to conserve the limited, and declining, water resources of the Colorado River Basin.  Subsection 206(a)(1), as amended, would continue Congressional direction to fund or participate in projects to increase storage of Colorado River water in Lake Mead and upstream reservoirs constructed under the 1956 Colorado River Storage Project Act.  The Department supports these continued efforts.

Subsection (a)(2) would add a new provision that would preclude release of Colorado River water from Lake Mead pursuant to a 2014 Memorandum of Understanding and the ongoing efforts pursuant to the Pilot System Conservation program.  While the Department recognizes that the provisions of subsection (a)(2) are narrow in scope, the Department does not believe this section is necessary for the successful implementation of these efforts and is duplicative of currently applicable provisions of Departmental policies and agreements already in force.  Additionally, the language of this subsection does not appear to currently have consensus support among all seven Colorado River Basin States.  We recognize that interstate cooperation is particularly essential in a time of increased risk of shortages on the Colorado River.  We are currently investing significant effort to find solutions that will generate consensus support in the Basin, and suggest that subsection (a)(2) may distract from the ongoing efforts to identify consensus tools and mechanisms to contribute to conservation of water in the Colorado River system with broad stakeholder support. 

We believe Subsections (b) through (e)are intended to enhance the Department’s efforts to conserve additional water in the Colorado River system in a manner consistent with current efforts.  The Department supports the goals of addressing ongoing drought in portions of the western United States and the reservoir elevations in Lakes Powell and Mead.  The Department continues to monitor the situation and has taken a number of steps to address these issues.  The Administration is still reviewing the full implications that these sections would have and does not have a position on these sections at this time.

Title I, Subtitle B – Protecting Critical Water Supply Watersheds
Title I, Subtitle B of S. 2902 contains provisions of interest to the Bureau of Land Management (BLM).  (We defer to the U.S. Forest Service on provisions of this Subtitle affecting National Forest System lands.)  This subtitle seeks to exclude certain vegetation treatments conducted for specific purposes from the environmental analysis and public involvement requirements in the National Environmental Policy Act (NEPA).  These treatments may range from hazardous fuels reduction and treatment for invasive species to timber harvest, and the bill sets out specific purposes (e.g., increase water yield) and administrative criteria (e.g., treatment proposed by a Resource Advisory Council) for these treatments.  Under the bill, if the BLM’s proposed activity is for one of the enumerated purposes, the agency could remove vegetation under an exclusion from NEPA, on up to 5,000 acres.  If the proposed activity also meets the administrative criteria of the bill, the BLM would be authorized to remove vegetation, under an exclusion from NEPA, on up to 15,000 acres.  The Department opposes this provision because of the scale of these treatments without environmental analysis and public involvement as required in NEPA.

Title I, Subtitle B also would limit public input through the NEPA process by requiring the BLM to analyze only the proposed action and a “no-action” alternative when a BLM proposed vegetation treatment project meets the administrative criteria set out in the bill.  This provision would limit the breadth and value of NEPA analysis to decision-makers.

The Department shares the sponsor’s goals of efficient and effective procedures.  Indeed, one of the priorities under Secretarial Order 3336 on Rangeland Fire Prevention, Management, and Restoration (Jan 5, 2015) is to encourage efforts to expedite processes, streamline procedures and promote innovations that can improve overall rangeland fire prevention, suppression and restoration efficiency and effectiveness.  We would be glad to discuss these objectives further with the bill’s sponsor.

Title I, Subtitle C – Bureau of Reclamation Transparency Act
Subtitle C, the Bureau of Reclamation Transparency Act, requires the Secretary of the Interior to submit to Congress a report on the efforts of Reclamation to manage its infrastructure assets.  As stated in our June 18, 2015, testimony on similar legislation (S. 593), Reclamation recognizes the value in obtaining additional information on the status of our infrastructure.  The Bureau of Reclamation Transparency Act is consistent with a draft Infrastructure Investment Strategy and process Reclamation has initiated proactively; therefore, the Department supports this provision.

Title I, Subtitle D – Water Supply Permitting Act
Subtitle D mirrors language in HR 2898 (Title VII), which with some modifications, largely consists of language from S. 1533 (114th), the Water Supply Permitting Coordination Act.  Reclamation expressed concern in our October 8, 2015, testimony on HR 2898 before this Committee that there is already ample basis for review of projects and coordination among federal agencies involved in water supply planning, remain regarding the language in this current bill.

Title I, Subtitle E – Bureau of Reclamation Project Streamlining Act
Subtitle E aims to facilitate and streamline Reclamation’s process for creating or expanding surface water storage under Reclamation law.  As we testified on Title VIII of HR 2898 before this Committee, this provision would restrict the time available to establish the merits of a surface water storage project and to consider a project’s potential environmental effects.  Constraining or circumventing project environmental reviews and permits impedes the opportunity to consider alternatives with potential impacts on communities and the environment which may be less adverse.  Such constraints could make favorable recommendations for project construction less likely and increase the potential for delay as a result of litigation, which, I would note, would have the opposite effect of the provisions’ intentions.  The Department does not support this provision.

Title II – Protecting Existing Water Rights 
Title II of S. 2902 resembles S. 982 (Barrasso), for which the Department provided testimony before this Subcommittee in June of 2015.  While we are still analyzing the new language in view of the recent introduction of S. 2902, in the Department’s June statement, we continue expressed concern that the Water Rights Protection Act legislation as drafted was overly broad, drafted in ambiguous terms, and would if enacted likely have numerous unintended consequences that would have adverse effects on existing law, tribal water rights, and voluntary agreements.  We are working to ascertain the extent to which the Department’s previously stated concerns may or may not apply to Title II of S. 2902.

Title III – Completing and Maintaining Rural Water Supply Infrastructure
Title III of S. 2902 incorporates S. 438, the Irrigation Rehabilitation and Renovation for Indian Tribal Governments and Their Economies Act, which creates a steady stream of funding to repair, replace and maintain certain Indian irrigation projects.  As stated before the Senate Committee on Indian Affairs’ March 4, 2015, hearing on S. 438, the Department supports the goals of working with tribes to address the maintenance of irrigation projects, and we look forward to working with you to address the best means of doing so given current budget constraints and the ability of irrigation projects to financially sustain themselves in the long run.

Subtitle B incorporates S. 1552, the Clean Water for Rural Communities Act, which would authorize construction of the Dry-Redwater Regional Water Authority System and the Musselshell-Judith Rural Water System in the States of Montana and North Dakota.  As stated in our June 18, 2015, testimony before this Committee, the Department cannot support this language at this time, based on constraints on program resources and other rural water project commitments.

Title IV – Offset 
Title IV includes language from Title IX of HR 2898, the Accelerated Revenue, Repayment and Surface Water Storage Enhancement Act on which Reclamation testified before this Committee on October 8, 2015.  The bill contains provisions to enable the conversion of any water service contract to a repayment contract, with allowance for pre-payment.  While Reclamation’s October 2015 testimony identified several programmatic concerns about the bill, it is also noteworthy that current CVP water service contracts already contain language for their eventual conversion to repayment contracts at such time that it is determined that the remaining construction costs of the CVP can be repaid within a specified repayment term and without adversely affecting the operations of the CVP.  Additionally, the bill proposes a one-year timeframe to convert existing contracts, which may not be reasonable given the realities of CVP operations and repayment status.

Conclusion
We stand ready to work with this Committee and bill sponsors to find common ground on legislation that can complement the Administration’s efforts to assist communities impacted by drought.  This concludes my written statement. I am pleased to answer questions at the appropriate time.